Radical changes to city control of streetlights and wireless permits proposed by FCC

6 September 2018 by Steve Blum
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Cities and other local agencies could only charge mobile carriers $270 per year to install “small wireless facilities” on street lights and other property they own in the public right of way (ROW), under new rules proposed yesterday by the Federal Communications Commission. Permit fees and processing times, and other requirements, including aesthetic, undergrounding and minimum spacing standards – pretty much any basis for saying no – would also be sharply restricted.

If adopted later this month, the 100-page draft will make sweeping changes to the manner in which the public right of way is managed, and how it’s defined. The most radical change is to the definition of public right of way. For telecoms companies in California, that means “any public road or highway” and “along or across any of the waters or lands within this State”. Both the FCC and California law regulate the way telecoms companies can use it. The FCC proposes to extend its authority to “government property in the ROW, such as light poles, traffic lights, utility poles, and other similar property suitable for hosting Small Wireless Facilities”.

A small wireless facility is defined as a pole that’s no more than 10% higher than surrounding structures or 50 feet, whichever is greater, plus unlimited antennas of no more than 3 cubic feet each, plus associated equipment of no more than 28 cubic feet. Imagine several large suitcases mounted on a 50 foot pole, with a large refrigerator at the base – that’s an example of what “small” means.

In theory, the $270 annual lease rate is not a hard limit, but to go higher it would have to be “a reasonable approximation of costs” and not “unreasonably high”. It also couldn’t “subsidise local government costs in another geographic area or accomplish some public policy objective beyond the providers’ use of the ROW”. A $500 limit would apply to permit applications for up to five small wireless facilities, with an extra $100 per additional site. That’s for all permits combined, not for each one. The FCC reckons “there should be only very limited circumstances in which localities can charge higher fees” or lease rates.

Aesthetic requirements can be “no more burdensome than those applied to other types of infrastructure deployments”. In other words, if a city has no rules regarding how, say, an electric transformer or traffic signal box is built, then it might be difficult to defend meaningful restrictions on how wireless gear looks, whether or not it’s on a city-owned pole. The FCC’s new aesthetic standard is vague enough to guarantee years of litigation.

The draft leans heavily on the recommendations made by the FCC’s industry-dominated broadband deployment committee, and even goes beyond them, particularly where lease rates for streetlights and such are concerned.

Two things you can count on: the FCC will adopt the new rules and court challenges will follow. Much of the FCC’s reasoning seems weak. On top of that, California’s system for managing the ROW is already very generous to telecoms companies – they don’t have to pay any rent to use it, and local agencies can only regulate the “time, place and manner” in which they access it. The FCC’s logic is on shakier ground here than in states where agencies restrict ROW access and charge annual fees.

The draft is scheduled to be voted on at the FCC’s 26 September 2018 meeting.

Among my other sins, I assist local governments with wireless policy and lease negotiations. I’m not a disinterested commentator. Take it for what it’s worth.