In an earlier blog post, we looked at distributed antenna system (DAS) networks, a technology that wireless service providers are deploying to address the increasing demand for additional network capacity.  Another technology that is being deployed is the small cell facility.  This is the first post in a two-post series on small cell facilities and the Declaratory Ruling and Third Report and Order (the “FCC Order”) that was adopted by the Federal Communications Commission (the “FCC”) in September.  This post describes small cell facilities, provides the reasons the FCC adopted the FCC Order and discusses the review standard adopted by the FCC.  The next post will review the fee standards and “shot clocks” that were adopted by the FCC and some typical ordinance requirements.

Small cell facilities typically consist of a single antenna, attached either to an existing structure (e.g., a light pole, utility pole, traffic signal pole, etc.) or to a new structure, together with a small equipment cabinet.  Small cell facilities provide a much smaller coverage footprint than a traditional wireless antenna facility and are intended to provide additional network capacity in an area where wireless subscribers are more concentrated (e.g., a shopping center, an urban area, etc.).  Small cell facilities are often deployed within public rights-of way which has led to some tension between wireless service providers and municipalities.

As was mentioned in the earlier post, the issues of access to public rights-of-way and municipal regulation of new facilities are receiving attention at both the state and federal levels.  The FCC hopes that the FCC Order will serve to facilitate and streamline the deployment of new small cell facilities in the public rights-of-way.  The FCC has stated that it wants to ensure that the United States is globally competitive when it comes to the deployment of the next generation of wireless services, known as 5G.  However, balancing the competing interests of promoting the rapid deployment of wireless infrastructure and permitting municipal regulation is no easy task.  The FCC noted concerns raised by the industry regarding excessive and unreasonable fees charged by municipalities, extensive regulations imposed on small cell facilities that are not imposed on other utility facility installations in public rights-of-way and lengthy review time periods for applications.

The federal Telecommunications Act of 1996 provides that state and local regulation of wireless service facilities can’t prohibit or have the effect of prohibiting the provision of wireless services.  In the FCC Order, the FCC clarified that a state or local law can act to prohibit or effectively prohibit the provision of wireless services if the law materially limits or inhibits the ability of any competitor to compete in a fair and balanced legal and regulatory environment.  An effective prohibition includes materially inhibiting additional services such as small cell facilities.  The FCC also clarified that applying a “gap in coverage” analysis is outdated and an “unduly narrow reading” of the Telecommunications Act.  This will affect ordinance provisions that require an applicant to demonstrate that there is a gap in coverage before a wireless facility can be approved.

The FCC Order will be effective on January 14, 2019.  Municipalities and municipal organizations as well as wireless service providers have already filed appeals challenging provisions of the FCC Order.  Do not miss our next post discussing the fee standards and “shot clocks” that were adopted by the FCC.  Please feel free to contact any member of the McNees Wallace & Nurick Land Use Group for assistance with any land use or development issues and/or if you have any questions regarding this post.