November 21, 2018, by Jeff Schervone,
Wireless 5G broadband is coming. How to know? Take a look up sometime at utility poles and notice the attachments to the pole. Aside from electricity transmission gear, there are probably a few black boxes which could be public safety surveillance, other monitoring equipment, and communications equipment. Those poles are poised to be the backbone of the new 5G broadband network infrastructure in coming years. 5G is touted as a revolutionary next generation wireless network with transformational capabilities. This network will purportedly provide high bandwidth, low latency internet service to empower cutting edge and future tech, such as virtual reality (VR), the Internet of Things (IoT) and applications “we haven’t even conceived of yet.” Imagine, holographic sales persons in the mall, or wireless battery charging all the time. So exciting are the possibilities that deployment is deemed critical as a matter of public policy.
Because 5G operational frequencies are far higher than today’s 4G/LTE networks and their massive cellular towers, 5G requires densification. That is, so-called “small cell” antenna facilities stationed much closer together. According to some antenna manufacturer specifications, optimal placement for small cell antennas is between 200 and 400 feet apart. Of course, the technology is new and antenna variants are many. Some antenna enclosures are colloquially described as about the size of a pizza box. Other omnidirectional antennas appear to be the size of a large popcorn tin. Turns out that one of the best places to attach the future is on existing utility poles.
In an effort to speed the deployment of 5G Broadband nationwide, the Federal Communications Commission (FCC) issued regulations for swift access to utility poles in order to attach new small cell wireless “facilities” to utility poles. Dozens of states have passed or have bills pending to implement this deployment also as a matter of public policy. Under the new federal regulations and state laws, the process for small wireless facility attachments to existing utility poles is streamlined and uniform to be “swift, predictable and affordable.” The FCC explicitly preempts state and local “barriers to deployment.” The attachment is streamlined to “One Touch, Make Ready” (OTMR), meaning a wireless provider (e.g. Verizon, AT&T) that wants its equipment attached to a utility pole bears the costs and liability for the installation, operation and maintenance of its equipment. Local right-of-way authority approval — or denial — is subject to a “shot clock:” 60 days for attachment to an existing structure or 90 days for attachment and provision of a new structure.
New Jersey’s pending implementing bill is titled the “Small Wireless Facilities Deployment Act” and seems to go even farther than FCC regulations in preempting local “barriers to deployment.” The pending bill (A2244-2018) provides that if an application is not acted upon within the shot clock timeframe, the application is deemed approved. The New Jersey bill, similar to other states’ legislation, also caps application fees payable to local municipalities at $650 for attachment to an existing pole, $1,000 for a new structure and also provides for a cap of $200.00 per pole per year or the “actual cost” to the authority whichever is greater. Revenue potential seems significant given the density of new attachments as the deployment progresses.
The New Jersey legislation also requires the attacher to provide specific insurance including coverage for property damage, workers’ compensation and general commercial liability. No mention of requiring coverage for cyber liability.
While the benefits of 5G are still in the “to be conceived” stage, two things seem clear: (1) consumers will need to purchase new devices to access 5G; and (2) cat videos can finally be streamed in 4K HD through the refrigerator.
SCHERVONE LAW 