February 26, 2019, by Jeff Schervone
5G broadband deployment is accelerating with a boost from the Federal Communications Commission (“FCC”).
Status of 5G Deployment
5G deployment is dense, meaning small cell wireless facilities are attached to utility poles in local Rights-of-Way (ROW). In one example from Palo Alto, CA, a proposed AT&T small cell cluster required 12 utility pole attachments for a 0.4 square mile area for coverage. The deployment phasing in now is in select communities across the United States by wireless companies, such as Verizon, AT&T, T-Mobile and their partners. One estimate states that target 5G coverage by 2024 will require over 450,000 attachments. According to a recent statement by FCC Commissioner Brendan Carr (here), “5G is live today in 14 American cities. By the end of this year, that number could triple. One American provider reports that they’re clearing new small cells for construction at six times the pace as before the FCC’s decisions. Another says they’re doubling the number of cells sites they’re building. And another projects that the decisions will increase capital spending this year by around $1 billion to accelerate investment in 5G.”
FCC Rules and Pushback
On January 14, 2019, the FCC’s Declaratory Ruling and Third Report & Order, Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment (the “FCC Rules”) went into effect.
The FCC Rules set a 60 day shot clock for collocation and 90 days for new poles. The Rules also sets a safe-harbor cap on local government application fees in the amount of $500.00 per colocation application and an annual ROW assessment safe-harbor cap in the amount of $270.00 per attachment. The new shot clocks can be tolled by agreement or by notice by an authority within 10 days that the application is incomplete, then restarts only after the missing items are resolved. Other Rules related to local aesthetic requirements will go into effect on April 14, 2019.
Dozens of local authorities are pushing back against the FCC Rules and sued the FCC in federal court. Wireless telecommunication companies also sued the FCC claiming the Rules do not go far enough. The cases are consolidating in the Ninth Circuit Court of Appeals.
In the meantime, wireless companies are moving to accelerate deployment and in response, States and local government authorities are rushing to gear up to handle a flood of ROW applications in light of the FCC Rules.
In New Jersey, a bill A4422 (here) was introduced in the Assembly in October, 2018. That bill if conformed to FCC Rules and passed would provide uniform regulations of small wireless facilities in New Jersey. To date, similar – but by no means uniform – bills have passed or are pending in about 40 States.
In the small barrier island community of Lavallette, Ocean County, New Jersey, Verizon Wireless is seeking approval for a cluster of 5G small wireless facilities onto Borough utility poles. Although the Council opposes 5G deployment, they adopted a new ordinance (here) to regulate small cell applications that conforms to the FCC Rules. In addition, the ordinance mandates each carrier enter into a 15 year ROW agreement, and for each application: advises the carrier to engage in a pre-application administrative review process; requires a survey; and may require certification from a structural engineer. Also, the ordinance requires each application to include a $2,000.00 deposit for administrative review costs.
In Bellevue, WA, Verizon Wireless is seeking to deploy several clusters of small wireless facilities onto city utility poles. (Fun fact: T-Mobile’s HQ is located Bellevue, WA.) The city also passed an ordinance (here) to conform to the FCC Rules, and, like in Lavallette, mandated each carrier enter into a Master License Agreement and suggested engagement in a pre-application process. In addition, Bellevue’s ordinance mandates a process for post installation.
Until now — prior to the FCC Order — wireless companies Verizon, AT&T, T-Mobile and their partners have engaged cooperatively with local authorities and the public to work through issues and concerns over 5G small cell deployment and the ROW application process. That may change with the FCC Rules and as wireless companies hone their application processes and strive to meet aggressive 5G coverage targets.
5G is now a national priority with vast investment and resources allocated for deployment on a very dense scale. The regulatory and physical landscape related to 5G small cell deployment is maturing and accelerating, working 5G eventually into every local community. Despite general public unawareness and concern at learning small cells can be sited outside a bedroom window not just on a tower miles away, 5G infrastructure is coming, whether communities want it or not.
JHS
SCHERVONE LAW 