1

TOWN of CARY

Small Cell Wireless Legislative and Regulatory Update

Lisa Glover · March 2019

**Opinions are my own. Consult your attorney for legal advice.**

1

TOWN of CARY

New Things You Need to Know

1. 10 day completeness review

2. No application fees for telecom service providers

3. Federal fees and shot clocks apply to all permits

4. Publish aesthetic standards by April 15

2

TOWN of CARY

3amazonfiretv.blog

2

TOWN of CARY

4

TOWN of CARY

Why Aren’t Traditional Towers Enough?According to the Industry, they need more:§Coverage

§Need to improve poor signals (in-building; terrain issues)§Capacity

§Need to improve data speeds in “hot spots”

5

TOWN of CARY

6https://www.visualcapitalist.com/5g-next-generation-mobile-connectivity/5g-share/

3

TOWN of CARY

“Fifth Generation” Wireless§Millimeter wave signals at higher frequency§Requires many smaller, lower power base stations §Carriers can add extra radio to existing 4G small cell sites§Uses:

§Replace home internet?§ Autonomous vehicles§ VR

7

isemag.com

TOWN of CARY

How Many? Square Miles x 10 x Number of Providers

8

520 800 9602400

5800

0

1000

2000

3000

4000

5000

6000

7000

Cla yton Cha pel Hil l San fo rd Cary Raleigh

SMALL CELLS

TOWN of CARY

9

4

TOWN of CARY

First Small Cell Installation in Cary

Co-location on existing utility pole

10

TOWN of CARY

First Small Cell Installation in Cary

Co-location on existing utility poleall equipment on the pole

11

TOWN of CARY

12

5

TOWN of CARY

13

TOWN of CARY

14

Traffic Signal Co-location (Phoenix)

Traffic Signal withground equipment

TOWN of CARY

15celltowerphotos.com

6

TOWN of CARY

Why Are Local Governments Concerned?§“Small cells” are not small§ROW is for the benefit of the entire public§Space is limited§Safety concerns

§ Adding new poles§Replacement poles often heavier than existing

16

TOWN of CARY

17fhwa.gov

TOWN of CARY

Why Are Local Governments Concerned?§Fees do not permit cost recovery§Loss of control over “City Utility Poles”§True “utilities” are regulated§No guarantee 5G/small cell will help bridge the “digital

divide” or help with emergency response§Citizen concerns

18

7

TOWN of CARY

What Law Do I Need to Know?

19

§Federal§Various sections of 47 USC§FCC Orders; most recent dated September 27, 2018

(effective January 14 and April 15, 2019)§State

§NCGS § 160A-400.50 – 160A-400.57§NCGS § 136-18.3A§NCGS § 160A-296§NCSL 2018-145, section 7

TOWN of CARY

What Law Do I Need to Know? §FCC has been directed to “promote competition . . . reduce

regulation . . . and encourage the rapid deployment of new telecommunication technologies”

§General Assembly has said that wireless facilities are “instrumental” to provision of emergency services; that wireless providers “must” have access to the public ROW; and that “expeditious processes” are “essential”

20

TOWN of CARY

What Law Do I Need to Know? Local regulation may not:§Unreasonably discriminate among providers§Prohibit or have the effect of prohibiting service

§may not materially limit or inhibit the ability of any competitor or potential competitor to compete in a fair and balanced legal and regulatory environment

§Impose requirements on RF emissions

21

8

TOWN of CARY

What Law Do I Need to Know? §Federal law preempts state law unless state law is more favorable to the wireless industry

§In North Carolina:§ State law provides specifics on fees, ordinances, shot clocks§ Federal Law provides overarching principles by which to judge

all local ordinances & fees, specifics on shot clocks

22

TOWN of CARY

23

TOWN of CARY

24

9

TOWN of CARY

Fees and Shot Clocks

25

State Law Federal Law

Fees Hard cap “Safe Harbor” amounts

Shot Clocks

Longer, but “deemed granted” remedy

Shorter, but no “deemed granted” remedy

TOWN of CARY

Fees and Shot Clocks§Application fees are capped by State Law

§Batches of 25: $100 each for 1st 5; then $50§ Technical Consulting Fee $500 (per batch)

§Effective December 28, 2018 (SB 469):§ “Telecommunications services companies” essentially exempted

from paying any fees – ROW or application§ They may be charged only “the difference between a city's right-of-

way management expenses related to [their] activities . . . and distributions under Article 5 of Chapter 105.”

26

TOWN of CARY

Fees and Shot Clocks

§Federal “safe harbor” amounts apply to total of all fees charged (building permits, etc)§ “non-recurring” fees: $100 for each co-location; $1000 for

each new pole§ “recurring” fees: $270 per facility per year

§Fees can be above these amounts if reasonable approximation of cost and non-discriminatory

27

10

TOWN of CARY

28

10 days: complete?

Unlimited*: applicant may

resubmit10 days:

complete?

45 days: deny or deemed granted

30 days:applicant may

reapply if denied30 days: deny or deemed granted

Fees and Shot Clocks(State law; all application types)

TOWN of CARY

Fees and Shot Clocks

§All required permits must be reviewed within federal shot clock under new FCC order (building permits, encroachment)§ Co-location: 60 days (tolled for resubmittals)§New pole: 90 days (tolled for resubmittals)

§Applicants can agree to extend the shot clock

29

TOWN of CARY

Regulation Depends on Location & Structure§NCDOT ROW§Municipal ROW§Private Property§Single family residential§All other

§“City Utility Poles”§Streetlights

30ePole®

11

TOWN of CARY

NCDOT ROW – 80,000 miles worth§No local regulation of new poles or antenna co-locations on poles in NCDOT ROW§How tall can poles/antenna be?

§Depends on height of surrounding poles as of July 1, 2017§ 10 feet taller than existing, or 50 feet, whichever is greater

§NCDOT can deny requests if will hinder or obstruct travel, public safety, or use of ROW§Avoid “clear zone”

31

TOWN of CARY

Municipal ROW and Private Property (all)§Can require construction to start within 6 months and facility

to be activated within 1 year§Can require removal of “abandoned” antenna (not pole!)§Can require applicant to repair damage to ROW§Cannot require applicant to reserve fiber, conduit, or pole

space for municipality§Cannot regulate small cell placement inside athletic facilities

(unless town-owned)§Must permit replacement of poles, antenna

32

TOWN of CARY

Municipal ROW and Private Property (all)Allowable Regulations:§Public safety requirements§Objective design standards for utility poles§Reasonable & nondiscriminatory concealment

requirements§Screening and spacing requirements for ground equipment§Historic preservation requirements

33

12

TOWN of CARY

Municipal ROW and Private Property (all)

§Aesthetic requirements must be “published in advance” (effective April 15, 2019)

§All requirements (not just aesthetic) must be:§ reasonable; § no more burdensome than those applied to other types of similar

infrastructure; § objective; and § technically feasible.

34

TOWN of CARY

Municipal ROW§Co-locations

§Must permit antennas (up to 10 ft) on existing or replacement poles (up to 50 ft)

§New Poles§ Can prohibit if undergrounding requirements would prohibit §Undergrounding requirements must be nondiscriminatory; must not

prohibit replacement of poles; and must have a waiver process§Otherwise must allow poles up to 50 ft

§Can allow (or completely prohibit?) taller poles and antennas

35

TOWN of CARY

36

13

TOWN of CARY

State Legislation Overlooked:§Poles, antenna taller than 50ft, 10ft§Poles on private property outside NCDOT, city ROW§Co-locations on single-family residential property

37

TOWN of CARY

Private Property – Not SF Residential§Co-locations

§Must permit antennas (up to 10 ft) on existing or replacement poles (up to 50 ft)

§New Poles§ Can prohibit if undergrounding requirements would prohibit §Undergrounding requirements must be nondiscriminatory; must not

prohibit replacement of poles; and must have a waiver process§Can allow (or completely prohibit?) taller poles and antennas

38

TOWN of CARY

Private Property – Single Family Residential§Co-location

§ Can allow (or prohibit?)§New poles

§ Can allow (or prohibit?)§But if utilities are underground, must limit poles to 40 ft unless city

grants “waiver or variance” for taller pole§Remember: all ordinances are judged against FCC Order

standard (reasonable, no more burdensome, objective, technically feasible)

39

14

TOWN of CARY

Streetlight Replacement§Cary: Streetlights are owned by

Duke Energy; paid for by Town§Not always in the ROW; may be

on private property in an easement

§Ordinance can permit dual-use streetlights in locations where new poles or antenna may be prohibited

40

TOWN of CARY

“City Utility Poles” aka Traffic Signals, etc§Traffic signals, streetlights

owned by municipality in ROW§Must permit co-locations§$50 per pole per year max§Town must do “make-ready”

work at its own expense (reimbursable)

§60 days to enter agreement41

TOWN of CARY

What about ?§You must permit co-location on your poles§Where are your poles located? §“Nothing contained in this Part shall amend, modify, or

otherwise affect any easement between private parties. Any and all rights for the use of a right-of-way are subject to the rights granted pursuant to an easement between private parties.”

42

15

TOWN of CARY

Is there any good news?§Local governments maintain

ownership and control of their own structures located outside of ROW§No mandate to permit small cell

installation on government-owned cell towers, water tanks, buildings

§Continue to regulate traditional cell towers on private property

43

TOWN of CARY

Recommendations§Make sure review staff understand shot clocks and implications§“Publish” aesthetic requirements ASAP§Review ALL fees charged§Consider application updates

§Require applicant to identify laws they believe apply§ Ask applicants to extend the shot clock§Require survey§Require all permits to be applied for at once

44

TOWN of CARY

Recommendations§Require stealth/concealed installations

§Defeat future by-right enlargements -“eligible facilities requests”§ Increase up to 20%, 10ft

§ Inventory municipal utility poles; draft a pole attachment agreement

§Stay tuned! Litigation is ongoing

45

16

TOWN of CARY

Questions?

46