Wireless carriers and the companies that build towers for them have begun flooding city and county permitting offices with applications for attaching small cells to poles and building new ones. Cities that normally see a few dozen such applications yearly began in 2016 to get hundreds, such as Houston. Montgomery County said it had at one point more applications filed in four months than in the previous 18 years.
Wireless companies complain local governments can’t process the permits fast enough because their systems are set up to review applications for massive cell towers, not the small cells they claim are less intrusive. The process needs to move quickly, they say, because 5G requires so many more cells, and they want to beat other countries to set standards.
The FCC issued a notice in April that it would consider rules to streamline cell deployment by reducing the time cities’ and counties’ have to review applications. The agency also said it would study, with the possibility of proposing rules later, both how the FCC could limit cities’ requirements on the look and design of small cells, and if local fees to attach to poles are excessive. The FCC also asked for ways it could amend its own rules. The agency may consider the proposals by the summer.
Pai, a former attorney for Verizon, also created last year a committee of representatives mostly from the wireless industry to develop model codes that cities and counties can adopt to speed the permitting of small cells and to reduce costs to telecoms. The committee is considering proposals, which it plans to formally submit to the FCC later this spring, that run the gamut, from simply calling on cities and the wireless industry to work together to controversial recommendations such as capping what cities charge to attach to public property.
Mayor Sam Liccardo of San Jose, California, one of the few members on the committee representing local interests and who has been critical of wireless companies’ efforts to weaken local rules, resigned from the group in January, saying the wireless industry “has sought to create a set of rules that will provide it with easy access to publicly-funded infrastructure at taxpayer-subsidized rates, without any obligation to provide broadband access to underserved residents.”
In response, Pai said in a statement that the committee has “brought together 101 participants from a range of perspectives” and he looks forward to working with the committee and others “to remove regulatory barriers to broadband deployment and to extend digital opportunity to all Americans.”
Pai has made it clear he would like to see strong restrictions on local rules. Just weeks before Trump was elected president, Pai told telecom executives in Seattle, “The FCC must aggressively use its legal authority to make sure that local governments don’t stand in the way of broadband deployment” and should use the law “to preempt [local] barriers.”
Absent a state law that provides for shorter time periods, cities and counties have 60 days to rule on wireless cell co-location applications for existing cell sites if they don’t involve a significant change, as defined by federal law. They have 90 days to review a co-location application that does involve a significant change. Local governments have 150 days to process a regulatory request to erect a new site. The time frames are known as “shot clocks.” If a city denies the application in the latter two instances or fails to act on the application, the aggrieved applicant has their own shot clock, 30 days, in which to file an appeal in federal district court. Failure to act on a 60-day colocation request creates a deemed granted procedure, relief that was developed during President Barack Obama’s administration to implement provisions passed by Congress.
It ‘is not pretty’
Wireless carriers have told the FCC it should reduce the shot clock to 60 days for colocations and 90 days for new poles — and to include a provision that if a city or county exceeds the deadline, then the application is deemed approved.
The wireless industry has filed dozens of comments complaining about long delays in obtaining approvals. AT&T executives claimed that unidentified local officials in California delayed the deployment of small cells by more than 800 days because they “scrutinized,” among other things, antenna designs, radio-frequency exposure, effect on property values and screening of equipment. Verizon wrote to the FCC complaining about unnamed local ordinances that “are overly restrictive,” citing provisions such as property notification requirements, protection from falling poles and landscaping rules.
Cities and counties argue the delays are caused by the wireless companies themselves. Montgomery County officials submitted a filing to the FCC in March 2016 claiming Mobilitie routinely filed incomplete applications. Other local governments said they have had similar experiences with Mobilitie, including applications that had “obvious safety issues,” according to a group of local governments in 11 states and the District of Columbia. Mobilitie’s “record in many communities is not pretty,” the coalition said last year.
Mobilitie officials said in an email that their relationship with local governments is part of an “evolving environment” that is leading to a better collaboration to create more appropriate approval processes.
“I don't think we've ever seen more progress” than has occurred lately, Jason Caliento, senior vice president for network strategy for Mobilitie, said in an interview.
Caliento wouldn’t say if the progress was sufficient for the wireless industry to stop calling for the FCC to restrict local authority over small cells. “The best thing that individual cities can do is to continue to work with industry and continue to make everything reasonable and time efficient,” he said. “Then I think you'll see probably the industry make those investments without as much legislative activity.”
Just days later, Mobilitie’s head of government affairs, Kirk Jamieson, was at FCC’s headquarters in Washington meeting with top officials to urge the FCC to impose shorter shot clocks on cities and counties.
City officials say less time to review applications will open the door to small-cell facilities that are unsightly and unsafe.