FCC Intends to Curb ‘Outlier’ Behavior in Small Cell Siting Order

UPDATE How did the FCC arrive at decisions aimed at curbing “outlier” behavior by localities when it comes to small cell infrastructure siting? Commission officials spent “substantial time” with many local and state officials, and representatives from Tribes and industries, and says its proposal builds on the ideas contained in small cell deployment bills enacted in 20+ states.

The proposal reaffirms that state and local laws that effectively hinder a provider’s ability to provide service, like filling a coverage gap or densifying a network, are prohibited. It says states and localities must keep small cell siting fees for public Rights-of-Way [ROW] to “reasonable” levels. That applies to fees to access the ROW, use the space, and attach small cells to government-owned or controlled street lights, traffic lights, utility poles, and other infrastructure within the ROW. The FCC says its interpretation of “fair and reasonable” levels doesn’t mean states and localities can charge anything they please, and clarifying their “approach to compensation ensures that cities are not going into the red to support or subsidize the deployment of wireless infrastructure.”

Inside Towers reported on some of the fees the wireless industry is being charged to access ROWs. For the localities’ view, the National League of Cities Comments told the Commission “local governments, like private landlords, are entitled to collect rent for the use of their property and have a duty to their residents to assess appropriate compensation. This does not necessarily translate to restricting this compensation to just the cost of managing the asset – just as private property varies in value, so does municipal property.” The Smart Cities Coalition agreed, adding: “fair and reasonable compensation (i.e., fair market value) is not, as some commenters contend, measured by the regulatory cost for use of a ROW or other property; rather it is measured by what it would cost the user of the ROW to purchase rights form a local property owner.”

The FCC also firms up its shot clock rules in the proposal, saying the record indicates many local siting authorities are not adhering to those timelines to act on a siting application. The Wireless Infrastructure Association, for example, tells the agency its members “routinely” face lengthy delays and specifically cites localities in New Jersey, New Hampshire, and Maine as being problematic.

One WIA member “reports that 70 percent of its applications to deploy small wireless facilities in the public ROWs during a two-year period exceeded the 90-day shot clock for installation on an existing utility pole, and 47 percent exceeded the 150-day shot clock for the construction of new towers.” AT&T cited a California locality that took 800 days to process one application. Crown Castle describes a case in which a “town took approximately two years and nearly twenty meetings, with constantly shifting demands, before it would even ‘deem complete’ Crown Castle’s application.” A New Jersey locality took almost five years to deny a Sprint application.
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By Leslie Stimson, Inside Towers Washington Bureau Chief

September 7, 2018

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