FCC Small Cell Order 18-133 to Become Effective January 14, 2019

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After almost two years of consideration, the FCC approved a Declaratory Ruling and 3rd Report and Order regarding acceleration of wireless infrastructure deployment through relaxation of barriers, affecting the local permit process. This is a summary of that text. In recent years the wireless industry has developed technology that facilitates improved coverage and capacity to densely occupied neighbors without the necessity to install tall towers and equipment buildings at each antenna site. Fiber optic cable is necessary to connect small antennas and a small associated equipment box to network facilities.

The size of ‘small’ has been defined in recent years through certain state laws and by amendment to the Nationwide Programmatic Agreement for the Collocation of Wireless Antennas (NPA) between the Advisory Council on Historic Preservation (ACHP), the National Conference of State Historic Preservation Officers (NCSHPO), and the FCC. The NPA specifically regards historic properties and designated historic districts. Size-wise, the NPA defines a small cell antenna with/without an enclosure as no more than three (3) cubic feet in volume or six (6) cubic feet (for multiple antennas).

Equipment associated with small antennas can’t exceed twenty-one (21) cubic feet in volume. The Colorado Small Cell Law defines small cell antennas as existing in three (3) cubic feet or less space with associated equipment within seventeen (17) cubic feet space or less. Consistent with the FCC’s March 2018 ruling excluding small cell facilities on non-tribal lands from National Historic Preservation Act (NHPA) and National Environmental Protection Act (NEPA) reviews, the new FCC Report and Order defines small cell antennas as three (3) cubic feet or less space and associated equipment as twenty-eight (28) cubic feet or less. Small cell structures are defined as being fifty feet (50’) or less in height and no more than ten percent (10%) higher than its existing height or that of adjacent structures. The Report and Order further sets the shot clock for jurisdictions to take action on one or more small cell facility collocations in a single application at 60 days (30 days less than for a single macro site) and the new construction of one or more small cells in a single application at 90 days (60 days less than for a single macro site) not including the time it takes for an applicant to complete an application upon request.

The Declaratory Ruling clarifies and updates the FCC’s authority with respect to state or local fees on infrastructure that prohibit the provision of wireless service. It states that only fees that approximate the objective cost to a jurisdiction and are no higher than fees charged in similar situations to competitors are allowed and non-discriminatory. It further proposes fee levels, that the FCC presumes would be allowed for two situations; being $500 for a single application of up to five small cell facilities plus $100 for each additional small facility over five and $270 annually per small cell facility for all recurring fees including ROW access or attachments to jurisdiction-owned structures in the ROW. These numbers do not preclude the possibility of higher fees being assessed, just so long as they approximate the objective cost and are non-discriminatory. The FCC provided for this Ruling and 3rd Report and Order to become effective (90 days after it is published in the Federal Register) on January 14, 2019.

By John Rowe, Regulatory Chairman, Colorado Wireless Association

November 28, 2018

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