New Legislation Providing for Deployment of Small Cell Wireless Facilities Becomes Effective August 29th

The Legal Intelligencer

(by Krista Staley and Anna Jewart)

On June 30, 2021, Governor Tom Wolf signed Pennsylvania House Bill 1621, the Small Wireless Facilities Deployment Act as Act 50 of 2021 (“Act 50”), into law. This Act reflects years of negotiations between industry groups and municipalities over the balance of local land use authority and ease of deployment in small cell infrastructure deployment.  Effective August 29th, the Act standardizes the local permitting process for small cell facilities located within municipal rights-of-way.

As demand increases exponentially for faster and more reliable wireless service, so does the demand to develop infrastructure capable of providing greater coverage and capacity.  A decade ago, a single large cell tower on the outskirts of town could meet a community’s wireless voice and data service needs.  However, the reliability of these large “macro cell” wireless facilities has decreased as mobile data traffic exploded. The telecommunications industry responded by developing “small cell networks” distributed throughout communities and buildings to better meet to the constant on-the-go data needs of the modern age.  Instead of utilizing a single tower, possibly hundreds of feet high, small cell networks use multiple low-power antennas that connect to fiber optic cables. These small cell systems allow for greater speeds and more uniform coverage where they are deployed. However, they require a greater level of “wireless density” in order to function as intended.  In other words, small cell facilities must be installed every few blocks rather than every few miles.

To achieve the desired wireless density providers have sought to utilize existing utility poles, street lights, or other structures within municipal rights-of-way. This allows for ease of installation as well as proximity to users.  While the use of the right-of-way, and the existing infrastructure therein, is a convenient solution for wireless providers, the rapid development of these technologies has forced municipalities across the country to scramble to determine how to handle permits for the installation of small cell facilities within their communities.  Conflicts between local zoning and land use regulations and federal law has led to confusion among local leaders, often spurred by citizen opposition and misinformation about the safety of these new technologies.

Although local governments have a certain level of control over activities within their rights-of-way, federal law, contained in Sections 253 and 332(c)(7) of the Communications Act, 47 U.S.C. §253(a), 332(c)(7)(B)(i)(II), prohibits state or local regulations that prohibit or “have the effect of prohibiting” interstate communications.  This prohibition limits municipalities’ ability to regulate small cell providers through their zoning, land development, or other ordinances.  In 2018, the Federal Communications Commission (“FCC”) issued a Declaratory Ruling (“Small Cell Order”) which outlined when such an effective prohibition has occurred.  Act 50 largely codifies these FCC rules, but it also places certain additional burdens and limitations on municipalities within the Commonwealth that will impact how local governments process applications for the installation of small cell facilities within their rights-of-way going forward.

While the Act in large part attempts to standardize local permitting for small cell facilities, it also imposes certain requirements on wireless providers.  For example, wireless providers must repair any damage to the right-of-way or other land disturbed by its activities or that of its contractors. If a provider fails to do so, a municipality may, within 30 days after written notice, perform the repairs and charge the provider for the costs plus a penalty not to exceed $500.00.  Providers are also required to demonstrate that collocation on an existing structure is not possible prior to placing a new structure within the right-of-way. The Act also defines “Small Wireless Facilities” subject to its protections as facilities where each antenna is no greater than three cubic feet, and the volume of all other equipment associated with the facility is cumulatively no more than 28 cubic feet.  Utility poles used for small cell facilities may not be greater than fifty feet in height.

Act 50 primarily sets requirements for how municipalities handle applications to place small cell facilities within their rights-of-way.  From a zoning perspective, small cell facilities must be considered a permitted use in all areas of the municipality, except underground districts. They may still be reviewed by municipal staff in accordance with local zoning, land use, and certain other ordinances.  However, municipalities may not subject small cell applicants to discretionary zoning review, such as conditional use or special exception requirements.  Municipalities may require applicants to obtain permits of general applicability in order to collocate small cell facilities on existing poles, replace existing utility poles with added small cell infrastructure, or install a new utility pole with added small cell infrastructure within the municipal right-of-way.

In accordance with the 2018 FCC Small Cell Order, Act 50 limits the application fee municipalities may charge for placing a small cell facility within their rights-of-way. The Act allows up to $500.00 for an application seeking approval of up to five collocated small cell facilities, up to $100.00 for each additional collocated facility, and up to $1,000.00 for an application for a new or replacement pole.  In addition, municipalities are permitted to charge a right-of-way management fee of up to $270.00 per small cell facility per year, unless they can demonstrate that a higher fee is a reasonable approximation of the actual cost to manage the right-of-way and that the fee is reasonable and non-discriminatory. These limits may be adjusted in the future if the FCC adjusts the fee levels in its 2018 Small Cell Order.

In addition, the Act establishes time limits for municipal review of applications for small cell facilities.  Municipalities have only 60 days to approve or deny an application to collocate facilities and 90 days to render a decision on an application to replace or install a new pole.  Failure to comply with these deadlines results in a deemed approval.  Municipalities are only permitted to deny an application for certain enumerated reasons, such as interference with the safe operation of traffic control, failure to comply with their applicable codes, or failure to comply with the requirements of the Act.  If approved, right-of-way occupancy permits must have an initial term of at least five years and permit two five-year renewal terms.  On the other hand, the applicant must complete all permitted work within one year.

The Act does allow for a certain level of local control over application and design criteria for small cell facilities.  Municipalities may adopt objective guidelines for small cell facilities regarding minimization of their aesthetic impact so long as the guidelines do not prohibit the provider’s technology or unreasonably discriminate among providers of functionally equivalent services.  This includes requiring concealment measures for facilities within historic districts, as well as limitations on access to areas designed exclusively for underground cable or utility facilities.  They may also adopt certain application criteria such as requiring the submission of construction and engineering drawings, documentation of approval from the pole owner, and documentation showing compliance with the municipality’s design guidelines.

If municipalities desire to amend or adopt an ordinance in compliance with the Act, including establishing permissible aesthetic guidelines or application requirements, they must do so within 60 days of the effective date of the Act.  If a municipality does not do so, any applications received must be processed in compliance with the Act.  Therefore, municipalities should review their ordinances for compliance with the Act and consider amendment or adoption of any permissible design or application criteria for small cell facilities prior to October 28, 2021.

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Reprinted with permission from the August 19, 2021 edition of The Legal Intelligencer© 2021 ALM Media Properties, LLC. All rights reserved.