March/April 2019 Issue

Also in this issue: What Constitutes a Quasi-governmental Corporation Subject to Wisconsin Public Records Law?     |     Each Concert at a Public Park was a Separate Event for Purposes of Providing Notice of a Private Nuisance Claim Against a City

The FCC’s Small Cell Order: The Down and Dirty

Anita T. Gallucci , Julia Potter | 03.28.19

The express goal of the Federal Communications Commission’s recent Small Cell Order is to remove purported barriers to the deployment of wireless broadband services by ensuring that wireless carriers have low-cost and easy access to local right-of-way (“ROW”) and to municipal property located in local ROW. The FCC believes it can accelerate deployment by limiting municipal authority to regulate the placement of so-called small wireless facilities (“SWF”) in local ROW and on municipally owned structures in the ROW, including street light poles, traffic light poles, and utility poles. Here are a few things every Wisconsin municipality should know about the Order:

What can a municipality reasonably do? It is NOT true that the wireless carrier may put its SWF, including support structures, anywhere it wants to in the ROW. While the FCC’s Order places additional limits on municipal authority to regulate the ROW, municipalities have not been stripped of all of their authority. Municipalities may still adopt and apply ​“reasonable regulations” to the use of local ROW, including when the user is a wireless carrier.

The FCC Order, however, does redefine what is ​“reasonable” with respect to municipal ROW regulation as applied to wireless and other telecommunications carriers. Under the FCC’s new formulation, a municipal regulation is preempted if it: ​“materially limits or inhibits any competitor’s or potential competitor’s ability to compete in a fair and balanced legal and regulatory environment.” It is not immediately obvious what this new standard means, and it will likely only be through litigation that we will have a better understanding of it. For now, we understand that, under this standard, a municipal regulation would be preempted if it, for example, created a moratorium on the processing of permit applications by wireless carriers until a comprehensive ROW ordinance was adopted or mandated that wireless carriers place their antenna facilities only on existing structures.

What can a municipality do about aesthetics? The FCC adopted a new ​“reasonableness” standard to be applied to regulations that deal with aesthetics. Aesthetic and other similar requirements (e.g., undergrounding and spacing) are preempted unless they are: reasonable, no more burdensome than those applied to other types of infrastructure deployments, objective, and published in advance. The key criterion here is the second one — that is, an aesthetic regulation cannot apply only to wireless facilities. This means that if the municipality’s ROW is already cluttered with aesthetically unappealing electric utility poles and wires or pedestals and other street furniture, then it will have a difficult time adopting permissible aesthetic requirements if those requirements are not also applied to the equipment of existing ROW users.

What fees can a municipality charge? Fees fall into three categories: ROW access fees, permit application fees, and rental or license fees for the use of municipally owned property (e.g., street light poles). The FCC adopted yet another standard to determine whether such fees are reasonable. ROW fees are prohibited unless three conditions are met: the fees are a reasonable approximation of the municipality’s costs, only objectively reasonable costs are factored into those fees, and the fees are no higher than the fees charged to similarly situated competitors in similar situations.

In an effort to avoid litigation regarding fees, the FCC set out fees that it believes are presumptively reasonable:

Application Fees: $500 for a single up-front application that includes up to five small wireless facilities, with an additional $100 for each SWF beyond five, or $1,000 for a new pole to support SWF.

Recurring Fees: $270 per SWF, per year, for all recurring fees (including any possible ROW access fee or fee for attachment to municipally owned structures in the ROW).

In Wisconsin, unlike some other states, state law prohibits a municipality from charging an annual ROW access fee, unless the ROW user is a video service provider (Wis. Stat. § 66.0420(7) specifically allows such a fee). To charge a permit application fee or license fee greater than the ones set out by the FCC, the municipality should undertake a cost study to determine the full costs incurred in reviewing wireless siting applications for completeness and granting permits. The municipality should consider such things as the cost of municipal staff time, outside legal counsel and engineers for tasks such as reviewing applications for completeness, conducting any necessary pre- or post-construction inspections, or administering a public notification process. Such cost studies will be crucial in defending the municipality’s application and permit fees if those fees are challenged by the wireless carrier.

For more information on the FCC’s Order and municipal regulation of the ROW, we refer you to materials Boardman Clark developed for the League of Wisconsin Municipalities, which are available at: http://​www​.lwm​-info​.org/​1​5​3​8​/​T​e​l​e​c​o​m​m​u​n​i​c​a​t​i​o​n​s​-​I​n​c​l​u​d​i​n​g​-​S​m​a​l​l​-Cell.