In New Scotland: A short ‘shot clock’ for approving new wireless technology

The Enterprise — Michael Koff
With the implementation of 5G technology over the next decade, the number of small wireless cell facilities, like this pole on Berkshire Boulevard in Albany, is set to explode, by as much as 800,000. For comparison, as of 2016, according to an industry estimate, there were about 308,000 cell sites in the country.

NEW SCOTLAND — Although rural New Scotland may not see for another decade the small cell towers that already are popping up in cities to usher in fifth-generation wireless systems, the town is going to update its 15-year-old telecommunications law to beat an April 19 deadline set by the Federal Communications Commission.

The town board at its monthly meeting, in response to an order from the FCC, scheduled a special meeting for Feb. 27, to further discuss changes to the 2004 law and to set a public hearing for March 13, to update New Scotland's telecommunications law.

Fifth-generation wireless systems, known as 5G technology — and the basis of the September 2018 order from the Federal Communications Commission — are touted by the telecommunications industry as being as much as 20 times faster than the current 4G network.

But to achieve this dramatic increase in network speed, companies will have to install hundreds-of-thousands of new cell sites; by 2026, according to the FCC order, companies will install an estimated 800,000 small cell sites. As of 2016, according to the wireless industry’s lobbyist, there were about 308,000 cell sites in operation.

The rollout of 5G has begun already in urban areas, where about 80 percent of the United States population lives, according to the Census Bureau. In New Scotland, however, said Supervisor Douglas LaGrange, “Practically speaking, we might not see these 5G towers for another 10 years.”

FCC order

The FCC order, issued in September 2018, and published in October 2018, sets new timelines for municipalities to approve the deployment of small cell wireless facilities and limits how much they can charge wireless companies for placing the new technology in those public rights-of-way.

The FCC order:

— Creates two new categories of “shot clocks,” the amount of time local governments will have to review applications for the installation of small cell wireless facilities. If the applicant were proposing placing a small cell tower on an existing structure, the local government would have 60 days to complete its review of the application; if the proposal were for a new structure, the local government would have 90 days.

The 2004 New Scotland telecommunications law says that the planning board will review applications “in a timely fashion, and shall act within a reasonable period” based on complexity and circumstances, “with due regard for the public’s interest and need to be involved.” But the law doesn’t give a specific amount of time for a “timely fashion.”

However, the planning board has 62 days following a public hearing to make a decision on an application;

— Allows an applicant to ask the court to step in and speed up the approval process if the local government misses a shot-clock deadline;

— Sets a “safe harbor” for application and annual recurring fees. An initial application fee of $500, which covers up to five small cell towers, with an additional $100 fee for each small cell wireless facility beyond five; and an annual rights-of-way fee of $270. Local governments can charge more in fees but they have to show how and why the increased fees are needed; and

— Limits the aesthetic requirements that a local government can impose on an applicant.

“Tying our hands”

At the Feb. 13 town meeting, Councilman William Hennessy said of the order, “I think it’s just ridiculous that the FCC has gone and taken the planning and zoning out of the hands of these local government — it’s tying our hands. It’s just a terrible thing that they’re doing to us. And this is going to come back to roost, whether it will be in 10 years or 20 years, I don’t know.”

Hennessy’s sentiment has been echoed by organizations that advocate on behalf of municipalities. In their opinion, wireless companies, through the FCC, are companies preempting local zoning laws.

The Brookings Institute, in one report, says the FCC crippled its own oversight ability of the communications industry, “while simultaneously asserting new authority to regulate prices and micromanage the activities of local governments.”

A tight timeframe

At the Feb. 13 meeting, Crystal Peck, attorney for New Scotland’s planning and zoning boards, explained to the town board that municipalities across the country had been dealing with applications for small cell wireless facilities the same as they would with a macrocell tower.  

Macrocell towers are typically between 100 and 200 feet in height, and have a coverage area that can be measured in miles. Small cell stand-alone poles can be as tall as 30 feet (the FCC order applies to structures 50 feet or less in height); however, much of the small cell technology is expected to be mounted on existing utility poles, and to have a coverage area of a few hundred feet.

There are currently seven cell sites in New Scotland, all on private land. So the town doesn’t receive any recurring monthly fees but did receive one-time construction, modification, and co-location fees.

“Cell companies,” Peck said, considered the time it took to gain approval from municipalities for the deployment of their small cell technology, “a very long and prohibitive process.”

So, in response, the FCC instituted the 60- and 90-day approval shot clocks.

Another aspect of the order, Peck said, “Is that essentially, the FCC said, ‘You cannot prohibit [small cell facilities] in public rights-of-ways, but what you can do is you can issue some aesthetic guidelines.’”

The FCC, however, is only allowing municipalities 180 days from when the order was published — Oct. 15, 2018 — to come up with those guidelines; which means New Scotland has to update its telecommunications law, give the public proper notice, hold a public hearing, and adopt the updated law before April 19.

The proposed guidelines

Peck said she looked at laws passed by other municipalities to see how they dealt with aesthetics and came up with a proposal for New Scotland.

Any application for a small cell wireless facility would still have to be approved by the New Scotland Planning Board, Peck said.

And, in addition to the 25 application requirements laid out in the proposed law, there are 12 general requirements governing construction, and another 24 standards (8 for attached wireless facilities and 16 for standalones) for aesthetics and concealment that have to be met.

Some of the design standards for small cell wireless facilities attached to new or existing non-wooden poles say that:

— Antennas and associated equipment are to be fully concealed within the
pole, unless it is technically infeasible or incompatible with the pole design, at which point the antennas and equipment must be camouflaged “to appear as an integral part of the pole or flush mounted to the pole.”;

— The antenna is not allowed to extend more than 12 inches from the face of the pole; and

— All wires are to be routed internally in the pole. “Full concealment of all conduit, cables, wires, and fiber is required within mounting brackets, shrouds, canisters, or sleeves if attaching to exterior antennas or equipment.”

For small cell wireless facilities attached to wooden poles, some design standards include:

— All additional equipment, boxes, and conduit, must be the minimum size necessary, and must be colored or painted to match the surface of the wooden pole.

— The wireless equipment in total may not exceed 28 cubic feet; and

— The visual effect that the small wireless facility has “on all other aspects of the appearance of the wooden pole shall be minimized to the greatest extent possible.”

In addition, the proposed law says that small cell wireless facilities are prohibited from being attached to existing buildings. At the Feb. 13 meeting, the board agreed to look at amending this proposal. The proposed law also says that small cell wireless facilities are prohibited from being mounted on cables strung between existing utility poles.

In the city of Albany and town of Colonie, Peck said, the shot clock provision of the FCC order is putting a lot of pressure on the building and permitting departments of those municipalities.

Across the country

Across the country, Peck said, prior to the FCC order, about 20 states had already adopted some kind of small cell wireless legislation (part of a coordinated effort by the communications industry to undermine local control, according to the Utilities Technology Council, an industry lobbyist).

The four largest wireless carriers in the United States — Verizon, AT&T, T-Mobile, and Sprint — in 2018, combined spent about $41.5 million in lobbying, according to the Center for Responsive Politics. At nearly $95 million, the United States Chamber of Commerce was the single largest spender on lobbying in 2018.

By industry, telecom services (for which the Center for Responsive Politics does not include the lobbying expenditures of Verizon, AT&T, T-Mobile, and Sprint) spent about $93 million on lobbying in 2018, placing it 11th; the pharmaceutical industry was first, spending $280 million.

“I can tell you that this FCC order has gone through a lot of scrutiny throughout the country,” Peck said.

In two separate lawsuits, a total of about two dozen cities and counties, are suing the FCC over its September 2018 order.

The suit filed by the city of Seattle says that the FCC order limits or eliminates a municipality’s traditional authority over zoning and “rights-of-way management.” In addition, the FCC, the lawsuit says, is limiting or eliminating the rights that state and local governments have to determine “whether and on what terms” communications companies are granted access to occupy and use government-owned land.

The Seattle lawsuit further states that the FCC order is “an unlawful preemption of local and state government authority.”

Finances

By 2025, according to a report from the GSM Association, an industry trade group, about half of cell phones in the United States will be connected to the 5G network. Industry-funded research says that telecom providers could invest up $275 billion to install the infrastructure needed for 5G and that investment could create as many as three million new jobs and add $500 million to the nation’s economy.

And, with the 5G market expected to generate annual revenues of $250 billion by 2025, according to industry-funded research, many are crying foul /the-fcc-wants-our-public-property-were-saying-no-a029cc544c28">over the FCC order to cap (at the request of wireless carriers) the fees municipalities charge companies to process applications and manage rights-of-way.

According to Next Century Cities, an organization of mayors and local government officials that advocate for broadband access, nothing in the FCC order prevents a municipality from charging higher fees. “However,” the organization states, “under the FCC’s framework, if a carrier files a lawsuit challenging the fees imposed by a local government, the burden would be on the local government to demonstrate that the amount is a reasonable approximation of its costs and that its costs are reasonable.”

Prior to the FCC order, telecommunications companies entered willingly into contracts that paid municipalities double; triple; and, in one case, 10 times what the FCC now allows to be charged in fees (a study from the FCC found that wireless carriers were paying about $500 per site annually). In September 2018, Bloomberg News reported that New York City charges a fee of as much at $5,100 per year for small cell facilities south of 96th Street in Manhattan.

In 2016, Boston signed a 10-year agreement with Verizon that says that company will pay the city $2,500 per city pole or city-owned infrastructure on which the company places a wireless facility.

The city of San José in June 2018 signed three separate agreements for the installation of 4,000 small cell wireless facilities on city-owned light poles. On average, the city will receive about $750 per pole per year. An earlier deal with AT&T for about 200 small cell facilities, will generate about $5 million for San José over the next 15 years.

The FCC, according to Next Century Cities, does not say whether an existing agreement is supplanted by its order. “While existing agreements were not explicitly grandfathered, there is no obvious means of voiding them,” a Next Century Cities summary of the FCC order says. “The result is that local governments should be able to keep existing agreements.”

 

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