28 Mar Explanation of Small Cell Antenna Regulations written by Andrew Johnston Salt Lake City Council
3/3/2021 I said I would post the information regarding the legal issues governing small cell wireless poles in the city. For those who read this all the way through I know that you are really bored, have a unique interest in regulations or have a 5G pole outside your front door. No matter the reason- you have my respect:
“This summarizes the City’s rights in connection with the review and approval of small cell facilities proposed in the public way.
In summary, the City does not have the ability to prohibit small cell facilities, even in residential, historic, or special design districts. However, the City has the right to adopt design standards. The City has existing Small Cell Design Standards (the “Design Standards”) related to the specifications and siting of small cell facilities, and which small cell providers have to adhere to prior to obtaining a permit and installing a small cell facility in the City’s ROW.
Federal and State Regulation
Small cell facilities are federally regulated by the Federal Communications Commission (“FCC”) under the 1996 Telecommunications Act and various FCC orders. In particular, the Third Report and Order and Declaratory Ruling adopted September 26, 2018 (the “2018 Order”) removes various state and local barriers to speed up deployment of small cell facilities in the public right-of-way (the “ROW”). Many of the rules set out by the FCC are duplicated in Utah State Code Chapter 54-21.
Federal or state law regulates the following aspects of a small cell placement in the ROW.
- Small cell facilities cannot be prohibited, and regulations can’t effectively prohibit small cell facilities in any location in the ROW, including residential, historic, or special design districts. (47 USC § 253). This is interpreted in the 2018 Order to mean that the City can’t materially inhibit the installation of small cell facilities. o Utah law says that small cell facilities on a new pole are not allowed on residential streets narrower than 60 feet wide or in historic districts without the approval of the City. However, Federal law does not allow wireless facilities to be prohibited anywhere in the public way.· Sets the maximum size of the small cell facility. Utah law allows a larger small cell facility than federal law. (§ 54-21-101) · Maximum height of the pole: 50 feet or not more than 10% taller than the structure or nearby structures. Utah law also allows the antenna to extend up to 10 feet above the top of a utility pole that existed on or before 9/1/2018. (§ 54-21-205) · Cannot regulate minimum spacing of small cell facilities. (§ 54-21-302) · Regulates the City’s timing to review applications (the “shot clock”): 60 days for placement on existing structures and 90 days from placement on a new structure (federal law provides a shorter period than Utah law). Under Utah law, if the application is not denied it is deemed approved at the expiration of the shot clock. (§ 54-21-302) · Sets maximum fees for applications, use of public way, and use of a pole. Utah law limits the fees to an amount lower than Federal law. (§ 54-21 Part 5) · The FCC regulates Radio Frequency (RF) standards. (47 USC § 332) · Cannot enact a moratorium. (§ 54-21-302) · Decorative poles may be replaced with a pole that reasonably conforms to the replaced pole’s aesthetics to accommodate the location of a small cell facility. (§ 54-21-206) · If an area is designated solely for underground or buried cable or utility facilities, a small cell provider must comply, provided that the requirement is reasonable and nondiscriminatory, the City can’t prohibit replacement of an existing pole, and a small cell facility provider must be able
to seek a waiver. (§ 54-21-207) A requirement to underground all wireless facilities or otherwise materially inhibit wireless service would be an effective prohibition in violation of Federal law. (2018 Order) · Cannot require placement on a specific utility pole or category of poles. (§ 54-21-302) · Cannot require multiple antenna systems to be placed on a single pole. (§ 54-21-302) · Allows submittal of applications in batches of up to 25 applications at a time for similar installations, with a maximum of 75 applications every 30 days.
Under Utah law, small wireless facilities are a permitted use in the ROW and the City can regulate installing, operating, replacing poles and equipment, subject only to administrative review. (47 USC § 332 and § 54-21-204) Approval of a permit application for a small cell facility may only be denied on a non-discriminatory basis to all users of the ROW based on exercise of police powers. (§ 54-21-103)
The City may require a permit for the location of small cell facilities, with some exceptions and limitations on what the City may require. (§ 54-21-302) A permit application may be denied if location of the small cell facility: (a) materially interferes with the safe operation of traffic control equipment; (b) materially interferes with a sight line or a clear zone for transportation or pedestrians; (c) materially interferes with compliance with the Americans with Disabilities Act of 1990, 42 U.S.C. Sec. 12101 et seq., or a similar federal or state standard regarding pedestrian access or movement; (d) fails to comply with applicable laws or legal obligations; (e) creates a public health or safety hazard; or (f) obstructs or hinders the usual travel or public safety of the right-of-way.
Federal and state law allows the City to adopt written aesthetic standards, so long as they are (1) reasonable, (2) nondiscriminatory – no more burdensome than those applied to other [similar] types of infrastructure, and (3) are objective and published in advance. (§ 54-21-103) The City’s design standards govern the following aesthetic standards:
- Appearance of pole and facilities (color, shape of pole or cabinet)· Width of antenna and spacing from pole · Camouflage of antennas, so long as technologically feasible · Location of cabinets, meters · Light on facilities · Preference on type and location of installation
The City can also implement standards for health, safety, and welfare: · Sightlines · Placement in relation to other utilities · Confirmation of compliance with RF standards
State law allows the City to require reasonable and nondiscriminatory special design or concealment rules in historic and design districts. The Administration adopted the Design Standards (hyperlink
below) in connection with the adoption of City Code Chapter 14.56 (Wireless Facilities in the Public Way) and following discussions with Council. As discussed below, there are opportunities to add additional regulations to these design standards to mitigate some residents’ concerns.
The Communications and Engagement Team in Communities and Neighborhoods prepared various materials to help educate resident and answer questions. These have been updated to address new questions as they arise. The materials were created with Real Estate Services in connection with the Department of Public Utilities, the Engineering Division, and the City Attorney’s Office, and are located on Engineering’s website at https://www.slc.gov/…/small-cell-infrastructure-design…/
The materials include a list of Frequently Asked Questions, the City’s Small Cell Design Standards, contact information for engineering to ask questions and get more information, and contact information for state representatives.
Residents are directed to this information when questions arise. Engineering has also received comments about permits at specific locations, and the concerns generally fall into the following categories:
- Historic Property/District. Federal law does not allow small cell facilities to be prohibited in any location. Utah law requires a provider to obtain advance approval before locating or installing in historic or design districts, and the City may require concealment if technologically feasible. (§ 54-21-208)·The City’s Design Standards require additional aesthetic requirements to conform with the surrounding aesthetics.
- Residential Streets. Federal law does not allow small cell facilities to be prohibited in any location. Utah law provides a provider must first obtain approval from the City to install a small wireless facility on a new pole on a street less than 60 feet wide and adjacent to a residential property. (§ 54-21-103)·Because the City cannot prohibit or effectively prohibit the location of small cell facilities, our Design Standards require some additional conditions in order to receive approval on a residential street. Installations are permitted only at the corner or on property boundaries. Please note that most streets are wider than 60 feet.
- Notice. Some residents have requested more notice of installations near their property. Please note that the City cannot consider resident’s concerns in permitting a small cell facility.·Engineering has a policy that the permit holder provides notice of construction to adjacent property owners 48-72 hours before construction starts. · City Council is considering an ordinance to codify this process.
- Radio Frequency (RF) Safety. Some residents express concern about safety of proximity to antennas. The FCC has authority to adopt and enforce RF exposure limits. (Section 704(b) of the Telecommunications Act of 1996). Federal law prohibits the City from regulating the location of
small wireless facilities based on the environmental effects of radio frequency emissions to the extent that such facilities comply with the FCC’s regulations. (47 USC § 332) · The City does not have any ability to regulate or make decisions based on RF standards. · The City requires an applicant to submit evidence that the small cell facility complies with the FCC’s RF standards.”
Small Cell Infrastructure Design Standards | Engineering
Small Cell Infrastructure Design Standards