The FCC small cell order is working best where 25 state governments have passed complementary legislation, according to Robert Millar, associate general counsel at Crown Castle International. The legislation has given states prescriptive requirements, he said, including caps on fees for site permit applications, deadlines, timelines and how much detail to submit in an application.
“Jurisdictions are not accustomed to justifying the amounts they charge as application fees, so this is a new process for them,” Millar said. “We see inconsistent design rules for different utilities. The non-discriminatory standard applies to anyone with similarly situated infrastructure in the right of way. But we are seeing aesthetic guidelines applied to wireless operators’ facilities and to no other utilities in the right of way at the same level.”
Millar spoke during the Connectivity Expo session “Understanding the FCC’s 5G Wireless Infrastructure Orders.”
Referring to the prescriptions in the state legislation, Millar said that when the rules of the road are clear, small cells get deployed. The prescriptions have dissipated arguments about fees and timelines, he said. However, he some attempts to justify higher fees continue.
By way of example, he said Santa Barbara, California, wants to charge a $20,000 fee for a small cell node application. He said Pasadena, California, is asking for a spend-down account of $12,000 per node. He said that Baltimore lowered its annual franchise fee that from between $1,500 and $1,800 to $270, but increased its application fee from several hundred dollars to $4,600.
Besides the excessive application fees, Millar said, some jurisdictions are charging excessive amounts to pay for their use of consultants to review applications on their behalf.
“In a jurisdiction in California, we are deploying 72 nodes, 41 of which are identical strand-mount nodes with identical construction drawings,” Millar said. “The consultant fee to review each node application is $2,350, which goes directly to the consultant, despite the fact that 41 are the same and there are only two other configurations among the rest. Our point is: ‘Give us a consulting fee for three design models, because there are only three distinct designs, but please don’t charge us $2,350 to look at the same application over and over again.”
Jurisdictions with historically high fees — New York, Chicago and San Francisco, for example — have not changed their fees overnight in response to legislation, Millar said, but they are engaged in discussions with industry representatives.
When it comes to aesthetics, Millar said, it appears that some jurisdictions are developing small cell size construction restrictions without first learning about the sizes of available equipment. “Akron, Ohio, adopted a standard that was so small that we are not aware of any small cell that could fit within that form factor,” he said. “If they had engaged the industry, we could have shown them the sizes and forms that typically are deployed talked about the FCC-specified sizes and how those operate. We were able to obtain an exception to the rules from Akron, but the rules remain on the books, and it added 45 days to the negotiation of the timeline.”
Many jurisdictions are asking for separations of 100 feet to 200 feet between small cells, Millar said, but developers of autonomous vehicles indicate they will need separations as small as 50 feet.
Changes in local regulation may be required to cope with advancing technology, such as the shift from using radios low on poles that are connected by coaxial cable with antennas higher up, Millar said. Using new equipment that has radios and antennas together in the same form factor raises the question of whether it is a radio or an antenna for the purpose of applying restrictions, he said.
“The FCC regulations are presumptive, and the state legislation is prescriptive,” Millar said. “The jurisdictions are going to choose the most favourable terms, but as long as rules are in place and we can keep building, we’re in good shape. The FCC has helped with timelines and costs, and we are happy about that.”
Robert Millar, associate general counsel at Crown Castle International. Photo by Don Bishop
Rep. Peter A. DeFazio (D-OR), House Transportation and Infrastructure Committee chairman, inquired about the federal government’s research into the potential health effects of RF radiation and the FCC’s guidelines for safe human RF exposure levels, in light of 5G rollout, in a letter last week to FCC Chairman Ajit Pai and the Food and Drug Administration’s acting commissioner, Norman Sharpless.
“As you know, the impending rollout of 5G technology will require the installation of hundreds of thousands of small cell sites in neighborhoods and communities around the country and these installations will emit higher-frequency radio waves than previous generations of cellular technology,” DeFazio wrote. “This means Americans will be exposed to more non-ionizing RF radiation than ever before.”
The FCC’s current RF-safety guidelines were set in 1996, DeFazio noted, and in 2012 the Government Accountability Office recommended that it should “formally reassess and, if appropriate, change its current RF energy exposure limits.” The commission has taken no action in this area.
Meanwhile, DeFazio notes the growing anxiety about RF among the public in general and in his district in particular. “States and municipalities across the country are hearing from citizens who are concerned about this technology being installed in their communities,” he wrote.
Alex Gellman, CEO and co-founder of Vertical Bridge, told AGL eDigest that there is no science-backed evidence behind the link between cell towers and health issues. The objections voiced at zoning meetings are based on emotion and misleading information downloaded from the internet, he said.
“As an industry, we should use science to counter that emotion,” Gellman said. “The facts are on our side, but that doesn’t work unless we use them. We need to use data to make our case about the safety of cell towers. The exposure from a cell tower is measured in the power output of lightbulbs. With the rising tide of conversation on this subject, we should pull out the facts.”
Allan Tantillo, vice president of new technologies at Vertical Bridge, said the deployment of large numbers of small cells has stirred up emotions surrounding the health and safety of cell towers. “We are rolling out a new technology where people are hearing about hundreds of thousands of new cell sites,” he said. “People have a hard time conceptualizing and understanding the deployment of 100,000 small cells that are 1,000 feet from them. They just hear numbers and think ‘I was kind of worried about cell towers but now they are really going flood us with even more radio waves. There’s got to be a problem.’”
The science and physics involved haven’t changed, according to Tantillo. “The small cell sites produce lower power output that previous cell tower buildouts,” he said. “The power output of a small cell on a light pole is relatively the same as what you get from many devices that you have in your home already.”
Tantillo said the wireless infrastructure industry and cellular carriers need to join together to address the health concerns. He said that when he was with T-Mobile, he was the driver behind the development of a website, www.howmobileworks.com, which educated municipalities on a number of issues relative to cell tower development. It offers conclusions based on facts about health concerns from a number of sources. Here are a few:
Gellman said individual companies should not have to go it alone in the educational process. Both the cellular companies and the infrastructure companies should align on a set of information and share that information. “The science is on our side; we just need to be good at educating,” he said.
Tantillo stressed that the industry needs to be proactive with its message and take the right tone that is conscious of people’s emotions. “We need to be prepared to provide the right set of facts to those that are making the decisions to balance out the emotional appeals,” he said. “The law doesn’t allow city officials to take health and safety into account in tower zoning hearings, but you can’t legislate emotion.”
DeFazio, however, is looking for more than just general references to scientific literature, such as the ones above. He is asking the FCC for the specific health-related studies, what gaps remain in our knowledge of the possible health effects of 5G, and the steps it has taken to educate the public about the RF radiation and safety relative to 5G technology. He seems to believe that 5G technology somehow changes the health effects of RF radiation.
“It is clear that the federal government has not been transparent enough about the current status of 5G RF radiation research and its guidelines on RF exposure limits,” he wrote. “The FCC’s and FDA’s responses to congressional inquiries on this issue have been less than satisfactory, merely reiterating general statements that 5G technology is safe without citing specific research or studies.”
Far above any band used for radio communications, alpha, beta, neutron and gamma rays and x-rays are known as ionizing radiation, which means they can damage living tissue, causing radiation burns and cancer. It is possible that the public confuses this type of radiation with radio waves from the AM band up to the millimeter-wave band, which are non-ionizing. They can only hurt you by heating up the tissue of your body. It should be noted that the FCC’s regulations set the limits to public RF exposure at 50 times below any level that is deemed to be harmful.
Taxes were not the only thing due April 15. The FCC’s Small Cell Streamlining Order, which ruled that overly stringent aesthetic requirements for small cells could be judged an unlawful prohibition of services, mandated compliant aesthetic ordinances be developed by local governments by mid-April.
Speakers and attendees at the Wireless West Conference last week in Phoenix said the aesthetic requirements produced by the cities have spanned the gamut from simple model ordinances to highly complex regulations meant to prohibit small cells.
Aesthetic codes have to reasonable, cannot be more burdensome than requirements of other infrastructure and have to be published in advance, according to the FCC. Aesthetics requirements must also be technically feasible and directed at mitigating public harm or deployments that are out-of-character with the cityscape.
The aesthetic code deadline came not long after the California State Supreme Court upheld an ordinance that established various standards of aesthetic compatibility for wireless equipment by the City and County of San Francisco in 2011.
“The California State Supreme Court ruling is not inconsistent with the FCC order,” said Bob Jystad, government relations manager, Crown Castle International, told eDigest before he moderated the panel, FCC & Me: Effects of the New FCC Order, on the second day of the show. “The FCC order goes into more detail, which is critical. What does it mean for the cities to act reasonably in terms of aesthetic review? The FCC order attempted to answer that.
Most of the jurisdictions have adopted reasonable design guidelines, working with the wireless industry, according to Jystad. “We have been pretty happy with what we have seen,” he said. “If you can identify a design that will go with our technology, we will go with it. We don’t want to be delayed or overcharged.”
Scott Longhurst, government relations manager, Crown Castle International, said the FCC order provides needed certainty for carriers and municipalities, creating a process for rapid small cell deployment. He is already seeing, at least for the short term, a thawing of the municipal/carrier relationship.
“If a carrier submits a design that meets those standards, they will get a permit. And, vice versa, for the jurisdictions. The carriers are going to build the types of facilities the cities want to see,” Longhurst said. “We see a lot of mutual agreements between the carriers and the municipalities. We are seeing the applicants be really flexible, extending time for the jurisdictions to figure out their processes.”
But, municipalities should not take advantage of that flexibility, according to Longhurst, or the wireless industry will come back enforce the FCC’s shot clock. “I am seeing a lot of patience, which preserves relationships. We are in a hand-holding stage, but if the order is upheld, we will need to see a more solid-fisted approach,” he said.
Jystad, on the other hand, said he likes how shot clocks can get a conversation started about what processes are really needed, such as whether a public hearing is needed for every single small cell using an approved design.
Mediator May Minimize Municipal/Carrier Conflict
In light of the conflict between municipalities and carriers, WSB engineering consultants saw a need in the marketplace to serve as a mediator between the parties.
Carly Kehoe, WSB senior planner, said a lot of cities merely want the carriers to provide model ordinances, while others are more contentious and write the most critical ordinance that they can. They try to get small cells denied through ordinances dense with details.
“There is disconnect. The cities are not listening,” Kehoe said. “It is a wide array that we are seeing in [aesthetic ordinances], Some of them are simple and some are complex and make compliance difficult. And a lot of cities don’t seem to care about meeting the aesthetic ordinance deadline.”
WSB uses its credibility gained from providing engineering services to jurisdictions and its contacts on the carrier side to act as a mediator.
“The industry is ready to deploy and it gets jammed. There is a clog in the pipeline at the local level,” Kehoe said. “We work with the local jurisdiction to determine the hold up and what the [September] FCC order means. Local jurisdictions don’t understand and they fear that the federal government is forcing them to do something with their land and they have lost their rights.”
One city that definitely is not in a listening mood is Austin, Texas, one of the cities that is suing the FCC over the Small Cell Streamlining order. Ironically, as the home of South By Southwest, the city brings in world-renown experts that speak on the latest and greatest technology annually, yet it does not want to work with any of the carriers to deploy small cells.
“They hate small cells, which is funny because this city wants to be on the cutting edge of technology,” Kehoe said.
Professor Theodore (Ted) Rappaport, the founder of NYU WIRELESS at the NYU Tandon School of Engineering, cast his support for a proposed FCC ham radio rule, predicting it would open exciting opportunities for growth in amateur radio and encourage youngsters to listen and thereby learn about electronics and communications, in comments filed with the FCC and members of Congress.
“The FCC has recently recognized a major problem that has existed for decades in ham radio, and in the past few days took steps to institute vital new rules that will grow the hobby by reiterating the fundamental requirement that all radio communications are open, so that the public may listen in,” he wrote.
Rappaport was referring to rulemaking proposal RM-11831 by Ron Kolarik, a radio amateur from Nebraska who singled out two key problems that have plagued the hobby for two decades, through the emergence of data communications and the Internet. In the rulemaking petition, RM-11831, Kolarik noted that many stations are improperly using effectively encrypted transmissions, essentially turning the public airwaves of ham radio into a private point-to-point email system, in violation of many FCC rules. Rappaport had earlier complained to the FCC and Congress about the danger of such obscured messages for national security.
The war between the wireless industry and local jurisdictions took another turn today as the California Supreme Court upheld a lower courts’ rulings in favor of San Francisco’s wireless ordinance in a unanimous decision.
The original lawsuit, T-Mobile West, Crown Castle and ExteNet Systems (California) v. City and County of San Francisco, was filed after the San Francisco Board of Supervisors adopted an ordinance in 2011 that required a wireless facility site permit from the City’s Department of Public Works.
The wireless industry lost in the San Francisco County Superior Court and then again in the Court of Appeal of the State of California, First Appellate District, Div. 5.
In 2011, the City and County of San Francisco passed an ordinance requiring that a site-specific permit be obtained before seeking to construct, install or maintain telecommunications equipment in the public right-of- way. At issue was an ordinance that established various standards of aesthetic compatibility for wireless equipment and whether it was preempted by a Public Utilities Code. Another question was whether ordinance singled out wireless equipment and was therefore discriminatory.
California is one of the states without a law streamlining small cell deployment. The court case may have ramifications at the statehouse in California as legislators attempt to pass a law streamlining small cell deployment.
“This will definitely have an impact the state legislation on small cell deployment expected to be introduced this term,” said Jonathan Kramer, principal, Telecom Law Firm, and expert witness for the cities. “It will be difficult for the legislature to walk back this decision, which is based on decades of historical precedent for the right of way use by telecoms in California.”