January 19, 2017
The FCC delved into streamlining small cell deployments and the fees that are applied in the public rights of way (WT Docket No. 16-421), late last month. But there has already been action in this area in the state legislatures and also the federal courts that have loosened municipalities’ grip on the public rights of way.
Last month, Ohio Gov. John Kasich signed Senate Bill No. 331, which limits local authority over wireless deployment in public rights of way, according to T. Scott Thompson, partner, Davis Wright Tremaine. That bill is a harbinger of similar state measures aiding the deployment of DAS and small cells, he added.
“The bill significantly limits local authority, eliminating the problems associated with discretionary local zoning review,” he wrote in his blog on Lexocology.com. “We are likely to see legislation similar to the Ohio measure introduced in other states in 2017.”
The Illinois General Assembly is considering a bill (SB2785) that would classify small wireless facilities as a “permitted use,” similar to permits that are needed for building, electrical and other public use.
The legislation, submitted by Sen. Terry Link (D), would prohibit municipalities from requiring wireless applications to provide information that is not required of other applicants. Additionally, application fees would be exempted or limited for collocating small wireless facilities and small facility networks.
Federal Court Ruling May be Precedent
A recent federal court decision may serve as a precedent for limiting local control of DAS. On Aug. 8, 2016, the U.S. District Court for the Eastern District of Virginia held that the City of Newport News, Virginia, violated state law and its franchise agreement when it imposed zoning laws on Crown Castle International’s DAS nodes in the public right of way.
“The decision is an important one for telecommunications providers in the Commonwealth of Virginia, most notably because it recognizes that Section 56-462(C) of the Virginia Code prohibits local authorities from imposing on certificated telecommunications providers requirements, such as zoning or land use regulations, that it does not impose on all other right of way users,” Thompson wrote on the firm’s website.
In this case, Crown Castle had been granted standard right of way permits by the city to install DAS facilities at four locations, but the city reversed its position in response to a citizen complaint and asserted that the node installations either required zoning approval or were altogether prohibited where they were located.