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