FCC Issues Regulations Covering Small Cell Facilities on Public Rights of Way

October 2, 2018

On September 26 of this year, the Federal Communications Commission (the “FCC”) approved new regulations governing the installation of wireless and small cell facilities in public rights of way. According to the FCC, this is part of its ongoing effort to remove regulatory barriers inhibiting the deployment of 5G and other advanced wireless infrastructure. From a local government perspective, however, many have argued that these efforts essentially facilitate the rollout of new, private wireless provider infrastructure using public resources and in a manner that is, essentially, subsidized by public taxpayers.

As municipal users already know, the Illinois Small Wireless Facilities Deployment Act (Public Act 100-0585)(the “Act”) became effective June 1st of this year. That Act already preempted most local regulation and control of requests to install small cell wireless devices in municipal rights-of-way and in exclusively commercial and industrial districts. In response, municipalities around the state implemented new regulations consistent with that Act based, most often, on the model ordinance created by the Illinois Municipal League (the “IML”). That model ordinance included maximum permitted fees, time deadlines, and procedures for responding to permit requests to install small cell devices in public rights of way.

Analysts with the IML and other organizations are studying the new FCC Order to determine whether, or to what extent, it may be preemptive of the already restrictive Illinois Act, and whether, or to what extent, any of the recently passed Small Cell Ordinances will require modification to comply with the Federal Order. Initial review suggests that apart from shorter processing shot-clock times for small cell applicants, the FCC Order may not be dramatically more restrictive than the Illinois Act already is. The new FCC order will be effective 90 days after its publication date in the Federal Register (which, as of the date of this writing, had not yet happened). We anticipate that the IML and others will offer recommendations well before that effective date, so municipalities should have time to make changes, if any are required.

In the meantime, like the Illinois law, the FCC Order still leaves municipalities with some control over appearance standards for these new facilities. As small cell devices have been rolled out around the nation, there are more examples of devices that may be more or less appropriate for your municipality. Now is a good time to review your standards and to look at samples of deployments elsewhere to determine if you have reasonable and non-discriminatory appearance standards in place sufficient to protect your community’s appearance and the visual comfort of your residents.