Thursday, April 19th, 2018

Governor Signs Bill Regulating Small Cell Devices

After long negotiations and discussions in Springfield, Gov. Rauner last week signed Public Act 100-0585 into law as the Small Wireless Facilities Deployment Act (the “Act”). This new law is designed to regulate the deployment of small cell devices in public rights of way. The bill pre-empts both home rule and non-home rule local government control of their rights of way. The idea behind the legislation (and the idea that appears to have won the day in Springfield) is that this pre-emptive law will help facilitate the rapid deployment of new wireless technology across the state and will eliminate local cost and regulatory barriers to deployment. The counter-vailing argument, that public taxpayers and their rights of way will be subsidizing private wireless providers, seems to have lost out to the argument that local governments were slowing down the deployment of this technology. The new Act creates a uniform procedure for small cell providers to gain access to public rights of way and to public facilities in those rights of way in order to deploy their small cell technology.

In simple terms, small cell technology is one technology used by wireless providers to provide greater access to high speed wireless data for consumers. Instead of relying solely on a handful of giant cell towers, the technology uses multiple smaller antennas that must be located close to users. These can be deployed or “collocated” on existing facilities such as existing utility poles, street lights, buildings or water towers, but they require proximity to users to be effective. They may also be deployed on new facilities when existing facilities are not available in the necessary range.

While the Act purports to leave some local control and still gives local authority to require a permit to locate a small cell device in a public right of way, in many ways it eliminates discretion at the local level. Small cell applicants will not be treated like local governments treat other utilities or franchisees who use their rights of way. Instead the Act accords small cell applicants certain rights, and limits the rights and ability of local authorities to recover costs and retain control for use of their rights of way. For instance, the bill declares that, from a zoning perspective, small cell devices will be considered a permitted use. The bill also establishes the procedure that must be followed when applications are received for small cell devices in public rights of way, the fee that may be charged and limits on the local government’s authority to deny a request.

Effective June 1, 2018, when a collocation or new pole request is made by a wireless provider to a local authority, the local authority must respond in accord with the Act. The regulations contained in the Act limit the ability of local governments to control the poles on which new antennas will be placed, the height of the new facilities (though there are some caps contained in the Act) and the spacing between poles. The Act sets precise rules and time limits for processing applications and it sets caps on the amount that may be charged for processing permits. The Act also limits the ability of local governments to control or deny access to their own poles in their rights of way and governs the price that may be set for the use of those poles. Local governments will still have some control over issues of public safety and some design standards, but the Act will make it more difficult for municipalities that have been working to have all utilities undergrounded.

Many localities had been approached in the last year with requests for monopoles in excess of 100 feet, and the good news in this bill is that, in general, local governments will not be required to accept new poles in excess of 45 feet. Similarly, many localities were concerned they would be forced to accept these devices on their water towers at fixed rates, but water towers are not included under this Act. For those bodies that have already entered into Agreements regarding placement of small cell devices on their poles, those Agreements may remain in effect for those applications submitted before the Act goes into effect and for a two-year period thereafter, it appears that the applicant will get to elect whether to proceed under the agreement or under the new terms offered under the Act.

Presently the Act is only in effect through June 1, 2021. Shortly after the effective date, local governments must ensure that their terms for use of their facilities, their permits, their application rates, their design standards and the review process for these applications – including their public safety requirements and limitations — are all in place if they wish to be able to enforce them under the Act.


Ruth Alderman Schlossberg

Author: Ruth A. Schlossberg