Preparing for 5-G Wireless Facility Applications in the Public Right of Way

The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.

Broadband and New Hampshire Communities

It is old news to New Hampshire municipalities that internet access is critically important for economic development, education, entertainment and emergency management. Some communities are well served by “fixed” internet services, such as from a cable television company, or through a telephone company or an independent provider. Others are still struggling to get adequate fixed high speed internet services or “broadband,” defined for this article at the speed identified by the Federal Communications Commission for “fixed” broadband: 25 megabits per second, download, and 3 megabits per second upload. There is much debate as to whether those speeds are fast enough to qualify as “broadband,” but a discussion of those points is beyond the scope of this article.

Communities usually have wireless internet service, often in the form of cell phone service, or WiFi. All communities are likely seeing increased demand for broadband services, particularly wireless services, for residents and visitors who are not tethered to a fixed internet connection. This can mean ongoing applications for wireless towers, such as lattice towers or monopoles. With increasing demand for wireless broadband capacity, including the roll out of “Fifth Generation,” or “5-G” services, providers of personal wireless communication services are turning to alternatives, including what are called “small cell” installations, which have a range of several hundred feet, rather than several miles for “traditional“ cell towers. They can provide either inbuilding or area service and are particularly useful in heavily populated areas or in areas not effectively served by traditional cell towers.

The goal for all our communities is to have robust, ubiquitous broadband, and the more tools in the toolbox, the better, but applications for small wireless cells can present permitting and zoning challenges. Due to the special protections afforded telecommunications services under federal and state law, applications for small cell facilities need to be handled correctly, or the municipality could end upon the wrong end of a lawsuit! The best defense is to develop and implement a municipal ordinance or detailed protocol to address such applications. A comprehensive telecommunications zoning ordinance is a good place to start, but, for a variety of reasons, it is not sufficient. First, some applications are exempt from zoning under New Hampshire law, such as applications to add an antenna to an existing tower, or to place a new antenna on a building or water tower. Second, applicants for small cell permits (whether they are providers of wireless services, such as Verizon, AT&T, Sprint or T-Mobile, or infrastructure builders such as Crown Castle, Mobilitie or Exeter) often seek to gain access to the public rights of way, as an efficient way to reach customers. Such applications are not covered by most municipalities’ permitting processes for poles and conduits in the public rights of way (“PROW”), creating a problem. Denying those applications out of hand, or shunting them to a different, more burdensome process than the one used for licensing telephone and electrical poles and conduits, could land a municipality in trouble.

Municipal Authority on Management of the Public Rights-of-Way

New Hampshire is not a “home rule” state. Municipalities in New Hampshire may only exercise powers the Legislature has expressly conferred on them. Fortunately for municipalities, the legislature has granted broad authority for cities and towns to license and regulate their PROW. Boards of Selectmen are authorized to regulate the use of the PROW1, and City and Town Councils have the same powers.2

The authority for the Board or Council to regulate and license utility poles and conduits in the PROW is contained in RSA 231:159-189. This statute confers the authority to license or permit utility poles and structures, underground pipes, conduit and cables, “with the respective attachments and appurtenances” in the PROW for telegraph, television, electric power, water, and gas companies.3

Last amended in April of 1981, RSA 231:160-161, does not address the evolving issue of wireless facilities, but this does not preclude municipalities from regulating and requiring licenses for wireless facilities in the PROW, given municipalities’ general power to regulate the use of the PROW, noted above. Additionally, Cities and Town Councils have authority to enact Codes or By Laws. Boards of Selectmen have the authority to enact what are referred to as “selectmen’s ordinances.”4 Assuming your Town meets the requirements under the statute, a selectmen’s ordinance, or even a detailed protocol adopted by the Board, outlining the process for handling applications for use of the PROW by ALL users, traditional utilities and wireless newcomers alike, may be the best path to take for the safe, efficient management of wireless facilities in your PROW.

Federal and State Laws on Personal Wireless Telecommunications Facilities

Both Congress (with the 1996 Telecommunications Act, (“TCA”) and amendments thereto) and the New Hampshire Legislature (with RSA Chapter 12-K, significantly amended in 2013) have passed laws to promote and streamline the deployment of wireless communications. The Federal Communications Commission (“FCC”) has also issued regulations to speed deployment of small cell wireless facilities, including, on September 5, 2018, a Declaratory Ruling and Third Report and Order, in the FCC’s WT Docket No. 17-79 and WC Docket 17-84, to be considered at its next meeting. As this article goes to print, it is expected the FCC will adopt this Declaratory Ruling, Third Report and Order.

Two Places in the TCA Create Special Protections:

1. 47 U.S.C. Sec. 332 (c)(7)(B) creates certain requirements for municipalities and land use boards reviewing applications for personal wireless communications facilities: not to discriminate among the providers of functionally equivalent services, to make decisions within specific time frames, to base denials on substantial evidence in a written record, to issue denials in writing and, if a denial would effectively prohibit the provider from providing services in an area with a significant gap in service, the TCA can require approval of the application.

2. 47 U.S.C. Section 253 prohibits states and municipalities form having any laws or regulations that have the effect of prohibiting any entity from providing telecommunications services, unless the laws or regulations are competitively neutral and necessary to, among other things, protect public safety and welfare.

3. New timelines under FCC’s 9/5/18 proposed rules: 47 C.F.R. Section 1.6001-1.6003:

In addition, New Hampshire law, RSA 12-K, exempts from zoning and planning laws wireless facilities and antennae that can be attached to existing structures and poles without a “substantial modification,” and allows only safety code review by the municipality’s code enforcement officer on a very short timeline: only 45 days to approve or deny an application, or the application is deemed granted. RSA 12-K:10.

Deadline for action on an application for collocation of small wireless facilities (on existing structures)  - 60 days

Deadline for application on an application for collocation of other wireless facilities (on existing structures) -  90 days

Deadline for action on an application for construction of new small wireless facility - 90 days

Deadline for action on an application for construction of other wireless facilities - 150 days

The first section of the TCA preserves local zoning, with some exceptions noted above. The second section allows fair and balanced local regulation of the PROW when permitting wireless facilities, including small cells. Additionally, the FCC’s proposed rules, 47 C.F.R. Section 1.6001-1.6003, give the force of federal regulation (and recourse to a federal court in the event of a violation) to shorter timelines for small cell deployments, defined in ways that are very similar to RSA 12-K’s short timelines. Given the pressures seen in other parts of the country, it makes sense to adopt “competitively neutral and necessary” procedures now, in the form of an ordinance or protocol, before applications for small cell deployments in the PROW become more common in New Hampshire, or attempts are made in the New Hampshire Legislature to strip municipalities of their ability to manage the public rights of way when it comes to small cell applications.

Municipalities may be tempted to bar wireless facilities from the public rights of way, but that approach runs counter to the protections under 47 U.S.C. Section 253 and could result in a lawsuit. Such facilities arguably cannot be categorically barred from the public rights of way, if the municipality allows wired telephone companies, such as Consolidated Communications or First Light, to install poles or conduit, with wires, fibers, etc., there. Also, because of both the technical and legal differences between the facilities covered by Section 253 and those covered by RSA 231, it is not wise just to graft wireless facilities onto an existing protocol for handling pole and conduit license applications under RSA 231.

To avoid problems with small cell applications and applications for antennae, a comprehensive right of way ordinance or a well-developed protocol makes sense. The FCC’s Broadband Deployment Advisory Committee Model Code for Municipalities Working Group has provided several drafts of a Model Code (“Model Code”) to handle wireless applications for access to the PROW. This document, although still in draft, is a good place to start.

Elements of a Telecommunications Right-of-Way Ordinance

A municipality must first determine whether it wishes to develop a comprehensive right of way ordinance that covers all users: cable television (already subject to a franchise agreement) electrical, water and gas utilities, wired “traditional” telephones companies such as Consolidated Communications and Granite State Telephone, as well as competitive telephone companies, and wireless communication service providers. If it does not, it will need to compare carefully its existing protocols and codes for permitting use of the PROW by other telephone companies, to ensure they are not more or less burdensome. Requirements need to be competitively neutral and necessary. 47 U.S.C. 253.

Guided by the Model Code, a robust municipal code or protocol for managing the PROW should include:

• Clear definitions, matching the definitions of RSA 12-K and proposed rules 47 C.F.R. Section 1.6001-1.6003, to the extent possible. (Where the state law is more restrictive on the municipality, we recommend following state law).

• Distinctions between the kind of applications that can be administratively approved, by a code enforcement officer, such as those covered by RSA 12-K:10, and those that may need higher review.

• Requirements for access to the PROW, in terms of safety, “dig once” requirements, etc.

• Required elements of a complete application.

• The process for review and approval at both administrative and higher levels.

• The timeline within which decisions will be made, to meet both RSA 12-K:10 and proposed rules 47 C.F.R. Section 1.6001-1.6003.

Conclusion

Armed with such an approach, municipalities should be able to facilitate deployment of wireless facilities in their communities, which maintain proper control over the uses of the PROW, for the safety and enjoyment of all.

Katherine B. Miller, Esq., and Austin M. Mikolaities, Esq., DTC Lawyers, PLLC, with offices in Exeter, Portsmouth, Concord and Meredith. You may reach either Attorney Miller and Attorney Mikolaities through DTC’s toll-free number at 1.800.566.0506.

Footnotes

1. RSA 47:17 VII

2. RSA 44:2 and 47:5, RSA 49-D:2 and RSA 49-D:3.

3. RSA 231:160-161

4. RSA 41:14-a – 41:14-c.