The ruling limits the local control of processing wireless permits on city structures and structures in a city’s right of way by creating unreasonable time frames to process applications and by limiting a city’s ability to recoup the costs incurred in processing an application.
Cities need to take action
Because some sort of appeal is inevitable, whether this Declaratory Ruling will stand remains to be seen. Nevertheless, cities should take some affirmative steps, including adopting and publishing requirements to allow cities to regulate aesthetics.
Here’s what you need to know:
Effective date. The Declaratory Ruling will go into effect 90 days after publication in the Federal Register, which should happen sometime in October.
Caps on application fees. The FCC determined small cell wireless application fees in excess of $500 for up to five sites, and $100 per site for each site thereafter are presumed unreasonable. Fees above that amount could be challenged, forcing cities to justify the costs. At this time, it is unclear how the Declaratory Ruling will affect the Minnesota law allowing cities to charge the actual costs related to a permit.
Limits on recurring fees (rent). The FCC will only allow a “reasonable approximation” of a city’s “objectively reasonable costs” for maintaining the rights of way or a structure within the right of way. It is unclear what this means right now. What is presumptively reasonable is a recurring fee of $270 per site, per year. Cities are prohibited from recovering any cost not directly related to rights-of-way maintenance, charging fees above cost recovery, or recovering “unreasonable” costs, such as excessive contractor or consultant fees. The Declaratory Ruling conflicts with current Minnesota law that allows ongoing fees to an annual rent of $150, $25 per year maintenance charge, and an additional monthly fee for electricity used. It is unclear at this time how the federal and state regulations on recurring fees will be interpreted to work together.
New time frames to process applications. The Declaratory Ruling creates a federal time frame (“shot clock”) for small cell wireless facility review. Cities have 60 or 90 days to process small cell wireless applications, depending on whether they are being mounted on existing or new structures. The new federal shot clocks apply equally regardless of how many applications are received at one time. Minnesota applies a 90-day shot clock for all small cell wireless applications. A failure to meet the state or federal shot clocks results in different remedies. It is not yet known, therefore, how the different clocks will be practically enforced.
City action needed: Limits of aesthetic requirements. The Declaratory Ruling limits aesthetic review and requirements (including undergrounding and historic/environmental requirements) to what is reasonable, comparable to requirements for other right-of-way users, and published in advance. Cities have 180 days from the publication in the Federal Register to enact and publish aesthetic requirements. Cities will need to work with their city attorney and city engineer to draft such requirements.
Cities viewed only as regulators of their rights of way. The FCC determined that when cities regulate items placed in their right of way, they do so as a regulatory function, not in an ownership capacity. This finding could have an effect on a carrier’s ability to install equipment on city assets within the right of way over city objection.
New time frame to process macrocell (antennas on water towers) applications. Despite the focus on small cell facilities, the FCC ruling also creates 90- or 150-day shot clocks for macrocell facilities on city structures. “Macrocell” is the traditional wireless coverage model in which antennas are placed on very tall structures with coverage for several miles. For cities, this typically includes antennas on city water towers.
What cities need to do now
Even though appeals could reverse or stall the Declaratory Ruling, cities should think about how to comply with these new requirements. Cities should be drafting aesthetic requirements to be in published within 180 days of publication of the final version in the Federal Register.
In addition, cities should be reviewing their process and ordinances related to wireless permits. Such review should ensure cities can:
Meet the mandated shot clocks.
Enforce uniform design requirements.
Maintain documentation of actual costs incurred in processing wireless permit applications if charging more than the presumed reasonable fees.
What LMC and NLC are doing
The League of Minnesota Cities (LMC) and the National League of Cities (NLC) have provided comment throughout the FCC rulemaking process. Both LMC and NLC will explore administrative, legislative, and judicial appeals options.
LMC will also continue analyzing the impact of the Declaratory Ruling on Minnesota cities, and provide more guidance soon.