Minnesota Cities Magazine
More from Nov-Dec 2016 issue

Letter of the Law: Regulating Cell Towers and Small Cell Technology

Please note: On Sept. 26, 2018, the Federal Communications Commission approved a Declaratory Ruling and Third Report and Order focusing on state and local management of small cell wireless infrastructure deployment. This ruling conflicts with Minnesota’s existing law, and this article does not reflect that. If you have questions about how the ruling will affect your city’s regulation, please consult your city attorney for legal advice.

By Pamela Whitmore

Illustration of a cell tower The emergence of personal communications services, the increased number of cell providers, and the growing demand for better coverage means cities are receiving more siting requests. Companies want to build new cell towers or place antennas or small cell equipment in city rights of way, on water towers, or on other city property.

Be aware of changes in siting requests
The variety of companies submitting siting requests has grown over time, with companies calling themselves resellers or wholesalers now also submitting requests. Initially, the market consisted of tower owners (whether the cell provider themselves, like AT&T or Verizon, or an independent tower company) that sought to lease city-owned property on which to construct large cell towers.

Now, with wireless carriers needing to increase data network coverage capacity, cities have started receiving siting requests for equipment other than towers—specifically for placement of small cell equipment or distributed antenna systems (DAS) on buildings, poles, and other structures in the public right of way. These smaller, easier-to-install systems support cell coverage either within a large cell area with high coverage needs or, in the alternative, at sites within large geographic areas with poor cell coverage.

Understand the city’s authority
Many of these cellular carriers, telecommunications wholesalers/ resellers, or tower companies claim that federal law requires cities to allow construction or placement of towers, antennas, or small cell equipment in rights of way. With little to no experience with the federal laws, many cities struggle with these requests, especially with the pressure of Minnesota’s 60-Day Rule.

The Telecommunications Act is the controlling federal law and, though it does encourage development and entry of telecommunications/mobile services into marketplaces, it does not take away local zoning and land use authority completely. In fact, it states that local government still has authority to manage public rights of way, to require fair and reasonable compensation, and to make decisions over placement, construction, and modification of personal wireless facilities.

As a result, cities can regulate (but likely not completely prohibit) the placement of towers and other personal wireless service facilities. City regulations can include controlling height, exterior materials, accessory buildings, and even location.

Federal law does place some limits on local authority, however. Cities:

  • Cannot unreasonably discriminate among providers of functionally equivalent services.
  • Cannot prohibit or pass regulations that have the effect of prohibiting telecommunications or personal wireless services.
  • Must act on applications within a reasonable time (easily met when cities comply with Minnesota’s 60-Day Rule).
  • Must document denials in writing supported by “substantial evidence.”

Also, municipalities cannot deny a request for environmental reasons when the antennas comply with the Federal Communications Commission (FCC) rules on radio emissions.

Modifications to existing FCC-regulated structures, however, are a different story. If a siting request proposes modifications to and/ or collocations of wireless transmission equipment on existing FCC-regulated towers or base stations, then federal law further limits local municipal control.

With modifications, cities cannot ask an applicant for documentation, other than that which relates to the impact on the physical dimensions of the structure. Accordingly, documentation illustrating the need for such wireless facilities or justifying the business decision likely cannot be requested. So if a city owns a pole that has small cell equipment on it and another request for additional equipment comes in, the city must allow it unless it substantially changes the physical dimensions of the structure.

Ways to regulate
Cities regulate cell towers and personal wireless services in a variety of different ways, including with rights-of-way management ordinances and specific cell tower/telecommunication ordinances. Many cities recognize these structures as conditional uses, often requiring a permit.

With the emergence of small cell/DAS technologies, cities have started to amend their zoning and ordinances to account for more expedited decisions on these siting requests, including establishing a separate administrative approval process for these less burdensome technologies. Because small cell/DAS equipment attach to existing structures, cities often need additional documents for managing these relationships, including a master licensing agreement; license supplement (or lease); pole attachment application (if the city’s ordinance so requires in its permit process); and bill of sale (for the sale of a pole from carrier to city).

For more details, see the League of Minnesota Cities information memo at www.lmc.org/celltowers.

Pamela Whitmore is a research attorney with the League of Minnesota Cities. Contact: pwhitmore@lmc.org or (651) 281-1224.

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