Mar. 28, 2018

What Municipalities Need to Know About 5G Technology, the Federal Telecommunications Act & Proposed State Law Limiting Municipal Regulatory Authority

 “Not in my front yard!” is the battle cry for residents and battleground for municipalities across New York, as they prepare for the deployment of the next generation of wireless infrastructure 5G technology.  Cellular services providers, with the assistance of federal law and FCC orders, have opted to deploy the latest technology - small cells and DAS systems - in municipal rights-of-way, much to the chagrin, in many cases, of local leaders and residents.  By one estimate, 5G services and densifying their network will require thousands of small cells and DAS nodes to be built over the next few years to support this technology.

What this means is, the area of land between the sidewalk and the street is a highly contested, and valuable, piece of real estate in municipalities across the New York as small cell and DAS providers try to expand their network into municipal rights-of-way.  

Federal Law

Changes in the law, such as the FCC’s “Shot Clock” ruling, under which certain wireless permits must be approved, and, in fact, will be “deemed approved”, together with changes in the wireless industry will require that municipalities upgrade their zoning laws or they will likely be caught unaware of the wireless advances that are coming, and opportunities for preservation of the character of their neighborhoods and communities will be missed.

The wireless industry is in the process of preparation for the next technology and infrastructure – 5G services and, unlike prior battles regarding the siting of large monopolies and lattice towers, they are targeting public property, including local roads, utility poles, light poles and traffic poles, for deployment of their facilities.  Based on the number of cases commenced against municipalities, service providers are not shy about using federal courts to force the issuance of municipal permits.  The demand for 5G services will only increase the need to provide densified networks in high?volume urban areas, and providers have been and will be knocking on the municipalities doors seeking permits for use of the rights-of-way.  

The attorneys at Whiteman, Osterman & Hanna offer experienced representation to assist municipalities navigate the array of preemptive federal laws, regulations and FCC orders, with applicable established state and local laws designed for the protection and administration of municipal infrastructure (including highway rights-of-way), other municipal property and buildings and, importantly, the health, safety and welfare of it residents.

Whiteman, Osterman & Hanna advises municipalities regarding the implications of the Federal Telecommunications Act and state laws, and assists with the preparation, enactment, and enforcement of local laws and ordinances governing the installation of cell towers, small cells and DAS systems to ensure the protection of local residents.  Moreover, the Firm can assist the municipality when considering an application for a small cell or DAS installation application and help ensure compliance with the TCA and “shot clock” requirements. 

Whiteman, Osterman & Hanna also offers legal defense services to municipalities, if litigation is commenced by a wireless company or provider, regarding:

  • Denial of an application to install a facility
  • “Shot clock” violations
  • Challenges to municipalities telecommunications local laws.

 State Law

However, municipalities should be aware and concerned about a new proposed state law contained in the Governor’s proposed budget that would amend the NYS General Municipal Law by creating a new Article 13-E.  This proposed state law will impact a municipality’s right to regulate DAS and small cell wireless systems in municipal ROWs and certain collocations further tipping the scales in favor of cellular service providers.  This legislation would appear to significantly inhibit local control over small cell and DAS placement within municipal right-of-way. Therefore, the current case-by-case, site-specific, decisions by municipalities regarding placement of small cells and DAS systems is now in jeopardy, if this proposal passes.  Installation of towers in residential areas will be easier for the providers, with little local control over such placement, as well as limited compensation to municipalities for the use of its valuable property.

Please do not hesitate to contact Thomas A. Shepardson, Esq. for additional information at 518-487-7663 or tshepardson@woh.com.