FCC Rules, City Regulatory Authority and Public Notice

3 months ago

Federal Communications Commission (FCC) rules changing

In 2016, when the applications for T-Mobile were received, the City had limited authority to review small cell antennas. The City was authorized to review the design and location of the small cell antennas – provided the City did not prevent the closure of a “significant gap” in wireless coverage. The City did not have regulations adopted in 2016 that would allow small cell antennas – which was a violation of the FCC rules. Consequently, to facilitate the review of small cell antennas, the City Council established a franchise agreement with Crown Castle in late 2016, which provided both criteria for the design and location of small cell antennas. The franchise agreement was modified in 2017 to clarify the design requirements.

The City’s ability to regulate small cell antennas was further limited by recent “new rules” adopted by the Federal Communications Commission (FCC), which took effect in January of 2019. The FCC’s new rules prevent the City from materially inhibiting the installation of small cell antennas. In practical terms the City no longer may regulate the location of small cell antennas and may only regulate the design of small cell antennas. The FCC’s new rules also required that the City Council adopt the regulations in advance of any application of for a small cell antenna. Consequently, the City Council adopted emergency, interim small cell regulations in January of 2019. Permanent regulations will be developed in late 2019 / early 2020; the City will engage the public as part of the development of permanent regulations.

For more information on the new FCC rules, please read the FCC's Declaratory Ruling on 5G Small Cells (external link) and FCC Fact Sheet (external link).


Public Notice

In 2016, when the City received the applications for the T-Mobile small cells received, the City provided mailed notice to neighbors within 150 feet of the small cell antenna, published notice in the weekly bulletin, and solicited public comment. The public comment received in response to the public comment period opposed the installation of the small cell antennas. Unfortunately, the City was unable to meaningfully respond to these public comments – because the FCC prevented the City from regulating the closure of a “significant gap” in wireless coverage. This led to significant frustration on the part of the community and City staff because the City could not respond to public comment as normally would be expected (e.g. by correcting the design / location of a small cell antenna).

In 2019, following the adoption of the FCC’s new rules, the City Council discussed the desired public notice for small cell facilities, given the further limitations on the City’s authority to regulate small cell antennas. The City Council indicated that the City should provide public notice of the small cell antennas to further transparency; public notice is required by the City’s regulations through the weekly bulletin and is supplemented by other social media and website information. Mailed notice was not provided because of the concern around creating a community expectation that could not be addressed – namely the expectation that the City would be able to meaningfully respond to public comments.


Interim Ordinance, FCC Appeals, Looking Forward

The City adopted emergency interim small cell regulations in January of 2019 to ensure that the City could regulate the design of small cell facilities – following the adoption, the City issued a news release. The “interim” nature of the small cell regulations requires the City Council to re-adopt the small cell regulations every 6 months, before the expiration of the current interim ordinance. The City Council is scheduled to hold a public hearing on June 18 and re-adopt the small cell regulations for 6 months.

Following the adoption of the FCC’s new rules, several cities appealed, including the Cities of Bellevue, Portland, Los Angeles, and Seattle. Although appeals were filed, the US Court of Appeals denied the Cities’ request to stay the FCC’s new rules.

In late 2019, the City intends to initiate a review of the City’s small cell regulations with the intent of adopting permanent regulations. The timing of this review is intended to allow the City Council to take action after the anticipated resolution of the appeals of the FCC’s new rules, and allows the City to engage with the community prior to adoption of permanent regulations.