Act 50 of 2021
Legislation providing for the deployment of small cell wireless facilities has passed both the House and Senate and was signed by the Governor on June 30 as Act 50 of 2021. The Act, considered the gold standard as the most municipal friendly small cell legislation in the country, is a win for local governments in the Commonwealth.
In previous sessions, The League opposed small cell infrastructure bills because provisions were more restrictive than the 2018 FCC Order and local zoning authority was preempted. As the new 2021/2022 legislative session began, The League and AT&T negotiated a compromise that upheld local authority while also easing small cell infrastructure deployment. We then went to our respective colleagues to gain their approval of the compromise.
As a united front, the wireless industry and local government presented the compromise to the General Assembly this spring asking for the language to remain as negotiated. The introduced legislation remained largely unchanged, except for a few provisions negotiated between the wireless industry and the unions that represent the workers installing small cell facilities.
The League is proud of the end result. Our years of opposition and consternation from prime sponsors has paid off and the result is a much better piece of legislation for local government. Please click here to view a comparison of the final bill with previous versions.
We would like to thank the Cohen Law Group for their legal and technical advice throughout this process. Their assistance was invaluable to our efforts.
Small Wireless Facilities Deployment Act
Act 50 creates the Small Wireless Facilities Deployment Act establishing standards for deploying small cell infrastructure while preserving local authority over rights-of-way.
Under the Act, small cell wireless facilities are permitted use in all areas except underground districts and would be reviewed by municipal staff in accordance with applicable codes. The definition of applicable codes in the legislation include local zoning, land use, streets and sidewalks, rights-of-way and permitting ordinances. Wireless providers and contractors have the right to either collocate small cell facilities on existing poles; replace an existing utility pole with added small cell infrastructure; or install a new utility pole with added small cell infrastructure.
In accordance with the FCC’s 2018 Small Cell Order, municipalities have the right to charge an annual fee right-to-way management fee not to exceed $270 per small wireless facility. Municipalities have the ability to make their case for higher fees. This is accomplished by demonstrating that the higher fee is a reasonable approximation of costs to manage the right-of-way and that the fee is reasonable and non-discriminatory.
Municipalities may also charge application fees, including $500 for an application seeking approval of up to five collocated small cell facilities and $100 per each additional collocated facility thereafter, and $1000 for a new or replacement pole. Municipalities have 60 days to approve an application to collocate facilities and 90 days to approve an application to replace or install a new utility pole. A municipality may deny an application based on several reasons listed in the bill, including interference with the safe operation of traffic control and failure to comply with the applicable codes. Applicants is afforded the opportunity to correct an application deficiency.
The dimensions of the small cell facilities match those in the FCC Order. The size of the antenna is limited to 3 cubic feet in volume, accessory equipment may only be 28 cubic feet in volume and the maximum utility pole height would be 50 feet. Height waivers are subject to applicable codes. Municipalities may also develop objective guidelines for small wireless facilities regarding the minimization of aesthetic impact, as long as the guidelines are technically feasible and nondiscriminatory.
All structures and facilities must be installed and maintained so as not to obstruct nor hinder travel or public safety within the right-of-way or obstruct the legal use of the right-of-way by the municipality and utilities. Wireless providers are responsible for repairing any damage to the right-of-way and must return it to at least the condition that existed prior to any work being done. If the wireless provider fails to complete the repairs within a 30-day written notice from the municipality, the municipality may complete the repairs and charge the wireless provider reasonable fees for the repairs, as well as a $500 penalty.
If the FCC adjusts its fee levels for small wireless facilities, a municipality may adjust any impacted rate or fee on a pro rata basis consistent with the FCC order. If the FCC’s 2018 Small Cell Order is revered or repealed by the U.S. Supreme Court, then the application and ROW use fees may increase by three percent annually.
Wireless providers are required to fully indemnify municipalities for any harm caused while installing, repairing, or maintaining small wireless facilities or utility poles within the right-of-way.
Lastly, a municipality is required to adopt new or amend existing ordinances to comply with this bill.