By Al Benshoff
With the adoption of H.B. 310 (S.L. 2017-159), all municipalities and the N.C. Department of Transportation must allow the location of “small wireless facilities” in the public rights-of-way. Here are a few FAQs about the application of the law.
- When is HB 310 / S.L. 2017-159 effective?
It became effective in July, upon adoption.
- If a municipality/town does not adopt an ordinance incorporating HB 310, do we have to use it? Yes. The General Statutes control and supersede local ordinances that contradict state statute.
- Can municipalities regulate poles in DOT rights-of-way?
Municipal land use regulations apply in DOT ROWs, to the extent permitted by statute. Municipalities cannot prevent DOT from allowing encroachments.
- What fees can a town charge for permitting small wireless facilities?
Any fees that the town can prove are directly related to processing applications and issuing permits, not more than $100 per the first five small wireless facilities plus $50 for each additional small wireless facility. In theory, towns could charge higher fees for permits for poles or wireless support structures that are larger than “small wireless facilities.”
- What fees can my town charge for permitting “micro wireless facilities”?
None. See G.S. §160A-400.54(h). Statute also may prevent pole attachment fees for micro wireless facilities. (“Micro wireless facility” is defined at G.S. §160A-400.51(6a). See 12) below.)
- Can towns still zone “large” telecommunications towers?
Yes. HB 310 provides exceptions for the deployment or “small wireless facilities’ in general and specifically in the “Public Rights-Of-Way” (PROW). However, some commentators believe that Chap. 160A, Art. 19, Part 3(e), Wireless Telecommunications Facilities” provides the only and exclusive authority for the regulation of wireless facilities.
- What can a city charge for encroachments into the rights of way?
The charges are limited to what the city now charges other users or the costs to administer the encroachment process minus the amount of franchise fees received. See G.S. §§ 160A-296 and 160A-400.55(e).
- Can local zoning ordinances regulate the aesthetics of small wireless facilities?
Yes, cities may enforce “reasonable” stealth and concealment requirements, including screening, landscaping, public safety or “reasonable spacing”. (N.C. Gen. Stat. §160A-400.54 (d)(5)). If decorative poles are required, new poles must meet the cities decorative pole requirements. (N.C. Gen. Stat. §160A-400.55 (i)).
- Can municipalities regulate wireless facilities in historic districts?
Yes, historic districts and landmarks established under N.C. statutes govern the installation of poles and “wireless support structures”. U.S. statutes also apply to national districts and buildings on the National Register. See G.S. §§ 160A-400.55(h) and 160A-400.54 (d)(5)(iv)
- Does the law of nonconformities apply to “Small Wireless Facilities”?
Probably yes, but note G.S. § 160A-54 (g), which discusses “abandonment” instead of non-conformity. “Abandonment” is defined as the earlier of “the date the wireless services provider indicates that is abandoning. facility or … 180 days after the wireless facility ceases to transmit a signal, unless the … provider gives the city reasonable evidence that it is diligently working to place …facility back in service.” Presumably the law of “abandonment” applies to small wireless facilities, but the law of nonconformities applies to all other wireless facilities.
- What is a Small Wireless Facility?
A wireless facility that meets both of the following qualifications:
a. Each antenna is located inside an enclosure of no more than six cubic feet in volume or, in the case of an antenna that has exposed elements, the antenna and all its exposed elements, if enclosed, could fit within an enclosure of no more than six cubic feet.
b. All other wireless equipment associated with the facility has a cumulative volume of no more than 28 cubic For purposes of this sub-subdivision, the following types of ancillary equipment are not included in the calculation of equipment volume: electric meters, concealment elements, telecommunications demarcation boxes, ground-based enclosures, grounding equipment, power transfer switches, cut-off switches, vertical cable runs for the connection of power and other services, or other support structures.
- What is a Micro Wireless Facility?
A small wireless facility that is no larger in dimension than 24 inches in length, 15 inches in width, and 12 inches in height and that has an exterior antenna, if any, no longer than 11 inches.
- What is a Communications Service Provider?
A cable operator as defined in 47 U.S.C. § 522(5); a provider of information service, as defined in 47 U.S.C. § 153(24); a telecommunications carrier, as defined in 47 U.S.C. § 153(51); or a wireless provider.
- What is a Wireless Facility?
Equipment at a fixed location that enables wireless communications between user equipment and a communications network, including (i) equipment associated with wireless communications and (ii) radio transceivers, antennas, wires, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration. The term includes small wireless facilities. The term shall not include any of the following:
a. The structure or improvements on, under, within, or adjacent to which the equipment is collocated.
b. Wireline backhaul
c. Coaxial or fiber-optic cable that is between wireless structures or utility poles or city utility poles or that is otherwise not immediately adjacent to or directly associated with a particular antenna.
- Who owns new poles required by a town?
Replacement poles will be owned by the entity that originally owned the pole. For example, a town street light pole owned by a town can be replaced by a street light pole with antenna attached. The replacement pole will still be owned by the town. Some towns have contracts with other utilities. Those contracts will still apply.
- May municipalities charge a “resubmittal” or “deficient application fee” for incomplete applications?
No, G.S. § 160A-400.54 (e) caps what towns may charge and provides for free re-submissions of rejected applications in no more than 30 days.
- Statute does not define “technical review”. May towns charge a fee for “non-technical review”?
It is unlikely that towns have the authority to charge for non-technical review. Review by an “expert” is prima facie technical review. Sub-section (f) also says that review includes “processing and approval of applications”. It is likely that towns could charge $500 to help with permit processing. See G.S. § 160A-400.54 (f).
- Can cities always require an applicant to replace city utility poles if city receives a wireless application?
Probably not “always” if the old pole has no more room for additional antenna attachments, is structurally deficient, or fails to meet zoning code requirements or for some other reason cities can request a replacement pole. See G.S. § 160A-400.55 (i).
- G.S. § 160A-400.57 (c) says cities may not adopt any regulation on the “placement or operation of communications in PROWS by a provide authorized by law to operate in the PROW, except as provide in G.S. Chapter 160, Art. 19, Part 3E “Wireless Telecommunications Facilities”. Does this subsection mean municipalities cannot regulate visual intrusion, size, appearance, safety or protection of property values, to name a few? Or that cities cannot regulate any placement of towers in the rights-of-way?
This sub-section says that cities cannot regulate “communications facilities” except as provided in the General Statutes. “Communications facility” and “communications service provider” are defined terms of art in G.S. § 160A-400.51. The definition in our G.S. borrows the definitions of cable TV, landline telephone and ISP from U.S. statutes. Cities authority is limited by Part 3E.
The opinions expressed in this post are those of the author, and no other.