In 2001, the Board of Commissioners adopted Ordinance 2001-02 which regulates the placement of personal wireless service facilities (PWSF) on private property. The PWSF ordinance was focused primarily on larger scale cellular towers and collocations of cellular antenna on existing towers and structures. As technology has advanced and the public's demand for wireless data has increased significantly, wireless companies are facing a growing need to supplement the larger cellular tower capacity in order to provide fifth generation (5G) wireless services. The industry method for enhancing data service on a smaller scale is through the installation of what has become known as "small cell" antenna systems.
Small cells function as an element of a larger network to increase the provider’s wireless capacity within a localized area. In the 2018 legislative session, Tennessee was among 34 states that pursued legislation seeking to create a uniform framework to facilitate the deployment of small cells in communities across the state. On April 24, 2018, Governor Bill Haslam signed the “Competitive Wireless Broadband Investment, Deployment and Safety Act of 2018," which was intended to create a framework by which wireless providers are able to deploy small cells throughout the state.
The law provides that small cells may be deployed on a “Potential Support Structure” (PSS) in the public right of way, pursuant to a city’s approval. The new law defines a PSS as an electric pole, light pole, traffic signal or sign. The PSS may be city-owned or belong to a third party. A small cell may be deployed in any one of three methods.
- The small cell may be physically attached, or collocated, to an existing pole or sign.
- The small cell may be incorporated into the design of a new pole that replaces the existing pole, referred to as either a modified PSS or replacement PSS.
- The provider may install a new pole in a location in which there is not currently a pole, and the small cell may either be attached to or incorporated into its design.
The law permits cities to promulgate limits, permitting requirements, zoning requirements, and approval processes regulating the deployment of small cells within their jurisdictional boundaries. However, any limits, requirements, policies, or processes may not be more restrictive or in excess of what is permitted under the new law. This proposed ordinance follows state law by setting forth parameters by which small cells can be deployed within the City of Brentwood. These parameters include a uniform application process; timeline for decisions; fees and rates; and certain requirements for the installation of small cells. To date, twenty small cell installations have already been approved via the Planning Commission. A photo of the installation along Crossroads Boulevard is attached.
Applications and Fees
The new law permits a city to charge an application fee for each individual application filed. These fees do not limit any other fees the City already charges for operation in the right of way pursuant to Article 58, including fees related to work or traffic permits. The proposed ordinance provides for a $100 application fee for the first five small cells and $50 each for any additional requests included in a single application. If a provider deploys a small cell on a City owned PSS, then the City may charge an annual collocation fee of $100.
It is important to note that if the provider is conducting regular maintenance, making repairs, or replacing parts or components on its own small wireless facilities, then no application, approval, permits or fee may be required. Likewise, if a provider is replacing its own small cell facility with another that is either the same size as the existing facility or smaller than the qualifying dimensions of a small wireless facility, then no application, approval, rate or fee may be required. In addition, the City may not require a provider to complete an application, obtain approval or to pay any rate or fee for installing a micro wireless facility on a strand of wire that is strung between two poles holding small cells. Finally, the City may not condition the approval of a small cell on a provider agreeing to enter into an access agreement or site license agreement.
Review Timeline
Generally, the new law provides that a city must complete its initial review of an application within 30 days of its receipt and determine whether it will approve or deny the application within 60 days of its receipt. However, there are many circumstances and decisions that would toll the time on the 60-day decision deadline and alter the timing of an application’s consideration. The proposed ordinance follows the timelines as set forth by state law.
City staff must decide during this initial 30-day period whether the individual requests for deployment included within an application are complete or whether any individual requests warrant a conference. If staff determines the application is incomplete, then staff must notify the provider. The provider has 30 days from receipt of such notification to provide the additional information. During the 30-day period in which the city is awaiting additional information, the clock stops ticking on the 60-day final decision period. If the additional information is provided within the 30 days allotted and the application otherwise satisfies the requirements, then the 60-day clock resumes. However, if the provider fails to provide all information or fails to respond within this 30-day period, then the application may be denied and the provider may be required to begin the process again, including payment of another application fee.
Please note that the Federal Communications Commission (FCC) has issued an order that may decrease the City's initial review period from 30 to 10 days. This order was issued in late September and is set to become effective in late January. Several appeals have been made to challenge this order, but as of now, no decision has been made by a court to postpone the effective date. Ordinance 2018-19 provides that the City and applicants must follow timelines as set forth by federal or state law, so no modification will be made to the ordinance regardless of the status of this FCC order.
Aesthetic plan
Although the new law generally prohibits a city from restricting the size, height, appearance or placement of a small cell or the collocation of a small cell on a PSS, this does not mean that a provider can deploy small cells without any regulation. The law allows cities to adopt an "aesthetic plan" which sets forth generally applicable aesthetic requirements within the City or designated area within the City. The aesthetic plan may not provide restrictions such that it prohibits or precludes the deployment of small cells if they otherwise comply with the regulations and an aesthetic plan. The proposed ordinance provides, in Section 58-104, for several aesthetic criteria. For example, it requires a provider to ensure that the appearance of any new or modified PSS is consistent with the design of the pole or sign being replaced.
The City is not allowed to dictate the placement of a PSS, limit the distance between a PSS, or require the collocation of a small cell on a specific PSS, but it is allowed to attempt to accomplish these objectives through its aesthetic plan. The aesthetic plan can be accomplished by site plan, resolution, or approved plat. City staff is currently drafting the "City of Brentwood Guidelines for Wireless Communications Facilities in the Public Right-of-Way" which will be contain additional aesthetic guidelines. It is staff's intent that this policy will presented to the Board of Commissioners for its consideration in January.
Sizes of Small Cells
Although a city may not regulate the size of a small cell, the new law (and the proposed ordinance) establishes a standard size that must be observed. The wireless equipment must be cumulatively limited to 28 cubic feet or less in volume, and the antenna must fit within an enclosure that is no more than six cubic feet in volume. However, in addition to these two elements, there are usually several related components in association with a small cell installation (e.g., an electric meter, vertical power cables or grounding equipment). These associated elements are not included in the new law's definition of a small cell and, therefore, the City cannot place limitations on the size of these components.
Height of a PSS or Small Cell
While the new law prohibits a city from restricting the height of a new or modified PSS, it does include uniform height provisions for a new pole or sign installed to host a small cell or a modified pole or sign installed as a replacement for an existing pole or sign, on which a small cell is to be hosted. The proposed ordinance mirrors these regulations. A new or modified PSS is permitted to be up to 50 feet tall, unless there is an existing pole or sign within 500 feet of the proposed location for the new or modified pole that rises more than 40 feet above the ground. In that case, the new or modified PSS may reach a height of 10 feet above this pole or sign. However, if the proposed location of the new or modified PSS is within a residential neighborhood, then the height is limited to 40 feet above the ground, unless there is an existing pole or sign located in the same neighborhood and within 500 feet of the proposed location that rises more than 30 feet above the ground. In such a case, the new or modified pole may reach a height of 10 feet above this pole or sign. In addition to the height limits for a new or modified PSS, the new law also imposes a height limit for any small cell and its antenna. A small cell and its antenna may not reach higher than 10 feet above the allowable height for a new or modified PSS in that same location.
Note that the law does provide exceptions to the standard height limit. First, a PSS or small cell may exceed the standard height limit if a city’s zoning regulations allow for taller structures in the area or if approved pursuant to a zoning appeal. Second, the law permits a city to regulate the height of either a new or modified PSS or small cell through the application of an aesthetic plan as described above.
Residential Neighborhoods
In addition to the height restrictions described above, the proposed ordinance provides that if a provider is seeking to deploy a small cell within a residential neighborhood, it must deploy the small cell in the right-of-way within 25 feet of the property boundary separating lots larger than .75 acres and within 15 feet of the boundary separating lots if the lots are .75 acres or smaller.
The proposed ordinance also provides for maintenance, insurance, and bonding requirements. Given the limited discretion allows cities in the state law, it proposed that review and approval of small cell applications will be performed by City staff except when any wireless provider seeks to construct or modify a PSS or wireless facility and it is determined to not comply with the height, diameter, design, color standards or expectations set forth in the Code. In such event, the Brentwood Municipal Planning Commission will review the application. In addition, new PSSs will not be permitted to be installed in the rights-of-way in areas in which no utility poles, streetlight poles, or PSSs exist without prior approval by the Brentwood Municipal Planning Commission.
If approved on first reading on December 10, 2018, the ordinance will be scheduled for consideration on second and final reading on January 14, 2019. Please contact the City Attorney if you have any questions about this ordinance. |