[Massplanners] 5G

[Dwight Merriam]

A couple of points to consider, from our Rathkopf treatise
https://store.legal.thomsonreuters.com/law-products/Treatises/Rathkopfs-The-Law-of-Zoning-and-Planning-4th/p/100027828
:

Section 106 of the National Historic Preservation Act of 1966 (NHPA)[1]
<#_ftn1> mandates that federal agencies consider the effects on historic
properties when the agencies develop, assist, approve, or license projects,
and that those agencies provide the Advisory Council on Historic
Preservation (ACHP) a reasonable opportunity to comment. The ACHP, in
support of providing full coverage of internet and cellular service,
coordinates with federal agencies including the Federal Communications
Commission (FCC), the United States Department of Agriculture’s Rural
Utilities Service (RUS), the National Telecommunications and Information
Administration (NTIA), the Federal Emergency Management Agency (FEMA).  The
ACHP provides guidance on its review process.[2] <#_ftn2>

------------------------------

[1] <#_ftnref1> 54 U.S.C.A. §300101 et seq.

[2] <#_ftnref2> Advisory Council on Historic Preservation, Broadband
Infrastructure and Section 106 Review (undated).



Moreover, under the FCC’s 2018 Small Cell Order, municipalities have very
limited non-proprietary regulatory authority to manage access and use of
public rights-of-way for wireless facilities. As a result, municipalities
cannot deny access – they can regulate the reasonable time, place, and
manner of small cell installations in accordance with federal law, and
these regulations must incorporate clearly-defined and ascertainable
standards that do not materially impact the deployment of wireless
facilities (particularly in comparison to cable and other wireline
broadband infrastructure).[1] <#_ftn1>

------------------------------

[1] <#_ftnref1> See WT Docket No. 17-79/WC Docket No. 17-84, FCC DA 18-133
(September 27, 2018), which streamlined local review of Small Cell
facilities and services, including preventing the prohibition of services;
preempting right-of-way access fees; preventing unreasonable zoning
restrictions; and adopting a shot clock (90 days for new builds; 60 days
for collocations); City of Portland v. U.S., 969 F3d 1020 (2020) (holding
the standardization of small cell review by local governments).



And see Crown Castle Fiber LLC v. City of Charleston, 2021 WL 538148
(D.S.C. 2021) (upholding city's denial of a telecommunication services
provider's request to install and operate small cells based on “aesthetic
and preservationist concerns”).


[1] See ExteNet Systems, LLC v. Vill. of Kings Points, 21-cv-5772 (KAM)(ST)
(E.D.N.Y. 2022) (Planning Board cannot deny a Special Permit for a Small
Cell roll out on private streets based on the public necessity standard
applied to applicants for variances in New York; Telecommunication Act’s
effective prohibition of service standard is inapplicable to the Special
Permit review process).


But see City of Austin v. Abbott, 385 F. Supp. 3d 537 (W.D. Tex. 2019)
(Telecommunications Act did not preempt state law limiting fees local
governments could charge for permitting and providing standards for
installation of small cell nodes on utility poles and traffic signals in
the public right of way).


[1] See WT Docket No. 17-79/WC Docket No. 17-84, FCC DA 18-133 (September
27, 2018), which streamlined local review of Small Cell facilities and
services, including preventing the prohibition of services; preempting
right-of-way access fees; preventing unreasonable zoning restrictions; and
adopting a shot clock (90 days for new builds; 60 days for collocations); City
of Portland v. U.S., 969 F3d 1020 (2020) (holding the standardization of
small cell review by local governments).

 ExteNet Systems, Inc. v. City of Cambridge, MA, 481 F. Supp. 3d 41 (D.
Mass. 2020) (“because the Small Cell Wireless Policy is not an outright ban
on the provision of personal wireless services, the validity of the Policy
hinges on ‘whether the [Policy] effectively prohibits the provision of
wireless services.’”);

New Cingular Wireless PCS, LLC d/b/a AT&T Mobility v. Town of Colonie,
20-cv-1388 (NAM/ATB) (N.D.N.Y. 2022) (Town’s Zoning Code inappropriately
prohibited installation of Small Cell Facility in a right-of-way);(in part,
summary judgment that Defendant failed to act within 60-day shot clock for
Small Cell Application);


ExteNet Systems, Inc. v. Village of Plandome, 2021 WL 449453 (E.D.N.Y.
2021) (in denying approval for Small Cells, Planning Board did not cite
substantial evidence regarding concerns of aesthetic impact and property
values; and Planning Board did not sufficiently show that applicant filed
to establish a coverage gap);

Regards,
Dwight Merriam, FAICP
www.dwightmerriam.com




On Tue, Jan 10, 2023 at 10:40 AM George Forcier via MassPlanners <
massplanners at masscptc.org> wrote:

> Conway, a western Mass. hilltown of about 2,000 people, is considering
> amending zoning bylaws to regulate 5G “small cell” telecommunication
> facilities. Although we are told that 5G may never come to rural towns,
> some have suggested it may eventually, especially along state highways. So,
> any suggestions from forward-thinking, perhaps more urban towns who have
> tackled this already would be appreciated.
>
>
> --
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>
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