Top Issues of 2021 Session: 5G Wireless and “Small Cell” Siting

With the 2021 Legislative Session rapidly approaching, MACo is profiling some major issues that stand to gather attention in the General Assembly’s work. Here, we preview the ongoing hot topic of “small cell” siting for fifth-generation (5G) wireless service – but note that the main decision-making has already taken place at the federal regulatory and judicial level.

Wireless connectivity remains an important and growing part of the telecommunications infrastructure, and for relatively densely-built areas (mostly downtown areas, but also along major roadways) the advance of fifth generation (commonly referred to as “5G”) service promises even faster speeds, and higher service capacity.

To deploy this service, carriers envision a new infrastructure for its delivery – replacing the familiar “macro tower” elevated service designed to connect with phones and devices up to a mile or two away. The 5G gameplan is for a much denser network of “small cells” (smaller devices attached to buildings, poles, and smaller towers every few hundred feet) designed to serve much smaller areas, with higher penetration through walls and impediments. The promise of 5G communication is exciting for residents and businesses, and the technology is well on its way into Maryland.

A point of contention for this remains – will the local governments retain their ability to guide, at the community level, the way this infrastructure gets deployed into public rights of way? Recent legislation in Maryland (none of which has passed) sought to clarify or reframe the rights and limits of local permitting and approval processes to bring forth this new technology while preserving neighborhood character and offsetting costs of public access.

The DLS Issue Paper discusses the latest FCC order, which strengthened federal “shot clocks” and granted wide entitlements to wireless companies — observing that much of the state-level debate has been mooted by these federal actions:

In response to these conflicts and to hasten the implementation of the 5G data network, the Federal Communications Commission (FCC) adopted new rules relating to the installation and maintenance of small wireless facilities in 2018. Among other things, the rules require local governments to take action on applications to install 5G equipment on government property in publicly owned rights-of-way within 60 or 90 days, depending on certain circumstances, and limit the amount of money that a local government may charge for such installations. Specifically, a local government may charge no more than $100 for each application to install a small cell facility and an annual fee of no more than $270 for each facility. The fee caps have been particularly controversial, and many cities and other local governments question whether the commission has the authority to establish these requirements.

As a result of the adoption of these new rules, a number of local governments, including the cities of Bowie and Westminster and Montgomery County, filed suit against FCC. Ultimately, the U.S. Court of Appeals for the Ninth Circuit in the case of City of Portland v. United States largely upheld the FCC rules with the exception of those rules related to certain aesthetic requirements. The decision clears the way for local governments to maintain control in the limited area of aesthetic regulations while simultaneously restricting their fee authority.

With these topics fresh in mind, MACo’s sister organization the Maryland Municipal League – who has advocated for a continued community role in these decisions – adopted this topic broadly as one of its Strategic Initiatives for 2021:

Retaining local authority over technology infrastructure installation: Due to an uptick in State and Federal proposals to weaken local policy authority over technological infrastructure placement in public spaces, it is imperative that MML members prioritize retaining local authority; specifically as it applies to revenue, expenditures, right-of-way usage, and land use policy.

The lingering concern about Maryland’s already worrisome “digital divide” also remains – with this apparent corporate emphasis on advancing higher-end connections to the already-served areas of the state, the remaining communities may feel further left behind.

MACo, along with MML and individual local governments, will be prepared to support the current, successful, and effective system of local approval for this communications infrastructure, in the event legislation is again introduced to extend the already expansive FCC limitations.

More background on the FCC final order, and the apparently narrow range of topics remaining for state action in Maryland or anywhere may be found in previous Conduit Street coverage, and in the DLS Issue Paper:

Conduit Street coverage of FCC ruling

DLS Issue Papers: Small Wireless Facilities and Implementation of the Fifth Generation Data Network

Helpful 2021 Session Links:

Maryland General Assembly website | 2021 Dates of Interest | Issue Papers
Re-opening procedures: Senate | House of Delegates | House Committees
Follow MACo’s advocacy efforts on MACo’s Legislative Tracking Database
MACo’s 2021 Priorities  |  MACo’s 2020 Wrap-Up

Michael Sanderson

Executive Director Maryland Association of Counties