Small Cells in the Public Right-of-Way

Thomas W. Hildreth
Of Counsel, Corporate Department
Published: New Hampshire Bar News
May 15, 2019

Since the advent of the smart phone in 2007, the year-over-year growth in throughput demand on the nation’s wireless communications infrastructure has been meteoric. In response to that demand, and to lay the foundation for the next generation of wireless services (5G), mobile network operators (MNO) are seeking to densify their networks with “small cells.” At the same time, recent changes in federal and state law are paving the way for small cells nationwide and, particularly, here in New Hampshire.

About Small Cells

Small cells utilize utility poles, street lights, signs, traffic signal poles, and similar “street furniture” to place an antenna, RF radios, and support equipment at the pole locations to enhance network coverage and data speeds for the communities served. Designs typically involve attaching to a utility pole a single canister antenna, about the size of three one-gallon paint cans stacked on top of each other, within the communications space or upon the top of the pole, depending on pole owner requirements.  The antenna is connected with cables running down the pole to one or two remote radio heads attached to the pole, and a radio disconnect switch that will power down the equipment if crews will be working on or near the antenna, along with a power meter. Small cells are connected to MNO networks by dark fiber. The deployments are designed to blend into the existing environment as much as possible, typically utilizing existing pole locations, with equipment that resembles existing utility gear.

Utility Pole Owners Required to Permit Wireless Pole Attachments under Federal and State Law

Utility poles are typically jointly owned by the local electricity provider and the incumbent land-line telephone service provider. The federal Pole Attachment Act (47 USC §224) requires utility pole owners to grant non-discriminatory pole attachment rights to federally licensed wireless communications carriers. New Hampshire law imposes a similar obligation (N.H. RSA 374: 34-a; N.H. Code Admin. Rules PUC Part 1301).

Utility pole owners may deny an attachment request in only three cases: (1) where there is insufficient capacity; (2) for reasons of safety, reliability, and generally applicable engineering purposes; or (3) where the pole owner lacks authority (47 U.S.C. § 224(f)(2); N.H. Code Admin. Rules PUC 1301.01). As a result of these laws, by the time a wireless carrier is ready to deploy a small cell in a particular municipality, the carrier already holds licenses from the pole owners allowing the attachment.

FCC Order Breaks Down Barriers Nationwide

In late September 2018, the FCC adopted an order entitled: “Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, FCC 18-133, WT Docket No. 17-79, 85 FR 51867 (the “Order”), which took effect on January 14, 2019. The Order defines small wireless facilities by objective measures and establishes substantive regulations concerning permissible fees, shot-clocks for taking action on applications, aesthetic standards, and other non-fee requirements relating to the siting of small wireless facilities.

The Order specifically rejects prior judicial interpretations of the Federal Telecommunications Act of 1996 (TCA) requiring carriers to demonstrate a gap in service. It also clarifies that an effective prohibition exists when a requirement materially inhibits a provider from densifying a wireless network, introducing new services, or improving existing service capabilities. Municipalities cannot condition approval of an application on an applicant’s ability to prove the existence of a gap in service.

State Law Regulation of ROW

Utility poles in New Hampshire public rights-of-way are approved under the provisions of N.H. RSA 231:159, et seq. Small cell attachments to existing approved utility poles require no further approval because:

  • N.H. RSA 231:160 only applies to proposals to erect or install “poles and structures and underground conduits and cables.” A small cell will generally not require a new pole or structure (except in the case of a replacement pole); rather, a small cell is a self-contained facility attached to a single existing approved utility pole;
  • Utility pole owners are required by federal and state law to provide pole space to wireless telecommunications providers.  Accordingly, such wireless attachments are  “required in the reasonable and proper operation of the business carried on by [the pole owners].” (N.H. RSA § 231:161, VI, explains that the license initially granted for the pole covers not only the pole itself, but also such other attachments and appurtenances which are required in the reasonable and proper operation of the business carried on by the license holder);
  • N.H. RSA 12-K:10, IV, added to the state’s wireless law in 2013, expressly prohibits municipal regulation of personal wireless services facilities (PWSFs) on utility poles. Ordinarily, the deployment of PWSFs in New Hampshire is governed by N.H. RSA 12-K. However, RSA 12-K:10, IV expressly provides: “Notwithstanding anything to the contrary in this chapter, an authority may not mandate, require, or regulate the installation, location, or use of PWSFs on utility poles.” The statutory exemption from regulation of wireless attachments to utility poles is consistent with RSA 12-K’s exclusion of utility poles from the definition of “mounts” in RSA 12-K:2, XX.

Notification to Municipality of Wireless Attachments

The license to erect utility poles in a public right-of-way obtained through the process described in N.H. RSA 231:161 is assignable. RSA 231:170 enables a license holder to transfer “all or any interest in any poles” by appropriate assignment. The transferee is entitled to have and exercise said license “to the extent necessary” for use of the transferred property right upon recording the assignment with the respective municipal clerk (RSA 231:170). If MNOs attaching small cells to utility poles file copies of their licenses from the pole owners with the municipal clerk, then municipalities will be able to keep track of small cell attachments to utility poles in public ROWs throughout the community.