Coming Changes to ORC Will Significantly Undermine Municipal Authority Over Small Cell Wireless Facilities in the ROW

On December 7, 2016, the Ohio General Assembly passed Substitute Senate Bill 331 (SB 331), which significantly impacts a municipality's ability to regulate the placement, construction, modification, and maintenance of "small cell" wireless facilities in the public right of way. As originally introduced, SB 331 only sought to regulate dog sales by pet stores and retailers. But as the Generally Assembly went into its lame duck session, additional provisions – completely unrelated to the original subject – were inserted into the legislation, including amendments to Ohio Revised Code Chapter 4939 intended to provide expedited access to municipal right-of-way (ROW) for small cell wireless providers. Governor Kasich signed the bill on December 19, 2016, and it will take effect in 90 days.

SB 331 requires licensed wireless providers and franchised cable operators to go through the motions of requesting consent to take the following actions in the ROW with respect to small cell wireless antennae and equipment (all of which are deemed "permitted uses" anywhere in the ROW regardless of any local zoning provision):

  • Attach an antenna system to an existing monopole, light pole, traffic signal, sign pole, or utility pole in the ROW (unless the utility pole is owned by a municipal electric utility); or replace or modify small cell antennae on such structure;
  • Locate small cell wireless equipment for multiple wireless service providers on an existing pole;
  • Replace or modify an existing antenna or associated equipment; or
  • Construct a new pole or modify or replace an existing pole associated with a small cell antenna or equipment.

Note that the municipality must act on the application within 90 days of receipt, and if it fails to do so, the request is deemed approved. The 90-day period may be tolled by agreement between the municipality and the applicant; by the municipality if the application is incomplete (but be careful to follow the additional timelines prescribed in R.C. 4939.035); or by the municipality for up to an additional 90 days in the case of an "extraordinary number" of wireless facilities contained in pending requests (multiple antennae and facilities may be requested simultaneously). Be aware, however, that the even more accelerated 60-day timeframe for action under Section 6409 of the federal Spectrum Act still applies to "eligible facilities requests" as defined therein (R.C. 4939.039). The amount a municipality can charge to process a "request for consent" may not exceed $250.00 per antennae or wireless facility.

In addition, SB 331 greatly restricts the scope of review for municipalities considering small cell requests. The legislation prohibits cities and villages from:

  • Applying zoning regulations to small cell wireless applications;
  • Evaluating the business decisions of the applicant, the need for the antenna or equipment, or the availability of alternative locations;
  • Precluding placement of equipment in a residential area or within a specific distance from a residence or other structure;
  • Demanding the removal of existing wireless support structures or equipment as a condition of approval of a new application;
  • Limiting the duration of any permit;
  • Imposing separation or spacing requirements between antennae and equipment;
  • Enacting any moratorium on the filing, consideration or approval of applications; or
  • Entering into exclusive arrangements for the right to attach to a municipal corporation's poles or other delineated support structures.

With respect to the last item above, the bill goes so far as to require that a municipality may not refuse to provide access to its own wireless support structures, poles or facilities in the ROW, if a wireless provider wishes to use those structures or poles. For such use, a municipality may charge no more than $200 per year per attachment (to its own ROW poles and facilities) – regardless of whether this amount covers the municipality's costs.

The telecommunications industry sought these changes, in part, to expedite approvals for the planned installation of small cell facilities needed to create faster, higher capacity 5G networks. These new ORC provisions go further than federal law in preempting local review. SB 331 offends principles of Home Rule and violates the single-subject rule. Further, it disregards a municipality's ownership interest, on behalf of its residents and the public, in its ROW and its structures within the ROW. Nevertheless, Ohio cities and villages should review the revisions to ORC Chapter 4939 as well as existing federal law applicable to small cell wireless facilities. It is all but certain that Ohio municipalities will see a dramatic increase in the number of applications for small cell facilities, and they should understand their authority to review those applications, along with the limits of that authority.

William Hanna is a partner, and Brendan Healy is an associate in the firm's Public Law Services Group.