A recent news article by CBS4 in Denver shows a power supply unit for 5G that was recently installed in Aurora, CO. It’s roughly 5-foot tall and I venture to guess that most homeowners would not want this device at the front of their home.
The cellular companies have convinced the FCC that they need carte blanche authority to place small cell sites where they are needed, and the FCC gave them this authority in September 2018. The FCC order reversed the historic process where cell site placement was under local control. In asking for a national preemption of local rules the cellular carriers argued that they needed blanket authority to put cell sites anywhere in public rights-of-way if the US is to win the 5G war.
Communities all over the country have pushed back hard against the FCC ruling. Numerous cities and states have filed lawsuits against the FCC ruling. Courts have chipped away at that ruling and in August of this year, the US Court of Appeals for the D.C. Circuit ruled that the FCC couldn’t preempt local ordinances concerning environmental and historic preservation reviews of cell site placement. A few cities have passed ordinances that would stop deployment of small cells due to concerns about health, property values, or aesthetics.
When the wireless companies first started deploying pole-mounted small cell sites some of the deployments were major eyesores. Deployments included placing large boxes and antennas and power supplies in the air connected by a maze of live wires. The wireless carriers quickly cleaned up their act in terms of hideous deployments, but in looking at the deployment in Aurora they still have a way to go. One interesting thing about this deployment is that the device sits on the ground. When this order was issued the press covered this as an order about placing devices on poles and they missed that the FCC gave the big carriers the right to put devices anywhere in the public right-of-way.
Historically, carriers would seek homeowner permission to install cabinet-sized boxes. More often than not they would find a place in a neighborhood where the cabinets and boxes were somewhat hidden from sight. Even though the process required voluntary participation by homeowners, it worked well. Sometimes carriers had to go to the city when they were unable to find a location for a needed cabinet, but in most cases, the carriers and the public worked out a solution.
It seems unfair that the first time that a homeowner finds they are getting a large cabinet in their yard is during the installation process. Just because carriers have the right to place anything related to small cells in the right-of-way doesn’t mean they should callously do so without communicating with the public. In this case, the wireless carrier probably had alternatives like placing the needed electronics in an underground vault instead of the large cabinet. That solution would cost more but would eliminate animosity with residents.
That raises an interesting regulatory question. In the long-run regulations are driven by what the public finds acceptable or unacceptable. The public in Aurora is not likely to be upset by this one small cell deployment, but imagine if there are 200, or 500 or 1,000 identical cabinets placed around the city. When carriers deploy solutions that the public doesn’t like, a city is going to fight back against the unpopular practices. New ordinances for small cells are likely to end up in court, and at some point, a judge will decide if the Aurora small cell device somehow crosses the line.
The FCC 5G order is interesting in that it swings to the far extreme of the regulatory pendulum by ruling that the wireless carriers have blanket authority to place any device anywhere they want. Over time, whether done by a future FCC, by the courts, or by Congress, rulings at the extreme fringe of the regulatory pendulum inevitably swing back towards the center. It’s almost inevitable over time that cities will get back more say about the aesthetics of small cell placement.