The Botetourt Board of Supervisors and Planning Commission got a warning from County Attorney Michael Lockaby when they met in a join work session last Tuesday afternoon— the county needs a new ordinance to deal with wireless communications facilities such as cell towers.

The location of cell towers has produced some contentious public hearings in the county the past several years, but that may change with new federal regulations.

“The FCC (Federal Communications Commission) has essentially said, ‘Localities, cell companies can do whatever they want,” Lockaby told the supervisors and commissioners.

He said there are some things the county can put into place to help regulate “wireless facility zoning,” but that will require a completely new ordinance.

He said the county is going to see a lot more opportunities for wireless, but also for other broadband practices, too.

“Applications are going to come faster rather than slower,” he said before recommending the Planning Commission and zoning staff start working on a new ordinance, perhaps with the county’s Broadband Commission.

Lockaby told the joint workshop that the Virginia General Assembly established new state rules for wireless communication facilities that went into effect July 1. In September, the FCC overturned those rules; and on January 14, 2019, the new FCC changes for wireless facilities go into effect.

What’s driving the FCC changes is 5G, the newest version of wireless capabilities.

According to the National Association of Counties (NSA), the FCC proposal accelerates next-generation 5G wireless deployment, including controversial provisions limiting local control of wireless telecommunications infrastructure (towers).

It also limits fees local governments can charge providers and narrows the review process for municipalities to adequately assess 5G deployment applications.

The FCC’s order, when it goes into effect in January, limits fees local governments are currently able to assess on telecommunications companies for the placement, construction or co-location of new wireless service facilities.

Additionally, the order only provides local governments 60 days to evaluate applications from wireless companies to attach 5G Small Cells to existing structures and 90 days to review applications for equipment on entirely new structures.

These two new “shot clocks” include “all aspects of and steps in the siting process,” including mandatory pre-application procedures, public notice and meeting periods, and construction permitting. The shot clock would begin upon submission of an application, whether or not the application is complete.

It also limits the application fees for all small wireless facilities to $500 for up to five sites, and $100 per site for each site thereafter.

The order also limits recurring fees for small cells in public rights-of-way, to a “reasonable approximation” of the locality’s “objectively reasonable costs” for maintaining the rights-of-way, which must be no higher than fees for similar actors.

The FCC defines reasonable recurring fees to be limited to $270 per site, per year. Local governments are expressly prohibited from recovering any cost not directly related to rights-of-way maintenance.

The FCC also finds gross revenue fees to be presumptively unreasonable and existing agreements are not grandfathered.

The FCC order also limits allowable local aesthetic requirements, including minimum spacing requirements, to those that are “(1) reasonable, (2) no more burdensome than those applied to other types of infrastructure deployments and (3) published in advance.” The FCC notes that undergrounding requirements for wireless facilities would constitute an illegal prohibition of service by a local government.

The new FCC plan is designed to cut roughly $2 billion in administrative fees nationwide and stimulate additional investments by wireless carriers.

While local governments expressed concerns that the language in the order significantly limits local governments’ ability to properly regulate wireless telecommunications infrastructure deployment, the order was not changed.

“By narrowing the window for evaluating 5G deployment applications, the FCC order would effectively prevent local governments from properly examining the impact that construction, modification or installation of broadcasting facilities may have on public health, safety and welfare of the local community,” the NAC stated.

If approved at the FCC’s September 26 open meeting, the new regulations would go into effect 30 days after publication in the Federal Register. Counties would then face enforcement action if wireless providers or other small cell applicants challenge them in court based on noncompliance with the above requirements.

The FCC said an economic analysis suggests the new regulations will eliminate $2 billion in fees while stimulating $2.5 billion in small-cell deployments.

The FCC has asserted the new rules will help extend small-cell service to an additional 2 million homes across the US— 97 percent in rural and suburban communities.

The Planning Commission authorized staff to begin working on rewriting the county’s ordinances that regulate wireless communications and cell tower regulations and placement.

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