Small cell wireless transmitters are low power, short range transmission systems designed to cover a much smaller geographic area than traditional cell towers, but they fill in gaps in coverage and add capacity to existing cell tower networks without building additional large cell towers. Small cell wireless transmitters will be used to support 5G (5th Generation) cell phone technology. They will use higher frequencies than 3G,4G, and LTE transmitters and will be able to transmitter data at much higher speeds than those technologies. 5G will supplement, not replace existing cell phone technologies and will allow much wider use of mobile internet devices.
In advance of the deployment of 5G, the industry began lobbying at the state and Federal level to impose laws and regulations that limit the ability of local governments to regulate small cell transmitters through zoning and other types of regulation. The industry also lobbied for laws and regulations requiring governmental entities with utility poles within their right of ways to allow small cell transmitters to be placed on existing utility poles, traffic signal poles, and light poles.
New Mexico adopted such a law in 2018 known as the Wireless Consumer Advanced Infrastructure Investment Act. That law mandates time limits or “shot clocks” that cities and counties must follow in reviewing applications to install small wireless transmitters and limits the application fees that may be charged by local governments, and the rates that local governments may charge for the continued use of right of ways in which small cell transmitters are located.
In October of 2018 the Federal Communications Commission adopted FCC Order 18-133 which became effective January 14, 2019. Like the NM statute, it has “shot clocks” that local governments must meet in reviewing applications to install small wireless technology. They are generally shorter than those contained in the NM statute, however they do not have a “deemed approved” provision meaning that the application is not “deemed approved” if the local government does not act within the prescribed time period. The shot clocks in the NM law do have a deemed approved provision.
The FCC Order limits application fees and annual rates for use of right of ways. It also requires local governments to allow the use of its right of ways and poles for the placement of small cell wireless transmitters.
The FCC Order, the NM law, and this ordinance address two categories of applications for installation of small cell wireless transmitters. First are transmitters which are proposed to be installed on “an existing utility pole or on an existing tower or other wireless support structure.” For these, the FCC Order imposes a 60 day shot clock and the NM law imposes a 90 day shot clock. Second, are applications for installation of small cell wireless transmitter on “on a new or replacement pole.” The FCC shot clock is 90 days and the NM law shot clock is 150 days. The ordinance also adds installations on “a building or structure other than an existing utility pole or tower.” The ordinance addresses the differences in the Federal and state shot clocks by stating that the City must act on an application within the applicable FCC imposed shot clock. If the City does not act within that shot clock, the applicant’s remedy would be to ask for a court injunction. However, if the City does not act within the NM law imposed shot clock, the application is deemed approved.
This ordinance also address a third category of applications that are not covered by the FCC Order or the New Mexico law, but which are covered by an existing Federal law, the Spectrum Act of 2012. These are “eligible facilities requests.” An eligible facilities request is an application “for modification of an existing tower or base station involving the collocation of new transmission equipment, removal of transmission equipment, or replacement of transmission equipment; that does not substantially change the physical dimensions of such tower or base station.” The Spectrum Act imposes a 60 day shot clock on these applications so that is the shot clock contained in the ordinance.
The ordinance sets the following application fees:
-Eligible Facilities Request application fee is $100 for each Eligible Facilities Request.
-Small Cell Wireless installation application fee is $100 for each of up to five (5) small wireless facilities and $50 for each additional small wireless facility whose collocation is requested in a single application.
-The application fee for installation of a new or replacement utility pole located in a right-of-way is $500.