Update on Small Wireless Facilities ordinances
Wireless Facilities Deployment Act, codified at SC Code Section
58-11-800 through Section 58-11-930, became effective on September 29, 2020.
The law substantially modified the ability of local governments to regulate the
deployment of small wireless facilities within the public right-of-way. Many
municipalities have already adopted local ordinances regulating these
deployments. Because of the changes brought about by the new law, cities and
towns may need to update these existing ordinances.
The Municipal Association has prepared and is engaged in a final
review of the revised model ordinance that incorporates the provisions of the new
law. The Association is awaiting final comments on the proposed revised model
from the small wireless industry and will release the revised model as quickly
as possible once those comments are resolved.
In the meantime, contact Eric Shytle, general counsel for
the Municipal Association, at email@example.com
or 803.933.1214 to discuss questions or offer comments on small wireless
deployments subject to the law.
As part of the ongoing move to 5G networks, telecommunications companies are deploying small wireless facilities. These are low-powered wireless access points, offering high data transmission rates and faster data for users than has been available through traditional cell towers.
The improved speed of the facilities comes with limited range, however, so there will be many of them positioned on utility poles in high-demand areas. They are likely to appear in densely populated areas, like downtown districts, or in areas with high periodic demand, like beaches or football stadiums.
Telecommunications companies have pushed for preemptive laws and regulations at the federal and state level to help them deploy these facilities. In South Carolina, the Small Wireless Facilities Deployment Act took effect in September 2020. The new law preempts most local control over deployment within municipal rights-of-way. Even so, there are still several proactive steps cities and towns can take using the new model ordinance distributed by the Municipal Association of SC.
What’s in the new law?
The Small Wireless Facilities Deployment Act requires municipalities to allow the deployment of such facilities within their rights-of-way on certain conditions:
- Local land use rules must treat small wireless facilities as a permitted use, subject only to administrative review.
- The municipality must approve or deny applications for the facilities within 60 days. They must also approve or deny applications for new, modified or replacement poles within 90 days.
- The law limits municipal fees and rates charged for the installation and maintenance of small wireless facilities.
- The law allows municipalities to enforce provisions that impose reasonable aesthetic, stealth and concealment requirements on small wireless facilities. Municipalities may also have different — and more stringent — rules for decorative poles within design districts, historic districts, and underground utility districts.
Changes from the previous model ordinance
In general, the new law is consistent with the Association’s previous model ordinance. The law also allows municipalities to enforce regulations on the appearance of small wireless facilities, as long as those rules comply with the law.
Many local ordinances already in effect have aesthetic requirements that will be considered compliant with the new law. However, two key changes will likely require local action:
- Municipalities must identify and designate design districts, historic districts, and underground utility districts by official action. Many already recognize design districts and historic districts through zoning ordinances, but they may not have not officially designated underground districts, and will need to do so.
- Previous law — and the model ordinance — exempted those retail telecommunications services who pay business license taxes under SC Code Section 58-9-2220 from paying several fees for small wireless facilities. The exemption covered application, attachment and occupancy fees. The new law removes this exemption, so municipalities may now charge the full fees and rates permitted by the law.
Local actions required
The Municipal Association has released a new model ordinance for small wireless facilities. Municipalities that adopted the prior model ordinance should plan to repeal their existing ordinances and to replace it with the new version.
The revised model ordinance gives cities and towns a method for designating design, historic and underground utility districts. It also reflects the fees and rates allowed by the new law and removes the exemption for retail telecommunications services.
Municipalities that adopted local ordinances that they did not base on the model ordinance should review those ordinances to ensure their ordinance complies with the law. Given the growing importance of small cell facilities, those that have not yet adopted any regulations should consider using the model ordinance.