Small cells, also known as small wireless facilities, have been appearing on streetlights, utility poles, and other vertical infrastructure in the public rights-of-way with regularity over the past decade. For local governments, the legal framework governing small cell agreements is dense, and the decisions made in structuring those agreements carry long-term consequences for public infrastructure, municipal finances, and control over the public right-of-way.
What Small Wireless Facilities Are and How They Get Deployed
A small cell or a small wireless facility is often compact telecommunications equipment, at least, when compared against traditional macro facilities. They typically include a small omnidirectional antenna or small panel antennas, often concealed under a radome, and associated radio components, often enclosed in a not-so-small equipment cabinet, mounted to an existing vertical structure such as a utility pole or streetlight. The equipment operates at much shorter range than a traditional macro cell tower and covers a smaller geographic footprint.
Carriers deploy small cells primarily to supplement existing coverage and capacity in dense areas where macro sites are already saturated, or in locations where terrain or building density prevents macro signal from reaching users reliably. Hilly neighborhoods and urban canyons as well as bustling downtowns and suburban corridors where a macro site’s signal cannot penetrate effectively are prime candidates for small wireless deployment. In those circumstances, a small cell placed near users fills coverage gaps and capacity needs that would otherwise persist regardless of how many full-size macro sites exist in the surrounding area.
California’s Right-of-Way Baseline
Before the FCC’s small cell rulemaking, California already had a legal framework giving qualifying carriers and infrastructure companies access to the public right-of-way on favorable terms effectively dating back to the mid-1800’s and the emergence of telegraph poles and lines. Under current law, California Public Utilities Code Section 7901, telephone corporations holding a Certificate of Public Convenience and Necessity (CPCN) or Wireless Identification Registration (WIR) issued by the California Public Utilities Commission (CPUC) have a statewide franchise to use the public right-of-way for their infrastructure. The court in Williams Communications, LLC v. City of Riverside (2003) 114 Cal.App.4th 642 verified that right does not require payment of a franchise fee or other in-kind contributions to the local government for access to the public rights-of-way under existing California state laws.
FCC Small Cell Order 18-133 and the Fee Framework
The FCC’s 2018 Small Cell Order (Order 18-133) further restructured how local governments could regulate small wireless facility deployment, with particular consequences for the fees charged for access to government-owned vertical infrastructure such as streetlights and utility poles.
The FCC established a safe harbor rate of $270 per small wireless facility per year for those attachments. Note that figure was set in 2018 and has not been formally adjusted by the FCC since. Local governments holding to the 2018 dollar amount have effectively accepted a reduction in the real value of those fees each year as inflation accumulates. Escalating the rate at approximately three percent annually is a reasonable approach to preserving its value over time.
The safe harbor attachment fee amount provides an administratively convenient minimum. However, a state or local government may charge above that amount for attachment to its vertical infrastructure in the public rights-of-way if it can demonstrate that the charge is a reasonable approximation of its actual costs, that only objectively reasonable costs are factored in, and that the fee is no higher than what comparably-situated competitors are charged in similar circumstances. The Ninth Circuit upheld the FCC’s fee framework in City of Portland v. United States, 969 F.3d 1020 (9th Cir. 2020).
The Electrical System Is a Separate Matter
The FCC’s Small Cell Order does not require local governments to provide access to the electrical systems within or on their vertical infrastructure. The wiring and power systems that may operate a fixture like a streetlight luminaire or its photocell are separate from the physical pole to which a carrier attaches. Extending access to those systems creates complications, including potential conflicts with preferential governmental streetlight tariffs maintained by investor-owned utilities and effective subsidization of the attacher’s operating costs at public expense. Local governments should address electrical service access directly in the pole license agreement and require attachers to obtain and fund their own separate utility service.
Verifying Who Actually Qualifies to Attach
California local governments should carefully verify whether an attacher claiming rights to enter into a pole license agreement under the FCC Small Cell Order or other applicable law actually holds a CPCN or WIR issued by the CPUC. While the FCC Small Cell Order extends to infrastructure companies who do not usually provide the wireless services, the order did not preempt the CPUC’s ability and right to regulate those infrastructure companies that desire to deploy communications facilities within the public rights-of-way. Those credentials establish threshold eligibility under California’s right-of-way framework. Entering into pole license agreements without confirming that eligibility is a problem that could be difficult to unwind later.
Building a Small Cell Agreements Framework That Holds Up
Local governments that manage small wireless facility deployments most effectively tend to share a few structural practices.
A standardized pole license agreement form, approved and formally adopted by the city council, county board of supervisors, or other governing body, and required of all qualified attachers without further negotiation, provides a consistent and defensible baseline for every attachment.
Design standards, permitting requirements, and related regulatory conditions belong in a separately adopted wireless land use and zoning policy or ordinance. Layering those provisions into the pole license agreement creates redundancies, internal conflicts, and ongoing maintenance problems when either document is updated.
A partially executed pole license agreement should function as a component of the small wireless facility permit application, serving as an application prerequisite rather than a substitute for permitting. Attempting to replace the permitting process with the license agreement strips the agency of land use review tools it would otherwise retain.
Local governments that build this framework before applications arrive are in a substantially stronger position than those piecing policy together under pressure from a carrier’s legal team. If your agency is updating its small wireless facility policies or managing an uptick in attachment requests, contact Coastal Tower Law to discuss how we can help you structure an approach that works.