PRIVACY IS AT RISK
The wireless telecommunications broadband expansion has a new horizon in Florida. Wireless telecom is seeing new life with Florida Wireless Expansion Act. The Act augments Florida’s 2017 Advanced Wireless Infrastructure Deployment Act, establishing a process that fosters broadband expansion. There is a new horizon for broadband communications and the use of wireless means of telecommunications. The Legislature passed the Advanced Wireless Infrastructure Deployment Act (Act), established a process by which wireless providers could place certain “small wireless facilities”[1] on, under, within, or adjacent to certain utility poles or wireless support structures within public rights-of-way under the jurisdiction and control of a local government.[2] The wireless telecommunications broadband expansion was the impetus for the passage of the Act was to streamline local permitting regulations in order to facilitate the deployment of fifth generation, or 5G, wireless technology.
In 2019, the Florida Legislature enacted changes that expands the advancement of broadband, or cell wireless telecommunications in Florida. The law, which became effective July 1, 2019, prohibits municipalities or counties from imposing permit fees for the use of public rights-of-way by wireless telecommunications services providers if it had not levied the permit fees as of January 1, 2019. The law makes changes to s. 337.401(3) and (7), F.S., that relate to the use of public rights-of-way and small and micro wireless infrastructure.[3] Counties and cities may authorize any person who is a resident of this state, or any corporation that is organized under the laws of this state or licensed to do business within this state, to use a right-of-way for a utility in accordance with the local government’s rules or regulations.
Pursuing wireless telecommunications broadband expansion heavily involves granting authority to require an initial letter from of a provider showing that the micro wireless facility dimensions comply with the limits. As long as the provider is installing and using the same type of equipment, no additional filing is required. Furthermore, the law creates s. 337.401(7)(i), F.S., stating the requirement that a provider abides by the county’s or local government’s written, objective, reasonable, and nondiscriminatory requirements that prohibit new utility poles used to support small wireless facilities.
The Wireless Expansion Act underscores that the county or local government allowance of above ground structures must be reasonably available to wireless providers for the collocation of small wireless facilities and may be replaced by a wireless provider to accommodate the collocation of small wireless telecommunications facilities. However, a service provider may install a new utility pole in designated areas in a right-of-way if the service e provider is not reasonably able to provide wireless service by collocating. Wireless service providers are allowed to maintain their small wireless facilities in place, provided there is an applicable pole attachment agreement with the pole owner.
The Wireless Expansion Act creates the right of action in that a cause of action may be brought by any person aggrieved by a violation of the right-of-way statute. Any such person may bring a civil action in a U.S. District Court or any other court of competent jurisdiction and the court may grant temporary or permanent injunctions to prevent or restrain violations and direct the recovery of full costs, including awarding reasonable attorney fees, to the party who prevails.
The Wireless Expansion Act also underscores that local governments and counties cannot prohibit, regulate, or charge for the installation, maintenance, modification, operation or replacement of utility poles used for the collocation of small wireless facilities. Also, local governments and counties may not require a demonstration that collocation of a small wireless facility on an existing structure is not legally or technically possible as a condition for granting a permit for collocation on a new utility pole.
The Federal Communications Commission (FCC) interprets and implements certain provisions of federal law, regarding wireless that are designed, among other purposes, to “remove barriers to deployment of wireless network facilities by hastening the review and approval of siting applications by local land-use authorities.[4] These statutory provisions preserve state and local governments’ authority to control the “placement, construction, and modification of personal wireless service facilities” and to manage “use of public rights-of-way,” but they prohibit state and local governments from using certain unreasonable criteria in making such decisions.[5] In a nutshell, the provisions expanding wireless service deployment in Florida are in sync with federal law in that federal law establishes that state and local governments may not establish laws, regulations, or other requirements that prohibit or have the effect of prohibiting the ability of any entity to provide personal wireless services.[6] This new horizon is underscored by the lifting of barriers previously limiting the deployment of cell wireless telecom means.
[1] “Small wireless facility” is defined in s. 337.401(7)(b)10., F.S., to mean a wireless facility that meets the following qualifications: a. Each antenna associated with the facility is located inside an enclosure of no more than 6 cubic feet in volume or, in the case of antennas that have exposed elements, each antenna and all of its exposed elements could fit within an enclosure of no more than 6 cubic feet in volume; and b. All other wireless equipment associated with the facility is cumulatively no more than 28 cubic feet in volume. The following types of associated ancillary equipment are not included in the calculation of equipment volume: electric meters, concealment elements, telecommunications demarcation boxes, ground-based enclosures, grounding equipment, power transfer switches, cutoff switches, vertical cable runs for the connection of power and other services, and utility poles or other support structures.
[2] Chapter 2017-136, Laws of Fla.
[3] “Wireless facility” means equipment at a fixed location that enables wireless telecommunications between user equipment and a communications network. The term includes radio transceivers, antennas, wires, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment. The term includes small wireless facilities. “Small wireless facility” means a wireless facility for which each associated antenna associated is located inside, or could fit within, an enclosure of no more than 6 cubic feet in volume, and all other associated wireless equipment is cumulatively no more than 28 cubic feet in volume.
[4] See FEDERAL COMMUNICATIONS COMMISSION, Comments Sought on Mobilitie, LLC Petition for Declaratory Ruling and Possible Ways to Streamline Deployment Of Small Cell Infrastructure (FCC 2016 Notice), WT Docket No. 16-421, DA 161427, December 22, 2016, at p. 2; 47 U.S.C. ss.253, 332(c)(7), and 1455(a).
[5] 47 U.S.C. ss.253(c) and 332(c)(7)(A).
[6] Under 47 U.S.C. 332(c)(7), “personal wireless services” are defined as “commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services.”
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