Towns Face Litigation and Unsightly 5G “Stealth” Poles

The promise of precise 5G small cell locations and specific, unattractive designs has led some towns astray.

Several New Jersey shore towns are now facing litigation and an uncertain future

 As the deployment of 5G networks gathers steam across the state, several consulting firms have emerged as purported experts in this field. They promise to utilize their long held experience to guide municipalities through the challenges and uncertainties of 5G build outs.

A concerning practice has recently emerged: Some 5G consultants promise that a municipality may dictate precise locations for 5G small cell antennas, and that a wireless carrier must utilize large unsightly concealment poles for every single 5G antenna site.

These are misleading and unenforceable promises, in direct conflict with federal laws and regulations.

5G deployments are unlike previous deployments. They involve the use of large numbers of small cell antennas on poles and similar structures in the public rights-of-way. They also involve an extensive intersection of local, state and federal laws and, thus, are unfamiliar to most municipalities.

For this reason, local governments often place complete trust in their 5G consultants to what is in the best interest of the town. A town may unwittingly heed a consultant’s recommendation to adopt a 5G ordinance without closely examining its validity, enforceability and reasonableness.

 In truth, not every 5G consultant has a town’s best interests at heart. Some clearly intend to peddle their own stealth pole designs and will push through a 5G ordinance designed to force carriers to purchase consultant’s own poles.

To build momentum for ordinance adoption, the consultant may sweeten the pot among anxious council members and residents by mapping out precise locations where carriers may place their 5G equipment, completely disregarding that such practices run in direct contradiction to the 1996 federal Telecommunications Act and the 2018 FCC Small Cell Order.

On top of this, the consultant may also require that carriers pay application consulting fees orders of magnitude above what is permitted by the safe harbor limits established by the Small Cell Order. The FCC allows for fees of $100 per antenna and $1000 for a new pole. In one instance, an adopted 5G ordinance requires a $7500 escrow per small cell site in addition to the $1000 application fee.

This could lead to multiple negative outcomes, such as mismanagement of FCC shot clock timeframes, resulting in litigation. The subsequent rushed adoption of a small cell ordinance that imposes blanket design and location restrictions, as well as application fees vastly in excess of the FCC safe harbors, will likely result in an amended complaint which will deepen the case against the borough.

Several towns along the New Jersey Shore heeded just this type of guidance and are now left in a very vulnerable position, exposed to litigation, and in violation of federal law on multiple levels. They accepted the guidance of “experts” and adopted practices which are in direct conflict with federal laws.

They also may be left wondering if they really want enormous steel “stealth” poles all over their town instead of plain wooden utility poles for small cell sites. In order to accommodate all of the antennas, radios, cabling and other equipment, a “stealth” pole must be of a minimum circumference to contain it all. This results in large metal poles with a huge footprint, much larger than that of a standard utility pole. These “concealed decorative” poles will never fade into the background of a community and streetscape.

A utility pole perhaps in a driftwood design pattern is a potential alternative to such imposing steel structures everywhere. This and other options and alternatives are best worked out between municipality and carrier, with a reliable telecommunications consultant providing guidance to the town.

Hoplite Communications is a New Jersey company providing expert telecommunications consulting services to client jurisdictions in the state and beyond.