Setting the Record Straight
The City of Tucson is required by the laws of the State of Arizona to approve small cell pole installations in established rights-of-way.
This requirement is detailed in the Arizona Revised Statutes: A.R.S. 9.591 though A.R.S. 9.599.
This law dictates to all jurisdictions how small cell applications in the right-of-way are to be processed.
The Department of Transportation and Mobility (DTM) reviews all small cell applications for adherence to the requirements and limitations prescribed under the State law. State law requires that all small cell pole installations meet all adopted safety codes.
In essence, when a small cell application is received, the City shall approve the installation of the small cell pole as prescribed by State Law.
1. When a complaint comes in with health concerns regarding the small cell.
As the City of Tucson does not and cannot, under state and federal law, regulate small cell wireless technology based on health concerns, the following Federal and World Health Organization resources are provided to answer questions:
2. Who installs the poles and what is their purpose?
The small cell poles currently being installed in the City are from AT&T and Verizon. At this point, AT&T is installing only 4G small cells. It should be anticipated that these will be upgraded to include 5G. Verizon installs both 4G and 5G small cells. The purpose of these small cell poles is reported to be for in home WiFi and streaming services and to provide a first responder private communication network called FirstNet.
3. How does the state regulate small cell poles?
In 2018, the Arizona State Legislature adopted Chapter 5 - PUBLIC UTILITIES, Article 8 - Use of Public Highways by Wireless Providers (A.R.S. 9-591 thru 9-599). This law removes local jurisdiction discretionary approval of the placement location of small cell poles in City owned right-of-way, limits the fees that can be charged, and establishes a “shot clock” whereby if the City does not approve a location within a specified time frame, it shall be automatically approved. Small cell poles on private property and publicly owned property, exclusive of City owned right-of-way, are not governed under this State law.
4. How are small cell poles regulated by the City?
Small cell poles are processed through the Department of Transportation and Mobility (DTM).
5. How do I find out about existing and planned poles in my neighborhood?
On the small cell pole web page is a link where you can view the street light map that includes planned and in place small cell poles.There are two symbols used to identify small cell pole locations on the street light map; the symbols represent locations that indicate “Small-Cell Reserved” and “Small-Cell Pole”. The “Small-Cell Reserved” sites are added when a cellular company submits plans for a small cell and pays their initial fees. This status remains even after a permit has been issued. The actual construction start is often six months to a year or more after. This is largely due to a shortage of material and or contractors to perform the work. The “Small-Cell Pole” indicator is added once construction is scheduled to start.
The law does not require the City to “approve applications” (as in all applications? No, it does not). It requires the City to process them. The processing is free to end in denial.
Only 12 pages, easy reading, plain English, we highly recommend reading it yourself. It seems unlikely our City staff and elected representatives have read it.
This law does not dictate to all jurisdictions! Title 9 is only relevant to cities and towns (Tucson). Title 11 is for counties (Pima County).
DTM must also review that it complies with federal law, such as NEPA and use of minimum power, and ensuring public safety and protecting property values.
In essence, if a small cell is found not to comply with NEPA, or to endanger public safety and property values, then it shall be denied. The City does not appear to concern itself with requirements of state law unless it involves as little work as possible. Monopole permits for instance, require that all equipment be mounted to the pole. Yet we have ground mounted utility boxes littering the streets and the City is not charging an additional amount for that ground mount.
We also have in that law, a requirement that facilities be operational within 180 days, but the city does not follow up. It is unclear at this juncture if the facilities undergo a post-build inspection. we did a records inspection for all small cells in Tucson, and none have post-build inspection documents. When asked, the reply was a simple "I don't know".
Again, the state law in no way demands that the city approves all small cells, even if it complies with the state and federal law. It cannot deny one for no reason, but there are numerous considerations for the denial of a permit.
1. The City has the authority to regulate operations for any reason it chooses.
The City cannot regulate the placement modification or construction of RF emissions based on environmental effects. It can, however, regulate the operations. The reason it cannot regulate radio frequency is because that is the expressed duty of the FCC and local authorities do not have the faculties to consider the intricacies of such a duty. The FCC auctions frequency bands. We're OK with that. We are asking that the City regulate the operations of sWTFs -on whatever basis they choose- and, among other things, cap the Effective Radiated Power to -85dBm, which is perfect telecommunication service and 5 bars on a cell phone, as is required by federal law.
Let's be clear, we require the regulation of power NOT frequency. Verizon/AT&T can use whatever frequency they do so desire, used at -85dBm (minimum power) and co-located on existing infrastructure...
2. Telecoms are installing redundant infrastructure and it leads to ubiquitous surveillance.
From where or from whom was this report given to the city? sWTFs will not improve your home WiFi. WiFi and wireless broadband are not the same. Wireless broadband is not subject to regulatory preemption in the federal law. The State law does not preempt, (nor attempt to preempt) this law. (The state law was passed to provide general regulatory terms for the new technology where it is permissible, it only provides that facilities are not denied for no reason, that telecommunications are provided, and a blanket moratorium is not instituted.) Home WiFi will not change or improve (unless we get Fiber To The Premises -FTTP) The only change will be to cellular data services. This may be desirable in commercial districts, but it is unnecessary in neighborhoods. To not be able to make a phone call in the major streets is quite rare so 1st responder needs are not endangered by regulation. We do not need a communication pole every 100-500 feet. If police really need such a thing there's a handy device called a hotspot.
3. The state has decided it will not allow a moratorium or for permits to be denied for no reason and has taken a stance to promote telecommunications service.
A.R.S. Title 9 Chapter 5 has done no such thing as to "remove local discretionary approval" we have yet to receive a direct citation as to which portion of the law they believe to be so extreme and have no reason to believe it exists after reading and consulting with experts. Local authority is expressly preserved. (more info coming soon). It is true that there is a shot clock and automatic approval. So, we must be quick about denying permits. That's why is best for everyone to get an ordinance that will further dictate where facilities will not go and under what conditions one will be permitted. Will someone please tell Steve K. that TEP poles are private property, and he cannot force them to agree not to say no to co-locations?
4. Ok, so how are small cell poles regulated by the City?
-if we ever get an answer to this question other than "we just approve them all" it will be posted.
5. Why doesn't the City notify property owners if a pole is planned for their neighborhood?
People cannot be expected to check every few weeks if there is a pole planned for their neighborhood. A notification should be sent to property owners so that they may compel the city to deny the permit within the shot-clock timeframe. The City has no reason to deny this to property owners.
This map is very good and useful and is a great place to start. For a guide on how to use this page, See here (coming soon)
If a permit is granted, then construction must be completed within 180 days, unless there is a lack of commercial power to the site or if there is an extension agreement. We have not seen any written evidence of the latter. A shortage of material and contractors is an invalid excuse. If this is common practice it is illegal according to that pesky state law, Title 9 Chapter 5. When is it finished? We have no record of post build inspections, currently, it is incognita.
Additional Independent Resources: