At the direction of the mayor and council, Town of Fountain Hills staff is continuing efforts to amend the town ordinance related to the regulation of wireless facilities. The town’s stated goal is to protect the natural environment and aesthetics of the town, establish a fair application and review process for wireless providers and operate consistent with federal and state law.
What Is wireless cellular technology and 5G?
Wireless cellular technology is a network of transceivers that allows users to transmit voice, data and other types of content on cellular phones and other devices.
Wireless providers have rolled out several iterations of wireless cellular technology over the years. The latest iteration of that technology is known as 5G. According to PCMagazine.com, “5G is the fifth generation of wireless cellular technology,” offering higher upload and download speeds. “By 2030, 5G services will become mainstream and are expected to range from the delivery of VR (virtual reality) content to autonomous vehicle navigation.”
Past generations of wireless cellular technology relied mainly on antennas mounted on cell towers, buildings, and other structures to pass wireless signals to end users. 5G technology, on the other hand, relies mainly on “small cell” wireless facilities mounted at closer intervals, usually on utility or light poles in the right of way, with more antennae providing faster speed.
What does the law say about regulating wireless cellular technology?
Federal law provides that local regulations may not prohibit or have the effect of prohibiting the provision of personal wireless services, 47 U.S.C. § 332(c)(7)(B). Local regulations that violate this provision are preempted and are unenforceable. City of Portland v. United States, 969 F.3d 1020, 1033–34 (9th Cir. 2020). Federal Communications Commission regulations and orders provide additional guidance and establish “shot clocks” that require local governments to approve applications for new facilities and modifications of existing facilities within a set period of time, docs.fcc.gov/public/attachments/DOC-353962A1.pdf.
State law prevents cities and towns from regulating small cell wireless facilities that are deployed in the right-of-way. In 2017, the Legislature passed, and the governor signed, House Bill 2365, which allows wireless providers to install, operate and maintain small wireless facilities and related equipment in the city and town rights-of-way and public easements. H.B. 2365 also established shot clocks shorter than those in the FCC’s regulations and generally allows for only administrative review of applications and on a limited basis, A.R.S. § 9-591 et seq.
What is the town doing about wireless cellular and 5G technology?
In response to public concern regarding wireless cellular and 5G technology, town staff reviewed the federal and state regulations to determine what options are available.
Since 2022, town leadership has met with residents on multiple occasions to address these issues. In January 2023 and again in June 2023, the town retained consultants to assist in amending the town’s existing ordinances and processes regarding wireless cellular facilities. Pending consideration and approval of those amendments, the Town Council approved a moratorium that calls upon telecommunications providers and public utilities to cease and desist in the build-out of 5G-enabled small-cell facilities.
Are other cities and towns facing the same issues?
The rollout of wireless cellular technology and small cell wireless facilities is an issue that municipalities across the state and nation have tried to address.
In 2021, a new 5G wireless facility was installed in the right of way in a family’s front yard in the Town of Gilbert. Although the Gilbert Town Council had adopted an ordinance regulating wireless facilities, the new facility was approved because state law requires local governments to allow wireless providers to install small cell facilities in the right of way, abc15.com/news/region-southeast-valley/gilbert/neighbors-concerned-about-5g-cell-tower-in-gilbert.
In November, the Chandler City Council was effectively bound to approve a 65-foot cell tower located in a residential community because of federal preemption over wireless facilities, azcentral.com/story/news/local/chandler/2023/11/04/chandler-forced-to-approve-huge-cell-tower-in-golf-community/71407218007/.
Both examples illustrate the challenges cities and towns face in this area, where local authority to regulate is very limited.
What are the next steps?
The town’s consultant provided a draft ordinance to town staff for review. Consistent with the Town Council’s direction, town staff will work independently to continue refining the draft to integrate it within the town’s current processes. Efforts are underway to ensure that any amendments can be easily implemented and applied by staff.
Development Services Director John Wesley is expected to initiate a discussion with the Planning & Zoning (P&Z) Commission in early 2024 for review of the town’s current regulations and possible modifications proposed by the consultant as refined by staff. It is expected that the Town Council will consider P&Z’s recommendations before the council’s summer recess.