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Yes. Federal safety regulations enforced by the Federal Communications Commission govern both radiation frequency exposure limits (47 CFR §1.1310) and effective radiated power limits (47 CFR §22.913).
Radiation frequency exposure limits measure the specific absorption rate (SAR) in human tissue resulting from the operation of a radio signal at a given frequency for a particular duration. These rules also define how to measure the SAR for a particular antenna.
Effective radiated power (ERP) limits directly limit the power emitted from radio antennas operated for cellular services. It is important to note that these regulations describe both a base ERP limit and an elevated ERP limit for which an operator can qualify depending on the environment where the antenna is located. These rules also define how to measure the ERP for a particular antenna.
Under Federal law, routine environmental evaluation for RF exposure is required for transmitters, facilities or operations that are included in certain categories of facilities. These categories include equipment used for cellular communication when the facility is installed below 10 meters above ground level to the lowest point of antenna and the total power of all channels is greater than 1000 W ERP.
Yes. Under Federal law, there is an express preemption provision in 47 U.S.C. §§ 253(a), (d), authorizing the FCC to pre-empt "any [local] statute, regulation, or legal requirement" that "may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service." Likewise, as described in 47 U.S.C. § 332 (c) (7), Congress intended that the FCC have exclusive jurisdiction over disputes regarding RF emissions. See N.Y. SMSA Ltd. P’ship v. Town of Clarkstown, 603 F. Supp. 2d 715 (S.D. NY 2009). In the Clarkstown case, the Court found, “a town plainly may not impose separate, stricter certification requirements for wireless technology than those set forth by the FCC.
Federal law has preempted the field of technology authorization and station licensing, and there is no room for state and local authorities to regulate in these areas.”
No. Even under the most restrictive form of the Governor’s Executive Order, “essential infrastructure” was exempt from the Stay at Home requirements. Essential Infrastructure was defined to include, “internet, video, and telecommunications systems (including the provision of essential global, national, and local infrastructure for computing services, business infrastructure, communications, and web-based services).” Based on this language, the on-going deployment of small cell antennas by telecommunications carriers did not violate the former Executive Orders and is permitted to continue.
Next, we can look at State and Federal telecommunications law. The FCC has interpreted Federal law to hold the deadline for final action on permit applications may expire notwithstanding a putative moratorium. In other words, if the Village fails to take final action before the “shot clock” expires, it is subject to legal challenge and the corresponding expenses. For the State, we look at the Illinois Small Wireless Facilities Deployment Act, 50 ILCS 840/1, et seq. The Act is the State law which governs how local governments license or permit the erection of small wireless facilities within their jurisdiction. The Act does not permit a local government to adopt a moratorium, which is a temporary or permanent refusal to accept applications for permits. The Act provides for a strict timeline by which a local government must normally review and respond to a permit application. For example, within 30 days after receiving an application, the Village must determine whether the application is complete. Additionally, an application to collocate a small wireless facility must be processed within 90 or 120 days, depending on whether a new utility pole will be erected. The Act does permit the Village to delay action on permit applications in limited circumstances, including a local, State, or federal disaster declaration or similar emergency that causes the delay. 50 ILCS 840/15(d)(10)(B).
Based on the information provided above, here is a summary of how small wireless device construction can continue during the pandemic:
A) Carriers who already have permits may perform construction to exercise the rights granted by those permits;
B) Carriers may continue to submit applications for new small wireless facility installations;
C) The Village will exercise its authority to review the applications under its locally adopted regulations which are not inconsistent with the Act; and
D) The Village will process permit applications as it normally does. A permit official may delay final action on a permit application if the delay is caused by a local, State or federal disaster declaration or similar emergency. The delay described above should not be an indefinite delay, but only what is necessary to permit staff to review the application in light of the restrictions in place on the Village’s employees during the current emergency.
No. In October 2014 the FCC issued a Report and Order which modified its rules in a manner designed to accelerate broadband deployment by changing wireless facilities siting policies. In the Report and Order, the Commission expressed:
We adopt measures to refine our environmental and historic preservation review processes under NEPA and NHPA to account for new wireless technologies, including physically small facilities like those used in DAS networks and smallcell systems that are a fraction of the size of macro-cell installations. In contrast to the large-scale antennas and structures that our review processes were designed to address, these smaller antennas (and their associated compact radio equipment) can operate on existing short structures such as utility poles as well as on rooftops or inside buildings. As described in detail in the Executive Summary and in Section III, we expand an existing categorical exclusion from NEPA review so that it applies not only to collocations on buildings and towers, but also to collocations on other structures like utility poles. We also adopt a new categorical exclusion from NEPA review for some kinds of deployments in utilities or communications rightsof-way. With respect to NHPA, we create new exclusions to address certain collocations on utility poles and other non-tower structures. We take these steps to assure that, as we continue to meet our responsibilities under NEPA and NHPA, we also fulfill our obligation under the Communications Act to ensure that rapid, efficient, and affordable radio communications services are available to all Americans.
In its implementation of the Report and Order in 2016 the FCC executed an amendment to the National Programmatic Agreement for the Collocation of Wireless Antennas (“NPA”) which expanded the categorical exclusions from Section 106 review under NEPA. Based on the Report and Order and the Amended NPA, some small wireless antennas can be installed without first being required to complete Section 106 review.
Yes. In 2018 the State of Illinois enacted the Small Wireless Facilities Deployment Act, 50 ILCS 840/1, et seq. (the “Act”). Section 40 of the Act expresses the General Assembly’s intent to preempt local control by stating a home rule unit may not regulate small wireless facilities in a manner inconsistent with this Act. In relation to regulating the location of a small wireless facility, Section 15(d)(3) of the Act states:
Subject to paragraph (6), an authority may not require the placement of small wireless facilities on any specific utility pole, or category of utility poles, or require multiple antenna systems on a single utility pole; however, with respect to an application for the collocation of a small wireless facility associated with a new utility pole, an authority may propose that the small wireless facility be collocated on an existing utility pole or existing wireless support structure within 100 feet of the proposed collocation, which the applicant shall accept if it has the right to use the alternate structure on reasonable terms and conditions and the alternate location and structure does not impose technical limits or additional material costs as determined by the applicant. The authority may require the applicant to provide a written certification describing the property rights, technical limits or material cost reasons the alternate location does not satisfy the criteria in this paragraph (3).
Based on this statute, the Village has limited control over the location where a carrier can install a small wireless facility.
We will require an environmental assessment shall be submitted in accordance with the FCC under 47 CFR § 1.1307 - ACTIONS THAT MAY HAVE A SIGNIFICANT ENVIRONMENTAL EFFECT, FOR WHICH ENVIRONMENTAL ASSESSMENTS (EAs) MUST BE PREPARED, for new communications facilities, and for existing communications facilities to which modifications to existing antennas or associated equipment is proposed, unless the facility and transmitter are granted exemptions by the FCC. 8-6-4 (D), (6), (k)
Before a permit is issued, a written affidavit must be submitted and signed by a radio frequency engineer certifying the communications facility’s compliance with applicable Federal Communications Commission (FCC) rules and regulations relative to radio frequency emissions, as well as technical data such as the frequencies in use, power output levels and antenna specifications, reasonably necessary to evaluate compliance with maximum permissible exposure levels set by the FCC, as well as a monitoring plan. 8-6-4 (D), (l)
We will require testing within 30 days of installation, and then quarterly, reports showing continuing compliance with FCC radio frequency emission limits including field testing at various points around the communications facility. 8-6-20 (E), (F), and (G)
We will be authorized to revoke a permit if the communications facility is found to have been in violation of FCC radio frequency emission standards and the Telecommunications Provider, after becoming aware of such violation, fails to shut-down or otherwise cure the violation within three (3) calendar days. Additionally, the amendments declare that facilities which exceed FCC radio frequency emissions are a public nuisance which may be summarily abated by the Village and fines assessed. 8-6-11 (A), 8-6-20 (F)
We will require camouflaging in the downtown business districts and historical areas of town. 86-15 (H) (3)
We will prohibit wireless facilities from being located closer than 300 feet from a school. 8-6-15 (A) (6) (d) (1)
Federal law grants a private right of action to people who are injured by reason of a common carrier’s acts or omissions which violate the FCC’s safety regulations. Not only does a resident have the right to sue for relief from his/her injuries, but the law grants attorneys’ fees if the resident prevails. Below is the complete language of 47 USC §206:
In case any common carrier shall do, or cause or permit to be done, any act, matter, or thing in this Act prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this Act required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this Act, together with a reasonable counsel or attorney’s fee, to be fixed by the court in every case of recovery, which attorney’s fee shall be taxed and collected as part of the costs in the case.
State Senator Suzy Glowiak Hilton (24th District) filed legislation in January to create a State 5G Task Force to identify any major health risks associated with the proliferation of 5G infrastructure. Although a subject matter hearing was held, the legislation has not proceeded and no task force has been organized by State government.
The Village has established a webpage dedicated to 5G wireless information. For those who want more information on the safety issues, the FCC has an RF Safety FAQ page, which we will post a link to on the Village’s website: https://www.fcc.gov/engineering-technology/electromagnetic-compatibility-division/radio-frequency-safety/faq/rf-safety#Q6