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While 5G Technology Offers Innovation, Public Act 365 Strips Municipal Control

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Alexander J. Thibodeau
Foster Swift Municipal Law News
March 25, 2019

Fifth generation wireless technology or “5G” is one of the most talked about innovations in the telecommunications sector in recent years. Although 5G promises to be faster, more reliable, and more consistent than its generational predecessor, its potential impact extends far beyond simply having better cell phone service.

One of 5G’s biggest improvements from 4G is its “latency,” which simply describes the time it takes to send data from one device to another. The newest generation is expected to reduce latency down to around one millisecond, nearly 30x faster than 4G. Although a difference in milliseconds may seem minor, it will have a substantial effect on younger technologies like autonomous driving, smart homes, virtual reality, facial recognition, and remote management.

The 5G network relies on the existence of an interconnected grid of small cell boxes known as “facilities” that provide a direct link to the network. The facilities have a limited range, so the more facilities within a community the better the connection will be. The process of attaching a facility to the grid is known as “collocation.” The goal is to collocate facilities throughout the community to maximize efficiency and guarantee seamless access to the network without dead zones or lags in service.  

To meet this goal, the FCC has ordered a streamlined procedure for placement of small cell facilities. In response to this order, Michigan’s legislature passed Public Act 365 of 2018, known as the Small Wireless Communications Facilities Deployment Act, which took effect on March 12, 2019. Act 365 provides a number of limitations on municipal control of the right-of-way with the goal of encouraging unfettered implementation of the 5G grid.

Act 365 provides a standardized application process, fee limitations for use of municipal infrastructure, and a “shot clock” which sets response times for applications from providers. Further, the Act prohibits exclusive franchise agreements and virtually eliminates municipal discretion for authorizing applications from recognized providers. In effect, local governments no longer have the authority to effectively regulate their public right-of-way.

A great deal of the municipal regulation currently in place for telecommunications providers has been affected by the provisions of Act 365. The Act requires that all ordinances and policies in conflict with the new law be amended by June 9, 2019. Additionally, all contractual agreements beginning after March 12, 2019, must conform to the new rules as well.

All municipalities should consider whether they need to make changes in order to remain compliant. If your local government is unsure whether you are compliant, please feel free to contact Alex Thibodeau or any Foster Swift municipal attorney for an Act 365 compliance review.