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Monday, April 13, 2020

5G Antennas and COVID-19

Recently, a number of Illinois municipalities have received resident requests to place a moratorium on the construction of 5G small wireless facilities during the COVID-19 emergency. The text of the request includes some form of the following language:
We ask that you impose a moratorium on “small cells” and other wireless infrastructure permits process and deployment until the COVID-19 emergency is over. 
The wireless providers are using the COVID-19 emergency as cover to expand and cement their rapid and virtually unsupervised deployment of harmful wireless infrastructure. Our local leaders should not have to dedicate time and resources to policing whether the wireless companies are following local and state law, they have far more important things to do.
This post explains the rights and obligations of both the wireless carriers and municipalities related to the construction of small wireless facilities. In brief, a moratorium is inappropriate, but a municipality could delay the issuance of new permits based on the limited availability of staff to review applications and plans during the term of Governor Pritzker's Executive Order 10, as extended by Executive Order 18.

The best place to begin is with the Governor’s Executive Order that imposed the stay at home restrictions. Originally issued on March 20th, it has been extended through April 30, 2020. While the name of the Order is simple enough, it contains almost as many exceptions as restrictions. For the purpose of this inquiry, it is important to be aware that the Executive Order provides for an exception for “Essential Infrastructure” which is defined as follows: 
Essential Infrastructure includes, but is not limited to: food production, distribution, and sale; construction (including, but not limited to, construction required in response to this public health emergency, hospital construction, construction of long-term care facilities, public works construction, and housing construction); building management and maintenance; airport operations; operation and maintenance of utilities, including water, sewer, and gas; electrical (including power generation, distribution, and production of raw materials); distribution centers; oil and biofuel refining; roads, highways, railroads, and public transportation; ports; cybersecurity operations; flood control; solid waste and recycling collection and removal; and 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 does not violate the Executive Order and is permitted to continue.

Next, we can 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 must license or permit the erection of small wireless facilities within their jurisdiction. The Act grants wireless carriers the right to place small wireless facilities in the right-of-way, subject to reasonable local regulations which are not inconsistent with the law. Most communities have adopted and enforce regulations for this purpose, so it is inaccurate to state the construction of small wireless facilities goes unsupervised. If your community does not have a small wireless facility regulation, you should consult with your local attorney. Numerous model ordinances for this purpose were made available to municipalities when the Act was adopted.

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 City 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 a city 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)  Each local government will exercise its authority to review the applications under locally adopted regulations which are not inconsistent with the Act; and

D)  Each local government 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 in 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 City’s employees during the current emergency. 

On a related note, if you get other resident concerns about 5G being somehow related to the spread of the coronavirus, FEMA has kindly added it to their rumor page.

Post Authored by Adam Simon, Ancel Glink


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