New "micro-cell" pole use requests arrive in right-of-way

Numerous Cities in Missouri and Illinois have recently received requests from companies, such as Mobilitie or Extenet, to install "micro" or "small" cell tower antennas on existing or new poles located in the City ROW. Some requests have also come with assertions that new law prohibits cities from prohibiting or regulating these uses. Many of these types of companies pay compensation to the cities for the use and are subject to telephone taxes to the extent their equipment is used to provide "telephone" or other services subject to compensation or taxes (the status depends by state, specific use, and circumstance). While new Missouri laws have imposed numerous limitations on cities' control over their ROW and zoning, small cell uses of city property are still subject to leases or ROW agreements, such as if the city has implemented authorizing ordinances establishing such requirements. While new state and federal limitations are complex, a few basic protections for cities should be considered as a starting point to control the location, appearance and risks to the public of any new infrastructure in ROW:

• Locate or enact basic authority requiring a lease or ROW agreement for any new user;

• Ensure zoning applies to ROW to provide supplemental authority;

• Require execution of a lease or ROW agreement as a condition of the proposed use;

• Ensure that any agreement requires insurance, indemnification and protection of the other uses as a condition;

• Provide for compensation of use of city facilities where lawful and appropriate;

• Ensure payment of applicable taxes, such as gross receipts telephone taxes (where applicable); and

• Include self-preemption provisions in agreements or ordinances to ensure that any imposition of even basic requirements is not applicable where new laws preempt City authority.

While numerous other concerns and possible legal limitations may apply, cities should not assume that these new uses are wholly preempted from regulation as may be suggested by some aggressive inquiries. While an overall strategy may be complicated to ensure against inappropriate design, locations or public risk from such uses, where do remain several mechanisms to ensure that such uses, if advantageous to the public, can be permitted while retaining at least some city control over its ROW, appearances, and community development.