Verizon Wireless will make its pitch to the Norwich School Board at its February 13 meeting to erect a replacement utility pole and small cell antenna on the GreenSchool. See: Verizon Wireless Goes To Norwich School Board On February 13 and Verizon Wireless Redux: Norwich School Board.
The antenna and equipment may not be in the ‘eyesore' category but that is a low standard by which to judge an addition to the Green, the front lawn of Marion Cross school property located in a beautiful and historic village setting.
More troublesome are the terms of the easement that Verizon Wireless wants, even after the revisions
. Here are the deal breakers:
Duration of easement
. Verizon Wireless wants an easement in perpetuity. This is simply too long. My modest research
indicates that in major US cities, the city grants the company a pole ‘license' for a period of years, not an easement that lasts forever.
The easy fix to add a new paragraph 8 that states in effect that any rights of Verizon Wireless under the easement expire after 20 years. If, in year 20, everyone is happy with the arrangement, it is not difficult to extend that period.
Scope of easement. Under the proposed easement, Verizon Wireless can install equipment in any “shapes, sizes and configurations.” As revised, the telecom must get School Board consent before it can “substantially increase” the size of the equipment. However that consent may not be “unreasonably withheld”.
Though that term may seem reasonable, there are two reasons to be wary. First, the FCC apparently has rules in place that define “substantially change”. The addition of four equipment boxes or protrusions of 20 feet or less are NOT substantial changes to the FCC. If those regulations apply by analogy, Verizon Wireless could add loads of equipment without even asking the School District, because there is no substantial increase. [See NOTE below.]
The second concern relates to visual impact. Question: May the Board reasonably reject an addition of equipment because it is not visually appealing? Pictured below is antenna installation that the PUC gave Verizon Wireless approval to erect in Killington in July 2017. It includes 3 antenna, 6 remote radio heads, and 2 equipment boxes, all on a single wood utility pole.
Plans depicting PUC approved installation in Killington. Source: PUC records
Is the Killington array something the School District wants on the Green? If not, then the School Board should check with its lawyers, BEFORE SIGNING.
Price of easement. Verizon Wireless proposes to pay annually the School District the sum of $2400 for the easement, an improvement over the one-time payment of $1000 originally offered. However without a COLA, inflation will erode that value over time. Recall that this easement is forever. In addition, if Verizon Wireless adds equipment or another carrier, may the School District ask for more money?
This is NOT legal advice. The FCC regulations at 47 CFR §1.40001
require State and local governments to give permits to modifications that do not “substantially change the physical dimensions of such tower or base station.” See also: Wireless Facility Siting: Section 6409(a) Checklist
by the National Association of Counties (March 5, 2015). The regs do not apply to the Norwich School Board because it is a private party to the easement with Verizon Wireless. However, in determining whether consent was “unreasonably withheld”, a court may look to the FCC rules as a guide to what substantial increase means in the industry.