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.