Wireless Siting: The Issue that Won't Go Away and Grows in Complexity

Telecommunications Law


Wireless Facilities Siting: GettingMore Complicated

IMLA Mid-Year Seminar

Omni Shoreham Hotel, Washington, D.C., April 14, 2013

PRESENTED BY

Joseph Van EatonPartner


Goals of this Program

•Provide an overview of the evolving federalstandards affecting local authority to controlzoning of wireless facilities.

•Explain what to expect next at the FCC.

•Describe how localities should respond.


OVERVIEW


Siting Challenges Are Increasing

Cell Sites

• AT&T Wireless alone hasplans to deploy over1,000 DistributedAntenna Systems andover 40,000 small cells.

Source: CTIA Wireless Quick Facts ctia.org

38,650

131,350

210,360

285,561

0

50,000

100,000

150,000

200,000

250,000

300,000

Jun-97 Jun-02 Jun-07 Jun-12


New Kid on the Block: DAS

•Often installed by cos. to lease to others.

•Cos. seek authority to place in RoW(franchising authority implicated).

•Many, many different types of installations(some intrusive, some not); involve antennas,boxes on poles, cabinets on ground.

•Hundreds of thousands likely to be installed.



Round 1 – 1996 Act

47 U.S.C. §253 – Removal of Barriers to Entry. Preempts state, local laws that prohibit or have effect of prohibiting the

ability of any entity to provide telecommunications services, withimportant exceptions for police power regulations, right-of-waymanagement and compensation for right-of-way use. FCC has statedthat this provision does not apply to siting of personal wireless facilities.

47 U.S.C. §332(c)(7) – Preservation of Local Zoning Authority. Localities maintain control over “the placement, construction and

modification” of any personal wireless service facility, subject to certainfederal limitations.


Federal Limitations under Sec. 332

•Designed to prevent feds from acting as anational zoning board, while setting somefederal guidelines.

•Local regulation shall not:Unreasonably discriminate among providers of

functionally equivalent services.

Prohibit or have the effect of prohibiting theprovision of personal wireless services.


Federal Limitations under Sec. 332

•Locality must act on siting request within areasonable period.

•Denial must be in writing and supported bysubstantial evidence in written record.

•Locality may not deny based on RF concerns aslong as facility complies with FCC regs.

•Court remedy: applicant must file suit within30 days of final action or failure to act onapplication.


Round 2 – FCC Declaratory Order(“Shot Clock” - Nov. 2009)

•Defines presumptively “reasonable period”from receipt of complete application. 150 days for new siting; 90 days for collocation.

Extendable by agreement.

•Defines an “effective prohibition.” Can’t deny solely because “one or more carriers

serve a given geographic market.”

•Remedy: court action where court decides iflocal action complied with law.


Round 2 – FCC Declaratory Order(“Shot Clock” - Nov. 2009)

•Authority of FCC to issue rules challenged.

•Order upheld by 5th Circuit.

•Cert granted by Supreme Court.

•Now awaiting Supreme Court decision –decision expected soon.


Round 3 – FCC Notice of Inquiry

• Acceleration of Broadband Deployment: Expandingthe Reach and Reducing the Cost of BroadbandDeployment by Improving Policies Regarding PublicRights of Way and Wireless Facilities,” Docket 11-59.

• Examining whether FCC may set prices for use ofpublic property, and whether local governmentpricing and wireless siting practices are delayingbroadband.

• Localities responded with case-by-case response toclaims that local practices were delaying wireless orwireline deployment.

• Notice is still pending.


Round 4 – 2012 Collocation Statute

• 47 U.S.C. §1455(a) – Modification of Towers/Base Stations “a State or local government may not deny, and shall approve, any

eligible facilities request for a modification of an existing wireless toweror base station that does not substantially change the physicaldimensions of such tower or base station.

“eligible facilities request” means any request for modification “of anexisting wireless tower or base station” involving collocation of newtransmission equipment; removal of transmission equipment; orreplacement of transmission equipment.

• FCC given authority to implement.

• Sometime referred to as Sec. 6409.


FCC Guidance (Jan 2013)

• 47 U.S.C. §1403(a) FCC shall implement and enforcethis chapter:

• Guidance Issued by FCC’s Wireless Bureau. Defines “substantially change” through criteria developed in

a different context (historic preservation).• For example, no “substantial change” if an addition extends a facility

less than 20 feet in any direction.

Offers broad definition of “base station” that could makestatute apply to many facilities, including utility poles.

Does not discuss safety issues, proprietary property (lightpoles) or “non-zoning” rules that may affect placement.


FCC Guidance (Jan 2013)• Non-binding but will be used by industry to say this is

what you shall approve.

• Serious constitutional questions regarding statutoryprovision (can feds compel states and local gov’t toapprove?).

• Serious questions as to whether FCC “guidance” isconsistent with statute.

• Combination of guidance and statute may createsignificant conflicts with existing state and local laws.


WHAT TO EXPECT NEXT - FEDERAL


What Happens Next at the FederalLevel?

•FCC rulemaking on siting:Shot clock

Collocation

DAS/small cell

•FCC rulemaking on RF exposure.


FCC Has Begun To Revisit RF Issues

• Report and Order and Further Notice of ProposedRulemaking ET Docket No. 03-137 (March 27, 2013);Notice of Inquiry, ET Docket No. 13-84.

• Order addresses several technical and semantic issuesto revise and update its regulations implementingNEPA.

• In Further Notice, FCC proposes to further update andrevise its procedures for measuring RF exposure.

• In Inquiry, the FCC requests comment to determinewhether its RF exposure limits and policies need to bereassessed.


…Proceeding that Is Likely ToCommence in June 2013

• Chairman Genachowski on what’s next:

Actions in the coming months to further streamline DAS andsmall cell deployment.

Examine whether current application of the tower sitingshot clock offers sufficient clarity to industry andmunicipalities.

Begin developing model facility siting rules for localities.

• New Commissioner Pai: Add’l relief for wireless may bewarranted. Cited to California as an especially troubling state.

• New Commissioner Rosenworcel: Model ordinances.


Translation:• Significant federal actions likely soon.

• No later than June expect a rulemaking to codifyexisting rules –industry may seek add’l restrictions.

• Expect action to “implement” Section 1455 (guidancebecomes binding rules?).

• Expect action to address DAS installation.

• Expect specific communities will be targeted asproblems justifying restrictions on local authority.


Local Governments Are Beginning ToRespond to Guidance

•FCC criticized for issuing guidance withoutlocal/state input.

•Individual localities beginning to explainimpact of guidance to FCC staff.

•Reason to be hopeful with respect toproprietary property issues and safety issues.

•But guidance still creates significant problemsthat could slow wireless deployment.


Historic Site – NowHistoric 50’-high silos with approved attachment of six panel antennas painted to match exterior surface to minimize visual

impact. Located at Dufief Mill Road and MD Route 28 (Darnestown Road) in Montgomery County, Maryland.


Historic Site – Post Guidance?Illustration showing potential impact of co-location of an additional approximately 20’-high pole mounted antenna array.


Stealth Site –Now

100’ monopole disguised as a flagpole constructed toconceal six panel antennas within its exterior. Locatedon Brightseat Road alongside I-95 in Prince George’sCounty, Maryland.


StealthSite – PostGuidance?

Illustration shows the potential impact of anapproximately 20’- high extension to support a co-location of antennas in a typical triangular platformarray (partially shown at top of frame) and smaller co-location in a flush-mount attachmentconfiguration atop the existing monopole.


Rooftop Stealth Site – NowTwo-story office building located on Layhill Road at Bonifant Road in Montgomery County with antennas fromthree carriers permitted by Special Exception and either concealed within the faux screening atop the penthouseon the roof, or painted to match the exterior of the screening or brick walls.


Rooftop Stealth Site – Post Guidance?Illustration of a tower-like structure constructed to support co-location antennas approximately 20’ above existingantennas.


Brickyard Rd. DAS Site – Neighborhood


Brickyard Rd. DAS Site – NowPole to support DAS antennas (68’ high) now at Brickyard Road in Montgomery County (part of a multi-nodeinstallation that extends down Brickyard Road)


Brickyard Rd. DAS Site – Post Guidance?Illustration of an extension to existing utility pole with additional structural bracing and guy wires to support the extension, whichrises approximately 20’ above existing DAS antennas. Blocks at bottom reflect related typical pole-mounted equipment cabinets.


In Addition - Expect Litigation andLegislation at State Level

• One company has already amended a complaintagainst a community in New York alleging violation ofSection 1455.

• Bills introduced Georgia and California (and passed inMI) limiting local control over collocation.

• Expect significant misinformation to be distributedregarding Section 1455 (among others: Section 1455prevents a locality from requiring a collocationapplication.


LOCAL GOVERNMENTRESPONSE


How To Protect Your Community

• Review and update ordinances in light of Section1455 (and other federal and state laws).

• Create coalitions to educate the FCC and Congressnow, and to address rulemakings.

FCC actions are likely to be more reasonable if effortseducate staff and Commissioners.

FCC actions will be more measured if localities participate inany rulemaking (example: Docket 11-59).

• Do the same at the state level

Telecommunications Law 35

QUESTIONS?

Joseph Van Eaton

Best Best & Krieger LLP

2000 Pennsylvania Avenue

Suite 4300

Washington, D.C. 20006

202-370-5306

[email protected]

mailto:[email protected]

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Wireless Siting: The Issue that Won't Go Away and Grows in Complexity