AT&T submission to FCC re: wireless approval process

8/2/2019 AT&T submission to FCC re: wireless approval process

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Before The

FEDERAL COMMUNICATIONS COMMISSION

445 12th

Street, S.W., Washington, DC 20554

In the Matter of

Acceleration of Broadband Deployment:Expanding the Reach and Reducing the Cost ofBroadband Deployment by Improving PoliciesRegarding Public Rights of Way and WirelessFacilities Siting

)))))))))

WC Docket No. 11-59

COMMENTS OF AT&T

David L. LawsonJames P. YoungChristopher T. ShenkSIDLEY AUSTIN LLP1501 K Street, N.W.Washington, D.C. 20005202-736-8088

William A. BrownGary L. PhillipsPaul K. ManciniAT&T Services, Inc.1120 20th Street, N.W.Suite 1000Washington, D.C. 20036

202-457-3007

Attorneys for AT&T Inc.

July 18, 2011


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TABLE OF CONTENTS

INTRODUCTION AND SUMMARY ..............................................................................................1I. IN DEVELOPING ITS APPROACH TO REDUCING BARRIERS TO

DEPLOYING BROADBAND FACILITIES, THE COMMISSION SHOULD BEAWARE OF ALL OF THE FACTORS THAT CONTRIBUTE TO DELAY. ....................5A. It is Increasingly Difficult To Identify Suitable Locations For New Cell

Sites. ...........................................................................................................................7B. After A Suitable Location For A New Site Has Been Identified, The

Process For Obtaining Zoning And Other Approvals Can Lead ToSignificant Delays, Notwithstanding The Shot Clock. ..............................................13

II. THE COMMISSIONS ENVIRONMENTAL RULES SHOULD BE UPDATEDTO CLOSE LOOPHOLES IN THE PROCESS AND TO ACCOUNT FOR THEEVOLUTION OF WIRELESS TECHNOLOGY. ................................................................20

CONCLUSION ..................................................................................................................................24


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Before The

FEDERAL COMMUNICATIONS COMMISSION

445 12th

Street, S.W., Washington, DC 20554

In the Matter of

Acceleration of Broadband Deployment:Expanding the Reach and Reducing the Cost ofBroadband Deployment by Improving PoliciesRegarding Public Rights of Way and WirelessFacilities Siting

))))))))))

WT Docket No. 11-59

COMMENTS OF AT&T

Pursuant to the Notice of Inquiry (Notice) released by the Federal Communications

Commission (Commission) on April 7, 2011, and the Public Notice released by the

Commission on June 10, 2011,1 AT&T Inc. (AT&T), on behalf of its subsidiaries, submits the

following comments.

INTRODUCTION AND SUMMARY

AT&T strongly supports the Commissions efforts to update its understanding of current

rights of way and wireless facilities siting policies and to assess the extent and impact of

challenges related to these matters, and develop a record on possible solutions to these

challenges.2 The Commission has taken significant steps to reduce delays and other obstacles

1 Notice of Inquiry,Acceleration of Broadband Deployment: Expanding the Reach and Reducingthe Cost of Broadband Deployment by Improving Policies Regarding Public Rights of Way and

Wireless Facilities Siting, DA 11-1047, WC Docket No. 11-59 (rel. April 7, 2011) (Notice);Public Notice,Deadlines Set For Notice of Inquiry On Accelerating Broadband Deployment by Improving Public Rights of Way and Wireless Facilities Siting Policies, DA 11-1047, WCDocket No. 11-59 (rel. June 10, 2011).2Notice 9.


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that carriers routinely face when they seek to upgrade or expand broadband services by

deploying new facilities (or upgrading older facilities). Unfortunately, a variety of factors

continue substantially to delay carriers attempts to place new equipment and upgrade existing

equipment, and unnecessarily increase carriers costs of doing so.

Access to rights of ways continues to be a significant challenge to AT&T in many areas.

AT&Ts deployment of broadband wireline services in California, for instance, continues to be

delayed by AT&Ts inability to obtain sufficient access to rights of way to place the necessary

facilities. And, in Connecticut, litigation was necessary to remove unwarranted legal barriers to

wireless broadband providers obtaining access to rights of way.

But delays in obtaining access to rights of way for broadband deployment are only one

piece of the puzzle. As the Commission explores approaches to facilitate nationwide broadband

deployment, it is important to understand how all of the parts of the puzzle together contribute to

lengthy delays in the deployment of broadband facilities. Only then can the Commission

develop a comprehensive approach that best facilitates broadband deployment for the factors it

can control.

The area of broadband deployment that most vividly illustrates the numerous factors that

contribute to delay and unnecessary costs is the deployment of new cell sites needed to expand

the coverage and capacity of wireless broadband networks. The difficulties with the deployment

of new cell sites begin well before the local review process. In many of the urban and suburban

areas throughout the country where new cell sites are most needed there simply are not that

many suitable locations available for new cell sites, particularly for carriers with mature

networks. When a carrier seeks to address a problem area within these mature networks,

carriers search rings (the area where a new cell site could provide the needed coverage or


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capacity) are now much smaller than they were in the past. New cell sites today are typically

placed on rooftops of buildings or similar structures, not on classic towers, and it is an

increasingly arduous process to find a suitable location within these smaller search rings and to

secure the rights to use it. A carrier must identify a location that has space available at the

necessary height orientation, without obstructions or interference, and have the structural

integrity to support the antenna and equipment. Even then, the owner must be willing to permit

the carrier to deploy a cell site at that location, and in the face of strong and organized

community opposition, many building owners are simply not interested.

The lengthy process of identifying suitable locations with property owners willing to

accommodate wireless facilities is followed by a lengthy process of obtaining local permits and

approvals. It is at this stage where the Commission in 2009 took commendable action to reduce

delays by adopting its shot clock rules, which set forth a reasonable time for state and local

governments to act on such applications and provide for remedies where that time is exceeded.3

These shot clock rules were an important step forward, but they have proven far from

sufficient in addressing unreasonable delays. Many local authorities have adopted practices and

policies that have the effect of delaying action on new site applications well beyond the time

permitted by the shot clock rules.

For example, some local authorities have imposed moratoria on new cell site

applications, manipulated the time when the application is deemed to be complete (and thus

delaying the time they contend the shot clock starts), required applications to be resubmitted

based on technicalities (which they say triggers a restart of the shot clock), or arbitrarily rejected

3 See Declaratory Ruling, Petition for Declaratory Ruling To Clarify Provisions of Section332(c)(7)(B) To Ensure Timely Siting Review and To Preempt Under Section 253 State and

Local Ordinances that Classify All Wireless Siting Proposals as Requiring a Variance, 24 FCCRcd. 13994, 4 (2009) (Shot Clock Ruling).


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applications, forcing applicants to start over. Local officials may also demand that AT&T place

sites on property owned by the locality (thereby attempting to generate rent income), even if that

property is not ideally suited for the site or if there are much less costly locations, or that AT&T

pay for totally unrelated municipal initiatives (e.g., new parks). And in many cases AT&T is

required to seek sequential approvals from multiple local authorities (which often have

competing interests).

The inherent difficulties in this process have been compounded by the rise of consulting

firms that specialize in advising local authorities how to obstruct and delay the deployment of

new cell sites. One of the largest of these consultants which represents more than 700

communities in 32 states claims that [w]e assure . . . that a new tower is built only as a last,

worst case scenario.4 These consultants have developed model ordinances (which have been

adopted by numerous localities) that are designed to make the deployment of new cell sites as

difficult as possible, and which often require the wireless applicants to pay the consultants fees

creating additional perverse incentives for delay (because the more the consultants can prolong

the process, the higher their fees).

It is for all of these reasons that deploying new cell sites remains a lengthy process. For

example, for the AT&T cell sites that came on air in 2010 in the Los Angeles, San Francisco,

Chicago, New York, Baltimore, and Washington, D.C. metropolitan areas, it took more than two

and half years from the time AT&T initiated the search for the site to the time the site was fully

acquired with all approvals obtained. AT&Ts experience confirms that wireless carriers today

face substantial obstacles that prevent them from swiftly deploying large numbers of new cells

towers where they are needed to expand coverage and capacity. Because of these hurdles, the

4 See Web site for the Center for Municipal Solutions (CMS),http://www.telecomsol.com/home.html.


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process of deploying large numbers of additional cell sites takes years, not months.

Finally, as explained below, the Commission should supplement its existing

environmental rules to further streamline the process of deploying cell sites, such as when

Federally-recognized Tribes express an interest in the deployment and in situations where

technology has outpaced the existing rules and processes.

I. IN DEVELOPING ITS APPROACH TO REDUCING BARRIERS TODEPLOYING BROADBAND FACILITIES, THE COMMISSION SHOULD BE

AWARE OF ALL OF THE FACTORS THAT CONTRIBUTE TO DELAY.

The practices of many local jurisdictions continue to hinder and delay carrier access to

rights of way, and other sites needed to expand broadband capacity and coverage. For example,

when AT&T sought to extend fiber-optic transmission into residential neighborhoods as part of

its U-verse build in California, many cities attempted to block that deployment, and AT&Ts

buildout was stalled in most areas until California passed a new statewide franchising scheme for

video service providers. And even then, it required three lawsuits to re-initiate the buildout in

many cities. To this day, the City of San Francisco has not allowed the buildout of the facilities

needed for AT&Ts U-verse service.5 In Connecticut, legal action was required when the state

planned to require wireless providers to obtain a state Certificate of Public Convenience and

Authority before being permitted to place facilities needed to expand wireless broadband

coverage and facilities in public rights-of-way.

5 The City of San Francisco contends that the state environmental statute, the CaliforniaEnvironmental Quality Act, precludes the buildout of AT&Ts Lightspeed network (needed for

AT&Ts U-verse services). On two separate occasions, the San Francisco staff found as havemost cities throughout the State that the Lightspeed build would not have a significant effect onthe environment. However, in both instances, this finding has been appealed to the SanFrancisco Board of Supervisors, where it has faced opposition solely for aesthetic reasons. Thelatest application will be voted on by the San Francisco Board of Supervisors on July 19, 2011.See, e.g., Andrew S. Ross, AT&T Makes Final Push For U-verse Services In S.F., San FranciscoChronicle (Jul. 17, 2011), available at http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/07/17/BUJ21KB06M.DTL.


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The delays in broadband deployment caused by states and local authorities, however, are

only part of the picture. As the Commission explores approaches to facilitate nationwide

broadband deployment, it is important to understand all of the factors that contribute to lengthy

delays in the deployment of broadband facilities, including those that it may not be able to

control. Only then can the Commission develop a comprehensive approach that best facilitates

broadband deployment.

One area of broadband deployment that vividly illustrates the diverse factors that

contribute to delay and unnecessary costs in the deployment of broadband facilities is the

deployment of new cell sites needed to expand the coverage and capacity of wireless broadband

networks. As numerous competing wireless providers have saturated urban and suburban areas

with cell sites on towers, rooftops, church steeples, billboards, water towers, light posts, and so

on it is becoming increasingly difficult to find suitable locations to deploy new ones. At the

same time, in response to the proliferation of wireless facilities from multiple wireless

competitors, local communities are becoming increasingly resistant to the deployment of new

facilities and upgrades to existing ones. Local communities are enacting increasingly restrictive

zoning regulations and more complex application and approval processes, forcing carriers to

prove why alternative sites are not suitable, demanding that carriers pay for unrelated projects

(like community pools and parks), and increasingly rejecting applications on frivolous grounds.

With this confluence of events, it is more difficult and time consuming than ever to

identify suitable locations for new wireless facilities and to obtain the necessary local approvals

to build new facilities or upgrade existing ones. For example, of the new sites that AT&T placed

on air in 2010 in the Los Angeles, San Francisco, Chicago, New York, Baltimore, and

Washington, D.C. metropolitan areas, it took an average of more than two and half years from


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the time AT&T initiated the search for the site to the time the site was fully acquired with all

approvals obtained. Moreover, this statistic is conservatively low because it includes only the

locations where AT&T was ultimately able to obtain approvals; it omits the sites where AT&T

was unable to obtain approval and thus had to start over.

A. It is Increasingly Difficult To Identify Suitable Locations For New Cell Sites.In todays environment, it has become harder than ever to find a suitable location for the

placement of a new wireless antenna. Wireless carriers face a wide variety of obstacles in

indentifying an acceptable location, and indeed, carriers often face almost every one of these

obstacles every time they seek to deploy a new antenna.

To begin with, there are multiple competing providers of wireless services in most local

areas. According to a recent Commission report, 89.6 percent of the U.S. population is served by

five or more facilities-based carriers.6 As a result, localities are often already blanketed with cell

sites. Moreover, as customer demand for wireless services has been rapidly increased, carriers

have been quickly deploying additional antennas to increase both coverage and spectrum

capacity.

As a consequence of the maturity and density of these existing wireless networks, finding

new locations is much more difficult than in the past. When AT&T seeks to add coverage or

capacity with a new cell site, AT&T first identifies a search ring, which is the geographic area

where placement of a cell site could provide the necessary coverage or capacity. Search rings

today, however, are much smaller than in the past. In an earlier era, when wireless networks

were not as dense as they are now, AT&T and other carriers had the luxury of wide search rings

6See Fifteenth Report,Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993 Annual Report and Analysis of Competitive Market Conditions With Respect to

Mobile Wireless, Including Commercial Mobile Services, FCC 11-103, WT Docket No. 10-133,Table 5 (rel. June 27, 2011).


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that encompassed many possible locations. Today, however, the areas experiencing capacity or

coverage issues tend to be very specific and localized, and AT&T must draw small search rings

to ensure that any new antenna maintains a proper distance from other AT&T antennas to

prevent undue interference and to meet other engineering criteria.7

Once AT&T has established a search ring, it then analyzes all of the possible locations in

that ring. It is important to understand, however, that only rarely will a new cell site be a classic

cell tower. Indeed, the need for additional capacity or coverage tends to be in densely

populated urban or suburban areas, and at this late date a new cell site will almost always be an

antenna structure placed on an existing building. Very often it will be on the rooftop of an office

building, but it could be on a billboard, light post, or water tower, or hidden inside a church

steeple, or placed on private or public property elaborately disguised as a tree or as some other

feature.

AT&T carefully analyzes all such possibilities within each search ring, but the vast

majority of them will be eliminated in the early stages, for a variety of reasons. Initially, AT&T

performs a preliminary review using zoning maps, coverage and capacity prediction tools, and

other desktop tools. This review typically shows that many buildings will not have enough

available rooftop space, will not be at an acceptable height, or will face too many line-of-sight or

other obstructions that cause interference. Zoning restrictions will also eliminate many sites.

Indeed, many localities are adopting zoning and other regulations that prohibit the placement of

cell towers in a growing number of areas. In some cases, entire areas may be severely restricted:

for example, in San Francisco, many areas that require additional coverage and capacity are

7 Specifically, AT&T establishes a search ring by using signal propagation modeling tools with ahigh-resolution terrain database to predict signal strength over the area of interest, and thenmodels the impact of introducing a new antenna to produce predictive signal strength maps and asearch ring to guide AT&Ts real estate and construction experts.


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residential areas, and most of these residential areas fall within zoning areas six and seven, which

are the zones in which cell site approval is most difficult (if not impossible) to obtain. Similarly,

large portions of the Chicago area that are zoned for residential use e.g., Wilmette, Winnetka,

Highland Park, Lake Bluff, Evanston, and Glencoe have local zoning rules that broadly restrict

wireless installations, and any attempt to obtain a variance is typically hopeless.8

In other cases, various other restrictions can eliminate many individual buildings. Fire

codes in particular often restrict how much space is available on a rooftop for new antennas.

New York City, for example, has adopted relatively new fire code restrictions that can

significantly limit the location of antennas and equipment on rooftops.

9

Given the large number

of competitive carrier sites on New York rooftops (along with other types of equipment), these

new restrictions will implicate twenty to thirty percent of all of AT&Ts potential new sites and

upgrades in that city. The City of Chicago has adopted a different kind of restriction that places

limitations on the height of an antenna site based on the number of collocated wireless carriers

(75 feet for one, 100 feet for two, and 120 feet for three). 10 Chicagos ordinance applies to

buildings as well as towers, but many buildings in Chicago exceed 120 feet, and under this code,

AT&T cannot place a new facility on a rooftop unless it finds three other carriers to do so as

well. AT&Ts only alternative is to apply for a special use variance, which Chicago has been

8 Although carriers may have been able to seek court intervention to address overly restrictivezoning requirements, such actions are lengthy and their outcome is uncertain.9See New York City Administrate Code, New York City Fire Code, Title 29, Chapter 5, FC

504.1-5, Access To Buildings and Rooftops; see also Technology Management Bulletin #

02/2011, Battalion Chief Thomas J. Pigott Chief of Technology Management of TechnologyManagement Bureau of Fire Prevention (Feb. 9, 2011), available athttp://www.nyc.gov/html/fdny/pdf/fire_prevention/otmb_02_2011.pdf.

10 AT&T notes that although the City of Chicago has adopted certain restrictions thatsignificantly delay the deployment of new cell sites, in other respects it has adopted forward-thinking policies and procedures that have helped to speed certain broadband deployments, e.g.,Distributed Antenna Systems.


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generally unwilling to grant.11

AT&T also conducts field reconnaissance (i.e., street walks) at this stage to assess the

suitability of potential sites. Once AT&T has identified buildings that appear promising, it

contacts the landlord to gauge interest. Many landlords have no interest in hosting a cell site and

flatly refuse to negotiate with AT&T. Others may express interest, and AT&T will then do a

rooftop inspection. There, AT&T engineers can determine precisely whether the site can

accommodate an AT&T antenna. They can assess such things as the potential placement of an

antenna in relation to obstructions, the available mounting locations on the rooftop and whether

they have the necessary structural support, possible antenna height in relation to the rooftop

and/or parapet, and the potential location of an antenna accounting for set-back requirements

from the edge of the roof. The engineers also must ensure that any potential antenna is far

enough away from maximum potential exposure exclusion areas i.e., that it is far enough

away from areas where the public has access, such as rooftop gardens or patios, adjacent

rooftops and buildings, fire escape ladders and other rooftop pathways. AT&T will eliminate a

number of locations at this stage as well, usually because there are no acceptable options for

antenna location that would satisfy AT&Ts need for coverage or capacity, or the available

structures do not have sufficient structural integrity or support to accommodate AT&Ts antenna

or equipment.

Even if a site passes these tests, more obstacles remain. Some landlords demand

excessive rents; there are numerous instances in New York City, for example, where landlords

seek excessive rents (in one instance, the landlord demanded $50,000 per month). More

11 Other areas of Chicago have adopted ordinances that make it virtually impossible to add newtowers. For example, the Village of Park Ridge has an ordinance that requires a fall zone to beconstructed around any wireless telecommunications tower that is equal to one-hundred twenty-five percent (125%) of the height of the tower.


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commonly, community activists will pressure landlords not to deal with wireless carriers.

Indeed, local communities are becoming extremely resistant to new cell sites, and community

opposition is quite common. Even landlords that initially express interest will very often buckle

under such pressure and withdraw their offer, because they want good relations with their

neighbors and do not want to be the target of a public campaign.

The upshot is that even the first step of the process finding a suitable site now

typically takes nine months or more, and in many cases much longer. Indeed, it is quite common

for AT&T to experience almost every one of these obstacles every time it tries to find a new cell

site location. For example, the San Francisco area is a very difficult location to identify suitable

new sites, and AT&T has for years been trying to add a cell site in the Marina district, a mixed-

use neighborhood. After the initial round of narrowing, AT&T has canvassed and actively

pursued more than 20 locations identified as possible candidate sites in this area. At nearly half

of these locations, the owner of the property either refused to deal with AT&T or was otherwise

unresponsive to AT&Ts requests. In one case, AT&T proposed to place a cell tower at a park,

and the government entity responsible for the park initially was open to working with AT&T, but

after residents complained, the park owner refused to work with AT&T on the project. Several

of the potential sites identified by AT&T ultimately failed the RF review process (i.e., the

transmission characteristics at the location could not provide the needed capacity and coverage

requirements), while others turned out to lack the structural integrity needed to place a new cell

site.12

12 Likewise, in the Cole Valley area of San Francisco, AT&T finally identified nine potentiallocations for a new cell site. Two of the locations turned out to be subject to zoningrequirements that would not permit the site, and the other sites turned out to be dead ends due tovarious factors, including landlords that backed out of negotiations because of communityobjections, failed RF requirements, failed structural requirements, or failed environmental


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These same problems exist throughout the country. For example, when AT&T recently

sought to increase coverage and capacity in a D.C. neighborhood, AT&T ultimately identified

six potential locations, none of which panned out. Two were schools that were unwilling to lease

space to AT&T; one was a museum that was initially receptive but changed its mind when

nearby residents raised concerns; two other structures turned out to be too short (only 30 feet);

and another structure was a foreign embassy where the site could not be placed.13 For a recent

site in New York, AT&T narrowed its potential choices to seven, but the landlords at several of

them had no interest in leasing space to AT&T, and the only other location had inadequate

structural and engineering features.

14

In Los Angeles, AT&T recently identified 13 potential

locations for a new cell site: the property owners at eight of the locations refused to allow

AT&T to place facilities on their properties; two of the locations failed AT&Ts RF engineering

requirements. Indeed, in recent months AT&T has cycled through dozens of other locationsthroughout the San Francisco area, including Pacific Heights, Diamond Heights/St. FrancisWood, Inner Sunset, Mission Dolores, Bayview/Hunters Point, Tranbay Redevelopment. In allof these areas, AT&T was met with landlords that refused to deal with AT&T (typically due tocommunity resistance to cell sites), problems with the structural integrity of the location, failed

RF review, and various other issues that have prevented placement of new cell site facilities.13 In another D.C. suburb, AT&T investigated six candidate locations before coming up empty.The problem was a very strong presence from the Piedmont Environmental Council that opposedany cell site development, and the few landowners who were initially willing to consider a leasehad HOA covenants that precluded them from doing so. In downtown D.C., AT&T recentlysought to increase capacity and coverage on the National Mall. All of the structures there areowned by the government. AT&T identified seven potentially suitable locations, but the ownersand managers of those buildings rejected AT&Ts proposal for a cell site on security grounds orlack of authority to permit additional structures. In another area of Mall, AT&T identified sixpotential candidates, but four have already made clear that they are not willing to allow AT&T toplace a cell site at their location and AT&T is now in the process of examining the tworemaining sites in the area.

14 In a different New York search, AT&Ts initial candidate locations failed with one landlordseeking prohibitive rents ($6,000 per month), another landlord declining to lease to AT&T, andthe remaining candidate unable to meet AT&Ts network engineering needs. In yet anothersearch in New York City, two of the landlords were not interested in having an additional cellsite on the roof, and the remaining candidate considered but ultimately rejected AT&Tsproposed site.


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review; AT&T did obtain a lease from one property owner (but a City Councilman was opposed

to the site and AT&Ts application to build it was rejected); and it is now awaiting a response

from the property owners at two additional locations.15

B. After A Suitable Location For A New Site Has Been Identified, The ProcessFor Obtaining Zoning And Other Approvals Can Lead To Significant

Delays, Notwithstanding The Shot Clock.

After a suitable and available location to install a new cell site is eventually found, it is

then usually necessary to obtain approval from local zoning boards, city councils, or other local

entities before AT&T can build the facility. At various locations throughout the U.S., localities

are becoming increasingly opposed to new sites, regardless of their height or the extent to which

they are camouflaged or otherwise hidden from view, and the zoning and permitting

requirements that carriers must satisfy are becoming increasingly difficult, time consuming, and

costly. It is not at all unusual for it to take more than a year for AT&T to obtain the needed

approvals from localities to build a new cell site, and where AT&T is forced to pursue litigation

over rejections, the entire process can take years.

In November 2009, the Commission took the significant step of adopting a shot clock for

State and local action on wireless facility siting requests 90 days for collocation applications

and 150 days for other applications with the intention of minimizing delays in the process. 16

15For a potential site in Santa Clarita, AT&T identified three potential locations. One failed

structural review (it was on a hillside and could not be modified to hold AT&Ts equipment),one was at a site that the city had scheduled to demolish, and the remaining one was at a site

where the city refused to permit lighting (which rendered AT&T unable to satisfy the FederalAviation Administrations requirementof lighting). In Turtle Rock/Newport Coast, AT&T wasunable to find any suitable locations for a needed new macro cell site, due to the low height ofmost buildings and the fact that it is mostly residential. AT&T therefore proposed a DAS systemin the area, which has met with resistance and a lawsuit filed by local residents to block it.

16 See Declaratory Ruling, Petition for Declaratory Ruling To Clarify Provisions of Section332(c)(7)(B) To Ensure Timely Siting Review and To Preempt Under Section 253 State and

Local Ordinances that Classify All Wireless Siting Proposals as Requiring a Variance, 24 FCC


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Unfortunately, the shot clock has not been as effective as hoped. Local authorities typically have

sufficient discretion that if, for whatever reason, they want to delay an application, they can find

a way. For example, local authorities often require applications to be re-filed based on supposed

technical infirmities, and they then contend that this re-filing restarts the shot clock. In other

cases, in the guise of working with the applicant, local authorities reject one site with the promise

of considering another nearby site, but then when the application for that alternative site is filed,

it is rejected, with the promise of considering a third, and so on, resulting in long delays, and

they contend that such delays are not technical shot clock violations.17 In other instances, local

authorities simply reject applications on frivolous grounds (or on no stated grounds), requiring

applicants to resort to the time-consuming appeals process.18 And in other cases, local

authorities approve a cell site, but only on conditions that clearly violate federal or other laws,

thus ensuring that the site will not be built.19

Rcd. 13994, 4 (2009) (Shot Clock Ruling).17

AT&T recently experienced a twelve-month delay in obtaining approval for a new site in the

City of Mission Viejo, California, when the staff for the planning board suddenly dropped itssupport for the project, and required AT&T to submit an application for an alternative candidate;the Planning Board then rejected that design, and ultimately directed AT&T to retry with itsoriginal candidate (which was ultimately approved). Similarly, AT&T has been working withChino Hills, California for 18 months to get a cell site approved near a scenic highway. The cityhas repeatedly rejected the various design plans offered by AT&T to minimize the visual impact(so far, AT&T has offered designs that look like a Cyprus tree, a telephone pole, and a watertank).

18 In Phoenix, Arizona, on Route 51, AT&T applied to place a new tower on property owned bya church where other sites were also located. After discussions with residents, AT&T agreed todisguise the pole (by putting the antenna on the inside and painting it to look like a tree) and toset it further back from the residential areas. Still, the application was denied, and the onlyreason identified was that the proposed location is in a special part of Phoenix in that Route 51leads into the Phoenix Mountain preserve (it is not actually in the preserve). Placement of thistower will continue to be delayed as AT&T challenges the decision in federal court.

19 For example, AT&T recently applied to place a 200 foot tower in a city in California. TheFederal Aviation Administration requires that towers of that height have lights. The city rejectedAT&Ts application on the grounds that the light would disturb nearby residents.


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Local authorities also seek to evade the shot clock by delaying when an application is

technically complete, and contending that the shot clock does not start until they deem it to be

complete. In the most extreme cases, local jurisdictions that do not want new cell sites seek to

circumvent the shot clock altogether by placing a moratorium on new applications. 20 In other

cases, local authorities impose numerous time-consuming pre-application requirements on

applicants before they will even accept an application. For example, many local zoning

authorities supply an applicant with long lists of alternative locations for the proposed site and

require applicants to prove that these alternative locations are not suitable as a pre-requisite to

accepting an application, a process that typically delays the application by many months.

21

In

other instances, local authorities impose other time-consuming pre-filing requirements, such as

20For example, Richmond, Virginia has had a moratorium against new wireless applications for

two of the past three years while it passed more restrictive ordinances, and after discovering thatthese new more restrictive ordinances still did not block all of the sites the city council hoped, itvoted in favor of a new moratorium. Talbot County, Maryland, after a 20 month moratorium onnew cell sites, has established a telecom zone, and any application for a new site outside ofthat telecom zone which AT&T needs to satisfy coverage and capacity requirements requires

as a pre-requisite to accepting the application that the applicant prove that a list of candidateswithin the telecom zone (provided by Talbot County) are not suitable. This process has stalledone AT&T site application for more than two years.

21 In the Washington, D.C./Baltimore area, for example, the jurisdictions covering two-thirds ofAT&Ts cell sites always submit a list of locations to AT&T and require AT&T to explain whythose additional locations are insufficient before they will consider AT&Ts application. Forexample, in Fairfax County, Virginia, AT&T is seeking to add nearly 30 new sites. But the cityof Fairfax has stated that it does not want any more cell sites, and one of the main strategies ituses to delay and thwart applications is to provide applicants with a long list of alternative sitesand requiring proof as to why each of those sites is not a valid alternative. To make mattersworse, these lists almost always contain elementary school properties, and these school officials

have repeatedly told AT&T that they will not permit a cell site to be place on school property.AT&T has informed Fairfax County of this but elementary schools remain on the list. Likewise,in Irvine, California, AT&T recently filed an application to add a new site, but the city would notaccept AT&Ts application until AT&T proved that nine alternative rooftop locations were notviable alternatives, resulting in a lengthy delay. Likewise the consultant used by BaltimoreCounty requires applicants to review additional locations, which are often miles from thelocation where capacity or coverage is needed. In Baltimore, AT&T was recently required torule out eight alternative candidates presented by the county, which took months to vet.


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building life-sized mock-ups of the proposed cell site.22 And in still other cases, local authorities

implement a multi-layer review process where it is unclear when or if an application has even

been accepted for review, thus making unclear whether the shot clock has begun.23

The shot clock rules also do not prevent local authorities from continuing to engage in

other questionable practices that increase carrier costs and delay deployment. For example,

many local authorities continue to require a carrier, as a condition of the zoning approval for a

new site, to finance unrelated city projects, such as a new park or a technology project, often

adding months of delay in the zoning approval process (as the parties negotiate the terms of the

unrelated projects) and millions of dollars in additional costs for the carrier.

24

Moreover,

localities are increasingly seeking to capture the rental income from new cell sites by enacting

zoning and other requirements that effectively require carriers to place new cell sites on public

property, even if there are much less expensive or more efficient locations.

22For example, in Irvine California, AT&T was required to create a detailed mock-up of the site

using the citys vendor, a project that took four months to complete and another six months forthe city to approve.

23 One of the most extreme examples is in Waltham, Massachusetts. Applicants must prepareand submit an Official Development Prospectus, which must be hand delivered to, reviewed by,and signed off on, by the following departments: Building, Public Health, City Engineer,Conservation Commission, Superintendent of Schools, Recreation, Traffic, Public Works, PoliceChief, Fire Chief, and Historical Commission. Each department takes time to review theproposal before approving (or denying) it, before it can be taken to the next department. Onceall departments have signed off, a special permit application can be submitted to the WalthamCity Counsel and a public hearing is scheduled. Getting the hearing on the docket typicallyrequires a meeting with the City Clerk and substantial paperwork. Once the initial public hearingis completed the application is sent to the Ordinance and Rules Committee for further review and

testimony. After this committee is satisfied, a draft decision submitted to the City Solicitor whoreviews the application. This entire process is required for any new site or modification to anexisting site, and even if everything goes completely smoothly, it almost never takes less than ayear to complete.

24 In Maryland Heights, in response to an AT&T application for a new cell site, the city sought torequire AT&T to pay for part of the development of a private ballpark redevelopment program asa condition of obtaining approval for a cell site. After significant delay, AT&T ultimatelynegotiated paying to only repave the ballparks parking lot.


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Local jurisdictions are even opposing AT&Ts attempt to deploy Distributed Antenna

Systems (DAS) that use much smaller antennas placed on existing utility poles. For example,

Silicon Valley and at least two cities Mountain View and Los Altos have taken the position

that AT&T cannot place antennas on a pole-top extension extending a few feet above existing

utility poles. They contend that the antennas would violate the residential height restriction

even though there is no zoning height restriction for the public rights of way, and normal zoning

requirements do not usually extend to public rights of way. In fact, if that were the case, all

utility poles in residential areas would exceed the zoning height limitations. The City of

Mountain View is taking the position that it must have a new ordinance just for DAS facilities

before it can allow them, and it is demanding that AT&T must file a $30,000 application fee just

to file an application.

To make matters worse, consultants have increasingly begun to insert themselves into

local cell site zoning application processes, adding additional layers of delay. The largest of

these consultants serving localities in 32 states advertises on its website that that [w]e

assure that new facilities are built only as a last, worst case scenario. 25 These consultants

routinely convince local authorities to require applicants to conduct extensive and unnecessary

studies proving why additional capacity is needed in the area, and why various other sites

identified by the consultants (often located outside the area where the coverage or capacity is

needed) are not adequate to serve that purpose. Moreover, the compensation mechanisms used

by these consultants creates strong incentives for them to delay cell site zoning application

proceedings for as long as possible. The localities that use these consultants typically adopt

ordinances (drafted by the consultant) that require the applicant to pay the consultants bills for

25 See Web site for the Center for Municipal Solutions (CMS),http://www.telecomsol.com/home.html.


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reviewing the application.26 As a result, the longer the consultants can draw out the process

creating more work for them the more they get paid.27

The shot clock rules also are ineffective in situations where carriers must obtain approval

from federal government entities or other entities that are not subject to the rules. For example,

AT&T is currently seeking to expand coverage and capacity at Bolling Air Force Base. This

process requires permission to transmit RF signals on the base (this process is still pending), and

also requires AT&T to go through the Government Services Administration to obtain a lease on

the property where the site will be located, which is also a very slow process. AT&T is also

seeking to improve coverage and capacity at Quantico, but that process requires the FBI to issue

a Request For Proposal (RFP). AT&T has been waiting 18 months for the FBI to issue the

RFP.

Finally, in addition to the myriad delays described above, AT&Ts zoning applications

are frequently caught up in the whims of local politics, resulting in arbitrary denials, appeals, and

sometimes befuddling outcomes and additional burdens. A recent case in Liberty, Missouri,

illustrates the types of delays that AT&T routinely encounters. AT&T proposed a 150 exposed

tower on the same parcel of land where Sprint already had an 80 tower. Because the tower was

exposed it required a zoning exception. The zoning board staff was initially supportive of

AT&Ts proposal and designs, the Planning Commission unanimously recommended approval

of the application, and AT&T heard no objections from the Liberty City Council. But the City

26 As explained by one consultants website: our services cost communities nothing; our feesare paid for the by the Wireless applicants. Id.

27 These consultants also promise local governments that, whenever possible, they will requirecarriers to place equipment on property owned by the local governments, even if it is morecostly: We help local officials actually require the use of County or Municipal owned propertyto open opportunities for new and increased revenue. Weve never failed to achieve a dollaramount that was significantly more than was offered and in many cases two or three times theoffered amount. Id.


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Council surprised everyone when it unexpectedly voted 5-3 against the proposal, with no

explanation. In subsequent meetings the City Council explained that it now believed AT&Ts

proposed tower was too tall. This resulted in a lawsuit and a settlement. Under the settlement,

AT&T obtained permission for a 100-foot monopole with internal antenna canisters, but one of

the conditions was that the color or painting scheme be maximally camouflaged and approved by

the city. AT&T submitted three proposed painting schemes that satisfied this condition, but the

City then requested that AT&T paint the pole to look like apencil. So, after more than a year of

delay and denials on the grounds of the alleged conspicuous nature of the proposed site there

is now a 100 foot AT&T cell tower in Liberty, Missouri, that is disguised as a gigantic pencil.

For all of these reasons, the Commission should consider a supplemental declaratory

ruling to strengthen the shot clock restrictions and to establish the following refinements: (1)

The Commission should clarify that the 90-day timeframe for collocation applications is not

limited strictly to attachments on an existing structure, but rather encompasses any application

that does not require the construction of a substantial new facility. (2) The Commission should

also shorten the clock for collocation applications to 60 days; the Commission previously found

that some states have shorter time limits, but the Commission adopted 90 days as a relatively

conservative measure.28 (3) The Commission should also consider rules establishing that an

application is deemed granted if the local authority fails to act within the specified timeframes.

Although the Commission previously declined to adopt such a requirement,29 experience shows

that under the existing ruling, the mere threat of lawsuits often has little deterrent effect on local

authorities, because they believe that at most the court will simply order them to complete review

of the application; in other words, local authorities often treat the shot clock rules as having no

28Shot Clock Ruling 46-47.

29Id. 39.


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teeth at all. At the least, the Commission should clarify that, in a typical case, the court should

issue an injunction ordering the authority to issue the approval.30

(4) As explained above, local

authorities frequently deem an application to be incomplete and require carriers to resubmit the

application, and these authorities then take the position that the shot clock has not started. The

Commission should close this supposed loophole by prohibiting local authorities from

establishing pre-filing requirements (such as proving that a list of other sites are not appropriate)

or engaging in other tactics (such as unwarranted rejections for incompleteness) designed to

thwart the shot clock. (5) Finally, the Commission should use its authority under Section 253 of

the Act to extend the same rules to wireline deployments.

In addition, with respect to deployments on federal property, the Commissions Technical

Advisory Council recently proposed that the President issue a Broadband Infrastructure

Executive Order that would mandate a single document format for permitting, a single

federal agency to coordinate the permit approval process, and a sixty day time frame for

approvals.31 It would also advance the development of micro cells, distributed antenna

systems (DAS), and other innovative broadband infrastructure.32 The Commission should

formally recommend that the President issue such an Executive Order expeditiously.

II. THE COMMISSIONS ENVIRONMENTAL RULES SHOULD BE UPDATED TOCLOSE LOOPHOLES IN THE PROCESS AND TO ACCOUNT FOR THE

EVOLUTION OF WIRELESS TECHNOLOGY.

In addition to local and regional zoning obstacles to wireless facility deployment, the

Commissions environmental rules can impose significant delays in site deployments. These

30See id.

31 Memorandum from Tom Wheeler, Chairman of the Technical Advisory Council, to the FCC,Technical Advisory Council Chairmans Report, at 2 (April 22, 2011).32

Id.


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delays can occur with both collocations and new builds and can run anywhere from four months

to a year. Although the Commission has developed streamlined procedures to obtain clearance

under the environmental rules, those procedures have not kept pace with todays technology,

such as Distributed Antenna Systems (DAS) and stealth deployments, and can also contain

gaps that allow interested parties to impose delays in the process.

All new wireless facilities, including collocations, must comply with the Commissions

National Environmental Policy Act (NEPA) rules (47 CFR 1.1307) and Section 106 of the

National Historic Preservation Act (Section 106),33 which generally require a review of the

potential impact of the facility on the human environment. In 2001 and 2005, the Commission

entered into two programmatic agreements the Nationwide Programmatic Agreement for the

Collocation of Wireless Antennas34 (Collocation NPA) and the Nationwide Programmatic

Agreement Regarding the Section 106 National Historic Preservation Act Review Process35

(Section 106 NPA) that streamlined the processing of wireless facilities to comply with the

Commissions NEPA rules and Section 106. These programmatic agreements proved extremely

beneficial to providers, as they provided exemptions where warranted and certainty and finality

to many aspects of the review. While those benefits remain and should not be lost, the

Commission can further streamline and improve the process.

First, Section 106 requires tower owners to obtain tribal clearance prior to constructing a

new tower. Pursuant to the Section 106 NPA, an entity seeking to locate a wireless facility

3316 U.S.C. 470f.

34See, Nationwide Programmic Agreement for the Collocation of Wireless Antennas, available

athttp://wireless.fcc.gov/releases/da010691a.pdf.

35 Report and Order,Nationwide Programmatic Agreement Regarding The Section 106 National Historic Preservation Act Review Process, FCC 04-222, WT Docket No. 03-128, App. B (rel.Oct. 5, 2004).


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provides notice of the proposed facility to Federally-recognized tribes,36 which notify the

applicant if the Tribe might have an interest in reviewing the proposed project. Many tribes that

respond in the affirmative and undertake such a review complete that review in a timely

manner.37 However, as currently drafted, if a tribe responds that it wants to be an interested

party in the review of the facility, the tribal approval timeline becomes open-ended. While most

tribes complete their review within a responsible time, a few tribes are very slow in reviewing

the sites, even after the tower owner escalates to the Commission and the Commission uses its

best efforts to informally obtain a decision from the tribe. In these cases, Tribal approvals have

taken four to six months after escalation, extending the delay up to nine months to a year after

the initial tribal request.

Second, for collocations with DAS Deployments, the Collocation NPA contains

streamlined Section 106 procedures for collocations. Generally, when locating antennas on a

building or non-tower structure, the licensee need not perform a Section 106 review unless the

building or structure is over 45 years of age, in a historic district, within 250 feet of a historic

district and the antennas are visible from ground level in that district, listed in or eligible for

listing in the National register of Historic Places, or the subject of a complaint received by the

Commission. Otherwise, a Section 106 historical review (with State Historic Preservation

Officer review) and tribal clearance through TCNS are required. These procedures were

developed in 2001 when smaller cell deployments, like DAS and repeater systems, were not

36 Applicants and Tribes use the Tower Construction Notification System (TCNS) to automatethe tribal clearance request and approval process.

37 The Section 106 process is deemed complete if a tribe has not expressed an interest in aproposed facility within about 90 days after submission of the TCNS submission. SeeDeclaratory Ruling, Clarification of Procedures for Participation of Federally Recognized Indian Tribes and Native Hawaiian Organizations Under the Nationwide Programmatic

Agreement, FCC 05-176 (Oct. 6, 2005).


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common, and are not suited to processing through the Collocation NPA process, though that is

better than imposing the full Section 106 review. DAS and repeater deployments on buildings

and other structures, including outdoor DAS deployments on street poles, utility poles, or traffic

poles, create minimal impact on the surrounding environment due to their low visibility.

Requiring Section 106 review for those deployments is inefficient and time consuming and

frequently results in delays in broadband deployment. AT&T anticipates that the deployment of

DAS and repeater systems will accelerate over the next few years, creating the potential for

additional delays and uncertainty.

The Commission can help to address these issues through further streamlining of the

Section 106 process. This would likely require negotiations with tribes, the State Historic

Preservation Officer, and the Advisory Council on Historic Preservation to update or supplement

the NPAs. These types of deployments will only increase in the next few years. A failure to

resolve these problems creates a potential for delayed facility deployment and will result in the

expenditure of substantial resources to clear sites that have minimal impact, with little benefit to

consumers or the environment.


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CONCLUSION

For the foregoing reasons, the Commission should continue its efforts to further eliminate

inefficiencies and delays in the deployment of broadband services caused by inefficient local

requirements.

Respectfully submitted,

/s/ William A. Brown

David L. LawsonJames P. YoungChristopher T. Shenk

SIDLEY AUSTIN LLP1501 K Street, N.W.Washington, D.C. 20005202-736-8088

William A. BrownGary L. PhillipsPaul K. Mancini

AT&T Services, Inc.1120 20th Street, N.W.Suite 1000Washington, D.C. 20036202-457-3007

Its Attorneys

July 18, 2011

Documents

AT&T submission to FCC re: wireless approval process