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

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Wireless Siting: The Issue that Won't Go Away and Grows in Complexity at 2013 IMLA Mid-Year Seminar

Wireless Siting: The Issue that Won't Go Away and Grows in Complexity at 2013 IMLA Mid-Year Seminar

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  • 1. Telecommunications Law
  • 2. Telecommunications Law Wireless Facilities Siting: Getting More Complicated IMLA Mid-Year Seminar Omni Shoreham Hotel, Washington, D.C., April 14, 2013 PRESENTED BY Joseph Van Eaton Partner
  • 3. Telecommunications Law Goals of this Program •Provide an overview of the evolving federal standards affecting local authority to control zoning of wireless facilities. •Explain what to expect next at the FCC. •Describe how localities should respond.
  • 4. Telecommunications Law OVERVIEW
  • 5. Telecommunications Law Siting Challenges Are Increasing Cell Sites • AT&T Wireless alone has plans to deploy over 1,000 Distributed Antenna Systems and over 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
  • 6. Telecommunications Law 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.
  • 7. Telecommunications Law
  • 8. Telecommunications Law 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, with important exceptions for police power regulations, right-of-way management and compensation for right-of-way use. FCC has stated that 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 certain federal limitations.
  • 9. Telecommunications Law Federal Limitations under Sec. 332 •Designed to prevent feds from acting as a national zoning board, while setting some federal guidelines. •Local regulation shall not:  Unreasonably discriminate among providers of functionally equivalent services.  Prohibit or have the effect of prohibiting the provision of personal wireless services.
  • 10. Telecommunications Law Federal Limitations under Sec. 332 •Locality must act on siting request within a reasonable period. •Denial must be in writing and supported by substantial evidence in written record. •Locality may not deny based on RF concerns as long as facility complies with FCC regs. •Court remedy: applicant must file suit within 30 days of final action or failure to act on application.
  • 11. Telecommunications Law 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 if local action complied with law.
  • 12. Telecommunications 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.
  • 13. Telecommunications Law Round 3 – FCC Notice of Inquiry • Acceleration of Broadband Deployment: Expanding the Reach and Reducing the Cost of Broadband Deployment by Improving Policies Regarding Public Rights of Way and Wireless Facilities,” Docket 11-59. • Examining whether FCC may set prices for use of public property, and whether local government pricing and wireless siting practices are delaying broadband. • Localities responded with case-by-case response to claims that local practices were delaying wireless or wireline deployment. • Notice is still pending.
  • 14. Telecommunications Law 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 tower or base station that does not substantially change the physical dimensions of such tower or base station.  “eligible facilities request” means any request for modification “of an existing wireless tower or base station” involving collocation of new transmission equipment; removal of transmission equipment; or replacement of transmission equipment. • FCC given authority to implement. • Sometime referred to as Sec. 6409.
  • 15. Telecommunications Law FCC Guidance (Jan 2013) • 47 U.S.C. §1403(a) FCC shall implement and enforce this 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 make statute apply to many facilities, including utility poles.  Does not discuss safety issues, proprietary property (light poles) or “non-zoning” rules that may affect placement.
  • 16. Telecommunications Law FCC Guidance (Jan 2013) • Non-binding but will be used by industry to say this is what you shall approve. • Serious constitutional questions regarding statutory provision (can feds compel states and local gov’t to approve?). • Serious questions as to whether FCC “guidance” is consistent with statute. • Combination of guidance and statute may create significant conflicts with existing state and local laws.
  • 17. Telecommunications Law WHAT TO EXPECT NEXT - FEDERAL
  • 18. Telecommunications Law What Happens Next at the Federal Level? •FCC rulemaking on siting: Shot clock Collocation DAS/small cell •FCC rulemaking on RF exposure.
  • 19. Telecommunications Law FCC Has Begun To Revisit RF Issues • Report and Order and Further Notice of Proposed Rulemaking ET Docket No. 03-137 (March 27, 2013); Notice of Inquiry, ET Docket No. 13-84. • Order addresses several technical and semantic issues to revise and update its regulations implementing NEPA. • In Further Notice, FCC proposes to further update and revise its procedures for measuring RF exposure. • In Inquiry, the FCC requests comment to determine whether its RF exposure limits and policies need to be reassessed.
  • 20. Telecommunications Law …Proceeding that Is Likely To Commence in June 2013 • Chairman Genachowski on what’s next:  Actions in the coming months to further streamline DAS and small cell deployment.  Examine whether current application of the tower siting shot clock offers sufficient clarity to industry and municipalities.  Begin developing model facility siting rules for localities. • New Commissioner Pai: Add’l relief for wireless may be warranted. Cited to California as an especially troubling state. • New Commissioner Rosenworcel: Model ordinances.
  • 21. Telecommunications Law Translation: • Significant federal actions likely soon. • No later than June expect a rulemaking to codify existing rules –industry may seek add’l restrictions. • Expect action to “implement” Section 1455 (guidance becomes binding rules?). • Expect action to address DAS installation. • Expect specific communities will be targeted as problems justifying restrictions on local authority.
  • 22. Telecommunications Law Local Governments Are Beginning To Respond to Guidance •FCC criticized for issuing guidance without local/state input. •Individual localities beginning to explain impact of guidance to FCC staff. •Reason to be hopeful with respect to proprietary property issues and safety issues. •But guidance still creates significant problems that could slow wireless deployment.
  • 23. Telecommunications Law Historic Site – Now Historic 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.
  • 24. Telecommunications Law Historic Site – Post Guidance? Illustration showing potential impact of co-location of an additional approximately 20’-high pole mounted antenna array.
  • 25. Telecommunications Law Stealth Site – Now 100’ monopole disguised as a flagpole constructed to conceal six panel antennas within its exterior. Located on Brightseat Road alongside I-95 in Prince George’s County, Maryland.
  • 26. Telecommunications Law Stealth Site – Post Guidance? Illustration shows the potential impact of an approximately 20’- high extension to support a co- location of antennas in a typical triangular platform array (partially shown at top of frame) and smaller co- location in a flush-mount attachment configuration atop the existing monopole.
  • 27. Telecommunications Law Rooftop Stealth Site – Now Two-story office building located on Layhill Road at Bonifant Road in Montgomery County with antennas from three carriers permitted by Special Exception and either concealed within the faux screening atop the penthouse on the roof, or painted to match the exterior of the screening or brick walls.
  • 28. Telecommunications Law Rooftop Stealth Site – Post Guidance? Illustration of a tower-like structure constructed to support co-location antennas approximately 20’ above existing antennas.
  • 29. Telecommunications Law Brickyard Rd. DAS Site – Neighborhood
  • 30. Telecommunications Law Brickyard Rd. DAS Site – Now Pole to support DAS antennas (68’ high) now at Brickyard Road in Montgomery County (part of a multi-node installation that extends down Brickyard Road)
  • 31. Telecommunications Law 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, which rises approximately 20’ above existing DAS antennas. Blocks at bottom reflect related typical pole-mounted equipment cabinets.
  • 32. Telecommunications Law In Addition - Expect Litigation and Legislation at State Level • One company has already amended a complaint against a community in New York alleging violation of Section 1455. • Bills introduced Georgia and California (and passed in MI) limiting local control over collocation. • Expect significant misinformation to be distributed regarding Section 1455 (among others: Section 1455 prevents a locality from requiring a collocation application.
  • 33. Telecommunications Law LOCAL GOVERNMENT RESPONSE
  • 34. Telecommunications Law How To Protect Your Community • Review and update ordinances in light of Section 1455 (and other federal and state laws). • Create coalitions to educate the FCC and Congress now, and to address rulemakings.  FCC actions are likely to be more reasonable if efforts educate staff and Commissioners.  FCC actions will be more measured if localities participate in any rulemaking (example: Docket 11-59). • Do the same at the state level
  • 35. Telecommunications Law 35 QUESTIONS? Joseph Van Eaton Best Best & Krieger LLP 2000 Pennsylvania Avenue Suite 4300 Washington, D.C. 20006 202-370-5306 Joseph.VanEaton@bbklaw.com