Update on Wireless Facilities Siting Issues


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Update on Wireless Facilities Siting Issues at SEATOA 2013 Conference

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Update on Wireless Facilities Siting Issues

  1. 1. 4/1/2013 1 Telecommunications Law Telecommunications Law 2 Update on Wireless Facilities Siting Issues National Standards v. Local Control SEATOA 2013 – Networking Communities for the New South Charlotte, NC – March 21, 2013 PRESENTED BY Gail A Karish Of Counsel
  2. 2. 4/1/2013 2 Telecommunications Law 3 Agenda •Wireless industry growth •National Standards v. Local Control  1996: Telecommunications Act of 1996  2009: FCC Shot Clock Order  2010: National Broadband Plan  2011: FCC Rights of Way and Wireless Siting NOI  2012: Collocation Statute  2013: FCC Guidance  Next…FCC Rulemaking and more Telecommunications Law 4 U.S. Wireless Industry Growth 1997 to 2012 Cell Sites Wireless Subscribers (in millions) 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 48.7 134.6 243.4 321.7 0 50 100 150 200 250 300 350 Jun-97 Jun-02 Jun-07 Jun-12
  3. 3. 4/1/2013 3 Telecommunications Law 5 Future Growth •2012-2017 North America can expect 56% CAGR in mobile data traffic  http://www.cisco.com/en/US/solutions/collateral/ns341/ns525/ns537/ ns705/ns827/white_paper_c11-520862.pdf (Cisco, Feb 2013) •AT&T Wireless alone has plans to deploy over 1,000 Distributed Antenna Systems and over 40,000 small cells Telecommunications Law National Standards v. Local Control of Wireless Siting
  4. 4. 4/1/2013 4 Telecommunications Law 7 Round 1 – 1996 Act 47 U.S.C. §253 – Removal of Barriers to Entry  Preempts local laws that prohibit or have the effect of prohibiting the ability of any entity to provide telecommunications services; EXCEPT, e.g. nondiscriminatory requirements with respect to management of rights-of-way and compensation for right-of-way use; police power regulations. 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, but siting decisions must conform to certain federal due process limitations. Telecommunications Law 8 1996 Act •Congress rejected FCC jurisdiction over zoning •Supreme Court agreed:  Congress “initially considered a single national solution, namely, a Federal Communications Commission wireless tower siting policy that would pre-empt state and local authority. But Congress ultimately rejected the national approach and substituted a system based on cooperative federalism. City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 128 (2005) (Breyer J., concurring)
  5. 5. 4/1/2013 5 Telecommunications Law 9 But Congress Did Establish Due Process Requirements • 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 • Must act on a request within a reasonable period. • Decision to deny must be in writing and supported by substantial evidence contained in a written record. • Court remedy: must exercise within 30 days of denial, or failure to act on application. Telecommunications Law 10 1997 to 2009 • Section 332 case law developed • Telcos grow wireless business, mergers • Some wireless legislation at the state level, e.g., California wireless collocation statute • Federal deregulatory action on wireline side • Deregulation of telcos, cable, Internet • Rise and fall of CLECs • Consolidation in wireline and wireless industries
  6. 6. 4/1/2013 6 Telecommunications Law 11 Round 2 – FCC Shot Clock Order (Nov 2009) •Responds to a wireless industry petition •Defines “reasonable period”  150 days for new siting application  90 days for collocation request •Defines an “effective prohibition”  A denial solely because “one or more carriers serve a given geographic market” Telecommunications Law 12 City of Arlington, et al v. FCC •Does the FCC have jurisdiction to make national “shot clock” rules implementing Section 332(c)(7)? •Argued in January 2013 at Supreme Court •Decision expected before end of June 2013
  7. 7. 4/1/2013 7 Telecommunications Law 13 Round 3 – National Broadband Plan (2010) •Congress mandated FCC develop plan •Seeks to foster wireline-wireless competition* * But 2012 Verizon Wireless-Cable joint marketing venture approved •Seeks to remove “barriers” to broadband deployment  Pole attachment rates  Access to public rights of way  Expedite placement of wireless towers Telecommunications Law 14 Round 4 – Rights of Way and Wireless Siting NOI (2011) •FCC initiated Notice of Inquiry to remove “barriers” to broadband deployment •Modest response by wireline industry •Big response by wireless industry, including Distributed Antenna Systems (DAS)
  8. 8. 4/1/2013 8 Telecommunications Law 15 Distributed Antenna Systems Telecommunications Law 16
  9. 9. 4/1/2013 9 Telecommunications Law 17 Rights of Way and Wireless Siting NOI •Met by big response by  national associations representing local governments  individual local governments •Outcome so far:  No binding rules or further proceedings initiated  DAS and Small Cell Workshop (Feb. 1, 2012) Telecommunications Law 18 Round 5 – 2012 Collocation Statute 47 U.S.C. §1455(a) – Modification of Towers/Base Stations (1) IN GENERAL ….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. (2) “eligible facilities request” means any request for modification of an existing wireless tower or base station that involves— (A) collocation of new transmission equipment; (B) removal of transmission equipment; or (C) replacement of transmission equipment.
  10. 10. 4/1/2013 10 Telecommunications Law 19 What is what? Telecommunications Law 20 What is what?
  11. 11. 4/1/2013 11 Telecommunications Law 21 What is covered? Only freestanding towers? Or DAS too? Telecommunications Law 22 Round 6 – 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, aesthetic, or related issues  NON-BINDING BUT WILL BE USED BY INDUSTRY TO SAY THIS IS WHAT YOU SHALL APPROVE
  12. 12. 4/1/2013 12 Telecommunications Law 23 February 2013 Ex Parte •Local jurisdictions explain facts/implications of Guidance The following slides are based on position taken by some in industry that under the FCC Guidance, an installation must be permitted if it involves a change in size less than that specified in the Guidance. We do not agree with that reading of the Guidance. Telecommunications Law 24 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.
  13. 13. 4/1/2013 13 Telecommunications Law 25 Historic Site – Post Guidance? Illustration showing potential impact of co-location of an additional approximately 20’-high pole mounted antenna array. Telecommunications Law 26 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.
  14. 14. 4/1/2013 14 Telecommunications Law 27 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. Telecommunications Law 28 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.
  15. 15. 4/1/2013 15 Telecommunications Law 29 Rooftop Stealth Site – Post Guidance? Illustration of a tower-like structure constructed to support co-location antennas approximately 20’ above existing antennas. Telecommunications Law 30 Brickyard Rd. DAS Site – Neighborhood
  16. 16. 4/1/2013 16 Telecommunications Law 31 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) Telecommunications Law 32 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.
  17. 17. 4/1/2013 17 Telecommunications Law 33 Safety Impacts Under Guidance? Photo of children on approach to a FiOS fiber optic cable enclosure mounted on a utility pole on a sidewalk in Montgomery County, Maryland. A similar or more intrusive structure could be placed at the same location by a DAS provider. Telecommunications Law 34 Safety Impacts Under Guidance?This type of installation would also block a handicapped ramp to access the sidewalk. DAS system operators have installed obstructing facilities in cities like Lafayette, CA: http://www.ktvu.com/videos/news/special-report-new-cell- towers-improved-reception/vF3Mq/, showing DAS expansion.
  18. 18. 4/1/2013 18 Telecommunications Law 35 Next Rounds – FCC Rulemaking? • Genachowski on Collocation Statute: “This provision will accelerate deployment and delivery of high-speed mobile broadband to communities across the nation.” • 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; and  begin developing model facility siting rules for localities Telecommunications Law 36 Take Aways • Absence of competition will affect prices local governments pay for communications services • Expect continued efforts at  national wireless siting standards  preemption of local control over access to and pricing of local government property  state regulatory restrictions that prevent a third way (self-provisioning) • Be prepared to respond quickly to these efforts and early in the decision-making process to provide solid facts and arguments • Need to pool resources to engage effectively in defensive efforts at state and federal levels
  19. 19. 4/1/2013 19 Telecommunications Law 37 Thank you for attending Gail A. Karish  2855 E. Guasti Road, Suite 400 Ontario, California 91761  2000 Pennsylvania NW, Suite 4300 Washington, DC 20006  Direct (909) 466-4916  Mobile (213) 605-1603  Email gail.karish@bbklaw.com  Full bio available at: www.bbklaw.com/gail-karish