The document summarizes key legal and regulatory issues regarding access to public rights-of-way and infrastructure for wireless facilities. It discusses the increasing demand for access from new entrants seeking to rapidly deploy facilities. While federal law regulates rates and access to utility poles, municipalities have more flexibility over access to their own infrastructure. The document outlines various federal and state policies impacting wireless siting and urges local governments to proactively manage access in a way that balances various stakeholder interests.

1. The Truth About Wired and Wireless:
Key Legal and Regulatory Issues
Sean Stokes
Baller Stokes & Lide
2014 P Street, NW
Washington, D.C. 20036
(202) 833-0166
sstokes@baller.com
www.baller.com
Gigabit City Summit
August 1, 2017
Kansas City, MO

2. Access to ROW and Infrastructure
Everybody Wants Access to the Same ROW, Poles and Conduit

3. New and Increasing Challenges
▪ Environment over past two decades
▪ Typical pole had an average of 3-4 attaching entities: Utility, Telco,
Cable and perhaps a CAP (competitive access provider)
▪ Existing attaching entities made new attachments or modified existing
attachments on a gradual, incremental basis
▪ Wireless macro facilities located outside of ROW
▪ Streetlight poles for streetlights
▪ Current environment
▪ New entrants seek to build out in high volume in rapid timeframe
through use of bulk deployment, one touch make-ready and dig-once
▪ Existing attaching entities responding to competitive pressure seeking to
upgrade large portions of plant
▪ Wireless entities seeking access to poles, streetlight poles and other
“street furniture” for small cell antennae and backhaul
▪ Congress, FCC and many states -- pressure to expedite permits, lower
rates and accelerate make-ready time frames

4. Everybody agrees that broadband is
good, so why don’t the munis just get out
of the way? Oh…

5. Federal Pole Attachment Rules
▪ 47 U.S.C. Section 224 regulate rates, terms and conditions of
access for wired and wireless attachments to utility poles by
telecommunications carriers and cable operators
▪ FCC’s reclassification of broadband to telecommunications
service extends pole attachment rules to broadband
▪ Rules apply to poles, ducts, conduits and ROW owned by
investor-owned utilities
▪ Rates – FCC has detailed attachment formulas based on an
allocation of the net costs of pole
▪ Access – Prescribed timelines for access to poles
▪ Cardinal rule -- cost causer pays for make-ready

6. Yup Yup Nope ?

7. Municipal Poles Exempt From
FCC Section 224 Pole Authority
▪ Federal rules don’t apply to poles owned by municipal or
cooperatively owned utilities -- 47 U.S.C. § 224(a)(1)
• The term ''utility'' means any person who is a local exchange
carrier or an electric, gas, water, steam, or other public utility,
and who owns or controls poles, ducts, conduits, or rights-of-
way used, in whole or in part, for any wire communications.
Such term does not include any railroad, any person who is
cooperatively organized, or any person owned by the
Federal Government or any State.”
• “The term ''State'' means any State . . . or any political
subdivision, agency, or instrumentality thereof.” 47 U.S.C. §
224(a)(1), (a)(3).

8. Access to ROW vs. Access
to Facilities
 Access to ROW – Locality acting in governmental
capacity
 Subject to federal law 253 (telecom), 332(c)(7) (wireless),
6409(a) (wireless), 521 (cable)
 Subject to state law
 Access to municipally-owned facilities – locality acting in
proprietary capacity
 Far greater flexibility
 Not subject to federal pole attachment requirements
 Possible state regulation
 RF issues safety and interference

9. Wireless Siting Key Federal Statutes: 47
U.S.C. 332(c)
▪ Section 332(c)(7)(“authorization to place, construct or modify personal
wireless service facilities”):
▪ Limited preemption of state and local land use decisions:
▪ No unreasonable discrimination “among providers of functionally
equivalent services”; No actions that “prohibit or have the effect of
prohibiting the provision of personal wireless services”
▪ Shot clocks: must act “within a reasonable period of time”:
▪ 90 days for collocation applications (i.e., mounting of transmission
equipment upon a support structure designed for, or currently used to
support, wireless facilities)
▪ 150 days for applications other than collocations
▪ Incomplete applications toll the shot clock only if local government notifies
the applicant within 30 days
▪ Mutual assent tolls the shot clock
▪ Moratorium does not toll the shot clock.
▪ Not “deemed granted”, only “presumptively reasonable”

10. Other Federal Statutes
• 47 U.S.C. 253
• Prohibition against barriers to entry
• Nondiscrimination
• Safe harbor / affirmative defense for ROW management (253(c))
• Section 6409(a) of 2012 Spectrum Act (47 U.S.C. 1455)
• Modifications to existing facilities
• Modifications that are not “substantial change” must be approved
• 60 days, “deemed granted” remedy

11. What’s Happening at the State
Level?
• Legislation introduced in over 20 states regulating
municipal control over wireless siting
• Sample problematic provisions:
– Small wireless facilities and networks (SWFNs) exempted from
zoning, land use, and other similar requirements, except for
areas zoned for single-family residential use, where might
qualify for special or conditional uses
– In granting permits, local authorities must treat SWFNs like
other communications service providers, even though their
facilities are very different
– Local authorities not allowed to limit the duration of permits
or approvals granted to SWFNs
– Limitations on recovery of fees to costs, limits on attachment
fees for use of municipal poles, streetlight poles
– Questionable presumptions based on size of facility

12. Small in Name Only – Or the Truth
About the “Pizza Box”
Carriers, legislators and FCC often characterize small cell wireless
antennae as being no bigger than a “pizza box.”
But, this does not include associated equipment.
 Missouri House Bill No. 656:
"Small wireless facility", a wireless facility with an antenna of no more
than six cubic feet in volume and associated equipment with a
cumulative volume no larger than twenty-eight cubic feet. An
associated electric meter, concealment, telecom demarcation
box, grounding equipment, power transfer switch, cutoff switch,
vertical cable runs and related conduit on a pole for the
connection of power and other services may be located outside
the primary equipment enclosure and are not included in the
calculation of the equipment volume.

13. Dr. Jonathan Kramer standing
inside a homemade 28 cubic
foot “small cell.”

14. What’s Happening at the Federal
Level?
▪ Chairman Pai has expressed a desire to streamline the state
and local approval process for wireless, lower attachment
rates, and remove the municipal pole attachment
exemption.
▪ Mobilitie Section 253 petition requesting FCC “guidance” on
reasonable terms and conditions related to access to ROW
▪ FCC has issued NPRM/NOI -- WC Docket No. 17-84 – on
revising pole attachment rules (again)
▪ Focused on federal pole attachment regulations but
raises access to municipal utility poles through Section
253
▪ FCC has issued NPRM/NOI -- WT Docket No. 17-79 –
specifically focusing on supposed barriers by local
governments to wireless facility siting …

15. FCC Wireless NPRM/NOI (WT Docket No.
17-79, rel. April 21, 2017)
• NRPM:
• “Deemed granted” shot clock remedy under 332(c)(7).
• NHPA/NEPA review of wireless facilities
• NOI:
• 332(c)(7) vs. 253(a) (cumulative? independent?)
• Role of aesthetic considerations
• Fees
• Asks whether non-cost-based fees are proper
• Suggests that siting on publicly owned lands or structures
might be subject to 332(c).
• Seeks comment on statutory application to
states/localities acting in proprietary vs. regulatory
capacity

16. Local Government Actions
• Be proactive, educate yourself, be flexible
• Develop comprehensive plans that address access to ROW,
and use of city assets
• Identify and pull together key department stakeholders
• Identify existing municipal processes, regulations and
requirements
• Identify city assets
• Identify city priorities
• Identify how ROW/access policies intersect with other city
initiatives, e.g., community broadband, smart city, streetlight
modernization, digital equity initiatives
• Identify areas that can be streamlined
• Work with and listen to industry
• Be prepared for pushback – both legal and political