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

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

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.

OVERVIEW

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

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, 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.

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.

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.

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.

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: 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.

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.

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.

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.

WHAT TO EXPECT NEXT - FEDERAL

What Happens Next at the Federal
Level?
•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 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.

…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.

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.

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.

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.

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 to
conceal six panel antennas within its exterior. Located
on Brightseat Road alongside I-95 in Prince George’s
County, Maryland.

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.

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.

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

Brickyard Rd. DAS Site – Neighborhood

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)

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.

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.

LOCAL GOVERNMENT
RESPONSE

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

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

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