Update on Wireless Facilities Siting Issues at SEATOA 2013 Conference

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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

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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

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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

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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)

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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

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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

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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)

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Telecommunications Law 15
Distributed Antenna Systems
Telecommunications Law 16

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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.

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What is what?
Telecommunications Law 20
What is what?

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What is covered?
Only freestanding
towers?
Or DAS too?
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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

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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.

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Historic Site – Post Guidance?
Illustration showing potential impact of co-location of an additional approximately 20’-high pole mounted antenna array.
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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.

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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.

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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

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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.

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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.

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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

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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