update on wireless facilities siting issues

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Update on Wireless Facilities Siting IssuesNational Standards v. Local Control

SEATOA 2013 – Networking Communities for the New South

Charlotte, NC – March 21, 2013

PRESENTED BY

Gail A KarishOf Counsel

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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

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U.S. Wireless Industry Growth1997 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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Future Growth

•2012-2017 North America can expect56% 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 deployover 1,000 Distributed Antenna Systemsand over 40,000 small cells

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National Standardsv.

Local Control of Wireless Siting

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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 ofrights-of-way and compensation for right-of-way use; police powerregulations.

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 sitingdecisions must conform to certain federal due process limitations.

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1996 Act

•Congress rejected FCC jurisdiction over zoning

•Supreme Court agreed: Congress “initially considered a single national solution,

namely, a Federal Communications Commission wirelesstower siting policy that would pre-empt state and localauthority. But Congress ultimately rejected the nationalapproach and substituted a system based on cooperativefederalism. City of Rancho Palos Verdes v. Abrams, 544 U.S.113, 128 (2005) (Breyer J., concurring)

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But Congress Did EstablishDue Process Requirements

• Local regulation shall not:

unreasonably discriminate among providers of functionallyequivalent services;

prohibit or have the effect of prohibiting the provision ofpersonal wireless services

• Must act on a request within a reasonable period.

• Decision to deny must be in writing and supported bysubstantial evidence contained in a written record.

• Court remedy: must exercise within 30 days of denial,or failure to act on application.

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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 servea given geographic market”

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City of Arlington, et al v. FCC

•Does the FCC have jurisdiction to makenational “shot clock” rules implementingSection 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 broadbanddeployment

Pole attachment rates

Access to public rights of way

Expedite placement of wireless towers

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Round 4 – Rights of Way and WirelessSiting NOI (2011)

•FCC initiated Notice of Inquiry to remove“barriers” to broadband deployment

•Modest response by wireline industry

•Big response by wireless industry, includingDistributed Antenna Systems (DAS)

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Distributed Antenna Systems

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Rights of Way and Wireless Siting NOI

•Met by big response by

national associations representing localgovernments

individual local governments

•Outcome so far:

No binding rules or further proceedings initiated

DAS and Small Cell Workshop (Feb. 1, 2012)

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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 amodification of an existing wireless tower or base station thatdoes not substantially change the physical dimensions of suchtower or base station.

(2) “eligible facilities request” means any request formodification of an existing wireless tower or base station thatinvolves—

(A) collocation of new transmission equipment;

(B) removal of transmission equipment; or

(C) replacement of transmission equipment.

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What is what?

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What is what?

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What is covered?

Only freestandingtowers?

Or DAS too?

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Round 6 – FCC Guidance (Jan 2013)

• 47 U.S.C. §1403(a) FCC shall implement and enforcethis 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 makestatute 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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February 2013 Ex Parte

•Local jurisdictions explain facts/implications ofGuidance

The following slides are based on position taken bysome in industry that under the FCC Guidance, aninstallation must be permitted if it involves a changein size less than that specified in the Guidance. Wedo not agree with that reading of the Guidance.

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Historic Site - NowHistoric 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 toconceal six panel antennas within its exterior. Locatedon Brightseat Road alongside I-95 in Prince George’s

County, Maryland.

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StealthSite – PostGuidance?

Illustration shows the potential impact of anapproximately 20’-high extension to support a co-

location of antennas in a typical triangular platformarray (partially shown at top of frame) and smaller co-

location in a flush-mount attachmentconfiguration atop the existing monopole.

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Rooftop Stealth Site – NowTwo-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 penthouseon the roof or painted to match the exterior of the screening or brick walls.

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

existing antennas.

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Brickyard Rd. DAS Site – Neighborhood

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Brickyard Rd. DAS Site – NowPole to support DAS antennas (68’ high) now at Brickyard Road in Montgomery County (part of a multi-node

installation that extends down Brickyard Road)

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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, whichrises approximately 20’ above existing DAS antennas. Blocks at bottom reflect related typical pole-mounted equipment cabinets.

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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 DASprovider.

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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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Next Rounds – FCC Rulemaking?

• Genachowski on Collocation Statute: “This provision willaccelerate deployment and delivery of high-speed mobilebroadband to communities across the nation.”

• Genachowski on what’s next:

actions in the coming months to further streamline DAS andsmall cell deployment

examine whether current application of the tower sitingshot clock offers sufficient clarity to industry andmunicipalities; and

begin developing model facility siting rules for localities

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Take Aways

• Absence of competition will affect prices localgovernments 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 andearly in the decision-making process to provide solidfacts and arguments

• Need to pool resources to engage effectively indefensive 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, Suite4300 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