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BEFORE THE PENNSYLVANIA PUBLIC UTILITY COMMISSION

HARRISBURG, PA 17120

In the Matter of

Review of Issues Relating to Commission Certification of Distributed Antennae System Providers in Pennsylvania

))))))

Docket No. M-2016-2517831

REPLY COMMENTS OF CROWN CASTLE

Pursuant to the Commission’s February 23, 2016 Order (the “Order”) in the above-

captioned proceeding, Crown Castle NG East LLC and Pennsylvania–CLEC LLC (jointly

“Crown Castle”) submit these reply comments addressing the opening comments of parties in

this docket on the issues raised by the Commission regarding companies providing

telecommunications services via distributed antenna systems (“DAS”).

I. INTRODUCTION

The opening comments in this proceeding from the members of the industry provide the

Commission with a consistent description of the services provided via DAS networks and an

explanation of why the Commission has been correct to deem the providers of such services

public utilities requiring a CPC. In contrast, the comments filed by the Cities1 and the Office of

1 Responses of the Pennsylvania Municipal League, the Pennsylvania State Association of Township Supervisors, the Pennsylvania State Association of Boroughs, and the Pennsylvania State Association of Township Commissioners (hereinafter “Cities”).

Several form letters from municipalities in the Commonwealth were also filed late in this docket. However, the superficial and conclusory content of the form letters is largely duplicative of the Cities’ filed comments and thus adds nothing to the record. The arguments put forward in these form letters are incorrect for the same reasons that arguments made by the Cities are incorrect, as discussed herein.

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Consumer Advocate (“OCA”), i.e., parties who do not deploy DAS networks or provide

telecommunications services, reveal confusion, misunderstanding, and in some cases

mischaracterization of the services provided via DAS networks.

Consistent with Crown Castle’s initial comments, comments from CTIA, PCIA, and

ExteNet demonstrate that companies are providing telecommunications services via DAS

networks, and those companies are not engaged in the provision of CMRS or other wireless

service. OCA and the Cities, in contrast, assert that companies providing telecommunications

service via DAS networks are engaged in “wholesale CMRS” and are themselves providing

wireless service. The rest of OCA’s and the Cities’ comments are then premised on or infected

with that faulty premise.

As discussed in detail below, neither Crown Castle nor other similar companies providing

telecommunications service via DAS networks are providing “wholesale CMRS” or CMRS at

all. Wholesale CMRS occurs when a licensed CMRS carrier, such as T-Mobile or Verizon

Wireless, sells some of its CMRS service on a wholesale basis to a reseller, such as an MVNO

(Mobile Virtual Network Operator), which then re-sells that CMRS service to consumers.

Crown Castle, and others like it, do not control licensed frequencies from the FCC that they

could then sell on a wholesale basis. Moreover, as Crown Castle emphasized in its initial

comments, the telecommunications service it provides via DAS networks is a transport between

two fixed points. The service provided via a DAS network by Crown Castle and similar entities

is not “mobile” service, and it is not a service transported via radio.

Contrary to the analysis advanced by the Cities, the service provided and network used

by a common carrier is not defined by the purpose or content of the common carrier’s customer.

By being a carrier’s carrier for wireless carriers, Crown Castle does not itself become a wireless

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carrier any more than a telecommunications provider becomes an Internet Service Provider

(“ISP”) just by providing transport service to an ISP.

The comments in the proceeding support Crown Castle’s comments, demonstrating that

the Commission has been correct in holding that companies that provide telecommunications

service via DAS networks are public utilities requiring a CPC. The Commission is not

preempted from granting those certificates. There is no comprehensive federal regulatory

scheme with which the Commission’s grant of CPCs conflicts. Indeed, issuing CPCs to

companies that provide telecommunications services via DAS networks is consistent with the

Commission’s well-established precedent.

Moreover, the comments overwhelmingly support Crown Castle’s explanation that the

Commission’s issuance of CPCs is important to the ability of companies, such as Crown Castle,

to obtain pole attachments on fair and reasonable rates, terms, and conditions, and to access

public rights of way. The comments by the Cities asserting the contrary are not based on the

experience of companies such as Crown Castle.

Accordingly, for the reasons discussed in Crown Castle’s initial comments, it is in the

public interest and consistent with Pennsylvania and federal law for the Commission to continue

with its established processes and precedents of issuing CPCs to companies that provide

telecommunications services via DAS networks.

II. WHAT IS A DISTRIBUTED ANTENNA SYSTEM; WHAT SERVICE IS PROVIDED VIA A DISTRIBUTED ANTENNA SYSTEM (ORDER ISSUE #1)

In its initial comments, Crown Castle explained that a DAS network is a fiber optic based

network via which Crown Castle can provide telecommunications services in the form of

transport of customer signals between two fixed points that are commonly referred to as the

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"Hub” and “Nodes.”2 Crown Castle’s description of a DAS network and the telecommunications

services provided via a DAS network was consistent with the description provided in the

comments of CTIA, PCIA, and ExteNet.3 For instance, ExteNet explains that “[DAS] antennas

are connected through a transport medium (typically fiber optic cable) to a central hub site,

which aggregates traffic and acts as a common interface between the DAS and [Wireless Service

Provider] networks.”4 CTIA adds that “it is important to note that neutral-host DAS networks

are not the equivalent of wireless service providers’ systems,” but instead “is a separate mini-

network operating seamlessly within a wireless service provider’s radio network (or within the

networks of multiple providers), comprising a combination of antennas, backhaul facilities and

associated transmission equipment.”5 In contrast, as addressed below, the Cities and OCA

advanced several inaccurate conclusions regarding DAS networks and the service provided over

them.

A. The Service Provided Via DAS Networks Is Not “Wholesale CMRS”

Contrary to the assertion by the Cities and OCA, when Crown Castle provides

telecommunications service via a DAS network, it is not providing “wholesale CMRS.”6

“Wholesale CMRS” is not a service defined by federal or Pennsylvania law. However, it is clear

that “wholesale CMRS” is not what Crown Castle and others are providing using DAS networks.

The provision of CMRS on a wholesale basis refers to the business between licensed

wireless carriers and wireless resellers known as “MVNOs” (Mobile Virtual Network

2 Crown Castle Cmts 3-5. 3 See CTIA Cmts 3-7; PCIA Cmts 3-4; ExteNet Cmts 5-7. 4 ExteNet Cmts 5-6. 5 CTIA Cmts 5. 6 OCA Cmts 2, 6, 9, 18, 19; see also Cities Cmts 4-5, 11, 22.

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Operators). The FCC has explained that “[t]he four nationwide service providers offer prepaid

service under their own prepaid brands, in addition to selling mobile wireless service wholesale

to MVNOs, which then resell service on the nationwide networks under other prepaid brands.”7

The FCC cited Verizon Wireless, who explained that “MVNOs execute a contract with Verizon

Wireless to buy wireless service from Verizon Wireless to resell under their own brand to

customers and perform all marketing, billing, collections and customer service for the customers

they activate.”8

Crown Castle does not provide “wholesale CMRS” because Crown Castle does not

provide CMRS. Crown Castle addressed this issue in its initial comments.9 As a threshold

matter, it should be clear that neither Crown Castle nor any other “DAS company” that Crown

Castle is aware of is reselling CMRS service. Crown Castle and the other companies that have

obtained CPCs from the Commission do not have any relationship with retail consumers of

mobile services, the way that an MVNO does. Crown Castle is providing fiber optic transport

service to federally licensed wireless carriers that control and provide all wireless transmissions

and services to mobile service consumers.

The Cities’ comments argue that “entities that facilitate traditional CMRS” “could also

qualify as CMRS.”10 But that argument is flawed. The Cities quote Section 332 of the federal

7 In the Matter of Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993; Annual Report and Analysis of Competitive Market Conditions With Respect to Mobile Wireless, Including Commercial Mobile Services, Eighteenth Report, 30 FCC Rcd 14515 ¶ 94 (Dec. 23, 2015) (emphasis added); see also id. ¶ 11 (“Resellers and mobile virtual network operators (‘MVNOs’) do not own any network facilities, but instead they purchase mobile wireless services wholesale from facilities-based providers and resell these services to consumers”). 8 Id. (citing http://www.verizonwireless.com/b2c/aboutUs/reseller/authorizedAgentIndex.jsp). 9 Crown Castle Cmts 6-11. 10 Cities Cmts 4.

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Communications Act defining CMRS, and then assert DAS providers meet both elements of the

definition by providing service for a profit and by assisting in making interconnected service

available. However, the Cities ignore the first three words of the definition that say “any mobile

service.”11 As Crown Castle demonstrated in its initial comments, Crown Castle is not providing

“mobile service.”12 The federal Communications Act and the FCC’s Rules define “mobile

service” as “a radio communication service carried on between mobile stations or receivers and

land stations, and by mobile stations communicating among themselves.”13 Both versions of the

definition go on to list various characteristics that the “mobile service” must include, but the keys

to the definition are the terms “radio communication service” and “mobile stations.” As Crown

Castle’s initial comments demonstrated, it does not provide mobile service because it does not

provide service via radio or via mobile stations.14 Crown Castle transports its carrier-customers’

signals via fiber optic line between and among fixed points. Once Crown Castle has transported

a communication over its fiber optic facilities to the antenna at the Node, or to the Hub in the

other direction, the communication is converted back to an RF signal, and the carrier customer

controls and provides the transmission by radio to the end-user consumer’s mobile device. All

RF transmissions and wireless services are controlled and provided by the wireless carrier

customer—not Crown Castle.

For the same reasons, the Cities are wrong when they assert that DAS providers fall into

a category of personal communications service (“PCS”) as defined in 47 C.F.R. § 24.5.15 In

11 47 U.S.C. § 332(d)(1). 12 Crown Castle Cmts at 7-11. 13 47 U.S.C. § 153(33); 47 C.F.R. § 20.3 (emphasis added). 14 Crown Castle Cmts at 7-11. 15 Cities Cmts 5-6.

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quoting the definition of PCS, the Cities omit the critical first words that state it is “Radio

communications. . . .”16 Under the federal Communications Act, “radio communication” means

“the transmission by radio of writing, signs, signals, pictures, and sounds of all kinds, including

all instrumentalities, facilities, apparatus, and services (among other things, the receipt,

forwarding and delivery of communications) incidental to such transmission.”17 Crown Castle’s

service does not meet this definition because Crown Castle does not transmit writing, signs,

signals, pictures, or sounds by radio.18 Even the Cities’ comments describe the fact that all radio

transmissions are controlled by the wireless carrier customer to whom a company like Crown

Castle provides service.19

Ultimately, it appears that the Cities (and perhaps OCA) are under the mistaken

impression that companies, such as Crown Castle, are building a DAS network that by itself

provides CMRS service, and that the “DAS provider” then provides that CMRS service to

wireless carriers, such as AT&T, on a wholesale basis. So, for example, the Cities assert that

“AT&T Mobility leases capacity from DAS providers . . . to create its 4G LTE Wireless

Network.”20 The Cities appear to believe that AT&T Mobility is leasing RF spectrum capacity.

But that assertion reflects a fundamental error in how CMRS works. In any given market,

AT&T Mobility has federally-granted licenses to control its relevant RF spectrum. Crown Castle

or other such companies cannot build a DAS network that would purport to provide CMRS

service via that RF spectrum and lease it to AT&T Mobility (or any other relevant licensed

16 47 C.F.R. § 24.5 (emphasis added). 17 47 U.S.C. § 153(40) (emphasis added). 18 Crown Castle Cmts 7-8. 19 Cities Cmts 3. 20 Id. 7-8 (emphasis added).

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CMRS provider). When Crown Castle or similar telecommunications providers build a DAS

network, they are providing a pure transport service between Hub and antenna at the Node. All

mobile, radio communications between the antenna and a consumer’s mobile device are

controlled and made possible as the result of the input from the wireless carrier customer.

Crown Castle and others like it merely transport those communications signals that are from and

controlled by Crown Castle’s wireless carrier customers.

The potential confusion revealed by the Cities’ and OCA’s comments may lie in the fact

that a DAS network is not a singular service. As Crown Castle’s and PCIA’s comments

explained, a “distributed antenna system” is a network. It is not a specific service. When

different entities build and operate a DAS network, it can be different. Most notably, as the

comments make clear, a DAS network can be built by a company, such as Crown Castle, and

then that company provides telecommunications service to retail CMRS carriers via the DAS

network on a “neutral host” basis. However, an individual CMRS carrier, such as AT&T

Mobility, can also build a DAS network that it operates on a purely private basis. In such a

scenario, the CMRS provider would not carry any other companies’ signals on the DAS network

and would not be providing telecommunications service to other carriers via the DAS network.

The “wholesale CMRS” “DAS service” that the Cities and perhaps OCA envision is what

would occur if a licensed CMRS provider, for example AT&T Mobility in the Cities comments,

were to build a DAS network and then resell its CMRS service on a wholesale basis to MVNOs

via that DAS network (but realistically, AT&T Mobility could not restrict that resold CMRS to

just using a particular DAS network). That scenario would be “wholesale CMRS” via a DAS

network. However, that scenario is not what Crown Castle or any other company that has

obtained a CPC from the Commission is offering—and it is a critical distinction.

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B. DAS Networks Are Not Wireless Repeaters

In the Cities’ comments, they assert several times that DAS networks are “repeaters.”

But that is incorrect.21 Simply put, a repeater is a device that accepts a wireless, radio frequency

signal from over the air and re-transmits that same signal over the air. The FCC defines a

“repeater” as “[a] fixed transmitter that retransmits the signals of other stations.”22 As Crown

Castle and others explained, DAS networks transport communications signals between two fixed

points. To the extent that there is a wireless transmission from the antenna end of a DAS

network, the signals are generated and controlled by the carrier customer’s equipment located at

the Hub. Likewise, radio frequency signals received at the antenna end of a DAS network are

transported by Crown Castle over fiber optic lines back to the Hub where the signal is handed off

to Crown Castle’s customer. The DAS network is not receiving radio communications at the

Node and simply retransmitting them back out from the Node. Contrary to the Cities’

characterization, the DAS network does not merely “extend or boost a [wireless] provider’s radio

frequency (‘RF’) signals or spectrum.”23

III. CROWN CASTLE’S STATUS AS A PUBLIC UTILITY IS CONSISTENT WITH COMMISSION PRECEDENT

In its opening comments, Crown Castle demonstrated that under 66 Pa. Cons. Stat. § 102,

the Commission has correctly held that Crown Castle’s provision of telecommunications services

via DAS networks, among other networks, make Crown Castle, and others like it, a public

utility.24 The Public Utilities Code “does not narrowly define what constitutes a ‘public

21 Cities Cmts 2-4. 22 47 C.F.R. § 22.99. 23 Cities Cmts 2. 24 Crown Castle Cmts 5, 11-13.

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utility.’”25 The comments from PCIA, ExteNet, and CTIA all made the same point that

companies providing telecommunications service via DAS networks are public utilities under

Section 102 of the Public Utilities Code.26

A. The Telecommunications Service Provided By Crown Castle Via DAS Networks Is Not Defined By The Services Or Purposes Of Crown Castle’s Customers

In contrast, the Cities’ comments argue that “DAS providers” do not fit within the

definition of a public utility, but in making that argument the Cities’ comments conflate the

telecommunications services provided via DAS networks with the services provided by Crown

Castle’s customers. However, the purpose or nature of the services provided by Crown Castle’s

customers does not alter Crown Castle’s status as a telecommunications service provider and

public utility. The Commission has previously rejected arguments exactly like the one advanced

by the Cities.

For example, the Cities attempt to distinguish Rural Tel. Co. Coalition v. PUC, 941 A.2d

751 (Pa. Comm. Ct. 2008), but the case and the Commission’s rulings at issue in the case

ultimately demonstrate that Crown Castle and others like it are properly public utilities. In

Rural, the Commission had granted a CPC to Core Communications, which offered services that

provided connectivity between information service providers, such as ISPs, and the Public

Switched Telephone Network (PSTN). Very much like the OCA and Cities in the present

proceeding, in Rural, the parties opposing the CPC grant to Core argued that Core was a

“wholesale ISP.” Id. at 753. In other words, they tried to conflate Core’s telecommunications

transport service with the service of Core’s customers. The Commission and the court both

25 Rural Tel. Co. Coalition v. PUC, 941 A.2d 751, 759 (Pa. Comm. Ct. 2008). 26 PCIA Cmts 4-9; ExteNet Cmts 7-8; CTIA Cmts 8-13.

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rejected that argument and in so doing made clear that the provision of telecommunications

service is not defined by the services or communications that are carried.

The Court said of Section 102 of the Public Utility Code that “[t]he Code does not

narrowly define what constitutes a ‘public utility’ and Pennsylvania law does not narrowly

construe what it means to make an offering to the ‘public’ as well.”27 The Court also relied on

the FCC’s decision in the Fibertech cases, cited by Crown Castle in its initial comments.28 The

Court noted that the FCC’s Fibertech decisions used definitions contained in the Pennsylvania

Code and other Commission decisions to determine that Pennsylvania’s approach is consistent

with federal law. And the Court confirmed the distinction between a carrier and the services that

it carries, stating that “[t]he FCC [Fibertech] Decisions confirm that internet service is an

information service, but that the transmission path needed to provide that internet service is a

telecommunication service if the transmission path service is offered to the public by a common

carrier. Thus, the Commission was correct in determining that transmission path service is a

telecommunication service under state and federal law.”29

The Court’s holding was consistent with the Commission’s arguments in its brief in that

case. The Commission stated in its brief that “[t]he [Core] Order follows federal precedent

which distinguishes between the transmission paths an ISP needs to provide dial-up access to the

Internet and dial-up Internet service itself. The PUC agreed with the FCC that the transmission

path service is a telecommunications service and that dial-up Internet service is an information

27 Rural Tel. Co. Coalition, 941 A.2d at 759. 28 Crown Castle Cmts 14-15 (discussing Fiber Technologies Networks, LLC v. North Pittsburgh Telephone Company, Memorandum Opinion and Order, File No. EB-05-MD-014, 22 FCC Rcd 3392 (E.B. Feb. 23, 2007)).. 29 Rural Tel. Co. Coalition, 941 A.2d at 758-59 (emphasis added).

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service.”30 The Commission’s Brief in Rural also cited to the FCC’s Fibertech decision, and

regarding the argument that the facilities used by an ISP to provide access to the Internet is an

information service just like the Internet service itself, said: “The [Fibertech] Decisions reject

that reasoning. The FCC holds that transmission path service is a telecommunications service if

offered on a nondiscriminatory basis to the public by a common carrier.”31

The Cities argue that the Core decision is inapplicable because “ISPs and VOIP providers

eventually connect their services to a PTSN” and “DAS services do not establish NXX area

codes, obtain telephone numbers from a national administrator, or operate switch points.”32 Yet,

those were not the grounds on which the Commission and the Court held that Core was a

telecommunications service provider and public utility. Indeed, connection to the PTSN is not a

part of the definition of a public utility or a telecommunications service provider. The Cities are

making the same faulty argument rejected by the Commission and Court in the Core case—that

the telecommunications provider’s service is defined by the purpose of the signals it is carrying.

Likewise, OCA’s comment that grant of CPC to Core “enhanced the interconnection of wireline

and cable telephony service”33 is irrelevant and was not ultimately grounds for the grant.

B. Telecommunications Services Provided Via DAS Networks Are Provided To The Public

The Cities are also mistaken when they assert that “DAS does not provide services to the

public.”34 In Rural, the Court and the Commission both recognized that transport services that

30 Rural Tel. Co. Coalition v. PUC, Final Form Brief of Respondent Pennsylvania Public Utilities Commission, 2007 PA CW. Ct. Briefs 598255 *7-8 (Aug. 1, 2007) (emphasis added). 31 Id. at *24-25 (internal citations omitted). 32 Cities Cmts 7. 33 OCA Cmts 8. 34 Cities Cmts 22.

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are of use to only a certain group are nonetheless offered “to the public” for purposes of being a

public utility. The Court, upholding the Commission, held that “the public is not confined to the

entire public. Offering a service to a limited class of customers constitutes public utility

service.”35

C. The Commission Is Not Preempted From Certificating A Company Providing Telecommunications Service Via A DAS Network

Throughout their comments, the Cities assert that the certification and regulation of the

providers of DAS networks is preempted by federal law and FCC regulation. The Cities’

arguments, however, are premised on inaccurate conclusions about the status of the service

provided via DAS networks and also mischaracterizations of federal law.

The Commission’s regulation of Core Communications again demonstrates that the

Commission has been correct to grant CPCs to companies, such as Crown Castle. The Cities cite

AT&T Corp. v. Core Communications, Inc. in support of their argument that the Commission

cannot exercise jurisdiction over “purely interstate” traffic.36 The fundamental flaw in the Cities

argument is their assertion that Crown Castle and others like it are providing wireless services.37

35 Rural Tel. Co., 941 A.2d at 760. 36 Cities Cmts 10-11. 37 Id. 11. The Cities arguments for why “DAS service” is primarily interstate are based on the continued flawed characterization of “DAS service” as providing “mobile broadband boosts” and a mistaken analysis that “[i]n many areas, the capacity boost created by individual DAS network[sic] could easily cross state lines.” Cities Cmts 7-8. As demonstrated previously, Crown Castle and others like it do not provide any service between the antenna Node and consumers’ mobile devices. Similarly, the Cities’ assertion that because AT&T Mobility—as the customer of a DAS network—“is headquartered in just one state, but provides service nationally” does not make all telecommunications services that it uses “interstate.” Alternatively, the Cities argue that the local “capacity boost” provided by a DAS network cannot be separated from the wireless carrier’s national network. Indeed, the Cities would go so far as to say that any “backend support” for existing cellular service providers “should not be severed from the systems they support.” Id. Again, the Cities are improperly conflating the specific local fiber optic transport service of Crown Castle with the wireless service of Crown Castle’s customers.

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However, even if there were an interstate element, as in AT&T, it does not mean that the

Commission is necessarily preempted.

In AT&T, even if there was an interstate element of Core Communication’s service, the

issue was strictly the Commission’s authority over pricing, which was upheld. There was no

challenge to the fact that the Commission had granted Core Communications a CPC to provide

transport services to ISPs—a grant which was upheld in Rural Tel. Co.

Fundamentally, the issue is whether the Commission is preempted from issuing CPCs to

companies that provide telecommunications services including over DAS networks. The

Commission is not preempted from doing so. The Cities assert that any regulation of companies

providing telecommunications service via DAS networks would “likely conflict with the

extensive federal regulatory framework that already applies to DAS providers.”38 Yet, there is

no such “extensive federal regulatory framework” that conflicts with the Commission’s issuance

of CPCs and regulation thereunder. The Cities repeatedly cite to the FCC’s 2014 Infrastructure

Order, in which the FCC clarified that the so-called “shot clock” rules apply also to the

deployment of DAS networks.39 The FCC’s “shot clock” rules are an interpretation of what

constitutes a “reasonable time” for local governments to act on applications to deploy wireless

facilities under Section 332(c)(7)(B)(ii) of the Communications Act.40 The FCC’s “shot clock”

defines a presumptively reasonable time for local governments to act.41 However, enforcement

38 Cities Cmts 11. 39 Id. 40 Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review and to Preempt Under Section 253 State and Local Ordinances that Classify All Wireless Siting Proposals as Requiring a Variance, Declaratory Ruling, 24 FCC Rcd 13994 (2009) (“2009 Shot Clock Order”). 41 Id.

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of the Section 332(c)(7)(B)(ii) “shot clock” is in the courts.42 The “shot clock” rules cited by the

Cities are not an “extensive federal regulatory framework” with which any regulation by the

Commission would conflict so as to preempt the Commission’s action.

The Cities also cite to the Spectrum Act of 2012. But like the shot clock rules, Section

6409(a) of the Spectrum Act is not an extensive federal regulatory framework that preempts

issuance of CPCs by the Commission.43 Section 6409(a) of the Spectrum Act provides that a

local government cannot deny and shall grant an application to modify an existing wireless

tower or base station (via collocation of new equipment, removal of equipment, or replacement

of equipment) that does not substantially change the physical dimensions of such tower or base

station.44 In its 2014 Infrastructure Order, the FCC provided clarification of ambiguous terms in

Section 6409(a), and held that if a city failed to act on such a request within 60 days it would be

deemed granted.45 But, again, there is no extensive federal regulatory regime that the

Commission’s grant of CPCs is or would conflict with. The Commission’s grant of a CPC to

Crown Castle, for example, does not impact whether some of Crown Castle’s equipment is also

within the definition of “wireless facilities” for purposes of the limits on local government set

forth in Section 332 of the Communications Act or Section 6409 of the Spectrum Act. The law

does not provide that the owner of “personal wireless service facilities” is automatically itself a

provider of personal wireless services. Indeed, as explained in the comments in this proceeding,

42 Id. ¶¶ 25, 32, 37. 43 Section 6409 was codified at 47 U.S.C. § 1455. 44 47 U.S.C. § 1455(a). 45 Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies; 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 Siting; 2012 Biennial Review of Telecommunications Regulations, Report and Order, 29 FCC Rcd 12865 (2014) (“2014 Infrastructure Order”).

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it is entirely possible for companies that do not themselves provide any wireless service to own

and deploy networks that incorporate “wireless” equipment.

Likewise, the Cities are simply wrong when they assert that “health, safety and welfare of

the general public, as well as a DAS provider’s continuity of service . . . are addressed by the

FCC in its October 2014 Order.”46 The FCC’s Order is not so broad, and the paragraphs cited by

the Cities do not support their assertion. The paragraphs of the FCC’s 2014 Order that the Cities

cite in support of this assertion are the three initial paragraphs summarizing the Order, which is

not even limited to DAS networks, and then five later paragraphs giving a general “description of

DAS, small cells, and other small wireless technology.”47 Under the 2014 Infrastructure Order,

the FCC does not “regulate[] DAS providers” or their “continuity of service.”48

The Cities also assert that somehow the language in Section 332(c)(7)(A) of the

Communications Act preempts the Commission from issuing CPCs to companies like Crown

Castle.49 Section 332(c)(7)(A) merely expresses that to the extent local governments have any

authority under state law, the Communications Act does not limit that authority except as set

forth in Section 332(c)(7)(B), which contains several substantive and procedural limits on local

authority. The Cities seek to paint Section 332(c)(7) as a broad grant of authority to local

governments. Yet, the Supreme Court has repeatedly recognized that the opposite is true. The

purpose of Section 332(c)(7)(B) was to remedy the problem that “local requirements, siting and

zoning decisions by non-federal units of government, have created an inconsistent and, at times,

46 Cities Cmts 22. 47 Cities Cmts 22 (citing 2014 Infrastructure Order ¶¶ 1-3, 29-34). 48 Cities Cmts 13. 49 47 U.S.C. § 332(c)(7)(A) (“[e]xcept as provided in this paragraph, nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities”).

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conflicting patchwork of requirements which will inhibit the deployment of” wireless services.

H.R. Rep. No. 104-204, pt. 1, at 95 (1995). In light of that explicit purpose, the Supreme Court

has recognized that the goal of Section 332(c)(7)(B) “was reduction of the impediments imposed

by local governments upon the installation of facilities for wireless communications, such as

antenna towers . . . [through] impos[ition of] specific limitations on the traditional authority of

state and local governments to regulate the location, construction and modification of such

facilities.” City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 115 (2005) (emphasis added).

The Cities’ assertions in this proceeding are seeking to expand their authority. As set

forth in Crown Castle’s initial comments, Pennsylvania law grants rights to public utilities that

limit the authority of local governments. Moreover, local governments do not impose

discretionary zoning requirements on public utility deployment in public rights of way.

Although DAS networks are extremely similar in size and type to the other utility facilities that

are commonly installed on utility poles, the Cities seek to regulate and limit them based solely on

the fact that the antenna emits RF transmissions. Contrary to their argument that regulation by

the Commission would “create a potential barrier to entry into the market by delaying installation

and construction,” the issues that companies have encountered in deploying DAS networks has

been with local government opposition or regulation, not any action by a state commission.50

D. Crown Castle Serves The Public And Has Filed A Tariff Subject To Commission Regulation

The Cities argue that denying public utility status to “DAS providers” is in line with

Pennsylvania case law. Specifically, the Cities cite Crown Communications v. Zoning Hearing

50 The basis for the FCC’s actions in its 2009 Shot Clock Order and 2014 Infrastructure Order was based on evidence of local government abuse, not state commission regulation or certifications. 2009 Shot Clock Order ¶¶ 32-36; 2014 Infrastructure Order ¶¶ 9-10.

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Board of Borough of Glenfield,51 and they assert that in it the Supreme Court heard a case “in

which Crown Castle attempted to gain a CPC in order to exempt itself from local zoning

regulations when installing a traditional macrocellular tower.”52 The Cities assert that under the

analysis of Crown Communications, DAS providers are not public utilities because DAS

providers do not serve all members of the public, they do not file tariffs with the Commission,

and they provide service pursuant to private service agreements.53 The Cities assertions are

wrong on multiple fronts.

As a threshold matter, the Cities mischaracterize the facts of the Crown Communications

case. Crown Communications did not involve any attempt by Crown to obtain a CPC, as the

Cities assert.54 The case was solely concerned with whether the installation of a wireless tower

was a “public utility” in a case where the local zoning code did not define “public utility,” and so

the court looked to the general definition of public utility. The plaintiff Crown Communications

did not apply for or otherwise seek a CPC in that case,55 and although it is an affiliate, the

plaintiff Crown Communications in that case is not the same company that has obtained a CPC

to provide telecommunications services via DAS networks and other fiber optic networks. The

Commission should not be misled by the Cities’ mischaracterization of the facts of the case.

Moreover, the Cities’ assertions about “DAS providers” failure to fit within the definition

of a public utility are also wrong. As discussed above, it is well-established that to “serve the

51 705 A.2d 427 (Pa. 1997). Cities Cmts 14. The Cities inaccurately cite the case as “Crown Castle v. Fox Chapel Authority,” which is neither the correct Crown entity nor the correct defendant. 52 Cities Cmts 14. 53 Cities Cmts 14. 54 705 A.2d 427. 55 Id.

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public” for purposes of public utility status, a company need not offer service to the entire

universe of the public. The Commission emphasized in its brief in the Rural case that “[i]n

Waltman, the [Pennsylvania Supreme] court ruled that service to a limited segment of the public

is public utility service under Sections 1102 and 1103,” and as a result, “the PUC has certified a

CLEC to provide specialized services to discrete portions of the public, including data-oriented

services.”56 Similarly, the Cities are wrong when they say that DAS providers do not file tariffs.

Crown Castle has filed a tariff with the Commission governing its provision of transport service

via DAS networks.57 Similarly, numerous other companies, such as ATC Outdoor DAS, Public

Wireless, and SQF, among others, have filed tariffs with the Commission governing provision of

transport service via DAS networks.58 Finally, the use of individual case basis (“ICB”) contracts

is also a well-established, acceptable practice under the Commission’s regulations that reflect the

highly competitive nature of the market.59 The Cities’ assertions against public utility status are

meritless.

E. There Is No Separation Between Wireline Transport And “DAS Service”

In response to a question from the Commission regarding what the implication would be

“if” there were a separation of ownership between the DAS Node and the fiber optic transport

elements of a DAS network, the Cities’ comments appear to mistakenly assume that there is such

56 PUC Brief at *28-29. 57 See Crown Castle NG East LLC Telephone Tariff PA P.U.C. No. 1 (CAP). 58 A list of tariffs filed with the Commission is available at http://www.puc.pa.gov/consumer_info/telecommunications/telephone_tariffs.aspx. 59 See, e.g., Joint Petition of Nextlink Pennsylvania, Inc., Docket No. P-00991648; P-00991649, 1999 Pa. PUC Lexis 63, 196 PUR4th 172 (Sept. 30, 1999) (allowing Bell Atlantic to use ICB pricing based on competitive nature of telecommunications service to large business customers); Application of NextGen Communications, Inc., Dockets A-2010-2187730 et al., 2010 Pa. PUC Lexis 2057 (Dec. 3, 2010) (granting NextGen CPC, including authority to provide service to PSAPs via ICB).

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a separation.60 Indeed, the Cities state, unequivocally, that “the DAS provider and the wireline

transport provider are separate legal entities. They have separate Boards, shareholders, by-law,

and other accouterments of their corporate structures.”61 It is unclear what factual basis the

Cities have for this assertion, but it is untrue in Crown Castle’s case. There are not two different

Crown Castle corporations controlling the Node and fiber parts of its networks.

IV. THE IMPACT OF CERTIFICATION FOR ACCESS TO POLES AND RIGHTS OF WAY (ORDER ISSUE #6)

In its opening comments, Crown Castle explained the importance of a CPC and public

utility status to its ability to deploy its facilities in the public rights of way, both in terms of

access to municipal rights of way and also utility poles.62 Other commenters also shared the

same points and concerns.63 Pennsylvania law grants specific rights and authority to all public

utilities. Because DAS network facilities are similar in size and type to the facilities deployed by

other public utilities (other telecommunications providers, electric utilities, and even cable

television operators), it makes perfect sense that the DAS facilities installed on poles in the

public rights of way should be entitled to the same deployment rights.

The Cities’ comments, however, reveal a different agenda. The Cities’ comments assert

that Section 332(c)(7) of the Communications Act grants them special authority. They also

assert that “[t]he majority of DAS facility placements in the public rights-of-way fall under”

either the Pennsylvania Wireless Broadband Collocation Act or the FCC’s 2014 Infrastructure

Order.64 The Cities also assert that pole attachment rights are not a problem and a CPC is not

60 Cities Cmts 15. 61 Id. 62 Crown Castle Cmts 13-16. 63 See, e.g., PCIA Cmts 9-12; CTIA Cmts 18-19; ExteNet Cmts 13-15, 17-20. 64 Cities Cmts 16.

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necessary. The Cities’ comments, however, reveal a significant lack of understanding of the

reality faced by Crown Castle and others like it.

First, as explained above, Section 332(c)(7) of the Communications Act is not a grant of

authority to local governments. The U.S. Supreme Court has made clear that Section 332(c)(7)

is a limit on local governments. Moreover, local governments do not impose “zoning”

requirements on any other public utilities for deployment of facilities in the public rights of way.

Thus, to subject Crown Castle to entirely different, more burdensome regulatory requirements,

including possible exclusion altogether based on “zoning,” would be potentially preempted by

Section 253 of the Communications Act.65

Second, the Cities’ assertion that the majority of DAS facilities will have easy access to

the public rights of way as a result of either the Pennsylvania Wireless Broadband Collocation

Act (“WBCA”) or the FCC’s 2014 Infrastructure Order is incorrect. Both the WBCA and the

statute addressed in the FCC’s 2014 Infrastructure Order apply only if the underlying support

structure already has wireless facilities attached. Under the WBCA, municipalities are

prohibited from regulating “collocation, replacement or modification of antennas, accessory

equipment or wireless telecommunications facilities upon an existing wireless support

structure.”66 The WBCA defines a “collocation” as “[t]he placement or installation of new

wireless telecommunications facilities on previously approved and constructed wireless support

structures.”67 Thus, for a new DAS Node, the statute applies only if the underlying support

structure has already been approved for a wireless attachment. The FCC’s 2014 Infrastructure

Order is the same. In one part of the 2014 Infrastructure Order, the FCC addressed the

65 Crown Castle Cmts 17-19 66 53 P.S. § 11702.3(a)(1). 67 53 P.S. § 11702.2.

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application of Section 6409 of the Spectrum Act (also discussed above). As discussed above,

Section 6409 preempts local authorities over collocation, modification, replacement, or

removal.68 In the 2014 Infrastructure Order, the FCC held that Section 6409 applies only where

a State or local government has approved construction of the structure with the sole or primary

purpose of supporting transmission equipment, or where the local government has previously

approved the siting of transmission equipment on that structure.”69 Accordingly, when

deploying a DAS network, the overwhelming majority of new Node installations will not have

access to the rights of way under either the WBCA or Section 6409 of the Spectrum Act because

local governments will take the position that an existing utility pole that has no DAS Node

already on it, for example, was not previously approved as a wireless support structure.

Third, the Cities’ comments regarding the impact of a CPC on pole attachments reveal

their lack of experience. In its comments, Crown Castle explained that pole owners regularly

require proof of a CPC before they will even discuss pole attachments.70 The same experience

was revealed in the comments of PCIA and ExteNet.71 Crown Castle and PCIA both pointed out

the Fibertech pole case where the pole owner opposed allowing attachment even when the

attaching company had a CPC. Yet, the Cities assert that pole owners would continue to

negotiate pole attachment agreements because “it is a steady stream of income for the utilities.”72

The thirty year long history of federal regulation of pole attachments contradicts the Cities’

assertion. If pole owners were so willing to grant access and do so at just and reasonable rates,

68 47 U.S.C. § 1455(a). 69 2014 Infrastructure Order, 29 FCC Rcd at 12939 ¶ 179. 70 Crown Castle Cmts 13-14. 71 See PCIA Cmts 10-11; ExteNet Cmts 14, 18, 19. 72 Cities Cmts 16.

23 DWT 29449660v1 0103871-000144

terms, and conditions, there would be no need for the federal Pole Attachment Act, 47 U.S.C. §

224, or for specific provisions mandating that pole owners grant access to their poles.73 And

there would not be an extensive history of pole attachment disputes brought to the FCC.

The Cities’ assertion that they “are not aware of a practice” by utilities of demanding

proof of a CPC prior to attaching to poles, further demonstrates that the Cities’ comments are not

based on meaningful experience.74 As Crown Castle noted in its opening comments, such a

requirement is regularly imposed, sometimes even in writing.75

The Cities comments contain several similar examples of where, despite admitting that

because they are local governments they “do not have any business or customer relationships

with DAS providers,” the Cities nonetheless make sweeping assertions about the impact of a

CPC.76 For example, the Cities admit they have no experience with customers, yet, assert “we

cannot imagine a good reason for wholesale or retail customers to require a CPC from a DAS

provider”77 or “we cannot imagine any good reason for the lack of a CPC by a DAS provider . . .

to impede the commencement of [interconnection] negotiations.”78 Yet, as Crown Castle noted

in its opening comments, the opposite is true, with customers regularly demanding proof of

certification.79

73 47 U.S.C. § 224(f) (mandatory access). 74 Cities Cmts 17. 75 Crown Castle Cmts 13-14. The Cities’ assertion that if the Commission stopped issuing CPCs to providers using DAS networks “no doubt the owners of poles and/or conduit would no longer require DAS providers to obtain CPC’s from the Commission” (Cities Cmts 17) is at best gross speculation. As the Fibertech case emphasizes, pole owners will seek any opportunity to refuse attachment. 76 Cities Cmts 19. 77 Id. 78 Id. 20. 79 Crown Castle Cmts 16.

24 DWT 29449660v1 0103871-000144

Ultimately, the Cities argue that there is “an inherent unfairness in the manner in which

DAS providers are treated when compared to other public utilities” for access to public rights of

way.80 The Cities’ argument is meritless, and indeed, reveals their desire to treat Crown Castle

and other such companies unfairly compared to other public utilities, strictly because the antenna

element of the network emits radio frequencies.

The Cities’ assertion of unfairness compared to other utilities is based on the false

assertion that competitive providers offering telecommunications services over DAS networks

are not subject to the same Commission regulations as other public utilities. As noted above, the

Cities’ comments are simply wrong. Crown Castle and other such companies file tariffs and are

subject to the Commission’s regulations, just like any other company holding a CPC. The

unfairness comes from local governments seeking to impose burdensome, discretionary, and

often exclusionary zoning requirements on DAS networks that are not imposed on equipment

deployments by other public utilities or even cable television operators. All of those entities

deploy equipment on poles in the public rights of way, including large and heavy electric

transformers, fiber optic equipment boxes, power supplies, and other equipment commonly

installed on poles. All such facilities are installed without being subject to any requirement to

obtain “zoning” approval. Indeed, even the utility poles themselves are installed without any

zoning approval. The unfairness comes from local governments seeking to regulate and limit the

deployment of DAS Nodes simply because there is an antenna involved. DAS Node equipment

is similar to other utility installations, and frequently smaller. It is only the existence of the

antenna that triggers the local government desire to regulate. Of course, Section 332(c)(7)(B)(iv)

of the Communications Act explicitly prohibits local governments from regulating wireless

80 Cities Cmts 18.

equipment based on RF emissions, 81 which should draw into question local governments' desire

to impose zoning on DAS networks. Unlike a traditional macro tower, which may be 100 feet

tall or more and on private property, a DAS Node on a utility pole is no different than other

utility facilities in the rights of way. The Cities' assertion that certificating providers using DAS

networks "undermines the ability of municipalities to adequately manage their public rights-of-

way"82 is untrue. Local governments manage the use ofthe public rights of way by all other

public utilities without problem. The reality is that local governments want to do more than

manage use of the public rights of way on a nondiscriminatory basis. They want to single out

DAS networks for special and more burdensome regulation based solely on the existence of an

antenna on a utility pole.

V. CONCLUSION

For the reasons discussed herein, Crown Castle respectfully requests that the Commission

adhere to current practice and continue the certification of companies that provide

telecommunications services via DAS networks.

81 47 U.S.C. § 332(c)(7)(B)(iv).

82 !d. 2.

T. co 'homp n Bradley Guyton Davis Wright Tremaine LLP 1919 Pennsylvania Ave, NW Suite 800 Washington, D.C. 20006 (202) 973-4200

25 DWT 29449660v1 0103871-000144

26 DWT 29449660v1 0103871-000144

Monica Gambino Vice President, Legal Robert Millar Associate General Counsel Crown Castle 2000 Corporate Drive Canonsburg, PA 15317 (510) 290-3086

Attorneys For Crown Castle

May 16, 2016

CERTIFICATE OF SERVICE

I hereby certify that I have this day served a true copy of the foregoing document,

the Reply Comments of Crown Castle, upon participants in Docket No. M-20 16-2517831

in accordance with the requirements of 52 Pa. Code § 1.54 (regarding service by a

participant).

Dated this 161h day ofMay 2016.

B~zZ7 Davis Wright Tremaine LLP 1919 Pennsylvania Avenue, NW Suite 200 Washington, DC 20036 202-973-4200 (Telephone) 202-973-4499 (Facsimile) bradleyguyton@dwt.com

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