e alabama lawyer - burr & forman...feel free to send it around. one of the things we enjoy the...

Alabama LawyerTh

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J U L Y 2 0 1 9 | V o L U m e 8 0 , N U m b e r 4

Getting It Done onA Low-Tech Budget

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Digital SmokingGuns Are AllAround Us

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Dangers of YourClient’s SocialMedia–How to Prevent Your Client from Ruining Their Case

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Operation CryptoSweep–TheAlabama SecuritiesCommission Is Setting the Bar inCryptocurrencyCrackdown

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What’s in a Name(Besides CenturiesOf Confusion)? The Alabama Uniform VoidableTransactions Act

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5G MobileTechnology–FCCPreemption andGeopolitics

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greg hawley, our former editor, usedto tell me that the goal of The AlabamaLawyer is for lawyers to teach lawyers.succinct, simple, clear–i like it. all of uslawyers want to be smarter and betterinformed, and we try to make that hap-pen with every Alabama Lawyer thatcomes down the pike. and if we arelucky, we will be entertained while weare being enlightened.

This edition’s theme is technology,and two of our board members, Lloydgathings and Kira Fonteneau, were incharge of finding authors and gatheringarticles. They did a terrific job.

Lloyd gathings starts us off with apractical, hands-on perspective on how asmall law practice–even a solo practi-tioner–can compete with the technology

of the big firms, and how they can dothat on a budget.

ever thought about digital smokingguns? mike Vercher and Paul Zimmer-man of christian & small have, and theyscare us (me, anyway) by telling us a fic-tional story (that could really happen) todemonstrate just how open all of us arebeing tracked by the technology thatsurrounds us–both voluntarily and alsosome of which we might not even beaware. do you have any idea how manydifferent devices record things aboutyou every day? i’m not sure i actuallywanted to know. could someone sendthis to stephen King?

bernard Nomberg of birminghamwarns us that our clients can destroytheir own cases by their unwise use of

e d i T o r ’ s c o r N e r

Anyone who isn’t embarrassed ofwho they were last year

probably isn’t learning enough.–alain de botton

W. Gregory [email protected]

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social media. and he tells us what doto about it.

albert copeland of christian & smallwrites about operation cryptosweepand explains to us how the alabamasecurities commission takes care of us.

chris glenos and cathy moore ofbradley, arant ask “What’s in a Name,”and then explain alabama’s new (andoften misunderstood) Uniform Void-able Transactions act. They tie to-gether Justinian, st. augustine, theKing of Kent, Queen elizabeth–and thealabama Legislature. Not everyonecould pull that off.

do you think the internet is fastnow? bill Lawrence and matt barnes ofburr & Forman tell us all about themove to 5g, which, they explain, canmake the internet up to 100 timesfaster than what we have now–andwhat alabama and its municipalitiescan do to help move along this im-provement. They also demonstrate theinternational struggle to see whichcountry dominates 5g, and they let us

know just how much rides on the out-come of that battle. This is an articlethat everyone who represents any cityor county should read, as should everymember of our legislature. Feel free tosend it around.

one of the things we enjoy the mostis keeping everyone up on what isgoing on around the state. This monthwe have three articles that celebratebirthdays. david bagwell’s writing andann sirmon’s photographs combine totell the story of the 150th anniversaryof the mobile bar association. Not onlydid david and ann do good work, butthey are two of the most delightfulpeople i’ve had the opportunity withwhom to work. The state bar’s Leader-ship Forum turns 15 this year, as doesLegal services alabama, and you canread all about them, too.

Take a look at the article about thenewest admittees to the alabamaLawyers hall of Fame. all of them areimpressive, and two of them impactedme directly.

robert a. huffaker was my first editorat The Alabama Lawyer. No one knewbetter how to bring along a youngwriter. his intellect was eclipsed by hishumility, and he was always a pleasureto work with. We did ourselves proudinducting him. i’m fortunate to haveknown and worked with him.

george Peach Taylor taught mecriminal law when i was in law school.When i began practicing law, younglawyers had no choice but to takecriminal appointments, and i owemuch of the meager help i was able togive to having sat under his tutelage.his son, david, was in my law schoolclass and i always thought a lot of him.alabama can be rightly proud of Pro-fessor Taylor.

so, enjoy the articles. email me [email protected] if you havequestions, or comments, or want towrite. We are always looking for ournext group of excellent writers. s

Mobile BroadbandTechnology’s JourneyToward 5G TechnologyMobile broadband–the wireless

industry’s marketing term fortechnology that allows devices toconnect to the Internet wirelesslyusing cellular networks–is movingtoward the technology’s fifth gen-eration, also known as 5G.During mobile broadband’s less

than 40 years of history, its tech-nology has evolved from the1980’s era of 1G analog telecom-munications, to the 1990’s era of2G digital phone calls and SMS1

text messages, to the early 2000’sera of 3G high-speed Internet andmulti-media applications, to ourcurrent era of 4G and 4G LTE2

technology’s improved down-load/upload speeds, reduced la-tency (i.e., lag time) and crystalclear voice calls.

Overview of 5G’s Significance and CharacteristicsUnlike previous generations of

mobile broadband technology thatfeatured one main evolutionarydevelopment each, 5G will feature

5G Mobile Technology–FCC Preemption and Geopolitics

By William M. Lawrence and Matthew W. Barnes

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t H E a L a B a m a L a w y E r : t E C H n o L o g y i s s u E

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multiple new evolutionary devel-opments and radically change howconsumers use the Internet.5G will have three revolutionary

characteristics. First, data transferspeeds will be up to 100 times morerapid than 4G, allowing consumersto transmit and download contentastonishingly faster than ever imag-ined. Second, 5G will dramaticallyreduce latency, which will allowconsumers to stream content with-out delays and glitches. Third, 5Gwill materially increase device con-nectivity and capacity abilities, al-lowing consumers to communicatesimultaneously with greater num-bers of users and devices.

5G and the “Internet ofThings”The Internet of Things (the IoT)

is a network of Internet-connected,data-sharing machines, appliancesand other devices which, despiteits infancy, has given consumersproducts like smart watches, au-tonomous cars and Internet-basedhome security systems. 5G’s in-creased data capacity and speed,combined with its reduced latency,will fuel the so-called IoT.Just as anabolic steriods stimu-

late muscle growth, 5G will stimu-late the IoT’s growth, maturationand evolution. Among other waysin which 5G will support next-ge-neration IoT services, the follo-wing are widely-predicted results:

• The automotive industry coulduse 5G and the IoT to produceconnected automobiles featur-ing augmented and virtual re-ality technologies, which couldlead to direct communicationbetween vehicles, vehicle topedestrian and vehicle to

infrastructure, in order to fosterautomobile convenience andsafety, including route plan-ning and real-time updates.

• Industrial manufacturers coulduse 5G and the IoT to develophighly secure private IoT net-works, by integrating securityinto network architecture.

• The healthcare field could use5G and the IoT to perform tele-surgeries and allow specialiststo remotely monitor patientsand surgeries using real-timenetworks.

• Gaming manufacturers, retailbusinesses and other primarilyconsumer-based businessescould use AR and VR to revo-lutionize customer experiences.

5G and Smart Cities5G and the IoT will together fuel

the evolution of “smart cities”–mu-nicipalities that use data collection,information supply and enhancedcommunication technologies tomanage assets and resources, im-prove government services, fostereconomic growth and enhance liv-ability. Early examples of smart citytechnologies include automatedtraffic management systems to re-duce traffic and allow for more effi-cient movement, multi-modaltransportation and smart trafficlights, and digital utility monitoring.Smart cities are predicted to spur

economic growth for their citizens,but they could also reduce govern-ment expenditures. For example,research suggests that smart citysolutions for managing vehicle traf-fic and electrical grids could pro-duce $160 billion in benefits andsavings by reducing energy use,traffic congestion and fuel costs.3

The United States andChina Are in a Race for5G Dominanceto the Victor go the spoils–the Economic motives forglobal 5g LeadershipThe United States is currently the

world’s mobile broadband leader, aposition to which it ascended with4G technology’s emergence. Rid-ing on 4G technology’s back, U.S.-based companies like Facebook,Apple, Amazon, Netflix, Google,Venmo, Uber and Lyft havechanged how society functions andcommunicates, led the U.S. econ-omy and generally transformedconsumers’ day-to-day lives.As the global mobile broadband

leader, the U.S. has received signifi-cant economic rewards. 4G innova-tions created almost $100 billion ofthe GDP’s annual increase by 2016,increased wireless-related jobs by84 percent from 2011 to 2014 andincreased American companies’ rev-enue approximately $125 billion(including more than $40 billion inadditional revenue due to app storesand app developers).4 Experts pre-dict that 5G technology will stimu-late the U.S. economy to heightsdwarfing the gains created by allprior mobile broadband technolo-gies combined, including, by one forecast, three million new jobs,$275 billion in private investmentfrom wireless operators and $500billion in economic growth.5

The United States does not wantto lose its global mobile broadbandleadership and suffer the negativeeffects that Japan and several Eu-ropean countries suffered by losing3G and 4G wireless leadership.

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to the Victor go the spoils–geopolitical motives forglobal 5g LeadershipChina wants to become the

world’s first choice for 5G tech-nologies and supplant the U.S. asthe global mobile broadbandleader. Aside from losing out onthe significant economic develop-ment that global 5G leadership isexpected to bring, the U.S. gov-ernment has a more base emo-tional reason for not wanting tocede global 5G leadership withouta significant fight–fear.Underlying the U.S. fears are the

following concerns: (i) China couldexpose security and privacy risks inthe U.S. government, in U.S.-basedcompanies and pertaining to U.S.citizens; (ii) the potential for Chinato install malicious software andbackdoor spying technologies in im-ported devices to track and discovervital U.S. interests; and (iii) Chinacould remotely sabotage Internet-connected devices and cripple theU.S.’s communications and eco-nomic systems in the process.In short, the U.S. understands

that China, by controlling the IoTthrough 5G, will gain significantand destabilizing political, eco-nomic and military strength.

it’s a marathon, not a sprintIn early 2018, most experts

opined that China was leading therace to global 5G dominance, withSouth Korea in second place andthe U.S. trailing in third place.The U.S.’s early race positioning

suffered due to the lack of 5G de-ployments, the federal govern-ment’s failure to auction necessaryspectrum and outdated infrastruc-ture rules at the federal, state andlocal government levels.6

China’s early race positioningbenefitted due to multiple factors:

• First, jobs creation incentivizedChina. The China Academy ofInformation and Communica-tions Technology (CAICT), agovernment-run research insti-tute, estimates that 5G will cre-ate more than eight millionjobs in China by 2030.7

• Second, privately-owned Chi-nese companies want to evolveand be known as innovativeforces, rather than continuingtheir well-earned reputationfor being manufacturers ofcopycat products.

• Third, Chinese carriers viewthemselves as governmentalpartners, who follow govern-ment direction and implementgovernment policy objectives,which propelled Chinese carri-ers to far more quickly invest

in 5G networks than U.S.-based carriers.

• Fourth, the Chinese govern-ment has helped propel Chi-nese carrier investments in 5Gnetworks by giving the carriersnecessary spectrum, unliketheir U.S. counterparts whomust purchase their spectrumfrom the federal government.

Notwithstanding the UnitedStates’ sluggish start in the race forglobal 5G leadership, it is findingits mid-race form. In April 2019,the Cellular TelecommunicationsIndustry Association, a trade asso-ciation that represents the U.S.wireless communications industry,released a new report that foundthe U.S. and China are now tiedfor first place in 5G readiness.8

The report attributes the U.S.’s risein the rankings to the wireless in-dustry’s investment as a whole andto the work of U.S. policymakersto speed the process of updatingnetworks. According to the report,the U.S. currently has the mostworldwide commercial 5G deploy-ments, spurred by AT&T’s 5Glaunch in more than a dozen mar-kets and Verizon’s 5G launch inseveral municipalities. The reportpredicts 5G will be available in 92U.S. municipalities before 2020.

5G Will Introduce theWorld to Small Cell FacilitiesTo deliver to consumers the stag-

gering, multi-gigabit speeds that 5Gpromises, carriers will use ex-tremely high frequency millimeterwaves that they have not used previ-ously for consumer devices. Al-though the technological advantages

In April 2019, theCellular Telecommu-nications IndustryAssociation, a tradeassociation that

represents the U.S.wireless communica-

tions industry, released a new reportthat found the U.S.and China are nowtied for first place in

5G readiness.8

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of millimeter waves is critical to 5Gdelivery, the high-frequency wavesdo not travel as far generally as thelower frequency waves used to de-liver 4G technology and suffer at-tenuation due to, among otherthings: (i) atmospheric gases, whichabsorb the waves; (ii) line-of-sightpath blockages, including buildingwalls and some foliage; and (iii) rainand other precipitation forms.To combat signal attenuation so

that millimeter waves can carry5G’s promise of enormous dataquantities at multi-gigabit speeds,carrier networks must have numer-ous, densely-located connectionsto small, low-power, short-range,self-contained cell site nodes, alsoknown as “small cell facilities” or“small cells,” which are the build-ing blocks of 5G networks. Conse-quently, carriers are turning theirattention away from deploying celltowers and other high-powermacrocell sites and toward deploy-ing small cells.A small cell consists generally of

a single antenna and supportingtransmission equipment. The“small” in small cells refers not totheir size but, rather, to theirsmaller power and coverage ra-diuses than macrocell sites; how-ever, small cells are indeed smallerin size, more discrete and moreaesthetically pleasing than cell tow-ers. Typical small cell enclosuresdo not exceed six cubic feet in vol-ume, and most associated wirelessequipment does not exceed 28cubic feet in cumulative volume.Small cells have the benefit of not

requiring expensive land swaths likecell towers and other macrocellsites. Carriers deploy small cells ona variety of structures, includingpoles, street lights, traffic lights, utility poles9 and street signs,

among other structures. Due to thequantity of existing installablestructures and fiber optic cable in-stallations, public rights-of-way arethe generally preferred small celldeployment locations.10

Approximately 200,000 opera-tional small cells are installedacross the U.S., which are prima-rily used to assist with 4G deliveryin highly populated and congrega-tional areas.11 However, accordingto one expert, 5G will requiremore than 800,000 installed andoperational small cells in the nextsix to seven years.12

5G Infrastructure Deployment–The Impact of State andMunicipal Laws onGlobal GeopoliticalStabilityLocal land-use and zoning laws

are not subjects one typically thinksabout having global significance.However, municipalities that haveburdensome or no small cell sitingprocesses will significantly impactwhether U.S.-based carriers and in-frastructure providers will be able todeploy small cell networks quickly,efficiently and cost-effectively,which, in turn, will play a meaning-ful role in whether the U.S. canmaintain global mobile broadbandleadership and geopolitical stability.

why municipalities Play important roles in Helpingthe u.s. maintain global 5gLeadershipCarriers and infrastructure

providers need access to the public

rights-of-way for optimal 5Gsmall cell deployments. Right-of-way access is crucial, because theyare sources of abundant (i) fiberoptic cables (5G fiber optic back-haul is necessary to flawlesslystream bandwidth-intensive appli-cations), (ii) power sources and(iii) structures or space for struc-tures to which small cells can beattached (e.g., utility poles, streetlight poles and other structures).Carriers and infrastructure

providers have three main struc-ture options in the rights-of-way:installing their own poles andstructures and attaching small cellsto them; attaching small cells tocity-owned poles and structures(whether existing or to-be-con-structed); and contracting withpublic utilities to attach to the util-ity’s poles and structures.13

Each of the preceding optionscarries different costs and risks,but no one of the options is a de-ployment panacea, so carriers andinfrastructure providers use a com-bination or all three options tomaximize small cell deployments.

municipalities are incentivized to Help the u.s. maintain global 5gLeadershipMunicipalities have incentives to

help the U.S. win the 5G race. Forexample, municipalities that haveburdensome or non-existent smallcell siting processes will preventthemselves from becoming “smartcities” and reaping the associatedeconomic rewards. The carrot formunicipalities is directly in front ofthem–carriers in the U.S. are willingand ready to invest $275 billion todeploy 5G networks, which couldcreate three million new jobs andadd $500 billion to the economy.14

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Cities that desire to reap theseeconomic benefits and associatedsavings should have simple objec-tives for facilitating small cell de-ployments in their jurisdictions:streamlining permitting processes,adopting reasonable fee structures,modernizing siting rules to ensurefair and reasonable access to util-ity poles and city owned struc-tures, and reducing regulatoryhurdles to small cell deployments.

municipalities Can Be unintentional stumblingBlocks to the u.s.’s global 5g LeadershipMunicipalities impede small cell

deployments, often unintention-ally, in five primary ways:

• First, most municipalities havenot enacted small cell regula-tions, which results in a lack ofadministrative preparednessand extraordinarily lengthy re-view periods to facilitate smallcell deployments.

• Second, many municipalitieshave cumbersome and unneces-sary multi-level, discretionaryreview and approval processes,such as neighborhood associa-tions, planning commissions,zoning commissions and citycouncils.

• Third, many municipalitiesrely mistakenly upon inappli-cable laws passed originally togovern macrocell towers andother high-powered macrocellsites, which, among other im-pediments, require lengthy re-view periods and expensivepermitting fees that are stiflingto small cell deployments.15

• Fourth, municipalities thathave passed small cell regula-tions (i) often did so before 5G

technology and small cell de-ployment strategies were wellunderstood; (ii) deferred heavilyto outside consultants, whoseown immediate financial inter-ests outweighed the city’s long-term interests; or (iii) copied orrelied excessively upon flawedregulations promulgated byother municipalities.

• Fifth, despite rights-of-waybeing crucial for deploymentsuccess, carriers and infrastruc-ture providers face multi-prongchallenges to right-of-way de-ployments, including: (i) widelyvarying municipal ordinances;(ii) laboriously slow and incon-sistent municipal permit pro-cessing; (iii) prohibitive,unreasonable and widely vary-ing municipal fee structuresamong different jurisdictions;(iv) burdensome, costly and in-consistent municipal informa-tion collection and assessmentrequirements, which are oftenunrelated to right-of-way access;and (v) remediation and mainte-nance responsibilities that carriers

and infrastructure providersargue may be appropriate formacrocell sites but impose un-reasonable burdens in the smallcell deployment context.

As a result of these stumblingblocks, carriers and infrastructureproviders suffer the consequences,which are no small cells being de-ployed or fewer small cells actu-ally being deployed than a carrier’sbuildout plans contemplate (result-ing in poor or less than optimal 5Gcoverage).

reasonable, updated andstreamlined municipal regulations Benefit the municipalities and their CitizensBy adopting reasonable, stream-

lined and up-to-date small cell de-ployment regulations, municipalitiesbenefit their citizens by: (i) provid-ing greater IoT access; (ii) earningfee and rental revenues (includingapplication fees, construction permitfees, right-of-way access fees andrentals for installations on city-owned structures); (iii) protectingtheir jurisdictions by controllingnoise and visual and design aesthet-ics, and enforcing zoning restric-tions; (iv) managing and assuringpublic safety and accessibility; and(v) controlling the permitting ofwhat is deployed within their juris-dictions. More significantly, munici-palities that adopt reasonable andup-to-date small cell regulations helpthe U.S. to maintain its continuedglobal mobile broadband superiority.That superiority is not merely so thatwe, as citizens, can feel good aboutthe U.S.’s maintaining a world lead-ing position, but so that we can reapthe economic benefits of being the“go-to” technology source.

More significantly,municipalities thatadopt reasonable andup-to-date small cellregulations help theU.S. to maintain itscontinued global mobile broadband

superiority.

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The FCC’S Efforts toHelp the U.S. BeatChina in the Race toGlobal 5G Leadership16

Background–the fCC’s implementation authorityunder the Communicationsact of 1934 and telecommu-nications act of 1996The Communications Act of

193417 (the “Communications Act”)combined and organized federalregulation of telephone, telegraphand radio communications and, sig-nificantly, created the Federal Com-munications Commission (“FCC”).The Telecommunications Act of1996 (the “TelecommunicationsAct”) was the first major overhaulof telecommunications law after theCommunications Act’s enactmentand became the first major legisla-tion addressing mobile broadbandtechnology. Section 704(a) of theTelecommunications Act addedSection 332(c)(7) to the Communi-cations Act, which provides for lim-ited preemption of state and localzoning authority over the siting ofpersonal wireless service facilities.Section 332(c)(7) of the Commu-

nications Act limits what munici-palities can do regarding the sitingof personal wireless service facili-ties, including small cells. Specifi-cally, it prohibits municipalitiesfrom (i) unreasonably discriminat-ing among providers of function-ally equivalent services, (ii)prohibiting or taking action thathas the effect of prohibiting theprovision of personal wirelessservices and (iii) regulating wire-less facilities on the basis of envi-ronmental effects of radio

frequency emissions if facilitiescomply with FCC RF emissionsregulations.Section 332(c)(7) of the Commu-

nications Act requires municipalitiesto take certain affirmative actionsregarding the siting of personalwireless service facilities, includingsmall cells. Specifically, it requiresmunicipalities to (i) act on any re-quest for authorization to place, con-struct or modify personal wirelessservice facilities within a reasonableperiod of time, (ii) publish siting ap-plication decisions in writing and(iii) support denials of siting appli-cations with substantial evidence.The U.S. Supreme Court has con-

firmed that the FCC has authority toimplement Section 332(c)(7) of theCommunications Act. As noted,Section 332(c)(7)(B)(ii) of theCommunications Act requires mu-nicipalities to act upon siting appli-cations for wireless facilities“within a reasonable period of timeafter the request is duly filed.” Re-lying upon its broad authority toimplement the CommunicationsAct, see 47 U.S. C. § 201(b), theFCC issued a declaratory rulingconcluding that the phrase “reason-able period of time” is presump-tively (but rebuttably) 90 days toprocess an application to place anew antenna on an existing towerand 150 days to process all otherapplications. The cities of Arlingtonand San Antonio, Texas sought re-view of the FCC’s ruling in theFifth Circuit. They argued that theFCC lacked authority to interpretSection 332(c)(7)(B)’s limitations.The Fifth Circuit, relying upon

Circuit precedent holding thatChevron, U.S.A., Inc. v. NRDC,Inc., 467 U.S. 837 (1984), appliesto an agency’s interpretation of itsown statutory jurisdiction, applied

Chevron to the municipalities’question. Finding the statute am-biguous, the Fifth Circuit upheld asa permissible construction of thestatute the FCC’s view that §201(b)’s broad grant of regulatoryauthority empowered it to adminis-ter § 332(c)(7)(B). The SupremeCourt agreed with the Fifth Circuitthat courts must apply the Chevronframework to an agency’s interpre-tation of a statutory ambiguity thatconcerns the scope of the agency’sstatutory authority (i.e., its jurisdic-tion). Accordingly, under theSupreme Court’s decision in City ofArlington, Texas v. Federal Com-munications Commission, the FCChas the authority to implement pro-visions of Section 332(c)(7).18

an overview of the fCC’sthree most significant actions to Help the u.s. winits race with China forglobal 5g LeadershipThe FCC has taken three major

actions to help the U.S. outpaceChina in their 5G global superiorityrace.First, in March 2018, the FCC ex-

empted small cells from certain re-view requirements under certaincircumstances, including the historicpreservation rule under the NationalHistoric Preservation Act (“NHPA”)and the environmental review underthe National Environmental PolicyAct (“NEPA”), by concluding thatsmall cell deployments are neither“undertakings” affecting historicproperties under NHPA nor “majorFederal actions” having environ-mental impacts under NEPA.19 Byestablishing these exemptions, theFCC gifted carriers and infrastruc-ture providers with significant timeand cost savings relating to theirsmall cell deployments.

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Second, in September 2018, theFCC adopted the Facilitate Amer-ica’s Superiority in TechnologyPlan (“FAST Plan”), which makesmore spectrum available to thecommercial marketplace for 5Gservices,20 promotes updated infra-structure to encourage private sec-tor investment in 5G networks21

and modernizes federal regulationto promote 5G backhaul and digi-tal opportunity for all Americans.22

Finally, in perhaps its most sig-nificant action, the FCC adopted itsDeclaratory Ruling and Third Re-port and Order, WT Docket No. 17-79 and WC Docket No. 17-8423

(the “Small Cell Order”). TheSmall Cell Order promotes 5G in-frastructure buildout generally by“eliminating regulatory impedi-ments that unnecessarily add delaysand costs to bringing advancedwireless service to the public” and,specifically, by regulating the feesmunicipalities can charge carriersand infrastructure providers to de-ploy small cells and establishingtimeframes within which munici-palities must act upon carriers’ andinfrastructure providers’ small celldeployment applications (com-monly referred to in the wirelessindustry as “shot clocks”).

the small Cell order illustrates the fCC’s use ofLimited federal Preemptiveauthority over municipalitiesunder the Communicationsact to Control issues Having national and global significanceDespite its limited scope, the

Small Cell Order is a profound ex-ample of the federal government,through the FCC, flexing its fed-eral muscle over local land-useand zoning regulations to achieve

a national policy objective. TheSmall Cell Order is divided intotwo parts–a declaratory ruling andan order. Both the declaratory rul-ing portion and the order portionpreempt local regulation in limitedbut significant ways.

n The Small Cell Order’s Declaratory Ruling LimitsMunicipalities to ChargingOnly Objectively ReasonableFees and Establishes a Presumptively Lawful FeeSchedule to Guide Munici-palities in Complying withThe Communications Act

In the Declaratory Ruling por-tion of the Small Cell Order, theFCC issued guidance regardinghow fee and non-fee requirementsof municipalities over small cell

siting applications can constituteeffective prohibitions of service,which Section 332(c)(7) of theCommunications Act prohibits.Generally, the Small Cell Order:

(i) concludes that Section332(c)(7) limits municipalities tocharging fees that are no greaterthan a reasonable approximation ofobjectively reasonable costs forprocessing applications and formanaging deployments in therights-of-way; (ii) removes uncer-tainty by identifying specific feelevels for small cell deploymentsthat presumably comply with the“objectively reasonable” standard;and (iii) guides municipalities re-garding when certain non-fee re-quirements allowed generallyunder the Communications Act–such as aesthetic and underground-ing requirements–may constituteeffective prohibitions of service inviolation of Section 332(c)(7).The Declaratory Ruling estab-

lishes an “objectively reasonable”standard for fees that municipali-ties may lawfully charge carriersand infrastructure providers underthe Communications Act to accesspublic rights-of-way and attach togovernment owned properties inthe rights-of-way. Fees must be areasonable approximation of themunicipality’s costs, include onlyobjectively reasonable costs andbe no higher than the fees chargedto similarly-situated competitorsin similar situations.24 To aid mu-nicipalities in setting fees forsmall cell applications, the FCCestablished a presumptively lawfulfee schedule, which establishes (i)$500 for non-recurring fees, in-cluding a single up-front applica-tion that includes up to five smallcells, with an additional $100 foreach small cell beyond five, or

The Declaratory Ruling establishes an“objectively reason-able” standard forfees that municipali-ties may lawfullycharge carriers andinfrastructure

providers under theCommunications Actto access publicrights-of-way and

attach to governmentowned properties inthe rights-of-way.

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$1,000 for non-recurring fees for anew pole (i.e., not a colocation)intended to support one or moresmall cells, and (ii) $270 per smallcell per year for all recurring fees,including any possible right-of-way access fee or fee for attach-ment to municipally-ownedstructures in the right-of-way.25

n The FCC Clarifies WhenMunicipal Land-Use andZoning Requirements Violate the CommunicationsAct of 1934

Acknowledging that municipalland-use and zoning requirementscould effectively prohibit smallcell deployments, the Small CellOrder clarified that local require-ments constitute effective prohibi-tions if they materially limit orinhibit the ability of any competi-tor or potential competitor to com-pete in a fair and balanced legaland regulatory environment.26 Toassist municipalities, the SmallCell Order provides guidance re-garding four local zoning consid-erations that small cell applicationscan be expected to address–localaesthetic requirements, local spac-ing requirements, local under-grounding requirements and localin-kind requirements.The Small Cell Order permits

local aesthetic requirements if theyare reasonable, no more burden-some than those applied to othertypes of infrastructure deploy-ments and are objective and pub-lished in advance.27 Aestheticrequirements that are “technicallyfeasible and reasonably directed toavoiding or remedying the intangi-ble public harm of unsightly orout-of-character deployments” arepermissible, but, if the aesthetic re-quirements are more burdensome

than those applied to “similar in-frastructure deployments,” they areimpermissible because the “dis-criminatory application evidencesthe requirements are not, in fact,reasonable and directed at remedy-ing the impact of the wireless in-frastructure deployment.”28 Inorder for aesthetic requirements tobe “reasonable and reasonably di-rected to avoiding” aestheticharms, they “must be objective–i.e., they must incorporate clearly-defined and ascertainablestandards, applied in a principledmanner–and must be published inadvance.”29

The Small Cell Order (i) con-firms that local spacing require-ments for small cells (i.e.,mandates that small cells be in-stalled a specific number of feet orother minimum distance awayfrom other facilities, ostensibly toavoid excessive overhead cluttervisible from public areas) will beevaluated under the same stan-dards as local aesthetic require-ments, and (ii) explains that somespacing requirements “may violateSection 253(a) [of the Communi-cations Act]” (such as a city prom-ulgating new minimum spacingrequirements that, in effect, pre-vent a deployer from replacing itspreexisting facilities or collocatingnew equipment on a structure already in use), while “others may be reasonable aesthetic requirements.”30

The Small Cell Order clarifiedthat local undergrounding require-ments (i.e., requirements thatequipment be installed under-ground) may be permissible understate law generally but, like localaesthetic requirements, mustspecifically comply with Section253 of the Communications Act.

The Small Cell Order noted twoundergrounding requirement examples that constitute effectiveprohibitions under Section 253: (i)a requirement that all wireless fa-cilities be deployed undergroundwould amount to an effective pro-hibition given the propagationcharacteristics of wireless signals,and (ii) a requirement that materi-ally inhibits wireless service, evenif it does not go so far as requiringthat all wireless facilities be de-ployed underground.31

Finally, the Small Cell Orderconfirmed that local in-kind re-quirements are impermissible ifthey do not meaningfully advanceany recognized public interest ob-jective (that is, an explicit or im-plicit quid pro quo in which amunicipality makes clear that itwill approve proposed deploy-ments only upon condition that theprovider supply an in-kind serviceor benefit to the municipality, suchas installing a communicationsnetwork dedicated to the munici-pality’s exclusive use.)32 Per theFCC, “[s]uch requirements imposecosts, but rarely, if ever, yield ben-efits directly related to the deploy-ment. Additionally, where suchrestrictions are not cost-based,they inherently have ‘the effect ofprohibiting’ service, and thus arepreempted by Section 253(a) ofthe Communications Act.”33

n The Order Portion of theSmall Cell Order EstablishesShot Clocks to Speed Locality Reviews of SmallCell Applications

The Small Cell Order establishestimeframes or “shot clocks” withinwhich timeframes municipalitiesmust act upon small cell applica-tions. The FCC tailored the shot

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clocks to speed municipal ap-provals of small cell applicationsby balancing municipal authorityover small cell application reviewswith Section 332(C)(7)’s require-ment that municipalities exercisethat authority “within a reasonableperiod of time.”34 For collocationson preexisting structures,35 munic-ipalities must rule on small cellapplications within 60 days and,for new sites, municipalities mustrule on small cell applicationswithin 90 days.36

The FCC clarified that the shotclocks apply to batch filings forsmall cell clusters within the bod-ies of geographic polygons (i.e.,multiple separate applicationsfiled at the same time, each forone or more sites or a single appli-cation covering multiple sites).37

When carriers and infrastructureproviders file applications to de-ploy small cell facilities inbatches, “the shot clock that ap-plies to the batch is the same onethat would apply had the applicantsubmitted individual applica-tions.”38 When deployers file asingle batch application that in-cludes “both collocated and newconstruction of small cells, thelonger 90-day shot clock willapply, to ensure that the siting au-thority has adequate time to re-view the new construction sites.”39

In “extraordinary cases” in whichthe siting authority needs “flexibil-ity to account for exceptional cir-cumstances,” a local authority“can rebut the presumption of rea-sonableness of the shot clock pe-riod where a batch applicationcauses legitimate overload on thesiting authority’s resources.”40

The Small Cell Order providesthat a municipality’s inaction priorto the applicable shot clock’s

expiration will constitute a “failureto act” under Section 332(c)(7)(B)(v) of the Communications Act,and, additionally, a “failure to act”will constitute a “presumptive pro-hibition” of the provision of per-sonal wireless services, which willviolate Section 332(c)(7)(B)(i)(II)of the Communications Act.41 If a“failure to act” applies, the SmallCell Order “expects the state orlocal government to issue all nec-essary permits without furtherdelay.”42

In cases where the local author-ity does not issue permits prior tothe expiration of the presump-tively reasonable shot clocks, theSmall Cell Order does not deemthe application granted, but, in-stead, provides that “the applicantwould have a straightforward casefor obtaining expedited relief incourt.”43 Once an applicant files acourt action, the local authority“will have an opportunity to rebutthe presumption of effective prohi-bition by demonstrating that thefailure to act was reasonable underthe circumstances and, therefore,did not materially limit or inhibitthe applicant from introducingnew services or improving exist-ing services.”44

The Small Cell Order establishesthat a “shot clock begins to runwhen an application is first sub-mitted, not when the application isdeemed complete.”45 Following anapplicant’s submission, the munic-ipality will have 10 days from thesubmission date to determinewhether the application is incom-plete and that applicant must sub-mit supplemental information.46

Once an applicant submits anysupplemental information the mu-nicipality may request, the shotclock resets, which effectively

gives the municipality an addi-tional 60 days to review an application.47 For subsequent in-completeness determinations, “theshot clock would toll if the sitingauthority provides written noticewithin 10 days that the supple-mental submission did not providethe information identified in theoriginal notice delineating missinginformation.”48

To keep small cell deploymenton track by ensuring that the entireapproval process necessary for de-ployment is completed within theshot clock time periods, the SmallCell Order clarifies that the shotclocks will apply to “all authoriza-tions a municipality may require,and to all aspects of and steps inthe siting process, including li-cense or franchise agreements toaccess [rights-of-way], buildingpermits, public notices and meet-ings, lease negotiations, electricpermits, road closure permits, aes-thetic approvals, and other author-izations needed for deployment.”49

n Legal and CongressionalChallenges to the FCC’sSmall Cell Order

More than 20 municipalities, in-cluding Los Angeles, Las Vegasand Seattle, have sued the FCC tooverturn the Small Cell Order andstay its implementation pendingjudicial review. The municipalitiescontend that aspects of the SmallCell Order conflict with the Com-munications Act, are arbitrary andcapricious under the Administra-tive Procedure Act and violate themunicipalities’ Fifth Amendmentand Tenth Amendment rights. Thesuits were consolidated in theUnited States Court of Appeals for the Tenth Circuit. Followingthe consolidation, numerous

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municipalities moved the TenthCircuit to transfer the cases to theNinth Circuit, which they view asa more favorable venue basedupon at least one of its prior inter-pretations of the Telecommunica-tions Act.In January 2019, the Tenth Cir-

cuit concluded that the municipali-ties did not demonstrate that theywould suffer irreparable harm anddeclined to stay the Small CellOrder pending judicial review. TheTenth Circuit’s ruling was signifi-cant, because it meant that most ofthe Small Cell Order (includingthe shot clocks) became effectiveJanuary 14, 2019. However, in asmall victory for the municipali-ties, the Tenth Circuit granted theirrequests to transfer their appeal tothe Ninth Circuit.On January 14, 2018, Congress-

woman Anna Eshoo of Californiaintroduced a bill (H.R. 530), enti-tled the Accelerating WirelessBroadband Development by Em-powering Local Communities Actof 2019, which is legislationmeant to dismantle the Small CellOrder. “Having served in localgovernment for a decade on theSan Mateo County Board of Su-pervisors, I understand and respectthe important role that state andlocal governments play in protect-ing the welfare of their residents,”said Rep. Eshoo. “5G is essentialfor our country’s communicationsnetwork and economy, but it mustbe deployed responsibly and equi-tably. The FCC let industry writethese regulations without suffi-cient input from local leaders. Thishas led to regulations that restrictmunicipalities from requiring car-riers to meet the needs of commu-nities in which they want tooperate.”50

Conclusion5G technology leadership has

significant economic rewards and,perhaps more importantly, globalgeopolitical ramifications beyondwhether one’s refrigerator cansend a text reminder to purchase agallon of milk on one’s commutehome. The federal governmentrecognizes that the U.S. mustmaintain its global mobile broad-band leadership to ensure that theeconomic, political and militarybenefits inherent in 5G dominanceflow to the U.S. rather than Chinaor some other geopolitical com-petitor. The FCC has taken stepsto help the U.S. win the race, butthe FCC is counting on municipal-ities for backing support. If munic-ipalities do not play their ownimportant role, the FCC’s actionswill have minimal significance,and the U.S.’s mobile broadbandleadership, together with thegeopolitical status quo, willabruptly end. s

Endnotes1. “SMS” stands for “short message service.” SMS is a text

messaging service component of most mobile devicesystems, which uses standardized communication pro-tocols to enable mobile devices to exchange short textmessages. SMS text messaging is popular among directmarketers.

2. 4G LTE means “fourth-generation long-term evolution.”

3. https://www.accenture.com/t20170222T202102_w_/us-en/_acnmedia/PDF-43/Accenture-5G-Municipalities-Become-Smart-Cities.pdf.

4. How America’s 4G Leadership Propelled the U.S. Econ-omy. https://api.ctia.org/wp-content/uploads/2018/04/Recon-Analytics_How-Americas-4G-Leadership-Propelled-US-Economy_2018.pdf.

5. https://newsroom.accenture.com/news/new-research-from-accenture-strategy-highlights-economic-and-societal-impact-of-investing-in-5g-infrastructure.htm.

6. http://fortune.com/2018/08/07/5g-china-verizon-sprint-t-mobile/.

7. http://techblog.comsoc.org/2019/03/23/china-mobile-reports-2018-net-profit-of-17-58-billion-5g-accomplishments-and-2019-plans/.

8. https://www.ctia.org/news/u-s-tied-with-china-in-global-5g-race-new-report-finds.

9. “A utility shall provide . . . a telecommunications carrierwith nondiscriminatory access to any pole, duct, con-duit, or right-of-way owned or controlled by it.” 47U.S.C. § 224(f)(1). “A utility providing electric servicemay deny a . . . telecommunications carrier access to itspoles, ducts, conduits, or rights-of-way, on a non-dis-criminatory basis where there is insufficient capacityand for reasons of safety, reliability and generally appli-cable engineering purposes.” 47 U.S.C. § 224(f)(2). Seealso 47 C.F.R. § 1.1403(a).

10. See infra. Section 5.B.(iii) of this article.

11. Remarks of FCC Chair Ajit Pai–White House 5G Sum-mit–Washington, D.C.–September 28, 2018–https://docs.fcc.gov/public/attachments/DOC-354323A1.pdf.

12. Id.

13. To facilitate wireless deployments, the FCC has clarifiedthat pole attachment laws cover wireless attachments.Federal Communications Commission, “Report andOrder and Order on Reconsideration,” April 7, 2011.https://apps.fcc.gov/edocs_public/attachmatch/FCC-11-50A1.pdf.

14. See download available at https://www.ctia.org/news/race-to-5g-report.

15. Although one small cell installment is substantially lessexpensive to install than one macro cell installation, thesmall cell installation density 5G requires due to waveattenuation makes small cell deployments costly in theaggregate. For context, one geographic polygon ofsmall cells could include anywhere from 10 to 100 ormore small cells within its body. Moreover, carriers andinfrastructure providers incur numerous up-front costsfor each deployed small cell, including fiber installa-tions and associated fees, equipment costs, site acquisi-tion costs, legal costs and, historically, environmentaland historic property review costs. Once a carrier or in-frastructure provider has incurred these up-front costs,it must further incur application, permitting andrental/license fee expenses–not to mention post-in-stallation and on-going maintenance, modification andupgrade costs. Accordingly, excessive and unreasonableapplication and permitting fees and rentals/license feesdiscourage small cell deployments generally and, de-spite their need, can make them financially unfeasiblein some markets.

16. Three primary federal laws impact small cell deploy-ments: the Communications Act, the Telecommunica-tions Act and a provision of the Middle-Class Tax Reliefand Job Creation Act of 2012 (“Spectrum Act”). TheSpectrum Act was generally intended to advance wire-less broadband service for public safety and commercialpurposes, including the creation of a broadband com-munications network known as FirstNet for first respon-ders, as recommended by the 9/11 Commission.Section 6409(a) of the Spectrum Act provides, in perti-nent part, that notwithstanding Section 332(c)(7) ofthe Communications Act, a municipality “may not deny,and shall approve, any eligible facilities request for amodification of an existing wireless tower or base

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station that does not substantially change the physicaldimensions of such tower or base station.”

17. 47 U.S.C. § 151 et seq.

18. City of Arlington v. FCC, 133 S. Ct. 1863 (2013). The casefeatured an interesting split opinion: Justice Scaliawrote the majority opinion, in which Justices Thomas,Ginsburg, Sotomayor and Kagan joined; Justice Bryerfiled an opinion concurring in part and concurring inthe ruling; and Chief Justice Roberts, joined by JusticesKennedy and Alito, dissented.

19. The specific conditions for exclusion from NHPA andNEPA review for small cells are as follows: (i) the facili-ties are mounted on structures 50 feet or less in height,including their antennas, or the facilities are mountedon structures no more than 10 percent taller than otheradjacent structures, or the facilities do not extend be-yond the height of existing structures on which they arelocated to a height of more than 50 feet or by morethan 10 percent, whichever is greater; (ii) each antennaassociated with the deployment, excluding the associ-ated equipment, is no more than three cubic feet in vol-ume; (iii) all other wireless equipment associated withthe structure, including the wireless equipment associ-ated with the antenna and any pre-existing associatedequipment on the structure, is no more than 28 cubicfeet in volume; (iv) the facilities do not require certainspecified antenna structure registrations; (v) the facili-ties are not located on Tribal lands; and (vi) the facilitiesdo not result in human exposure to specified levels ofradio frequency radiation.

20. The FCC has conducted an incentive auction, in which itsold spectrum that TV broadcasters once used to wire-less companies to expand consumer bandwidth andcoverage, launched America’s first two 5G spectrumauctions in November 2018 (and announced plans toauction three more bands in 2019), is exploring how torepurpose mid-band spectrum for new wireless appli-cations from rural broadband coverage to Wi-Fi’s nextgeneration and is working with other federal agenciesto free up spectrum the federal government currentlyholds. Remarks of FCC Chair Ajit Pai–White House 5GSummit–Washington, DC–September 28, 2018–https://docs.fcc.gov/public/attachments/DOC-354323A1.pdf.

21. The FAST Plan recognizes that a substantial physical in-frastructure is necessary for optimal 5G delivery andperformance. FCC Chair Pai has estimated that theUnited States will need 800,000 new small cell sites by2025–barely 200,000 exist today. Accordingly, the FCCis encouraging private sector investment in 5G net-works by: adopting new rules reducing federal regula-tory impediments to small cell infrastructuredeployments that 5G needs and helping to expand 5G’sreach for faster, more reliable wireless service, and re-forming rules designed decades ago for macrocell sitesto accommodate small cells, which ban “short-sightedmunicipal roadblocks that have the effect of prohibitingdeployment of 5G” and gives states and municipalitiesreasonable deadlines to approve or disapprove smallcell applications. Remarks of FCC Chair Ajit Pai–WhiteHouse 5G Summit–Washington, DC–September 28,

2018–https://docs.fcc.gov/public/attachments/DOC-354323A1.pdf.

22. Under the FAST Plan, the FCC is modernizing outdatedregulations to meet 5G infrastructure requirements andpromote 5G backhaul and digital opportunities using afive-step process: (i) “encourag[ing] investment and in-novation while protecting Internet openness and free-dom” through its adoption of the Restoring InternetFreedom Order, which sets “a consistent national policyfor Internet providers”; (ii) updating its rules governingthe attachment of new network equipment to utilitypoles in order to reduce cost and speed processes; (iii)revising its rules so companies may more easily investin next-generation networks and services; (iv) incen-tivizing investment in modern fiber networks by updat-ing rules for high-speed, dedicated services by liftingrate regulation where appropriate; and (v) proposing toprevent taxpayer dollars from being used to purchaseequipment or services from companies posing nationalsecurity threats to the integrity of American communi-cations networks or the communications supply chain.

23. Action by the Commission September 26, 2018 by De-claratory Ruling and Report and Order (FCC 18-133)–WT Docket No. 17-79 and WC Docket No. 17-84. ChairPai, Commissioners O’Rielly and Carr approving. Com-missioner Rosenworcel approving in part and dissent-ing in part. Chairman Pai, Commissioners O’Rielly, Carrand Rosenworcel issuing separate statements.

24. Id. at Section III.B.50.

25. Id. at Section III.B.79. Although the Small Cell Order ex-pressly excludes access or attachments to government-owned properties outside the rights-of-way, it requiresthat application or review fees for small cells outsidethe rights-of-way be cost-based.

26. Id. at Section III.C.82.






32. Id. at Section III.C.91 at n.252.

33. Id.

34. Id. at Section IV.103.

35. For shot clock purposes, the Small Cell Order clarifiesthat “attachment of facilities to existing structures con-stitutes collocation, regardless of whether the structureor the location had previously been zoned for wirelessfacilities.”

36. Id. at Section IV.A.105.


38. Id. at Section III.A.2.114.

39. Id.

40. Id.



43. Id.


45. Id. at Section IV.C.4.141.


47. Id.

48. Id.


50. https://eshoo.house.gov/news-stories/press-releases/eshoo-introduces-legislation-to-restore-local-control-in-deployment-of-5g/.

William M. Lawrence

Bill Lawrence practicesin the Birmingham office ofBurr & Forman LLP, wherehe focuses on corporatetransactional law for a widerange of commercial busi-nesses, and on wireless

communications law for wireless carriers,cell tower owners and other wireless in-dustry service providers. He graduatedfrom Auburn University and the Cumber-land School of Law of Samford Univer-sity. From 1996-97, he served as lawclerk to the Honorable Robert B. Propst,United States District Judge for theNorthern District of Alabama.

Matthew W. Barnes

Matt Barnes practices inthe Raleigh office of Burr &Forman LLP, where he fo-cuses on mergers and acqui-sitions, business planning,general business and corpo-rate matters, and represent-

ing infrastructure and other serviceproviders in the wireless industry. Hegraduated from the University of Alabamaat Birmingham and the CumberlandSchool of Law of Samford University.

e alabama lawyer - burr & forman...feel free to send it around. one of the things we enjoy the...

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