Section 6409 vs. Reality Wireless West Conference – Breakout Session April 20, 2016

Panelists Michael Fitch Senior Counsel, Keller & Heckman LLP Liz Hill Director, State & Local Government Affairs, American Tower Corporation Tripp May Partner, Telecom Law Firm, PC Ken Lyons - Moderator Jurisdictional Relations Director, Wireless Policy Group LLC

Speaker Biographies – Section 6409(a) vs. Reality Michael Fitch Michael Fitch is Senior Counsel in the Telecommunications Practice Group of the law firm Keller and Heckman. From , Fitch was President and CEO of PCIA –The Wireless Infrastructure Association. At PCIA, he led a successful legislative effort that resulted in the passage of Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of He began his career at the Federal Communications Commission, where he advanced from staff attorney to Bureau Chief and Senior Legal and International Advisor to the Chairman. Fitch moved from the FCC to the U.S. Department of State, where he was an Office Director and Deputy Assistant Secretary of State for Communications and Information Policy. He then became the Vice President of Regulatory Affairs and Spectrum Management at Hughes Communications, part of Hughes Electronics. When Hughes Space and Communications was acquired by Boeing, he continued his communications responsibilities and added new programs involving Homeland Security. Fitch holds a Bachelor of Science degree in Electrical Engineering from Purdue University and a Juris Doctor degree from Columbia University. He is a member of the Board of Directors of the California Wireless Association and a Fellow in the Radio Club of America. Liz Hill, Director of State & Local Government Affairs Liz Hill is American Tower Corporation’s Director of State & Local Government Affairs in charge of the Company’s land use policy initiatives. During her 17 years with ATC, Liz has worked in zoning and land use, including zoning efforts for new tower development, tower redevelopment, operations, compliance, litigation, and entitlement renewal. Throughout her tenure, she has worked with industry, local governments, and planning groups on issues relating to zoning and siting policy issues. Liz is a member of the Women’s Wireless Leadership Forum. She is a founding member of the Carolinas Wireless Association and chair of its Regulatory Committee. She is on PCIA’s State & Local Government Committee & Regulatory Affairs Committee, the HetNet Forum’s Advocacy Committee, and a member of CTIA’s Tower Siting Working Group. In addition, she is active with the regulatory committees of most of the state wireless associations. She was named one of RCR’s Women to Watch in Wireless for 2012.

Tripp May, Attorney Tripp May is a partner in the La Jolla office of Telecom Law Firm, PC. He specializes in wireless and broadband infrastructure regulatory and transactional matters for both public agencies and private property owners around the country. Tripp co-represented a coalition of California governments and governmental organizations in the FCC rulemaking proceedings to interpret Section 6409(a), was co-counsel to the amici curiae in the subsequent Fourth Circuit petition for judicial review, and has served as special counsel and a subject matter expert in district court proceedings involving Section 6409(a) claims. He represented the same California coalition in the recent legislative proceedings to adopt California Assembly Bill, AB 57. Approximately 50% of his practice involves advising local agencies on how to handle wireless permit applications on private property and in the public right of way. He also drafts and updates wireless permit applications, review procedures and code provisions for permitting agencies in several states. He regularly speaks at both industry and government conferences, and writes on these issues for publications like AGL, the Los Angeles Daily Journal and APA Magazine. Moderator – Ken Lyons Ken Lyons serves as Wireless Policy Group’s Jurisdictional Relations Director, responsible for local land use policy and permitting initiatives for various wireless clients across the Western United States. Wireless Policy Group LLC was recently created to house Busch Law Firm’s land use consulting practice. Ken is a professional land use planner, having worked with local government, as a developer, and as a consultant to the wireless communications industry for code changes and permit expediting. Ken was the primary author of the recent update to Washington’s State Environmental Policy Act (SEPA) regulations affecting wireless facilities. Ken has also participated in many local wireless code changes and policy updates to address general network development challenges, small cells, and 6409(a) upgrades. A native of Seattle, Ken has a BA in Community and Environmental Planning from the University of Washington. Ken is also a licensed Managing Broker and owns a real estate brokerage in Washington State.

Section 6409 in 120 seconds or less!

Brief History February 2012: Congress passed Section 6409 of the “Spectrum Act” Basic requirement to approve Eligible Facilities Requests (“EFRs”) No definition of “substantial change” Little direction otherwise : FCC guidance Defined “substantial change,” but wasn’t binding… Formal rulemaking process begins April 2015: New FCC rule became effective

Section 6409 in Plain English State and local governments may not deny, and shall approve any eligible facilities request so long as it does not cause a substantial change to the existing tower or base station.

What the FCC Rule does… Defines Key Terms: “Tower” – built specifically for wireless facilities “Base Station” – everything else locally approved to support antennas “Existing” – lawfully constructed or deployed “Substantial Change” “Eligible Facilities Request” New Procedural Rules: Limits initial review to whether section 6409 applies; limits application materials Localities may still require a separate application New Substantive Remedy: 60-day shot clock Deemed grant upon applicant’s written notice

FCC Rule – “Substantial Change” 1.Height 2.Width/Horizontal projections 3.Equipment Cabinets 4.Excavation/Deployment outside of the Site Area 5.Defeats concealment 6.Violates prior conditions of approval

The FCC Rule is now in effect… …So that settles it, right???

6409 vs. Reality What qualifies? What’s an existing “base station”? What “defeats” concealment? How do “previous conditions of approval” affect EFRs? Are tower replacements covered? Are sites in historic districts disqualified? What do you do when one part of a project is an EFR and another part isn’t? What about sites on City-owned property?

Defeats concealment?

6409 vs. Reality What are the process implications? Generally, how have jurisdictions received the new rule? Can a jurisdiction still apply their existing code and normal process? What are the essential elements of a 6409 application? What documentation is needed to show that a site legally exists? What happens if the existing site is out of compliance with the original approval? How can we ensure that EFRs are well-received and processed quickly by local governments?

6409 vs. Reality How do the remedies in the FCC rule work? What if the jurisdiction fails to act within the 60-day clock? What if the jurisdiction denies a legitimate EFR? What if unreasonable conditions are placed on an EFR approval? Does the 60-day clock apply to building permits? What if the jurisdiction keeps asking for documentation that isn’t related to the EFR? When does the Shot Clock start with an EFR?

6409 vs. Reality What are the long-term policy impacts? Will 6409 change how new sites get permitted? New towers Small cells ROW vs. Private Property Is there any emerging case law regarding 6409? With the rapid pace of upgrades and progressively more stringent structural requirements, is 6409 short-lived?

Thank you!