Telecommunications Law

International Municipal Lawyers Association Annual Conference September 10, 2014 Baltimore, Maryland PRESENTED BY Matthew K. Schettenhelm Wireless Facility Siting: How “Local Control” is Faring at the FCC and in the Courts ©2014 Best Best & Krieger LLP

Telecommunications Law Wireless provider approaches your City

Telecommunications Law New site, downtown area

Telecommunications Law Problem(s)

Telecommunications Law What do you do?

Telecommunications Law Just say no?

Telecommunications Law Just say no?

Telecommunications Law Work with the company

Telecommunications Law A solution that works for everyone

Telecommunications Law The site =

Telecommunications Law (1) centrally located

Telecommunications Law (2) hidden

Telecommunications Law (3) safe

Telecommunications Law win-win

Telecommunications Law Fast forward 6 months

Telecommunications Law Same provider

Telecommunications Law Same site

Telecommunications Law New idea:

Telecommunications Law Add

Telecommunications Law 4 equipment cabinets

Telecommunications Law 1 equipment shelter

Telecommunications Law new antennas

Telecommunications Law Multiple 20-foot extensions

Telecommunications Law Your answer?

Telecommunications Law Not a chance.

Telecommunications Law Not asking.

Telecommunications Law Not asking.

Telecommunications Law Telling

Telecommunications Law

Section 6409(a)

Telecommunications Law 47 U.S.C. § 1455(a)

Telecommunications Law “may not deny, and shall approve”

Telecommunications Law Is the provider right?

Telecommunications Law It depends.

Telecommunications Law

challenge

Telecommunications Law challenges

Telecommunications Law background

Telecommunications Law 2 federal laws

Telecommunications Law (1)

Telecommunications Law

47 U.S.C. § 332(c)(7)

Telecommunications Law Generally preserves

Telecommunications Law But

Telecommunications Law five limitations

Telecommunications Law A State or local government:

Telecommunications Law (1)

Telecommunications Law May not “unreasonably discriminate” among functionally equivalent providers

Telecommunications Law (2)

Telecommunications Law Shall not “prohibit or have the effect of prohibiting” the provision of wireless service

Telecommunications Law (3)

Telecommunications Law Shall act on a request “within a reasonable period of time”

Telecommunications Law (4)

Telecommunications Law Must make decision to deny “in writing” and “supported by substantial evidence”

Telecommunications Law (5)

Telecommunications Law May not regulate on the basis of the environmental effects of radiofrequency emissions

Telecommunications Law Hundreds of decisions

Telecommunications Law

90/150 days

Telecommunications Law

(2)

Telecommunications Law 47 U.S.C. § 1455(a)

Telecommunications Law “Notwithstanding... any other provision of law...

Telecommunications Law “a State or local government may not deny, and shall approve”

Telecommunications Law “any eligible facilities request for a modification of an existing wireless tower or base station that”

Telecommunications Law “does not substantially change the physical dimensions of such tower or base station”

Telecommunications Law Congress defined only one term

Telecommunications Law “Eligible facilities request”

Telecommunications Law “any request for modification of an existing wireless tower or base station that involves-- (A) collocation of new transmission equipment; (B) removal of transmission equipment; or (C) replacement of transmission equipment.”

Telecommunications Law Undefined:

Telecommunications Law “any request for modification of an existing wireless tower or base station that involves-- (A) collocation of new transmission equipment; (B) removal of transmission equipment; or (C) replacement of transmission equipment.”

Telecommunications Law “any request for modification of an existing wireless tower or base station that involves-- (A) collocation of new transmission equipment; (B) removal of transmission equipment; or (C) replacement of transmission equipment.”

Telecommunications Law “does not substantially change the physical dimensions of such tower or base station”

Telecommunications Law “does not substantially change the physical dimensions of such tower or base station”

Telecommunications Law “does not substantially change the physical dimensions of such tower or base station”

Telecommunications Law

Received hundreds of comments

Telecommunications Law A number of important issues

Telecommunications Law three

Telecommunications Law (1)

Telecommunications Law What does it mean to “substantially change the physical dimensions of a wireless tower or base station?”

Telecommunications Law (2)

Telecommunications Law What is a “wireless tower” or “base station?”

Telecommunications Law (3)

Telecommunications Law What does “may not deny, and shall approve” mean?

Telecommunications Law (1)

Telecommunications Law What does it mean to “substantially change the physical dimensions of a wireless tower or base station?”

Telecommunications Law

troubling

Telecommunications Law Fixed; doesn’t consider context

Telecommunications Law A modification is a substantial change only if it involves one of the following:

Telecommunications Law (1)

Telecommunications Law Increasing an existing structure’s height by more than 10%

Telecommunications Law (2)

Telecommunications Law Installing more than four equipment cabinets or one equipment shelter

Telecommunications Law (3)

Telecommunications Law Adding an appurtenance that protrudes from the support structure more than 20 feet

Telecommunications Law (4)

Telecommunications Law Involves excavating outside the current structure site

Telecommunications Law Local governments = different approach

Telecommunications Law “depends on context, and does not lend itself to a mechanical, numerical formula”

Telecommunications Law Substantial change = a change that, in context, is “important”

Telecommunications Law Includes any physical-dimension change that would:

Telecommunications Law “make a facility unsafe,”

Telecommunications Law “render public streets or sidewalks less accessible or hazardous,”

Telecommunications Law “damage a historically significant area or structure,”

Telecommunications Law “expose a stealth facility,”

Telecommunications Law “or otherwise defeat conditions that were key to the underlying facility.”

Telecommunications Law Also: modifying a facility that has “legal, non-conforming” status should be considered “substantial”

Telecommunications Law Policy concern?

Telecommunications Law A solution that works for everyone

Telecommunications Law (2)

Telecommunications Law What is a “wireless tower” or “base station?”

Telecommunications Law “wireless tower”

Telecommunications Law FCC = a structure “built for the sole or primary purpose” of supporting antennas

Telecommunications Law Industry = much broader

Telecommunications Law Industry = Any structure that supports wireless equipment, including...

Telecommunications Law water towers

Telecommunications Law utility poles

Telecommunications Law streetlights

Telecommunications Law buildings

Telecommunications Law (for some)

Telecommunications Law Even if the underlying facility does not already host any wireless equipment

Telecommunications Law “base station”

Telecommunications Law FCC = includes a structure that “supports or houses an antenna, transceiver, or other associated equipment that constitutes part of a base station.”

Telecommunications Law This would include buildings, utility poles, streetlights

Telecommunications Law Local governments argued statute includes only one support structure (tower)

Telecommunications Law (3)

Telecommunications Law What does “may not deny, and shall approve” mean?

Telecommunications Law Two questions

Telecommunications Law Can a local government approve, but with other conditions?

Telecommunications Law What is the remedy?

Telecommunications Law Industry generally said that local governments can only condition on “nondiscretionary building and other structural safety codes”

Telecommunications Law FCC proposed that requests shall be “deemed approved” automatically

Telecommunications Law Local governments = due process/10 th Amendment problems

Telecommunications Law Local governments = courts should decide based on the facts

Telecommunications Law Historic Site – Now Historic 50’-high silos with approved attachment of six panel antennas painted to match exterior surface to minimize visual impact. Located at Dufief Mill Road and MD Route 28 (Darnestown Road) in Montgomery County, Maryland. Photos by: Robert P. Hunnicutt, Columbia Telecommunications Corporation

Telecommunications Law Historic Site – Post Guidance? Illustration showing potential impact of co-location of an additional approximately 20’-high pole mounted antenna array. Photos by: Robert P. Hunnicutt, Columbia Telecommunications Corporation

Telecommunications Law Historic Site – Now Photo of Simeon T. Toby’s Bank Building, Columbia City Historic District, King County, WA. Blue arrows point to current location of cell towers. Building listed on National Registry of Historic Places

Telecommunications Law Historic Site – Post Guidance? Illustration showing potential impact of co- location using photos of actual rooftop installations

Telecommunications Law Brickyard Rd. DAS Site – Neighborhood Photos by: Robert P. Hunnicutt, Columbia Telecommunications Corporation

Telecommunications Law Brickyard Rd. DAS Site – Now Pole to support DAS antennas (68’ high) now at Brickyard Road in Montgomery County (part of a multi-node installation that extends down Brickyard Road) Photos by: Robert P. Hunnicutt, Columbia Telecommunications Corporation

Telecommunications Law Brickyard Rd. DAS Site – Post Guidance? Illustration of an extension to existing utility pole with additional structural bracing and guy wires to support the extension, which rises approximately 20’ above existing DAS antennas. Blocks at bottom reflect related typical pole-mounted equipment cabinets. Photos by: Robert P. Hunnicutt, Columbia Telecommunications Corporation

Telecommunications Law Is it too late?

Telecommunications Law No.

Telecommunications Law “ex parte” process

Telecommunications Law Action likely later this year.

Telecommunications Law 47 U.S.C. § 332(c)(7)

Telecommunications Law Five lessons

Telecommunications Law (1) Do no rely on the environmental effects of RF emissions in any respect

Telecommunications Law T-Mobile Northwest LLC v. Loudoun County, 748 F.3d 185 (4th Cir. 2014)

Telecommunications Law Board had “substantial evidence” to deny for aesthetic reasons, but...

Telecommunications Law One board member insisted that RF concerns also be listed.

Telecommunications Law This rendered the denial unlawful.

Telecommunications Law (2) Distinguish regulatory and proprietary activities

Telecommunications Law Omnipoint Communications v. City of Huntington Beach, 738 F.3d 192 (9th Cir. 2013)

Telecommunications Law Voter approval process for leasing of certain City property

Telecommunications Law Process is not subject to Section 332(c)(7) preemption

Telecommunications Law (3) Issue denials “in writing”; state reasons clearly

Telecommunications Law T-Mobile South, LLC v. City of Roswell, 731 F.3d 1213 (11th Cir. 2013)

Telecommunications Law Put denial in writing, but did not include reasons for denial (minutes from hearing showed reasons)

Telecommunications Law 11th Cir.: this is enough.

Telecommunications Law Supreme Court will hear argument this fall.

Telecommunications Law (4) Regulate aesthetics by developing a record

Telecommunications Law N.E. Cellular Inc. v. City of North Platte, slip op., No (8th Cir. Aug. 22, 2014)

Telecommunications Law N.E. Cellular Inc. v. City of North Platte, slip op., No (8th Cir. Aug. 22, 2014)

Telecommunications Law Testimony from a dozen residents that it would be inconsistent with neighborhood was sufficient

Telecommunications Law Tip: the more specific, the better. Courts find that “generalized” grievances do not constitute substantial evidence.

Telecommunications Law Matthew K. Schettenhelm Best Best & Krieger LLP Washington D.C. (202)