1. Implementing the FCC Order on Mandatory Wireless Facilities Collocations, and Small Cell Wireless Facilities in the Rights of Way: Challenges and Opportunities
March 28, 2017
Ken Fellman, Esq.
Kissinger & Fellman, P.C

2. Acknowledgement: some of the materials contained in this presentation have been derived from other training materials put together by my friends and colleagues Jonathan Kramer and Tripp May of Telecom Law Firm in California.

3. Section 6409(a) of the Middle Class Tax Relief and Job Creation
Act of 2012 mandates that a State
or local government approve certain
Wireless broadband facilities siting
Requests for modifications and
collocations of wireless transmission equipment on an
existing tower or base station that does not result in a
substantial change to the physical dimensions of such
tower or base station. In October 2014, the Federal
Communications Commission unanimously approved
rules interpreting Section 6409(a).
How many of you know about the 6409 rules; attended another presentation or webinar?
How many involved (or know if) your jurisdictions have amended your codes to address the mandatory collocation rules? `

4. Wireless industry associations PCIA and CTIA worked the National Association of Telecommunications Officers and Advisors, the National League of Cities, and the the National Association of Counties to develop a model ordinance and application for reviewing eligible facilities requests under Section 6409(a)

5. FCC Collocation Rules Definitions (can be mirrored in local ordinance)
Base Station: A structure or equipment at a fixed location, enabling FCC authorized Wireless communications. It is not a tower or any equipment associated with a tower
Collocation: the mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting/receiving radio frequency signals for communications purposes
Eligible Facilities Request: Any request for modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station, involving:
Collocation of new transmission equipment;
Removal of transmission equipment; or
Replacement of transmission equipment (does not include ‘drop and swap’)
A handful of key definitions – not defined by Congress in the statute; no legislative history; FCC proceeding was to, in part, determine what these terms mean. How it was decided was both troubling and successful for local governments (even tho underlying premise is offensive)
Not going to spend a lot of time on definitions (have done a 2 hour presentation just on 6409 rules), but they are all important
Base Station: (NOT JUST THE BLDG AT THE BASE W/EQUIP INSIDE) Private, broadcast, public safety services, wireless and fixed wireless services, microwave backhaul Radio transceivers, antennas, cabling, backup power supplies, distributed antenna systems (“DAS”) and small cell network equipment Structures other than towers that support or house equipment described here that has been reviewed and approved under applicable zoning or siting processes

6. Ordinance Definitions
Eligible support structure: Any tower or base station as defined in this section, provided that it is existing at the time the relevant application is filed with the jurisdiction under this section
Existing: A constructed tower or base station is existing if it has been reviewed and approved under the applicable zoning or siting process, or under another State or local regulatory review process, provided that a tower that has not been reviewed and approved because it was not in a zoned area when it was built, but was lawfully constructed, is existing for purposes of the ordinance (this requires both a physical and a legal existence
Point 2: - i.e., does a valid permit exist for the antennas on this structure? Mandatory collocation does not apply to structures (1) that merely could support transmission equipment or (2) were illegally constructed without all proper wireless site review

7. Ordinance Definitions
Site: For towers other than towers in PROW, the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site, and, for other eligible support structures, further restricted to that area in proximity to the structure and to other transmission equipment already deployed on the ground
Substantial Change: A modification substantially changes the physical dimensions of an eligible support structure if it meets any of the following criteria:
For towers other than towers in the public rights-of-way, it increases the height of the tower by more than 10% or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed 20 feet, whichever is greater; for other eligible support structures, it increases the height of the structure by more than 10% or more than 10 feet, whichever is greater
SUBSTANTIAL CHANGE: arguably the most important definition

8. Ordinance Definitions
Substantial Change (protrusions and cabinets):
For towers other than towers in the PROW, adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than 20 feet, or more than the width of the Tower structure at the level of the appurtenance, whichever is greater; for other eligible support structures, it involves adding an appurtenance to the body of the structure that would protrude from the edge of the structure by more than 6 feet;
For any eligible support structure, it involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed 4 cabinets; or, for towers in the public rights-of-way and base stations, it involves installation of any new equipment cabinets on the ground if there are no pre-existing ground cabinets associated with the structure, or else involves installation of ground cabinets that are more than 10% larger in height or overall volume than any other ground cabinets associated with the structure;

9. Ordinance Definitions
Substantial Change (excavation):
It entails any excavation or deployment outside the current site;

10. Ordinance Definitions
Substantial Change (concealment/ camouflage):
It would defeat the concealment elements of the eligible support structure;
Also critically important. Local gov’ts won a big one here

11. Ordinance Definitions
Substantial Change (conditions of approval):
It does not comply with conditions associated with the siting approval of the construction or modification of the eligible support structure or base station equipment, provided however that this limitation does not apply to any modification that is non-compliant only in a manner that would not exceed the thresholds identified in this section
Substantial Change: With respect to non-compliance with conditions associated with the siting approval of the construction or modification of the eligible support structure or base station equipment …
Essentially, if a prior condition of approval does not have to do with changes to height or width of the original site, and there would be a violation related to any of those prior conditions, then the proposed change would be a substantial change, and therefore not subject to Section 6409(a)
In other words, if a condition for the original site bars expansion, then that condition would be not be enforceable if the proposed collocation would not be a “substantial change” under Section 6409(a)
But … if there is a condition of approval limiting height that is tied to concealment, then a small increase in height that defeats concealment, could be a substantial change, and not subject to mandatory approval

12. Ordinance Definitions
Substantial Change (summarized):
Section 6409(a) does not mandate approval for all requests to collocate or modify facilities
Approval mandated only those that do not “substantially change the physical dimensions of the existing wireless tower or base station”

13. Ordinance Definitions
Substantial Change (summarized):
The FCC rules generally preempt compliance with subjective requirements for wireless site modifications that do not result in a substantial change, but preserve objective requirements
“States and localities may continue to enforce and condition approval on compliance with generally applicable building, structural, electrical, and safety codes and other laws codifying objective standards reasonably related to health and safety”
However, applicants may modify legal non-conforming towers and base stations under the rules without bringing those structures into code compliance -- The FCC determined that a different rule would allow municipalities to exclude towers and base stations through a change in zoning laws that transforms a conforming site
Whether the rules preempt zone-height limits and setbacks remains unclear
Generally applicable laws contain objective standards and reasonably relate to health and safety, which the rules expressly do not preempt
But … height limits and setbacks may also serve subjective aesthetic purposes, which the rules generally do preempt
The answer will likely come from future case law

14. Ordinance Definitions
Transmission Equipment: Equipment that facilitates transmission for any FCC- authorized wireless communication service, including, radio transceivers, antennas, cable, and power supply…includes equipment associated with wireless communications services
including private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul

15. Ordinance Definitions
Tower: Any structure built for the sole or primary purpose of supporting any FCC authorized antennas and associated facilities
Not any structure capable of having facilities attached – as industry proposed

16. Ordinance Contents Application Type of Review (Administrative)
You can require an application
Should include all the info staff needs to determine whether it is an Eligible Facilities Request
More on this later …
Type of Review (Administrative)
Timing – shall approve the application within 60 days unless it is not a covered request
Incomplete applications can toll the deadline to act if notice is giving within 30 days

17. Ordinance Contents Interaction with Previously Adopted
Shot Clock Rules Implementing 42
USC Section 332 (c)(7)
If the application is not a valid 6409(a) request the presumptively reasonable timeframe for the application under the prior shot clock order begins to run from the issuance of the City’s decision that the application is not a covered request
Shot clock rules apply to DAS and small cells
There is no “deemed granted” rule for 332 (c)(7) applications

18. Ordinance Contents Related to Action on Application
If you fail to approve or deny a request under this chapter …
… within 60 days, accounting for any tolling
The request is …
DEEMED GRANTED
“Deemed Granted” does not become effective until applicant notifies the jurisdiction in writing that the review period has expired
Remedies: Either the jurisdiction or the applicant may bring any claims under Section 6409 (a) to any court of competent jurisdiction

19. Application Form Contents
You want to get all the information you need to determine whether the application qualifies for mandatory approval
The rules limit the issues you can decide, but still permits you to require the information you need to resolve those issues

20. Application Form Contents (what you can’t require)
Demonstration of need for the facilities
Business case showing necessity to fill a gap in coverage or increase network capacity
Application Form Contents (what you can require)
whether the applicant holds a valid property interest in the site (i.e., a lease or license)
whether the proposal qualifies as an eligible facilities request
whether the structure qualifies as an existing wireless tower or base station

21. Application Form Contents (what you can require)
whether the proposal will cause a substantial change in the physical dimensions
whether the proposal violates objective generally applicable laws or prior conditions of approval that reasonably relate to public health and safety
whether the proposal raises any environmental or historic preservation concerns

22. Application - Timing
Can toll the shot clock if application is incomplete
Notify applicant of deficiencies within 30 days - must cite to an application defect in some “code provision, ordinance, application instruction, or otherwise publically-stated procedure”
If applicant responds and is still incomplete, but advise of deficiencies within 10 days

23. Application – Is Conditional Approval Permitted?
Yes, if consistent with the FCC’s rules
Conditions that do not conflict with the rules include “compliance with generally applicable building, structural, electrical, and safety codes and with other laws codifying objective standards reasonably related to health and safety” such as environmental and historic preservation requirements
Applicants must also comply with pre-existing “other conditions of approval placed on the underlying structure” so long as the conditions do not conflict with the rules
Unenforceable conditions include any that set limits lower than the criteria for a substantial change as set out in the rules, and likely also include any that impose subjective or discretionary standards for compliance (such as, for example, anything required “to the satisfaction of the planning director or commission”)
The rules appear to preserve the power to include, for example, conditions on parking space allocations, site maintenance, site access, lighting, fencing, drainage, compliance with all laws, insurance, indemnification, collocation, signage, and landscaping

24. Other Issues – Local Government Preferences to use Government Property
a preference for
placing wireless sites
on local government
property does not, on
its own, unreasonably
discriminate against
functionally equivalent
service providers
Not getting into historical preservation here – not enough time – but … the rules adopt a new categorical exclusion from NHPA requirements for collocations on utility structures
The rules adopt a new categorical exclusion from NHPA requirements for collocations on buildings

25. Suggestions
We should not necessarily throw out our pre-Section 6409(a) wireless ordinance standards and procedures for collocations and modifications
These continue to apply to the extent that a proposed collocation or modification does not qualify as an eligible facilities request or does result in a substantial change

26. Suggestions
Publish application materials on your jurisdiction’s website
Update and improve with experience
Be explicit about what and how materials must be submitted
Make sure there’s a good rationale for each application requirement
Avoid any requirements that empower local officials to require additional information on a case-by-case basis

27. Suggestions
Consider requiring pre-submittal meetings to make sure applicant and staff understand what is going to be submitted
May want to develop and use a ‘notice to applicant’ form to identify incomplete applications with check-the-box line items for each required application material
When ambiguities arise about whether an application contains sufficient information, review immediately with legal counsel

28. Multiple companies want to site “small cell” facilities in your rights of way
Doesn’t matter which company is the challenge de jure – we really need to examine this issue on a broader scale
Wireless facilities in the ROW raise issues not generally considered when siting traditional cell towers – how do we address them?
Changing gears a bit … What’s a “small cell”? Who knows the answer?

29. Do Companies Seeking to Put Vertical Assets in the ROW Have an Unrestricted Legal Right to do so?
Not under federal law
Probably not under state law …
…but they do have some rights

30. Is the Company a “Public Utility”?
What is public utility (legally speaking)?
For purposes of our discussion …
a business or service, which may be publicly or privately owned, engaged in supplying the public generally with some commodity or service, such as electricity, gas, water, transportation, or communications
Is there a difference between a “public” utility and a “utility”?
The answers to these questions, to the extent there are clear answers, are functions of state and sometimes federal law
We could teach an entire law school class on this

31. If the Company is Given ROW Access Under State Law, are there any Local Police Power Controls?
Can local governments impose height limits in ROW?
Do your height limitations set forth in each zoning district apply on public as well as private property?
Many do
Do you have local authority to limit the number of poles in the ROW, either to protect public safety or for aesthetic reasons?
I would suggest that you do
We want to avoid this monstrosity, don’t we?

32. Are we Opening Pandora’s Box?
Once the first company installs poles and antennas in the ROW, don’t the non-discrimination provisions of federal (and perhaps state) law require that all future applicants to locate similar structures be treated comparably?
Some companies are wireless service providers; some are simply infrastructure owners that lease space to providers
If you allow infrastructure companies to locate in the ROW, can you force a wireless provider to choose between a deal with the existing infrastructure owner or denial of their own application?
no!
So from a planning standpoint, we are looking for ways to promote deployment of small cell facilities while avoiding visual “tower clutter” in the ROW #1
Probably
At least you can hear the arguments being made by [PICK ONE] VZW, AT&T Wireless, Crown Castle, American Tower, T-Mobile, etc.

33. Federal Law Issues
Telecommunications Act of 1996, 47 U.S.C. Sec. 332 (c)(7) “no unreasonable discrimination” requirements:
The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof shall not unreasonably discriminate among providers of functionally equivalent services
Query: if you’ve previously allowed wireless facilities in the ROW, but required them to be camouflaged or otherwise restricted, if you allow stand alone towers from a new company do you subject your jurisdiction to charges of unreasonable discrimination?

34. Federal Law Issues
Telecommunications Act of 1996, 47 U.S.C. Sec (c)(7): restricts local authority in some areas but generally preserves it
(A) General authority - Except as provided in this paragraph, nothing in this chapter 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
(B) Limitations:
(i) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof—
(I) shall not unreasonably discriminate among providers of functionally equivalent services; and
(II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services

35. Federal Law Issues Section 332 (c)(7) shot clock issues:
Relates to personal wireless service facilities
Facilities are those used to provide personal wireless services, which are “commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services” 47 U.S.C. § 332(c)(7)(C)(i)
90 days for collocations (that are not mandatory collocations under Section 6409 of the Spectrum Act) and 150 days for new facilities
Likely means that even if an applicant is not a service provider, to the extent that it proves it is building infrastructure for a provider of personal wireless services, the 332 (c)(7) shot clocks apply

36. Federal Law Issues
Telecom Act of 1996, Sec. 253: Removal of Barriers to Entry
(a) In general - No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.
(c) State and local government authority - Nothing in this section affects the authority of a State or local government to manage the public rights-of-way or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory basis, if the compensation required is publicly disclosed by such government.
(d) Preemption- If, after notice and an opportunity for public comment, the Commission determines that a State or local government has permitted or imposed any statute, regulation, or legal requirement that violates subsection (a) or (b), the Commission shall preempt the enforcement of such statute, regulation, or legal requirement to the extent necessary to correct such violation or inconsistency.

37. Franchises, Permits, Licenses?
What’s the best way to assert your authority, and protect your jurisdiction?
Once again, it depends in large part upon state law
You may have authority to require a franchise,
You likely have authority to address police power regulations in a ROW access or license agreement, or in a franchise
You may need (or want) to permit facilities on an individual basis, depending upon what is proposed,
And despite what the law is today, you may need to advocate for local control at your friendly neighborhood state capitol

38. And yet another challenge at the FCC
In response to a Mobilitie petition for declaratory ruling at the FCC, the Commission has issued a public notice
titled: STREAMLINING DEPLOYMENT OF SMALL CELL INFRASTRUCTURE BY IMPROVING WIRELESS FACILITIES SITING POLICIES, DA ; WT Docket No
In the PN, the Commission asks numerous questions and seeks feedback on how siting is happening, and effectiveness of the local approval process
Issues teed up include how long does it take, are local governments delaying deployment due to inappropriate fees or taking too long to process requests, and almost any other issue you can think of relating to local authority over the ROW
This proceeding could lead to new federal rules preempting local authority over your ROW
Reply Comments are due April 7th – extension requested to May __
Get add’l comments from Joe

39. Getting Information and Acting
Look at amending your code if necessary, and treat applications the same as you would for any other applicant
If you don’t have criteria for determining the conditions under which you will allow poles in the ROW, you need them
Issues that may come up:
“Some of our facilities will go on utility company poles”
Get a copy of their pole attachment agreement
“Some of our facilities will be on state roads in your jurisdiction”
Get a copy of their agreement with state’s DOT

40. Getting Information and Acting
So … don’t feel pressured; ask questions; get all the information you need to make a complete application under your local requirements, and act accordingly
And if your policy is to limit big ugly poles in the ROW, make sure, to the extent you have the authority, that your code and regulations reflect that, treat all comers the same, and be willing to look for creative solutions in a collaborative way

41. Ken Fellman Kissinger & Fellman, P. C. 303-320-6100 kfellman@kandf
Ken Fellman Kissinger & Fellman, P.C