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Municipal Management of Cellphone Towers, DAS and Small Cell Deployments

Municipal Management of Cellphone Towers, DAS and Small Cell Deployments. Gerard Lavery Lederer Best Best & Krieger LLP. You’re Welcome – He was our 7 before he became Your 7. Local Regulation of Wireless Facilities in the Post Carr Order Era. IS THIS A. OR. HURRICANE BRENDAN?.

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Municipal Management of Cellphone Towers, DAS and Small Cell Deployments

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  1. Municipal Management of Cellphone Towers, DAS and Small Cell Deployments Gerard Lavery Lederer Best Best & Krieger LLP

  2. You’re Welcome – He was our 7 before he became Your 7

  3. Local Regulation of Wireless Facilities in the Post Carr Order Era.

  4. IS THIS A OR

  5. HURRICANE BRENDAN?

  6. Reducing to a Picture 46-5-1 (b) (2) 46-5-1- (b) (3) “Within 60 calendar days … completed application … failure …to adopt…within 60 days …final adoption.” ROW COMPLETE 15 B.D. WIRELESS RECEIVED Small Cell Small Cell Existing Structure New Structure” 10 days for any successive application. 10 days for any successive application. DON’T FORGET THAT STATE SHOT CLOCKS CAN BE SHORTER. 6

  7. The Federal Legal Framework Telecommunications Act - 47 U.S.C. § 332(c)(7) Applies to all applications for “personal wireless services facilities” Generally preserves local authority to control placement of person wireless facilities, subject to substantive and procedural limits, except as interpreted by Carr Order. Telecommunications Act - 47 U.S.C. § 253 Preempts local/state regulations that prohibit or have effect of prohibiting ability of any entity to provide telecom services Nondiscriminatory RoW management and compensation protected so long as compensation is limited to recovery of “reasonable approximation of costs.” Middle Class Tax Relief Act [47 U.S.C. § 1455(a)] – Sec. 6409 Applies to all “wireless” applications (broader) Requires approval of certain collocations/modifications to existing sites FCC Regulations including Carr Proposed Order (9/26/18) Interpret federal statutes; carry the force of law 7

  8. The Federal Legal Framework Important limit: provisions do not now apply to proprietary property inside of rights-of-way and perhaps outside of r-o-w. Federal regulations do not now limit price that can be charged for access to local property (parks, right-of-way) or local assets (rooftops, street lights). Carr order would limit rental price to recovery of reasonable costs for ROW and vertical infrastructure in ROW – maybe more. Federal regulations do not generally compel access to property like street lights, or require non-discriminatory leasing, but the Carr order would for ROW and assets in ROW. But: state law may limit local authority, and FCC is considering limiting local discretion. Carr order says it will honor state laws not in conflict. Does not apply in Georgia – because our state law says we are allowed “Market Rate” for wireless use of Pub. Prop. 8

  9. Section 332(c)(7) • Applies to “Personal Wireless Service [PWS] Facilities” • Commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services • Preserves local zoning authority, with five limitations as interpreted and modified by Carr order: • Shall not “unreasonably discriminate” among providers of functionally equivalent services – 332(c)(7)(B)(i)(I) • Prohibit or effectively prohibit provision of PWS– 332(c)(7)(B)(i)(II) with Carr order standard define prohibit as ‘materially limits or inhibits the ability of any competitor or potential competitor to compete in a fair and balanced legal and regulatory environment.’” • Must act on request within “reasonable period of time” –332(c)(7)(B)(ii). Carr order creates two new small cell shot clocks. • Must make final decision to deny “in writing” and supported by “substantial evidence” in written record – 332(c)(7)(B)(iii); • May not deny based on RF regulation if facility satisfies FCC rules – 332(c)(7)(B)(iv)

  10. Prohibition/Effective Prohibition FCC Proposed Standard • “[A]… state or local legal requirement constitutes an effective prohibition if it ‘materially limits or inhibits the ability of any competitor or potential competitor to compete in a fair and balanced legal and regulatory environment.’” • Policy of Denial of All Applications • A clear policy of banning all wireless facilities = prohibition. • Circuits Split on When Denial of Single Permit = Effective Prohibition: • 4th Circuit: T-Mobile Northeast LLC v. Fairfax County Bd. of Supervisors 672 F.3d 259 (4th Cir. 2012) Applicant must show denial “tantamount” to general denial: • a legally cognizable deficit in coverage amounting to an effective absence of coverage; and • it lacks reasonable alternative sites to provide coverage; and • further reasonable efforts to gain approval for alternative facilities would be “fruitless.” • 9th Circuit: T-Mobile v. Anacortes, 572 F.3d 987 (9th Cir. 2009); MetroPCS Inc. v. San Francisco, 400 F.3d 715 (9th Cir. 2005). • Applicant must show a significant gap in its own service exists; and it proposed the least intrusive means to mitigate that gap

  11. What’s a “Written Decision?” • The Telecom Act “does not require localities to provide [its] reasons in written denial letters . . . [so long as the locality] states its reasons with sufficient clarity in some other written record issued essentially contemporaneously with the denial.” • T-Mobile South LLC v. Roswell, 135 S.Ct. 808, 818 (2015)

  12. What’s “Substantial Evidence?” • Substantial evidence test similar to judicial review of administrative actions • “The substantial evidence inquiry is deferential: [we] may not overturn the [City’s] decision on ‘substantial evidence’ grounds if that decision is authorized by applicable local regulations and [is] supported by a reasonable amount of evidence (i.e., more than a ‘scintilla’ but not necessarily a preponderance).” • Am. Tower Corp. v. San Diego, 763 F.3d 1035, 1053 (9th Cir. 2014)

  13. Action within a Reasonable Time 47 USC § 332(c)(7)(B)(ii) Locality shall act “on any request for authorization to place, construct, or modify” facilities “within a reasonable period of time after the request is duly filed” considering “nature and scope of such request” FCC says, absent agreement with applicant, 332(c)(7) presumed violated if locality fails to act (Carr order would codify in 47 CFR 1.6001, 1.6002, 1.6003 and renumbers 1.40001 as 1.6100) : • Small Cell (proposed new CFR 1.6001-6003) • Existing Structure = 60 days • New Structure = 90 days • 6409 (47 U.S.C. § 1455) Collocation = 60 days • Collocation application not subject to Section 6409) = 90 days • On new sites = 150 days Applicant must file suit within 30 days of denial or local failure to act, or lose rights

  14. Meeting Deadlines • General “shot clock” rules • Commences at submittal (even for incomplete apps) • Shot clock may toll (pause) but never resets • Clock ends when local government “acts” on application • Complex rules for incomplete applications (Carr order would convert prior declaratory orders to 47 CFR 1.6003) • General rule: LGs may generally toll the clock with a written incomplete notice given within the first 30 days • 10-day resubmittal rule: application deemed complete if LG fails to deem it incomplete w/in 10 days after response to inc. notice • Publicly-stated rule: incomplete notice not effective when it asks for information not publicly stated as a requirement • One-bite rule: incomplete notices not effective if asks for information not requested in first notice • Shot clock can always be tolled/extended by mutual agreement with applicant

  15. What is a Small Cell (1) The structure on which antenna facilities are mounted— (i) Is 50 feet or less in height, or (ii) Is no more than 10 percent taller than other adjacent structures, or (iii) Is not extended to a height of more than 10 percent above its preexisting height as a result of the collocation of new antenna facilities; and (2) Each antenna (excluding associated antenna equipment) is no more than three cubic feet in volume; and (3) All antenna equipment associated with the facility (excluding antennas) are cumulatively no more than 28 cubic feet in volume; and

  16. Small Cell (4) The facility does not require antenna structure registration under part 17 of this chapter; (5) The facility is not located on Tribal lands, as defined under 36 C.F.R. § 800.16(x); and (6) The facility does not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in Rule 1.1307(b)

  17. Section 6409 – 47 U.S.C. § 1455 • Facility modifications • In generalNotwithstanding section 704 of the Telecommunications Act of 1996 (Public Law 104–104) or any other provision of law, a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station. • Eligible facilities requestFor purposes of this subsection, the term “eligible facilities request” means any request for modification of an existing wireless tower or base station that involves— • collocation of new transmission equipment; • removal of transmission equipment; or • replacement of transmission equipment. • Applicability of environmental lawsNothing in paragraph (1) shall be construed to relieve the Commission from the requirements of the National Historic Preservation Act [1] or the National Environmental Policy Act of 1969.

  18. FCC Rules 47 CFR § 1.40001 • Almost all terms in Sec. 6409 are undefined • FCC order adopting rule is critical to understanding requirements: In re Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, 29 FCC Rcd. 12865 (Oct. 17, 2014), amended by 30 FCC Rcd. 31 (Jan. 5, 2015). • Upheld by 4th Circuit, Montgomery County v. FCC 811 F.3d 121 (2015)

  19. Procedural Requirements • Applies only to “eligible facilities requests” Carr order creates a 60 day shot clock for small cells on existing structures that may be a preferred route as size of small cell could be larger than 6409 eligible expansion. Difference is no “Deemed Granted.” • Applicant is only required to submit information required by state or local law, and relevant to determining (a) if change is eligible facilities request; or (b) change complies with general public safety laws • Absent applicant agreement, state/local governments must act within 60 days of receipt of an application • Rules for application completeness, notice, and tolling the same as for Section 332(c)(7)

  20. Definitions • Tower: structure built for sole or primary purpose of supporting FCC licensed or authorized antennas and associated facilities – NOT a utility pole • Base Station • Equipment associated with wireless comm. service • Antennas, coax, backup power supplies • “any structure other than a tower” that at time of application was supporting or housing the above • Existing: A constructed tower or base station that has been “reviewed and approved under the applicable zoning or siting process or under another State or local” process, except towers not in a zoned area when built, but lawfully constructed (non-conforming uses?) • Modification = not a replacement

  21. Substantial Changes –Thresholds

  22. What’s a Concealment Element? Carr order subjects local aesthetic standards to judicial and FCC evaluation as to whether they are: 1) “reasonable,” and 2) no more burdensome than those standards applied to other infrastructure and 3) published in advance • FCC suggested height limits designed to prevent an otherwise undisguised tower from extended above a tree canopy might be a “concealment” element • Painting requirements, requirements that limit visibility of structures may be concealment elements (e.g. rooftop height limits) • Stealth facilities would have “concealment elements.” • What about other design requirements intended to make a wireless facility blend into surroundings? E.g., proportions of antenna; size of antenna relative to supporting structure

  23. Other Important Notes • Except for Concealment Elements, Rules May Effectively Preempt • Local zone height limits • Restrictions on legal non-conforming uses that make all alterations to those facilities subject to local discretion • Height Limits Apply From Size of Facility As Initially Approved, Or As Increased Prior to February 22, 2012 • No cumulative limit on other criteria • General Health and Safety Laws Not Preempted • Building codes • Some setbacks (but what about fall zones? AASHTO Guidelines?)

  24. Remedies(No Change under Carr) Deemed-Granted Permits • If 332(c)(7) deadlines missed, locality may show that delay was justified. • Under Section 6409, if deadline passes applicant may notify community that application is “deemed granted” Carr order suggests that local governments should deem granted a request, but does not mandate. Judicial Review • Flips normal process upside down: local government must sue applicant to prevent “deemed granted” permit from becoming effective • FCC suggests review limited to whether facility was eligible facilities request or unsafe

  25. Right of Way Use – 47 U.S.C. § 253 • Preempts state and local legal requirements that “prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service” • Even if prohibitory, requirements not preempted if: • Requirements are competitively neutral, consistent with Telecom Act, and imposed to advance universal service, protect public safety and welfare, safeguard consumer rights, or ensure quality of telecom services § 253(b) • Requirements relate to rights-of-way management, or reasonable compensation on competitively neutral and nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory basis and compensation is publicly disclosed § 253(c) (Carr order says that requirements cannot be more than cost based for small cells in rights of way and be subject to judicial and FCC evaluation as to whether they are: 1) “reasonable,” and 2) no more burdensome than those standards applied to other infrastructure and 3) published in advance • May not apply to wireless (Carr says it applies to wireless)

  26. Managing Wireless: Do’s • You must develop strategy based on considering local authority under Georgia law PLUS fed regsafter Carr. • For federal: • Examine whether laws/forms are consistent with Carr order/ consider special type of permit for 6409 and Small Cell. • Consider enactment of an ordinance that allows use of government property for cell locations -- Carr order may challenge this concept. • Ensure everyone in your organization understands that existing regs do not grant right of free collocations on government property • Ensure you don’t grant that right in leases /licenses • Remember that in addition to land use requirements, wireless provider may require consent to be in RoW • Consider whether costs associated with RoW management need to be analyzed closely as Carr order will limit rent to costs.

  27. Managing Wireless: Don'ts • Try to avoid rules through a moratorium – • Commission is specific that moratoria will not toll 6409(a) or 332(c)(7) applications. • FCC on 8/6 established Moratoria are violations of Section 253 (a) • Approve without understanding how a facility may expand – the smallest facility may grow an additional 10 feet up and 6 feet out. • Demand documentation for the business need for an Section 6409 modification (Different rules apply for initial installation or substantial).

  28. Changes to Your Process • More stealth and make sure requirement are pre-published. • Fees to cover costs • Use forms • Pre-meetings but not if they run against shot clock. • Require applicant provide documentation that request meets the requirements of Small Cell/Section 6409(a). • Meets size change – including cumulative limit • Meets any stealth obligations • Meets any building code/safety/non-discretionary structural code • Complies with any condition of approval of construction or modification imposed on the applicable wireless tower or base station • Make clear how franchising/RoW use/land use requirements apply

  29. Contact Information Gerard Lavery Lederer Gerard.Lederer@bbklaw.com Best Best & Krieger 2000 Pennsylvania Avenue N.W. Suite 5300 Washington DC 20006 Phone: (202) 785-0600 Fax: (202) 785-1234 Cell: (202) 664-4621 Website: www.bbklaw.com 29

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