FCC Regulation of Wireless Facilities and Related Broadband Issues for Municipal Planners

1. FCC Regulation of Wireless Facilities and Related Broadband Issues for Municipal Planners Federal Communications Commission

2. Disclaimer • The views expressed are our own and do not necessarily represent those of the Commission, its staff, or any Commissioner

3. FCC is an Independent Agency The FCC regulates interstate and international communications by radio, television, wire, satellite and cable in all 50 states, the District of Columbia and U.S. territories. It was established by the Communications Act of 1934 and operates as an independent U.S. government agency overseen by Congress. The FCC has the legislative, executive, and judicial powers given it by Congress. This allows the FCC to write regulations and to enforce them. FCC regulations and judgments are appealable to the Federal courts.

4. The Commission The FCC is directed by 5 commissioners who are appointed by the President of the United States and confirmed by the U.S. Senate. The president also selects one of the commissioners to serve as chairman. Only three commissioners can be of the same political party at any given time and none can have a financial interest in any commission-related business. All commissioners, including the chairman, have five-year terms, except when filling an unexpired term.

5. FCC Organization Bureaus • Consumer & Governmental Affairs • Enforcement • Media • Public Safety & Homeland Security • Wireless Telecommunications • Wireline Competition

6. The vast majority of FCC employees are attorneys. The agency also employees engineers, economists, a wide variety of professional and non professional support staff. The agency has one historian/Federal Preservation Officer. Soon, we will also have our own biologist. We also have an Office of Native Affairs and Policy housed in the Consumer and Government Affairs Bureau. The FPO and ONAP support the entire agency. FCC Organization

7. Wireless TelecommunicationsMost of the FCC licenses are issued to the commercial wireless industry. The vast majority are geographic licensees that allow a company to operate in a regional market. The licensees are issued for location anywhere in that market. FCC Licenses

8. FCC Licenses Media Bureau AM and FM radio broadcasters and all TV stations receive their licensees from the Media Bureau. These are site-specific licensees. The towers must be located at the broadcast site permitted on the license.

9. FCC Licenses Public Safety & Homeland Security This Bureau issues all of the licenses to police and fire departments. These licenses are site specific. Because of the nature of their licenses and systems, these licenses have much less flexibility in moving their sites or in lowering their tower heights.

10. Wireline Competition Bureau • Develops policy goals, programs and plans for the Commission on matters concerning wireline telecommunications. • Historically: traditional telephone services (data too) • Highest Priority Today: broadband • Approximately 19 million Americans live in areas still unserved by fixed broadband.

11. Universal Service Fund • FCC has broad discretion to design a USF contribution methodology • All telecommunications service providers (common carriers) must contribute to the USF • FCC may require contributions from “other providers of interstate telecommunications” if the public interest so requires • Primary Statutory Limitations: • System must be “equitable and non-discriminatory” • FCC assesses providers of interstate services • States retain authority to assess providers of intrastate services

12. Telecommunications Act of 1996: s. 254: The Universal Service Fund Contributions flow from telecom and interconnected VoIP providers via an assessment on their interstate end-user revenues . . . • Historic commitment to universal service • Expanded in Telecommunications Act of 1996; • Statutory Goals: • Promote availability of quality services at just, reasonable & affordable rates for all consumers • Provide nationwide access to advanced telecom and information services • Make available such services to all consumers, including low income and those in rural, insular, & high-cost areas at rates reasonably comparable to those charged in urban areas • Increase access to advanced telecom services in schools, libraries & rural health care facilities • Require equitable and non-discriminatory contributions from all telecom providers to the fund supporting universal service programs Wireline telco Wireless telco Cable . . . Into the four Universal Service Fund programs, administered by the Universal Service Administrative Co. (USAC) under FCC direction . . . High-Cost Lifeline E-Rate Rural Health Care . . . Which distributes funds to eligible entities (primarily telephone companies) to reduce cost of service Reduces costs for rural telcos Reduces costs for low- income consumers Reduces costs for schools and libraries Reduces costs for rural health providers 12 12

13. Connect America Fund • Strong voice/broadband public interest obligations for Connect America Fund recipients (speed, latency and capacity) • ETC designation required for participation in Connect America Fund, maintaining current state and FCC roles for designation of ETCs • State authority to protect consumers through carrier-of-last-resort obligations • Specific and enforceable reporting requirements, and penalties for failure to meet obligations or reporting requirements • National framework for reporting and certification of compliance with new public interest obligations • All reports to be jointly provided to the FCC and state commissions • Federal-state partnership in oversight

14. Pole Attachments • Section 224 of the Act: • FCC shall regulate the rates, terms, and conditions of pole attachments to provide that such rates, terms, and conditions are just and reasonable, and . . . adopt procedures necessary and appropriate to hear and resolve complaints concerning such rates, terms, and conditions. • Reverse preemption: • States may certify that they regulate rates, terms, and conditions for pole attachments in their respective states; the Commission retains jurisdiction over pole attachments only in states that do not so certify.

15. Pole Attachments Order – April 7, 2011 Objective → Promote Further Build-out of Broadband Infrastructure • Access: - Establish timeline for access to utility poles. • Rates: - Should be low, and as close to uniform as possible (consistent with the statute) • Enforcement: - Strengthen enforcement with several reforms.

16. Pole Attachments - Access • 4-Stage Timeline in Response to Request for Access: (1) Survey; (2) Estimate; (3) Acceptance; (4) Make-Ready • Attachers may hire outside contractors if Survey or Make-Ready deadlines missed by utility pole owner. • Safety Precautions: • Use “utility-approved” contractors only. • Utilities may monitor contractor work. • Contractors hired by attachers for this purpose work only in the “communications space” on a pole.

17. Pole Attachments - Rates • Different rate formulas apply to attachments by cable TV providers and telecommunications carriers by statute. • Order interprets term “cost” in telecom formula to signify a range of reasonable allocations from “full” to “incremental.” • Cable rate is the floor. • Rate for attachments by telecommunications companies at or near cable rate.

18. Pole Attachments - Enforcement • Parties must hold “executive level discussions” before filing a complaint, thus encouraging negotiated resolution of disputes. • Incumbent LECs may file complaint (e.g., against an electric utility) if attachment rates, terms, and conditions are not just and reasonable. • Eliminates “back payments” cap on penalties for unauthorized attachments.

19. Pole Attachments - Wireless • Establishes timeline for wireless attachments, including those on pole tops. • Bans blanket denials of pole-top access. • Reaffirms that cost-based rate applies to antennas and other wireless attachments.

20. Broadband Acceleration NOIApril 7, 2011 • Notice of Inquiry on Rights of Way and Facilities Siting (WC Docket No. 11-59) • How can the FCC work with other government entities (including federal) to improve policies governing access to physical spaces where wired and wireless broadband infrastructure can be deployed?

21. Broadband NOI • Concerns key challenges and best practices for expanding reach and reducing cost of broadband deployment and examining federal, Tribal, state, and local government policies for access to rights of way and wireless facilities siting • Comment sought on broad range of issues related to access to rights of way and wireless facilities siting in relation to broadband deployment • Comment also sought on range of possible actions FCC might take to reduce burdens or facilitate broadband deployment • Seeking out data – with opportunity for all interested parties to respond – before taking any action

22. POSSIBLE FCC ACTIONS • Develop and promote best practices and increased uniformity of governmental policies for access to public rights of way and wireless facilities siting • Make specific recommendations for action to Congress and Administration • Sponsor voluntary mediation of public ROW or wireless facilities siting disputes between state or local officials and industry • Adopt policy guidelines/rules or adjudicate rights of way cases

23. Wireless System Architecture • Radio waves carry signals between the end user’s device and the cell site antenna • Cell sites may be located on communications towers, buildings, water towers, or other structures • Wireline or microwave facilities transport calls between the cell site and the carrier’s central office. • Fiber is often used to provide high capacity economically • High speed microwave dishes mounted on rooftops or towers to backhaul/ transport broadband traffic • The central office delivers calls to the public network • The process is reversed at the receiving end of the call

24. Broadband solutions augment traditional wireless Macro Coverage New Tower Tower (Rooftop) Collocation Indoor DAS Outdoor DAS (Small Cell Architecture)

25. Cell Sites and Frequency Reuse • Each carrier is assigned a finite amount of spectrum. The amount of spectrum limits how many users can be accommodated at any cell site at one time. • As demand increases, cell sites are made smaller. This enables the carrier to reuse the same frequencies at multiple cell sites and thereby accommodate more users. • As cells get smaller, antennas typically operate at lower power and are closer to the ground. • However, carriers also have less flexibility as to location.

26. Distributed Antenna Systems • Integrated system of many small antennas connected by fiber. • One base station can serve several nodes. • Neutral host technology lets multiple carriers share the same antennas and other facilities. • Outdoor DAS commonly located on street lights or utility poles. • Indoor DAS applications include stadiums, hotels, shopping malls, and office buildings.

27. Small Cells • Small cells (picocells and femtocells) take traditional cellular architecture down to a more granular level. • Cell radius of hundreds of feet or less. • Suited both for outdoor and large indoor spaces. • Sometimes used to fill small gaps in coverage or supplement service in limited areas of high demand. • Distributed Antenna Systems (DAS) take the concept a step further.

28. Advantages of Small Cells and DAS • Expands capacity by many multiples; obviates need to keep splitting cells as demand increases. • Creates capacity for high-speed broadband data services. • Improves indoor coverage. • Opportunity to share infrastructure. • BUT • May not be economically reasonable in all circumstances. • Typically supplements, and does not replace, existing macrocell network

29. Reasons for New Construction • Increase coverage • Deployment to new area; first carrier or additional carrier • Fill in dead spots • Indoor coverage • Increase capacity • Traditional cell splitting or small cells/DAS • Enable broadband services • May require replacing antennas or adding new antennas on existing towers/cell sites • May involve small cells/DAS • Closely intertwined with increasing capacity

30. Dig Once – Fiber Optic Cable

31. Wireless Facilities and Local Planning • 47 U.S.C. § 332(c)(7) • Declaratory Ruling, 24 FCC Rcd 13994 (2009) (“Shot Clock”) • Middle Class Tax Relief and Job Creation Act of 2012, P.L. 112-96

32. 47 U.S.C. § 332(c)(7) • Governs all personal wireless service facilities siting (new towers and collocations) • Generally preserves state and local authority, subject to specific limitations • Does not address allocation of authority between state and local governments • Disputed cases resolved by courts, not FCC • Exception for decisions based on radio frequency emissions

33. Section 332(c)(7)–Limits on State/Local Authority • May not unreasonably discriminate among providers of functionally equivalent services • May not prohibit or have the effect of prohibiting the provision of services • Must act within a reasonable period of time • Denial must be in writing and supported by substantial evidence in a written record • May not regulate based on effect of RF emissions to the extent they comply with FCC regulations

34. Shot Clock Decision • Interprets “reasonable period of time” and “failure to act” in Section 332(c)(7) • Addresses new towers and collocations • Also interprets “effect of prohibiting” • May not deny application solely because one or more carriers serve a geographic market

35. Shot Clock Holding • Presumptively reasonable period of time is 90 days for collocations, 150 days for other applications • Collocations are unlikely to have significant impacts on the community • If period is exceeded, aggrieved party may file suit within 30 days • Applicant and government may agree to toll the period • Presumption of reasonable period of time may be rebutted in court • Court decides appropriate relief if it finds a violation

36. Middle Class Tax Relief and Job Creation Act 3 sets of provisions relevant to collocations: • Section 6409(a) [47 U.S.C. § 1455(a)] – local review of tower modification requests • Section 6409(b),(c) [47 U.S.C. § 1455(b),(c)] – federal easements, rights-of-way, and buildings • Section 6206 [47 U.S.C. § 1428] – use of existing infrastructure for National Public Safety Broadband Network

37. Federal Lands, Buildings, Rights-of-Way • Section 6409(b) • Authorizes federal agencies to grant easements for wireless antenna structures, equipment, and backhaul transmission equipment • Directs development of common application forms and fee principles • Section 6409(c) • Directs development of master contracts and common application forms for antenna structures/equipment on federal buildings and other property • Executive Order 13616 • Directs development of strategy to facilitate deployment of broadband facilities on Federal lands, buildings, and rights-of-way • Covers both wired and wireless broadband • Interagency Working Group is established

38. Public Safety Collocations • Statute establishes First Network Responder Authority (FirstNet) within Department of Commerce as nationwide licensee • FirstNet shall use existing infrastructure to the maximum extent economically desirable (Section 6206(b)(1)(C),(c)(3)) • FirstNet shall use partnerships with commercial providers to the maximum extent economically desirable (Section 6206(b)(3)) • FirstNet shall consult with state and local jurisdictions on facilities placement (Section 6206(c)(2)) • FirstNet Board named on August 20, 2012

39. Section 6409(a) • State or local government “may not deny, and shall approve” any application covered by section • Applies to collocation, removal, or modification of equipment on wireless tower or base station • Does not apply to collocation on a structure that is not a wireless tower or base station • Does not apply if action substantially changes the physical dimensions of a tower or base station

40. Substantial Change in Physical Dimensions • FCC previously defined “substantial increase in size” in the Nationwide Collocation Agreement, 47 C.F.R. Part 1, App. B • NCA excludes most collocations that do not involve a substantial increase in size from National Historic Preservation Act Section 106 review • FCC also used to define what it is a collocation for purposes of shot clock • May be useful as guidance in applying Section 6409

41. “Substantial Increase in Size” Under the NCA, substantial increase in size means: • Increase in tower height by more than 10% or height of additional antenna array plus 20 feet, whichever is greater • More than 4 new equipment cabinets or 1 new shelter • Protrusion of more than 20 feet or width of tower, whichever is greater • Excavation outside existing leased or owned property and current easements

42. Administration of Section 6409(a) • Takes precedence over Section 332(c)(7) in the event of any conflict • Coexists with Section 332(c)(7) in the absence of conflict • Does not affect FCC’s responsibilities under NHPA and NEPA

43. Reminders • Collocations on structures other than wireless towers and base stations remain subject solely to prior law • Collocations on wireless towers and base stations are subject to new requirement to approve and not deny • Governments and industry are encouraged to work together on procedures that meet the statutory requirements and satisfy both community and industry needs

44. New Tower Sitting Regulations • Must comply with Environmental Regulations to include Section 106, NEPA, ESA, FEMA flood plains, etc. • Must include public notice. • Most public involvement is through the Section 106/Historic Preservation Review at the Federal level • Applicants may use the local review process as the major component of the public involvement process • Must not interfere with other licensees

45. Section 106 • Section 106 of the NHPA requires federal agencies to consider the effect of federal undertakings on properties included or eligible for inclusion in the National Register • The NHPA defines an undertaking to include, among other things, projects “requiring a Federal permit, license, or approval” • The FCC has consistently treated tower construction as an “undertaking” under the NHPA due to its relation to licensing and antenna structure registration

46. S106FCC Licensees/Applicants • Section 106 obligations rest on the FCC as a federal agency but we do rely on State Historic Preservation Offices (SHPO) for much of the ordinary review • These duties on applicants are part of the FCC’s environmental rules, 47 C.F.R. §§ 1.1301-1.1319 • The “Project” is the tower, fence, equipment sheds, access roads, power and fiber connections, and other related aspects of the tower

47. Reminders for Licensees • The height or design of the tower is not relevant in determining that a proposed tower is subject to the NEPA and Section 106 process • The grant of a license is not permission to construct • Applicants are required to involve Federally-recognized Tribes in the review process. These Tribes may no longer be resident in the local area

48. Adverse EffectsandHistoric Properties • When an adverse effect is recommended and the SHPO concurs, the applicant must notify the FCC • An adverse effect does not stop a project • To go forward, the applicant must submit an alternatives analysis and a mitigation plan • The applicant is required to involve the local community to determine appropriate mitigation measures • The mitigation measures must be directed at the impacted historic property

49. Mitigation

50. Mitigation Suggestions • Lower the tower • Reduce the size of the communications gear • Paint the tower and gear • Install a stealth tower • Plantings • Provide a benefit to the affected historic property