Developments in Wireless

Telecommunications Law
Work Session XI: Telecom – Shot Clocks, Municipal Broadband and How The FCC
Controls Your World
International Municipal Lawyers Association
80th Annual Conference
Las Vegas, Nevada
PRESENTED BY
Gail A. Karish
Partner
Developments in Wireless
©2015 Best Best & Krieger LLP

Industry Data
304,360
cell sites in service at year-end 2013
26%
increase in cell sites in five years
7,000
new cell sites providers expected to add in 2013
3,000
small cells Verizon expected to deploy in 2014
40,000 / 1,000 / 10,000
additional small cells, DAS networks, and macrocells
AT&T expected to add from 2013 - 2015
FCC 6409 Order, para. 8 (Oct. 2014)

INDUSTRY DATA
US Invests Twice as Much in
Networks Per Household Than EU
Sep 24, 2014
Network providers invested more
than two times per household in
the U.S. than carriers in the EU.
US Leads Europe in LTE Coverage
Sep 24, 2014
Leading Europe by nearly 60
percent, 86 percent of U.S.
households have access to LTE
services.
U. Penn. Law School, U.S. vs. European Broadband
Deployment: What Do the Data Say?, June 2014,
https://www.law.upenn.edu/live/news/4786-new-
university-of-pennsylvania-analysis-finds-
us#.U5oK1LGAN8E

Industry Data
•

What’s New?
• Court actions/decisions
• A new shot clock
• State bills

Telecommunications Law 6
Major Federal Provisions
• 1996 - 47 U.S.C. § 332(c)(7) (Preservation of
Local Zoning Authority)
• 2012 - 47 U.S.C. § 1455 (Section 6409)
(Collocation/Modification of Existing Facilities)
6

Section 332(c)(7)
• Applies to “personal wireless service (PWS) facilities” (includes
commercial mobile services, unlicensed wireless services, and
common carrier wireless exchange access services)
• Generally preserves local zoning authority, but imposes five
limitations:
 Shall not “unreasonably discriminate” among providers of
functionally equivalent services
 Shall not prohibit or effectively prohibit provision of PWS
 Locality must act on request within “reasonable period of time”
 Decision to deny must be “in writing” and supported by
“substantial evidence”
 No regulation of RF – except may require applicant to satisfy FCC
rules
• Limitations do not apply to actions in proprietary capacity
7

“In writing” Requirement
Denial and substantial evidence need not be in same
document, but must be essentially contemporaneous.
T-MOBILE SOUTH, LLC v. CITY OF ROSWELL, 135 S.Ct.
808 (2015)
http://www.supremecourt.gov/opinions/14pdf/13-975_8n6a.pdf
• Impact: harder to meet shot clocks
8

Section 6409(a) (47 U.S.C. §1455(a))
Notwithstanding… 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 request” means 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.
9

FCC Report and Order
• 155 pages
 Adopted October 17, 2014
 Published in Fed. Reg.
January 8, 2015
 Now fully effective
 Appeal Underway –
Argument Scheduled in 4th
Cir. for October 28
10

A New Shot Clock
“As the demand for wireless capacity surges, we
must take steps to ensure that the networks
underlying wireless services can bear the load.”
FCC 6409 Order, para. 8

Application Review
• Can require “documentation reasonably
related” to determining whether request
meets requirements of Section 6409 as
interpreted by FCC.
• Timeline to Act
 Sixty days to approve UNLESS locality determines
facility is not covered.
 Time frame tolled by agreement; or if notice
provided of incompleteness (30/10) with detailed
citation to requirements.
12

FCC Rules 47 CFR § 1.40001
1. Substantial Change (Height/Width)
 Towers other than Right of Way (ROW) towers,
modification:
• Increases height by more than 10% or 20 feet whichever is
greater; or
• Appurtenance added protrudes from body of structure more
than 20 feet or width of tower at pt. of attachment.
 All other support structures, modification:
• Increases height by 10 feet or 10%, whichever is greater;
• Appurtenance added protrudes more than 6 feet.
 Height measured from facility as it exists as of date of
passage of Act (2012).
13

1. Substantial Change for towers and base
stations in ROW:
• New equipment cabinets if there are none, or involves
placement of cabinets 10% greater in height or overall
volume than other cabinets associated with structure.
 All other eligible support structures:
• Installation of more than four equipment cabinets.
 It entails any excavation or deployment outside of
site.
 It would defeat “concealment elements” of the
“eligible support structure.”
14

• Tower
 Structure built for sole or primary purpose of
supporting FCC licensed or authorized antennas and
associated facilities.
• 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
(walls, rooftops are support structures).
15

• 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?).
16

Key Notes:
• Does not preempt generally applicable safety
and health codes.
• Does not apply to proprietary property of
community.
• Reaches all wireless facilities – including Wi-Fi
deployments.
• Reaches Distributed Antenna Systems (DAS) &
Small Cells.
17

Application Review
• Failure to Act = application deemed granted.
• Deemed grant becomes effective after
applicant notifies community that time has
passed.
18

What Happens After Deemed Grant
• Community has 30 days to file appeal in court
after notified of deemed grant
• Locality can bring appeal within 30 days of notice
of deemed grant when it believes application:
• Did not meet Section 6409(a) mandatory approval
criteria, or
• Would not comply with applicable building codes or
other non-discretionary structural and safety codes, or
• For other reasons is not appropriately “deemed
granted.”
19

Sec. 332(c)(7) & 6409 Together
20
An application that is NOT eligible under Section
6409 may still be subject to consideration under
Section 332(c)(7) and the 2009 shot clocks.

Do’s
• Examine whether your laws and forms are
consistent with new order (Hint: Probably not).
 Clarify in your ordinance/government practice
manual that DAS/small cell applications are entitled
to Shot Clock.
• Consider enactment of an ordinance that
prefers government property for cell locations.
21

Changes to Your Applications/Process
• More stealth?
• Require applicant to provide documentation that is
“reasonably related to determining whether the eligible
facilities request meets the requirements of 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.
22

Do’s
• Proprietary
 Ensure everyone in your organization understands
that this order does not grant right of free
collocations on government property.
 Ensure that you don’t grant that right in your leases
by requiring approval in writing of municipality.
 Ensure that industry does not use new rules as an
excuse to install generators or switch out equipment
at your sites.
• New Site
150 Days
• Collocation
90 Days
• 6409 Collocations
60 Days
• Incompleteness for
6409 (a) & 332(c)(7)
30 Days
23

Don'ts
• Impose a moratorium –
 Commission is specific that moratoria will not toll
6409(a) or 332(c)(7) applications.
• 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 the proposed modification or require a
business case for expansion.
24

Recent State Laws
• California AB 57
• Georgia HB 176
• Iowa, House File 655
• Indiana
• Missouri SB 650
• New Hampshire SB 101
• North Carolina HB 664
• Michigan SB 1064
• Pennsylvania SB 1345
• Wisconsin AB 40

Primary Purposes of State Laws
• Impose their own rules and shot clocks expediting certain types of
applications
 E.g. Georgia Mobile Broadband Infrastructure Leads to Development
(BILD) Act, HB 176
• Shot Clocks for Municipality to Act
 New “wireless support structure”: 150 days
 Collocation request: 90 days
• Impose deemed granted remedies even where FCC declined to do so
 E.g. California AB 57 (deemed granted for all 3 federal shot clocks)
• Both
 E.g. Iowa Cell Siting Act, House File 655
• Deemed granted remedy for collocations and new builds
• Shot Clock for Municipality to Act
 New build: 150 days
 Collocation: 90 days

Summary
• Demand for capacity not coverage
• Denials in writing with reasons
contemporaneously
• 6409 appeal to be heard soon
• 6409 shot clock implementation issues need
close attention
• Be aware of state level legislative action to
bolster federal rules

Thank you.
The State Bar of California 85th Annual
Meeting, October 11-14, 2012, Monterey
Gail A. Karish
Gail.Karish@bbklaw.com
Best Best & Krieger
300 South Grand Avenue
25th Floor
Los Angeles, CA 90071
Tel: (213) 617-8100
Fax: (213) 617-7480
Website: www.bbklaw.com

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