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Presenting a live 90-minute webinar with interactive Q&A
Cellphone Tower Regulation: Maximizing
Revenue While Protecting Local Interests Structuring Leases, Navigating Siting Challenges,
and Complying With Supreme Court's Ruling on Notice
Today’s faculty features:
1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific
THURSDAY, MAY 12, 2016
Gerard Lederer, Partner, Best Best & Krieger, Washington, D.C.
Joseph Van Eaton, Partner, Best Best & Krieger, Washington, D.C.
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FOR LIVE EVENT ONLY
Telecommunications Law
Regulating Wireless Siting:
Maximizing Revenue
While Protecting Local Interests
Joseph Van Eaton
Gerard Lavery Lederer Best Best & Krieger LLP
Strafford Webinars - May 12, 2016
5
Telecommunications Law
Part I:
Local Regulation of Wireless Facilities
Part II:
Leasing Facilities to Wireless Providers
6
Telecommunications Law
Part I:
Local Regulation of Wireless
Facilities
7
Telecommunications Law 8
Why Wireless 2016 and Beyond
Presents New Local Challenges
8
Source: SNL Kagan 2015
2014:
150K towers,
300K sites
2025
200K towers
400K sites
NOT including
small cells
Telecommunications Law 9
Why Wireless 2016 and Beyond
Presents New Local Challenges Delivering higher speed wireless data services requires “denser”
networks – more antennas
SNS Research: “significant shift in investments towards small
cells, C-RAN, DAS and carrier Wi-Fi infrastructure. By 2020,
these four submarkets, together with their fronthaul and backhaul
segments, will account for over 50% of all wireless network
infrastructure spending.”
Billions expected to be invested in infrastructure, creating $80
billion market for LTE by 2020
Public property (including RoW) a major target for deployment
9
Telecommunications Law 10
The Legal Framework
Federal law
• Section 332(c)(7) (47 U.S.C. §332(c)(7))(applies to initial installations and
modifications of personal wireless facilities)
• Section 6409 (47 U.S.C. §1455)(applies only to insubstantial modifications
of wireless facilities)
• Possibly? Section 253(c) (47 U.S.C. §253)(prohibition of telecom services)
• FCC Regulations https://www.fcc.gov/general/tower-and-antenna-siting
State law and constitutional provisions
Local law (planning/zoning/franchising/leasing)
10
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Section 332(c)(7)
• 47 U.S.C. § 332(c)(7) (Preservation of Local Zoning Authority) • Section 332(c)(7) applies to “personal wireless service (PWS)
facilities,” which includes commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services
• Generally preserves local zoning authority, with five limitations.
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))
Locality must act on request within “reasonable period of time”…(FCC Order provides for 90 days for significant collocation, 150 for new site)
11
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Section 332(c)(7) (cont’d)
Generally preserves local zoning authority… Decision to deny must be “in writing” and supported
by “substantial evidence” Supreme Court has recently ruled on meaning of “in
writing” requirement: • Denial and substantial evidence need not be in same
document, but must be essentially contemporaneous. See, T-MOBILE SOUTH, LLC v. CITY OF ROSWELL __U.S.__, 135 S.Ct. 808 (2015).
No RF regulation; may require applicant to satisfy FCC rules
Limitations do not apply to proprietary property.
12
Telecommunications Law
Section 6409(a) (47 U.S.C. §1455)
(a) Facility modifications.
(1) In general. 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.
(2) Eligible facilities request. For purposes of this subsection, the
term “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.
13
Telecommunications Law
FCC Rules 47 CFR § 1.40001 – Definitions
1. Tower: structure built for sole or primary purpose of supporting FCC licensed or authorized antennas and associated facilities.
2. 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. 3. 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?).
14
Telecommunications Law
FCC Rules 47 CFR § 1.40001 – Definitions
4. Substantial Change Towers other than RoW towers, modification:
• Increases height by more than 10% or 20 feet whichever is greater
• 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)
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Telecommunications Law
FCC Rules 47 CFR § 1.40001 – Definitions (cont’d)
4. Substantial Change (cont;d)
For all eligible support structures:
• Installation of more than four equipment cabinets
For towers and base stations in RoW:
• New equipment cabinets if there are none, or placement
of cabinets 10% greater in height or overall volume than
other cabinets associated with structure
It entails any excavation or deployment outside of
site
16
Telecommunications Law
4. Substantial Change (cont’d)
It would defeat “concealment elements” of the
“eligible support structure”
It does not comply with conditions associated with
siting approval…but limitation does not apply to
any modification that is non-compliant only in a
manner that would not exceed thresholds identified
in first five bullets (items (i)-(iv) in regs).
FCC Rules 47 CFR § 1.40001 – Definitions (cont’d)
17
Telecommunications Law
5. Eligible Support Structure is any Tower or Base Station
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 • Does reach Distributed Antenna Systems (DAS) &
Small Cells
FCC Rules 47 CFR § 1.40001 – Definitions (cont’d)
18
Telecommunications Law
Application Review
• General rule: “may not deny and shall approve” any eligible facilities request that does not substantially change physical dimensions
• Can require “documentation reasonably related” to determining whether request meets requirements of section
• 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
• Failure to Act = application deemed granted • Deemed grant becomes effective after applicant
notifies community that time has passed
19
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Putting Time Frames Together…
Telecommunications Law
Do’s Examine whether your laws and forms are consistent
with new order (Hint: Probably not).
Consider enactment of an ordinance that prefers
government property for cell locations.
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
/licenses.
21
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Don't • 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 an
insubstantial modification (Different rules apply for
initial installation or substantial).
22
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Changes to Your Applications/Process • More stealth? • Require applicant 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
23
Telecommunications Law
Consider an Acknowledgement Ordinance
• “Community is aware of new 6409 (a) standard as established by
Federal Communications Commission in Acceleration of
Broadband Deployment by Improving Wireless Facilities Siting
Policies, 80 Fed. Reg. 1238 (Jan. 8, 2015) (amending C.F.R. Part
1 and 17). (“Report & Order”).”
• Staff is directed to act in compliance with the timeframes and
limitations outlined in the Report and Order. Might empower 1 person to review; nothing requires process to be ministerial
or nondiscretionary;
Might allow staff to require applicants to comply with extensive notice
requirements and/or other procedural hurdles
• Should any part of the Order be struck down by a court of
competent jurisdiction, staff are directed to amend community
practices accordingly.
24
Telecommunications Law
What You Need To Consider
• Federal law give you greatest authority to
control design and deployment where:
Government proprietary property is used (open
question: is right of way proprietary property?)
On initial installations
Facility is subject to concealment requirements
• You may have different avenues for controlling
placement/design of wireless.
25
Telecommunications Law
What You Need To Consider
• Avenues:
Franchising authority (where you have it – depends
on state law, and on local authority to issue
franchises)
Leasing authority (for light poles and other
facilities you own and control)
Zoning authority (common question: does it apply
to RoW, or utility facilities?)
Other police power authority (t, p, m control of
utility placements)
26
Telecommunications Law
FCC Rules Create Practical
Problems • Densification can encourage third party lessors
to file permits to “lock up” key real estate.
• Densification may require installation of
structures where all other utilities are
underground; 332(c)(7) plus 6409 create issues
if any facilities are allowed aboveground.
• How do you deal with competing but
inconsistent stealth proposals?
27
Telecommunications Law
Examples: • Localities receiving requests for placement of
120-foot tower in “verge” between sidewalk and
RoW
http://www.bbknowledge.com/telecommunication
s/cell-siting-dilemmas/
• How do you deal with multiple requests for same
areas: first come first served? Bids?
• How do you protect ongoing local interests in,
e.g.: energy-saving lighting/solar/ADA/WiFi?
28
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Examples:
29
Telecommunications Law
Part II:
Leasing Facilities to Wireless
Providers
30
Telecommunications Law
Control the Drafting Process
• Try to avoid using anyone else’s standard form
• WHY?
Wireless carriers’ standard forms are one-sided.
Substantial legal fees in editing.
• Wireless carriers can, will and maybe should
take advantage naïve property owners.
• Developing and using a standard form saves
time and helps avoid overlooking issues
31
Telecommunications Law
Premises & Grant of Authority
• Include an exhibit with legal descriptions,
drawings and/or photos.
• The more detail you have, the easier it is to
police the agreement, especially regarding
unauthorized collocations and subleases.
• Address Use of common areas and access
points.
• Control signage, conduct and look.
32
Telecommunications Law
License/Lease Not Easement
• Granting an easement may be granting others
access to same property.
• License is all the legal authority a wireless
carrier needs.
• Lease structure is also an acceptable alternative
(but grants exclusive use, not shared use).
33
Telecommunications Law
Term
• For general leases, define term and renewal
options.
• For wireless sites, typically series of 5 year
terms – 20 to 30 years total.
• Strategic decision re auto renewals or
affirmative notice required.
If notice is required, keep a database of renewal
dates.
34
Telecommunications Law
Term (cont’d)
• Beware of “options to lease” or long “Due
Diligence” periods tying up sites with no
guarantee of rent.
• Avoid long delivery or construction periods for
permitting with no rent – begin term
immediately and add construction period to
overall term.
• 30-60 days or commencement of construction,
whichever comes first.
35
Telecommunications Law
Due Diligence Period
• Limited time in which wireless carrier has to
obtain legal clearances and ensure that site
works for them.
• Try Not to give this time away for free.
• Require indemnity and insurance for any
activities on site by licensee/consultants and
require prior consent for any borings: require
copies of any consultant reports be provided to
you.
36
Telecommunications Law
Rent/License Fee
• Basic fee
• Collocation fees (or address this later)
• Late Fees, Interest and Hold-Over fees
Late fees are what you can get.
Interest limited by law (be sure to include savings
clause to avoid usury claim).
Hold-over rent should be in the range of 125% to
150% of then-current rent.
37
Telecommunications Law
Wireless Site Base Rent
• Rent: $1.8k per month to $5K + per month,
paid on annual basis in advance.
• Offer a direct deposit option.
• Carriers typically offer low escalators – e.g.,
15% every 5 years
• Try for 4% -- but it must be on annual basis.
• Consider CPI with a floor of 3.5% and ceiling
of 5%.
38
Telecommunications Law
Assignment
• Require landlord approval
Wireless carriers usually want to be able to shift sites
to related corporate entities without landlord
approval.
Beware of assignments to “affiliates,” tower
operating companies.
• No release of original entity for certain clauses
– hazardous and insurance issues
39
Telecommunications Law
Assignment or Subletting
• No sublicensing without permission. Have licensee waive rights
• Check state laws e.g.: Cal Civil Code §§ 1995.260, 1995.270
§6409 (47 U.S.C. § 1455) regarding collocations does not affect contractual restrictions
• Landlord should retain ability to consent to any proposed sublicense that involves the collocation of another carrier’s facilities. Additional rent for subs.
40
Telecommunications Law
Interference
• Ensure that you do not cause any challenges for
any existing tenants.
• Ensure that subsequent tenants/collocators do
not cause interference.
• Burden is on newcomers to cure interference
caused by their arrival (not existing users).
• Be sure licensor/landlord is not responsible for
interference or cure.
41
Telecommunications Law
Improvements
• Detailed plans with prior approval
Do not agree to “approval not to be unreasonably
withheld, delayed or conditioned …”
Control appearance of improvements
• All work by licensee shall be performed in
compliance with applicable laws,
codes/standards and ordinances.
• Licensee is not authorized to contract for or on
behalf of licensor or impose any additional
expense. (i.e. utilities)
42
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Improvements & Utilities
• Be sure improvements will be maintained and
upgraded to comply with laws, but any new
installations must not be heavier, greater in
capacity or more space than originally granted.
• Licensee pays for utilities; licensor/landlord not
responsible for any interruptions.
• Do not agree to allowing licensee to use your
electric connection with a submeter.
43
Telecommunications Law
Removal of Improvements
• Think about how to handle this – may depend
on facility type.
• Immediate ownership (e.g., of light pole).
• Automatic conveyance of ownership to licensor
• Option for licensor to retain improvements or
require removal.
• Require removal of footings and foundations.
44
Telecommunications Law
Technical Standards
• Licensee agrees to comply with all applicable
governmental laws and regulations and with
such technical standards as may from time to
time be established by licensor for the
premises, including, without limitation,
technical standards relating to frequency
compatibility, radio interference protection,
antenna type and location and physical
installation.
45
Telecommunications Law
Limit Access
(Think Post-9/11)
•24 hour notice
•Escort
But be careful about costs of Escort
Service.
•Emergency conditions for access
46
Telecommunications Law
Access Rights/Security
• If installation on roof, limit access to certain specific
areas; require your roof contractor to approve; avoid
roof penetrations which may invalidate roof
warranties; limit cabling access to common shafts
• Limit size, weight and frequency of access to roof
• If installation across private or limited access land,
limit access and protect fencing, private or
municipal property or animals
• Put burden to maintain secure fencing on licensee
47
Telecommunications Law
Events of Default /
Termination by Licensor
• Non-payment by tenant.
• Habitual late payments from tenant.
• Violation of any term, including non-permitted
collocations.
• Bankruptcy of tenant.
48
Telecommunications Law
Termination by Licensee
• Carefully define when licensee can terminate.
• Wireless carriers want ability to terminate for
“technological, economic, or environmental”
reasons. PLEASE DON’T ACCEPT
• Either prohibit terminations or require payment
(e.g., rent for remainder of term or 12-24
months of rent).
49
Telecommunications Law
Casualty/Insurance/Indemnity
• Make sure to run by your risk assessment folks.
• Typical insurance is general liability, auto
liability, employer’s liability, all-risk property,
and workers’ comp.
• Make sure insurance requirements apply to
contractors and subs.
• Don’t accept reciprocal indemnity.
Many local governments do not permit.
50
Telecommunications Law
Taxes
• Make sure it is clear that taxes due are in
addition to rent.
• Address possessory interest tax (Revenue and
Taxation Code 107.6) liability for licensee.
• General Rule that local government wants to
make clear that it is acting as a landlord, not as
regulatory (taxes, permits etc.)
51
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Notices
• All notices, requests, demands and other
communications to be in writing and delivered
to specified addresses
• Make sure to have counsel copied.
52
Telecommunications Law
Quiet Enjoyment, Title and
Authority
• Traditional obligation of the landlord.
• Make sure you have authority – i.e. make sure
such use is permitted under your governing
documents.
Ensure that you have not granted another the right
to deploy in a manner that could result in
interference.
53
Telecommunications Law
Hazardous Substances
• Strict language to prohibit any such uses.
• Batteries for back up and generators can trigger
these terms.
• Check with your environmental folks for most
recent terms – pay special attention that these
substances do not prejudice your ability to
reuse the site or co-use. (Typically local
government sites are water towers, or gov’t
buildings.)
54
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Miscellaneous
• Attorney fees
• Entire agreement
• No liability for broker/agent fees
• Governing law and venue
• Severability
55
Telecommunications Law
Miscellaneous (cont’d)
• Mortgage subordination
• Limitation on liability
• RF signage and notices
• Amendments
• No relocation assistance
• Time IS OF THE ESSENCE
56
Telecommunications Law
Selling Your Wireless Leases
• Numerous tower operators seeking to buy
landlord lease rights.
• Typically offer fraction of NPV of lease
payments.
• Will emphasize threat of nonrenewal, certainty
of being paid.
• May ask for amendments allowing unlimited
collocations.
57
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Addendum of Recent Cases
Montgomery County v. FCC, 811 F.3d 121 (4th Cir. 2015) Upheld FCC rules implementing 47 U.S.C. § 1455
Global Tower Assets, LLC v. Town of Rome (1st Cir. 2016) 2016 U.S. App. LEXIS 280
On January 8, the First Circuit concluded that a “final action” under the Telecommunications Act means that the applicant must exhaust the administrative process. In the context of the case involving an application for a site, the planning commission denied the application, but an appeal of that decision was available within the administrative process to a board of appeals. In other words, the administrative process had not ended and the decision was not a “final action” under 47 U.S.C.S. §
332(c)(7)(B)(v). Additionally, the term "final action" in the Telecommunications Act was properly construed as similar to the requirement in the Administrative Procedure Act under 5 U.S.C.S. § 704, such that it incorporated a potential two-step administrative process prior to being final.
T-Mobile S., LLC v. City of Roswell (Supreme Court 2015) 135 S. Ct. 808, 190 L. Ed. 2d 679, 2015 U.S.LEXIS 612, 83
U.S.L.W. 4047, 25 Fla. L. Weekly Fed. S 31, 61 Comm. Reg. (P & F) 1336
The Telecommunications Act of 1996, 47 U.S.C.S. § 332(c)(7)(B)(iii), requires that any decision to deny an application must be in writing and supported by substantial evidence in a written record. Court holds: the Act's requirement that the locality's decision be supported by substantial evidence necessarily implied that local authorities had to state reasons for denial, clearly enough to allow judicial review. The reasons did not have to appear in the same writing that conveyed the locality's denial
of the application, but could instead appear in some other written record issued essentially contemporaneously. But in the case where a city provided its reasons for denial in the acceptable form of detailed minutes of a city council meeting – and those
minutes were provided 26 days after the date of the written denial – they were therefore not provided essentially contemporaneously with the denial. As a result, the judgment was reversed and case remanded. 6-3 Decision; one concurrence; two dissents.
Telecommunications Law 59
Addendum of Recent Cases Sprint Spectrum, L.P. v. Zoning Bd. of Adjustment of Paramus N.J., (3rd Cir. 2015) 606 Fed. Appx. 669
The Third Circuit upheld a 2014 district court ruling that had overturned a New Jersey zoning board decision denying an
application to build a wireless telecommunications towner because the applicant had not considered an alternative,
distributed antenna system (DAS.) Court found that the Paramus Zoning Board of Appeal's denial of appellants' application
for a variance to build a wireless monopole tower was not supported by substantial evidence, as the DAS was not a feasible
alternative to the monopole proposed by applicants.
Therefore, the district court correctly found that the ZBA's ruling constituted an effective prohibition of wireless service in
violation of 47 U.S.C.S. § 332(c)(7)(B) of the Telecommunications Act of 1996.
Indus. Tower & Wireless, LLC v. Haddad (D. Mass. 2015), 109 F. Supp. 3d 284, 2015 U.S. Dist. LEXIS 64566
This case involves a local zoning dispute over the construction of a cell phone tower. On July 29, 2014, the Zoning Board of
Appeals for the Town of Falmouth denied Plaintiff Industrial Tower & Wireless, LLC's application for a Special Permit to
construct a wireless communications tower. Plaintiff filed a Complaint with this Court, arguing that the ZBA's decision
violates the Telecommunications Act of 1996 on two independent grounds. First. the ZBA's decision denying the
application was not supported by "substantial evidence," as required by 47 U.S.C. § 332(c)(7)(B)(iii). Second, even if the
ZBA's decision was supported by substantial evidence, denying the application has the practical effect "of prohibiting the
provision of personal wireless services," in contravention of 47 U.S.C. §332(c)(7)(B)(i)(II). Plaintiff sought to vacate the
ZBA's decision, and requested an injunction ordering the ZBA to issue the necessary permitting and authorize construction
of the cell tower. The motion for summary judgment was allowed and the zoning board’s decision denying the application
for a special permit was vacated.
Telecommunications Law 60
Addendum of Recent Cases PI Telecom Infrastructure (M.D. Fla. 2015), LLC v. City of Jacksonville, 104 F. Supp. 3d 1321, 2015 U.S. Dist. LEXIS 60598, 62 Comm. Reg. (P & F) 974 In a lawsuit brought under 47 U.S.C.S. § 151 et seq., in which PI Telecom Infrastructure challenged a city's denial of its application to construct a cell tower, the court held that the city's written order met the Act's "in writing" requirement because the written order identified the reasons for the denial and the company had access to the written transcript of the city commission's meeting 26 days before the deadline to seek judicial review. Additionally, substantial evidence supported the city's ruling because documented visibility of the proposed cell tower from a public park, which, by ordinance, the city was trying to protect and keep pristine, rose above mere generalized concerns regarding aesthetics. Finally, the company did not show that it fully considered feasible alternatives because it only summarily assessed another viable site but did not make any real evaluation of it. The City’s motion for summary judgment was granted. Portland Cellular P'ship v. Inhabitants of the Town of Cape Elizabeth, No. 2:14-cv-00274-JDL, 2015 U.S. Dist. LEXIS 132521 (D. Me. Sep. 30, 2015) Verizon sought to place antennas on water tower that already included a SCADA system that had been installed by the water utility, and argued that Section 6409 required the Town to treat the water tower as an existing base station because the zoning ordinance permitted the tower to be used to support antennas, and the facility was supporting an antenna in fact. Town argued 6409 did not apply since water authority had never sought permission to place its antennas on the water tower. Held: Section 6409 did not apply. Court said: “the Town did not review and approve the District's SCADA communications equipment mounted on the Water Tower when it amended its ordinance in 2000 to recognize water towers as appropriate locations for wireless communications equipment. The record is silent as to whether there was any consideration given to the SCADA equipment at that time. The zoning amendments themselves make no mention of the District's wireless equipment. Accordingly, it is unreasonable to infer that the Town's amendment of its ordinance [12] to recognize, in application, the one water tower in Cape Elizabeth as an authorized location for the installation of wireless communications equipment, also served, by implication, as a review and approval of the SCADA equipment then maintained on the Water Tower.” However, court went on to find that Town had improperly denied application on ground that water tower was not a permitted location for antennas, and concluded that placement of wireless structures on the water tower was an appropriate accessory use of the water tower under the Code as drafted.
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Addendum of Recent Cases Orange-Cty.-Cty. Poughkeepsie LP v. Town of East Fishkill (Second Circuit, November 10, 2015, 15-521-cv) (Nonprecedential) 2015 BL 369917
Plaintiffs-appellees Orange County-County Poughkeepsie Limited Partnership, d/b/a Verizon Wireless (“Verizon”), a wireless carrier, and Homeland Towers, LLC (“Homeland”), a tower company, sought to construct a new wireless communications tower in the Town of East Fishkill, New York. The defendants-appellants, the Town of East Fishkill (“East Fishkill”) and the Town of East Fishkill Zoning Board of Appeals (the “Board”) (collectively, the “Town”), denied the plaintiffs’ request for a special permit, a 40-foot variance, and a wetlands/watercourse disturbance permit. The plaintiffs brought claims under the 47 U.S.C. § 332(c)(7)(B), asserting that the Town's denial of its application amounted to an effective prohibition of wireless services and that the Town's decision was not supported by substantial evidence. The district court granted summary judgment in favor of the plaintiffs on each of their claims. Court stated: Local governments retain authority over “decisions regarding the placement, construction, and modification of personal wireless service facilities,” 47 U.S.C. § 332(c)(7)(A), but may not “prohibit or have the effect of prohibiting the provision of personal wireless services,” id. § 332(c)(7)(B)(i)(II). The Telecommunications Act’s “ban on prohibiting personal wireless services precludes denying an application for a facility that is the least intrusive means for closing a significant gap in a remote user's ability to reach a cell site that provides access to land-lines.” A plaintiff will prevail on an effective prohibition claim, therefore, “if it shows both that a significant gap exists in wireless coverage and that its proposed facility is the least intrusive means to close that gap.” Whether a significant gap in coverage exists is a “fact-bound” question that requires a case-by-case determination. In making this determination, courts consider the gap's physical size, the number of wireless users affected by the gap, the location of the gap, and drop call or failure rates. Here, the Town conceded the existence of a coverage gap but contended the gap was not significant. As the district court found, however, the Town's conclusion that any coverage gap was de minimis was contradicted by the plaintiffs’ uncontested radio frequency analyses, propagation maps, and drive test data demonstrating a significant coverage gap in the area— specifically, two coverage gaps of 2 miles on the Taconic State Parkway and 1.6 miles on Route 82. Courts have found similarly sized gaps to be “significant” for purposes of the law. Moreover, it was undisputed that the gaps affect approximately 35,000 commuters on a daily basis. The Town asserts that it rebutted the plaintiffs’ evidence of a significant coverage gap with an informal driver survey that purported to show a lack of dropped calls in the disputed area. The district court determined that the Board's conclusions regarding the significance of the coverage gap were not supported by credible evidence. The appeals court affirmed the district court decision.
McKay Bros., LLC v. Zoning Bd. of Adjustment of Randolph, Civil Action No. 13-1383 (JLL), 2013 U.S. Dist. LEXIS 54878 (D.N.J. Apr. 12, 2013
Section 6409 does not prevent localities from requiring a provider to file an application so that the locality can determine whether Section 6409 applies to an application
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Addendum of Recent Cases New Cingular Wireless PCS, LLC v. City of W. Haven, No. 3:11cv1967 (MPS), 2013 U.S. Dist. LEXIS 95321 (D. Conn. July 9, 2013)
AT&T applied for a special permit to install twelve antennas on three parts of the rooftop, with ancillary equipment located in an
equipment room on the ground floor. The building already hosted several wireless facilities maintained by AT&T's competitors
providing services functionally equivalent to the services that AT&T sought to provide, but those facilities were installed as of right,
before new zoning regulations were adopted. AT&T’s application was denied under the new zoning code.
AT&T argued that by refusing to approve its application to collocate its wireless facility, the City unreasonably discriminated against it.
The Court quoted legislative history stating that the phrase "unreasonably discriminate among providers of functionally equivalent
services" will provide localities with the flexibility to treat facilities that create different visual, aesthetic, or safety concerns differently
to the extent permitted under generally applicable zoning requirements even if those facilities provide functionally equivalent services.
For example, the conferees do not intend that if a State or local government grants a permit in a commercial district, it must also grant a
permit for a competitor's 50-foot tower in a residential district.” Applying that test, the court concluded, first, that “[a]llowing AT&T's
competitors to maintain wireless facilities while prohibiting AT&T from doing so is plainly discrimination.” The City argued denial
was not discriminatory because it was the result of application of the new code in an even-handed manner; the court rejected that
position, stating that “it rests on the erroneous assumption “that the prohibition against discrimination in subsection (B)(i)(I) is an
intent-based, rather than effects- based, standard….Because subsection (B)(i)(I) prohibits local regulations that have unreasonable
discriminatory effects, Defendants' argument that they even-handedly applied the new zoning regulations falls short. Although there is
no evidence in the record that the Commission applied its new regulations in a discriminatory fashion, the regulations themselves make
the installation of further wireless facilities much more difficult and cumbersome. Even if the Commission enforced the regulations
uniformly against all wireless providers, the effect of the regulations in this case was to discriminate in favor of wireless providers that
have existing wireless facilities and against providers that do not.”The Court next turned to whether
the discrimination was “unreasonable.” Citing cases, the court suggested that local boards only have “discretion to treat facilities
differently only [insofar] as they create different visual, aesthetic, or safety concerns to the extent permitted under
generally applicable zoning requirements." “Such bases for "reasonable discrimination" are difficult to discern, however, when the
proposed new facility would be built at a location that already houses a competitor's facility.”” AT&T submitted ample evidence that
its proposed facility would not make the rooftop any more of an eyesore than it already is.” The Court ordered issuance of a permit to
AT&T.
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Contact Information
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Best Best & Krieger
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