Current State of Federal Telecommunications Law and Planning for Wireless Telecommunications Anthony Lepore, Director of Regulatory Affairs Susan Rabold,

Current State of Federal Telecommunications Law and

Planning for Wireless Telecommunications

Anthony Lepore, Director of Regulatory Affairs

Susan Rabold, Project/Planning Manager

www.CityScapeGov.com

Status of Federal Law for Wireless Planning Considerations

Anthony Lepore, Director of Regulatory Affairs


Federal Legislation Section 704• 47 USC §332(c)(7) (a/k/a Section 704 of the Telecommunications Act of

1996)

• “Preserves” local zoning authority BUT;

• Requires local government to regulate in a manner that does not:

o “unreasonably discriminate among providers of functionally equivalent services; and;

oprohibit or have the effect of prohibiting the provision of personal wireless services.”

• Requires you to make written decisions on siting applications that are based on “substantial evidence” and not on speculation or because of federally preempted reasons (such as concerns about RF Radiation.)


FCC “Shot Clock”

• 2009 Declaratory Ruling by FCC

• Requires local government to make decisions on wireless applications within a specific time frame

• 90 days for co-location applications

• 150 days for new structures/towers

• NOTE: Some states have shorter timelines in state legislation that may take precedence


“Shot Clock” Challenge

• San Antonio and Arlington TX challenged FCC’s authority to impose shot clock timelines on local government

• US Supreme Court decided in June 2013 that the FCC had the authority to impose shot clock timelines on local governments (applicable where states have not imposed their own timelines).


Section 6409

• Congress included a small paragraph in the Middle Class Tax Relief and Job Creation Act of 2012:

• (1) IN GENERAL. Notwithstanding 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.

• (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.


Section 6409

• (3) APPLICABILITY OF ENVIRONMENTAL LAWS. Nothing in paragraph (1) shall be construed to relieve the Commission from the requirements of the National Historic Preservation Act or the National Environmental Policy Act of 1969.

• Congress said it only applied to co-location, removal or replacement of existing facilities that did not “substantially change” the physical dimensions of existing structure;

• Congress did not define “substantially change.”


FCC “Guidance” FCC “Guidance”

• FCC’s Wireless Telecommunications Bureau issued “informal guidance” on Section 6409 on January 25, 2013

• Adopts a prior FCC definition of “substantial change” as what it thinks Congress intended to define

• Acknowledges that local government can still require applications, but must approve requests that meet criteria of Section 6409


FCC “Guidance” Substantial Change

Defines “Substantial Change” as:

1) Addition of antenna on a tower that would increase its height by more than 10% or 20 vertical feet; or

2) Addition of antenna that required installation of more than standard number of equipment cabinets (not to exceed 4) or more than 1 new equipment shelter; or

3) Addition of antenna that would increase the girth (width) of the tower by more than 20 feet; or

4) Addition of the antenna would involve excavating around the tower site beyond the existing boundaries of the property associated with the facility.


FCC “Guidance” Shot Clock

• Reaffirms time limit to act on application invoking Section 6409 to be 90 days, consistent with “Shot Clock” Declaratory Ruling


FCC’s Pending Proposed Rulemaking

• FCC issued a Notice of Proposed Rulemaking (“NPRM”) on September 26, 2013 for “Improving Wireless Siting Facility Policies”

• Sought comment from all stakeholders (industry, public, local and state government) on variety of siting issues and local regulation of same

• Hundreds of comments and responses were filed through June 2014 by various parties


NPRM Items

• Expediting DAS/Small Cell Systems – proposal to eliminate environmental review for certain “small” wireless infrastructure

• Exempting “Temporary Towers” from environmental review processes

• Defining “substantial change” and determining Congressional intent in Section 6409

• Integration of Section 6409 with local and state codes


NPRM Items – continued• Remedies for failing to meet “shot clock” timelines

• Defining “collocation” that is eligible for 90 day shot clock

• Defining “completeness” for purposes of starting shot clock

• Effect of a moratorium on shot clock

• Applicability of shot clock to DAS facilities

• Creating preferences for public property siting

• Effect of instituting a “deemed granted” remedy for failure to meet shot clock timelines


NPRM Status

• FCC TO ISSUE REPORT AND ORDER 10/17/14

• Will likely codify “substantial change” standards set forth in the Informal Guidance

• Will likely further dilute local government’s ability to regulate placement of wireless facilities

• Could be challenged in the same fashion as the “Shot Clock” ruling


VA Statutory Provisions

• Provisions in Title 15.2, Chapter 22*, Code of Virginia encourage the development of master planning for wireless infrastructure

• Same Chapter requires action on wireless siting applications within 90 days (subject to 60 day extensions)

• US Fourth Circuit Court of Appeals has long line of decisions on wireless siting matters that also apply in Virginia

*15.2-2232


Applicable VA Case Law

• Logical starting point is 360 Communications Company of Charlottesville v. Board of Supervisors of Albemarle County, 211 F.3d 79 (4th Cir. 2000)

• Denial by County of 100’ tower was “supported by substantial evidence” and did not have effect of “prohibiting the provision of wireless services”

• Applicants face “heavy burden” in establishing that denial of a single application causes a prohibition of wireless services

• 4th Circuit approach is different than all other federal circuits; uses case by case analysis

• More recent 4th Circuit decisions offer specific guidance



• T-Mobile Northeast, LLC v. Fairfax County Board of Supervisors, 672 F.3d 259 (4th Cir. 2012)

• Existing tower was to be increased in height from 100’ to 110’ and 3 additional panel antenna added to 21 existing antenna

• Denial was not a prohibition of wireless service nor unreasonable discrimination against applicant.

• Decision “founded on traditional zoning principles of aesthetic impact”

• NOTE: Different result likely following passage of Section 6409, as this application would appear to have been less than a “substantial change”



• New Cingular Wireless PCS, LLC v. Fairfax County Board of Supervisors, 674 F.3d 270 (4th Cir. 2012)

• New proposed 88’ tower in residential neighborhood

• Denial supported by substantial evidence to support County conclusion that site was not harmonious with zoning objectives of Comp Plan for that area

• Applicant did not meet its “heavy burden” to show denial was a prohibition of wireless services

• Applicant’s “no other feasible alternatives” was unpersuasive since they did not provide evidence of any effort to secure an alternate location



• T-Mobile Northeast, LLC v. City of Newport News, Virginia, 674 F.3d 380 (4th Cir. 2012)

• Denial of new proposed tower at elementary school without explanation

• Met zoning requirements and had support of planning commission

• Only dissent at hearing was 3 members of public concerned about health effects of RF

• 4th Circuit affirmed lower court’s finding that application denial was not based on “competent or substantial evidence”


Where Are We Today?

• Some federal regulation/preemption matters are fixed and certain

• Possible further preemption of local regulatory ability by federal rules depending on outcome of NPRM

• Possible further state preemption as wireless industry has accomplished in other jurisdictions

• Likelihood of more infrastructure because of mobile data demands* and new spectrum coming online

*3.2 Trillion MB of data in 2013, 120% increase from 2012 (CTIA Annual Operator Report)


Susan Rabold, CityScape Project/Planning Manager

The pro-active approach to manage your communities long range goals and objectives for wireless telecommunications.

It will:

• Reduce future wireless siting controversies

• Address public concerns over towers on every corner

• Simplify the wireless providers network deployment enabling technology of wireless services to citizens in your community in an expedient and efficient manner

• Potentially create a new method for new community revenues

What is a Wireless Master Plan


Updating and Integrating OrdinanceBecause of complexity and fluidity of federal regulation, updating your existing regulations in conjunction with Master Plan ensures

•Harmony with State, Federal and Congressional mandates and guidelines

•Proactive approach to addressing wireless deployment

•Long range and well planned network deployment strategy for your community

•Best practices plan for wireless siting applications going forward

•Defensible positions if challenged by an applicant over a siting decision

• Thorough preliminary research of existing antenna locations for assessments

• Background research with a community kick off meeting

• Inventory catalog and propagation mapping of all sites

• Public hearings/workshop(s)

• Bridging stakeholder goals and objectives

• Consideration of use of public properties

• Ordinance review and amendment recommendations

• Final Wireless Master Plan

**Each Master Plan is done in stages and customized for each community

How to do a Wireless Master Plan

Engineering Working with Variables

• Antenna Location

• Topography & Climate

• Population Trends

• Transportation Networks

• Location of Subscriber Base

• Land Use Policies

• Future Network Requirements

Included in a Wireless Master Plan


Low and High FrequencyTheoretical Coverage with terrain


Low and High FrequencyTheoretical Coverage with terrain, foliage, density


Comparison of existing tower locations to residential dwelling units

2010 United States Census Estimates

Comparison of tower locations to residential dwelling units and geographic centers of

employment

2010 Job Location Estimates

Tower Location & Population Analysis


No Coverage

Outside Coverage

Propagation High Frequency MHz

In-building Coverage

(all variables)

Certain Town-owned Properties

• 18 Town-owned lands identified as potential fill-in sites

• Criteria for study: Location relative to projected gaps in coverage

• Size of property

Summary and 10-Year Projections

Existing Antenna Locations

• 8 within the Town

• 14 within 1-mile of Town

10-Year Projection

• 18 Potential Town-owned land locations

• 14 Potential Utility Easement options

• 8 Other projected locations


Manage the Aesthetics

Light StanchionLight Stanchion Bell Tower *Bell Tower * Flag PoleFlag Pole Clock Tower Clock Tower

Faux TreeFaux Tree

Antenna Antenna Attachments Attachments

in Utility in Utility Easement/Easement/R-O-W R-O-W

Concealed Attached Concealed Attached Antenna Antenna

…Many more options to fit your needs

*StealthConcealment.com


Inventory


Clients in VAClients in VA

• Buckingham County – Master Plan & Ordinance Revisions

• Fluvanna County – Master Plan & Ordinance Revisions

• City of Chesapeake – Master Plan & Public Land Lease Mgmt

• Fauquier County - Ordinance Revisions

• Campbell County – Wireless Reviews

• Mecklenburg County – Wireless Reviews

• City of Roanoke – Wireless Reviews


Public Lease Rates Chesapeake, VAPublic Lease Rates Chesapeake, VA

ServiceProvider

SiteName

Lease Rate for 2012

Lease Rate for 2015

Lease Rate for 2020

Lease Revenues for

the City Through 2022

Total Revenues 30

Year Term

Sprint Bunch 28,363 30,993 35,929 468,693 1,198,900

Cingular Bunch 28,363 30,993 35,929 468,693 1,198,900

Verizon Bunch 28,363 30,993 35,929 468,693 1,198,900

Verizon Civic 28,363 30,993 35,929 468,693 1,198,900

Sprint Butts 26,735 29,214 33,867 393,568 1,198,900

Total 140,186 153,185 177,583 2,268,339 5,994,502

36

Questions?

Documents

Current State of Federal Telecommunications Law and Planning for Wireless Telecommunications Anthony Lepore, Director of Regulatory Affairs Susan Rabold,