Telecommunications Antennas and Use of Rights of Way by Small Cell Carriers

• TCA Title 65, Chapter 21, Parts 1 & 2 •Section 201 •Section 202 •Section 103

• TCA Title 13, Chapter 24, Part 3 •Sections 301-305

§ 65-21-201. Rights-of-way Any person or corporation organized for the purpose of transmitting intelligence by magnetic telegraph or telephone, or other system of transmitting intelligence the equivalent thereof, which may be invented or discovered, may construct, operate, and maintain such telegraph, telephone, or other lines necessary for the speedy transmission of intelligence, along and over the public highways and streets of cities and towns, or across and under the waters, and over any lands or public works belonging to this state, and on and over the lands of private individuals, and upon, along, and parallel to any of the railroads, and on and over the bridges, trestles, or structures of such railroads. Tenn. Code Ann. § 65-21-201 (West)

§ 65-21-202. Public way obstruction The ordinary use of such public highways, streets, works, railroads, bridges, trestles, or structures shall not be thereby obstructed, nor the navigation of such waters impeded, and just damages shall be paid to the owners of such lands, railroads, and turnpikes, by reason of the occupation of the lands, railroads, and turnpikes by the telegraph or telephone corporations. Tenn. Code Ann. § 65-21-202 (West)

§ 65-21-101. Corporate special powers Telegraph and telephone corporations may construct a telegraph or telephone line and erect the necessary fixtures along, or over, or under the line of any public highway, the streets of any village, town, or city, across, or over, or under rivers, or any land belonging to the state, or along, across, or under county roads, and also over the lands of private individuals in pursuance of the general law authorizing the condemnation of the easement of right of way for works of internal improvement as set forth in title 29, chapter 16; provided, that the ordinary use of such public highway, streets, or county road be not thereby obstructed or the navigation of such waters impeded. Tenn. Code Ann. § 65-21-101 (West) § 65-21-103. Local regulation Any village or city within which such line may be constructed shall have all reasonable police powers to regulate the construction, maintenance, or operation of the line within its limits, including the right to exact rentals for the use of its streets and to limit the rates to be charged; provided, that such rentals and limitations as to rates are reasonable and imposed upon all telephone and telegraph companies without discrimination. No village, town, or city shall have the right to prevent the company from constructing, maintaining, and operating the line within the village, town, or city, so long as the line is being constructed, maintained, or operated within the village, town, or city, in accordance with the reasonable police regulations. Tenn. Code Ann. § 65-21-103 (West)

• 13-24-301. Telephone and telegraph services -- Exclusion from local regulation. No municipal, county or regional planning commission or any municipal or county legislative body shall, by ordinance or otherwise, exclude the location or relocation of any facility used to provide telephone or telegraph services to the public.

• 13-24-302. Facilities included.

Such facilities include those essential to the provision of telephone and telegraph services such as central office exchanges and microwave towers which require a specific location in order to provide the most efficient service to the public.

• 13-24-303. Regulations allowed.

The exclusion of location from local regulation does not preclude the exercise of reasonable municipal and county police powers including, but not limited to, permit requirements, landscaping, off-street parking or set-back lines as an exercise of police powers.

• 13-24-304. Planning for and regulating the siting of wireless telecommunications support structures. A municipal, county or regional planning commission or any municipal or county legislative body, referred to as an authority in this section and § 13-24-305, that has adopted planning and zoning regulations, may plan for and regulate the siting of wireless telecommunications support structures in accordance with locally adopted planning or zoning regulations and this chapter.

• 13-24-305. Limits on regulation of wireless telecommunications support structures.

In regulating the placement of a wireless telecommunications support structure, an authority may not: (1) Regulate the placement of an antenna or related equipment for an existing wireless telecommunications support structure; provided, however, that, if the placement of an antenna on an existing wireless telecommunications support structure requires an extension, such placement may be regulated, if such extension would require the wireless telecommunications support structure to have lighting or if such extension exceeds the height limitation of the authority. If a co-location occurs, such co-location may not be considered an expansion, and the appropriate authority may not impose additional costs or operating restrictions on the applicant for such co-location, unless such support structure is owned by the authority; (2) Require the applicant to provide any sort of justification for radio frequency need; or (3) Act to prohibit or have the effect of prohibiting the provision of personal wireless services

• 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 (47 USC 1455) - Regulates the collocation on an Eligible Support Structure. This Act is more extensively interpreted by the FCC in its Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, Report and Order, FCC 14-153. • In general, a request for a collocation on an “eligible support structure” that is

less than a “substantial change” to that structure cannot be denied and must be approved within a 60 day review period

• Metro has 6 possible reasons for denial on the grounds that there is a substantial change

(height, width, excavation/deployment beyond site, additional equipment cabinets, concealment, other conditions on the tower or base station)

• for sites in the public right of way, a service provider or infrastructure entity

may automatically extend any “base station” (any utility pole, light pole, building, or other structure that currently hosts wireless equipment) 10 feet in height and six feet in width (this is less than a “substantial change”).

Section 332(c)(7) of the Communications Act (47 U.S.C. § 332(c)(7)) provides that a local government shall not unreasonably discriminate among providers of functionally equivalent services and shall not prohibit or have the effect of prohibiting the provision of personal wireless services. It also provides that a local government must act within a reasonable time on a request. FCC interpretation of 332(c)(7) in its Declaratory Judgment in Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review and to Preempt Under Section 253 State and Local Ordinances that Classify All Wireless Siting Proposals as Requiring a Variance (aka the “Shot Clock”), FCC 09-99:

Regulates the installation of Transmission Equipment on an Alternative Structure

90 days to review and approve or deny application Also regulates the approval of a new tower or support structure

150 days to review and approve or deny

• Existing Franchise law: • Metro has interpreted the existing chapter of its Code (Chapter 6.26) regarding

Fiber Optic Franchises as applicable to companies wanting to install small cells in its public rights of way. Like other telecommunications providers, we are requiring them to obtain franchises under this chapter as a prerequisite to being able to install any of their facilities in our public rights of way, if they meet the definition of “telecommunications system.”

• Existing chapter had a broad definition of telecommunications system: “grantee's network of cables, wires, lines, towers, wave guides, optic fiber, microwave, and any associated converters, equipment, or facilities designed and constructed for the purpose of producing, receiving, amplifying or distributing audio, video or other forms of electronic signals to or from subscribers or locations within Metropolitan Nashville and Davidson County, but not including the offering to the public cable television services as defined under the Cable Communications Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act of 1992, and/or any franchise granted by the metropolitan government pursuant to said Act. ” MCL Section 6.26.020

• Being a franchisee under Metro’s franchise chapter does not allow the grantee to do anything other than just generally have a presence in the right of way.

Advent of Small Cells in Right of Ways has arrived One company obtained franchise rights by acquiring an existing

franchisee of the Metropolitan government. It is the only company that has erected new poles in the Right of Way to

date Existing new poles in right of way may have their height increased by

10% or 10 AT&T is a special case because it has a franchise dating back to 1888 Two additional companies have now been granted Franchise Agreements How many more to come?

• Could result in new poles in the Right of Way • Prioritize collocating on existing poles in the Right of Way

• Zoning • Metro’s existing Zoning Code did not originally have a provision that

addressed small cells, just Radio/TV/Satellite Tower and Telephone Service.

• A new bill, BL2016-415, was therefore introduced to replace those two categories with a larger Telecommunications category that encompassed the above but also wireless facilities, including small cells and DAS.

• The goals were to prevent the proliferation of obstructions in the right of way, to preserve safe paths of travel for pedestrians and cyclists, to comply with or exceed the access for disabled persons required by the ADA and to minimize “visual clutter” in the rights of way.

• There were numerous meetings and much back and forth with industry representatives prior to enactment of this bill.

• Requires permits • Application requirements:

schematic site plan, justification of why collocation is not possible, intended user, minimum visual impact, number of other users.

• Fees authorized • Council resolution needed • Consultant fees authorized

• Review by Planning, MHZC, MDHA and ITS

• Collocation • Eligible support structures • Alternative structures

• Removal of abandoned telecommunication facilities

• Landscape buffers along residential districts • Substantial Changes to Eligible Support Structures or Placement

of New Telecommunications Equipment on Alternative Structures: • shall be designed with screening and other stealth elements so as to

minimize the visual impact from a pedestrian viewpoint within any abutting public right of way

• Maximum height determined by base zoning

• Towers: • Setbacks, light prohibition, notification for Councilmember (added within

historic district)

• Prohibited within the sidewalk. When possible, required to relocate outside of the sidewalk.

• No new support structure within 500’ of an existing support structure.

• New or relocation telecommunication facilities required to underground transmission equipment.

• Height limited to height of utility poles or 35’ (including antenna).

• Stealthing/concealment elements to be encouraged in accompanying design guidelines (currently under development)

• The first issue raised was that our original definition of telecommunications facility addressed only wireless facilities and that singling out only those types of facilities for zoning regulation as opposed to addressing it to all types of telecommunications facilities was discriminatory.

• We agreed and revised the definition accordingly to include all of the above.

• This makes it a little tricky because some of the federal and state law mentioned previously only applies to wireless facilities.

• ““Telecommunications Facility” means one or more antenna, tower, base station, mechanical and/or electronic equipment, conduit, cable, fiber, wire, and associated structures, enclosures, assemblages, devices and supporting elements that generate, or transmit nonionizing electromagnetic radiation or light operating toor produce a signal used for communication that is proposed by an entity other than the Metropolitan Government, including but not limited to radio/tv/satellite and broadcast towers, telephone service, including new microwave or cellular towers, PWSF, DAS, small cell facilities and COW’s.

• Delete Telephone Service and Radio/TV/Satellite Tower as separate uses.

• Add Telecommunications Facility as a PC use in all districts

• Claimed that TCA Sec. 65-21-202 meant that the only regulation local governments could impose on telecomms was a prohibition on obstruction of PROW (counterargument: this ignores preservation of local governments’ police powers in 65-21-103).

• Telecomms wanted the pole height limit in the PROW increased from 35’ to 50’ and the minimum distance required between new pole installations decreased from 500’ to 300’, and didn’t like the “volume metrics” limits on size of equipment allowed to be placed above ground (excluding antennas). They claimed the net effect of these was to “to prohibit or have the effect of prohibiting the provision of personal wireless services” in violation of TCA 13-24-305(3).

• Telecomms wanted the requirement eliminated to move an existing pole on which they were collocating facilities out of the pedestrian path of travel of the sidewalk, if the existing pole obstructed it, and was an alternative structure or if it was an eligible support structure to which a substantial change was being made

• They do not want to have to justify why they cannot collocate on adjacent alternative structures, including those privately owned, as a prerequisite to being able to install a new pole

Antenna

Electronics (RRU’s and Elec. Meter)

Antenna

Electronics RRU’s

Antenna

Electric Meter

Electronics (RRU’s)

Electric Meter

Antenna

Electronics

Self-contained pole. Antennas and electronics hidden

Alternative structure (street light) that could be utilized

Ornamental street light that could be replaced with identical style, but would contain antennas and electronics.

Self-contained pole. Antennas and electronics hidden

Alternative Structure Alternative Structures

Self-contained pole. Antennas and electronics hidden

Small cell ground equipment, Woodbridge VA

Roof-top installation for a macro site. Electronics either on roof or within the building.

Roof top installation for a macro site. Antennas painted blue. Electronics either on roof or with the building.

• Finalizing Design Guidelines, application form and process to implement BL2016-415

• Metro also intends to make many of its own assets available for attachment for telecomm facilities, including small cells, for a rental fee. A master license agreement is being drafted for this purpose. Accompanying legislation would allow attachments to be approved on sites administratively, subject to the MLA’s terms (quicker, more streamlined process, to be dovetailed with zoning permit application for “one-stop shop” for telecomms, utilizing online portal, which idea they do like). Different from franchise rights; in this case Metro is acting in proprietary capacity.

• Overhaul our franchise ordinance (Ch. 6.26 of Metro Code) • Keep an eye on changing federal regulations; with Commissioner Pai

as new Chair of FCC, and with its new republican majority, local government regulation may be in the cross-hairs