Transcript Wireless telecommunication facilities: Preparing for the

Wireless Telecommunication Facilities:
Preparing for the Coming Wave
January 8, 2014 Webinar
Co-sponsored by AWC and AT&T
Presenter:
Shane Hope, City of Mountlake Terrace
Presentation Focus
 Federal & state regulations
 Suggestions to consider for
updating local regulations
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Recent Federal and State
regulations
Wireless Telecommunication Facilities
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Background
 Local governments have interest in:
 Community livability
 Consumer protection & property
rights
 Economic vitality
 Public property & public right of
way
 Emergency services
 Local governments generally have
authority to make local zoning
decisions & set permitting
processes
 Some exceptions…
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Telecommunications Act of 1996
 First major overhaul of federal
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telecommunications law in 60 years
Refined & added to the older Pole
Attachment Act
First time internet was included in
broadcasting & spectrum allotment
Provided deregulation of
converging broadcasting &
telecommunications markets
Limited regulatory barriers to
establishing telecommunication
facilities
FCC’s Declaratory Ruling of 2009
 Wireless facility applications (except “collocations”) must be
decided within 150 days of application being filed
 Collocations of wireless facilities must be decided within 90
days of application filing
 Collocation includes any existing building, whether or not it has existing
wireless facility
 Tower collocation is limited to changes that do not involve “substantial
increase in the size of a tower” as defined in Nationwide Programmatic
Agreement for Collocation of Wireless Antennas
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Nationwide Programmatic Agreement
for Collocation of Wireless Antennas
 Defines “substantial increase in the size of the tower” to mean:
 Increase of existing tower height by more than 10% or by height of 1 additional antenna
array with separation from nearest existing antenna not to exceed 20 ft (whichever is
greater), except proposed antenna may exceed above size limits if necessary to avoid
interference with existing antennas; or
 Mounting of proposed antenna would involve installation of more than standard number
of new equipment cabinets for technology involved, not to exceed four (4), or more than
one (1) new equipment shelter; or
 Mounting of proposed antenna would involve adding appurtenance to body of tower that
would protrude more than 20 ft from tower edge, or more than width of tower structure
at level of appurtenance (whichever is greater), except that proposed antenna may exceed
above size limits if necessary to shelter antenna from inclement weather or to connect
antenna to tower via cable; or
 Mounting of proposed antenna would involve excavation outside current tower site,
defined as current boundaries of the leased or owned property surrounding the tower &
any access or utility easements currently related to the site.
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FCC’s Declaratory Ruling of 2009
 Local governments may rebut FCC presumption for 90/150
days as threshold of reasonableness on particular case when
drawn into court
 Shot clock may be extended reasonable length of time if
applicant & municipality agree
 If local government notifies applicant within 30 days of filing
that application is incomplete, shot clock stops until
application is complete
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FCC’s Declaratory Ruling of 2009
 State & local rules with longer clock (or no clocks) are preempted
by FCC shot clock
 State & local rules with shorter clocks continue to apply under
state law but FFC shot clock controls when applicant can take case
to federal court
 Prohibition of service determinations must be based on individual
carrier’s issues; presence of another carrier’s service is no defense
for denial
 Denial must be based on substantial evidence contained in written
record
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Court Challenge to
FCC’s Declaratory Ruling of 2009
 Two Texas cities challenged FCC’s Ruling
 Supreme Court, in May 2013, upheld key parts of FCC’s
Ruling
 While decision does not apply comprehensively, it has broad
implications
 Key finding is for FCC authority to interpret aspects of law and
establish shot clock
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”
Section 6409 of “Middle Class Tax
Relief & Job Creation Act of 2012”
 Mandates that state & local governments approve “eligible facility
requests” for modifying existing wireless towers or base stations if
modifications would not “substantially change” tower or base station’s
physical dimensions
 “Eligible facility request” means any request involving:
 Collocation of new transmission equipment
 Removal of transmission equipment
 Replacement of transmission equipment
 Notes about Section 6409:
 Preempts aspects of local authority & discretion:
 Does not preclude local review of proposals but generally precludes conditional
processes & denials of eligible facility requests
 Specifically does not relieve requirements of NHPA or NEPA
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New FCC Rules Proposal
 FCC’s Notice of Proposed Rulemaking—published
December 5, 2013 in Federal Register
 To expedite permitting of wireless facilities & further
implement Telecommunications Act of 1996
 February 3, 2014 due date for comments
 March 5, 2014 due date for FCC response
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Issues Behind FCC Proposed Rules
Expediting environmental review process related to newer
technology & structure types
2. Possible narrow exemption from FCC pre-construction
environmental notification requirements for certain
temporary towers
3. Clarification of requirement from Section 6409 (Middle
Class Tax Relief and Job Creation Act of 2012) regarding
state & local government authority
4. Whether/how to address disputes/questions from FCC’s
2009 Declaratory Ruling
1.
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Some Questions that May Be Decided
by Next FCC Rules
 What constitutes a “base station”?
 How to interpret “modification” of tower or base station?
 What does “existing” mean?
 Should the standard for substantial change be different for
towers vs. buildings or utility poles?
 Can local governments require “stealth” (camouflage)
conditions?
 Should federal rules further restrict local permitting
processes?
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FCC proposed rules
 Local governments should review &
consider commenting on FCC’s
proposed rules by February 3, 2014
See FCC website:
http://www.fcc.gov/document/fccproposes-remove-barriers-wirelessinfrastructure-0
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State Environmental Policy (SEPA):
2013 Updates
 Dept. of Ecology adopted SEPA rules update (WAC 197-11-
800(25)) that made:
 Personal wireless service facilities* a categorical exemption.
Applies to:
 Microcells* attached to an existing structure (other than a residence or
school)
 Other personal wireless service antennas attached to an existing structure
(other than a residence or school)
 Construction of a wireless service tower less than 60’ tall if located in a
commercial, industrial, forest, or agricultural zone
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SEPA Rules Definitions
 “Personal wireless services” means commercial mobile services,
unlicensed wireless services, and common carrier wireless
exchange access services (as defined by federal law)
 “Microcell” means wireless communication facility consisting of
antenna that is either:
 Up to 4 ft high & with area not more than 580 square inches OR
 If a tubular antenna, no more than 4 inches in diameter & no more
than 6 ft in length
 Note: Exemption does not apply to projects within a GMA critical area
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2013 SEPA Legislation
 HB 1183 amended RC2 43.21C.0384 to exempt the
following except when located in a designated critical area:
 Collocation of new equipment, removal of equipment, or
replacement of existing equipment on existing or replacement
structures that does not substantially change structure’s physical
dimensions*
 Construction of wireless service tower less than 60 feet tall
when located in commercial, industrial, manufacturing, forest,
or agricultural zone
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HB 1183- SEPA Legislation
Definition from HB 1183:
“Substantially change the physical dimensions” means:
A. Mounting of equipment on structure that would increase height
of structure by more than 10% or 20 ft, whichever is greater; or
B. Mounting of equipment that would involve adding appurtenance
to body of structure that would protrude from edge of structure
more than 20 feet, or more than width of structure at level of
appurtenance, whichever is greater.
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NOTE: Ecology plans to amend SEPA rules in next rulemaking phase to
include HB 1183 provisions.
Suggestions to consider for updating
local regulations
Wireless Telecommunication Facilities
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How long has it been?
Do current local regulations…
 Include FCC “shot clock”
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requirements?
Address SEPA exemptions for
wireless facilities?
Define “collocation” for SEPA
exemption purposes, consistent with
new SEPA legislation?
Provide application submittal
criteria, consistent with current
laws?
Streamline review for collocations?
Meet today’s needs & issues?
If proposing update to local
regulations…
Draft code that:
 Provides clear process for considering telecommunication
facilities
 Recognizes evolving technologies
 Such as DAS & small cell
 Makes collocation easy option (generally)
 Is consistent with federal & state requirements
 With consideration for upcoming FCC rules
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Some Resources
 Municipal Research &
Services Center (MRSC) of
Washington:
 www.Mrsc.org/Subjects
 Best Best & Kreiger LLP
website:
 http://www.bbklaw.com/
?t=40&an=27137&format
=xml
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Every community needs a sense of place…
Every cell phone needs wireless transmission…
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