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Telecommunications Law
Wireless Facility Siting: How “Local Control” is Faring at the FCC and in the Courts
International Municipal Lawyers Association Annual Conference September 10, 2014 Baltimore, Maryland PRESENTED BY Matthew K. Schettenhelm ©2014 Best Best & Krieger LLP Telecommunications Law
Wireless provider approaches your City Telecommunications Law
Telecommunications Law New site, downtown area
Telecommunications Law Problem(s)
What do you do?
Telecommunications Law
Telecommunications Law Just say no?
Telecommunications Law Just say no?
Telecommunications Law Work with the company
A solution that works for everyone Telecommunications Law
Telecommunications Law The site =
(1) centrally located Telecommunications Law
Telecommunications Law (2) hidden
Telecommunications Law (3) safe
Telecommunications Law win-win
Fast forward 6 months Telecommunications Law
Telecommunications Law Same provider
Telecommunications Law Same site
Telecommunications Law New idea:
Telecommunications Law Add
4 equipment cabinets Telecommunications Law
1 equipment shelter Telecommunications Law
Telecommunications Law new antennas
Multiple 20-foot extensions Telecommunications Law
Telecommunications Law Your answer?
Telecommunications Law Not a chance.
Telecommunications Law Not asking.
Telecommunications Law Not asking.
Telecommunications Law Telling
Telecommunications Law
Telecommunications Law Section 6409(a)
47 U.S.C. § 1455(a) Telecommunications Law
“may not deny, and shall approve” Telecommunications Law
Is the provider right?
Telecommunications Law
Telecommunications Law It depends.
Telecommunications Law
Telecommunications Law
Telecommunications Law challenge
Telecommunications Law challenge s
Telecommunications Law background
Telecommunications Law 2 federal laws
Telecommunications Law (1)
Telecommunications Law
47 U.S.C. § 332(c)(7) Telecommunications Law
Generally preserves Telecommunications Law
Telecommunications Law But
Telecommunications Law five limitations
Telecommunications Law A State or local government:
Telecommunications Law (1)
May not “unreasonably discriminate” among functionally equivalent providers Telecommunications Law
Telecommunications Law (2)
Shall not “prohibit or have the effect of prohibiting” the provision of wireless service Telecommunications Law
Telecommunications Law (3)
Shall act on a request “within a reasonable period of time” Telecommunications Law
Telecommunications Law (4)
Must make decision to deny “in writing” and “supported by substantial evidence” Telecommunications Law
Telecommunications Law (5)
May not regulate on the basis of the environmental effects of radiofrequency emissions Telecommunications Law
Hundreds of decisions Telecommunications Law
Telecommunications Law
Telecommunications Law 90/150 days
Telecommunications Law
Telecommunications Law
Telecommunications Law
Telecommunications Law (2)
47 U.S.C. § 1455(a) Telecommunications Law
“Notwithstanding . . . any other provision of law . . . Telecommunications Law
“a State or local government may not deny, and shall approve” Telecommunications Law
“any eligible facilities request for a modification of an existing wireless tower or base station that” Telecommunications Law
“does not substantially change the physical dimensions of such tower or base station” Telecommunications Law
Congress defined only one term Telecommunications Law
“Eligible facilities request” Telecommunications Law
“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.” Telecommunications Law
Telecommunications Law Undefined:
“any request for modification of an existing wireless tower or base station that involves- (A) collocation equipment.” of new transmission equipment; (B) removal of transmission equipment; or (C) replacement of transmission Telecommunications Law
“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 .” Telecommunications Law
“does not substantially change the physical dimensions of such tower or base station” Telecommunications Law
“does not substantially change the physical dimensions of such tower or base station” Telecommunications Law
“does not substantially change the physical dimensions of such tower or base station ” Telecommunications Law
Telecommunications Law
Telecommunications Law
Received hundreds of comments Telecommunications Law
A number of important issues Telecommunications Law
Telecommunications Law three
Telecommunications Law (1)
What does it mean to “ substantially change the physical dimensions station?” of a wireless tower or base Telecommunications Law
Telecommunications Law (2)
What is a “wireless tower” or “base station?” Telecommunications Law
Telecommunications Law (3)
What does “may not deny, and shall approve” mean?
Telecommunications Law
Telecommunications Law (1)
What does it mean to “ substantially change the physical dimensions station?” of a wireless tower or base Telecommunications Law
Telecommunications Law
Telecommunications Law troubling
Fixed; doesn’t consider context Telecommunications Law
A modification is a substantial change only if it involves one of the following: Telecommunications Law
Telecommunications Law (1)
Increasing an existing structure’s height by more than 10% Telecommunications Law
Telecommunications Law (2)
Installing more than four equipment cabinets or one equipment shelter Telecommunications Law
Telecommunications Law (3)
Adding an appurtenance that protrudes from the support structure more than 20 feet Telecommunications Law
Telecommunications Law (4)
Involves excavating outside the current structure site Telecommunications Law
Local governments = different approach Telecommunications Law
“depends on context, and does not lend itself to a mechanical, numerical formula” Telecommunications Law
Substantial change = a change that, in context, is “important” Telecommunications Law
Includes any physical-dimension change that would: Telecommunications Law
Telecommunications Law “make a facility unsafe,”
“render public streets or sidewalks less accessible or hazardous,” Telecommunications Law
“damage a historically significant area or structure,” Telecommunications Law
“expose a stealth facility,” Telecommunications Law
“or otherwise defeat conditions that were key to the underlying facility.” Telecommunications Law
Also: modifying a facility that has “legal, non-conforming” status should be considered “substantial” Telecommunications Law
Policy concern?
Telecommunications Law
A solution that works for everyone Telecommunications Law
Telecommunications Law (2)
What is a “wireless tower” or “base station?” Telecommunications Law
“wireless tower” Telecommunications Law
FCC = a structure “built for the sole or primary purpose” of supporting antennas Telecommunications Law
Telecommunications Law Industry = much broader
Industry = Any structure that supports wireless equipment, including . . . Telecommunications Law
Telecommunications Law water towers
Telecommunications Law utility poles
Telecommunications Law streetlights
Telecommunications Law buildings
Telecommunications Law (for some)
Even if the underlying facility does not already host any wireless equipment Telecommunications Law
Telecommunications Law “base station”
FCC = includes a structure that “supports or houses an antenna, transceiver, or other associated equipment that constitutes part of a base station.” Telecommunications Law
This would include buildings, utility poles, streetlights Telecommunications Law
Local governments argued statute includes only one support structure (tower) Telecommunications Law
Telecommunications Law (3)
What does “may not deny, and shall approve” mean?
Telecommunications Law
Telecommunications Law Two questions
Can a local government approve, but with other conditions?
Telecommunications Law
What is the remedy?
Telecommunications Law
Industry generally said that local governments can only condition on “nondiscretionary building and other structural safety codes” Telecommunications Law
FCC proposed that requests shall be “deemed approved” automatically Telecommunications Law
Local governments = due process/10 th Amendment problems Telecommunications Law
Local governments = courts should decide based on the facts Telecommunications Law
Historic Site
–
Now
Historic 50’-high silos with approved attachment of six panel antennas painted to match exterior surface to minimize visual impact. Located at Dufief Mill Road and MD Route 28 (Darnestown Road) in Montgomery County, Maryland. Photos by: Robert P. Hunnicutt, Columbia Telecommunications Corporation Telecommunications Law
Historic Site – Post Guidance?
Illustration showing potential impact of co-location of an additional approximately 20’-high pole mounted antenna array. Photos by: Robert P. Hunnicutt, Columbia Telecommunications Corporation Telecommunications Law
Historic Site – Now
Photo of Simeon T. Toby’s Bank Building, Columbia City Historic District, King County, WA. Blue arrows point to current location of cell towers. Building listed on National Registry of Historic Places Telecommunications Law
Historic Site – Post Guidance?
Illustration showing potential impact of co location using photos of actual rooftop installations Telecommunications Law
Brickyard Rd. DAS Site – Neighborhood
Photos by: Robert P. Hunnicutt, Columbia Telecommunications Corporation Telecommunications Law
Brickyard Rd. DAS Site – Now
Pole to support DAS antennas (68’ high) now at Brickyard Road in Montgomery County (part of a multi-node installation that extends down Brickyard Road) Photos by: Robert P. Hunnicutt, Columbia Telecommunications Corporation Telecommunications Law
Brickyard Rd. DAS Site – Post Guidance?
Illustration of an extension to existing utility pole with additional structural bracing and guy wires to support the extension, which rises approximately 20’ above existing DAS antennas. Blocks at bottom reflect related typical pole-mounted equipment cabinets. Photos by: Robert P. Hunnicutt, Columbia Telecommunications Corporation Telecommunications Law
Telecommunications Law Is it too late?
Telecommunications Law No.
“ex parte” process Telecommunications Law
Telecommunications Law Action likely later this year.
47 U.S.C. § 332(c)(7) Telecommunications Law
Telecommunications Law Five lessons
(1) Do no rely on the environmental effects of RF emissions in any respect Telecommunications Law
T-Mobile Northwest LLC v. Loudoun
County, 748 F.3d 185 (4th Cir. 2014) Telecommunications Law
Board had “substantial evidence” to deny for aesthetic reasons, but . . .
Telecommunications Law
One board member insisted that RF concerns also be listed.
Telecommunications Law
This rendered the denial unlawful.
Telecommunications Law
(2) Distinguish regulatory and proprietary activities Telecommunications Law
Omnipoint Communications v. City of Huntington
Beach, 738 F.3d 192 (9th Cir. 2013) Telecommunications Law
Voter approval process for leasing of certain City property Telecommunications Law
Process is not subject to Section 332(c)(7) preemption Telecommunications Law
(3) Issue denials “in writing”; state reasons clearly Telecommunications Law
T-Mobile South, LLC
v. City of Roswell, 731 F.3d 1213 (11th Cir. 2013) Telecommunications Law
Put denial in writing, but did not include reasons for denial (minutes from hearing showed reasons) Telecommunications Law
Telecommunications Law 11th Cir.: this is enough.
Supreme Court will hear argument this fall.
Telecommunications Law
(4) Regulate aesthetics by developing a record Telecommunications Law
N.E. Cellular Inc. v.
City of North Platte, slip op., No. 13-3190 (8th Cir. Aug. 22, 2014) Telecommunications Law
N.E. Cellular Inc. v.
City of North Platte, slip op., No. 13-3190 (8th Cir. Aug. 22, 2014) Telecommunications Law
Testimony from a dozen residents that it would be inconsistent with neighborhood was sufficient Telecommunications Law
Tip: the more specific, the better. Courts find that “generalized” grievances do not constitute substantial evidence.
Telecommunications Law
Matthew K. Schettenhelm
Best Best & Krieger LLP Washington D.C.
(202) 785-0600 [email protected]
www.bbklaw.com
Telecommunications Law