Municipal Regulation of Cell Phone Towers Resolving Zoning, Siting - - PowerPoint PPT Presentation

Presenting a live 90‐minute webinar with interactive Q&A

Municipal Regulation of Cell Phone Towers

Resolving Zoning, Siting and Environmental Issues; Evaluating Revenue Sharing Opportunities

T d ’ f l f

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific WEDNESDAY, JULY 13, 2011

Today’s faculty features: Thomas McKevitt, Special Counsel, Sahn Ward Coschignano & Baker, Uniondale, N.Y . Chris J. Coschignano, Partner, Sahn Ward Coschignano & Baker, Uniondale, N.Y . Richard J. Lemanowicz, Partner, Lemanowicz, Lower Gwynedd, Pa. Charles Fletcher, Gray Robinson, Tampa, Fla.

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Cell Tower Zoning Regulation and Cases

Thomas McKevitt, Esq. Sahn Ward Coschignano & Baker, PLLC (516) 228‐1300 tmckevitt@swcblaw.com

5

Federal Zoning Preemption Federal Zoning Preemption

• Zoning is a state and local issue except in two

Zoning is a state and local issue except in two areas where Congress has imposed federal regulation: regulation:

• Religious Uses (RLUIPA passed in 2000) and

T l i i

• Telecommunications

6

Telecommunications Act of 1996 Telecommunications Act of 1996

• 47 U S C Section 332(c)(7)

47 U.S.C. Section 332(c)(7)

• States that nothing shall limit or affect the

authority of a State or local government over authority of a State or local government over decisions regarding the placement, construction or modification of personal construction or modification of personal wireless services.

7

Telecommunications Act of 1996 Telecommunications Act of 1996

• However the local body cannot:

However, the local body cannot:

• Unreasonably discriminate among providers.

Sh ll hibi h h ff f

• Shall not prohibit or have the effect of

prohibiting service.

• Regulate on the basis of environmental effects
• f radio frequency emissions to the extent

that such facilities comply with FCC regulations.

8

Telecommunications Act of 1996 Telecommunications Act of 1996

• Environmental effects mean health effects

Environmental effects mean health effects.

• Regardless what the WHO or what other

studies may show Congress has specifically studies may show, Congress has specifically prohibited an inquiry in this area. S h d h ld b d i d i

• Such data should not be admitted into

evidence, and there should be no discussion f h f

• f these factors.

9

Health Affects Health Affects

• Although raising health concerns does not

Although raising health concerns does not violate the Act, a denial will not be sustained when health concerns play a role in the when health concerns play a role in the community opposition and a zoning board’s decision to deny a permit decision to deny a permit.

• T‐Mobile Northeast LLC v. Town of Ramapo,

701 F Supp 2d 446 (S D N Y 2009) 701 F. Supp.2d 446 (S.D.N.Y. 2009).

10

Discrimination Among Carriers Discrimination Among Carriers

• When a provider is denied a permit to co‐

When a provider is denied a permit to co locate on an existing tower which contains the antennae of competitors it has been antennae of competitors, it has been unreasonably discriminated.

• Omnipoint Communications Inc v Town of
• Omnipoint Communications, Inc. v. Town of

LaGrange, 658 F.Supp.2d 539 (S.D.N.Y. 2009).

11

Legal Standard Legal Standard

• For several years there was a Circuit split on

For several years, there was a Circuit split on what standard a carrier had to prove.

• Federal Courts required an applicant to show
• Federal Courts required an applicant to show

that there was a gap in service. Thi d Ci i id h h h d b f ll

• Third Circuit said that the gap had to be for all

carriers, not just the applicant.

• First, Seventh and Ninth Circuit said the gap

need only be for the applicant carrier.

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Legal Standard Legal Standard

• Second Circuit held that a carrier had to

Second Circuit held that a carrier had to demonstrate that the application was the least intrusive means for closing a significant least intrusive means for closing a significant gap in service. Sprint v. Willoth, 176 F.3d 630 (1999) (1999).

• However, district courts differed on whether

the gap was for all carriers or just the the gap was for all carriers or just the applicant.

13

Legal Standard Legal Standard

• FCC in its 2009 Declaratory Ruling determined

FCC in its 2009 Declaratory Ruling determined that gap was for the individual carrier.

• To rule otherwise would ignore the fact that
• To rule otherwise would ignore the fact that

the first carrier may not provide service to the entire locality and prohibiting additional entire locality, and prohibiting additional carriers could lead to a population being unserved or underserved unserved or underserved.

14

Act in a Reasonable Period of Time Act in a Reasonable Period of Time

• FCC’s Declaratory Ruling in 2009 set up a

FCC s Declaratory Ruling in 2009 set up a “Shot Clock”:

• After an application has been filed a
• After an application has been filed, a

municipality has 30 days to determine if the application is complete application is complete.

15

Act in a Reasonable Period of Time Act in a Reasonable Period of Time

• Once the application is deemed complete a

Once the application is deemed complete, a municipality has 90 to process an application for a co‐location and 150 days to process for a co location and 150 days to process

• ther applications (e.g. construction of a new

monopole) monopole).

16

Act in a Reasonable Period of Time Act in a Reasonable Period of Time

• Failure to act within a deadline does not deem

Failure to act within a deadline does not deem the application granted.

• It only creates a rebuttable presumption of
• It only creates a rebuttable presumption of

unreasonableness.

17

Aesthetic Considerations Aesthetic Considerations

• Courts have held that aesthetic considerations

Courts have held that aesthetic considerations can be a basis to deny an application.

• Cellular Telephone Co v Town of Oyster Bay
• Cellular Telephone Co. v. Town of Oyster Bay,

166 F.3d 490 (2d Cir. 1999) O i i C i i I Ci f

• Omnipoint Communications, Inc. v. City of

White Plains, 430 F.3d 529 (2d Cir. 2005).

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Aesthetic Considerations Aesthetic Considerations

• In Oyster Bay the court determined that

In Oyster Bay, the court determined that denial for aesthetic considerations failed the substantial evidence test substantial evidence test.

• This is because the residents’ comments at

the public hearing failed to “articulate the public hearing failed to articulate specifically how the proposed cell sites would have an adverse impact on the community” have an adverse impact on the community.

19

Aesthetic Considerations Aesthetic Considerations

• In White Plains the Court upheld a denial on

In White Plains, the Court upheld a denial on aesthetic grounds for the public objections were pervasive and “raised by neighbors who were pervasive and raised by neighbors who know the local terrain and the sightlines of their homes ” their homes.

• Neighbors who called the proposal an

“eyesore” said that the tower could not be eyesore said that the tower could not be effectively camouflaged.

20

Current Litigation Current Litigation

• The Town of Hempstead on Long Island New

The Town of Hempstead on Long Island, New York enacted a new ordinance that prohibits wireless communication facilities within 1500 wireless communication facilities within 1500 feet of residences, schools and houses of worship worship.

21

Current Litigation Current Litigation

• Unless there are no alternate placement sites

Unless there are no alternate placement sites that are commercially practicable to applicant and would have a lesser negative effect on and would have a lesser negative effect on area character, property values and aesthestics than the selected site aesthestics than the selected site.

• Matter is currently litigated in the Eastern

District of New York District of New York.

22

MUNICIPAL REGULATION OF MUNICIPAL REGULATION OF CELL PHONE TOWERS

Chris J. Coschignano Sahn Ward Coschignano & Baker 516‐228‐1300 ccoschignano@s cbla com ccoschignano@swcblaw.com

23

INTRODUCTION

The power of municipalities to regulate personal wireless service facilities, while limited to certain criteria and considerations must not be taken lightly. It was Congress intent, over the strenuous objection of cellular industry, to allow local municipalities to maintain a level of control over “the placement local municipalities to maintain a level of control over the placement, construction, and modification” of personal wireless service facilities. This is an important fact because the number of facilities these has grown This is an important fact because the number of facilities these has grown exponentially in recent years. It is estimated by CTIA, a non-profit organization representing wireless communications providers, that the number of cell sites in the United States increased from approximately 175,000 to 260,000 in 2010 (a 48% i ) increase). This number will continue to grow with increased demand for services such as application downloads application downloads.

24

EQUAL TREATMENT

I.Municipalities are prohibited from unreasonably discriminating against providers

• f similar services. Essentially the providers of personal wireless service are

entitled to Equal Protection of the Law A This requires an apples to apples comparison of the proposals by A. This requires an apples to apples comparison of the proposals by personal wireless service providers. In other words, the rules within each district must be consistent and apply equally to all providers.

― A municipality may have different sets of rules for commercial, industrial and p y y , residential districts. ― Municipality may not ban towers completely or adopt regulations that have that effect

25

EQUAL TREATMENT

• B. If there are differences with respect to aesthetics and safety concerns

the municipality is not required to treat them similarly A municipality may have different sets of rules for commercial, industrial and residential districts residential districts

― Example: Company X seeks a 50 ft monopole in a business district and Company Y seeks a 150 monopole in the same business district ― The town or village may treat these facilities differently because they create different concerns for the area

26

SHOT CLOCK

I.According to 47 U.S.C. §332 (c) (7) (B)(ii): A. A State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the wireless service facilities within a reasonable period of time after the

request is duly filed with such government or instrumentality, taking

into account the nature and scope of such request

27

SHOT CLOCK

II. On November 18, 2009, the FCC issued a declaratory ruling to clarify “reasonable period of time to act on an application. See, FCC Ruling 09-99B. A. This sets forth specific time frames in which a local government must render a decision on an application render a decision on an application.

1. For applications seeking collocation of personal wireless service facility a municipality must act within 90 days 2. For new applications a municipality must act within 180 days 2. For new applications a municipality must act within 180 days

B. If the municipality does not act within that time frame the applicant may go to court to seek relief to compel a decision or in some cases to direct the issuance of an approval C. In its ruling the FCC was quick to point out that these are not hard and fast time frames and circumstances will dictate the reasonableness of the review process.

28

DECISIONS ON APPLICATIONS

I.47 U.S.C. §332 (c) (7) (B)(iii) requires that any decision “to deny a request to "place, construct or modify” a personal wireless service facility must be “in

writing and supported by substantial evidence contained in a written record”

II.New York State Law requires that any decision rendered by zoning boards and planning board be in writing and be supported by substantial evidence in the record

29

BASIS OF DETERMINATION

I.A municipality may not base its decision to deny an application for a personal wireless service facility on the potential health effects of the Radio Frequency Emissions. II.In fact if the reviewing board even allows the testimony regarding potential health effects it could taint the record of the proceeding and make a denial difficult. effects it could taint the record of the proceeding and make a denial difficult. III.I often advise the Boards that I represent to advise community opposition that they are not permitted to raise the issue because the FCC has determined that RF emissions cannot be considered if they fall below the levels they have established. 47 C F R §1 1310 3 C.F .R.§1.1310.3 IV.If people attempt to give this testimony, I advise the Board to remind them that they cannot consider it as part of the record V.The effect is to make it clear in the record that the Board is not considering it when g they make their decision. Therefore, if the application is denied the applicant cannot say that it was based on improper considerations

30

MUNICIPAL CONCERNS AND WAYS TO ADDRESS THEM

I.Primary Concerns of Municipality A. Potential visual and aesthetic impact on residential communities

1. NIMBYISM – While residents concerns are important to the Municipality, there i l d t di th t it t b b l d i t th d t is a general understanding that it must be balanced against the need to provide reliable cellular service

B. Uncontrolled expansion of these facilities

C In general most municipalities have zoning ordinances in place to control the C. In general, most municipalities have zoning ordinances in place to control the location of Personal Wireless Service Facilities. D. Zoning Restrictions are used to control various aspects of the facility such as:

1 Location – Business Industrial residential 1. Location – Business, Industrial, residential 2. Design – Monopole, Tower, Stealthing technology 3. Height and Setbacks

31

MUNICIPAL CONCERNS AND WAYS TO ADDRESS THEM

II. PWS must be Careful in How they approach a municipal hearing A. It does not pay to be cavalier because having represented municipal boards I can tell you that they will tune you out and start thinking of ways to deny the application ways to deny the application. B. Taking a hard line stance on things such as height and location C. Congress intentionally preserved local control over these towers and ith ti d lif ti i t i t b t d with continued proliferation more resistance is to be expected

32

MUNICIPAL CONCERNS AND WAYS TO ADDRESS THEM

III. SOLVING THE PROBLEM A. Create zoning restrictions and an approval process that encourage development in business or industrial zoned properties. Offer incentives such as an expedited approval process such as an expedited approval process B. While many municipalities already do this, encouraging a company to place it facilities on municipal property is a good means of generating revenue revenue

A. Many municipalities have radio towers on their property for communication purposes. PWS facilities can be co-located on the structure. B. Municipal properties with large structures, such as water towers or high building provide another advantage because facilities can be placed on the existing structures which will another advantage because facilities can be placed on the existing structures which will not cause additional intrusion into the area C. Alienation of Parkland (i.e. use of parkland for private enterprise) In New York, you must be careful of which municipal properties are used because municipalities are prohibited from using property designated as parkland for these structures. It may be done but it g p p y g p y requires approval from the New York State Legislature.

33

MUNICIPAL CONCERNS AND WAYS TO ADDRESS THEM

III. SOLVING THE PROBLEM (cont.) C. Encourage Collocation of facilities – Multiple users on one structure.

― Not always feasible because of height necessary to fill coverage gap ― Existing Providers may balk at collocation – Make it a condition on initial approval of the tower if it is not required by code. ― Potential reduction in number of facilities in the area

34

MUNICIPAL CONCERNS AND WAYS TO ADDRESS THEM

III. SOLVING THE PROBLEM (cont.) D. Place Premium on Stealth technology, where appropriate

― “STEALTH” designs are not always stealth. It depends on a number of factors i l di th ft hi d k lit b t l d d th including the craftsmanship and work quality, but also depends on the surrounding geography ― Examples of Stealth designs include: 1 Placing them in church steeples or buildings 1. Placing them in church steeples, or buildings 2. Attaching them to billboards 3. Disguising them to look like natural features such as trees 4 Making them into flag poles 4. Making them into flag poles ― I personally find that Stealth techniques do not work in densely populated areas with varying building height some examples ― Perhaps the examples I have seen are just not very good but they generally p p j y g y g y stand out

35

MUNICIPAL CONCERNS AND WAYS TO ADDRESS THEM

IV. Health Concerns Related to Radio Emission A. Anyone who is opposed to a PWS facility and has a computer with an internet will be able to rattle of a number of studies and reports that say that these facilities have an adverse affect on public health that these facilities have an adverse affect on public health

― As previously indicated, the Telecommunications act specifically states that “No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the effects of radio frequency emissions to the extent that such facilities comply with the Commission’s regulations concerning such emissions.” ― Simply put if the carrier provides evidence that the RF emissions fall below the FCC’s established threshold it may not be addresses by the local authority. ― Enforcement of these rules is not conducted by the FCC to my knowledge Enforcement of these rules is not conducted by the FCC to my knowledge ― If a municipality were to conduct its own testing and determined that there was a violation it could take legal action or could file a complaint with the FCC. It is advisable to make demonstration of compliance with the threshold part of the application process. If there is a violation, it could be treated as a false statement and provide a basis for revocation of a Certificate of Occupancy or Certificate of Compliance

36

Cell Phone Tower Issues: Cell Phone Tower Issues: Placement, Leases and Municipal R l i Regulation

Richard J. Lemanowicz, Esq.

Lemanowicz LLP Lemanowicz, LLP E‐mail: rjl@lemanowiczlaw.com Telephone: (267)419‐8498

Discussion Topics

I. Negotiating ground leases for placement of communications towers on municipally owned real communications towers on municipally owned real property. II Structuring ground leases for placement of II. Structuring ground leases for placement of communications towers on municipally owned real property. III. Factors to consider when determining whether to sell a ground lease for a communications tower. g IV. The impact of 4G and other technological advances

• n ground leases for a communications tower
• n ground leases for a communications tower.

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I. Negotiating ground leases for placement of i ti t i i ll d l communications towers on municipally owned real property.

• A. Distinctions between tenants.
• 1. Leasing real property to tower companies.
• 2. Leasing real property to service providers.
• B. Negotiation of lease rates.
• 1. Availability of suitably zoned property.

2 Exemption from zoning regulations

• 2. Exemption from zoning regulations.
• 3. Determination of market rates.
• C. Negotiation of site design.

g g

• 1. Impact of structure type.
• 2. Impact of structure height.

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II. Structuring ground leases for placement of communications towers on municipally owned real communications towers on municipally owned real property.

• A. Considerations about the term of the ground lease.
• 1. Duration of the lease term.
• 2. Renewal of the lease term.
• B. Considerations about feasibility periods.
• 1. Duration of feasibility periods.

2 Tenant’s rights during the feasibility periods

• 2. Tenant s rights during the feasibility periods.
• 3. Landlord’s rights during the feasibility periods.

C Considerations about assignment and subleasing

• C. Considerations about assignment and subleasing.
• 1. Notice and consent requirements.
• 2. Imposing limitations on assignment.
• 3. Impact of a right of first refusal.

p g

40

III. Factors to consider when determining whether to sell a ground lease for a communications tower. g

A. Determining whether the ground lease can be sold. B. The impact of selling a ground lease on the tenant. C. The impact of selling a ground lease on the landlord. p g g D. The impact of selling a ground lease on current and future sub‐tenants. E. Financial considerations in selling a ground lease.

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IV. The impact of 4G and other technological advances

• n ground leases for a communications tower.

g

A. Potential issues with subleasing and assignment. B. Potential issues with structure type. C Potential issues with structure height C. Potential issues with structure height.

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Unleashing The Wireless Broadband Revolution Broadband Revolution Impact of “4G” on Local Regulations

Charles “Chip” Fletcher GrayRobinson, P.A. 201 N. Franklin Street Tampa Florida 33602 Tampa, Florida 33602 (813) 273-5000 charles.fletcher@gray-robinson.com

www.gray-robinson.com Board Certified in State & Federal Government & Administrative Practice

What is “4G”?

• ITU has determined that “LTE-Advanced” and

“WirelessMAN-Advanced” should be accorded the

• fficial designation of IMT-Advanced. . . . IMT-Advanced

is considered as “4G” altho gh it is recogni ed that this is considered as “4G”, although it is recognized that this term, while undefined, may also be applied to the forerunners of these technologies, LTE and WiMax, and to other evolved 3G technologies providing a substantial to other evolved 3G technologies providing a substantial level of improvement in performance and capabilities with respect to the initial third generation systems now deployed. p y

– International Telecommunication Union Statement “Focus On International Regulations For Spectrum Management And Satellite Orbits,” Geneva, 6 December 2010.

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What is “4G”?

• The term “advanced telecommunications

capability” is defined, without regard to any transmission media or technology, as high- speed, switched, broadband telecommunications capability that enables telecommunications capability that enables users to originate and receive high-quality voice, data, graphics, and video telecommunications data, graphics, and video telecommunications using any technology.

– § 706(c)(1) of the 1996 Telecommunications Act, now codified at 47 U S C § 1302(d)(1)

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47 U.S.C. § 1302(d)(1).

Legal Authority

• Broadband Data Improvement Act (BDIA), Pub. L. No.

110-385 (2008), codified at 47 U.S.C. § 1301, et seq.

• Section 706(a) of the Telecommunications Act of 1996

Section 706(a) of the Telecommunications Act of 1996 directed the FCC to “encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans utilizing telecommunications capability to all Americans utilizing, in a manner consistent with the public interest, convenience, and necessity, price cap regulation, regulatory forbearance measures that promote regulatory forbearance, measures that promote competition in the local telecommunications market, or

• ther regulating methods that remove barriers to

infrastructure investment ” 47 U S C § 1302(a)

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infrastructure investment. 47 U.S.C. § 1302(a).

The Shot Clock Ruling

• 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 Classif All Wireless Siting Proposals Ordinances That Classify All Wireless Siting Proposals as Requiring a Variance, WT Docket No. 08-165, Declaratory Ruling, 74 FR 67871, 24 FCC Rcd 13994 (2009) recon denied 25 FCC Rcd 11157 (2010) (2009), recon. denied, 25 FCC Rcd 11157 (2010).

• Appeal pending in City of Arlington and City of San

Antonio v. FCC, Nos. 10-60039 & 10-60805 (5th Cir.).

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National Broadband Plan

• In March 2010, the FCC released the National

Broadband Plan to ensure that every American “ has “access to broadband capability.”

– FCC Omnibus Broadband Initiative, Connecting America: The National Broadband Plan (2010), available at ( ), www.broadband.gov/plan/

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Presidential Memorandum

• June 28, 2010 Memorandum for the Heads of

Executive Departments and Agencies

• Subject: Unleashing the Wireless Broadband

Revolution

• 75 Federal Register 38387

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National Broadband Acceleration Initiative

• In February 2011, the FCC announced the

National Broadband Acceleration Initiative to f work with stakeholders to identify and reduce regulatory and other barriers to broadband deployment deployment.

– National Strategy: The FCC’s Broadband Acceleration Initiative (Feb. 9, 2011), available at: htt //h f f / d bli / tt h t h/DOC http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC- 304571A2

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Utility Pole Attachment Order

• April 7, 2011 the FCC issued Report and Order

upon Reconsideration 11-50 to clarify and streamline broadband network operators’ ability streamline broadband network operators ability to obtain “just, reasonable, and nondiscriminatory access” to utility poles for the build out of their networks.

– Implementation of Section 224 of the Act; A National Broadband Plan for Our Future, WC Docket No. 07-245, GN Docket No. 09-51, Report d O d R id ti FCC 11 50 (A il 7 2011) and Order on Reconsideration, FCC 11-50 (April 7, 2011).

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Key Terms of the Utility Pole Attachment Order

• Timelines: establishes more rigorous timelines for the

attachment of telecommunications equipment to utility poles p

• Independent Contractors: mandates each pole owner

provide a list of contractors authorized to complete work if the pole owner fails to meet FCC timelines if the pole owner fails to meet FCC timelines

• Refusals: restricts basis for refusal of attachments to

capacity, safety, reliability and/or engineering concerns U th i d Att h t l i f h i d

• Unauthorized Attachments: penalties for unauthorized

attachments are mainly limited to back rent

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What Does This Mean For Local Regulations?

• Right of way regulations that effectively bar utility

pole attachments are at risk If t i ht f l i d

• If separate right of way approvals are required,

ability to comply with FCC requirements should be examined be examined

• Franchise agreements may need to be revised
• Franchise fees and other revenues generated

g from use of rights of way for utility poles may need to be updated to capture revenues from utility pole attachments

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utility pole attachments

FCC Notice of Inquiry (NOI): Acceleration of Broadband Deployment

• Adopted: April 7, 2011
• Published in Federal Register: May 17, 2011

Published in Federal Register: May 17, 2011

• Initial Comments Due: July 18, 2011
• Reply Comments Due: August 30 2011

Reply Comments Due: August 30, 2011

– Available at: http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-11- 51A1 doc 51A1.doc

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Stated Goals of The NOI

• Improve government policies for right of way

access and siting for towers, antennas, and g

• ther broadband infrastructure
• Remove barriers to broadband infrastructure

d l t development

• Reduce costs and time required for broadband

deployment deployment

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“Partnership” With State and Local Governments

• “we ask government entities to explain the

policy goals underlying their current practices and charges regarding rights of way and and charges regarding rights of way and wireless facilities siting. We seek to identify best practices, systemic challenges and fully consider ibl t th C i i t k i possible steps the Commission can take, in partnership with federal, state, local, and Tribal governments — with input from consumer groups and industry — to foster improvements in these areas.”

– NOI at 6

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Why Focus On Local Rights of Way?

• The Plan recommends that “the FCC . . . develop

guidelines for public rights of way policies that will ensure that best practices from state and local p government are applied nationally.”

– NOI at 5, quoting the National Broadband Plan at 113.

• “Policies for managing rights of way and siting wireless

Policies for managing rights of way and siting wireless facilities, including the procedures and costs for acquiring permission to build, affect how long it takes and how much it costs to deploy broadband ” and how much it costs to deploy broadband.

– NOI at 2. See also National Broadband Plan at 109.

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Why Focus On Local Regulations?

• “nearly all [interested persons] agree that there can and

should be better coordination across jurisdictions on infrastructure issues ” NOI at 5 infrastructure issues. NOI at 5.

• “In many cases, delays in the zoning process have

hindered the deployment of new wireless infrastructure.” The Shot Clock Ruling, FR 67872. The Shot Clock Ruling, FR 67872.

• “This [NOI] is one of the Commission’s top priorities: an

agency-wide effort to speed the build-out of wired and wireless broadband by removing obstacles to y g deployment, particularly obstacles created by unneeded

• r inefficient regulation.” Statement of Chairman Julius

Genachowski, NOI at 21.

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Information Requested In the NOI

• NOI requests detailed information on systemic

practices related to:

– Timeliness and ease of permitting process p g p – Reasonableness of charges – Do ordinances work with new technologies and practices? – Consistent or discriminatory/differential treatment Consistent or discriminatory/differential treatment – Presence or absence of uniformity among jurisdictions – Other right of way concerns, including “third tier” regulations not directly related to right of way use or facility siting y g y y g

• Submittals of anecdotal accounts are discouraged.
• Information collected will serve as the record for future

FCC actions

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FCC actions.

Do Ordinances Work With New Technologies?

• Are local regulations updated to reflect current

developments in technology?

• How do localities handle new or novel requests
• How do localities handle new or novel requests

for access to rights of way or tower and antenna sites? D l liti ll d DAS t

• Do localities allow proposed DAS antennas

within networks to be combined into a single application?

• How do localities treat use of existing

infrastructure (i.e., utility pole attachments and co-location on wireless towers)?

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co location on wireless towers)?

Consistent or Differential Treatment

• How do local ordinances differentiate between right
• f way use applicants and wireless facilities siting

li ? applicants?

• Are these differences reasonable?

Wh t th d h ld b d t d t i h th

• What method should be used to determine whether

a practice or charge is unreasonable or discriminatory? discriminatory?

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“4G” Coverage in Tampa

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Presence or Absence of Uniformity Between Jurisdictions

• Does inconsistent treatment between

jurisdictions make broadband deployment more ff ? difficult or time consuming?

• Does the need to file multiple applications cause

bl f i f t t id ? problems for infrastructure providers?

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FCC O ti t Add FCC Options to Address Identified Concerns

• Types of actions:

– Policy guidelines – Rules – Adjudications V l t d d ti l ti iti – Voluntary programs and educational activities

• Substantive scope of regulatory options:

S f h b d/ t i – Safe harbors and/or triggers – Billing practices – Interpretations of 47 U S C §§ 253 and 332

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Interpretations of 47 U.S.C §§ 253 and 332

Legal Authority

• Does the FCC have the authority to engage in all
• f the proposed actions?

NOI t b d l t th it b t

• NOI asserts broad regulatory authority, but

seeks comment on adjudicatory authority.

– Regulatory authority is asserted under Section 706 of Regulatory authority is asserted under Section 706 of the 1996 Telecommunications Act (47 U.S.C. § 1302) and Sections 253 and 332(c)(7) of the Communications Act (47 U S C §§ 253 and 332) Communications Act (47 U.S.C. §§ 253 and 332) – Comments are sought on authority to adjudicate rights of way disputes under 47 U.S.C. § 253

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Potential Impacts on Local Governments

• Mandate more structured decision making
• Reduce control of rights of way

Reduce control of rights of way

• Further preempt zoning
• Loss of revenues

Loss of revenues

• Resources to meet mandated timelines
• Economic development opportunities
• Economic development opportunities

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