Municipal Regulation of Wireless Telecommunication Facilities in the - - PowerPoint PPT Presentation

The audio portion of the conference may be accessed via the telephone or by using your computer's

• speakers. Please refer to the instructions emailed to registrants for additional information. If you

have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.

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

Municipal Regulation of Wireless Telecommunication Facilities in the Public Right of Way: Guidance for Counsel

Navigating Zoning Challenges and Interplay Between Federal, State and Local Laws

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific TUESDAY, MAY 9, 2017

Natausha M. Horton, Esq., Cohen Law Group, Pittsburgh & Seattle Eric J. Larson, Shareholder, Arenz Molter Macy Riffle & Larson, Waukesha, Wis.

Tips for Optimal Quality

Sound Quality If you are listening via your computer speakers, please note that the quality

• f your sound will vary depending on the speed and quality of your internet

connection. If the sound quality is not satisfactory, you may listen via the phone: dial 1-866-871-8924 and enter your PIN when prompted. Otherwise, please send us a chat or e-mail sound@straffordpub.com immediately so we can address the problem. If you dialed in and have any difficulties during the call, press *0 for assistance. Viewing Quality To maximize your screen, press the F11 key on your keyboard. To exit full screen, press the F11 key again.

FOR LIVE EVENT ONLY

Continuing Education Credits

In order for us to process your continuing education credit, you must confirm your participation in this webinar by completing and submitting the Attendance Affirmation/Evaluation after the webinar. A link to the Attendance Affirmation/Evaluation will be in the thank you email that you will receive immediately following the program. For additional information about continuing education, call us at 1-800-926-7926

• ext. 35.

FOR LIVE EVENT ONLY

Program Materials

If you have not printed the conference materials for this program, please complete the following steps:

• Click on the ^ symbol next to “Conference Materials” in the middle of the left-

hand column on your screen.

• Click on the tab labeled “Handouts” that appears, and there you will see a

PDF of the slides for today's program.

• Double click on the PDF and a separate page will open.
• Print the slides by clicking on the printer icon.

FOR LIVE EVENT ONLY

Municipal Regulation of Wireless Telecommunication Facilities in the Public Rights-of-Way

May 9, 2017

Presenter

Natausha M. Horton Attorney, Cohen Law Group Pittsburgh Office: (412) 447.0130 ext. 17 Seattle Office: (206) 472.5646 nhorton@cohenlawgroup.org

6

Overview of Presentation:

1.

Discuss the impact of this new infrastructure on municipalities

• 2. Outline basic municipal legal rights under federal

law

• 3. Basic case study: Northampton Township, PA
• 4. Discuss how to prepare your municipality to respond

to this new technology

• 5. Briefly discuss industry actions on the federal and

state levels.

7

Impact of New Infrastructure

• n Municipalities

8

 As the other speakers have noted, these facilities are necessary

for good cellular coverage and seamless connection to wireless broadband.

 In our firm’s experience, our municipal clients are very

welcoming of these new technologies, but are concerned about preserving the integrity of their communities (i.e., historic areas/areas where all utilities are underground) and protecting their rights-of-way (a valuable property right).

 These wireless facilities add new burden to public ROWs and

• ften impose new “mini-cell towers” (up to 120 feet, in the case
• f Mobilitie) on residential neighborhoods.

Impact of New Wireless Facilities

9

Impact of New Wireless Facilities

 Because these facilities are installed in the ROWs, they are

different from traditional cell towers and require different regulations.

 Also, the granting of utility status to DAS contractors has added

to the challenges facing municipalities to address these “mini- towers.”

 Need to take proactive approach and develop a legally

sustainable regulatory structure that protects the municipality and provides residents with wireless broadband service.

 Although accidents are rare, there are also public safety

concerns.

10

Municipalities’ Legal Rights Regarding Wireless Facilities

11

Legal Authority for Wireless Facility Management by Municipalities

 The Telecommunications Act of 1996 states

that local governments cannot “prohibit or have the effect of prohibiting wireless facilities,” but also preserves local zoning authority over the “placement, construction, and modification of wireless facilities.”

12

 Certain limitations on Congress’ grant of authority.

 FCC’s 2009 Shot Clock Rule  Spectrum Act  FCC’s 2014 Report and Order  Federal case law specific to each district (i.e., E.D.Va)

 Some states have imposed an additional layer of regulation

 i.e., Pennsylvania Wireless Broadband Collocation Act (2012)

 Not many DAS cases because technology is relatively new, but key

federal cases generally uphold municipal zoning authority over DAS contractors’ right-of-way authority. (Except in a few states, i.e., VA)

Legal Authority for Wireless Facility Management by Municipalities

13

Case Study: Northampton Township, PA What happens when a municipality has not prepared for these new facilities?

14

 Township Supervisors receive calls from

residents.

 These residents complain that workmen

have trucked in fiberglass poles, as well as

• ther large equipment, and are painting

circles on their front lawns.

 The circles are placement marks for

the installation of mini-cell towers on the residents’ front lawns.

 Sign says: “Did you know that a 25-foot

cell tower is going to be erected on this Corner?”

Northampton Township

15

Northampton Township

 American Tower Corporation (“ATC”) obtained a Certificate of Convenience

from the PUC and began installing a DAS network consisting of 60 antennas in the public rights-of-way, including at least a dozen new “towers” and 39 miles

• f fiber optic cable.

 Township initially treated this as a right-of-way matter and directed ATC to the

Township Right-of-Way Ordinance, including a fee of 5% of gross revenues. ATC filed suit in state court and obtained an injunction against the Township.

 ATC began installing nodes atop existing utility poles and constructing new

• poles. ATC surveyed and marked proposed locations for new towers in

neighborhoods where all utilities were located underground.

 New towers would have been 25-40 feet tall and many were to be located

directly in the front yards of existing homes.

 Township residents became incensed. At this point, our firm got involved.  The Township Board authorized pulling ATC permits, based upon non-

compliance with Township zoning requirements.

16

 Township issued stop work notices to ATC, directing that ATC must meet

zoning ordinance requirement that no new telecommunications facilities can be located in residentially zoned areas. (Disclaimer: This position does not work for most suburban municipalities!)

 Work on the DAS system ceased and the Township filed suit in federal court,

claiming that ATC was in violation of Federal Telecommunications Act, which preserves the Township’s zoning authority.

 Settlement discussions commenced and ATC agreed to attempt to reengineer

its DAS system in order to eliminate the 12 proposed new towers. No new towers were placed in areas where all utilities were underground.

 All litigation was placed on hold and ATC altered the dimensions of the

network such that no towers were placed in residential neighborhoods with utilities underground.

Northampton Township

17

CLG’s Recommendations to Respond to Changes in Wireless Technology and Regulations

18

Effective Planning Should Begin Before It’s Too Late

 Each municipality is different in its size, zoning

districts, topography, and character.

 As such, using a generic wireless facilities

• rdinance, or an ordinance written for another

municipality, could have disastrous consequences.

 Start by reviewing ordinance and/or regulations

that are currently in place and either amend or repeal/replace.

19

CLG’s Proposed Course of Action



Review your municipality’s current wireless facilities ordinance and ask yourself whether it



Complies with current laws and regulations;



Addresses new technologies for wireless facilities inside and outside the public rights-of-way;



Provides appropriate legal protections for the municipality;



Preserves the character of your community; and



Enables collection of fees for wireless facilities in the ROW.

20

Bottom Line

Convert old cell tower ordinance to a

comprehensive wireless facilities ordinance that protects your residents, addresses new technologies, incorporates the most recent regulatory changes, and strikes a balance between the need for wireless broadband and the integrity of your community.

21

Wireless Industry Actions on the Federal and State Levels

22

What’s going on at the state level?

 In various states, the wireless industry has introduced

legislation that would:

 Strip municipalities of their right to control the construction

and location of wireless facilities in the public rights-of-way; and

 Effectively eliminate the right of municipalities to assess fees

for such facilities.

 What does this mean?

 This means that a wireless contractor such as Mobilitie would

be permitted by state law to install 120-foot towers along any roads in your municipality, including in residential areas, and there would be nothing that you could do to stop them.

 This has already happened in Ohio (suit filed) and is

happening in other states right now.

23

 If your State Legislature and Governor eliminate your

zoning authority over wireless facilities, then other portions of your Zoning Code could be the next to fall. Likewise if they weaken your power to manage your rights-of-way, then other municipal powers could be in danger in the future.

What’s going on at the state level?

24

FCC News

 Mobilitie recently filed a Petition for Declaratory

Ruling with the FCC to encourage Commission actions to help expedite the deployment of next generation wireless infrastructure.

 This proceeding could further erode local government

authority over the public rights-of-way and adversely affect local government revenues.

 NATOA, joined by the US Conference of Mayors, the

National League of Cities, and others, jointly filed a Motion for Extension of Time to file comments, which was granted by the FCC.

25

Cohen Law Group Pittsburgh & Seattle (412) 447.0130 (206) 472.5646 nhorton@cohenlawgroup.org dcohen@cohenlawgroup.org

26