There are many designs to choose from if given a choice. Which do you like?
The Federal Communications Commission (FCC) approved a long-awaited infrastructure Order that clarifies key siting rules for wireless infrastructure deployment, including 5G. The “5G Upgrade Order” includes a declaratory ruling that took effect immediately and a proposal for further comment that would allow site owners to expand compounds without zoning delays. The FCC action will promote collocation, eliminate roadblocks to siting on existing infrastructure, and accelerate wireless network upgrades.
“This is the culmination of a multi-year effort by WIA working with the FCC to smooth the path for upgrading the nation’s wireless infrastructure through collocation. The 5G Upgrade Order comes at an ideal time as 5G deployments are accelerating. By improving the process for collocation, the FCC makes deploying 5G more efficient for communities across America. The FCC also teed up further action to expand compounds by 30 feet around existing towers, where upgrades are needed for public safety, generators, and mobile edge computing for 5G services,” said WIA President and CEO Jonathan Adelstein. “WIA is grateful for Commissioner Carr’s consistent leadership on these reforms and the strong support from Chairman Pai and Commissioner O’Rielly. We also thank the FCC staff for their diligent attention to WIA’s petitions. Today truly marks a victory for wireless consumers who are relying more than ever on connectivity.”
What is the 5G Upgrade Order and How Does It Help Infrastructure Providers?
The 5G Upgrade Order has been the culmination of eight years of work led by WIA, the FCC, and Congress to update rules governing macro and other wireless infrastructure deployments. This is a big step to pave the way for 5G deployment when Americans rely on connectivity more than ever. The 5G Upgrade Order:
- Sets a clear demarcation as to when the 60-day shot clock for local approval begins
- Clarifies which new equipment qualifies for streamlined approval
- Ensures local governments cannot misuse conditions of approval, like concealment and aesthetic conditions, to limit the ability to quickly upgrade infrastructure
- Clarifies what concealment elements are and that local governments cannot require new concealment elements for the modification that were not part of the facility that was approved previously
- To “defeat concealment” the proposed modification must cause a reasonable person to view the structure’s intended stealth design as no longer effective after the modification; for example, the local government cannot say that placing coax cable on the outside of the facility defeats concealment
- Provides more flexibility for providers in upgrading equipment like smaller remote radio units to keep up with advances in technology
- An environmental assessment is not needed when the FCC and applicants have entered into a memorandum of agreement to mitigate effects of a proposed undertaking on historic properties
It also asks for public comment on a rule change that permits 30 feet for compound expansions, which would facilitate deployment of advanced equipment like edge data centers and generators.
“Today’s action will expedite equipment upgrades to deploy these next-generation networks, which are critical to expanding economic opportunities and supporting public health and safety in American communities,” the FCC said in an official statement.
FCC Commissioner Brendan Carr has been leading the Commission’s efforts in working toward 5G upgrades. He announced at WIA’s Connect (X): All Access that the FCC would vote on this important Order. In a press release following the event, the Commissioner said, “America’s tower crews and telecom techs are building the strongest 5G network in the world. Their efforts already are creating new jobs and opportunities in towns across the country. By streamlining tower upgrades, we will encourage even more investment in our communities and new service to connect families.” He continued saying, “Rural America will benefit from new competition for their broadband dollars. First responders will benefit from dedicated networks and expanded capacity. And all Americans will benefit from world-leading wireless service as existing towers are upgraded to 5G.”
US 5G Networks Marked by Paltry Coverage, Unimpressive Speeds, Independent Tests Show
MIKE DANO, Editorial Director, 5G & Mobile Strategies
RootMetrics — which is not owned by Informa, Light Reading’s parent company — tested 5G networks from all the major wireless networks operators in Atlanta, Chicago and Dallas. The study used multiple devices (the LG V50 ThinQ 5G and the Samsung Galaxy S10 5G), covered hundreds of miles of urban and suburban territory in each city (including some indoor locations), and featured results from Verizon, AT&T, T-Mobile and Sprint across 3G, 4G and 5G, where available. The testing company also compared its US testing results with similar tests it has conducted in other countries that also offer 5G, such as South Korea.
So what are the findings? Well, 5G is fast. At least, when it’s coming from Verizon:
However, the firm noted that the US lags dramatically behind South Korea when it comes to actually finding a 5G signal.
“US 5G deployments are in their infancy compared to those in South Korea,” the firm noted, adding that the “availability” of 5G — meaning, the amount of territory covered by the service — is minimal in the US when compared with South Korea. “In South Korea, the 5G availability rates for each operator ranged from 42.2% to 45.6%. In the US, Sprint was the only carrier with a 5G availability rate above 24.9% in any of the three cities we tested, and Sprint’s 5G rates were at least that high in all three markets, topping out at 51.4% in Atlanta. AT&T, Sprint and T-Mobile, however, each had 5G availability rates below 7.2%.”
For example, the firm noted it was only able to connect to AT&T’s 5G network in Dallas 2.6% of the time. For T-Mobile that figure was just 1.3%.
To anyone following the rollout of 5G in the US, this should come as no surprise. South Korean operators are mostly using the 3.5GHz band for 5G, which is often described as “Goldilocks” spectrum and offers a good balance between carrying lots of data and covering lots of geography. In the US, however, Verizon, AT&T and T-Mobile are all using millimeter-wave (mmWave) spectrum, which can carry a lot of data but cannot cover large geographic areas. That’s just due to the physics of radio waves in those spectrum bands.
Sprint’s high “availability rate” for 5G, according to RootMetrics’ figures, is due to the fact that the operator is using 2.5GHz spectrum for 5G, which offers performance and coverage characteristics similar to 3.5GHz.
Finally, it’s worth noting that RootMetrics carried out its testing between July and August, and it’s likely that US operators’ 5G coverage and performance have improved since then. Indeed, Verizon executives have touted threefold improvements in 5G speed and coverage in some markets since the operator launched services in April.
Other data points
But those are just a few of the takeaways from RootMetrics’ report. Among other noteworthy findings:
- “Our testing in Atlanta, Chicago, and Dallas indicates that initial 5G deployments are primarily focused on improving download speeds, rather than upload speeds or data reliability. It’s worth noting that we observed a similar prioritization of download speeds during testing in South Korea as well,” RootMetrics wrote.
- The firm said AT&T’s 5G median download speed of 256.1 Mbit/s in Dallas (the company’s headquarters) was over 13 times faster than its non-5G mode median download speed of 19.4 Mbit/s.
- The firm found that Sprint’s results in Dallas showed similar maximum download speeds — around 200 Mbit/s — available on both 5G and 4G. Moreover, the RootMetrics reported that Sprint’s 5G median download speed in Dallas was just 1.2 Mbit/s. The carrier showed faster speeds in Atlanta and Chicago, however.
- T-Mobile’s fastest maximum download speed overall was actually provided on its 4G network, where it clocked 388.5 Mbit/s in Atlanta. T-Mobile’s 5G median download speed in the city was 20.9 Mbit/s.
- Verizon, RootMetrics said, was the only carrier in any city to deliver speeds over 1 Gbit/s. Further, the firm said the carrier’s 5G median download speed of 146.1 Mbit/s was over four times faster than its 4G median download speed of 34.5 Mbit/s.
These results largely dovetail with recent findings from OpenSignal, which relies on results obtained from regular consumers as opposed to RootMetrics, which conducts its own tests directly. OpenSignal found that 5G services in the US are around 2.7 times faster than 4G LTE services.
What to conclude from all this? First, 5G is a new technology, while 4G is a much more mature technology, and therefore its performance will likely improve. Further, operators like Verizon and T-Mobile are going to have to engage in some serious work — or use other spectrum bands — to spread 5G signals beyond tiny slivers of major metro areas. (Already AT&T and T-Mobile have pledged to launch 5G in their lowband spectrum.)
However, given Sprint’s results, they probably won’t record the kinds of results that Verizon has managed over its mmWave spectrum. For example, T-Mobile has said that 5G in lower spectrum bands will provide 60-70Mbit/s download speeds.
Finally, operators in the US, South Korea and elsewhere are using the first version of the 5G standard, and future versions of the standard promise a range of fancy new features like ultra-low latency and network slicing.
But it’s clear that, here in the early days of 5G, a “fourth industrial revolution” it is not — at least, not yet.
2020 and beyond
But, according to some 5G proponents, the technology will gain steam in the months and years to come. The GSMA — the world’s largest trade organization for the wireless industry — predicted in a new report that fully 24% of connections in North America will be on 5G networks by the end of 2022, rising to 46% by 2025 — equivalent to 200 million 5G connections. [Ed. note: We’ll link to the report soon.]
And the organization said North American mobile network operators are going to spend the money to make that happen. “2019 will be the first year where 5G accounts for more than half of operators’ capex in North America, reflecting the shift from LTE to 5G deployments,” the firm wrote. “This trend will continue through 2020-2025, with 87% of operator capex in North America to be allocated to 5G by the end of the period. Between 2018 and 2025, mobile operators will invest $353 billion in capex in the US, more than in any other country.”
Finally, the GSMA reported that, during 2018, mobile technologies and services in general generated 4.2% of gross domestic product (GDP) in North America, amounting to $937 billion of economic value added. “By 2023, mobile’s contribution to the North American economy will reach almost $1.2 trillion (4.8% of GDP),” the organization wrote.
Are you a homeowner who’s recently received a notice indicating that a new small cell antenna is going to be erected on or near your property? Or a lawmaker who has received one of the industry’s new opinion papers about small cell antenna regulations? Or an FCC Commissioner who is considering small cell rule-making? Before you start citing from or buying into the pretty pictures and bright-eyed economic projections in the opinion papers below, you should know that these industry-commissioned studies do not tell the whole story:
What’s wrong with them, you ask? Plenty. Here are the top 10 things the wireless industry doesn’t tell you about small cell antennas:
#1: Despite the wireless industry’s calls for collocation using shared infrastructure, in practice, carriers apply for individual small cells instead of shared infrastructure like DAS.
Small cells are standalone individual cells that can be installed separately. They’re like miniature cell towers but without the tower. Like towers, a small cell requires both an antenna and equipment. Unlike towers though, the wireless industry likes to place the transmission equipment on the utility or other support structures. In effect, this means that the installation of small cells must either increase the visual blight of the pole or increase the diameter of the pole if the equipment is put inside.
Distributed Antenna Systems, in contrast, typically require less substantial infrastructure attached to each pole and can be more easily made to resemble street lights and signs (like the examples in #2). Common equipment can be placed within a centralized hub conveniently located underground or outside of view. Whereas small cells are single user installations, carriers can share DAS nodes. Multiple wireless service providers can share a DAS node, and multiple frequency bands (Carriers) can be facilitated on each node. This reduces the total number of sites needed and makes each site more attractive because most of the transmission equipment sits in a shared offsite DAS hub.
Given the benefits of DAS, you might wonder why the industry would prefer to build small cells instead of a constructing a DAS?There are 5 reasons – some of which are legitimately problematic for wireless carriers and some of which just require increased investment or time but aren’t beneficial to the bottom line.
Reason 1: Each wireless provider has different objectives and may not need the same locations.
Reason 2: Each wireless provider has different deployment times and requiring DAS may force one carrier to wait if others are not ready.
Reason 3: DAS systems cost more because they’re designed for the requirements of the most advanced user. So if carrier A needs feature X, even if carrier B doesn’t, then the system will include feature X.
Reason 4: DAS systems require a concentrated, coordinated effort and someone to lead it.
Reason 5: Small cells are easier to deploy. DAS applications are reviewed in total – meaning that an objection to any part of the DAS application holds up the entire request.
The result: Providers submit applications for small cells even in downtown, urban core areas where DAS makes more sense. In some cases, providers apply for permits on adjacent poles where it’s obvious that a DAS system would reduce visual clutter. Or even submit for new poles adjacent to other light/utility poles of similar height to avoid paying the rate schedules published by municipalities.
The map below shows the actual number of small cell application locations within the City of Houston by four different wireless entities. In a dense urban area like this – why not propose DAS nodes that all entities can share and decrease the number and impact of these facilities on the community?
The wireless industry needs to actually collocate rather than just talk about collocation. Furthermore, the FCC and cities themselves should mandate collocation when multi-carrier small cells are technologically feasible.
#2. The wireless industry associations want standardized federal, state, and local rules but don’t even standardize themselves.
The wireless industry demands standardization of state and local government laws related to the erection of small cells. Their opinion papers suggest that without standardization, wireless applicants will be hit with a patchwork of wireless siting regulations. So they’re putting forth a multi-pronged approach:
1. Distributing Industry-Friendly Sample Ordinances
2. Lobbying Heavily at State Level (see ALEC)
3. Submitting a Petition for Relief to the FCC (see Mobilitie)
4. Lobbying Heavily at the Federal Level
The wireless industry alleges — without providing any quantitative analysis — that most municipalities are applying costly, antiquated macrocell regulations to small cell applications. While many smaller municipalities do not have small cell policies in place at this time, that is because the wireless carriers aren’t building many small cells in smaller towns and villages. But many larger municipalities (and those where 90% of small cell deployment are occurring) have begun to implement small cell regulations or will do shortly.
At the same time, the wireless industry’s applicants can’t even submit consistent small cell applications to their municipalities. It’s blatantly hypocritical. For example, some cities report receiving location maps showing new small cells in the middle of ponds or on footbridges or in areas that are under another city or county’s jurisdiction. Some applicants are not even submitting site-specific applications – instead submitting the same drawing over and over. If the wireless industry believes that standardizing the permitting process is necessary, they should be willing to standardize their own small cell antenna configurations and requests as well. All applications should provide for and include the same information so that the municipality does not have to ask multiple times for the applicant to complete the basic information. Every application should include a structural analysis wet-stamped by a state licensed engineer demonstrating that the new pole or existing pole is structurally sufficient for the current loading. Plans should include where power is coming from and how power will be metered, or better yet be subject to an unmetered wireless rate or utilize wireless smart metering
The WIA and CTIA should encourage standardized applications and requirements among their member constituents. But we believe their approach should not just consist of lobbying states, the FCC, and local governments. These organizations should work towards drafting common application requirements and best practices for their constituent members. They should then discipline or reprimand those members that do not follow such practices. Most importantly, wireless industry associations should focus on assisting member entities in developing and using shared infrastructure.
#3. What the industry installs looks vastly different than what they say is possible.
You may remember this article that went viral where Buzzfeed compared the fast food company photos of their food vs. what the consumer actually received.
Similarly, the wireless industry’s glossy pictures show an idealized implementation that is far different from reality. Their reports showcase integrated poles with small cells contained within or Distributed Antenna Systems (DAS) nodes with an off-site equipment hub. These appear slim and attractive (relatively speaking). However, when these same wireless carriers or small cell companies submit the actual drawings and applications, the installations do not look anything like those pretty glossy pictures. Or, after they install the attractive poles, they bloat the view with additional equipment, creating a visual blight.
For example, below are photos promoted in the WIA Small Cell document. (Note these pictures are DAS nodes- not Small Cells – see #4 below)
Compare those to photos of actual small cell installations. They are nothing like the photos shown in wireless industry propaganda.
The reason for this is twofold: First, the industry likes to show pretty photos of DAS nodes because they are actual possibilities, even though the wireless carriers and tower companies are increasingly abandoning them. Wireless carriers are instead building small cells which usually have more equipment on the pole than DAS’s central hub. Second, in many cases, the applicant omit to mention a part of the equipment that’s to be mounted near or on the pole either because they’re rushed or because they don’t want to answer objections. The municipality is left holding the bag – inspecting each constructed small cell in order to confirm whether the applicant exceeded what they were authorized to install. Don’t believe this actually happens? Look below to see what the industry submitted as a photo simulation versus what was eventually installed.
#4. Once a site is erected, they can go back and increase its size ad nauseam provided that the changes do not exceed federal standards.
Once a small cell or DAS node is attached to a pole, the wireless carriers have the right under Section 6409(a) of the Middle-Class Tax Relief and Job Creation Act to expand their equipment. In other words, once a site is built, municipalities have little power to restrict further expansions of the pole’s small cell antenna equipment if the applicants stay within the limits of 6409(a). Moreover, wireless companies can request to expand an unlimited number of times. So even if a small cell starts off looking small and svelte – it could be expanded in size immediately without the municipality being able to stop the expansion. And this can happen over and over again.
Below is a photo showing what a small cell looks like after multiple expansions.
#5: The industry claims that wireless development will not occur without major policy changes. But in fact, wireless development has occurred and will continue to occur even without those changes.
Historically, the industry has made the same argument over and over again: that they will not be able to deploy infrastructure if wireless siting laws aren’t loosened. They suggest that most any regulation that slows down wireless deployment limits technological advancement. The industry puts out derisive blacklists of cities and counties that one or more wireless company believes make it difficult or expensive to deploy wireless infrastructure. They label these cities as technologically backward and lobby decision makers to convince them that their city will not grow with such technological restrictions. For example, see this quote from Gary Jabara of Mobilitie about municipalities or counties who aren’t receptive to Mobilitie’s proposals to erect 120′ mini-macro small cells in their city or county.
Nonetheless, even in expensive markets with incriminating reviews like the one above, small cell deployment still occurs. Wireless companies still build towers or even find private locations for rooftop cell sites. A quick examination of Verizon or AT&T’s coverage map will show very few holes in urban or suburban areas.
Furthermore, in most states (35 or more) wireless companies have access to utility poles which are subject to pole attachment rates prescribed by the federal government. These pole access rates are fairly reasonable; they are typically less than $500/year per pole. However, working with the utilities can be time-consuming, which is why the wireless industry is pushing for easier access to municipal poles. Isn’t it odd that wireless carriers claim to be utilities but aren’t actually using utility poles?
Even in markets like Baltimore, MD where the small cell rates are somewhat high compared to other US cities, Baltimore is still receiving small cell applications at a pace comparable to communities with closer-to-average rental rates. In other words, while the industry claims that higher rates impede technological advancement for a city, the reality is that wireless carriers still build small cell sites and many of them. While small cell deployment would likely happen quicker with revisions to regulation and cheaper access to municipal structures, make no doubt about it, the development would occur either way.
#6: The industry labels any request for cost reimbursement or rents by a municipality as a “money grab” all while the industry itself is generating $60 billion in profit per quarter.
We participated in a meeting between one city and members of one of the national wireless trade groups. The trade group decried the city’s rent requests for access to taxpayer-funded infrastructure as a “money grab.” Meanwhile, each of the wireless carriers has generated 20% profit margins or better in recent years – with at least one generating margins over 40%. The Big 4 wireless carriers alone are generating nearly $60 billion a year or more in EBITDA margin while the wireless industry combined generated $85 billion.
To argue that municipalities are money grabbing by charging a reasonable price for access to publicly-funded infrastructure by for-profit entities is disingenuous at best.
If one assumes the industry is constructing 20,000 new small cell antennas a year, even if each pole fee was $3,000/year, the wireless industry AS A WHOLE would only lose out on $60 million or less than .1% of their annual profit. Yes, you read that right,- less than 1/10th of 1 percent of their annual profit.
To put in perspective, Verizon and AT&T alone spent half that amount on lobbying alone in 2016. (see Open Secrets for AT&T and for Verizon)
These arguments seem even more duplicitous when you see the headlines put out by the wireless industry that extol the tremendous revenue opportunities from 5G and other advancements. For example:
The Qualcomm “survey,” says the 5G future will support up to 22 Million Jobs and $12 trillion dollars of goods and services.
Cisco says 50 billion things will connect to the internet. Read this article on why the hype on the number of connected devices is overblown.
CTIA citing an Accenture analysis suggests that 5G stands to create 3 million jobs in the US while yielding investment of $275 billion and encouraging GDP growth of $500 billion.
Simply put, the industry has every right to attempt to negotiate with municipalities for cheaper access to taxpayer funded and maintained municipal poles. But if they insist on making it about money, we believe those same taxpayers and municipalities should be prepared to point out the hypocrisy in their claims.
#7: The wireless industry wants to pay less for their small cell permit applications yet still receive faster review timelines from understaffed cities and counties.
Historically, we estimate that most cities rarely received more than 50 applications for new wireless sites per year from 2000-2015. Even in the boom years of 2008-2010, cities may have received just 150 applications for new wireless facilities. Contrast that to today: we have confirmed that the City of Houston received over 700 applications in 2016 alone for small cell infrastructure.
On the one hand, the wireless industry politely (or not so politely) asks for a quick turnaround on small cell antenna applications (complaining to the FCC and state representatives when they don’t get it) but then on the other begrudges municipalities for charging fees to review the applications. For those of you not entrenched in the minutia of municipal red tape, these requests for the use of infrastructure or placement of equipment are rarely identical from one application to the next. Some companies are very good at drafting thorough and complete applications, but most are not. No matter what size the project is, the items to review in each application are the same. Each site still needs to be reviewed for structural, electrical, and physical safety.
Without standardization by the industry, these applications can’t be reviewed easily. This, in turn, increases the cost to the municipality for reviewing such applications. The industry wants the best of all worlds – to submit hundreds of applications simultaneously, have those applications reviewed quickly regardless of their quality, and pay as little as possible for the city to review them.
Some members of the wireless industry have suggested that cities do not need to review the applications thoroughly as the wireless entities already do so internally. For proof of how ineffectively self-regulation works in the wireless industry, look no further than the 2007 Malibu Canyon fire which was caused by utility poles that were physically overloaded with telecommunication company antennas and equipment. Apart from safety concerns, the proliferation of poorly designed small cells can also degrade historic districts and draw noise complaints from neighbors when a carrier with loud cooling fans is mounted on a pole a few feet from a bedroom window.
#8: The wireless industry extols the wide-ranging benefits of the Internet of Things (IOT), smart cities, and self-driving cars, but fails to mention that many of these benefits can be obtained using current LTE-based technologies.
First, let’s be clear that there are absolutely many wide-ranging benefits from 5G and small cell densification. Truly mobile IOT won’t happen without wireless industry investment. No other private or public entity can or will develop sufficient wireless infrastructure in the US to enable pervasive low latency communications. Without wireless industry investment, remote control of sensitive machinery or vehicles simply won’t occur. Self-driving autonomous cars will be possible but without the gains in safety and efficiency that would occur from a truly smart network of connected cars.
However, you can get the benefits of low bandwidth, non-essential IOT or smart city sensors and functions without small cells at all (or at least with fewer of them). The CTIA (Accenture) study above cites the benefits using smart meters and smart lighting. These include traffic management systems, public transportation location-based tracking, real-time public parking information, and gun-shot recognition. These are all benefits to be gained from IOT. However, neither Accenture nor the wireless industry makes any attempt to quantify or distinguish which smart city and IOT initiatives require wireless industry involvement and which don’t.
Furthermore, these studies don’t even remotely acknowledge which IOT benefits can happen on today’s LTE networks versus those that need more robust densification of sites to occur. The wireless industry leads you to believe that you need the innovations they want to sell you to get any of these advances of the future. That is inaccurate.
#9: While the wireless industry claims densification of small cells is needed to enable smart city and IOT functions, they don’t tell you that mobile video is the primary use of small cells both now and in the future.
Cisco, in its 2017 Global Mobile Data Traffic Forecast Update, indicated that video currently makes up 60% of mobile data traffic. Moreover, they forecast that three-quarters of the world’s mobile data traffic will be video by 2021. Ericsson’s own study states that mobile video traffic represents 55% of LTE/5G data traffic now, but is expected to grow to 95% (yes- 95%) of mobile data traffic by 2021.
Cisco states further that 50 billion IOT devices will be connected to the internet within 5 years. However, only 1.5 billion of these devices will have cellular connectivity. We have seen forecasts from other sources that IOT mobile data use will grow to 8% of total network mobile data use by 2021. In other words, IOT functionality only drives less than 10% of the bandwidth need for small cell densification.
This raises the question: how many small cells are necessary to enable Smart City and IOT initiatives versus how many are really needed to densify networks for the next generation of fixed wireless to home and mobile video? For further information on why mobile and fixed wireless video is so important to AT&T and Verizon, see this article on the wireless industries efforts to compete with the cable companies.
To be clear, we aren’t suggesting that mobile video or fixed wireless are inconsequential. Without the revenue generated from mobile and fixed wireless video, the wireless industry would not have the incentive to invest as much Capex in their wireless networks to enable some of the truly amazing IOT and smart city use cases – especially those that require low latency or secure and ultra-reliable communication.
We are, though, suggesting that any indication by the wireless industry that 5G and small cell densification is primarily about IOT and smart city functions is a half-truth at best. The reality is that small cells densification is more about paid consumer and commercial video than it is about IOT or smart cities.
#10. The industry is willing to push select information about small cells but not willing to respond to substantive questions from municipalities.
Before a recent meeting began between one city and 20+ representatives of wireless and tower companies, each side exchanged questions. The wireless industry provided 30-40 questions to the city, and the city provided a list of 15-20 questions to the industry. The city’s questions were fairly straightforward:
What do the wireless providers see in terms of other cities that require rental payments?
How many small cells does the industry contemplate installing in the city over the next 5 years?
What type of infrastructure/antennas does the wireless industry expect to need on the poles?
The city responded to all the industry’s questions with substantive detail. In return, only ONE company responded to the city’s questions. And most of those responses were cop-outs – claims that they couldn’t answer due to competitive concerns. CTIA/WIA provided a glossy presentation that discussed all of the overarching benefits of IOT and 5G, but failed, for the most part, to provide any substantive and direct answers to the questions posed by the city itself.
At the end of the day, the wireless industry wanted to poke holes in the city’s effort, but was unwilling to answer important questions that would have helped the city review and revise its own policy.
How can any city reasonably be expected to plan and prepare adequately for small cell infrastructure when the wireless industry continues to provide limited substantive information?
So Where Does this Leave Us?
Municipalities need to realize that wireless investment in small cells should be encouraged and reasonably managed and that doing so requires investment in staff and resources. They can no longer put their heads in the sand because it isn’t a question of if, but of whenand of how many small cells are coming. Reactionary policies and moratoriums almost always rushed and neither encourage thoughtful technological expansion nor protect the constituents.
Wireless carriers, tower companies, and industry associations need to provide better substantive guidance to their member constituents including model applications and construction/design criteria. They should truly encourage shared infrastructure use especially in dense areas where multiple providers want access to existing poles. These groups and companies should also be more forthright in their marketing materials and in answering legitimate questions and concerns by public entities.
We, as advisors to landowners and municipalities, will continue to help educate the public about the small cell leases and policies. Most landowners and municipalities are underrepresented and ill-informed when it comes to responding to the wireless industry’s requests and/or demands. We hope that by highlighting the top 10 things the industry doesn’t tell you about small cells, that you can better decide how to accomplish your goals. That small cell deployment will not be allowed to grow unchecked and unabated by an uninformed populace.
WHAT THE INDUSTRY SAYS
The wireless industry has been pushing the fiction that small cells are the size of a pizza box. Here is a quote in a Wireless Week article–
“Americans will benefit tremendously from innovations like 5G and the Internet of Things, which require more small cell facilities – often the size of a pizza box – to build a denser network,” CTIA’s assistant vice president of regulatory affairs Scott Bergmann said. “Today’s action by the FCC recognizes the minimal impact of these facilities, but there is more work to be done. We must streamline infrastructure policies at all levels of government so that wireless providers can rapidly deliver the next generation of products and services to consumers.” (emphasis added)
Furthermore, as reported by Wireless Estimator here, “In the CTIA presentation, the trade group said that networks can now be extended on (sic) common structures like street lights and utility poles and that there will be 300,000 “pizza box-sized small cells needed in [the] next 3-4 years.”
WHAT THE INDUSTRY ACTUALLY WANTS
While some small cells are the size of a pizza box- many aren’t. The industry clearly doesn’t think so either despite their public pronouncement otherwise. In the newly proposed state legislation in 20+ states, there is language that allows the wireless industry to install up to 6 cubic feet of antennas and up to 28 cubic feet of equipment on each pole. For example, see this language from the recently passed Virginia statute.
“Small cell facility” means a wireless facility that meets both of the following qualifications: (i) each antenna is located inside an enclosure of no more than six cubic feet in volume, or in the case of an antenna that has exposed elements, the antenna and all of its exposed elements could fit within an imaginary enclosure of no more than six cubic feet; and (ii) all other wireless equipment associated with the facility is cumulatively no more than 28 cubic feet in volume, or facilities comprised of such higher limits as established by the Federal Communication Commission. The following types of associated equipment are not included in the calculation of equipment volume: electric meter, concealment, telecommunications demarcation boxes, ground-based enclosures, back-up power systems, grounding equipment, power transfer switches, cut-off switches, and vertical cable runs for the connection of power and other services.”
In other words, the industry likes to present to municipalities that small cells are the size of a singular pizza box because it makes a compelling story. However, the want to give their members the right to install substantially larger equipment than would fit in a single pizza box.
Please feel free to use this image without attribution. Also, for another good representation of what 28 cubic feet represents- see http://wireless.blog.law/2017/04/22/california-sb-649-big-lie-small-cells/.
SNL Kagan recently released their tower projections through 2025. While there was a decline in active sites during 2014 due to the site decommissioning of Nextel, Leap Wireless, and MetroPCS, SNL Kagan thinks the shrinkage will pass. A number of positive events and trends outweigh the temporary lull of carrier consolidation, including: (1) Consumer demand for mobile data has ramped up like the blade of a hockey stick and will continue to follow that path for several more years; Cisco estimates U.S. mobile data traffic will grow 7x from 2014 to 2019. (2) The recently concluded AWS-3 auction will generate an uptick in lease amendments and corresponding new equipment roll outs. A similar demand spike will follow the 600MHz incentive auction which is scheduled to start in 2016,” John Fletcher with SNL Kagan explained. Fletcher also noted that now FirstNet has the funding to build out the 700MHz band. They will create a new tenant for approximately 20,000 to 40,000 towers across the nation. “Looking back, the U.S. has experienced a wireless technology upgrade roughly every 10 years since Analog 1G premiered in 1984,” Fletcher wrote. “Prior to and following both 3G and 4G commercial launches, tower and site growth spiked, then plateaued. Our forecast for 5G (we think 5G could emerge in the early 2020’s) mirrors this pattern. While 5G standards have yet to be set, pundits anticipate it will be the first of the wireless technologies to boast throughput rates measured in Gbps.”Tower projections
FCC’s REPORT AND ORDER ON IMPROVING WIRELESS SITING POLICIES
Part 1 – Changes to Federal Rules – Exclusions from Certain Federal Requirements
The FCC’s Report and Order (the “Order”) released October 21, 2014 on Improving Wireless Facilities Siting Policies covered a lot of topics associated with local regulatory control of wireless siting issues, as well as a number of federal regulatory issues; our goal here in Part 1 is to summarize as clearly as feasible the decisions made by the FCC in this Report and Order regarding federal regulations and describe how those decisions may impact your local regulatory abilities when it comes to wireless facility siting. In Part 2, we’ll look at the issue of Temporary Towers and how the FCC deals with them relative to federal regulations, and in Part 3, we’ll deal with the rest of the Order and its impact on local regulatory siting issues.
The Order tackles a number of federal regulatory issues, particularly involving DAS (Distributed Antenna Systems) and small-cell systems.
Currently, anyone constructing a tower or wireless facility has to meet certain federal regulatory standards to comply with provisions of the National Environmental Policy Act of 1969 (NEPA) and Section 106 of the National Historic Preservation Act of 1966 (NHPA). The wireless industry asked the FCC to consider reducing or eliminating some of the NEPA and NHPA requirements for DAS and small-cell systems, because their “footprint” was much less than typical wireless facilities.
The Order makes 3 changes as it relates to NEPA regulations:
- It amends the existing NEPA categorical exclusion for antenna collocations on buildings and towers to clarify that it includes equipment associated with the antennas (such as wiring, cabling, cabinets, and backup-power equipment), and that it also covers collocations in a building’s interior,
- It amends the NEPA categorical exclusion for collocations to cover collocations on structures other than buildings and towers; and
- It adopts a new NEPA categorical exclusion for deployments, including deployments of new poles, in utility or communications rights-of-way that are in active use for such purposes, where the deployment does not constitute a substantial increase in size over the existing utility or communications uses.
NONE of these changes to the NEPA rules affect the existing RF exposure requirements in other federal regulations, which remain in full force and effect and applicable to all types of wireless facilities.
The Order then goes on to adopt two (2) new exclusions to the provisions of Section 106 of NHPA;
First, it excludes from Section 106 review collocations on utility structures, including utility poles and electric transmission towers,that meet the following conditions: (1) the antenna and any associated equipment, when measured together with any other wireless deployments on the same structure, meet specified size limitations; and (2) the deployment will involve no new ground disturbance.
Second, it excludes collocations on buildings and any other non-tower structures that meet the following conditions: (1) there is an existing antenna on the building or structure; (2) the collocation meets one of three alternative criteria for visibility, location, and size, as described in detail below; (3) the new antenna complies with all zoning conditions and historic preservation conditions on existing antennas that directly mitigate or prevent effects, such as camouflage or concealment requirements; and (4) the deployment involves no new ground disturbance.
The Order continues by saying that these two NHPA collocation exclusions are limited, however, to deployments that are not (1) inside the boundary of a historic district, or within 250 feet of the boundary of a historic district; (2) located on a structure that is a designated National Historic Landmark or is listed in or eligible for listing in the National Register; or (3) the subject of a pending complaint alleging adverse effect on historic properties. In other words, these two new targeted exclusions address collocations on utility structures and other non-tower structures where historic preservation review would otherwise be required only because the structures are more than 45 years old. In addition to these two new exclusions, the Order further clarified that the existing exclusions for certain collocations on buildings under the Commission’s programmatic agreements extend to collocations inside buildings.
The FCC said they would continue to look at adopting further exclusions but needed to study the issue further and promised further action in 18-24 months on this particular point.
After stating the exclusions above, the Order discusses how to define a “small cell” and “DAS systems”. According to the FCC;
- “Small cells are low-powered wireless base stations that function like cells in a mobile wireless network, typically covering targeted indoor or localized outdoor areas ranging in size from homes and offices to stadiums, shopping malls, hospitals, and metropolitan outdoor spaces…Because these cells are significantly smaller in coverage area than traditional macrocells, networks that incorporate small-cell technology can reuse scarce wireless frequencies, thus greatly increasing spectral efficiency and data capacity within the network footprint.”
- “A DAS network distributes RF signals from transceivers at a central hub to a specific service area with poor coverage or inadequate capacity. As typically configured, a DAS network consists of: (1) a number of remote communications nodes deployed throughout the desired coverage area, each including at least one antenna for transmission and reception; (2) a high capacity signal transport medium (typically fiber optic cable) connecting each node to a central communications hub site; and (3) radio transceivers located at the hub site (rather than at each individual node as is the case for small cells) to process or control the communications signals transmitted and received through the antennas. DAS deployments offer robust and broad coverage without creating the visual and physical impacts of multiple macrocells. Further, whereas small cells are usually operator-managed and support only a single wireless service provider, DAS networks can often accommodate multiple providers using different frequencies and/or wireless air interfaces.”
The Order then provides additional details about the NEPA exclusions discussed above before moving onto defining certain terms and their applicability to NEPA and NHPA provisions. First up was “antenna” which is entitled to certain categorical exclusions from NEPA processing. The Order clarifies that the word “antenna” for purposes of the NEPA categorical exclusion to mean “all on-site equipment associated with the antenna, including transceivers, cables, wiring, converters, power supplies, equipment cabinets and shelters, and other comparable equipment.” In particular, the Order goes into great detail to stress that the categorical exclusion also applies to backup generators that are part of an installation. The Order further clarified that this NEPA exclusion for “antennas” mounted to a building also included antennas mounted inside a building, and then broadened the exclusion to include antennas mounted to other man-made structures besides towers and buildings, like utility poles and water towers (after dismissing some municipal concerns about water safety by creating a NEPA exclusion). Finally, the Order expands NEPA exclusions by creating a new exclusion for DAS and small cell facilities located in utility or public rights of way, which:
“…covers construction of wireless facilities, including deployments on new or replacement poles, only if: (1) the facility will be located in a right-of-way that is designated by a Federal, State, local, or Tribal government for communications towers, above-ground utility transmission or distribution lines, or any associated structures and equipment; (2) the right-of-way is in active use for such designated purposes; and (3) the facility will not constitute a substantial increase in size over existing support structures that are located in the right-of-way within the vicinity of the proposed construction.”
For purposes of this new exclusion, a “substantial increase in size” means an installation that would:
(1) exceed the height of existing support structures that are located in the right-of-way within the vicinity of the proposed construction by more than 10% or twenty feet, whichever is greater;
(2) involve the installation of more than four new equipment cabinets or more than one new equipment shelter;
(3) add an appurtenance to the body of the structure that would protrude from the edge of the structure more than twenty feet, or more than the width of the structure at the level of the appurtenance, whichever is greater (except that the deployment may exceed this size limit if necessary to shelter the antenna from inclement weather or to connect the antenna to the tower via cable); or
(4) involve excavation outside the current site, defined as the area that is within the boundaries of the leased or owned property surrounding the deployment or that is in proximity to the structure and within the boundaries of the utility easement on which the facility is to be deployed, whichever is more restrictive.
The foregoing represents a summary of the changes the Order made relative to NEPA regulations and the new exclusions it created to the existing requirement of applicants to undertake Environmental Assessments when seeking to construct wireless facilities. This represents a reduction of federal regulation but doesn’t specifically address any local regulatory issues.
The Order continues by addressing NHPA and Section 106 obligations and new exclusions to those federal regulations. Section 106 requires certain wireless facilities, if they have the potential to adversely affect historic properties, to submit an Environmental Assessment, even if it wasn’t required under NEPA because of an otherwise applicable exclusion. In determining whether an application has the potential to affect historic properties, the FCC has previously established certain exclusions from Section 106 review, including collocations on towers (subject to certain exceptions) as well as buildings or other non-tower structures outside of historic districts unless: (1) the structure is inside the boundary of a historic district, or it is within 250 feet of the boundary of a historic district and the antenna is visible from ground level within the historic district; (2) the structure is a designated National Historic Landmark or is listed in or eligible for listing in the National Register; (3) the structure is over 45 years old; or (4) the proposed collocation is the subject of a pending complaint alleging adverse effect on historic properties.
With that background, the Order created a number of new exclusions from NHPA review;
- Collocations on existing utility structures, including utility poles and electric transmission towers, if: (1) the collocated antenna and associated equipment, when measured together with any other wireless deployment on the same structure, meet specified size limitations; and (2) the collocation will involve no new ground disturbance.
- Collocations on a building or other non-tower structure, if: (1) there is an existing antenna on the building or other structure; (2) certain requirements of proximity to the existing antenna are met, depending on the visibility and size of the new deployment; (3) the new antenna will comply with all zoning conditions and historic preservation conditions on existing antennas that directly mitigate or prevent effects, such as camouflage or concealment requirements; and (4) the deployment will involve no new ground disturbance.
- With respect to both of these categories—utility structures and other non-tower structures—the exclusion is extended only to deployments that are not (1) inside the boundary of a historic district, or within 250 feet of the boundary of a historic district; (2) located on a structure that is a designated National Historic Landmark or is listed in or eligible for listing in the National Register; or (3) the subject of a pending complaint alleging adverse effect on historic properties. In other words, these exclusions address collocations on utility structures and other non-tower structures where historic preservation review would otherwise be required under existing rules only because the structures are more than 45 years old.
Finally, the FCC clarified that the existing exclusions regarding collocations of wireless facilities on building for NHPA purposes also applied to wireless facilities located within buildings.
All of the foregoing is an effort by the FCC to make it easier for wireless providers to deploy infrastructure, particularly small cell systems and DAS systems, by creating exclusions to certain federal environmental and historical regulations for these types of systems. While this part of the Order does not directly impact local regulatory issues, some of the definitions in this part of the Order must be considered for inclusion in your local regulations so that there can be apples to apples comparisons when reviewing wireless facility applications.
Part 2 – Changes to Federal Rules – Temporary Towers
In Part 2, we’re going to talk about the changes the Order has made when it comes to temporary towers (sometimes called “COWs” for “cellular on wheels”).
First, some background. Many towers require registration and approval from both the FCC and the FAA. The FAA issues what is called a “No Hazard Determination” and the FCC issues an Antenna Structure Registration (“ASR”). Typically, if your tower is high enough to require a No Hazard Determination from the FAA, you also have to get an ASR from the FCC. To get an ASR, you have to jump through certain hoops.
Previously, the FCC required owners of proposed towers, including temporary towers, that require registration in the ASR system to provide local and national notice prior to submitting a completed ASR application. Typically, the ASR notice process takes approximately 40 days, as applicants must provide public notice, allow 30 days for the filing of any requests for further environmental review, and then wait for the FCC to clear the tower for construction.
There are some existing exceptions to this rule, and the wireless industry had previously asked the FCC to create an exemption for temporary towers so that they could be put up quickly either prior to a scheduled event or after an emergency situation. The FCC did previously give the industry an interim exemption from the ASR public notice requirements in 2013 for temporary towers that:
(1) would be in use for 60 days or less,
(2) required the filing of a Form 7460-1 with the FAA, (the “No Hazard Determination”),
(3) did not require marking or lighting pursuant to FAA regulations, and
(4) would be less than 200 feet in height.
In considering making the interim exemption to the ASR public notice requirement permanent in some form, the FCC in the Order looked at the situations where temporary towers were typically deployed, covering a variety of scenarios:
(1) newsworthy events that occur without any prior notice and require immediate deployments, such as natural disasters;
(2) other events that occur with less than 30 days advance notice, such as certain political events and parades for sports teams;
(3) events for which the timing and general location are known in advance, but where the specific locations for temporary towers are unknown until days before the event, such as state fairs and major sporting events; and
(4) situations in which unexpected difficulties with permanent structures require the deployment of temporary towers while permanent facilities are repaired.
After considering these issues, the Order granted a permanent exemption from the ASR public notification requirements, with certain conditions. The exemption will only be applicable to temporary towers that:
(1) will be in place for no more than 60 days;
(2) require notice of construction to the FAA;
(3) do not require marking or lighting under FAA regulations;
(4) will be less than 200 feet in height; and
(5) will either involve no excavation or involve excavation only where the depth of previous disturbance exceeds the proposed construction depth (excluding footings and other anchoring mechanisms) by at least two feet.
In addition, the Order stated that the exemption could NOT be used if the temporary tower would otherwise trigger an Environmental Assessment (“EA”) under NEPA (discussed in Part 1). For example, if the construction of a temporary tower created a hazard to migratory birds, and thus triggered the need for an EA, the applicant would still have to go through the ASR application process and provide national and local notice for the required 30 days.
The Order further clarified that temporary towers that qualified for this exemption would likewise not be obligated to provide post-construction notice in the ASR process. Previously, if you got an exemption from the pre-construction ASR notification because of an emergency, you would later have to still provide that notification and wait the required 30 day period because the temporary emergency deployment could be for an extended period of time. Since the time limit for the facilities eligible for the exemption is only 60 days (subject to extension as discussed below) the FCC saw no reason to compel post-construction notice since the tower would be gone by the time the notification period was completed.
The FCC did permit temporary towers eligible for the exemption to have a single extension of up to 60 days, and only upon a showing that the need to keep the exempted temporary tower in place beyond the initial 60 days is due to changed circumstances or information that emerged after the exempted temporary tower was deployed.
The FCC pointed out that it had several communities express concerns that a temporary towers exemption would eliminate local review (including local environmental review) and antenna structure registration requirements. It made it clear that the exemption it was adopting did neither of those things, saying:
“First, the temporary towers measure does not exempt any deployment from any otherwise applicable requirement under our rules to provide notice to the FAA, to obtain an FAA “no-hazard” determination, or to complete antenna structure registration. Nor does the exemption impact any local requirements. Further, we provide, as proposed in the Infrastructure NPRM, that towers eligible for the notification exemption are still required to comply with the Commission’s other NEPA requirements, including filing an EA in any of the environmentally sensitive circumstances identified by our rules.”
Finally, to address concerns for abuse of the rule by the wireless industry in putting up and taking down “temporary towers” every 60 days to avoid the notice requirement, the Order requires that at least 30 days must pass following the removal of one exempted temporary tower before the same applicant may rely on the exemption for another temporary tower covering substantially the same service area.
So what should be your take-away from this part of the Order?
- The exemption granted by the FCC to certain temporary towers has NO effect at all upon your local regulations, which should address temporary towers; and
- The FCC’s defined parameters of eligible temporary towers should be used by local government in defining the type of temporary towers that could be put up in your community without significant regulation, for no longer than the prescribed period of time (60 days).
Tracking the FCC’s standards in your local regulations gives you a much more defensible position when it comes to someone challenging the reasonableness of those regulations because you’ve adopted the same standards as the FCC has used.
Part 3 – The Big Lebowski – Implementing Federal Law on Local Siting
Now let’s tackle the big issues for local government in Part 3 of our breakdown of the Order. We’re going to break this up into two smaller sections, because there’s a lot of material here:
Section A – Defining the Terms
In the final portion of the Order, the FCC takes up multiple issues arising from the various federal laws and rules that have been passed affecting wireless infrastructure siting since the 1996 Telecommunications Act. For clarity purposes going forward, let’s define what we’re going to be talking about:
- Section 704 of the 1996 Telecommunications Act – this “preserved local zoning authority” but required local government to not discriminate amongst wireless providers and not block the deployment of wireless networks – we’ll call this “Section 704” throughout;
- The 2008 Declaratory Ruling by the FCC – this established at timeline for local government to process both collocation applications (90 days) and new wireless applications (150 days), which we’ll call the “Shot Clock” because everyone else does.
- Section 6409 of the 2012 Middle Class Tax Relief and Job Creation Act. This mandated that local governments shall approve and may not deny an eligible facilities request for collocation if there is not a “substantial change” in an existing “tower or base station”. But Congress failed to define many of the parameters. We’ll call this “Section 6409”. The relevant portions of text from Section 6409 is as follows: “[n]otwithstanding section 704 of the Telecommunications Act of 1996 or any other provision of law, a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station. An eligible facilities request is one that requests 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
The Order first sets its sights on defining and clarifying Section 6409, and so we’ll focus on that in this Section. After acknowledging that Congress didn’t provide a lot of guidance on what it meant by some of the terms used in Section 6409, the FCC decided to provide some definitions and rules of interpretation, saying that “that clarifying the terms in Section 6409 will eliminate ambiguities in interpretation and thus facilitate the zoning process for collocations and other modifications to existing towers and base stations.”
The FCC then started by providing definitions for:
- “wireless tower or base station,”
- “transmission equipment,”
- “collocation,” and
- “substantially changes the physical dimensions.”
Defining these terms, according to the FCC, will enable better navigation through the Section 6409 language above to determine if an application “shall be approved”.
So, what is “transmission equipment” and what is a “wireless tower or base station”? According to the FCC, “transmission equipment” for purposes of Section 6409 means ) any equipment used in connection with any Commission-authorized wireless transmission, licensed or unlicensed, terrestrial or satellite, including commercial mobile, private mobile, broadcast, and public safety services, as well as fixed wireless services such as microwave backhaul or fixed broadband.
A “wireless tower or base station” then is any infrastructure that supports equipment used for all Commission-licensed or authorized wireless transmissions.
Standing alone, this represents a HUGE expansion of the realm of possible structures that collocated wireless communications facilities could be placed on with compulsory approval under Section 6409. For example, using this language, a commercial wireless provider could argue for a Section 6409 compulsory approval of their equipment on a residential home with a amateur wireless tower on it or even a DirecTV satellite dish (the home being infrastructure supporting equipment used for Commission licensed wireless transmissions). As we’ll see later, the FCC did provide some limitation on this definition.
The Order also reaffirms that broadcasting infrastructure is also considered a wireless tower or base station for purposes of Section 6409 AND that transmission equipment includes antennas, cables, and auxiliary power equipment, such as generators.
Getting even more specific, the Order defines a “tower” as a structure built for the sole or primary purpose of supporting any Commission-licensed or authorized antennas and their associated facilities.
It defines “base station” as equipment and non-tower supporting structure at a fixed location that enable Commission-licensed or authorized wireless communications between user equipment and a communications network.
Going further, it then says an “existing base station” is a structure that, at the time of the application, supports or houses an antenna, transceiver, or other associated equipment that constitutes part of a “base station” as defined above, even if the structure was not built for the sole or primary purpose of providing such support.
The Order points out its agreement with local government’s comments that by using the term “existing,” Section 6409(a) preserves local government authority to initially determine what types of structures are appropriate for supporting wireless transmission equipment if the structures were not built (and thus were not previously approved) for the sole or primary purpose of supporting such equipment. In other words, there’s got to be some kind of equipment in place in order to support a collocation request. However, as noted above, the universe of type of equipment has expanded dramatically because of the way it has been defined.
The FCC did throw a bone to local government at the end of this part, saying
“the term “existing” requires that wireless towers or base stations have been reviewed and approved under the applicable local zoning or siting process or that the deployment of existing transmission equipment on the structure received another form of affirmative State or local regulatory approval (e.g., authorization from a State public utility commission). Thus, if a tower or base station was constructed or deployed without proper review, was not required to undergo siting review, or does not support transmission equipment that received another form of affirmative State or local regulatory approval, the governing authority is not obligated to grant a collocation application under Section 6409(a).”
In other words, a collocation application under Section 6409 has to be for a location that has at least once previously been reviewed for some type of local regulatory approval of communications services.
They went on to state that a wireless tower that does not have a permit because it was not in a zoned area when it was built, but was lawfully constructed, is an “existing” tower, finding that interpretation of “existing” is consistent with the purposes of Section 6409(a) to facilitate deployments that are unlikely to conflict with local land use policies and preserve State and local authority to review proposals that may have impacts.
Then to bring it all home, and clarify some of the definitions above, the FCC stated (when talking about the use of “existing” above) that this definition would be beneficial to local government because:
“First, it ensures that a facility that was deployed unlawfully does not trigger a municipality’s obligation to approve modification requests under Section 6409(a). Further, it guarantees that the structure has already been the subject of State or local review. This interpretation should also minimize incentives for governing authorities to increase zoning or other regulatory review in cases where minimally intrusive deployments are currently permitted without review. For example, under this interpretation, a homeowner’s deployment of a femtocell that is not subject to any zoning or other regulatory requirements will not constitute a base station deployment that triggers obligations to allow deployments of other types of facilities at that location under Section 6409(a). By thus preserving State and local authority to review the first base station deployment that brings any non-tower structure within the scope of Section 6409(a), we ensure that subsequent collocations of additional transmission equipment on that structure will be consistent with congressional intent that deployments subject to Section 6409(a) will not pose a threat of harm to local land use values.
So that’s a little bit of a relief – when we talked above about what constituted a wireless tower or base station, remember the FCC’s new definition expanded the universe of possible facilities significantly. In this final portion of the definitions of these items, the FCC clarified that only those wireless towers or base stations that have undergone zoning or some other regulatory review will be eligible for processing of Section 6409 collocations. This, however, does not change the scenario we described above, because if an amateur facility on a residential structure is granted zoning approval, in theory a commercial wireless facility could now be located on that same “tower or base station” using Section 6409. The net effect of this is that local government is going to have to more stringently regulate and approve a lot of OTHER type of infrastructure initially because of its potential to be used for commercial wireless collocations.
And speaking of collocation, the FCC then turned to the remaining definitions.
For collocation, the Order defaults back to prior FCC regulations in coming up with a definition, and said it defined:
“collocation” under Section 6409(a) as “the mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes.” The term “eligible support structure” means any structure that falls within the definitions of “tower” or “base station,” as discussed above. Consistent with the language of Section 6409(a)(2)(A)-(C), we also find that a “modification” of a “wireless tower or base station” includes collocation, removal, or replacement of an antenna or any other transmission equipment associated with the supporting structure.”
Collocation, for the purposes of Section 6409, does NOT mean only on infrastructure that already had transmission equipment installed on it. But in the same way the FCC went through its contortions to define base station and tower as being something that’s been through some sort of prior local zoning approval, the same theory applies here. As long as the structure has been through some sort of local zoning approval, putting wireless equipment on it will generally be a “collocation” for Section 6409 purposes, subject to the final standards about not substantially changing the structure.
The FCC’s final word on this is as follows: “….Section 6409(a) will apply only where a State or local government has approved the construction of a structure with the sole or primary purpose of supporting covered transmission equipment (i.e., a wireless tower) or, with regard to other support structures, where the State or local government has previously approved the siting of transmission equipment that is part of a base station on that structure. In both cases, the State or local government must decide that the site is suitable for wireless facility deployment before Section 6409(a) will apply.” Note also that the Order affirmed that removal or replacement of transmission equipment on an existing structure, AND the strengthening/hardening of the underlying structure for collocation, replacement or removal of equipment could also be an eligible facilities request and thus subject to Section 6409 compulsory approval, but that replacement of underlying infrastructure was NOT covered by this definition. And of course, any such “strengthening” or “hardening” of the structure would have to not constitute a “substantial change” to be eligible.
Which takes us to the definition of “substantially change” as used in Section 6409. The Order looked to the existing 4 part FCC definitions of that term, and unbelievably, actually made them more complicated; Under the new FCC definition;
“Specifically, and for the reasons discussed below, we provide that a modification substantially changes the physical dimensions of a tower or base station if it meets any of the following criteria:
(1) (a) for towers outside of public rights-of-way, it increases the height of the tower by more than 10%, or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater; (b) for those towers in the rights-of-way and for all base stations, it increases the height of the tower or base station by more than 10% or 10 feet, whichever is greater;
(2) (a) for towers outside of public rights-of-way, it protrudes from the edge of the tower more than twenty feet, or more than the width of the tower structure at the level of the appurtenance, whichever is greater; (b) for those towers in the rights-of-way and for all base stations, it protrudes from the edge of the structure more than six feet;
(3) it involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed four cabinets;
(4) it entails any excavation or deployment outside the current site of the tower or base station;
(5) it would defeat the existing concealment elements of the tower or base station; or
(6) it does not comply with conditions associated with the prior approval of construction or modification of the tower or base station unless the non-compliance is due to an increase in height, increase in width, addition of cabinets, or new excavation that does not exceed the corresponding “substantial change” thresholds identified above. We further provide that the changes in height resulting from a modification should be measured from the original support structure in cases where the deployments are or will be separated horizontally, such as on buildings’ rooftops; in other circumstances, changes in height should be measured from the dimensions of the tower or base station inclusive of originally approved appurtenances and any modifications that were approved prior to the passage of Section 6409.
Simple, right? It’ll be so easy now to determine if a proposed wireless facility modification constitutes a “substantial change” that makes it ineligible for Section 6409 approval.
Putting aside the sarcasm above, the Order took the existing definition and layered new subparts to it, removed some exceptions, and added two new conditions.
First, for purposes of measuring height and width of modifications, you now have two different standards, depending on whether the existing infrastructure is within a public right of way or not. The stricter parameters for structures within a right of way were imposed to provide greater protection to aesthetics and safety within rights of way. The FCC made a point of stating that these standards would apply to infrastructure that either was built for communications purposes or not, so for example a existing light stanchion and a new DAS pole in the same right of way would be subject to the same standards for determining if a change to either was “substantial”.
The Order removed prior exceptions to these height and width limits that existed for interference or weather related reasons and allowed changes in excess of these dimensions to NOT be considered “substantial” for those specified reasons. The FCC said there was no longer any justification for such exceptions.
And most importantly, those height and width changes are measured from the original locally approved wireless infrastructure facility, and not from any interim modifications or changes that may have transpired.
The Order clarified that for the “excavation” component of the test, the word “site” would mean, for towers outside of a public right of way, the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site. For towers within a right of way and all base stations, “site” would mean the “…area in proximity to the structure and to other transmission equipment already deployed on the ground.”
Finally, the Order added two new elements to the definition of “substantial change”. One is if the modifications have the effect of defeating or diminishing the concealment aspects of an existing facility, it will be a “substantial change”. That seems pretty simple and noncontroversial, and both local government and industry seemed in agreement about that factor. The second new element is more complicated; The FCC said it was agreeing with local government’s comments:
“…that a change is substantial if it violates any condition of approval of construction or modification imposed on the applicable wireless tower or base station, unless the non-compliance is due to an increase in height, increase in width, addition of cabinets, or new excavation that does not exceed the corresponding “substantial change” thresholds we identify above. In other words, modifications qualify for Section 6409(a) only if they comply, for example, with conditions regarding fencing, access to the site, drainage, height or width increases that exceed the thresholds we adopt above, and other conditions of approval placed on the underlying structure. This approach, we find, properly preserves municipal authority to determine which structures are appropriate for wireless use and under what conditions.”
So what does that new standard mean? Well, supposed you have previously approved a non right of way tower to be constructed at 100 feet and approved it conditioned upon it not being able to be increased in height more than 10 feet. A Section 6409 eligible request to collocate and add 20 feet to the tower is made. Since that exceeds your prior conditions (10 feet) but does not violate the “substantial change” standards (10% or 20 feet, whichever is greater), this would NOT be a substantial change, assuming all other factors met the test as well. Now suppose you allowed a 100 foot tower to be built in the same circumstances, but with a 30 foot increase height limitation. A request for collocation to add 30 feet to the tower would ordinarily exceed the “substantial change” definition of 10% or 20 feet and thus would NOT be eligible under Section 6409, but because you allowed an increase to 30 feet, it would still be eligible under Section 6409 because you agreed to broaden the standards when originally approved.
The Order affirms that these standards apply equally to legally nonconforming structures in your jurisdiction. They too will be eligible for Section 6409 modifications.
Finally, the FCC pointed out that wireless facility modifications under Section 6409 should remain subject to building codes and other non-discretionary structural and safety codes. In particular, they clarified that Section 6409 does not “preclude States and localities from continuing to require compliance with generally applicable health and safety requirements on the placement and operation of backup power sources, including noise control ordinances if any.”
What does this mean for you as a local government? Well, first and foremost, even if you recently updated your regulations, you’re going to have to edit them again since the definitions have all changed. Secondly, and more importantly, because of the broadening of the definition of “tower” and “base station” by the FCC, you are going to have to review and regulate in much greater detail a much broader swath of infrastructure in terms of its initial construction because of its potential to now be used for commercial wireless infrastructure. That means, for example, you may need to now regulate amateur radio operators who ordinarily enjoy a limited federal preemption from regulation (PRB-1, adopted by most states as a statutory preemption) to preclude use of their non-commercial amateur facilities as commercial wireless infrastructure under Section 6409….And they aren’t going to be happy about that.
Section B(1) – Time to Act and Remedies for Inaction
To paraphrase Steve Miller, “time keeps on ticking…ticking…into the future”. Having established the definitions needed to determine if an application could be processed using Section 6409, the Order then turned to what applicable timeline should be used for the process.
The Order first acknowledged that applications must be provided to local government from parties claiming Section 6409, so that local government has the opportunity to review applications to determine whether they are covered by Section 6409, and if not, whether they should in any case be granted. However, the Order said that (1) the information to be provided in these applications will be limited and (2) the time for review of these applications will be limited.
With respect to application content, the Order says that “local governments may only require applicants to provide documentation that is reasonably related to determining whether the request meets the requirements of [Section 6409].” The Order does NOT say what those reasonably related documents might be, rather that “local governments have considerable flexibility in determining precisely what information or documentation to require…” but that local government “may not require documentation proving the need for the proposed modification or presenting the business case for it.”
As to timeline, the Order SHORTENS the prior 90 day collocation timeline under the Shot Clock to 60 DAYS for Section 6409 applications. Local government can toll the 60 day clock by giving notice to the applicant within the first 30 days of incompleteness of their application, but the notice must specify the missing information and supporting documents that are reasonably related to determining whether the request meets the requirements of Section 6409. The clock will start again when the applicant re-submits, but can be tolled again if the local government gives notice within 10 days of the resubmission of continued missing material. The Order clarifies also that the 60 day clock for Section 6409 applications continues to run even if your community enacts a moratorium. IF, after reviewing a proposed Section 6409 application, you determine that it isn’t eligible for Section 6409 processing because it constitutes a “substantial change” as the Order has now defined that term, then the 90 day timeline from the Shot Clock ruling kicks in, starting from the day you decide the application is not Section 6409 eligible, and you have to process the collocation or modification application under the Shot Clock.
As to what happens if you don’t act on a Section 6409 application within 60 days (subject to the tolling provisions above), the Order adopts a “deemed granted” remedy. The Order said Congress was clear in using the “shall approve, and may not deny” language in Section 6409 that if the application is eligible, it must be approved. Thus in the FCC’s opinion the “deemed granted” remedy is the only correct choice, though it did add that “…deemed grant does not become effective until the applicant notifies the reviewing jurisdiction in writing, after the time period for review by the State or municipal reviewing authority as prescribed in our rules has expired, that the application has been deemed granted.”
Although the Order adopts this remedy, it suggests that this remedy isn’t necessarily the last word on the subject. Acknowledging that judicial determination may be necessary, the Order goes on to say:
“…Accordingly, we require parties to bring claims related to [Section 6409] in a court of competent jurisdiction. Such claims would appear likely to fall into one of three categories. First, if the State or local authority has denied the application, an applicant might seek to challenge that denial. Second, if an applicant invokes its deemed grant right after the requisite period of State or local authority inaction, that reviewing authority might seek to challenge the deemed grant. Third, an applicant whose application has been deemed granted might seek some form of judicial imprimatur for the grant by filing a request for declaratory judgment or other relief that a court may find appropriate.”
In making that determination, the Order said that …. “a State or local authority may challenge an applicant’s written assertion of a deemed grant in any court of competent jurisdiction when it believes the underlying application did not meet the criteria in [Section 6409] for mandatory approval, would not comply with applicable building codes or other non-discretionary structural and safety codes, or for other reasons is not appropriately “deemed granted.”
So the takeaway from this part of the Order is that Section 6409 applications must be tailored to request permissible information and then must be acted upon quickly in order to avoid a “deemed granted” remedy. This will require local government to change regulations and procedures to avoid the “deemed granted” pitfall. Even with all of that, you will still have the opportunity to go to court to challenge a Section 6409 application.
Section B(2) Government as Landlord
The Order continues by pointing out that Section 6409 applies only to local government in its regulatory capacity and NOT as a landlord. Should you choose in your capacity as a landlord to limit the number and type of applicants on your public property infrastructure, you will not be burdened by Section 6409.
Section B(3) Effective Date
The Order did acknowledge that the changes it was implementing would require changes in local government’s procedures, and so the Order’s new rules don’t take effect until 90 days after publication of the Order in the Federal Register. That has not yet happened, so the earliest effective date will be sometime in early 2015 for these new rules.
Section B(4) “Complete” Applications
Having tackled the big issues, the Order did some housekeeping matters that are somewhat important.
First, as it relates to Section 704 and the Shot Clock ruling, the Order sought to provide clarity as to some issues.
Previously, the Shot Clock timeline was considered to have started running when an application was deemed “complete”. But the Order says that is a wrong interpretation. The Shot Clock timeline starts when the application is SUBMITTED. Local government can then “stop” the clock within the initial 30 days by saying the application is incomplete. The time starts running again when the applicant re-submits with the missing information. Local government can then “stop” it again within 10 days of resubmission by again identifying missing information, and it will again start running upon the 2nd resubmission. After that you can’t stop the clock because of incompleteness.
In order to stop the clock, local government’s request for additional information “must specify the code provision, ordinance, application instruction, or otherwise publically-stated procedures that require the information to be submitted.” Beyond that guidance, the Order declined to further elaborate on what made a “complete” application.
Section B(5) Moratoria
Just as noted in the discussion above regarding Section 6409’s 60 day shot clock, moratoria will likewise not stop the timeline of days for “substantial change” collocations (90) or new towers (150) under the Shot Clock ruling. The Order finds that any
“…moratorium that results in a delay of more than 90 days for a collocation application or 150 days for any other application will be presumptively unreasonable.”
If that happens and an applicant goes to court to force a decision because you’ve not met the Shot Clock timelines, a court is going to look to the FCC and this Order to determine if your moratoria is reasonable and you’re going to have to prove how and why it was reasonable. The Order also declined to rule that a moratorium in excess of 6 months was a per se violation of the obligation to act in a reasonable time, leaving that decision up to the courts as well.
Section B(6) DAS & Small Cells
Continuing its grab bag of rulings, the Order rolls on to discuss the applicability of Section 704 and the Shot Clock to DAS & Small Cell installations. The Order makes clear that both of those regulations apply to DAS and Small Cell facilities, including third party facilities that serve as neutral host DAS deployments. So long as the installation is part of “ …the provision of personal wireless services, their siting applications are subject to the same presumptively reasonable timeframes that apply to applications related to other personal wireless service facilities.”
Section B(7) Section 704/Shot Clock Definition of Collocation
Moving along to more esoteric material, the Order then considered how to define collocation for purposes of Section 704 and the Shot Clock (as opposed to Section 6409). Remember that for purposes of determining which Shot Clock timeline (90 or 150) to follow, a collocation was defined to mean placing an antenna on an existing structure as long as it did not involve a “substantial increase….in size” as that was defined in other FCC documents.
After first considering adopting the same test as it did above for Section 6409 collocations, the FCC rejected that approach as being too stringent for the Shot Clock purposes. For Section 6409 purposes, the definition was to determine if a local government “shall approve, and may not deny” an application, and thus it needed to be very refined. For the Shot Clock purposes, the FCC decided to keep the original standard it had applied in the Shot Clock proceeding, which is the 4 part standard starting with 10% or 20 foot height increase that you should all be familiar with and should have already integrated into your regulations.
What this means is separate definitions in your regulations for Section 6409 eligible applications and other traditional collocations that are not Section 6409 eligible.
Section B(8) Preferences for Deployments on Municipal Property
In an important nod to local government, the FCC said in the Order that it would NOT find establishment of a preference for siting on public property in local regulations to be a per se violation of Section 704’s requirements to not discriminate amongst providers. The Order said while some preferences coupled with onerous regulations could have that effect, those decisions would have to be made on a case by case basis.
As we frequently advocate for establishing preferences on public property (because you can control deployment better as a landlord than as a regulatory entity), the preservation of this ability is an important tool for local government.
Section B(9) Remedies for Shot Clock violations
Finally, the FCC considered whether to change the remedies available for applicants who don’t get action on their applications within 90 or 150 days, as applicable, under the Shot Clock ruling. The FCC decided NOT to adopt the “deemed granted” remedy it gave in the Section 6409 context but rather preserve the existing remedy for the applicant to go to court and ask for expedited review of the local government’s failure to act, which the FCC said seems to have worked adequately so far.
Thankfully, the FCC called it quits at that point, having addressed all of the issues which it said it would consider when it first issued the Notice of Proposed Rulemaking. The FCC considered hundreds of comments from both industry and local government in coming to its findings. Although clearly not everyone is happy about the Order, the FCC did at least clarify a number of murky items that led to different results in different jurisdictions because of different interpretations of what Congress or the FCC “meant” in some of its language.
It is entirely possible that the Order will be challenged by parties in court, much like the Shot Clock was all the way up to the US Supreme Court. However, based on the deference that the Supreme Court gave the FCC in the Shot Clock case, we suspect these new rules will likely stick around until the FCC decides to tweak them further, which may happen sooner than later given some of the changes made here, in particular the expansion of the universe of “eligible facilities” that can support Section 6409 collocations. We think that may have some unintended consequences that may cause the FCC to revisit that issue.
Look for information soon on a webinar we’re going to put together to try and cover the highlights of the Order in an hour long presentation. Of course, should you have any specific questions, we’re always available to assist.
Thanks for staying on the ride until the end. Please check that you’ve taken all your belongings before departing the train.
As we have mentioned before the FCC is soliciting comments for the Notice of Proposed Rule Making “Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies.”
Below are our sample comments in response to this NPRM in an attempt to protect local authority. Please feel free to use all or in part any of our comments.
Click here to download to your computer: Sample Comments FCC NPRM
For the full FCC document right click to save on your computer: FCC NPRM doc
- Once you access the ECFS system, select “Submit a Filing” on the left side of the page, then fill in the Proceeding Number with 13-238 and complete the remainder of the information on that page
- Then upload your Comments (preferably in Acrobat PDF format) by following the instructions
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