Small Cells Aren’t Like a Pizza Box

Repost

Pizza Box Small Cells
Number of Pizza Boxes that Fit in 6 Cubic Feet or 28 Cubic Feet

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/.

Tower Projections

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

Supreme Court rules on T-Mobile v City of Roswell

The Supreme Court waded into Section 704 of the 1996 Telecommunications Act yesterday and released a decision concerning how and when a local government denies an application for a wireless facility.
In the case before the Court, T-Mobile sued Roswell, Georgia after it denied a tower application and sent a written denial letter after the hearing telling T-Mobile to read the transcript of the hearing if it wanted the reasons for the denial. The city then released the transcript of the meeting 26 days after the hearing.
As those astute readers know, the standard in Section 704 is that a denial “shall be in writing and supported by substantial evidence contained in a written record.” If an applicant doesn’t agree with a denial, they have to file suit within 30 days of the issuance of the denial to preserve their appeal rights.
After considering the facts and the law, the Supreme Court came to the following conclusion:
“Thus, we hold that the Act requires localities to provide reasons when they deny cell phone tower siting applications, but that the Act does not require localities to provide those reasons in written denial letters or notices themselves. A locality may satisfy its statutory obligations if it states its reasons with sufficient clarity in some other written record issued essentially contemporaneously with the denial. In this case, the City provided its reasons in writing and did so in the acceptable form of detailed minutes of the City Council meeting. The City, however, did not provide its written reasons essentially contemporaneously with its written denial. Instead, the City issued those detailed minutes 26 days after the date of the written denial and just 4 days before petitioner’s time to seek judicial review would have expired. The City therefore did not comply with its statutory obligations.”
So the takeaway from this is that IF you are going to deny an application, you should put your decision in writing, and provide the reasons for the denial, or if you are going to simply reference the hearing transcript, you need to make sure that transcript is available “essentially contemporaneously” with the denial letter. How long is that? Well, its not 26 days later. Would a week later be “essentially contemporaneous”? The Court doesn’t say.
Chief Justice Roberts and Justice Thomas dissent from the majority with, frankly, better reasoned construction of the statutory language. The majority imposes this new standard of “essentially contemporaneously” that isn’t found anywhere in Section 704. The dissenting justices argue that imposition of this new requirement, while not burdensome, could trip up smaller communities in the future, and is not necessary since it isn’t part of the statutory language.
Nevertheless, this is now the law of the land as interpreted by the Court, so you’ll need to take it into account when considering a denial of an application.
The full text of the Court’s opinion (and dissents) can be found here:

Part 4 of 4 of our summary of the FCC’s September Notice of Proposed Rulemaking (“NPRM”) on “Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies

As we noted in our previous three summaries, the FCC is proposing new rules on wireless siting issues that may impact local government’s ability to regulate the placement of these facilities.

In Part 4 of the NPRM, the FCC expands upon some of the questions it touched upon in Part 3, in the context of timelines for adjudicating collocation applications, to address the timeline question for all wireless applications, both collocations and new facilities, and what happens under that timeline.  As before, some background is required.

In Section 704 of the 1996 Telecommunications Act, Congress said that local government should act upon applications for all types of wireless facilities within a reasonable period of time, and that an applicant aggrieved by a local government’s action or inaction could go to court to enforce Section 704.

In 2008, the wireless industry petitioned the FCC to define what was a “reasonable period of time.”  What resulted was the 2009 “Shot Clock” ruling, in which the FCC found that in states that did not otherwise already have a state law on the issue, an application for a collocation should be acted upon in 90 calendar days and a new facility within 150 calendar days.  The “Shot Clock” ruling noted some states had shorter timelines (for example, in Florida, you have 45 business days to act on a collocation application.)

Understandably, some local governments did not like the FCC sticking its nose into their business, and the cities of Arlington and San Antonio TX, among others, took the FCC to court arguing that it did not have authority to impose a timeline on when they had to act.  Ultimately the case ended up before the US Supreme Court, which decided this past June that the FCC did, in fact, have authority to impose the Shot Clock on local government.

Having received the Supreme Court’s blessing for its authority to impose the Shot Clock, the FCC in Part 4 of the NPRM turned to addressing what should happen if a local government failed to meet the Shot Clock timelines in processing an application.

Under the Shot Clock ruling, failure to meet those timelines meant that the applicant could go to court and seek a judicial decision that their application should be granted.  But the FCC noted that such a remedy isn’t really helpful because of the time it takes for a case to wind its way through the judicial system.

So the NPRM, while stressing that it isn’t intending to revisit the issues it decided in the 2009 Shot Clock ruling, invites comment on six issues associated with same that could stand some clarification:

  1. Definition of collocation – under the Shot Clock, “collocations” have to be acted upon within 90 days – how should that be defined?  Should that mean collocations that are not “substantial changes” like in Section 6409(a) or any collocation whatsoever?
  2. Completeness of Application – under the Shot Clock, the time doesn’t start to run until an application is deemed “complete” (as long as the local government asked for additional info within 30 days of initial application).  The NPRM asks if it should clarify what “complete” means and when the clock should start running.
  3. Moratoria – The NPRM seeks comment on what happens to the Shot Clock if a local moratorium precludes making an application (thus preventing the clock from ever starting).  Since the Shot Clock ruling did not address moratoria, the NPRM wants comments on how that should be addressed.
  4. Applicability of the Shot Clock to DAS facilities.  Way back in Part 1 of this we discussed DAS/Small Cells and the NPRM’s proposals to exempt them from certain federal regulations.  In Part 4, the NPRM asks if DAS/Small Cells should be subject to the Shot Clock timeframes.  The NPRM preliminarily concludes that they should but requests comment on that conclusion.
  5. Preferences for municipal siting.  The wireless industry alleges that ordinances that create a preference for siting on public property over private property constitute “unreasonable discrimination” under Section 704 of the 1996 Telecommunications Act.  The NPRM wants comments on whether those preferences create discrimination in siting.  This is a very important item to comment upon to the FCC.  Local government that does express a preference in its regulations for siting on public property, in order to better plan and control the placement of wireless infrastructure in its community, would be severely harmed by a finding that such preferences in local ordinances are discriminatory.
  6. “Deemed Granted” remedy.  The NPRM wants comment on whether it should change the remedy for violations of the Shot Clock.  Now, an aggrieved applicant has to go to Court and get a judicial determination that it should be entitled to construct because the local government did not meet the Shot Clock.  The wireless industry wants the FCC to rule that if you don’t make a decision within the Shot Clock timeline, the application is “deemed granted” and you have no further say over its construction.  The FCC wants to know what you think about that idea and whether or not they even have the authority to make that the rule.

Responses to these items in Part 4, along with those regarding collocations in Part 3, should at a minimum be part of your community’s comments to the FCC.  Because of the federal shutdown and newly reopening we don’t have a timeline right now to file comments with the FCC, but we’ll post information once the timeline for comments is established and also instructions on how to file the comments electronically through the FCC’s ECFS (electronic comment filing system.)

For right now, please route this 4 part summary to your city or county attorney so they can help you prepare comments for filing with the FCC.  As we mentioned earlier, the timeline for filing will be 60 days from publication of the NPRM in the Federal Register, so once that date is established, we’ll let you know the deadline.

Click here for 4 part summary as one document.

Click here for entire FCC document.

Part 2 of our 4-part discussion of the FCC’s recent Notice of Proposed Rulemaking (“NPRM”)

“Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies.”

As we noted in Part 1, the FCC is proposing new rules on wireless siting issues that may impact local government’s ability to regulate the placement of these facilities.

Part 1 discussed proposed new federal rules for the siting of DAS/Small Cell facilities, either as collocations or as new facilities.

Part 2:  Proposes rules for the siting of temporary towers, and is the section least affecting local government.

The NPRM proposes to permanently exempt “temporary” towers from the environmental review, historical review, and federal antenna structure registration requirements provided the structures meet certain requirements.

By way of background, most antenna structures require (in addition to the environmental review and historical review that we’ve talked about) registration with the FAA and FCC (Antenna Structure Registration,) to ensure that structures of certain heights are painted and illuminated to avoid creating a hazard to aviation.

“Temporary” towers become necessary when there are large crowds gathered for events, weather disaster areas or miscellaneous reasons. At the wireless industry’s prior request, the FCC had granted an interim waiver to exempt temporary facilities from environmental review if they are up for less than 60 days, require notification to the FAA, do not require lighting or painting, are less than 200 feet in height, and involve little or no excavation.   The NPRM proposes to make that interim waiver (and its standards) permanent.

The FCC asks if the standards are reasonable, in particular the 60-day limitation.  Many jurisdictions that address temporary structures use 60 days as a measuring stick, so the FCC’s proposal for 60 days appears to be reasonable and consistent with many local regulations.

The NPRM does ask what the FCC should do if the “temporary” facility ends up being needed more than 60 days – think about the facilities that had to be built after Hurricane Sandy in NJ last year, and the timeline for replacing the permanent infrastructure that was destroyed.  Should those “temporary” facilities then have to go through the environmental and historical review process?

Next up are the two sections of the NPRM that most affect local government – Part 3, which discusses implementing Section 6409(a) of the 2012 Middle Class Job Creation and Tax Relief Act (now found at 47 USC Section 1445(a)) relating to wireless applications that local government MUST approve, and Part 4, dealing with the FCC “shot clock” and what happens to wireless applications that aren’t addressed in the shot clock window.

Click here for the entire FCC Document

Samsung Announces 5G Technology Advancement

This recent news item caught our attention from the New York Times Technology Section:

By 

Published: May 13, 2013
SEOUL — Samsung Electronics said Monday it had made a key breakthrough in developing mobile technologies for so-called fifth-generation networks that would provide data transmission up to several hundred times faster than the current fourth-generation, or 4G, technology.

News from the technology industry, including start-ups, the Internet, enterprise and gadgets.

The breakthrough helped Samsung overcome limitations in transmitting large volumes of data over long distances using a broad band of frequencies, the company said in a news release. Samsung, the world’s biggest maker of mobile phones, said it would accelerate the research and development to commercialize those technologies by 2020.

“Samsung’s latest innovation is expected to invigorate research into 5G cellular communications across the world,” the company said. “The company believes it will trigger the creation of international alliances and the timely commercialization of related mobile broadband services.”

Once commercialized, 5G mobile technology will allow users to transmit huge data files, like high-quality digital movies, “practically without limitation,” it said.

The European Union announced earlier this year a plan to invest €50 million, or $65 million, in research to deliver 5G mobile technology by 2020.

OUR VIEW:

As we have repeatedly said, faster speeds and more services are what wireless will provide in the future….this is an expected development, using a different part of the radio spectrum, but be assured that this means more overall spectrum being deployed and that means more infrastructures will need to be built.   So READY or NOT…Here they come!