Part 3 of 4: FCC’s September Notice of Proposed Rulemaking (“NPRM”) on “Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies.”

This is Part 3 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”.

Part 3 of the NPRM directly affects your ability to regulate the placement of wireless infrastructure, and you should, if nothing else, respond to this part of the NPRM with comments to the FCC. 

Before we get to the meat of the matter, we need to cover a little background and history.  Remember back in Part 1 we discussed briefly the National Programmatic Agreement (the “NPA”), which exempted certain collocations from environmental and historical reviews (at the federal level) if they met certain criteria, including not “substantially changing” the size of existing infrastructure when collocating.

The NPA also gave parameters to what would constitute a “substantial change” so that you could determine if you needed to undertake NEPA(environmental) or NHPA (historical) review or were eligible for the exemption.

In 2012, the wireless industry was able to have Congress include a little paragraph in the 2012 Middle Class Job Creation and Tax Relief Act, known as Section 6409(a), which says that “notwithstanding section 704 of the Telecommunications Act of 1996 [codified as 47 U.S.C. § 332(c)(7)] 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.”

It goes on to define the term “eligible facilities request” as any request for modification of an existing wireless tower or base station that involves

(a)  collocation of new transmission equipment;

(b)  removal of transmission equipment; or

(c)  replacement of transmission equipment.

Finally, Section 6409(a) says that notwithstanding the above language, it shall not be construed to relieve the FCC from the requirements of the NHPA or NEPA.

Congress didn’t bother to define any of the terms contained in Section 6409(a) apart from what an “eligible facilities request” was.

In partial response to enactment of Section 6409(a), the FCC’s Wireless Bureau came out with “informal guidance” in January 2013 for local government to assist in interpreting what Congress meant by Section 6409(a).

In the “informal guidance” the Bureau took the NPA’s definition of “substantially change” and said that definition is what Congress intended to use, so that wireless collocations that did NOT meet the “substantially change” threshold would have to be APPROVED by local government.

The NPA definition of “substantially change is:

1)    the mounting of the proposed antenna on the tower would increase the existing 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, except that the mounting of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to avoid interference with existing antennas; or

2)    the mounting of the proposed antenna would involve the installation of more than the standard number of new equipment cabinets for the technology involved, not to exceed four, or more than one new equipment shelter; or

3)    the mounting of the proposed antenna would involve adding an appurtenance to the body of the tower that would protrude 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, except that the mounting of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to shelter the antenna from inclement weather or to connect the antenna to the tower via cable; or

4)    the mounting of the proposed antenna would involve excavation outside the current tower site, defined as the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site.

If the collocation causes at least one of the items above to be met, then it is a “substantial change” under the NPA.

That then brings us to the NPRM, and in Part 3, the FCC seeks to define all of those terms that Congress used but did not define in Section 6409(a), so as to avoid different interpretations based on judicial decisions, local interpretations, and other factors.

The NPRM also asks if, should the FCC define these terms and override local regulations that differ, there should be a timeline to phase in the federal rule to allow local government to revise their rules to harmonize with the federal rule.

The NPRM also notes that some states have enacted state laws that also create a streamlined approval process, some of which have different standards (specifically North Carolina….)

The NPRM asks for comments on how to define the terms Congress used in Section 6409(a).

For example, Verizon suggests that “existing wireless tower or base station” includes any structure, irrespective of whether it has communications equipment already or not.

With that definition, almost anything could be defined as a “collocation” which must be approved by local government under 6409(a) – building, streetlight, water tank, billboard, steeple.

It is imperative that local government file comments on how to define these terms to ensure that “collocations” are defined properly as additions to existing wireless infrastructure.

The NPRM also wants to know about “removal” and “replacement” definitions, since replacements of equipment that don’t substantially change the structure also are supposed to have mandatory approval.  As many applications we see now involve a provider upgrading/replacing equipment, particularly 4G installations, these definitions are also key to retaining some level of local regulation.  Most importantly, the NPRM asks if they should adopt the NPA definition of “substantially change” for Section 6409(a), and if so, what about situations where there are sequential incremental modifications which individually do not meet the “substantial change” definition but collectively do?

At what point could local government say the change is now “substantial” and mandatory approval is not required?  In addition, the NPRM asks if it should use different standards for concealed facilities.

Once past the definitions issue, the NPRM then tackles the question of what Congress meant by “may not deny and shall approve” and how to implement that language.

The FCC does tentatively conclude that the Section 6409(a) language applies to local government in a regulatory capacity and not as a landowner, so, for example, if you have a municipal tower and are leasing space to a wireless provider and another provider wants to collocate, or the existing provider wants to modify its facilities, you aren’t bound to approve that request as the landlord by Section 6409(a).

However, in your regulatory capacity, the FCC wants to know your thoughts “on whether, by directing that States and localities “may not deny and shall approve” covered requests, Section 6409(a) requires States and localities to approve all requests that meet the definition of eligible facilities requests and do not result in a substantial change in the dimensions of the facility, without exception and/or discretionary review.

 

We also seek comment on whether there are any special circumstances under which, notwithstanding this unqualified language, Section 6409(a) would permit a State or local government to deny an otherwise covered request.

 

We further seek comment on whether States and localities may make the grant of a covered request subject to conditions on or alterations to the request. If so, what types of conditions or alterations may they require that would be consistent with Section 6409(a)? In particular, we seek comment below on whether and/or to what extent States and localities may require any covered requests to comply with State or local building codes and land use laws and whether States and localities are required to approve an otherwise covered modification of a tower or base station that has legal, nonconforming status or that does not conform to a condition or restriction that the State or locality imposed as a prerequisite to its original approval of the tower or base station.“

 

The NPRM also wants to know to what extent you as the local regulator may require any covered requests to comply with State or local building codes and land use laws.

1)    For example, must you grant a facilities modification request that would result in an increase in height above the maximum height permitted by an applicable zoning ordinance?

2)    Can you require a modification or collocation to be in compliance with general building codes or other laws reasonably related to health and safety such as load-bearing limits on applications that otherwise meet the standard for approval under Section 6409(a)(1).

3)    Can you condition the approval of a modification on the underlying structure’s compliance with the hardening standards under TIA-222 Revision G, Structural Standards for Antenna Supporting Structures and Antennas?

4)    What about your ability to deny an application for an otherwise covered modification if the structure, as modified, would not meet the fall zone or setback distance that your ordinance requires?

5)    What about facilities that were originally approved as concealed but the modifications proposed would diminish that concealment – do you have to approve those under Section 6409(a)?

As you can see, the FCC wants input from local government on all of these issues and it is in your interest to provide that input.  The NPRM also concludes, consistent with the January 2013 Informal Guidance, that Section 6409(a) does not preclude local government from requiring an application to be made by a provider seeking approval for a collocation or modification of an existing facility.

In fact, the FCC notes that the only way you can determine IF the proposal meets the Section 6409(a) requirements is to accept an application and review the information contained in it.

The NPRM also solicits comment on what should (and should not) be required to be provided as part of the application process, and also whether an application, once determined to be eligible under Section 6409(a), should be administratively approved or if it still can go before some sort of board or hearing for approval (keeping in mind the requirement that it must be approved).

The final portion of Part 3 of the NPRM deals with what happens once an application under Section 6409(a) is made.

The FCC wants to know if 90 days (the FCC’s “shot clock” timeline for collocation application processing”) is a sufficient timeline to approve these requests, or if a shorter timeline is appropriate given the fact that you must approve the application.

What happens if you enact a moratorium on all applications (to prevent applicants from making an application that has to be approved?)  The NPRM proposes that a moratorium will not have any effect on whatever timeline is adopted to approve these requests.

Finally, the NPRM’s last avenue of inquiry in Part 3 is what happens if local government fails to act on an eligible request within 90 days or whatever timeline standard is adopted.  Does the applicant go to court (as currently required under similar shot clock circumstances) to get their permit or should the application be “deemed approved” if not adjudicated in the required time, and if so, whether that conclusion effectively preempts all local regulation and raises 10th amendment constitutional issues about federal/state law. 

The FCC suggests as a solution that an aggrieved applicant file a Petition for Declaratory Ruling with the FCC alleging the local government’s failure to comply with Section 6409(a), and the FCC would then issue an opinion on the matter that would take precedence over the local government’s action (or inaction).  The FCC already does this in similar contexts, where local government attempts to regulate RF exposure, which is exclusively the domain of the FCC.

Part 3 of the NPRM could significantly alter local government’s ability to regulate collocations and modifications of wireless facilities.

The FCC should hear from you about how you feel about these proposals and you should provide them with examples of how these “collocations” and “modifications” frequently have serious impacts on the health, safety and welfare of your constituents, and the aesthetics of your community.  In Part 4 of our series, we’ll explore the final portion of the NPRM, dealing with what the FCC thinks should happen if you don’t meet the FCC’s “shot clock” timelines for adjudicating applications for collocations (90 days) or new towers (150 days).        

Next – Part 4 to conclude our summary of FCC’s September Notice of Proposed Rulemaking (“NPRM”)

Click here for entire FCC document

Part 1 of 4: FCC September 2013 Notice of Proposed Rulemaking (“NPRM”) Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies

We’ve told you many times about the continued erosion of local regulatory control over wireless infrastructure.  Well, the FCC continues that process in its September 2013 Notice of Proposed Rulemaking (“NPRM”).

The NPRM (which runs 86 pages) click here for link to entire document puts forth a number of proposals which will affect your ability as a locality to determine the placement, size, and composition of wireless infrastructure in your community.

You do have the opportunity to file comments to the FCC’s proposals (which would be due 60 days after the NPRM is published in the Federal Register, a date which is unknown at the time of writing due to the federal shutdown) and Cityscape urges you to have your city or county attorney file comments regarding the proposals’ effects on local government.

The NPRM’s proposals cover a number of topics, in 4 general areas; we will tackle them one topic at a time to make it easier to digest, and easier for you to prepare comments to file with the FCC.

Part 1:

Expediting Deployment of DAS/Small Cells – The first part addresses a desire to make it easier to deploy DAS (Distributed Antenna Systems) and Small Cell (also called microcell) systems.  After describing how DAS/Small Cells work and suggesting that because of their smaller “footprint”, they are a more desirable infrastructure in historic districts (versus traditional cell sites), the FCC then asks whether the DAS/Small Cells should be subject to the same environmental/historic review as traditional infrastructure.

As some of you know, the construction of most new wireless infrastructure requires federal review under NEPA (the National Environmental Policy Act of 1969) to determine if there is a significant environmental impact because of the proposed structure.

NEPA reviews fall into 3 categories:

1. Significant impact (which require a big study)
2. No significant impact (which require a streamlined study to come to that conclusion)
3. Categorical exclusions (which are exempt from any review.)   Currently, collocations on existing towers or buildings are categorical exclusions from NEPA, except for historical preservation effects and RF exposure limits.

In addition to NEPA, new facilities have to contend with NHPA (the National Historic Preservation Act), which requires review of any facilities that may impact property included or eligible to be included in the National Register of Historic Places.  Collocations are generally excluded from NHPA review as a result of an agreement with the industry called the National Collocation Programmatic Agreement, unless the collocation results in a “substantial change” in the size of the infrastructure (remember that phrase for later).

The wireless industry has asked the FCC to categorically exclude collocations of DAS/Small Cells from any NEPA/NHPA federal review.

Verizon went even further than the industry as a whole, asking for exemptions not only for collocations on existing antenna towers and buildings but also to facilities mounted on structures such as utility poles, water tanks, light poles, and road signs, thus excluding them from environmental review except for historic preservation and RF emissions exposure compliance. Imagine a stop sign with a wireless antenna on top!

In response to industry requests, the FCC is proposing in the NPRM to redefine “categorically excluded” facilities to include collocations on an “existing building, antenna tower, or other structure” (the change is adding the phrase “or other structure.”)  The FCC wants comment on this idea, as well as whether it should cover not only the antenna equipment but also the ancillary “ground” equipment associated with wireless facilities.

In addition to the above proposal, the FCC is also considering adoption of a new categorical exclusion from the NEPA/NHPA rules for DAS/Small Cell systems (different from the existing collocation exception that they propose broadening above.)

If they do adopt a new categorical exclusion, the FCC is asking how it should be defined.  They recognize that some DAS systems may have equipment similar to traditional wireless infrastructure and that may be inconsistent with a categorical exclusion, and would prefer creating definitions based on objective facts such as size, weight and location rather than just a category called “DAS”.

One industry proposed definition of equipment that would be categorically excluded would be:

1. Equipment Volume. An equipment enclosure shall be no larger than seventeen (17) cubic feet in volume.
2. Antenna Volume. Each antenna associated with the installation shall be in an antenna enclosure of no more than three (3) cubic feet in volume. Each antenna that has exposed elements shall fit within an imaginary enclosure of no more than three (3) cubic feet.
3. Infrastructure Volume. Associated electric meter, concealment, telecom demarcation box, ground-based enclosures, battery back-up power systems, grounding equipment, power transfer switch, and cut-off switch may be located outside the primary equipment enclosure(s) and are not included in the calculation of Equipment Volume.  Volume is a measure of the exterior displacement, not the interior volume of the enclosures.

Any equipment that is concealed from public view in or behind an otherwise approved structure or concealment, is not included in the volume calculations.

Notably, a lot of “stuff” is not included in the calculations for this proposed exclusion from environmental processing.

Thirdly, the FCC asks if DAS/Small Cells should be included in the exclusion currently available (under the National Programmatic Agreement referenced above) for wireless infrastructure that:

1. Are located in or within 50 feet of a right-of-way designated for communications tower or above-ground utility transmission or distribution lines
2. Do not constitute a substantial increase in size over existing structures in the right-of-way in the vicinity of the proposed construction
3. Are not located within the boundaries of a historic property
4. Have provided the required notices to tribal organizations under the National Programmatic Agreement.

The FCC then asks about the same issues in the context of historic preservation and whether DAS/Small Cells should be eligible for categorical exclusion from historical preservation review.  In particular, whether the attachment of these facilities to telephone poles/street lamps in historic corridors should be categorically excluded, where the telephone pole/street lamps may be part of what makes the corridor “historic” in nature.

DAS is an ascendant technology, and you are going to be seeing it more in your local community in the future.

We would suggest that comments to the FCC on this section of the NPRM should point out the effect of any infrastructure (DAS included) on historic districts, and the importance of properly defining any exclusion that the FCC is thinking of granting to DAS/Small Cells.  In particular, you want to make sure that DAS facilities deemed exempt are not just a single provider site, but rather can accommodate multiple providers, otherwise you could face the real possibility of a DAS site for Provider 1 on one telephone pole, a site for Provider 2 on the next pole, a site for Provider  3 on the next pole, and so on.

Coming Next – Part 2 – Temporary Tower Exemptions from Environmental Processing.

Happy 40th Anniversary to the Cell Phone

Mobile phone technology has come a long way since the first mobile phone call was made 40 years ago today, changing life forever- but there is a lot more innovation to look forward to, according to one expert.

It was back on April 3 1973 that Motorola employee Martin Cooper made a call in New York on a Motorola DynaTAC – widely regarded globally as the first public cellphone call.

The device was nine inches tall, comprised 30 circuit boards, had a talk-time of 35 minutes, and took 10 hours to recharge.

Four decades on, a worldwide telecoms industry with annual revenues of £800 billion has grown rapidly based on wide choice, falling prices and an array of technologies, resulting in the average mobile being used to take photos, play music and games, send emails, download maps, watch video clips, all as well as talking and texting.

Dr Mike Short, an expert from the Institution of Engineering and Technology, said Mr Cooper’s phone call is the first public call people recognise as being a cellular mobile call.

He said the 10 years following that first call were “very much developmental”, with research being carried out in laboratories before services were launched in 1981 in the US.

“Since its first use 40 years ago, the mobile phone has completely changed our lives.

The first decade was a research or a ‘demonstrator’ phase, rapidly followed by Analogue networks deployed over 10 years from the early 1980’s largely based on carphones and used in business in the developed world.

“This soon led to the digital decade mainly between 1993 – 2003 when consumerisation and globalisation of mobile really took off.

“This led to a further data adoption phase with the arrival of 3G and during 2003 – 2013 access to the Internet and the wider use of Smartphones became a reality,” he said.

The two most significant developments in mobile phone technology have been the widespread availability of devices and their ability to access the internet, according to Dr Short.

“In the early days of mobile, consumerisation was not considered. It was made for men in suits in business, whereas consumerisation followed much later.

“And then access to the internet followed much later again. The first smart phones weren’t until about five years ago. So the pace of change has actually sped up over the 40 years, particularly in the last 15 to 18 years,” he said.

Dr Short expects mobile technology to continue to evolve and said people can expect even more developments in future.

“More changes are expected. The early days of mobile were all about voice, whereas today it’s much more about data.

“And the point about data is that we can carry voice calls over the data channel, but in future we’ll move towards fuller data services such as video – much more video to video calling, much more screens on the wall in your home, maybe more video television downloaded, catch-up TV, that sort of thing.

“So there’s a lot more innovation to come, particularly in the data and video worlds,” he said.

Mobile phone users will have noticed these changes in the last few years, as phones have become more affordable and sit lightly in the palm of their hand – but innovators are working to enhance these aspects of modern devices further.

Dr Short said: “The cost has already fallen a long way. What tends to happen is you get more functionality per pound spent.

“That would include more memory, that would include more features, that would include more capability to access the internet at higher speeds.

“The weight has dropped dramatically already, but we’re seeing, probably this year, the first watch-based phones.”

With improvements and changes implemented so frequently, Dr Short said it is hard to know what exactly to expect in the next 40 years, but it is safe to assume millions more people in the world will have access to mobile phones.

“It’s very difficult to predict 40 years time because the pace of innovation is speeding up. I would say that we’ll all be mobile, globally, everyone will be mobile.

“I’d also say that we’ll be connecting many more machines via wireless mobile technology as well.

“The world of around seven billion devices connected today should be in excess of 70 billion connected devices in 40 years time,” he said.

As Reported in the Huffington Post  

FCC Offers “Guidance” on Local Government Tower Siting Issues

Loyal readers may recall we previously wrote about new federal laws that affected local government’s authority over certain types of wireless siting applications.  In Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012, Congress said that local governments SHALL approve (and may not deny) applications for an “eligible facility” that seeks to modify an existing tower or other structure (in other words, a co-location application or one that involves the removal or replacement of existing equipment).  Congress limited this provision to applications that did not “substantially change” the physical dimensions of a tower or base station, but did not bother to define what it meant by “substantially change”.  We predicted that there would be some guidance on what was meant by “substantially change” and the first such guidance has now been released by the FCC.

The Wireless Telecommunications Bureau of the  FCC, in a Public Notice dated January 25, 2013 (“Public Notice”), has offered “interpretive guidance” regarding Section 6409.  While not a formal rulemaking proceeding or adjudication by the agency, the Public Notice at least sheds some light on the issues involved and how the FCC views them.

The Public Notice notes initially that while it has not received any formal petition to interpret Section 6409 nor is it aware of any court decisions interpreting Section 6409 yet, it has received numerous informal inquiries from the wireless industry and local governments on the interpretation of Section 6409 and wished to set forth its “guidance” regarding those provisions.

So what guidance did the FCC Offer?

1.  What does “substantially change” mean? According to the FCC, “substantially change” should be defined (as the wireless industry has previously suggested) by the FCC’s prior definition of that term in the context of the National Programmatic Agreement for the Collocation of Wireless Antennas (47 CFR §1, Appendix B), and which it further adopted in the 2009 Declaratory Ruling on the timeline for processing colocation applications (the “Shot Clock Ruling”).  (As an aside, the Shot Clock Ruling is currently before the US Supreme Court where two local governments are challenging the FCC’s ability to impose a timeline on their application and approval processes.  A decision on that issue will be issued by June).

So what is that definition?  “Substantially change” means any proposal that involves:

A) the mounting of the proposed antenna on the tower would increase the existing 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, except that the mounting of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to avoid interference with existing antennas; or

B) the mounting of the proposed antenna would involve the installation of more than the standard number of new equipment cabinets for the technology involved, not to exceed four, or more than one new equipment shelter; or

C) the mounting of the proposed antenna would involve adding an appurtenance to the body of the tower that would protrude 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, except that the mounting of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to shelter the antenna from inclement weather or to connect the antenna to the tower via cable; or

D) the mounting of the proposed antenna would involve excavation outside the current tower site, defined as the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site.

IF you have an application for a facility that does not exceed these standards, it is NOT a substantial change and you are obligated to approve that application under Section 6409.

2.  What is a “wireless tower or base station?”   Congress also didn’t bother to define this term, so the FCC has again turned to the National Programmatic Agreement and stated that it was, in its opinion:

“any structure built for the sole or primary purpose of supporting FCC-licensed antennas and their associated facilities.   The Commission has described a “base station” as             consisting of “radio transceivers, antennas, coaxial cable, a regular and backup power supply, and other associated electronics.” Section 6409(a) applies to the collocation,                 removal, or replacement of equipment on a wireless tower or base station. In this context, we believe it is reasonable to interpret a “base station” to include a structure that                     currently supports or houses an antenna, transceiver, or other associated equipment that constitutes part of a base station.   Moreover, given the absence of any limiting statutory         language, we believe a “base station” encompasses such equipment in any technological configuration, including distributed antenna systems and small cells.”

Note that this definition is an expansion of the language in the granddaddy of all wireless legislation, Section 704 of the 1996 Telecommunications Act (47 USC §332(c)(7), which only covered “personal wireless services”.  The FCC interpreted Congress’ use of the phrase “wireless tower or base station” to mean more than just those types of facilities covered by “personal wireless services”.

3.  Can local government still require an application?  The FCC took the position that although qualifying applications under Section 6409 MUST be approved by local government, implicit in that “approval” is the requirement for an application to be submitted for such administrative approval.

4.  Is there a time limit on processing such application for approval?  The FCC noted that while Congress did not establish a time period, since applications under Section 6409 were by their nature colocations, the time periods specified in the 2009 FCC Declaratory Ruling (“Shot Clock”) should apply, and thus 90 days should be the maximum period for reviewing such applications prior to approval.  HOWEVER, note that in some states, state law prescribes a shorter period of time for review and adjudication of colocation applications, so you’ll need guidance from your legal staff on what  your applicable timeline may be.  ALSO note as mentioned above that the “Shot Clock Ruling” is under review by the Supreme Court so this particular guidance may be stayed depending on what happens at the Court.

5.  What’s it all mean?  The federal government (with the encouragement of the wireless industry) has in a number of proceedings evidenced a desire to further expand wireless infrastructure coverage across the United States to develop a wireless network that is commensurate with our wired network.  Legislation such as Section 6409 and agency interpretations of same are all part of that effort and all work to dilute your ability to locally regulate this particular type of infrastructure.  You can expect current and future applicants to point to Section 6409 and this “guidance” and claim there is no “substantial change” and thus demand approval of their applications.  However, unstated in the FCC’s “guidance” is how to deal with these applications, which “must” be approved, where there are serious safety and tower loading concerns.  If the colocation application raises a structural or stability issue, what is a local government to do when faced with a purportedly compulsory approval requirement?    This is likely the situation that will generate the first set of cases that go before a court for a decision.  We would hope that a court would favor a local jurisdiction’s decision on safety/structural concerns but it is unclear at this time what might happen.

While this FCC “guidance” is merely that and not an official rule-making or adjudication, we would suggest that any court looking at this issue in the future is likely going to defer to the FCC’s interpretations of these terms and issues in reaching a decision on a particular application that is being litigated.  Of course, we’re always here to help guide you through these issues and make sure you stay on the right side of the regulations.

T-Mobile and MetroPCS strike a deal

BERLIN (AP) — Struggling cellphone companies T-Mobile USA and MetroPCS Communications are set to merge, in a deal that will create an operator with more than 40 million subscribers.

In a joint statement, the two companies said Wednesday that Deutsche Telekom AG, the owner of T-Mobile USA, will hold 74 percent of the new business, while MetroPCS’s shareholders will hold the remainder, as well as receiving a payment of about $1.5 billion.

“The combined company, which will retain the T-Mobile name, will have the expanded scale, spectrum and financial resources to aggressively compete with the other national U.S. wireless carriers,” the two said.

Both companies have struggled in the highly-competitive U.S. cellphone market.

And even after the combination with Dallas-based MetroPCS, which has 9.3 million subscribers, T-Mobile USA — the country’s fourth-largest cellphone company with 33.2 million subscribers — will still trail the market’s No. 3, Sprint Nextel Corp.

However, the deal would give T-Mobile USA, which is based in Bellevue, Washington, access to more space on the airwaves, a critical factor as cellphone carriers try to expand their capacity for wireless broadband.

Last year, AT&T struck a deal to buy T-Mobile USA for $39 billion for much the same reason. That was shot down by regulators, who believed competition would suffer if the second-largest cellphone company were to gobble up the fourth-largest.

“We are committed to creating a sustainable and financially viable national challenger in the U.S., and we believe this combination helps us deliver on that commitment,” Deutsche Telekom chief executive officer Rene Obermann said.

Deutsche Telekom said the combined company would have revenues of around $24.8 billion based on analysts’ estimates, and cost synergies are expected to be worth $6 to $7 billion.

The deal still has to be agreed by shareholders and will require regulatory approval.

The regulatory concerns this time round appear set to be much milder than the proposed deal involving AT&T. Both companies are relatively small, and T-Mobile USA has been losing subscribers for the last two years.

A linkup would be complicated by the fact that MetroPCS and T-Mobile USA use different network technologies. That means MetroPCS phones would not work on T-Mobile USA’s network, and vice versa. However, both companies are deploying the same “fourth-generation” or “4G” technology, so they’re on a path to harmonizing their networks.

Deutsche Telekom’s CEO Obermann said the new company will have the “resources to expand its geographic coverage, broaden choice among all types of customers and continue to innovate, especially around the next-generation LTE network.”

This consolidation of competitors may impact local government because typically with consolidations come changes to wireless infrastructure in order to blend the two companies’ assets in an efficient manner.  Local government could see an uptick in applications for site modifications arising from the merger if it is approved and completed.

Supreme Court to review whether the shot clock should be thrown out

October 8, 2012 – The U.S. Supreme Court has agreed  to review whether the Federal Communications Commission’s shot clock – the  period of time in which local government must act upon an application for a wireless antenna co-location or a new site build – is legal.

The high court will hear arguments stemming from two petitions alleging that the FCC has exceeded its authority by setting a  standard for jurisdictional review that is allowing it to override state and local zoning laws for wireless facilities.

The court has joined the petitions brought by the Cities of Arlington and San Antonio, TX, and the Cable, Telecommunications and Technology Committee of the New Orleans City Council, allowing the petitioners  an hour’s worth of argument before the justices.

The announcement provided an industry shockwave to the many state and national associations that were involved in shepherding passage of the wireless development ruling by the FCC in 2009.

When the 5th Circuit Court of Appeals affirmed the FCC’s authority to impose a shot clock and ruled against a petition by the cities of Arlington and San Antonio, Tex. last January, legal observers said it seemed improbable that a petition for a writ of certiorari – an appellate review by the Supreme Court – would be accepted given the nature of the ruling.

Court said it followed Chevron
The 5^th Circuit court said it relied upon administering the Chevron two-step standard of review as the basis for its decision.

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. was a 1984 case in which the Supreme Court set forth the legal test for determining whether to grant deference to a government agency’s interpretation of a statute which it administers.

Getting the Supreme Court to grant a review – requiring a minimum of four of the nine Justices to agree – is seldom achieved since the vast majority of petitions for certiorari are routinely denied without comment. The grant rate of those petitions the court feels are sufficiently important is approximately 1% of all requests.

Attorneys for CTIA – The Wireless Association and Verizon filed a briefafter the petitions were presented, stating that the FCC’s jurisdiction in the declaration was
in fact clear under the statute and therefore, no Chevron issue was presented. They were relieved when Solicitor General Donald Verrilli, Jr. recommended to the Supreme Court on August 29 that both petitions had no merit and should be denied. The Supreme Court didn’t agree. The industry’s short-lived exuberance ended upon the Supreme Court’s announcement it would hear arguments.

The Justices said that they are going to review: “Whether contrary to the decisions of at least two other circuits, and in light of this Court’s guidance, a court should apply Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984) to review an agency’s determination of its own jurisdiction.”

The Supreme Court will decide whether the FCC has authority to interpret the phrase, “a reasonable period of time,” as that term is used in The Telecommunications Act of 1996 under Chevron.

It appears that the high court, while addressing the FCC telecom issue, will also speak to Chevron itself, an undecided question of administrative law.

The 5th Circuit had joined the 10th Circuit and the 3rd Circuit in applying Chevron deference to disputes over the scope of an agency’s jurisdiction. However, the federal appeals court in New Orleans acknowledged that the Supreme Court “has not yet conclusively resolved the question of whether Chevron applies in the context of an agency’s determination of its own statutory jurisdiction, and the circuit court of appeals have adopted different approaches to this issue.”

Conversely, the 7th Circuit and the Federal Circuit have chosen not to apply Chevron deference.

On all of the issues brought forth in the Arlington and San Antonio petition, the court ruled in favor of the FCC, in general by applying existing Fifth Circuit precedent on the specific issues in question.

The Fifth Circuit covers the states of Texas, Mississippi and Louisiana.

Verrilli said that dissimilar to the petitioners’ suggestion, the FCC’s declaratory ruling did not adopt a federal zoning policy.

“It simply established presumptively reasonable timeframes for processing wireless facility siting applications. As the court of appeals correctly understood, those timeframes ‘are not hard and fast rules but instead exist to guide courts in their consideration of cases challenging state or local government inaction.’ Ultimately, the courts, not the Commission, will resolve issues of timing in lawsuits brought under Section 332(c)(7),” he stated in his request to deny the petitioners’ writ of certiorari.

Shot clock sets 90 and 150-day guidelines
The FCC has defined the reasonable time for communities to process an application as being 90 days for a co-location site, and 150 days for a new site and other types of applications. It was based upon a large majority of community officials who said that they processed applications for wireless facilities in that timeframe.

When there is a failure to act on an application within the applicable time period, the aggrieved party can file a suit with a court of competent jurisdiction within 30 days and that court shall hear and decide such action on an expedited basis.

A review period of 30 days set by the FCC’s mandate gives State and local governments sufficient time for reviewing applications for completeness, while protecting applicants from a last minute decision that those applications should be denied as incomplete.

The FCC says the time it takes for an applicant to respond to a request for additional information will not count toward the 90 or 150 days only if that State or local government notifies the applicant within the first 30 days that its application is incomplete.

Ambiguous “reasonable” time frame helped the Fifth Circuit to deny
“We do not read the [FCC’s] declaratory ruling as creating a scheme in which a state or local government’s failure to meet the FCC’s time frames constitutes a violation of the [Communications Act],” Circuit Judge Priscilla Owen wrote for the Fifth Circuit Court of Appeals’ three-judge panel.

Whereas Congress was clear in The Telecommunications Act of 1996 that the FCC would not have authority to make new rules limiting or affecting state and local government, the court said that leaving in “within a reasonable period of time” was purposely ambiguous and allowed the FCC to use its general rulemaking power to provide guidance.

Some federal appeals courts have applied the standards outlined in Chevron, which requires courts to defer to an agency’s interpretation of an ambiguous law, so long as that interpretation is reasonable and “permissible.”

The FCC insisted that its jurisdiction fell within its general authority to carry out provisions of the Communications Act of 1934.

Justice Kagan might be the one to watch
It is unknown why the Supreme Court didn’t agree with Verrilli’s recommendation to deny certiorari. The Solicitor General has oftentimes been called the “10th Justice” due to the relationship of mutual respect that develops between the Justices and the Solicitor General.

Supreme Court Justice Elena Kagan was the previous Solicitor General and it appears that her briefs might have been influential in many of the court’s decisions.

In 2009, Kagan expressed the federal government’s view that the Eight Circuit and Ninth Circuit correctly interpreted The Telecommunications Act of 1996 in their rulings in favor of local governments.

The Supreme Court agreed with her and denied certiorari in both cases.

The PCIA – The Wireless Infrastructure Association’s new President and CEO, Jonathan Adelstein, who earlier this month said he would be working to build on the FCC’s 2009 shot clock ruling, will now be occupied with ensuring that the federal siting foundation remains in place.

Adelstein is a former FCC Commissioner and former Administrator of the U.S. Department of Agriculture’s Rural Utilities Service.

A spokesperson for CTIA said that they were not going to release a statement regarding the Supreme Court’s decision to review the circuit court’s ruling.

The Supreme Court is likely to hear arguments in the case in January or February. We’ll provide updates and court filings as they occur, as the outcome could have huge implications for local government..

When the FCC’s rules were upheld in the Arlington decision, FCC Chairman Julius Genachowski said, “The FCC’s tower siting policy upheld today advances the crucial national priority of ensuring American leadership in mobile innovation and is part of the FCC’s relentless focus on unleashing the opportunities of wired and wireless broadband for all Americans, including job creation, increased investment, innovation and economic growth.”

 

Wireless Telecommunication Consultants – FCC Shot Clock

The FCC’s “Shot Clock” for local government’s processing of wireless communications applications (90 days for collocations and 150 days for other wireless siting applications, applicable to jurisdictions where the state has not enacted similar “shot clocks”) was recently affirmed by the 5th Circuit Court of Appeals (with certain caveats) in a case brought by the cities of San Antonio and Arlington, Texas against the FCC.

In its decision, the 5th Circuit said that although the FCC’s judgment in establishing those timelines was reasonable and within the scope of its authority, the failure by local government to adhere to those time limits does not automatically mean that that local government has per se violated the 1996 Telecom Act. Instead, the 5th Circuit said in that case the burden shifts to the local government to explain its failure to meet the applicable deadline. Examples of such  explanations” of failure to meet the deadline, according to the 5th Circuit, might be wireless applicant’s own failure to submit requested information, or some other extenuating circumstances; or the local government could show it was acting diligently in its consideration of an application, but that the necessity of complying with, for example, applicable environmental regulations caused a delay, or because the application was complex in its nature or scope.

So you don’t automatically grant the right to the applicant to build the wireless site if you miss the FCC deadline – but the burden does shift to you to show why you need more time and were unable to meet that deadline, either because of issues with the application or some other complexity or extenuating circumstance. As summarized by the 5th Circuit “The time frames are not hard and fast rules but instead exist to guide courts in their consideration of cases challenging state or local government inaction.”

FCC Wireless Telecommunications News and Notes

New law addressing the collocation of telecommunication facilities

On Wednesday February 23, 2012, President Obama signed into law the “Middle Class Tax Relief and Job Creation Act of 2012.”  Section 6409 of this new law addresses the collocation of telecommunication facilities.  The new law specifically addresses certain types of modifications on “existing wireless towers.”***Please note it is unclear right now what effect this federal law will have in jurisdictions that have separately enacted similar legislation at the state level regarding collocations, and the timeline for review and approval of those types of facilities. Those divergent provisions may be subject to a constitutional determination by the court system. Indeed, most industry commentators, in reviewing the new federal law, have suggested it will be subject to significant litigation to figure out what Congress meant by the provisions that were enacted. …Therefore, CityScape is recommending “for the moment” that you not make any rash decisions until there is further clarification or interpretation of this new legislation.  Of course, please feel free to contact CityScape if you have specific questions or have concerns about your existing methodology for review of wireless facilities. The wireless industry proposed this new federal law and is using the FCC’s Nationwide Programmatic Agreement as its source for definitions.  In that document, a “tower” is defined as “any structure built for the sole or primary purpose of supporting FCC-licensed antenna and their associated facilities.” There is also a provision that the proposed collocation cannot “substantially change” the physical dimensions of such tower or base station in order to be an “eligible facility.” The FCC Nationwide Programmatic Agreement defines “substantially change” as follows: The mounting of the proposed antenna on the tower would increase the existing 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 fee, whichever is greater, except that the mounting of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to avoid interference with existing antennas; or The mounting of the proposed antenna would involve the installation of more than the standard number of new equipment cabinets for the technology involved, not to exceed four, or more than one new equipment shelter; or The mounting of the proposed antenna would involve adding an appurtenance to the body of the tower that would protrude 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, except that the mounting of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to shelter the antenna from inclement weather or to connect the antenna to the tower via cable; or The mounting of the proposed antenna would involve excavation outside the current tower site, defined as the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site. The pertinent portions of the new law are below: 12 SEC. 6409. WIRELESS FACILITIES DEPLOYMENT. (a) FACILITY MODIFICATIONS.— (1) IN GENERAL.—Notwithstanding section 704 of the Telecommunications Act of 1996 (Public Law 104–104) 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. (2) ELIGIBLE FACILITIES REQUEST.—For purposes of this subsection, the term ‘‘eligible facilities request’’ means any request for modification of an existing wireless tower or base station that involves— (A) collocation of new transmission equipment; (B) removal of transmission equipment; or (C) replacement of transmission equipment. (3) APPLICABILITY OF ENVIRONMENTAL LAWS.—Nothing in paragraph (1) shall be construed to relieve the Commission from the requirements of the National Historic Preservation Act or the National Environmental Policy Act of 1969. Communities may need to amend certain sections of their existing wireless telecommunication’s policies to address the definition of “substantially change.” Below is an example of language that could address this issue: The mounting of the proposed antenna on the tower would increase the existing 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, except that the mounting of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to avoid interference with existing antennas; or The mounting of the proposed antenna would involve the installation of more than the standard number of new equipment cabinets for the technology involved, not to exceed four, or more than one new equipment shelter; or The mounting of the proposed antenna would involve adding an appurtenance to the body of the tower that would protrude 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, except that the mounting of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to shelter the antenna from inclement weather or to connect the antenna to the tower via cable; or The mounting of the proposed antenna would involve excavation outside the current tower site, defined as the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site.