Before theFEDERAL COMMUNICATIONS COMMISSION

Washington, DC 20554

In the Matter of

Acceleration of Broadband Deployment: Expanding the Reach and Reducing the Cost of Broadband Deployment by Improving Policies Regarding Public Rights of Way and Wireless Facilities Siting

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WC Docket No. 11-59

REPLY COMMENTS OF AMERICAN TOWER CORPORATION

Paul RobertsVice President - ComplianceAmerican Tower Corporation400 Regency Forest DriveCary, NC 27511(919) 466-5506

September 30, 2011

TABLE OF CONTENTS

EXECUTIVE SUMMARY ......................................................................................................................i

I. INTRODUCTION. ..........................................................................................................................1

II. THE COMMISSION NEEDS ADDITIONAL STAFF AND SHOULD APPOINT A NATURAL

RESOURCES OFFICER TO OVERSEE NEPA-RELATED WIRELESS FACILITIES SITING

MATTERS....................................................................................................................................4

A. THE WIRELESS TELECOMMUNICATIONS BUREAU NEEDS ADDITIONAL STAFF ...........................6

B. THE FCC SHOULD APPOINT A NATIONAL RESOURCES OFFICER..............................................6

III. THE COMMISSION SHOULD INITIATE AN EFFORT, IN CONJUNCTION WITH OTHER

FEDERAL AGENCIES, TO CREATE A UNIFORM TEMPLATE FOR APPROVAL OF TOWER

SITING ON FEDERAL GOVERNMENT PROPERTY. .........................................................................8

IV. THE COMMISSION SHOULD IMMEDIATELY ADOPT A RULE TO ADDRESS THE PROBLEM

OF “LEGAL NON-CONFORMING USES.”....................................................................................11

V. THE COMMISSION SHOULD CLARIFY THAT ITS USE OF THE TERM “ESSENTIAL

COMMUNICATIONS” IS NOT INTENDED TO SUGGEST THAT TOWERS USED FOR

COMMERCIAL WIRELESS SERVICE SHOULD BE DESIGNATED AS CLASS III FACILITIES

UNDER THE TIA-222-G DESIGN STANDARD............................................................................15

EXECUTIVE SUMMARY

American Tower Corporation (“American Tower” or “ATC”) applauds the Commission’s issuance of its Notice of Inquiry (“NOI”) for this proceeding. The NOI is a critical step towards resolution of longstanding difficulties with wireless facilities siting process that, if left unaddressed, will continue to undermine the Commission’s efforts to promote nationwide broadband deployment on a reasonable and timely basis. As one of the largest operators of towers and other structures used to provide wireless services in the United States(with a portfolio of over 21,000 towers and 263 outdoor Distributed Antenna Systems (“DAS”)throughout the country), ATC can speak firsthand on the current status of the siting process andthe myriad of hurdles which require immediate attention if nationwide wireless broadband buildout is to occur within the time period endorsed by the President and Congress.

American Tower is a member of PCIA and the DAS Forum (“PCIA”), and many of its concerns have already been discussed at length in PCIA’s initial comments. Accordingly, ATC has limited its reply comments to certain discrete issues of particular importance. First, ATC recommends that the Commission: (i) commit additional resources to its review of siting applications under the National Environmental Protection Act (“NEPA”) and Section 106 of the National Historic Preservation Act; and (ii) appoint a Natural Resources Officer (“NRO”) to oversee and help expedite the NEPA review process for siting of wireless facilities, much in the way that the Commission’s Federal Preservation Officer oversees siting matters under Section 106.

Second, ATC asks that the Commission work directly with other Federal agencies to create a uniform, streamlined template for processing of applications to construct or install wireless facilities on Federal Government property. A primary goal of this effort should be theelimination of redundancies and delays caused by multiple agencies operating under their individual Section 106 protocols while working on the same undertaking.

Third, as to the problem of “legal, non-conforming uses,” and consistent with the recommendations of PCIA and the DAS Forum, ATC believes that the Commission can, and should, adopt a rule stating that preclusion of collocators is “unreasonably discriminatory” under Section 332(c)(7)(B)(i)(I) of the Communications Act of 1934, including where a tower used by one or more providers has been deemed non-conforming due to changes in local regulations enacted after the underlying facility was constructed. This rule should also apply to tower modifications (including, for example, upgrades to accommodate 4G services) that do not involve collocations. Fourth, the Commission should clarify that its use of the term “essential communications” in other proceedings is not intended to suggest that towers used as a platform for commercial wireless service are Class III facilities under the TIA-222-G design standard, which would have the unintended result of requiring all new towers, and any collocations on or modifications to existing towers, to comply with substantially more rigorous construction requirements.

As it has already expressed through PCIA’s initial comments, ATC believes the Commission has both the authority and opportunity to take actions that could significantly improve the tower siting process and allow infrastructure construction to proceed on the pace

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necessary to satisfy the mandate for nationwide broadband buildout. Conversely, if the Commission does not seize this opportunity, the efforts of those who are building the nation’s wireless infrastructure for that very purpose will be frustrated.

Before theFEDERAL COMMUNICATIONS COMMISSION

Washington, DC 20554

In the Matter of

Acceleration of Broadband Deployment: Expanding the Reach and Reducing the Cost of Broadband Deployment by Improving Policies Regarding Public Rights of Way and Wireless Facilities Siting

))))))

WC Docket No. 11-59

REPLY COMMENTS OF AMERICAN TOWER CORPORATION

American Tower Corporation (“American Tower” or “ATC”) hereby submits its reply

comments in response to the Commission’s Notice of Inquiry (“NOI”) in the above-referenced

proceeding.1

I. INTRODUCTION.

With a domestic portfolio of over 21,000 structures and 263 outdoor Distributed Antenna

System (“DAS”) networks spread across the United States,2 and as a member of PCIA and the

DAS Forum (collectively referred to herein as “PCIA”), ATC has a unique perspective on the

challenges facing telecommunications infrastructure builders when they attempt to obtain

wireless facility siting approvals from local or Federal authorities. As highlighted by Chairman

Genachowski, these challenges and the increased costs and delays they impose on the wireless

1 See Acceleration of Broadband Deployment: Expanding the Reach and Reducing the Cost of Broadband Deployment by Improving Policies Regarding Public Rights of Way and Wireless Facilities Siting, Notice of Inquiry, 26 FCC Rcd 5384 (2011) (“NOI”).

2 See American Tower Corp., Quarterly Report for the period ended June 30, 2011, (Form 10-Q), SEC File No. 001-14195, at 26 (Aug. 4, 2011), available at http://www.sec.gov/Archives/edgar/data/1053507/000119312511210453/d10q.htm.

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facilities siting process will, if left unaddressed, frustrate timely deployment of wireless

broadband service to the detriment of the public.3 ATC therefore has a direct interest in the NOI

and the Commission’s resolution of the issues raised therein.

ATC’s nationwide siting experience bears out the Chairman’s concerns. While the

Commission’s mandate to achieve nationwide broadband deployment remains an important

consideration, additional wireless infrastructure is also necessary to ensure that service providers

keep pace with skyrocketing consumer demand for smartphone services and the rapidly

expanding menu of offerings for other “connected devices” such as the iPad. Recent industry

data indicates that smartphone penetration in the United States is expected to exceed 100 million

users this year alone and increase to 190 million users by the end of 2013.4 Moreover, in 2010,

tablets and laptops/notebooks used 123 times and 518 times more megabits per month,

respectively, than conventional mobile phones, and that usage will only increase over time.5

AT&T reports that its data traffic has spiked more than 8,000 percent since the introduction of

the 3G iPhone in 2007,6 and the Commission likewise has recognized the unprecedented burden

increased data usage is putting on existing wireless infrastructure.7

3 See, e.g., NOI, 26 FCC Rcd at 5404 (Statement of Chairman Julius Genachowski) (“Today’s actions implement key recommendations of the National Broadband Plan and are central pillars of our Broadband Acceleration Initiative . . . . This initiative is one of the Commission’s top priorities: an agency-wide effort to speed the buildout of wired and wireless broadband by removing obstacles to deployment . . . .”).

4 See “American Tower Corporation: An Overview,” at 19 (Aug. 2011), available at http://www.americantower.com/atcweb/irpages/irhome.asp (“ATC Overview”).

5 Id.

6 See David Goldman, “4G won't solve 3G's problems”, CNN Money (Mar. 29, 2011), available athttp://money.cnn.com/2011/03/29/technology/4g_lte/index.htm.

7 See Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993; Annual Report and Analysis of Competitive Market Conditions With Respect to Mobile Wireless, Including Commercial Mobile Services, Fifteenth Report, FCC 11-103, at ¶ 308 (Jun. 27, 2011) (“The number of cell sites in use by wireless providers continues to grow in order to satisfy the increased demand created by new subscribers,

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In other words, while collocation will reduce the number of new towers that otherwise

would have to be built, the fact remains that the future of wireless broadband is tied to the ability

of tower owners and their carrier customers to obtain reasonable and timely approval of their

applications for siting approval, whether they be for construction of new facilities, collocations

on existing facilities or installations of DAS networks on existing local infrastructure.

Many of American Tower’s specific concerns are already addressed in PCIA’s initial

comments, and ATC thus incorporates those comments by reference here.8 American Tower has

focused its reply comments on certain discrete issues and recommends that the Commission do

the following to improve the wireless facilities siting process:

Designate a Natural Resources Officer (“NRO”) to oversee and help expedite the NEPA review process for siting of wireless facilities. The NRO would be tasked with overseeing the Commission’s handling of the environmental issues enumerated in Section 1.1307 (e.g., wetlands, flood plains, threatened and endangered species). In essence, the NRO would perform the same functions under NEPA that the Commission’s Federal Preservation Officer(“FPO”) already performs with respect to historic preservation matters under Section 106 of the National Historic Preservation Act.

Initiate an effort to coordinate with other Federal agencies to create a uniform, streamlined template for processing of applications to construct or install wireless facilities on Federal Government property. A key objective of this effort should be the elimination of redundancies created when multiple agencies working on the same undertaking follow their own separate Section 106 protocols for the same undertaking.

accommodate additional airtime usage per subscriber largely caused by increased use of data services including broadband wireless and mobile Internet, expand geographic service area coverage and improve coverage in existing service areas, and accommodate newer technologies.”) (“Fifteenth Competition Report”); id. at ¶ 310 (“Verizon Wireless reportedly would need to have in place a total of between 60,000 and 70,000 cell sites in order to accommodate its current needs and the deployment of its LTE network. This projected level would represent an increase of between 17,400 and 27,400 cell sites from the 42,600 cell sites Verizon used as of March 31, 2010.”) (footnotes omitted).

8 See Comments of PCIA – The Wireless Infrastructure Association and the DAS Forum (a Membership Section of PCIA), WC Docket No. 11-59 (filed July 18, 2011) (“PCIA Comments”).

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Address the problem of “legal, non-conforming uses” by adopting a rule that explicitly limits a local authority’s ability to use a change in local law to block or delay collocations on, or modifications of, towers that were compliant with local regulations at the time they were constructed.

Clarify that the Commission’s use of the term “essential communications” in other contexts is not intended to suggest that all communications towers used for commercial wireless service are Class III facilities under the TIA-222-G design standard and are required to meet that standard.

II. THE COMMISSION NEEDS ADDITIONAL STAFF AND SHOULD APPOINT ANATURAL RESOURCES OFFICER TO OVERSEE NEPA-RELATED WIRELESS

FACILITIES SITING MATTERS.

The Commission has an impressive record of establishing rules for the licensing of

wireless services, recognizing market developments and taking steps to resolve wireless siting

issues as they arise. Since the Commission first enacted its regulations governing the licensing

of cellular and other wireless services, it has afforded the highest priority to its mandate in the

Communications Act to foster the development of a nationwide telecommunications network,9

and has vigilantly monitored how the licensing process is being affected by governmental and

marketplace forces. For instance, in the rulemaking leading up to the adoption of the 2004

Nationwide Programmatic Agreement (“2004 NPA”) for Section 106 review of wireless

facilities siting applications, the Commission noted that accelerating demand for wireless

infrastructure was putting extraordinary pressure on the process of reviewing “advanced”

wireless facilities siting applications.10 The Commission, the Advisory Council on Historic

9 47 U.S.C. § 151 (Commission shall “make available, so far as possible, to all the people of the United States, . . . a rapid, efficient, Nation-wide, and world-wide wire and radio communication service”).

10 See, e.g., Nationwide Programmatic Agreement Regarding the Section 106 National Historic Preservation Act Review Process, Report and Order, 20 FCC Rcd 1073, 1077 (2004), aff'd, CTIA-The Wireless Association Ass'n v. FCC, 466 F3d 105 (D.C. Cir 2006) (“During the late 1990’s, coincident with the explosion in tower constructions necessitated by the deployment of wireless mobile service across the country, delays in completing traditional Section 106 reviews began to occur. Applicants, SHPOs and Commission staff began experiencing ever-growing caseloads and backlogs that, it soon became clear, were posing a threat to the timely deployment of wireless service to customers.”).

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Preservation and the National Conference of State Historic Preservation Officers worked

tirelessly to hammer out the 2004 NPA, which established a uniform and more streamlined

approach to Section 106 review of facilities authorized by the FCC. Shortly before the 2004

NPA went into effect, the Commission implemented improvements to its Tower Construction

Notification System (“TCNS”) as a means of streamlining the Section 106 process.11

Most recently, in response to record evidence “demonstrat[ing] that personal wireless

service providers have often faced lengthy and unreasonable delays in the consideration of their

facility siting applications, and that the persistence of such delays is impeding the deployment of

advanced and emergency services,” the Commission adopted the “shot clock” to give tower

owners and carriers greater certainty that their siting applications will be processed by local

authorities within a reasonable period of time.12

11 FCC Announces Enhancements to Tower Construction Notification System to Provide Additional Tools to Indian Tribes, Native Hawaiian Organizations, and State Historic Preservation Officers, Public Notice, 20 FCC Rcd 464 (2005) (“This enhancement will benefit tower constructors, Tribes, NHOs and SHPOs alike by eliminating unnecessary communications and waiting periods, while preserving the right of Tribes, NHOs, and SHPOs to receive notice of and to communicate regarding all proposed constructions of potential concern to them.”). See also, e.g., Wireless Telecommunications Bureau Introduces Enhancements to the FCC's Tower Construction Notification System (TCNS) for Indian Tribes, Native Hawaiian Organizations and the Communications Industry, Public Notice, 21 FCC Rcd 11782 (2006) (announcing further enhancements to TCNS); The Wireless Telecommunications Bureau Announces the Introduction of a Streamlined Process and Automated System to Expedite the Commission's Review of Proposed Construction Projects, Public Notice, 23 FCC Rcd 13560 (2008) (announcing implementation of E-Section 106, “a voluntary system designed to save users time and resources by automating and expediting the exchange of information and correspondence in the Section 106 process”).

12 See Petition for Declaratory Ruling To Clarify Provisions of Section 332(C)(7)(B) To Ensure Timely Siting Review and To Preempt Under Section 253 State and Local Ordinances That Classify All Wireless Siting Proposals as Requiring a Variance, Declaratory Ruling, 24 FCC Rcd 13994, 14004-5 (2009) (“Shot Clock Ruling”), recon. denied, 25 FCC Rcd 11157 (2010), appeal pending sub nom., City of Arlington and City of San Antonio v. FCC, Nos. 10-60039 & 10-60805 (5th Cir.).

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A. THE WIRELESS TELECOMMUNICATIONS BUREAU NEEDS ADDITIONAL STAFF

Unfortunately, while ATC has had its share of success stories in the arena of wireless

facilities siting (in no small part due to the Commission’s regulations and the efforts of its staff),

it is evident that the Commission needs additional resources to meet the challenges posed by

applications that raise environmental or historic preservation issues.13 In particular, it is essential

that the Commission hire staff personnel who have substantial experience with NEPA (including

its interplay with the Endangered Species Act) and Section 106, so that the FCC is assured of

having the necessary manpower and expertise to review and resolve the influx of “advanced

siting” matters that will undoubtedly arise in the coming years. American Tower respectfully

submits that the addition of staff alone will not guarantee their effectiveness; it is essential that

they be authorized to work directly with Federal, State and local governments, tower owners,

carriers and the general public. Only in this manner can the staff be positioned to resolve tower

siting issues before they blossom into complaints, which are far more time and resource intensive

drains on the Commission’s resources.

B. THE FCC SHOULD APPOINT A NATIONAL RESOURCES OFFICER

In order to meet the challenges before it, the Commission must also address a gap in its

current coordination efforts. While the Commission has designated a FPO to oversee Section

106 matters generally and the Chief of its Office of Native Affairs and Policy (“ONAP”) to

oversee Tribal preservation matters specifically, it has yet to designate a similar “point person”

for NEPA matters. American Tower submits that this is long overdue, particularly given the

13 See, e.g., Comments of CTIA – The Wireless Association, WC Docket No. 11-59, at 35 (filed July 18, 2011) (“The Commission’s Staff has worked admirably to address the increasing portfolio of environmental issues, but there is a disconcerting trend of increasing delays for resolving even the more routine matters . . . Devoting sufficient resources to the Commission’s environmental team is an important first step in reducing avoidable delays.”).

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sheer range and complexity of NEPA-related issues, the extensive pre-construction procedures

applicants must undertake in order to address those issues, and the Commission’s substantial

environmental responsibilities.

Accordingly, ATC recommends that the Commission fill this gap by creating the position

of Natural Resources Officer (“NRO”) in its Wireless Telecommunications Bureau. The NRO

would be exclusively responsible for overseeing the Commission’s handling of NEPA matters,

much in the way that the Commission’s FPO oversees Section 106 matters. More specifically,

the NRO would be tasked with expediting the NEPA process, principally by providing informal

advice to applicants, Federal agencies charged with implementing NEPA, and/or State NEPA

personnel. Such advice would include, for example:

Clarifying certain regulatory “gray areas” arising from the interplay between State and Federal NEPA regulation.14

Providing tower siting applicants with focused recommendations on how to best proceed before other Federal agencies (when a proposed site is located on lands under the supervision of another Federal agency), and, by the same token, helping those agencies develop a clearer understanding of an applicant’s proposal and the Commission’s NEPA processes generally.

Identifying ways to create a more efficient path to either informal resolution of disputes or the execution of written agreements (e.g., Memoranda of Understanding) between the affected parties.

Moreover, a centralized contact point would give interested parties greater assurance that

they will receive uniform advice on NEPA issues, which in turn will promote certainty and foster

improved working relationships among all concerned. Also, if asked, the NRO could facilitate

an informal forum for tower companies, carriers and State and local governments to discuss and

resolve site-specific problems. In addition, from his or her unique vantage point, the NRO could

14 Such conflicts may arise where, to cite just two examples, there are discrepancies as to how State and Federal authorities delineate the boundaries of wetlands and their recognition of “buffer zones,” as well as differences between State and Federal lists of threatened and endangered species.

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assess the overall efficacy of the Commission’s NEPA processes and formulate suggestions as to

how it might be improved.

III. THE COMMISSION SHOULD INITIATE AN EFFORT, IN CONJUNCTION WITH OTHER

FEDERAL AGENCIES, TO CREATE A UNIFORM TEMPLATE FOR APPROVAL OF TOWER

SITING ON FEDERAL GOVERNMENT PROPERTY.

The demand for new towers and collocations often requires tower companies and carriers

to consider siting options on both public and private lands. Huge swaths of public lands are

owned or controlled by a handful of Federal agencies (e.g., the Bureau of Land Management

(“BLM”), National Park Service, Fish and Wildlife Service, Forest Service etc.).15 The wireless

facilities siting approval processes of these Federal agencies therefore have an enormous impact

on whether, when and to what extent wireless infrastructure may be deployed on property under

the domain of the Federal government. The Commission’s Technical Advisory Committee

(“TAC”) has recognized as much, and thus has recommended to the Chairman that the

Commission formally ask the President to issue an Executive Order that would mandate greater

predictability and time-efficiency in the process for siting wireless facilities on Federal

property.16

15 For example, in FY2010, BLM held exclusive jurisdiction over nearly a quarter billion acres of property in the United States. See http://www.blm.gov/public_land_statistics/resources.htm.

16 See Technical Advisory Council, Technology Policy Recommendations to Spur Jobs, Innovation, at 2 (Apr. 22, 2011) (“TAC Report”), available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-306065A1.pdf. (“The Executive Order would mandate the following for Federal rights of way and antenna siting approvals:

· Single document format for permitting· Single federal agency to coordinate the permit approval process· Sixty day time frame for approvals

Such an Executive Order would place the Federal government in a position to advance network deployment and resiliency in communities with Federal buildings, especially urban areas where network congestion is most acute. In addition, this Executive Order could advance the development of micro cells, distributed antenna systems (DAS), and other innovative broadband infrastructure, demonstrating a path for growth in this market.”).

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In fact, however, the problems alluded to by the TAC have been recognized at the federal

level for some time. In a 2004 Report titled “Improving Rights-of-Way Management Across

Federal Lands: A Roadmap for Greater Broadband Deployment,” the Department of Commerce

(“DOC”), in consultation with industry and government representatives, enumerated a variety of

problems with the siting process for Federal property and made a series of detailed

recommendations “aimed at streamlining, standardizing, and simplifying rights-of-way

management across all of the relevant federal agencies. When implemented by the agencies, the

Working Group expects the reforms to reduce burdens on industry, shorten construction time on

projects, allow agencies to use their resources more efficiently, and facilitate the delivery of

more broadband services to American consumers and businesses.”17

TAC has correctly perceived that the DOC’s recommended reforms have not been

implemented as originally hoped, and, indeed, American Tower can attest to the fact that many

of the problems that prompted the DOC’s 2004 Report still persist. Most importantly, ATC has

found that multiple agencies may follow their own separate Section 106 protocols when working

on the same undertaking, thus resulting in redundant efforts, delay and uncertainty. ATC has

also observed the following:

When both the Commission and another agency have jurisdiction over reviewing a specific proposed tower, the question of which is the “lead agency” leads to uncertainty and delay.

Federal agencies use their own forms for leasing agreements rather than a single uniform template, requiring additional negotiations that slow down the siting process.

17 United States Department of Commerce, “Improving Rights-of-Way Management Across Federal Lands: A Roadmap for Greater Broadband Deployment,” at 10 (Apr. 2004) (“DOC Report”); see also id. at 2 (noting that “[i]n the broadband context, rights-of-way include access to conduits, corridors, trenches, tower sites, undersea routes and other locations that broadband networks occupy”) (emphasis added).

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There is a lack of uniformity among agencies as to whether siting of wireless facilities on Federal lands is exempt from State and local permitting.

Access to sites on Federal property is often challenging due to credentialing issues.

Other Federal agencies inadvertently discourage collocation at a time when the Commission is trying to encourage it. For example, each carrier seeking to collocate on BLM property must obtain a “Special Use Permit” for the exact amount of ground space that their equipment requires, even where the host structure has already been cleared and awarded a permit for the entire compound.

Federal agencies that wish to collocate on ATC’s structures located on private land but who are not signatories to the Section 106 Nationwide Programmatic Agreements are often unclear as to whether they can proceed under the NPAs when they are the collocating party. The result is that the agency will send a routine collocation proposal through the formal and lengthy Section 106 approval process when doing so may not (or should not) be necessary.

Thus, in order for the goals of the DOC Report and the TAC Report to be realized and the

process improved, ATC requests that the Commission implement the above-cited

recommendations in the TAC Report and initiate an effort with other Federal agencies to create a

uniform template for obtaining siting approvals on Federal property. In addition to the specific

items recommended by TAC, the template might include, by way of example, a common set of

instructions on how to initiate the process, a standardized set of forms, and a draft programmatic

agreement.18 Once implemented, the proposed template should substantially eliminate the

duplication of procedures and other inefficiencies that routinely stall the process for siting of

18 See also, e.g., DOC Report at 16-23 (recommending, inter alia, creation of a central Web portal with information about the permit process for federal lands, with links to updated Websites for the Federal agencies responsible for issuing permits; designation of a lead agency and project managers early in the permitting process; adoption of specific time frames for various steps of the process; adoption of a policy that encourages co-location of facilities on previously approved Federal sites; identification of which federal agency will be responsible for site rental fees for projects involving more than one agency; use of a common schedule of rental fees; and encouragement of collocation of communications facilities on existing sites already designated by the relevant Federal agency).

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wireless facilities on Federal property, and should promote greater interagency cooperation on

siting issues over the long term.

IV. THE COMMISSION SHOULD IMMEDIATELY ADOPT A RULE TO ADDRESS THE

PROBLEM OF “LEGAL NON-CONFORMING USES.”

As discussed in the initial comments filed by PCIA and the DAS Forum, there is a

troubling trend at the local level regarding the issue of “legal non-conforming uses.” The term

refers to towers that were built in full compliance with the then-existing zoning and building

regulations which are now deemed to be non-compliant (or “non-conforming”) after a local

authority adopts new (and more restrictive) regulations. From its own experience, ATC can

confirm that the problem of legal non-conforming uses has become a significant issue in a

growing number of local jurisdictions across the country, and that the impact extends to

potentially tens of thousands of towers and the carriers collocating on those towers, as well as the

consumers who depend upon those infrastructure facilities for their wireless services.

The effects are particularly onerous where a local jurisdiction applies its new regulation

to an existing wireless facility in a manner that blocks collocations or antenna upgrades that

would not have required formal approval under the prior law. In many instances, American

Tower has seen that the local authority has virtually unlimited discretion to determine whether

and when a collocation or upgrade is significant enough to render the facility “non-conforming”

under the new regulation. In some jurisdictions, any change at all (even a change out of a single

antenna) can trigger at least a retrofitting requirement or at worst a requirement that the property

be rezoned and the tower on that property be taken down. This, as pointed out by PCIA and the

DAS Forum, has a significant chilling effect on collocation.19 It also effectively freezes existing

19 See PCIA Comments at 21 (“Many jurisdictions are requiring as a condition of collocation that the existing infrastructure be replaced or retrofitted at significant added costs. Conditions for approval for collocation can include changing the landscaping of the underlying structure, requiring that the structure

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wireless facilities in time, insofar as they cannot be upgraded to facilitate 4G service without the

risk of being designated a non-conforming use. This has the net effect of eroding the FCC’s well

established policy of encouraging collocation.

In addition, a local jurisdiction can circumvent the Commission’s “shot clock” by

adopting a new restrictive ordinance that forces a tower owner to endure a lengthy non-

conforming use hearing even where compliance with the new ordinance essentially is

impossible. For example, a new ordinance that restrict towers to a height of 70 feet above

ground effectively bars collocation or upgrading of antennas on an existing 150 foot tower

because that facility could not be constructed under the new ordinance.

Two of American Tower’s recent encounters with legal, non-conforming uses illustrate

their “real world” impact:

Charlotte, VT: ATC was required to seek local approval when it sought to utilize a 400

foot relay tower that was constructed in 1960, before local zoning requirements for tower sites

had been adopted. Specifically, American Tower sought conditional use approval for up to ten

antennas on the tower, nine of which were for commercial wireless service. The tenth antenna

was for local UHF broadcast service, and had already been installed on the tower by the antenna

owner.20 ATC also proposed to modify the tower to accommodate additional antenna users.21

One of those additional users was the Coast Guard, which sought to install three antennas on the

be retrofitted with a stealth design, or even that the underlying structure itself be replaced with a new and often shorter structure. . . Often, because the economics of meeting the new code requirements cannot justify the addition of antennas, the collocation is abandoned. In sum, the significant benefits of collocation are negated by these processes.”) (footnotes omitted).

20 The nine commercial wireless antennas were each approximately eight feet in height and were to be installed with T-frame mounts at a centerline less than 300 feet above ground.

21 Those upgrades included, for example, reinforcing the tower base, adding three new guy anchors, readjusting the innermost guy wire and adding new fencing.

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tower as part of a congressionally mandated upgrade to its communications system, and to

provide services under the Homeland Security Act.

Notwithstanding that the tower had been a preexisting facility for decades, or the fact that

ATC’s proposed physical changes to the tower were not significant, the local authority applied

its post hoc zoning requirements in full and initiated an approval process that took 18 months to

complete, including eight zoning board hearings over a period of eight months and a site visit by

Board members.22 During that time, neither the Coast Guard nor any of the other proposed users

were permitted to utilize the tower to deliver services to the public.

Sussex County, DE: Sussex County has in effect an ordinance that requires that all

towers, regardless of height, must be lighted. Subsection H of the Sussex County siting

ordinance (codified as Section 115-194.2 of the County Code as of April 24, 2001) states: “All

towers, antennas, or monopoles shall have warning lights. Such lights shall be placed every 50

feet of elevation. The tower, antenna or monopole shall meet all applicable requirements of the

Federal Communications Commission and the Federal Aviation Administration.”23 This

ordinance creates a Catch-22 for tower owners, as the local requirement to light all towers

directly contravenes the FAA’s mandate that a tower less than 200 feet above sea level does not

have to be lighted unless it fails to satisfy the relevant glide slope ratio at its proposed location.24

22 See Opinion of the Town of Charlotte, VT Zoning Board of Adjustment in re: File Nos. ZBA-06-09 et al.(March 3, 2007).

23 See Exhibit 1 (copy of Sussex County ordinance); Eric Magill, Council Approves Tower Ordinance: Sussex County Council Puts New Restrictions on Communications Towers, http://tinyurl.com/6f2du7u(last visited Sept. 26, 2011). The ordinance “grew out of concerns expressed by crop dusters who have complained that they couldn't see unlighted towers in foggy or cloudy conditions and that the county's tower maps are outdated.” Id.

24 See, e.g., Applications of KM Radio of St. Johns, L.L.C.for Modified Construction Permit, License to Cover Permit, and Minor Modification of Licensed Facilities for KWKM(FM), St. Johns, AZ, Memorandum Opinion and Order and Notice of Apparent Liability, 19 FCC Rcd 5847, 5851 (2004).

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The County has indicated that even though the towers are in full compliance with all

relevant Commission and FAA lighting requirements, it will not permit collocations on towers

built before the effective date of the ordinance unless they are retrofitted to include warning

lights or unless the tower owner obtains a variance from the requirement in a discretionary

approval process. The ordinance thus has the effect of thwarting the Commission’s collocation

policy whenever the costs associated with acquiring, installing and maintaining the warning

lights demanded by the County exceed whatever economic benefit a tower owner realizes from

collocation.

All said, the “non-conforming use” strategy increasingly employed by local jurisdictions

leaves a tower owner with three equally unpalatable choices: (1) apply for a non-conforming use

permit and navigate its way through hearings and other time-consuming local procedures, with

no assurance that its application will be granted; (2) abstain from allowing any collocations or

upgrades on its existing structure; or (3) construct a new tower. As discussed above, the cost of

the first option may exceed the revenue that a tower owner would realize from the collocation or

upgrade at issue, with the additional risk that the local authority ultimately might decide to deny

the tower owner’s application anyway. The second option deprives carriers of collocation

opportunities and deprives the public from receiving new and improved wireless technology (i.e.,

LTE), both of which are precisely the opposite of what the Commission is attempting to achieve

in this proceeding. Likewise, the final option of constructing a new tower in lieu of collocation

would unnecessarily multiply the number of towers needed for wireless services and thereby

increase the likelihood of otherwise avoidable environmental and Section 106 issues, as well as

significantly increase the cost and time necessary to buildout broadband infrastructure.

– 15 –

Hence, for all the reasons discussed above, ATC endorses the recommendation of PCIA

and the DAS Forum that the Commission adopt a rule stating that preclusion of collocators is

“unreasonably discriminatory” under Section 332(c)(7)(B)(i)(I), including where a tower used by

one or more providers has been deemed non-conforming due to changes in law since the

underlying facility was constructed.25 This rule should also apply to tower modifications that do

not involve collocations (including, for example, “swap outs” of existing antennas for antennas

required by 4G services).

V. THE COMMISSION SHOULD CLARIFY THAT ITS USE OF THE TERM “ESSENTIAL

COMMUNICATIONS” IS NOT INTENDED TO SUGGEST THAT TOWERS USED FOR

COMMERCIAL WIRELESS SERVICE SHOULD BE DESIGNATED AS CLASS IIIFACILITIES UNDER THE TIA-222-G DESIGN STANDARD.

In a growing number of communities, local authorities (or, more specifically, their

consultants) are misinterpreting the ANSI/EIA/TIA-222-G design standard for towers (“TIA-

222-G”), and on that basis are delaying collocations on or modifications (including upgrades) to

existing wireless facilities. This issue, which has arisen in several States, is now imposing

material delays on deployment of wireless infrastructure, and thus warrants the Commission’s

attention.

Unlike the predecessor standard (ANSI/EIA/TIA-222-F), Annex A, Section 2.2, of TIA-

222-G subdivides wireless towers into three separate and distinct categories, i.e., Class I, Class II

and Class III.26 Class II encompasses towers used as a platform for commercial wireless service,

and is the default Structural Classification under TIA-222-G. Class III, on the other hand, only

encompasses the narrower category of towers that are “used primarily for essential

communications such as: civil or national defense; emergency, rescue or disaster operations; [or]

25 See PCIA/DAS Forum Comments at 40.

26 See Exhibit 2 (copy of Annex A, Section 2.2).

– 16 –

military and navigation facilities.”27 Because they are devoted to essential communications,

Class III structures must comply with construction requirements that are more rigorous than

those typically applied to commercial wireless towers.28

To eliminate any possible doubt over this issue, earlier this year American Tower

specifically asked the industry subcommittee that drafted TIA-222-G to confirm whether

commercial wireless towers are to be classified as Class II or Class III. The committee

responded simply by referring AMT back to Annex 2.2, which, as noted above, establishes that

commercial wireless towers are Class II facilities unless they are used primarily for essential

communications. 29 The fact that the vast majority of commercial wireless towers in the United

States are constructed in accordance with ANSI/EIA/TIA-222-F (which did not include a Class

III category) or in accordance with the Class II requirements under TIA-222-G reaffirms that

neither the wireless industry nor its standard-setting bodies believe that commercial wireless

towers are Class III facilities and must be built as such. Nonetheless, some local authorities, at

the behest of their consultants, are taking the position that commercial wireless towers must be

built as Class III towers if they are used for any essential communications at all. As a result,

these authorities will not permit any collocations on or modifications to those towers unless they

are retrofitted to satisfy the Class III construction requirements. This misperception persists even

27 Id. (emphasis added).

28 By way of analogy, see, e.g., Comments of Edison Electric Institute, PS Docket No. 11-60, at 2, 5-7(filed July 7, 2011) (discussing differences between facilities devoted to public safety versus those used for commercial wireless services), and Reply Comments of the Utilities Telecommunications Council, PS Docket No. 11-60, at 1 (Sept. 1, 2011) (“[U]tilities and other CII will continue to rely on their own private internal networks for mission critical operations, even though they do use commercial communications networks and services to support some of their operations.”).

29 See Exhibit 3 (ATC inquiry to, and response of, TR-14 Point-to-point Communications Systems, TR-14.7 Subcommittee on Structural Standards for Steel Antenna Towers and Antenna Supporting Structures).

– 17 –

where American Tower provides documentation demonstrating that this reading of the Class

II/Class III distinction is plainly wrong.

In several States, American Tower had to involve State officials and the judiciary to

resolve matters. For instance, in the State of Florida, a local official claimed that commercial

towers had to be constructed as Class III towers, and after being unable to convince those local

officials otherwise, American Tower sought a judicial remedy. American Tower’s case

languished in the court for over a year before the wireless industry persuaded the Florida

legislature to pass a bill (since signed by the Governor) that effectively precludes local

authorities from enforcing Class III tower construction requirements via their building codes.30

Just like a scene from the movie Groundhog Day, American Tower has encountered the

same objections in New Mexico. The Center for Municipal Solutions (“CMS”), a municipal

consultant who, according to its website, “represents in excess of more than 500 communities in

23 states,”31 has adopted a policy stating that all wireless towers must be considered Class III

structures because “they are used for essential communications during emergency

conditions,” regardless of whether they are used “primarily” for that purpose.32 CMS would not

accept as dispositive the fact that an official with the State’s Regulation and Licensing

Department, Construction Industries Division (which, among other things, issues permits for

residential and commercial construction) had informally confirmed via an email to ATC that

30 See CS/HB 697 at 23-25 (2008) (adding new subsection (13) to Section 553.73 of the Florida Statutes: “The general provisions of the Florida Building Code for buildings and other structures shall not apply to commercial wireless communication towers when such general provisions are inconsistent with the provisions of the code controlling radio and television towers. This subsection is intended to be remedial in nature and to clarify existing law.”), available at http://www.myfloridahouse.gov/sections/Bills/billsdetail.aspx?BillId=38094.

31 See http://telecomsol.com/about_us.html.

32 See, e.g., Exhibit 4 (excerpt from CMS Wireless Structural Analyses (for New Mexico jurisdictions)) (emphasis in original).

– 18 –

CMS’s reading of the Class II/Class III distinction is incorrect. Likewise, CMS would not budge

even after ATC showed it the above-referenced industry committee response which, again,

confirmed that CMS has misinterpreted TIA-222-G. Undaunted, CMS has advised ATC that it

will not be persuaded until ATC obtains a clarification from the Commission that the agency’s

use of the term “essential communications” in other contexts has nothing to do with TIA-222-G

or a Class II/Class III distinction ruling from the Commission stating that CMS is wrong.

This interpretation of the standard is a barrier to deployment of wireless infrastructure.

First, application of the Class III construction requirements to Class II towers would in many

cases render tower construction for commercial wireless service cost-prohibitive – indeed, the

cost differential between a Class II structure and a Class III structure can range from 30% to

200%. Furthermore, as shown in the sample photographs ATC has provided herewith (see

Exhibit 5), the increased girth of the antenna structure coupled with extra reinforcements and

other equipment necessary for a Class III structure render a Class II tower much more visually

obtrusive. This increased visual profile would make the facility less palatable to local authorities

and residents, adding more difficulty and delay to both the local zoning and Section 106

processes.

Second, where a local authority has adopted CMS’s position, American Tower is forced

to obtain a statement or ruling from a county or other higher State official stating that CMS is

wrong. Perhaps this intransigence can be explained by CMS’s desire to thwart, or at the very

least, delay: (a) new towers; (b) collocations; (c) and modifications to existing antenna

structures.33

33 On its web site, CMS advises municipalities that “[i]n all but the most rural locales today, a new tower should be an aberration . . . .” Lawrence Monroe and Richard Comi, CMS, Towers and Wireless Facilities . . . Their Impact and How to Deal with It, http://www.telecomsol.com/twf-howtodealwithit.html (last visited Sept. 26, 2011).

– 19 –

American Tower is concerned that CMS’s tactics will be used by consultants throughout

the country as more States incorporate TIA-222-G into their building codes.34 Although the

wireless industry was “successful” in obtaining a legislative remedy in Florida, that process

injected over a year of delay into the siting timeline of American Tower and its customers, the

wireless carriers. In an environment in which nationwide broadband buildout is to occur within

5 years, adding an additional year (or more) into tower siting timelines is simply unacceptable.

Indeed, timely deployment of wireless infrastructure will be nearly impossible if tower owners

and carriers are forced to pursue a legislative remedy in every single State wherever and

whenever the issue arises. A State-by-State approach will also produce exactly the sort of

patchwork regulation that has proven to be an anathema to efficient deployment of nationwide or

even regional broadband networks on a reasonable and timely basis.

American Tower believes that the problem may be traceable to a mistaken belief by CMS

and others that the Commission’s use of the term “essential communications” in other contexts is

intended to suggest that any wireless tower used for “essential communications” for any amount

of time is a Class III facility. Commission precedent reflects no such intent – rather, it indicates

that the Commission has used the term “essential communications” as a way of referring to

essential services (e.g., police, fire, medical, disaster relief), and not in relation to TIA-222-G or

34 Thus far, twenty-one States have already incorporated TIA-222-G into their building codes, and many more are expected to do so in the future. The twenty-one States are: California, Florida, Idaho, Iowa, Louisiana, Massachusetts, Michigan, Montana, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, Utah, Virginia, Washington, and Wisconsin. In other States (e.g., Georgia, New York, Texas), local or county jurisdictions have incorporated TIA-222-G into their building codes even where their State has not yet done so.

– 20 –

the Class II/Class III distinction thereunder.35 The Commission thus can put this matter to rest

simply by clarifying that its use of the term “essential communications” in other contexts is not

intended to refer to the Class II/Class III issue, nor is it intended to suggest that towers ordinarily

classified as Class II become Class III facilities simply because they may occasionally (as

opposed to “primarily”) be utilized for emergency or public safety purposes.

* * *

American Tower applauds the Commission for training its eye on the hurdles confronting

expeditious tower siting and committing to find ways to improve the process. It was

disappointing that the initial comments on the NOI devolved into an “us vs. them” fusillade of

criticism. ATC believes that unless the Commission, the industry and localities begin to work

cooperatively in the near term, the President’s and Congress’ vision of broadband buildout

35 See, e.g., Amendment of Part 97 of the Commission's Rules Regarding Amateur Radio Service Communications During Government Disaster Drills, Report and Order, 25 FCC Rcd 9353, 9354 (2010) (quoting Section 97.403 of the Commission’s Rules: “No provision of these rules prevents the use by an amateur station by any means of radio communication at its disposal to provide essential communication needs in connection with the immediate safety of human life and immediate protection of property when normal communications systems are not available.”). Thus, the Commission was acknowledging that the amateur service could be used intermittently to provide essential communications without changing the nature of its primary use. To hold otherwise would turn the amateur service world upside down by requiring each amateur antenna to be mounted on Class III antenna structure.

– 21 –

within 5 years will be unattainable. The constructive suggestions made by both American Tower

and PCIA are a good first step towards reaching that goal.

Respectfully submitted,

AMERICAN TOWER CORPORATION

By: /s/ Paul RobertsPaul RobertsVice President - Compliance

400 Regency Forest DriveCary, NC 27511(919) 466-5506

September 30, 2011

Exhibit 1

Commercial communications towers and antennas.

[Added 4-24-2001 by Ord. No. 1445] A. Any new freestanding commercial communications tower or antenna or monopole in any residential district requires a minimum lot size of one acre and shall require a special use exception. In nonresidential districts, no minimum lot size shall be required nor shall a special use exception be required, except that if any new freestanding commercial communications tower or antenna or monopole is to be erected within 500 feet of any residentially zoned lot, improved or which can be improved with a residential dwelling unit, a special use exception shall be required.

B. Collocation of telecommunications equipment on existing freestanding towers, antennas, monopoles, buildings, water towers/tanks and other similar structures shall be permitted without special use exception, subject to site plan review by the Planning and Zoning Commission.

C. All applicants for special use exceptions shall submit a site plan and appropriate documentation demonstrating compliance with the applicable conditions listed in this section.

D. The applicant shall submit to the Board of Adjustment documentation showing that existing structures within a two-mile radius of the proposed location are not available for collocation. Any application for a new commercial communications tower or antenna or monopole shall include documentation substantiating the need for such tower at the proposed location.

E. All new towers or antennas or monopoles shall be designed to accommodate at least two additional PCS/cellular platforms.

F. All new freestanding towers or antennas or monopoles shall be set back from adjoining property lines by a minimum of 1/3 the height of the tower, antenna or monopole.

G. Pad sites, ground equipment structures and guy wires shall be surrounded by a minimum six-foot tall fence.

H. All towers, antennas, or monopoles shall have warning lights. Such lights shall be placed every 50 feet of elevation. The tower, antenna or monopole shall meet all applicable requirements of the Federal Communications Commission and the Federal Aviation Administration.

I. Any tower, antenna or monopole that is not operated for a continuous period of six months shall be considered abandoned, and the owner of such tower or antenna or monopole shall remove the same within 90 days of a receipt of notice from the county notifying the owner of such abandonment. If such tower is not removed within 90 days, the county may remove the tower or antenna or monopole at the owner's expense.

J. No signs shall be permitted on any commercial antenna or towers or monopole. Any blinking or rotating lights thereon shall be screened so as not to throw their light below the horizontal plane upon which they are located, except as required by the Federal Aviation Administration.

§ 115-194.2

Page 1 of 1Sussex County, DE

7/25/2011http://www.ecode360.com/?custId=SU1223

Exhibit 2

Exhibit 3

Garret TIA‐222‐G QUESTION SUBMITTAL FORM Classification of Structures Final.docm 

TIA‐222‐G REQUEST FOR CLARIFICATION             REV. 3                 

Submittal Date:       

Last Name: 

First Name: 

Phone Number: 

Email: 

Section Affected: 

An attachment is provided:    YES NO  

QUESTION:  

 

 

 

 

 

 

 

 

 

 

 

   

1.  Are normal tower structures supporting Cellular/PCS antenna arrays to be classified under Class II or Class III structures per Table 2‐1?  Can an example of a Class II and a Class III Structure be provided?  

2. Please provide a definition for “essential communications” per Class III description Table 2‐1 

Thank You 

Wm. Garrett, PE 

 

 

 

Garrett     

William  

919‐466‐5085 

William.Garrett@AmericanTower.com 

5/23/11 

Table 2‐1  Table 2‐3  Section 2.6.3 

Garret TIA‐222‐G QUESTION SUBMITTAL FORM Classification of Structures Final.docm 

COMMITTEE RESPONSE: 

RESPONSE: FOR COMMITTEE PURPOSE ONLY.  DO NOT USE LEAVE BLANK 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SUBMITTAL APPROVED AND RETURNED ON: 

Please refer to Annex A2.2 for guidance in addressing both questions.   

 

Exhibit 4

CMS Wireless Tower Structural Analyses (for New Mexico jurisdictions) CMS guidelines for Structural Analyses in New Mexico: It is not, and should not be CMS’s place to determine specific parameters to apply to any structural analysis. This is the responsibility of the certified (P.E. registered in NM) structural engineer to determine and apply. However, based on our current knowledge of the ordinance and applicable requirements here is how we intend to review submitted analyses: New Mexico just recently adopted IBC 2009 and its reference to 222 G. Therefore, to meet ALL (emphasis added) requirements the structural analyses must meet the most stringent requirements contained in any of the applicable codes. (Note: Local codes may exist that may have more stringent wind and ice loads for certain areas and IBC states that ANSI 222 is the applicable Federal Code.) Hence, unless a more stringent local code exists, it is incumbent on the applicant to provide structural analyses that: 1) Is performed in accordance with ANSI 222 G requirements or more stringent. As

specified in ANSI 222 G calculations for wind, ice and seismic loading shall be performed and complete calculations, assumptions, and results (% loading) must be included with the analyses. Please note the special design criteria within Annex B for coastal areas, mountainous terrain and gorges for unusual load conditions.

2) It is our position that all wireless telecommunication towers should be considered Class III structures as it pertains to ANSI/TIA/EIA-222(G) requirements as they are used for essential communications during emergency conditions. Exposure and topographic categories shall be clearly supported and justified in writing within the analysis. No assumptions should be used in these analyzes. Field verify or provide testing if required.

3) A Rigorous Structural Analysis should determine the loading on the tower based on proposed changes to the structure. (This would include additions and deletions to the structure.)

4) Analysis must address the facility (the tower and all its components & attachments) and the foundation. The structural analysis must include references to the specific documents used to make structural determinations and assumptions e.g. soil studies; manufacturers specifications (tower and antennas,) previous analyses, etc.

5) Any structural loads exceeding 100% of design parameters are unacceptable. 6) When design changes are required to meet acceptable loading requirements (< or = 100

%;) the Structural Analysis shall include the revised loading after the design changes are incorporated.

7) All structural analyses, to be valid, shall include a current (within 3 years on guyed tower and within 5 years for a self supporting tower) tower inspection conducted in accordance with ANSI 222 G. (A current tower inspection report shall be provided that specifically identifies all items inspected and the results; including plum and twist measurements and the determination if the tower meets acceptable tolerances.)

Exhibit 5