Shall not “prohibit or have the effect of prohibiting” the
provision of wireless service
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(3)
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Shall act on a request “within a
reasonable period of time”
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(4)
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Must make decision to deny “in writing” and “supported by
substantial evidence”
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(5)
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May not regulate on the basis of the environmental
effects of radiofrequency
emissions
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Hundreds of decisions
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90/150 days
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(2)
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47 U.S.C. § 1455(a)
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“Notwithstanding . . . any other provision
of law . . .
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“a State or local government may not
deny, and shall approve”
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“any eligible facilities request for a
modification of an existing wireless
tower or base station that”
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“does not substantially change
the physical dimensions of such
tower or base station”
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Congress defined only one term
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“Eligible facilities request”
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“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.”
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Undefined:
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“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.”
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“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.”
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“does not substantially change
the physical dimensions of such
tower or base station”
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“does not substantially change
the physical dimensions of such
tower or base station”
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“does not substantially change
the physical dimensions of such
tower or base station”
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Received hundreds of comments
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A number of important issues
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three
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(1)
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What does it mean to “substantially
change the physical dimensions of a wireless tower or
base station?”
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(2)
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What is a “wireless tower” or
“base station?”
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(3)
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What does “may not deny, and shall
approve” mean?
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(1)
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What does it mean to “substantially
change the physical dimensions of a wireless tower or
base station?”
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troubling
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Fixed; doesn’t consider context
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A modification is a substantial change
only if it involves one of the following:
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(1)
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Increasing an existing structure’s height by more than
10%
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(2)
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Installing more than four equipment cabinets or one
equipment shelter
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(3)
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Adding an appurtenance that protrudes from the support structure more than 20 feet
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(4)
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Involves excavating outside the current
structure site
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Local governments = different approach
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“depends on context, and does not lend
itself to a mechanical,
numerical formula”
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Substantial change = a change that, in context, is “important”
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Includes anyphysical-dimension change that would:
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“make a facility unsafe,”
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“render public streets or sidewalks less accessible or
hazardous,”
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“damage a historically
significant area or structure,”
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“expose a stealth facility,”
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“or otherwise defeat conditions that were key to the underlying
facility.”
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Also: modifying a facility that has
“legal, non-conforming” status
should be considered “substantial”
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Policy concern?
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A solution that works for everyone
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(2)
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What is a “wireless tower” or
“base station?”
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“wireless tower”
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FCC = a structure “built for the sole or primary purpose” of supporting antennas
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Industry = much broader
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Industry = Any structure that supports wireless
equipment, including . . .
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water towers
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utility poles
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streetlights
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buildings
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(for some)
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Even if the underlying facility does not already host any wireless
equipment
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“base station”
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FCC = includes a structure that
“supports or houses an antenna,
transceiver, or other associated
equipment that constitutes part of a
base station.”
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This would include buildings, utility
poles, streetlights
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Local governments argued statute
includes only one support structure
(tower)
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(3)
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What does “may not deny, and shall
approve” mean?
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Two questions
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Can a local government
approve, but with other conditions?
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What is the remedy?
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Industry generally said that local
governments can only condition on “nondiscretionary building and other structural safety
codes”
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FCC proposed that requests shall be
“deemed approved” automatically
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Local governments = due process/10th
Amendment problems
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Local governments = courts should decide based on the facts
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Historic Site – NowHistoric 50’-high silos with approved attachment of six panel antennas painted to match exterior surface to minimize visual
impact. Located at Dufief Mill Road and MD Route 28 (Darnestown Road) in Montgomery County, Maryland.
Photos by: Robert P. Hunnicutt, Columbia Telecommunications Corporation
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Historic Site – Post Guidance?Illustration showing potential impact of co-location of an additional approximately 20’-high pole mounted antenna array.
Photos by: Robert P. Hunnicutt, Columbia Telecommunications Corporation
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Historic Site – NowPhoto of Simeon T. Toby’s Bank Building, Columbia City Historic District, King County, WA. Blue
arrows point to current location of cell towers. Building listed on
National Registry of Historic Places
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Historic Site – Post Guidance?Illustration showing
potential impact of co-location using photos of
actual rooftop installations
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Brickyard Rd. DAS Site – Neighborhood
Photos by: Robert P. Hunnicutt, Columbia Telecommunications Corporation
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Brickyard Rd. DAS Site – NowPole to support DAS antennas (68’ high) now at Brickyard Road in Montgomery County (part of a multi-node installation that extends down Brickyard Road)
Photos by: Robert P. Hunnicutt, Columbia Telecommunications Corporation
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Brickyard Rd. DAS Site – Post Guidance?Illustration of an extension to existing utility pole with additional structural bracing and guy wires to support the extension, which rises approximately 20’ above existing DAS antennas. Blocks at bottom reflect related typical pole-mounted equipment cabinets.
Photos by: Robert P. Hunnicutt, Columbia Telecommunications Corporation
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Is it too late?
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No.
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“ex parte” process
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Action likely later this year.
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47 U.S.C. § 332(c)(7)
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Five lessons
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(1) Do no rely on the environmental effects of RF
emissions in any respect
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T-Mobile Northwest LLC v. Loudoun
County, 748 F.3d 185 (4th Cir. 2014)
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Board had “substantial
evidence” to deny for aesthetic
reasons, but . . .
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One board member insisted that RF concerns also be
listed.
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This rendered the denial unlawful.
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(2) Distinguish regulatory and
proprietary activities
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Omnipoint Communications v. City of Huntington
Beach, 738 F.3d 192 (9th Cir. 2013)
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Voter approval process for leasing of certain City property
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Process is not subject to Section
332(c)(7) preemption
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(3) Issue denials “in writing”;
state reasons clearly
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T-Mobile South, LLC v. City of Roswell,
731 F.3d 1213 (11th Cir. 2013)
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Put denial in writing, but did not include reasons for denial
(minutes from hearing showed
reasons)
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11th Cir.: this is enough.
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Supreme Court will hear argument this
fall.
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(4) Regulate aesthetics by
developing a record
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N.E. Cellular Inc. v. City of North Platte, slip op., No. 13-3190
(8th Cir. Aug. 22, 2014)
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N.E. Cellular Inc. v. City of North Platte, slip op., No. 13-3190