telecommunications law. international municipal lawyers association annual conference september 10,...

Telecommunications Law


International Municipal Lawyers Association Annual ConferenceSeptember 10, 2014Baltimore, Maryland

PRESENTED BY

Matthew K. Schettenhelm

Wireless Facility Siting:How “Local Control” is Faring at the

FCC and in the Courts

©2014 Best Best & Krieger LLP


Wireless provider approaches your City


New site, downtown area


Problem(s)


What do you do?


Just say no?


Work with the company


A solution that works for everyone


The site =


(1) centrally located


(2) hidden


(3) safe


win-win


Fast forward 6 months


Same provider


Same site


New idea:


Add


4 equipment cabinets


1 equipment shelter


new antennas


Multiple 20-foot extensions


Your answer?


Not a chance.


Not asking.


Telling


Section 6409(a)


47 U.S.C. § 1455(a)


“may not deny, and shall approve”


Is the provider right?


It depends.


challenge


challenges


background


2 federal laws


(1)


47 U.S.C. § 332(c)(7)


Generally preserves


But


five limitations


A State or local government:


(1)


May not “unreasonably

discriminate” among functionally

equivalent providers


(2)


Shall not “prohibit or have the effect of prohibiting” the

provision of wireless service


(3)


Shall act on a request “within a

reasonable period of time”


(4)


Must make decision to deny “in writing” and “supported by

substantial evidence”


(5)


May not regulate on the basis of the environmental

effects of radiofrequency

emissions


Hundreds of decisions


90/150 days


(2)


47 U.S.C. § 1455(a)


“Notwithstanding . . . 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”


Congress defined only one term


“Eligible facilities request”


“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.”


Undefined:


“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.”


“does not substantially change

the physical dimensions of such

tower or base station”


Received hundreds of comments


A number of important issues


three


(1)


What does it mean to “substantially

change the physical dimensions of a wireless tower or

base station?”


(2)


What is a “wireless tower” or

“base station?”


(3)


What does “may not deny, and shall

approve” mean?


(1)


What does it mean to “substantially

change the physical dimensions of a wireless tower or

base station?”


troubling


Fixed; doesn’t consider context


A modification is a substantial change

only if it involves one of the following:


(1)


Increasing an existing structure’s height by more than

10%


(2)


Installing more than four equipment cabinets or one

equipment shelter


(3)


Adding an appurtenance that protrudes from the support structure more than 20 feet


(4)


Involves excavating outside the current

structure site


Local governments = different approach


“depends on context, and does not lend

itself to a mechanical,

numerical formula”


Substantial change = a change that, in context, is “important”


Includes anyphysical-dimension change that would:


“make a facility unsafe,”


“render public streets or sidewalks less accessible or

hazardous,”


“damage a historically

significant area or structure,”


“expose a stealth facility,”


“or otherwise defeat conditions that were key to the underlying

facility.”


Also: modifying a facility that has

“legal, non-conforming” status

should be considered “substantial”


Policy concern?


A solution that works for everyone


(2)


What is a “wireless tower” or

“base station?”


“wireless tower”


FCC = a structure “built for the sole or primary purpose” of supporting antennas


Industry = much broader


Industry = Any structure that supports wireless

equipment, including . . .


water towers


utility poles


streetlights


buildings


(for some)


Even if the underlying facility does not already host any wireless

equipment


“base station”


FCC = includes a structure that

“supports or houses an antenna,

transceiver, or other associated

equipment that constitutes part of a

base station.”


This would include buildings, utility

poles, streetlights


Local governments argued statute

includes only one support structure

(tower)


(3)


What does “may not deny, and shall

approve” mean?


Two questions


Can a local government

approve, but with other conditions?


What is the remedy?


Industry generally said that local

governments can only condition on “nondiscretionary building and other structural safety

codes”


FCC proposed that requests shall be

“deemed approved” automatically


Local governments = due process/10th

Amendment problems


Local governments = courts should decide based on the facts


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


Historic Site – Post Guidance?Illustration showing potential impact of co-location of an additional approximately 20’-high pole mounted antenna array.



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


Historic Site – Post Guidance?Illustration showing

potential impact of co-location using photos of

actual rooftop installations


Brickyard Rd. DAS Site – Neighborhood



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)



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.



Is it too late?


No.


“ex parte” process


Action likely later this year.


47 U.S.C. § 332(c)(7)


Five lessons


(1) Do no rely on the environmental effects of RF

emissions in any respect


T-Mobile Northwest LLC v. Loudoun

County, 748 F.3d 185 (4th Cir. 2014)


Board had “substantial

evidence” to deny for aesthetic

reasons, but . . .


One board member insisted that RF concerns also be

listed.


This rendered the denial unlawful.


(2) Distinguish regulatory and

proprietary activities


Omnipoint Communications v. City of Huntington

Beach, 738 F.3d 192 (9th Cir. 2013)


Voter approval process for leasing of certain City property


Process is not subject to Section

332(c)(7) preemption


(3) Issue denials “in writing”;

state reasons clearly


T-Mobile South, LLC v. City of Roswell,

731 F.3d 1213 (11th Cir. 2013)


Put denial in writing, but did not include reasons for denial

(minutes from hearing showed

reasons)


11th Cir.: this is enough.


Supreme Court will hear argument this

fall.


(4) Regulate aesthetics by

developing a record


N.E. Cellular Inc. v. City of North Platte, slip op., No. 13-3190

(8th Cir. Aug. 22, 2014)


Testimony from a dozen residents that

it would be inconsistent with

neighborhood was sufficient


Tip: the more specific, the better.

Courts find that “generalized”

grievances do not constitute

substantial evidence.


Matthew K. Schettenhelm

Best Best & Krieger LLPWashington D.C.(202) [email protected]

telecommunications law. international municipal lawyers association annual conference september 10,...

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