September 1, 2016 —
Public rights of way have long been seen as a panacea for zoning ordinances that slowed and sometimes blocked wireless deployments.
Earlier this year, Verizon Wireless began submitting applications to the Public Utilities Regulatory Authority (PURA) to deploy small cell attachments to utility poles in the public rights of way. In response, the Town of Greenwich filed a petition for a declaratory ruling with PURA, seeking to find out who has authority over small cell and DAS deployments. Or, more importantly, to see if it had the authority to govern them.
“It has been made clear that jurisdiction over telecommunications equipment on towers lies with the Connecticut Siting Council and that rooftop antenna installs are under the jurisdiction of the municipality, to put it simply,” according to the petition. “What is less clear is how DAS, small cell technology, antennas, general wireless telecommunications equipment on utility poles are handled.”
Greenwich notes that the FCC sought to protect local zoning control in its Report and Order in 2014. Connecticut state law also states that municipalities have control over any antenna or tower that is not presided over by the Siting Council. Additionally, the town observes that the Connecticut General Statute does not define DAS or small cells.
PURA, which has exclusive authority over electric distribution in the State of Connecticut, is working through a docket to address telecommunications attachments to electrical distribution poles.
The petition will set a precedent once it is resolved, regarding the jurisdiction and authority of the Connecticut Siting Council, PURA and the Towns, concerning pole attachments.
“It has been an understanding that anything attached to electric distribution pole goes to PURA. Anything attached to a transmission line or a free standing structure would fall under CSC jurisdiction,” said Melanie Bachman, acting executive director/staff attorney for the Connecticut Siting Council.
In the proceeding, the Town of Greenwich asked who has jurisdiction over small cells and DAS. The three options are the towns, PURA and the CSC. Greenwich does not believe PURA is not providing enough notification in a timely fashion of an attachment to allow the public to respond. Currently only the affected landowners have to be notified.
The Wireless Infrastructure Association (WIA) filed comments agreeing with the Connecticut Siting Council’s assessment.
1. If there are no new structures proposed and the DAS is to be installed strictly on previously existing light poles that are used for street illumination, the municipality would have jurisdiction over the DAS.
2. If there are no new structures proposed and the DAS is installed strictly on previously existing utility poles that are used for electric distribution, PURA would have jurisdiction over the DAS
3. If there are any new structure proposed regardless of the use of any previously existing utility poles used for any purpose, the Council would have jurisdiction over the DAS.
“Clear jurisdictional rules will provide infrastructure providers the necessary regulatory certainty as they continue to invest in broadband networks that deliver advanced telecommunications capability in the state,” WIA wrote. “In exercising its statutory authority and affirming its clear jurisdiction and expertise over the location and approval of these facilities, PURA can prevent a patchwork approval regime determined by Connecticut’s hundreds of municipalities, which will only stymie broadband investment in the state.”
It all seems pretty cut and dried. Clear jurisdictional lines. Then Mobilitie began contacting local Connecticut towns introducing itself as a public utility company regulated by the State of Connecticut Department of Public Utility Control (which has changed its name to PURA) to provide telephone-related services. The letters included applications to use the right of way for “proposed new utility infrastructure facilities.”
“It appears that the Mobilitie letters and the Greenwich petition are being drawn together, much to the chagrin of Verizon,” Bachman said.
The Connecticut Conference of Municipalities, which commented on the Greenwich petition, has mobilized and is holding a webinar covering the two issues. In its filing on the Greenwich petition, CCM said it is “also quite concerned about the many communications received by Connecticut municipalities from an entity named Mobilitie. CCM respectfully recommends that PURA … ensures that the clear jurisdictional authority of the Siting Council is maintained with respect to Mobilitie.”
Bachman said, “They are two separate matters but the issues overlap. Who has jurisdiction, when and what are the opportunities of the municipalities to participate. Most of these letters reference 120-foot freestanding tower structures, which would fall under the jurisdiction of the Connecticut Siting Council, whether or not they are in the public right of way.”
In the end, the issue at hand is whether zoning process has more to do with a small cell’s physical structure or if the structure is in the public right of way.