The FCC issued a Public Notice last week clarifying Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 regarding the streamlining of the collocation process.
The legislation simply stated, “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.” When it was passed in February 2012, critics let out a cry that none of the terms were defined in the act.
“Unfortunately, the wording of the statute is vague, leaving providers and state and local governments struggling with how to interpret it,” Russell Fox, member, Mintz Levin, wrote in a Communications Advisory. “While courts may be asked to decide what Congress intended these terms to mean, the FCC’s Public Notice provides at least some indication of how the expert agency defines the terms.”
Jonathan Adelstein, president & CEO of PCIA – the Wireless Infrastructure Association, applauded the Commission’s move.
“We could not be more pleased with the FCC’s efforts to promote wireless broadband deployment,” he said in a prepared release. “Foremost, clarifying definitions related to the federal collocation and modification provision of the Middle Class Tax Relief and Job Creation Act eliminates confusion among state and local jurisdictions trying to comply with the law.”
The legislation had also been criticized by municipalities that, although they support collocations, felt their local zoning authority had been usurped. The FCC has maintained that the components of a collocation had been defined in various rulings and the Public Notice footnoted several of them. While there have been no petitions for interpretation, the FCC said enough informal requests had been made that the agency felt obliged to act.
“This action will create greater certainty and predictability for providers that today invest more than $25 billion per year in mobile infrastructure, one of the largest U.S. sectors for private investment,” FCC Chairman Julius Genachowski said in a prepared release.
In the Public Notice, the FCC published its answers to several of the most frequently asked questions about Section 6409(a).
Using the Nationwide Collocation Agreement with the Advisory Council on Historic Preservation and the National Conference of State Historic Preservation Officers, the Commission defined the term “tower” as “any structure built for the sole or primary purpose of supporting FCC-licensed antennas and their associated facilities.” A “base station,” according to the FCC, consists of “radio transceivers, antennas, coaxial cable, a regular and backup power supply, and other associated electronics,” including small cells and DAS.
The Commission said a “substantial change in the physical dimensions” of a tower or base station, could be determined by a four-prong test, which was instituted in the Nationwide Collocation Agreement.
“Although Congress did not adopt the Commission’s terminology of ‘substantial increase in size’ in Section 6409(a), we believe that the policy reasons for excluding from Section 6409(a) collocations that substantially change the physical dimensions of a structure are closely analogous to those that animated the Commission in the Nationwide Collocation Agreement and subsequent proceedings,” the FCC wrote in the Public Notice.
According to the Nationwide Collocation Agreement, a “substantial increase in the size of the tower” can be ascertained by 1) the addition of a certain amount of height 2) the addition of an appurtenance adding a certain width to the structure 3) the addition of more than the standard number of equipment cabinets and equipment shelters or 4) an excavation outside the current site.
The FCC also concluded that even though the state or local government must approve and may not deny a request for collocation, it may require the filing of an application for administrative approval.
The Commonwealth of Pennsylvania has enacted a law that streamlines the state’s review process for collocation and modification of wireless facilities to existing wireless infrastructure and other vertical support structures.
The statute, S.B. 1345, builds upon the federal collocation/modification provision within the Middle Class Tax Relief and Job Creation Act of 2012 by: limiting local review costs; eliminating justifications of RF, technical or business need of a wireless facility; and broadening facilities modifications subject to streamlined review to include water towers, electric transmission towers, utility poles, buildings and other vertical infrastructure. The bill also establishes a statewide shot clock for collocation/modification application review, which includes a “deemed approved” resolution if the application is not acted upon within 90 days.
PCIA worked with the Pennsylvania Wireless Association (PWA), wireless carriers and other interested groups, conducting advocacy outreach at the state level. PCIA and PWA testified in support of the bill and industry proposed amendments, coordinated support for the legislation, and engaged in other lobbying efforts.
While the collocation verbiage in Section 6409a of the Middle Class Tax Relief and Job Creation Act of 2012 has been criticized as being vague, S.B. 1345 is replete with an abundance of definitions.
Perhaps the most controversial omission in Section 6409a was how to determine if the proposed changes to an existing tower would “substantially change” the structure and therefore not qualify for collocation by right.
The Pennsylvania wireless collocation and modification bill defined a substantial change as any increase in the height of the wireless support structure by more than 10 percent or 20 feet above the nearest existing antenna, whichever is greater. The mounting may exceed the size limits if it is necessary to avoid interference with existing antennas. Municipal approval will be required, however, if the wireless support structure has already been extended by more than 10 percent or by the height of one additional antenna array.
The measure defines collocation as the placement, replacement or modification of accessory equipment or installation of new wireless telecom facilities on previously approved and constructed wireless support structures or equipment compounds, including self-supporting or guyed monopoles and towers, electrical transmission towers, water towers or any other structure not classified as a wireless support structure that can support the placement or installation of wireless telecommunications.
The legislature’s view of what constitutes a “wireless support structure” is very expansive. The definition includes any freestanding structure that could support the placement or installation of wireless telecommunications, including a guyed or self-supporting monopole or tower, electrical transmission tower, water tower or other structure not classified as a wireless support structure.
The bill goes on to define accessory equipment, antenna, base station, electrical transmission tower, equipment compound, modification, water tower, wireless telecommunications facility.
Even though collocation-by-right legislation has been passed by Congress, collocations are still taking their knocks. The Fairfax, Va., County Board of Supervisors’ denial of the T-Mobile application to attach wireless facilities to an existing wireless structure did not violate the Telecommunications Act of 1996, according to the Fourth Circuit U.S. Court of Appeals.
Speakers on the zoning panel at the AGL Regional Conference in Philadelphia, last week, weighed in on the court’s decision to uphold the denial of the collocation, which would have increased the height of an existing utility pole.
“The court really took a hard line…it’s tough in the Fourth Circuit [to appeal a zoning decision],” said Gregory Rapisarda of Saul Ewing, who moderated the panel.
In 2009, T-Mobile filed an application to increase the height of a utility pole from 100 feet to 110 feet to attach three antennas.
The local planning commission staff reviewed the collocation and issued a report finding that T-Mobile’s proposed facility satisfied the criteria of location and character, as specified in the County’s comprehensive plan. However, after a public hearing in November 2009, the planning commission reversed its opinion and denied T-Mobile’s application because it would be “significant and adverse” to the local character of the area.
“In my mind it is just ridiculous,” said Sean Hughes of the Law Offices of Sean Hughes, who was also on the zoning panel. “They denied a ten-foot extension of a power pole. Stepping back from the legal aspects, the reason they denied it was because it is in McLean, Va., which is a very affluent suburb. I was part of the law firm that worked on this early on. If you looked at the photo simulations [of the completed collocation] there was no reason to deny it.”
T-Mobile appealed the Board’s denial, saying that it prohibited the provision of wireless services. T-Mobile also claimed it had been discrimination against, because Verizon Wireless and AT&T have been permitted to construct expanded facilities on the pole, with a ten-foot extension and 12 antennas and nine panel antennas, respectively.
Hughes added that it will be interesting to see if the collocation-by-right-legislation will be applied to collocations such as this one where the structure has already been extended 10 percent and a carrier proposes an additional ten-percent increase in height.
Even though T-Mobile showed a gap in coverage, it failed to prove a reasonable alternative for the site was not available, according to the court. The court also said the local municipality may treat a proposed telecom facility differently from another, existing facility on the same pole, based on aesthetics of the proposal. Accordingly, the court found that the proposed pole size and antenna configuration would materially change the look of the pole.
“It is a disappointing case,” said George Asimos of Saul Ewing, and also a panel member. “It means the Fourth Circuit is persisting with a few theories about interpreting the Telecom Act that are relatively unhelpful to the tower industry. In the Third Circuit they require you have to prove the least intrusive means [of providing coverage]. You know what you are shooting for. The Fourth Circuit turns this requirement on its ear. Maybe the least intrusive site isn’t the one the municipality wants? That leaves you without a clear direction of what the court will support [in terms of cell site development appeals].”
The best courts provide a clear understanding of how they interpret the Telecom Act of 1996, which gives the cell site developer a better idea of whether they will prevail by challenging a zoning rejection in court, Asimos added.
The “Middle Class Tax Relief and Job Creation Act of 2012” passed by Congress last week had an amendment of great interest to the tower industry. It will streamline the process of modifying wireless by eliminating municipalities’ ability to deny modifications to wireless towers that don’t change the physical dimensions of the site. President Obama is expected to sign the legislation.
Under Section 6409, wireless facilities deployment, the amendment states, “Notwithstanding section 704 15 of the Telecommunications Act of 1996 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.”
The bill could potentially speed up the process of upgrading cell towers with 4G equipment, unless municipalities find loopholes.
The amendment defined a modification as the collocation of new transmission equipment, the removal of transmission equipment and the replacement of transmission equipment. The new law, however, does not supersede the FCC’s requirements under the National Historic Preservation Act or the National Environmental Policy Act.
“Coupled with the FCC shot clock, the legislation represents a huge step forward in streamlining the local permit process for tower collocation and carrier technology upgrades,” said Christopher Fisher, attorney and partner at Cuddy & Feder.
Although the legislation is a victory for the wireless industry, expect the municipality camp to set to work finding loopholes in the bill’s language.
Tim Gasser, project manager – wireless collocation at Puget Sound Energy, wasn’t that hopeful. “That doesn’t sound all that useful to me. Adding antenna or replacing with larger antenna can be portrayed as changing physical dimensions, i.e., exposed surface area. That gets you to arguing over what ‘substantially’ means,” he said.
The language in the amendment is too vague, according to Jonathan Kramer, an attorney who serves a municipal wireless consultant. For example, he notes that the term “wireless tower” is not defined.
“Absent some local government code definition to the contrary, a building with an existing cell site on it is not a wireless tower; a park light standard with an existing wireless cell site is not a wireless tower; a church steeple with a cell site inside it is not a wireless tower; a billboard with an existing wireless site is not a wireless tower; a mono-cross is not a wireless tower,” Kramer wrote on his blog. “In reality, relatively few physical structures should be called a ‘wireless tower,’ especially by governments.”
Kramer also notes that the term “base station” is not defined and asserts that the term “eligible facilities request” has three different meanings. He advises municipalities to review the terms in their wireless ordinances and make sure they are defined.
“A careful, informed, rational project analysis is absolutely required to ensure that governments are not granting collocations ‘by right’ where no ‘by right’ truly exists,” Kramer wrote. “Start by looking at your wireless ordinance. Does your ordinance contain a provision that actually defines a ‘wireless tower’ or a ‘tower’ or a ‘base station’? You are certainly going to want to review and likely tighten up those definitions to limit undesirable spillover.”
Allied Fiber has completed funding for phase one of its nationwide fiber-optic network. Construction of the first phase linking New York City, Chicago and Ashburn, Va., is under way and expected to be completed by May 2011.
The 1,300 route-mile network is the first phase of an 11,500 route-mile, five-phase plan to ring the nation with a carrier-neutral, dark-fiber network, which will address the needs for national broadband demand by providing access to new dark fiber, collocation facilities and fiber-fed wireless towers on a network-neutral, open-access basis throughout the United States.
“In what has been a very challenging financing market, we have been able to prove the merits of the Allied Fiber system,” Hunter Newby, CEO of Allied Fiber, said in a press release. “In response to the proven demand from our customers and the industry, we will be able to complete the phase one build and deliver the physical, long-haul and short-haul dark fiber, collocation and interconnection capabilities that are so critical for the next generation of network requirements in our country.”
Allied Fiber has implemented a new, multi-duct design for intermediate access to the long-haul fiber duct through a parallel short-haul fiber duct all along the route. This enables all points between the major cities, including data centers, wireless towers and rural networks, to gain access to the dark fiber. In addition, the Allied Fiber neutral collocation facilities, located approximately every 60 miles along the route, accommodate a multi-tenant interconnection environment integrated with fiber.
The first phase of the system will provide access for hundreds of tower sites, all integrated into one system from one provider. The new 528-count, long-haul cable coupled with the 216-count, short-haul cable will be a composite of single-mode and non-zero dispersion-shifted fibers. By having a high-fiber count and being network-neutral, Allied Fiber is able to offer dark fiber and collocation at lower unit costs.
In other fiber-optic news, FiberLight has launched a $20 million, 104-mile fiber-optic network to augment its existing 123-mile Baltimore network and 299-mile Virginia and Washington, D.C., networks. The new network extends the 100-percent underground optical backbone past the downtown Baltimore business district to connect to the growing cities of Laurel, Columbia, Elkridge and Greenbelt, while providing greater diversity to the MD/D.C./VA region.
Patrick Mitchell, president and CEO of the Maryland Broadband Cooperative public/private partnership to support technology infrastructure deployment, noted the importance of connecting networks with fiber optics in order to get broadband out to the rural areas of Maryland.
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