November 29, 2016 — Moratoria on cell towers in the public right-of-way have been declared in Southern California and Florida as municipalities struggle to cope with applications made by Mobilitie, according to reports in the Fresno Bee and the Palm Beach Post.
The wireless infrastructure provider proposed building 120-foot tall structures in three areas of Fresno County, California, and at seven sites in the cities of Clovis and Fresno, California. In response, officials declared a 45-day moratorium, which could be extended to 10 months as zoning processes are developed.
Mobilitie proposed installing wireless communication facilities at five locations in Boynton Beach, Florida, including two near residential areas.
A San Diego-based firm building a portfolio of telecom infrastructure assets is attempting to purchase cell tower leases from the town of Perryville, Md., according to Explore Harford. AP Wireless, an arm of Associated Partners private investment firm, offers to buy leases for a lump sum upfront with large payouts and flexible terms.
“We will pay a large, up-front lump sum cash amount in return for an interest in your cell site. The longer the interest conveyed to AP Wireless, the larger the payout,” according to the firm’s web site. “We offer extremely flexible terms and conditions. You want to maximize the up-front cash amount? We’ll prepay your rent for a perpetual term. You want both a large, up-front lump sum plus cash rent in the future? We’ll structure a fixed-term deal with a rent reversion.”
Jonathan Kramer, an attorney who advises municipalities on such offers, suggested caution be employed concerning selling their cell tower leases.
“It no surprise in this economy that local governments must to find their own gap-filler cash sources when sales tax revenues are be diverted to fund state programs,” Kramer said. “While cell site lease sales can help to narrow today’s local budget gaps, the loss of the long term steadily increasing rents has to be carefully considered.”
State laws can be materially different when a government sells a lease and grants an easement as compared to a private deal, Kramer said.
“The sales process must be open and transparent; compliant with all applicable state and local laws; and not result in an effective gift of public property or impairing public bond covenants,” Kramer said. “These are key stumbling blocks that can swing open the courthouse doors for challenges by members of the public regarding the process and the deal valuation. This is, after all, public property we are talking about.”
AP Wireless sounded a common theme among cell site aggregators, saying that selling the lease protects the municipality from risk of a cell-site decommissioning.
At the meeting where AP Wireless addressed the commissioners, the town administrator, noted that maintaining monthly revenue of the lease might be in the town’s best interests. The mayor said, even if the town were to decide to sell its leases, it would go through a competitive bidding process.
The City of Palo Alto, Calif., is investigating the resources and zoning ordinances needed to allow wireless facilities at electric utility substation sites, City Hall and on other city property.
“Staff is seeking council direction regarding allowing use of electric utility substation sites and the roof of City Hall for wireless communications facilities towers to support multiple providers,” according to the staff report. Some believe the city’s move is meant to provide an alternative to DAS deployment.
Currently the city only hosts three macro cell towers at fire station sites within Palo Alto and DAS on utility poles in city rights-of-way. On Dec. 6, 2011, the council approved an application for an initial 19 such DAS installations requested by AT&T in residential areas, and staff has subsequently approved an additional. AT&T has another 60 potential sites in various stages of the application review process. The deployments, however, have led to intense community opposition.
Lane Kasselman, AT&T spokesman saw no contradiction between the city’s efforts and AT&T’s DAS wireless build out.
“We think getting the ability to place infrastructure on city facilities is fantastic,” Kasselman said. “We applaud the city for doing it. We look forward to having it is an option. We need that and we need DAS. It is not an either/or question in our minds.
The number of smart phone users in Palo Alto is one of the highest in the country and usage is growing exponentially, he noted.
“Palo Alto is ground zero of the tech revolution,” Kasselman said. “Once we are done with this DAS deployment, there will be a need for more infrastructure, so the more siting possibilities the city can make available the better.”
The city’s staff also wants to look at ways to streamline the process, developing incentives for use of the city’s facilities, including a ministerial permit review process, favorable lease rates, and streamlined utility and encroachment permit reviews.
In 2011, a consultant concluded that nearly the entire city could be covered using antennas at the existing nine utility substation facilities. The city utilities department has also worked with Crown Castle Communications to further review market potential of the antenna sites and the design for the 75-foot to 125-foot antenna structures.
The move by Palo Alto would appear to be in line with an executive order signed by President Obama recently facilitating the deployment of broadband infrastructure on federal lands, buildings and rights of way, among other areas, particularly in underserved communities.
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.”