Presenter: Jonathan Kramer

Transcription

1 Review of FCC Report & Order of October 17, 2014 Regarding Section 6409(a) FCC Report and Order adopted in the proceedings: Acceleration of Broadband Deployment by Improving Wireless Facilities Sitting Policies (WT Docket Nos ); Acceleration of Broadband Deployment: Expanding the Reach and Reducing the Cost of Broadband Deployment by Improving Policies Regarding Public Rights of Way and Wireless Facilities Siting (WC Docket No ); and 2012 Biennial Review of Telecommunications Regulations (WT Docket 13-32) Presenter: Jonathan Kramer

2 Really Important Disclaimers 1. This presentation is not the official position of the City of Calabasas. 2. Facts change, rules morph, and cases develop. The R&O is potentially subject to reconsideration petitions and (very likely) later to court challenges. 3. What is presented here is believed to be correct now, but subject to revision/change/correction.

3 Constitutional Questions remain, but until a court decides otherwise the rules will be the rules we have to follow.

4 How Section 6409(a) has Grown 149 words in the statute (2012) Only collocations with and modifications to existing sites 5 page FCC Guidance (2013) 10%/20 feet or more 86 page FCC Notice of Proposed Rulemaking (2013) Adds in considerations regarding other things Shot Clock NEPA/NHPA Temporary tower (COW) antenna registrations 155 page FCC Report and Order (2014)

5 Implementing Section 6409(a) FCC interpreted & defined terms in Section 6409(a) as follows: wireless means any Commission-authorized wireless communications service. Such services include, for example and without limitation, broadcast and WiFi. Section 6409(a) therefore applies to a far broader category of services than the Telecom Act. Section 332(c)(7) applies only to personal wireless service (e.g., mobile phones). transmission equipment means any equipment that facilitates transmission for any Commission-licensed or authorized wireless communication service, including, but not limited to, radio transceivers, antennas and other relevant equipment associated with and necessary to their operation, including coaxial or fiber-optic cable, and regular and backup power supply. wireless tower means any structure built for the sole or primary purpose of supporting any Commission-licensed or authorized antennas and their associated facilities. base station means the equipment and non-tower supporting structure at a fixed location that enable Commission-licensed or authorized wireless communications between user equipment and a communications network. A non-tower support structure means any structure (whether built for wireless purposes or not) that supports wireless transmission equipment under a valid permit at the time the applicant submits its application.

6 Implementing Section 6409(a) FCC interpreted & defined terms in Section 6409(a) as follows: existing means both a physical and a legal existence (i.e., does a valid permit exist for the antennas on this structure?). Section 6409(a) does not apply to structures (1) that merely could support transmission equipment (2) illegally constructed without all proper wireless site review or (3) legally constructed but at a time when the local laws did not require wireless site review. collocation means the mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes. modification did not receive a concrete definition but at least includes collocation, removal, or replacement of an antenna or any other transmission equipment associated with the supporting structure. replacement does not allow applicants to replace the entire support structure (sometimes referred to as a drop-and-swap ). Applicants may harden a support structure within certain limits, but may not completely replace a wireless tower or base station.

7 Implementing Section 6409(a) Reminder: Section 6409(a) does not mandate approval for all eligible facilities requests only those projects that do not substantially change the physical dimensions of the existing wireless tower or base station.

8 What Causes a Substantial Change? 1. Height. An eligible facilities request causes a substantial change when it increases the height (1) more than 10% or one additional antenna array not more than 20 feet higher for towers on private property, or (2) more than 10% or 10 feet (whichever is greater) for towers in the public rights-of-way and all base stations. 2. Width. An eligible facilities request causes a substantial change when it increases the tower width (1) more than 20 feet or the tower width at the level of the appurtenance (whichever is greater) for towers on private property, or (2) more than six feet for towers in the public rights-of-way and all base stations. 3. Cabinets. An eligible facilities request causes a substantial change when it involves more than the standard number of new equipment cabinets for the technology involved not to exceed four.

9 What Causes a Substantial Change? 4. Excavation. An eligible facilities request causes a substantial change when it involves excavation (1) outside the lease or license area for towers and base stations on private property or (2) outside the proximity to the groundmounted equipment for towers in the public rights-of-way. 5. Camouflage. An eligible facilities request causes a substantial change when it would defeat the existing concealment elements of the tower or base station. The Commission hypothesized that an applicant might defeat the camouflage if it did not paint the equipment to match or extend faux-tree branches, but did not elaborate further Noncompliance. An eligible facilities request causes a substantial change when it would violate a prior condition of approval that does not conflict with the Commission standards for a substantial change.

10 How Many Times does 6409(a) Apply? < After an applicant enlarges the site as it existing on 2/22/12 to the maximum permitted under Section 6409(a), that section is no longer applicable. Any future expansions/modifications to the site would be handled via whatever process is adopted by the local government in its wireless ordinance, typically a discretionary approval process.

11 Safety Code Compliance? The Commission generally preempts compliance with subjective requirements for cell site modifications that fall within 6409(a), but preserves objective requirements. States and localities may continue to enforce and condition approval on compliance with generally applicable building, structural, electrical, and safety codes and other laws codifying objective standards reasonably related to health and safety.

12 6409(a) Conditional Approvals Still allowed, but only when consistent with Section 6409(a) Conditions of Approvals must not: Establish size limits with lower substantial change thresholds than found in the Order; Impose subjective standards (no more satisfactory to the Commission type standards); or Impose limits not reasonably related to health and safety (lots of overlap with subjective standard limit) Conditions of Approval for 6409(a) may: Concern fencing, landscaping, drainage, lighting, access, and other maintenance-type issues (so long as stated in objective terms); Require insurance or indemnity; and Limit the duration of the permit consistent with state law (usually ten years under the Cal. Gov. Code.)

13 Applications Will Change Application Materials Must be published and reasonably related to an issue within local discretion Published is a low standard must be available to the applicant so that she/he can know what will be required before submittal Not published? Can t deem it incomplete for that item. Section 6409(a) narrows the scope of issues within local discretion: No more propagation maps or demonstration of need for 6409(a) cases Can still determine what materials it needs to evaluate an issue within local discretion Example: Zoning Drawings versus Construction Drawings

14 Process now it depends New Sites Planning Permitting Build Colo/Mod NOT 6409(a) File App Planning Permitting Build 6409(a) Planning Permitting Build

15 And Then There Were 3 (Shot Clocks) New sites: Colos/mods (6409a? NO): Colos/mods (6409a? YES): 150 day shot clock 90 day shot clock 60 day shot clock 150 days Bust? Not Granted. Applicant would have to sue. File App 90 days Applicant self-selects Process; City reviews for correctness. 60 days Bust? Not Granted. Applicant would have to sue. Bust? Deemed Granted. City would have to sue. A local moratorium will no longer toll the time for an application review/decision.

16 Other Key Issues Automatic Denials without Prejudice When Section 6409(a) Does Not Apply. A denial puts the burden on the 6409(a) applicant to sue, whereas a failure to act requires the government to seek an injunction. Fees Still Apply. Local governments can still continue to collect fees for reviews, outside assistance to process. Scope. DAS and Small Cells are within the scope of the R&O.

17 Timeline/Next Steps Bulk of the R&O rules impacting local governments effective 90 days after publication in the Federal Register (as of today, not published) Status quo until new rules become effective Need for technical amendments to the City s existing wireless ordinance (target: get done before new rules become effective)