a basic communications law primer for elected officials

Special Districts

League of Oregon Cities Bend, Oregon

PRESENTED BY

Joseph Van EatonPartner

A Basic Communications Law Primer for Elected Officials

©2015 Best Best & Krieger LLP

Special Districts

Key Points• Federal communications laws, combined with changes in

technology, increasingly affect: Local authority to control the size and placement of wireless

facilities. Local authority to obtain fair compensation for use of valuable

public property (the rights of way), and other key revenue streams.

The availability of adequate communications services to every member of your community, and the adequacy of public safety networks.

Local ability to incentivize deployment of broadband facilities, and to deploy municipal networks.

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That Translates To…• A need to review and revise local ordinances (such as zoning codes)

to protect local interests.• A need to participate in federal proceedings and make local interests

known to elected officials through a long-term strategy that: explains why local interests should be protected (it is just about money?); explains why protecting and enhancing local authority could advance

national interests in broadband deployments; challenges inappropriate intrusions on local authority legislatively and

through the courts. • Devoting the effort and resources required to take advantage of

existing rights, and to develop policy goals that reflect the new communications environment.

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A Short Bit of History…• Communications law was divided into “silos” – different rules

applied to different types of communication:

Television/radio services (licensed and subject to public interest obligations such as “Fairness Doctrine);

Common carrier, or telecommunications services like telephony (user controlled all content; carrier simply carried) – important rights granted to providers in return for duties to provide universal service via the public switched telephone network;

Information services (services ancillary to telecom services, or services that involved computer storage and forwarding (virtually unregulated); and

Cable television services.

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A Short Bit of History…• Significant spectrum was devoted to local pub.

safety and educational uses.• Technology is making the “silos” obsolete:

Video now delivered over many platforms; Operators are seeking relief from all common carrier

obligations, and to abandon the public switched telephone network (PSTN).

• There is a strong national push for deployment of broadband facilities where rights/obligations of providers are unclear.

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Local Authority To Control the Size and Placement of Wireless Facilities

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Major Federal Provisions• 47 U.S.C. § 332(c)(7) (Preservation of Local Zoning Authority).• 47 U.S.C. § 1455 (Section 6409) (Collocation/Modification of Existing

Facilities). • Section 332(c)(7) applies to “personal wireless service (PWS) facilities,”

which includes commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services.

• Generally preserves local zoning authority, but imposes five limitations: Shall not “unreasonably discriminate” among providers of functionally

equivalent services (332(c)(7)(B)(i)(I)); Prohibit or effectively prohibit provision of PWS (332(c)(7)(B)(i)(II)) Locality must act on request within “reasonable period of time”;

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Section 332(c)(7) (cont’d) Decision to deny must be “in writing” and supported by “substantial

evidence”; and No regulation of RF – except may require applicant to satisfy FCC rules

• Limitations do not apply to proprietary property.

• Supreme Court has recently ruled on meaning of “in writing” requirement:

Denial and substantial evidence need not be in same document, but must be essentially contemporaneous. See, T-MOBILE SOUTH, LLC v. CITY OF ROSWELL __U.S.__, 135 S.Ct. 808 (2015). http://www.supremecourt.gov/opinions/14pdf/13-975_8n6a.pdf

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Section 6409(a) (47 U.S.C. §1455)(a) Facility modifications.

(1) In general. 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.(2) Eligible facilities request. For purposes of this subsection, the term “eligible facilities request” means 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.

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FCC Report and Order

• 155 Page Report and Order: Adopted October 17, 2014;

Published in Fed. Register on January 8, 2015;

Appeal Underway – Argument Scheduled in 4th Cir. for October 28;

Now fully effective

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FCC Rules 47 CFR § 1.40001 – Definitions

1. Substantial Change Towers other than Right of Way (ROW) towers, modification:

• Increases height by more than 10% or 20 feet whichever is greater; or

• Appurtenance added protrudes from body of structure more than 20 feet or width of tower at pt. of attachment.

All other support structures, modification:• Increases height by 10 feet or 10%, whichever is greater;• Appurtenance added protrudes more than 6 feet.

Height measured from facility as it exists as of date of passage of Act (2012).

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FCC Rules 47 CFR § 1.40001 – Definitions(cont’d)

1. Substantial Change For towers and base stations in ROW:

• New equipment cabinets if there are none, or involves placement of cabinets 10% greater in height or overall volume than other cabinets associated with structure.

All other eligible support structures:• Installation of more than four equipment cabinets.

It entails any excavation or deployment outside of site. It would defeat “concealment elements” of the

“eligible support structure.”

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1. Substantial Change (cont’d) It does not comply with conditions associated with

siting approval…but limitation does not apply to any modification that is non-compliant only in a manner that would not exceed thresholds identified in (i)-(iv).

2. Tower: structure built for sole or primary purpose of supporting FCC licensed or authorized antennas and associated facilities.


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3. Base Station Equipment associated with wireless comm. service Antennas, coax, backup power supplies “any structure other than a tower” that at time of application

was supporting or housing the above (walls, rooftops are support structures).

4. Existing: A constructed tower or base station that has been “reviewed and approved under the applicable zoning or siting process or under another State or local” process, except towers not in a zoned area when built, but lawfully constructed (non-conforming uses?).


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5. Eligible Support Structure is any Tower or Base Station.

Key Notes:• Does not preempt generally applicable safety and health

codes.• Does not apply to proprietary property of community.• Reaches all wireless facilities – including Wi-Fi

deployments.• Reaches Distributed Antenna Systems (DAS) & Small

Cells.


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Application Review• General rule: “may not deny and shall approve” any eligible

facilities request that does not substantially change physical dimensions.

• Can require “documentation reasonably related” to determining whether request meets requirements of section.

• Sixty days to approve UNLESS locality determines facility is not covered.

• Time frame tolled by agreement; or if notice provided of incompleteness (30/10) with detailed citation to requirements.

• Failure to Act = application deemed granted.• Deemed grant becomes effective after applicant notifies

community that time has passed.

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What Happens After Deemed Grant• Once community is notified of deemed grant, it

has 30 days to file an appeal in a court of competent jurisdiction.

• Locality can bring appeal: “when it believes the underlying application did not meet the criteria in Section 6409(a) for mandatory approval, would not comply with applicable building codes or other non-discretionary structural and safety codes, or for other reasons is not appropriately “deemed granted.”

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Sec. 332(c)(7) & 6409 TogetherAn application that is NOT eligible under Section 6409 may still be subject to consideration under Section 332(c)(7).

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Do’s• Examine whether your laws and forms are

consistent with new order (Hint: Probably not). Clarify in your ordinance/government practice

manual that DAS/small cell applications are entitled to Shot Clock.

• Consider enactment of an ordinance that prefers government property for cell locations.

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Do’s• Proprietary Ensure everyone in your organization understands

that this order does not grant right of free collocations on government property.

Ensure that you don’t grant that right in your leases /licenses by requiring approval in writing of municipality/Special District.

Ensure that industry does not use new rules as an excuse to install generators or switch out equipment at your sites.

•New Site

150 Days

•Collocation

90 Days

•6409 Collocations

60 Days

• Incompleteness for 6409 (a) & 332(c)(7)

30 Days

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Changes to Your Applications/Process• More stealth?• Require applicant provide documentation that is “reasonably

related to determining whether the eligible facilities request meets the requirements of Section 6409(a).” Meets size change – including cumulative limit. Meets any stealth obligations. Meets any building code/safety/non-discretionary

structural code. Complies with any condition of approval of construction

or modification imposed on the applicable wireless tower or base station.

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Don'ts• Impose a moratorium –

Commission is specific that moratoria will not toll 6409(a) or 332(c)(7) applications.

• Approve without understanding how a facility may expand – the smallest facility may grow an additional 10 feet up and 6 feet out.

• Demand documentation for the business need for the proposed modification or require a business case for expansion.

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Qs re: wireless Do you have processes in place that allow you to meet

federal deadlines : Do you have standards in place that allow you to

impose protective conditions? Do you have forms and questions in place so you can

get information you need. Should you re-examine policies for collocation? For use

of public property? Are you ensuring franchising authority is exercised? Don’t think of this as a one-off process (Non-

discrimination)

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Example of Risks to Local Revenues/Public Interest Obligations

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Background on franchising• Cities have broad franchising authority in Oregon

reaching entities that wish to place facilities in RoW Most notable – cable, where there is also a very detailed

federal law that addresses local franchising authority. Allows 5% franchise fee on revenues derived from

operation of cable system to provide cable service Allows PEG channels Allows PEG support Allows I-Nets Cable customer service standards But what does all that mean when technology is changing?

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Background on franchising• Move to IP• Installation of wireless facilities in home and in

street• Addition of streaming services• Reduction in subscribership via traditional cable

model?• Comcast/Eugene litigation [when you issue a cable

franchise, does it allow installation of all sort of other facilities and services without add’l fees?]

• Creates a risk – but also an opportunity.

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Example of Risks to Local Revenues/Public Interest Obligations

• FCC Proceeding: Promoting Innovation and Competition in the Provision of Multichannel Video Programming Distribution Services, Docket No. MB 14-261.

• https://www.fcc.gov/document/commission-adopts-mvpd-definition-nprm

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Overview• Main issue: What is a multi-channel video service

provider? Does it include entities that sell video programming services via the Internet (over the top) like Aereo?

• Classification could allow Internet video providers to obtain access to programming now denied them.

• But proceedings could also affect local authority to obtain compensation for delivery of video services via traditional cable systems, or to take advantage of new technologies to “stream” public, educational and government programming.

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What Is OTT? • FCC definition in rulemaking: “linear video

services that travel over the public Internet and that cable operators do not treat as managed video services on any cable system.”

• Linear = scheduled and virtually simultaneous with transmission - not like (traditional) NetFlix or iTunes.

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Is OTT provided by a Hulu subject to cable franchise fees?

• Traditional federally authorized franchise fees reach “Cable Operators”: entities that own or control cable systems; a fee can be collected on revenues derived by an operator from the operation of the cable system to provide cable services.

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What about Cable Operator provided OTT?

• “Video programming services that a cable operator may offer over the Internet should not be regulated as cable services.”

• “If a cable operator delivers video programming service over the Internet, rather than as a managed video service over its own facilities, we tentatively conclude… this entity would be… a non-cable MVPD under our proposed Linear Programming Interpretation with respect to its OTT service.”

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Why We Care If not “cable service,” then no franchise fees or

PEG support under Cable Act. If not cable service, PEG fees can’t be used to

support OTT. If not cable service not subject to consumer

protections. Most important: reduces cable service to an

increasingly niche service. Emphasizes the importance of pending Eugene

case in Oregon Supreme Court.

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Who Filed Comments?• This is one of a series of existential threats to

PEG.• But limited local participation so far: leading

local commenters – Coalition (Anne Arundel County, MD etc.); City of San Antonio, TX; Alliance for Community Media. Others: District of Columbia; American Community Television; NATOA.

• Comments can still be filed “ex parte.”

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Franchise Qs you should be asking• What is our approach to franchising – at federal,

state and local levels• How are we dealing with technology changes? • Are we preserving rights to additional

compensation• Are we including escape clauses that essentially

force requirements DOWN? • How does this fit in with long-term plans for

communicating with constituency? [not a one medium solution]

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Beyond Cable: Broadband Planning• Significant move by many communities to encourage deployment

through muni investment/attracting private vendors/P4 process. Assets Simplify processes for entering market Work with public/private players

• Reliance on incumbents not particularly wise.• But should be part of a broader plan for communications

development – as important as master plans How am I using communications How are businesses/residents using What are my eco development issues What risks do I face – as PSTN vanishes How do I minimize risks

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Other Risks• FCC Order recently indicated that a cable

operator may be able to claim that “in-kind” benefits in a franchise (such as requirements for free or discounted services) are franchise fees, and count against the federal 5% franchise fee limits.

• The FCC has a pending proceeding where telecom companies argue that compensation for use of the rights of way may be limited to costs.

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Other Risks• The Internet Tax Freedom Act (ITFA), enacted in 1998 and

extended five times will sunset on October 1, 2015. The House passed H.R. 235, the Permanent Internet Tax Freedom Act (PITFA), and goes to the Senate for consideration. The Marketplace Fairness Act. (S. 698; H.R.2775), provides state and local government with the authority to impose local sales tax on remote sales.

• Scope of ITFA at issue in Eugene case.

• ACTION NEEDED - Communities should communicate to their congressional delegation their opposition to H.R. 235 and their support for the Marketplace Fairness Act. (S. 698; H.R.2775).

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The Availability of Adequate Communications Services

• Federal proceedings underway to permit interstate carriers to abandon the public, switched telephone network.

• Open issue: will it be replaced by systems that can support advanced public safety/911 networks; or that can support basic communications functions without significant extra charges.

• Open issue: will there be widespread deployment of advanced communications networks to rural areas

• All issues are subject of ongoing FCC proceedings, and there will be new proceedings to define what should be treated as the “lifeline” minimum communications service available to the public.

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Local ability to incent broadband deployment, deploy muni networks

• Issues raised by FCC actions/court proceedings: Can localities require cable operators to deploy networks to

satisfy broadband needs (Section 621 appeal)? Can localities price access to right of way or other assets to

incent deployment (Section 253)? What ensures the public will be able to get information via the

Internet without interference from the network owner (net neutrality)?

Can localities make advanced facilities available to public?• Preemption under Section 706;• Universal service funding.

• You can advance your interest in broadband by participating at federal level.

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What You Can Do at Federal Level?• Submit comments to FCC in key proceedings.

http://apps.fcc.gov/ecfs/ [also where you can READ existing comments]

• Arrange meetings with Commissioners and staff.• Obtain support from local members of

Congress.• Be prepared to protect your interests if Eugene

wins – operators can be expected to seek relief from federal agencies.

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What You Can Do• Consider adopting policies that will allow your

staff to move promptly to respond in proceedings that affect local interests.

• Be sure your representatives/federal agencies understand that the concerns are not just staff concerns.

• Don’t leave the defense of your interests to a few communities.

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Joseph Van [email protected] Best & Krieger 2000 Pennsylvania Avenue N.W. Suite 5300 Washington, DC 20006 Phone: (202) 785-0600 Fax: (202) 785-1234 Cell: (202) 486-0770Website: www.bbklaw.com

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