BEFORE THE PENNSYLVANIA PUBLIC UTILITY COMMISSION

HARRISBURG, PA 17120

In the Matter of

Review of Issues Relating to Commission Certification of Distributed Antennae System Providers in Pennsylvania

) ) ) ) ) )

Docket No. M-2016-2517831

REPLY COMMENTS OF PCIA – THE WIRELESS INFRASTRUCTURE ASSOCIATION

I. INTRODUCTION

PCIA – The Wireless Infrastructure Association (“PCIA”) hereby submits its reply

comments regarding the above-captioned proceeding.

In its opening comments, PCIA discussed what Distributed Antenna Systems (“DAS”)

networks are and how providers of telecommunications services via DAS networks fit squarely

within the broad definition of “public utility” under Pennsylvania law. PCIA also explained that

companies providing telecommunications services via DAS networks are not CMRS providers,

and noted that the Commission has correctly certificated entities that employ DAS networks to

provide their telecommunications services, as well as many other companies that provide

virtually indistinguishable telecommunications services. PCIA explained that possession of a

Certificate of Public Convenience (“CPC”) reduces barriers to entry and provides companies

utilizing DAS networks ready means by which they may obtain their rightful access to utility

poles and public rights of way. Finally, PCIA discussed the myriad ways in which certificating

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companies that provide telecommunications services via DAS networks contributes to sound

public policy and serves the public interest, such as by encouraging technological innovation and

increasing competition. The key points made by PCIA in its initial comments were supported by

several other industry commenters, including Crown Castle, ExteNet, and CTIA – The Wireless

Association.

Other comments filed in this proceeding stated preliminary conclusions subject to further

information or reflected certain misunderstandings regarding DAS and its regulation by this

Commission and the Federal Communications Commission (“FCC”). In these reply comments,

PCIA provides additional information based on its members’ real-world experiences to help

clarify these issues.

II. COMPANIES THAT PROVIDE TELECOMMUNICATIONS SERVICE OVER DAS NETWORKS ARE PUBLIC UTILITIES UNDER PENNSYLVANIA LAW

PCIA previously provided a high-level explanation of DAS networks and how they

work.1 Other industry commenters also provided helpful information in this regard. CTIA and

Crown Castle offered detailed explanations of how communication signals are carried over a

DAS network and are handed off to and from wireless service provider customers.2

Furthermore, Crown Castle and ExteNet cautioned that DAS, as a term, describes a network, not

a service,3 with the latter company explaining that “DAS is a form of network architecture or

transmission path that can be deployed by any entity providing telecommunications services.”4

1 See Comments of PCIA – The Wireless Infrastructure Association at 3-4 (“PCIA Comments”). 2 See Comments of CTIA – The Wireless Association at 10 (“CTIA Comments”); Comments of Crown Castle at 3-4 (“Crown Castle Comments”). 3 See Crown Castle Comments at 3; Initial Comments of ExteNet Systems, Inc. at 1 (“ExteNet Comments”). 4 ExteNet Comments at 1.

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As the Office of Consumer Advocate (“OCA”) aptly noted, it “will defer to industry

participants for the more technical details requested by Question 1.a.(i), (ii), and (iii).”5 Such

background information on DAS networks is essential to understanding many of the issues raised

by the Commission in this proceeding and discussed in the parties’ opening comments.

The opening round of comments did, however, feature numerous misconceptions

regarding DAS networks. For instance, comments filed by a group of municipal associations

(referred to hereinafter as the “Municipalities”)6 referred to DAS variously as a “repeater

system,”7 a “booster,”8 “simply an extension”9 of CMRS systems, and even as CMRS or

personal communications service (“PCS”) itself.10 The Municipalities further stated—

incorrectly—that “DAS providers lease existing wireless broadband capacity to, but are not

involved with, the transportation or usage of such capacity;”11 that entities that provide DAS

networks’ “sole function is to support mobile broadband services;”12 and that “the DAS provider

5 OCA Comments at 5. 6 Throughout these reply comments, PCIA responds to statements made by the “Municipalities” in the set of comments dated April 16, 2016. PCIA notes that many of the same arguments are included in a series of form letters filed with the Commission in late April and early May by various individual municipalities. To the extent that issues raised by the Municipalities Comments and the form letters overlap, PCIA’s discussion in these reply comments addresses both sets of arguments. 7 See Responses of the Pennsylvania Municipal League, the Pennsylvania State Association of Township Supervisors, the Pennsylvania State Association of Boroughs, and the Pennsylvania State Association of Township Commissioners to the Public Utility Commission’s Questions Regarding Certification of Distributed Antennae Systems at 2, 3 (“Municipalities Comments”). 8 See id. at 2, 5, 7, 8, 11, 15. 9 Id. at 19. 10 Id. at 5 (“Not only do DAS providers constitute CMRS, but DAS providers also fall into a category of broadband personal communications service (‘PCS’) providers as defined in 47 CFR 24.5.”) 11 Id. at 21. 12 Municipalities Comments at 4.

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and the wireline transport provider are separate legal entities.”13 They also suggested that “DAS

providers neither transport, nor otherwise handle, wireless 911/E911 call and traffic data.”14

As the comments of PCIA and other industry participants explained, DAS is not a

“repeater”15 or a “booster” for CMRS, and as explained more fully below, DAS networks are

assuredly not CMRS or PCS. Providers deploying DAS networks do not lease wireless capacity

to CMRS providers but are instead “traditional carrier’s carrier[s]”16 that provide transport for

their “customers’ communications between points designated by the customers without alteration

of the content of the communications.”17 And, indeed, entities employing DAS technology do in

fact transport E911 traffic on behalf of their carrier customers, as noted by all four industry

commenters.18

A. Entities Employing DAS Networks in Pennsylvania Fall Squarely under the Commonwealth’s Definition of “Public Utility”

As the comments filed thus far demonstrate, companies that provide telecommunications

service via DAS networks meet the definition of “public utility” in Section 102(1)(vi) of the

13 Id. at 15. 14 Id. at 21. 15 See 47 C.F.R. § 22.99 (defining a “repeater” as “[a] fixed transmitter that retransmits the signals of other stations”). 16 See Crown Castle Comments at 3. 17 Id. 18 See PCIA Comments at 2; Crown Castle Comments at 3; CTIA Comments at 7; ExteNet Comments at 1, 23. It is not unexpected that the Municipalities might lack detailed knowledge of DAS networks and how they are structured and operated. After all, cities and towns are not in the DAS business (or the broader telecommunications business, for that matter), and thus should not be expected to have a thorough understanding of these matters. Nevertheless, the Municipalities have filed comments and have offered the Commission explicit recommendations on issues that fall well outside of their expertise. In these reply comments, PCIA has attempted, where applicable, to highlight and clarify misapprehensions regarding DAS networks recommendations.

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Public Utility Code.19 Entities utilizing DAS networks own and operate equipment and facilities

in Pennsylvania that transmit messages and communications, in the form of voice or data traffic,

for the companies’ customers.20

One issue raised by the Municipalities is whether the services offered by the providers of

DAS technology are offered to “the public.”21 The Municipalities bluntly assert that “DAS does

not provide services to the public.”22 But this contention is soundly refuted by commenters in

this proceeding and by the Commission’s own analysis. First, CTIA examines the relevant case

law and explains that

[w]hile [DAS Competitive Access Providers, or DAS CAPs] do not market their services [to] the general public, under Pennsylvania precedent a person provides “public” utility service within the meaning of the statute when she or he offers service to “any limited portion” of the public; “the fact that only a limited number of persons may have occasion to use [the service] does not make it a private undertaking if the public generally has a right to such use.” As “carriers’ carriers,” DAS CAPs offer their services to any member of the limited portion of the public that comprises wireless service providers operating in Pennsylvania.23

19 66 Pa. Cons. Stat. § 102(1)(vi) (“Any person or corporations now or hereafter owning or operating in this Commonwealth equipment or facilities for: … (vi) [c]onveying or transmitting messages or communications, except as set forth in paragraph (2)(iv), by telephone or telegraph or domestic public land mobile radio service including, but not limited to, point-to-point microwave radio service for the public for compensation.”). 20 See PCIA Comments at 5; Crown Castle Comments at 5; ExteNet Comments at 8; CTIA Comments at 8-9. 21 See Municipalities Comments at 22. 22 Id. 23 CTIA Comments at 8-9 (quoting Borough of Ambridge v. Pa. PSC, 165 A. 47, 49 (Pa. Super. 1933) and citing Waltman v. Pa. PUC, 596 A.2d 1221, 1223 (Pa. Cmwlth. 1991); Drexelbrook v. Pa. PUC, 418 Pa. 430, 212 A.2d 237, 239 (1965)).

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ExteNet adds that “Commission decisions in Rural Telephone, Waltman and Sprint

‘unequivocally’ support the finding that wholesale providers of telecommunications fall within

the scope of ‘to the public’ for purposes of 66 Pa. C.S. § 102.”24

Second, in its brief before the Commonwealth Court of Pennsylvania in Rural Telephone

Company Coalition v. Pennsylvania Public Utility Commission, the Commission relied on the

same body of case law and explained that “Pennsylvania precedent holds that service to the

public is not confined to retail service to the entire public. Service can include service to the

public, as a class, or to any limited portion of it, as contrasted with service only to particular

individuals.”25

B. DAS Is Not CMRS

The exception to the definition of a Public Utility at Section 102(2)(iv) regarding “mobile

domestic cellular radio telecommunications service,” however, has led to some confusion. As

noted in PCIA’s opening comments, it is generally agreed that the phrase “mobile domestic

cellular radio telecommunications service” is the functional equivalent of the term “commercial

mobile radio service,” or “CMRS,” under federal law. PCIA and the industry participants

explained in their initial comments why companies providing telecommunications service via

DAS networks are not CMRS.26 Because this is a key issue in terms of defining a “public

utility” in the Commonwealth, it is worth revisiting here to clear up misconceptions.

The Municipalities insist throughout their comments that DAS is CMRS. This

determination seems to be based on several premises, all of which are unfounded. First, the

24 ExteNet Comments at 11. 25 Initial Brief of Appellee-Respondent Pennsylvania Public Utility Commission at 27, Rural Telephone Company Coalition v. Pennsylvania Public Utility Commission, 941A.2d 751 (Pa. Commw. Ct. 2008) (citing Waltman, 596 A.2d at 1223; Drexelbrook 212 A.2d at 239). 26 See PCIA Comments at 5-7; Crown Castle Comments at 6-11; CTIA Comments at 8-13.

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Municipalities state that “[e]ntities that facilitate traditional CMRS in providing cellular services,

for example by increasing capacity or by providing additional coverage, could also qualify as

CMRS. DAS providers do just that, as their sole function is to support mobile broadband

services, not to promote landline services that are traditionally regulated by the Commission.”27

This formulation suffers from several deficiencies, not the least of which is that defining entities

that “facilitate traditional CMRS in providing cellular services” as CMRS itself would have the

unintended consequence of redefining any number of other, non-DAS types of

telecommunications services and their providers as CMRS as well. There are many types of

service providers that “facilitate CMRS” in some way, such as traditional backhaul providers.

As PCIA noted in its opening comments, a “backhaul provider is not converted into a wireless

carrier itself merely because it furnishes a critical element of a wireless carrier’s service.”28 In

addition, the Municipalities’ statement that the providers of DAS networks’ “sole function” is to

support mobile broadband and “not to promote landline services” ignores the reality that entities

that deploy DAS systems also provide different services utilizing different technologies.29

27 Municipalities Comments at 4. 28 PCIA Comments at 9. 29 See, e.g., Crown Castle at 5 (“In Pennsylvania alone, Crown Castle utilizes approximately 5,400 miles of fiber optic lines over which it offers a variety of telecommunications services in addition to the ‘RF transmission service’ offered via DAS configurations. Indeed, Crown Castle uses the fiber optic lines that were originally installed as part of a DAS network to provide other telecommunications services to enterprise customers, governments, schools, and institutions.”); see also OCA Comments at 9 (positing that “it is possible that some DAS services to wireless are provided by telecommunications carriers that may provide other jurisdictional services - such as fiber transport- that may be jurisdictional public utility service”), 19 (pointing out that “not all DAS providers employ the same business model and same mix of antennae, nodes, and fiber or in the same way” and that “[f]iber facilities in Pennsylvania clearly are used to provide intrastate telecommunications service”).

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Second, the Municipalities assert that DAS networks constitute CMRS based on the

federal definitions of the term at 47 U.S.C. § 332(d)(1) and 47 C.F.R. § 20.3.30 Specifically, the

Municipalities quote Section 332 of the Communications Act31 and argue that “DAS providers

meet both of these requirements. Their service is clearly ‘provided for profit,’ as they are for-

profit companies. They assist in making interconnected service available to the general public

by increasing broadband capacity for wireless data . . . .”32 This analysis, however, skips the

threshold element of the definition: “any mobile service (as defined in section 3) . . . .” The

reference to “mobile service” is a critical part of the definition that the Municipalities overlook.

As PCIA, Crown Castle, and CTIA explain in detail in their opening comments,

telecommunications service provided over a DAS network is not a “mobile service.”33

Specifically, under the Communications Act and FCC Rules, a “mobile service” is defined as “a

radio communication service carried on between mobile stations or receivers and land

stations, and by mobile stations communicating among themselves.”34 And as PCIA notes (and

Crown Castle and CTIA discuss at length), “DAS networks do not meet either part of the

definition of ‘mobile service’ because (1) they do not provide ‘radio communication’ and (2)

they do not provide service via facilities that are ‘mobile stations.’”35 Because DAS is not a

30 Municipalities Comments at 4-5. 31 The Municipalities actually misquote Section 332(d)(1) at pp. 4-5 of their comments. The text of the statute should read: “the term ‘commercial mobile service’ means any mobile service (as defined in section 3) that is provided for profit and makes interconnected service available (A) to the public or (B) to such classes of eligible users as to be effectively available to a substantial portion of the public, as specified by regulation by the Commission.” 32 Id. at 5. 33 See PCIA Comments at 6-7; Crown Castle Comments at 6-11; CTIA Comments at 10-12. 34 47 U.S.C. § 153(33); 47 C.F.R. § 20.3 (emphasis added). 35 PCIA Comments at 7; see Crown Castle Comments at 7-11 (explaining that providers of DAS networks do not transmit writing, signs, signals, pictures or sounds by radio; that their services

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“mobile service,” it cannot be CMRS, and thus the exception to the definition of “public utility”

does not apply to providers of telecommunications services over DAS networks.

Third, the Municipalities appear to argue that DAS networks might qualify as CMRS

under Section 20.9 of the FCC’s Rules (47 C.F.R. § 20.9). They state that Section 20.9 “further

clarifies” the Communications Act, as it states that “[M]obile services shall be treated as

common carriage services and regulated as commercial mobile radio services (including any

such service offered as a hybrid service or offered on an excess capacity basis to the extent it

meets the definition of commercial mobile radio service, or offered as an auxiliary or ancillary

service) . . . .”36 Because the Municipalities emphasize the language underlined above, but also

go on to quote the inclusion of “Personal Communications Services,” or “PCS,” in the list of

services provided in Section 20.9(a), it is not entirely clear whether the Municipalities are

arguing that Section 20.9 provides a separate means by which DAS networks might be

considered CMRS or that DAS networks are PCS, or both. In any event, DAS networks do not

fit the definition of PCS because, as explained above, the services provided via DAS networks

are not “mobile services,” foreclosing the possibility of bootstrapping Section 20.9 into an

alternative definition of CMRS that might ensnare DAS.37

are not “incidental to” the transmission of radio communications; and that services provided via DAS networks are not carried on between “mobile stations,” and thus the services provided via a DAS network by non-CMRS carriers do not meet the definition of “mobile service”); CTIA at 11-12 (same). 36 Municipalities Comments at 5 (quoting 47 C.F.R. § 20.9) (emphasis added by Municipalities). 37 PCS is defined as “[r]adio communications that encompass mobile and ancillary fixed communication that provide services to individuals and businesses and can be integrated with a variety of competing networks.” 47 C.F.R. § 24.5. As CTIA explained in its Comments, “DAS CAPs do not provide ‘radio communications service’ because the service they provide is the transportation of signals across their optical networks between the wireless service provider’s base station and the antennas installed at the DAS nodes. … [A]lthough DAS CAP services are used to help facilitate wireless service, the actual ‘transmission by radio’ is performed by the wireless service provider, not the CAP. The CAPs do not have any radios in their DAS

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Just as the providers of telecommunications services via DAS networks are not CMRS

providers, neither are they “wholesale CMRS” providers.38 As discussed above and as

established in the industry participants’ opening comments, services provided via a DAS

network do not meet the definition of CMRS. As a threshold matter, this would disqualify the

provider of a DAS network from being a “wholesale CMRS” provider; one could not provide at

wholesale what it is not providing at all.

The transport service provided via DAS networks by companies, such as Crown Castle, is

just one of many inputs used by CMRS carriers. But as PCIA and others have demonstrated, it is

not just DAS systems that are utilized by CMRS providers to transport their voice and data

traffic. Various types of telecommunications services—including those provided by so-called

“DAS providers” —are purchased by retail CMRS providers as wholesale inputs. None of these

services, such as traditional backhaul, point-to-point, or private line, are considered to be

“wholesale CMRS.”

Rather, to the extent that “wholesale CMRS” exists in the marketplace, that phrase more

accurately refers to a situation where a CMRS provider leases wireless capacity to a wireless

reseller or a “mobile virtual network operator,” or “MVNO,” like Straight Talk Wireless. As the

FCC has explained, resellers and MVNOs “purchase mobile wireless services wholesale from

facilities—all radio equipment is provided by the wireless service provider, either in the form of its base station or in the form of its end users’ mobile devices.” CTIA Comments at 11. Because providers of DAS networks do not provide “radio communications,” they do not fall within the definition of PCS in Section 24.5 of the FCC’s Rules. 38 See Application of SQF, LLC for Approval to Offer, Render, Furnish or Supply Telecommunication Services as a Competitive Access Provider to the Public in the Commonwealth of Pennsylvania, Order, Docket No. A-2015-2490501 (Order entered Nov. 19, 2015), Statement of Commissioner Robert F. Powelson at 2; see also OCA Comments at 2, 6.

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facilities-based providers and resell these services to consumers.”39 The providers of DAS

networks, on the other hand, typically “do[] not own, lease or use any wireless spectrum” as part

of their DAS system,40 and therefore could not (and do not) sell wireless services on a wholesale

basis.

C. The Commission Should Follow Its Own Precedent by Certificating Entities Providing DAS Networks

Despite the Commission’s own recitation of recent CPCs granted to so-called “DAS

providers,”41 the Municipalities make the odd claim that “[g]ranting public utility status to DAS

providers is not consistent with Commission precedent and does not align with the

Commission’s past Certificate of Public Convenience and Necessity (‘CPC’) issuances.”42

Based on the Municipalities’ subsequent discussion, it appears that they are not arguing that the

Commission has never granted CPCs to entities employing DAS technology, but rather that it

should not have done so. The OCA, on the other hand, states that it “believes that the

Commission has properly granted certificates in the past.”43

In the initial round of comments, the industry participants unanimously agreed that the

Commission has been correct in certificating entities providing telecommunications services via

39 In the Matter of Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993; Annual Report and Analysis of Competitive Market Conditions With Respect to Mobile Wireless, Including Commercial Mobile Services, Eighteenth Report, 30 FCC Rcd 14515 ¶ 11 (2015). 40 ExteNet Comments at 3; see also Crown Castle Comments at 4 (“Although its DAS networks incorporate antennas, Crown Castle does not provide any wireless services.”). 41 See, e.g., Review of Issues Relating to Commission Certification of Distributed Antennae System Providers in Pennsylvania, Order, Docket No. M-2016-2517831 (Order entered Mar. 5, 2016) (“To date, the Commission has issued CPCs to several telecommunications carriers that provide DAS service in Pennsylvania . . . . DAS providers in Pennsylvania typically have applied for and been certificated as Competitive Access Providers (CAPs).”). 42 Municipalities Comments at 6. 43 OCA Comments at 17.

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DAS networks.44 As Crown Castle pointed out, “[i]n many cases over the last ten or more years,

the Commission has correctly concluded that Crown Castle and other similar companies are

public utilities, meriting the issuance of CPCs. The Commission has also issued certificates to

other entities that provide wholesale telecommunications services that are indistinguishable from

those provided by entities using DAS technology.”45 Not only does granting CPCs to providers

of DAS networks conform to Pennsylvania law (as discussed above), but it also squares with

Commission precedent and the actions of many other state commissions. ExteNet notes that it

holds certifications in 35 states,46 whereas Crown Castle has certificates in 45 other states, Puerto

Rico and the District of Columbia.47 As such, the Commission should continue its practice of

granting certificates to companies that provide telecommunications services via DAS.

On a related note, the industry participant commenters all pointed out that the entities

providing DAS technologies are not necessarily “DAS-only” providers. PCIA previously

explained that companies using DAS networks are also providing other telecommunications

services apart from the customer relationships for which DAS facilities are initially deployed.48

Those networks and facilities may be integrated, which means that “DAS” should not be readily

singled out as a specific technology that receives disparate regulatory treatment from the

Commission.49 As Crown Castle indicated, “portions of Crown Castle’s DAS networks are

44 See PCIA Comments at 7-9; Crown Castle Comments at 11-13; ExteNet Comments at 4, 8, 9, 13; CTIA Comments at 18-19. 45 Crown Castle Comments at 11-12. 46 ExteNet Comments at 3. 47 Crown Castle Comments at 13. 48 See PCIA Comments at 3-4, 9. 49 See OCA Comments at 9 (“[T]he OCA submits that it is possible that some DAS services to wireless are provided by telecommunications carriers that may provide other jurisdictional services – such as fiber transport – that may be jurisdictional public utility service.”). PCIA

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being used to provide a variety of telecommunications services to enterprise, institutional,

governmental, educational, and carrier customers.”50 Failing to certify a so-called “DAS

provider” simply because it provides services via a DAS network would have the unintended

consequence of failing to certify and regulate other telecommunications services that have been

universally recognized as requiring a CPC by the Commission.

III. CERTIFICATION BY THE COMMISSION IS NOT PREEMPTED BY FEDERAL LAW

Throughout their comments, the Municipalities assert that the certification and regulation

of the providers of DAS networks is preempted by federal law and FCC regulation. They argue

that DAS-based services must be interstate because DAS systems “are grouped with other DAS

systems to create a patchwork infrastructure for a larger national wireless communications

network,”51 and “the capacity boost created by individual DAS network [sic] could easily cross

state lines”52 because specific DAS networks “cannot be separated from the capacity boost or

coverage patch as it relates to the CMRS network as a whole.”53 Statements such as these reflect

disagrees with the implication that “DAS services to wireless” are not “jurisdictional” to the Commission, but agrees with the suggestion that the Commission should not limit its analysis to services provided via DAS technology. 50 Id. at 2; see also id. at 12 (“Crown Castle also provides other telecommunications services, including traditional ‘backhaul’ for wireless carriers over networks that do not employ DAS technology. . . . [W]hile some providers may only provide service via DAS networks initially, many entities working with DAS technology utilize their facilities for other types of services. In doing so, they very closely resemble other certificated entities that offer private line, backhaul, and related services.”); ExteNet Comments at 15 (“Traditional fiber transport service providers can, and do, provide telecommunications services using DAS architecture alongside their traditional fiber transport services. Similarly, ExteNet provides the same traditional fiber transport services alongside its DAS architecture. Thus, the differentiation of who is a provider of DAS services may rest solely in the company’s marketing of itself or may be indistinguishable altogether.”). 51 Municipalities Comments at 7. 52 Id. at 8. 53 Id. at 11.

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a misunderstanding of the nature of the services provided by entities utilizing DAS networks as

well as a misapprehension of the roles telecommunications service providers play in the broader

network. The way in which DAS networks are utilized in conjunction with providers’ carrier

customers’ networks is discussed more fully above and in the industry participants’ opening

comments. Furthermore, an intrastate service such as traditional backhaul, for example, is not

automatically converted into an interstate service because a customer’s larger network extends

into multiple states. The delineation of intrastate versus interstate typically depends on the

geographic end points of the service at issue.54 The Municipalities are seemingly arguing that

because providers of DAS systems have CMRS customers with national networks, the services

provided via DAS must necessarily be interstate. However, most DAS networks are constructed

such that all of the components – hub, fiber, and nodes – are located within a single state. By

way of example, ExteNet explains that it “offers intrastate telecommunications services in the

Commonwealth because it collects the traffic in the Commonwealth for its customers, and

delivers that traffic to its customers’ networks, all within the Commonwealth of Pennsylvania.”55

The services provided by entities deploying DAS networks are, in most cases, jurisdictionally

54 See, e.g., 47 U.S.C. § 153(28) (“The term ‘interstate communication’ or ‘interstate transmission’ means communication or transmission (A) from any State, Territory, or possession of the United States (other than the [Philippine Islands and] the Canal Zone), or the District of Columbia, to any other State, Territory, or possession of the United States (other than [the Philippine Islands and] the Canal Zone), or the District of Columbia, (B) from or to the United States to or from [the Philippine Islands or] the Canal Zone, insofar as such communication or transmission takes place within the United States, or (C) between points within the United States but through a foreign country; but shall not, with respect to the provisions of title II of this Act [47 U.S.C. §§ 201 et seq.] (other than section 223 thereof [47 U.S.C. § 223]) include wire or radio communication between points in the same State, Territory, or possession of the United States, or the District of Columbia, through any place outside thereof, if such communication is regulated by a State commission.”). 55 ExteNet Comments at 12. See also OCA Comments at 19 (“Fiber facilities in Pennsylvania clearly are used to provide intrastate telecommunications service.”).

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intrastate. Insofar as certification by the Commission is concerned, such services are therefore

not subject to federal preemption.

The Municipalities also offer other reasons why they believe that Commission

certification of the providers deploying DAS networks is preempted by federal law. Among

these is what appears to be an express preemption argument, where the Municipalities argue that

“DAS providers can be designated as either CMRS or PCS, both of which fall outside of the

Commission’s regulatory jurisdiction.”56 The Municipalities claim that “the FCC’s October

2014 Report and Order… specifically recognizes DAS providers as PCS and subject to FCC

authority.”57 The Municipalities’ argument is wrong and a misreading of the FCC’s order.

The relevant analysis regarding DAS in the FCC’s 2014 Wireless Infrastructure Order did

not address whether or how services provided via a DAS network are or should be regulated by

the FCC. Rather, it addressed the extent to which DAS facilities qualify for the same siting

timeframes laid in the FCC’s 2009 “Shot Clock” order. Section 332(c)(7) of the

Communications Act differentiates between local government actions that have an impact on

personal wireless services and decisions that concern personal wireless service facilities.58 The

FCC did not establish or change any regulatory classification of services provided via DAS

56 Municipalities Comments at 10. 57 Id. (citing Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies; 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; 2012 Biennial Review of Telecommunications Regulations, Report and Order, 29 FCC Rcd 12865 ¶¶ 22, 243-50 (2014) (“2014 Wireless Infrastructure Order”)). 58 47 U.S.C. § 332(c)(7)(C)(i) (defining “personal wireless services”); 47 U.S.C. § 332(c)(7)(C)(ii) (defining “personal wireless service facilities”). Compare 47 U.S.C. § 332(c)(7)(B)(i)(II) (local government denial cannot have the effect of prohibiting the provision of “personal wireless services”), with 47 U.S.C. § 332(c)(7)(B)(iii) (denial of “a request to place, construct, or modify personal wireless service facilities” must be supported by substantial evidence) (emphasis added),

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networks.59 Specifically, the FCC “clarif[ied] that to the extent DAS or small-cell facilities,

including third-party facilities such as neutral host DAS deployments, are or will be used for the

provision of personal wireless services, their siting applications are subject to the same

presumptively reasonable timeframes that apply to applications related to other personal wireless

service facilities.”60

Later, the Municipalities invoke what seems to be a field preemption argument, asserting

that “a breadth of case law has developed relating to small cell technologies and other types of

newer wireless facilities (i.e., DAS),” and stating that, because entities providing DAS “are

affected by” this body of federal law and regulation, “[f]urther Commission rules or regulations

would likely conflict with the extensive federal regulatory framework that already applies to

DAS providers.”61 In addition, the Municipalities make a similar argument in which they claim

that “[t]he FCC’s 2014 Report and Order makes clear that the FCC regulates DAS providers,”

and that such regulation is exclusive because the FCC’s order addresses areas the

Communications Act had previously reserved for the states via Section 253(b).62

It is correct that providers of DAS networks are impacted by federal law and FCC

regulation. However, it is not accurate to claim that because FCC regulation affects entities

59 It is also important to note that the relevant phrase in the FCC’s Order, “personal wireless services facilities,” is not the same thing as “personal communications services,” or “PCS,” as the Cities assert. The former is a phrase from Section 332(c)(7) of the Communications Act, 47 U.S.C. § 332(c)(7), that includes various wireless services. 47 U.S.C. § 332(c)(7)(C)(i) (defining “personal wireless services”). The latter is, as discussed above, a type of “radio communications” service that, by definition, does not include DAS, see supra note 37 and accompanying text, and that is not involved in the FCC’s discussion of DAS in the 2014 Wireless Infrastructure Order. 60 2014 Wireless Infrastructure Order at ¶ 270 (emphasis added). 61 Id. at 11. The Municipalities refer here to “a breadth of case law” but specify two FCC orders and two federal statutes. 62 Id. at 13-14.

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providing DAS systems in some way it therefore preempts state regulation of them in every way.

As CTIA explained in its opening comments, “[l]imited preemption of state law has occurred in

two areas relevant to DAS CAPs: (i) access to poles, ducts, conduits or rights-of-way owned or

controlled by other utilities, and (ii) the siting of DAS nodes.”63 Significantly, though, “federal

preemption in these areas, while strong, is also quite narrow. There are many aspects of the

‘optical transit services’ provided by DAS CAPs that have nothing to do with private utility pole

attachments or the siting of DAS nodes.”64 In other words, to the extent the Commission

attempted to regulate pole attachment agreements or facility siting, it would likely be preempted.

Other areas of potential regulation, such as the certification of new entrants, remain under the

jurisdiction of the Commission.

IV. CERTIFICATION REMOVES BARRIERS TO ENTRY AND FACILITATES ACCESS TO POLES AND RIGHTS OF WAY

In their initial comments, PCIA and other industry participants explained how, in

practical terms, a lack of a CPC can be a barrier to entry for providers of DAS networks,

particularly in terms of their ability to gain access to utility poles or public rights of way.65

Interestingly, the Municipalities posited that it is the CPC itself that constitutes a barrier to

entry.66 The Municipalities opined that “[b]y requiring a CPC, the Commission would be

creating an unnecessary burden for the DAS provider to overcome,” and that other potential

aspects of regulation, such as “a comprehensive tariff policy and rate review process for each

DAS provider . . . would further complicate a DAS provider’s entry into the market.”67

63 CTIA Comments at 14. 64 Id. at 16. 65 See PCIA Comments at 9-12; Crown Castle Comments at 13-16; ExteNet Comments at 17-20. 66 See Municipalities Comments at 11, 15. 67 Id. at 20.

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While it is true that applying for a CPC requires some effort from a service provider, the

Municipalities’ formulation has it exactly wrong. The benefits of possessing a CPC far outweigh

the (slight) burden. Holding a CPC facilitates access to poles and rights of way for providers of

DAS networks, while not having one can “severely impair or thwart [a provider’s] ability to

deploy services in a state.”68

Possession of such authorization can dramatically impact a company’s ability to gain

access to utility poles at fair and reasonable rates, terms, and conditions and, importantly, to

obtain that access in a reasonable amount of time. As PCIA and others noted in the first round of

comments, telecommunications service providers may have a federal right to access investor-

owned utility poles, but that rarely leads to a frictionless process of exercising that right. The

Municipalities suggest that pole owners’ routine negotiation of pole attachment agreements

throughout Pennsylvania “would assuredly continue in the event that DAS providers were not

issued CPCs, as it is a steady stream of income for the utilities that own the poles.”69 This view

is naïve at best—there is a reason that Congress saw fit to enshrine a right of nondiscriminatory

access to poles, ducts, and conduits in federal law.70 As Crown Castle noted, “some pole owners

look for any opportunity to avoid allowing access to their poles (and hence the reason for the

mandatory right of access in Section 224 of the Communications Act).”71 The Fibertech case

cited by PCIA and Crown Castle in opening comments serves as a cautionary example of this

phenomenon, as the pole owner refused access to its poles, claiming that Fibertech was not a 68 ExteNet Comments at 18; see also PCIA Comments at 2-3, 9-10. 69 Municipalities Comments at 16. 70 See 47 U.S.C. § 224(f). 71 Crown Castle Comments at 13; see also ExteNet Comments at 20 (“It [refusing a CPC] also creates an untenable situation whereby a hostile pole owner can deny access or extract additional concessions or higher prices and become a bottleneck along a proposed network route that requires access to the poles or rights of way of multiple utilities.”).

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“telecommunications carrier.”72 Any number of pole attachment complaints filed with the FCC

serve as further testaments to the reality that utility pole owners most certainly do not embrace

pole attachments as sources of income, or for that matter view them as anything less than a

necessary evil. The ability to “prove” its status as a telecommunications service provider with

enforceable pole access rights via a Commission-issued CPC is invaluable to a company utilizing

DAS technology.

On the issue of access to public rights of way, the Municipalities were nearly as sanguine:

“Even without a CPC in hand, DAS providers can easily locate their facilities both in the public

rights-of-way and on private property to infill capacity and coverages gaps (so long as such

location is not prohibited by the local zoning authority).”73 Beyond this sweeping

generalization, the Municipalities also point to collocation rules stemming from the

Commonwealth’s Wireless Broadband Collocation Act (“WBCA”) or the FCC’s 2014 Wireless

Infrastructure Order to suggest that providers of DAS networks face few barriers in accessing the

public rights of way. The reality, though, is much different.

Throughout these reply comments, PCIA has pointed out misconceptions promulgated by

parties to this proceeding. If the services provided via DAS networks can prove confusing to

sophisticated entities like those participating in this docket, they certainly can be difficult to

understand for laypersons in the cities, towns, and boroughs of the Commonwealth who are not

at all familiar with DAS technology or the broader communications industry. As ExteNet

indicated, “[u]tilities, and especially municipalities, are often not qualified to determine who

would otherwise qualify as a telecommunications carrier entitled to regulated access, so whether 72 See Fiber Technologies Networks, LLC v. North Pittsburgh Telephone Company, Memorandum Opinion and Order, File No. EB-05-MD-014, 22 FCC Rcd 3392 ¶ 6 (E.B. Feb. 23, 2007); see also PCIA Comments at 10; Crown Castle Comments at 14-15. 73 Municipalities Comments at 12.

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correct or not, utilities and municipalities rely heavily [upon] and require proof of certification as

a matter of course.”74 Without a CPC to assure local officials of the company’s rights and status

as a regulated entity, providers of DAS networks would face numerous obstacles to accessing the

public rights of way, ranging from unnecessary delays to actual loss of access.75 Finally, it

should be noted that the collocation rights touted by the Municipalities are not the panacea they

suggest, for the simple reason that locating more than one DAS node on a single pole or other

facility often cannot be done due to loading concerns. This demonstrates that, although the

Municipalities claim that entities deploying DAS technology can “easily utilize federal [or state]

laws and regulations,” the path to accessing the public rights of way is not quite so “easy” in

practice.

V. MAINTAINING A LEVEL PLAYING FIELD FOR PROVIDERS USING DAS NETWORKS SUPPORTS PUBLIC POLICY GOALS

PCIA previously pointed out that certification of entities providing DAS networks plays

an important role in achieving various public policy goals in the Commonwealth. PCIA’s views

found strong support in other participants’ opening comments. CTIA explained that the existing

policy of issuing CPCs to providers deploying DAS facilities “has produced concrete benefits for

Pennsylvania wireless service consumers,” pointing to successful deployments of facilities by

Crown Castle in Philadelphia and Pittsburgh.76 ExteNet noted that its facilities in Pennsylvania

have improved the consumer experience in 46 municipalities, and explained that the company

“has been investing capital, building networks, creating jobs in Pennsylvania, and competing for

74 ExteNet Comments at 18. 75 See Crown Castle Comments at 17-18. 76 CTIA Comments at 18-19.

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and winning customers.”77 Crown Castle, for its part, discussed how DAS networks “are an

important part of the modern telecommunications marketplace” and noted that “[p]roviders that

deploy and utilize innovative and cost-effective DAS networks to provide their services also

serve as an additional source of competition to entrenched service providers, to the ultimate

benefit of consumers.”78

These points reiterate the notion that increased competition and technological innovation

serve the public interest. DAS systems straddle both the new and the old, as providers of DAS

networks utilize innovative technology to provide traditional telecommunications services like

transport and backhaul. However, because companies employing DAS networks provide

traditional services of this nature, it is important that they stand on an equal regulatory footing

with other competitors providing essentially indistinguishable telecommunications services.79

77 ExteNet Comments at 5, 7. 78 Crown Castle Comments at 2. 79 The Municipalities suggest in their comments that companies providing DAS are not regulated in the same manner as other companies holding CPCs: “DAS providers enjoy the benefit of having access to the public rights-of-way via CPCs, but are not subject to Commission regulations, tariffs or rate reviews.” Municipalities Comments at 18. The Municipalities are mistaken; providers of DAS networks are subject to Commission regulation as holders of Commission certificates. Furthermore, entities providing DAS networks that have received CPCs do, in fact, file tariffs with the Commission. CTIA provides an extensive list of companies that deploy DAS that have also filed tariffs with the Commission, as well as detailed references to relevant provisions within those tariffs, in notes 9-13 of its opening comments. See CTIA Comments at 6-7. The Municipalities also argue that the Commission should regulate the rates at which providers of DAS networks provide their services to customers. DAS-based services are typically provided on an individual case basis (“ICB”), which is well-established as a valid means of contracting under Commission precedent. See, e.g., Application of NextGen Communications, Inc. for Approval to Offer, Render, Furnish or Supply Telecommunication Services as a Competitive Local Exchange Carrier (CLEC) in All 37 Incumbent Territories within the Commonwealth of Pennsylvania, Order, Docket Nos. A-2010-2187730 et al. (Order entered Dec. 3, 2010) (noting that NextGen would provide certain services on ICB rates, terms and conditions and explaining that such ICB contracts may be subject to review under certain circumstances).

CERTIFICATE OF SERVICE

I hereby certify that I have this day served a true copy of the Reply Comments of

PCIA – The Wireless Infrastructure Association, upon participants in this proceeding in

accordance with the requirements of 52 Pa. Code § 1.54 (relating to service by a

participant).

Dated this 16th day of May 2016.

VIA FIRST CLASS MAIL Barrett C. Sheridan Assistant Consumer Advocate Office of Consumer Advocate 555 Walnut Street, 5th Floor Forum Place Harrisburg, PA 17101-1923 John Evans Office of Small Business Advocate Commerce Building, Suite 202 300 North Second Street Harrisburh, PA 17101 Natausha M. Horton Daniel S. Cohen, Esquire 413 S. Main Street, 3rd Floor Pittsburgh, PA 15215 Wayne MacWilliams President, Borough Council P.O. Box 218 49 Main Street Delaware Water Gap, PA 18327 Timothy J. Little Municipality of Monroeville 2700 Monroeville Boulevard Monroeville, PA 15146-2388

Larry D. Skinner, DC Wayne Wagner Jill Redash-Caposella Lehigh Township Carbon County 1741 South Lehigh Gorge Drive Weatherly, PA 18255-4613 Mark E. Morrow, Chair Hemlock Township 26 Firehall Road Bloomsburg, PA 17815 Carroll Diefenbach Chairman White Deer Township Supervisors 2191 Creek Road New Columbia. PA 17856 E. Jean Krack Borough Manager The Borough of Phoenixville Chester County, Pennsylvnia 351 Bridge Street, 2nd Floor Phoenixville, PA 19460

Connie L. Stokes Manager Dallastown Borough 175 E. Broad Street Dallastown, PA 17313 John H. Groh Brian P. McGrath John E. Morgan Millcreek Township 3608 West 26th Street Erie, PA 16506-2037 Douglas A. Baker Mayor City of Franklin 430 Thirteenth Street Franklin, PA 16323 Sharon L. Vinci Secretary-Treasurer Hanover Township 2731 State Route 18 Hookstown, PA 15050 W. Bruce Clark Township Manager Township of Middletown Delaware County, Pennsylvania 27 N. Pennell Road P.O. Box 157 Lima, PA 19037-0157 Kali Sodano Borough Council President The Borough of Penndel Bucks County 300 Bellevue Avenue Penndel, PA 19047 John McMenamin Township Manager Lower Southampton Township 1500 Desirk Avenue Feasterville , P A 19053

Stephen A. Wallin Chairman Upper Southampton Township 939 Street Road Southampton, PA 18966-4787 Michael P. Lynch Township Manager East Bradford Township Chester County 666 Copeland School Road West Chester, PA 19380-1822 Dennis Hameister Chairman, Board of Supervisors Harris Township Post Office Box 20, 224 East Main Street Boalsburg, PA 16827 Stacey Kifolo Township Manage East Buffalo Township Supvervisors 589 Fairground Road Lewisburg, PA 17837 David L. Grove, President of Council Swartmore Township Administrative Office 121 Park Avenue Swarthmore, PA 19081 Tommy Ryan Township Manager Township of Worcester 1721 Valley Forge Road Worcester, PA 19490 Kenneth M. Martin President, Board of Commissioners Upper Allen Township 100 Gettsyburg Pike Mechanicsburg, PA 1 7055-5698

Jim Morrisson Member, Board of Supervisors Schuylkill Township 111 Valley Park Road Phoenixville, PA 19460-5766 Sharon L. Trexler Borough Manager Borough of Alburtis P.O. BOX 435 260 Franklin Street Alburtis, PA 18011 Gary J. Koehler Borough Manager Fox Chapel Borough 401 Fox Chapel Road Pittsburgh, PA 15238 W. Christopher Lochner Municipal Manager Township of Hampton 3101 McCully Road Allison Park, PA 15101 Savatore J. Panto, Jr. Mayor City of Easton One South Third Street Easton, PA 18042 Cathy Hoffman Acting Borough Manager Borough of West Reading 500 Chestnut Street West Reading, PA 19611 Pamela C. Polacek Counsel to the Broadband Cable Association of Pennsylvania McNees Wallace & Nurick LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108

President of Council Borough of Fountain Hill 941 Long Street Fountain Hill Pennsylvania Bethlehem, PA 18015-2660 Louis F. Smith, Jr. Township Manager Board of Supervisors East Goshen Township 1580 Paoli Pike West Chester, PA 19380-6199 Nicholas Bournakel Administrator SQF, LLC 245 Commercial Street Suite 203 Portland, ME 04101 Cheri F. Grumbine Township Manager North Lebanon Township 725 Kimmerlings Road Lebanon, PA 17046 Dennis F. Scarpinit, Esq., CMC Certified Municipal Clerk City of New Kensington 301 Eleventh Street New Kensington, PA 15068 Dean K. Davis Board of Supervisors, Chairman Monroe Township 39 Municipal Drive Selinsgrove, PA 17870 Christopher M. Arfaa Hawke McKeon & Sniscak LLP Counsel for CTIA-The Wireless Assoc. 100 N. 10th Street Harrisburg, PA 17101

T. Scott Thompson Bradley Guyton Davis Wright Tremaine LLP Counsel for Crown Castle 1919 Pennsylvania Ave, NW Suite 800 Washington, PA 20006 Maureen Sterner Borough Manager Borough of Jim Thorpe 101 East Tenth Street Jim Thorpe, PA 1 8229 Joseph Wise William Zimmennan Daniel Dietrich Township Supervisors Buffalo Township 2115 Strickler Road Mifflinburg, PA 17844 Michael Sarkos Deputy City Solicitator City of Philadelphia Law Department One Parkway 1515 Arch Street Philadelphia, PA 19102-1595 Robert M. Pellegrino Township Manager Township of Northampton 55 Township Road Richboro, PA 18954-1 592 William L. Rogers Borough Manager Borough of North East 31 West Main Street North East, PA 16428 Mayor Anthony G. George City of Wilkes-Barre 40 East Market Street Wilkes-Barre, PA 18711

Michael A. Gruin Stevens & Lee, P.C. Counsel for ExteNet Systems, Inc. 17 North Second Street 16th Floor Harrisburg, PA 17101 Brian Kirk Assistant General Counsel ExteNet Systems, Inc. 3030 Warrenville Road, Suite 340 Lisle, IL 60532 Monica Gambino Vice President, Legal Robert Millar Associate General Counsel Crown Castle 2000 Corporate Drive Canonsburg, PA 1 5317 Richard M. Hadley, Chairman Board of Supervisors Cranberry Township 2525 Rochester Road, Ste 400 Cranberry Township, PA 16066 Sue Ann Barry Borough Manager Borough of Lititz, Pennsylvania 7 South Broad Street Lititz, PA 17543 Paul K. Cornell Township Manager East Hanover Township Dauphin County East Hanover Township Board of Supervisors 8848 Jonestown Road Grantville, PA 17028-9545 Charles S. Beck, Jr. Borough Manager Borough of Milton 2 Filbert Street Milton, PA 17847-1708