Wireless Telecommunication Facilities: Preparing for the ...

January 8, 2014 Webinar

Co-sponsored by AWC and AT&TPresenter:

Shane Hope, City of Mountlake Terrace

Wireless Telecommunication Facilities:

Preparing for the Coming Wave

Presentation Focus

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Federal & state regulations

Suggestions to consider for

updating local regulations

Recent Federal and State

regulations

Wireless Telecommunication Facilities

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Background

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Local governments have interest in: Community livability Consumer protection & property

rights Economic vitality Public property & public right of

way Emergency services

Local governments generally have authority to make local zoning decisions & set permitting processes

Some exceptions…

Telecommunications Act of 1996

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First major overhaul of federal telecommunications law in 60 years

Refined & added to the older Pole Attachment Act

First time internet was included in broadcasting & spectrum allotment

Provided deregulation of converging broadcasting & telecommunications markets

Limited regulatory barriers to establishing telecommunication facilities

FCC’s Declaratory Ruling of 2009

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Wireless facility applications (except “collocations”) must be

decided within 150 days of application being filed

Collocations of wireless facilities must be decided within 90

days of application filing Collocation includes any existing building, whether or not it has existing

wireless facility

Tower collocation is limited to changes that do not involve “substantial

increase in the size of a tower” as defined in Nationwide Programmatic

Agreement for Collocation of Wireless Antennas

Nationwide Programmatic Agreement

for Collocation of Wireless Antennas

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Defines “substantial increase in the size of the tower” to mean: Increase of existing tower height by more than 10% or by height of 1 additional antenna

array with separation from nearest existing antenna not to exceed 20 ft (whichever is greater), except proposed antenna may exceed above size limits if necessary to avoid interference with existing antennas; or

Mounting of proposed antenna would involve installation of more than standard number of new equipment cabinets for technology involved, not to exceed four (4), or more than one (1) new equipment shelter; or

Mounting of proposed antenna would involve adding appurtenance to body of tower that would protrude more than 20 ft from tower edge, or more than width of tower structure at level of appurtenance (whichever is greater), except that proposed antenna may exceed above size limits if necessary to shelter antenna from inclement weather or to connect antenna to tower via cable; or

Mounting of proposed antenna would involve excavation outside current tower site, defined as current boundaries of the leased or owned property surrounding the tower & any access or utility easements currently related to the site.

FCC’s Declaratory Ruling of 2009

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Local governments may rebut FCC presumption for 90/150

days as threshold of reasonableness on particular case when

drawn into court

Shot clock may be extended reasonable length of time if

applicant & municipality agree

If local government notifies applicant within 30 days of filing

that application is incomplete, shot clock stops until

application is complete

FCC’s Declaratory Ruling of 2009

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State & local rules with longer clock (or no clocks) are preempted by FCC shot clock

State & local rules with shorter clocks continue to apply under state law but FFC shot clock controls when applicant can take case to federal court

Prohibition of service determinations must be based on individual carrier’s issues; presence of another carrier’s service is no defense for denial

Denial must be based on substantial evidence contained in written record

Court Challenge to

FCC’s Declaratory Ruling of 2009

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Two Texas cities challenged FCC’s Ruling

Supreme Court, in May 2013, upheld key parts of FCC’s

Ruling

While decision does not apply comprehensively, it has broad

implications

Key finding is for FCC authority to interpret aspects of law and

establish shot clock

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Section 6409 of “Middle Class Tax

Relief & Job Creation Act of 2012”

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Mandates that state & local governments approve “eligible facility requests” for modifying existing wireless towers or base stations if modifications would not “substantially change” tower or base station’s physical dimensions

“Eligible facility request” means any request involving:

Collocation of new transmission equipment

Removal of transmission equipment

Replacement of transmission equipment

Notes about Section 6409:

Preempts aspects of local authority & discretion: Does not preclude local review of proposals but generally precludes conditional

processes & denials of eligible facility requests

Specifically does not relieve requirements of NHPA or NEPA

New FCC Rules Proposal

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FCC’s Notice of Proposed Rulemaking—published

December 5, 2013 in Federal Register

To expedite permitting of wireless facilities & further

implement Telecommunications Act of 1996

February 3, 2014 due date for comments

March 5, 2014 due date for FCC response

Issues Behind FCC Proposed Rules

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1. Expediting environmental review process related to newer technology & structure types

2. Possible narrow exemption from FCC pre-construction environmental notification requirements for certain temporary towers

3. Clarification of requirement from Section 6409 (Middle Class Tax Relief and Job Creation Act of 2012) regarding state & local government authority

4. Whether/how to address disputes/questions from FCC’s 2009 Declaratory Ruling

Some Questions that May Be Decided

by Next FCC Rules

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What constitutes a “base station”?

How to interpret “modification” of tower or base station?

What does “existing” mean?

Should the standard for substantial change be different for

towers vs. buildings or utility poles?

Can local governments require “stealth” (camouflage)

conditions?

Should federal rules further restrict local permitting

processes?

FCC proposed rules

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Local governments should review &

consider commenting on FCC’s

proposed rules by February 3, 2014

See FCC website:

http://www.fcc.gov/document/fcc-

proposes-remove-barriers-wireless-

infrastructure-0

State Environmental Policy (SEPA):

2013 Updates

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Dept. of Ecology adopted SEPA rules update (WAC 197-11-

800(25)) that made:

Personal wireless service facilities* a categorical exemption.

Applies to:

Microcells* attached to an existing structure (other than a residence or

school)

Other personal wireless service antennas attached to an existing structure

(other than a residence or school)

Construction of a wireless service tower less than 60’ tall if located in a

commercial, industrial, forest, or agricultural zone

SEPA Rules Definitions

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“Personal wireless services” means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services (as defined by federal law)

“Microcell” means wireless communication facility consisting of antenna that is either:

Up to 4 ft high & with area not more than 580 square inches OR

If a tubular antenna, no more than 4 inches in diameter & no more than 6 ft in length

Note: Exemption does not apply to projects within a GMA critical area

2013 SEPA Legislation

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HB 1183 amended RC2 43.21C.0384 to exempt the

following except when located in a designated critical area:

Collocation of new equipment, removal of equipment, or

replacement of existing equipment on existing or replacement

structures that does not substantially change structure’s physical

dimensions*

Construction of wireless service tower less than 60 feet tall

when located in commercial, industrial, manufacturing, forest,

or agricultural zone

HB 1183- SEPA Legislation

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Definition from HB 1183:

“Substantially change the physical dimensions” means:

A. Mounting of equipment on structure that would increase height of structure by more than 10% or 20 ft, whichever is greater; or

B. Mounting of equipment that would involve adding appurtenance to body of structure that would protrude from edge of structure more than 20 feet, or more than width of structure at level of appurtenance, whichever is greater.

NOTE: Ecology plans to amend SEPA rules in next rulemaking phase to include HB 1183 provisions.

Suggestions to consider for updating

local regulations

Wireless Telecommunication Facilities

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How long has it been?

Do current local regulations…

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Include FCC “shot clock”

requirements?

Address SEPA exemptions for

wireless facilities?

Define “collocation” for SEPA

exemption purposes, consistent with

new SEPA legislation?

Provide application submittal

criteria, consistent with current

laws?

Streamline review for collocations?

Meet today’s needs & issues?

If proposing update to local

regulations…

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Draft code that: Provides clear process for considering telecommunication

facilities

Recognizes evolving technologies

Such as DAS & small cell

Makes collocation easy option (generally)

Is consistent with federal & state requirements

With consideration for upcoming FCC rules

Some Resources

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Municipal Research & Services Center (MRSC) of Washington:

www.Mrsc.org/Subjects

Best Best & Kreiger LLP website:

http://www.bbklaw.com/?t=40&an=27137&format=xml

Every community needs a sense of place…

Every cell phone needs wireless transmission…

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