Legislative Budget and Finance Committee

Transcription

1 Legislative Budget and Finance Committee A JOINT COMMITTEE OF THE PENNSYLVANIA GENERAL ASSEMBLY Offices: Room 400 Finance Building Harrisburg Tel: (717) Mailing Address: P.O. Box 8737 Harrisburg, PA Facsimile (717) SENATORS JOHN R. PIPPY Chairman GERALD J. LAVALLE Vice Chairman JAY COSTA, JR. ROBERT M. TOMLINSON ROBERT C. WONDERLING JOHN N. WOZNIAK REPRESENTATIVES ROBERT W. GODSHALL Secretary DAVID K. LEVDANSKY Treasurer STEPHEN BARRAR H. SCOTT CONKLIN ANTHONY M. DELUCA T. MARK MUSTIO Cell Phone Service in Pennsylvania Conducted Pursuant to SR EXECUTIVE DIRECTOR PHILIP R. DURGIN CHIEF ANALYST JOHN H. ROWE, JR. November 2008

2 Table of Contents Report Summary and Recommendations... S-1 I. Introduction... 1 II. Findings... 3 III. Background IV. Appendices A. Senate Resolution B. Maps of Company Coverage Areas C. Map of Commonwealth-Owned Land 44 D. Pending Legislation Relating to Commercial Mobile Radio Services Page i

3 Summary and Recommendations Report Highlights... Senate Resolution directs the Legislative Budget and Finance Committee (LB&FC) to study the improvement and enhancement of telecommunications in the cell phone industry. The LB&FC is to determine the extent to which gaps (no signal or dropped calls) exist in cell phone service for major cell phone providers in the Commonwealth and identify recommendations to reduce or eliminate such gaps in service without unnecessary proliferation of cell towers. According to the Federal Communications Commission (FCC), as of June 2007, 9,200,793 Pennsylvania citizens have cell phone service, 1 representing 74 percent of Pennsylvania s population. Pennsylvania has cell phone coverage throughout most of the state, and most of the population can choose from four or more cell phone providers. Four providers account for 90 percent of the service in Pennsylvania. Gaps in Cell Phone Coverage Gaps in cell phone coverage exist in some regions of this Commonwealth, which result in interruption of (dropped calls) or lack of (dead zones) telecommunication coverage. The areas with the largest dead zones are in the Northern Tier of Pennsylvania, with little of Potter, Cameron, and Clinton counties having cell phone coverage (see map on page 4). There are also areas of Wayne, Susquehanna, Bradford, Sullivan, Columbia, Lycoming, Tioga, Somerset, and Greene counties with no coverage from any provider. Although coverage in the Northern Tier is incomplete, there is at least some coverage in every county, and there are areas in each county where there is a choice of four or more carriers. Statistics are not available on the actual number of dropped calls. The solution to most dropped calls and dead zones is to increase the number of cell towers and antennas available for service. Siting cell phone towers is a business decision made by the cell phone or tower siting companies based on their analysis of the potential market for the service. Cell phone companies cite several difficulties in siting towers in Pennsylvania, including: 1 We use the term cell phone service throughout this report. This term should be taken to include all types of wireless service, including analog, PCS, digital cellular, and Third Generation. Our study to determine the extent to which gaps exist in cell phone service in the Commonwealth found: As of June 2007, the FCC reports 9,200,793 Pennsylvania residents (74%) have cell phone service. Lack of cell phone coverage is mostly in the Northern Tier of Pennsylvania although other areas also have location- or company-specific dead zones. In a survey, 70% of townships responding had dead zones in their townships. Companies cite the hilly terrain, difficulties working with state agencies, and complex local zoning requirements as inhibiting their ability to site cell phone towers and antennas. The Commonwealth does not have a single policy or process for siting cell phone towers and antennas on Commonwealthowned property. Not all agencies with significant tracts of land have specific policies for the siting of these facilities. Currently, the Department of Conservation and Natural Resources has a moratorium on siting these facilities on their lands. All stakeholders favor collocation of facilities when possible due to the reduced cost and approval time. Many of the local zoning ordinances we reviewed specifically encouraged collocation. The Commonwealth should have a single point of contact for developing procedures for siting cell phone towers on Commonwealth-owned lands. This agency should inventory the cell phone towers and antennas on Commonwealthowned lands to ensure that current lease rates are in line with market rates. S 1

4 hilly terrain; complex siting zoning that varies by municipality and the not in my back yard concerns of citizens; difficulty in working with state agencies when siting on Commonwealth owned property; and difficulty in finding private landowners willing to sell or lease land. Many of the locations without coverage are in scarcely populated and less accessible areas of the state, making siting costly, with little potential gain in subscribership. State Agency Polices Regarding Wireless Telephone Service The federal Telecommunications Act of 1996 specifically restricts states from regulating wireless telephone rates but expressly allows states to regulate other terms and conditions of service, including customer protection. The Pennsylvania Public Utility Code, however, specifically exempts cell phone service from the definition of public utility; therefore, there is little state government control over these services. The state and local governments, however, continue to retain authority over zoning and land use decisions. Many of the locations that have little or no cell phone service are in areas of the state that have large tracts of state owned land. The Commonwealth does not have a single policy or process that controls the siting of cell phone towers and antennas on Commonwealth owned property. Therefore, each agency that has property may have its own policy and process for siting. The Game Commission and the Fish and Boat Commission, for example, use their right of way processes to site these facilities. The Department of Conservation and Natural Resources (DCNR) currently has a moratorium on siting commercial towers on its lands. Prior to this, DCNR did not have a specific policy on siting cell phone towers and antennas on its property, handling each request on a case by case basis, although no cell phone towers are allowed on state park land due to a statutory prohibition. There are approximately 250 towers on state forest land with about 20 towers providing cell phone service coverage. As part of siting of towers and antennas, the Pennsylvania Historical and Museum Commission (PHMC) reviews every new cell tower siting and some collocations to ensure compliance with federal regulations. Additionally, the Office of Administration, Office of Public Safety Radio S 2

5 Systems (OPRS) has the responsibility for the acquisition, development, licensing or leasing of wireless antenna towers, tower sites, and other wireless antenna structures for the statewide radio system. In managing the tower sites, OPRS has thus far not allowed commercial cell phone companies to share the radio system tower space. OPRS has only allowed other governmental entities, i.e., counties, to collocate on the radio towers, and then only if the county is willing to trade tower space with the Commonwealth. According to an OPRS official, exceptions to this approach can be made for commercial entities that are trying to locate in underserved areas of the state. Recently, in an effort to identify which companies might want to collocate on Commonwealth radio towers in order to get wireless services (as well as broadband services) to underserved areas of the state, OA issued a Request for Information (RFI). The RFI will enable OPRS to learn whether service providers are interested in using the radio towers and under what conditions they would lease space. Several wireless providers have expressed interest to OPRS, however, only one has indicated its interest in specifically serving underserved areas of the Commonwealth. Local Government Polices Regarding Wireless Telephone Service A survey of the membership of the Pennsylvania State Association of Township Supervisors showed that 70 percent of those responding had dead zones in their townships. In some cases the dead zone was a specific location or was provider specific, and in others it was large areas of the township. The majority of the responders, 42 percent, attributed the dead zones to topography (mountains, valleys and trees). Several of the local government officials we spoke with have taken independent measures to address their cell phone coverage needs. For example, in an effort to address the lack of cell phone coverage, particularly for emergency services, Elk County has identified certain critical need areas without service and is seeking a grant to construct its own cell phone tower. In informal talks between county personnel and the cell phone companies, the companies expressed interest in collocating on the tower once it is constructed. Another problem cited by the cell phone companies regarding siting cell phone towers and antennas involves zoning requirements. Sixty one percent of the townships with zoning ordinances responding to the PSATS survey had specific zoning applicable to siting these types of S 3

6 facilities. We reviewed 30 township ordinances regulating the placement of communication antennas and communication towers and found that most of the ordinances indicated a preference for the use of existing structures. The area required to be surveyed for collocation, i.e., radius from proposed site, however, differed when specified in the various ordinances. The size of the radius to be surveyed varied from ¼ mile to four miles where the area to be surveyed was specified. In several cases the requirement was a reasonable distance or silent on the distance, only requiring proof that other existing structures were considered but not available. The model ordinance developed by the Center for Local Government Services in the Pennsylvania Department of Community and Economic Development recommends a ¼ mile radius. Several waived the requirement for a site plan if an existing structure was used for the placement of the antenna, which generally reduces the length of time it takes to approve the project. The ordinances also differed in their specificity. Many require that any new tower include space for future collocation of antennas. Recommendations 1. The General Assembly should consider legislation designating the Office of Administration as the single point of contact for all Commonwealth agencies for the siting of cell towers and antennas on Commonwealth property. 2. The Office of Administration, under the authority of the new act, should develop a process to manage the siting of cell phone towers and antennas on state property that includes: a. Establishing the Office of Public Safety Radio Systems, or another office, as the managing entity. b. Establishing a process to develop a market based cost for the use of the tower. c. Establishing insurance and bond requirements. d. Being the liaison agency to work with the agency that owns the property to review the request for conformance with agency goals, e.g., maintenance of natural park vistas. e. Encouraging collocation of facilities on existing towers to restrict unnecessary proliferation of new towers. f. Requiring new towers to have the capacity for future collocation of facilities, if possible. S 4

7 g. Promoting cell phone coverage in areas that do not have such service, perhaps through reduced rates on towers on Commonwealth owned property. 3. The Office of Administration, with the assistance of the pertinent Commonwealth agencies, should undertake a complete inventory of all cell phone towers located on Commonwealth property. The Office should also undertake a review of all leases, licenses and contracts currently in place with cell phone companies to assure that current lease rates are commensurate with the locations of the towers and their accompanying equipment. S 5

8 I. Introduction Senate Resolution directs the Legislative Budget and Finance Committee (LB&FC) to study the improvement and enhancement of telecommunications coverage in the cell phone industry. Please see Appendix A for a copy of Senate Resolution 206. Study Objectives 1. Determine the extent to which gaps (no signal or dropped calls) exist in cell phone service for major cell phone providers in the Commonwealth. 2. Identify recommendations to reduce or eliminate such gaps in service without unnecessary proliferation of cell towers. Scope and Methodology We met with staff of the Pennsylvania Public Utility Commission and representatives for the cell phone companies with the largest market share in the Commonwealth to identify the legal structure and technical issues surrounding cell phone service in the Commonwealth. We reviewed federal law and regulations applicable to cell phone regulation. We relied on the industry representatives to provide statistics on the number of collocated antennas in the Commonwealth. The cell phone companies declined to provide certain information citing its proprietary nature. We also spoke with a tower siting company regarding how the company chooses to site towers. We spoke with staff from the Department of General Services, Pennsylvania Game Commission, Pennsylvania Fish and Boat Commission, Department of Conservation and Natural Resources, Pennsylvania Historical and Museum Commission, Pennsylvania Department of Transportation and the Office of Administration to determine the policies used by state agencies when siting cell towers on Commonwealth property and to identify the number of towers they have sited on Commonwealth property. We spoke with the Pennsylvania State Association of Township Supervisors (PSATS) to identify concerns their members may have regarding the siting of cell towers on municipal or private property. PSATS sent a questionnaire to their membership for us to identify those townships with zoning that specifically addresses cell towers. We reviewed township ordinances related to cell phone antenna and tower siting. We 1

9 spoke with the Office of Attorney General to get an understanding of the complaints they receive regarding cell phone service and contacted the Federal Communications Commission. We spoke with the federal General Services Administration and Bureau of Land Management and the contiguous states for their approaches to cell phone coverage. We also spoke with the CTIA, a nonprofit cell phone industry membership organization, representing service providers, manufacturers, wireless data, and internet companies, the PA Wireless Association with members from all sectors of the wireless industry and the Pennsylvania Telephone Association, which represents rural telephone service providers in the Commonwealth. Acknowledgements We thank the cell phone industry representatives and associations and the staffs of the various state and federal agencies for their assistance in this project. Additionally, we thank PSATS for their survey of their membership to identify zoning ordinances related to cell phone tower siting and the local officials who spoke with us during this review. Important Note This report was developed by Legislative Budget and Finance Committee staff. The release of this report should not be construed as an indication that the Committee or its individual members necessarily concur with the report s findings and recommendations. Any questions or comments regarding the contents of this report should be directed to Philip R. Durgin, Executive Director, Legislative Budget and Finance Committee, P.O. Box 8737, Harrisburg, Pennsylvania

10 II. Cell Phone Service Coverage in the Commonwealth 1 According to the Federal Communications Commission (FCC), as of June 2007, 9,200,793 Pennsylvania citizens have cell phone service, representing 74 percent of Pennsylvania s population at the time. As shown in Exhibit 1 below, Pennsylvania has cell phone coverage throughout most of the state, and most of the population can choose from four or more cell phone providers. Although Pennsylvania has many cell phone providers, four provide 90 percent of the service in Pennsylvania. Appendix B includes maps of the coverage areas of these four companies. Other more rural areas of the state are served by a variety of smaller companies that, for the most part, contract for wireless services with these larger companies. Nationally, as of 2007, the five largest cell phone services providers had a combined market share of 89 percent. Pennsylvania has cell phone coverage throughout most of the state, and most of the population can choose from four or more cell phone providers. Gaps in cell phone coverage exist in some regions of the Commonwealth, which can result in interruption of or lack of telecommunication coverage. A call is dropped not necessarily because of a dead zone. A call can be dropped because the tower carrying the call was at capacity, or could be dropped when passing to another tower, also at capacity. This can vary from location to location coverage can be available in one area of a building but not in another, or on one stretch of highway but not another and from provider to provider, depending on the provider s network resources. Urban areas have more complete coverage than rural areas, but higher cell phone traffic in urban areas can also result in dropped calls or service outages. Lack of coverage can be seen mostly in the Northern Tier of Pennsylvania, with little of Potter and Clinton counties having coverage. There are also areas of Wayne, Susquehanna, Bradford, Sullivan, Columbia, Lycoming, Tioga, Somerset, and Greene counties with no coverage from any provider. However, there is at least some coverage in every county, and each county has areas where there is a choice of four or more carriers. 1 We use the term cell phone service throughout this report. This term should be taken to include all types of wireless service, including analog, PCS, digital cellular, and Third Generation. 3

11 Exhibit 1 Wireless Coverage in Pennsylvania by Number of Providers 4 Source: Federal Communications Commission, Census Bureau, and American Roamer (July 2007).

12 How Cell Phones Work Cellular phones are not telephones, but are sophisticated duplex radios. Whereas walkie talkies and CB radios are half duplex systems, whereby only one person may talk at a time, cell phones are full duplex radios that use one frequency for talking and another for listening, allowing both people to talk at once. Wireless networks operate on a grid that divides cities or regions into smaller cells. Each cell has a base station, consisting of a tower and radio equipment, which covers a roughly circular area. Cellular technology was originally an analog system, called first generation mobile technology (1G). Digital mobile systems are referred to as second generation (2G) technology. Digital technology converts voice into binary digits 0 and 1, which are relayed through wireless networks to the receiving phone and the process is reversed from that phone. A digital network senses when a signal is getting weaker and hands the call off to another antenna with a stronger signal. Cell phone companies are now implementing third generation technology (3G). 2 3G systems will provide access, by means of one or more radio links, to a wide range of telecommunication services supported by the fixed telecommunication networks and to other services that are specific to mobile users. A 3G system allows simultaneous delivery of voice and data. Download speeds of various media, such as videos, music, news, and weather, will be faster than 2G. A large region can be divided into multiple cells, allowing different towers to use the same frequencies for communication, as long as a sufficient distance separates them. This allows for frequency reuse and makes it possible for hundreds, or thousands, of callers to share fewer frequencies. A typical large city can have hundreds of towers. Additionally, each tower generally covers a smaller area, which means handsets need less power to reach any base station, thereby reducing the batteries and size of phones. Each area also has a Mobile Switching Center (MSC), which handles all phone connections to the land based phone system and controls all the base stations in the area. Cell phone towers vary in multiple ways. They can be freestanding or anchored with cables; one that is anchored requires significantly more land than a free standing tower. Tower and tower foundation specifications depend on a variety of factors, including design load, wind speed, ice load, soil conditions, and building code requirements. 2 The cell phone companies use different terms to describe this technology. AT&T uses the term 3G. 5

13 Towers have also been installed on water tanks, rooftops, sides of buildings, and streetlights. Antennas have been mounted on church steeples, clock towers, and silos. Some have also been disguised as trees and flagpoles. Cell phones have special codes associated with them, used to identify the phone and service provided. A call received by a cell phone would go through these steps to receive the call: When a phone is turned on, it tries to find a System Identification Code (SIC) on the control channel. The SIC is a unique five digit code assigned to each carrier by the FCC. The Control Channel is a special frequency that the phone and base station use to communicate. If the phone cannot find any control channels, it is out of range of service. Each cell has a transmitter/receiver. A call from a wireless phone is sent to the transmitter/receiver via radio waves. From there it is sent to a Mobile Switching Center (MSC), which serves multiple cell sites. As a wireless phone user moves from cell to cell, a switch at the MSC hands off the signal from one cell transmitter to another so signal strength remains strong. The MSC sends the call to a local or long distance network. The network connects the call over phone lines to the number the user is calling, whether it is a person, a computer, a data network, voice mail, fax or messaging system. Two types of technologies are used with cell phones: GSM (Global System for Mobile Communications) and CDMA (Code Division Multiple Access). AT&T and T Mobile use GSM and Verizon and Sprint use CDMA. Some newer, more sophisticated cell phones are enabled to use both. Companies that use compatible systems can use roaming agreements with each other to improve their service area coverage. Causes of Gaps in Cell Phone Service The siting of cell phone towers by a cell phone or tower siting company is a business decision based on the potential market for the services they offer. Other factors, however, may discourage a company from siting a tower in a particular location. The cell phone companies cite several reasons why coverage in Pennsylvania varies around the state. Even if there is coverage in an area, service may not be complete, i.e., one company may have enough antennas to provide fuller coverage to its Even if there is coverage in an area, service may not be complete. One company may have enough antennas to provide fuller coverage to its customers, but a customer of another company may not have coverage at all. 6

14 customers, but a customer of another company may not have coverage at all. The reasons cited by the companies are: Pennsylvania s terrain is hilly. This makes coverage a challenge since siting a tower in a hilly location is more involved than siting on level terrain. Significant tracts of land in Pennsylvania are owned by the Commonwealth. See Appendix C for a map of Commonwealth owned land. The companies cite difficulties in working with state agencies to site cell towers on Commonwealth property. For example, the Department of Conservation and Natural Resources (DCNR) currently has a moratorium on siting cell towers on its land. Additionally, the Office of Administration has not yet allowed commercial entities to collocate on the statewide radio service towers. It can be difficult to locate a land owner in the identified siting area who is willing to sell or lease his land for a tower. In some cases, several towers may be needed rather than one to transmit the signals since the preferred location for the tower is not available, thereby significantly increasing costs. Municipal zoning requirements and processes can be time consuming and difficult. These processes vary by municipality and many times the local citizens have a not in my back yard attitude towards the placement of a cell phone tower. Some buildings are built very solidly and may not get reception even if a tower is placed right beside it. Enhanced 911 Wireless Services Unlike land line service which has a specific location associated with it, cell phones are portable and therefore are not associated with a specific location. Until recently, when a 911 call was made from a cell phone, no location information appeared on the call taker s screen, and the call was not always routed to the nearest Public Safety Answering Point (PSAP). To address these concerns, the FCC issued an order requiring wireless carriers to determine and transmit the location of callers who dial 911. To implement the order, the FCC promulgated Enhanced 911 (E 911) rules to establish a two phase program. Under Phase I, the FCC requires carriers to provide the PSAP with the telephone number of the originator of the wireless call and the location of the cell site transmitting the call. Unlike land line service which has a specific location associated with it, cell phones are portable and not associated with a specific location affecting 911 response. 7

15 Phase II requires wireless carriers to begin providing more precise information regarding the location of the caller. The carrier is required to provide the latitude and longitude of the caller to within 50 to 300 meters (depending on the technology used). There is, however, no standardized method to implement Phase II. The two basic approaches used are handset based and network based. Hand set based requires the cell phone to have a GPS receiver built into it. When a call is made to 911, the receiver locates itself using satellites orbiting overhead. The network based system involves putting additional radio equipment on network base stations so that they act like a GPS receiver. When 911 is called on the cell phone in this situation, the phone sends out radio signals to at least three of these towers. Using trilateration, the network can identify the location of the cell phone to within 100 to 300 meters. This type of system may require additional towers to support the necessary equipment. The PA Emergency Management Agency (PEMA), pursuant to the Public Safety Emergency Telephone Act, 35 P.S et seq., is responsible for overseeing the development, implementation, operation and maintenance of a statewide integrated wireless 911 system. A wireless E 911 surcharge of one dollar a month for each cell phone for which a customer is billed provides funding for the development, implementation and testing, operation and maintenance of the system. PEMA reports that eight counties have achieved an interim Phase I deployment level that allows county 911 centers to receive the call back number for the wireless caller, and forty two counties are compliant with the more stringent Phase II requirements. In October 2008, the Bureau of Special Performance Audits in the Department of the Auditor General completed an audit of the wireless E 911 system which found, in part, that 911 coverage gaps exist throughout the Commonwealth, often caused by a lack of wireless towers in lesspopulated areas. While acknowledging that PEMA cannot control where wireless providers place their towers, the Auditor General recommended that PEMA should engage state officials to work with wireless providers to find solutions or incentives to expand statewide coverage. For more information regarding this audit, please see the Auditor General s Report, Wireless E 911 Services Program, October

16 Problems With Cell Phone Tower and Antenna Siting In general, when initially siting a new cell tower, a cell phone company s engineers decide on the location where the tower is needed based on coverage or data transfer speed needs. A search ring is determined, and the tower can be placed anywhere inside that ring. The company then must determine if land is available within the search ring and if it is able to purchase an appropriate property. Local zoning processes and ordinances must be addressed, and the Pennsylvania Historical and Museum Commission must review every new tower and some collocations. 3 If the location is on Commonwealth property, the company has to contact the specific agency that owns the property and comply with its siting requirements. To reduce costs and, in some cases, the time needed for approvals, the industry representatives reported that they favor collocation of antennas where possible. Companies consider it advantageous if one provider already has a tower in place and the company siting its antenna can use that tower as well. This reduces the costs since construction of the tower is not needed and facilitates the approval process because state and local requirements have already been met for that particular site. According to industry representatives, towers are typically built with collocation in mind and companies have master lease agreements with each other for sharing tower space. Reportedly, approximately 65 to 75 percent of towers in Pennsylvania support collocated facilities. In addition to cell phone companies siting their own towers, there are several cell phone tower companies that site and construct towers. We spoke to one company representative who explained that they test and analyze coverage in different areas to determine where additional coverage is needed and identify where a tower will be fiscally advantageous. Two of the more important factors in this determination are population and vehicle traffic. The company representative told us that his company relies on these data and analyses to determine where they intend to site towers. Generally, the tower company prefers to have at least one cell phone company committed to rent space before building a new tower, but will occasionally build one on more of a speculative basis. Reportedly, the time frame for getting a tower sited by this company, Cell phone towers are typically built with collocation in mind and companies have master lease agreements with each other for sharing tower space. 3 The PHMC may also review equipment replacement, which is treated as a collocation, to ensure that it does not change the affect of the tower or antenna on the historical property as part of its obligations under the federal requirements. Reviews may also be conducted by local historical societies as part of the federal requirements. 9

17 including all government approvals, has been anywhere from 6 9 months to an indefinite period of time. 4 CTIA The Wireless Association 5 recently filed a Petition for Declaratory Ruling with the FCC seeking actions from the FCC to reduce the amount of time it takes for zoning decisions related to cell phone tower and antenna sitings. 6 In the petition, they cite delays in collocation approvals of over three years but also note that many of their members have received approvals in two weeks or less. Similarly, the length of time reported for the approval of new cell phone towers ranged from as little as a week to several years with the time needed increasing in recent years. T Mobile reported in its comments in support of the petition for declaratory ruling that an application in Pennsylvania for a conditional use underwent a two and one half year review process. In its comments in response to the petition, however, the City of Philadelphia urged the FCC to deny the petition noting that the current process properly balances the rights of the community with the interest of all applicants. These comments also state that applicants seeking a permit as of right (applicable to placing an antenna on an existing structure) typically receive the permit within 25 business days if the application was complete when filed. We spoke to several cell phone companies regarding the costs and time requirements they incur in siting and building a new tower and collocating on another company s tower. Costs of constructing a new tower can vary. One company told us that, to construct a new tower, it costs, on average, about $600,000 for a new cell tower site on newly acquired property. These costs may include locating the site, equipment, roads, foundations, zoning approvals and permits. Another company reported that 4The company representative cited a case that has been going through the court system for 11 years. 5 CTIA The Wireless Association is a nonprofit membership organization, representing providers, manufacturers, wireless data, and internet companies. CTIA advocates on their behalf before the Executive Branch, the FCC, Congress, and state regulatory and legislative bodies. 6 The specific actions they are seeking are: (1) a clarification for the time period in which a state or local zoning authority must take action on a cell phone tower siting request (45 days for a collocation and 75 days for a new tower); (2) a declaration that a zoning authority s failure to act within the relevant time frame will result in the application being deemed approved or will warrant a court ordered injunction granting the application unless the zoning authority can justify the delay; (3) a clarification that the act bars zoning decisions that have the effect of prohibiting a particular provider from offering service in a given area; and (4) preemption under the act for zoning ordinances that require variances for all cell phone siting applications. 10

18 their costs for a newly constructed tower ranged from $300,000 to $500,000, however, the costs of finding an appropriate site are not included in this estimate. Costs for new construction can reach up to $1 million if there is, for example, extensive road work necessary. The companies cited several variables that can affect the cost of construction. They include: road construction; height and load considerations; impact from historical property reviews; stealth towers, i.e. those that blend with their surroundings, can cost up to five to ten times more; and variable cost of electronic equipment, which can vary from rural to urban sites. One company reported that it can collocate on an existing tower for approximately $150,000, assuming that there is only minimal work required. This cost includes generator lines, antennas and other equipment. This estimate does not include the lease rate that would be negotiated with the tower owner. One of the other companies reported that it can cost up to the same amount to collocate on an existing tower as it costs to construct a new tower. This is because sometimes the tower owner will try to recoup its costs through higher negotiated rates for the lessee to collocate. The companies also reported the approximate length of time required for them to complete construction or collocation. One said that from the time it identifies a location, it typically takes 18 months to close on the real estate, complete regulatory filings and obtain zoning approvals. Construction of a tower takes about three months. This company said that it anticipates that the whole process, from site location to tower construction, will take 24 months. Another company reported that it can take from six to 24 months to construct a tower after site selection and lease negotiation. The time frame depends on zoning and building approvals. 7 7 The Municipalities Planning Code requires the first hearing on a request to be held within 60 days from the receipt of the request, subsequent hearings to be held no more than 45 days apart with the applicant s hearings concluding within 100 days of the first hearing. Persons opposed to the request must complete their presentation within 100 days of the first hearing held in opposition. Additional hearings may be granted if the parties agree. The Board (or a hearing officer) then has 45 days to make the findings and conclusions available to all parties and the final decision must be issued within 30 days after that or the request is deemed approved. The parties have 30 days to appeal the final decision. 11

19 The companies also reported different time frames for collocation on existing towers. One company said that, in an ideal situation, with zoning already in place, no zoning hearings, and needing only to obtain building permits, a collocation can take as little as six months. Another company reported that it can take from 18 to 24 months if the same risk management procedures, environmental and historical preservation procedures need to be followed, although the company said that some savings can be realized from zoning that is already in place. Cell Phone Siting on Commonwealth-Owned Property The Commonwealth does not have a cell phone tower and antenna siting policy for commercial cell phone facilities on Commonwealth property. 8 Agencies establish their own policies related to siting these facilities. We contacted Commonwealth agencies that own significant acreage to discuss their policies related to siting towers. We spoke with the Pennsylvania Game Commission (PGC), the Department of Conservation and Natural Resources (DCNR), the Fish and Boat Commission (PFBC), Pennsylvania Department of Transportation (PennDOT), and the Pennsylvania Turnpike Commission (PTC). In addition, we spoke with the Pennsylvania Historical and Museum Commission because it reviews all cell tower locations, and certain collocations, to determine compliance with the National Historic Preservation Act, and the Office of Administration (OA), which is responsible for tower siting for the Statewide Mobile Radio System. Pennsylvania Game Commission. The PGC is responsible for approximately 1.4 million acres of state game lands. Although the PGC was unable to provide an exact number of cell phone towers on these lands, it reported that there are about 100 commercial towers. The PGC has no policy specific to cell phone tower siting but uses its right of way policy found in the Game and Wildlife Code, at 34 Pa.C.S This statutory provision gives the Commission the authority to grant rights ofway or licenses on and across lands under the Commission s control. The Game Commission grants right of way licenses for various purposes, such as roads, pipe, electric, and other utility lines and for 8 The Commonwealth does not regulate cell phone services. The Pennsylvania Public Utility Code specifically exempts from the definition of public utility any person or corporation, not otherwise a public utility, who or which furnishes mobile domestic cellular radio telecommunications service. Several bills are pending in the General Assembly that would regulate certain aspects of cell phone service. See Appendix D for a listing of these bills. 12

20 telephone, telegraph and television lines. Commission regulations set out the process for obtaining the right of way/license. The application requires a nonrefundable $150 fee and must include a description of alternatives considered in the project location and design. If an application for a right of way is approved, the Commission negotiates charges and fees as it believes are warranted. The PGC charges a minimum of $12,000 per year for a cell phone tower, and negotiates each new application on a case by case basis. A bond based on the cost of the removal of the facility, reclamation and revegetation of the site is also required. Department of Conservation and Natural Resources. DCNR is responsible for 2,354,276 acres of Commonwealth land, including state forests and state parks. In 2000, the Department issued a moratorium on private tower construction. The moratorium halted applications for building towers in state forests, except for those towers that are part of the Statewide Mobile Radio System. DCNR also considers a variance for those towers that are otherwise necessary for public safety or of benefit to the Commonwealth and reported it is receptive to private enterprises collocating on existing towers. Prior to the moratorium, DCNR handled requests for commercial towers on forest lands on a case by case basis, with more consideration given to those companies that wanted to collocate or that would not need any new construction, such as roads or utilities. According to a DCNR official, the Department intends to keep the moratorium in place as there is an inherent conflict with placing commercial towers on lands that are intended for recreational use. There are about 250 towers located on state forest lands and include different types of towers such as cell phone, radio, and microwave, among others. About 20 of the towers are for cell phone services. There are no commercial towers on state park lands. Parks legislation requires that any lease of state park property must be for health, recreational or educational purposes. DCNR has interpreted this section to prohibit commercial use of state park lands. There are some towers located on park lands, however, these are for the park radio system, the state radio system and for EMS purposes. Fish and Boat Commission. The Pennsylvania Fish and Boat Commission is responsible for approximately 24,000 acres of Commonwealth property and has only two cell towers on its property. Like the Game Commission, PFBC has no formal cell tower siting policy and also grants rights of way/licenses. Commission staff report that it considers 13

21 any siting proposal that comes before it and allows a tower to be sited on its property if it is feasible, consistent with PFBC s mission, and does not interfere with fishing and boating opportunities in Pennsylvania. PennDOT. Pennsylvania statute, 36 P.S , prohibits any commercial enterprise on limited access highway rights of way. Reportedly, this is to address safety concerns related to high speed roadways and the need to maintain clear zones on those highways. According to a PennDOT official, it is likely that PennDOT would continue this practice even in the event the statutory restriction was repealed. There are no commercial towers on other PennDOT property, however, the Department is currently considering whether to allow commercial towers on its rights of way on other highways and maintenance areas. PA Turnpike Commission. The PA Turnpike Commission owns 54 towers that it uses for its two way radio system. These towers are not on turnpike rights of way, but the Commission owns the land on which the towers are located. That towers may not be placed in the rights ofway is not in policy or statute; there often is not enough room for tower space requirements. If a provider wanted to site a tower on a right ofway, and there was enough space to do so, reportedly the Commission would allow it. The Commission leases space on its towers to cell phone companies; approximately towers are collocated with wireless providers. There is no policy specific to leasing tower space, however, companies must meet the Commission s tower standards. Additionally, the Commission enters into joint ventures with companies to build towers: a company will build a tower, and the Commission will give the company rebates on leasing space. Additionally, according to a Turnpike official, it is easier for them to work with local zoning than it is for the wireless providers. The Commission receives about $1 million per year in tower leasing revenue. Pennsylvania Historical and Museum Commission. The PHMC has responsibility for reviewing cell tower sitings to comply with federal requirements. Cell towers are licensed by the FCC and are considered federal undertakings subject to the regulations of the National Historic Preservation Act of Under these regulations, the PHMC, Bureau for Historic Preservation, acts as the State Historic Preservation Office, reviewing and providing comments to the federal agency on the effects their undertakings will have on historic properties. Every new cell tower and some collocations must be reviewed by the office to ensure Every new cell tower and some collocations must be reviewed by the Pennsylvania Historical and Museum Commission to ensure compliance with federal regulations. 14

22 compliance with federal regulations. Whether the cell tower is proposed on state land or private, the office reviews the undertakings based on the federal regulations and guidance provided by the Advisory Council on Historic Preservation. Projects are reviewed for their effects on historic properties. Effects are defined in the regulations and can be physical, visual, or audible. An historic property is any structure, building, district, object, or site that is eligible for or listed in the National Register. For cell towers, there is the potential for direct effects (physical) and visual effects to historic properties. This office reviews between 400 and 600 projects a year. A Programmatic Agreement has been developed for cell tower projects to streamline the review process. It was developed as a result of consultation among the Advisory Council on Historic Preservation, the industry, the National Council of State Historic Preservation Officers, and the FCC. There are no cell towers located on PHMC historic sites. Office of Administration, Office of Public Safety Radio Systems. Through Management Directive , the Office of Administration, Office of Public Safety Radio Systems (OPRS) has the responsibility for the acquisition, development, licensing or leasing of wireless antenna towers, tower sites, and other wireless antenna structures for the statewide radio system. The Statewide Public Safety Radio System, a single 800 MHz mobile radio system, allows State Police, first responders and local officials to coordinate their safety and response efforts, especially in emergency situations. 9 This system replaced multiple incompatible, mobile radio systems across Commonwealth agencies with a single system that provides for wireless data and voice communications. Of the 234 towers that comprise the radio system, the Commonwealth owns 150 of them and rents space on the remainder. In siting a tower, OPRS first choice is to rent space or collocate because it is more cost effective than building a new tower With this system, State Police troopers are able to communicate directly via radio with other troopers across the Commonwealth, the Pennsylvania Department of Transportation, Department of Health and other state agencies, and troopers are also able to bridge to other first responder radio systems for municipal police, county dispatch centers and other agencies. The Governor s Office of Administration, Office of Public Radio Systems, administered the build out and deployment of the system, working in conjunction with the system s vendor. 10 According to an OA official, siting of the radio towers took longer than anticipated since, without eminent domain authority, when one of the sites chosen for the towers needed to provide coverage in a particular area could not be obtained, the placement of other towers had to be reconfigured. Limited eminent domain authority for the placement of towers in locations identified by the state as necessary to provide emergency services could make this process easier. 15

23 In managing the tower sites, OPRS has thus far not allowed commercial cell phone companies to share the radio system tower space. OPRS has only allowed other governments, i.e., counties, to collocate on the radio towers, and then only if the county is willing to trade tower space with the Commonwealth. According to an OPRS official, exceptions to this approach can be made for commercial entities that are trying to locate in underserved areas of the state. To determine how to get wireless services (as well as broadband services) to underserved areas of the state, OA issued a Request for Information (RFI) in July 2008 to identify companies that might want to collocate on Commonwealth radio towers. The purpose of the RFI was for OPRS to determine whether it would be feasible to make Commonwealth owned radio towers available to service providers for the collocation of service provider equipment to help provide services to underserved areas of the state. The RFI will enable OPRS to learn whether service providers are interested in using the radio towers and under what conditions they would lease space. 11 OPRS received several responses to the RFI. One company was interested in sites in areas where they were already intending to build towers. Another company was interested only in implementing broadband services and not wireless phone services. Several other companies have expressed interest to OPRS; however, only one has indicated its interest in specifically serving underserved areas of the Commonwealth. OPRS is reportedly currently evaluating a different approach to address these areas. Township Ordinances for Regulating the Placement of Antennas and Communications Towers The zoning of cell phone towers and antennas in Pennsylvania is primarily a function of local government. The local governments, however, must satisfy certain requirements. Under the federal Telecommunications Act of 1996, the siting authority: (1) may not unreasonably discriminate among providers of functionally equivalent services; (2) may not regulate in a manner that prohibits or has the effect of prohibiting the provision of personal wireless services; (3) must act on applications within a reasonable period of time; (4) must make any denial of an application in writing supported by substantial evidence in a written record; and (5) cannot premise decisions directly or indirectly on the environmental The zoning of cell phone towers and antennas in Pennsylvania is primarily a function of local government. 11 In the event that there is significant interest, OA reportedly is considering contracting for tower rental management. 16

24 effects of radio frequency (RF) emissions, assuming that the provider is in compliance with the FCC s RF rules. The Pennsylvania State Association of Township Supervisors surveyed their membership to determine whether townships had specific zoning provisions related to telecommunications facility siting. 12 Of those responding that had zoning ordinances, 61 percent indicated that their township had specific zoning applicable to these types of facilities. We reviewed 30 township ordinances regulating the placement of cell phone antennas and towers. As Exhibit 2 shows, most of the ordinances indicate a preference for the use of existing structures, and several waive the requirement for a site plan if an existing structure is used for the placement of the antenna, reducing the length of time it takes to get approval for the project. Most of the ordinances that indicate a preference for use of existing structures and towers require proof that efforts were made to use such structures for the proposed communication needs. The area required to be surveyed for collocation, however, differed in the various ordinances. The size of the radius to be surveyed varied from ¼ mile to four miles where the area to be surveyed was specified. In several cases, the requirement was reasonable distance, only requiring proof that other existing structures were considered, but not available for use. Many of the ordinances also require that any new tower include space for future collocation of antennas. The majority of the ordinances we reviewed restricted the height of an antenna placed on an existing structure. Again, the requirement varied among the townships, ranging from 8 feet to 50 feet above the height of the existing structure. Additionally, other requirements of the ordinances also differed in their specificity. The Governor s Center for Local Government Services in the Department of Community and Economic Development published a manual, Local Government Regulation of Wireless Telecommunications Facilities, to assist local governments in drafting ordinances. The model ordinance included in the manual appears to have been used by many of the townships whose ordinances we reviewed, although the language had been modified. 13 For example, the model ordinance uses a survey radius of ¼ mile to prove a collocation on another structure is not available. As noted above, this distance varies among the ordinances we reviewed. The manual also indicates a preference for using an existing structure. 12 Townships represent the majority of local governments with zoning authority. 13 The Center for Local Government Services does not maintain information on which local governments used the model ordinance. 17

25 Exhibit 2 Zoning Restrictions Location Preference for Use of Existing Structure Height Above Existing Structure Deposit Required Proof of Inability to Collocate on Building or Existing Tower Other Athens ¼ Mile radius - Carroll ¼ Mile radius Collocation is use by right Chanceford Mile radius - Conestoga No specific requirement Dingman No specific requirement New tower allowing collocation New tower allowing collocation East Buffalo Mile radius New tower allowing collocation Franklin ½ Mile radius New tower allowing collocation Frazer ¼ Mile radius - Heidelberg No specific requirement Howe... - $7,500 a 4 Miles Special use permits not required for collocation Kingston ½ Mile radius New tower allowing collocation Leacock ½ Mile radius New tower allowing collocation Londonderry No specific requirement Manheim b - No specific requirement Middle Smithfield Mile radius - Milford Mile radius New tower allowing collocation

26 Exhibit 2 (Continued) Location Preference for Use of Existing Structure Height Above Existing Structure Deposit Required Proof of Inability to Collocate on Building or Existing Tower Other New Sewickley ¼ Mile radius New tower allowing collocation; collocation use by right North Fayette ¼ Mile radius New tower allowing collocation Old Lycoming Mile radius New tower allowing collocation Pequea Mile radius New tower allowing collocation Ransom ¼ Mile radius - Rice No specific requirement New tower allowing collocation Richland Reasonable distance New tower allowing collocation Springfiled ¼ Mile radius - Summit Upper Macungie Upper Tulpehocken Mile radius Full site plan not required for collocation Walker ¼ Mile radius - Washington No specific requirement New tower allowing collocation Westfall /40 c - - New tower allowing collocation a For township consultant. b Of height limitations. c 20 in other than a commercial or industrial district and 40 in a commercial or industrial district. Source: LB&FC review of township ordinances for siting wireless telecommunications antennas and towers. 19

27 Actions Taken by Underserved Areas to Attract Cell Phone Service Coverage In the PSATS survey discussed above, townships were asked whether they had any cellular dead zones in their jurisdiction. Of those responding, 70 percent indicated that they did have dead zones. The most common reasons cited for the lack of cell phone service included general topography (mountains, valleys and trees) and carrier specific dead zones. Several noted a lack of cell phone towers. The survey also asked respondents if they have encountered any problems with cell tower placement in their townships. Twenty one percent answered yes. The most often cited reason for problems was opposition to towers from citizens, cited by twenty two respondents. Lack of township approval or zoning was the second most often cited reason, with 12 responses. Other reasons for problems with siting cell towers included restrictions, such as airports and lawsuits, and in some communities that want towers, no company has been willing to erect them. The most common reasons cited for the lack of cell phone service included general topography (mountains, valleys, and trees) and carrier-specific dead zones. Efforts to address cell phone coverage needs by specific localities include: Pennsylvania Wilds Country. The Pennsylvania Wilds region is a consortium of counties that joined together to promote tourism. Counties include Cameron, Clarion, Elk, Forest, Jefferson, Clearfield, Clinton, Lycoming, McKean, Potter, Tioga, and Warren. These counties correspond to the region with the least cell phone coverage in the Commonwealth, as can be seen on the map showing cell phone coverage in Pennsylvania, Exhibit 1. According to a Wilds Country official there has been debate about whether more cellular coverage is desirable in the region. Much of the region is state and national forest and state game lands, areas meant for recreational purposes. According to a planning study for the region, cell phone service for both communication and Internet services is a standard service for those travelling or vacationing and that ability to communicate is essential for safety reasons; thus there is a need for adequate telecommunications infrastructure to support tourism. However, with the increased technology comes the concern regarding the aesthetic impact of cell towers and equipment on recreational areas. The planning study suggests that there are options to improve the telecommunications network with minimal adverse impacts. These 20

28 include collocation of antennas on existing tower sites, stealth telecommunication facilities, 14 and zoning ordinances that can set height restrictions to lessen the impact on scenic vistas within the Wilds region. Elk County. Elk County, which is part of Pennsylvania Wilds Country, has recently identified areas considered critical to target cell phone tower placement to specifically address emergency services needs. One area identified is on State Route 555, a prime elk viewing area attracting numerous tourists every year. The need for emergency services communication is particularly critical here since many tourists are unfamiliar with the area and, if an emergency occurs, would expect to be able to use their cell phones to summon assistance. The need for emergency services communication is particularly critical in Elk Countysince many tourists are unfamiliar with the area and, if an emergency occurs, would expect to be able to use their cell phones to summon assistance. To address this need, the county submitted a grant application to fund the construction of a cell tower for emergency services use for Elk and Cameron counties. They have not selected the specific location but are considering both private and state owned lands. The plan would be to lease the additional space on the tower to cell phone companies to provide cell phone services in general. According to a county official, in private talks between the county and the cell phone companies, the companies have expressed interest in locating on this tower once it is constructed. They are hesitant, however, to construct a tower on their own since the cost of the tower will likely not be offset by the customers they would expect to attract. The county officials are also considering using any remaining tower space for wireless Internet services. This grant was not funded this grant cycle. Borough of Carroll Valley. The Borough of Carroll Valley is located in the southern part of Adams County. Although the county has widespread cell phone coverage, a borough official reports that no service is available in Fairfield Borough, the Borough of Carroll Valley, Hamiltonban Township and Liberty Township. This area is surrounded by mountains and attracts tourists to its skiing facilities. The mayor of Carroll Valley, in conjunction with other public officials, has convened a series of meetings with the cell phone companies to discuss the need for service, particularly for emergency service providers and schools. Reportedly, a cell phone tower siting company has approached Hamiltonban Township about constructing a tower on Jack Mountain. Towers are also being considered for Fairfield Borough and Liberty Township. 14 Stealth telecommunications involves cell towers that are integrated as an architectural feature or designed to lessen the visual impact. Examples include towers being disguised as or integrated with flagpoles, bell towers, clock towers, crosses, monuments, smoke stacks, parapets, steeples, and trees. 21

29 Siting of Cell Phone Towers on Federally Owned Land In March 2007, the federal General Services Administration issued GSA Bulletin FMR 2007 B2, which provides federal agencies with general guidelines and processes for siting mobile services antennas on federal property. These guidelines implement the requirements of 704(c) of the Telecommunications Act of 1996 and former President Clinton s memorandum on facilitating access to federal property. The federal government owns 652,521 acres of land in the Commonwealth. 15 Pursuant to this bulletin, federal agencies that control and operate real property, rights of way, or easements affecting property, are responsible for determining the extent and programmatic impact of placing commercially owned antennas on their properties. This determination is to be based on several factors including: Federal agencies that control and operate real property, rights-of-way, or easements affecting property, are resposible for determining the extent and programmatic impact of placing commerciallyowned antennas on their properties. public health and safety with respect to the antenna installation and maintenance; aesthetics; effects on historic districts, sites, buildings, monuments, structures, or other objects pursuant to the National Historic Preservation Act; protection of natural and cultural resources; compliance with the appropriate level of review and documentation necessary under the National Environmental Policy Act; and compliance with the FCC s guidelines for radio frequency exposure. Executive departments and agencies are to make antenna sites available on a fair, reasonable and nondiscriminatory basis. Collocation of antennas is encouraged where there are multiple antenna siting requests for the same location. The guidelines provide that as a general rule, requests for the use of property, rights of way and easements by telecommunications service providers duly licensed by the FCC should be granted, unless there are unavoidable conflicts with the department s or agency s mission, current or planned use of the property, or access to that property. 15 U.S. Department of Interior, FY 2008 Payments in Lieu of Taxes. 22

30 The Telecommunications Act of 1996 authorizes agencies to charge reasonable fees for antenna sites on federal property. 16 The guidelines provide that executive departments and agencies should charge fees based on market value. Fee determinations can be based on appraisal, use of set rate schedules, or other reasonable means of value determination. The Bureau of Land Management, for example, has adopted a schedule of rents that is based on the type of service to be sited and the population to be served. Rents are tied to the consumer price index so they fluctuate annually. Unless otherwise authorized by law to retain such fees, the department or agency must remit the fees to the General Fund of the Treasury. The GSA has also created a program for siting cell phone towers and antennas on federal property for which it is responsible. The program was established in 1989 to address lost coverage when the presidential motorcade was in tunnels in the Washington, D.C., area. They have created a lease agreement that is used for siting on federal property, primarily buildings. Revenues from the lease agreements in the region that encompasses part of Virginia, Maryland and Washington, D.C., are approximately $2 million a year. The director of this program recommends that a state seeking to administer a program for cell phone tower and antenna siting on state property do the following: appoint a single state agency to administer the program through statute or regulations; develop lease agreements that are specific regarding access, security and equipment requirements; appoint staff to monitor the cell phone tower and antenna sites; and establish a market based leasing fee. In his opinion, the leasing fees would pay for the staff needed to operate the program. Cell Phone Tower Siting in Other States We contacted the states that are contiguous to Pennsylvania to determine their policies regarding the siting of cell phone towers and 16 GSA Bulletin FMR 2007 B3 was issued in late August 2007 and relates to the assessment of fees and recovery of costs for antennas of federal agencies and public service organizations. This bulletin contains much of the same guidance as GSA Bulletin FMR 2007 B2. 23

31 antennas on state owned land. These states varied in their approaches to siting on state owned land. Like Pennsylvania, several of the states, for example, New Jersey, New York, and Ohio, do not have a single point of contact and overall policy for siting. However, Delaware, Maryland and West Virginia use a single point of contact approach. Delaware. Pursuant to statute, at 29 Del. Code 6404A, the Department of Technology and Information has exclusive authority to enter into agreements with private telecommunications companies to lease or license space for communication facilities on cell phone towers and other facilities constructed for the 800 MHz Digital Trunked Radio System. The revenues received by the Department of Safety and Homeland Security Division of Communications under these agreements are to be deposited into a special fund and used for maintenance or other expenses associated with the radio system. According to the Director of the Division of Communications, this radio system is used by state agencies for communications and emergencies. Additionally, the Director told us that, although the state has leased ground space to cellular companies through this program for purposes other than the radio system (i.e., for commercial purposes), the lease was entered into only as a last resort because it is the state s preference to have companies lease space on existing towers instead of leasing ground space to the companies. 17 Like Pennsylvania, several of the states, for example, New Jersey, New York, and Ohio, do not have a single point of contact and overall policy for siting. Maryland. The Department of Information Technology oversees the approval process for building cell phone towers on all state owned property. As such, an entity can apply to the Department to build such a tower. Approval determinations are based on local zoning provisions and authority. If the state does not allow an applicant to build, the state must deny the application based on substantial evidence. New Jersey. The Department of Treasury, Office of Real Property Management (ORPM), is the lead agency responsible for the licensing of cell phone tower and antenna sites. As such, the ORPM issued guide 17 The Director also told us that the counties in Delaware want to limit the number of towers, and cited a Sussex County zoning ordinance which provides in part that any new freestanding commercial communications tower, antenna, or monopole, requires a special use exception. However, collocation of telecommunications equipment on existing freestanding towers, antennas, monopoles, buildings, water towers and tanks, and other similar structures shall be permitted without a special use exception. The ordinance further requires that applicants for special use exceptions are required to submit a site plan for review by the Planning and Zoning Commission that includes documentation showing that existing structures within a two mile radius of the proposed location are not available for collocation. Additionally, the need for a new commercial communications tower, antenna, or monopole must be documented. 24

32 lines in November 1998 for all state agencies to follow. 18 These guidelines direct each state agency to designate a primary point of contact to serve as the land owning agency s project manager. This designated project manager then works with the ORPM during the siting project to ensure duplication of application is avoided, and collocation and coordination occurs. These guidelines also, however, allow for flexibility for the other agencies. For example, the New Jersey Department of Transportation (DOT) has developed its own guidelines for siting towers within the rights of way on interstates and National Highway System highways. The New Jersey Department of Environmental Protection (DEP), which has oversight of all state parks, forests, and fishing and hunting lands, has a policy dated August 2004, that provides that freestanding towers and/or antennas are not allowed on DEP property. However, commercial antennas are allowed if attached to an existing tower or structure and only after consideration of the impact on the proposed site. Specific criteria to be considered includes height restrictions, visual impact, interference with DEP operations or planned development, existing capacity, funding and deed restrictions, and public opposition to the proposal. Each proposal is evaluated on a case by case basis. The carrier is responsible for any costs associated with the antenna or tower, including utilities and taxes that may be assessed. Additionally, rentals or license fees are negotiated on a case by case basis. According to a Department official, the DEP is currently in the process of revising this policy. New Jersey reported it issues licenses, not leases, for these sites because a lease gives the lessee the right to the exclusive use and occupation of the property. A license, however, merely confers permission to use the land according to the limitations set in the license without conveying any interest in the land. Further, a license is nonexclusive and revocable at the will of the licensor. In this way, the state retains greater control over the use and occupancy of the land. In order to obtain a license to site a cell phone tower in New Jersey (on property other than that which is controlled by DOT and DEP), the carrier must submit an application to the Office of Real Property Management. The review process includes determining if environmental assessments are needed, if public input is necessary, and if the project is feasible on the site selected. The review also involves a notification to the municipality involved, 19 site visits, and construction permits, if approved. There are additional requirements if the proposed site is in the Pinelands 18 An official in the Office of Real Property Management reported that, because the Office s policy is ten years old, the Office has begun work to update the policy. 19 The municipality has the opportunity to either approve or reject the project. 25

33 Area, a wetlands area, an historical site, or if the proposed site was purchased with monies from the Green Acres Fund or with monies from the Federal Land and Water Conservation Fund. According to an official in the Office of Real Property Management in the Department of Treasury, carriers are charged $36,000 per year per antenna that is sited on state property. Each year the fee is increased by 5 percent, although, according to the official, there is one company that pays a 3 ½ percent increase per year. New York. We have identified two points of contact for siting cell towers in New York: the Office of General Services, for towers on specific buildings, and the New York State Department of Environmental Conservation, Office for Technology, for all other properties. The Office of General Services has promulgated regulations, at 9 NYCRR Part 297, governing the installation and operation of communications facilities on specific state owned buildings. These regulations provide that state, federal, and local governments, regulated public utilities, radio common carriers, licensed radio and television broadcasting companies, and volunteer public emergency service organizations are eligible to submit requests to the Commissioner of General Services for permission to install cell phone antennas in or upon specific state owned buildings. State agencies and political subdivisions of the state are not charged a fee to install the facilities; however, all other organizations must obtain a license for a five year period, which is renewable, and must pay a fee to the Office of General Services. The fees are set in regulation as follows: Corning Tower, Governor Nelson A Rockefeller Empire State Plaza $4,200 per year per mobile radio or low power television antenna. Alfred E. Smith State Office Building $3,000 per year per mobile radio or low power television antenna. Office of General Services buildings located within the five boroughs of New York City and the Hauppauge State Office Building $3,600 per year per mobile radio or low power television antenna. All other state buildings $2,400 per year per mobile radio or low power television antenna. Fees for all other microwave antennas, wherever situated, range from $400 to $500 per square foot of surface area. According to an official of the New York Office of General Services, the Office is considering repealing its regulations because they are out-of-date and technology has greatly advanced since the regulations were put into place. According to an official of the Office of General Services, the Office is considering repealing these regulations because they are out of 26

34 date and technology has greatly advanced since the regulations were put into place. The official reported that the Office is considering turning the regulations into guidelines to make sure that state interests/property remains protected. Additionally, according to the official, a private company (managing agent), Crown Castle Communications, handles all the tower siting projects for the Office. He said that Crown inspects the equipment and manages the entire project. The official reported that, generally, if there is space where the entity wants to put a tower, the project is approved. Further, preference is given to state agencies over private entities. The New York State Department of Environmental Conservation 20 Office for Technology also plays a role in the siting of communications facilities for locations other than on buildings as described above. This involvement by the Office for Technology is to ensure that adequate consideration is given to protecting natural resources and historic structures. The state has a comprehensive environmental review process, known as SEQRA, or the State Environmental Quality Review Act process, that must be completed prior to undertaking any project that may affect the environment. The SEQRA process includes preparing an environmental impact statement describing the potential impacts of the project and strategies to avoid or mitigate those impacts. The process also provides an opportunity for meaningful public participation, which includes public hearings in some cases. The process ends with the issuance of a findings statement that summarizes the facts and conclusions drawn from the environmental impact statements and input from the public. As part of the SEQRA process, potential sites are strategically reviewed using a comprehensive siting hierarchy. This system favors collocation on existing and preferably government owned towers, minimizing the need for new towers. Based on all these factors, the Office for Technology will make a determination if the proposed site is viable for placement of the cell phone tower. Ohio. We identified several separate processes for the siting of cell phone towers on state property in Ohio: MARCS, the Ohio Department of Transportation, and the Ohio Department of Natural Resources. MARCS, the Multi Agency Radio Communications System, is the state s 20 New York s Department of Environmental Conservation has oversight of all state parks and forest lands and is responsible for overseeing fishing, hunting, and wild resources in the state, among other responsibilities. 27

35 800 MHz radio and data network for public safety use. This system s construction and operation is coordinated by the Office of Information Technology. For this system, the state leases land at loops along the highway system (in the middle of the cloverleafs) for the placement of communications towers. These towers are mainly for public safety use and are the backbone of the state s interoperable public safety network. Through this process, there is leased space for over 200 towers. One benefit to having this particular land leased is that the leaseholder is responsible for maintaining the land at the tower site. Users of the system include public safety agencies and first responders. However, MARCS permits private companies to subscribe also, but the priority is public safety. The Ohio Department of Transportation (ODOT) also has a process for leasing land for commercial cell phone towers. As such, ODOT has prepared a master license agreement that is entered into for each separate parcel of land leased. This agreement provides that ODOT and the carrier shall mutually identify and select parcels of property and/or space on existing towers or other structures for the construction, installation, operation and maintenance of radio transmitting and receiving equipment and other associated structures in connection with the carrier s wireless communications system. ODOT grants carriers a nonexclusive license to use selected parcels, and each parcel leased has a separate agreement. Carriers are required to pay fees to ODOT for the use of the parcel. The fees, according to the master license agreement, are based on the site s geographic location and the equipment and building space utilized. For example, for an urban location that has 1 to 4 antennas on it, the fee is $14,000 per year. For a suburban location that has antennas on it, the fee is $18,000 per year. According to an official in the Ohio Department of Natural Resources (DNR), DNR has its own radio system, but when MARCS became operational, DNR joined that system. The official reported that carriers are permitted to collocate their antennas on DNR s towers, but there are several issues that must be dealt with. For example, the more equipment there is on a tower, tower strength becomes an issue, as well as icing. In such cases, the carrier must have a study done to ensure that the tower is strong enough for the additional antenna. Additionally, if the carrier s antenna is going to interfere with DNR equipment, the carrier must remedy that situation. If, after addressing these concerns everything is determined to be feasible, DNR enters into a licensing agreement with the 28

36 carrier for 25 years, with fees increasing for the first five years of the agreement. West Virginia. The siting of cell phone towers is governed by statute, at 5 W.Va. Code 5A This section provides that the executive director of the Real Estate Division in the Department of Administration has sole authority to negotiate and enter into long term lease agreements for the lease of public lands to be used for placement of wireless communication towers. The lease agreements may not be for periods in excess of 30 years. All revenues generated by the leases are to be deposited into the General Revenue Fund, except when the lease is on property under the control of the Department of Transportation, the Division of Natural Resources, the Department of Agriculture, the Division of Forestry, and institutions of higher education. In these instances, the revenues are to be deposited into funds under the respective agency s control. The statute s provisions require that lease agreements allow for the collocation of towers, even among competing persons and corporations. Further, any lease agreement must be recorded in the office of the county clerk where the public land is located. All revenues generaged by the leases in West Virginia are to be deposited into the General Revenue Fund, except when the lease is on property under the control of the Department of Transportation, the Division of Natural Resources, the Department of Agriculture, the Division of Forestry, and institutions of higher education. Cell Phone Service Statistics and Issues Statistics are not maintained on the number of dropped calls and dead zones in Pennsylvania or nationwide. 21 Therefore, we were unable to document the extent of this problem in the Commonwealth. We were, however, able to find complaint data related to service issues from the Federal Communications Commission (FCC). The FCC collects information for complaints regarding the cell phone industry, 22 however, the data is not broken down to the state level. The FCC collects and reports this data on a quarterly basis. Complaint data is collected on the following subjects: Carrier Marketing and Advertising Contract early termination Billing and Rates Service Related issues Telephone Consumer Protection Act 21 The cell phone companies we spoke with were unable to provide this information. The PA Office of Attorney General s Bureau of Consumer Protection receives complaints regarding cell phone service but does not maintain them by specific category of complaint. 22 The FCC also collects inquiry and complaint data for cable and satellite services; radio and television broadcasting; and wireline communications. 29

37 In keeping with the scope of our study, we only report on the service related issues. According to the FCC, service related issues include: Dead spots: inability to receive service within certain areas Dropped calls: premature termination of calls Home service area: overall quality of service within the subscriber s local calling area Network busy signal: involving calls that do not go through because of overcrowding of the service frequencies Roaming availability: availability of service outside the subscriber s local calling area Roaming Service: overall quality of service while roaming Service interruption: inability to use cellular phone because service was interrupted by service provider Exhibit 3 below shows the complaint data compiled by the FCC. In 2002, there were 1,526 complaints citing service related issues. Complaints rose 236 percent from 2002 to 2007, to 5,129. The increase in the number of complaints may be due to the increase in cell phone subscribers. Increasing numbers of users also mean increasing cellular traffic and a greater number of cell towers, both of which have seen large increases over the same time period. 6,000 Exhibit 3 Number of Wireless Service Complaints Received by the FCC (CY ) 5,000 4,000 3,000 2,000 1,000 CY 2002 CY 2003 CY 2004 CY 2005 CY 2006 CY 2007 Source: Developed by LB&FB staff with data from the FCC. 30

38 According to industry representatives, the cell phone market is saturated, with percent of the population owning cell phones. A July 2008 Newsweek article cited three groups that are wireless holdouts : children, elderly and credit challenged. Exhibit 4 shows the increase in cell phone subscribers, nationally, from In 2002 there were 140,766,842 cell phone users. This number increased to 255,395,599 in 2007, an increase of 81 percent. A July 2008 Newsweek article cited three groups that are wireless holdouts : children, elderly, and credit challenged. Exhibit 4 Estimated Cell Phone Subscribers, ,000, ,000, ,000, ,000, ,000,000 50,000, Source: Developed by LB&FC staff with data from CTIA. Pennsylvania had a much greater increase in cell phone subcribers than the national percentage increase, going from 3,850,372 subscribers in 2002 to 9,200,793 in As shown in Exhibit 5, this is an increase of 138 percent compared to 81 percent nationally. 31

39 Exhibit 5 Pennsylvania Cell Phone Subscribers 10,000,000 9,000,000 8,000,000 7,000,000 6,000,000 5,000,000 4,000,000 3,000,000 2,000,000 1,000, Source: Developed by LB&FC staff with data from the FCC. As reported by industry representatives, to address the needs of the increased customer base, cell phone companies are continuously adding towers and upgrading equipment. Towers must carry more than phone calls as subscribers expect more than just voice services. Increasing technology allows today s cell phones to have multiple applications such as texting, Internet, and instant messaging. Additional tower capacity makes this data streaming possible and increases the speed at which information is routed to a cell phone. According to industry representatives, cell phone providers monitor their coverage and try to eliminate dead zones where calls can be dropped. There are two main reasons why companies add towers: (1) to increase general coverage; and (2) to add coverage where a tower currently exists because traffic has become too great. Exhibit 6 shows the growth in cell phone towers from , which went from 126,961 to 266,299 nationally, an increase of 91 percent within the time span. There are two main reasons why companies add towers: (1) to increase general coverage; and (2) to add coverage where a tower curretly exists because traffic has become too great. Cell phone companies reportedly spend a great deal of money investing in infrastructure. CTIA reports that the wireless industry s six 32

40 Exhibit 6 Total Number of Cell Towers 300, , , , ,000 50, Source: Developed by LB&FC staff with data from CTIA. month incremental capital expenditure in operational systems was $9.71 billion. Because of the need for providing quality service and faster speeds, companies are continuing to site more towers and upgrade existing equipment, however, capital is limited in any given year. Industry Response Because the market is becoming saturated, cell phone companies are attempting to attract each other s customers. To keep current customers and attract others, it is in the companies best interest to continue to improve coverage and services. According to CTIA, improvements in cell phone services include: Because of the need for providing quality service and faster speeds, companies are continuing to site more towers and upgrade existing equipment, however, capital is limited in any given year. Consumers are using more minutes and data services and are paying less for those services, as indicated by industry reported average revenue per customer. Competition among companies is strong, with over 150 wireless companies in the United States. Ninety eight percent of the population has a choice of three or more providers, 94 percent has four or more and 51 percent has five or more. Wireless providers are expanding and upgrading networks to provide broadband Internet access to handsets. Wireless providers have allowed for proration of cancellation fees. Wireless providers have implemented thirty day trial periods for their services. 33

41 III. Background Federal Overview and Legal Framework The Federal Communications Commission (FCC), an independent United States government agency, was established by the Federal Communications Act (FCA) and is charged with regulating and enforcing interstate and international communications by radio, television, wire, satellite, and cable. 1 The FCCʹs jurisdiction covers the 50 states, the District of Columbia, and U.S. possessions. Specifically, the Federal Communications Act, 47 U.S.C. 151 et seq., provides for the regulation of:... interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient, nation wide, and world wide wire and radio communication service with adequate facilities at reasonable charges, for the purpose of the national defense, for the purpose of promoting safety of life and property through the use of wire and radio communications, and for the purpose of securing a more effective execution of this policy by centralizing authority heretofore granted by law to several agencies and by granting additional authority with respect to interstate and foreign commerce in wire and radio communication. Because the Federal Communications Act provides for the regulation of telecommunications, section 332(c)(3)(A) of the act prohibits states from regulating wireless telephone rates unless specific authorization is obtained from the FCC; however, it expressly allows states and state utility regulatory agencies to ʺregulate the other terms and conditions of service, including customer protection. This same section also provides, however, that a state may petition the FCC for authority to regulate the rates for any commercial mobile service. If the state demonstrates in its 1 In 1993, Congress created the statutory classification of Commercial Mobile Services now known as Commercial Mobile Radio Services, or ʺCMRS,ʺ to promote the consistent regulation of mobile radio services that are similar in nature. At the same time, Congress established the promotion of competition as a fundamental goal for CMRS policy formation and regulation. To measure progress toward this goal, Congress required the Federal Communications Commission to submit annual reports that analyze competitive conditions in the industry. 34

42 petition that market conditions fail to protect subscribers from unjust and unreasonable rates, or that such market conditions exist and such service is a replacement for land line telephone exchange service for a substantial portion of the telephone land line exchange service within the state, the FCC is required to grant the state s petition. Tower Siting 2 In the 1980s, when the FCC first authorized cellular service, licensees were required to receive approval for tower locations that make up the outer service areas of that provider s designated service area. Adding or modifying towers within that designated area did not require further FCC action. However, there are exceptions to this rule. For example, FCC approval is needed if the proposed antenna structure constitutes a major environmental action, or if the antenna exceeds FCC criteria concerning the construction, marking and lighting of the structure. Additionally, antenna structures or towers that would be taller than 200 feet and towers located near airport runways must be registered with the FCC and cleared by the Federal Aviation Administration. An amendment to the FCA of 1996 preserved state and local government authority over the placement, construction, and modification of personal wireless service facilities such as transmitters and antenna structures, with limitations. The limitations state that such authority shall not unreasonably discriminate among providers of functionally equivalent services and shall not prohibit or have the effect of prohibiting the provision of personal wireless services. A state or local government is required to act on any request made by a provider within a reasonable period of time, and, if the request is denied, a decision must be in writing and supported by substantial evidence on the record as to the reason for the denial. Additionally, a state or local government is prohibited from regulating these facilities on the basis of the environmental effects of radio frequency emissions as long as the facilities are in compliance with the FCC s emissions regulations. State In Pennsylvania, the Public Utility Code specifically exempts from the definition of public utility any person or corporation, not otherwise a public utility, who or which furnishes mobile domestic cellular radio 2 The information in this section is taken from the document, Report on Cellular Transmission Antennas, prepared by the House Committee on Consumer Affairs Subcommittee on Telecommunications, December

43 telecommunications service. Therefore, the Public Utility Commission does not regulate cell phone service. Other States Although states are not permitted to regulate rates unless express authority has been granted to the state by the FCC, states can regulate terms and conditions of service, including consumer protection issues. For example, California s Public Utilities Commission, in March 2006, adopted an order entitled Consumer Bill of Rights and Freedom of Choice. This order provides a framework for consumer protection and freedom of choice in a competitive telecommunications market. Specifically, under this order, consumers have the right to: select telecommunications services and vendors of their choice; change voice service providers within the same local area and keep the same phone number; receive clear and complete information about all material terms and conditions of the products and services plans they have selected or are considering selecting; be charged only according to the rates, terms, and conditions they have agreed to; have personal privacy and protection from unauthorized use of their personal information and records and to reject intrusive communications and technologies; participate in public policy proceedings; accurate and understandable bills for products and services and mechanisms for resolving disputes and correcting errors that are accessible, fair, efficient, and reasonable; be treated equally to all other similarly situated consumers, free from unreasonable prejudice or discrimination; maintain the safety and security of their person, property, financial records and personal information; and expect that voice providers will offer connections to E 911 emergency services. 36

44 40

45 IV. Appendices 37

46 APPENDIX A SR PRIOR PRINTER'S NOS. 1520, 1817 PRINTER'S NO THE GENERAL ASSEMBLY OF PENNSYLVANIA SENATE RESOLUTION No. 206 Session of 2007 INTRODUCED BY RHOADES, PUNT, STOUT, ARMSTRONG, WASHINGTON, TOMLINSON, MUSTO, TARTAGLIONE, LOGAN, M. WHITE, RAFFERTY, C. WILLIAMS, EARLL, KITCHEN, D. WHITE, DINNIMAN, FUMO, FERLO, PILEGGI, BROWNE, REGOLA AND BOSCOLA, NOVEMBER 2, 2007 AMENDED, APRIL 1, 2008 A RESOLUTION 1 Directing REQUESTING the Legislative Budget and Finance <-- 2 Committee to study the improvement and enhancement of 3 telecommunications coverage in the cell phone industry. 4 WHEREAS, Telecommunications infrastructure is essential for 5 all economies to compete in a global marketplace; and 6 WHEREAS, As a rural State, Pennsylvania is particularly 7 dependent on wireless communication services to connect 8 Pennsylvania businesses and communities to the global community; 9 and 10 WHEREAS, A strong telecommunications infrastructure can be a 11 catalyst for encouraging entrepreneurial activity, expanding 12 cultural and tourism opportunities, creating new technology and 13 financial sector jobs, rebuilding our downtown areas and 14 enhancing the overall economic health of our communities; and 15 WHEREAS, A strong telecommunications infrastructure is not 16 possible when Pennsylvania's wireless communications network is 17 plagued by costly consumer requirements, as well as geographical 1 challenges in rural areas; and 2 WHEREAS, Gaps in cell phone service exist in some regions of 3 this Commonwealth, which result in interruption or lost 4 telecommunication coverage; therefore be it 5 RESOLVED, That the Legislative Budget and Finance Committee 6 is hereby requested to study ways to improve telecommunication 7 coverage and eliminate gaps in cell phone service in areas of 8 Pennsylvania WHILE ENCOURAGING COLLOCATION AND USE OF EXISTING <-- 9 STRUCTURES FOR TOWERS AS AN ALTERNATIVE TO UNNECESSARY 10 PROLIFERATION OF CELL TOWERS; and be it further 38

47 Appendix A (Continued) 11 RESOLVED, That the Legislative Budget and Finance Committee 12 develop RECOMMENDATIONS FOR policies to encourage wireless <-- 13 carriers to improve wireless coverage throughout Pennsylvania; 14 and be it further 15 RESOLVED, That the Legislative Budget and Finance Committee 16 report to the regular session of the General Assembly SENATE AND <-- 17 THE HOUSE OF REPRESENTATIVES on or before June OCTOBER 1, 2008, <-- 18 on its findings, conclusions and recommendations, together with 19 drafts of any legislation necessary to effectuate its 20 recommendations; and be it further 21 RESOLVED, That the expenses necessary to conduct this study, <-- 22 to prepare a report and to draft necessary legislation be paid 23 from legislative appropriations to the Legislative Budget and 24 Finance Committee; and be it further 25 RESOLVED, That the Legislative Budget and Finance Committee, 26 upon completion of the telecommunication coverage study prepare 27 a plan outlining policy recommendations that will improve 28 telecommunication coverage throughout Pennsylvania. 39

48 APPENDIX B Maps of Company Coverage Areas AT&T Coverage 40 Source: ATT&T website August 2008.

49 Appendix B (Continued) Sprint Coverage 41 Source: Sprint website August 2008.

50 Appendix B (Continued) T-Mobile Coverage 42 Source: ATT&T website August 2008.

51 Appendix B (Continued) Verizon Wireless Coverage Locator 43 Source: Verizon website August 2008.

52 APPENDIX C Map of Commonwealth-Owned Land 44 Source: Pennsylvania Office of Administration.