ZONING ORDINANCES AND TELECOM PROVIDERS CAN WE LIVE IN HARMONY?

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1 WYOMING ASSOCIATION OF MUNICIPALITIES ZONING ORDINANCES AND TELECOM PROVIDERS CAN WE LIVE IN HARMONY? Corporation Bob Duchen Vice President June 1, 2017 Copyright 2017 by Corporation. All rights reserved.

2 What Are Small Cells? They are bigger than you think for example, 28 cubic feet. They often involve poles, antennas, transmission equipment, power and fiber optic cables. They do not always include stealth features. Corporation 2

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7 Bio on River Oaks Communications Corporation Colorado Based 30 Years of Experience 38 States & Puerto Rico Hundreds of Local Governments Bob Duchen- VP, Co-founder, University of Virginia School of Law Author and Webinar Presenter Testified in Lincoln at the State Capitol Corporation 7

8 Overview of Federal Law Cable Acts of 1984 and 1992 Telecom Act of 1996 Middle Class Tax Relief and Job Creation Act of 2012 FCC Wireless Order- October 2014 Federal Register Publications Pending Proceedings at the FCC Corporation 8

9 Regulatory Landscape Telecommunications Act of 1996 Sections 253 and 332 of the Federal Communications Act Middle Class Tax Relief and Job Creation Act of 2012 (this is not a typo) Cannot Prohibit or Effectively Prohibit Personal Wireless Services Corporation 9

10 Federal Statutes 47 U.S.C. Section 253(a) No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service. 47 U.S.C. Section 253(c) Nothing in this section affects the authority of a State or local government to manage the public rights-of-way or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and non-discriminatory basis, for use of public rights-of-way on a non-discriminatory basis, if the compensation required is publicly disclosed by such government. Corporation 10

11 Federal Statutes 47 U.S.C. Section 332 (c) (7) - Preservation of Local Zoning Authority (A) Except as provided in this paragraph, nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities. (B) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof- I shall not unreasonably discriminate among providers of functionally equivalent services; and II shall not prohibit or have the effect of prohibiting the provision of personal wireless services. Corporation 11

12 Regulatory Landscape Federal Communications Commission Game Changer - The Shot Clocks Entry and expansion by Cellular, Wi-Fi and Broadband Providers Placement of Towers, Small Cell Sites and Antennas to meet business objectives Pragmatic ways to handle applications Corporation 12

13 Some Pertinent Considerations Substantial Authority Still Resides within Municipalities Regarding Siting Wireless Facilities Make sure you understand your rights. Concerns of Local Governments Include: Aesthetics Compensation for Government Sites Health RF Emissions (Federal Regulations) Impact on Real Estate Values Corporation 13

14 Distributed Antenna Systems and Small Cells Implementation of Distributed Antenna Systems ( DAS ) and Small Cells- Washington, Idaho, New Mexico, and Nebraska Explosive Growth and Capacity Issues; This Differs From Coverage Issues Timeframe to Review and Approve or Deny Requests for Antennas and Towers Three Different Shot Clocks Plus State Law Current Zoning Ordinances- Outdated, Inadequate and Putting Cities At Risk Corporation 14

15 FCC Order and Prior Rulings The Latest Timeframes: 60 Day Shot Clock for Section 6409(a) Eligible Facilities Applications and Modifications 90-Day Shot Clock for Section Other Collocation Applications 150-Day Shot Clock for Other Requests (New Tower Site) State Law Can Still Come into Play or may be Preempted Depending Upon Whether it is more favorable or less favorable to Providers Corporation 15

16 FCC Report and Order Very Complex and Complicated Depending Upon Your Fact Situations 155 Pages and over 700 Footnotes Adopted October 17, 2014 and Released October 21, 2014 Became Effective in April, 2015 Corporation 16

17 Section 6409(a) The Keys to the Order Regarding Modifications: Notwithstanding Section 704 of the Telecommunications Act of 1996 (Public Law ) or any other provision of law, a State or Local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station. 47 U.S.C Corporation 17

18 Section 6409(a) What Are Eligible Facilities: For purposes of this subsection, the term eligible facilities request means any request for modification of an existing wireless tower or base station that involves: (A) Collocation of new transmission equipment; (B) Removal of transmission equipment; or (C) Replacement of transmission equipment. Corporation 18

19 Section 6409(a) Everybody Pay Attention This is The Most Important Take Away Determine if the Providers Applications really fall within the parameters of the deemed granted language because that directly impacts how much time you have to approve or deny the Application. And Corporation 19

20 How do you do this? Look carefully at the Application and think Eligible facilities request about the following definitions: Has your community already issued an authorization or permit for what is there? Substantially change the physical dimensions Existing Wireless Tower Base Station Also, the Provider needs to notify the Municipality in writing after the expiration of the 60 day period- Deemed Granted Remedy under Federal Law Corporation 20

21 Eligible Facilities Request This involves collocation, removal or replacement. Contrary to common sense, collocation now means the first antenna on a facility (everyone used to think it meant a secondary piece of equipment). Collocation means the mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving Radio frequency signals for communications purposes. Corporation 21

22 What is a Tower (Trick Question)? A tower could be everything from a flagpole to a monopine to a traditional tower. The key is that its primary purpose must be to support antennas and related facilities. A tower is Any structure built for the sole or primary purpose of supporting any Commissionlicensed or authorized antennas and their associated facilities. Corporation 22

23 Base Station Generally, this is the equipment that you will find at the base of the tower. The FCC has defined Base Station as A structure or equipment at a fixed location that enables Commission-licensed or authorized wireless communications between user equipment and a communications network. Translation: The transmission equipment and any non-tower structure that supports transmission equipment per a permit or other authorization that enables wireless use. Corporation 23

24 A Primer that is Critical The Order affects Local governments in their regulatory capacity (zoning, land use, etc.) The Order (the 60 day Shot Clock) has no effect on Local governments in their proprietary capacity. This means that if you are acting as a Landlord and a provider wants to lease space on your land or facilities (towers, buildings, etc.) there is no time constraint on working out the details of a Lease. Corporation 24

25 Moratorium It Depends on which Shot Clock is involved. Providers will strongly protest. Could lead to Litigation. Corporation 25

26 332(c)(7) Terms This comes from the Telecommunications Act of 1996 Deals with Personal Wireless Service Facilities This was the starting point before any Shot Clock evolved Per the FCC, 90 days for collocations and 150 days for other facilities and more detailed Application information No deemed granted remedy for 332(c)(7) Clarifies that shot clocks apply to DAS and Small Cell Systems Corporation 26

27 Service Providers vs Infrastructure Providers Verizon Wireless, AT&T Wireless and T- Mobile Companies such as Mobilitie- Local, State, and Federal Proceedings Site Acquisition Companies New Players in the Marketplace Corporation 27

28 Cody, Wyoming- How They Handled It Reviewed existing Wireless Communication Facilities Regulations Approached by Mobilitie Updated their WCF Regulations to Provide For DAS and Small Cells, Collocation, Tower Siting Preferences and Processes for use of Municipal Rights-of-Way Third-Party Technical Reviews Corporation 28

29 Some Examples from Other States Spokane, Washington Coeur d Alene, Idaho Williston, North Dakota Las Cruces, New Mexico League of Nebraska Municipalities Corporation 29

30 Input and Feedback from Municipalities Cell Towers Antennas Small Cells Distributed Antenna Systems New Technologies Corporation 30

31 Illustrative Pictures of WCFs Corporation 31

32 Illustrative Pictures of WCFs Corporation 32

33 Illustrative Pictures of WCFs Corporation 33

34 Illustrative Pictures of WCFs Corporation 34

35 Illustrative Pictures of WCFs Corporation 35

36 Illustrative Pictures of WCFs Corporation 36

37 Illustrative Pictures of WCFs Corporation 37

38 Illustrative Pictures of WCFs Corporation 38

39 Revenue Opportunities for Local Governments Water tanks, Towers, Buildings and Fiber (Vertical and Horizontal Assets) What are Rights-of-Way Worth? Examples from Other States- Ohio, Nebraska and Arizona Corporation 39

40 How do Cities Protect Themselves? Review Current Ordinances Draft and Develop new Zoning Ordinances for Wireless Communication Facilities Stay in Touch with WAM for New Developments at the State and Federal Level Communicate with One Another- You have Similar Challenges and Opportunities Corporation 40

41 What is Broadband? Broadband What are the FCC recommended standards? Are your businesses and residents satisfied with the current state of broadband in your Community? Corporation 41

42 Key Considerations for Broadband Accessibility Affordability Capacity Speed Reliability Cost Corporation 42

43 Consider doing a Survey Conduct an on-line survey Possible Survey responses: Aesthetics- Cell towers, Antennas and Equipment Cabinets Availability, affordability, reliability, and speed of Internet Service in your Community Consensus Corporation 43

44 Next Steps Analyze existing Broadband Infrastructure Determine the need for additional coverage and capacity Assess the affordability of Broadband to Businesses and Residents. Inventory Vertical and Horizontal Assets. Corporation 44

45 Next Steps (Cont.) Evaluate the Opportunity for Public/Private Partnerships Determine the Interest Level in a Regional Broadband Initiative Survey Local Businesses to assess demand Examine middle-mile and last-mile options Conduct a Broadband Feasibility Study Corporation 45

46 THANKS For Hanging in there for our Presentation. If you have specific factual questions later on, please call us or send us an Corporation 46