Presenting a live 90-minute webinar with interactive Q&A Municipal Regulation of Wireless Telecommunication Facilities in the Public Right of Way: Guidance for Counsel Navigating Zoning Challenges and Interplay Between Federal, State and Local Laws TUESDAY, MAY 9, 2017 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Natausha M. Horton, Esq., Cohen Law Group , Pittsburgh & Seattle Eric J. Larson, Shareholder, Arenz Molter Macy Riffle & Larson , Waukesha, Wis. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Municipal Regulation of Wireless Telecommunication Facilities in the Public Rights-of-Way May 9, 2017
Presenter Natausha M. Horton Attorney, Cohen Law Group Pittsburgh Office: (412) 447.0130 ext. 17 Seattle Office: (206) 472.5646 nhorton@cohenlawgroup.org 6
Overview of Presentation: Discuss the impact of this new infrastructure on 1. municipalities 2. Outline basic municipal legal rights under federal law 3. Basic case study: Northampton Township, PA 4. Discuss how to prepare your municipality to respond to this new technology 5. Briefly discuss industry actions on the federal and state levels. 7
Impact of New Infrastructure on Municipalities 8
Impact of New Wireless Facilities As the other speakers have noted, these facilities are necessary for good cellular coverage and seamless connection to wireless broadband. In our firm’s experience, our municipal clients are very welcoming of these new technologies, but are concerned about preserving the integrity of their communities (i.e., historic areas/areas where all utilities are underground) and protecting their rights-of-way (a valuable property right). These wireless facilities add new burden to public ROWs and often impose new “mini -cell towers” (up to 120 feet, in the case of Mobilitie) on residential neighborhoods. 9
Impact of New Wireless Facilities Because these facilities are installed in the ROWs, they are different from traditional cell towers and require different regulations. Also, the granting of utility status to DAS contractors has added to the challenges facing municipalities to address these “mini - towers. ” Need to take proactive approach and develop a legally sustainable regulatory structure that protects the municipality and provides residents with wireless broadband service. Although accidents are rare, there are also public safety concerns. 10
Municipalities’ Legal Rights Regarding Wireless Facilities 11
Legal Authority for Wireless Facility Management by Municipalities The Telecommunications Act of 1996 states that local governments cannot “prohibit or have the effect of prohibiting wireless facilities,” but also preserves local zoning authority over the “placement, construction, and modification of wireless facilities. ” 12
Legal Authority for Wireless Facility Management by Municipalities Certain limitations on Congress’ grant of authority. FCC’s 2009 Shot Clock Rule Spectrum Act FCC’s 2014 Report and Order Federal case law specific to each district (i.e., E.D.Va) Some states have imposed an additional layer of regulation i.e., Pennsylvania Wireless Broadband Collocation Act (2012) Not many DAS cases because technology is relatively new, but key federal cases generally uphold municipal zoning authority over DAS contractors’ right-of-way authority. (Except in a few states, i.e., VA) 13
Case Study: Northampton Township, PA What happens when a municipality has not prepared for these new facilities? 14
Northampton Township Township Supervisors receive calls from residents. These residents complain that workmen have trucked in fiberglass poles, as well as other large equipment, and are painting circles on their front lawns. The circles are placement marks for the installation of mini-cell towers on the residents’ front lawns. Sign says: “Did you know that a 25-foot cell tower is going to be erected on this Corner?” 15
Northampton Township American Tower Corporation (“ATC”) obtained a Certificate of Convenience from the PUC and began installing a DAS network consisting of 60 antennas in the public rights-of-way, including at least a dozen new “towers” and 39 miles of fiber optic cable. Township initially treated this as a right-of-way matter and directed ATC to the Township Right-of-Way Ordinance, including a fee of 5% of gross revenues. ATC filed suit in state court and obtained an injunction against the Township. ATC began installing nodes atop existing utility poles and constructing new poles. ATC surveyed and marked proposed locations for new towers in neighborhoods where all utilities were located underground. New towers would have been 25-40 feet tall and many were to be located directly in the front yards of existing homes. Township residents became incensed. At this point, our firm got involved. The Township Board authorized pulling ATC permits, based upon non- compliance with Township zoning requirements. 16
Northampton Township Township issued stop work notices to ATC, directing that ATC must meet zoning ordinance requirement that no new telecommunications facilities can be located in residentially zoned areas. (Disclaimer: This position does not work for most suburban municipalities!) Work on the DAS system ceased and the Township filed suit in federal court, claiming that ATC was in violation of Federal Telecommunications Act, which preserves the Township’s zoning authority. Settlement discussions commenced and ATC agreed to attempt to reengineer its DAS system in order to eliminate the 12 proposed new towers. No new towers were placed in areas where all utilities were underground. All litigation was placed on hold and ATC altered the dimensions of the network such that no towers were placed in residential neighborhoods with utilities underground. 17
CLG’s Recommendations to Respond to Changes in Wireless Technology and Regulations 18
Effective Planning Should Begin Before It’s Too Late Each municipality is different in its size, zoning districts, topography, and character. As such, using a generic wireless facilities ordinance, or an ordinance written for another municipality, could have disastrous consequences. Start by reviewing ordinance and/or regulations that are currently in place and either amend or repeal/replace. 19
CLG’s Proposed Course of Action Review your municipality’s current wireless facilities ordinance and ask yourself whether it Complies with current laws and regulations; Addresses new technologies for wireless facilities inside and outside the public rights-of-way; Provides appropriate legal protections for the municipality; Preserves the character of your community; and Enables collection of fees for wireless facilities in the ROW. 20
Bottom Line Convert old cell tower ordinance to a comprehensive wireless facilities ordinance that protects your residents, addresses new technologies, incorporates the most recent regulatory changes, and strikes a balance between the need for wireless broadband and the integrity of your community. 21
Wireless Industry Actions on the Federal and State Levels 22
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