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Wireless Facility Issues – Small Cells and OTARD Rules – Part V (Spectrum Act)

Wireless Facility Issues – Small Cells and OTARD Rules – Part V (Spectrum Act)

In the preceding entry, we described a hypothetical example to analyze how the OTARD rule may apply when an OTARD-qualified antenna device is subsequently upgraded by adding a point-to-multipoint wireless transmission device, such as DAS or a small cell, is used by a third-party carrier to provision services to customers not located at the antenna site. Does the facility lose OTARD protection by virtue of the collocation of equipment that does not substantially alter the physical characteristics of the facility?

In our example, we proposed that Carl mounts equipment used for the reception of satellite television and fixed wireless services, including a 20-foot mast and antennas, on the rooftop of a multi-tenant building owned by Carl. The facilities are used to receive and distribute satellite television and WiFi services to tenants of the building as an amenity. The initial installation would be covered by the OTARD rules as interpreted in the FCC’s Continental Airlines declaratory ruling. One year later, however, Carl decides to lease space on the mast to a cellular carrier for collocation of a distributed antenna system (DAS) device or a 5G small cell radio access point to serve the carrier’s customers. Let us assume that Carl writes a letter to the local planning board and requests permission to attach the DAS or small cell device to his tower. The request is denied and Carl is informed that if the new devices are attached without Carl having obtained a permit for the entire mast and antenna facility, the facility will no longer qualify for OTARD protection and will be removed.

It seems clear that with regard to the new devices installed on the mast, Carl is not an “antenna user” because the DAS and small cell devices are not being used, or not being exclusively used, to provide services to end-users located at the antenna site. Even though the equipment other than the new devices and their usage remain consistent with the OTARD rule, the new devices are owned and operated by a third-party service provider to deliver wireless services to its customers at other locations. Do the facilities retroactively forfeit protection under OTARD such that the city may now force compliance with the aesthetic standards in a zoning ordinance – notwithstanding the fact that the physical characteristics of the facilities (e.g., their size and dimensions) have not substantially changed?

One might assume that this scenario is covered under the Federal Spectrum Act, which is intended to encourage the deployment of wireless facilities by means of upgrading existing structures, including collocation of new equipment. That seems to be exactly what is happening in our example. Let’s look.

Section 6409 (a) of the Spectrum Act

The Spectrum Act was passed in 2012 to “advance wireless broadband service” for public safety and commercial purposes, specifically by streamlining local permit approval processes for expansion of the wireless capabilities of existing tower and antenna facilities. The purpose and effect of this law is to preempt most local regulation of requests to modify qualifying existing wireless facilities, provided that the modification will not dramatically expand the physical footprint of the facilities. Section 6409 (a) says: “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.” The FCC has promulgated rules clarifying the very vague terminology used in the statute, see 47 C.F.R. § 1.4001.

In most cases, the mere addition of small radio devices such as DAS or a small cell on an existing mast structure will not amount to a substantial change in the physical dimensions of the structure. The question then becomes whether Carl’s request to attach DAS or small cell devices to the tower constitutes an “eligible facilities request” to modify an “existing wireless tower or base station” within the meaning of the Spectrum Act.

As defined in 47 C.F.R. § 1.4001 (b) (3), an eligible facilities request must be a request to modify an “existing tower or base station”, for example, but collocation of new transmission equipment. Under subsection (b) (8), “transmission equipment” includes any equipment that facilitates transmission for any Commission-licensed or authorized wireless communications service, including unlicensed wireless services and fixed wireless services such as microwave backhaul.” The DAS and small cell equipment fall within the definition of “transmission equipment”. The problem is that if there is no “existing tower”, there cannot be an “eligible facilities request” and the Spectrum Act is of no help to Carl.

The term “existing” is defined in 47 C.F.R. § 1.40001 (b) (5):

A constructed tower or base station is existing for purposes of this section if it has been reviewed and approved under the applicable zoning or siting process, or under another State or local regulatory review process, provided that a tower that has not been reviewed and approved because it was not in a zoned area when it was built, but was lawfully constructed, is existing for purposes of this definition.

In our example, Carl’s original 20-foot mast and antenna installation was reviewed and approved under the local building ordinance based solely on safety-related criteria. Other provisions of the local ordinance, including those relating to aesthetic criteria, do not apply to the tower facilities because the OTARD rule preempts all but clearly articulated safety-related regulation with respect to towers exceeding 12 feet in height. Any other review is preempted under the OTARD rule.

Does this extremely limited review at the local level mean that Carl’s mast is an “existing” tower, and that his request to collocate a small cell box on the mast is an “eligible facilities request” under the Spectrum Act? If we change the example to stipulate that Carl’s original tower installation was slightly less than 12 feet in height, it would not even be subject to limited safety-related regulation at the local level. In that case, would the tower fail to meet the FCC’s definition of an “existing tower”, precluding application of the Spectrum Act? These variations are intended to raise this question:

Can a tower or base station that is, as initially installed, wholly or partially exempt from local regulation under the OTARD rule qualify as an “existing” tower or base station such that local regulation of collocations to the tower are preempted under the Section 6409 (a) of the Spectrum Act?

Notice that the definition of “existing” does specify that if a tower is “lawfully built” but has not been reviewed and approved by local authorities because it “was not in a zoned area when built”, it is still considered an “existing” tower. But what about a tower that is lawfully built but has not been reviewed and approved by local authorities because it is exempt from local review under the OTARD rule?

A tower that is located in an un-zoned area is not reviewed and approved by local authorities because local zoning regulations do not apply to structures located areas that are not zoned. Such a tower is not reviewed and approved by local authorities because local zoning authorities have no jurisdiction over the location at which the tower is constructed. A tower and antenna facility that is protected from local regulation under the OTARD is not reviewed and approved by local authorities for exactly the same reason – local authorities have no jurisdiction over the facilities. Although the lack of local zoning jurisdiction over (a) facilities located in an un-zoned area, and (b) facilities protected under the OTARD rule is based on different rationales in each case, the question is raised: why should (a) and (b) be treated differently, and what public policy justifies the distinction?

Returning to our example, if Carl’s antenna had been installed in an area that was not zoned when the antenna was erected, but subsequently becomes subject to local zoning ordinances, collocations to the antenna would be protected under the Spectrum Act even though the antenna was at no point reviewed and approved. If on the other hand, the antenna was not reviewed and approved because it was a protected OTARD device, can the city deny permission for collocation of a small cell device on the ground that it is not an “existing tower” and therefore not protected under the Spectrum Act? The FCC’s rules implementing Section 6409 (a) of the Spectrum Act do not provide a clear answer to this question.

Once again, the OTARD rules were adopted at a time when cable companies held over 96 percent of the consumer market for pay television. The OTARD rules have been effective in enabling DBS companies to compete with big cable and providing consumers with choices among television providers. Now, however, television programming is increasingly available on mobile devices and 5G is seen as the next big step in this evolution. While the FCC and the states are focusing on small cell siting on public property, access to private property has so far received little attention. The time may be approaching when the FCC will see reform of the OTARD rules as a way to open up tens of millions of potential small sites from coast to coast.

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