Wireless Facility Siting Issues – Small Cells and OTARD Rules – Part I

The deployment of 5G wireless networks on a wide scale will require the installation of hundreds of thousands of small cell devices in strategic locations to deliver high-frequency signals over the last mile to the customer premises. This prospect presents not only a huge logistical challenge, but a regulatory challenge as well, because for every cell deployment, the network operator must secure approval for the cell site as well as for equipment; negotiate fees with the city or other landlord; and, deploy, provision and maintain the base station and conform to the city’s aesthetic and environmental regulations. All of these hurdles require time and money.

Although the Federal government’s public policy since 1996 has been to encourage and facilitate the deployment of wireless networks throughout the United States, the regulatory framework for that policy has evolved largely in a piecemeal fashion. This post describes a few of the issues that regulators must address in order to keep pace with changes in wireless technology.

The basic framework for regulation of wireless facilities at the Federal level was established by the Telecommunications Act of 1996, two provisions in particular.

First, Section 207 required that the Commission to promulgate rules that “prohibit restrictions that impair a viewer’s ability to receive video programming services” via antennas.[1] The rules promulgated by the FCC pursuant to Section 207 are known as the over-the-air-reception device or OTARD rules, found at 47 C.F.R. § 1.4000. The OTARD rules prohibit any state or local law or regulation or any private contract or restriction of any kind that impairs the ability of an antenna user to install, operate and maintain certain antenna devices (one meter or less in diameter) on property over which the antenna user has exclusive control and a direct or indirect ownership or leasehold interest.

As originally issued, the OTARD rules were intended to facilitate the use of dish antennas used to receive direct broadcast satellite television signals. The rules did not apply to antennas carrying telecommunications traffic. In year 2000, however, in response to concerns expressed by CLECs and Commercial Mobile Wireless Radio (CMRS) operators, the FCC revised the OTARD rules to include “all customer end antennas and supporting structures of the physical type currently covered by the rule, regardless of the nature of the services provided through the antenna.”[2] The revised rule specifically covers devices used to receive fixed wireless signals, meaning, any commercial non-broadcast communications signals transmitted via wireless technology to and/or from a fixed customer location.[3] The rule also generally prohibits any governmental or private restrictions on any mast or support for an antenna covered by the rule, although a mast that is more than 12 feet high is subject to limited safety-related regulation.

Second, Section 704 of the Telecommunications Act of 1996, codified at 47 U.S.C. § 332 (c) (7), provides for limited preemption of state and local zoning authority over the siting of personal wireless service facilities such as cell towers and other structures designed to provide wireless services to end-users. State or local rules governing the placement, construction, and modification of personal wireless service facilities may neither “unreasonably discriminate among providers of functionally equivalent services”, nor “prohibit or have the effect of prohibiting the provision of personal wireless services.” Subject to these two limitations, local zoning authority is preserved. Section 332 (c) (7) “prevents Commission preemption of local and State land use decisions and preserves the authority of State and local governments over zoning and land use matters except in the limited circumstances set forth in the conference agreement.”[4] State or local governments may not regulate wireless facilities based on the environmental effects of radio frequency emissions to the extent that a facility complies with FCC regulations on such emissions. State and local governments are also required to act facilities siting requests within a reasonable period of time, and denials must be in writing and supported by substantial evidence, subject to judicial review.

In 2009 the FCC issued its “Shot Clock Order” defining a presumptively “reasonable period of time” for approval or disapproval of the request: 90 days for a collocation request, and 150 days for applications other than collocations. As a result of various legal challenges to the Shot Clock Order brought by municipalities, in 2014 the Commission issued its Wireless Siting Order[5] in 2014 clarifying various aspects of Section 332 (c) (7) including (among other issues) municipal property preferences, determinations that applications are complete, local moratoria, and application of the Shot Clock Order to distributed antenna systems (DAS) and small cell deployments.

In 2012, Congress erected a third statutory pillar of the wireless regulatory structure – Section 6409 (a) of the Federal Spectrum Act. The Spectrum Act was enacted in 2012 in order 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.[6]

As described above, the first two pillars supporting the Federal regulatory structure applicable to wireless facilities siting seem to draw a clean distinction between local regulation of consumer-end antenna facilities on the one hand, and carrier hub antenna facilities on the other hand. Local regulation of consumer-end reception devices is strictly limited under the FCC’s OTARD rules, but local authority over carrier-end transmission devices is for the most part preserved under Section 332 (c) (7). There is thus a large disparity between the regulatory treatment of wireless reception devices vis-à-vis wireless transmission devices, respectively: the former are largely free of state and municipal regulation, whereas the latter not.

While this disparity is the understandable result of historical events (e.g., the fact that the OTARD rules were originally promulgated to assist the satellite television industry in competing with big cable, without consideration of wireless data), the clean distinction between wireless reception devices and wireless transmission devices is increasingly difficult to maintain as wireless technology changes in ways that dramatically increase the efficiency of wireless communications technology. As the evolution of technology tends to blur the distinction between reception and transmission devices, an even more fundamental question arises – namely, what is the purpose of the distinction? Does maintaining the distinction, and building a regulatory structure on top of it, contribute to or create obstacles to the achievement of the public good?

Subsequent posts will address some implications of the existing regulatory scheme that may gain urgency as next-generations wireless data infrastructure is deployed.

[1] Telecommunications Act of 1996, Pub.L. No. 104-104, § 207, 110 Stat. 56 (1996), 47 U.S.C. § 303.

[2] Promotion of Competitive Networks in Telecommunications Markets, Wireless Communications Association International, Inc., Petition for Rulemaking to Amend Section 1.4000 of the Commission’s Rules to Preempt Restrictions on Subscriber Premises Reception or Transmission Antennas Designed to Provide Fixed Wireless Services, Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, Review of Sections 68.104 and 68.213 of the Commission’s Rules Concerning Connection of Simple Inside Wiring to the Telephone Network, First Report and Order and Further Notice of Proposed Rulemaking, WT Docket No. 99-217, 15 F.C.C.R. 22983, ¶ 99 (2000) (“Competitive Networks Order”).

[3] 47 C.F.R. § 1.4000 (a) (2).

[4] H.R. Rep. No. 104-458, at 207-08 (1996), reprinted in 1996 U.S.C.C.A.N. 222 (“Conference Report”).

[5] In re Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, WT Docket No. 13-258, Report and Order, FCC 14-153 (rel. Oct. 21, 2014), 29 FCC Rcd. 12,865.

[6] 47 U.S.C. § 1455 (a).