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Wireless Facility Siting Issues – Small Cells and OTARD Rules – Part III (Triton Network Systems)

As discussed in Part II, the FCC clarified its exclusion of “carrier hub” facilities from OTARD protection in the Continental Airlines case, decided in 2006. In particular, antenna facilities that are used to service multiple customers are not “carrier hub” facilities as long as the customers are physically located at the site where the antenna is deployed. However, that analysis raises the question of how the antenna site “location” is to be defined and described.

Two years prior, the FCC had already addressed the carrier hub exclusion in its Competitive Networks Order on Reconsideration[1]. Like the Continental Airlines case, the Order on Reconsideration raises as many questions as it answers.

In the Order on Reconsideration, the FCC considered a petition filed by a wireless data carrier called Triton Network Systems seeking clarification of the FCC’s exclusion from OTARD coverage of customer-end antennas that are used as hubs or relays. The case is interesting for two reasons: First, Triton was primarily a service provider, and could not be considered a “customer” of another provider’s wireless service. Second, Triton proposed to distribute wireless services to multiple customers from its antenna sites, just like a “carrier hub”.

Unfortunately, the Competitive Networks Reconsideration Order includes very little factual description of Triton’s networks or how they operate. Therefore, it is difficult to assess the implications of the decision or its value as precedent. About all the Reconsideration does say is this: “Triton deploys its networks using a ‘point-to-point-to-point” architecture in which each device also serves as a rely device.”[2]

The FCC’s Order lumps Triton’s “point-to-point-to-point” architecture together with a mesh architecture. Traditional networks rely on a small number of wired access points or wireless hotspots to connect users. In a wireless mesh network, the network connection is spread out among dozens or even hundreds of wireless mesh nodes that communicate with each other to share the network connection across a large area. Mesh nodes are small radio transmitters that function in the same way as a wireless router, using common WiFi standards such 802.11a, b and g to communicate directly, dynamically and non-hierarchically with other nodes and with client devices such as laptop computers and cell phones. Thelack of dependency on one node allows for every node to participate in the relay of information. In effect, each node functions not only as a receiver but also as a transmitter that relays data to and from other nodes. Below is a schematic representation of a typical wireless mesh network.

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[Diagram copied from]

The Commission ultimately decided that Triton’s antenna facilities were protected from local regulation under the OTARD rule, and were not subject to Section 332 (a) (7). However, the FCC’s reasoning is again less than crystal clear.

There is no getting around the fact that Triton, like Continental Airlines[3], was using its antenna facilities not to receive wireless data services from another carrier but to provide “personal wireless services” to multiple end-users. How is it that Triton’s facilities did not constitute a “carrier hub” subject to local regulation under Section 332?

As discussed in Part II, in the Continental Airlines case the FCC did an end run around the carrier hub problem by focusing on the physical location of those who had access to Continental’s WiFi service. So long as end-users were limited to those physically located within the confines of the President’s Club lounge, where the WiFi device was located, the device itself did not constitute a carrier hub and Massport’s lease restriction was preempted.

The Order on Reconsideration does not describe the configuration of Triton’s network or indicate the location of its customers. However, as illustrated by the diagram reproduced above, it may be presumed that end-users using Triton’s network were not all grouped at a single location, like a lounge or other large room. After all, one of the central virtues of a mesh network is that each node functions as a relay sending to and receiving signals from other nodes; therefore, the network’s coverage footprint is in principle fluid, depending on the number and distribution of nodes. Nevertheless, the Commission ruled that Triton’s antenna facilities were entitled to protection under the OTARD rule even though they were used to serve multiple customers who were presumably not (as in the Continental Airlines case) all physically located at the antenna site[4].

In fact, the Commission’s decision in the Order on Reconsideration completely ignores the location of Triton’s customers vis-à-vis the antenna facility. Instead the Order is based on considerations that seem much more relevant to the public policies underlying both the OTARD rule and Section 332 (a) (7) of the Communications Act – namely, the nature of the burden created by the existence of the antenna and its effect on community values which local governments are obligated to uphold.

Attempting to clarify the distinction between user antennas and carrier hubs, the Order on Reconsideration refers back to the Competitive Networks Order, in which the Commission cited the legislative history of Section 332:

Moreover, nothing in the legislative history indicates that Congress’ preservation of local zoning authority was intended to cover customer-end antennas. To the extent that the Conference Report gives examples of personal wireless service facilities, it references towers: “conferees do not intend that if a state or local government grants a permit in a commercial district, it must also grant a permit for a competitor’s ’50-foot tower’ in a residential district.”[5]

The Competitive Networks Order goes on to justify the distinction between customer-end antennas and carrier hub facilities on the ground that an individual customer tends to have fewer options for the placement of an antenna than a wireless carrier does. “… the inability of a customer to place an antenna at the customer’s fixed site will result, with few exceptions, in the denial of fixed wireless service to that customer, whereas the inability of a carrier to place a hub site at a specific site will often not result in a denial of wireless service to customers in that area.”[6]

Thus, the original distinction made by Congress in the Telecommunications Act of 1996 between customer-end antennas and carrier hub antennas was based on two primary considerations: first, the strong interest of local government in regulating the placement of large and unsightly cell towers by wireless carriers insofar as siting decisions can have a powerful and practically irreversible negative effect on the aesthetic values embodied in land-use ordinances; and second, the availability of multiple facilities siting options to deep-pocketed wireless carriers. Neither of these considerations has anything to do with the number of end-users who receive wireless service by means of a particular wireless antenna or the physical location of those end-users.

In summary, the Continental Airlines case stands for the proposition that an otherwise qualified antenna device that is used to distribute fixed wireless signals to multiple customers may be a protected OTARD device, so long as the customers are physically located at the antenna site. The Triton Network Systems Order on Reconsideration says that a carrier antenna used to distribute wireless services by means of a point-to-point-to-point or mesh network may qualify for OTARD protection even though the customers are not physically located at the antenna site. But what exactly makes point-to-point-to-point or mesh networks special? What are the limits of the precedent set by Triton? What remains of the once clean distinction between customer-end antennas and carrier hubs?

Part IV of this series will examine these questions and consider the impact of 5G small cell antennas on the analysis going forward.


[1] Promotion of Competitive Networks in Local Telecommunications Markets, Order on Reconsideration, WT Docket No. 99-217, 19 FCC Rcd 5637, 5643-44 ¶¶ 13 (2004) (“Competitive Networks Reconsideration Order”).

[2] Competitive Networks Reconsideration Order at ¶ 13.

[3] Continental Airlines; Petition for Declaratory Ruling Regarding the Over-the-Air Reception Devices (OTARD) Rules, Memorandum Opinion and Order, 21 FCC Rcd 13201 (2006).

[4] The Order also does not describe Triton’s antenna facilities or where they were located, and as a result does not explain how the real property on which Triton’s antennas were mounted antenna location was under the exclusive control of Triton or how Triton qualified as an “antenna user” under the OTARD rule.

[5] Competitive Networks Order, ¶ 112.

[6] Id., ¶ 114.

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