Wireless Facility Siting Issues – Small Cells and OTARD Rules – Part IV (Antenna Facilities Upgrade)

Wireless Facility Siting Issues – Small Cells and OTARD Rules – Part IV (Antenna Facilities Upgrade)

In preceding parts of this post, we have examined the continuing viability of the FCC’s distinction between “carrier hub” antennas and customer-end antennas with regard to the FCC’s OTARD rule. In Part III, we concluded that 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 still be a protected OTARD device, so long as all end-users 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.

The Triton network used dual-use antennas which functioned both as reception and as transmission devices. In the Order on Reconsideration, the Commission acknowledged that in its prior proceeding, it “did not consider those network configurations and technologies in which customer-end equipment performs both functions”, and that new network architectures “being actively developed and deployed … may no longer rely on the traditional configurations” addressed in the Competitive Networks Order[1]. In fact, dual-use wireless networks are becoming increasingly common, and the Order on Reconsideration sheds little light on how such networks should be analyzed under the OTARD rule.

If an antenna facility is erected at a customer location, and includes reception devices that are in compliance with OTARD’s requirements, does the existence of additional transmission capabilities – whether by means of additional equipment or not – remove the facility from OTARD’s protection? After all, additional transmission capabilities need not substantially alter the physical characteristics (e.g., height or width or aesthetic features) of the equipment. At what point then would the addition of transmission functionality transform an OTARD-qualifying device into a carrier hub? Stated otherwise, if local regulation is preempted in one case, why is it not preempted in the other case, when only the functionality and not the physical characteristics of the facilities has changed?

From a municipality’s viewpoint, the danger is that wireless carriers will attempt to shield facilities sites from local regulation simply by installing those facilities on the premises of a customer so that they are entitled to protection under the OTARD rule. The FCC was well aware of this possibility. “In concluding that OTARD protections should extend to such [dual-use] customer-end equipment, we do not intend that carriers may simply locate their hub-sites on the premises of a customer in order to avoid compliance with a legitimate zoning regulation.”[2] However, the Commission does not provide a conceptually or practically adequate method of identifying instances in which carrier facilities are installed in such a way as to invoke OTARD protections and evade local regulation. The distinction appears to be based on the always nebulous concept of the installer’s intention:

… in order to invoke the protections of the OTARD rule, the equipment must be installed in order to serve the customer on such premises.[3]

In the same vein, footnote 42 says (emphasis added):

Thus, the OTARD protections would apply to installations serving the premises customer that also relay signals to other customers, such as is typical in mesh networks, but would not apply to installations that are designed primarily for use as hubs for distribution of services.

These statements indicate that the essential criterion used to determine whether a dual-use facility is a carrier hub or a customer antenna is the installer’s intention. If the equipment is “designed primarily” to serve customers located at the antenna site, then the facilities is shielded from zoning regulation under the OTARD rule. If, on the other hand, the equipment is designed and installed primarily for use as a distribution hub to serve customers not located on the premises at the antenna site, then the equipment is not protected under OTARD. What began as a clear and clean distinction between wireless reception devices and wireless transmission devices has evolved into a highly fact-specific distinction between the primary purposes to be served by wireless facilities at any particular location. Of particular interest is the following question: what happens if the primary purpose to be served by wireless facilities changes over time? The value of efficiency dictates that whenever possible, network expansion should be achieved by means of collocation on existing facilities rather than installation of new facilities. How are network upgrades treated under the OTARD rule? It is useful to imagine a particular example to illustrate the kind of issues that may arise in connection with this question.

Example

Suppose that Carl owns an office building with five commercial tenants. Carl erects a 20-foot mast antenna on the rooftop of the building, and at the top of the mast he attaches a DIRECTV satellite dish and several radio devices for the purposes of: (a) receiving fixed wireless data service from a remote service provider, and (b) providing WiFi service as an amenity for the five tenants in the building. Assuming that all antennas are less than one meter in diameter and otherwise comply with 47 C.F.R. § 1.4000 (a) (1), the facilities qualify under the OTARD rule (as interpreted in the Continental Airlines Declaratory Ruling) for protection from local zoning ordinances not related to safety[4].

Now suppose that one year after the initial installation, Carl decides to expand the functionality of the rooftop antenna facilities to include transmission capability. Perhaps he creates a small wireless Internet service provider and attaches a radio transmission device to the mast for the purpose of providing fixed wireless service to homes and businesses not located within but in the neighborhood of the building. Or perhaps he 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. In either case, the rooftop equipment is now a dual-use facility that both receives and distributes wireless services to on-site users (the five tenants), and transmits fixed wireless services to customers of the wireless carrier at other locations. The municipality’s Code Enforcement Officer issues a citation for violation of the city’s ordinance and orders Carl to remove the rooftop facilities until a permit is issued. The legal question is: does the mast and antenna installation forfeit OTARD protection due to the addition of wireless transmission devices which are designed and used primarily to service remote customers?

This example is deliberately drafted with the FCC’s Competitive Networks Order on Reconsideration in mind. Specifically, the rooftop equipment was originally installed by the for the purpose of providing fixed wireless service to customers leasing space in the building that houses the antenna. Carl is an “antenna user” under OTARD because the antenna is used to receive and distribute fixed wireless and satellite television signals to end-users located at the antenna site (i.e., tenants of Carl’s building), and as the owner of the building, Carl has exclusive control over the rooftop on which the antenna is mounted. The original installation therefore qualifies for OTARD protection under the interpretation advanced in the Continental Airlines ruling.

Only subsequently is equipment added to the mast for the purpose of providing wireless service to remote customers. While the addition of DAS or small cell transmission devices adds functionality of the mast and antenna facilities, it does not substantially alter the physical characteristics of the mast and antenna facilities themselves. However, the facilities now deliver fixed wireless services to customers not located at the antenna site. These facts seem consistent with the FCC’s endorsement of Triton’s dual-use facilities in the Order on Reconsideration. However, two facts distinguish the hypothetical case from Triton’s. First, unlike Triton, Carl is not operating a point-to-point-to-point or a mesh network Second, because the additional equipment is owned and operated by a third-party operator, Carl himself is not an “antenna user” with respect to the additional DAS or small cell devices. Do these distinctions make the mast and antenna ineligible for protection under the OTARD rule? Do the facilities forfeit protection under OTARD such that the city may now force compliance with the aesthetic standards in a zoning ordinance?

Existing FCC precedents do not provide a clear answer to this question. It’s an important question because the Federal government is committed to a public policy of encouraging the use of distributed micro-cell networks utilizing dual-use wireless equipment such as DAS and small cells. Access to sites – actual, physical locations – are the scarcest resource in the small cell ecosystem. There are only so many poles and other “street furniture”, building sides and rooftops in a given area, and there is only so much useable space on them.   The FCC and about twenty states have already taken steps to facilitate the collocation of small cells on public rights-of-way. However, until the FCC’s interpretation of the term “carrier hub” is clarified, it would appear that cities and homeowners’ associations may still regulate, charge fees for or prohibit the installation of DAS devices and small cells on antenna facilities mounted on private property without regard to the OTARD rule.

In the next part, we examine how the Federal Spectrum Act may affect the facilities upgrade example described above.

[1] Competitive Networks Order on Reconsideration, ¶ 16.

[2] Competitive Networks Order on Reconsideration, ¶ 17.

[3] Id. (emphasis in original).

[4] Because the mast exceeds 12 feet in height, it is subject to local safety regulations but is exempt under OTARD from aesthetic and other such standards.