Wireless Siting

The rise to dominance of wireless broadband is already happening and will accelerate in the near to mid-term, causing profound disruptions in existing models for the delivery of digital services in multi-family and multi-tenant ecosystems, including radical changes in technology platforms, consumer applications, business strategies as well as regulatory frameworks. One of the central challenges involves the negotiation of terms for the placement of hundreds of thousands of new wireless facilities and devices, including everything from cell towers and rooftop antennas to indoor and outdoor distributed antenna systems and small cell base stations, both in the public right-of-way (PROW) and on privately-owned multi-tenant buildings. Every challenge presents new opportunity for both service providers and the real estate professionals.

Federal Regulatory Framework

Federal and state governments are committed to finding ways to alleviate the burdens associated with deploying wireless infrastructure while at the same time preserving the authority of local governments to uphold aesthetic, environment and safety standards. At the Federal level, the regulatory framework for wireless facility siting is found in several statutes and FCC rules, including the OTARD rules, Section 332 (c) (7) of the Communications Act, and Section 6409 (a) of the Spectrum Act.

OTARD Rules

The FCC’s OTARD rules, 47 C.F.R. § 1.4000, governs the placement of customer-end reception facilities (including masts and antenna devices) for both satellite television and fixed wireless Internet services. In order to qualify for protection under the OTARD rules, the mast and antenna facility must be used to transmit or receive fixed wireless signals, the antennas must not exceed one meter in diameter, and the antenna user must have exclusive use or control over the property on which the facility is located. Subject to certain specific conditions and exceptions, any restriction, including but not limited to state or local laws or regulations, that “impairs” the installation, maintenance, or use of the device is preempted by the Federal rule.

Section 332 (c) (7)

Section 332 (c) (7) of the Communications Act of 1934 (Section 704 (a) of the Telecommunications Act of 1996) governs the placement of carrier-end transmission facilities. Section 332 (c) (7) provides for limited preemption of state and local zoning authority in the siting of personal wireless service facilities such as cell towers and other structures designed to provide wireless services to end-users. State and local regulations that (a) discriminate among providers of functionally equivalent services, or (b) prohibit or have the effect of prohibiting the provision of personal wireless services, are preempted, subject to certain limited conditions. State or local governments are required to act on any request for placement of covered facilities within a reasonable period of time. 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[1] 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.

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) provides that notwithstanding Section 332 (c) (7) (discussed above), “a State or local government may not deny, and shall approve, any eligible facilities request for modification of an existing wireless tower or base station that does not substantially change the physical dimensions” of the existing tower or base station facility.[2] The FCC has promulgated rules clarifying the very vague terminology used in the statute, see 47 C.F.R. § 1.4001.

5G and Small Cell Deployments

Unlicensed or lightly-licensed millimeter wave (mmWave) technologies such as those being developed for the fifth generation (5G) of mobile telecommunications are increasingly being used in the deployment of fiber-like fixed wireless access networks. These networks can be much cheaper to build than fiber-to-the-premises (FTTP) networks because instead of laying conduit and fiber all the way to the customer location, the last mile connection is established by way of point-to-point or point-to-multipoint wireless devices, all without sacrificing reliability or gigabit performance. 5G fixed wireless access networks are suitable for businesses, MDUs, gated communities and single-family homes, especially when residential density is around 1000 households per square mile.

Challenge for Fixed Wireless Operators – Multitude of Small Cells

One challenge for next generation wireless carriers is the fact that the higher frequency signals travel over shorter line-of-site distances than lower frequency waves, and therefore, many more base station connections are required to increase the macro-cell's edge data capacity, speed and overall network efficiency. For every cell deployment, the network operator needs to gain site and equipment approvals; negotiate fees with the city or other landlord; deploy, provision and maintain the base station and conform to the city’s aesthetic and environmental regulations. Existing regulatory structures are inadequate to handle the demand for new wireless facilities, and a variety of policy reform measures have been undertaken.

As of this writing (September 2018), twenty states[3] have enacted legislation aimed at easing local regulatory obstacle to the rapid deployment of wireless infrastructure, including imposing “shot clock” deadlines for approval of equipment and facilities, fee caps, and introducing new rules to streamline access to rights-of-way and city structures. At the Federal level, the FCC’s Broadband Deployment Advisor Committee and the Model Code for Municipalities Working Group are in the process of developing a model code for local governments for use as a flexible guideline to accelerate the deployment of wireless broadband deployment throughout the United States.

The FCC is aware of the need for uniformity in the processes required to secure approval for small cells, and has to date issued two Orders on the topic, including the Wireless Siting Order in 2014, and the Second Report and Order in the same proceeding, issued in 2018[4]. The Wireless Siting Order affirmed that DAS and small-cell facilities are included within the scope of the Shot Clock Order, so that siting applications for those facilities must be processed within the presumptively reasonable timeframes applicable to other personal wireless service facilities siting requests. The Second Report and Order exempts most small-cell facilities siting requests from review under the National Environmental Policy Act (NEPA)[5] and the National Historical Preservation Act (NHPA)[6].

The issue of local regulation of small cell infrastructure deployment is very active at the FCC and further developments are pending, including:

ü  Streamlining Deployment of Small Cell Infrastructure by Improving Wireless Facilities Siting Policies; Mobilitie LLC Petition for Declaratory Ruling, DA-16-1427, WT Docket No. 16-421;

ü  Removing Barriers to Investment Needed for America’s 5G Future Notice of Proposed Rulemaking and Notice of Inquiry, WT Docket No. 17-79; and

ü  Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment, Notice of Proposed Rulemaking, WC Docket No. 17-84.

The regulatory landscape at the Federal, State and local levels is continuously evolving as stakeholders seek common interests and areas of compromise and agreement.

For both real estate professionals and ISPs, the key issue in wireless facility siting is access to property. For the real estate industry, the transition to 5G wireless technology represents an opportunity to add new revenue streams to a property portfolio, because carriers expect to pay for access. For ISPs, securing the right to place equipment and devices at strategic locations on and in real property is a fundamental building block on which new networks are constructed.

The Kandutsch Law Office draws on many years of experience negotiating real estate access agreements in the telecom space to provide cost-effective assistance to each side of the transactional equation in the quickly changing wireless ecosystem.

[1] 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.

[2] 47 U.S.C. § 1455 (a).

[3] States with small cell legislation as of August 2018 include Arizona, Colorado, Delaware, Florida, Hawai’i, Illinois, Indiana, Iowa, Kansas, Minnesota, Missouri, North Carolina, New Mexico, Ohio, Oklahoma, Rhode Island, Tennessee, Texas, Utah and Virginia. It is expected that this list will grow quickly.

[4] In re Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, WT Docket No. 13-258, Second Report and Order, WT Docket No. 17-79 (rel. March 30, 2018).

[5] 42 U.S.C. §§ 4321 – 4347.

[6] 54 U.S.C. §§ 300101 – 307108.