FCC Shot Clock Archives » Dr. Jonathan L. Kramer on Wireless Siting & Law

New FCC Wireless Rules Appear in Federal Register

Posted on January 8, 2015January 8, 2015 by Dr. Jonathan L. Kramer

As expected, the new FCC rules for wireless siting appeared in today’s Federal Register. I have attached them here as a PDF.

2014-28897

According to the Federal Register, not all of the rules may become effective on the dates published in the notice. Some of the rules are still pending Office of Management and Budget approval.

Tripp May, my partner is in the process of updating our ‘Clients and Friends Memo’ on the new rules. If you are a Client or government attorney and would like a complimentary copy of our memo, please email Tripp or give him a call on 310-405-7340.

Jonathan

Kramer on the New FCC 6409(a) Rules: City of Calabasas Video

Posted on November 19, 2014November 19, 2014 by Dr. Jonathan L. Kramer

Last night I presented at the City of Calabasas, California’s Communications and Technology Commission on the new FCC rules implementing Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012. I also talked about a bunch of other stuff the FCC added in to the mix. If you’re in to such things you may find the video (below) of my presentation and the Q&A that followed to be useful, or at least entertaining. Maybe even both.

To better understand some elements in my lecture, please understand that it followed immediately after planning item where Verizon Wireless came to the City to permit-in-arrears a site they modified without first securing City permits. This was the sixth time they had modified their cell sites in the City without benefit of first securing City permits.

Thanks to the City of Calabasas for putting the video up on their YOUTUBE channel.

My discussion is based on my own opinions and does not reflect the position of any government, but it might.

First Thoughts on Today’s FCC 6409(a) Report and Order

Posted on October 17, 2014 by Dr. Jonathan L. Kramer

Today, October 17, 2014, the Federal Communications Commission (“Commission”) voted to adopt new federal rules that significantly undermine local police powers to regulate wireless infrastructure. The rules will become effective 90 days after the Commission publishes the Report and Order (“Order”) in the Federal Register.

Although as of this writing the Commission has not yet released its Order to the pubic, each Commissioner previewed portions of the Order in their comments before the vote.

State and local governments can expect new special exceptions and exclusions from environmental and historic preservation reviews for DAS and small cells, even when the project involves a diesel generator or hydrogen fuel cells.

Section 6409(a)

Perhaps the most dramatic changes will deal with Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 (“Section 6409(a)” which is codified at 47 U.S.C. § 1455(a)) and the Commission’s time limits on local wireless site application reviews (colloquially known as the “Shot Clock”) for projects that qualify for treatment under Section 6409(a).

Section 6409(a) mandates that State and local governments “may not deny, and shall approve” an “eligible facilities request” so long as that eligible facilities request does not “substantially change the physical dimensions of the existing wireless tower or base station.” The Commissioners explained that the Order would define ambiguous statutory terms, impose a 60-day deadline for State and local governments to act on a collocation application, and inflict a “deemed granted” remedy for failures to act before the deadline.

Commissioner Ajit Pai emphasized that, under the rules adopted today, an applicant can begin construction on day 61 after the State or local government fails to act on day 60. Whether this preempts building permit requirements is unclear, and could lead to serious public safety hazards from tower/facility construction like the ones that caused the 2007 Malibu Canyon fire.

One big question the Order will answer is how the Commission defined a “substantial change in the physical dimensions of a wireless tower or base station.” This issue is crucial because Section 6409(a)—and the truncated time for review under a deemed-granted threat—applies only when the applicant submits a request to collocate or modify a site that does not result in a substantial change. None of the Commissioners offered specifics, but the Commission hinted that it leaned towards a one-size-fits-all approach.

The FCC Shot Clock

The Commission also indicated that the Order will revise its Shot Clock rules. Prior to today’s Order, local governments had to review and grant or deny applications for new sites within 150 days or 90 days for collocations. Now, for at least collocations, the Shot Clock is reduced to 60 days. The Order will likely extend the Shot Clock to DAS and small cells.

The Commissioner’s hinted that the Order would preempt or sharply local moratoria.

One potential bright spot came from Commissioner Pai, who suggested that the “deemed granted” remedy imposed under Section 6409(a) does not extend to Shot Clock violations for new sites or eligible facilities requests that cause a substantial change. However, Commissioner Pai hopes the Commission will revisit that issue within 18 to 24 months.

So What Now?

In the near-term, the administrative process at the Commission is not yet finished. Municipalities and other interested parties can file a “Petition to Reconsider,” which asks for specific changes to a published order. Petitions must be received within 30 days after the Commission publishes a public notice of the Order (expected in the Federal Register). Such petitions do not necessarily stop the rules from becoming effective or during the time the Commission considers the petition.

Court Challenges to the Order

It seems very likely that the Order will be challenged in federal court. State and local governments will likely argue that the Constitution and settled case law prohibit the federal government from enacting a statute that forces State and local governments to administer a federal program. Lawyers will likely argue that Section 6409(a) unconstitutionally forces municipalities to administer a federal wireless infrastructure deployment program because it requires them to process applications under federal standards within a federal timeline or face federal penalties. Further, Section 6409(a), now presumably exacerbated by the rules in the Order, isolate the federal government from the political accountability of the law and rules, shifting that accountability to the states and local governments that have no option but to administer the program. Any such challenge might not occur for many months, and the machinery of the judicial system turns slowly.

New Local Wireless Ordinances

In the meantime, the wireless industry seems intent on rewriting local ordinances, too. For example, Commissioner Mignon Clyburn commended CTIA and PCIA (lobbyists for the wireless industry) for their offer to teach local governments “best practices” and to provide “model ordinances and applications” for streamlined application reviews. If this sounds like the fox guarding the hen house, it is. Local governments should look to advocates unaligned with the industry to be regulated for help rewriting their local laws and ordinances to comply with the Order.

Blame the Local Governments?

Commissioner Michael O’Rielly said that the new rules will streamline wireless deployment because “the gig is up” for recalcitrant municipalities. Unfortunately for all involved, one more likely result is that wireless ordinances and review processes will become more detailed, more rigorous, and more contentious. More to the point, however, is that the public will likely be far from happy with Congress Members who have passed a law that makes their local community officials mere functionaries forced to carry out this federal government program at the expense of local community aesthetics and interests.

We will offer commentary on the specifics in the Order once the Commission makes the Order available to the public.

Telecom Law Firm, P.C.

Which Way L.A. Explores Cell Tower Siting Issues

Posted on October 29, 2013 by Dr. Jonathan L. Kramer

Warren Olney, host of Which Way L.A. on KCRW (NPR in Southern California) devoted a segment of today’s program to wireless tower siting.

Titled, “The No Longer Hidden Cost of Wireless Technology” Warren focus on the looming debate about more cell sites closer to their customers.

Richard Stein, a Los Angeles resident with an existing AT&T wireless site on a utility pole in front of his home was interviewed about AT&T’s plans to quadruple the size of the antennas, and to place a controlled environment vault (“CEV”) in the right-of-way near the pole.

AT&T declined to be interviewed for the show regarding its cell site in front of Mr. Stein’s home.

Warren spoke with me about technology and legal issues related to wireless siting, and also about the pending FCC Notice of Proposed Rulemaking that could reshape the entire landscape regarding cell siting regulations in the U.S. We also covered Section 6409(a).

Robert Jystad, the incoming president of the California Wireless Association spoke on why carriers need to bring their services closer to homes and end-users. He gave the facts and figures about the wireless society. He also alluded to, but did not outright say that Mr. Stein’s opposition to AT&T’s plan was for a reason other than aesthetics, which Mr. Stein rejected. As a side note, you might be surprised to learn that I was the one that recommended to the show’s producer, Evan George that Mr. Jystad be interviewed for the segment. It seemed important to make sure an industry voice had the opportunity to weigh in to the discussion.

The 16 minute segment is now on line. You may listen to the audio segment via the show page: http://www.kcrw.com/news/programs/ww/ww131029the_no_longer_hidden

This was a fun experience, and one that I hope will not be my last.

Recommended.

Jonathan

U.S. Supreme Court Upholds FCC Shot Clock

Posted on May 20, 2013 by Dr. Jonathan L. Kramer

Just released this morning is the U.S. Supreme Court decision that, on a 6-3 vote, upholds the FCC Shot Clock.

The decision is linked below.

“SCALIA, J., delivered the opinion of the Court, in which THOMAS, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. BREYER, J., filed an opinion concurring in part and concurring in the judgment. ROBERTS, C. J., filed a dissenting opinion, in which KENNEDY and ALITO, JJ., joined.”

Many will offer their view of the decision, which is essentially a reaffirmation of the Chevron Deference rule. For now, I’ll leave it to you, the readers, to reach your own conclusions.

What we know, now, is that the FCC Shot Clock is here to stay.

What we expect now is that the FCC will move to a rulemaking or declaratory ruling regarding Section 6409(a) [47 U.S.C 1455(a)]

Jonathan

Assembly Bill 162 in a Cocoon for 2013. Now what?

Posted on April 27, 2013 by Dr. Jonathan L. Kramer

AB 162 will try to re-emerge in January 2014. Let's take the time now to educate our electeds. — AB 162 will try to re-emerge in January 2014. Let’s take the time now to continue to educate our electeds.

Now that Assembly Bill 162 has been removed from California’s legislative agenda for 2013, it’s vital that we remember that the Bill is not dead; it is merely awaiting a rebirth in some form in 2014.

Because of the reality of re-emergence, we need to continue to educate Assembly Member Holden and his staff about the inherent unintended consequences of this seemingly simple, yet highly technical legislation.

Coupled with education, we must work with elected officials in the Assembly and Senate to show them that there is no significant special problem for AB 162 to try and fix.

Finally, we need to continue monitoring what happens at the federal level with Section 6409(a). That legislation, which has serious constitutional deficiencies, will be vicariously defended by the wireless industry. We also need to track that happens with the pending U.S. Supreme Court decision regarding the FCC’s Shot Clock in the Arlington case.

Thanks are due to hundreds of constituents, local governments, and staffers who all came together to work with Mr. Holden to explain why AB 162 as proposed and then amended is not in the best interests of the people of California.

We also owe genuine thanks to Mr. Holden for hearing those many voices and pulling back his Bill…for now…rather than forcing a slug-out in Sacramento.

It’s true…bad facts do make bad law.

Jonathan

Assembly Bill 162 Pulled – Will Not Come Back Until At Least 2014

Posted on April 26, 2013 by Dr. Jonathan L. Kramer

Hot news just in: AB 162 has been pulled from this year’s legislative calender.

This means that the Bill will not come up for consideration until at least next January.

Many people; many local associations; and many local governments have been instrumental in achieving this result, and they all deserve thanks.

This, however, is not a time to gloat; this is a time to educate the elected who were not aware of what was happening, and to continue to educate the elected who were in the loop about the important issues, both policy and technical, which surround this discussion.

Education is vital because AB 162 is not dead; merely pushed to next year’s legislative calendar. Our goal should be to work to showing the various parties why this Bill should be withdrawn from any future consideration.

Thanks to all who helped get out the word…don’t give up now…there’s still the Bill out there.

Jonathan

Urgent: California 6409(a)/Shot Clock Law Floated in Sacramento

Posted on March 22, 2013March 28, 2013 by Dr. Jonathan L. Kramer

California Assembly Bill 162

[Updated March 28, 2013]
[Updated March 24, 2013]
[Updated March 23, 2013]
[Original March 22, 2013]

[Update/Heads-Up: I’ve received a copy of Assembly Member Holden’s Fact Sheet on AB 162, which has been christened the “Broadband Expansion Act.” I’ve rechristened it the “Wireless Industry Gift and Public Exclusion Act of 2013.” In the next day or two I’ll be posting the Fact Sheet, and my point-by-point analysis, rebuttal and corrections to the Fact Sheet.]

The wireless industry has quietly dropped an awful bill, Assembly Bill 162, into the hopper in Sacramento to impose severe new rules requiring mandatory and lightning fast wireless collocation approvals by California local governments.

Assembly Bill 162 is a combination Super Section 6409(a) coupled with a Super Shot Clock. To add icing to the wireless industry’s cake, the bill would effectively eliminate any consideration of whether the applicant has a significant gap in its service, and would define its key terms so broadly as to make nearly every component part of a wireless tower or site (including components not now considered to be either).

Well, really, there’s nothing super about this bill if you’re either a concerned citizen or a local government.

Assembly Bill 162, sponsored by Assembly Whip Chris Holden D-41, started as a housing bill in January. It was gutted yesterday, on March 21, to become an 8-figure gift to the entire wireless industry.

In its now-morphed form, Assembly Bill 162 would add Section 65964.5 to the Government Code to do the following:

1. Parrot the opening of Sec. 6409(a) of the Middle Class Tax Relief Act of 2012 by saying,

(a) Notwithstanding any other law, and pursuant to Section 6409 of the federal Middle Class Tax Relief and Job Creation Act of 2012 (47 U.S.C. Sec. 1455), a local government shall approve and may not deny any eligible facilities request for a modification of an existing wireless telecommunications facility that does not substantially change the physical dimensions of the wireless telecommunications facility.

2. Then the next section would make the failure of a Local Government to act on such a request within 45 days result in the project being deemed approved.

(b)The failure to act on an eligible facilities request within 45 days of receipt of a request shall be deemed an approval of the request. The 45 days shall be tolled if the request is determined to be incomplete. If the request is determined to be incomplete, the local government shall comply with subdivision (c) of Section 65943 of the Government Code.

Section (b) would effectively eliminate any possibility of public hearings in advance of mandatory approvals. The 45 day shot clock would cut in half the time determined by the FCC to be adequate to process collocations. The effective result would be that wireless collocation projects would take priority over virtually every other project considered by a local government.

Section 65943(c) of the Government Code provides for a formal appeal process for projects deemed incomplete by a local government. Since this is already state law, it seems redundant here.

3. Forget about coverage gap proof for collocations. Subsection (c) of Assembly Bill 162 would kill that:

(c) A local government shall not require proof of gap in coverage as part of the approval of an eligible facilities request.

4. Next, the proposed legislation goes on to define key terms:

(d) For purposes of this section, the following definitions shall apply:

(1) “Eligible facilities request” or “request” means any request for modification of an existing wireless telecommunications facility that involves any of the following:

(A) Collocation of upgraded transmission equipment.

(B) Removal of transmission equipment.

(C) Replacement of transmission equipment.

(2) “Substantially change” means any of the following:

(A) The mounting of the proposed antenna on the wireless telecommunications facility would increase the existing height of the wireless telecommunications facility by more than 10 percent, or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed 20 feet, whichever is greater, except that the mounting of the proposed antenna may exceed the size limits set forth in this subparagraph if necessary to avoid interference with existing antennas.

(B) The mounting of the proposed antenna would involve the installation of more than the standard number of new equipment cabinets for the technology involved, not to exceed four equipment cabinets, or more than one additional equipment shelter.

(C) The mounting of the proposed antenna would involve adding an appurtenance to the body of the wireless telecommunications facility that would protrude from the edge of the wireless telecommunications facility more than 20 feet, or more than the width of the wireless telecommunications facility at the level of the appurtenance, whichever is greater, except that the mounting of the proposed antenna may exceed the size limits set forth in this subparagraph if necessary to shelter the antenna from inclement weather or to connect the antenna to the wireless telecommunications facility via cable.

(D) The mounting of the proposed antenna would involve excavation outside the current wireless telecommunications facility site, defined as the current boundaries of the leased or owned property surrounding the wireless telecommunications facility and any access or utility easements currently related to the site.

(3) “Wireless telecommunications facility” means equipment and network components, including towers, utility poles, transmitters, base stations, and emergency power systems that are integral to providing wireless telecommunications services.

The definitions in Assembly Bill 162 are so broad as to encompass nearly every portion of a wireless system, including DAS networks. Moreover, the definitions are in conflict with the plain words of the proposed statue as to what constitutes a substantial change in the physical dimensions of the wireless telecommunications facility.

The definitions (and in part the lack of definitions) would also open the door to the conversion of fully camouflaged sites to morph into ugly monopoles or visible sites. Moreover, the definitions would allow for the mandatory installation of any type of emergency power system (including diesel powered generators and hydrogen fuel cells) at any cell site.

Assembly Bill 162 is one of the worst bills that would essentially kill public input into wireless siting process for collocations in California. It would speed up the process to the point where the public would be denied any effective opportunity to have any meaningful review, much less input, on proposed wireless collocations (which seem to be the bulk of wireless projects in California now).

The sponsor of Assembly Bill 162 is one of the most powerful members of the Assembly, and the owner of CHMB Consulting Firm (a real estate consulting firm in Pasadena). No doubt Mr. Holden’s goal is to promote the rapid deployment of more wireless service in California, but Assembly Bill 162 in its current form is anti-constituent and anti-government. As it is now set out, the Bill amounts to a massive gift to the wireless industry at the expense of the public and local governments.

Members of the public will need to directly communicate with Assembly Member Holden about Assembly Bill 162, as well as their own local governments and elected representatives, if there is to be any chance to maintain meaningful community and local government involvement in wireless tower collocation siting matters in this state.

To read the original housing bill, now struck, with the replacement wireless industry gift language, click to open the PDF: AB 162 Assembly Bill – AMENDED

Here is a link to the current version of Assembly Bill 162 making its way through the California Legislature: http://www.leginfo.ca.gov/cgi-bin/postquery?bill_number=ab_162&sess=CUR&house=B&author=holden

To express your views about Assembly Bill 162 directly to Assembly Member Holden, you can use his web site’s comment form: https://lcmspubcontact.lc.ca.gov/PublicLCMS/ContactPopup.php?district=AD41

Check back here often to find out what’s happening with Assembly Bill 162. Share this post with your friends and your local elected officials (who I hope are also your friends).

Thanks to J.D. for his help making this post even better!

Must Cities Administratively Approve 6409(a) Projects? Nope.

Posted on March 5, 2013March 5, 2013 by Dr. Jonathan L. Kramer

I recently received a phone call from a very senior government rep of a very large wireless carrier. The carrier’s rep called to share his displeasure that the city I frequently work with would not administratively grant approval of what he determined to be subject to Section 6409(a) of the Middle Class Tax Relief Act as modification project of an existing cell site.

Here are the general facts:

When the Planning Commission approved the initial cell site project, it explicitly placed a condition on the project that required the applicant to come back to the P.C. for any site modifications;
The carrier accepted the condition;
Now the carrier wants to modify the site to change out the antennas (and presumably a bit more) to support 4G services;
The carrier does not want to back to the Planning Commission since that would require public notice and a hearing;
The city has no administrative approval process to allow staff to override a Planning Commission condition on an approved project; and
As of this writing, the carrier’s rep has not yet submitted his project modification application to the city.

The government planner for the city involved told the carrier’s rep that he would have to submit his request following the usual application process, and that the project could be scheduled quickly for Planning Commission review. The carrier’s rep told the planner that the cty is obligated to process 6409(a) projects administratively and to then grant approval without a hearing. The carrier’s rep threatened to sue the city if the project was not administratively approved. He made the same assertion and threat to me when we talked.

I told the carrier’s rep that nowhere in 6409(a) did Congress define an administrative process–much less any specific process–that a local jurisdiction must follow when considering (1) whether a project is subject to the benefits of 6409(a) treatment, and (2) if the project is subject to 6409(a) treatment whether the project must be approved administratively. He disagreed, saying that its employer’s problem if the city has no administrative process to follow, and that 6409(a) requires it.

What I told the carrier’s rep is that where no administrative procedure exists to override a Planning Commission condition on an approved project, the condition (to bring back any site modifications to the Planning Commission) has to be followed even if the outcome may be predetermined by 6409(a). Remember, whether a project is subject to 6409(a) is a factual determination that must be made by the local government, rather than by the carrier. Given that the FCC’s guidance of last month is not binding on cities or even the Commission, and that guidance requires you ignore the plain words in the statute to follow the Commission’s recommendations, it’s obvious that facts have to be determined, and that those facts count.

The bottom line is that there is no federal requirement under 6409(a) that any particular process be used when considering a project that may be subject to 6409(a).

Where there such a requirement in the text of 6409(a), it would simply bolster the already interesting commandeering arguments being made by local government counsel who assert that 6409(a) is unconstitutional.

Time will tell.

PS: Don’t forget that the FCC shot clock still applies to 6409(a) projects, just like it does to non-6409(a) projects.

FCC Offers “Guidance” on Sec. 6409(a)

Posted on January 26, 2013January 26, 2013 by Dr. Jonathan L. Kramer

Yesterday, January 25th, the FCC released a public notice titled, “WIRELESS TELECOMMUNICATIONS BUREAU OFFERS GUIDANCE ON INTERPRETATION OF SECTION 6409(a) OF THE MIDDLE CLASS TAX RELIEF AND JOB CREATION ACT OF 2012” (DA 12-2047).

As an aside, I note that the Commission did not consult with its own Intergovernmental Advisory Committee, much less advise them of the release of this Guidance in advance.

The Commission crafted its Section 6409(a) Guidance to provide the public its own view of how state and local governments should interpret the following self-created questions:

What does it mean to “substantially change the physical dimensions” of a tower or base station?
What is a “wireless tower or base station”?
May a state or local government require an application for an action covered under Section 6409(a)?
Is there a time limit within which an application must be approved?

I’ll let you read the Guidance for yourself (see link below) to learn the Commission’s thoughts in response to its four questions. I’m not going to get into my specific thoughts about the Guidance other than to say that it is flawed and overreaching in most areas covered. The only bright light is that the Commission did recognize that carriers are not exempt or excused from following the state or local government application process for collocations covered by Section 6409(a).

Importantly, however, there is about a 103% certainty that wireless carrier representatives will show up to local governments toting a copy of the Guidance misrepresenting it as the way that 6409(a) must be read and understood by those governments. That will be factually incorrect, but its tough for planners at “the counter” to critically evaluate a document bearing the FCC seal. That critical evaluation and the inevitable challenges to the Guidance will be a job for attorneys and stakeholder organizations like NATOA.

At the end, the Commission’s Guidance is advisory only. Given the fundamental omissions and differences in Section 6409(a) (some of which are acknowledged by the Commission), Section 6409(a) remains a moving target, as does compliance with that moving target.

Click here to read the FCC’s Guidance on 6409(a)