Tag Archives: ab57

The best way for cities to prepare for 5G is to get 4G right

by Steve Blum • , , , ,

Burlingame poles

There are differences between 4G and 5G facilities, but not necessarily meaningful ones from a policy perspective. For most people, the two will look the same, except the 5G facility might be smaller and is likelier to look more integrated, without so many obvious components and visible wires, although there will be no shortage of exceptions. Mostly it’s because 5G technology is newer and they’ve had more time to work on it. In theory (there aren’t a lot of actual small 5G installations to go by yet) 5G facilities should be smaller than 4G, and easier to integrate into a street light or utility pole. But that might not be obvious. As a general rule, a 5G facility should fit within whatever specs a city has set for 4G facilities.

One difference that might matter is cities will start seeing permit applications for locations where 4G wouldn’t have been installed. That’s because 5G facilities are designed to be deployed more densely, and in many cases physically closer to customers.

Another difference is that cities will get a lot more permit requests for 5G installations, once work actually begins, also because they’re installing more per square mile. There have already been cases where a carrier submitted dozens of applications at once. That’s something that planning and/or public works staff have to think about – there are shot clocks with deemed approved teeth established by the California legislature – 90 days for new equipment on existing sites and 150 days for new sites.

So far, the mobile companies, carriers and infrastructure companies, haven’t gone to war over that, but it’s only a matter of time before they do.

A third issue will be fiber. For the most part, 5G cell sites need to be connected directly to fiber cables, and that means trenching and adding wires to utility poles, which also means more permit applications. It’s not a question of something particularly new, it’s going to be a problem of sheer numbers.

That’s assuming that carriers want to build out to a community at all. The relationship between low community income levels and lack of telecommunications service and infrastructure is well established. A 5G permit onslaught might be a problem, but it’s a bigger problem for a community if it doesn’t come at all.

FCC preemption of local streetlight pole ownership upheld by federal appeals court

by Steve Blum • , , , ,

La small cell

The Federal Communications Commission can preempt local ownership of streetlight poles and other municipal property planted in the public right of way, according to a ruling on Wednesday by a three judge panel of the federal appeals court based in San Francisco. They mostly upheld three decisions made by the FCC in 2018, including one that effectively gave wireless companies freedom to mount equipment on streetlight poles at will, and only reimburse cities or other public agency pole owners for costs incurred. In other words, cities can’t charge rent for the use of property they own in public right of ways they manage, if a wireless company wants to use it.

The opinion isn’t all bad news for local governments, though.

What cities can do is maintain a measure of control over aesthetic standards. The judges said the FCC went too far when it said that aesthetic requirements for wireless facilities can’t be any more “burdensome” than those imposed on other types of pole attachments. In other words, if an electric company can openly mount transformers on poles, then wireless equipment can be equally ugly. Federal law “expressly permits some difference in the treatment of different providers, so long as the treatment is reasonable”, the opinion says.

The judges also trimmed back the FCC’s directive that aesthetic standards be “objective and published in advance”. Advance publication is still required – aesthetic rules can’t be made up on the fly – but some level of aesthetic subjectivity is still allowed. The “objective” requirement is not “adequately defined” or explained, according to the opinion.

Local agencies can set fees that recover the actual cost to of issuing permits and maintaining streetlight poles. The litigation usefully forced the FCC to back down from its industry-centric rhetoric and clarify that the $270 per pole per year fee and $500 maximum permit fee it specified in its decision is a floor, not a ceiling. If actual costs are higher, fees can be higher.

Judges were split on basing fees on actual costs. The majority upheld the restriction, but in a limited dissent judge Daniel Bress said the FCC “has not adequately explained how all above-cost fees amount to an ‘effective prohibition’ on telecommunications or wireless service”.

The judges bought the FCC’s argument that if an agency that controls a public right of way installs a pole or other facilities, then it becomes part of the right of way and isn’t proprietary property. At least when telecommunications companies are involved. Again, the FCC admitted its directive had limits: its ownership preemption only applies if the pole owner also manages the right of way.

The other two 2018 FCC decisions – “one touch make ready” rules and a ban on construction moratoria – were completely upheld, but with important clarifications that trim back wide ranging claims made by telecoms companies. For example, a local or state agency can reasonably manage its right of way, including prohibiting excavation work because of seasonal weather conditions, such as freeze/thaw cycles.

Republican FCC commissioners wasted no time in claiming victory. The judges’ opinion isn’t necessarily the last word. Further appeals are possible.

Links to petitions, court documents and background material are here.

My clients are mostly California cities, including some that are directly involved in this case. I’m not a disinterested commentator. Take it for what it’s worth.

FCC limits on cell site expansion permits challenged by California cities

by Steve Blum • , , , ,

West sac cell site

California cities are pushing back against the tighter limits on wireless infrastructure permit reviews that the Federal Communications Commission approved in a party line vote earlier this month. Three cities in Los Angeles County – Glendora, Rancho Palos Verde and Torrance – and the California and Oregon leagues of cities filed a challenge to the FCC’s ruling with the San Francisco-based ninth circuit federal appeals court.

The FCC ruling said cities, or other local agencies, can’t delay starting a 60-day federal shot clock and can’t add aesthetic requirements when granting permit for expansions or other additions to cell sites and towers, or other wireless facilities, so long as the changes are within certain limits. In other words, when the work falls under what are usually called the “6409” rules, after the section federal law involved. The FCC said that the 60-day shot clock begins as soon as a wireless company takes the first step in a permit process, whether or not they’ve filed a formal application. If the shot clock expires, the permit is “deemed granted”.

The cities and associations filing the petition for review argued, as might be expected, that the FCC exceeded its authority…

The Commission’s new rules and significant changes to its existing rules unlawfully preempt local and state government authority promulgated without response to the arguments advanced by Petitioners in the record…

Petitioners seek review of the Ruling on the grounds that the Ruling is arbitrary, capricious, and an abuse of discretion.

The cities’ filed on Monday. I haven’t seen any other appeals from any other parts of the U.S. Assuming that’s the case, it’ll be handled by the ninth circuit, which is also considering a similar, but much larger, challenge to the FCC’s 2018 preemption of local ownership of city street light poles.

That case was heard in February, by three ninth circuit judges. There’s no particular timeline for a decision, but they’ve been working on it long enough that it could come at any time. Expect a similar journey of a couple of years for this latest appeal.

Tight limits on local review of cell site expansions just got tighter, as FCC widens preemptions

by Steve Blum • , , , ,

Marina cell sites 625

On a party line vote last week – republicans yes, democrats no – the Federal Communications Commission further preempted local government control over wireless facilities such as cell sites and towers. The ruling tightens enforcement of a 60-day shot clock for local permit approval of what it reckons to be minor modifications to a site. If time expires, the permit is "deemed granted. It also bans additional aesthetic requirements and widens a loophole that allows wireless companies to escape existing ones.

The first draft of the new rules was published last month, and despite a flood of objections from local governments, nothing much changed. The final version tweaks the definition of the trigger that starts the 60-day shot clock. It begins running when two things happen:

  1. An applicant “takes the first procedural step that the local jurisdiction requires”, which could be a meeting with staff to discuss the project, although the FCC considers the step taken when the company makes “a written request to schedule the meeting”. The same applies to things like community meetings or planning reviews – the 60 days starts ticking down as soon as the request for such is made.
  2. “The applicant submits written documentation showing that a proposed modification is an eligible facilities request” – in other words, is a minor collocation of transmission equipment on an existing structure, as defined by congress and the FCC. The local agency doesn’t have to buy off on the claim or consider the documentation complete. The company just has to file its arguments.

A tight limit on concealment requirements also got some minor editing, although it didn’t satisfy objections raised by local governments or commissioner Geoffrey Starks, a democrat. New concealment or stealthing measures can’t be imposed, and existing requirements can only be enforced if there is “express evidence in the record to demonstrate that a locality considered in its approval that a stealth design for a telecommunications facility would look like something else, such as a pine tree, flag pole, or chimney”. The new rules are not workable, Starks said in his dissent

In many cases, local governments approved sites years ago, well before passage of the Spectrum Act. Particularly for smaller cities, it’s unlikely that their decisions explain the intent behind a particular requirement affecting a site’s appearance. Yet today’s Declaratory Ruling states that, unless the regulator can provide express evidence in the record demonstrating that a requirement was intended to disguise the nature of the equipment as something other than a wireless facility, the local government must give streamlined treatment to any changes. Moreover, for changes in appearance that don’t disguise the nature of the equipment but merely make it harder to notice, the Declaratory Ruling establishes a standard that effectively preempts any requirement that the applicant claims it cannot reasonably meet…

Doing this via a Declaratory Ruling will place an undue burden on local governments that are unfamiliar with the Commission. A clerk in a small city may not realize that a proposed site modification will require her to review not only the Code of Federal Regulations but the language of this decision and our 2014 order.

The FCC’s decision also begins the next phase of its campaign to end local discretion over cell sites and other wireless facilities. It’s considering allowing companies to expand the boundaries of “an existing facility…up to 30 feet in any direction”, under the same shall approve within 60 days rule. It’s asking for public comments, but not offering much time – 20 days after the notice is published in the federal register, with reply comments due 30 days after that.

Declaratory Ruling and Notice of Proposed Rulemaking, Implementation of State and Local Governments’ Obligation to Approve Certain Wireless Facility Modification Requests, 9 June 2020

FCC draft ruling takes away more local control over wireless sites

by Steve Blum • , , , ,

Salinas windmill cell site

Pre-application requirements for some wireless facilities permits would be effectively banned by a draft ruling posted yesterday by the Federal Communications Commission. It would also expand limits on some antenna sizes and scale back concealment measures that some cities use to maintain aesthetic standards.

The draft declaratory ruling and notice of proposed rulemaking applies to some situations when mobile carriers and other wireless companies seek permission to add equipment to existing towers and the surrounding area. It’s sometimes referred to as the “6409” rule, after the section of federal law that it’s based on. I won’t try to explain it here. The flowchart below illustrates the complexity of federal and state restrictions on wireless permit processing. The box circled in blue is the particular FCC regulation involved. Click to get my white paper that tries to sort it all out.

In that set of circumstances, local governments have 60 days to approve a permit application or it’s “deemed granted”. Denying the permit application is not allowed. The FCC set those parameters in 2014 during the Obama administration, and since then wireless companies and local governments have been arguing about things like precise definitions of “separation from the nearest existing antenna” and what it takes to “defeat” concealment requirements. The FCC’s draft ruling addresses those issues, too.

When that 60-day shot clock begins is particularly contentious. For example, some cities require companies to consult with staff or neighborhood groups before permit applications can be filed. Others might require multiple permits from different city departments. Cities often take the position that the shot clock doesn’t begin until those preliminary steps are done and an actual (and complete) application is submitted.

Not so, says the FCC’s draft ruling: “an applicant has effectively submitted a request for approval that triggers the running of the shot clock when…the applicant takes the first procedural step that the local jurisdiction requires as part of its applicable regulatory review process” and documents that the facilities it proposes to install meet the 6409 rule’s criteria.

In other words, there’s no such thing as a pre-application period. Once a wireless company takes any required step, time starts running. And there’s only one shot clock per city. Once it’s triggered, every permit has to be approved in 60 days.

The FCC is scheduled to vote on the draft at its next meeting on 9 June 2020. There’s a window of opportunity to submit comments, but substantive changes are unlikely – although democrat and republican commissioners might quibble about details, there’s a long and strong history of bipartisan support for wireless permit streamlining at the FCC.

FCC’s $270 pole rental limit for wireless attachments might be “arbitrary and capricious”, appellate judge says

by Steve Blum • , , , ,

Los angeles streetlight cell 1 23oct2019

Federal appeals court judges hearing the challenge brought by local governments to the Federal Communications Commission’s 2018 preemption of ownership and control of street lights tried to get an FCC lawyer to explain how the commission settled on $270 as the allowable annual pole rental limit. The attorney, Scott Noveck, couldn’t oblige judges Jay Bybee and Mary Schroeder…

Bybee: I’d still like you to get to how you get to the $270.

Novek: So your honor, what I believe happened is that the commission took a look at various state small cell bills…

Bybee: It’s interesting, counsel, that you just characterised it as ‘you believe’. Because there isn’t anything in the record that tells us what the commission did, other than look at bills that were pending in a number of states, mostly in the heartland, not on the coast.

Novek: I want to try to answer that, but I just want to say to preface that, that this is just a safe harbor. And this order would have been perfectly reasonable even without any safe harbor at all.

Schroeder: When you say safe harbor, what do you mean? Do you mean that if it’s below that there’s no problem with it?

Novek: So, what I think what the commission was doing here was recognising that there exists a certain level of fees below which the fees are so likely to pass muster, they’re so likely to be within what the actual costs are, that it wouldn’t make sense to be expending resources on litigating those…But nothing at all precludes localities from charging higher fees where their costs are higher.

Bybee: Does the commission have an obligation to explain why it chose $270 as opposed to, let’s say, $250 or $300?

Novek: Well, I do think that at that point you’re in the area of paradigmatic line drawing, where agencies, I think, are at their greatest deference.

Bybee: They could have chosen $200 or $400 – that’s significant, isn’t it?

Novek: Your honor, I don’t think that this was, um, something that we were able to calculate with mathematical precision…

Bybee: You can calculate it with mathematical approximation. I don’t even see the approximation.

Novek: So, what the commission did here…

Bybee: The numbers that are in the bills that the commission relied on…are in the range of about $100. So the $270 appears – I mean, it may be generous for the cities, and maybe it was out of an abundance of caution. I’m just trying to figure out whether they just drew a number out of a hat, which might make it arbitrary and capricious.

The $270 figure originally came from lobbyists for mobile carriers, such as AT&T, Verizon, T-Mobile and Sprint. In 2017, they convinced California lawmakers – whom they and their colleagues influence with millions of dollars in payments – to enact a similar limit, which was vetoed by governor Jerry Brown.

The challenge to the FCC’s 2018 preemption is now in the hands of the three judges from the federal ninth appellate circuit, who heard the case last week in Pasadena. Their decision is likely to come sometime in the next three to six months.

Links to petitions, court documents and background material are here.

FCC’s rural 5G justification for urban wireless preemption is comfort to AT&T but not to Fresno, appeals court told

by Steve Blum • , , , ,

Ninth circuit oral argument pole preemption 10feb2020

Federal appellate judges drilled down into arguments made by local governments and the Federal Communications Commission on Monday, as they considered a challenge to the FCC’s 2018 decision to cap rental rates for locally owned street light poles and other assets in the public right of way, and effectively give mobile carriers unfettered use of public property.

One justification for this preemption of local property ownership was that if big cities with big potential for subscriber revenue charge high fees, then carriers like AT&T and Verizon won’t have money left over to spend in less profitable small cities and rural communities. That prompted a question from judge Jay Bybee about whose rights and whose benefits are being protected…

So the FCC’s theory is that the reason we’re not going to allow costs above a certain level – anything above costs – is prohibited and preempted is because, the theory is, that the carriers could then take that money and invest in rural areas, other cities and so forth.

So if the City of Los Angeles agrees to $400 – the city says it’s $400, it’s our cost – and the carriers all agree, because they’re very anxious to get into Los Angeles immediately, and the City of Fresno comes and says ‘we don’t think it’s above $300’, does the City of Fresno have the right to bring an action, because these carriers are being slow to develop 5G in Fresno?

Joseph Van Eaton, with the Best, Best and Krieger law firm, which represents many cities in California and elsewhere, replied…

No, in fact that’s one of the flaws, the basic flaw in this whole cross subsidy argument, because that’s what this really is, that carriers will take money saved in Los Angeles and invest it in an area that’s not now profitable.

There’s no economic theory that supports that idea. The whole universal service fund is based on the idea that a rational investor will make money where they can make money and then they don’t take good money and pour it into an area where it’s not profitable out of the goodness of their hearts. That’s why we actually have evidence where Lincoln, Nebraska dropped the fee to $95 and said ‘all you have to do is build out these less profitable areas’ and they got no takers.

There’s no evidence that cross subsidy actually results in the impacts, effects the FCC has, and certainly the FCC doesn’t require it, and it doesn’t give anyone any enforceable right to say ’if you’re saving money in LA, you gotta come to our community".

All three judges asked questions of both the FCC and local government challengers during the hearing in Pasadena. Conventional wisdom is that questions asked aren’t a good guide to what judges are thinking – they might be sceptical, or they might be floating conclusions that they’re leaning towards. We’ll have to wait for them to issue their ruling, which is probably three to six months away.

Links to petitions, court documents and background material are here.

FCC tells appeals court if electric or cable companies can install “larger, uglier, blighted” equipment on poles, then wireless carriers can too

by Steve Blum • , , , ,

Small cell olympic blvd 22oct2019

The Federal Communications Commission defended its 2018 preemption of local property ownership and permitting authority in front of a panel of three federal appeals court judges in Pasadena yesterday. Its lawyers faced some pointed questions from the judges.

FCC attorney Scott Noveck tried to dance around the reality of the FCC’s preemption order and claim that it really wasn’t doing much at all, particularly in regards to limits on the aesthetic requirements that cities can impose on wireless facilities. Judge Daniel Bress didn’t seem convinced…

Bress: The other side has raised this point, that when you just compare the standards – the one in the small cell order as compared to the one in the statute – there’s some possible misalignment, right, where it says no more burdensome, which would suggest parity, whereas the statute suggests actually there’s some amount of discrimination that would be allowed?"

Noveck: I think the order suggests parity among similarly situated infrastructure, which I think brings those into alignment.

Bress: What does that mean?

Noveck: Well, so for instance, the problem we have here sometimes, you have times when you have, say, cable equipment or electrical equipment, and what the record shows is that in many localities they were imposing very burdensome requirements on wireless equipment that might be smaller and less, um, more unobtrusive than similar equipment you might see on a utility pole or on a pole that was being used to provide cable service, was being used to provide electrical service but, for whatever reasons, localities were subjecting the wireless carriers to far more onerous requirements. So the non-discrimination principle here is just saying that if you are claiming that small cells need to meet some burdensome aesthetic requirements, but you’re allowing other utilities to put larger, uglier, blighted infrastructure on the same poles, it’s hard to think that this is a legitimate aesthetic requirement you’re imposing.

Noveck was trying to create a false equivalence between electrical equipment, such as transformers, that are installed on utility poles, which are often placed as far out of view as practicable, and wireless equipment placed on street light poles which, by their very nature, are placed where everyone can see them. Bress didn’t seem convinced, but that’s not necessarily his thinking – appeals court judges are notoriously (and properly) hard to read. All we can do now is wait for a ruling. There’s no particular timeline for that, but three to six months is typical.

Links to petitions, court documents and background material are here.

Game on today, as cities take on FCC in court over pole ownership preemption

by Steve Blum • , , , ,

Downtown salinas

Local ownership of street light poles and other facilities planted in the public right of way is at stake, as lawyers for dozens of cities and counties and the Federal Communications Commission square off in a Pasadena court room later this morning.

A panel of three federal appellate court judges will hear arguments about why, or why not, the FCC has the authority to tell local agencies how much they can charge mobile carriers to attach equipment to their poles, and to largely replace negotiated rental contracts with simple, non-discretionary permits. Other issues, such as access to utility poles (which fall under different laws and regulations) and road maintenance policies that prohibit digging when the danger of freeze/thaw damage is greatest, will also be taken up.

In 2018, the FCC capped the rental rate that cities can charge wireless companies for pole attachments at $270 per year. That’s in contrast to negotiated market rate deals that often top $1,000 per year and sometimes go much higher.

If they prevail, the FCC’s republican majority is ready to double down on preemptions of state and local authority over right of way management and permits for wireless facilities. At the CES show in Las Vegas last month, republican commissioner Michael O’Rielly was defiant. He said local control is “problematic” and the FCC’s response “does come with the P-word…it requires preemption. And that is something the commission is going to have to continue to do”.

Another federal appeals court, based in Washington, D.C., might have made O’Rielly’s dream less likely. In a decision that otherwise upheld the FCC’s repeal of network neutrality rules, the judges ruled that the commission overstepped its authority when it tried to preempt any and all regulation of broadband service by states. If the FCC wants to big foot state governments, it has to wait until there’s an actual regulation to preempt, and then come up with a specific basis for doing it.

February oral arguments set for appeal of FCC pole ownership preemption

by Steve Blum • , , , ,

Los angeles streetlight cell 1 23oct2019

We might know by next summer if local governments will be able to lease public property, such as street lights, at fair market rates to private wireless companies, or whether those rates will be capped at $270 per pole per year.

The challenge by cities and counties to the Federal Communications Commission’s preemption of local ownership of public assets in the public right of way, and control of the public right of way itself, will be heard in Pasadena in February. The San Francisco-based ninth circuit court of appeals scheduled oral arguments for 10 February 2020. The judge-shopping appeals filed by mobile carriers will be heard at the same time.

It should be possible to watch the arguments live via the ninth circuit’s website or watch a recording later.

There’s no particular deadline for a decision by the ninth circuit, but three to six months would be a reasonable guess. So maybe in the May to August time frame?

The ninth circuit is allowing a total of eighty minutes for arguments. Cities and counties will get 20 minutes to make their case. Often, allocated time is eaten up by questions from the judges. The FCC will have 20 minutes to defend its ruling, then mobile carriers get their turn and the FCC has another 20 minutes to respond.

One question that won’t be answered until shortly before the hearing is who is hearing it? The ninth circuit will choose a panel of three appellate judges, which might include some on temporary duty, to listen to arguments and decide the case among themselves. Usually, that ends up being the final decision, although appeals the losing side can ask that it be reviewed by all the judges assigned to the ninth circuit, and/or appeal to the federal supreme court. But historically, fewer than 1% of the ninth circuit’s rulings are taken up by the supreme court.