local government revenues in a broadband world: rights-of-way compensation

Telecommunications Law


Update: Compensation for Use of

Public Property

IMLA Mid-Year Seminar

Omni Shoreham Hotel, Washington, D.C., April 15, 2013

PRESENTED BY

Joseph Van Eaton Partner


Section 253 Litigation • 47 U.S.C. §253(a) Preempts state, local laws that prohibit or

have effect of prohibiting the ability of any entity to provide telecommunications services, with exceptions: 47 U.S.C. §253(c) safe harbor “to manage the public rights-

of-way or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory basis…”

• Appeal of Bretton Woods Tel. Co., 164 N.H. 379 (N.H. 2012) – treats exceptions to 253(a) as “affirmative defenses.”


Section 253 Litigation

• N.Y. State Thruway Auth. v. Level 3 Communs., Inc., 2012 U.S. Dist. LEXIS 45051 (N.D.N.Y Mar. 30, 2012) (granting/denying NYSTA Motion for Sum. Jud. In part) NYSTA is a state entity that falls within the ambit of Section 253. Telecom Act does not preempt nonregulatory decisions of a local

government entity “acting in proprietary capacity…” But whether action is "proprietary" depends inter alia on whether

action reflects “entity's own interest” in its efficient procurement of needed goods and services; and whether scope of the challenged action “defeats an inference that its primary goal was to encourage a general policy…”

Fact that challenged action is embodied in contract does not insulate it from Section 253 challenge; contractual estoppel not available.


Section 253 Litigation

• Qwest v. City of Portland, No. 1212 16632 (Cir. Ct. Or. Summary judgment pending) Key question: how does Section 601(c) of

Telecommunications Act relate to Section 253? (case involves challenge to utilities license fee which City contends should be treated as a tax under Section 601(c)).

601(c) provides: “nothing in this Act or the amendments made by this Act shall be construed to modify, impair, or supersede…any State or local law pertaining to taxation…”

See also Time Warner Telecom of Or., LLC v. City of Portland, 452 F. Supp. 2d 1084 (D. Or. 2006)


Section 6409 (47 U.S.C. § 1455) Litigation

• N.Y. SMSA Ltd. P’ship v. Town of Hempstead, 2013 U.S. Dist. LEXIS 37833, 18-19 (E.D.N.Y. Mar. 19, 2013): Company allowed to amend complaint to add count under § 6409 which

provides that "a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.” 47 U.S.C. § 1455(a)(1).

Claim: Town may not treat collocation and upgrades… in the same manner as it does new towers. Town cannot impose exorbitant fees, lengthy application processes, and public hearings on these changes…“any Ordinance that requires the full panoply of fees and procedures for collocation and upgrades or modifications is now expressly preempted…”


FCC Notice of Inquiry

• Acceleration of Broadband Deployment: Expanding the Reach and Reducing the Cost of Broadband Deployment by Improving Policies Regarding Public Rights of Way and Wireless Facilities,” Docket 11-59.

• Examines whether FCC may set prices for use of public property, and whether government pricing and wireless siting practices are delaying broadband.

• Notice is still pending. Basic question: does FCC have authority to define what is a “reasonable” price for use of public property.

• Supreme Court decision in Arlington v. FCC may affect agency authority to adopt rules.


…More FCC Actions May Be on Horizon

• 47 U.S.C. §1455(a) – Modification of Towers/Base Stations “a State or local government may not deny, and shall approve, any

eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.

“eligible facilities request” means any request for modification “of an existing wireless tower or base station” involving collocation of new transmission equipment; removal of transmission equipment; or replacement of transmission equipment.

• FCC given authority to implement by 47 U.S.C. §1403

• Sometime referred to as Sec. 6409.

• Rulemakings ARE planned.


Other Issues for Local Gov’t • Are there claims against telecom providers in RR easements on public

property? Preseault v. City of Burlington, 412 F.3d 96 (2d Cir. Vt. 2005).

• Do current limitations under some state laws on authority to charge for use of RoW (see CA for an example) reach broadband networks? What happens when PSTN is abandoned?

• Can cable operators be required to enter into franchises/pay franchise fees for provision of telecommunications services/Internet services? Compare Time Warner Telecom of Or., LLC v. City of Portland 452 F. Supp. 2d 1107, (D. Or. 2006); Comcast Cable of Plano, Inc. v. City of Plano, 315 S.W.3d 673 (Tex. App. Dallas 2010). Possible lesson: Title VI (Cable Act) authority cannot be used as

leverage.

• Impact of Marketplace Fairness Act of 2013.


FCC Guidance (Jan 2013)

• Guidance Issued by FCC’s Wireless Bureau. Defines “substantially change” through criteria developed in

a different context (historic preservation). • For example, no “substantial change” if an addition extends a facility

less than 20 feet in any direction.

Offers broad definition of “base station” that could make statute apply to many facilities, including utility poles.

Does not discuss safety issues, proprietary property (light poles) or “non-zoning” rules that may affect placement.


Historic Site – Now Historic 50’-high silos with approved attachment of six panel antennas painted to match exterior surface to minimize visual

impact. Located at Dufief Mill Road and MD Route 28 (Darnestown Road) in Montgomery County, Maryland.

Photos by: Robert P. Hunnicutt, Columbia Telecommunications Corporation


Historic Site – Post Guidance? Illustration showing potential impact of co-location of an additional approximately 20’-high pole mounted antenna array.



Stealth Site – Now

100’ monopole disguised as a flagpole constructed to conceal six panel antennas within its exterior. Located on Brightseat Road alongside I-95 in Prince George’s County, Maryland.



Stealth Site – Post Guidance?

Illustration shows the potential impact of an approximately 20’- high extension to support a co-location of antennas in a typical triangular platform array (partially shown at top of frame) and smaller co-location in a flush-mount attachment configuration atop the existing monopole.



Rooftop Stealth Site – Now Two-story office building located on Layhill Road at Bonifant Road in Montgomery County with antennas from three carriers permitted by Special Exception and either concealed within the faux screening atop the penthouse on the roof, or painted to match the exterior of the screening or brick walls.



Rooftop Stealth Site – Post Guidance? Illustration of a tower-like structure constructed to support co-location antennas approximately 20’ above existing antennas.



Brickyard Rd. DAS Site – Neighborhood



Brickyard Rd. DAS Site – Now Pole to support DAS antennas (68’ high) now at Brickyard Road in Montgomery County (part of a multi-node installation that extends down Brickyard Road)



Brickyard Rd. DAS Site – Post Guidance? Illustration of an extension to existing utility pole with additional structural bracing and guy wires to support the extension, which rises approximately 20’ above existing DAS antennas. Blocks at bottom reflect related typical pole-mounted equipment cabinets.



FCC Guidance (Jan 2013) • Non-binding but will be used by industry to say this is

what you shall approve.

• Serious constitutional questions regarding statutory provision (can feds compel states and local gov’t to approve?).

• Serious questions as to whether FCC “guidance” is consistent with statute.

• …Industry now seeking relief at state level, and will continue to seek FCC relief through rules


Translation: • Significant federal actions likely soon.

• No later than June expect a rulemaking to codify existing rules –industry may seek add’l restrictions.

• Expect action to “implement” Section 1455 (guidance becomes binding rules?).

• Expect action to address DAS installation.

• Expect specific communities will be targeted as problems justifying restrictions on local authority.


How To Protect Your Community

• Review and update ordinances in light of Section 1455 (and other federal and state laws).

• Create coalitions to educate the FCC and Congress now, and to address rulemakings.

FCC actions are likely to be more reasonable if efforts educate staff and Commissioners.

FCC actions will be more measured if localities participate in any rulemaking (example: Docket 11-59).

• Do the same at the state level

Telecommunications Law 23

QUESTIONS?

Joseph Van Eaton

Best Best & Krieger LLP

2000 Pennsylvania Avenue

Suite 4300

Washington, D.C. 20006

202-370-5306

[email protected]

mailto:[email protected]

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