Basic Communications Law Primer for Elected Officials

1. Special Districts
League of Oregon Cities
Bend, Oregon
PRESENTED BY
Joseph Van Eaton
Partner
A Basic Communications Law
Primer for Elected Officials
©2015 Best Best & Krieger LLP

2. Special Districts
Key Points
• Federal communications laws, combined with
changes in technology, increasingly affect:
 Local authority to control the size and placement of
wireless facilities.
 Local authority to obtain fair compensation for use of
valuable public property (the rights of way), and other
key revenue streams.
 The availability of adequate communications services
to every member of your community, and the
adequacy of public safety networks.
 Local ability to incentivize deployment of broadband
facilities, and to deploy municipal networks.

3. Special Districts
That Translates To…
• A need to review and revise local ordinances (such as zoning
codes) to protect local interests.
• A need to participate in federal proceedings and make local
interests known to elected officials through a long-term
strategy that:
 explains why local interests should be protected (it is just about
money?);
 explains why protecting and enhancing local authority could
advance national interests in broadband deployments;
 challenges inappropriate intrusions on local authority
legislatively and through the courts.
• Devoting the effort and resources required to take
advantage of existing rights, and to develop policy goals that
reflect the new communications environment.

4. Special Districts
A Short Bit of History…
• Communications law was divided into “silos” – different
rules applied to different types of communication:
 Television/radio services (licensed and subject to public
interest obligations such as “Fairness Doctrine);
 Common carrier, or telecommunications services like
telephony (user controlled all content; carrier simply
carried) – important rights granted to providers in return
for duties to provide universal service via the public
switched telephone network;
 Information services (services ancillary to telecom services,
or services that involved computer storage and forwarding
(virtually unregulated); and
 Cable television services.

5. Special Districts
A Short Bit of History…
• Significant spectrum was devoted to local pub.
safety and educational uses.
• Technology is making the “silos” obsolete:
 Video now delivered over many platforms;
 Operators are seeking relief from all common
carrier obligations, and to abandon the public
switched telephone network (PSTN).
• There is a strong national push for deployment
of broadband facilities where rights/obligations
of providers are unclear.

6. Special Districts
Local Authority To Control the Size and
Placement of Wireless Facilities
6

7. Special Districts 7
Major Federal Provisions
• 47 U.S.C. § 332(c)(7) (Preservation of Local Zoning Authority).
• 47 U.S.C. § 1455 (Section 6409) (Collocation/Modification of Existing
Facilities).
• Section 332(c)(7) applies to “personal wireless service (PWS) facilities,”
which includes commercial mobile services, unlicensed wireless services,
and common carrier wireless exchange access services.
• Generally preserves local zoning authority, but imposes five limitations:
 Shall not “unreasonably discriminate” among providers of functionally
equivalent services (332(c)(7)(B)(i)(I));
 Prohibit or effectively prohibit provision of PWS (332(c)(7)(B)(i)(II))
 Locality must act on request within “reasonable period of time”;
7

8. Special Districts 8
Section 332(c)(7) (cont’d)
 Decision to deny must be “in writing” and supported by “substantial
evidence”; and
 No regulation of RF – except may require applicant to satisfy FCC rules
• Limitations do not apply to proprietary property.
• Supreme Court has recently ruled on meaning of “in writing” requirement:
Denial and substantial evidence need not be in same document, but must
be essentially contemporaneous. See, T-MOBILE SOUTH, LLC v. CITY OF
ROSWELL __U.S.__, 135 S.Ct. 808 (2015).
http://www.supremecourt.gov/opinions/14pdf/13-975_8n6a.pdf
8

9. Special Districts
Section 6409(a) (47 U.S.C. §1455)
(a) Facility modifications.
(1) In general. Notwithstanding… any other provision of law, 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.
(2) Eligible facilities request. For purposes of this subsection, the
term “eligible facilities request” means any request for
modification of an existing wireless tower or base station that
involves—
(A) collocation of new transmission equipment;
(B) removal of transmission equipment; or
(C) replacement of transmission equipment.
9

10. Special Districts
FCC Report and Order
• 155 Page Report and
Order:
 Adopted October 17, 2014;
Published in Fed. Register on
January 8, 2015;
 Appeal Underway –
Argument Scheduled in 4th
Cir. for October 28;
 Now fully effective
10

11. Special Districts
FCC Rules 47 CFR § 1.40001 – Definitions
1. Substantial Change
 Towers other than Right of Way (ROW) towers,
modification:
• Increases height by more than 10% or 20 feet whichever is
greater; or
• Appurtenance added protrudes from body of structure more
than 20 feet or width of tower at pt. of attachment.
 All other support structures, modification:
• Increases height by 10 feet or 10%, whichever is greater;
• Appurtenance added protrudes more than 6 feet.
 Height measured from facility as it exists as of date of
passage of Act (2012).
11

12. Special Districts
FCC Rules 47 CFR § 1.40001 – Definitions
(cont’d)
1. Substantial Change For towers and base
stations in ROW:
• New equipment cabinets if there are none, or involves
placement of cabinets 10% greater in height or overall
volume than other cabinets associated with structure.
 All other eligible support structures:
• Installation of more than four equipment cabinets.
 It entails any excavation or deployment outside of
site.
 It would defeat “concealment elements” of the
“eligible support structure.”
12

13. Special Districts
1. Substantial Change (cont’d)
 It does not comply with conditions associated with
siting approval…but limitation does not apply to
any modification that is non-compliant only in a
manner that would not exceed thresholds
identified in (i)-(iv).
2. Tower: structure built for sole or primary
purpose of supporting FCC licensed or
authorized antennas and associated
facilities.
FCC Rules 47 CFR § 1.40001 – Definitions
(cont’d)
13

14. Special Districts
3. Base Station
 Equipment associated with wireless comm. service
 Antennas, coax, backup power supplies
 “any structure other than a tower” that at time of
application was supporting or housing the above
(walls, rooftops are support structures).
4. Existing: A constructed tower or base station
that has been “reviewed and approved under
the applicable zoning or siting process or under
another State or local” process, except towers
not in a zoned area when built, but lawfully
constructed (non-conforming uses?).
FCC Rules 47 CFR § 1.40001 – Definitions
(cont’d)
14

15. Special Districts
5. Eligible Support Structure is any Tower or Base
Station.
Key Notes:
• Does not preempt generally applicable safety and
health codes.
• Does not apply to proprietary property of
community.
• Reaches all wireless facilities – including Wi-Fi
deployments.
• Reaches Distributed Antenna Systems (DAS) &
Small Cells.
FCC Rules 47 CFR § 1.40001 – Definitions
(cont’d)
15

16. Special Districts
Application Review
• General rule: “may not deny and shall approve” any
eligible facilities request that does not substantially
change physical dimensions.
• Can require “documentation reasonably related” to
determining whether request meets requirements of
section.
• Sixty days to approve UNLESS locality determines facility
is not covered.
• Time frame tolled by agreement; or if notice provided
of incompleteness (30/10) with detailed citation to
requirements.
• Failure to Act = application deemed granted.
• Deemed grant becomes effective after applicant
notifies community that time has passed.
16

17. Special Districts
What Happens After Deemed Grant
• Once community is notified of deemed grant,
it has 30 days to file an appeal in a court of
competent jurisdiction.
• Locality can bring appeal: “when it believes the
underlying application did not meet the
criteria in Section 6409(a) for mandatory
approval, would not comply with applicable
building codes or other non-discretionary
structural and safety codes, or for other
reasons is not appropriately “deemed granted.”
17

18. Special Districts
Sec. 332(c)(7) & 6409 Together
An application that is NOT eligible under Section
6409 may still be subject to consideration under
Section 332(c)(7).
18

19. Special Districts
Do’s
• Examine whether your laws and forms are
consistent with new order (Hint: Probably not).
 Clarify in your ordinance/government practice
manual that DAS/small cell applications are entitled
to Shot Clock.
• Consider enactment of an ordinance that
prefers government property for cell locations.
19

20. Special Districts
Do’s
• Proprietary
 Ensure everyone in your organization understands
that this order does not grant right of free
collocations on government property.
 Ensure that you don’t grant that right in your leases
/licenses by requiring approval in writing of
municipality/Special District.
 Ensure that industry does not use new rules as an
excuse to install generators or switch out equipment
at your sites.
• New Site
150 Days
• Collocation
90 Days
• 6409 Collocations
60 Days
• Incompleteness for
6409 (a) & 332(c)(7)
30 Days
20

21. Special Districts
Changes to Your Applications/Process
• More stealth?
• Require applicant provide documentation that is
“reasonably related to determining whether the eligible
facilities request meets the requirements of Section
6409(a).”
 Meets size change – including cumulative limit.
 Meets any stealth obligations.
 Meets any building code/safety/non-discretionary
structural code.
 Complies with any condition of approval of
construction or modification imposed on the
applicable wireless tower or base station.
21

22. Special Districts
Don'ts
• Impose a moratorium –
 Commission is specific that moratoria will not toll
6409(a) or 332(c)(7) applications.
• Approve without understanding how a facility
may expand – the smallest facility may grow an
additional 10 feet up and 6 feet out.
• Demand documentation for the business need
for the proposed modification or require a
business case for expansion.
22

23. Special Districts
Qs re: wireless
 Do you have processes in place that allow you to meet
federal deadlines :
 Do you have standards in place that allow you to
impose protective conditions?
 Do you have forms and questions in place so you can
get information you need.
 Should you re-examine policies for collocation? For
use of public property?
 Are you ensuring franchising authority is exercised?
 Don’t think of this as a one-off process (Non-
discrimination)

24. Special Districts
Example of Risks to Local
Revenues/Public Interest Obligations

25. Special Districts
Background on franchising
• Cities have broad franchising authority in Oregon
reaching entities that wish to place facilities in RoW
 Most notable – cable, where there is also a very detailed
federal law that addresses local franchising authority.
 Allows 5% franchise fee on revenues derived from
operation of cable system to provide cable service
 Allows PEG channels
 Allows PEG support
 Allows I-Nets
 Cable customer service standards
 But what does all that mean when technology is changing?

26. Special Districts
Background on franchising
• Move to IP
• Installation of wireless facilities in home and in
street
• Addition of streaming services
• Reduction in subscribership via traditional cable
model?
• Comcast/Eugene litigation [when you issue a cable
franchise, does it allow installation of all sort of
other facilities and services without add’l fees?]
• Creates a risk – but also an opportunity.

27. Special Districts
Example of Risks to Local
Revenues/Public Interest Obligations
• FCC Proceeding: Promoting Innovation and
Competition in the Provision of Multichannel
Video Programming Distribution Services,
Docket No. MB 14-261.
• https://www.fcc.gov/document/commission-
adopts-mvpd-definition-nprm

28. Special Districts
Overview
• Main issue: What is a multi-channel video service
provider? Does it include entities that sell video
programming services via the Internet (over the
top) like Aereo?
• Classification could allow Internet video providers
to obtain access to programming now denied
them.
• But proceedings could also affect local authority
to obtain compensation for delivery of video
services via traditional cable systems, or to take
advantage of new technologies to “stream” public,
educational and government programming.

29. Special Districts
What Is OTT?
• FCC definition in rulemaking: “linear video
services that travel over the public Internet
and that cable operators do not treat as
managed video services on any cable system.”
• Linear = scheduled and virtually simultaneous
with transmission - not like (traditional) NetFlix
or iTunes.

30. Special Districts
Is OTT provided by a Hulu subject to
cable franchise fees?
• Traditional federally authorized franchise fees
reach “Cable Operators”: entities that own or
control cable systems; a fee can be collected
on revenues derived by an operator from the
operation of the cable system to provide cable
services.

31. Special Districts
What about Cable Operator provided
OTT?
• “Video programming services that a cable
operator may offer over the Internet should not
be regulated as cable services.”
• “If a cable operator delivers video programming
service over the Internet, rather than as a
managed video service over its own facilities, we
tentatively conclude… this entity would be… a
non-cable MVPD under our proposed Linear
Programming Interpretation with respect to its
OTT service.”

32. Special Districts
Why We Care
 If not “cable service,” then no franchise fees or
PEG support under Cable Act.
 If not cable service, PEG fees can’t be used to
support OTT.
 If not cable service not subject to consumer
protections.
 Most important: reduces cable service to an
increasingly niche service.
 Emphasizes the importance of pending Eugene
case in Oregon Supreme Court.

33. Special Districts
Who Filed Comments?
• This is one of a series of existential threats to
PEG.
• But limited local participation so far: leading
local commenters – Coalition (Anne Arundel
County, MD etc.); City of San Antonio, TX;
Alliance for Community Media. Others: District
of Columbia; American Community Television;
NATOA.
• Comments can still be filed “ex parte.”

34. Special Districts
Franchise Qs you should be asking
• What is our approach to franchising – at
federal, state and local levels
• How are we dealing with technology changes?
• Are we preserving rights to additional
compensation
• Are we including escape clauses that
essentially force requirements DOWN?
• How does this fit in with long-term plans for
communicating with constituency? [not a one
medium solution]

35. Special Districts
Beyond Cable: Broadband Planning
• Significant move by many communities to encourage
deployment through muni investment/attracting private
vendors/P4 process.
 Assets
 Simplify processes for entering market
 Work with public/private players
• Reliance on incumbents not particularly wise.
• But should be part of a broader plan for communications
development – as important as master plans
 How am I using communications
 How are businesses/residents using
 What are my eco development issues
 What risks do I face – as PSTN vanishes
 How do I minimize risks

36. Special Districts
Other Risks
• FCC Order recently indicated that a cable
operator may be able to claim that “in-kind”
benefits in a franchise (such as requirements
for free or discounted services) are franchise
fees, and count against the federal 5%
franchise fee limits.
• The FCC has a pending proceeding where
telecom companies argue that compensation
for use of the rights of way may be limited to
costs.

37. Special Districts
Other Risks
• The Internet Tax Freedom Act (ITFA), enacted in 1998
and extended five times will sunset on October 1, 2015.
The House passed H.R. 235, the Permanent Internet Tax
Freedom Act (PITFA), and goes to the Senate for
consideration. The Marketplace Fairness Act. (S. 698;
H.R.2775), provides state and local government with the
authority to impose local sales tax on remote sales.
• Scope of ITFA at issue in Eugene case.
• ACTION NEEDED - Communities should communicate to
their congressional delegation their opposition to H.R.
235 and their support for the Marketplace Fairness Act.
(S. 698; H.R.2775).

38. Special Districts
The Availability of Adequate
Communications Services
• Federal proceedings underway to permit interstate
carriers to abandon the public, switched telephone
network.
• Open issue: will it be replaced by systems that can
support advanced public safety/911 networks; or that
can support basic communications functions without
significant extra charges.
• Open issue: will there be widespread deployment of
advanced communications networks to rural areas
• All issues are subject of ongoing FCC proceedings, and
there will be new proceedings to define what should be
treated as the “lifeline” minimum communications
service available to the public.

39. Special Districts
Local ability to incent broadband
deployment, deploy muni networks
• Issues raised by FCC actions/court proceedings:
 Can localities require cable operators to deploy networks to
satisfy broadband needs (Section 621 appeal)?
 Can localities price access to right of way or other assets to
incent deployment (Section 253)?
 What ensures the public will be able to get information via
the Internet without interference from the network owner
(net neutrality)?
 Can localities make advanced facilities available to public?
• Preemption under Section 706;
• Universal service funding.
• You can advance your interest in broadband by
participating at federal level.

40. Special Districts
What You Can Do at Federal Level?
• Submit comments to FCC in key proceedings.
 http://apps.fcc.gov/ecfs/ [also where you can
READ existing comments]
• Arrange meetings with Commissioners and
staff.
• Obtain support from local members of
Congress.
• Be prepared to protect your interests if
Eugene wins – operators can be expected to
seek relief from federal agencies.

41. Special Districts
What You Can Do
• Consider adopting policies that will allow your
staff to move promptly to respond in
proceedings that affect local interests.
• Be sure your representatives/federal agencies
understand that the concerns are not just staff
concerns.
• Don’t leave the defense of your interests to a
few communities.

42. Special Districts 42
Joseph Van Eaton
Joseph.VanEaton@bbklaw.com
Best Best & Krieger
2000 Pennsylvania Avenue N.W.
Suite 5300
Washington, DC 20006
Phone: (202) 785-0600
Fax: (202) 785-1234
Cell: (202) 486-0770
Website: www.bbklaw.com
Contact Information