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.
Yesterday I had the pleasure of speaking at LSI’s Deployment of Wireless Facilities Conference, held in Atlanta, Georgia.
I spoke on the FCC’s implementation of Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 (commonly but inaccurately called the “Spectrum Act,” a term that never appeared in the the MDTRJCA). However, this post is not about my lecture, during which I raised some interesting questions for carriers and tower companies to ponder under the general heading of ‘be careful what you wish for.’
After I spoke, the next panel included the Honorable Don Parsons of the Georgia House of Representatives (R – Marietta, District 44). Rep. Parsons was responsible for introducing and pushing Georgia House Bill 176, which he called The Broadband Infrastructure Leads to Development Act, or the BILD Act for short.
The BILD Act is Georgia’s version of a Super 6409(a) bill, containing the following introduction:
To amend Title 36 of the Official Code of Georgia Annotated, relating to local government, so as to change certain provisions applicable to counties and municipal corporations related to advanced broadband collocation; to provide for a short title; to provide for definitions; to make changes related to streamlined processing; to standardize certain procedures related to 4
new wireless facilities; to place limitations on the time allowed for the review of new wireless facilities; to limit fees charged for review of wireless facilities; to provide for related matters; to repeal conflicting laws; and for other purposes.
One of the final provisions of the BILD Act contained this nugget:
36-66B-7. 170. A local governing authority shall not . . . [c]harge an applicant a zoning, permitting, or other fee for review or inspection of a collocation or modification in excess of $500.00. . .
I don’t know about your local government, but I don’t know of any local government that can properly accept, review, report, and decide a collocation application for the maximum fee of $500.00, including all inspection fees.
Essentially, Rep. Parson’s BILD Act shifted the cost of collocation applications and construction safety inspections to local governments, save for the first $500.00. This means that instead of multi-billion dollar corporations and their shareholders bearing the cost of their for-profit cell site applications and safety inspections, Rep. Parson has shifted the bulk of that burden onto the backs of Georgia taxpayers. That’s just peachy if you’re a wireless company, but not so peachy if you’re a Georgia taxpayer.
I wanted to ask Rep. Parson’s why he would give a multi-million dollar fee gift to the multi-billion dollar wireless industry at the expense of Georgia taxpayers, but time in his session ran out. Perhaps someday I’ll have the opportunity to hear Rep. Parson’s reasons to favor the wireless industry and the (real) expense of his constituents.
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.
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.
In 2012, at the behest of the wireless industry (and specifically the PCIA), Congress passed and the President signed the Middle Class Tax Relief and Job Creation Act. Buried within the hundreds of thousands of words in the Act are 149 word comprising Section 6409(a) dealing with wireless site collocations.
Here are those 149 words:
SEC. 6409. WIRELESS FACILITIES DEPLOYMENT.
(a) FACILITY MODIFICATIONS.
(1) IN GENERAL. Notwithstanding section 704 of the Telecommunications Act of 1996 (Public Law 104–104) or 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.
(3) APPLICABILITY OF ENVIRONMENTAL LAWS. Nothing in paragraph (1) shall be construed to relieve the Commission from the requirements of the National Historic Preservation Act or the National Environmental Policy Act of 1969.
As you can imagine reading the plain words of this portion of the Act, it doesn’t make a lot of sense. Most of the key terms are undefined. Terms like, “wireless tower”, “base station”, “transmission equipment”, and my personal favorite, “substantially change the physical dimensions.”
More important, this Act is Congress commanding that “a State or local government may not deny, and shall approve, any eligible facilities request…” Lawyers know that these types of words implicate the Tenth Amendment to the Constitution, and are designed and intended to “blur the lines of political accountability” by isolating those who intend the result (here, Congress) from those who have to produce the result (the State and local governments commanded with carrying out the law). For more on the unconstitutionally of Section 6409(a), see John Pestle’s expansive review linked via his blog.
Notwithstanding the constitutional issues of the law, until struck by a court, state and local governments are bound to follow it. After the law became effective, those state and local governments started amending their local laws and ordinances to create the gap-filling definitions necessary to make rational sense of the law.
It turns out that those state and local governments had their own ideas how to fill in the missing definitions in a way that made sense in the local setting. The wireless industry was not amused.
As the expert agency for telecommunications, in January 2013 the FCC’s wireless bureau stepped in offering a non-binding guidance on what it thought Section 6409(a) meant and how it should be made operational in practice. The state and local governments were not amused.
In September, 2013 the FCC released a Notice of Proposed Rulemaking (“NPRM”) to pave the path to formal rules that would have to be followed by states and local governments.
Today the FCC Commissioners adopted rules flowing out of the NPRM process to explain what Congress intended through 47 U.S.C. § 1455(a), and what it really means. Congressional intent is an interesting subject all by itself because in connection with Section 6409(a), Congress was mute. There were no speeches or floor debates during the adoption phase, and the only record comment came after the law was adopted. That one comment actually misstated the law that was adopted. Oh well.
As of the initial posting of this blog item, the Report and Order are not yet out. I’ll post the R&O when it’s available.
Here is the audio of the item. The running time is 27 minutes, 23 seconds.
As you’ve likely seen in the general media, MARRIOTT INTERNATIONAL, INC. and MARRIOTT HOTEL SERVICES, INC. (jointly, “Marriott”) and the FCC have entered into a Consent Decree in connection with Marriott’s intentionally blocking of Wi-Fi access points brought in to the conference center portion of the Gaylord Opryland Hotel and Convention Center in Nashville, Tennessee (a property operated by Marriott). The Consent Decree provides that Marriott will pay a fortitude of $600,000 for violating 47 U.S.C. § 333.
47 U.S.C. § 333, the law violated by Marriott, says in its entirety, “No person shall willfully or maliciously interfere with or cause interference to any radio communications of any station licensed or authorized by or under this chapter or operated by the United States Government. ”
It turns out that Marriott used its own sophisticated Wi-Fi network to detect and disable what the Commission called “rogue” portable Wi-Fi access points that use the cellular network for Internet connectivity. If you own a “Mi-Fi” type device like that shown here, this is what Marriott electronically hunted down and disabled.
Why would Marriott want to do such a thing? Well, it turns out that Marriott charged between $250-$1,000 per access point to allow convention visitors and booth-holders to use their own device inside the convention center.
Based on the detailed description and terms provided by the FCC, it appears that Marriott used something like (if not specifically) a Cisco system and software to detect and disable the so-called rogues. Cisco’s Prime Infrastructure, used to manage a Cisco Unified Network Solution, does exactly what the FCC described.
According to Cisco in its ““,
When the Cisco Unified Wireless Network Solution is monitored using Prime Infrastructure, Prime Infrastructure generates the flags as rogue access point traps and displays the known rogue access points by MAC address. The operator can then display a map showing the location of the access points closest to each rogue access point. The next step is to mark them as Known or Acknowledged rogue access points (no further action), Alert rogue access points (watch for and notify when active), or contained rogue access points (have between one and four access points discourage rogue access point clients by sending the clients deauthenticate and disassociate messages whenever they associate with the rogue access point).
(Page 3-67, Emphasis added)
Basically, if the controlled wireless network detects a “rogue” access point (say, a Mi-Fi not paying a Troll-Toll) operating within the physical confines of the larger Wi-Fi network, then the Wi-Fi controller can intentionally disrupt the Mi-Fi’s operation by sending the clients trying to connect to the Mi-Fi deauthenticate and disassociate messages whenever those devices try to associate with the Mi-Fi.
Now that the FCC has dinged Marriott to the tune of $600,000, will the Commission turn its attention to firms that manufacture the software and equipment allowing people and entities like Marriott to violate Section 333 of the Communications Act?
To read the FCC’s full Order and Consent Decree CLICK HERE. If the PDF does not save or open up in your browser, right click to do a save as to your computer.
(Updated 5:29 p.m. PDT to include the prepared remarks of the Chairman.)
FCC Chairman Tom Wheeler presented the keynote speech on October 1, 2014 at the National Association of Telecommunications Officers and Advisors (NATOA.ORG) Annual Conference in St. Paul, Minnesota.
The running time of the lecture is just under 30 minutes, and this is a . . . → Read More: FCC Chair Tom Wheeler’s Keynote At NATOA National
After a few years (and no doubt millions of dollars in legal fees), TriStar and American Tower have agreed to an out of court settlement.
As you’ll recall from my original post on this lawsuit back on February 19, 2012 TriStar sued American Tower claiming
Count 1: Violation of the Lanham Act, 15 . . . → Read More: TriStar v. American Tower (It’s Over)
Does a denial of a cell site permit need to be made in a writing that is separate from the rest of administrative record? That’s the more important question answered by the 8th Circuit Court of appeals in NE Colorado Cellular, Inc., v. City of North Platte, Nebraska. Case No. 13-3190 (Filed August 22, . . . → Read More: 8th Circuit: In Writing Does not Mean In Separate Writing
The U.S. Court of Appeals for the Ninth Circuit has issued (and set for publication) what will inevitably become a heavily cited decision about wireless siting. This case is the logical next step in the line of MetroPCS v. San Francisco and T-Mobile v. Anacortes, albeit not as the wireless industry would have it.
From . . . → Read More: Powerful Decision in American Tower v. San Diego
Ken Schmidt (l) with Jonathan Kramer
I had the pleasure of having lunch today with Ken Schmidt, President of Steel in the Air. Although we have talked many times over the years, this is the first time we have met in the flesh.
Ken is exceptionally knowledgeable in the same areas where I and . . . → Read More: Ken Schmidt – Steel in the Air