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11-19-2019 Small Cell TowersCorporate Overview Presentation Regulating Small Wireless Facilities in Right-of-Way W. Scott Snyder ssnyder@omwlaw.com (206) 447-7000 Small Cell - Is more than a Small Antenna Box Antenna Fiber & Coax Conduit Power Conduit New Fiber Service Radios and Fiber Termination Box in a concealed shroud Power Disconnect What Happened? Industry requests to install Small Cells – 2016 Cities preparing for Small Cell deployment FCC Issued Declaratory Rule & Third Report and Order Effective Date: January 14, 2019 Pending appeals – 9th Circuit & 10th Circuit No automatic stay – Pending request Definition of Small Wireless Facilities (l) Small wireless facilities, consistent with section 1.1312(e)(2), are facilities that meet each of the following conditions: (1) The facilities— (i) are mounted on structures 50 feet or less in height including their antennas as defined in section 1.1320(d), or (ii) are mounted on structures no more than 10 percent taller than other adjacent structures, or (iii) do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater; (2) Each antenna associated with the deployment, excluding associated antenna equipment (as defined in the definition of antenna in section 1.1320(d)), is no more than three cubic feet in volume; (3) All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume; Application to Macro Cells & Collocation Materially Inhibit Standard Not Limited to Small Cell New Definition of Collocation: pre-existing structure, does not need to have a WCF on such structure. Aesthetic Requirements Reasonable No more burdensome than those applied to other types of infrastructure deployments Objective Published in Advance VS Proprietary vs. Regulatory Section 253 does not create a proprietary exception Localities are fulfilling a regulatory function when managing the ROW – not proprietary. “We confirm that our interpretations today extend to state and local governments’ terms for access to public ROW that they own or control, including areas on, below, or above public roadways, highways, streets, sidewalks, or similar property, as well as their terms for use of or attachment to government-owned property within such ROW, such as new, existing and replacement light poles, traffic lights, utility poles, and similar property suitable for hosting Small Wireless Facilities.” DRAFT ORDINANCE Federal Way Interim Zoning Ordinance Chapter 19.256 and Franchise and Permitting Revisions Title 4 FRANCHISE – Exercise of Contracting Power Washington Courts defer to City Council or Stewards of the right-of-way BUT FCC – Tight time frame A. Consolidate review with all needed permits B. Basic contractual/franchise provisions for all ROC users LAND USE Federal shot clocks and Presumptive Safe Harbors Right-of-way use not a “Land Use Action” – Ch. 36.70C (GMA) Administrative Review of Sensitive Environments A. Undergrounded Areas B. New Poles C. Design District – Downtown Decorative Streetlight District D. SEPA, Shoreline and Critical Areas Shot Clocks What do shot clocks apply to? Any approval that a local jurisdiction or siting authority must issue under applicable law prior to deployment of facility. New Shot Clocks for SWF 60 Days to review an application to collocate on an existing structure 90 Days to review an application to locate on a new structure CONSOLIDATED APPROVAL PROCESS Other Approvals Consolidated Franchise Staff/ Administrative Review Small Wireless Permit Design Variation Concealment Review for New Poles and Design District Environmental Review 60/90 days Council consideration Approve/Deny Contingent on Franchise 60 Days – Existing Poles 90 Days – New Poles SMALL CELLS – KEY CONCEPTS Incorporate federal shot clocks and Safe Harbors. FWRC 4.24.035. Create Consolidated Review Process. Chapter 4.23 Treat small wireless in the rights-of-way like other utilities [not land use decisions – RCW 36.70B.160 and 36.70C.020(a).] Adopt Small Wireless Aesthetic Design and Concealment Standards. FWRC 19.256.050. Use Federal Standards – “Effective Prohibition” for review of deviations from the Code for all wireless facilities. FCC’s order affects primarily small cells with implications beyond small cell technology. Order will affect the proliferation of small cells and wireline technology to support the wireless technology. Expect more applications with the expectation that cities can turn around permits at faster speeds. Height definition – unclear and could lead to absurd heights. Antenna volumetric requirements are per antenna, no cap. Equipment is cumulative – includes conduit, equipment box, disconnect switch. Larger volume than WA definition but includes all of the items that were originally excluded. Need to update Macro Code (g) Collocation, consistent with section 1.1320(d) and the Nationwide Programmatic Agreement (NPA) for the Collocation of Wireless Antennas, Appendix B of this part, section I.B, means— (1) Mounting or installing an antenna facility on a pre-existing structure, and/or (2) Modifying a structure for the purpose of mounting or installing an antenna facility on that structure. Does not alter the definition of collocation for the purposes of 6409(a) approval. Applicability of materially inhibit standard Generally applicable, guidance but does not need to be specific – for example, do not need to state that it is a specific brand of paint, but can state that it must be painted to match the pole. Other general design standards may include the amount of spacing off of the pole that is acceptable to the City or requiring that for non-wooden poles that the conduit be placed internal to the pole. “Aesthetic requirements that are reasonable in that they are technically feasible and reasonably directed to avoiding or remedying the intangible public harm of unsightly or out-of-character deployments are also permissible.” The aesthetic requirements to be published in advance need not prescribe in detail every specification to be mandated for each type of structure in each individual neighborhood. Localities need only set forth the objective standards and criteria that will be applied in a principled manner at a sufficiently clear level of detail as to enable providers to design and propose their deployments in a manner that complies with those standards. The FCC does not appear to understand the imbalance created in this standard. The wireless providers refuse to adopt a uniform design standard. This makes it particularly difficult to create design standards for decorative poles and in historic districts. The problem with objective criteria rather than specifics is that the poles will likely not look uniform. Undergrounding was specifically addressed. Effective prohibition if the wireless facility cannot technically work if placed below ground. FCC suggested the BDAC model code provision as acceptable – which allows carriers to deploy small cells on existing structures in undergrounded neighborhoods or permitted to build new structures in that area. Minimum spacing requirements. FCC acknowledges that there may be some occasions where a minimum spacing requirement may be permissible in order to avoid excessive overhead clutter. However, they note that they find it “difficult to envision any circumstances in which a municipality could reasonably promulgate a new minimum spacing requirement that, in effect, prevents a provider from replacing its preexisting facilities or collocating new equipment on a structure already in use.” What is unclear about this statement is under the new definition of collocation, it is possible to interpret this guidance as swallowing the earlier acknowledgement that spacing requirements may serve a legitimate aesthetic function – because collocation now means attachment to a pre-existing pole. Also note that minimum spacing requirements may have downstream affects on the node build out, because if you require one pole to move 250 feet, it may require others to do so as well. It’s a little bit of a jigsaw puzzle. Mgmt of ROW includes any conduct that bears on access to and use of the ROW, notwithstanding any attempts to characterize such conduct as proprietary. Accusation by the FCC that cities are using their proprietary roles to effectuate a general municipal policy disfavoring wireless deployment in the ROW. FCC concludes that Congress did not intend to allow cities to rely on their ownership of poles within the ROW as a pretext to advance regulatory objectives such as aesthetic requirements or market based fees. Since municipalities are operating in a regulatory capacity – the FCC can determine what is considered fair and reasonable compensation. Existing Agreements – Questionable if the FCC Order Affects them. We note that courts have upheld the Commission’s preemption of the enforcement of provisions in private agreements that conflict with our decisions. We therefore do not exempt existing agreements (or particular provisions contained therein) from the statutory requirements that we interpret here. That said, however, this Declaratory Ruling’s effect on any particular existing agreement will depend upon all the facts and circumstances of that specific case. Without examining the particular features of an agreement, including any exchanges of value that might not be reflected by looking at fee provisions alone, we cannot state that today’s decision does or does not impact any particular agreement entered into before this decision. (para 66)