Cellphone Tower Regulation: Maximizing Revenue While ...media.straffordpub.com/products/cellphone-tower... · 5/12/2016 · 1. Tower: structure built for sole or primary purpose

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Presenting a live 90-minute webinar with interactive Q&A

Cellphone Tower Regulation: Maximizing

Revenue While Protecting Local Interests Structuring Leases, Navigating Siting Challenges,

and Complying With Supreme Court's Ruling on Notice

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

THURSDAY, MAY 12, 2016

Gerard Lederer, Partner, Best Best & Krieger, Washington, D.C.

Joseph Van Eaton, Partner, Best Best & Krieger, Washington, D.C.

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Telecommunications Law

Regulating Wireless Siting:

Maximizing Revenue

While Protecting Local Interests

Joseph Van Eaton

Gerard Lavery Lederer Best Best & Krieger LLP

Strafford Webinars - May 12, 2016

5


Part I:

Local Regulation of Wireless Facilities

Part II:

Leasing Facilities to Wireless Providers

6


Part I:

Local Regulation of Wireless

Facilities

7

Telecommunications Law 8

Why Wireless 2016 and Beyond

Presents New Local Challenges

8

Source: SNL Kagan 2015

2014:

150K towers,

300K sites

2025

200K towers

400K sites

NOT including

small cells


Why Wireless 2016 and Beyond

Presents New Local Challenges Delivering higher speed wireless data services requires “denser”

networks – more antennas

SNS Research: “significant shift in investments towards small

cells, C-RAN, DAS and carrier Wi-Fi infrastructure. By 2020,

these four submarkets, together with their fronthaul and backhaul

segments, will account for over 50% of all wireless network

infrastructure spending.”

Billions expected to be invested in infrastructure, creating $80

billion market for LTE by 2020

Public property (including RoW) a major target for deployment

9


The Legal Framework

Federal law

• Section 332(c)(7) (47 U.S.C. §332(c)(7))(applies to initial installations and

modifications of personal wireless facilities)

• Section 6409 (47 U.S.C. §1455)(applies only to insubstantial modifications

of wireless facilities)

• Possibly? Section 253(c) (47 U.S.C. §253)(prohibition of telecom services)

• FCC Regulations https://www.fcc.gov/general/tower-and-antenna-siting

State law and constitutional provisions

Local law (planning/zoning/franchising/leasing)

10


Section 332(c)(7)

• 47 U.S.C. § 332(c)(7) (Preservation of Local Zoning Authority) • 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, with 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”…(FCC Order provides for 90 days for significant collocation, 150 for new site)

11


Section 332(c)(7) (cont’d)

Generally preserves local zoning authority… Decision to deny must be “in writing” and supported

by “substantial evidence” 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).

No RF regulation; may require applicant to satisfy FCC rules

Limitations do not apply to proprietary property.

12


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.

13


FCC Rules 47 CFR § 1.40001 – Definitions

1. Tower: structure built for sole or primary purpose of supporting FCC licensed or authorized antennas and associated facilities.

2. 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. 3. 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?).

14


FCC Rules 47 CFR § 1.40001 – Definitions

4. Substantial Change Towers other than RoW towers, modification:

• Increases height by more than 10% or 20 feet whichever is greater

• 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)

15


FCC Rules 47 CFR § 1.40001 – Definitions (cont’d)

4. Substantial Change (cont;d)

For all eligible support structures:

• Installation of more than four equipment cabinets

For towers and base stations in RoW:

• New equipment cabinets if there are none, or placement

of cabinets 10% greater in height or overall volume than

other cabinets associated with structure

It entails any excavation or deployment outside of

site

16


4. Substantial Change (cont’d)

It would defeat “concealment elements” of the

“eligible support structure”

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 first five bullets (items (i)-(iv) in regs).


17


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 • Does reach Distributed Antenna Systems (DAS) &

Small Cells


18


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

19


Putting Time Frames Together…


Do’s Examine whether your laws and forms are consistent

with new order (Hint: Probably not).

Consider enactment of an ordinance that prefers

government property for cell locations.

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.

21


Don't • 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 an

insubstantial modification (Different rules apply for

initial installation or substantial).

22


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

23


Consider an Acknowledgement Ordinance

• “Community is aware of new 6409 (a) standard as established by

Federal Communications Commission in Acceleration of

Broadband Deployment by Improving Wireless Facilities Siting

Policies, 80 Fed. Reg. 1238 (Jan. 8, 2015) (amending C.F.R. Part

1 and 17). (“Report & Order”).”

• Staff is directed to act in compliance with the timeframes and

limitations outlined in the Report and Order. Might empower 1 person to review; nothing requires process to be ministerial

or nondiscretionary;

Might allow staff to require applicants to comply with extensive notice

requirements and/or other procedural hurdles

• Should any part of the Order be struck down by a court of

competent jurisdiction, staff are directed to amend community

practices accordingly.

24


What You Need To Consider

• Federal law give you greatest authority to

control design and deployment where:

Government proprietary property is used (open

question: is right of way proprietary property?)

On initial installations

Facility is subject to concealment requirements

• You may have different avenues for controlling

placement/design of wireless.

25


What You Need To Consider

• Avenues:

Franchising authority (where you have it – depends

on state law, and on local authority to issue

franchises)

Leasing authority (for light poles and other

facilities you own and control)

Zoning authority (common question: does it apply

to RoW, or utility facilities?)

Other police power authority (t, p, m control of

utility placements)

26


FCC Rules Create Practical

Problems • Densification can encourage third party lessors

to file permits to “lock up” key real estate.

• Densification may require installation of

structures where all other utilities are

underground; 332(c)(7) plus 6409 create issues

if any facilities are allowed aboveground.

• How do you deal with competing but

inconsistent stealth proposals?

27


Examples: • Localities receiving requests for placement of

120-foot tower in “verge” between sidewalk and

RoW

http://www.bbknowledge.com/telecommunication

s/cell-siting-dilemmas/

• How do you deal with multiple requests for same

areas: first come first served? Bids?

• How do you protect ongoing local interests in,

e.g.: energy-saving lighting/solar/ADA/WiFi?

28


Examples:

29


Part II:

Leasing Facilities to Wireless

Providers

30


Control the Drafting Process

• Try to avoid using anyone else’s standard form

• WHY?

Wireless carriers’ standard forms are one-sided.

Substantial legal fees in editing.

• Wireless carriers can, will and maybe should

take advantage naïve property owners.

• Developing and using a standard form saves

time and helps avoid overlooking issues

31


Premises & Grant of Authority

• Include an exhibit with legal descriptions,

drawings and/or photos.

• The more detail you have, the easier it is to

police the agreement, especially regarding

unauthorized collocations and subleases.

• Address Use of common areas and access

points.

• Control signage, conduct and look.

32


License/Lease Not Easement

• Granting an easement may be granting others

access to same property.

• License is all the legal authority a wireless

carrier needs.

• Lease structure is also an acceptable alternative

(but grants exclusive use, not shared use).

33


Term

• For general leases, define term and renewal

options.

• For wireless sites, typically series of 5 year

terms – 20 to 30 years total.

• Strategic decision re auto renewals or

affirmative notice required.

If notice is required, keep a database of renewal

dates.

34


Term (cont’d)

• Beware of “options to lease” or long “Due

Diligence” periods tying up sites with no

guarantee of rent.

• Avoid long delivery or construction periods for

permitting with no rent – begin term

immediately and add construction period to

overall term.

• 30-60 days or commencement of construction,

whichever comes first.

35


Due Diligence Period

• Limited time in which wireless carrier has to

obtain legal clearances and ensure that site

works for them.

• Try Not to give this time away for free.

• Require indemnity and insurance for any

activities on site by licensee/consultants and

require prior consent for any borings: require

copies of any consultant reports be provided to

you.

36


Rent/License Fee

• Basic fee

• Collocation fees (or address this later)

• Late Fees, Interest and Hold-Over fees

Late fees are what you can get.

Interest limited by law (be sure to include savings

clause to avoid usury claim).

Hold-over rent should be in the range of 125% to

150% of then-current rent.

37


Wireless Site Base Rent

• Rent: $1.8k per month to $5K + per month,

paid on annual basis in advance.

• Offer a direct deposit option.

• Carriers typically offer low escalators – e.g.,

15% every 5 years

• Try for 4% -- but it must be on annual basis.

• Consider CPI with a floor of 3.5% and ceiling

of 5%.

38


Assignment

• Require landlord approval

Wireless carriers usually want to be able to shift sites

to related corporate entities without landlord

approval.

Beware of assignments to “affiliates,” tower

operating companies.

• No release of original entity for certain clauses

– hazardous and insurance issues

39


Assignment or Subletting

• No sublicensing without permission. Have licensee waive rights

• Check state laws e.g.: Cal Civil Code §§ 1995.260, 1995.270

§6409 (47 U.S.C. § 1455) regarding collocations does not affect contractual restrictions

• Landlord should retain ability to consent to any proposed sublicense that involves the collocation of another carrier’s facilities. Additional rent for subs.

40


Interference

• Ensure that you do not cause any challenges for

any existing tenants.

• Ensure that subsequent tenants/collocators do

not cause interference.

• Burden is on newcomers to cure interference

caused by their arrival (not existing users).

• Be sure licensor/landlord is not responsible for

interference or cure.

41


Improvements

• Detailed plans with prior approval

Do not agree to “approval not to be unreasonably

withheld, delayed or conditioned …”

Control appearance of improvements

• All work by licensee shall be performed in

compliance with applicable laws,

codes/standards and ordinances.

• Licensee is not authorized to contract for or on

behalf of licensor or impose any additional

expense. (i.e. utilities)

42


Improvements & Utilities

• Be sure improvements will be maintained and

upgraded to comply with laws, but any new

installations must not be heavier, greater in

capacity or more space than originally granted.

• Licensee pays for utilities; licensor/landlord not

responsible for any interruptions.

• Do not agree to allowing licensee to use your

electric connection with a submeter.

43


Removal of Improvements

• Think about how to handle this – may depend

on facility type.

• Immediate ownership (e.g., of light pole).

• Automatic conveyance of ownership to licensor

• Option for licensor to retain improvements or

require removal.

• Require removal of footings and foundations.

44


Technical Standards

• Licensee agrees to comply with all applicable

governmental laws and regulations and with

such technical standards as may from time to

time be established by licensor for the

premises, including, without limitation,

technical standards relating to frequency

compatibility, radio interference protection,

antenna type and location and physical

installation.

45


Limit Access

(Think Post-9/11)

•24 hour notice

•Escort

But be careful about costs of Escort

Service.

•Emergency conditions for access

46


Access Rights/Security

• If installation on roof, limit access to certain specific

areas; require your roof contractor to approve; avoid

roof penetrations which may invalidate roof

warranties; limit cabling access to common shafts

• Limit size, weight and frequency of access to roof

• If installation across private or limited access land,

limit access and protect fencing, private or

municipal property or animals

• Put burden to maintain secure fencing on licensee

47


Events of Default /

Termination by Licensor

• Non-payment by tenant.

• Habitual late payments from tenant.

• Violation of any term, including non-permitted

collocations.

• Bankruptcy of tenant.

48


Termination by Licensee

• Carefully define when licensee can terminate.

• Wireless carriers want ability to terminate for

“technological, economic, or environmental”

reasons. PLEASE DON’T ACCEPT

• Either prohibit terminations or require payment

(e.g., rent for remainder of term or 12-24

months of rent).

49


Casualty/Insurance/Indemnity

• Make sure to run by your risk assessment folks.

• Typical insurance is general liability, auto

liability, employer’s liability, all-risk property,

and workers’ comp.

• Make sure insurance requirements apply to

contractors and subs.

• Don’t accept reciprocal indemnity.

Many local governments do not permit.

50


Taxes

• Make sure it is clear that taxes due are in

addition to rent.

• Address possessory interest tax (Revenue and

Taxation Code 107.6) liability for licensee.

• General Rule that local government wants to

make clear that it is acting as a landlord, not as

regulatory (taxes, permits etc.)

51


Notices

• All notices, requests, demands and other

communications to be in writing and delivered

to specified addresses

• Make sure to have counsel copied.

52


Quiet Enjoyment, Title and

Authority

• Traditional obligation of the landlord.

• Make sure you have authority – i.e. make sure

such use is permitted under your governing

documents.

Ensure that you have not granted another the right

to deploy in a manner that could result in

interference.

53


Hazardous Substances

• Strict language to prohibit any such uses.

• Batteries for back up and generators can trigger

these terms.

• Check with your environmental folks for most

recent terms – pay special attention that these

substances do not prejudice your ability to

reuse the site or co-use. (Typically local

government sites are water towers, or gov’t

buildings.)

54


Miscellaneous

• Attorney fees

• Entire agreement

• No liability for broker/agent fees

• Governing law and venue

• Severability

55


Miscellaneous (cont’d)

• Mortgage subordination

• Limitation on liability

• RF signage and notices

• Amendments

• No relocation assistance

• Time IS OF THE ESSENCE

56


Selling Your Wireless Leases

• Numerous tower operators seeking to buy

landlord lease rights.

• Typically offer fraction of NPV of lease

payments.

• Will emphasize threat of nonrenewal, certainty

of being paid.

• May ask for amendments allowing unlimited

collocations.

57


Addendum of Recent Cases

Montgomery County v. FCC, 811 F.3d 121 (4th Cir. 2015) Upheld FCC rules implementing 47 U.S.C. § 1455

Global Tower Assets, LLC v. Town of Rome (1st Cir. 2016) 2016 U.S. App. LEXIS 280

On January 8, the First Circuit concluded that a “final action” under the Telecommunications Act means that the applicant must exhaust the administrative process. In the context of the case involving an application for a site, the planning commission denied the application, but an appeal of that decision was available within the administrative process to a board of appeals. In other words, the administrative process had not ended and the decision was not a “final action” under 47 U.S.C.S. §

332(c)(7)(B)(v). Additionally, the term "final action" in the Telecommunications Act was properly construed as similar to the requirement in the Administrative Procedure Act under 5 U.S.C.S. § 704, such that it incorporated a potential two-step administrative process prior to being final.

T-Mobile S., LLC v. City of Roswell (Supreme Court 2015) 135 S. Ct. 808, 190 L. Ed. 2d 679, 2015 U.S.LEXIS 612, 83

U.S.L.W. 4047, 25 Fla. L. Weekly Fed. S 31, 61 Comm. Reg. (P & F) 1336

The Telecommunications Act of 1996, 47 U.S.C.S. § 332(c)(7)(B)(iii), requires that any decision to deny an application must be in writing and supported by substantial evidence in a written record. Court holds: the Act's requirement that the locality's decision be supported by substantial evidence necessarily implied that local authorities had to state reasons for denial, clearly enough to allow judicial review. The reasons did not have to appear in the same writing that conveyed the locality's denial

of the application, but could instead appear in some other written record issued essentially contemporaneously. But in the case where a city provided its reasons for denial in the acceptable form of detailed minutes of a city council meeting – and those

minutes were provided 26 days after the date of the written denial – they were therefore not provided essentially contemporaneously with the denial. As a result, the judgment was reversed and case remanded. 6-3 Decision; one concurrence; two dissents.


Addendum of Recent Cases Sprint Spectrum, L.P. v. Zoning Bd. of Adjustment of Paramus N.J., (3rd Cir. 2015) 606 Fed. Appx. 669

The Third Circuit upheld a 2014 district court ruling that had overturned a New Jersey zoning board decision denying an

application to build a wireless telecommunications towner because the applicant had not considered an alternative,

distributed antenna system (DAS.) Court found that the Paramus Zoning Board of Appeal's denial of appellants' application

for a variance to build a wireless monopole tower was not supported by substantial evidence, as the DAS was not a feasible

alternative to the monopole proposed by applicants.

Therefore, the district court correctly found that the ZBA's ruling constituted an effective prohibition of wireless service in

violation of 47 U.S.C.S. § 332(c)(7)(B) of the Telecommunications Act of 1996.

Indus. Tower & Wireless, LLC v. Haddad (D. Mass. 2015), 109 F. Supp. 3d 284, 2015 U.S. Dist. LEXIS 64566

This case involves a local zoning dispute over the construction of a cell phone tower. On July 29, 2014, the Zoning Board of

Appeals for the Town of Falmouth denied Plaintiff Industrial Tower & Wireless, LLC's application for a Special Permit to

construct a wireless communications tower. Plaintiff filed a Complaint with this Court, arguing that the ZBA's decision

violates the Telecommunications Act of 1996 on two independent grounds. First. the ZBA's decision denying the

application was not supported by "substantial evidence," as required by 47 U.S.C. § 332(c)(7)(B)(iii). Second, even if the

ZBA's decision was supported by substantial evidence, denying the application has the practical effect "of prohibiting the

provision of personal wireless services," in contravention of 47 U.S.C. §332(c)(7)(B)(i)(II). Plaintiff sought to vacate the

ZBA's decision, and requested an injunction ordering the ZBA to issue the necessary permitting and authorize construction

of the cell tower. The motion for summary judgment was allowed and the zoning board’s decision denying the application

for a special permit was vacated.


Addendum of Recent Cases PI Telecom Infrastructure (M.D. Fla. 2015), LLC v. City of Jacksonville, 104 F. Supp. 3d 1321, 2015 U.S. Dist. LEXIS 60598, 62 Comm. Reg. (P & F) 974 In a lawsuit brought under 47 U.S.C.S. § 151 et seq., in which PI Telecom Infrastructure challenged a city's denial of its application to construct a cell tower, the court held that the city's written order met the Act's "in writing" requirement because the written order identified the reasons for the denial and the company had access to the written transcript of the city commission's meeting 26 days before the deadline to seek judicial review. Additionally, substantial evidence supported the city's ruling because documented visibility of the proposed cell tower from a public park, which, by ordinance, the city was trying to protect and keep pristine, rose above mere generalized concerns regarding aesthetics. Finally, the company did not show that it fully considered feasible alternatives because it only summarily assessed another viable site but did not make any real evaluation of it. The City’s motion for summary judgment was granted. Portland Cellular P'ship v. Inhabitants of the Town of Cape Elizabeth, No. 2:14-cv-00274-JDL, 2015 U.S. Dist. LEXIS 132521 (D. Me. Sep. 30, 2015) Verizon sought to place antennas on water tower that already included a SCADA system that had been installed by the water utility, and argued that Section 6409 required the Town to treat the water tower as an existing base station because the zoning ordinance permitted the tower to be used to support antennas, and the facility was supporting an antenna in fact. Town argued 6409 did not apply since water authority had never sought permission to place its antennas on the water tower. Held: Section 6409 did not apply. Court said: “the Town did not review and approve the District's SCADA communications equipment mounted on the Water Tower when it amended its ordinance in 2000 to recognize water towers as appropriate locations for wireless communications equipment. The record is silent as to whether there was any consideration given to the SCADA equipment at that time. The zoning amendments themselves make no mention of the District's wireless equipment. Accordingly, it is unreasonable to infer that the Town's amendment of its ordinance [12] to recognize, in application, the one water tower in Cape Elizabeth as an authorized location for the installation of wireless communications equipment, also served, by implication, as a review and approval of the SCADA equipment then maintained on the Water Tower.” However, court went on to find that Town had improperly denied application on ground that water tower was not a permitted location for antennas, and concluded that placement of wireless structures on the water tower was an appropriate accessory use of the water tower under the Code as drafted.


Addendum of Recent Cases Orange-Cty.-Cty. Poughkeepsie LP v. Town of East Fishkill (Second Circuit, November 10, 2015, 15-521-cv) (Nonprecedential) 2015 BL 369917

Plaintiffs-appellees Orange County-County Poughkeepsie Limited Partnership, d/b/a Verizon Wireless (“Verizon”), a wireless carrier, and Homeland Towers, LLC (“Homeland”), a tower company, sought to construct a new wireless communications tower in the Town of East Fishkill, New York. The defendants-appellants, the Town of East Fishkill (“East Fishkill”) and the Town of East Fishkill Zoning Board of Appeals (the “Board”) (collectively, the “Town”), denied the plaintiffs’ request for a special permit, a 40-foot variance, and a wetlands/watercourse disturbance permit. The plaintiffs brought claims under the 47 U.S.C. § 332(c)(7)(B), asserting that the Town's denial of its application amounted to an effective prohibition of wireless services and that the Town's decision was not supported by substantial evidence. The district court granted summary judgment in favor of the plaintiffs on each of their claims. Court stated: Local governments retain authority over “decisions regarding the placement, construction, and modification of personal wireless service facilities,” 47 U.S.C. § 332(c)(7)(A), but may not “prohibit or have the effect of prohibiting the provision of personal wireless services,” id. § 332(c)(7)(B)(i)(II). The Telecommunications Act’s “ban on prohibiting personal wireless services precludes denying an application for a facility that is the least intrusive means for closing a significant gap in a remote user's ability to reach a cell site that provides access to land-lines.” A plaintiff will prevail on an effective prohibition claim, therefore, “if it shows both that a significant gap exists in wireless coverage and that its proposed facility is the least intrusive means to close that gap.” Whether a significant gap in coverage exists is a “fact-bound” question that requires a case-by-case determination. In making this determination, courts consider the gap's physical size, the number of wireless users affected by the gap, the location of the gap, and drop call or failure rates. Here, the Town conceded the existence of a coverage gap but contended the gap was not significant. As the district court found, however, the Town's conclusion that any coverage gap was de minimis was contradicted by the plaintiffs’ uncontested radio frequency analyses, propagation maps, and drive test data demonstrating a significant coverage gap in the area— specifically, two coverage gaps of 2 miles on the Taconic State Parkway and 1.6 miles on Route 82. Courts have found similarly sized gaps to be “significant” for purposes of the law. Moreover, it was undisputed that the gaps affect approximately 35,000 commuters on a daily basis. The Town asserts that it rebutted the plaintiffs’ evidence of a significant coverage gap with an informal driver survey that purported to show a lack of dropped calls in the disputed area. The district court determined that the Board's conclusions regarding the significance of the coverage gap were not supported by credible evidence. The appeals court affirmed the district court decision.

McKay Bros., LLC v. Zoning Bd. of Adjustment of Randolph, Civil Action No. 13-1383 (JLL), 2013 U.S. Dist. LEXIS 54878 (D.N.J. Apr. 12, 2013

Section 6409 does not prevent localities from requiring a provider to file an application so that the locality can determine whether Section 6409 applies to an application


Addendum of Recent Cases New Cingular Wireless PCS, LLC v. City of W. Haven, No. 3:11cv1967 (MPS), 2013 U.S. Dist. LEXIS 95321 (D. Conn. July 9, 2013)

AT&T applied for a special permit to install twelve antennas on three parts of the rooftop, with ancillary equipment located in an

equipment room on the ground floor. The building already hosted several wireless facilities maintained by AT&T's competitors

providing services functionally equivalent to the services that AT&T sought to provide, but those facilities were installed as of right,

before new zoning regulations were adopted. AT&T’s application was denied under the new zoning code.

AT&T argued that by refusing to approve its application to collocate its wireless facility, the City unreasonably discriminated against it.

The Court quoted legislative history stating that the phrase "unreasonably discriminate among providers of functionally equivalent

services" will provide localities with the flexibility to treat facilities that create different visual, aesthetic, or safety concerns differently

to the extent permitted under generally applicable zoning requirements even if those facilities provide functionally equivalent services.

For example, the conferees do not intend that if a State or local government grants a permit in a commercial district, it must also grant a

permit for a competitor's 50-foot tower in a residential district.” Applying that test, the court concluded, first, that “[a]llowing AT&T's

competitors to maintain wireless facilities while prohibiting AT&T from doing so is plainly discrimination.” The City argued denial

was not discriminatory because it was the result of application of the new code in an even-handed manner; the court rejected that

position, stating that “it rests on the erroneous assumption “that the prohibition against discrimination in subsection (B)(i)(I) is an

intent-based, rather than effects- based, standard….Because subsection (B)(i)(I) prohibits local regulations that have unreasonable

discriminatory effects, Defendants' argument that they even-handedly applied the new zoning regulations falls short. Although there is

no evidence in the record that the Commission applied its new regulations in a discriminatory fashion, the regulations themselves make

the installation of further wireless facilities much more difficult and cumbersome. Even if the Commission enforced the regulations

uniformly against all wireless providers, the effect of the regulations in this case was to discriminate in favor of wireless providers that

have existing wireless facilities and against providers that do not.”The Court next turned to whether

the discrimination was “unreasonable.” Citing cases, the court suggested that local boards only have “discretion to treat facilities

differently only [insofar] as they create different visual, aesthetic, or safety concerns to the extent permitted under

generally applicable zoning requirements." “Such bases for "reasonable discrimination" are difficult to discern, however, when the

proposed new facility would be built at a location that already houses a competitor's facility.”” AT&T submitted ample evidence that

its proposed facility would not make the rooftop any more of an eyesore than it already is.” The Court ordered issuance of a permit to

AT&T.


Joseph Van Eaton

[email protected]

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

Gerard Lavery Lederer

[email protected]

Best Best & Krieger

2000 Pennsylvania Avenue N.W.

Suite 5300

Washington DC 20006

Phone: (202) 785-0600

Fax: (202) 785-1234

Cell: (202) 664-4621

Website: www.bbklaw.com

63

Documents

Cellphone Tower Regulation: Maximizing Revenue While ...media.straffordpub.com/products/cellphone-tower... · 5/12/2016 · 1. Tower: structure built for sole or primary purpose