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Allen Garner Law, LLC.

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Telecommunications Update & Perspective MML Annual Conference 2014

7,016,000,000

Power

Policy

Precedents Proscription

Preemption

FIVE P’S

PREEMPTION

• Article VI U.S. Constitution (Supremacy Clause) states that the "Constitution and the laws of the United States...shall be the supreme law of the land...anything in the constitutions or laws of any State to the contrary notwithstanding."

• Preemption can be either express or implied. • Has Congress "occupied the field" in which the state is

attempting to regulate. • Federal "occupation of the field" occurs when there is "no

room" left for state regulation. Pennsylvania v Nelson (1956)

PROSCRIPTION • abrogate, • ban, • bar, • disallow, • exclude, • forbid, • halt, • outlaw,

• prevent, • refuse, • refuse permission, • repudiate, • restrain, • restrict, • revoke, • taboo

FOUR R’S

ROW

Regulation

Relations

Revenue

STATES CREATED CITIES

• Ysursa v. Pocatello Education Association (2009) that “[s]tate political subdivisions are ‘merely ... department[s] of the State, and the State may withhold, grant, or withdraw powers and privileges as it sees fit.’

U.S. Supreme Court

RELATIONSHIPS

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ZONING V. ROW MANAGEMENT

• Zoning = Regulation of Private Property • Location • Height • Appearance • Conditions of approval

• ROW Management = Coordinating Use of Public Property • Time • Place • Manner

• City as Owner/Landlord

ROW • Acquisition

• Fee simple • Easement • Dedication • Lease • Condemnation • Inheritance

• Reversionary Interests

FEDERAL POLICY

The Federal Telecommunications Act of 1996

Purpose “to provide for a pro-competitive, deregulatory national policy framework designed to accelerate rapidly private sector deployment of advanced information technologies and services to all Americans by opening all telecommunications markets to competition....”

(H.R. REP. NO. 104-458 (1996)).

STATE POLICY

The Uniform Wireless Communications Infrastructure Deployment Act 2014

Purpose “to encourage and streamline the deployment of broadcast and broadband facilities and to help ensure that robust wireless radio based communication services are available throughout Missouri.”

(SB650 Amending 67.5090 RSMo).

FEDERAL PREEMPTION OF LOCAL ZONING CONTROL – IMPERMISSIBLE REGULATIONS

• Zoning and building regulations cannot regulate based on “the environmental effects of radio frequency emissions to the extent that such facilities comply with the [FCC’s] regulations concerning such emissions.” 47 U.S.C. § 332(c)(7)(B)(iv).

• City concern that the electromagnetic radiation would harm the students does not provide basis for denial, if the tower complied with FCC standards.

• City can deny an application to construct or modify wireless facilities if the facilities do not comply with FCC’s regulations.

FEDERAL PREEMPTION OF LOCAL ZONING CONTROL – IMPERMISSIBLE REGULATIONS

Zoning and building regulations also cannot: • Unreasonably discriminate between wireless service providers

of functionally equivalent services. • Prohibit wireless services. • Have the effect of prohibiting wireless services.

47 U.S.C. § 332(c)(7)(B).

FEDERAL PREEMPTION OF LOCAL ZONING CONTROL – PERMISSIBLE REGULATIONS

Zoning and building regulations CAN: • Impose a detailed application requirement reasonably related to

a city’s review of the project. • Require public hearings on the application. • Require review by a planning commission that exercises

discretionary decision-making (some exceptions). • Impose requirements to meet aesthetic concerns. • Establish facility maintenance standards.

FEDERAL REGULATIONS – EVIDENCE REQUIRED

• Denial of a wireless facility permit must be supported by substantial evidence in the written record of the hearing. See 47 U.S.C. § 332(c)(7)(B)(iii); MetroPCS, 400 F.3d at 723-24.

• Substantial evidence < preponderance, but > scintilla of

evidence. • “…such evidence as a reasonable mind might accept as

adequate to support a conclusion.”

PROCEDURAL TIME LIMITS -- FEDERAL

Shot Clock Rules • A city must act “within a reasonable period of time” when

reviewing an application for a wireless telecommunications facility.

• FCC decision now imposes time limits on the processing of applications for wireless telecommunication facilities. (FCC 09-99.) • 90 days for Collocation applications . • 150 days for others.

• Does not start until the application is complete, provided the applicant is notified within 30 days that the application is incomplete.

MODIFICATION OF EXISTING FACILITIES

Middle Class Tax Relief and Job Creation Act of 2012 Section 6409

“…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.” • Applies to:

• Collocation of new transmission equipment; • Removal of transmission equipment; or • Replacement of transmission equipment.

INTERNET TAX FREEDOM ACT

• Ban on state and local taxation of Internet access and on multiple or discriminatory taxes on electronic commerce

• Expires November 1, 2014 • HR3086 Permanent Internet Tax Freedom Act - Amends the

Internet Tax Freedom Act to make permanent the ban on state and local taxation of Internet access and on multiple or discriminatory taxes on electronic commerce.

• 7/15/2014—HR 3086 Passed House without amendment. • Action pending in Senate

HISTORY REMINDER

BROADBAND BAN • No political subdivision of this state shall provide or offer for sale,

either to the public or to a telecommunications provider, a telecommunications service or telecommunications facility used to provide a telecommunications service for which a certificate of service authority is required pursuant to this section. (Mo. Rev. Stat.. § 392.410(7)

• Nothing in this subsection shall restrict a political subdivision from providing telecommunications services or facilities: • (1) For its own use; • (2) For 911, E-911 or other emergency services; • (3) For medical or educational purposes; • (4) To students by an educational institution; or • (5) Internet-type services.

NIXON V. MISSOURI MUNICIPAL LEAGUE (2004)

The United States Supreme Court expressly rejected claims that Section 253(a) of the Communications Act preempted a statute prohibiting its cities and counties from offering telecommunications services.

FEDERAL COMMUNICATIONS COMMISSION CHAIRMAN TOM WHEELER

“I respect the important role of state governments in our federal system, but I know that state laws that directly conflict with critical federal laws and policy may be subject to preemption in appropriate circumstances.”

5000%

GAP COVERAGE

• Cannot deny application if it would “prohibit or have the effect of prohibiting the provisions of personal wireless services.”

47 U.S.C. § 332(c)(7)(B)(i)

Gap is a hole in the provider’s service area.

GAP COVERAGE

• Cannot prevent the closing of a significant gap in coverage using least intrusive means.

• Service Provider bears the burden of proving: • Existence of the gap • The proposed project closes the gap in the manner

least intrusive of the values that would be served by denial.

• Lower power antenna network. • Smaller • Large number needed

to cover same area. • Linked to fiber optic

network. • Lower heights. • Rarely on own pole.

DISTRIBUTED ANTENNA SYSTEM (“DAS”)

Distributed antenna system (DAS) in New York City's Central Park, designed to provide wireless service providers a solution for coverage and capacity.

TWO PARAPHRASES • Generals tend to fight yesterday’s war, particularly

if they won it. • If we fight battles that cannot be won, then we will

lose battles we might have won.

LEGISLATIVE PROCESS

INFLUENCE GAME • “This is their core competency, and they have

been playing this game for a long time. These are companies that support foundations and other groups that do a lot of good work, but in the end are strategically designed to advance [AT&T’s and Verizon’s] interests.”

Kevin Werbach, Wharton School of Business

TOP TEN WIRELESS COMPANIES

TOP TEN WIRELESS COMPANIES

2013 Legislation Court Cases • HB331 • HB345

• 13AC-CC00505 • SC93799 (State)

PROVISIONS CONTAINED IN LEGISLATION

• Limitation on costs imposed and recovered. • Failure to act within time frame = approval. • Requires expedited court review of cases. • Expands the rights of utilities in ROW. • Prohibits local government from:

• Requiring information to allow evaluation of business decisions • Evaluating based on alternative locations • Dictating the type of wireless facilities • Requiring removal as condition of approval • Regulating RF signal strength

PROVISIONS CONTAINED IN LEGISLATION (2)

• Prohibits local government from: • Regulating RF emissions above federal standards • Imposing height restrictions above FAA standards • Prohibiting generators which comply with federal and state rules • Setting fees different than in statute • Limiting duration of approval • Imposing unreasonable aesthetic requirements • Establishing moratorium longer than 6 months • Offering lease of government property shorter than 15 years

LITIGATION SOLUTIONS

CIRCUIT COURT DECISION

• “the Ninety-Seventh General Assembly, First Regular Session, "clearly and undoubtedly" enacted House Bills 331 and 345 in violation of the procedural requirements of the Missouri Constitution, specifically Article III, §§ 21 & 23 (Single Subject/Clear Title and Original Purpose requirements), “

• “Because this Court finds HB 331 and 345 to be unconstitutionally enacted and invalid in their entirety, the remaining constitutional procedural or substantive arguments for finding invalidity need not be reached.”

MISSOURI SUPREME COURT DECISION

“Now at this day come again the parties aforesaid, by their respective attorneys, and the Court here now being sufficiently advised of and concerning the premises doth consider and adjudge that Appellant's motion to dismiss is sustained and cause dismissed. Appellant's motion to remand with directions to vacate overruled.” September 2, 2014

2014 Legislation Court Case • SB649 • SB650 • SB651 • SB652 • SB653

• 14AC-CC00445

• HB1454 • HB1867

Article III §21 Single Purpose Article III §23 Single Subject Article III §23 Clear Title Art. III § 28 reviving, reenacting, amending Violation of Injunction

PROCEDURAL CHALLENGES

Article I §13 Ex Post Facto Article II §1 Separation of Powers Article III §40 Special Law Article V §§1 & 5 Courts Article X §21 Hancock Amendment Article VI §22 Charter Cities Telecom Act Federal Preemption Violation of Injunction

SUBSTANTIVE CHALLENGES

Contact Information

Allen Garner Allen Garner Law, LLC. allen@allengarnerlaw.com 816-522-4639 (cell) 888.487.4440 816.326.0898 (fax)

Of Counsel with