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the functional equivalent)from the applicable structures specifically for use in the PROW.
<br /> state's utility regulatory agency.This assertion These new structures allow accommodation
<br /> is notfactually correct and in most states is of multiple carriers,with all antennas housed
<br /> an example of putting a self-serving"spin"on internally,and they do not exceed the height
<br /> the law. of the adjacent utility or light poles.They
<br /> These companies are not utilities in the can function as a utility pole for incumbent
<br /> traditional sense.They do not provide a retail utilities and others,such as a fibertransport
<br /> service to the consuming public as do utilities, company,and can also be designed as a
<br /> and their operations,rates,rate-of-return on light pole,or both.However,before local
<br /> invested capital,and customer service Stan- governments can effectively promote these
<br /> dards are not regulated by the state's utility structures as alternatives to tall monopoles,
<br /> regulatory agency,as is the case with utilities, the owner(s)of the existing utility or light
<br /> We have spoken with several state utility regu- poles must be on board with the concept,and
<br /> latory agencies,and not one could explain there must be someone on staff,or available
<br /> how or in what manner these new players to staff,who truly knows the applicable laws
<br /> were regulated by the agency.They are simply that allow local governments to achieve their
<br /> the holder of a certificate that effectively gives r s goals.That person also needs to know and
<br /> them the right to locate in the PROW(if per- understand the new technology and its true
<br /> mitted under local law and regulation),and in siting needs,as opposed to the merely as-
<br /> a few states(e.g.,New York)enables them to serted need.Then the two areas of knowledge
<br /> be subject to somewhat less stringent zoning = N can be"married"to create a win-win regula-
<br /> variance or waiver standards.However,they tory situation.
<br /> are still subject to local regulations,including 3
<br /> but not limited to zoning,construction,land- SECTION 6409(A)AND FCC RULEMAKING
<br /> use,and safety regulations(FCC 14-153§(A) _ 14-153
<br /> (249,259)&(B)(3)).In no state that we know ���qV In addition to the 1996 Telecommunications
<br /> of does the certificate they hold exempt them �`"tAl' �i ` - Act,the federal legislation and FCC rules that
<br /> from properly adopted local regulations deal- \` are most directly applicable to the deployment
<br /> Ing with the location,size/height,aesthetics/ of new facilities and the modification of exist-
<br /> appearance,physical design,construction, © ' ing facilities today are Section 6409(a)of the
<br /> safety,and maintenance of the facility. ' ' ' Middle Class Tax Relief and job Creation Act of
<br /> Contrary to what many local officials and �' 2012,the FCC Declaratory Ruling o9-99,and
<br /> staff have been[misjled to believe,under ' ' ' the FCC Report and Order 14-153(clarifying
<br /> current federal law and FCC rules,local gov- 6409(a)and Declaratory Ruling o9-99)•
<br /> ernments still retain most of their regulatory Under Section 6409(a),state and local
<br /> authority over these issues,including com- of the authority itself.The authority exists,but governments must approve"eligible facility"
<br /> pliance with operational safety regulations, as with all things it must be implemented and requests to modify existing towers or base
<br /> These include compliance with FCC limits on administered in accordance with the taw. stations.There have been numerous articles
<br /> human exposure to radio frequency fields(as that discuss in detail the specifics of what
<br /> explained in the Office of Engineering and Backhauling Options constitutes an eligible facility,so that is not
<br /> Technology's Bulletin 65)and TIA 222,the While the new player's business model in- addressed here.Notably,Section 6409(a)
<br /> Telecommunications Industry Association's volves erecting tall monopoles in the PROW to applies only to state and local governments
<br /> tower safety standards addressing the design enable carriers to use microwave to backhaul acting in their role as land-use regulators,and
<br /> and the ongoing physical state or condition the signal to the switch,microwaving is not does not apply to them acting in their propri-
<br /> of atower and the equipment attached to it. a technical necessity,but rather a means of etary capacities(i.e.,as the owners of public
<br /> Compliance with TIA 222,or in a few states' backhaulingthe signal.The alternative is property,including the PROW vis a vis fran
<br /> the functional equivalent,is the elephant in fiber.Consequently,a communitythat prohib- chise or encroachment agreements).These
<br /> the room that few applicants are address- its new,separate wireless communications remain contractual in nature and are not en-
<br /> ing.In handling hundreds of applications for support structures in the PROW tatter than the cumbered by the new regulations.
<br /> modifications or colocations for communities existing poles or fight standards should not
<br /> in just the last 24 months,we've found it to run afoul of the federal prohibition against What's Preempted Under 6409(a)and 14-153'
<br /> be the exception rather than the rule when communities acting in a manner that has the The FCC Report and Order 14-153 expressly
<br /> a wireless facility passes a TIA 222 safety effect of"prohibiting"the provision of service. protect and reconfirm local authority to en-
<br /> inspection(done by a third party).It's largely force and condition approval on compliance
<br /> a matter of howthat authority is implemented A New Type of Support Structure with generally applicable building,structural,
<br /> and administered,ratherthan the existence There has been a new development in support electrical,and safety codes and with other
<br /> ZONINGPRACTICE 11.16
<br /> AMERICAN PLANNING ASSOCIATION l page 4
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