The California City of San Ramon and AT&T have entered into a Master Licensing Agreement aimed at speeding deployment of small cells, whose terms and conditions are much different from the FCC’s September Small Cell Order, which partially went into effect Jan. 14. According to the agreement, the carrier will pay more rent money, and, in turn, the city will process applications much faster than is required by the FCC.
According to the MLA, AT&T will pay $750 per year for each facility, which is $500 more than “presumptively reasonable” rate set by the FCC. The carrier will also pay a one-time flat fee for access to the city’s street lighting electrical circuits, so it won’t have to put down its own electrical conduits. For a pre-approved design, the City of San Ramon believes it can process batches of five applications in as low as three weeks, from submittal to pulling the permit. For non-pre-approved designs, attached to a city-owned pole, the city thinks it can do a batch in 30 days.
Several years ago, AT&T indicated an interest in deploying small cell equipment on the infrastructure owned by San Ramon, such street lights, traffic signals and such. With the expectation that small cells were going to be deployed by the hundreds of thousands, the City began to look for ways to facilitate deployment, well before the FCC came out with its September Small Cell Order.
“The city knew the technology was coming, so it decided that it might as well use existing infrastructure because it did not want any new infrastructure in its right of way. The decision was made to partner with the carriers, rather than accept any federally regulated approach,” said Robert May III, partner, Telecom Law Firm, which negotiated the agreement for the City.
The master license agreement changes the City’s zoning process, removing the rigorous public hearing process, with its lengthy back and forth and inherent uncertainties.
“For this class of facility, the City wanted to come up with a model for how it could process pre-approved designs more quickly,” May said. “Once the model is perfected, nine times out 10, when the carrier wants to place that equipment on a pole, it is an over the counter approval.”
The agreement gives carriers the speed to market they need, and it gives the City something that is taken away through actions by the federal government. Control.
“Whatever the rules that govern the relationship, the thing that appeals to pretty much all the municipalities is the rules should be determined by the parties themselves and not given to them by the FCC,” May said. “The MLA gives them comfort that those facilities will be consistent with the design and form factor that is acceptable to the community. That is the crux of the win-win.” Now that the MLA has been approved, the next step in the process for San Ramon and AT&T is to agree upon several pre-approved designs.
There is room in the MLA for application processing to go even faster. For a batch of more than five site applications, according to the MLA, advanced notice must be given to the city so it has a chance to increase its staff.
“It is a collaborative process to coordinate the phases of the buildout so that it does not overwhelm the city,” May said. “If AT&T wants to go faster than the city is able to, there is a program for augmenting the city staff at AT&T’s cost.”
The MLA signing comes in the wake of the FCC’s September Small Cell Order, but it is not invalidated by it. In fact, if AT&T were to become dissatisfied with the MLA, it could default to the FCC’s rules. At the same time, the City of San Ramon is willing to offer the same terms and conditions to any competitor of AT&T.
May is hopeful that the MLA will serve as a model for other cities in California and in other states, but he understands that all carriers may not be interested in MLAs in every city.
“This MLA may not be the panacea we are looking for, but I think negotiation, collaboration and cooperation are the panacea for the issues that surround small cell siting,” May said. “Having the opportunity to work collaboratively with the carriers to decide what works best for us together is what will allow facilities to be deployed quickly.”
Robert May will be speaking on carrier/municipal relationships at the the AGL Newport Beach Summit, January 24th at the Balboa Bay Resort.
Small Cell Deployment: Meshing Two Different Worlds
Wireless service providers thrive on quickly deploying the latest in innovative infrastructure without telegraphing their plans to competitors. Municipalities, on the other hand, have longstanding planning cycles and methods of operation based on years of providing consistent service to citizens. With these two conflicting agendas in mind, you may wonder how wireless service providers and municipalities may work together to quickly deploy small cells in the public rights of way with disrupting the cityscape. The panelists will explain how members of each side can come together to ensure that carriers meet their deadlines and the public enjoys the state of the art in wireless.
After the U.S. Court of Appeals for the 10th Circuit denied the cities’ request for a stay, the FCC’s Declaratory Ruling and Third Report and Order on small cell deployment went into effect this week.
Known as the September Small Cell Order, the item states that fees charged by a municipality for applications or rent must be limited to costs or they may be deemed as “effective prohibitions of service.” Aesthetic and undergrounding requirements may also be deemed to be a prohibition of service small cell deployment. Additionally, it established new small cell shot clocks and codified previous ones, as well.
However, the courtroom drama is not over. In a second order, the 10th Circuit remanded the cities’ motion to review their petitions against the September Order back to the U.S. Court of Appeals for the 9th Circuit.
The 9th Circuit was already considering a lawsuit against the FCC’s August Order banning municipal moratoria, which is basically part of the same rule making as the Small Cell Order. So with the transfer, both the moratoria and the Small Cell Order will be examined by the same court.
“The August Order interpreted Section 253 of the Telecommunications Act, laying the groundwork for where the FCC needed to be to adopt the Small Cell Order,” said Robert “Tripp” May, partner, Telecom Law Firm. “Those two items will be considered together. That is significant.”
Which circuit rules on an appeal can have a big impact on the final outcome of the case. The 9thCircuit looks like it will be more supportive of the cities’ point of view. May noted that numerous 9th Circuits precedents were overruled by the FCC’s Small Cell Order.
“When the FCC and its industry supporters oppose our brief, they will have to prove that not only are the local governments wrong but that the 9th Circuit’s precedents are wrong,” May said.
Section 253 of the Telecommunications Act states that local regulations may not prohibit telecommunications services. The FCC Small Cell Order attempted to expand upon the definition of what would be deemed as a prohibition.
“The FCC Small Cell Order lowered the bar for a local regulation to be deemed as an effective prohibition, but the 9thCircuit has continuously upheld a higher standard,” May said. “The 9th Circuit has previously ruled that the ‘plain and unambiguous’ meaning of Section 253 is that it requires an actual prohibition, not the just the mere possibility of a prohibition,” May said. “In order for the FCC to justify its Order, it will have to convince the 9th Circuit that its previous rulings were wrong.”
Another wrinkle in this case, the FCC currently does not have a lawyer working on this with the partial government shutdown. If it is not reopened in time, the Dept. of Justice will argue the case.
Congress Getting in on the Act
The cities have also taken their fight against the FCC to Capitol Hill. Congresswoman Ana Eshoo introduced the “Accelerating Broadband Development by Empowering Local Communities Act of 2019,’’ on Jan. 14 to preserve the rights of state and local governments, essentially nullifying the August and September small cell orders by the FCC: ‘‘Accelerating Wireless and Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment’’ and Declaratory Ruling in ‘‘Third Report and Order and Declaratory Ruling.”