Wiley has promoted Jennifer D. Hindin to co-chair the Telecom, Media & Technology (TMT) Practice alongside Kathleen A. Kirby, effective Jan. 1, 2022. Hindin succeeds David A. Gross, who served as the TMT co-chair with Kirby since 2016, and who remains a partner in the practice.
“To keep up with the success and growing client demand, we have been expanding our TMT Practice in our core FCC regulatory practice as well as into complementary areas including appellate litigation, privacy, fintech and national security,” Hindin said. “In doing so, we recruited individuals who have occupied high-level positions at the FCC, the U.S. Department of State and the U.S. Department of Commerce, as well as on Capitol Hill. Some of our most recent additions include Tom Johnson, Charles McKee, Lyn Brown and Nazak Nikakhtar.”
Hindin joined Wiley as an associate more than 25 years ago. She leads the firm’s Space and Satellite group and is a member of the firm’s executive and management committees. She advises communications and technology companies on regulatory policy, spectrum, licensing and transactional matters. Hindin focuses on space law and represents established and emerging satellite, earth station and international telecommunications providers.
Source: Wiley Rein
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.”
“Radical agreement” that small cell rates should be set at market rates was voiced on a panel at the AGL Local Summit in Kansas City last week, according to moderator Bryan Tramont, managing partner, Wilkinson Barker Knauer.
The FCC’s Declaratory Ruling made the case that small cell fees must represent a municipalities’ “reasonable costs” or they could be construed as an “effective prohibition” of the wireless service.
Not surprisingly, the panelist representing the government side, Jonathan Kramer, principal attorney, Telecom Law Firm, voiced his beliefs that the FCC had erred last week in its fee ruling. He said municipalities serve two different roles when it comes to charging fees. Charging an application fee reflects its government role, which covers the cost of granting the right to build. It is not a profit center. However, fees related to its proprietary role in the ownership of facilities in the right-of-way are set at a market-based rate.
“The FCC has created an unlevel playing field,” Kramer said. “One that is tilted so local governments are economically cast out of the system by setting artificially low application rates, far below the internal costs to process and attachment rates that are a giveaway to the industry. It subsidizes the shareholders not the salaries of the police and firefighters, which depend on this proprietary income.”
Robert Stapleton, CEO, National Wireless Ventures, said an article that ran in the Philadelphia Enquirer claims that the FCC is forcing cities and municipalities to subsidize 5G. “That is going to be part of the argument,” he said.
Dan Marinberg, senior VP and general counsel, Vertical Bridge, said that the right of way is a municipality’s largest asset and it would normally charge market rates for access to enterprises. He also didn’t seem to buy the “prohibition of service” claim by the FCC.
“I can understand the need to streamline and the need for municipalities to be reasonable,” he said. “At the same time, there is always the option of going somewhere else. There is private land, rooftops. You don’t have to be in the rights of way.”
In the interview between Tramont and Jason Caliento, Mobilitie, which occurred before this panel, Caliento noted with pride that the FCC adopted what Mobilitie proposed in its petition back in 2016 in terms of the fees and the clock. But he favored compromise over litigation as the process moves forward.
“I think the compromises they make around the fees make perfect sense,” Caliento said. “We need to stay engaged with the cities and continue to compromise so that no one feels that it went too far one way or the other.”
Panelists were also unified that the Declaratory Ruling on fees and the 3rdR&O on shot clocks would end up in court.
“We are in for a pretty big battle between municipalities and the federal government,” said Marinberg. “No one is going to be an outright winner. There is going to be a compromise. Definitely going to be litigation over rates charged for small cells.
Stapleton said there is precedent for the FCC’s actions. He compared them to the Railroad Act of 1862 when the government granted right of way for the first transcontinental railroad. But he noted that the City of Chicago, which is getting $1,900 a pole, has already bowed out of state legislation (HB 1461) that would have limited fees to $275 a month.
“There will be litigation from local municipalities and from states,” Stapleton said. “A lot of people believe that this ruling is really stepping on the health, safety and welfare of citizens, the municipalities’ ability to zone and the ability to control what is going into the community.”
Kramer noted that the FCC separated its fee decision in a Declaratory Ruling from the rest of the small cell streamlining 3rdR&O, because it is more “fragile in terms of court review.”
That fragility Kramer mentions may lie in the fact that several appellate courts have disagreed on the limits that Congress imposed on state and local governments through Sections 253 and 332 of the Communications Act.
“The Commission will be hard-pressed to show that they actually have legitimate independent expertise to essentially counter congressional intent and over two decades of real world experience,” he told AGL eDigest in an interview after the session.
Tony Peduto, CEO, CTI Towers, said the carriers’ small cell cause is harmed by a lack of transparency on their deployment plans. “What do the carriers actually want? None of them have come together and said we want small cells. We want the same design and same technology, and, therefore, we can make it work,” Peduto said. “When you are relying on third party providers, which they would rather not, you get aesthetically pleasing light poles in the downtown areas and antennas on top of telephone poles everywhere else. What does everyone want?”
Kramer agreed, saying that the municipalities are looking for the carriers to provide a clear plan on their small cell rollouts.
“We don’t want 100,000 ‘on pox-on a pole’ for sites, and that’s what we are seeing. We are seeing irrational designs. Locations that are problematic. Mid-block sites, sites especially are problematic, he said. “With a million new sites coming in the next few years, it gives up pause. The key for municipalities is taking advantage of existing verticality, whether it is a utility pole, a light standard or a traffic signal.”
March 21, 2017 —
This is the second in a two-part series covering comments in the FCC proceeding “Streamlining Deployment of Small Cell Infrastructure by Improving Wireless Facilities Siting Policies; Mobilitie Petition for Declaratory Ruling (WT Docket No. 16-421).” Last Thursday, we looked at the wireless point of view and today we will track the opinions of municipalities, as filed with the FCC.
Municipalities countered the frustration of the wireless industry over confusing small cell applications process with a gripe of their own: deceptive practices, in comments filed with the FCC. If an applicant is representing the wireless industry, the municipalities said they would rather it didn’t use the dba of a utility-sounding company. The municipalities also denied charges that they are discriminating against the carriers by delaying applications and charging “excessive” fees. In fact, they pointed to instances where they thought the wireless industry caused delays itself.
A group led by the National League of Cities, which included the National Association of Telecommunications Officers, said the unique characteristics of each municipality make management of the public ROW best handled by local government.
“It is impossible that a one-size-fits-all regulatory scheme can adequately take into account the various needs and interests of all communities across the nation,” the group wrote.
The municipalities asserted that they understand the importance of wireless to the safety and economic future of their areas.
“[Municipalities] are keenly aware that high speed broadband service is a key to economic development and a critical tool for academic progress,” wrote a group of commenters headed by the Pennsylvania State Association of Township Supervisors. “In order to facilitate the new wave of 5G technology, the Commenters recognize that new and/or improved wireless infrastructure is both necessary and welcome in their communities.”
When it came to complaints of excessive and applications fees and rights-of-way access charges, the municipalities took great umbrage.
“The Bureau throws in unsubstantiated allegations of permitting and zoning delays and high fees and excessive charges resulting in applicants having to ‘contend with a long and costly process,’” the League of Cities et.al. wrote.
A group of organizations representing western cities and counties, led by the Telecom Law Firm and the City of Pasadena, California, wrote that the limitations proposed by Mobilitie ignore the property interest shared by the State and local governments in the public ROW and on government-owned poles, which goes outside of the regulatory relationship between local governments and wireless carriers. And the proprietary interest differs by the state.
“While a “$10,800 annual per-pole fee” may exceed the additional costs imposed on the government in its regulatory capacity to permit and monitor the installation, such fees are proprietary fees that compensate local government for allowing the use of its property,” wrote City of Pasadena et. al.
Municipalities Have Pointed Words for Mobilitie
The proposed limitations on local ROW authority were based on the “erroneous” assumption the carriers are not part of the problem, according to City of Pasadena, et.al. It singled out Mobilitie as one that had injured the carrier-municipality relationship.
“Significant delays in small cell deployment have arisen from applicant misrepresentations and misconduct,” the group wrote. “Even wireless industry members publicly acknowledge that aggressive and deceptive tactics by applicants, in particular those employed by Mobilitie, are among the primary impediments to deployment.”
Other municipalities singled out Mobilitie, as well, writing of its incomplete applications and poor construction practices.
“Mobilitie’s actions across the nation [have] started to get attention from other [wireless] providers, concerned that their own deployment efforts could be hindered by the poster child’s actions,” the National League of Cities et. al. wrote.
The Virginia Dept. of Transportation reported that of the 500 small cells Mobilitie had applied for, 400 of them only supplied latitude and longitude information and therefore were not even considered to be applications.
A group of municipal organizations based in Colorado and Washington state noted that Mobilitie has taken steps to better cooperate with municipalities, but it still discussed tactics used early on by the company, which caused delays and bad feelings with many municipalities.
“Mobilitie created multiple subsidiaries with misleading names which made it look like it brought prior state or federal approval to its siting applications. These entities had names like Colorado Exchange Facilities Network, LLC and Interstate Transport and Broadband. Mobilitie represented to local jurisdictions, in writing, that they were a regulated public utility, yet they had no certificated authority from the Colorado Public Utilities Commission as such,” the Colorado/Washington state municipalities wrote.
Cooperation not Regulation
A better route than increased government regulation would be more cooperation between the wireless industry and municipalities, according to the League of Cities filing.
The League of Cities et. al. said that it requested to the FCC the wireless industry and government representatives meet to resolve issues surrounding delays in deployment in 2014.
As an example of grass roots cooperation, the municipalities cited the City of San Antonio, which entered in a master license agreement with Verizon giving the carrier access to rights-of-way and to attach to certain city structures for an agreed-upon fee schedule.
“The city found that this proactive agreement allowed Verizon to increase its coverage and reliability, benefiting both the company and resident customers, and allowed the city to retain its land-use authority and unique historical aesthetic.
The League of Cities et. al. also pointed to a master ROW license agreement developed between Georgia Municipal Association (GMA) and Mobilitie in January of this year, which was designed to balance protection of the local ROW and the needs of the wireless industry.
“The end result is a template or model agreement that can be tailored to the unique circumstances of each city,” GMA wrote. “The agreement imposes reasonable safeguards on the placement and maintenance of wireless equipment and facilities in the ROW, while also addressing reasonable compensation to be paid by Mobilitie for its use of the ROW.”