TELECOMMUNICATIONS
OVERVIEW
Session I – 9:00 am – 10:15 am
Presented By:
Eric Anderson
Sr. Assistant City Attorney
City of Scottsdale
Friday, May 29, 2015
FEDERAL LAW
• Federal Telecommunications ACT (“FTA”) 47 U.S.C.
101 et seq.:
o Definitions; 47 U.S.C. § 153
• (11) Common Carrier
o The term “common carrier” or “carrier” means any person engaged as a
common carrier for hire, in interstate or foreign communication by wire or
radio or interstate or foreign radio transmission of energy, except where
reference is made to common carriers not subject to this chapter; but a
person engaged in radio broadcasting shall not, insofar as such person is so
engaged, be deemed a common carrier.
•
Note: Under the FTA, “telecommunications corporation” has been determined to
be synonymous with “common carrier” Virgin Islands Telephone Corp. v. FCC, 198
F.3d 921 (D.C. Cir. 1999)
Cont’d…
FEDERAL LAW
• (24) Information service
o The term “information service” means the offering of a capability for
generating, acquiring, storing, transforming, processing, retrieving, utilizing,
or making available information via telecommunications, and includes
electronic publishing, but does not include any use of any such capability
for the management, control, or operation of a telecommunications
system or the management of a telecommunications service.
• (33) Mobile service
o The term “mobile service” means a radio communication service carried
on between mobile stations or receivers and land stations, and by mobile
stations communicating among themselves, and includes (A) both oneway and two-way radio communication services, (B) a mobile service
which provides a regularly interacting group of base, mobile, portable,
and associated control and relay stations (whether licensed on an
individual, cooperative, or multiple basis) for private one-way or two-way
land mobile radio communications by eligible users over designated areas
of operation, and (C) any service for which a license is required in a
personal communications service established pursuant to the proceeding
entitled “Amendment to the Commission's Rules to Establish New Personal
Communications Services” (GEN Docket No. 90-314; ET Docket No. 92-100),
or any successor proceeding.
FEDERAL LAW
• (50) Telecommunications
o The term “telecommunications” means the transmission, between or
among points specified by the user, of information of the user's choosing,
without change in the form or content of the information as sent and
received.
• (51) Telecommunications carrier
o The term “telecommunications carrier” means any provider of
telecommunications services, except that such term does not include
aggregators of telecommunications services (as defined in section 226 of
this title). A telecommunications carrier shall be treated as a common
carrier under this chapter only to the extent that it is engaged in providing
telecommunications services, except that the Commission shall determine
whether the provision of fixed and mobile satellite service shall be treated
as common carriage.
• (53) Telecommunications service
o The term “telecommunications service” means the offering of
telecommunications for a fee directly to the public, or to such classes of
users as to be effectively available directly to the public, regardless of the
facilities used.
FEDERAL LAW
47 U.S.C. § 253 (“barriers to entry”)
Applies to all telecommunications corporations
(“wired and wireless”)
• (a) In general
o No State or local statute or regulation, or other State or local legal
requirement, may prohibit or have the effect of prohibiting the ability of
any entity to provide any interstate or intrastate telecommunications
service.
• (b) State regulatory authority
o Nothing in this section shall affect the ability of a State to impose, on a
competitively neutral basis and consistent with section 254 of this title,
requirements necessary to preserve and advance universal service,
protect the public safety and welfare, ensure the continued quality of
telecommunications services, and safeguard the rights of consumers.
cont’d
FEDERAL LAW
47 U.S.C. § 253 (“barriers to entry”)
• (c) State and local government authority
o Nothing in this section affects the authority of a State or local government
to manage the public rights-of-way or to require fair and reasonable
compensation from telecommunications providers, on a competitively
neutral and nondiscriminatory basis, for use of public rights-of-way on a
nondiscriminatory basis, if the compensation required is publicly disclosed
by such government.
• (d) Preemption
o If, after notice and an opportunity for public comment, the Commission
determines that a State or local government has permitted or imposed
any statute, regulation, or legal requirement that violates subsection (a) or
(b) of this section, the Commission shall preempt the enforcement of such
statute, regulation, or legal requirement to the extent necessary to correct
such violation or inconsistency.
FEDERAL LAW
47 U.S.C. § 332 (“wireless barriers to entry”)
• (c) Regulatory treatment of mobile services
o (1) Common carrier treatment of commercial mobile services
• (A) A person engaged in the provision of a service that is a
commercial mobile service shall, insofar as such person is so
engaged, be treated as a common carrier for purposes of this
chapter, except for such provisions of subchapter II of this chapter as
the Commission may specify by regulation as inapplicable to that
service or person. In prescribing or amending any such regulation, the
Commission may not specify any provision of section 201, 202, or 208
of this title, and may specify any other provision only if the Commission
determines that-o (2) Non-common carrier treatment of private mobile services
• A person engaged in the provision of a service that is a private mobile
service shall not, insofar as such person is so engaged, be treated as a
common carrier for any purpose under this chapter. . . .
Cont’d
FEDERAL LAW
47 U.S.C. § 332 (“wireless barriers to entry”)
o (3) State preemption
• (A) Notwithstanding sections 152(b) and 221(b) of this title, no State or
local government shall have any authority to regulate the entry of or
the rates charged by any commercial mobile service or any private
mobile service, except that this paragraph shall not prohibit a State
from regulating the other terms and conditions of commercial mobile
services. . . .
***
o (7) Preservation of local zoning authority
• (A) General authority
o Except as provided in this paragraph, nothing in this chapter shall
limit or affect the authority of a State or local government or
instrumentality thereof over decisions regarding the placement,
construction, and modification of personal wireless service
facilities.
Cont’d
FEDERAL LAW
47 U.S.C. § 332 (“wireless barriers to entry”)
• (B) Limitations
o (i) The regulation of the placement, construction, and
modification of personal wireless service facilities by any State or
local government or instrumentality thereof-• (I) shall not unreasonably discriminate among providers of
functionally equivalent services; and
• (II) shall not prohibit or have the effect of prohibiting the
provision of personal wireless services.
o (ii) A State or local government or instrumentality thereof shall act
on any request for authorization to place, construct, or modify
personal wireless service facilities within a reasonable period of
time after the request is duly filed with such government or
instrumentality, taking into account the nature and scope of such
request.
cont’d
FEDERAL LAW
47 U.S.C. § 332 (“wireless barriers to entry”)
o (iii) Any decision by a State or local government or instrumentality
thereof to deny a request to place, construct, or modify personal
wireless service facilities shall be in writing and supported by
substantial evidence contained in a written record.
o (iv) No State or local government or instrumentality thereof may
regulate the placement, construction, and modification of
personal wireless service facilities on the basis of the
environmental effects of radio frequency emissions to the extent
that such facilities comply with the Commission's regulations
concerning such emissions. [tab 1]
FEDERAL LAW
• Federal Regulation – FCC
• FAA may have input on antenna tower siting near airports
o “Shot Clock” for wireless siting decisions [tab 2]
o “Super Shot Clock” x 2 for collocation decisions [tab 3]
FEDERAL LAW
• Section 6409:
o “Notwithstanding Section 704 of the Telecommunications Act of 1996
(Public Law 104-104) or 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.” 47 U.S.C. §1455
• 60 Day Shot Clock for Section 6409(a) Eligible Facilities Applications
and Modifications
• 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:
o (A) Collocation of new transmission equipment;
o (B) Removal of transmission equipment; or
o (C) Replacement of transmission equipment.
FEDERAL LAW
• This involves collocation, removal or replacement.
Contrary to common sense, collocation now means
the first antenna on a facility (everyone used to
think it meant a secondary piece of equipment).
o Collocation means “the mounting or installation of transmission
equipment on an eligible support structure for the purpose of transmitting
and/or receiving Radio Frequency signals for communications purposes.”
• FCC: Base Station is a “A structure or equipment at
a fixed location that enables Commission-licensed
or authorized wireless communications between
user equipment and a communications network.”
FEDERAL LAW
• What is modification:
o Per the FCC, a modification substantially changes the physical dimensions
of an eligible support structure if one of the following happens:
• (i) For towers not in the public rights-of-way the height is increased by
more than 10% or by the height of an additional antenna array with
separation from the nearest existing antenna not to exceed 20 feet,
whichever is greater or for towers in the public rights-of-way, the
height is increased by more than 10% or more than 10 feet whichever
is greater.
• (ii) For towers other than those in the public rights-of-way, it involves
adding an appurtenance to the body of the tower that would
protrude more than 20 feet or more than the width of the tower
structure at the level of the appurtenance whichever is greater; for
those in the public rights-of-way it involves adding an appurtenance
that would protrude by more than 6 feet;
• (iii) For any eligible support structure, it involves installation of more
than 4 equipment cabinets; or for towers in the public rights-of-way, it
involves new equipment cabinets or ground cabinets that are more
than 10% larger than other ground cabinets;
FEDERAL LAW
• Substantial Change
o (iv) It entails excavation or deployment outside the current site;
o (v) It would defeat the concealment efforts of the eligible support
structure; or
o (vi) It does not comply with conditions associated with the siting approval
of the construction or modification of the support structure or base station
equipment subject to certain caveats
FEDERAL LAW
• 90-Day Shot Clock for Section 332 - Other
Collocation Applications
o original FCC shot clock; not automatically deemed granted;
o slower but broader;
• 150-Day Shot Clock for Other Requests (New Tower
Site)
o not automatically deemed granted
• State Law can be more favorable but not less
favorable to Providers
STATE LAW
Arizona has its own version of a Telecommunications Act
which is much narrower than the federal version but may
have some practical impact. A.R.S. § 9-581 et seq.
• A.R.S. 9-581 (Definitions)
o 4. “Telecommunications” means the transmission, between or among points
specified by the user, of information of the user's choosing, without change in
the form or content of the information as sent and received. The term does not
include commercial mobile radio services, pay phone services, interstate
services or cable services.
o 5. “Telecommunications corporation” means any public service corporation to
the extent that it provides telecommunications services in this state.
o 6. “Telecommunications services” means the offering of telecommunications
for a fee directly to the public, or to such users as to be effectively available
directly to the public, regardless of the facilities used.
STATE LAW
• A.R.S. § 9-582
o A. A political subdivision shall not levy a tax, rent, fee or charge on a
telecommunications corporation, including a telecommunications corporation
that provides interstate services as described in § 9-583, subsection C, for the
use of a public highway to provide telecommunications services, or levy a tax,
fee or charge upon the privilege of engaging in the business of providing
telecommunications services within that political subdivision other than:
• 1.
Any transaction privilege tax authorized by law . . . .
• 2.
A telecommunications application fee for the issuance of a
telecommunications license . . . .
• 3.
A telecommunications construction permit fee for the issuance of
a construction permit to place telecommunications facilities in the public
highways . . . .
* * *
Cont’d
STATE LAW
o B. All application fees, permit fees and charges levied by a political
subdivision on telecommunications corporations pursuant to subsection A,
paragraphs 2 and 3 of this section shall be levied on a competitively
neutral and nondiscriminatory basis and directly related to the costs
incurred by the political subdivision in providing services relating to the
granting or administration of applications or permits. These fees and
charges also shall be reasonably related in time to the occurrence of the
costs.
* * *
o E. Notwithstanding subsection D of this section, any telecommunications
corporation that was providing telecommunications service within this
state on November 1, 1997 pursuant to a grant made to it or its lawful
predecessors prior to the effective date of the Arizona Constitution may
continue to provide telecommunications service pursuant to that state
grant until it is lawfully repealed, revoked or amended. Such
telecommunications corporation shall require no additional grant from
any political subdivision to provide telecommunications services.
STATE LAW
• Cable Television: A.R.S. § 9-505 et seq.
o Issue license in lieu of franchise
o 5% of gross revenue
“Under no circumstances may the total of the rates of
the license fee and of any transaction privilege taxes
on gross revenues levied or assessed by a licensing
authority for the privilege of providing cable service
and related use of the public streets, roads or alleys to
provide cable service exceed a rate of five per cent .
. . .”
• Ariz. Rev. Stat. Ann. § 9-506(3)
STATE LAW
• State Regulation [tab 4]
o AZ Corporation Commission (limited)
• limited to “public service corporations”
• FCC denied permission for ACC to regulate commercial mobile radio
services (CMRS)
• ** Impact of recent FCC Open Internet Order is not yet
fully known
• ** DAS Example:
• NextG, NewPath, Crown Castle
• mixture between wired and wireless
• is provider willing to trade the burdens of potential ACC Regulation for the
protections of § 9-581 et seq.
• *** will we see straight broadband providers looking to
enter the ROW?
STATE LAW
• B.
Municipal Telecom Interests
o 1. Three Basic Categories:
• a. Private Property w/in municipal boundaries
o municipal zoning interests prevail
• b. Municipal proprietary property (parks, fire stations, ball fields) [tab
5]
o city management of own property/regulatory questions
• c. Municipal R.O.W.
o regulatory interests
o management interests
STATE LAW
On its face, Measure C is not the sort of local land use regulation or decision that is subject to
the limitations of § 332(c)(7), but rather is a voter-enacted rule that the City may not lease or
sell city-owned property for certain types of construction unless authorized by a majority of
the electors. Cf. Simons, 63 Cal.App.3d at 468, 133 Cal.Rptr. 721; Cal. Const. art. 11, § 5(a).
Unlike a legislative land use regulation, Measure C does not classify public and private
property or impose design and use restrictions on the different classifications. Indeed,
Measure C does not prevent the City from agreeing to any sort of construction or use of
public land, provided that the City obtains public approval. Nor was Measure C promulgated
by the local governmental authorities (i.e., the City Council or Planning Commission) that are
authorized by law to engage in such legislative land use decision making. Measure C simply
provides a mechanism for the City, through the voters, to decide whether to allow
construction on its own land. It does not regulate or impose generally applicable rules on “the
placement, construction, and modification of personal wireless service facilities,” §
332(c)(7)(B)(i) and (iv), and so the substantive limitations imposed by these subsections are
inapplicable
Omnipoint Commc'ns, Inc. v. City of Huntington Beach, 738 F.3d 192, 199-200 (9th Cir. 2013)
STATE LAW
Not all actions by state or local government entities, however, constitute
regulation, for such an entity, like a private person, may buy and sell or
own and manage property in the marketplace. A State does not
regulate ... simply by acting within one of these protected areas. When
a State owns and manages property, for example, it must interact with
private participants in the marketplace. In so doing, the State is not
subject to pre-emption by the [federal statute], because pre-emption
doctrines apply only to state regulation.
Sprint Spectrum L.P. v. Mills, 283 F.3d 404, 417 (2d Cir. 2002)
STATE LAW
Practice Tip: Toe The Line:
There may be a fine line between proprietary activity and regulation.
Even when procuring contracts, a government may be acting in a
regulatory capacity if it sweeps too broadly. See Wisconsin Department
of Industry, Labor and Human Relations v. Gould, Inc., 106 S.Ct.
1057(1986) (Statute requiring debarment of contractors who had
multiple labor relations violations preempted by National Labor Relations
Act.)
STATE LAW
• C. Revenue Considerations.
we charge fees?
o 2.Can we tax?
o
1. Can
• Federal Law:
o A. Generally back to § 253 – subsection (a) versus subsection (c)
• most challenges address reoccurring fees such as annual licensing
fee, rather than one-time start-up fees
• Unknown: reoccurring fees for non-municipal property
o 1. subsection (a) is the barrier to entry provision
o 2. subsection (c) is the safe harbor? Qwest Communications Inc. v. City of
Berkeley, 433 F.3d 1253, 1256 (9th Cir. 2006) (overruled on other grounds
by Sprint Telephony)
STATE LAW
• (c) State and local government authority
o Nothing in this section affects the authority of a State
or local government to manage the public rights-ofway or to require fair and reasonable compensation
from telecommunications providers, on a
competitively neutral and nondiscriminatory basis, for
use of public rights-of-way on a nondiscriminatory
basis, if the compensation required is publicly
disclosed by such government
Note: Does § 253(c) provide a positive right for providers to use a
City/Town ROW?
Note: What is the scope of the municipal property interest being
used? Does your town’s easement or ROW live and breathe? Does
the municipality’s ROW, PUE, or other property interest allow for the
construction of WCF?
STATE LAW
• B.
What is Fair and Reasonable Compensation?
o 1. Some Courts have held that means cost recovery only
AT & T Communications of the Southwest, Inc. v. City of Dallas, 8 F.Supp.2d 582,
593 (N.D.Tex.1998); XO Missouri, Inc. v. City of Maryland Heights, 256 F.Supp.2d
987, 993 (E.D.Mo.,2003)
o 2. Most courts have held that compensation contemplates reasonable
profit
TCG Detroit v. City of Dearborn, 206 F.3d 618, 624 ( 6th Cir. 2000); Puerto Rico
Telephone Co., Inc. v. Municipality Of Guayanilla, 450 F.3d 9, 22 (1st Cir. 2006)
Ninth Circuit is kind of cloudy (probably allows revenue based): City of
Portland, Or. v. Electric Lightwave, Inc., 452 F.Supp.2d 1049, 1068 1075 (D.Or.,2005); Qwest Communications Inc. v. City of Berkeley, 433
F.3d 1253, 1257 (C.A.9 (Cal.),2006)
STATE LAW
Practice Tip: Does federal court have jurisdiction over
a § 253 challenge under Tax Injunction Act [Tab 6]
Note: Tax Savings Provision of the FTA (§ 602); see
Qwest Corp. v. City of Surprise, 434 F.3d 1176, 1179 (9th
Cir. 2006)
U.S. West v. Tucson (fee charged to
telecommunications provider for use of right of way
which was based on percentage of gross income =
TPT) [Tab 7]
(Does your Municipality have a limit on TPT?)
Example Charter Provision: The council shall have the
power to levy a transaction privilege tax provided that no
such tax levy computed or measured on the gross receipts,
gross income or gross proceeds of sales of the taxpayer
without deduction for cost of goods, or property or services
sold or other costs shall be levied at a rate in excess of one
percent of such gross receipts, gross income or gross
proceeds of any such taxpayer unless such rate is
approved by a majority of the qualified electors of the city,
voting on the question whether such a rate should be
approved at a general or special election wherein such
question has been submitted.