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January 8, 2014 Webinar Co-sponsored by AWC and AT&T Presenter: Shane Hope, City of Mountlake Terrace Wireless Telecommunication Facilities: Preparing for the Coming Wave Slide 2 Presentation Focus 2 Federal & state regulations Suggestions to consider for updating local regulations Slide 3 Recent Federal and State regulations Wireless Telecommunication Facilities 3 Slide 4 Background 4 Local governments have interest in: Community livability Consumer protection & property rights Economic vitality Public property & public right of way Emergency services Local governments generally have authority to make local zoning decisions & set permitting processes Some exceptions Slide 5 Telecommunications Act of 1996 5 First major overhaul of federal telecommunications law in 60 years Refined & added to the older Pole Attachment Act First time internet was included in broadcasting & spectrum allotment Provided deregulation of converging broadcasting & telecommunications markets Limited regulatory barriers to establishing telecommunication facilities Slide 6 FCCs Declaratory Ruling of 2009 6 Wireless facility applications (except collocations) must be decided within 150 days of application being filed Collocations of wireless facilities must be decided within 90 days of application filing Collocation includes any existing building, whether or not it has existing wireless facility Tower collocation is limited to changes that do not involve substantial increase in the size of a tower as defined in Nationwide Programmatic Agreement for Collocation of Wireless Antennas Slide 7 Nationwide Programmatic Agreement for Collocation of Wireless Antennas 7 Defines substantial increase in the size of the tower to mean: Increase of existing tower height by more than 10% or by height of 1 additional antenna array with separation from nearest existing antenna not to exceed 20 ft (whichever is greater), except proposed antenna may exceed above size limits if necessary to avoid interference with existing antennas; or Mounting of proposed antenna would involve installation of more than standard number of new equipment cabinets for technology involved, not to exceed four (4), or more than one (1) new equipment shelter; or Mounting of proposed antenna would involve adding appurtenance to body of tower that would protrude more than 20 ft from tower edge, or more than width of tower structure at level of appurtenance (whichever is greater), except that proposed antenna may exceed above size limits if necessary to shelter antenna from inclement weather or to connect antenna to tower via cable; or Mounting of proposed antenna would involve excavation outside current tower site, defined as current boundaries of the leased or owned property surrounding the tower & any access or utility easements currently related to the site. Slide 8 FCCs Declaratory Ruling of 2009 8 Local governments may rebut FCC presumption for 90/150 days as threshold of reasonableness on particular case when drawn into court Shot clock may be extended reasonable length of time if applicant & municipality agree If local government notifies applicant within 30 days of filing that application is incomplete, shot clock stops until application is complete Slide 9 FCCs Declaratory Ruling of 2009 9 State & local rules with longer clock (or no clocks) are preempted by FCC shot clock State & local rules with shorter clocks continue to apply under state law but FFC shot clock controls when applicant can take case to federal court Prohibition of service determinations must be based on individual carriers issues; presence of another carriers service is no defense for denial Denial must be based on substantial evidence contained in written record Slide 10 Court Challenge to FCCs Declaratory Ruling of 2009 10 Two Texas cities challenged FCCs Ruling Supreme Court, in May 2013, upheld key parts of FCCs Ruling While decision does not apply comprehensively, it has broad implications Key finding is for FCC authority to interpret aspects of law and establish shot clock Slide 11 Section 6409 of Middle Class Tax Relief & Job Creation Act of 2012 11 Mandates that state & local governments approve eligible facility requests for modifying existing wireless towers or base stations if modifications would not substantially change tower or base stations physical dimensions Eligible facility request means any request involving: Collocation of new transmission equipment Removal of transmission equipment Replacement of transmission equipment Notes about Section 6409: Preempts aspects of local authority & discretion: Does not preclude local review of proposals but generally precludes conditional processes & denials of eligible facility requests Specifically does not relieve requirements of NHPA or NEPA Slide 12 New FCC Rules Proposal 12 FCCs Notice of Proposed Rulemakingpublished December 5, 2013 in Federal Register To expedite permitting of wireless facilities & further implement Telecommunications Act of 1996 February 3, 2014 due date for comments March 5, 2014 due date for FCC response Slide 13 Issues Behind FCC Proposed Rules 13 1. Expediting environmental review process related to newer technology & structure types 2. Possible narrow exemption from FCC pre-construction environmental notification requirements for certain temporary towers 3. Clarification of requirement from Section 6409 (Middle Class Tax Relief and Job Creation Act of 2012) regarding state & local government authority 4. Whether/how to address disputes/questions from FCCs 2009 Declaratory Ruling Slide 14 Some Questions that May Be Decided by Next FCC Rules 14 What constitutes a base station? How to interpret modification of tower or base station? What does existing mean? Should the standard for substantial change be different for towers vs. buildings or utility poles? Can local governments require stealth (camouflage) conditions? Should federal rules further restrict local permitting processes? Slide 15 FCC proposed rules 15 Local governments should review & consider commenting on FCCs proposed rules by February 3, 2014 See FCC website: http://www.fcc.gov/document/fcc- proposes-remove-barriers-wireless- infrastructure-0 Slide 16 State Environmental Policy (SEPA): 2013 Updates 16 Dept. of Ecology adopted SEPA rules update (WAC 197-11- 800(25)) that made: Personal wireless service facilities* a categorical exemption. Applies to: Microcells* attached to an existing structure (other than a residence or school) Other personal wireless service antennas attached to an existing structure (other than a residence or school) Construction of a wireless service tower less than 60 tall if located in a commercial, industrial, forest, or agricultural zone Slide 17 SEPA Rules Definitions 17 Personal wireless services means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services (as defined by federal law) Microcell means wireless communication facility consisting of antenna that is either: Up to 4 ft high & with area not more than 580 square inches OR If a tubular antenna, no more than 4 inches in diameter & no more than 6 ft in length Note: Exemption does not apply to projects within a GMA critical area Slide 18 2013 SEPA Legislation 18 HB 1183 amended RC2 43.21C.0384 to exempt the following except when located in a designated critical area: Collocation of new equipment, removal of equipment, or replacement of existing equipment on existing or replacement structures that does not substantially change structures physical dimensions* Construction of wireless service tower less than 60 feet tall when located in commercial, industrial, manufacturing, forest, or agricultural zone Slide 19 HB 1183- SEPA Legislation 19 Definition from HB 1183: Substantially change the physical dimensions means: A. Mounting of equipment on structure that would increase height of structure by more than 10% or 20 ft, whichever is greater; or B. Mounting of equipment that would involve adding appurtenance to body of structure that would protrude from edge of structure more than 20 feet, or more than width of structure at level of appurtenance, whichever is greater. NOTE: Ecology plans to amend SEPA rules in next rulemaking phase to include HB 1183 provisions. Slide 20 Suggestions to consider for updating local regulations Wireless Telecommunication Facilities 20 Slide 21 How long has it been? Do current local regulations 21 Include FCC shot clock requirements? Address SEPA exemptions for wireless facilities? Define collocation for SEPA exemption purposes, consistent with new SEPA legislation? Provide application submittal criteria, consistent with current laws? Streamline review for collocations? Meet todays needs & issues? Slide 22 If proposing update to local regulations 22 Draft code that: Provides clear process for considering telecommunication facilities Recognizes evolving technologies Such as DAS & small cell Makes collocation easy option (generally) Is consistent with federal & state requirements With consideration for upcoming FCC rules Slide 23 Some Resources 23 Municipal Research & Services Center (MRSC) of Washington: www.Mrsc.org/Subjects Best Best & Kreiger LLP website: http://www.bbklaw.com/ ?t=40&an=27137&format =xml http://www.bbklaw.com/ ?t=40&an=27137&format =xml Slide 24 Every community needs a sense of place Every cell phone needs wireless transmission 24