Distributed Antenna Systems Are Public Utilities Under PA Law
The Pennsylvania Supreme Court delivered its long awaited opinion in the case of Crown Castle NG East LLC v. Public Utility Commission, 2 MAP 2019 on July 21, 2020 which involves the status of Distributed Antenna Systems.
Distributed antennae systems (DAS) are wireless facilities that are also often referred to as mini-cell towers. Simply put, DAS facilities use small antenna and a hub to relay and amplify cellular and data signals. The antenna are often placed in public rights-of-way on lampposts, street lights and telephone poles and are designed as a system of mini-towers “distributed” throughout the coverage area.
From 2005 until 2015, the Pennsylvania Public Utility Commission issued Certificates of Public Convenience to DAS providers and operators. This Certificate of Public Convenience provided DAS operators and providers with exemption from local zoning ordinances and also the power of eminent domain. A Certificate of Public Convenience pre-empts virtually all local control over the siting of mini-cell towers. In 2015, the Commission decided to review this practice to determine whether DAS operators and providers actually meet the definition of a “public utility”. If they do not meet that definition, then DAS operators and providers are not entitled to Certificates of Public Convenience. The Commission ultimately determined that providers and operators of DAS do not meet the definition of a “public utility” and, therefore are not entitled to obtain Certificates of Public Convenience. Review of Issues Relating to Commission Certification of Distributed Antennae System Providers in Pennsylvania, Pennsylvania Public Utility Commission Docket No. M-2016-2517831.
The Decision of the Public Utility Commission was appealed to the Pennsylvania Commonwealth Court. Crown Castle NG East LLC and Pennsylvania-CLE LLC v. Pennsylvania Public Utility Commission, 697 CD 2017. The Commonwealth Court reversed the PUC and found that DAS providers were not exempt from PUC regulation and could continue to seek Certificates of Public Convenience.
On appeal, the Supreme Court upheld the Commonwealth Court’s decision holding that because the statute was not ambiguous, no deference was required to be given to the PUC’s interpretation of the same.
The bottom line, DAS providers meet the definition of a “public utility” and are entitled to seek Certificates of Public Convenience. Once issued a Certificate of Public Convenience, DAS providers have access to public utility poles, public rights of way, exemptions from local zoning codes and the right to exercise the power of eminent domain. The Decision opens the door for
This article is not legal advice and is provided for informational purposes only. Actual legal advice can only be provided after consultation by an attorney licensed in your jurisdiction.
