Regulation of Distributed Antennae 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.
There are currently a number of federal laws and regulations that govern a municipality’s authority to regulate these wireless facilities. In 2009, the FCC’s Shot Clock Ruling provided specific time limits for the review of zoning requests for wireless towers. The time period for an initial zoning decision for collocation requests is 90 days and 150 days for new towers. In 2012, the Spectrum Act stated that State and local governments cannot deny and in fact must approve any request for modification of an existing wireless tower or base station that does not substantially change the physical dimensions of the tower or base station. This requirement includes collocation, removal or replacement of transmission equipment. The Federal Communications Commission issued the Wireless Infrastructure Order which implemented the Spectrum Act and extended zoning privileges to DAS facilities. This Order also imposed time limits for the review of DAS facilities, 60 days for site modification and 90 days for a new installation. If a municipality does not meet these time limits, the applications are deemed granted unless both parties mutually agree to an extension of time.
Pennsylvania has adopted the Wireless Broadband Collocation Act that expands the federal laws. Under the Act, applications for replacement, collocation or modification of wireless telecommunications facilities or wireless support structures cannot be subject to the issuance of new zoning or land use approvals or reviews beyond the initial zoning or land use approval issued for the previously approved wireless support structure or wireless telecommunications facility. In addition, replacement of wireless telecommunications facilities on existing wireless support structures or within existing equipment compounds can be accomplished without obtaining building or zoning permits. The Act also imposes a 90 day time frame for the review of applications for modifications or collocations of a wireless telecommunications facility or the application is deemed approved.
Public Utility Status
For approximately the last 10 years, the Pennsylvania Public Utility Commission has 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. Earlier this year 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 is currently on appeal to the Pennsylvania Commonwealth Court. Oral argument has been tentatively scheduled for February 2018. Crown Castle NG East LLC and Pennsylvania-CLE LLC v. Pennsylvania Public Utility Commission, 697 CD 2017. The PUC’s determination revoked certain Certificates of Public Convenience, including Crown Castle’s. The Commonwealth stayed that revocation until it decides the case.
Following the issuance of the PUC Decision, a Bill was introduced in the Pennsylvania House to address DAS and small wireless facilities in public rights of way. House Bill 1620 gives wireless providers the right, as a permitted use, not subject to zoning review or approval, to collocate wireless facilities and to construct, modify, maintain and operate utility poles, wireless support structures, conduits, cables and related appurtenances and facilities: in any public right of way in any zoning district and along, across, upon and under the ROW It also permits such facilities outside the right of way on property not zoned exclusively for single-family residential use. This Bill included the following representatives from our area: Dick Miccarelli, Frank Farry, Gene DiGirolamo and Thomas Murt.
The Bill : limits the amount of fees that the municipality can charge for the use of the rights of way; prohibits a municipality from requiring security to ensure that abandoned or unused facilities can be removed unless the municipality imposes similar requirements on other permits for other types of commercial development or land uses and even then, the maximum amount is $25,000; prohibits a municipality from requiring a wireless provider to indemnify and hold the municipality harmless; prohibits a municipality from requiring a wireless provider to name the municipality as an additional insured; and provides that if a third party vendor contracted by a municipality to assist with the drafting of a new ordinance or modification of an existing ordinance enacted by the municipality that violates any provision of this act or Federal Law shall be subject to a fine not to exceed $10,000 per violation. (Some believe this provision is directed toward Dan Cohen, Esquire, who is representing Municipalities in the Crown Castle Appeal.)
House Bill 1620 was referred to the Consumer Affairs Committee in June 2017 and no further action has been taken. Supervisors and other elected representatives concerned over the draconian restrictions this bill would enact should contact their elected representatives in the legislature.
Currently pending in Doylestown Borough, is a Zoning Hearing Board case brought on behalf of Crown Castle NG East LLC for the installation of 42 mini-cell towers throughout the Borough as a “Distributed Antenna System”. One of the claims in this case, is that the mini-cell towers are part of a system and therefore all component parts have to be approved. Crown Castle is arguing that all of the mini-cell towers are a single use and should be approved as such. Crown Castle has admitted, as a part of the hearings, that these mini-towers will provide greater coverage than current industry standards for operation of such systems.
The outcome of the Commonwealth Court Crown Castle case, the Doylestown Borough Zoning Hearing Board appeal and action on HB 1620 will have a substantial impact, beyond current federal and state law, on a municipality’s ability to regulate these mini-cell towers in the future. Municipalities wishing to develop a strategy for addressing the telecommunications industry’s push to limit local involvement in DAS decisions should consult their Solicitors. Our office would be glad to offer our assistance as well.
Terry W. Clemons, Esquire contributed to this article