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In December 2019, the FCC finally took action in its open docket on radiofrequency (RF) exposure (RFE), adopting a Resolution of Notice of Inquiry, Second Report and Order, Notice of Proposed Rulemaking, and Memorandum Opinion and Order. Therein, the FCC addressed many issues which had been pending since 2013 when the FCC issued a First Report and Order, Further Notice of Proposed Rulemaking, and Notice of Inquiry, each addressing various issues related to RFE. (See blog entries dated February 8, February 22, and March 1, 2018, for information regarding the 2013 FCC actions.)

Radiofrequency Exposure Limits Unchanged

In the matter of greatest interest to the public, the FCC determined in its Resolution of Notice of Inquiry that no changes should be made to its existing RF exposure limits, which have been in place since their adoption by the FCC in 1996. The FCC stated, “we believe they reflect the best available information concerning safe levels of RF exposure for workers and members of the general public…” In so deciding, the FCC relied heavily on input from other federal agencies charged with regulating safety and health and “the lack of data in the record to support modifying our existing exposure limits.”

The current FCC limits differentiate between general public and occupational/controlled exposure limits. The latter apply to personnel with expertise and training regarding RF exposure safety, and their exposure levels are higher than for the general public.

In other actions related to the 2013 Notice of Inquiry, the FCC declined to revisit its RF exposure evaluation procedures for consumer portable devices, especially phones; declined to revisit its RF exposure policy as it pertains to children; and said it will continue to ensure that relevant information is made available to the public.

Changes to Application of the Limits

The FCC resolved the 2013 Further Notice of Proposed Rulemaking issues in its Second Report and Order, which has three main parts:

     A. Identifying broad criteria that apply to single and multiple RF sources                        based on power, distance, and frequency, irrespective of service                                    classifications

    B.  Clarifying the calculation or measurement methodologies to be used                         in cases where no exemptions apply to determine potential RF                                     exposure levels

    C. Addressing post-evaluation mitigation procedures like access, signage,                      and training to ensure that both the general public and trained                                    personnel are not exposed to RF emissions in excess of FCC limits

Under A, the FCC adopts three broad classes of exemptions:

  1. For extremely low-power devices that transmit at no more than 1 mW
  2. For somewhat higher-power devices with transmitting antennas that operate within 40 cm of the body, a formula based primarily on the localized specific absorption rate (SAR) limits derived from the frequency, power, and separation distance of an RF source
  3. For all other transmitters based on a set of formulas for the maximum permissible exposure (MPE) limits in five frequency bands

For each of those three classes, the FCC provides for both the single-transmitter and multiple transmitter cases. The multiple transmitter methodologies involve some complex formulas, which do not lend themselves to summarization here, but about which we are available to provide additional information.

Under B, the FCC states that for fixed RF sources that do not qualify for an exemption, a “determination of compliance” must be performed to ensure that RF exposure limits are not exceeded in places that are accessible to people. The FCC removes from its rules specific acceptable approaches for evaluating an RF environment and “will instead allow any valid computational method to be used in demonstrating compliance with [its] RF exposure limits.” The FCC adds that to ensure validity, computational modeling must “be supported by adequate documentation showing that the numerical method as implemented in the computational software has been fully validated.”

Under C, The FCC states that “the purpose of mitigation is to take the appropriate steps to keep persons out of [space where the RF exposure limits are exceeded].” and that mitigation measures include “labels, signs, markings, barriers, positive access controls, and occupational training.”

Signage

The new FCC rules will require licensees and operators of fixed RF sources to use signs when a single or multiple RF sources in an area create locations where exposure is above the limit for the general public; however, “indicators” such as chains, railing, paint, and diagrams may alternatively be used, “particularly in situations where positive access controls are in place to effectively restrict access only to persons who are trained…”

The FCC adopted four categories of signage:

  1. “INFORMATION” where RF exposure is less than the General Population limit
  2. “NOTICE” where RF exposure is above the General Population limit but below the Occupational limit
  3. “CAUTION” where RF exposure is between one and ten times the Occupational limit
  4. “WARNING” where the RF exposure is greater than ten times the Occupational limit.

Regardless of category, “DANGER” signs are required anywhere immediate and serious injury would occur on contact. Note that Category 1 signs are optional and voluntary.

Signs for all four categories must include an RF energy advisory symbol, a description of the RF source, a statement of the behavior necessary to avoid over-exposure, and up-to-date contact information for someone with authority and capability to provide a prompt response.

Category 2 areas not only require the NOTICE signs, but also require positive access controls. Category 3 areas require the CAUTION signs, positive access controls, and controls or indicators such as chains, railings, contrasting paint, or diagrams surrounding the area. Category 4 requires the same protections as Category 3 with this important FCC proviso: the only apparently adequate mitigation measure within the Category 4 area is power reduction that will bring exposure within the occupational limits. The FCC adds that accurate placement of signs is critical and should make clear both where limits are and are not exceeded. For “readability” requirements for signs, the FCC relies on the Occupational Safety and Health Administration (OSHA) requirements for accident prevention signage.

Training

For application of the occupational/controlled limits, the FCC states that training is critical to ensure that exposed persons are aware of the potential for exposure and can exercise control over it. The FCC acknowledges, however, that it is difficult to prescribe clearly what constitutes appropriate training. Therefore, the FCC’s Office of Engineering and Technology (OET) is directed to coordinate with OSHA and provide guidance thereon as soon as practicable in a revised OET Bulletin 65.

Responding to concerns about licensee responsibility for mitigation at sites not completely under a licensee’s control, the FCC declined to establish a safe harbor from actions or events beyond the licensee’s control. Instead, the FCC decided that a licensee’s due diligence in ensuring compliance with the RF exposure requirements considering the totality of measures taken will be the test for a safe harbor. The FCC states that “responsibility for maintenance of the conditions that permit a siting within our rules can be an enforceable condition of a [site] lease.”

Where there are multiple licensees at a site, all licensees are responsible for compliance with the FCC RF exposure limits. However, if a licensee can demonstrate that its facility was compliant and did not cause non-compliance, it will not be liable in an enforcement proceeding.

To ease the transition to the new rules, the FCC establishes a two-year transition period from the effective date of the new rules to allow licensees and manufacturers the opportunity to determine whether they meet the criteria for exemption. The FCC also provides that equipment authorized prior to the effective date of the Second R&O can continue to be marketed and used under their existing authorization so long as parties deploying such equipment ensure that equipment is installed consistently with the information in the installation manual or user instructions.

Notice of Proposed Rulemaking (NPRM)

The FCC initiated a new NPRM to address the challenges of evolving technology. It proposes to expand the range of frequencies for which the RF exposure limits apply (currently 100kHz to 100 GHz) to a new upper limit of 3000 GHz; to reduce the spatial averaging area of the human body from the current 20 cm² to 1 cm² for higher frequencies; to establish a new “device-based time-averaging” and seeks comments on whether and how to apply it to ensure compliance with the RF exposure rules; to address wireless power transfer devices, which can operate at very high power; and how to regulate to ensure that RF energy therefrom does not exceed FCC exposure limits or create harmful interference to other services.

Memorandum Opinion and Order (MO&O)

In the MO&O part of this decision, the FCC disposed of issues resolved in its 2013 decisions that were the subject of petitions for reconsideration. No changes were made to those decisions on reconsideration.

This area of FCC regulation is important and complex. Radiofrequency exposure limits and mitigation requirements are an area of special expertise at Keller and Heckman LLP. With our wide-ranging and extensive experience in the areas of telecommunications and health and safety, we stand ready to assist you with any questions or concerns about these regulatory requirements. Please feel free to contact the author at Fitch@khlaw.com.

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Roughly every four years, representatives of most of the 190+ member countries of the International Telecommunication Union (ITU) meet for four weeks at a World Radiocommunication Conference (WRC) to consider changes to the allocations and regulations governing the international use of spectrum. The ITU is the United Nations (UN) specialized agency for information and communications technologies. WRCs are international treaty-writing conferences at which new or modified spectrum allocations and regulations are adopted and are critically important to the United States and other nations driving wireless telecommunications technology and development. WRC-19 was held from Oct. 28-Nov. 22, 2019 in Sharm el-Sheikh, Egypt.

The ITU summarized the major accomplishments at WRC-19 in an understandably positive light:

  • International Mobile Telecommunications [5G mobile] – Additional spectrum was identified in the 24.25-27.5 GHz, 37-43.5 GHz, 45.5-47 GHz, 47.2-48.2 and 66-71 GHz bands, facilitating the development of Fifth Generation (5G) mobile networks.
  • Earth exploration-satellite (EESS) service – Protection was accorded to EESS with the possibility of providing worldwide primary allocation in the frequency band 22.55-23.15 GHz in order to allow its use for satellite tracking, telemetry, and control.
  • Non-Geostationary Satellites – Regulatory procedures were established for non-geostationary satellite constellations in the fixed-satellite service, opening the skies to next-generation communication capabilities. Mega-constellations consisting of hundreds to thousands of satellites in low-Earth orbit are becoming a popular solution for global telecommunications, as well as remote sensing, space, and upper atmosphere research, meteorology, astronomy, technology demonstration, and education.
  • High-altitude platform stations (HAPS) – Additional frequency bands were identified for High Altitude Platform Systems (radios on aerial platforms in the stratosphere) to facilitate telecommunications within a wide coverage area below for affordable broadband access in rural and remote areas.
  • WiFi Networks – Regulatory provisions were revised to accommodate both indoor and outdoor usage and the growth in demand for wireless access systems, including RLANs for end-user radio connections to public or private core networks while limiting their interference into existing satellite networks.
  • Railway radiocommunication systems between train and trackside (RSTT) – A Resolution was approved on railway radiocommunication systems to facilitate the deployment of railway train and trackside systems to meet the needs of a high-speed railway environment, particularly for applications supporting improved railway traffic control, passenger safety, and security for train operations.
  • Intelligent Transport Systems (ITS) – A Recommendation was approved to integrate Information and Communication Technologies in evolving ITS to connect vehicles, improve traffic management, and facilitate safer driving.
  • Broadcasting-satellite service (BSS) – Protection of frequency assignments providing a priority mechanism for developing countries to regain access to spectrum orbit resources.
  • Global Maritime Distress and Safety System (GMDSS) – GMDSS coverage was expanded.
  • Earth stations in motion (ESIM) – A decision on ESIMs will support and facilitate communications between planes, ships, and trains and satellites.
  • Regulatory changes were introduced to facilitate rational, efficient and economical use of radio frequencies and associated orbits, including the geostationary-satellite orbit.

The U.S. Department of State statement on the results of WRC-19 focused on actions tied to domestic wireless policy priorities:

Agreements reached at WRC-19 will help pave the way for the global harmonization of 5G, and the development of an ecosystem of applications and services that will fuel the growth of the digital economy for years to come. WRC-19 successfully identified over 15 GHz of globally harmonized millimeter wave spectrum for 5G, plus additional spectrum for 5G on a regional or country basis.

These decisions reinforce U.S. leadership in 5G, with successful outcomes in the 26 GHz, 40 GHz, and 47 GHz bands all aligning with actions already taken by the United States in its own aggressive 5G spectrum rollout. With this groundwork set, the world can now benefit from global roaming and economies of scale while permitting flexibility in 5G deployment.

WRC-19 also advanced a forward-looking framework for 5G and satellite services, including critical passive weather systems, to coexist without limiting the opportunities and benefits of 5G and incumbent services. The Conference reached consensus on additional agenda items covering a range of new technologies and services, from enabling our commercial space sector through growth of next-generation non-geosynchronous orbit satellite constellations to innovative infrastructure platforms that keep us connected in the air and at sea.

Commissioner O’Reilly’s Take on WRC-19. On December 5, 2019, FCC Commissioner Michael O’Rielly testified before the Subcommittee on Communications and Technology of the House of Representatives Committee on Energy and Commerce. Commissioner O’Rielly offered an appraisal that WRC-19 “achieved some of [the U.S.] objectives in various, muddled forms.” He raised “some fundamental concerns that ultimately call into question the continued value of future conferences.” These included his view that some national delegations—Russia for one—opposed the interests of the U.S. and other forward-thinking nations for what appeared to be “larger geo-political purposes and to protect domestic industries from competition from U.S.-based companies.” He also cited China and France as “unreasonably obstinate” and going “far beyond normal negotiation strategy…”

In his testimony, Commissioner O’Reilly raised alternatives to the ITU WRC process if needed to protect U.S. interests, including the U.S. and Japan (the two largest funders of the ITU). These included forcing change, or even cutting off their funding, or exploration of a “G7-like” organization or a “loose coalition of leading wireless nations as an alternative to the ITU.” Any of those actions would be a drastic change to the current structure and process, but there are institutional reasons for the difficulties and frustration cited by Commissioner O’Reilly.

A threshold challenge for the U.S. is the process for developing positions on many issues for each WRC. Government agencies and the private sector undertake extensive discussions to develop the U.S. positions; the process consumes a good part of the four-year interval between the WRCs. Once U.S. national positions are developed, they are then coordinated with other nations to achieve broader support consistent with U.S. interests prior to the WRC.

WRC Institutional Challenges. Like most UN organizations, the ITU makes decisions on spectrum, regulatory rules, and standards using a one nation one vote system unless there is consensus. Each ITU member country can select the level of dues it pays to support the ITU. Even though the U.S. and Japan pay the highest dues of ITU member countries, their votes have the same weight as other member countries which contribute a much lower percentage of the funds needed to support the ITU.

Another institutional issue is divergent priorities and interests among various member countries. When cutting edge technology matters are at issue, many ITU member countries view implementation as too far removed from their present-day realities of wireless communications and have less stake in how future technology-related matters are resolved. The ITU works hard to ensure that developing countries receive benefits from the international system to make them stakeholders in technological progress. Otherwise, they could stay out of the decision-making process or even hold the process hostage.

In addition to this divergence of interests, the U.S. faces some significant disadvantages in successfully building alliances under the governance structure of the ITU.

For purposes of radiocommunications, the ITU divides the world into three regions:

  • Region 1: Europe, Africa, the former Soviet Union, Mongolia, and some of the Middle East
  • Region 2: the Americas including Greenland, and some Pacific Islands
  • Region 3: most of Asia and Oceania

The United States is in Region 2, which has far fewer ITU member countries than Regions 1 or 3.

The ITU also divides the world into five Administrative Regions:

  • A: the Americas (35 ITU member countries)
  • B: Western Europe (33 ITU member countries)
  • C: Eastern Europe and Northern Asia (21 ITU member countries)
  • D: Africa (56 ITU member countries)
  • E: Asia and Australia (50 ITU member countries)

The number of countries in each of the regions is the basis for the distribution of important positions in the governance of the ITU such as the ITU Council and the International Radio Regulations Board.

Administrative Region A, which includes the U.S. has far fewer ITU member countries than Regions D and E. Europe includes parts of both Regions B and C, so it has a numerical advantage demonstrated by the fact that European positions for WRCs are usually prepared in the European Conference of Postal and Telecommunications Administrations (CEPT) process and there are 48 member nations of CEPT.

Thus, on a purely numerical basis, the U.S. is challenged to put together large coalitions to support its positions as compared to the number of voting members in other regional coalitions. The U.S. government understands this challenge and has done a much better job of achieving support in the Americas and beyond in recent years, but challenges persist when WRC participants have substantially different interests and priorities.

While a G7-type of body for spectrum issues sounds appealing for the U.S. in light of these institutional challenges, such change would require the U.S. and other leading nations in telecommunications to cast off over a century of reliance on the ITU and its radio conference process. There would be an inevitable political backlash from the other nations of the world, which would object to marginalization in this important decision-making process. Whatever the merits of a smaller decision-making body of more commonly interested nations, it does not seem a likely or realistic prospect, particularly when the WRC-19 results did not leave the U.S. or other major nations feeling that their interests were largely ignored or disregarded.

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Earlier this week, the FCC Fined CenturyLink $400,000 and West Safety Communications $175,000 for a multi-state 911 outage that occurred in August 2018. To resolve the dispute, both companies also entered into a Compliance Plan.

The outage stemmed from an inadvertent switch configuration change, which disrupted the delivery of 911 calls in nine states. The FCC calculated that the ensuing 65-minute outage resulted in more than 460,000 calls to 911 not being delivered.

The Order notes that the outage impacted only one of West Safety’s two routing facilities. Carriers that load-balanced their traffic between the two facilities were able to complete 911 calls during the outage. Carriers that did not load-balance their traffic were impacted.

Both companies are required to (i) develop operating procedures to ensure compliance with the 911 service rules; (ii) conduct employee training; and (iii) develop a compliance manual. In addition, the FCC requires both parties to file annual compliance reports, appoint a Compliance Officer to oversee the program, and report instances of material noncompliance uncovered in the next 3 years.

A previous blog post here describes some additional common components of a Compliance Plan.

The FCC fined the parties for the outage and for failing to deliver 911 calls to a PSAP. The Commission alleged this violates a rule that requires common carriers to transmit all 911 calls to a PSAP. Similar outages in the past have also resulted in fines for not complying with the FCC’s network outage reporting (NORS) rules, but the companies appear to have complied with the NORS rules – and resolved the outage within 65 minutes – so no NORS violation occurred.

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At its Open Meeting last week, the FCC approved a Declaratory Ruling that prevents state, local, and Tribal 911 entities from collecting higher 911 fees from VoIP subscribers than what these groups collect from subscribers of traditional telecommunications services. The FCC is promoting fee parity among services that provide end-users with the same 911 calling capability.

The final Ruling is not yet available, but it is not expected to differ much from the draft (available here) that was circulated by the FCC earlier this month.

Background. The FCC’s Ruling stems from a referral from the U.S. District Court for the Northern District of Alabama. The Ruling clarifies section 6(f)(1) of the New and Emerging Technologies 911 Improvement Act of 2008 (NET 911 Act). The NET 911 Act was passed to promote the transition of legacy 911 infrastructure to an IP-enabled emergency network. The Act also extends 911-related rights, protections, and obligations to VoIP providers. Section 6(f)(1) of the Act prohibits charging 911 fees to VoIP service subscribers in excess of fees paid by telecommunication service customers.

Alabama Litigation. Several years ago, four 911 Districts in Alabama sued BellSouth for allegedly underbilling certain 911 charges. The Districts alleged that BellSouth failed to bill and collect all required 911 charges. BellSouth argued that Alabama law conflicts with the NET 911 Act because it effectively resulted in higher 911 charges for VoIP services. The District Court granted BellSouth’s motion for a primary jurisdiction referral to the FCC, and the FCC subsequently issued a Declaratory Ruling on the matter.

Declaratory Ruling. In its ruling, the FCC confirmed that section 6(f)(1) prohibits non-federal governmental entities from imposing 911 fees or charges on VoIP services in any manner that would result in a subscriber to such VoIP services paying a higher total amount of 911 fees or charges than is imposed on a subscriber to traditional telecommunications services with the same 911 calling capacity. The Commission rejected an interpretation of section 6(f)(1) that would prohibit a fee discrepancy in the nominal fee itself, instead deciding that parity in the total amount of the fee is more appropriate considering the Act’s purpose. The Declaratory Ruling does not preempt any state law or regulation but provides guidance to courts on future 911 fee issues.

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The FCC’s CBRS band at 3.55-3.70 GHz took a big leap forward this month.

PAL Auction Date Proposed

On September 5, 2019, FCC Chairman Ajit Pai released a draft Public Notice that, once adopted, will seek comment on proposed procedures for Auction 105, the auction of 70 MHz of Priority Access Licenses (PALs) in the 3.5 GHz band.

Proposed to start June 25, 2020, Auction 105 will make available 22,631 PALs nationwide. The draft Public Notice proposes several procedural rules for the auction, including current bidding eligibility requirements, upfront payment amounts, and minimum opening bid amounts. The draft Public Notice also proposes to conduct Auction 105 as an ascending clock auction and to implement bidding caps. The Commission will likely finalize these procedures in late 2019 or early 2020.

GAA Goes Live

However, the bigger news came on September 16, 2019, when the FCC released a Public Notice stating that Google, Federated Wireless, CommScope, Amdocs, and Sony had passed testing on their Spectrum Access Systems (SASs) and were approved to commence initial commercial deployments (ICD). The approval (and SAS provider compliance with ministerial filing requirements) means that the General Authorized Access (GAA) tier of CBRS service is now available on a limited basis. The ICD period will last a minimum of 30 days, during which the FCC will evaluate SAS operations. Assuming no concerns, the FCC may approve full commercial nationwide GAA operations by the end of this year.

Evolution of the 3.5 GHz Band

This is a big step forward for the 3.5 GHz band. Prior to 2015, the 3.55-3.65 GHz portion of the band was mainly allocated for use by Department of Defense radar systems. However, the FCC realized that the band’s physical characteristics make it especially well-suited for mobile broadband that uses small cell technology (e.g., 5G) and adopted rules aimed at opening it for non-federal use by establishing the Citizens Broadcast Radio Service (CBRS), as well as a three-tiered access and authorization framework.

The CBRS is a relatively novel spectrum management concept. Under its framework, third-party Spectrum Access System (SAS) managers will coordinate three tiers of users by automatically managing and assigning spectrum in near real-time. The goal is to provide more intensive use of the band than is available with manual coordination, while also mitigating interference between the tiers of users. There will be a high level of interest in seeing how well it works. If successful, the model may repeat itself across other bands as the FCC tries to squeeze as much capacity as possible from existing spectrum resources.

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Earlier this month, the FCC released a Report and Order that implements the direct dialing and notification requirements of Kari’s Law and adopted rules requiring a dispatchable location to be conveyed with 911 calls from certain Multi-Line Telephone Systems (MLTS), pursuant to RAY BAUM’s Act.

These rules will take effect over the next few years and will apply to MLTS systems owned and operated by a wide range of industries, from large industrial companies to hotels, Fortune 100 companies to small startups. The Commission interpreted the definition of “MLTS” as broadly as possible to include IP-based telephone systems, VoIP, and outbound-only calling systems, among others.

Kari’s Law

Kari’s Law applies to manufacturers, sellers, and operators of MLTS equipment, and consists of two main provisions: direct dialing and notification.

The direct dialing provision requires all MLTS systems manufactured, imported, offered for first sale or lease, first sold or leased, or installed after February 16, 2020 to be pre-configured so that a user may directly dial 911 without having to dial a prefix (e.g. the number “9”) to reach an outside line.

The notification provision mandates that all such MLTS systems must be configured to provide a notification to a central location, such as a front desk or security office, when a 911 call is made, as long as it can be done without an improvement to the hardware or software of the system. This notification can be provided to a location at the facility where the system is installed, or to another person or organization offsite.

RAY BAUM’s Act

RAY BAUM’s Act generally requires MLTS and other 911-capable services to convey a dispatchable location to Public Safety Answering Points (PSAP) when 911 calls are placed. A “dispatchable location” is the street address of the calling party, and any additional information necessary to adequately identify the location of the calling party (e.g. office number, suite number, room number, etc.). These obligations apply to the same entities subject to the direct dialing and notification requirements of Kari’s Law, excluding legacy services because they are forward-looking.

In line with the Commission’s goal of providing first responders with the dispatchable location of an emergency caller regardless of how the caller reaches 911, the adopted rules apply to several different technologies. These technologies include fixed and non-fixed MLTS devices, fixed telephony systems, and Voice over Internet Protocol (VoIP) systems.

Providers of fixed devices and services must automatically deliver a dispatchable location with any 911 calls originating from their equipment, while providers of non-fixed devices and services must do so when it is technically feasible. Providers of non-fixed VoIP and outbound-only VoIP systems have the additional option of providing alternative location information when delivering a dispatchable location is not feasible.

For more information, please contact Wes Wright, Keller and Heckman LLP, 1001 G Street NW, Washington, DC 20001; 202-434-4239; e-mail: wright@khlaw.com.

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Here is the final entry of a three-part series of articles outlining the key provisions of new state legislation regarding the deployment of wireless small cell equipment in public right-of-way (ROW). Each of the three-part series addresses newly enacted legislation. The first two articles in the series featured Nebraska and Wisconsin. Today’s article features Maine and Connecticut.

Background

Over the last few years, the wireless industry has actively pursued state legislation enacted to constrain the broad authority of local governments over the deployment of wireless small cell equipment in public ROW. Connecticut, Maine, Nebraska and Wisconsin have now joined Arizona, Arkansas, Colorado, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, New Mexico, North Carolina, Ohio, Oklahoma, Rhode Island, Tennessee, Texas, Utah, Virginia, and West Virginia to bring the list of states which have enacted legislation to facilitate the deployment of wireless small cells to 28.

These state laws typically limit the authority of local governments to decide where wireless small cell equipment can be installed in the ROW; limit the time for action on applications to install small cell equipment; and limit the amounts that can be charged for applications and use of the ROW.

Today’s blog post will focus on Maine and Connecticut, which took a very different approach from those of Nebraska and Wisconsin.

Maine

This brief new law provides:

With regard to small wireless facilities:

  • Notwithstanding any zoning or land use ordinance to the contrary, a the facility must be a permitted use within the public right-of-way, subject to permitting requirements and duly adopted, nondiscriminatory conditions otherwise applicable to permitted uses within the municipality and consistent with state and federal law, including, without limitation, any permitting requirements in Title 35-A, Chapter 25.
  • The rights and responsibilities of a cable television company under franchise agreement executed pursuant to Section 3008, Subsection 5 are not affected or altered.

Connecticut

 This law establishes a Council on 5G Technology and tasks it with:

  • Reviewing wireless carriers’ requests to place personal wireless service facilities and small wireless facilities, as defined in federal law, on state-owned real property.
  • Determining which state-owned properties may be made available to the wireless carriers for these facilities.

The law requires the Council to:

  • Adopt guidelines for safely placing personal wireless service facilities and protecting open space land.
  • Perform due diligence and review comments from any entities that own property within a 500-foot radius of any state-owned real property under the council’s review.

The law requires the state Office of Policy and Management to:

  • Jointly develop, with certain other state agencies, licensing agreements, forms, and fee structures for placing the wireless facilities on state owned property, noting that the law does not supersede existing rules and requirements regarding the review and approval of permits for proposed personal wireless service facilities under the Public Utilities Regulatory Authority’s (PURA) and the Connecticut Siting Council’s jurisdiction.
  • In consultation with PURA and the Siting Council, to work with municipalities to establish a process for siting small wireless facilities on municipal property and, when using utility or light poles is insufficient, private property with the property owner’s permission.

Many of the state laws that have been enacted have provisions that are similar to, draw from, or incorporate by reference FCC actions regarding wireless small cell facilities. However, each state law is unique and must be read fully and carefully to determine its detailed provisions and impacts.

For more information about any of these state laws, please contact Michael Fitch, Keller and Heckman Senior Counsel, (fitch@khlaw.com; 202-434-4264)

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Here is the second of a three-part series of articles outlining the key provisions of new state legislation regarding the deployment of wireless small cell equipment in public right-of-way (ROW). Each of the three-part series addresses newly enacted legislation. The first part of the series featured Nebraska. Today’s article features Wisconsin and the final article in the series will feature Maine and Connecticut.

Background

Over the last few years, the wireless industry has actively pursued state legislation enacted to constrain the broad authority of local governments over the deployment of wireless small cell equipment in public ROW. Connecticut, Maine, Nebraska and Wisconsin have now joined Arizona, Arkansas, Colorado, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, New Mexico, North Carolina, Ohio, Oklahoma, Rhode Island, Tennessee, Texas, Utah, Virginia, and West Virginia to bring the list of states which have enacted legislation to facilitate the deployment of wireless small cells to 28.

These state laws typically limit the authority of local governments to decide where wireless small cell equipment can be installed in the ROW; limit the time for action on applications to install small cell equipment; and limit the amounts that can be charged for applications and use of the ROW.

Today’s blog post will focus on the Wisconsin law, which addresses many specific areas in detail.

With regard to ROW, the law:

  • Prohibits the state and political subdivisions from entering into an exclusive agreement with any person for the use of ROW for the construction, operation, or maintenance of small wireless facilities, wireless support structures, or for the collocation of small wireless facilities.
  • Provides that the state and political subdivisions may impose nondiscriminatory rates or fees on wireless providers only if they charge other entities for the use of ROW, subject to a number of conditions and limitations.
  • Subject to a number of exceptions, and notwithstanding a political subdivision’s zoning ordinances, authorizes a wireless provider to collocate small wireless facilities and construct, modify, maintain, and replace utility poles that support small wireless facilities, along, across, upon, and under ROW, provided such activity does not obstruct or hinder travel, drainage, maintenance, or the public health or safety or impede other uses of ROW by communications service providers, public utilities, or cooperatives.
  • Limits the height of utility poles and small wireless facilities. With regard to the rights of a wireless provider to construct or modify utility poles, the law allows a political subdivision to propose an alternate location for collocation, which the wireless provider must use if it has the right to do so and the alternate location is reasonable and technically feasible and does not impose material additional costs.
  • Allows the state or political subdivisions to require a wireless provider to repair all damage that is directly caused by its activities in ROW that involve small wireless facilities, utility poles, and wireless support structures.
  • Generally requires a wireless provider to indemnify and hold harmless a political subdivision for any liability and loss from personal injury or property damage that results from the use or occupancy of ROW by the wireless provider.
  • Prohibits political subdivisions from doing any of the following in a way that exceeds federal or state regulatory requirements: regulating communications service facilities in rights-of-way; regulating communications service; or imposing certain charges relating to communications service provided over facilities in rights-of-way. “Communications service” is defined as cable television, telecommunications, information, or wireless service.
  • Creates a rights-of-way study committee consisting of the governor, legislators, and representatives of public and private stakeholders.

With regard to the permitting process, the law:

  • Subject to a number of exceptions, prohibits the state and political subdivisions from prohibiting, regulating, or charging any person for the collocation of small wireless facilities.
  • Notwithstanding a political subdivision’s zoning ordinances, classifies small wireless facilities as a permitted use that is not subject to such zoning ordinances if they are collocated in or outside a ROW if the property is not zoned exclusively for single-family residential use.
  • Subject to a number of conditions, authorizes the state and political subdivisions to require an application for a permit to collocate a small wireless facility and to construct and operate a new or replacement utility pole if the permit is of general applicability and does not apply exclusively to small wireless facilities. The law specifies the types of information that can be required in a permit The law imposes various deadlines relating to the permit application and approval process. If the state or a political subdivision misses a deadline for an application, the law allows the applicant to consider the application approved.
  • Requires the state or political subdivisions to approve permit applications unless the application interferes with rights-of-way, as specified in the law, or does not meet applicable codes, which are defined as state codes related to electrical wiring, plumbing, and fire prevention; commercial building codes; uniform dwelling codes; and local amendments to those codes. However, the law allows the state or a political subdivision to condition approval of a permit on compliance with reasonable and nondiscriminatory relocation, abandonment, or bonding requirements that are consistent with state law applicable to other occupiers of ROW.
  • Prohibits the state and political subdivisions from requiring an applicant to perform services unrelated to the approval sought, and prohibits such governmental units from requiring a wireless provider permit applicant to provide more information in its permit application than the governmental unit requires of communications service providers for the same type of permit.
  • Requires an applicant whose permit application is approved to commence the activity authorized by the permit within 365 days after its receipt and requires the applicant to pursue work on the activity until completion. However, the law prohibits the state and political subdivisions from placing any time limit on an application related to the permit.
  • Prohibits the state and political subdivisions from imposing express or de facto moratorium on filing, receiving, or processing applications, or issuing permits.
  • Subject to specified conditions, allows a political subdivision to adopt aesthetic requirements for deployment of small wireless facilities and associated antenna equipment and utility poles in rights-of-way.
  • Authorizes a political subdivision to enact an ordinance to prohibit, in a nondiscriminatory way, a communications service provider from installing utility poles or wireless support structures in the ROW of a historic district or an area in which all utilities are located underground (underground district), except that the ordinance may not prohibit collocations or the replacement of existing structures, and the ordinance must satisfy specified requirements. The law also allows a political subdivision to impose certain aesthetic requirements in a historic or underground district.
  • Subject to specified monetary limits and adjustments based on actions by the Federal Communications Commission, authorizes the state and political subdivisions to charge an application fee for permits. Generally, neither the state nor a political subdivision may require applications, permits, fees, or other approvals for routine maintenance, the replacement of small wireless facilities with substantially similar or smaller facilities, or certain activities involving micro wireless facilities that are strung on cables between existing utility poles.

With regard to access to governmental structures, the law:

  • Prohibits a person who owns or controls a governmental pole or utility pole for designated services (UPDS) from entering into an exclusive arrangement with any person for the right to attach to or use such poles, and prohibits the owner of such poles from imposing discriminatory fees, charges, or other terms and conditions.
  • Provides that the rate a political subdivision may charge for collocating a small wireless facility on a UPDS is governed by agreement between the political subdivision and a wireless provider and provides that, if no agreement is reached, the rate is subject to the Public Service Commission’s authority under current law.
  • Subject to a number of conditions and adjustments based on FCC actions, limits the rate an owner of a governmental pole, other than a UPDS, charges another person to collocate on the pole to an amount that is sufficient to recover the owner’s actual, direct, and reasonable costs, subject to a maximum of $250 per small wireless facility per year.
  • Specifies deadlines for the state and political subdivisions to make available rates, fees, and terms for collocation of small wireless facilities on governmental poles that comply with the law’s requirements and to amend existing agreements relating to collocation in the ROW.
  • Provides that a person who owns or controls a governmental pole other than a UPDS may not require more make-ready work than required to meet applicable codes or industry standards, and prohibits fees for make-ready work from including costs related to preexisting conditions, prior damage, or noncompliance with current standards. Such fees may not exceed actual costs or the amount charged to other communications service providers for similar work.

With regard to dispute resolution, the law:

  • Requires courts to determine disputes regarding the law’s requirements, except that, as noted above, subject to court review, the PSC resolves disputes over the rates charged by a political subdivision for collocating a small wireless facility on a UPDS.
  • Provides a mechanism for political subdivisions to allow the placement of a small wireless facility or utility pole at a temporary rate pending the resolution of a ROW dispute.

With regard to setback requirements, the law:

  • Notes that generally, under current law, a political subdivision may not impose a setback requirement for a mobile service support structure.
  • Grants a political subdivision limited authority to impose a setback requirement on the placement or substantial modification of such a mobile service support structure with regard to new or substantially modified structures. However, a setback requirement could apply only to a structure that is constructed on land that is zoned for only single-family residential use or on adjacent land. In addition, the setback requirement must be based on the height of the proposed structure, and may not exceed the height of the proposed structure.
  • Provides that a setback requirement does not apply to an existing or new utility pole, or wireless support structure that supports small wireless facilities if the pole or facility meets the height limitations specified in the bill for such a pole or facility.

The third and final entry in this series will address provisions of newly enacted legislation in Maine and Connecticut.

Many of the state laws that have been enacted have provisions that are similar to, draw from, or incorporate by reference FCC actions regarding wireless small cell facilities. However, each state law is unique and must be read fully and carefully to determine its detailed provisions and impacts.

For more information about any of these state laws, please contact Michael Fitch, Keller and Heckman Senior Counsel, (fitch@khlaw.com; 202-434-4264).

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Here is the first of a three-part series of articles outlining the key provisions of new state legislation regarding the deployment of wireless small cell equipment in public right-of-way (ROW). Each of the three-part series addresses newly enacted legislation. Today’s article features Nebraska, the next article will feature Wisconsin, and the final article in the series will feature Maine and Connecticut.

Background

Over the last few years, the wireless industry has actively pursued state legislation enacted to constrain the broad authority of local governments over the deployment of wireless small cell equipment in public ROW. Connecticut, Maine, Nebraska and Wisconsin have now joined Arizona, Arkansas, Colorado, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, New Mexico, North Carolina, Ohio, Oklahoma, Rhode Island, Tennessee, Texas, Utah, Virginia, and West Virginia to bring the list of states which have enacted legislation to facilitate the deployment of wireless small cells to 28.

These state laws typically limit the authority of local governments to decide where wireless small cell equipment can be installed in the ROW; limit the time for action on applications to install small cell equipment; and limit the amounts that can be charged for applications and use of the ROW.

Today’s blog post will focus on Nebraska. The new Nebraska law reflects the conclusion that “encouraging the development of strong and robust wireless communications networks throughout the state is necessary to address public need and policy and is integral to the state’s economic competitiveness.”

The new state law defines a small wireless facility as:

“A wireless facility that meets each of the following conditions: (1) The facilities (a) are mounted on structures fifty feet or less in height including the antennas or (b) are mounted on structures no more than ten percent taller than other adjacent structures; (2) each antenna associated with the deployment is no more than three cubic feet in volume; (3) all other equipment associated with the structure, whether ground-mounted or pole-mounted, is no more than twenty-eight cubic feet in volume; (4) the facilities do not require antenna structure registration under 47 C.F.R. part 17, as such regulation existed on January 1, 2019; (5) the facilities are not located on tribal lands, as defined in 36 C.F.R. 800.16(x), as such regulation existed on January 1, 2019; and (6) the facilities do not result in human exposure to radio frequency radiation in excess of the applicable safety standards specified in 47 C.F.R. 1.1307(b), as such regulation existed on January 1, 2019.”

Key provisions of the Nebraska law are:

  • One-time and recurring charges to wireless service providers must be non-discriminatory compared to charges to any other users of the ROW.
  • A wireless provider has the right as a permitted use not subject to zoning review or approval to collocate small wireless facilities and install, maintain, modify, operate, and replace utility poles along, across, upon, and under the ROW as long as such facilities or poles do not obstruct or hinder the usual travel or public safety on such ROW or obstruct the legal use by utilities or the safe operation of their systems or provision of service.
  • A new small wireless facility (including antennas) or a new or modified utility pole installed in the ROW is limited to the greater of five feet above the tallest existing utility pole in place located within 500 feet of the new pole in the same ROW or 50 feet above ground level. Local authorities have discretion to permit taller heights.
  • Except for facilities excluded from evaluation for effects on historic properties under 47 C.F.R. 1.1307(a)(4), as such regulation existed on January 1, 2019, an authority shall have the right to require design or concealment measures in a historic district established prior to January 1, 2019. Such design or concealment measures shall be objective and directed to avoid or remedy the intangible public harm of unsightly or out-of-character wireless facilities deployed at the proposed location within the authority’s jurisdiction. Any such design or concealment measures shall be reasonable, nondiscriminatory, and published in advance, and shall not be considered a part of the small wireless facility for purposes of the size restrictions of a small wireless facility.
  • An authority may require a wireless provider to repair all damage to a ROW directly caused by the activities of the wireless provider in the ROW and return the ROW to equal or better condition to that before the damage occurred pursuant to the competitively neutral and reasonable requirements and specifications of the authority. If the applicant fails to make the repairs that are reasonably required by the authority within 14 days after written notice, the authority may undertake such repairs and charge the wireless provider the reasonable, documented cost of such repairs.
  • An authority may require an applicant to apply for and obtain one or more permits to collocate a small wireless facility or install a new, modified, or replacement utility pole associated with a small wireless facility. Such permits shall be of general applicability and not apply exclusively to wireless facilities.
  • An authority shall be allowed to reserve space on local authority poles and the applicant shall cooperate with the authority in any such reservation, except that the authority shall first notify the applicant in writing that it is interested in reserving such pole space or sharing the trenches or bores in the area where the collocation is to occur. The applicant shall allow the authority to place its infrastructure in the applicant’s trenches or bores or on the utility pole as requested by the authority, except that the authority shall incur the incremental costs of placing the conduit or infrastructure as requested. The authority shall be responsible for maintaining its facilities in the trenches and bores and on the authority pole.
  • An authority may require an applicant to include an attestation that the small wireless facilities will be operational for use by a wireless services provider within nine months after the later of the completion of all make-ready work or the permit issuance date unless a delay is caused by lack of commercial power or communications transport facilities to the site. In such case the applicant shall have an extension not to exceed nine months. The authority and applicant may mutually agree to an additional extension.

In addition, the law spells out specific reasons for which an application can be denied and maximum processing times for an application. It also provides “deemed granted” relief if a complete application is not granted or denied within the required timeline.

The next article in this series will feature key provisions of the new enacted Wisconsin legislation.

Many of the state laws that have been enacted have provisions that are similar to, draw from, or incorporate by reference FCC actions regarding wireless small cell facilities. However, each state law is unique and must be read fully and carefully to determine its detailed provisions and impacts.

For more information about any of these state laws, please contact Michael Fitch, Keller and Heckman Senior Counsel, (fitch@khlaw.com; 202-434-4264).

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In a draft Notice of Proposed Rulemaking (NPRM) released on July 11, 2019 (scheduled to be adopted at the FCC’s August 1, 2019 Open Meeting), the FCC proposes to make $20.4 billion available under the Rural Digital Opportunity Fund (RDOF) through two multi-round, descending clock auctions, largely following the bidding rules of the CAF II auction that was conducted in 2018.

Under the draft NPRM, Phase I of the RDOF would allocate support to wholly unserved census blocks not having broadband speeds at or above the 25/3 Mbps fixed broadband benchmark with a budget of at least $16 billion over ten years. Many of these wholly unserved census blocks were included in the state-wide offers the FCC extended to the price cap ILECs in 2015. The performance obligation in the statewide offers was set at the very low bar of 10/1 Mbps. The funding under these offers expires in 2021.

A large percentage of these statewide offers were accepted, though Verizon declined its offers except for areas in which it was selling assets to Frontier Communications. The areas in the accepted statewide offers are available here. Under the NPRM, the census blocks eligible for the Phase 1 auction will include principally those (i) “for which the price cap carriers currently receive…model-based support,” (ii) eligible in the CAF II auction but not part of winning bids, (iii) included in winning bids in the CAF II auction for which the bidder defaults, and (iv) not included in the state-wide offers or the CAF II auction because they were served with voice and 10/1 Mbps service. The final list of eligible areas will be released at a later date.

In parallel with finalizing procedures for the Phase I auction, the Commission has committed to address the widely acknowledged overstatement of broadband availability in rural areas. This overstatement is attributable to outdated mapping procedures that stem, in major part, from the longstanding, widely criticized Form 477 reporting instruction that requires if a single location in a census block is served at the fixed broadband benchmark, the entire census block is reported as “served” and therefore not eligible for inclusion in an auction.

After receiving a “voluminous amount” of recommendations and proposals for improving broadband reporting and mapping, the Commission released a draft Report and Order and Second Further Notice of Proposed Rulemaking on July 11, 2019 which is scheduled to be adopted at the FCC’s August 1 Open Meeting and will set out reforms and proposals to develop more granular and accurate maps of unserved locations. At a date to be determined, the Phase II reverse auction would make available $4.4 billion, plus the remaining support to unserved locations in (i) partially unserved census blocks, and (ii) areas not won during the Phase I auction.

Shifting the focus to unserved locations from census blocks is long overdue. In recent years, Congress, public interest groups, and state and local governments criticized the current broadband reporting methodology and the resulting chronic overstatement of broadband availability in the United States.

The FCC believes that a meaningful amount of the $16 billion of the Phase I auction will remain available for the Phase II auction as the bidding procedures and, presumably, the closing conditions that governed the 2018 CAF II auction will apply. Under the closing conditions for the 2018 CAF II auction, approximately 25% of the $1.98 billion budget distributed over 10 years was not assigned.

Based on ex parte filings recently submitted proposing changes to the two draft documents, the FCC will have a range of choices in finalizing the eligible areas for the Phase I auction and the new rules for reporting and mapping broadband availability in rural areas. Beyond Telecom Law Blog will highlight developments in these important proceedings as they arise.