Municipal Regulation of Wireless Telecommunication Facilities in the Public Right of Way: Guidance for Counsel

Transcription

1 Presenting a live 90-minute webinar with interactive Q&A Municipal Regulation of Wireless Telecommunication Facilities in the Public Right of Way: Guidance for Counsel Navigating Zoning Challenges and Interplay Between Federal, State and Local Laws WEDNESDAY, APRIL 4, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Anita T. Gallucci, Attorney, Boardman & Clark, Madison, WI Eric J. Larson, Shareholder, Municipal Law & Litigation Group, Waukesha, WI The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 1.

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5 Municipal Regulation of Wireless Facilities in Local ROW ANITA G ALLUCCI Board m an & Clark LLP Madison, W isconsin agallucci@boardmanclark.com

6 Background on Small Cells

7 What Are Small Cells? Low-powered cellular radio access nodes with a range of 10 meters to a few kilometers Provide enhanced voice and data services by bolstering network capacity Require more antennas which are placed closer together 7

8 What Are Small Cells? Can be used to provide in-building and outdoor wireless service Often used in heavily populated areas needing more network capacity or in areas not effectively served by traditional macro cell Usually serve one provider 8

9 Who Are the Players? Carriers: Verizon, AT&T, Sprint, T-Mobile Infrastructure Builders: Crown Castle, Mobilitie, ExteNet 9

10 80 Feet 80 Feet 120 Feet 10

11 Small cell facility installations in Los Angeles and Atlanta 11 1

12 An AT&T Mobility Small Cell on an existing utility pole in Oakland. Credit:Omar Masry New wood pole (holding up cell and microwave antennas) and equipment enclosures for a Small Cell (appears to be by Mobilitie for Sprint) in the public right of way (where all other... utilities are already undergrounded) in Woodbridge, Virginia. 12

13 Issues Raised by Small Cells in ROW Do infrastructure providers and wireless providers have right to access ROW? Do infrastructure providers and wireless providers have right to access public property (e.g., muni electric poles, street lights, traffic signals)? Do state laws restricting zoning authority over cell towers apply to ROW use by infrastructure and wireless providers? How is municipal authority to regulate use of local ROW affected? 13

14 Issues Raised by Small Cells in ROW Is use of ROW by infrastructure and wireless providers superior or subordinate to the public s interest in the ROW? What sort of fees can municipalities impose for use of ROW? What can a municipality charge for use of public property? Can municipality limit pole height or impose set back and fall zone requirements? How quickly does a municipality have to act on a ROW permit application? 14

15 State Regulation: Small Cell Bills

16 13 States Have Enacted Small Cell Bills Arizona *Ohio Colorado Minnesota Delaware North Florida Carolina Iowa Texas Indiana Rhode Island Kansas Virginia Soon? Illinois Michigan Tennessee New York Failed Efforts: Wisconsin Washington California Missouri *Ruled Unconstitutional Ohio 16

17 Common Elements of Small Cell Bills Infrastructure builders and wireless providers have access rights Expedited timelines for processing applications ROW use fees prohibited/non-discriminatory Can t require use of municipal facilities Reduced and capped fees for use of municipal facilities (e.g., poles, street lights) 17

18 Common Elements of Small Cell Bills Presumed application approvals and limited scope for local governments to deny requests Curbs zoning authority over attachments and new poles Can t impose separation requirements between wireless facilities Circuit Court has jurisdiction over disputes; municipality has the burden 18

19 Common Elements of Small Cell Bills Can t have exclusive arrangements for right to use ROW or municipal property Existing agreements are abrogated or grandfathered for a limited period of time (e.g., 2 years) 19

20 Limitations on Wireless Providers Use of ROW

21 From Proposed Legislation in Wisconsin Wireless provider s activity in ROW may 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 21

22 From Proposed Legislation in Wisconsin Height of a utility pole or wireless support structure installed, or modified, in a ROW can t exceed the greater of: 10 above the tallest existing utility pole in place on the eff. date of the bill and located within 500 feet of the new or modified pole or structure in the same right-ofway, or 50 AGL Height of a small wireless facility installed, or modified, in a ROW may not exceed the greater of: 10 above the tallest existing utility pole or wireless support structure in place on eff. date of bill and located in same ROW, or 50 AGL 22

23 Municipalities Fight Back

24 Ohio Municipalities Challenge Small Cell Bill 50 Ohio municipalities challenged SB 331 Claimed small cell portion of SB 331 unconstitutional because it violated state constitution s single-subject requirement Judge agreed and declared the small cell portion of the law invalid 24

25 City of McAllen v. State of Tex., Tex. Dist. Ct., D-1-GN , complaint 8/31/17 22 Texas municipalities challenged SB 1004 Claimed the law violated the constitution s prohibitions against Gifting public funds or things of value to aid commercial interests of private enterprises Delegating legislative power to private entities w/o adequate safeguards 25

26 City of McAllen v. State of Texas (cont.) [T]he Legislature has not only violated the antigift and non-delegation provisions of the Texas Constitution, but would make cities and their officials complicit in these transgressions by having them administer and sanction the transfer of wealth of as much as hundreds of millions of dollars from municipal coffers to private telecommunications companies each year and by having them abandon their obligations to the public by relinquishing their responsibilities for implementing effective zoning measures and right-of-way management 26

27 Federal Regulatory Framework

28 Federal Laws Affecting Municipal Authority 47 U.S.C. 332(c)(7) (1996) Preserves local authority to control placement of personal wireless services facilities, except: May not unreasonably discriminate among providers of functionally equivalent service May not prohibit or effectively prohibit provision of service Must act within a reasonable time Denial must be in writing and supported by substantial evidence in a written record May not regulate based on effects of RF emissions if complies with FCC s rules 28

29 Federal Laws (cont.) 47 U.S.C. 253 (1996) State and local regulations can t prohibit or have the effect of prohibiting ability of any entity to provide telco services May still impose non-discriminatory ROW management and compensation requirements 47 U.S.C. 1455(a) - Sec. 6409(a) of Middle Class Tax Relief and Job Creation Act of 2012 State or local authority can t deny 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 29

30 Mobilitie LLC FCC Petition for Declaratory Ruling Mobilitie filed petition with FCC on 11/15/16 under 47 U.S.C. 253(c), seeking declarations that: Fair and reasonable compensation means charges for ROW applications and access fees are limited to costs reasonably related to reviewing and issuing permits and managing ROWs Competitively neutral and nondiscriminatory means ROW access charges can t exceed charges imposed on other providers for similar access Municipalities must disclose the ROW charges they have imposed on other providers to any provider seeking access to the same ROW 30

31 Streamlining Deployment of Small Cell Infrastructure by Improving Wireless Siting Policies, WT Docket No In response to Mobilitie Petition, FCC sought comments on the following: Types of local government action or inaction that prohibit or have the effect of prohibiting siting or improvement of wireless facilities Local government practices for reviewing siting applications and what constitutes a reasonable period of time for local review What constitutes fair and reasonable compensation on a competitively neutral and nondiscriminatory basis for application processing and use of ROW 31

32 Wireless Infrastructure Order (10/21/14) FCC clarifies definitions in Sec. 6409(a) Wireless tower or base station Substantially change the physical dimensions Shot Clock Strict 60-day deadline on requests submitted under 6409(a) May toll w/in first 30 days if application incomplete After 60 days, application deemed granted upon applicant s notification Disputes resolved in court Doesn t apply when municipalities act in proprietary capacity Building codes and non-discretionary structural and safety codes still apply 32

33 Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment FCC Second Report and Order released March 30, 2018 NHPA and NEPA review processes do not apply as private deployment is neither a federal undertaking nor a major federal action Changes the process for Tribal participation in Section 106 historic preservation reviews EAs are not required for small wireless facilities solely due to location of the facility in a floodplain, if certain conditions met FCC must act on EAs within established timeframes 33

34 Thank you! ANITA T. GALLUCCI

35 MUNICIPAL REGULATION OF WIRELESS TELECOMMUNICATION FACILITIES IN THE PUBLIC RIGHT OF WAY Guidance for Counsel Attorney Eric J. Larson 35

36 SPEAKER S PERSPECTIVE: Represent municipalities, exclusively. 36

37 SPEAKER S PERSPECTIVE: Represent municipalities, exclusively. Represent about 50 municipalities in the greater Milwaukee area, and many others throughout the State of Wisconsin as special counsel 37

38 SPEAKER S PERSPECTIVE: Represent municipalities, exclusively. Represent about 50 municipalities in the greater Milwaukee area, and many others throughout the State of Wisconsin as special counsel Focus is Wisconsin. Many of these same issues apply, the same way, in other areas of the country 38

39 CASE STUDY NEARLY SIMULTANEOUS SUBMITTALS, STATEWIDE, INCLUDING 15 OF OUR CLIENTS 39

40 CASE STUDY Analysis of WITN s first letter Flooded the State, simultaneously 40

41 CASE STUDY Analysis of WITN s first letter Flooded the State, simultaneously Sought a street excavation permit 41

42 CASE STUDY Analysis of WITN s first letter Flooded the State, simultaneously Sought a street excavation permit Filed with the DPW, or Engineering Dept. 42

43 CASE STUDY Analysis of WITN s first letter Flooded the State, simultaneously Sought a street excavation permit Filed with the DPW, or Engineering Dept. Claimed to be a public utility 43

44 CASE STUDY Analysis of WITN s first letter Flooded the State, simultaneously Sought a street excavation permit Filed with the DPW, or Engineering Dept. Claimed to be a public utility Included only preliminary plans 44

45 CASE STUDY Analysis of WITN s first letter Flooded the State, simultaneously Sought a street excavation permit Filed with the DPW, or Engineering Dept. Claimed to be a public utility Included only preliminary plans Assumed perfunctory administrative approval 45

46 Initial municipal reactions CASE STUDY Wait, what? You ve got to be kidding. 46

47 CASE STUDY Initial municipal reactions Wait, what? You ve got to be kidding. We have cell sites: Our water towers, the tower at City hall, etc. 47

48 CASE STUDY Initial municipal reactions Wait, what? You ve got to be kidding. We have cell sites: Our water towers, the tower at City hall, etc. We collect revenue for our cell sites. 48

49 CASE STUDY Initial municipal reactions Wait, what? You ve got to be kidding. We have cell sites: Our water towers, the tower at City hall, etc. We collect revenue for our cell sites. You want a sneaky and underhanded windfall? 49

50 CASE STUDY Initial municipal reactions Wait, what? You ve got to be kidding. We have cell sites: Our water towers, the tower at City hall, etc. We collect revenue for our cell sites. You want a sneaky and underhanded windfall? Distrust. 50

51 CASE STUDY Initial municipal reactions Wait, what? You ve got to be kidding. We have cell sites: Our water towers, the tower at City hall, etc. We collect revenue for our cell sites. You want a sneaky and underhanded windfall? Distrust. Health and Safety concerns 51

52 CASE STUDY Initial response Prompt response. ( (9), Wis Stats = 60 days for ROW; (2)(c), Wis. Stats = 10 days for telecom) 52

53 CASE STUDY Initial response Prompt response. ( (9), Wis Stats = 60 days for ROW; (2)(c), Wis. Stats = 10 days for telecom) Denied because application is not complete 53

54 CASE STUDY Initial response Prompt response. ( (9), Wis Stats = 60 days for ROW; (2)(c), Wis. Stats = 10 days for telecom) Denied because application is not complete Preliminary plans are inadequate 54

55 CASE STUDY Initial response Prompt response. ( (9), Wis Stats = 60 days for ROW; (2)(c), Wis. Stats = 10 days for telecom) Denied because application is not complete Preliminary plans are inadequate Failed to pay the required fee 55

56 CASE STUDY Initial response Prompt response. ( (9), Wis Stats = 60 days for ROW; (2)(c), Wis. Stats = 10 days for telecom) Denied because application is not complete Preliminary plans are inadequate Failed to pay the required fee Must also apply for zoning approval, or provide satisfactory explanation 56

57 CASE STUDY After that response, heard nothing more for more than six months. 57

58 CASE STUDY After that response, heard nothing more for more than six months. Of 15 of our clients initially contacted, to date, more than two years later, have received followup communication in only a few cases. 58

59 CASE STUDY In the interim, update municipal ordinances Clarify ROW ordinances 59

60 CASE STUDY In the interim, update municipal ordinances Clarify ROW ordinances Process 60

61 CASE STUDY In the interim, update municipal ordinances Clarify ROW ordinances Process Fees 61

62 CASE STUDY In the interim, update municipal ordinances Clarify ROW ordinances Process Fees Public health and safety considerations 62

63 CASE STUDY In the interim, update municipal ordinances Clarify ROW ordinances Process Fees Public health and safety considerations Indemnification, bonds and insurance 63

64 CASE STUDY In the interim, update municipal ordinances Clarify ROW ordinances Process Fees Public health and safety considerations Indemnification, bonds and insurance Obstructions prohibited 64

65 CASE STUDY In the interim, update municipal ordinances Clarify ROW ordinances Process Fees Public health and safety considerations Indemnification, bonds and insurance Obstructions prohibited Restoration 65

66 CASE STUDY In the interim, update municipal ordinances Clarify Telecommunications ordinances 66

67 CASE STUDY In the interim, update municipal ordinances Clarify Telecommunications ordinances Be sure to comply with current State laws (a significant issue in Wisconsin) 67

68 CASE STUDY In the interim, update municipal ordinances Clarify Telecommunications ordinances Be sure to comply with current State laws (a significant issue in Wisconsin) Procedures 68

69 CASE STUDY In the interim, update municipal ordinances Clarify Telecommunications ordinances Be sure to comply with current State laws (a significant issue in Wisconsin) Procedures Conditional use process / individual consideration 69

70 CASE STUDY In the interim, update municipal ordinances Clarify Telecommunications ordinances Be sure to comply with current State laws (a significant issue in Wisconsin) Procedures Conditional use process / individual consideration Health, safety and welfare considerations 70

71 Analysis of Request Utility? CASE STUDY 71

72 Analysis of Request Utility? Yes and no. CASE STUDY 72

73 CASE STUDY Analysis of Request Utility? Yes and no. Alternative telecommunications utility 73

74 CASE STUDY Analysis of Request Utility? Yes and no. Alternative telecommunications utility But only for purposes of transmission lines 74

75 CASE STUDY Analysis of Request Utility? Yes and no. Alternative telecommunications utility But only for purposes of transmission lines Not for purposes of building infrastructure 75

76 CASE STUDY Analysis of Request Utility? Yes and no. Alternative telecommunications utility But only for purposes of transmission lines Not for purposes of building infrastructure Rights in ROW? 76

77 CASE STUDY Analysis of Request Utility? Yes and no. Alternative telecommunications utility But only for purposes of transmission lines Not for purposes of building infrastructure Rights in ROW? Overstated 77

78 EXPLICATION OF UTILITY ISSUE: IS WTN A UTILITY? Yes, sort of. More specifically, they are a alternative telecommunications utility. The Public Service Commission lists WTN as a utility provider, with a service type of alternate exchange carrier. In communications from WTN, they describe themselves as an alternative telecommunications utility. These terms are very narrowly defined in Wisconsin Statutes Section , and I note the following: 78

79 EXPLICATION OF UTILITY ISSUE: PUBLIC UTILITY Public utility is defined to include telecommunications utility, per Section (5)(a), Stats. Public utility does not include any company that owns, operates, manages or controls a telecommunications utility unless they furnish service directly to the public, per Section (5)(b), Stats. 79

80 EXPLICATION OF UTILITY ISSUE: TELECOMMUNICATIONS UTILITY A telecommunications utility is a company that owns, operates, manages or controls equipment used to furnish telecommunications service, per Section (10), Stats. A telecommunications utility does not include a telecommunications carrier, however. 80

81 EXPLICATION OF UTILITY ISSUE: TELECOMMUNICATIONS CARRIER A telecommunications carrier is a person that owns, operates, manages or controls equipment used to furnish telecommunications service to the public, but does not provide basic local exchange service except on a resale basis, per Section (8m), Stats. A telecommunications carrier does not include an alternative telecommunications utility, however. 81

82 EXPLICATION OF UTILITY ISSUE: ALTERNATIVE TELECOMMUNICATIONS UTILITY Alternative telecommunications utility means telecommunications resellers or resellers (sic), and other telecommunication providers if the PSC finds the service offered by the telecommunications provider is available from other telecommunication providers within this State directly or indirectly to the public, per Section (1d), Stats. 82

83 EXPLICATION OF UTILITY ISSUE: OTHER TERMS Other relevant terms are defined in Section , Stats., such as telecommunications reseller, telecommunications provider, telecommunications service Note also that Chapter 66 defines public utility, by reference to the definition of public utility in Section (5), per Section (1)(b), Stats. 83

84 EXPLICATION OF UTILITY ISSUE: UTILITY CONCLUSION? 84

85 EXPLICATION OF UTILITY ISSUE: UTILITY CONCLUSION? The statutory terms, which undoubtedly arose from industry drafters and may appear in a similar form nationwide, are interwoven and complex, leaving room for argument. 85

86 EXPLICATION OF UTILITY ISSUE: UTILITY CONCLUSION? The statutory terms, which undoubtedly arose from industry drafters and may appear in a similar form nationwide, are interwoven and complex, leaving room for argument. It appears likely that the provider of the service (e.g. Mobilitie) is an alternative telecommunications utility, but per the foregoing string of connected definitions, they are not a public utility. 86

87 EXPLICATION OF UTILITY ISSUE: UTILITY CONCLUSION? The statutory terms, which undoubtedly arose from industry drafters and may appear in a similar form nationwide, are interwoven and complex, leaving room for argument. It appears likely that the provider of the service (e.g. Mobilitie) is an alternative telecommunications utility, but per the foregoing string of connected definitions, they are not a public utility. A site acquisition group or tower builder, does not appear to meet any of the myriad utility definitions, but may be a telecommunications carrier. 87

88 EXPLICATION OF UTILITY ISSUE: UTILITY CONCLUSION? The statutory terms, which undoubtedly arose from industry drafters and may appear in a similar form nationwide, are interwoven and complex, leaving room for argument. It appears likely that the provider of the service (e.g. Mobilitie) is an alternative telecommunications utility, but per the foregoing string of connected definitions, they are not a public utility. A site acquisition group or tower builder, does not appear to meet any of the myriad utility definitions, but may be a telecommunications carrier. The PSC, therefore, may have limited jurisdiction, but for all that, whether they are a utility may not even be the relevant question for purposes of entry into the ROW, which we will explicate next. 88

89 EXPLICATION OF UTILITY ISSUE: ROW ENTRY RIGHTS 89

90 EXPLICATION OF UTILITY ISSUE: ROW ENTRY RIGHTS Where does this utility soup leave us, for purposes of ROW entry? 90

91 EXPLICATION OF UTILITY ISSUE: ROW ENTRY RIGHTS Where does this utility soup leave us, for purposes of ROW entry? Interestingly, it doesn t get us far. Wisconsin Statutes Section grants certain right-of-way entry rights to the following entities (without referring to utilities): 91

92 EXPLICATION OF UTILITY ISSUE: ROW ENTRY RIGHTS Where does this utility soup leave us, for purposes of ROW entry? Interestingly, it doesn t get us far. Wisconsin Statutes Section grants certain right-of-way entry rights to the following entities (without referring to utilities): A corporation, limited liability company, partnership, or other business entity organized to furnish telegraph or telecommunications service or transmit heat, power, or electric current to the public or for public purposes. ( (1g)(b)(1), Stats.) 92

93 EXPLICATION OF UTILITY ISSUE: TELECOMMUNICATIONS SERVICE Telecommunications service means the offering for sale of the conveyance of voice, data, or other information, including the sale of service for collection, storage, forwarding, switching, and delivery incidental to such communications regardless of the technology or mode used to make such offering. ( (1g)(cq), Stats.) 93

94 EXPLICATION OF UTILITY ISSUE: TRANSMISSION LINES OR SYSTEMS 94

95 EXPLICATION OF UTILITY ISSUE: TRANSMISSION LINES OR SYSTEMS The statute then grants certain rights to such entities as follows: 95

96 EXPLICATION OF UTILITY ISSUE: TRANSMISSION LINES OR SYSTEMS The statute then grants certain rights to such entities as follows: Any company may, subject to reasonable regulations made by any municipality through which its transmission lines or systems may pass, construct and maintain such lines or systems with all necessary appurtenances in, across or beneath any public highway ( (1r), Stats.) 96

97 EXPLICATION OF UTILITY ISSUE: CONCLUSION? 97

98 EXPLICATION OF UTILITY ISSUE: CONCLUSION? Significant room for argument, but a brief summary goes like this: 98

99 EXPLICATION OF UTILITY ISSUE: CONCLUSION? Significant room for argument, but a brief summary goes like this: If the entity offers telecommunications service; then 99

100 EXPLICATION OF UTILITY ISSUE: CONCLUSION? Significant room for argument, but a brief summary goes like this: If the entity offers telecommunications service; then If they will construct lines or systems; then 100

101 EXPLICATION OF UTILITY ISSUE: CONCLUSION? Significant room for argument, but a brief summary goes like this: If the entity offers telecommunications service; then If they will construct lines or systems; then They can go in the ROW; but 101

102 EXPLICATION OF UTILITY ISSUE: CONCLUSION? Significant room for argument, but a brief summary goes like this: If the entity offers telecommunications service; then If they will construct lines or systems; then They can go in the ROW; but They must comply with the municipality s reasonable rules and regulations. 102

103 BACK TO THE CASE STUDY Analysis of Request Subject to zoning? Wis. Statutory preemption? ( (4)) 103

104 BACK TO THE CASE STUDY Analysis of Request Subject to zoning? Wis. Statutory preemption? ( (4)) Municipality cannot prohibit the placement of a mobile service support structure in particular locations within the political subdivision (4)(c), Wis. Stats. 104

105 BACK TO THE CASE STUDY Analysis of Request Subject to zoning? Wis. Statutory preemption? ( (4)) Municipality cannot prohibit the placement of a mobile service support structure in particular locations within the political subdivision (4)(c), Wis. Stats. Locating on an existing structure is a permitted use (3)(a)1., Wis. Stats. 105

106 Analysis of Request CASE STUDY Prohibited from regulating outside of zoning? 106

107 CASE STUDY Analysis of Request Prohibited from regulating outside of zoning? Wisconsin preemption against regulating telecommunication facility construction or modification except through zoning ordinances (1)(h), Wis. Stats. 107

108 CASE STUDY Analysis of Request Prohibited from regulating outside of zoning? Wisconsin preemption against regulating telecommunication facility construction or modification except through zoning ordinances (1)(h), Wis. Stats. But their application seeks an excavation permit and treatment as a utility in the right of way. 108

109 Analysis of Request CASE STUDY Prohibited from regulating outside of zoning? Wisconsin preemption against regulating telecommunication facility construction or modification except through zoning ordinances (1)(h), Wis. Stats. But their application seeks an excavation permit and treatment as a utility in the right of way. Whose right of way is it? 109

110 Analysis of Request CASE STUDY Prohibited from regulating outside of zoning? Wisconsin preemption against regulating telecommunication facility construction or modification except through zoning ordinances (1)(h), Wis. Stats. But their application seeks an excavation permit and treatment as a utility in the right of way. Whose right of way is it? Consider 47 USC

111 CASE STUDY Negotiations Why negotiate? 111

112 CASE STUDY Negotiations Why negotiate? Residents & Council may want better cell service 112

113 CASE STUDY Negotiations Why negotiate? Residents & Council may want better cell service Appropriate installations can have nominal impact 113

114 CASE STUDY Negotiations Why negotiate? Residents & Council may want better cell service Appropriate installations can have nominal impact May generate some revenue 114

115 CASE STUDY Negotiations Why negotiate? Residents & Council may want better cell service Appropriate installations can have nominal impact May generate some revenue Maybe not worth fighting over 115

116 CASE STUDY Negotiations Why negotiate? Residents & Council may want better cell service Appropriate installations can have nominal impact May generate some revenue Maybe not worth fighting over Minimize the risks 116

117 CASE STUDY Negotiations Why negotiate? Residents & Council may want better cell service Appropriate installations can have nominal impact May generate some revenue Maybe not worth fighting over Minimize the risks Control, to allow small cell only in negotiated places 117

118 CASE STUDY License Terms 118

119 CASE STUDY License Terms Grant of license, subject to individualized review and approval of plans and locations 119

120 CASE STUDY License Terms Grant of license, subject to individualized review and approval of plans and locations Individualized consideration of fall zone, setback, height and other relevant location considerations 120

121 CASE STUDY License Terms Grant of license, subject to individualized review and approval of plans and locations Individualized consideration of fall zone, setback, height and other relevant location considerations Pole strength requirements 121

122 CASE STUDY 122

123 CASE STUDY License Terms 123

124 CASE STUDY License Terms Individualized review, allows consideration of: 124

125 CASE STUDY License Terms Individualized review, allows consideration of: Alternative sites? 125

126 CASE STUDY License Terms Individualized review, allows consideration of: Alternative sites? Roadside hazard analysis? 126

127 CASE STUDY License Terms Individualized review, allows consideration of: Alternative sites? Roadside hazard analysis? Ice shedding? 127

128 CASE STUDY License Terms Individualized review, allows consideration of: Alternative sites? Roadside hazard analysis? Ice shedding? Environmental analysis? 128

129 CASE STUDY License Terms Individualized review, allows consideration of: Alternative sites? Roadside hazard analysis? Ice shedding? Environmental analysis? Tree/vegetation removal? 129

130 CASE STUDY License Terms 130

131 CASE STUDY License Terms Pole construction and ownership 131

132 CASE STUDY License Terms Pole construction and ownership Compliance with applicable building and electric codes 132

133 CASE STUDY 133

134 CASE STUDY License Terms 134

135 CASE STUDY License Terms Permit application fee 135

136 CASE STUDY License Terms Permit application fee Facility installation fee 136

137 CASE STUDY License Terms Permit application fee Facility installation fee Annual license fee 137

138 CASE STUDY License Terms Permit application fee Facility installation fee Annual license fee CPI escalator 138

139 CASE STUDY License Terms Non-interference with existing electronic equipment 139

140 CASE STUDY License Terms Indemnification 140

141 CASE STUDY License Terms Indemnification Insurance 141

142 CASE STUDY License Terms 142

143 CASE STUDY License Terms Compliance with applicable laws and emissions standards 143

144 CASE STUDY License Terms Compliance with applicable laws and emissions standards Demonstration of regulatory compliance on request 144

145 CASE STUDY License Terms Reimbursement of costs incurred in negotiating, reviewing, or otherwise applicable to approving the license agreement and individual plans 145

146 CASE STUDY License Terms 146

147 CASE STUDY License Terms Removal of facilities upon termination 147

148 CASE STUDY License Terms Removal of facilities upon termination Guarantee for removal 148

149 LITIGATE? 149

150 LITIGATE? We have 3 pending cell tower cases in litigation today. 150

151 LITIGATE? We have 3 pending cell tower cases in litigation today. Municipalities sued for denial of conditional use. 151

152 LITIGATE? We have 3 pending cell tower cases in litigation today. Municipalities sued for denial of conditional use. Be sure to have a strong and clearly articulated basis for denial, before denying any cellular installation. 152

153 NEGOTIATING STRATEGIES Given the legal uncertainties and the risks of litigation, negotiation may be a good option. 153

154 NEGOTIATING STRATEGIES Given the legal uncertainties and the risks of litigation, negotiation may be a good option. Start any negotiation with a Fee Reimbursement Agreement 154

155 NEGOTIATING STRATEGIES Given the legal uncertainties and the risks of litigation, negotiation may be a good option. Start any negotiation with a Fee Reimbursement Agreement Don t negotiate or conduct site visits until they have agreed in writing to cover the municipality s costs. 155

156 NEGOTIATING STRATEGIES Site visits 156

157 NEGOTIATING STRATEGIES Site visits Walk the proposed sites as a staff, with the applicant. Discuss alternatives. 157

158 NEGOTIATING STRATEGIES Consideration of Alternatives 158

159 NEGOTIATING STRATEGIES Consideration of Alternatives Can you go across the street to keep this side free of infrastructure? 159

160 NEGOTIATING STRATEGIES Consideration of Alternatives Can you go across the street to keep this side free of infrastructure? A 50 foot pole outside this residence is a problem, but over there it would be outside an industry and not so out of place. 160

161 NEGOTIATING STRATEGIES Consideration of Alternatives Can you go across the street to keep this side free of infrastructure? A 50 foot pole outside this residence is a problem, but over there it would be outside an industry and not so out of place. If we allow you a new pole over there, could you stay off this pole here? 161

162 NEGOTIATING STRATEGIES Require conditional use permit if they are building a new structure 162

163 NEGOTIATING STRATEGIES Require right-of-way application and permit for co-location on existing structures 163

164 CASE STUDY Current status 164

165 CASE STUDY Current status Of 15 clients initially contacted, Mobilitie has not responded to our denial due to an incomplete application in 13 cases 165

166 CASE STUDY Current status Of 15 clients initially contacted, Mobilitie has not responded to our denial due to an incomplete application in 13 cases In one case the issue is pending and unresolved. Negotiations have been positive. 166

167 CASE STUDY Current status Of 15 clients initially contacted, Mobilitie has not responded to our denial due to an incomplete application in 13 cases In one case the issue is pending and unresolved. Negotiations have been positive. In one case we have negotiated the terms of a mutually acceptable license agreement 167

168 THANK YOU Eric J. Larson 720 N. East Avenue Waukesha, WI Phone: (262)