MUNICIPAL ATTORNEYS ASSOCIATION Small Wireless Facilities Albuquerque, New Mexico

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Harvey Collin McCarthy
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1 MUNICIPAL ATTORNEYS ASSOCIATION Small Wireless Facilities Albuquerque, New Mexico River Oaks Communications Corporation Bob Duchen Vice President December 7, Larimer County 1

28 cubic feet in volume Facilities are on structures 50 feet or less in height (including the antennas) or on

2 What are Small Wireless Facilities? Each Antenna is not more than 3 cubic feet in volume Pre-existing and new associated equipment is not more than 28 cubic feet in volume Facilities are on structures 50 feet or less in height (including the antennas) or on structures no more than 10% higher than adjacent structures or they do not extend existing structures to a height of more than 50 feet or more than 10%, whichever is greater. 3 4 Larimer County 2

3 Why pay attention to the FCC? What s the big deal with Small wireless facilities? Federal preemption of your Rights-of-way The Industry has moved from constructing cell towers to small cells that add capacity to their networks Public Rights-of-Way are prime candidates because they cover vast areas within cities Coverage is limited from 300 to 900 feet The equipment can be unsightly Providers typically do not share small cell equipmentthis means that you will have multiple providers on a single pole or requests for new or replacement poles The equipment needs to meet your code requirements You will be facing multiple site requests concurrentlythis is called Batching 5 6 Larimer County 3

4 7 8 Larimer County 4

5 Bio on River Oaks Communications Corporation Colorado Based Over 30 Years of Experience 38 States including New Mexico Hundreds of Local Governments and many Municipal Leagues Bob Duchen- VP, Co-founder, University of Virginia School of Law Author and Webinar Presenter Overview of Federal and State Law Cable Acts of 1984 and 1992 Telecom Act of 1996 Middle Class Tax Relief and Job Creation Act of 2012 FCC Wireless Orders and 2018 HB 38- New Mexico State Law 9 10 Larimer County 5

6 FEDERAL STREAMLINE ACT Co-sponsored by Senators from South Dakota and Hawaii Intended to accelerate broadband deployment Shortens timeframes for Local Government actions and decisions Caps compensation payable to Local Governments by the providers BROADBAND DEPLOYMENT ADVISORY COMMITTEE Appointed by the FCC Acronym is BDAC Heavily weighted with industry representatives Developed a model State Ordinance and model Local Ordinance Unfavorable for Local Governments Larimer County 6

7 The Latest from the FCC Fees for use of municipal structures within the Rights-of- way that are greater than a reasonable approximation of the local government s costs for processing applications and managing deployments in the Rights-of-way are effective prohibitions under Federal law Safe Harbors- Maybe? In or out of the ROW-$500 /application (for 5 SWF sites plus $100 for each additional small wireless facility); $1,000/new pole SWF-$270 /year for ROW access fee and attachment fee; or Show the reasonable approximation of costs, the cost is reasonable and non-discriminatory (the burden is on you) Cost studies- the new frontier Larimer County 7

8 Small Wireless Facilities Nationwide deployment occurring- Projection of 800,000 small cells in next decade Explosive Growth and Capacity Issues; This Differs From Coverage Issues Aesthetics- new rules coming not preempted if reasonable, no more burdensome as compared with other infrastructure deployments, objective and published in advance Current Zoning Ordinances- Outdated, Inadequate and Putting Cities At Risk FCC s Latest Order The time frames: 60 Day Shot Clock for Section 6409(a) Eligible Facilities Requests 90-Day Shot Clock for Section 332c(7) Collocation/existing structures 150-Day Shot Clock for New Towers or Sites 60 days for SWFs placed on existing structures/ 90 days for SWFs on new poles - presumptive violation if you don t timely act State Law Still Comes into Play Larimer County 8

9 Current New Mexico Law HB 38- Advanced Infrastructure Investment Act Small wireless facilities Wireless infrastructure and service providers $250/year for ROW use for each SWF and $20/year for each authority utility pole Shot clock- 90 days for SWF and 150 days for a new pole (deemed approved if failure to act) Restoration to pre-damage condition Stealth- historic and design districts Some really important questions? How tall are the poles? What is in the base stations- Do they contain batteries or cooling fans? Are they loud? Can towers collapse? Will the poles be structurally engineered to handle the weight of new small wireless facilities? Larimer County 9

volumes of data traffic Not as likely in rural New Mexico, but it has happened

10 Where will you see Small Cells? In metropolitan or tourist areas because they are needed to handle high volumes of data traffic Not as likely in rural New Mexico, but it has happened elsewhere Fiber is needed to make rural Broadband accessible and affordable 5G Technology has a ways to go Larimer County 10

11 Realities of the Situation Small communities do not have sufficient staff with the expertise or time to handle site applications- Shot clock pressures Multiple small cells on 1 pole- unattractive, but so are multiple poles Cities will need to hire outside RF and legal experts- at whose expense?- fees must be reasonable Moratorium Generally disallowed by FCC Orders and not allowed by HB 38 This covers actual and de facto moratoria (pre-application meetings if they are a stalling tactic) Providers will strongly protest. Could lead to Litigation Larimer County 11

12 Service Providers and Infrastructure Providers Some Examples from Other States Verizon Wireless, AT&T Wireless and T-Mobile ExteNet and Crown Castle Mobilitie Site Acquisition Companies New Players in the Marketplace Spokane, Washington Coeur d Alene, Idaho Sheridan, Gillette and Casper, Wyoming League of Nebraska Municipalities, Wyoming Association of Municipalities, Michigan Municipal League and South Dakota Municipal League Larimer County 12

13 Illustrative Pictures Illustrative Pictures of WCFs Larimer County 13

14 Illustrative Pictures of WCFs Illustrative Pictures of WCFs Larimer County 14

15 Revenue Opportunities for Local Governments Water Tanks, Towers and Buildings (Vertical Assets) outside the Right-of-way Grandfathering existing deals in the ROW? Large Antennas on Water Towers- $750- $2500/month or more CPI escalators How do Cities Protect Themselves? Review Current Ordinances Draft and Develop new Zoning Ordinances for Small Wireless Facilities Stay in Touch with NMML for New Developments at the State and Federal Level Communicate with One Another- You have Similar Challenges and Opportunities Larimer County 15

16 THANKS For being here for our Presentation. If you have specific questions later on, please call us or send us an Larimer County 16

Small Wireless Facilities

Small Wireless Facilities February 6, 2018 Background Information Residents and businesses are increasingly reliant on handheld wireless devices to communicate and transmit data User demand and expectations