Before The FEDERAL COMMUNICATIONS COMMISSION 445 12th Street, S.W.

, Washington, DC 20554

In the Matter of Acceleration of Broadband Deployment: Expanding the Reach and Reducing the Cost of Broadband Deployment by Improving Policies Regarding Public Rights of Way and Wireless Facilities Siting

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WC Docket No. 11-59

COMMENTS OF AT&T

David L. Lawson James P. Young Christopher T. Shenk SIDLEY AUSTIN LLP 1501 K Street, N.W. Washington, D.C. 20005 202-736-8088

William A. Brown Gary L. Phillips Paul K. Mancini AT&T Services, Inc. 1120 20th Street, N.W. Suite 1000 Washington, D.C. 20036 202-457-3007 Attorneys for AT&T Inc.

July 18, 2011

TABLE OF CONTENTS INTRODUCTION AND SUMMARY ..............................................................................................1 I. IN DEVELOPING ITS APPROACH TO REDUCING BARRIERS TO DEPLOYING BROADBAND FACILITIES, THE COMMISSION SHOULD BE AWARE OF ALL OF THE FACTORS THAT CONTRIBUTE TO DELAY. ....................5 A. B. It is Increasingly Difficult To Identify Suitable Locations For New Cell Sites. ...........................................................................................................................7 After A Suitable Location For A New Site Has Been Identified, The Process For Obtaining Zoning And Other Approvals Can Lead To Significant Delays, Notwithstanding The Shot Clock. ..............................................13

II.

THE COMMISSION’S ENVIRONMENTAL RULES SHOULD BE UPDATED TO CLOSE LOOPHOLES IN THE PROCESS AND TO ACCOUNT FOR THE EVOLUTION OF WIRELESS TECHNOLOGY. ................................................................20

CONCLUSION ..................................................................................................................................24

Before The FEDERAL COMMUNICATIONS COMMISSION 445 12th Street, S.W., Washington, DC 20554

In the Matter of Acceleration of Broadband Deployment: Expanding the Reach and Reducing the Cost of Broadband Deployment by Improving Policies Regarding Public Rights of Way and Wireless Facilities Siting

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WT Docket No. 11-59

COMMENTS OF AT&T Pursuant to the Notice of Inquiry (“Notice”) released by the Federal Communications Commission (“Commission”) on April 7, 2011, and the Public Notice released by the Commission on June 10, 2011,1 AT&T Inc. (“AT&T”), on behalf of its subsidiaries, submits the following comments. INTRODUCTION AND SUMMARY AT&T strongly supports the Commission’s efforts to “update its understanding of current rights of way and wireless facilities siting policies” and to “assess the extent and impact of challenges related to these matters, and develop a record on possible solutions to these challenges.”2 The Commission has taken significant steps to reduce delays and other obstacles

Notice of Inquiry, Acceleration of Broadband Deployment: Expanding the Reach and Reducing the Cost of Broadband Deployment by Improving Policies Regarding Public Rights of Way and Wireless Facilities Siting, DA 11-1047, WC Docket No. 11-59 (rel. April 7, 2011) (“Notice”); Public Notice, Deadlines Set For Notice of Inquiry On Accelerating Broadband Deployment by Improving Public Rights of Way and Wireless Facilities Siting Policies, DA 11-1047, WC Docket No. 11-59 (rel. June 10, 2011).
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Notice ¶ 9.

that carriers routinely face when they seek to upgrade or expand broadband services by deploying new facilities (or upgrading older facilities). Unfortunately, a variety of factors continue substantially to delay carriers’ attempts to place new equipment and upgrade existing equipment, and unnecessarily increase carriers costs of doing so. Access to rights of ways continues to be a significant challenge to AT&T in many areas. AT&T’s deployment of broadband wireline services in California, for instance, continues to be delayed by AT&T’s inability to obtain sufficient access to rights of way to place the necessary facilities. And, in Connecticut, litigation was necessary to remove unwarranted legal barriers to wireless broadband providers obtaining access to rights of way. But delays in obtaining access to rights of way for broadband deployment are only one piece of the puzzle. As the Commission explores approaches to facilitate nationwide broadband deployment, it is important to understand how all of the parts of the puzzle together contribute to lengthy delays in the deployment of broadband facilities. Only then can the Commission

develop a comprehensive approach that best facilitates broadband deployment for the factors it can control. The area of broadband deployment that most vividly illustrates the numerous factors that contribute to delay and unnecessary costs is the deployment of new cell sites needed to expand the coverage and capacity of wireless broadband networks. The difficulties with the deployment of new cell sites begin well before the local review process. In many of the urban and suburban areas throughout the country – where new cell sites are most needed – there simply are not that many suitable locations available for new cell sites, particularly for carriers with mature networks. When a carrier seeks to address a problem area within these mature networks, carriers’ “search rings” (the area where a new cell site could provide the needed coverage or

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capacity) are now much smaller than they were in the past. New cell sites today are typically placed on rooftops of buildings or similar structures, not on classic “towers,” and it is an increasingly arduous process to find a suitable location within these smaller search rings and to secure the rights to use it. A carrier must identify a location that has space available at the necessary height orientation, without obstructions or interference, and have the structural integrity to support the antenna and equipment. Even then, the owner must be willing to permit the carrier to deploy a cell site at that location, and in the face of strong and organized community opposition, many building owners are simply not interested. The lengthy process of identifying suitable locations with property owners willing to accommodate wireless facilities is followed by a lengthy process of obtaining local permits and approvals. It is at this stage where the Commission in 2009 took commendable action to reduce delays by adopting its “shot clock” rules, which set forth a “reasonable” time for state and local governments to act on such applications and provide for remedies where that time is exceeded.3 These “shot clock” rules were an important step forward, but they have proven far from sufficient in addressing unreasonable delays. Many local authorities have adopted practices and policies that have the effect of delaying action on new site applications well beyond the time permitted by the shot clock rules. For example, some local authorities have imposed moratoria on new cell site applications, manipulated the time when the application is deemed to be complete (and thus delaying the time they contend the shot clock starts), required applications to be resubmitted based on technicalities (which they say triggers a restart of the shot clock), or arbitrarily rejected See Declaratory Ruling, Petition for Declaratory Ruling To Clarify Provisions of Section 332(c)(7)(B) To Ensure Timely Siting Review and To Preempt Under Section 253 State and Local Ordinances that Classify All Wireless Siting Proposals as Requiring a Variance, 24 FCC Rcd. 13994, ¶ 4 (2009) (“Shot Clock Ruling”).
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applications, forcing applicants to start over. Local officials may also demand that AT&T place sites on property owned by the locality (thereby attempting to generate rent income), even if that property is not ideally suited for the site or if there are much less costly locations, or that AT&T pay for totally unrelated municipal initiatives (e.g., new parks). And in many cases AT&T is required to seek sequential approvals from multiple local authorities (which often have competing interests). The inherent difficulties in this process have been compounded by the rise of consulting firms that specialize in advising local authorities how to obstruct and delay the deployment of new cell sites. One of the largest of these consultants – which represents more than 700 communities in 32 states – claims that “[w]e assure . . . that a new tower is built only as a last, worst case scenario.”4 These consultants have developed model ordinances (which have been adopted by numerous localities) that are designed to make the deployment of new cell sites as difficult as possible, and which often require the wireless applicants to pay the consultants’ fees – creating additional perverse incentives for delay (because the more the consultants can prolong the process, the higher their fees). It is for all of these reasons that deploying new cell sites remains a lengthy process. For example, for the AT&T cell sites that came on air in 2010 in the Los Angeles, San Francisco, Chicago, New York, Baltimore, and Washington, D.C. metropolitan areas, it took more than two and half years from the time AT&T initiated the search for the site to the time the site was fully acquired with all approvals obtained. AT&T’s experience confirms that wireless carriers today face substantial obstacles that prevent them from swiftly deploying large numbers of new cells towers where they are needed to expand coverage and capacity. Because of these hurdles, the
4

See Web site for the http://www.telecomsol.com/home.html.

Center

for

Municipal

Solutions

(CMS),

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process of deploying large numbers of additional cell sites takes years, not months. Finally, as explained below, the Commission should supplement its existing environmental rules to further streamline the process of deploying cell sites, such as when Federally-recognized Tribes express an interest in the deployment and in situations where technology has outpaced the existing rules and processes. I. IN DEVELOPING ITS APPROACH TO REDUCING BARRIERS TO DEPLOYING BROADBAND FACILITIES, THE COMMISSION SHOULD BE AWARE OF ALL OF THE FACTORS THAT CONTRIBUTE TO DELAY. The practices of many local jurisdictions continue to hinder and delay carrier access to rights of way, and other sites needed to expand broadband capacity and coverage. For example, when AT&T sought to extend fiber-optic transmission into residential neighborhoods as part of its U-verse™ build in California, many cities attempted to block that deployment, and AT&T’s buildout was stalled in most areas until California passed a new statewide franchising scheme for video service providers. And even then, it required three lawsuits to re-initiate the buildout in many cities. To this day, the City of San Francisco has not allowed the buildout of the facilities needed for AT&T’s U-verse service.5 In Connecticut, legal action was required when the state planned to require wireless providers to obtain a state Certificate of Public Convenience and Authority before being permitted to place facilities needed to expand wireless broadband coverage and facilities in public rights-of-way.
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The City of San Francisco contends that the state environmental statute, the California Environmental Quality Act, precludes the buildout of AT&T’s Lightspeed network (needed for AT&T’s U-verse services). On two separate occasions, the San Francisco staff found – as have most cities throughout the State – that the Lightspeed build would not have a significant effect on the environment. However, in both instances, this finding has been appealed to the San Francisco Board of Supervisors, where it has faced opposition solely for aesthetic reasons. The latest application will be voted on by the San Francisco Board of Supervisors on July 19, 2011. See, e.g., Andrew S. Ross, AT&T Makes Final Push For U-verse Services In S.F., San Francisco Chronicle (Jul. 17, 2011), available at http://www.sfgate.com/cgibin/article.cgi?f=/c/a/2011/07/17/BUJ21KB06M.DTL. 5

The delays in broadband deployment caused by states and local authorities, however, are only part of the picture. As the Commission explores approaches to facilitate nationwide

broadband deployment, it is important to understand all of the factors that contribute to lengthy delays in the deployment of broadband facilities, including those that it may not be able to control. Only then can the Commission develop a comprehensive approach that best facilitates broadband deployment. One area of broadband deployment that vividly illustrates the diverse factors that contribute to delay and unnecessary costs in the deployment of broadband facilities is the deployment of new cell sites needed to expand the coverage and capacity of wireless broadband networks. As numerous competing wireless providers have saturated urban and suburban areas with cell sites – on towers, rooftops, church steeples, billboards, water towers, light posts, and so on – it is becoming increasingly difficult to find suitable locations to deploy new ones. At the same time, in response to the proliferation of wireless facilities from multiple wireless competitors, local communities are becoming increasingly resistant to the deployment of new facilities and upgrades to existing ones. Local communities are enacting increasingly restrictive zoning regulations and more complex application and approval processes, forcing carriers to prove why alternative sites are not suitable, demanding that carriers pay for unrelated projects (like community pools and parks), and increasingly rejecting applications on frivolous grounds. With this confluence of events, it is more difficult and time consuming than ever to identify suitable locations for new wireless facilities and to obtain the necessary local approvals to build new facilities or upgrade existing ones. For example, of the new sites that AT&T placed “on air” in 2010 in the Los Angeles, San Francisco, Chicago, New York, Baltimore, and Washington, D.C. metropolitan areas, it took an average of more than two and half years from

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the time AT&T initiated the search for the site to the time the site was fully acquired with all approvals obtained. Moreover, this statistic is conservatively low because it includes only the locations where AT&T was ultimately able to obtain approvals; it omits the sites where AT&T was unable to obtain approval and thus had to start over. A. It is Increasingly Difficult To Identify Suitable Locations For New Cell Sites.

In today’s environment, it has become harder than ever to find a suitable location for the placement of a new wireless antenna. Wireless carriers face a wide variety of obstacles in indentifying an acceptable location, and indeed, carriers often face almost every one of these obstacles every time they seek to deploy a new antenna. To begin with, there are multiple competing providers of wireless services in most local areas. According to a recent Commission report, 89.6 percent of the U.S. population is served by five or more facilities-based carriers.6 As a result, localities are often already blanketed with cell sites. Moreover, as customer demand for wireless services has been rapidly increased, carriers have been quickly deploying additional antennas to increase both coverage and spectrum capacity. As a consequence of the maturity and density of these existing wireless networks, finding new locations is much more difficult than in the past. When AT&T seeks to add coverage or capacity with a new cell site, AT&T first identifies a “search ring,” which is the geographic area where placement of a cell site could provide the necessary coverage or capacity. Search rings today, however, are much smaller than in the past. In an earlier era, when wireless networks were not as dense as they are now, AT&T and other carriers had the luxury of wide search rings See Fifteenth Report, Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993 Annual Report and Analysis of Competitive Market Conditions With Respect to Mobile Wireless, Including Commercial Mobile Services, FCC 11-103, WT Docket No. 10-133, Table 5 (rel. June 27, 2011).
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that encompassed many possible locations. Today, however, the areas experiencing capacity or coverage issues tend to be very specific and localized, and AT&T must draw small search rings to ensure that any new antenna maintains a proper distance from other AT&T antennas to prevent undue interference and to meet other engineering criteria.7 Once AT&T has established a search ring, it then analyzes all of the possible locations in that ring. It is important to understand, however, that only rarely will a new cell site be a classic cell “tower.” Indeed, the need for additional capacity or coverage tends to be in densely populated urban or suburban areas, and at this late date a new cell site will almost always be an antenna structure placed on an existing building. Very often it will be on the rooftop of an office building, but it could be on a billboard, light post, or water tower, or hidden inside a church steeple, or placed on private or public property elaborately disguised as a tree or as some other feature. AT&T carefully analyzes all such possibilities within each search ring, but the vast majority of them will be eliminated in the early stages, for a variety of reasons. Initially, AT&T performs a preliminary review using zoning maps, coverage and capacity prediction tools, and other desktop tools. This review typically shows that many buildings will not have enough available rooftop space, will not be at an acceptable height, or will face too many line-of-sight or other obstructions that cause interference. Zoning restrictions will also eliminate many sites. Indeed, many localities are adopting zoning and other regulations that prohibit the placement of cell towers in a growing number of areas. In some cases, entire areas may be severely restricted: for example, in San Francisco, many areas that require additional coverage and capacity are
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Specifically, AT&T establishes a search ring by using signal propagation modeling tools with a high-resolution terrain database to predict signal strength over the area of interest, and then models the impact of introducing a new antenna to produce predictive signal strength maps and a search ring to guide AT&T’s real estate and construction experts.

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residential areas, and most of these residential areas fall within zoning areas six and seven, which are the zones in which cell site approval is most difficult (if not impossible) to obtain. Similarly, large portions of the Chicago area that are zoned for residential use – e.g., Wilmette, Winnetka, Highland Park, Lake Bluff, Evanston, and Glencoe – have local zoning rules that broadly restrict wireless installations, and any attempt to obtain a variance is typically hopeless.8 In other cases, various other restrictions can eliminate many individual buildings. Fire codes in particular often restrict how much space is available on a rooftop for new antennas. New York City, for example, has adopted relatively new fire code restrictions that can significantly limit the location of antennas and equipment on rooftops.9 Given the large number of competitive carrier sites on New York rooftops (along with other types of equipment), these new restrictions will implicate twenty to thirty percent of all of AT&T’s potential new sites and upgrades in that city. The City of Chicago has adopted a different kind of restriction that places limitations on the height of an antenna site based on the number of collocated wireless carriers (75 feet for one, 100 feet for two, and 120 feet for three).10 Chicago’s ordinance applies to buildings as well as towers, but many buildings in Chicago exceed 120 feet, and under this code, AT&T cannot place a new facility on a rooftop unless it finds three other carriers to do so as well. AT&T’s only alternative is to apply for a special use variance, which Chicago has been
8

Although carriers may have been able to seek court intervention to address overly restrictive zoning requirements, such actions are lengthy and their outcome is uncertain.

See New York City Administrate Code, New York City Fire Code, Title 29, Chapter 5, § FC 504.1-5, Access To Buildings and Rooftops; see also Technology Management Bulletin # 02/2011, Battalion Chief Thomas J. Pigott – Chief of Technology Management of Technology Management Bureau of Fire Prevention (Feb. 9, 2011), available at http://www.nyc.gov/html/fdny/pdf/fire_prevention/otmb_02_2011.pdf.
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AT&T notes that although the City of Chicago has adopted certain restrictions that significantly delay the deployment of new cell sites, in other respects it has adopted forwardthinking policies and procedures that have helped to speed certain broadband deployments, e.g., Distributed Antenna Systems.

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generally unwilling to grant.11 AT&T also conducts field reconnaissance (i.e., street walks) at this stage to assess the suitability of potential sites. Once AT&T has identified buildings that appear promising, it contacts the landlord to gauge interest. Many landlords have no interest in hosting a cell site and flatly refuse to negotiate with AT&T. Others may express interest, and AT&T will then do a rooftop inspection. There, AT&T engineers can determine precisely whether the site can

accommodate an AT&T antenna. They can assess such things as the potential placement of an antenna in relation to obstructions, the available mounting locations on the rooftop and whether they have the necessary structural support, possible antenna height in relation to the rooftop and/or parapet, and the potential location of an antenna accounting for set-back requirements from the edge of the roof. The engineers also must ensure that any potential antenna is far enough away from “maximum potential exposure” exclusion areas – i.e., that it is far enough away from areas where the public has access, such as rooftop gardens or patios, adjacent rooftops and buildings, fire escape ladders and other rooftop pathways. AT&T will eliminate a number of locations at this stage as well, usually because there are no acceptable options for antenna location that would satisfy AT&T’s need for coverage or capacity, or the available structures do not have sufficient structural integrity or support to accommodate AT&T’s antenna or equipment. Even if a site passes these tests, more obstacles remain. Some landlords demand excessive rents; there are numerous instances in New York City, for example, where landlords seek excessive rents (in one instance, the landlord demanded $50,000 per month).
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Other areas of Chicago have adopted ordinances that make it virtually impossible to add new towers. For example, the Village of Park Ridge has an ordinance that requires a “fall zone” to be constructed around any wireless telecommunications tower that is equal to one-hundred twentyfive percent (125%) of the height of the tower.

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commonly, community activists will pressure landlords not to deal with wireless carriers. Indeed, local communities are becoming extremely resistant to new cell sites, and community opposition is quite common. Even landlords that initially express interest will very often buckle under such pressure and withdraw their offer, because they want good relations with their neighbors and do not want to be the target of a public campaign. The upshot is that even the first step of the process – finding a suitable site – now typically takes nine months or more, and in many cases much longer. Indeed, it is quite common for AT&T to experience almost every one of these obstacles every time it tries to find a new cell site location. For example, the San Francisco area is a very difficult location to identify suitable new sites, and AT&T has for years been trying to add a cell site in the Marina district, a mixeduse neighborhood. After the initial round of narrowing, AT&T has canvassed and actively pursued more than 20 locations identified as possible candidate sites in this area. At nearly half of these locations, the owner of the property either refused to deal with AT&T or was otherwise unresponsive to AT&T’s requests. In one case, AT&T proposed to place a cell tower at a park, and the government entity responsible for the park initially was open to working with AT&T, but after residents complained, the park owner refused to work with AT&T on the project. Several of the potential sites identified by AT&T ultimately failed the RF review process (i.e., the transmission characteristics at the location could not provide the needed capacity and coverage requirements), while others turned out to lack the structural integrity needed to place a new cell site.12

Likewise, in the Cole Valley area of San Francisco, AT&T finally identified nine potential locations for a new cell site. Two of the locations turned out to be subject to zoning requirements that would not permit the site, and the other sites turned out to be dead ends due to various factors, including landlords that backed out of negotiations because of community objections, failed RF requirements, failed structural requirements, or failed environmental 11

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These same problems exist throughout the country. For example, when AT&T recently sought to increase coverage and capacity in a D.C. neighborhood, AT&T ultimately identified six potential locations, none of which panned out. Two were schools that were unwilling to lease space to AT&T; one was a museum that was initially receptive but changed its mind when nearby residents raised concerns; two other structures turned out to be too short (only 30 feet); and another structure was a foreign embassy where the site could not be placed.13 For a recent site in New York, AT&T narrowed its potential choices to seven, but the landlords at several of them had no interest in leasing space to AT&T, and the only other location had inadequate structural and engineering features.14 In Los Angeles, AT&T recently identified 13 potential locations for a new cell site: the property owners at eight of the locations refused to allow AT&T to place facilities on their properties; two of the locations failed AT&T’s RF engineering requirements. Indeed, in recent months AT&T has cycled through dozens of other locations throughout the San Francisco area, including Pacific Heights, Diamond Heights/St. Francis Wood, Inner Sunset, Mission Dolores, Bayview/Hunter’s Point, Tranbay Redevelopment. In all of these areas, AT&T was met with landlords that refused to deal with AT&T (typically due to community resistance to cell sites), problems with the structural integrity of the location, failed RF review, and various other issues that have prevented placement of new cell site facilities.
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In another D.C. suburb, AT&T investigated six candidate locations before coming up empty. The problem was a very strong presence from the Piedmont Environmental Council that opposed any cell site development, and the few landowners who were initially willing to consider a lease had HOA covenants that precluded them from doing so. In downtown D.C., AT&T recently sought to increase capacity and coverage on the National Mall. All of the structures there are owned by the government. AT&T identified seven potentially suitable locations, but the owners and managers of those buildings rejected AT&T’s proposal for a cell site on security grounds or lack of authority to permit additional structures. In another area of Mall, AT&T identified six potential candidates, but four have already made clear that they are not willing to allow AT&T to place a cell site at their location and AT&T is now in the process of examining the two remaining sites in the area.

In a different New York search, AT&T’s initial candidate locations failed with one landlord seeking prohibitive rents ($6,000 per month), another landlord declining to lease to AT&T, and the remaining candidate unable to meet AT&T’s network engineering needs. In yet another search in New York City, two of the landlords were not interested in having an additional cell site on the roof, and the remaining candidate considered but ultimately rejected AT&T’s proposed site.

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review; AT&T did obtain a lease from one property owner (but a City Councilman was opposed to the site and AT&T’s application to build it was rejected); and it is now awaiting a response from the property owners at two additional locations.15 B. After A Suitable Location For A New Site Has Been Identified, The Process For Obtaining Zoning And Other Approvals Can Lead To Significant Delays, Notwithstanding The Shot Clock.

After a suitable and available location to install a new cell site is eventually found, it is then usually necessary to obtain approval from local zoning boards, city councils, or other local entities before AT&T can build the facility. At various locations throughout the U.S., localities are becoming increasingly opposed to new sites, regardless of their height or the extent to which they are camouflaged or otherwise hidden from view, and the zoning and permitting requirements that carriers must satisfy are becoming increasingly difficult, time consuming, and costly. It is not at all unusual for it to take more than a year for AT&T to obtain the needed approvals from localities to build a new cell site, and where AT&T is forced to pursue litigation over rejections, the entire process can take years. In November 2009, the Commission took the significant step of adopting a shot clock for State and local action on wireless facility siting requests – 90 days for collocation applications and 150 days for other applications – with the intention of minimizing delays in the process.16

For a potential site in Santa Clarita, AT&T identified three potential locations. One failed structural review (it was on a hillside and could not be modified to hold AT&T’s equipment), one was at a site that the city had scheduled to demolish, and the remaining one was at a site where the city refused to permit lighting (which rendered AT&T unable to satisfy the Federal Aviation Administration’s requirement of lighting). In Turtle Rock/Newport Coast, AT&T was unable to find any suitable locations for a needed new macro cell site, due to the low height of most buildings and the fact that it is mostly residential. AT&T therefore proposed a DAS system in the area, which has met with resistance and a lawsuit filed by local residents to block it.
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See Declaratory Ruling, Petition for Declaratory Ruling To Clarify Provisions of Section 332(c)(7)(B) To Ensure Timely Siting Review and To Preempt Under Section 253 State and Local Ordinances that Classify All Wireless Siting Proposals as Requiring a Variance, 24 FCC 13

Unfortunately, the shot clock has not been as effective as hoped. Local authorities typically have sufficient discretion that if, for whatever reason, they want to delay an application, they can find a way. For example, local authorities often require applications to be re-filed based on supposed technical infirmities, and they then contend that this re-filing restarts the shot clock. In other cases, in the guise of working with the applicant, local authorities reject one site with the promise of considering another nearby site, but then when the application for that alternative site is filed, it is rejected, with the promise of considering a third, and so on, resulting in long delays, and they contend that such delays are not technical shot clock violations.17 In other instances, local authorities simply reject applications on frivolous grounds (or on no stated grounds), requiring applicants to resort to the time-consuming appeals process.18 And in other cases, local

authorities approve a cell site, but only on conditions that clearly violate federal or other laws, thus ensuring that the site will not be built.19

Rcd. 13994, ¶ 4 (2009) (“Shot Clock Ruling”).
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AT&T recently experienced a twelve-month delay in obtaining approval for a new site in the City of Mission Viejo, California, when the staff for the planning board suddenly dropped its support for the project, and required AT&T to submit an application for an alternative candidate; the Planning Board then rejected that design, and ultimately directed AT&T to retry with its original candidate (which was ultimately approved). Similarly, AT&T has been working with Chino Hills, California for 18 months to get a cell site approved near a scenic highway. The city has repeatedly rejected the various design plans offered by AT&T to minimize the visual impact (so far, AT&T has offered designs that look like a Cyprus tree, a telephone pole, and a water tank). In Phoenix, Arizona, on Route 51, AT&T applied to place a new tower on property owned by a church where other sites were also located. After discussions with residents, AT&T agreed to disguise the pole (by putting the antenna on the inside and painting it to look like a tree) and to set it further back from the residential areas. Still, the application was denied, and the only reason identified was that the proposed location is in a “special part of Phoenix” in that Route 51 leads into the Phoenix Mountain preserve (it is not actually in the preserve). Placement of this tower will continue to be delayed as AT&T challenges the decision in federal court.

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For example, AT&T recently applied to place a 200 foot tower in a city in California. The Federal Aviation Administration requires that towers of that height have lights. The city rejected AT&T’s application on the grounds that the light would disturb nearby residents.

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Local authorities also seek to evade the shot clock by delaying when an application is technically “complete,” and contending that the shot clock does not start until they deem it to be complete. In the most extreme cases, local jurisdictions that do not want new cell sites seek to circumvent the shot clock altogether by placing a moratorium on new applications.20 In other cases, local authorities impose numerous time-consuming pre-application requirements on applicants before they will even accept an application. For example, many local zoning

authorities supply an applicant with long lists of alternative locations for the proposed site and require applicants to prove that these alternative locations are not suitable as a pre-requisite to accepting an application, a process that typically delays the application by many months.21 In other instances, local authorities impose other time-consuming pre-filing requirements, such as
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For example, Richmond, Virginia has had a moratorium against new wireless applications for two of the past three years while it passed more restrictive ordinances, and after discovering that these new more restrictive ordinances still did not block all of the sites the city council hoped, it voted in favor of a new moratorium. Talbot County, Maryland, after a 20 month moratorium on new cell sites, has established a “telecom zone,” and any application for a new site outside of that telecom zone – which AT&T needs to satisfy coverage and capacity requirements – requires as a pre-requisite to accepting the application that the applicant prove that a list of candidates within the telecom zone (provided by Talbot County) are not suitable. This process has stalled one AT&T site application for more than two years. In the Washington, D.C./Baltimore area, for example, the jurisdictions covering two-thirds of AT&T’s cell sites always submit a list of locations to AT&T and require AT&T to explain why those additional locations are insufficient before they will consider AT&T’s application. For example, in Fairfax County, Virginia, AT&T is seeking to add nearly 30 new sites. But the city of Fairfax has stated that it does not want any more cell sites, and one of the main strategies it uses to delay and thwart applications is to provide applicants with a long list of alternative sites and requiring proof as to why each of those sites is not a valid alternative. To make matters worse, these lists almost always contain elementary school properties, and these school officials have repeatedly told AT&T that they will not permit a cell site to be place on school property. AT&T has informed Fairfax County of this but elementary schools remain on the list. Likewise, in Irvine, California, AT&T recently filed an application to add a new site, but the city would not accept AT&T’s application until AT&T proved that nine alternative rooftop locations were not viable alternatives, resulting in a lengthy delay. Likewise the consultant used by Baltimore County requires applicants to review additional locations, which are often miles from the location where capacity or coverage is needed. In Baltimore, AT&T was recently required to rule out eight alternative candidates presented by the county, which took months to vet.
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building life-sized mock-ups of the proposed cell site.22 And in still other cases, local authorities implement a multi-layer review process where it is unclear when or if an application has even been accepted for review, thus making unclear whether the shot clock has begun.23 The shot clock rules also do not prevent local authorities from continuing to engage in other questionable practices that increase carrier costs and delay deployment. For example, many local authorities continue to require a carrier, as a condition of the zoning approval for a new site, to finance unrelated city projects, such as a new park or a technology project, often adding months of delay in the zoning approval process (as the parties negotiate the terms of the unrelated projects) and millions of dollars in additional costs for the carrier.24 Moreover,

localities are increasingly seeking to capture the rental income from new cell sites by enacting zoning and other requirements that effectively require carriers to place new cell sites on public property, even if there are much less expensive or more efficient locations.
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For example, in Irvine California, AT&T was required to create a detailed mock-up of the site using the city’s vendor, a project that took four months to complete and another six months for the city to approve. One of the most extreme examples is in Waltham, Massachusetts. Applicants must prepare and submit an Official Development Prospectus, which must be hand delivered to, reviewed by, and signed off on, by the following departments: Building, Public Health, City Engineer, Conservation Commission, Superintendent of Schools, Recreation, Traffic, Public Works, Police Chief, Fire Chief, and Historical Commission. Each department takes time to review the proposal before approving (or denying) it, before it can be taken to the next department. Once all departments have signed off, a special permit application can be submitted to the Waltham City Counsel and a public hearing is scheduled. Getting the hearing on the docket typically requires a meeting with the City Clerk and substantial paperwork. Once the initial public hearing is completed the application is sent to the Ordinance and Rules Committee for further review and testimony. After this committee is satisfied, a draft decision submitted to the City Solicitor who reviews the application. This entire process is required for any new site or modification to an existing site, and even if everything goes completely smoothly, it almost never takes less than a year to complete. In Maryland Heights, in response to an AT&T application for a new cell site, the city sought to require AT&T to pay for part of the development of a private ballpark redevelopment program as a condition of obtaining approval for a cell site. After significant delay, AT&T ultimately negotiated paying to only repave the ballpark’s parking lot. 16

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Local jurisdictions are even opposing AT&T’s attempt to deploy Distributed Antenna Systems (“DAS”) that use much smaller antennas placed on existing utility poles. For example, Silicon Valley and at least two cities – Mountain View and Los Altos – have taken the position that AT&T cannot place antennas on a pole-top extension extending a few feet above existing utility poles. They contend that the antennas would violate the residential height restriction – even though there is no zoning height restriction for the public rights of way, and normal zoning requirements do not usually extend to public rights of way. In fact, if that were the case, all utility poles in residential areas would exceed the zoning height limitations. The City of Mountain View is taking the position that it must have a new ordinance just for DAS facilities before it can allow them, and it is demanding that AT&T must file a $30,000 application fee just to file an application. To make matters worse, “consultants” have increasingly begun to insert themselves into local cell site zoning application processes, adding additional layers of delay. The largest of these consultants – serving localities in 32 states – advertises on its website that that “[w]e assure” that new facilities are “built only as a last, worst case scenario.”25 These consultants routinely convince local authorities to require applicants to conduct extensive and unnecessary studies proving why additional capacity is needed in the area, and why various other sites identified by the consultants (often located outside the area where the coverage or capacity is needed) are not adequate to serve that purpose. Moreover, the compensation mechanisms used by these consultants creates strong incentives for them to delay cell site zoning application proceedings for as long as possible. The localities that use these consultants typically adopt ordinances (drafted by the consultant) that require the applicant to pay the consultant’s bills for See Web site for the http://www.telecomsol.com/home.html.
25

Center

for

Municipal

Solutions

(CMS),

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reviewing the application.26 As a result, the longer the consultants can draw out the process – creating more work for them – the more they get paid.27 The shot clock rules also are ineffective in situations where carriers must obtain approval from federal government entities or other entities that are not subject to the rules. For example, AT&T is currently seeking to expand coverage and capacity at Bolling Air Force Base. This process requires permission to transmit RF signals on the base (this process is still pending), and also requires AT&T to go through the Government Services Administration to obtain a lease on the property where the site will be located, which is also a very slow process. AT&T is also seeking to improve coverage and capacity at Quantico, but that process requires the FBI to issue a Request For Proposal (“RFP”). AT&T has been waiting 18 months for the FBI to issue the RFP. Finally, in addition to the myriad delays described above, AT&T’s zoning applications are frequently caught up in the whims of local politics, resulting in arbitrary denials, appeals, and sometimes befuddling outcomes and additional burdens. A recent case in Liberty, Missouri, illustrates the types of delays that AT&T routinely encounters. AT&T proposed a 150’ exposed tower on the same parcel of land where Sprint already had an 80’ tower. Because the tower was exposed it required a zoning exception. The zoning board staff was initially supportive of AT&T’s proposal and designs, the Planning Commission unanimously recommended approval of the application, and AT&T heard no objections from the Liberty City Council. But the City As explained by one consultant’s website: our “services cost communities nothing”; our fees are “paid for the by the Wireless applicants.” Id.
27 26

These consultants also promise local governments that, whenever possible, they will require carriers to place equipment on property owned by the local governments, even if it is more costly: “We help local officials actually require the use of County or Municipal owned property to open opportunities for new and increased revenue.” “We’ve never failed to achieve a dollar amount that was significantly more than was offered and in many cases two or three times the offered amount.” Id.

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Council surprised everyone when it unexpectedly voted 5-3 against the proposal, with no explanation. In subsequent meetings the City Council explained that it now believed AT&T’s proposed tower was too tall. This resulted in a lawsuit and a settlement. Under the settlement, AT&T obtained permission for a 100-foot monopole with internal antenna canisters, but one of the conditions was that the color or painting scheme be maximally camouflaged and approved by the city. AT&T submitted three proposed painting schemes that satisfied this condition, but the City then requested that AT&T paint the pole to look like a pencil. So, after more than a year of delay – and denials on the grounds of the alleged conspicuous nature of the proposed site – there is now a 100 foot AT&T cell tower in Liberty, Missouri, that is “disguised” as a gigantic pencil. For all of these reasons, the Commission should consider a supplemental declaratory ruling to strengthen the shot clock restrictions and to establish the following refinements: (1) The Commission should clarify that the 90-day timeframe for “collocation” applications is not limited strictly to attachments on an existing structure, but rather encompasses any application that does not require the construction of a substantial new facility. (2) The Commission should also shorten the clock for collocation applications to 60 days; the Commission previously found that some states have shorter time limits, but the Commission adopted 90 days as a relatively conservative measure.28 (3) The Commission should also consider rules establishing that an application is deemed granted if the local authority fails to act within the specified timeframes. Although the Commission previously declined to adopt such a requirement,29 experience shows that under the existing ruling, the mere threat of lawsuits often has little deterrent effect on local authorities, because they believe that at most the court will simply order them to complete review of the application; in other words, local authorities often treat the shot clock rules as having no
28 29

Shot Clock Ruling ¶¶ 46-47. Id. ¶ 39.

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teeth at all. At the least, the Commission should clarify that, in a typical case, the court should issue an injunction ordering the authority to issue the approval.30 (4) As explained above, local authorities frequently deem an application to be “incomplete” and require carriers to resubmit the application, and these authorities then take the position that the shot clock has not started. The Commission should close this supposed loophole by prohibiting local authorities from establishing pre-filing requirements (such as proving that a list of other sites are not appropriate) or engaging in other tactics (such as unwarranted rejections for incompleteness) designed to thwart the shot clock. (5) Finally, the Commission should use its authority under Section 253 of the Act to extend the same rules to wireline deployments. In addition, with respect to deployments on federal property, the Commission’s Technical Advisory Council recently proposed that the President issue a “Broadband Infrastructure Executive Order” that would mandate a “single document format for permitting,” a “single federal agency to coordinate the permit approval process,” and a “sixty day time frame for approvals.”31 It would also “advance the development of micro cells, distributed antenna

systems (DAS), and other innovative broadband infrastructure.”32 The Commission should formally recommend that the President issue such an Executive Order expeditiously. II. THE COMMISSION’S ENVIRONMENTAL RULES SHOULD BE UPDATED TO CLOSE LOOPHOLES IN THE PROCESS AND TO ACCOUNT FOR THE EVOLUTION OF WIRELESS TECHNOLOGY. In addition to local and regional zoning obstacles to wireless facility deployment, the Commission’s environmental rules can impose significant delays in site deployments. These

30 31

See id.

Memorandum from Tom Wheeler, Chairman of the Technical Advisory Council, to the FCC, “Technical Advisory Council Chairman’s Report,” at 2 (April 22, 2011). Id.

32

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delays can occur with both collocations and new builds and can run anywhere from four months to a year. Although the Commission has developed streamlined procedures to obtain clearance under the environmental rules, those procedures have not kept pace with today’s technology, such as Distributed Antenna Systems (“DAS”) and stealth deployments, and can also contain gaps that allow interested parties to impose delays in the process. All new wireless facilities, including collocations, must comply with the Commission’s National Environmental Policy Act (“NEPA”) rules (47 CFR §1.1307) and Section 106 of the National Historic Preservation Act (“Section 106”),33 which generally require a review of the potential impact of the facility on the human environment. In 2001 and 2005, the Commission entered into two programmatic agreements – the Nationwide Programmatic Agreement for the Collocation of Wireless Antennas34 (“Collocation NPA”) and the Nationwide Programmatic Agreement Regarding the Section 106 National Historic Preservation Act Review Process35 (“Section 106 NPA”) – that streamlined the processing of wireless facilities to comply with the Commission’s NEPA rules and Section 106. These programmatic agreements proved extremely beneficial to providers, as they provided exemptions where warranted and certainty and finality to many aspects of the review. While those benefits remain and should not be lost, the

Commission can further streamline and improve the process. First, Section 106 requires tower owners to obtain tribal clearance prior to constructing a new tower. Pursuant to the Section 106 NPA, an entity seeking to locate a wireless facility

33 34

16 U.S.C. § 470f.

See, Nationwide Programmic Agreement for the Collocation of Wireless Antennas, available at http://wireless.fcc.gov/releases/da010691a.pdf. Report and Order, Nationwide Programmatic Agreement Regarding The Section 106 National Historic Preservation Act Review Process, FCC 04-222, WT Docket No. 03-128, App. B (rel. Oct. 5, 2004).
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provides notice of the proposed facility to Federally-recognized tribes,36 which notify the applicant if the Tribe might have an interest in reviewing the proposed project. Many tribes that respond in the affirmative and undertake such a review complete that review in a timely manner.37 However, as currently drafted, if a tribe responds that it wants to be an interested party in the review of the facility, the tribal approval timeline becomes open-ended. While most tribes complete their review within a responsible time, a few tribes are very slow in reviewing the sites, even after the tower owner escalates to the Commission and the Commission uses its best efforts to informally obtain a decision from the tribe. In these cases, Tribal approvals have taken four to six months after escalation, extending the delay up to nine months to a year after the initial tribal request. Second, for collocations with DAS Deployments, the Collocation NPA contains streamlined Section 106 procedures for collocations. Generally, when locating antennas on a building or non-tower structure, the licensee need not perform a Section 106 review unless the building or structure is over 45 years of age, in a historic district, within 250 feet of a historic district and the antennas are visible from ground level in that district, listed in or eligible for listing in the National register of Historic Places, or the subject of a complaint received by the Commission. Otherwise, a Section 106 historical review (with State Historic Preservation These procedures were

Officer review) and tribal clearance through TCNS are required.

developed in 2001 when smaller cell deployments, like DAS and repeater systems, were not
36

Applicants and Tribes use the Tower Construction Notification System (“TCNS”) to automate the tribal clearance request and approval process. The Section 106 process is deemed complete if a tribe has not expressed an interest in a proposed facility within about 90 days after submission of the TCNS submission. See Declaratory Ruling, Clarification of Procedures for Participation of Federally Recognized Indian Tribes and Native Hawaiian Organizations Under the Nationwide Programmatic Agreement, FCC 05-176 (Oct. 6, 2005).
37

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common, and are not suited to processing through the Collocation NPA process, though that is better than imposing the full Section 106 review. DAS and repeater deployments on buildings and other structures, including outdoor DAS deployments on street poles, utility poles, or traffic poles, create minimal impact on the surrounding environment due to their low visibility. Requiring Section 106 review for those deployments is inefficient and time consuming and frequently results in delays in broadband deployment. AT&T anticipates that the deployment of DAS and repeater systems will accelerate over the next few years, creating the potential for additional delays and uncertainty. The Commission can help to address these issues through further streamlining of the Section 106 process. This would likely require negotiations with tribes, the State Historic Preservation Officer, and the Advisory Council on Historic Preservation to update or supplement the NPAs. These types of deployments will only increase in the next few years. A failure to resolve these problems creates a potential for delayed facility deployment and will result in the expenditure of substantial resources to clear sites that have minimal impact, with little benefit to consumers or the environment.

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CONCLUSION For the foregoing reasons, the Commission should continue its efforts to further eliminate inefficiencies and delays in the deployment of broadband services caused by inefficient local requirements. Respectfully submitted,

/s/ William A. Brown David L. Lawson James P. Young Christopher T. Shenk SIDLEY AUSTIN LLP 1501 K Street, N.W. Washington, D.C. 20005 202-736-8088 William A. Brown Gary L. Phillips Paul K. Mancini AT&T Services, Inc. 1120 20th Street, N.W. Suite 1000 Washington, D.C. 20036 202-457-3007 Its Attorneys

July 18, 2011

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