Public Safety Advocate: The Feds, States, and Locals Who Wins?

Thu Apr 27 14:20:18 2017

This week’s Public Safety Advocate does not deal directly with Public Safety communications however, it does deal with a topic that could and probably will impact AT&T’s construction of the FirstNet broadband network and could also impact LMR systems going forward. The issue is the battle for tower and right of way siting (placement) that is currently taking place between the FCC, the states, and the local jurisdictions.

This battle is heating up. On the one hand you have commercial network operators that are anxious to deploy small cell and other technologies as they move toward providing more bandwidth and capacity for their customers. On the other end of things you have the citizens and network customers who are divided into two groups: those who want and need more broadband capacity and speed and those who believe they need the coverage but not in their backyard where they might be subject to unproven health hazards. Fortunately, this last group is small in number, but during local permit hearings they are usually the only ones who show up and they are very vocal.

It used to be that the FCC and local jurisdictions were in the middle of these two groups. However, the FCC passed laws that limited what local entities could do when reviewing a permit request for a wireless site. Over the years, the FCC precluded locals from turning down applications based on perceived health dangers and put into effect a “shot clock” that gives the local jurisdiction a timeframe for reviewing and issuing or turning down a permit. The locals have also re-written their ordnances to give them the ability to regulate the types and number of towers and other sites that will be approved. This was followed by a new law that was included in the law that created FirstNet that towers can be expanded out or up a certain amount to accommodate additional antenna systems without requiring a completely new set of environmental and permitting work on the part of the tower owner.

Then along came the issue of right of way deployment of small cells. There have been multiple systems installed on existing telephone poles providing broadband services using small cell technologies for many years. A number of these systems have been fought by local jurisdictions and their citizens because until recently they looked like really ugly appendages to the poles. Further, those who needlessly fear for their health by being in close proximity to these small cells are feeling boxed in because they have a smart meter in the back of their house spewing out RF radiation and now a new ugly device hanging on the pole in front of their house doing the same thing. Add to this that the cost to attach to a pole depends on who owns the pole, if it is controlled by the pole owners’ association, what the FCC fees are, and more.

On to 5G

The advent of the small cell technology opening up more spectrum in much higher portions of the spectrum relies on being able to place these cells fairly low and not very far apart—so telephone, power poles, and street lights are ideal locations. The battle that is brewing is that the network operators are asking for more freedom to deploy these cells, and a break on the attach fees being charged. Locals are concerned about the aesthetics of these devices, if they require a pedestal on the ground next to the pole for power and, of course, if they own the poles they want to collect as much money as possible. Another contentious item is that where there are underground utilities some of the tower and carrier companies want to come back and plant new poles for their equipment. Add to that the fact that most network operators do not want to share access of their own small cell with other companies and the landscape could become really crowded with poles and small cells. Those using the systems would be happy but nobody else would.

Into the Breach

In the middle of all this we have a new FCC Chairman who appears to be more willing to accommodate the carriers than before and then add the fact that states, seeing an opportunity to interject their own view into this and to take part in the gold rush they believe will happen, have started passing state laws that usurp even more of the local jurisdiction’s authority to regulate the right of ways and other areas where broadband wireless needs to be deployed. The classic battle is taking place in several states but nowhere is it as noticeable as in Ohio. Ohio passed a law and many of the local jurisdictions are hopping mad and working on new rules of their own to limit the effect of the state’s law. So now we have the federal government, states, and local jurisdictions all trying to regulate who can do what to whom and for how much.

And there is yet another wrinkle to this puzzle. As the vice-president of the Government Wireless Technology and Communications Association (GWTCA) states, our organization’ members are concerned about entities such as power companies whose right of ways extend through many local jurisdictions and even states and are having to deal with many varying sets of rules and fees. From the organization’s perspective, it would be ideal if there were a standard set of rules that applied nationwide but we also know it is not realistic, so the goal is to minimize the number of different entities a utility must deal with.

At the end of the day, as all of this plays out and it is not yet determined who ends up with the most control of the placement process, it could impact both FirstNet and Public Safety systems going forward. Interjecting rules and laws from three levels of government does not make sense to me. Since I have spent a lot of my life working with local jurisdictions and have testified (if that is the correct expression) at many planning commission hearings either for the city or county or in some cases on behalf of the network operator, I tend to lean toward the final level of control being with local jurisdictions since they are the ones who must live with and look at the results of the placement of these towers, poles, and other assorted types of structures that support broadband wireless systems.

I know from my time in Santa Barbara that the City is undertaking the very expensive task of moving above ground utilities underground one section of the city at a time. Further, it has defined a standard street light fixture so they are the same all over the city. None of those in the City government nor the residents of the city really want these streetlights adorned with appendages to enable small cells. I know from my work with other cities and counties that Santa Barbara is not alone in its desire to keep its city aesthetically attractive.

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Older Style Pole Mounted Small Cell

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Newer Type of Small Cell Attached to a Pole

Is there one answer to solve the problem of placement, pricing, and timeliness going forward? If there is I have not been able to think of it and none of the very smart folks I have talked to at all levels of this issue have an idea for a single solution. What we all do know is that as demand for broadband wireless services increases, the need for more and more small cells will continue to be a requirement. For example, according to an article in the Intel Newsroom each self-driving car will require 4 Terabytes of data per hour! If we expect our networks and connections to our networks to be able to support today’s demand for data, the predicted doubling of that amount of data in only a few years and now developments such as the Internet of Things and self-driving cars, there will have to be compromises made to provide the infrastructure to support all of this.

I would suggest a meeting of all of the parties involved but being a realist I know there are too many organizations, each with their own agendas, and some would be unwilling to compromise. So what is the answer? I guess as we go forward we will find out that there are a number of different answers. In the meantime I am hoping these issues will not interfere with the roll-out of the FirstNet broadband network.

Andrew M. Seybold

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