Promoting Broadband Infrastructure Locally And Nationally: Legal And Policy Developments

Thursday, August 16, 2012 - 14:29

According to USA Today, on Christmas Day 2011, over seven million smartphones were activated around the world, along with 240 million app downloads.[1] As one analyst put it, “bazillions of angry birds were launched that day.”

Current estimates show 327.6 million active wireless devices in the U.S. This means that there are now more active broadband tablets, cell phones, and mobile devices than people.

Worldwide digital content online will grow 48 percent this year, which means there will be a correspondingly greater need for fiber, wireless connections and servers. As a result, cable companies are finding that a “broadband crunch” may require network speed caps or alternative pricing schemes for subscribers with increased use of data or video-rich downloads.

These developments point to the exponentially growing need for additional broadband facilities as well as an infrastructure that can handle the demand for more content at faster Internet access speeds. In 2009, the FCC commissioned the National Broadband Plan.[2] The findings acknowledged that barriers to infrastructure development are deterring the private investment necessary for building and expanding broadband networks. In response, several developments in the past few years indicate a concentrated effort to enable new and advanced facilities and infrastructure. While much more needs to be done, particularly to expedite local approval of infrastructure expansion, this article highlights some of the more positive developments.

First, on February 22, 2012, President Obama signed the Middle Class Tax Relief and Job Creation Act of 2012.[3] Section 6409(a) states that a state or local government “may not deny, and shall approve” any application to collocate, remove or modify equipment on a wireless tower or base station, so long as the action does not substantially change the physical dimensions of a tower or base station. Clearly this “as of right” mandate in federal law will expedite collocations on existing towers so that time-consuming zoning applications are not required for simple collocations on existing towers that have already gone through a land use permitting process.

Second, on June 14, 2012, President Obama signed an executive order entitled “Accelerating Broadband Infrastructure Deployment” to facilitate broadband deployment on federally owned land, buildings and rights of way.[4] The executive order creates a working group of agencies (United States Parcel Service and the Departments of Agriculture, Commerce, Defense, Interior, Transportation and Veterans Affairs) to offer carriers a single process and master agreement in accessing federal assets for purposes of broadband infrastructure deployment.

Third, on January 27, 2012, the U.S. Court of Appeals for the Fifth Circuit upheld the FCC’s “shot clock” regulations.[5] These regulations[6] were an attempt by the FCC to put time frames around the congressional mandate in 47 USC § 332(c)(7), which requires that local governments act on requests to build wireless facilities “within a reasonable period of time.” The FCC determined that local governments should take no more than 90 days to act on collocation applications and no more than 150 days to act on all other applications.

Fourth, in the past two years there has been greater use of distributed antenna systems (DAS).[7] Large wireless towers are still needed, but the wireless facilities need to get closer to the end user to help alleviate capacity and congestion problems. This is accomplished by locating smaller installations on buildings, light poles, or in large venues. For example, in New York City and its suburbs, DAS providers make use of utility poles and the 200,000 municipal light poles to install antennas, nodes and fiber-optic cable equipment. These “nodes” are carrier neutral and can be used by several wireless carriers to enhance their coverage in urban canyons, in large sports arenas, on winding suburban roads, and in other situations with coverage and capacity challenges.

Fifth, courts have attempted to strike a balance between the need that residents, businesses and public safety operators have for reliable and state-of-the-art wireless services and the need to ensure that telecommunications facilities are compliant with reasonable local land use policies and zoning requirements. In New York, for example, recent case law indicates that judicial interpretations of the Telecommunications Act are more favorable to wireless infrastructure build-outs and less tolerant of impermissible local opposition and foot dragging. [8]

Finally, New York City Mayor Michael Bloomberg introduced in June of 2012 a suite of initiatives meant to accelerate broadband deployment in commercial properties around the city to house new tech companies. Broadband access is spotty in some areas because of the prevalence of older properties, which are located away from major fiber backbones and have outdated internal wiring.[9] Among the initiatives is a streamlined permitting process for fiber deployment in the rights of way. In addition, the NYC Department of Information Technology and Telecommunications (DoITT) has been soliciting proposals for additional telecommunications and information services franchises from metro fiber service providers[10] to supplement the competitive market that is already in place.

The growth in broadband usage, both wireless and wireline, is extremely robust, and the need for new infrastructure must keep pace. Policy makers and governments at all levels should focus on the need to “build out” fiber and wireless broadband telecommunications networks in the 21st century, similar to the focus on public infrastructure that surrounded the rise of railroads in the 19th century and highways in the 20th century.


[1] Roger Yu, App Developers Reap Benefits of Tablet, Smartphone Mania, (USA Today Dec. 29, 2011), available at http://www.usatoday.com/tech/news/story/2011-12-29/app-sales-boom/52276388/1.

[2] The FCC, Connecting America: National Broadband Plan, (2009), available at http://download.broadband.gov/plan/national-broadband-plan-table-of-contents-exhibits-preface.pdf.

[3] See 47 U.S.C.A. § 1455 (West 2012).

[4] Exec. Order No. 13616, 77 Fed. Reg. 36, 903 (June 14, 2012).

[5] City of Arlington v. FCC, 668 F.3d 229 (5th Cir. 2012); see 47 U.S.C.A. § 1455 (West 2012).

[6] In re 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, WT Docket No. 08‑165, Declaratory Ruling, FCC 09‑99, (Nov. 18, 2009), 24 F.C.C. Rcd., 13994 (2009).

[7] A Distributed Antenna System (DAS) is a network of antennas and fiber optic cable and equipment and is generally attached to existing utility structures. The number of DAS “nodes” in operation in the US could double to 20,000 by the end of 2012, and could reach 150,000 by 2017. In re: Implementation of Section 224 of the Act; WC Docket No. 07-245, A National Broadband Plan For Our Future, GN Docket No. 09-51, FCC 11‑50 Report and Order and Order on Reconsideration, at ¶ 6 n.13 (April 7, 2011), 26 F.C.C. Rcd. 5240 (2011). These numbers may be conservative. Globally, one expert expects 2.5 million DAS nodes to be deployed in 2017. See Mobile Experts LLC – www.mobile-experts.net.

[8] See, e.g., Bell Atl. Mobile of Rochester LP v. Town of Irondequoit, No. 11-CV-6141-CJS-MWP 2012 U.S. Dist. Lexis 11420, (W.D.N.Y. Jan. 31, 2012); New Cingular Wireless PCS, LLC v. Town of Fenton, No. 3:11-CV-510 (ATB) 2012 U.S. Dist. Lexis 437 at 2, (N.D.N.Y. Jan. 4, 2012); MetroPCS N.Y., LLC v. City of Mount Vernon, 739 F. Supp. 2d 409 (S.D.N.Y. 2010). Also, the New York State Wireless Association has proposed a model ordinance to balance local municipal concerns with the need to facilitate wireless infrastructure siting and deployment. A copy is available at: http://www.newyorkstatewireless.org/Tools/BroadCaster/Upload/Project124/Docs/Sharp5111_ cuddyfeder_com_20120222_120949.pdf.

[9] Press Release, N.Y. C. Econ. Dev. Corp., Mayor Bloomberg and Speaker Quinn Announce New Initiatives to Expand New York City’s Broadband Connectivity Bolstering the Growing Tech Sector and Allowing Businesses and Residents to Access High-Speed Internet (June 21, 2012), http://www.nycedc.com/press-release/mayor-bloomberg-and-speaker-quinn-announce-new-initiatives-expand-new-york-city-s.

[10] City of N.Y. Dep’t of Info. Tech & Telecomm., Solicitation of Proposals Regarding Franchises, in the City of New York, authorizing the Installation of Landline Facilities, (Oct. 31, 2011), http://www.nyc.gov/html/doitt/downloads/pdf/info_svc_solicitation_102611.pdf.

 

David E. Bronston is Special Counsel in the New York City office of Phillips Lytle, where he focuses his practice on telecommunications.

Please email the author at dbronston@phillipslytle.com with questions about this article.