Distributed Antenna Systems (DAS) are increasingly being deployed across communities—particularly in college and university communities. With this increased attention to the merits of DAS, it seemed timely to present a view of items for consideration, planning and ultimate deployment of DAS with particular attention to legal obligations and strategies for successful implementation.
General Overview
At its most basic level, DAS is a hybrid collection of smaller wireless antennas that exist to support wireless networks. They are perfectly suited to campus environment, particularly so long as the campus is in need of network capacity. Given the ubiquitous presence of smart phones and other bandwidth hogs, it’s probably not that big of a stretch that DAS solutions are soon required in nursery schools.
Planning for DAS deployment includes a great deal of detailed work, not solely from the engineering perspective, but from those of public safety, finance and legal as well. With this in mind, this document, with the active participation of well-respected DAS consultant Jim O’Gorman of Communications Engineering, LLC, and past-president of the Society of Telecommunications Consultants, Inc should serve to highlight those issues which should be considered not once DAS is installed, but before even the most basic decisions to proceed are made. Relevant federal laws will be presented in detail, although for state and municipal specific information, legislation, rules and guidance will likely be different based on a broad array of conditions that exist at individual locations.
I. Federal Law
While the federal government has often been slow to exert its regulatory muscle in many issues associated with telecommunications infrastructure, this has not been the case—or at least is not currently the case--with respect to rules governing DAS deployment. Specifically, the federal government, supported to some extent by recent court decisions, has tried to create an environment where local authorities can call the shots—unless those shots mean preventing the expansion of wireless services within communities. Translation – the decisions can be local, unless a locality decides that denying potential market participants is the action they want to take, and then federal law intercedes. Motivated by a clear understanding that DAS can provide a healthy amount of bandwidth over a controlled area at a reasonable cost, the federal government has taken some important steps to ease the regulatory hurdles that have often made deployment of new technologies difficult.
There are three primary federal statutes the address—and potentially impact—local authority over wireless communications facilities. The most recent of these comes from § 6409 of the 2012 Middle Class Tax Relief and Job Creation At of 2012 (Pub.L. 112–96, H.R. 3630, 126 Stat. 156, enacted February 22, 2012), and which, in relevant part, addresses the challenges of collocation of new and replacement equipment on existing wireless towers. 47 U.S.C. § 332(c)(7), which was included in the original Telecommunications Act of 1996 (P. L. No. 104-104, 110 Stat. 56 (1996)), preserves local authority over wireless tower placement, while also setting parameters for local action on requests for placement of new wireless facilities. In contrast, 47 USC §253 preempts local laws and regulations that prohibit (either directly or effectively) any entity from providing telecommunications services.
Section 6409 – Collocation
This section of the law addresses the installation and modification of wireless facilities on support structures (read: towers and poles) that already exist. This section of law, which became effective immediately upon passage, was drafted in response to complaints by wireless providers that despite increasing demand for services, municipal governments were often less than cooperative in allowing providers to place or modify additional equipment on existing structures. While the full text of the relevant statute is available here, additional guidance is available here, at the most basic level, the important information for end users to be aware of is that some modifications to existing antennas and towers are permissible, whether local government is supportive or not.
Section 6409(a) reads:
The original statute’s language is inherently vague for its failure to define key terms including “collocation,” “tower,” “base station,” and “substantially change.” However, key definitions that were not included in the original legislation have now been issued in a non-binding guidance document (key phrase there is “non-binding”) issued by the FCC in January, 2013.
The information that follows, with italicized commentary, is a quote from the guidance document providing some necessary clarification:
Another area of vagueness left by the language in § 6409(a) is the definition of the phrases “wireless tower” and “base station.” The FCC’s recent guidance document also refers back to the National Collocation Agreement where the following information is provided:
According to the FCC, “Section 6409(a) applies to the collocation, removal, or replacement of equipment on a wireless tower or base station. In this context, we believe it is reasonable to interpret a ‘base station’ to include a structure that currently supports or houses an antenna, transceiver, or other associated equipment that constitutes part of a base station.[2] Moreover, given the absence of any limiting statutory language, [the FCC] believe[s] that a “base station” encompasses such equipment in any technological configuration, including distributed antenna systems and small cells.”
According to Jim O’Gorman, “what’s interesting is that the FCC defines a DAS as a base station. This is most likely because the carrier’s backhaul and radio equipment terminates in its ‘base station transceiver (BTS)’ located at the DAS head end. But DAS, especially in-building DAS, is 95% internal construction, so there are few external antenna (oDAS antennas and donor antennas excluded) where the landlord would have concerns about exceeding height or area limitations. Nonetheless, this definition is something that the landlord should understand.”
Jim O’Gorman advises that “Perhaps most importantly, the landlord needs to have a clear understanding of the obligations that both the carrier and/or tower companies have regarding FCC rules, and play an active role in the design process. This participation should start when the real estate or source signal process begins. To assume that the carrier (whose work will be performed by subcontractors) will provide design and oversight in the landlord’s best interests is a mistake. It is important to remember that carriers and tower companies would [always] prefer to keep the lease approval period as short as possible…often leading to less than complete lease exhibit drawings.” He recommends that the landlord seek “Construction Drawing” quality drawings (signed and stamped by a licensed PE) be part of the lease package.
47 U.S.C. § 332(c)(7).
This relevant section of law was included in the original Telecommunications Act of 1996 (P. L. No. 104-104, 110 Stat. 56 (1996)). It was designed to preserve local authority over wireless tower placement, while also preserving some sense of local control with respect to land-use and zoning on requests for placement of new “personal wireless service facilities.” (H.R. Conf. R. 104-458 at 113 (1996). Roughly speaking, the drafters of the Telecom Act of 1996 recognized the huge power (bigger now than it was then) of the wireless carriers to force municipalities to comply with their wishes in terms of deploying national networks without having to deal with every individual community that sought to extract its own set of concessions in the name of local sovereignty.
The local regulatory authority that exists is subject to these important restrictions:
This is particularly true with respect to issues and concerns associated with RF emissions ((See Sprint Spectrum L.P. v. Mills, 283 F.3d 404. 421 (2d Cir., 2002).
47 USC §253
This section of federal code, which was also part of the landmark 1996 Telecommunications Act, prevents, by federal preemption, any state or local requirement that prohibits, or has the effect of prohibiting” the ability of any entity to provide telecommunications service.” As is often the case with broad pieces of legislation, there are two important exceptions to this federal preemption. The first (47 USC §253(b)), preserves non-discriminatory police power regulations necessary to “protect the public safety and welfare” or to “safeguard the rights of consumers.” The second exception (47 USC §253(c)) preserves local authority to manage “public rights-of-way”…and requires “fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of public rights-of-way on a non-discriminatory basis, if the compensation required is publicly disclosed by such government.”
There has been a good amount of litigation regarding this section, although as is often the case, the litigation is driven by a wireless carrier thwarted in its path.
Summary
DAS planning and installation projects require a great deal of input—not just from IT or Telecom personnel, but from potential providers, public safety officials, engineers, and lawyers. As is the case with any complex project, the more knowledge that the end user has, the better able it is to make the best decision.
[1] See Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993, WT Docket No. 10-133, Annual Report and Analysis of Competitive Market Conditions With Respect to Mobile Wireless, Including Commercial Mobile Services, Fifteenth Report, 26 FCC Rcd. 9664, 9481, para. 308 (2011).
[2] See also 47 C.F.R. Part 1, App. C, Nationwide Programmatic Agreement Regarding the Section 106 National Historic Preservation Act Review Process, § II.A.14 (defining “tower” to include “the on-site fencing, equipment, switches, wiring, cabling, power sources, shelters, or cabinets associated with that Tower but not installed as part of an Antenna as defined herein”).