1) 28 |
B o r o u g h N e w s J U LY 2 0 1 6 | w w w. b o r o u g h s . o r g
2) I
FEATURE ARTICLE
U
GH
SY
OF B ORO
N
L V A I A S TA
A S S O C I AT
ON
TE
By George Asimos, Partner
Saul Ewing, LLP
S
PEN
N
A Cell Tower Issues
SmallCompany Poised
for Change
Development of Small Cell Technology
Cellular communication towers
100 feet or taller are a familiar
sight. They provide a place to
mount antennas for two-way
wireless telephone and data
communication for Federal
Communications Commission
(FCC) licensed telecommunications carriers. More than ever,
smartphone and other wireless
devices send and receive streams
of essential business and entertainment and social data and
programs that put ever-increasing demands on networks.
Having worked on hundreds of
applications for installation of
communications towers, I can
say that my clients were frequently asked if it was possible
to provide the same service with
smaller, or shorter, towers. Typically, the answer was an honest
“no.” Because of the many natural and manmade obstructions
to radio communication signals,
tower height is essential to service. This is still true.
However, changing technology,
particularly the miniaturization of some of equipment, has
made possible shorter towers
that take up less ground space.
Some are only about 50 feet in
height. This shorter tower still is
limited by natural and manmade
obstructions, and its service area
is much smaller than a tower of
typical height.
But, in areas of extremely high
demand for video and other wireless communication
services – such as in densely
populated urban environments
– the selective placement of
shorter towers can enhance
service. This innovation has
also brought about some recent
legal problems.
Opportunity v.
Exploitation
From the mid-1990s, municipalities began adopting special ordinances for cellular communication uses. Many of these were
very detailed, requiring tower
builders to meet essential safety
standards and prove the need
for the location they had chosen,
the height of the proposed tower,
and the services to be provided.
As a result, experienced municipal officials and their attorneys
will be familiar with terms like
“collocation” and “coverage
map” and the requirements of
the “EIA/TIA 222” tower structural design standards. In contrast, many municipalities have
loose regulation of what goes
into their rights of way.
Unfortunately, a few companies are now looking for ways
continues on page 31...
w w w. b o r o u g h s . o r g |
B o r o u g h N e w s J U LY 2 0 1 6 | 29
3) FEATURE ARTICLE
continued from page 29...
to exploit the loose regulation
of rights-of-way and avoid the
appropriate regulation of cell
towers by installing small towers
in places where regular towers
would not normally be permitted. They avoid rent – or underpay rent – and may not follow
the strict standards applicable to
full-sized cellular communications towers.
For instance, there are recent
reports from Virginia of companies installing small, substandard wooden poles with cellular
antennas in highway rights-ofway without seeking any permit,
by claiming to be a public utility
exempt from regulation, and
avoiding payment of rent too.
Others have installed equipment
in rights-of-way where there was
little municipal oversight, using
slipshod construction that would
be embarrassing to a reputable
tower company. There have even
been total failures of unregulated
small, wooden cell towers; and
one of these may have caused a
serious fire.
Some companies claim to be providing a public utility service,
flashing licenses as a “competitive local exchange carrier,”
when, in fact, the service being
provided is not a public utility.
Some have even registered company names that lead the casual
observer to believe the company
is a utility.
Problems sometimes created by
these small cell towers should
not be confused with distributed antenna systems that can be
discretely installed on existing
municipal light poles, traffic
standards, and similar structures
that are the subject of a negotiated and publicly approved license
agreement with the municipality.
These license agreements usually
address rent, structural integrity,
and appropriate locations. Nor
should they be confused with
properly installed small towers
for, a small tower, the municipal
official should ask the following
questions of staff, legal counsel,
and the applicant:
regulated under municipal ordinances. But that is the point.
installation of structures in the
public right-of-way, does it adequately regulate the placement
and safety of small cell towers?
Does it regulate location, tower
structure, weight load, wind
load, and similar subjects?
Reputable tower companies, operating under reasonable regulation, are really “doing it right”
and are justifiably frustrated by
some outliers who are seeking to
exploit present gaps in municipal regulation.
Cellular communications companies and the tower infrastructure companies that own and
manage most of the thousands of
steel cellular towers in the country have a virtually unblemished
record of structural safety, due
to compliance with construction
codes and the integrity of their
maintenance and management.
If confronted with inquiries
about, or even an application
Does the current zoning ordinance or other ordinance apply to
the small towers? If not, should
an ordinance be amended?
If the municipality has an ordinance which regulates the
Is the proposed service genuinely
a public utility, if the applicant
claims it to be? And, even if the
applicant has public utility status,
is the structure going to provide
the services for which the public
utility status was issued?
If not a public utility use, then,
should an independent small cell
tower be placed in the right-ofway, along with other utility structures and municipal structures?
If a small tower is to be placed
in the public right-of-way, will it
continues on page 32...
w w w. b o r o u g h s . o r g |
B o r o u g h N e w s J U LY 2 0 1 6 | 31
4) FEATURE ARTICLE
continued from page 31...
obstruct other necessary activities
or uses such as driveways for
private economic development?
If a small cell tower is placed
in a right-of-way, what governs
the obligation to later move the
private cell tower if necessary
to make way for other essential
uses of the right-of-way or desirable private development, e.g.,
curb cuts?
Can all ground equipment be
placed in the vicinity of the tower without causing obstructions
or safety hazards?
Will installation of fiber optic
cables and electricity be required
and, if so, will that interfere with
other utility installations, curb
cuts, etc.?
32 |
Can the applicant demonstrate
that it has complied, or intends
to comply, with federal law for
the placement of FCC-regulated
antenna structures?
Can the same service be provided by adding antennas to
existing towers in the same
area or by modification of those
towers, avoiding the need for
new structures?
Expansion of wireless bandwidth, being essential to local
and national economic development, should be done by
responsible companies, using
safe structures, in appropriate
locations, without duplicating
existing tower infrastructure,
and under reasonable regulation
to prevent avoidable problems.
B o r o u g h N e w s J U LY 2 0 1 6 | w w w. b o r o u g h s . o r g
Modern, small cell towers can
be a useful tool for increasing
wireless bandwidth that the
public expects and that promote
economic development, particularly in dense, urban environments and high traffic areas. It’s
very important that these small
cell towers be appropriately
regulated in an informed way,
as municipalities have regulated
cell towers on private land for at
least two decades.
About the author: George Asimos,
Esq. has been a real estate and land
use attorney in Pennsylvania for 30
years, with particular experience in
tower and related wireless infrastructure. He can be reached at
gasimos@saul.com. Visit Saul Ewing’s website at www.saul.com. (B)