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HomeMy WebLinkAboutZTA201500001 CorrespondenceMr. Richard Randolph Planning Commission Albemarle County 3291 Darby Road Keswick, VA 22947 L�R LECLAI R -RYA N March 4, 2015 Ms. Jane Dittmar Board of Supervisors Albemarle County 401 McIntire Road, 4th Floor Charlottesville, VA 22902 RE: Federal Law affecting Local Review of Wireless Communications Facilities Dear Mr. Randolph and Ms. Dittmar: In view of your upcoming hearings regarding FCC - Mandated Changes to the County's Wireless Communications ordinance (ZTA 2015 - 00001), I would like to supply you with background information that may be helpful to you. In early 2012, Congress adopted into law the Middle Class Tax Relief and Job Creation Act. Section 6409(a) of the Act, a copy of which is enclosed as Exhibit A, is referred to as the Spectrum Act and has been codified within the Communications Act. The stated purpose of Section 6409 is to promote the deployment of network facilities needed to provide broadband wireless services to U.S. citizens. It states as follows: "Notwithstanding Section 704 of the Telecommunications Act of 1996 [codified as 47 U.S.C. Sec. 332(c)(7)] or any other provision of law, a State or local government may not deny and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station' that does not substantially change the physical dimension of such tower or base station." Since its adoption, the Spectrum Act has been the subject of local and national debate as local planning and governing bodies and wireless carriers try to understand how it will affect the ' A list of definitions is attached as an addendum to this letter- E-mail: Lori.Schweller @leclairryan.com 123 East Main Street, Suite 840 Direct Phone: (434) 245 -3448 Charlottesville, Virginia 22902 Direct Fax: (434) 296.0905 Phone 434.245.3444 1 Fax 434.296,0905 CALIFORNIA l CONNECTICUT 1 MASSACHUSETTS 1 MICHIGAN l NEW JERSEY 1 NEW YORK l PENNSYLVANIA I VIRGINIA 1 WASHINGTON, ©.0 ATTORNEYS AT LAW \ WV+VW.LECLAIRRYAN.COM Mr. Richard Randolph Ms. Jane Dittmar March 4, 2015 Page 2 zoning and permitting of wireless facilities. Public Notice DA 12 -2407, January 25, 2013, of the Wireless Telecommunications Bureau addressed, but did not settle, the most pressing questions that the Act inspired. On September 26, 2013, the FCC issued a Notice of Proposed Rulemaking to address them. I. Clarifying the Spectrum Act On January 8, 2015, the Federal Communications Commission (FCC) published a Ruling, enclosed as Exhibit B, to define relevant terms in the Act and to clarify and further refine existing telecommunications law and regulations, including the Spectrum Act, in order to "help spur wireless broadband deployment, in part, by facilitating the sharing of infrastructure that supports wireless communications ... (by creating) strong incentives for wireless providers to collocate on structures that already support wireless deployments..." (the "Ruling "). The Ruling provides much - needed guidance to local governments and to the wireless industry as we interpret the dictates of the Spectrum Act in relation to local zoning requirements. A. Defining Substantial Change One of the most anticipated points of clarification is the Commission's adoption of a set of objective criteria to define the Spectrum Act's phrase "substantially change the physical dimension" of a tower or base station: A modification substantially changes the physical dimensions of the wireless tower or base station if it meets any of the following criteria: (1) For towers outside of public rights -of -way, it increases the height of the tower by more than 106/x, or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater; for those towers in the rights -of -way and for all base stations, it increases the height of the tower or base station by more than 10% or 10 feet, whichever is greater; 2 47 CFR Parts 1 and 17 ( "Acceleration of Broadband Deployment by Improving Wireless Facilities, Siting Policies; Final Rule "), published January 8, 2415, Federal Register Val. 80, No. 5, first published October 21, 2014 as FCC 14- 153. Parenthetical cites in this letter are to paragraphs in the Report and Order released October 21, 2014 as FCC 14 -153, which may be downloaded here: http : / /www.fcc.gov/ document / wireless - infrastructure - report- and - order. 3 The Commission expressly notes that "after careful review of the retard," which includes recommendations by localities not to adopt objective standards, but, rather a subjective, context - specific approach, "we adopt an objective standard for determining when a proposed modification will 'substantially change the physical dimensions' of an existing tower or base station" (188). The Spectrum Act & FCC 14 -153 Relevant to Local Zoning: 15428164_1 Mr. Richard Randolph Ms. Jane Dittmar March 4, 2015 Page 3 (2) For towers outside of public rights -of -way, it protrudes from the edge of the tower more than twenty feet, or more than the width of the tower structure at the level of the appurtenance, whichever is great; for those towers in the rights -of -way and for all base stations, it protrudes from the edge of the structure more than six feet; (3) it involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed four cabinets; (4) it entails any excavation or deployment outside the current site of the tower or base station; (5) it would defeat the existing concealment elements of the tower or base station; or (G) it does not comply with conditions associated with the prior approval of construction or modification of the tower or base station unless the non - compliance is due to an increase in height, increase in width, addition of cabinets, or new excavation that does not exceed the corresponding "substantial change" thresholds identified above. This set of criteria is similar but not exactly the same as that set out in the Nationwide Programmatic Agreement for Collocation of Wireless Antennas (47 C.F.R. Sec. 1, App. B), which deals with exceptions from certain environmental review requirements. 1. Baseline for Measuring Substantial Change The Ruling also explains how to determine the baseline for measuring change. In cases where the wireless facility deployments are or will be separated horizontally, such as on building rooftops, the change resulting from a modification of a wireless facility should be measured from the original .support structure. In other circumstances, such as collocations on existing cell towers, changes in height should be measured from the dimensions of the tower or base station inclusive of originally approved appurtenances and any modifications that were approved prior to the passage of the Spectrum Act (188). 2. Defeating Existing Concealment Elements The phrase "concealment elements" in point number (5) of the definition is liable to misinterpretation. The Commission refers to "stealth structures" as facilities designed to look like something other than a wireless tower or base station by use of either disguise or complete concealment (200). The Ruling cites comments received from several localities and industry 4 The Commission finds that the objective test for "substantial increase in size" under the Collocation Agreement should inform its consideration of the factors to consider when assessing a "substantial change in physical dimensions." (190). However, the Commission does not adopt the Collocation Agreement's exceptions allowing modifications to exceed usual height and width limitations when necessary to avoid interference or shelter the antennas from inclement weather (191). Further, the Commission adopts different standards for different types and locations of support structures (192). The Spectrum Act & FCC 14 -153 Relevant to Local Zoning: 15428154_1 Mr, Richard Randolph Ms. Jane Dittmar March 4, 2015 Page 4 groups that support the interpretation of "concealment elements" as synonymous with stealth structures. The comments of PCIA — The Wireless Infrastructure Association and the HetNet Forum include the following statement at p. 39 of their comments: "...a modification that undermines the concealment elements of a "stealth" facility, such as screening facade paint or tree branches, should not be considered insubstantial for the purposes of Section 6409(a). For example, while a modification to a tower designed to resemble a pine tree may increase its height by less than ten percent, it would only be an EFR (eligible facilities request) if the pine tree elements were maintained." Further, at p. 46 — "...approval of an EFR should not be conditioned on alteration or intensification of the concealment elements, and the FCC should not consider limits on the number of collocations or a flush- mounting requirement in local code to be concealment or "stealth" provisions. Limitation on a number of collocations is a barrier to both upgrades in technology and new market entrants." See also the comments of the City of Alexandria, Virginia et al., pp. 7 -8, where stealth palms and camouflaged installations on historic buildings are cited as examples of stealth, defeat of which characteristics should not be considered insubstantial; p. 18 where stealth facilities are discussed as facilities hidden in architectural elements and disguised as flag poles, hidden within signs, etc.; and, on p. 42, a reference to changing stealth facilities into "undisguised" towers. See also the Comments of the City of Coconut Creek, Sec. IV, 16, where the City argues that changing a stealth facility such as a silo so that it no longer looks like a real silo should be considered a substantial change: "In the context of these types of facilities, designed to NOT look like a wireless tower or base station, we believe that a `substantial change' in the physical dimensions of such a facility would be any change that tends to diminish the concealment or stealth nature of such facility." The City's examples do not involve an increase in height making an undisguised pole or tower more visible, but, rather, an increase in the height of a facility in the guise of a silo that, if increased by 20' would no longer appear as a silo in an area where silos are 80' (though, significantly, it notes, would not be a substantial change if the facility is disguised as a structure that is normally that height). Correct interpretation of "concealment elements" is critical to the purpose of the Act and the Ruling. If existing ordinance restrictions on the size of antennas, the standoff of antennas, the height of facilities, and similar dimensional limitations or design standards were considered to be themselves "concealment elements," the entire purpose of Sec. 6409(x) would be undermined. Rather, like conditions attached to the approval of conditional use permits discussed in criterion No. 6, this condition cannot be used to eliminate all of the others so that a The Spectrum Act & FCC 14 -353 Relevant to local Zoning:15428164_1 Mr. Richard Randolph Ms. Jane Dittmar March 4, 2015 Page 5 modification that involved an increase in height, width, or antenna size would be deemed to "defeat the existing concealment elements." Fortunately, Albemarle County's Personal Wireless Service Facilities Policy, dated December, 2000, defines for us the relevant terms — "location," "siting," "concealment," "disguise," and "design" — and supports the explanation that when the FCC refers to "defeating concealment elements," it does not mean any change to every aspect of the location, siting, and design of each wireless facility. I will attempt to illustrate this point in my presentation to the Commission on March 10th. Like conditions to special use permits, every design and siting criterion cannot be considered as a concealment element or the County will thoroughly bypass the Ruling's intended effects, which are to encourage collocation and "to promote the deployment of broadband wireless." B. See. 6409(x) Application Review Process/Timeline for Review: To implement the goal of the Spectrum Act, the Ruling sets out a process for local governments to review and process applications for collocations and other wireless facility modifications: A. A State or local government may only require applicants to provide documentation that is reasonably related to determining whether the eligible facilities request meets the requirements of Section 6409(a). (For example, a reviewing authority is not permitted to require an applicant to submit information justifying the need for the proposed modification or presenting the business case for it.) (214). If a State or local government determines that Sec. 6409(a) does not apply (because, for example, it proposes a substantial change), then the presumptively reasonable timeframe under Section 332(c)(7) (i.e. the shot clock) will start to run from the issuance of such decision (224). B. Within 60 days from the date of the filing, accounting for tolling, a State or local government shall approve an application covered by Section 6409(a) or it shall be deemed granted (215 -216), effective on the date that the applicant notifies the reviewing jurisdiction in writing, after the time period for review by the reviewing authority as prescribed in the rules has expired, that the application has been deemed granted (226); and C. The running of the period may be tolled by mutual agreement or upon notice that an application is incomplete provided in accordance with the same deadlines and requirements applicable under Section 332(c)(7), but not by a moratorium (217). The Spectrum Act & FCC 14 -153 Relevant to Local Zoning-15428154_1 Mr. Richard Randolph Ms. Jane Dittmar March 4, 2015 Page 6 D. The shot clock begins running again when the applicant makes its supplemental submission; however, the shot clock may be tolled if the State or local government notifies the applicant within 10 days that the supplemental submission did not provide the specific information identified in the original notice delineating missing information (218). 11. FCC Declaratory Ruling 09 -99: the "Shot Clock" In its November 18, 2009 Declaratory Ruling, the FCC held that the presumptively reasonable timeframe for review of personal wireless facility siting applications is 90 days for collocation applications and 150 days for all others. This Ruling is widely referred to as the "Shot Clock," enclosed as Exhibit C. It further determined that an application is a request for collocation for purposes of the Section 332(c)(7) shot clock if it seeks authorization to place an antenna on an existing structure and does not involve a "substantial increase in ... size" as defined in the Collocation Agreement (273). Note that the test for a "substantial increase in size" under Sec. 332(c)(7) for Shot Clock purposes affects only the length of review time (90 vs. 150 days), while the substantial increase test adopted under Sec. 6409(a) identifies when a State or municipality must grant an application, which the FCC deems a meaningful distinction that merits a more demanding standard under Section 6409(a) (276). Additional clarification of the Shot Clock Ruling provided by the recent 6409 Ruling is as follows: A. The clock starts when the application is submitted, not when it's deemed complete by the reviewing government. B. A determination of incompleteness tolls the shot clock only if the State or local government provides notice to the applicant in writing within 30 days of the application's submission, specifically delineating all missing information, and specifying the code provision, ordinance, application instruction, or otherwise publically- stated procedures that require the information to be submitted. C. Following an applicant's submission in response to a determination of incompleteness, the State or local government may reach a subsequent determination of incompleteness based solely on the applicant's failure to supply the specific information that was requested within the first 30 days. The Spectrum Act & FCC 14 -153 Relevant to Local Zoning - 15428164_1 Mr. Richard Randolph Ms. Jane Dittmar March 4, 2015 Page 7 D. The shot clock begins running again when the applicant makes its supplemental submission; however, the shot clock may be tolled if the State or local government notifies the applicant within 10 days that the supplemental submission did not provide the specific information identified in the original notice delineating missing information. E. The shot clock timeframes do apply to small cell and DAS facilities. III. Summary The FCC's Ruling provides long- awaited clarity to local governments and the wireless industry working to comply with the Spectrum Act. The Ruling provides us with guidelines to measure whether a proposed modification to an existing eligible facility would effect a substantial increase in the six of the facility. It provides a framework and timeline for approving applications submitted to obtain, local permitting for such proposed modifications. The Ruling also clarifies the process set out by the 2009 Shot Clock Ruling and expressly extends its coverage to small cells, These Federal laws and regulations will support the stated objective of many local zoning ordinances to reduce the required number of new wireless communications facilities by encouraging collocation on existing wireless facilities. As implemented by local governments, these standards will enable the wireless industry to expand broadband service to the localities with the least amount of new construction and the shortest amount of review time. Thank you for your consideration of this information. Please call any time with questions or comments or to arrange a meeting to discuss. Enclosures: Very truly yours, Lori H. Schweller Exhibit A - Middle Class Tax Relief and Jab Creation Act ( "Spectrum Act ") Exhibit B - FCC 15 -153, published January 8, 2015 Exhibit C - FCC 09 -99 ( "Shot Clock" Ruling) The Spectrum Act & FCC 14 -153 Relevant to Local Zoning: 154281641 Mr. Richard Randolph Ms. Jane Dittmar March 4, 2015 Page 8 Relevant Definitions from the FCC 14 -153 Report and Order Base station = a station at a specified site that enables wireless communication between user equipment and a communications network, including any associated equipment such as, but not limited to , radio transceivers, antennas, coaxial or fiber -optic cable, and regular and backup power supply (161) ).5 Collocation = the mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes (178). In the case of a Tower, a collocation is not limited to mounting equipment on structures that already have transmission equipment on them. In the case of a non - tower base station, since a base station by definition supports or houses equipment, a collocation would be on a structure already supporting equipment (179). Eligible Support Structure = any structure that falls within the definitions of tower or base station (178). Eligible facilities request = request for modification of existing wireless tower or vase station that involves (a) collocation of new transmission equipment; (b) removal of transmission equipment; or (c) replacement of transmission equipment. Sec. 6409(a)(2). Existing base station = a structure that, at the time of the application, supports or houses an antenna, transceiver, or other associated equipment that constitutes part of a base station even if the structure was not built for the sole or primary purpose of providing such support ( 168, 172). "Existing" requires that wireless towers or base stations have been reviewed and approved under the applicable local zoning or siting process or that the deployment of existing transmission equipment on the structure received another form of affirmative State or local regulatory approval (e.g. authorization from a State public utility commission). A wireless tower that does not have a permit because it was not in a zoned area when it was built, but was lawfully constructed is an "existing" tower (174). Modification of a wireless tower or base station = includes collocation, removal, or replacement of an antenna or any other transmission equipment associated with the supporting structure (178). Replacement as used in Section 6449(a)(2)(C) relates only to the replacement of transmission equipment and does not include the structure on which the equipment is located (181). 5 Unless otherwise noted, citations are to paragraphs of the FCC 14 -153 Report and order. The majority of this memorandum consists of direct quotes from the Report and order, so quotation marks are not used. The Spectrum Act & FCC 14 -153 Relevant to Local Zoning:IS428164_1 Mr. Richard Randolph Ms. Jane Dittmar March 4, 2015 Page 9 Small cells = low- powered wireless base stations that function like cells in a mobile network, typically covering targeted indoor or localized outdoor areas ranging in size from homes and offices to stadiums, shopping malls, hospitals, and metropolitan outdoor spaces. Wireless providers often use small cells to provide connectivity to their subscribers in areas that present capacity and coverage challenges to traditional wide -area macroceli network, such as coverage gaps created by buildings, tower siting difficulties, and challenging terrain (32 ), Tower = any structure built for the sole or primary purpose of supporting any FCC - licensed or authorized antennas and their associated facilities, including on -site fencing, equipment, switches, wiring, cabling, power source, shelters, or cabinets associated with the tower but not installed as part of an antenna. (47 C.F.R. par 1 App. B (Collocation Agreement), referred to in Footnote 402 of FCC 14 -153.) Transmission equipment = any equipment that facilitates transmission for any Commission- licensed or authorized wireless communication service, including, but not limited to, radio transceivers, antennas and other relevant equipment associated with and necessary to their operation, including coaxial or fiber -optic cable, and regular and backup power supply (160). Wireless tower or base station = towers and base stations and transmission equipment used in connection any Commission - licensed or authorized wireless communications service. (149). The Spectrum Act & FCC 14 -153 Relevant to Local Zoning: 15429164_1 COUNTY OF ALBEMARLE 4�F nLf7�,)r MEMORANDUM TO: Members, Albemarle County Planning Commission FROM: Greg Kamptner, Deputy County Attorney DATE: March 10, 2015 RE: Wireless Facilities; a Summary of Ho2V the County ofAlbemarle has implemented Section 704 of the Telecommunications Act of 1996, Section 6409(a) of the Middle Class Tax Relief and Jab Creation Act of 2012, and Various Rules, Rulings, and Orders of the Federal Communications Commission from 1996 to the Present Zoning is a police power that exists in the Commonwealth, but which has been delegated to counties, cities, and towns. The exercise of that power is never absolute, and is always subject to Constitutional limitations, including the limitations that may be imposed by federal preemption on. those matters within the powers of the federal government. Wireless communications are one such area where the federal government has partially preempted local zoning authority. This memorandum summarizes how the County has implemented several federal laws and administrative rulings pertaining to wireless services Section 704 the Telecommunications Act of 1996, Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, and Various Rules, Rulings, and Orders of the Federal Communications Commission ( "FCC ") from 1996 to the present. 1. The Telecommunications Act of 1996 l Congress enacted the Telecommunications Act of 1996 (the "Act ") to promote competition and higher quality in American telecommunications services and to "encourage the rapid deployment of new telecommunications technologies." 110 Stat, 56, cited in City of Rancho Palos Verdes. v. Abrams, 544 U.S. 113, 115 (2005), see also H.R. Conf. Rep. No. 104 -458, at 113 (1996), explaining that the purpose of the Act is "to provide for a pro - competitive, deregulatory national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services ... by opening all telecommunications markets to competition." "Congress saw a national problem, namely, an `inconsistent and, at times, conflicting patchwork' of state and local siting requirements, which threatened `the deployment' of a national wireless communication system. [citation omitted]. Congress initially considered a single national solution, namely, a Federal Communications Commission wireless tower siting policy that would pre -empt state and local authority. [citations omitted]. But Congress ultimately rejected the national approach and substituted a system based on cooperative federalism. [citation omitted]. State and local authorities would remain free to make siting decisions. They would do so, however, subject to minimum federal standards — both substantive and procedural — as well as federal judicial review." City of Rancho Palos Verdes, 544 U.S. at 127 -128 (Breyer concurring). In Section 704 of the Act (codified at 47 U.S.C. § 332(1)(7)), Congress "struck a balance between the national interest in facilitating the growth of telecommunications and the local interest in making zoning decisions" over the siting of towers and other facilities that provide wireless services. 360 Communications v. Board of Supervisors ofAlbemarle County, 211 F.3d 79, 86 (4th Cir. 2000). A. The Act preserves local zoning authority With the exceptions noted in Section 1(B), the Act expressly preserves local zoning authority "over decisions regarding the placement, construction, and modification of personal wireless service facilities." 47 U.S.C. f 332(1)(7). Thus, under Virginia law, the County retains the authority to do the following when it is considering an application for a personal wireless service facility ( "wireless facility "): • Allow wireless facilities either by right or by special use permit. Virginia Code SN 15.2- 2280(1) and 15.2 - 2286(A)(3). • Determine the appropriate height, location and bull-. of wireless facilities. Virginia Code 5 15.2- 2280(2). • Deny applications for special use permits if the requisite findings for the granting of a permit cannot be made or if the proposed use is inconsistent with the comprehensive plan. • Prohibit wireless facilities within certain zoning districts. However, this local zoning authority is subject to the limitations imposed by the Act, as described Section 1(B). B. Local zoning authority over wireless facilities is not absolute and the Act imposes limitations The County's zoning authority over decisions regarding the placement, construction, and modification of wireless facilities is not absolute and the Act imposes several limitations on the exercise of that authority. The Act requires that localities act on applications for wireless facilities within a reasonable period of time, and requires that decisions denying wireless facilities be in writing and be supported by substantial evidence. The Act also forbids localities from adopting regulations that prohibit or have the effect of prohibiting wireless services and from adopting regulations that unreasonably discriminate against functionally equivalent providers. Finally, the Act completely preempts localities from regulating the placement, construction, and modification of wireless facilities on the basis of the environmental effects of radio frequency emissions if those facilities comply with the FCC's regulations concerning emissions. 2. How the County has regulated the placement, construction, and modification of wireless facilities under the Act The County's regulation of wireless facilities since the Act was adopted in 1996 can be broken into four periods, with each successive period reflecting changes in federal law and building on the practical experiences of the prior periods. 2 A. 1996 -2001: Wireless facilities allowed only by special use permit; development of the Personal Wireless Service Facilities Policy; the emergence of the treetop facility as the preferred approach for new wireless facilities From the time the Act was adopted in 1996 until the Board of Supervisors' adoption of the original wireless regulations in County Code § 18- 5.1.40 on October 17, 2001, wireless facilities were regulated as "microwave and radio -wave transmission and relay towers," which were allowed only by special use permit in all zoning districts. During this period, public hearings on special use permits could be contentious, "cell phones" were often described as luxury items by the public, the wireless industry often sought approval of "tall towers," and the County and the wireless industry were still seeking a balance between a facility's visual impacts and the provider's desire to deploy service. The Board of Supervisors' denial of a special use permit for a tall tower on the ridgeline of Dudley Mountain, which resulted in litigation culminating in the United States Court of Appeals upholding the Board's decision in 360 Communications a Board of Supervisors ofAlbemarle County, 211 F.3d 79 (4th Cir. 2000), exemplifies many of the issues discussed above that were typical of this period. Also during this period, the wireless industry, working with County staff, proposed what became known as the "treetop" facility as an alternative to tall towers. On December 6, 2000, the Board of Supervisors adopted the Personal Wireless Service Facilities Policy as part of the County's Comprehensive Plan. B. 2001 -2004: Equipment may be attached to existing structures by right; new wireless facilities allowed by special use permit , The original wireless regulations in County Code §18-5.1.40 were adopted by the Board of Supervisors on October 17, 2001. These regulations were the first of what was seen as that time would be a two -step process to implement the Personal Wireless Service Facilities Policy. - The original wireless regulations established two tiers of facilities: (1) antennas attached to existing structures were allowed by right, subject to compliance with certain requirements; and (2) all other facilities were allowed only by special use permit. Perhaps the most significant development during this period was the emergence of the treetop facility as the predominant design for new facilities. Although the wireless industry has noted over the years that the treetop facility approach is more expensive to deploy than tall towers because a tall tower is able to provide more coverage than a single treetop facility, the industry also worked closely with County staff during this period as standards for these facilities were developed. The treetop facilities, with their minimal visual impacts, resulted in facilities that generated little or no public opposition and most, if not all, treetop facilities were approved by the Board of Supervisors. As special use permits for treetop facilities were approved during this period, the conditions imposed in conjunction with those permits became standardized, which was an important step that led to the next period of regulation. C. 2004 -2012: The three- tiered approach is adopted County Code § 18- 5.1.40 was significantly amended on October 13, 2004. The amendments introduced the current three -tier approach to wireless facilities. The facilities that consisted of antennas being located entirely within or attached to existing structures were classified as Tier I facilities and the facilities that had been previously allowed only by special use permit were split into two tiers. The facilities that were treetop 3 facilities were designated as Tier II facilities and they became a by -right use provided that they satisfied the performance standards in the regulations. The performance standards were, in essence, the codification of what had become standard special use permit conditions under the prior version of County Code 5 18- 5.1.40. These standards, therefore, which are still in effect today, were based on experience, practicality, public input, and a need to accommodate the technology requirements of the wireless industry at the time. Any proposed facilities that did not satisfy the standards for Tier I or Tier II facilities were classified as Tier III facilities, which required a special use permit approved by the Board of Supervisors. During the latter half of this period, there were two significant developments at the federal level. In 2009, the FCC issued what is commonly known as the "shot- clock" ruling. In re Petition forDeclaratory Ruling to Clarify Provisions of Section 332(c)(7)(6), 24 FCC Rcd. 13994 (2009). The shot -clock ruling interpreted the Act's requirement that localities act on applications for wireless facilities within a "reasonable period of time" to mean that localities had 90 days to act on applications to place new antennas on existing towers and 150 days to act on other siting applications. If localities failed to act within those periods, the FCC declared that there was a rebuttable presumption that the time in which the locality acted was unreasonable, and wireless providers could seek a remedy for the delay in federal court (e.g., an order that the application be approved). A legal challenge to the FCC's authority to issue the shot -clock ruling was unsuccessful. City of Arlington, Texas v. Federal Communications Commission, 133 S. Ct. 1863 (2013). In 2012, Congress adopted the Middle Class Tax Relief and Job Creation Act of 2012. Despite the bill's name, it also addressed matters of spectrum and made further inroads into local zoning authority. D. 2012- Present: Implementing the federal push to rapidly deploy all types of wireless services, including broadband wireless services, by requiring that localities approve the collocation or replacement of transmission equipment on existing towers and base stations Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012 is found in Title VI of that law. Title VI is commonly known as the Spectrum Act. As recently explained by the FCC in its Report and Order (FCC 14 -153), adopted on October 17, 2014 (the "FCC Report and Order "), the Spectrum Act, among other things, required the FCC "to allocate specific additional bands of spectrum for commercial use" and established a governmental authority to "oversee the construction and operation of a nationwide public safety wireless broadband network." FCC Report and Order, ¶ 136. Section 6409(a) (codified at 47 U.S.C. � 1455(a)) provides that localities must approve any application to collocate, remove, or replace (collectively, "modify" or "modification's transmission equipment on an existing wireless tower or base station if the modification does not substantially change the physical dimensions of the tower or base station. The FCC explained that Section 6409 contributes to the "twin goals of commercial and public safety wireless broadband deployment through several measures that promote the deployment of the network facilities needed to provide broadband wireless services." FCC Report and Order, ¶ 137. County Code � 18- 5.1.40 was amended on May 8, 2013 to expressly incorporate the requirements of the FCC's 2009 shot -clock ruling and to implement the requirements of Section 6409(a). Implementing Section 6409 posed some difficulties because the statute failed to define "substantial change" and "transmission equipment," which were the two fundamental terms of the law. The FCC and the wireless industry encouraged localities to define "substantial change" as it was defined in an earlier federal document identified as the "Collocation Programmatic Agreement" ("Programmatic Agreement "), an agreement between the FCC, the National Conference of State Historic Preservation Officers, and the Advisory Council on Historic Preservation. The Programmatic Agreement states that it was intended to better manage the consultation process under Section 106 of the National Historic Preservation Act (which requires federal agencies to take into account the effects of their undertakings on historic properties and to 0 afford the Advisory Council on Historic Preservation a reasonable opportunity to comment) and to streamline reviews for collocating antennas on historic properties. The two most controversial elements of the Programmatic Agreement's definition was that modifications could result in towers and their equipment increasing in height or width by up to 20 feet without being deemed to be a substantial change. The 2013 amendment to County Code 5 18- 5.1.40 did not adopt the Programmatic Agreement's definition of "substantial change" because such a definition likely would have defeated what had been accomplished by the County's three- tiered approach. Thus, County Code 5 18- 5.1.40 defined "substantial change" in such a way that any change that defeated the concealment elements in the County's existing regulations, together with some additional requirements, was a substantial change. The 2013 amendment made other changes to County Code § 18- 5.1.40. Although Tier II facilities have always been by right, until 2012 their applications were reviewed and acted on by the Planning Commission. After Sinclair v. New Cingular Wireless PCS, LLC, 283 Va. 567 (2012) was decided in early 2012, Tier II facilities were reviewed and acted on by Board of Supervisors until the May 8, 2013 amendment to section 18- 5.1.40, which authorized the agent to review and act on Tier II applications. The 2013 amendment also increased the permitted height of a Tier II monopole from seven feet to ten feet above the reference tree. Lastly, the 2013 amendment added regulations to address those wireless facilities originally approved by special use permit before the three- tiered approach was added to County Code § 18- 5.1.40 in 2004. The 2013 amendment clarified the effect of those prior approvals, most importantly where the conditions imposed by those old special use permits were more restrictive than the post -2004 standards, e.g., where the special use permit conditions prohibited any changes to the facilities even though the current regulations allowed those changes provided that the standards in County Code § 18- 5.1.40 were satisfied. 3. The FCC Rules Implementing Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 On October 17, 2014, the FCC Report and Order was adopted, establishing new rules ("Rules "). The Rules were published in the Federal Register on January 8, 2015 (Federal Register, Vol. 80, No. 5, p. 1238, et seq. ("Federal Register ")). The new Rules will become effective April 8, 2015 for those parts of the Rules that apply to local zoning decisions. The Rules implement and address some of the shortcomings of Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 discussed in Section 2(D). The Rules provide that any modification of an existing tower or base station resulting from the collocation, replacement, or removal of transmission equipment that does not result in a substantial change to the physical dimensions of the structure must be approved by the locality within 60 days. If the locality fails to approve the modification within the 60 -day period, the application is deemed approved. The Rules define the transmission equipment that will be eligible for collocation and replacement to not only include equipment used for personal wireless service communications, but also transmission equipment used for all FCC - licensed or authorized wireless transmissions, including wireless broadband. The FCC concluded that the expansion of the term fulfilled Congress' intent in Section 6409 to advance the deployment of commercial and public safety broadband services. Federal Register, ¶¶ 64 -66. The Rules also define substantial change. Whether a modification results in a substantial change to the physical dimensions of the existing tower or base station goes to the heart of the Rules. If an applicant demonstrates that a modification does not result in a substantial change, a locality must approve the application. If the application would result in a substantial change, the locality may process the application under its applicable procedures. Although the definition in the Rules incorporates many of the thresholds for a substantial change in the Programmatic Agreement that County staff previously found to be objectionable (discussed in Section 2(D)) , it also includes a two new key elements. Thus, a change is also substantial also if: (1) "it would defeat the existing concealment elements of the tower or base station" (italics added); and (2) if it "does not comply with conditions associated with the siting approval of the construction or modification" of the tower or base station equipment, provided that this element does not apply to a condition that applies to the height or width of the existing tower or base station. "Concealment elements" is not defined in the Rules. However, because a number of the standards already in County Code � 18- 5.1.40 are concealment elements within the meaning of the Rules, the proposed ordinance defines the term to include those elements. The annotated version of the proposed ordinance has extensive commentary regarding this definition. The proposed definition is supported by the plain meaning of the Rules, the comments submitted by a wide range of commenters while the Rules were being developed, and by the FCC, which stated when it adopted the Rules: "[T]he rules we adopt today will allow local jurisdictions to retain their ability to protect aesthetic and safety interests. Accordingly, our actions are intended to encourage deployments on existing towers and structures — rather than entirely new towers — in recognition that collocations almost always result in less impact or no impact at all." FCC Report and Order, ¶ 3. In a separate statement issued when the Rules were adopted, the Chairman of the FCC stated that the new Rules "preserve[ ] local governments' authority to adopt and apply the zoning, safety, and concealment requirements that are appropriate for their communities." (italics added) Statement of Chairman Tom Wheeler, FCC Report and Order, p. 147. 4. Conclusion Congress stated in the Telecommunications Act of 1996 and in the Middle Class Tax Relief and Job Creation Act of 2012 that it wanted to provide for the rapid deployment of wireless services but also to preserve local zoning authority, subject to certain limitations. Those wireless services, and the publics' desire and need for them, continue to develop and evolve. The proposed ordinance continues to reflect the balance between federal and local interests that Congress has thus far preserved. County Code § 18- 5.1.40 will undoubtedly require fixture amendment as federal laws, wireless services, wireless equipment, and public needs, desires, and expectations change. COUNTY OF ALBEMARLE �Ul �1L�}F,� "!R(;Sr3IP MEMORANDUM TO: Members, Albemarle County Board of Supervisors FROM: Greg Kamptner, Deputy County Attorney DATE: March 23, 2015 RE: Wlireless Facilities; a Summary of How the County of Albemarle has implemented Section 704 of the Telecommunications Act of 1996, Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, and Various Rules, Rulings, and Orders of the Federal Communications Commission from 1996 to the Present Zoning is a police power that exists in the Commonwealth but which has been delegated to counties, cities, and towns. The exercise of that power is never absolute and is always subject to Constitutional limitations, including the limitations that may be imposed by federal preemption on those matters within the powers of the federal government. Wireless communications are one such area where the federal government has partially preempted local zoning authority. This memorandum provides a summary of how the County has implemented several federal laws and administrative rulings pertaining to wireless communications — Section 704 the Telecommunications Act of 1996, Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, and various Rules, Rulings, and Orders of the Federal Communications Commission from 1996 to the present. 1. The Telecommunications Act of 1996 Congress enacted the Telecommunications Act of 1996 (the "Act ") to promote competition and higher quality in American telecommunications services and to "encourage the rapid deployment of new telecommunications technologies." 110 Stat. 56, cited in City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 115 (2005), see also H.R. Conf. Reb. No. 104 -458, at 113 (1996), explaining that the purpose of the Act is "to provide for a pro - competitive, deregulatory national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services ... by opening all telecommunications markets to competition." "Congress saw a national problem, namely, an `inconsistent and, at times, conflicting patchwork' of state and local siting requirements, which threatened `the deployment' of a national wireless communication system. [citation omitted]. Congress initially considered a single national solution, namely, a Federal Communications Commission wireless tower siting policy that would pre -empt state and local authority. [citations omitted]. But Congress ultimately rejected the national approach and substituted a system based on cooperative federalism. [citation omitted] State and local authorities would remain free to make siting decisions. They would do so, however, subject to minimum federal standards — both substantive and procedural — as well as federal judicial review." City of Bancbo Palos Verdes, 544 U.S. at 127 -128 (Breyer concurring). In Section 704 of the Act (codified at 47 U.S.C. § 332(c)(7)), Congress "struck a balance between the national interest in facilitating the growth of telecommunications and the local interest in making zoning decisions" over the siting of towers and other facilities that provide wireless services. 360 Communications v. Board of Supervisors of Albemarle County, 211 F.3d 79, 86 (4th Cit. 2000). A. The Act preserves local zoning authority With the exceptions noted in Section 1(B), the Act expressly preserves local zoning authority "over decisions regarding the placement, construction, and modification of personal wireless service facilities." 47 U.S.C. g 332(c)(7). Thus, under Virginia law, the County retains the authority to do the following when it is considering an application for a personal wireless service facility ("wireless facility "): Allow wireless facilities either by right or by special use permit. Virginia Code gg 15.2 - 2280(1) and 15.2 - 2286(A)(3). Determine the appropriate height, location and bulk of wireless facilities. Virginia Code g 15.2- 2280(2). Deny applications for special use permits if the board of supervisors, in exercising its legislative discretion, decides that the applicable special use permit criteria do not support their approval. Prohibit wireless facilities in certain zoning districts. However, this local zoning authority is subject to the limitations imposed by the Act, as described in Section 1(B), below. B. Local zoning authority over wireless facilities is not absolute and the Act imposes limitations The County's zoning authority over decisions regarding the placement, construction, and modification of wireless facilities is not absolute, and the Act imposes several limitations on the exercise of that authority. The Act requires localities to act on applications for wireless facilities within a reasonable period of time, and requires that decisions denying wireless facilities be in writing and be supported by substantial evidence. The Act also forbids localities from adopting regulations that prohibit or have the effect of prohibiting wireless services and from adopting regulations that unreasonably discriminate against functionally equivalent providers. All of these limitations have generated significant litigation throughout the United States over the past 19 years. Finally, the Act completely preempts localities from regulating the placement, construction, and modification of wireless facilities on the basis of the environmental effects of radio frequency emissions if those facilities comply with the FCC's regulations concerning emissions. 2. How the County has regulated the placement, construction, and modification of wireless facilities under the Act The County's regulation of wireless facilities since the Act was adopted in 1996 can be broken into four periods, with each successive period reflecting changes in federal law and building on the practical 2 experiences of the prior periods. A. 1996 -2001: Wireless facilities allowed only by special use permit; development of the Personal Wireless Service Facilities Policy; the emergence of the treetop facility as the preferred approach for new wireless facilities From the time the Act was adopted in 1996 until the Board of Supervisors' adoption of the original wireless regulations in County Code 5 18- 5.1.40 on October 17, 2001, wireless facilities were regulated as "microwave and radio -wave transmission and relay towers," which were allowed only by special use permit in all zoning districts. During this period, public hearings on special use permits could be contentious, "cell phones" were often described as luxury items by the public, the wireless industry often sought approval of "tall towers," and the County and the wireless providers were still seeking a balance between a facility's visual impacts and the provider's desire to deploy service. The Board of Supervisors' denial of a special use permit for a tall tower on the ridgeline of Dudley Mountain, which resulted in litigation culminating in the United States Court of Appeals upholding the Board's decision in 360 Communications P. Board of Supervisors of Albemarle County, 211 F.3d 79 (4f Cit. 2000), exemplifies many of the issues discussed above that were typical of this period. Also during this period, the wireless industry, working with County staff, proposed the treetop facility as an alternative to tall towers. On December 6, 2000, the Board of Supervisors adopted the Personal Wireless Service Facilities Policy as part of the County's Comprehensive Plan. B. 2001 -2004: Equipment may be attached to existing structures by right; new wireless facilities allowed by special use permit The original wireless regulations in County Code § 18- 5.1.40 were adopted by the Board of Supervisors on October 17, 2001. These regulations were the first of what was seen at that time would be a two -step process to implement the Personal Wireless Service Facilities Policy. The original wireless regulations established two tiers of facilities: (1) antennas attached to existing structures were allowed by right, subject to compliance with certain requirements; and (2) all other facilities were allowed only by special use permit. Perhaps the most significant development during this period was the treetop facility becoming the predominant design for new facilities. Although the wireless industry has noted over the years that the treetop facility approach is more expensive to deploy than tall towers because a tall tower can provide more coverage than a single treetop facility, the industry also worked closely with County staff during this period as standards for these facilities were developed. The treetop facilities, with their minimal visual impacts, resulted in facilities that generated little or no public opposition, and most, if not all, treetop facilities were approved by the Board of Supervisors. As special use permits for treetop facilities were approved during this period, the conditions imposed in conjunction with those permits became standardized, which was an important step that led to the next period of regulation. C. 2004 -2012: The three - tiered approach County Code § 18- 5.1.40 was significantly amended on October 13, 2004. The amendments introduced the current three - tiered approach to regulating wireless facilities. The facilities that consisted of antennas 3 being located entirely within or attached to existing structures were classified as Tier I facilities and the facilities that had been previously allowed only by special use permit were split into two tiers. The facilities that were treetop facilities were designated as Tier II facilities, and they became a by -right use provided that they satisfied the performance standards in the regulations. The performance standards were, in essence, the codification of what had become standard special use permit conditions under the prior version of County Code § 18- 5.1.40. These standards, therefore, which are still in effect today, were based on experience, practicality, public input, and a need to accommodate the technology requirements of the wireless industry at the time. Any proposed facilities that did not satisfy the standards for Tier I or Tier II facilities were classified as Tier III facilities, which required a special use permit. During the latter half of this period, there were two significant developments at the federal level. In 2009, the Federal Communications Commission ( "FCC ") issued what is commonly known as the "shot- clock" ruling. In re Petition for Declaratog Ruling to Clarify Provisions of Section 332(c)(7)(b), 24 FCC Rcd. 13994 (2009). The shot -clock ruling interpreted the Act's requirement that localities act on applications for wireless facilities within a "reasonable period of time" to mean that localities had 90 days to act on applications to place new antennas on existing towers and 150 days to act on other siting applications. If localities failed to act within those periods, the FCC declared that there was a rebuttable presumption that the time in which the locality acted was unreasonable, and wireless providers could seek a remedy for the delay in federal court (e.g, an order that the application be approved). In 2012, Congress adopted the Middle Class Tax Relief and Job Creation Act of 2012. Despite the bill's name, it also addressed matters of spectrum and made further inroads into local zoning authority. D. 2012 - Present: Implementing the federal push to rapidly deploy all types of wireless services, including broadband wireless services, by requiring that localities approve the collocation or replacement of transmission equipment on existing towers and base stations Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012 is found in Title VI of that law. Title VI is commonly known as the Spectrum Act. As recently explained by the FCC in its Report and Order (FCC 14 -153), adopted on October 17, 2014 (the "FCC Report and Order "), the Spectrum Act, among other things, required the FCC "to allocate specific additional bands of spectrum for commercial use" and established a governmental authority to "oversee the construction and operation of a nationwide public safety wireless broadband network." FCC Report and Order, ¶ 136. Section 6409(a) (codified at 47 U.S.C. § 1455(a)) provides that localities must approve any application to collocate, remove, or replace (collectively, "modify" or "modification's transmission equipment on an existing wireless tower or base station if the modification does not substantially change the physical dimensions of the tower or base station. The FCC explained that Section 6409 contributes to the "twin goals of commercial and public safety wireless broadband deployment through several measures that promote the deployment of the network facilities needed to provide broadband wireless services." FCC Report and Order, ¶ 137. County Code § 18- 5.1.40 was amended on May 8, 2013 to expressly incorporate the requirements of the FCC's 2009 shot -clock ruling and to implement the requirements of Section 6409(a). Implementing Section 6409 posed some difficulties because the statute failed to define "substantial change" and "transmission equipment," which were the two fundamental terms of the law. The FCC and the wireless industry encouraged localities to define "substantial change" as it was defined in an earlier federal document identified as the "Collocation Programmatic Agreement" ( "Programmatic Agreement "), an agreement between the FCC, the National Conference of State Historic Preservation Officers, and the Advisory Council on Historic Preservation. The Programmatic Agreement states that it was intended to better manage the consultation process under Section 106 of the National Historic Preservation Act (which 4 requires federal agencies to take into account the effects of their undertakings on historic properties and to afford the Advisory Council on Historic Preservation a reasonable opportunity to comment) and to streamline reviews for collocating antennas on historic properties. The two most controversial elements of the Programmatic Agreement's definition were that modifications could result in towers and their equipment increasing in height or width by up to 20 feet without being deemed to be a substantial change. The 2013 amendment to County Code § 18- 5.1.40 did not adopt the Programmatic Agreement's definition of "substantial change" because such a definition could have defeated what had been accomplished by the County's three- tiered approach. Thus, County Code § 18- 5.1.40 defined "substantial change" in such a way that any change that defeated the concealment elements in the County's existing regulations, together with some additional requirements, was a substantial change. The 2013 amendment also added regulations to address those wireless facilities originally approved by special use permit before the three- tiered approach was added to County Code § 18- 5.1.40 in 2004. The 2013 amendment clarified the effect of those prior approvals, most importantly where the conditions imposed by those old special use permits were more restrictive than the post -2004 standards, e.g., where the special use permit conditions prohibited any changes to the facilities even though the current regulations allowed those changes, provided that the standards in County Code § 18- 5.1.40 were satisfied. 3. The FCC Rules Implementing Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 On October 17, 2014, the FCC adopted new Rules contained in a Report and Order (FCC 14 -153). The Report and Order was released on October 21, 2014, and the Rules were published in the Federal Register on January 8, 2015 (Federal Register, Vol. 80, No. 5, p. 1238, et seq. ( "Federal Register ")). The new Rules will become effective April 8, 2015 for those parts of the Rules that apply to local zoning decisions. The Rules implement and address some of the shortcomings of Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012. The Rules provide that any modification of an existing tower or base station resulting from the collocation, replacement, or removal of transmission equ pment that does not result in the substantial change in the physical dimensions of the structure must be approved by the locality within 60 days. If the locality fails to approve the modification within the 60 -day period, the application is deemed approved. The Rules define the transmission equipment that will be eligible for collocation and replacement. The definition expands the term to not only include equipment used for personal wireless service communications, but also transmission equipment used for all FCC - licensed or authorized wireless transmissions. The FCC concluded that the expansion of the term fulfilled Congress' intent in Section 6409 to advance the deployment of commercial and public safety broadband services. Federal Register, ¶¶ 64 -66. The Rules also define substantial change. Whether a modification results in a substantial change to the physical dimensions of the existing tower or base station goes to the heart of the Rules. If an applicant demonstrates that a modification does not result in a substantial change, a locality must approve the application. If the application would result in a substantial change, the locality may process the application under its applicable procedures. Although the definition in the Rules incorporates many of the thresholds for a substantial change in the Programmatic Agreement that County staff previously found to be objectionable, it also includes two new key elements. Thus, a change is also substantial if. (1) "it would defeat the existing concealment elements of the tower or base station" (italics added); and (2) if it "does not comply with conditions associated with the siting approval of the construction or modification" of the tower or base station equipment, provided that this element does not apply to a condition that applies to the height or width of the existing tower or base station. "Concealment elements" is not defined in the Rules. However, because a number of the standards already in County Code § 18- 5.1.40 are concealment elements within the meaning of the Rules, the proposed ordinance defines the term to include those elements. The annotated version of the proposed ordinance has extensive commentary regarding this definition. The proposed definition is supported by the plain meaning of the Rules, the comments submitted by a wide range of commenters while the Rules were being developed, and by the FCC, which stated when it adopted the Rules: "R]he rules we adopt today will allow local jurisdictions to retain their ability to protect aesthetic and safety interests. Accordingly, our actions are intended to encourage deployments on existing towers and structures — rather than entirely new towers — in recognition that collocations almost always result in less impact or no impact at all." FCC Report and Order, ¶ 3. In a separate statement issued when the Rules were adopted, the Chairman of the FCC stated that the new Rules "preserve[ ] local governments' authority to adopt and apply the zoning, safety, and concealment requirements that are appropriate for their communities" (italics added). Statement of Chairman Tom Wheeler, FCC Report and Order, p. 147. 4. Conclusion Congress stated in the Telecommunications Act of 1996 and in the Middle Class Tax Relief and Job Creation Act of 2012 that it wanted to provide for the rapid deployment of wireless services but also to preserve local zoning authority with some limitations. Those wireless services, and the publics' desire and need for them, continue to develop and evolve. The proposed ordinance continues to reflect the balance between federal and local interests that Congress has thus far preserved. County Code § 18- 5.1.40 will undoubtedly require future amendment as federal laws, wireless services, wireless equipment, and public needs, desires, and expectations change. 6