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5G Small Cells in the Public Rights-of-Way

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5G Small Cells in the Public Rights-of-Way

The term “5G” has become ubiquitous in recent months, appearing in everything from technology news reports and discussions on national security to wireless carrier advertising campaigns. Along with widespread marketing campaigns has come a crush of land use applications by carriers seeking to install small cell facilities in the public rights-of-way as well as to upgrade existing rooftop and tower sites with 5G equipment. This has caused concern and anxiety among many local land-use officials who are unsure of how to handle the expanded number of applications. This course begins with a brief overview of the wireless telecommunications space. We then dive right into current developments in the telecommunications industry, including new and updated federal laws and regulations, and how they impact a local jurisdiction’s capacity to manage its own rights-of-way, and to draft land use regulations that hold up against federal telecommunications preemptions. This course will benefit municipal, county and state level attorneys, local land use boards and their counsel, zoning board attorneys, as well as county and state counsel and private land owners with cell towers on their property: that is, it will benefit anyone who deals with wireless communications facilities on a proprietary or regulatory level.


Peter Lupo
Founder and CEO
Hoplite Communications, LLC


Peter Lupo: My name is Peter Lupo. I'm a Residential Real Estate Lawyer, but I also specialize in 5G telecommunications, specifically telecommunications law in general. Not just 5G, but everything that deals with macro sites as well as small cell sites. So we'll go into a discussion with that a little later. So just to give you a little bit a difference, a little bit of a primer to give you some of the technical specifications between macro and small cell sites. 

So I'll talk about macro cell sites first. So typically, outputs roughly 200 to 2000 Watts, range for these could be from half a mile to 10 miles. Conventionally it look like towers, usually 150 to 200 foot high towers, usually monopoles. They're also put on rooftops traditionally in suburban and definitely in urban areas. In fact, in urban areas of New York City, that was exclusively deployed on rooftops. So it's part of our landscape, it's been part of landscape since the 1990s. So what they usually use for is 4G LTE and Sub-6 5G, which I'll describe a little bit later on. Normally about three sectors, alpha, beta and gamma sectors, but they could be a fourth sector as well, but historically three sectors. And they could be anywhere from nine to 12 antennas, perhaps more and per carrier. So you see that on a typical monopole that they're separated by 10 vertical feet on top of the tower, and that purpose is to make sure that there's some degree of vertical separation and that's to prevent, I should say, signal interference. On the bottom, usually on the ground, you'll see equipment platform that have the cabinets, those cabinets contain the radios and the radios are the ones that transmit and receive the signal. You'll see a Power & Telco. Power is the obvious electric, Telco is usually the wire that runs from there to the network and often trenched on the ground. A little secret about wireless carriers, a little something that people don't know is that wireless isn't truly wireless. So it's true that your handset that you typically use or smartphone is equipped with transmitters or receivers that's affecting what it is, it's a radio, transmits and receive signals. And it communicates with these towers, these macro cell sites, and they have antennas to 'em, and your phone communicates with that. But what really truly creates a network is really a hard lines, old fashioned copper in many cases or fiber optic. And that creates a network so that you communicate with the antenna, it then transmits that to the next tower for wherever you're calling to, and then that transmits and receives to the phone, the handset that you're talking to. But most of it's in fact wired. 

Small Cell Sites. Give you a little bit of a contrast about how these look. So in principle, the same thing as a macro site in terms of what they do in terms of function, but you see there's a very big difference in its technical specifications. And that later on we'll discuss, we'll drive the way these carriers are actually deploying it. The wattage is a lot less, you see it's five to 50 Watts, much, much small refraction so the amount of RF emissions much less. The range is 300-5,000 feet. I generally like to tell people as a rule of thumb, imagine a football and a half field size, one and a half football fields as apart. That's basically the range of one small cell site and it's how they separate in terms of measuring the next small cell tower to be installed so you have nice complete umbrella coverage. It's commonly used for 5G, and we'll talk about 5G. It's a millimeter wave technology, much smaller bandwidth than 4G, but they do use it for 4G technology. Typically it's infills. So areas that the macro site, the large tower doesn't cover, if there's drop calls, because either lack of coverage or too many calls that overwhelms the network, they often put a small cell to do what they call infill or capacity to fill those needs for 4G sites. 

Right of Way Site. Typically gonna be on top of utility pole, 38 feet high conventional wood utility poles commonly used for electric lines, cable lines, and the like. And there could be put on top of traffic light poles, usually put a little extension on top of there. It might be on iron poles or there'd be a concealment poles, and I'll talk a little more about concealment poles later on. Concealment poles are often in the industry refer to as stealth installations, but commonly also in layman's terms, referred to as concealment poles. The antennas could be a number of configurations, might be one to three antennas, much smaller antennas than the 4G sites, but three in total covering three sectors. Sometimes they do what's called the small antennas, whip antennas. They can be cylindrical in shape and they're generally called omnidirectional. So it might be one cylinder on top of the utility pole and they cover all the sectors off what three antennas might cover. And that's usually deployed based on technology valve for the carrier and some of the other technical requirements of the carrier themselves. They'll often have radio shrouds around them that could be on one potential. The the radio shroud will have a little box about the size of the microwave on the lower end of the pole, and they'll continue to grade the units in it. Then you also might have power and telco lines. You definitely have that as in with the other one, they'll run across from the utility pole that has the power and the telco run across the street to the tower itself, the small cell tower. They'll have a meter pan, the cutoff switch at the bottom that allow the carriers, the utility providers to know how much power is being consumed by the carrier, and then bill 'em accordingly and of course, a cutoff switch in the case of an emergency. So that's a two. Effectively a same thing, but small cells much smaller in every respect. 

Coverage area, the amount of wattage it produces and as I mentioned before, the amount of wattage and the size of the frequency is gonna drive the deployment pattern and the use of the public rights of way by the carrier themselves. And I'm just gonna go over some of the common carriers are out there, I'm sure a lot of people heard of the Scandinavian company Ericsson. There's JMA, it's a U.S one. You'll know that Huawei is no longer allowed to be used. I guess during the previous administration was concerns that China was going to start using the network and then you have what's called a backdoor. So it's effectively a way for Chinese secret service or a like to go ahead and start monitoring and listening to communications between average Americans, perhaps between get trade secrets between people work for companies, perhaps with governmental agencies using it. I don't know how true that is. Like I trust our government to make those type of assessments. And in fact, they have banned the use of Huawei in the United States. 

Some of the testing equipment we have, different ones is CommScope, KLIS, EXFO, different manufacturers of tower platforms, Site Pro in Valmont. Different companies that producing cabinets, everyone that kind of a Square D for electrical. And different types of applications probably come across Google Earth, I think people commonly use that. And then ArcGIS, which is commonly used by the state PEPs, maybe federal agencies, kinda do a overlay of what's out there. Now, we also use ArcGIS as a company hub-like communications, and I'll describe how we use ArcGIS later on to plot out where the small cell sites are being located in municipal for use by the members of the public, as well as municipal officials. And then you have different cable conduits and did MIL connectors, GPS antennas that help give the site exact locations of where you are, gives you a relevant understanding of where you are, and also communicates back and forth potentially in the case of a 911 call to find out exactly where you are kind of interesting. Hybrid lines, incorporate both fiber and power in the same one. And there are many different types of manufacturers out there who make these cables of conduits. 

So let me talk a little bit about 5G, just kind of interesting from a technical standpoint, before I started delving into the legality of it. So one of the things you're gonna find is higher bandwidth. So you're gonna be able to have many more calls on there, on the same network than you would've before. So it allows for more people to be on, it also allows for much more capacity in terms of the information being transmitted. Then I always like to use an example of the evolution of wireless from going from a phone just voice service data and then evolving to text messages, evolving into use of cameras when the phone company started equipping phones with cameras, be able to take photos first and be able to text and then, of course, video and then using as hotspots. It's incredible how in a relatively short period of time, a phone has gone just making phone calls if you would've as an extens of your home, to being a mobile computing platform. The other big thing is lower latency. Another very important thing, which I'll discuss a little later with autonomous vehicles it's the time it takes for the phone to connect with the network and with 5G, they really lower that quite a bit. We're just gonna be allowed to do a lot of different things. Not only I'm gonna list three things over here, which is what we already know, but it's gonna be the unknown it's gonna allow for so much more and you can see, I think of revolution in our society in this next decade, when 5G is rolled out and applications and other hardware companies are able to come up with devices that will be able to maximize the use of 5G. Some of the things I can readily think of offhand on autonomous vehicles, for example, just imagine, be able to go your car and I know a few car companies, one that comes to mind is Tesla already has autonomous vehicles used in some capacity. And be able to come in, they'll have be equipped with cameras all around it, and they'll need to be able to have very high bandwidth. 

So a lot of information from the cameras being run to either cloud computing or to the CPU of the car, however they want working it. So there'll be a lot of information, so gonna need to high bandwidth, it's gonna be able to carry that. And as I mentioned before, the low latency, so that when there's detect of slow down into traffic or an accidents able to instantaneously take that information either from GPS locating system, where it has real time information or through his cameras. So that's gonna be something that 5G is gonna be allow to be deployed with much more reliability. Imagine a remote medical procedures. Imagine you need to get some sort of procedure, but the best surgeon in the world is say in India. And you are able to go to your local place in Topeka, Kansas, and go to a remote surgical center that has remote medical beds and operating tables, and be able to operate. With that type of low latency it's gonna be very important because you have a surgical instrument and if you have a weaker latency, we have a higher latency period might be the difference between cutting an artery and stopping where the surgeon wants to go. A lot of things like that, of course, the internet of things, where you have your refrigerator reports back that needs new milk, for example, or it's running low on another item in there, or when the filter's getting dirty, for example, for the water filter and it is able to tell the, whoever its you, or through call Amazon to order a new filter and deliver it to your house. So all I have to do is show up one day and you know that the water filter is there and change it out. 

So let's talk about some of the things about laws and regulations it's being shaped by the technology. It's pretty interesting. So the laws and regulations are being written to accommodate the way technology's being deployed. So I mentioned before increased data usage. So increased demand for capacity and coverage has really exploded quite a bit, and that has caused network densification. And as I mentioned before, because of the low wadge because of the size of the frequencies millimeter wave that discussed before is that it's gonna require these sites to be much closer together in order for this to have an uninterrupted umbrella service for the deployment. So as I mentioned before, 4G LT cellular operates in frequency ranges from 600 megahertz, 25 megahertz and 5G at its best will be at 24 to 40 giga range. They've recently auctioned off the 3.7 to 4.2 gigahertz frequency commonly call of sub six. Now this is because it's a longer bandwidth now as gives a 24 to 40 gigahertz range in terms is its latency, and it's a bandwidth this capacity that carry lots of information, but it is gonna be a hybrid solution I believe for the carriers to be able to deploy 5G, but a much lower level. But because it's larger footprint that it covers, it might be a good solution for suburban houses, that have five acre, 10 acre lot requirements, or even, more particularly for rural areas, whether it might be miles between homes in order to cover things and make it more of affordable solution. This expand range of frequency usages increases the complexity of 5G deployments. So they may do multiple different models. 

So talk about right now they'll talk about population density might be a big issue. So if you have this one and a half football field requirement called 24 to four gig get Hertz range and you live in a density urban area, people live nearby, lots of businesses, lots of pedestrian traffic and cars going by, it would make sense for the carrier from a standpoint of return on investment and amount of energy put into put in these utility pole one and half football fails apart to put in those type of areas. And another big issue is gonna be ground cover. So the topography is also gonna shape the deployment of this higher frequencies doesn't penetrate very well and also when you have precipitous drops in topography, it also cuts off the deployment and range of things of these antennas, and that'll be another big factor in how the carriers deploy their technology, whether or not it's gonna be the 24 to 40 gigahertz range or the sub six as I just mentioned. Some of the things that it's gonna really have a big issue right now is gonna be some of the new technologies that we foresee right now. For example, we know that's gonna be big gobblers than others. It's gonna require greater capacity and lower latency than the current apps. So think AK video. So it's gonna be intensification of existing technologies. We already have video. We have HD video right now on our phones. We have high quality, but AK is gonna be stream video streaming that requires 32 times more bandwidth than standard high definition that we use right now. So that's gonna be a big drain on existing networks and also on the 5G networks. 

I already mentioned autonomous cars, self-driving cars. Needed to have ubiquitous coverage. Obviously you can have a drop in coverage 'cause you lose communication with the network and you wouldn't geo autonomous anymore. And you need that extreme low latency to function safely and efficiently. Cloud computing, something that we've all heard about quite a bit. Cloud computing has not reached its full capacity right now in many ways, it hasn't been able to roll out because of the technology, we have 4G right now is not really capable of doing the cloud computing we need right now. We need that high capacity, low latency that we get with 5G. Extended reality, think of advances in universe. Things like type of virtual reality, where everyone's able to spend a day in a completely different world. For example, in virtual world, of course untethered augmented reality, think of the Google glass was rolled at six, seven years ago, maybe a decade ago. Never really took off. It was a problem partly with the device itself. But it was really a big part also because of the networks. It never really was able to give fast enough updates, refresh and bandwidth so that the Google glass was able to work. There been some redesigns on glass itself and with 5G coming out, you might actually have a good marriage of hardware and then a network that's capable of power properly. So think of being able to walk through streets, being able to follow directions on a bike and following, you know, real time turns instead of having to use a phone or a device and be able to see it right through your glass while you're driving as a augmented reality overlay. Think of being able to get advertisements passing by a bakery that fresh bagels that came outta the oven, think of those type of things, and many more uses for augmented reality. And as I mentioned, the lag time due to progressive hyper functionality and I do believe that some of this would be resolved before extended reality takes off. Next slide. Let me go over some of the key terms right now in a telecommunications act. 

So let's get to the hard and substance of the law gave you a little bit of the background, I think was important to understand how towers look, let me go into the substance right now. 

So first one is 47 u.s.c. 253C. This is a bit of legislation. It date backs to the Clinton administration. It says that nothing in this section affects the start of a state of local government to manage a public rights of way, we require fairly reasonable compensation from telecommunications providers on a competitively neutral and non-discriminating basis for use as a public right way on a non-discriminating basis. So you can't approve the one carrier over the other or one telecommunications provided over another as well, has to be a non-discriminatory basis. And reasonable compensation. That's kind of a slippery term what's reasonable to Topeka, Kansas, may be reasonable to Brooklyn, New York, but that's gonna be spelled out a little later on by some of the declaratory rulings for the FCC through their statutory authority from Congress. 

Next is gonna be 47 u.s.c. 332 7 . Nothing is in chapter should limit or effective authority of a state or local government or instrumentality thereof over decisions regarding the placement, construction and modification of private wireless service facilities, commonly known as PCs facilities. You'll see that there's gonna be quite a bit of later on that's going to truncate and erode the authority of municipal to legislate for that purpose, that was not anticipating 96. 

And then of course last is 47 u.s.c. 332 7 . The regulation of the placement construction and modification of personal wireless service facilities by the state of local government or instrumental either of shall unreasonably discriminate, among provides a functional equivalent services and shall not prohibit or have the effect or prohibiting the provision of personal wireless services. And this shall prohibit or having the effective prohibiting again, amorphous terms. What does effective prohibiting have? And later on, I'll discuss a little more about what that means the FCC does clarify what that is and does shape that a little bit. And we'll discuss that a little along the way. 

And then here, next one we have here is 2012 Spectrum Act. This was past seven years later. I think the TCA was 1996. As we mentioned it was legislation under the Clinton administration. 2012 Spectrum Act came under the bomb administration to give a little context about this. This was past just around 4G, LTE was being rolled out and they were concerned that a lot of local municipalities were gonna be obstructionist, that there would be a lot of local resistance to it, put pressure on local municipalities to give a hard time or just deny 4G and the LTE to be going into communities much as you're gonna find out with 5G, the same people who objected back then to 4G will likely object to 5G as well. But they knew there was gonna be an issue so what they've done is they kind of took back and truncated a little bit of the rights of loca municipalities. So it says over here, a state of 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 substantial change to physical dimensions as such tower base station.

 What exactly does substantially change mean? Now what John thinks in one town and Frank thinks in another town substantial change may differ quite a bit and obviously you can't make policy. This it's very hard as a municipality, as a carrier to operate with that lack of predictability, without real clear guidance and fear not the FCC does give a clarification to this and we'll discuss that a little later. And the second piece of this is, is eligible request. For purpose of the subsection the term eligible facilities request means any request for modification of an existing wireless tower base station that involves collocation of new transmission equipment or B removal of transmission equipment, or so C replace sort of transmission equipment. Now I'm gonna go into this a little later on and we'll discuss what an eligible facilities request is and how that is to be applied. 

So let me talk a little bit about how 5G will affect your community. So one thing you find here is widespread use of the public rights of way for 5G small cell sites will cause a very distinct visible impact on the landscape and it'll be anything like anything on the kind of prior cellular deployment paradigm. So what I mean by that is this earlier they went ahead and the carriers put in monopoles. Now they, they had to do a little of changed their monopoles over time, but effectively it's the same exact thing they had. They went ahead put in the first generation, second, third, fourth generation of equipment. And they had to do was really effectively swap out antenna, or they had technology where they put more than one bandwidth second generation, the three generation and have two the technology together, then third to fourth generation and put both technologies in the same antenna. And what happened over time was they were just able to do tennis swap outs. 

Now the big change right now is they won't be able to do that. And that's driven again, like I mentioned before, because of the mill made wave size of the technology they have limited propagation levels. It's just the physics of the radio wavelength. It just can't go on top of 5G cover area and cover the same ground as the earlier technology is done. So that forces to do is the network identification to go the public rights of way and put up these cell phone towers with mini cell phone towers, roughly one and a half foot football filters apart. So to kind of recap that they'd be much smaller, more numerous sites as I mentioned before. They'll be on utility poles, they'll be on very conventional wooden utility pole, roughly 38 foot in height. They could be put on traffic light poles. I've seen that done before where they actually do a little bit of an extension, maybe still extension on top of the pole, maybe go up a couple feet enough to put the antennas and wires to it, and then put another small cell side on that. 

And another way of doing is conceal decorative pulse. And it conceal decorative pulse, very, very simple. They they're a big tube and effectively they put all the internal guts of it inside. So they'll put the antenna, they'll put the wires and all that inside the pole. Now they're much bigger in set terms of its width than its standard size utility pole, but arguably some of the benefits are that they could hide everything within their hence name concealment pole. And some of other things we'll talk about is local regulations kinda have the effect of ping service. You mentioned that earlier so if you go ahead and try and make something that's unreasonable, a very extensive zoning process, for example, that would have the effect of TIC service. Say for example, you required all these very expensive poles, the stealth poles, we talked about that conceal decorative poles that would be not permitted because that would have the effect of prohibiting service. Those concealed decorative poles are permitted in certain circumstances, but if the existing streetscape already has wooden utility poles and require something unduly expensive, it's not ally related to it then that would have the effect of for example, prohibiting service and would violate the 2018 FCC declaratory ruling. 

So let me give you a little bit of description of how a small cell is defined. A small cell or small wireless facility is defined as something as under 50 feet in high, in total. So mentioned they've been 38 feet, at least here in New Jersey. They've been 38 feet in height and maybe a little higher with the antennas on it but in around 38 feet. Each antenna has to be less than three cubic feet in volume, the total equipment volume of the shroud and then the meter pen any kind of jumper cables has to be less than 28 cubic feet. And the earth emissions are within the safe limits. And there's a formula that defines it, but the carrier is required to comply with that. So a definition of a small cell and the local ordinance that doesn't comply with these parameters may be struck down a core if they're challenged. So if you require it to be something greater or less than something, it makes it more onerous it can be challenged. Small sub proliferation, dense deployment of tennis in areas requiring coverage 5G to be effective, mentioned that before. You have minimum space requirements can be established to prevent an excessive number of pulse.

So I like to make a requirement that they have to be spaced a certain distance apart because one of the things municipality cares about and residents care about is that it doesn't look like this dense network of utility poles being put up. So we try to create a distance requirement to avoid that excessive feel of these wooden utility poles. We try to collocate we're required where it's possible I should say to prevent proliferation. I like to call these anti proliferation provisions. So for example, if one carrier comes in, say TNT puts up a utility pole and they put up a tennis and then another carrier called T-Mobile comes along afterwards and wants to put their equipment in there, they would have to go reach out to us. And we try to say, Hey, work with the first carrier and see if you can co-locate. And if they can, they have a reason or technical reason why they can, again, the SCC requires that you can't prevent 'em from installing it. You can't force 'em to be in a certain location. And so if they have a technical reason why it wouldn't work for the network, then they'd be required to be closer space that you might like. But again, at least we put a challenge to carrier to try to find the space a far apart as possible and require 'em the co-locate. And we asked to carry, demonstrate that the existing infrastructure and co-locations and feasible. So we put a little onus on them. And what we try to do is the town should adopt applicable regulations, but understand that any requirement that permit service may be vacated by the courts. So you wanna strike the balance between protecting the municipality, the sense of its aesthetics. That's one of the things people care about the streets scheme and balance it off with the need of the carrier to deploy their network. 

So let me talk a little about right of way, we all went to law school on this call, I would presume everyone here is an attorney, whereas at least in legal profession. And one of the things that's kind of interesting is how's the right way come about. We all took a property law when they were in law school, maybe a first year, but for some people it might be in the in rear view mirror. or you didn't really pay too much attention in the first place. I'm sure there's a few people here that enjoy the topic, but let me go over some of the different ways we could try a right of way. First is what's called the ancient road status. So these are road and rights of way that have been always used that way. And I can think I grew up in Brooklyn. I could think of King's highway in Brooklyn and sounds like kind of a peculiar name. It comes because it was the King's highway. It dates back to pre-revolutionary times. I think it goes back to the 1730s or forties, I'm not sure exactly what it was, but it's always been used as right of way for cars, I guess back then we've been horses and carriages and pedestrians, but it's always been used that way. I don't believe there's any formal dedication to the road, but no one's challenging, 'cause it's always been used that way, it's been open and notorious. Think of some of your requirements for if you can remember back to law school. 

So next way is fee ownership is where the property owner goes ahead and gives fee ownership directly to the town. That's the most simple and easiest way. Not very prevalent in New Jersey. I don't think many of the municipalities own the land directly, but that's another way of doing it. The most common way I've noticed in New York and New Jersey is the easement, is where they have a separate document where they show that they have the easement, which creates a right of way for certain uses. And mostly it would be for for transportation, for pedestrians, for cars and the like. Another way is by reference in the deed, they may make reference to the deed, say, Hey, the front 10 feet go they give the meets and bounds shall be used as a right of way that be something built into the deed itself. I think that's a little less common, but it's possible. Again, I think the most common way I've come across is just easement standard alone. Then there's prescriptive easement, which I kind of mentioned before, be the ancient rose desk ties a little bit to that. Think of your requirements of adverse possession has be open notorious and used that way for a certain period of time. And then the last way which we see often with airports and railway train stations is condemnation. It's well established, acquire private property for public projects, such as rose and highways like throughout the airport and rail type of thing as examples. But certainly in the case, we're talking about for rails and highways. 

So some of the considerations for right of way, small cells. So not only do we have the federal construct, which just discussed, we have the Telecommunications Act, Spectrum Act, and we have some declaratory rulings, which kind of clarify some of the federal statutes. Some of the things is a little more pedestrians, so be more local. For example, federal ADA So it's Americans with disability act. And then we also have the public rights of way guidelines. What was called the PROWAG. So it establishes a certain minimum sidewalk width, generally it's 48 inches. You need to have certain men width and sidewalk to allow two people to walk past each other, allow access for wheelchairs and maybe baby carriers and the like. So sometimes I've seen carriers put a utility pole right in the middle of a sidewalk effectively obstructed all traffic. And that runs a fall of the ADA. One of the things we do as a good practice is we go out and make sure we measure the sidewalk, make sure where they propose and put the utility pole in matches and it doesn't violate the ADA and the PROWAG regulations. Definitely something if you represent municipality that I suggest you do. 

Another thing is a site triangle regulation. Imagine you go into a regulated intersection, such as a stop sign, call it a four-way stop sign or just a stop sign that impacts you. You gotta look left you gotta look right. Now imagine a utility pole put in such a way where you're looking for oncoming traffic traffic from your right you're looking to make a left turn and it's obstructed by a pole. Now most Dots, and you have the American Associated State Highways and many different types of other organizations, mostly here in New Jersey, Dot calls it out but also there's the American Association of State Highway and Transportation officials has a certain requirement to make sure the site triangle isn't obstructed. And that's one of other things we review we do a kind of a overhead birds. I view the area and then we do like cone a pair picture coming pie, maybe coming the short end, coming out there and then radiating out. And we do a little bit of a red line over intersection see if it violates it or not. Very important for public safety. Small cell 10 proximity, apartment window, building windows. If you live in a densely urban area, you're in New Jersey, you're Fort Lee, New Jersey, there are a lot of apartment buildings that are along there at homes. Some of the apartment buildings are right on the sidewalk. They go straight up and looking at some of these utility poles they're too close to these windows. 

So in some instances, you're on the third floor and you're looking at the window you might be looking directly out antenna three, four feet away. The requirement is in order to be safe and compliant with FCC levels, it's gotta be roughly eight feet away from the antenna. So the pole and the antennas will be eight feet away from the window in order to beat the FCC requirements for continuous human exposure. Very important. That's one of the things we do for public safety we make sure we do review of that. We also have the national electric safety code establishes a safe working practice on utility poles. Other structures affect small cell attendance installations or utility poles with existing power lines. So it has to be usually 10 feet away that you have to separate the small cell site from an existing utility pole far away from their power lines. And another thing we do is just more of a common sense approach. You know, the right of way is crowded. We have street signs, we have pedestrians, we have traffic lights, vehicles, utility poles, we call you know, fire hydrants, vehicles and pedestrians share right of way. And we want it to look nice. We don't wanna look crowded. I mean, again is in the interest of police powers of the loca municipality to make sure they properly regulate these rights of way and make sure it's orderly sort of jumble and maintain a nice aesthetic appeal for the town. So that's kind of things I look at. 

And one of the things you always find over here is that you like to discuss things with carriers we don't like what you're looking at and you don't like where the location is a good reason. Work with a local of the carriers looking to come in, explain what your issue is. Especially issue with a side triangle or an ADA rule. They'll try to work away, do a workaround in terms of the location of the pole. One thing I could think of is there was a home and there was a bay window and this woman was retired and she was gonna look directly outta utility pole, where she had kind of an unobstructed view work with the carrier move over by 15 feet so it didn't obstruct your view from the bay window. These are the type of common sense things, It's just open communication, explain what's going on, why, what they're doing, doesn't make sense for the municipality. 

Another thing over here is some mobile applications that I've designed. I think is the best practice. I know a lot of law firms aren't equipped, but I designed a application that allows for local land use boards, code officials to navigate and understand small cell deployments of the community. We use augmented reality to superpose sign information and regulatory requirements on top of the small cell live feed. So for example, you would take your smartphone, you put on the app, we have Hoplite communications, the Hoplite app, and we put it on and allow people to look at the poll and it superimposes all sorts of information. It might show for example, the FCC health and safety report. So lets go and click on that health and safety report and find out that it meets the FCC requirements for health and safety, a big help for local officials. You're always gonna have people who are call concerned. I get it. You know, you have organized groups of people who fight against these polls. You can't stop it from the FCC health surgery requirement from the standpoint of health and safety, but you can have people look at it and see that it does comply with it helps alleviate some of the concerns. You have never say no or yes to these type of things, but in the end, if you have reasonable people to understand that it does meet re

gulatory requirements. I also helps quite a bit with local officials to see when permits were pulled that's one of the streaming bits of information that shows up on the screen. We also do GIS information to see flood zones and other types of things, little overlays to show real time kind of interface with environmental conditions. It's intended to supplement the paper based compliance reviews that we do. We also have the environmental historic overlays that relate to the GIS. And also really interestingly, one of the things I've come up with that people are concerned about is noise and signal strength. Mostly the noise, single strength is something that's more the carrier kind of issue, but the noise monitoring. Some of many things make a buzzing noise and if you're in a residential area, it goes sleep at night. That might be irritant to a lot of people and understandably so. So we have part of the app measures the noise on there so that if anyone has an issue with it and hears it, they can put the app on and see if there's any kind of noise and then we go back to the carrier to ask them to change it.

 So another thing over here, we have 5G small cell mobile app. It's very useful for local officials. We'll have the legal technical information. I think that's very useful for them, it's Pally makes it easier for code officials, engineers, state officers to assess a small site at other wireless facilities. Has a computer vision model, which I think is pretty interesting train to recognize small cells in the streetscape so it automatically recognizes it using machine learning. It locates the sites via GPS positioning, pulls all the site information So imagine construction official, it allows them to take a look at the permit issuance state, any kind of compliance notes, site ID, nearest address of local sites. It gives a whole wealth of information to both local public officials, as well as the local residents. 

As I mentioned it gauges to noise level near site. So if there's we build into something into the ordinance, we build a threshold has to make basically no noise. We include a decal level which is basically audible for people here. So if, for example, it violates that our app I will pick that up and we could go ahead and go back to the carry and have remediate. And also the signal strength. That's more of a nice thing for local residents to kind of know what kind of signal they're getting, the strength and quality. You'll notice over here that there are small cell consultants. Pretty interesting. There are a number of people who call himself consultants. There are people who may have some wild experience, they are not attorneys so they try to give proposed ordinances that in fact benefit them, but could get the municipality and the town attorney to a wealth of trouble. A lot of them, what they do is they actually sell concealment polls themselves. So they come in as reported experts and they try to get regulations in there that the wireless carrier, when they come in with their 5G towers, with the small cells that they'll be required to use concealed poles. Now, again, concealed poles could be legitimate use depending on the type of installation. So if you're in a downtown area that has a raw iron type of looking electrical poles, or lamps, they could require that, it would make sense. It would be rationally related to the underlying intent. You want to keep a certain historical or downtown field that makes it consistent so that a wood utility pole wouldn't stand out, that's perfectly fine. You can require that certain districts provided it makes sense. But when you require it throughout the municipality, then you have to buy these concealment poles from someone, usually the person who offers up the ordinance that becomes problematic, because then it sounds arbitrary capricious, and it's not rationally related to concerns about aesthetics and our of safety. 

So again, like you said, they give very misleading guidance and it raises expectations so they could come in with a magical solution and make things look nice. Another thing they try to promise is that they could precisely tell the carrier where to put these small cell sites in. They could go ahead and pre map and pinpoint where they are. Can't do that. That is also not permitted. Again, each carrier has its own technical requirements and that doesn't work. Can require concealed stuff design as much before. In fact, concealment poles are oversized and the streetscape are attractive and in fact, people never forget that 5G size, if there's any worry about 5G, then once these things are up, it'll always draw attention to the fact that they're 5G towers. The restricted private service, as I mentioned under sections 253 and 332, the TCA relaying back before about the overview. Some lawsuits been in place. And in the end municipal attorney who doesn't know better looks at it, seem kind of reasonable to them they could use a common sense approach, Hey, why not? But go ahead and start telling people where they could locate sounds pretty good, makes everyone happy. And they use a common sense approach they'll find themselves giving bad advice to their elected officials about moving ahead into adopting the ordinance. Something that I would like everyone here on the call to avoid. 

So let's talk a little bit about the macro site level. Going back to the towers, the 152 feet high towers in the Spectrum Act. Again, it was adopted in 2012, another layer of preemption loss control for the local approval process. As I mentioned before, the eligible facilities request, you're allowed to do certain upgrades to existing rooftop or towers and has to be approved by local municipality. So again, before I mention non upgrades, and then they define it. So in the declaratory ruling, the FCC describe what falls under what not to be substantial. We see 2014 and then in 2020, they gave two ruling. So height increase of less than 10 feet you have to improve. You can't go through a discretionary zoning review. So less than 10 feet has to be approved. If the protrusion is less than six feet from say a building or from a structure has to be approved, no discretionary zoning. If you're installing four or less cabinets, can't go through a discretionary roof of view process, it has to be approved. And as long as you maintain the existing concealed elements of the structure, it doesn't have to go through zoning. But if, for example, you put in additional cabinets, you stack 'em for example, and you were to undermine the elements of the structure, say it was a screen around it and now suddenly those cabinets are above it then that would go through a discretionary zoning process. But providing you meet all these four, the municipal cannot come back and say, no, you can't put an extra cabinet up there. You can't raise a tab by 10 feet. So something again that came about and really restricted the rights of local municipalities to regulate. 

So let me talk a little bit about legacy macrosite cell site ordinances. You'll find that existing municipal wireless ordinances predate the 2012 Spectrum Act. So I see a lot of them from 2001, 1999, 2002, quite a bit of them are from that time. So one thing I do when I represent a town, I usually get appointed as a special telecommunications attorney for municipality. And what I do is I usually communicate with a town attorney. And the first thing I do is look at their existing ordinances related to telecommunications. As I said, most of these things are dated. They're just you know... and dated is bad in this case because it doesn't comply with the 2012 Spectrum Act and other FCC declaratory rulings. So they rely on these 2001 where they think they have the right to go ahead and start approving a tower being raised by 10 feet. And they go through, they ask carrier, Hey, we're looking to do by 10 feet we're gonna require 20 sets of construction drawings and structural and zoning application and the whole length process. And the carrier can make no, no, no we're covered under the Spectrum Act and in the FCC orders, we don't have to do that. So be mindful of that. So as I said, conventional zoning approvals no longer apply for those types of upgrades, so I just described. And one thing that the carriers did for many years, that even after they had the benefit of the 2012 Spectrum Act, they decided to go ahead and still play ball with the municipality. They went ahead with the 2001 ordinances, for example, they're on record. They said, okay, we'll go ahead and go through it. We don't wanna rock the boat with the municipality we do rely on them from permits. 

But what we find re recently is that they're willing to litigate quicker now. So that over time, maybe it was just a new generation of managers for the carriers came in and they had the hold bar approach. Like, why we deal with this. Why are we going through this expensive time consuming process? You know, expense means it's less money to spend on further developments out in the rest of the country. Timing means less quick that people are get the benefits of improvements to wireless technology. So some of the macro cell site ordinances predominantly govern wireless facilities of private land and off public roads. What I like to do is to separate the two ordinances. Some people try to do a painful way of combining the 5G small cell ordinances, that's covering the public rights of way. And then the ones that, as I mentioned before, the ones that are farms, private property are municipally owned land, and they try to kind of buy 'em together. I don't think there's any tidy way of doing it. I think it's the best practice in my opinion, that you go ahead and have two separate ordinances. Usually I just do two separate ordinances, one covering public and private lands and then the other one from right of way ordinance and separate them entirely. I think it's neatest way of doing it. Some of the things we find over here is that there's a big ultra right now, breathing new life into macro sites. 

So going around, I represented about 50 municipalities in two counties. I've heard questions from zoning boards. They say, Hey, what's going on? Are we gonna lose revenue from these towers? Are they gonna disappear? Some people happy about it some people not so happy about it. And originally before the sub six auction, I thought that there were go the way of the dinosaur, but because of the new auction last year or so of the sub six, they'll be able to still use those towers. So maybe a relief to some, maybe to the sugar chagrin of others, but they'll still be around for some time. In any event, even if they did wanna transition entirely to the utility poles, I still predict there's gonna be 10 years, at least left on the macro sites because technologies, you take a little time to transition. People will still have older phones that are not 5G enabled, and they still wanna service people who have those old phones that don't have dual band to pick up at 4G and 5G. But particularly now that you have these 3.73 to 3.98 giga range, that's sub six. I do believe microsites gonna be around for quite some time and that going anywhere time soon. A lot of that spectrum I talked about were used for solid communications. A lot of satellite companies that used it kind of, well, relinquished it or licensed right now and they re auctioned them. And then in this case, the wireless carriers such as rise AT&T bought it. 

So single safety. This is something that you'll find that's a real big, hot button issue. If you represent a municipality, you'll walk in and you're gonna have people before you pass an ordinance. You know, typically you go there, you give notice to anyone before an ordinance gets passed and you have a little period during your first reading for public discussion then the second reading usually pass it. And I often come to the municipal, be pass to the local governance, like governmental authority to go and ask questions for a public. I think it's good practice to be there and don't leave the town attorney or the local officials to answer questions, to have their expert on hand. And I'll go there and people will ask me if this is gonna cause cancer. You know, I've heard lots of different things that it cause COVID or transmits COVID that throws off the single bats when they fly. There's a whole bunch of things people worry about. I think a lot of them are not true and completely ungrounded things that fly around. But I think this is something that you personally might be interested about the single safety and your clients and the local municipal be concerned about. So the FCC has soldier jurisdiction over RF mission levels. And I've been in a lot of different times where you have people cite studies from this Institute in Italy, the sense that 5G causes heart palpitations and this study from university of wherever it is that it causes cancer and a whole bunch of different things. But in the end, it's the FCC who sets the safety standards, not anyone else. And if any of these other institutes and other types of studies could persuade the FCC that a certain bandwidth is not safe for human consumption, they'll take it off and then they'll stop using it. But until then you can't use any other types of studies that are provided, showing that it's unsafe as a basis to decline a application from say, Verizon to install the small cell sites. 

So the FCC adopted these standards back in 1996, haven't changed. And I gave a little bit of the FCC reference over here. So they give what's called a MPE, some Maximum Permitted Exposure adopted in 1996. And you see the standard right here about what the requirements are for the MPE. So anything below threshold would be perfectly fine that the FCC. The only thing at local jurisdiction we do is that the carrier meets these regulations. And one of the things I like to do is to when they do that is to request what's called FCC health and safety study and it shows that they're in compliance with it. And as I said before, I upload that as part of the Hoplite app. And usually what they do is with the augmented reality, it pops up all this type of data one of which is a PDF link. And on their phone screen, they can click the link and hyperlink and take them to a actual health and safety report, it'll be a PDF event. I think it's just been incredibly helpful for local municipalities you know, they have a call from somebody calling up and complaining you know, a lot of people concerned that businesses and their home is right nearby they could go ahead and use that augmented reality app and find that it complies. They did not conclude that 5G is unsafe they had to do a little more due diligence pursuant to the administrative procedures act and the RF safety standards for 5G default to the 1996 standards, which covered quite a big range of see 300 Kilohertz to a 100 Gigahertz range. So it fully contemplates and encompasses the frequencies that are being used now. 

So you're gonna see certain members of the public concerns. Certain members of the public are gonna push back against 5G installations. That's been very, very organized disinformation campaigns and mislead claims by those who oppose 5G technology. I'll just share a somewhat humorous story. I remember doing testimony in one of the local municipalities I represent, and one of the residents came up, he was gonna speak, he had the microphone and he walked up almost right in my face, I thought he was about to punch me and I could see that one of the police officers who were there was about to rush there and try to break it up. I thought I was gonna get assaulted that night. Thankfully he didn't, but he made a very dramatic approach to me in court. So some of the claims were our safety will be and visual blight. Some people are gonna say, it's gonna depreciate the home value. I kind of think that's silly, especially amongst younger people who have children who work from to telecommute will find that having 5G is gonna enable 'em to do quite a bit of work from home very more, very reliable high speed. So I think it'll actually help with property value. I think it's gonna be a discriminator when people looking around for a home to find somewhere that has a true 5G signal, thereby. So local jurisdictions cannot use complaints, restricted deployment 5G. So it says, well, I'm gonna lose divide at my home, then be able to sell it wouldn't that be a basis to go ahead and deny an application again, highly restricted about the rationale you could disprove it. 

So I like to do town forums to manage residential complaints before they roll things in. If I know, for example, it carries back to do an application, I like to have town halls. I always find that transparency with residents, explain what's going on, where are they're gonna be put down, they're gonna put these small cell towers in advance. I think really quite a bit deflects what's going on and I think no one could come in after the fact from the municipality and complain that they weren't advised about it. I think it's a good policy thing to do for the municipality in terms of public outreach. So people, at least it may yell and scream about it, but at least they felt they had a voice about it. And won't be surprise to anyone. And often what I found frankly, is that you have a very ferous minority of people in a community who really oppose it. So it's really not a lot. It's just a vocal matter. You may have eight or nine people, 10 people applauding one person and you kind of supporting the other and it sounds like it's a big locust, you have the pitchforks and the torches, but really, it's just a very few amount of people. So bear that in mind too. I think personally, my personal opinion is that 5G will bring benefits that will likely outweigh concerns that's related to health and streetscape appearance. Another incredible piece of information is the establish shock clocks. 

Now it's established in the FCC again to help streamline and speed along the deployment of new technologies. If you have a small cell, you have 90 days for new pulse, you have 60 days for all of the builds, including upgrades and co-locations. So if you have an existing piece of infrastructure, say in that case, one Carrie built one already call it a TNT Verizon comes after the fact and they wanna apply to put on their pole the mid supply has 60 days in which to improve. On the old school towers, the 150 200 foot high towers they have 150 days to approve so a lot more time with that, but it's a little more to think about. 150 days or 90 days for upgrade. So they come in, they wanna raise the tower by five feet and put three more antennas on there they have 90 days to get back to issue a permit. So includes everything. It's the zoning, a permit, it's a construction permit right of way access agreements and street opening permits that run concurrently is that 90 days to do the zoning board approval, 90 days to the construction they don't run sequentially and run concurrently. 

So everything happens at the same time. So as their telecommunications attorney, I like to ensure that they run afoul of it. I try to make sure everyone's on track and kind of shepherd the process to avoid violating the shot clock. I find that to be at best practice. Something, the 2009 shock clock, some towns try to challenge it. You'll see two cases over here are listed the new single virus versus town of Stoddard New Hampshire is said that these timeframes are considered to be reasonable and then not sequential they're concurrent. So the 150 days, for example, would not be each piece of approval, that would be the toll approval process. And then again, there was one recent case in city of Arlington versus the FCC that the FCC has difference to interpreted applicable talent communications based federal laws feeds statutory authority so they can interpret reasonable timeframes as the one 50 and 90 days. So been challenged and it's been sustained. So some of the things I just want you to walk away with as I come close to concluding is the FCC orders to recap. So just to go over some of the most salient ones. 2009 shot clock order. 

As I mentioned before, the 150 90 day shot clock for the macro site development, those are the towers we're talking about before. 2014, interprets the 2012 Spectrum Act facilities request parameters. As I mentioned before, non substantial improvements must be approved by local government bodies. As I mentioned, for example, less than four cabinets, less than 10 feet, they gave the structure before. 2018 small cell order interpret sections 253 and 332 of the telecommunications act for small cell deployments. So it says right up there that $270 per year is safe Harbor and then the 90, 60 day shot clock rules 90 day, remember for new ones, 60 days for co-location. And then 2020, there were two words that affirmed the eligible facilities request standard and add additional conditions such as that modifications can defeat existing concealment elements and then modifications can expand the equipment compound two different directions. So they made slightly little modifications to the eligible facilities request, but still in line with what was already decided earlier. 

So looking ahead real quick, some seismic shifts in wireless. Wireless technology would continue to evolve in very much unforeseen future developments, computing and wireless transmission is gonna then shape the industry later down the road. Improvements in millimeter wave propagation, large amounts of spectrums gonna be available plus the existing licenses, millimeter waves have very difficult time passing through walls and foliage trees and people. So there's gonna be some improvements to that. Broadband funding. You already see that in the federal government, some of the most recent federal spending included some provisions for broadband funding. Spectrum auctions. So gonna be additional bits of spectrum that's gonna change the way things are deployed and that's gonna change the way the law applies to it. Smart cities. You have local governments negotiate with carriers for use of space on small cells to put their internet things or traffic sensors. In some instances are doing devices to measure how long people are parked there, they could go ahead and issue permit citations to people based on these cameras. Could measure the amount of time someone's been parked there and then just mail 'em citations. 

Pretty interesting. And then it'll be things such as non-terrestrial networks, things like balloons, things like maybe satellites. It's gonna be pretty difficult to deploy this. It'll still be your conventional radio terrestrial units, but something to keep a look at. Some of the key takeaways of what you have over here. Local government can draft its own land, use regulations... Excuse me, there. I had a little bit of a coughing fit. So some other things to talk about is outlook. 5G points will continue to expand in coming years, it's gonna affect the public ways, it's gonna be in parks, it's gonna be in rooftops, towers. They have the place of suitable cellular tennis. So you're gonna see quite a bit of these little towers is going up everywhere, everywhere they need service. So you have extended Parklands, you gonna start seeing them and they're usually probably around walking paths I would think. We discuss some best practices. Local governments should adopt federally compliant regulations to govern the most likely range of deployment configurations. Without such regulations in place just in so no recourse when carries apply stuff facilities.

One of the things I would like to tell people is even towns where I don't think the carrier is going to be deploying, the small cells is to get ahead of things. You don't wanna wait for the carrier to apply because the FCCS rule that if you don't have a ordinance in place, that's consistent and complying with the FCC that effectively you're stuck with the default settings under the FCC. And on my ordinance it's something, I encourage everyone here they want to use and share the ordinance I've already designed for municipalities I've had, we have very many discussions with the carriers during open hearings about the direction of how things look in terms of the ordinance. And I've come up with a very, very good ordinance that complies to FCC and really protects your municipality. So I encourage you to reach out to me if you have any questions that we are a small community, us attorneys, and always very happy to go and share best practices with the community. So with that, I'm gonna move over to the last slide, which has my contact information. 

So again, I'm Peter Lupo from Hoplite Communications. I'm located in New Jersey, but this is FCC law. I could be assistance to anyone across the country. I could be contacted here. And with that, I will turn it over to the instructor.

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