a report from Vice Mayor Jan Devereux, Chair of the Transportation & Public Utilities Committee, for a public hearing held on November 8, 2018 to discuss the Federal Communications Commission’s new policy on regulating small cell technology and the City’s response and policies

ETTACHMENTH MUNICIPAL ACTION GUIDE Small Cell Wireless Technology in Cities NATIONAL LEAGUE OF CITIES NLC CITIES STRONG TOGETHER

Small Cell Wireless Technology in Cities Introduction From our connected homes, where everything is controlled by the internet, to our workplaces, where reliable broadband access is paramount for almost every type of job, technology is impacting every facet of our daily lives. Cities are inextricably linked to the internet, and the integration of new technologies promises better and more innovative ways to serve our residents. With this seismic shift toward smart cities reality, city officials must also face a number and the internet of things (loT), reliance of policy, public safety, land-use and right-of- on wireless and wireline broadband way considerations. infrastructure is becoming greater and As cities navigate this rapidly-changing policy greater. Mobile phones, loT devices and issue with both wireless and infrastructure other small wireless gadgets are becoming providers and community residents, a number ubiquitous. Wireless data consumption has of considerations for the different stakeholders reached approximately 1.8 exabytes per begin to emerge. This action guide from the month in North America alone, and that National League of Cities (NLC) provides an number is projected to grow six-fold by 2022.2 As various wireless providers maintain overview of small cell technology, as well as that the roll out of 5G internet service is guidance on how local governments can plan approaching, and the loT proliferates with for, develop policy and processes around, and the connection of millions of new smart manage the deployment of, small cell wireless infrastructure. It will also provide city leaders devices to the internet, cities must face the with strategies for proactively engaging with reality that to meet the increasing demands wireless providers and residents to plan for of residents, more wireless facilities and small cell networks in their communities. infrastructure must be deployed. With that Every consumer product and piece of infrastructure increasingly has the ability to sense surrounding stimuli, to communicate with other devices and people, and to draw on the computing and storage power of the cloud. This phenomenon has been dubbed The Internet the internet of things (loT). The more smart devices and sharing platforms there are, the more data is generated about consumer preferences and habits. But what does this mean of Things for cities? Smart cities are employing the same technology to connect their disparate utility, infrastructure and public service grids, generating real-time aggregate data. This, in Connected in turn, can help cities manage their programs and services more effectively and gauge Cities their impact for residents, businesses and visitors immediately. The city of the future is an interconnected one, where devices communicate with one another in a constant stream of data that provides real-time information to the public and to the municipality.? NATIONAL LEAGUE OF CITIES 2

What is a 'Smart City'? The term 'smart city' sometimes seems to mean everything and nothing all at once, and a common question about the phenomena is some variation on, "what is a smart. city?". A smart city is a city that has developed technological infrastructure that enables it to collect, aggregate and analyze DU SOLEI real-time cata and has made a concerted effort to use that data to improve the lives of its residents and the economic LOVE viability of the community. Smart city initiatives often involve four components: the underlying communications infrastructure, information and communication technologies (ICTs) that generate and aggregate data; analytical tools which convert that data into usable information; and organizational structures that encourage collaboration, innovation and the application of that information to solve public problems! Examples monitoring devices that promote efficient or sustainable usage, smart streetlights that double as gunshot spotters and communicate with city administrators when they need maintenance, and traffic control and management systems that streamline traffic bottlenecks and report A small cell pole in the median congestion and traffic data to of the Las Vegas Strip. city transportation planners. (Photograph by SmartWorks Partners) 3 MUNICIPAL ACTION GUIDE

Small Cell Wireless Technology in Cities Small Cell Technology smaller than those deployed at macrocell What is small cell sites, and are often attached to buildings, technology? rooftops and structures in public rights-of- As wireless data usage continues to way (ROW), including utility and light poles escalate, providers must find new and and other street furniture.4 Pole- or ground- innovative ways to keep up with consumer mounted equipment accompanying the demand for more speed and data capacity. antenna may also be needed and can be as One way to address the capacity crunch is big as a large refrigerator. This equipment by deploying "small cells," a type of wireless may be in the ROW, or on other public or technology for broadband infrastructure. private property. Various federal, state and local laws define small cell differently. Generally, "small cell" These facilities help to complement or refers to both the smaller coverage area stretch macrocell coverage and add of the wireless signal, and the smaller size of the infrastructure. Small capacity in high demand areas. Small cell infrastructure is typically deployed to cell installations generally cover alleviate capacity constraints where crowds much smaller geographic areas - measured in hundreds of feet gather or to cover targeted areas, including - than the traditional macrocell public squares and spaces, downtown towers that can cover miles in each pedestrian areas, parks, office buildings, direction. The antennas are much campuses, or stadiums and arenas. Macrocell Vs. Small Cell: Although they serve Small Cell: Small cell different purposes. macrocell and technology is much more small cell technologies discreet, mounted on existing complement each other. structures like rooftops and • utility poles. Sometimes, they are accompanied by refrigerator-sized equipment. Because small cells only supply Macrocell: Traditional a few hundred feet of coverage, macrocell towers have a they are best suited for dense coverage area that spans areas like downtowns. several miles. They're hard to miss, although their signal degrades towards the edge of their coverage areas. NATIONAL LEAGUE OF CITIES 4

mounted equipment associated with What are some of the some small cell facilities obstructing a benefits to cities? With the increasing usage of wireless crowded city's rights-of-way. In addition, recent state and federal efforts to speed devices and data, cities are facing the deployment of small cell facilities increased demand for reliable wireless have focused on preempting local service. Small cell facilities can be used to increase the mobile broadband network authority to review and control small cell capacity in cities. This improved service deployments, or to collect fair rents for the use of public property. and capacity has many advantages, including economic competitiveness, What federal and state a "tech friendly" reputation, and more opportunities to deploy smart city and policies apply to municipal siting processes? loT applications. Given that up to 80% of The siting of wireless infrastructure is today's 911 calls are placed via wireless governed by local, state and federal law. phones, robust wireless networks are also critical to public safety.® Most wireless infrastructure siting is governed by the applicable government entity with control over the facility's property or location, and there may also What are some be state and/or federal laws that apply to of the risks to cities? local determination. Local governments Often, wireless providers will want small assess applications for permits to build cells deployed in dense urban areas new or alter existing wireless facilities for to provide adequate capacity in high a variety of purposes, including public demand spots, and each provider will safety, overall management of public want its own facility installed to cover the same dense area. Thus, there may be property or rights-of-way, accessibility several requests to locate such facilities requirements, environmental issues, land use and community aesthetics. Local in the same general areas, such that four governments may charge wireless service polls in a row will have small cells from four different wireless companies. This providers or wireless facility providers can result in clusters of small cells that are for application processing, access to the rights-of-way, and/or ongoing fees visually unappealing and detract from the for access to public property - such as aesthetic of the community. Deployment municipal street lights or traffic lights - and installation of small cell facilities either pursuant to local codes, as part of can potentially interfere with existing a large master lease or license agreements technology, such as wireless traffic signals with a provider, or on an application-by- and other municipal technology in close application basis. proximity. There is also the risk of ground 5 MUNICIPAL ACTION GUIDE

Small Cell Wireless Technology in Cities Federal oversight of wireless siting is not substantially change the physical dimensions of such tower or base station."° primarily based on three federal laws: The Communications Act of 1934, The FCC created regulations in support of the Telecommunications Act of 1996 this law, specifying that these collocation requests must be approved within 60 days of (Telecommunications Act) and a provision of the Middle-Class Tax Relief and Job Creation application, and that this definition includes Act of 2012 (Spectrum Act). distributed antenna system (DAS) and small cell facilities.' If a city finds that it received These laws contain provisions intended an incomplete application, it has a limited period of time in which to pause, or "toll," the to spur the development of wireless infrastructure and impose some limits on shot clock by notifying applicants in writing of the missing information and relevant local local authority over that infrastructure. The Telecommunications Act, for instance, makes requirements. it unlawful for local government to prohibit, or The 1934 Communications Act has been cited have the effect of prohibiting, the "provision in recent federal petitions and rulemaking of personal wireless service," prevents local government from "unreasonably activity" relating to the deployment of small cell facilities. Section 253 of the discriminating among providers of functionally equivalent services," and 1934 Act requires that local governments receive "fair and reasonable compensation requires that local government "act on any authorization to place, construct, or modify from telecommunications providers, on a competitively neutral and nondiscriminatory personal wireless service facilities within a reasonable period of time." It also stipulates basis," when determining costs to access the public rights-of-way. The FCC has solicited that local governments denying siting applications do so "in writing and supported public comment on how and whether to ciarify by substantial evidence contained in a written the meaning of this phrase in relation to small cell wireless facilities but has not yet issued a record."7 The Federal Communications decision or guidance. Likewise, the FCC has Commission (FCC) has interpreted that recently issued orders prohibiting moratoria a "reasonable period of time" for local on wireless deployment applications and governments to grant or deny siting requests permitting in essentially all circumstances.! is 150 days for new facilities, and 90 days for collocations.* This presumed time limitation is State governments have also passed laws commoniy known as a "shot clock." intended to speed the deployment of Meanwhile, the Spectrum Act also contains wireless infrastructure, particularly small cell provisions that limit local control over infrastructure, in recent years. For example, collocated wireless facilities to ensure the Arizona's HB 2365, which was signed into law on March 31, 2017, imposes a series of new swift deployment of wireless technologies. Section 6409(a) of the Act provided that requirements on cities' regulation of wireless "a State or local government may not deny, infrastructure. Arizona's law creates timelines for both cities and applicants to complete and shall approve, any eligible facilities reviews of applications and buildout of the request for a modification of an existing wireless tower or base station that does requested site. Additionally, it states that rates 6 NATIONAL LEAGUE OF CITIES

The Telecommunications Act makes it unlawful for local government to prohibit, or have the effect of prohibiting, the The "provision of personal wireless service," prevents local government Telecommunications from "unreasonably discriminating among providers of functionally equivalent services," and requires that local government act on any Act of 1996: authorization to place, construct or modify personal wireless service facilities within a reasonable period of time." or fees are limited to not more than the actual to a stricter application review timeline than and direct costs incurred by cities to review federal regulations establish. those applications or manage the ROW, and Cities must also consider their own internal places a fixed dollar cap on those application capacity when determining how much time fees, as well as a fixed cap on annual rights- should elapse before a new ordinance focused of-way access and pole collocation fees. 31415 on small cell deployment goes into effect. Other states have enacted similar limits on local For example, if the new process demands the establishment of new online application systems review times, factors which may be considered or forms, the city should allow ample time to in a site review and fees local governments create those new systems before applicants will may assess. State laws may limit whether local expect access to them, to avoid unnecessary governments can enter into agreements with delays in the application process. Particularly providers for larger-scale deployments of infrastructure within a community. in the case of small cell deployments, providers may wish to file many applications at once as part of a network build-out, and cities should be What are some of the policy prepared to determine whether they can limit challenges cities face? the number of applications any provider can file Cities adapting their ordinances or processes to enable efficient small cell within a given time period under state law, or whether they are capable of accepting batches deployment face a number of policy of similar applications simultaneously. challenges. First, cities must consider any recent changes to state law that impact Cities should be cautious in passing local ordinances. Nearly half of all states had already passed small cell legislation or moratoria on new wireless facility were considering it by their 2018 legislative applications. While moratoria may provide the necessary time for policy makers to sessions. Many states that passed laws determine how best to approach this new exempted municipal rights of way from the technological and administrative challenge, legislation. These laws may impact what fees or rates cities can assess, what factors they are not legal in some states, and have been prohibited by the FCC. Moratoria they may consider when deciding whether may invite legal challenges from wireless to approve or deny a wireless facility providers eager to start construction. application, and whether the city is subject MUNICIPAL ACTION GUIDE

Small Cell Wireless Technology in Cities City Examples with sensitive aesthetic needs. However, Boston: Preserving a city known for its universities and tech History and Planning for a industries needed to be a competitive leader Technology-Driven Future on broadband infrastructure to retain and The city of Boston faced a unique challenge when it set out to upgrade the city's wireless attract residents and businesses. networks: its history. The city contains narrow, twisting streets with little sidewalk To address the growing demand for small space, carefully-maintained historic districts, cell wireless infrastructure, the city used widely-available online tools to create an and a wide variety of decorative poles and streetlights - including some gas lamps. online application and review process that has reduced the average turnaround time for This adds up to crowded rights-of-way small cell site application reviews to roughly two weeks. The city has also managed to stem potential floods in applications by placing reasonable obligations on providers eager to file many applications at once. Macrocell technology is much better for large, low-density Small cells are perfect for populations like quiet small, dense-population areas with residential areas. high-capacity needs. Downtowns, stadiums and theme parks are ideal for this technology. NATIONAL LEAGUE OF CITIES 8

locations' needs and added those new For instance, after a permit for a new designs to a list of pre-approved poles. wireless facility is approved, the provider The city has also developed a database of must build its site within sixty days. existing right-of-way infrastructure assets, such as water, power and broadband lines in Because of its narrow, historic streets, Boston has had to work very closely with neighbors the city. This helps smooth the application process and cuts down on the time needed and wireless providers to create innovative to communicate between city departments pole designs that take up less sidewalk space, and with providers. Additionally, the city has or to negotiate a different pole location on a created a master license agreement process nearby arterial street with fewer residences and more room to site equipment. based on existing public-private partnership agreements and adapted the master license agreements used for broadband to business Lincoln: Creating and home to mobile infrastructure. Making Business Solutions to the agreements consistent, and posting Technology Challenges them publicly online, has helped reassure In the city of Lincoln, Nebraska, broadband providers that they are getting the same infrastructure is an important development deal as their competitors and smoothed the priority. As demand for service, and for negotiating process. permission to build infrastructure, rose in the community, the city decided to Lincoln has faced some challenges in tackle business process challenges. The recent years with its efforts to deploy city began physically relocating staff and wireless infrastructure. Some providers grouping them by process and function, have successfully received permits to build rather than department, and created a new poles, but have not deployed in those new rights-of-way construction group locations, resulting in wasted city resources of staff from multiple departments to and no improved service for residents. The manage broadband infrastructure, small cell city has also fought back against attempts wireless applications and other issues. This created a one-stop-shop for private utility by the state legislature to preempt local authority over small cells. In 2017, the city construction in the public right-of-way. battled wireless providers who claimed that city-induced costs were inhibiting The city worked with carriers to create a infrastructure deployment. When Lincoln standard pole design that met the needs offered a discount to local carriers who of 95 percent of the city's pole locations and could accommodate most carriers' were willing to build out connectivity in rural parts of Nebraska, the providers backed equipment. For the other five percent of down, and ultimately preemptive legislation locations, the city has worked with individual did not pass that year. carriers to co-design poles to meet those 9 MUNICIPAL ACTION GUIDE

Small Cell Wireless Technology in Cities installations, the city shifted its process Raleigh: Finding Common to require basic geographic coordinates Ground with Industry for proposed wireless sites, so that the Through Partnerships city could quickly work with providers to The city of Raleigh is focused on being the find optimal locations. Wireless providers best - with hopes of being designated a appreciated hearing back from city staff 'best place' to live, work and play, as well as about site feasibility within a couple a forward-thinking leader in the technology of days of submittal. The city has also space. The city recognized that in order to taken several steps to hear the wishes of achieve those goals, it would need to be open to the prospect of small cell wireless residents, most directly through its 20 Citizen Advisory Councils. City employees infrastructure deployment. From the who manage small cell deployment moment the city was approached about have been meeting regularly with these installing small cell infrastructure, the priority advisory boards to gather feedback and was to establish a good working relationship answer questions about the process of with wireless providers while protecting small cell installation. and upholding the values and interests of residents within our communities. The city streamlined its application process by eliminating some unnecessary engineering time and costs. Rather than calling for engineering drawings for all Quantity and Quality: Although macrocells cover much larger areas than small cells - miles versus feet - small cells have higher-quality coverage that works well in dense areas. NATIONAL LEAGUE OF CITIES 10

According to the Federal Communications Commission, broadband is connection speeds of at least What is 25 Mbps for downloads and three Mbps for uploads. About Broadband? 20 percent of American households don't have access to broadband under this current definition. One administrative challenge came about in speaks to the needs of all residents. With only three percent of the city connected the form of a piece of legislation passed by the state that preempts the city's ability to to high quality fiber lines, the city needed to both improve overall access to high manage small cell applications. A 2017 law speed internet and address the digital restricts local governments in the state of North Carolina from sending applications for divide for 95,000 residents without access. collocated infrastructure - or infrastructure After commissioning a study of the city's broadband approach as well as conducting that wireless providers want to place on surveys of low-income populations, San existing poles - to city council for review. Jose officials set about working with the Wireless providers that wish to collocate small cell infrastructure are allowed to seek private sector on an arrangement that facilitates deployment, speaks to administrative approval and place their the city's equity goals and meets equipment and infrastructure on those provider expectations. existing poles. This is intended to streamline the review process for small cell installations They settled on a tiered pricing structure that do not require a new structure or pole to be constructed. While it shortens the where providers pay $750-$2500 depending on whether they will cover the entire city administrative approval process, it removes or smaller areas. Larger deployments the city's ability to govern on this issue. essentially receive a bulk-discounted rate. This revenue then feeds into two important San Jose: Welcoming New city goals: internal capacity building and Technology While Closing digital equity. For the former, the revenue the Digital Divide Equity drives San Jose's approach to bolsters the public works department, enabling staff to streamline the permitting bringing new technologies to the city, and the deployment of municipal broadband and governance processes. Providers are therefore amenable to the deal because and municipal fiber lines is no exception. it facilitates faster small cell deployment. Located in Silicon Valley, San Jose city officials are acutely aware of the technology Additionally, the remaining funds, $24 million boom happening on their doorstep and so far, go into a "Digital Inclusion Fund" to are eager to welcome these advances, close the digital divide for low income and vulnerable populations. provided they can do so in a way that 17 MUNICIPAL ACTION GUIDE

Small Cell Wireless Technology in Cities process. It also forced cities to reduce their When San Jose officials stepped back to fees to a rate that was significantly lower look at the whole picture, they noticed than existing market rate agreements.6 that different providers had an interest in The rationalization for such legislation was deploying in different market segments that it was needed to speed up deployment and, therefore, different neighborhoods. By in Arizona by limiting a city's capacity to building relationships with these carriers, interfere via local legislation and incentivize San Jose has been able to spread coverage across the city. Where gaps arise, the digital 5G by reducing the industry's costs of inclusion fund fills in. Some of the projects deployment. During the negotiation period preceding the passage of the bill, on deck include free device checkout at the city fought hard to maintain its ability libraries and coding camps. The city will also to manage the right-of-way, mostly in pursue grants on top of these core funds order to retain control over the aesthetic to further build out program support in the elements of deployment and to minimize long term. any visual blight caused by the size of the small cell allowed (the equivalent of 27 Tempe: Bringing pizza boxes)." Transparency to the Process The city of Tempe knows that small cell The new law required Arizona cities to infrastructure will be integral to meeting establish and make standard terms of the technological demands of the future. agreements publicly available. Tempe For city staff, determining the process for viewed the legislation's six-month small cell infrastructure deployment and implementation period as an opportunity being transparent about it with wireless to foster collaboration between the public providers was very important. Once the and private sectors. Before finalizing the city established a master license agreement standard terms and conditions, site license with the first carrier in the market, that provisions, application processes for small original agreement was used as a template cells and design criteria, the city sent draft to develop subsequent agreements with copies of all proposed documents to the small cell infrastructure providers, who also major carriers and infrastructure providers wanted to deploy small cells and distributed for feedback. Collaboration with the industry antenna systems (DAS). was important in avoiding conflict when documents advanced to the city council for In 2017, however, preemptive legislation deliberation and approval. was passed by the Arizona state legislature that hindered the city's ability to The city also carefully considered the completely control small cell infrastructure desires and values of the public. For deployment. The new law imposed fee caps residents, aesthetics and the way the new as well as shot clocks on the application NATIONAL LEAGUE OF CITIES 12

hindrance to deployment. Tempe found small cell infrastructure blended into the that balancing the concerns of industry community were very important. Tempe was able to coordinate with other local with the city's ability to manage its poles and right-of-way is critical. Local cities and wireless providers to create government can function as the connection design guidelines, ensuring that new infrastructure would mesh with the local between the community and industry, ensuring that both parties' interests are aesthetic. The city worked to ensure that represented and accounted for. the guidelines were not too much of a Towers: Macrocell infrastructure is hard to miss. Towers can reach up to 199 feet in height, and they're rarely shorter than 50 feet. Small cell: Small cell antennas are typically only a few feet tall, roughly the size of a pizza box. They are also often accompanied by an equipment cabinet the size of a utility box or refrigerator. 13 MUNICIPAL ACTION GUIDE

Small Cell Wireless Technology in Cities Strategies for City Leadership Gain a full understanding of the technology Tand important safety consideration sho Local elected officials and decision-makers should ensure that they understand technical, political and legal implications of the technology, its deployment, and any existing policies related to small cell facility siting. This will ensure that the best interests of the community are upheld when new decisions around small cell siting are being made. Articulate your priorities for accommodating this technology. City officials should determine how they want to integrate this technology into their communities and be intentional about expressing those desires during the policy-making discussions and deployment process. Some questions and considerations might include: a. Whether the city wants to subsidize the build-out of the facilities to speed up wireless connections; b. Whether the city needs extra time to conduct a thorough engineering review for public safety concerns; or c. Whether the city will work to harmonize the facilities with the look and feel of different parts of town. Create clear policies for permit review that 3 know the expectation andustry aplicanes know the expectations. This includes establishing processes for how applications will be addressed or processed, timeframes, objective requirements for the decisions and possibly application checklists. Cities should communicate these policies broadly and transparently to potential applicants. They may also wish to collaborate with likely applicants to develop design standards compatible with technological needs. NATIONAL LEAGUE OF CITIES 14

Develop a template right-of-way access = 9 4 atachment agreementel as a city pole attachment agreement. Cities should make sure these policies and agreements address multiple kinds of infrastructure, from macrocell towers to small-cell facilities. This might include the establishment of requirements for both types of structures - such as size, location, design, public safety, stealth, etc. Think through in advance any beneficial items 5 or use of the right or way alowed by sate lov. for use of the right-of-way - if allowed by state law. Issues up for negotiation might include collocation; length of time for siting; terms of installation; terms for upgrade; free or discounted services for schools, libraries, or other public entities; or other provisions that benefit the community and its residents. Give careful consideration to fee structures. • There are a variety of fees and charges that cities may want to address. Application fees to cover the cost of staff to review applications, permitting fees to cover costs of building permit reviews and inspections, regulatory access fees for use of public ROW (ongoing), rent based on market rates if using public property (ongoing), and ongoing maintenance fees. Cities should take care to ensure that costs for removal of abandoned equipment are not borne by taxpayers. MUNICIPAL ACTION GUIDE 15

Small Cell Wireless Technology in Cities Definitions Collocation: When multiple wireless providers attach antennas and other equipment to a single shared support structure. This practice may lower barriers to entry for new providers and reduce pole proliferation. The federal government defines collocation as: 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.!® Small cell facilities: Small cell facilities are a type of wireless broadband infrastructure. They typically take the form of small antennas that are placed on existing infrastructure (both indoors and outdoors) and ground mounted equipment. These facilities help to compliment or stretch tower macrocell coverage and add capacity in high demand areas. In many states this term is defined by state law. Ground mounted equipment: This type of equipment sits at ground level, such as along sidewalks. It is distinct from equipment mounted on existing infrastructure such as telephone poles or buildings. This equipment is similar to traffic control or telephone equipment cabinets. Macrocell: A macrocell is a wireless facility used in cellular networks with the function of providing radio coverage to a large area of mobile network access. A macrocell differs from a microcell by offering the backbone of coverage area and high- efficiency output. It is placed on stations where the output power is higher, usually in a range of tens of watts.! Smart city: A "smart city" is one that has developed technological infrastructure that enables it to collect, aggregate and analyze real-time data to improve the lives of its residents.20 NATIONAL LEAGUE OF CITIES 16

Internet of things (loT): The internet of things (loT) is a computing concept that describes the idea of everyday physical objects being connected to the internet and able to identify themselves to other devices. The term is closely identified with RFID as the method of communication, although it also may include other sensor technologies, wireless technologies or QR codes.21 5G: The term for emerging 5th generation wireless telecommunications standards usually associated with network speeds of 1 Gpbs or more.22 Exabytes: An exabyte is a unit of measurement that describes 1018 bytes or 1 billion gigabytes. This unit refers to such a large amount of data that it is typically used to express quantities of information transmitted over the internet in absolute terms. Internet Service Providers: An internet service provider (ISP) is a company that provides customers with Internet access. Data may be transmitted using several technologies, including dial-up, DSL, cable modem, wireless or dedicated high-speed interconnects. Typically, ISPs also provide their customers with the ability to communicate with one another by providing Internet email accounts, usually with numerous email addresses at the customer's discretion. Other services, such as telephone and television services, may be provided as well. The services and service combinations may be unique to each ISP.2 Throughout the paper we use this term synonymously with the term carrier. Infrastructure Developer: Company or entity that invests in or builds out the basic physical and virtual systems of a community, including roads, utilities, internet and wireless networks, water, sewage, etc. These systems are considered essential for enabling productivity in the economy and require significant fiscal investments. Developers and investors can be from the public or the private sector.24 MUNICIPAL ACTION GUIDE 17

Small Cell Wireless Technology in Cities Resources National Association of Telecommunications Officers and Advisors: Wireless Facility Siting: Model Chapter Implementing Section 6409(a) and Wireless Facility Siting: Section 6409(a) Checklist - https://www.natoa.org/documents/6409ModelOrdinance.pc United States Department of Commerce Internet Policy Task Force and & Digital Economy Leadership Team: Fostering the Advancement of the Internet of Things https://www.ntia.doc.gov/files/ntia/publications/iot_green_paper_01122017.pdt BroadbandUSA: Broadband Glossary - https://www2.ntia.doc.gov/files/bbusa_broadband_ glossary_161024.pdi BroadbandUSA: Smart Communities Glossary - https://www2.ntia.doc.gov/files/bbusa_ 11212017.pdf smartcommunitiesglossa https://www.fcc.gc ment/icc-speeds-access. 'Trends in Smart City Development. (2016). National utility-poles-pre dband-5g-deployment-0 League of Cities. Access at: i $750.00 (A.R.S. § 9-593(I)) and $1000.00 (A.R.S. § 9-594(E)(3)). 2 Ericsson, Ericsson Mobility Report at 13 (Nov. 2016), 14$50 per small cell (A.R.S. § 9-592(D)(4) https://www.ericsson.com/assets/local/mobilityreport/ documents/2016/ericsson-mobility-report- 15 $50 per pole (A.R.S. § 9-595). november-2016.pdf. 16 The average small cell fee charged by Arizona cities 3 Trends in Smart City Development. (2016). National in 2017 was $3,530.00 per site, which included both League of Cities. Access at: the use of the pole and the use of the right-of-way for a small cell and associated ground equipment. (This City%20D amount was about 1/8 of the annual fees charged for macro sites). The legislation capped this fee at 4 Federal Communications Commission. (2016). Public $100.00 per site ($50.00 for the use of the pole and Notice: Comment Sought on Streamlining Deployment $50.00 for the use of the right-of-way.) of Small Cell Infrastructure by Improving Wireless 17 All antennas to be located inside an enclosure of up to Citing Policies. Access at: 6 cubic feet in volume and the associated equipment to be up to 28 cubic feet in volume. A.R.S § 9-591(19). 5 WIA (2017). Enabling Wireless Networks Everywhere, Presentation. 18 47 C.F.R. § 1.40001(b)(2) 19 n 6 See https://www.nena.org/?page=911Statistics finition/2950/macrocell 147 U.S.C. § 332(c)(7)(B) 20 Trends in Smart City Development. (2016). National League of Cities. Access at: http://www.nlc.org/sites 8 Petition to Clarify Provisions of Section 332(c)(7) les/2017-01/Trends%20in%20Smart%20 (B) to Ensure Timely Siting, WT-Docket No. 08-165 City%20Development.pdf (11/18/09). 21https://www.techopedia.com/definition/28247/ 947 U.S.C. $1455(a) internet-of-things-lot 10 Acceleration of Broadband Deployment by Improving 22https://www2.ntia.doc.gov/files/bbusa_broadband Wireless Siting Policies, WT Docket No. 13-238, 11-59, glossary_161024 pdf 13-32, (10/17/14) 23 https://www.techopedia.com/definition/2510/internet- " Ibid. service-provider-isp 12 Federal Communications Commission. (2018): 24 http://www.investorwords.com/2464/infrastructure Public Notice: FCC Speeds Access to Utility Poles htmi#ixzz5COh9N3rU to Promote Broadband, 5G Deployment. Access at NATIONAL LEAGUE OF CITIES 18

About NLC The National League of Cities (NLC) is the nation's oldest and largest organization devoted to strengthening and promoting cities as centers of opportunity, leadership, and governance. NLC is a resource and advocate for more than 1,600 member cities and the 49 state municipal leagues, representing 19,000 cities and towns and more than 218 million Americans. Acknowledgements Thank you to Kelly Martin, who created the data visualizations, cover illustration and report design, and to Laura Cofsky for editing the report. We are also grateful to all of the city officials, thought leaders, and experts who took the time to speak to us about small cell infrastructure siting. All photos courtesy of Getty Images 2018 unless otherwise noted. © 2018 National League of Cities. All Rights Reserved. 19 MUNICIPAL ACTION GUIDE

ATTACHMENTB MEMO TO: Jan Devereux, City of Cambridge FR: John Bowers, Berkman Klein Center DA: October 23, 2018 Small Cells RE: As an increasing number of consumers turn to mobile internet solutions, carriers are facing mounting pressure to provide faster and more consistent connectivity. The race to deploy throughput. Enter "small cell" technology, a rapidly developing set of telecommunications protocols and hardware with the potential to dramatically reshape our mobile networks. The FCC's September 27th order' on small cells is a key step in the accelerating deployment of the technology across the United States. While small cells will play a critical role in the future of telecommunications, their rollout will pose distinct challenges for local government. With the guidance of Professor Jonathan Zittrain of Harvard Law School, I have prepared some background materials on small cell technology and the regulatory environment which surrounds them, including the recent FCC order. What is a small cell? At present, most mobile internet connections are serviced by so-called "macrocells" - large internet-connected cell towers with tall antennas intended to provide service to a broad geographical area. These towers, in turn, often require zoning or other approvals by the municipalities in which they're situated. Macrocells cover such an enormous range by communicating with devices using low frequency radio waves, which are capable of travelling long distances. The upside of macrocells is that you generally don't need very many of them - a relatively small number can provide good service to a large, spatially distributed population of users. The downside is that low frequency radio waves lose in speed what they gain in distance: they transmit data much more slowly than high frequency ones.? "Small cell" is a broad term used to describe pieces of telecommunications hardware that are much smaller, less visible, and lower power than macrocells. Rather than providing coverage across miles and miles of a geographical area, small cells are designed to transmit and receive data from devices which are much more nearby - their range is often on the order of hundreds of feet or less. However, sacrificing range enables small cell devices to utilize medium and high https://docs.fcc.gov/public/aitachments/DOC-353962A1.pdf 2 https://www.nlc.org/sites/defauit/files/2018-08/CS_SmallCell_MAG_FINAL.pdf

frequency radio waves, which are capable of transmitting large amounts of data very quickly.3 In essence, small cells enable cellular carriers to enhance their macroceil-based networks through the addition of superfast but highly localized network nodes. Small cell installation is well underway - a 2018 study by the Next Century Cities group found that some number of small cells had been installed in about 44% of communities surveyed, with a further 26% reporting small cells currently under construction.4 This localization comes with another important perk - spectrum reuse. Macrocells capable of covering massive geographical areas must be careful about transmitting radio waves at the same frequency as other macrocells within their coverage area, as the collision of their transmissions could cause interference. The limited range that comes with small cells enables bands of the frequency spectrum to be used over and over within a small area: a smaller coverage radius for each smail cell means fewer opportunities for interference." You probably use one particular type of small cell every day - the humble Wifi router. Though WiFi routers operate in "unlicensed spectrum" (parts of the radio spectrum that have not been exclusively assigned to wireless communications providers, the government, etc), they nonetheless function as short range small cells for homes and workplaces. WiFi routers - like telecommunications small cells and macrocells alike - serve as connection points at the "edge" of the internet, passing internet data to and from our devices. While the small cells installed on telephone poles and buildings to expand cellular networks are generally more sophisticated and powerful than your average WiFi router, they serve the same role. Regulatory Landscape and Challenges Cellular carriers' use of the radio frequency spectrum is governed by a number of bodies. Non-governmental use of the spectrum is managed by the Federal Communications Commission, or FCC. However, approval of new hardware installations needed to establish cellular coverage often fall under state and local law. In most cases, cities review and make decisions on new small cell installations with the help of FCC guidelines." Small cells promise important advantages to the communities in which they are installed, including faster and more stable internet connectivity and cell service. However, their ubiquity implicates several distinct challenges. Firstly, small cells - many of which are mounted on existing utility poles - can be rather unsightly to some. https://www.qorvo.com/design-hub/blog/small-cell-networks-and-the-evolution-of-5g 4 https://nextcenturycities.org/wp-content/uploads/5Gresearch.pdf#page=22 5https://arxiv.org/pdf/1401.4750.pdf shttps://www.nic.org/sites/default/files/2018-08/CS_SmallCel_MAG_FINAL.pdf .......

A Samsung small cell deployed on a pole (source: Wikimedia) Many concerns in this category can be mitigated by intentional design practices - the city of Boston, for example, has committed resources to working with industry to minimize the aesthetic impact of small cells while enabling widespread deployment? DECORATIVE BASE COVER - 331232 Proposed small cell designs meant to integrate aesthetically with Boston's poles (source: City of Boston) https://www.nlc.org/sites/default/files/users/user167/Small-Cells-in-Boston-Mike-Lynch-pdf

Secondly, some small cells may require the installation of additional equipment at the base of utility poles. In some instances, this additional equipment - or the cells themselves - may impede movement along sidewalks. This has potentially negative implications for the accessibility - and Americans with Disabilities Act compliance - of public ways adjacent to obtrusive smail cell installations. Thirdly, the rapid expansion of small cell infrastructure has given rise to a potentially unwieldy deluge of applications to authorize new small cell sites, most of which are subject to time-consuming review processes.® Careful review is particularly important given the other challenges stated above. The extent to which local governments are able to exercise authority over small ceil installation is circumscribed by numerous pieces of legislation and by a September 2018 FCC order on the topic. The order - designed to streamline small cell rollout - contains a range of important provisions governing local oversight.® It has been preceded by a number of other more limited orders addressing aspects of small cell deployment, including a March ruling which exempted small cell installations from many of the environmental and historical review processes that normally apply to cell sites.'° Firstly, the September order binds cities to a 60 day time limit - or "shot clock" - for processing applications to install small cells on existing public infrastructure, and a 90 day shot clock for applications to build new poles with small cell installations. Given that the process of reviewing new installations can require a significant amount of effort, these new time limits might pose logistical problems for many jurisdictions or open the door to costly litigation." Furthermore, the FCC order imposes strict limitations on the fees that cities can impose on companies seeking to install small cell infrastructure. The fee structure outlined in the order makes small cell deployment less costly for telecommunications companies. While the FCC's commissioners and the order's supporters have argued that these restrictions on fees will encourage providers to deploy small cell technology in communities which might otherwise be left behind, the order's opponents have pointed to substantial prospective losses in local government revenue.12 The order also clarifies the "Prohibition of Service" rules in Sections 253 and 332(c)(7) of the Communications Act of 1934, which expose local governments to litigation if they unduly interfere with the development of telecommunications infrastructure. This lengthy discussion includes the aesthetic and accessibility concerns described above, and is intended to constrain the grounds on which cities can reject new proposals for small ceil installations. 13 s https://www.nlc.org/sites/default/files/2018-08/CS_SmaiCell_MAG_FINAL.pdf 9 https://docs.fcc.gov/public/attachments/DOC-353962A1.pdf 19https://www.sdxcentral.com/articles/news/new-fcc-rules-may-lower-5g-network-costs-for-verizon-and-att/ 11https://docs.fcc.gov/public/attachments/DOC-353962A1.pdf 12 http://www.govtech.com/policy/FCG-Ruling-Strips-Small-Cell-Local-Control-Mechanisms.html 13 https://docs.fcc.gov/public/attachments/DOC-353962A1.pdf

The order has been met with controversy, and will likely be challenged in the courts by towns that object to its new provisions.! Even so, it signals a clear intent on the part of the FCC to minimize the impact of local interventions on nationwide small cell rollout - and the concomitant deployment of 5G technology. Below is a list of resources with further information about small cells and the oversight measures available to city governments. Included is (1) the full text of the September FCC order, (2) a guide to municipal action and impact from the National League of Cities, (3) a model small cell code for municipalities from the National League of Cities, published just prior to (and anticipating) the September FCC order, (4) a 2017 report from Boston's Department of Innovation and Technology reflecting on Boston, and (5) a recent study on public attitudes towards small cell technology and its impacts. (1) Text of FCC order (September 2018): https://docs.fcc.gov/public/attachments/DOC-353962A1.pdf (2) "Municipal Action Guide: Small Cell Wireless Technology in Cities" from the National League of Cities (August 2018): https://www.nlc.org/sites/default/files/2018-08/CS_SmallCell_MAG_FINAL.pdf (3) "Model Code for Municipalities" from the National League of Cities and the National Association of Telecommunications Officers and Advisors (August 2018): https://www.nlc.org/sites/default/files/2018-08/NATOA%20NLC%20Alternative%20Model%20Co de%20for%20Municipalities%20FINAL_0.pdf (4) "Small Cells in Boston" from the Department of Innovation and Technology, City of Boston (October 2017): https://www.nlc.org/sites/default/files/users/user167/Small-Cells-in-Boston-Mike-Lynch-.pdf (5) "Status Of U.S. Small Cell Wireless/ 5G & Smart City Applications From The Community Perspective" from RVA LLC, supported by Next Century Cities (March 2018): https://nextcenturycities.org/wp-content/uploads/5Gresearch.pdf 14 http://www.govtech.com/policy/FCC-Ruling-Strips-Small-Cell-Local-Control-Mechanisms.html

11/8/2018 Transportation and Public Utilities Committee SMALL CELLS AND FCC REGULATIONS | NOVEMBER 8, 2018 DECORA PRESENTATION BY CITY OF CAMBRIDGE CONCES Pole and Conduit Commission • Background on the Pole and Conduit Commission: • Who are the members? • What does the commission do? • What types of permits does the commission oversee? • What are small cells? • Current procedures for small cell Installation on non-city poles. • Current status of small cells in Cambridge. • Examples of Small Cells in Cambridge and the region. 1

11/8/2018 Current Process for Small Cell Installations • The Licensed Telecommunications Although the small cell is above ground, in Provider will survey an area for cell some cases excavation is needed to install coverage due to drop calls and complaints of the fiber back haul. poor service from their customers. • When attachments rights are obtained the • A pole location is then identified for petitioner returns to the Commission to seek placement of a small cell. approval, if voted favorable, typical conditions are required with possible other • An application is completed with the mitigating circumstances. License Commission for a public hearing • with the Pole & Conduit Commission Petitioners are required to begin work within 60 days and complete within 6 • At the hearing the petition is heard with months. Extensions may be granted by the public comment if requested. Without Commission. opposition the petition is continued for the • The Small Cell is installed. petitioner to obtain attachment rights from the pole owner.* *Cambridge's wood utility poles are jointly owned by Verizon and Eversource Small Cell Examples in Cambridge 2

11/8/2018 ambriges Bosior Crown Castle Cambridge DAS/Small cell locations - Construction Complete and Aclive (121) feet Scale: 1:25,220 Crown Castle Installation Memorial Drive Example

11/8/2018 Chestnut and Albany Streets Bent Street and Hovey Avenue

11/8/2018 Cambridge Utility Pole Small Cell Examples in Boston 5

11/8/2018 Boston Boston

11/8/2018 The FCC Declaratory Ruling and Third Report and Order, dated September 26, 2018 ("FCC Order") imposes several new restrictions upon municipalities based upon its interpretation of the Telecommunications Act of 1996. Basic Requirements of the FCC Order • 1. While the City cannot "effectively prohibit" wireless services in an area by completely refusing to make its public ways, as well as structures within its public ways, available to wireless carriers, it may make reasonable regulations which do not "materially inhibit" the provision of wireless services. • 2. There is a 60 day "shot clock" for approval or disapproval of applications for use of existing structures such as light poles and traffic signals, and a 90 day shot clock for approval or disapproval of new structures to be constructed in the public way. • 3. The City may regulate aesthetics of the installations, if such regulations are reasonable, objective and published in advance. Such regulations could include limitations related to spacing requirements, equipment design, color and/or camouflage. The City could enact more specific regulations related to use of traffic signal equipment, street light poles, street signs, or street equipment such as trash receptacles. • 4. The City may charge a "reasonable approximation of its costs," for access to the public way and structures in the public way. The FCC Order presumes that a $500 one time fee for up to five wireless facilities, and a $270 yearly charge per wireless facility would be reasonable charges. 7

ATTACHMENTD THE GENERAL COURT OF MASSACHUSETTS STATE HOUSE, BOSTON 02133 October 16, 2018 To Whon It May Concern: We write to express our disapproval of the FCC's "small cell" Declaratory Ruling and Order on Wireless Infrastructure (dockets WT 17-79 and WC 17-84), and the in-kind offset proposed Attended by lie cable Sevision Cansume Proteion and Congain Act of 199 (decker MB 05-311). Among its other defects, the small cell order creates an unfunded mandate for our municipalities. Faster required application processing times may require additional statt, particularly when applications are roccived in bulk. Hundreds of small cells may be required even in a small geographic city like Somerville, deeply straining public resources to comply with a mandated timeline. We shject to the effective limitation on what municipalities can charge telecommunications companies for the installation of 5G wireless infrastructure, effectively preculing the most related mothod to rocover costs. The Order exposes inunicipalities to the risk of litigation, for instance if a municipality cannot mect the now time requirement. Municipalities may also bo called upon to defond, on a case-by- case basis, fees set higher than the FCC's thresholds, but winch nonetheless represent a "rasmable approximation" of costs incurred. Concerningly, the Order provides no guidance exempting current in force contracts, opening cities and towns to the potential of significant ligitation. While we applaud the goal of reducing the digital divide and providing service to underserved reas, we do not think the Order furthers that goal. It does not require that telccommunication ompanies improve services 1o underserved areas. The cost of installation shifts t municipalities, which are ill equipped to shoulder this additional burden. We are also gravely concerned about the proposed in-kind offset rule. Although funding for Public, Educational, and Governmental (PEG) channels is exempted from changes, in its practical implementation, the proposed rule is likely to negatively impact funding for PEC channels as municipalities' telecommunication revenue decreases. Somerville proudly hosts what was the first PEG channel in Massachuseas, which continues to serve a vital role in infornation saring and community building. The Somerville Media Center rovides important carcer development opportunities, facilitates student learning, hos orkshops, and produces content of high relevance to the community. A cut in our PE channel's funding decreases exactly the lypes of access this small cell Order purports to desire expanding. Disturbingly, the Order and proposed rule effectively remove local control over public infrastructure that municipalities manage in the public interest. We share the concerns of the

11/1/2018 Sen. Pat. Jehlen on Twitter: "Recently the Somerville delegation submitled testimony to the FCC opposing newly proposed rules that cout... National Govemors' Assueistion and the National Conference of State Legislatures that exis Orter will stymie local innovation. We urge the repeat of the small cell orer, and non-adoption of the proposed in-kind ofiset rule. Thank you for your consideration, Vateria chler Saris Print Senator Patricia Jehlen Representalive Denise Provost Denisc [email removed] Patricia Jellen @masenate.gov Mike Commoll CluB Represcatative Christine Barber Representalive Mike Connollyl Christine:Barber@mahoust.gov Mike. Connolly @mahouse.gov Sea. Pal Jebles @sentehten • * desent check towns winescosts puttrem denck offbgaton and redeep torong for 3 17: hittps://twitler.com/senjehlen/status/1058001962409562112/photo/t 1/1

ATTACHMENT E Mobile Connectivity exTenet Everywhere SYSTEMS Director of External Relations MEMORANDUM 0- [phone removed] M - [phone removed] [email removed] To: Interested Municipalities From: Haran Rashes Date: Fall 2018 Subject: Federal Communications Commission Order on Accelerating Broadband Deployment by Removing Barriers to Infrastructure Investment, Declaratory Ruling and Third Report and Order; WT Docket No. 17-79 & WC Docket No. 17-84; FCC 18-133 On September 26, 2018, the Federal Communications Commission ("FCC") adopted a Declaratory Ruling and Third Report and Order ('FCC's Order") to eliminate regulatory impediments to the deployment of small wireless facilities. The Order was formally issued on September 27th. Chairman Pai and Commissioners O'Riely and Carr joined in the Order and Commissioner Rosenworcel dissented in part. ExteNet Systems owns and operates multi-carrier, often referred to as "neutral-host", and multi- technology Distributed Networks to ensure multiple wireless service providers (WSPs) can provide their 4G LTE and 5G services in the most effective and efficient manner in both outdoor and indoor settings. We want to work cooperatively with the municipalities in which we install our Small Wireless Facilities to ensure mutual satisfaction and trust. ExteNet Systems, Inc. ("ExteNet") is aware that some municipalities may be concerned about the FCC's Order, its impact on implementation, and potential changes to existing review processes and pricing for siting of small cell wireless facilities. We want to assure all municipalities that, until the Order becomes effective, ExteNet plans to honor all current regulatory and pricing obligations under existing agreements and review processes. We expect all municipalities to do the same. However, in anticipation of the FCC's Order becoming effective in early 2019, this memo summarizes key parts of the FCC's Order and how we can mutually implement the guidelines set forth by the FCC. 1. Introduction In the Telecommunications Act of 1996 (the "Act"), Congress explicitly directed the FCC to "promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of (P) [phone removed] (F) [phone removed] 3030 Warrenville Rd. Lisle, IL 60532 E ::: Systems, Inc. www.extenetsystems.com

FCC Order on Accelerating Wireless Deployment Fall 2018 Page 2 of 7 new telecommunications technologies."' Federal Courts have recognized and upheld the FCC's authority to interpret various sections of the Act.? The FCC's Order is an interpretation of Sections 253 and 332 of the Act.3 The United States Supreme Court has set forth a legal test that Federal Courts must defer to an agency's interpretation of the law when such an interpretation is reasonable and congress has not spoken directly to the question.* While many municipalities are challenging the FCC's Order, in the absence of an appropriate Federal Appellate Court or the Supreme Court ruling that the Order is not a reasonable. interpretation of Sections 243 and 332 of the Act, any dispute between a provider, such as ExteNet and a municipality must be decided by a Court utilizing the FCC's Order as guidance. Some municipalities have indicated that they plan to reserve the right to consider and approve small wireless facility applications until after they have had a chance to interpret the FCC's Order and modify their local ordinances to accommodate such. Municipalities may not do so. In a previous FCC Order, the FCC ruled that both express and de-facto moratoria that prevent or suspend the acceptance, processing, or approval of applications or permits necessary for deploying telecommunications services and/or facilities are illegal.S Declaratory Ruling and Third Report and Order ('FCC's Order"") Il. The FCC's Order is divided into two broad sections, a Declaratory Ruling and the Third Report and Order. The Declaratory Ruling examines impediments to entry encountered by providers of "Small Wireless Facilities," as that term is defined in 47 C.F.R. § 1.1312(e). 911 n.9. These impediments include annual costs of access to the public right-of-way, municipal application fees, and aesthetic and spacing requirements imposed by municipalities. The Third Report and Order Establishes two new shot clocks for Small Wireless Facilities (60 days for collocation on preexisting structures and 90 days for new builds) and codifies the existing 90 and 150 day shot clocks for non-Small Wireless Facility deployments established in the FCC's 2009 Declaratory Ruling. 1 Preamble, Telecommunications Act of 1996, P.L. 104-104, 100 Stat. 56 (1996). 2 See, e.g., City of Arlington v. FCC, 668 F.3d 229 (5th Cir. 2012), aff'd, 569 U.S. 290 (2013); Sprint Telephony PCS LP v. County of San Diego, 543 F.3d 571 (9th Cir. 2008) (en banc); RT Commc'ns., Inc. v. FCC, 201 F.3d 1264 (10th Cir. 2000). 3 47 U.S.C. §§ 253 and 332. 4 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 468 U.S. 837 (1984). 5 Accelerating Broadband Deployment by Removing Barriers to Infrastructure Investment, Declaratory Ruling and Third Report and Order; WC Docket No. 17-84& WT Docket No. 17-79; FCC 18-111, Adopted Aug. 2, 2018, 99141-160.

FCC Order on Accelerating Wireless Deployment Fall 2018 Page 3 of 7 FCC Declaratory Ruling Ill. Sections 253(a) of the Act specifically states that "no State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service. 47 U.S.C. §§ 253(a). Section 332(c)(7) of the Act extends this Federal preemption is "to the provision of personal wireless services" noting that "regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof (1) shall not unreasonably discriminate among providers of functionally equivalent services; and (II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services." 47 U.S.C. § 332(c)(7)(B). FCC and Federal courts have previously taken inconsistent approaches in determining when a state or local legal requirement has the "effect of prohibiting" services under these two provisions of the Act. In the Order, the FCC resolves these inconsistent approaches by adopting the test set forth in the FCC's 1997 California Payphone& decision, that a state or local legal requirement constitutes an effective prohibition if it "materially limits or inhibits the ability of any competitor or potential competitor to compete in a fair and balanced legal and regulatory environment." $ 34. The FCC has determined that "an effective prohibition occurs where a státe or local legal requirement materially inhibits a provider's ability to engage in any of a variety of activities related to its provision of" telecommunications services or a personal wireless service. "This test is met not only when filling a coverage gap but also when densifying a wireless network, introducing new services or otherwise improving service capabilities" 137. In addition, a state or local regulatory structure that gives an advantage to particular services or facilities would also have a prohibitory effect. 19 37-39. The FCC found that these provisions apply to wireless telecommunications services as well as to commingled services and facilities. 936 & n.84. In addition, the FCC specifically noted that "the fact that facilities are sometimes deployed by third parties not themselves providing covered services also does not place such deployment beyond the purview of Section 253(a) or Section 332(c)(7)(B)(i) insofar as the facilities are used by wireless service providers on a wholesale basis to provide covered services (among other things):" 9136, n.84. Thus, where ExteNet installs small wireless facilities on behalf of its third-party customers, ExteNet must be treated the same as if the wireless provider thirty party were dealing with the municipality. 6 California Payphone Ass'n, 12 FCC Rod 14191 (1997) ("California Payphone").

FCC Order on Accelerating Wireless Deployment Fall 2018 Page 4 of 7 Rates, Costs and Fees A. Noting that there have been several Federal Court Cases evaluating the requirement under 47 U.S.C. § 332(c) that "charges, practices, classifications, or regulations for or in connection with that service [shall bel just and reasonable and are not unjustly or unreasonably discriminatory," the FCC attempted to come to a standard for what defines just and reasonable costs for infrastructure deployment for Small Wireless Facilities. The FCC concluded that ROW access fees, and fees for the use of government property in the ROW (such as light poles, traffic lights, utility poles, and other similar property suitable for hosting Small Wireless Facilities), as well as application or review fees and similar fees imposed by a state or local government as part of their regulation of the deployment of Small Wireless Facilities inside and outside the ROW, violate Sections 253 or 332(c)(7) unless: (1) the fees are a reasonable approximation of the state or local government's costs, (2) only objectively reasonable costs are factored into those fees, and (3) the fees are no higher than the fees charged to similarly-situated competitors in similar situations. 1946, 50-51. As a baseline, and based on an FCC review of the FCC pole attachment rate formula, "which would require fees below the levels described in this paragraph, as well as small cell legislation in twenty states, local legislation from certain municipalities in states that have not passed small cell legislation, and comments in the record," 9. 79, the FCC presumed that the following fees would be just and reasonable thresholds, "(a) $500 for non-recurring fees, including a single up-front application that includes up to five Small Wireless Facilities, with an additional $100 for each Small Wireless Facility beyond five, or $1,000 for non-recurring fees for a new pole (i.e., not a collocation) intended to support one or more Small Wireless Facilities; and (b) $270 per Small Wireless Facility per year for all recurring fees, including any possible ROW access fee or fee for attachment to municipally-owned structures in the ROW." Municipalities that charge fees below those rates would be presumed to be acting within the law and charging fees that are just and reasonable. The FCC further found "little support in the record, legislative history, or case law" for "market based rates," 9 73 and n. 217, and that "gross revenue fees generally are not based on the costs associated with an entity's use of the ROW ... and are preempted under" the Act. In those "limited circumstances" where a municipality believes that such fees are below its actual costs, the municipality can "prevail in charging fees that are above this level by showing that such fees nonetheless comply with the limits imposed by Section 253—thạt is, that they are (1) a reasonable approximation of costs, (2) those costs themselves are reasonable, and (3) are non- discriminatory. Allowing localities to charge fees above these levels upon this showing recognizes local variances in costs" 91 80. Thus, with a cost study, municipalities can justify higher fees than the FCC baseline.

FCC Order on Accelerating Wireless Deployment Fall 2018 Page 5 of 7 The FCC found "that a state or local legal requirement constitutes an effective prohibition if it "materially limits or inhibits the ability of any competitor or potential competitor to compete in a fair and balanced legal and regulatory environment." 9 34. The FCC found that this applies "to wireless telecommunications services as well as to commingled services and facilities. 9 36. Commingied services and facilities include backhaul and fiber, the right-of-way access rates for which must also be just and reasonable and not unjustly or unreasonably discriminatory in line with the standards established in the Declaratory Ruling. Consultant Fees The Declaratory Ruling finds that a variety of fees not reasonably tethered to costs appear to violate Sections 253(a) or 332(c)(7) of the Act in the context of Small Wireless Facility deployments. While the FCC did not preclude a state or locality's use of third party contractors or consultants, the FCC found that for consultants' fees to be passed on to a provider, the fees must "be limited to a reasonable approximation of costs" and "must also be reasonable." The FCC specifically rejected passing through "any unreasonably high costs, such as excessive charges by third party contractors or consultants... even though they are an actual 'cost' to the government." 970. Aesthetic Restrictions C. Many municipalities require providers to shroud, camouflage, paint or otherwise maintain certain aesthetic requirements for the installation of small wireless facilities. Under the Declaratory Ruling, this will only be permissible if such requirement "are (1) reasonable, (2) no more burdensome than those applied to other types of infrastructure deployments, and (3) objective and published in advance." 4 86. Underground Restrictions D. The FCC found that municipal "requirements that all wireless facilities be deployed underground would amount to an effective prohibition given the ... characteristics of wireless signals." 9 90. Where municipalities require that certain equipment must be deployed underground, the FCC applied the same standards it did to aesthetic concerns, that it will only be permissible if such requirement "are (1) reasonable, (2) no more burdensome than those applied to other types of infrastructure deployments, and (3) objective and published in advance." 99 90 & 86. Spacing Restrictions E. This same standard, that Municipal requirements must be "1) reasonable, (2) no more burdensome than those applied to other types of infrastructure deployments, and (3) objective and published in advance," 9 86, was also applied by the FCC to any regulations concerning the spacing of wireless installations. 9 91. The FCC also specifically noted that it could not "envision any circumstances in which a municipality could reasonably promulgate a new minimum spacing

FCC Order on Accelerating Wireless Deployment Fall 2018 Page 6 of 7 requirement that, in effect, prevents a provider from replacing its preexisting facilities or collocating new equipment on a structure already in use." Id. IV. Third Report and Order In the Third Report and Order, the FCC established two new shot clocks for Small Wireless Facilities under Section 332 of the act. 1) a 60-day shot clock for review of an application for collocation of Small Wireless Facilities using a preexisting structure, 99 106-108; and, 2) a 90-day shot clock for review of an application for attachment of Small Wireless Facilities on a new structure. 9111. The FCC previously ruled that a "shot clock" "define[s] a presumptive 'reasonable period of time' beyond which state or local inaction on wireless infrastructure siting applications would constitute a 'failure to act' within the meaning of Section 332." 9 104. These two new shot clocks are in addition to shot clocks established in 2009 relating to cellular tower installations which provided for review of completed applications within 90 days for collocations and 150 days for all other applications.? In adopting the new 60 day shot clock for collocation, the FCC found that "the size of Small Wireless Facilities poses little or no risk of adverse effects on the environment or historic preservation" and that "many jurisdictions do not require public hearings for approval of such attachments, underscoring their belief that such attachments do not implicate compiex issues requiring a more searching review." 9 107. The new 90-Day Shot Clock applies to the review of an application for new Small Wireless Facilities on a new structure built for such purpose. 9 111. While not explicitly stated in the FCC's Third Report and Order, it can be inferred that a replacement pole is not a new structure since the FCC's definitions for collocation specifically state that it includes "modifying a structure for the purposes of mounting or installing an antenna facility on that structure," 47 C.F.R. § 1.6002(g), and such is also excluded from the definition of a new structure for historical review 47 C.F.R. § 1.13209(b). If a provider files a single application, "a batched application," for more than one site at a time, the shot clocks will still apply. However, if a provider files an application mixing new and existing facilities, the longer applicable shot clock will apply. In addition, municipalities may not refuse to accept batches of applications to deploy Small Wireless Facilities. 97 113-15. The FCC specifically declined to adopt a "deemed granted" remedy if a municipality fails to meet a shot clock deadline at this time, finding that "that failing to issue a decision up or down during this time period is not simply a "failure to act" within the meaning of applicable law, Rather, 7 Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review and to Preempt Under Section 253 State and Local Ordinances that Classify All Wireless Siting Proposals as Requiring a Variance, WT Docket No. 08-165; FCC 09-99, November 18, 2009.

FCC Order on Accelerating Wireless Deployment Fall 2018 Page 7 of 7 missing the deadline also constitutes a presumptive prohibition." 9 13. The FCC "expects any locality that misses the deadline to issue any necessary permits or authorizations without further delay," and "anticipate[s] that a provider would have a strong case for quickly obtaining an injunction from a court that compels the issuance of all permits in these types of cases." Id. The FCC reiterated the statutory provision that a court must "decide such action on an expedited basis." 917, 47 U.S.C. § 332(c)(7)(B)(v). The FCC further expects that courts "will typically find expedited and preliminary and permanent injunctive relief warranted" for violations of the shot clocks. $ 121 Effective Dates of the FCC's Order V. The FCC's Order was, as required by law, published in the Federal Register on October 15, 2018. 83 Fed. Reg 51,867 (2018). The Order and accompanying rule changes will become effective on January 14, 2019. VI. Interim Action by Municipalities ExteNet encourages all municipalities to consult their own municipal counsel regarding implementation of the FCC's Order as soon as possible and to begin implementation of the new regulations. As noted above, ExteNet also cautions municipalities who may want to delay consideration of small wireless facility applications while reviewing the FCC's Order. On August 2, 2018, the FCC issued a Third Report and Order and Declaratory Ruling in which it specifically found that "explicit refusals to authorize deployment and dilatory tactics that amount to de facto refusals to allow deployment" along with express moratoria in municipal ordinances violate Section 253(a) of the Act.& This express prohibition on moratoria became effective on October 15, 2018. VIl. Conclusion The FCC's Order attempts to clarify and bring harmony to varying different Federal Court interpretations of the way small wireless facilities in municipalities throughout the country may be deployed under the Act. ExteNet looks forward to working with municipalities in deployment of its small wireless facilities pursuant to state and local ordinances and the FCC's interpretations and regulations. Should you have any questions regarding the FCC's Order, please feel free to contact either your regular contact person at ExteNet or Haran Rashes, Director of External Relations, at (630) 245- 2064 or via e-mail at [email removed]. 8 Supra, n. 5.