This is a Fight for Turf

The difference between landline communications and wireless is simple:

·       Landline communications must be extended over linear ground paths, i.e., the public right-of-way.

·       Wireless facilities can go anywhere.

“Landline” includes cable and fiber optic facilities as well as traditional telephone and telegraph utilities.  Landline has a common and well-regulated way of operating in the right-of-way via franchises or right-of-way agreements.

Personal wireless services, because they can go anywhere, are regulated by the Telecommunications Act of 1996 by “local zoning authority.”  A municipality’s (or County’s) franchise authority is narrow (along the right-of-way) and applies to landline, not to personal wireless service facilities.

Rights-of-way Are Very Limited Strips of Land, & Many Utilities Want to be Franchised in Them

Since franchises are limited to the narrow widths of rights-of-way, franchisers must allow all utilities an opportunity to locate there.  State and federal regulation as well as court cases tend to see rights-of-way as “bottlenecks,” where utilities can be concentrated and competing for space.  Consequently, franchises must be available to all types of landline carriers, frequently called “telecommunications services.”

Telecommunications services carriers have maintained that a local government’s authority over their

deployment is limited to how, when and where, but not “if.”  Now, a growing number of personal wireless service carriers are using the right-of-way to deploy, and they are insisting that they are “telecommunications services.”  Personal wireless service carriers are trying to claim the unfettered right to deploy in the right-of-way, regardless of zoning.  In other words, personal wireless service carriers see the right-of-way as a refuge from zoning regulations.

Zoning, however, is specified in the Telecommunications Act for the purpose of regulating “personal wireless service facilities.”  In most municipalities, rights-of-way are zoned.  The fight for turf begins when:

·       Personal wireless service facility carriers attempt to deploy in the right-of-way.

·       These companies claim they are “telecommunications services.”

·       Telecommunications services, however, are landline facilities that are deployed in the right-of-way with minimal regulation by local governments.

·       Therefore, in an attempt to avoid zoning, a personal wireless service facility company attaches antennas and boxes to a pole in the right-of-way and tells the local government: “this is our turf and we have an unfettered right to be here.”

Why is the Right-of-Way Turf So Much Better for Personal Wireless Service Facilities Than Private Property?

Personal wireless service carriers don’t want to apply for permits under most zoning regulations.  Who can blame the personal wireless service carriers for going in the right-of-way if they can make an argument that zoning doesn’t apply in the right-of-way?

More important, the primary market for personal wireless services (cellular, PCS and ESMR) is the residential market.  The only way for personal wireless services to enter the residential areas is via the right-of-way.  We at PlanWireless believe this must be done via zoning.  Personal wireless service carriers are trying to pass themselves off as telecommunications services. 

It is also true that the height of personal wireless service facilities is slowly but surely decreasing from “towers” to “masts.”  “Towers” don’t fit in the right-of-way too easily, but “masts” are the same height as utility poles, and that is where personal wireless service deployment must evolve to: utility poles in the right-of-way.

PlanWireless believes that the right-of-way turf is not only beneficial to the personal wireless service carrier (and therefore worth going to court over) but the right-of-way is imperative for the personal wireless service carrier in order to penetrate residential areas.

Watch Out for Personal Wireless Service Carriers Masquerading as Landline Carriers

A local government should not negotiate a franchise or right-of-way agreement with any carrier offering personal wireless services.  Once such an instrument is executed, a deal has been cut and the police powers may end.

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Kreines & Kreines, Inc.
58 Paseo Mirasol, Tiburon, CA 94920
Phone: (415) 435-9214
Fax: (415) 435-1522
e-mail: mail@planwireless.com