Andrew Afflerbach, PhD, P.E.
Chief Technology Officer

Understanding broadband performance involves understanding a range of factors in addition to speed. Consumers usually compare the performance of data connections by considering network speed (measured in bits per second) but this measurement can be deceptive because it is incomplete.

For example, a 150 Mbps cable modem connection may cost a residential consumer $90 per month, while a business-grade Metro Ethernet service that delivers 100 Mbps Internet capacity can exceed $800 per month – yet the internet delivered through the Metro Ethernet service provides better value for many types of applications. Why would a service with two-thirds the speed cost 10 times as much as the “faster” alternative?

The answer is that all bits (and megabits and gigabits) are not created equal. Factors such as latency, availability, and oversubscription rate affect the connection’s overall performance. In the example above, the 100 Mbps Metro Ethernet service’s total set of performance attributes provides a more robust and secure connection than a 150 Mbps cable modem.

These are some of the performance factors a consumer – or a government or policymaker – should consider in evaluating a connection:

• Symmetry: Cable modem and DSL services are typically asymmetrical, meaning that their upload (from user to network) and download (from network to user) speeds are different. The download speed is generally greater than the upload speed by a factor of 10 or more. Metro Ethernet services, on the other hand, are typically symmetrical, meaning that upload and download speeds are the same. For businesses that transfer large data or video files, asymmetrical services often present bottlenecks to both internal users and external customers. A user on a typical cable modem service can download a 5 gigabyte (GB) file in less than 10 minutes but uploading the same file would take more than 90 minutes – which would not be acceptable to a business creating and distributing large files.

• Oversubscription to the internet: Internet users don’t all access the internet at the same time, or with the same requirements. For that reason, ISPs provide only a portion of their networks’ total potential demand. For example, an ISP that has 1,000 subscribers with 10 Mbps service might contract for an aggregate 100 Mbps connection rather than the maximum 10,000 Mbps connection that would be necessary in the unlikely event all users were online at the same time and using the full capacity of their connections. The ratio of a network’s maximum potential demand to its contracted rates is known as its oversubscription ratio. In this example, the oversubscription ratio is 100:1. Cable modem and DSL providers often have a 100:1 or greater oversubscription ratio for residential users and a 50:1 ratio for business users. These high oversubscription ratios may not always be evident to users, but at times of high use, oversubscription can bring a consumer connection to a crawl – just like traffic on the weekend versus traffic during a weekday rush hour. In contrast, with a Metro Ethernet service that includes internet access, the internet oversubscription ratio is often 10:1 or less.

• Availability of the data transport rate: Metro Ethernet providers specify a committed information rate (CIR), which is the guaranteed transport speed of the circuit connecting user locations. The network will be designed to sustain at least that rate for all users guaranteed that rate. By contrast, cable modem and DSL services are often “burstable,” meaning that users may at times experience the advertised data rates, but that the average speed will vary greatly based on how congested the distribution network is at that time. Performance parameters on a burstable service are rarely publicized or realized. Often a network operator cannot change this parameter without changing the network’s physical connections. During periods of heavy network use, burstable subscribers experience the same traffic discrepancies drivers on the road during rush hour do. (Availability is often confused with oversubscription to the internet, but they are different. Oversubscription applies to the network’s connection to the internet, and availability applies to the “uptime” of the connection or transport between user locations or from the access point to the internet. A service is available as long as it operates as promised. However, as mentioned, it may still be oversubscribed – in which case it is operating but may be operating well below the peak advertised speed).

• Maximum usage: A network service may have a maximum data usage (in bytes) or “data caps” for a given period. For example, many wireless service data plans specify the number of gigabytes that users can transmit during the month. The ISP may actually slow down a user’s connection speed as the usage limit is neared.

• Latency: Latency is the term that describes the delay between the instant a message is sent and the instant it is received. Latency can occur in multiple parts of the network—first in the ISP’s own network and then also on the internet, if the message traverses the internet to reach its destination. Latency for consumer-grade services (such as those on cable modem and DSL) is determined on a “best-effort” basis rather than at a guaranteed level. For Metro Ethernet and other higher-end transport services, latency is often a specified quality-of-service feature for which users pay extra. High latency can be a significant challenge for running certain applications. For example, satellite-based internet has extremely high latency because of propagation delays — the time it takes for a signal to reach the satellite. These delays prevent effective use of interactive services such as phone calls or video-conferencing.

• Connection Type: This attribute describes how a connection is made with other locations. For example, on a cable modem or DSL service, all connections to other locations are made through the internet with internet addressing schemes. This may require a user to set up a virtual private network (VPN) for secure communications among user locations. Establishing a VPN on the network imposes cost and requires expertise and software; it also has an impact on performance. In contrast, higher-end data services, such as Metro Ethernet, enable a user to send traffic over the provider’s network in virtual networks without connecting to the internet, set up direct point-to-point connections, and limit which locations may connect with one another.

• Security: Although security is primarily a function of encryption and other techniques applied by users or application providers, traffic over a private network is inherently more secure than traffic on a network that establishes connectivity over the internet. A user that is connecting multiple sites using standard, consumer-grade cable modem or DSL transmits packets over the internet. With a higher-end service such as Metro Ethernet connecting user sites, the transport would remain on a separate network and never traverse the public internet – offering greater security. In addition, higher-end services often have encryption options at the transport layer.

• Port Rate: This is the maximum speed that is physically possible at the physical demarcation point, at the customer premises, of the service provider’s network.  For cable modem services, this is usually defined by the network’s DOCSIS version. However, not all connections with the same port rate are equal. A number of items determine the actual connection speed at a customer location, including any throttling or network control within the service provider network, oversubscription of the service provider network, and the condition of the last-mile physical infrastructure (for DSL, the condition and length of the copper; for cable modem, the condition and length of the coaxial cable and drop cable from the pole to the premises; for wireless, the lack of interference and obstructions and distance to the service provider access point).

In brief, don’t let speed be your sole measure of broadband performance. Like so much about the internet service industry, the reality is far more complex and nuanced than one simple metric.

All of us at CTC congratulate our friends at SiFi Networks, Ting Internet, and Gigabit Now on their announcement of an open-access fiber-to-the-premises network deployment in Fullerton, California.

The agreement announced earlier this month includes a citywide fiber network to be constructed by SiFi Networks; retail broadband services to be provided by Ting Internet and GigabitNow; and private capital to be provided by the Smart City Infrastructure Fund (managed by Whitehelm Capital).

With construction set to begin in May—and services potentially available by the end of the year—Ting and GigabitNow have both announced that they will offer symmetrical gigabit services over SiFi’s network in Fullerton for $79 per month.

This creative open access project represents a bold test of how to create competition over robust fiber networks. Kudos to SiFi for its perseverance in promoting this exciting new model—we look forward to seeing the results.

Joanne Hovis

As the City Council and Utility Board of Tacoma, Wash., draw closer to approving an innovative broadband public-private partnership (P3), Mayor Victoria Woodards has noted that the proposed agreement will not just create potential financial benefits, but will achieve key City policy goals—including equity, low-income affordability, net neutrality, and competition.

In an article published this week by the Benton Foundation, Mayor Woodards wrote that “as broadband internet becomes a more critical foundational element of our economy and a vital tool for democratic engagement, our efforts must extend to ensuring it is deployed in a way that supports our efforts.” She went on to say that the P3 for operations of the City’s Click! network will “use our infrastructure investment in Click! as leverage to incent a private partner to advance our goals, while creating an opportunity for this partner to build a robust cable and internet business in Tacoma.”

You can read Mayor Woodard’s article here.

Joanne Hovis, President

Yesterday I had the honor of presenting the results of a near-18-month process to the City of Tacoma, Wash., City Council and the Board of Tacoma Public Utilities (TPU). At their direction, I have been working with a City and TPU team to determine a future strategy for Tacoma’s successful and renowned Click! municipal broadband and cable network, which was built in the 1990s and has been instrumental in bringing competition and choice to the Tacoma market—offering, for example, internet service even before the region’s commercial cable network (now owned by Comcast) was internet-capable.

To secure for the coming decades the considerable benefits that Click! has delivered over the past 20 years, the Council and Board directed us to determine how a public-private partnership (P3) for operations of Click! could achieve critical community goals and values—including net neutrality, low-income affordability, privacy, and competition. The Council and Board’s shared vision is to secure these goals through private sector partnership and operations, while the public maintains ownership and control of the underlying communications network.

As the culmination of a significant process of requesting input and qualifications from potential partners, yesterday I presented two negotiated term sheets to the Council and Board. One term sheet is with local ISP Rainier Connect. The other is with a larger, regionally headquartered company, Wave Broadband. In both cases, the term sheets contemplate a partnership of 20 years, which can be renewed twice, each time for 10 years. The length of the relationship gives both sides business certainty—and enables the private partner to make substantial investment commitments.

In my view, both term sheets represent important win-win outcomes for the public and private sectors, and both term sheets meet the Council and Board’s visionary policy goals for the Click! network—including equity, net neutrality, data privacy, low-income affordability, and robust competition.

Importantly, under both term sheets, the private partner will not take ownership of any part of the network, which will remain a public asset. Indeed, the City’s utility will not only retain ownership of the existing network but will also take ownership of all upgrades the partner makes to the network with its own capital over the course of the partnership. And these upgrade obligations are robust—both term sheets contemplate not only that the partner will invest on an ongoing basis, but also hold the partners to a standard for ongoing upgrade to continually meet national or regional standards for broadband service. In the short term, both term sheets guarantee that the partner will upgrade the network to gigabit speeds across its entire footprint within three years.

In addition, under both term sheets, the private partner will make enforceable commitments to respect net neutrality, to respect user privacy, to offer substantially reduced-cost products to low-income members of the community, to meet robust customer service standards, and to offer services and pricing equitably across the entire network footprint.

While both term sheets and potential partners are strong, we recommended to the Council and Board that they proceed with final negotiations with Rainier Connect—based on its substantially higher financial offer and some stronger terms, including a much more robust oversight role for TPU in the event that the partner wants to sell or transfer its rights under the contracts to operate Click!.

The Council and Board now plan a process of public input and deliberation of next steps and the direction they wish to go—which will then lead to detailed and final negotiations for final contracts between TPU and the selected partner.

It’s been my honor to participate in this remarkable 18-month effort, which has had all the hallmarks of the best in public process—openness, competition, deliberation, transparency, and stakeholder engagement. For more on that process and its outcomes to date, yesterday’s presentation is here, the Wave term sheet is here, and the Rainier Connect term sheet is here. We prepared a report that compares the term sheets and their alignment with the Click! policy goals, which is available here. The City and TPU also released a report documenting their stakeholder engagement effort.

Heather Mills, Lead, CTC Funding Strategies Team

The USDA’s Rural Utilities Service last week released the final deadline dates for the upcoming ReConnect grant and loan funding cycles, in which $600 million will be awarded for rural broadband projects.[1] While the final application is not yet available, the new final deadline dates and the program rules (which were released late in December just before the government shutdown) give us a solid indication of how to prepare a grant or loan application and maximize scoring.

For those seeking the highest percentage of grant funding possible, applications for grants of up to 75 percent of eligible project costs will be due on May 31, 2019. For 50 percent grants with a 50 percent loan or other form of match, applications will be due June 21, 2019. And for 100 percent loans, applications will be due July 12, 2019.

The ReConnect program represents the most significant congressional appropriation of broadband funding since the Recovery Act in 2009. Rural communities should consider moving quickly to develop partnerships and strategies for preparing the most competitive possible funding applications.

We emphasize the need for partnerships because RUS has made clear that strong state and local support will be necessary for all applications, including those of the private sector—and that inexperienced or start-up entities are unlikely to be funded. If you are a public entity without extensive experience as an internet service provider (ISP), we recommend that you partner with an experienced public or private ISP to compete for these funds. And any experienced ISP, whether public or private, will require the strong collaboration and support of your local (and state) government to present a compelling case for funding.

As you map out the next three to four months for application preparation, the following are some of the steps we believe are critical to preparing a competitive ReConnect application:

1. 1. Develop a grant strategy. Your goal is to maximize your application’s scoring given USDA’s stated criteria.[2] Every element of your application should speak to those criteria. Start by developing a comprehensive strategy that aligns your approach (with respect to technology, partnerships, business plan, and service levels) with what USDA is seeking to fund.
   2. Gather the many types of information and support materials required. You’ll need a range of data and numbers—such as population statistics—to establish eligibility under the program rules and to provide content for the grant narrative. You’ll also need a wide range of supporting materials, ranging from letters from your governor to documents that demonstrate the support of the local government, prospective customers, and the business community. Our recommendation here is to go over and above; additional letters (such as from your congressional delegation, the Chamber of Commerce, and so on) can only help to demonstrate the breadth of support in the community for your initiative.
   3. Define and refine your proposed funded service area (PFSA). Define the PFSA with a count of the number of rural premises to be connected, including homes, farms, schools, libraries, healthcare facilities, and businesses (which are important because they confer additional points in the application). Then, document the engineering methodology used to demonstrate that the PFSA lacks service and is therefore eligible for funding. You’ll also need to verify that no Connect America Fund II award census blocks are included in the PFSA and that your project area is not located in what is known as a Protected Broadband Borrower Service Area (i.e., the service area of a borrower that has an RUS broadband loan).
   4. Develop and review your project’s engineering plans and cost estimates. The critical engineering task after you have defined the PFSA is to develop a conceptual design for your network—including project plan, buildout timeline, design, and diagram—and cost estimates for materials and construction. The cost estimates will become a critical input to your business plan and pro forma financials and will need to be certified by a licensed Professional Engineer under the RUS rules.
   5. Develop a financial pro forma and business plan. The pro forma is perhaps the most important part of your application—it should be prepared in the format provided by USDA (which will hopefully be available soon) and should include subscriber projections and descriptions of service and pricing. To support the pro forma revenue projections, you’ll need very compelling data, ideally in the form of statistically valid market research, as well as empirical data about your or your partner’s historical success in achieving comparable market share. This is possibly the most critical item in the application, given USDA’s interest in funding projects it considers sustainable and low-risk.
   6. Develop a market narrative, including discussion and data regarding service in the region. You’ll need to demonstrate that your services will be better and no more expensive than other services offered nearby—and present a narrative discussion of why the proposed services will be both marketable and affordable.
   7. Collect the appropriate forms from farms and businesses to demonstrate market interest and maximize points for that application item.[3] This is something that can be done through one-on-one conversations or by mailing the forms (with a cover letter and a stamped return envelope) to all the farms and businesses in the PFSA.
   8. Set up accounts and then navigate Sam.gov and Grants.gov, to be ready to input the grant application into the online grants system. (You may already have accounts in place, but we recommend that you check to be sure the accounts are current and that someone on your team is comfortable navigating the portals.)
   9. Commission the required legal opinion and reviews.
   10. Finally, but just as importantly, write compelling grant and budget narratives. These and other narrative elements of the application are an opportunity to truly make your case for funding.

Please don’t hesitate to contact me if you have questions. CTC’s grant-writing team and I are ready and able to assist with any of these and other tasks.

[1] “Program Overview,” ReConnect Loan and Grant Program, USDA, https://www.usda.gov/reconnect/program-overview. For deadlines and other details, see the Federal Register, https://www.federalregister.gov/documents/2019/02/25/2019-03163/broadband-pilot-program-reconnect-program

[2] “Evaluation Criteria,” ReConnect Loan and Grant Program, USDA, https://www.usda.gov/reconnect/evaluation-criteria

[3] “Broadband Pre-subscription Form for Farms and Other Businesses,” ReConnect Loan and Grant Program, USDA, https://www.rd.usda.gov/files/FarmorBusiness_Pre-subscription_Form_Final.pdf

The Port of Ridgefield, Washington, released an RFI to solicit informal proposals from private sector entities that may have an interest in leasing the Port’s planned 42 miles of dark fiber to make affordable broadband available to businesses, economic development areas, first-responder facilities, anchor institutions, and residences.

The information gleaned from this RFI will help guide the Port’s planning and investment in communications infrastructure, generate favorable terms for public-private collaboration to encourage new investment, and enhance the value of the investment that existing private providers have already made in the Port District. The Port hopes this initiative will support and accelerate private providers’ efforts to improve broadband service options in the District.

Ridgefield is one of the fastest growing cities in Washington. Located on I-5 just north of Vancouver, in the rapidly developing Discovery Corridor, the City more than doubled its population between 2000 and 2010. City officials are preparing for the population to triple in the next 15 years.

The Port District encompasses nearly 57 square miles, including areas to the north and south of the City of Ridgefield. As a municipal economic development organization, the Port has worked with the City of Ridgefield and other cities along the corridor to make key infrastructure investments.

The RFI is available here.

Andrew Afflerbach, PhD, P.E.
CEO & Chief Technology Officer

Like most cities, Boston needs an expanded fiber optic network to serve the fast-growing needs of City schools, police, and other departments—plus a range of applications like public safety cameras.

Boston understood its needs—but needed more clarity on its choices. Would it be possible to affordably lease all the fiber it might need for decades to come? Or should it build its own fiber—expanding the existing City network known as BoNET?

The City took a strategic approach to the issue—choosing to develop a plan to meet City broadband needs and simultaneously accomplish other policy goals, as cost-effectively as possible. To do this, Boston chose a model in which it would use its buying power to incent private sector deployment of massive fiber capabilities. Some of the fiber would go to satisfy City needs, and the balance would then be available to private ISPs for services deeper into the community, for backhaul, and for other uses that will improve broadband outcomes in the City.

To effectuate all this, Boston took the time necessary to work through the options and obtain state and local approvals. And following planning, network design, and a competitive process, the City will now get what it needs under a long-term, $10 million dark fiber lease with Crown Castle. Boston would have needed to spend five times that amount to build its own network, according to Mike Lynch, the City’s director of broadband and cable.

Now all schools, public safety agencies, and other operations throughout the City will get what they need today—plus long-term control of scalability for potential future smart city applications and public Wi-Fi—at an affordable price. The 20-year deal (technically known as an indefeasible right of use, or IRU) includes an option to extend for two additional five-year terms.

Leasing might sound easy. But getting to this point took rigorous research and analysis, engagement with the private sector, engineering, well-crafted RFI and RFP documents, and a careful look at the information and sales pitches the City received.

In 2014 the City issued an RFI and performed extensive due diligence, during which carriers shared data and strategies for collaboration. Based on the data it had collected, the well-informed City decided to use a competitive process to lease dark fiber in the long term. And thanks to a rigorous RFI response analysis, the RFP contained very clear specifications to ensure adequate fiber would serve core network nodes and each site at the network edge; that adequate route diversity would exist; that the network would be able to scale; and that provisions for maintenance and repair would meet Boston’s standards.

Multiple companies responded to the RFP, and three offered citywide solutions: Lightower, Sunesys, and Verizon. The City selected the Sunesys offering, and recently entered into a contract with Crown Castle, which had in the interim acquired Sunesys.

Under the deal, Boston will have end-to-end control of the network for up to 30 years—and the new private sector fiber capabilities will mean not only greater opportunity for private ISPs to extend their networks, but also the efficiencies and reduced disruption of a single major fiber deployment serving multiple users, including both the City and the carrier market. And all this has been accomplished at relatively modest cost, with a significant return to Boston on its investment, both with respect to City broadband needs and to enhancing broadband services more generally.

Shawn Thompson, Principal Engineer

A hundred bucks. That’s what the FCC recently decided is adequate compensation to your locality for processing a small cell application. In many cases, it’s not going to be enough.

And if your actual costs are indeed higher than $100, you will effectively be forced by the new FCC rules to subsidize the telecommunications industry—unless you can build a strong and reasonable case for why your actual, documented costs are higher and should be recovered by your community.

With the January 14 effective date looming for the new FCC order preempting local authority over small cell siting, we recently outlined Ten Strategies that your locality, state agency, or utility can adopt in this newly restrictive environment. We later described how careful processes are your best defense.

We turn now to the question of costs. The FCC set low default wireless facilities siting application fees that localities can charge: $500 for up to five sites; $100 per site thereafter; and recurring fees in the rights-of-way limited to $270 per site per year. But the FCC also allows you to charge a “reasonable approximation” of your “objectively reasonable costs.”

Let’s remember that these technologies will be dotting the landscape for decades, so doing this right is worthwhile. We at CTC have been assisting public agencies and utilities on wireless facilities siting for a long time—long enough to know that the FCC’s numbers are low relative to most actual costs.

So lately we’ve been documenting exactly what “reasonable” looks like. This means sitting down with clients to detail what a proper application and review process consists of, and how long each task consumes in staff time and other expenses. (And no, we aren’t including consulting in the calculation.) We’ve built highly detailed spreadsheets documenting all this. Bottom line: We have found that in some cases a new siting might cost north of $1,500 for a proper review.

To be clear, a proper review entails:

1. Examining an application upon intake for accuracy and completeness of all stated measurements, locations, and supporting documentation.
2. Reviewing the documentation from both the engineering and zoning compliance perspectives (those are two different things).
3. Performing an on-site survey (in some cases) to verify measurements and locations for proposed new or collocated facilities.
4. Circling back to the applicant to flag problems identified in the steps above, then verifying that any changes are accurate.
5. Conducting a post-installation inspection, just like a gas or electrical inspector would do after work is done at your house.

Consider just the first part—reviewing an application upon intake. This should include verification checks that ownership and structure types on applications match local records; that addresses and zones are reported accurately; and that any required documents—such as maps, structural analyses, cut sheets, balloon test results, photo simulations, microwave path studies, and RF maps (depending what is required)—are included and sufficient. Part of this information will be used to determine whether an initial site inspection is required.

Once you carefully look at each task and the time it takes, you can see how the numbers can easily run into several hundred dollars, or even $1,500 for a complex siting case. Fees that range into this territory may be not merely objectively reasonable, but eminently so.

Another approach to ensure full recovery of your costs is to use the competitive bidding process to secure the best price for outsourced soup-to-nuts execution of these processes. A robust competitive process should, by definition, result in the lowest price possible for the effort necessary, and could thus serve as the basis for your cost recovery model. (As with all strategies related to this complex and risky new area, be sure your legal counsel is comfortable with this approach.)

Either way, if you want what’s due, you need to do your due diligence. You would be well advised to define and document your efforts and set application fees that truly recoup your costs. Otherwise, you may be stuck accepting the FCC’s lowball numbers.

Andrew Afflerbach, PhD, P.E.
CEO & Chief Technology Officer

By now you’ve heard of the Federal Communications Commission’s wireless preemption Order—scheduled to take effect in 2019—mandating that wireless companies get low-cost, streamlined access to public property to mount small cell facilities.

We recently outlined Ten Strategies that your locality, state agency, or utility can consider in this newly restrictive environment amid a rollout of millions of new pieces of equipment on public property nationwide in the coming years. But in many ways, it comes back to one thing: process. (Or to borrow from the old real estate maxim, there are three Ps when it comes to small cells: “process, process, process.”)

Your locality or agency should clearly and efficiently state existing processes—and, where necessary, create new ones within the scope of the Order (and subject to the advice of your legal counsel). Utilities will have additional complex technical and management considerations related to placing small cells on electrical utility poles; these details will be discussed in a later blog.

Defining and mapping your processes represents an opportunity to ensure safety, maintain aesthetics, and recoup your costs.

The sooner you adopt a process to manage applications for small cells in the right-of-way, the better. The FCC’s move establishes sharp time limits (often called “shot clocks”) within which applications must be processed: 60 days for installations on existing structures, 90 days for new poles. But the clock pauses if the application is incomplete and you notify the applicant within 10 days. That’s only feasible if you have—you guessed it—a stated process.

In addition, your locality or agency should not have to bear the costs of the application process. While the FCC Order set some limits on fees, it also says you can collect fees that are a “reasonable approximation” of your “actual and reasonable costs.”

You should also assess penalties for safety violations or unauthorized installations. But you can’t do that if there’s no process for detecting the problems in the first place.

CTC has developed a solution. We work with public agencies and their counsel to define, first, a draft of the technical elements of a master lease (or the overall contract under which applications may be filed) and second, an application and review process defining technical and aesthetic requirements, outlining the players and key people responsible, and establishing timeframes and site inspection procedures.

We recommend that you:

Prepare robust agreements and develop a set of wireless and wireline installation standards or a design manual for the uniform, safe, and reliable installation of network nodes, poles, and transmission facilities.

Establish processes and dedicate resources so that the review can be conducted within FCC-mandated timeframes. To adhere to application processing time requirements (and for the sake of efficacy and cost-effectiveness), streamline and closely manage application and related processes.

Implement an electronic application database and site information tracking database. In addition to application information, information related to the sites should also be captured and maintained, and any conflicts at proposed sites flagged. This may also enable application and status information to be made available in real time to the public and to the applicant.

Adopt new application types. These may include four general categories—new, colocation, replacement, and minor modifications—and will dictate the level of application processing required and enable you to deploy staff efficiently.

Centralize application reviews and perform tasks in parallel where possible. This will help reduce processing times, ensure consistency, minimize staff time, and improve service.

Develop complete checklists for application fields and step-by-step review processes.

Implement pre-installation site inspections. Site inspections before construction enable you to check whether the installation would be in accord with technical and aesthetic requirements—and whether the new infrastructure could be modified, concealed, or moved to a nearby structure to mitigate impacts.

Create a post-installation inspection procedure. Comparing proposed construction drawings with the actual structure and inspecting the restoration of the area will force deployments to match approved designs and mitigate safety and other violations.

Determine your “reasonable costs.” Your work to review small cell applications may be far costlier than the FCC admits, and you should define and document that effort to support your application fees. For some clients, CTC is conducting detailed breakdowns of exactly how much staff time it takes—and thus how much it costs—to do everything from reviewing applications to inspecting the as-built project.

Implement a process to handle contract breaches, standards violations, and safety violation. You must be able to manage the claims, provide self-help remedies to the vendors, and establish conflict resolution procedures.

Collect and analyze metrics related to application processing (e.g., average time spent at a “stop” in the process) to identify trends and potential process improvements.

And if you are a locality with a municipal electric utility, you should work with your utility leaders to define and understand your respective roles, develop consistent processes, and conduct coordinated reviews with clear handoff steps.

Set to become effective on January 14, 2019, the Federal Communications Commission’s new wireless preemption Order[1] has states, localities, and publicly owned utilities rightly alarmed about encroachment on local authority and about forced federal requirements that put at risk the primary purpose of many public assets. In short, the FCC has preempted state and local authority and mandated that wireless companies shall have low-cost, streamlined access to state- and locally owned public property to mount small cell facilities.[2]

The impacts of the Order promise to be enormous and complex, and we recommend that you consult expert legal counsel to fully understand what it will mean for your locality, utility, or agency. Some localities have asked the FCC to reconsider its Order and many other localities have filed, or will soon file, appeals of the Order—alleging, among other things, that the FCC lacks authority to preempt state and local management of public rights-of-way and facilities. However these actions may turn out, we recommend that you promptly undertake a robust technical analysis to ensure that you have in place technical standards and requirements to protect your rights-of-way, light poles, utility poles, and other property to the greatest degree possible under the Order.

In many states and localities, rights-of-way construction and wireless installation take place with many informal, unstated rules that assume that common sense, good will, and best industry practices will prevail. But the Order puts at risk any public sector property owner that relies on informal practices and mutual goodwill with the industry. While many wireless applicants work in good faith and make efforts to maintain a good relationship with the community or utility, relying on an informal or ad hoc approach could mean reduced control over your own assets. You will be better served to have clear, structured, and complete written standards, even if informality may have worked in the past.

The following are some strategies and tactics that you may want to consider so as to protect your assets and their critical missions, subject to the guidance of your legal counsel:

1. Develop standards for attachments that protect your assets’ long-term durability and prioritize their primary use.

Industry rhetoric about placement of small cells on public assets frequently fails to acknowledge the primary, mission-critical purpose of those assets. It falls to asset owners to protect that primary use by ensuring that wireless attachments will not interfere with or compromise the function of the mounting asset.

In developing such standards be sure to include all stakeholders within the government to ensure a clear and comprehensive understanding throughout all departments and agencies of the needs, objectives, and processes being developed. Your standards for attachments, whether set forth in a local ordinance, a published technical standard, or an attachment agreement, should therefore clearly frame limitations in terms of protecting the assets and their mission-critical purpose. These standards can apply in the case of traffic signals and light poles, utility poles, and the right-of-way itself:

Traffic signals and light poles: In the case of traffic signals or light poles, standards should clearly describe how much space is available for wireless communications use and where attachments are allowed on the structure. The standards should state what type of structural analysis needs to be done by the applicant. They should also define the circumstances under which the structure needs to be replaced to support the new communications use so as to protect the primary use.

Technical standards should define how large wireless equipment can be and where it can be located with respect to the traffic infrastructure. The standards should also specify how installation and maintenance will be performed in a manner that minimizes disruption to traffic and the public.

Similarly, you may want to develop defensible standards that would limit the size of equipment boxes and other elements of a wireless attachment that can shorten the useful life of your asset or create aesthetic, safety, or other problems.

Utility poles: In the case of a utility pole owned and/or controlled by a municipal utility, standards should include many of the same items as for traffic signals and light poles. In addition, the standards should state how the wireless structure should be placed in order not to interfere with the operation of the utility and other attaching entities.

Safety is critically important, especially when considering how the attachment will interact with the utility use. As with traffic signals, there should be standards that define how installation and maintenance will be performed in a manner that ensures the safety, security, and reliability of the utility facilities and services, and that minimizes disruption to utility workers, traffic, and the public.

Clear procedures should be developed to allow the utility to shut off the wireless equipment to protect utility workers who would otherwise be exposed to radio frequency (RF) emissions when on the poles. Similarly, standards for warning signs can be established so as to ensure utility workers are alerted about exposure to RF radiation.

Rights-of-way: Rights-of-way standards for small cell facilities placement should make clear whether construction methods (e.g., directional boring, hand digging, micro-trenching) are prohibited or required in particular areas; what is required in terms of restoration of sidewalks, roads, and parkways; and anything that is required to protect public or private property.

2. Conduct a legal “red flag” review.

Work with counsel to survey the legal landscape; review local and state law relating to zoning, tower ordinances, right-of-way management, local franchising, and telecommunications regulation to determine what, if any, immediate action may be needed (for example, a definitional conflict with existing macro-cell ordinances); and to understand the boundaries within which you and the small cell provider must act.

3. Develop attachment agreements.

It is vitally important to recognize that there is a difference between access to the public rights-of-way and access to government-owned structures, such as streetlight poles and utility poles that are located within the public rights-of-way. All wireless providers and infrastructure providers must obtain written authorization not just to occupy public rights-of-way, but also to attach their facilities to municipal poles and other structures. Local governments need to develop pole attachment agreements governing access to municipal facilities.

4. Publish a thorough and complete technical manual, and/or provide a one-stop online resource.

Ideally all technical standards and processes should be available in a single document, and standards and process-related content should be available at a single online location.

5. Generate detailed application forms.

Applications for wireless facility siting in the rights-of-way and on particular municipally owned poles or structures should clearly identify and request all information reasonably required to enable a timely review; specify the size and format of required drawings; and note the required format for map coordinates, electronic files, and other elements of the application.

The application should also state the qualifications required for the individuals who develop the design submittal, structural analysis, and other key components of the application (such as a Professional Engineer license).

To facilitate a quick and thorough initial review of the submittal, the application should include a clear checklist to enable the reviewer to scan for completeness. This will enable a reviewer to immediately recognize whether information is missing—thus increasing the likelihood that the review can be completed within the stringent FCC-mandated shot clocks.

6. Make the entire application submittal and review process electronic.

Electronic submission and review streamlines the process for applicants (and eliminates one of their areas of continuous complaint). It will also improve your ability not just to review the application but also to track and report on the status of applications to the applicant and the public as needed.

7. Develop a bottom-up analysis of the time and resources needed to perform the steps involved in the application process.

The level of effort required to review applications may vary with the technical complexity of the application (e.g., minor modification, colocation, new structure), and the review time will change if you receive multiple applications at once. Be sure to include the time needed to receive input from and respond to the public, and to obtain corrections of erroneous and incomplete applications. These insights will be the basis for your efforts to streamline the process, to prepare for and handle a potentially large number of applications (potentially with the addition of reviewers and inspectors as needed), and to justify cost recovery.

8. Prepare cost studies to ensure you can justify application and rental fees.

The Order limits assessment of fees for the initial application, the ongoing rental of attachment space, and the use of the rights-of-way to a “reasonable approximation” of the government entity’s “objectively reasonable costs” associated with the deployment in question, and applied in a nondiscriminatory manner.[3] Notably, the Order provides no guidance on how costs should be calculated. The Order goes on to specify certain presumptively reasonable fees for (1) one-time applications and (2) annual access to public-rights-of-way and facilities (combined). The Order leaves room for higher fees if they are justified by reasonable costs, and it also leaves room for attachers to challenge the presumptive levels as exceeding costs.

The courts will ultimately determine whether the FCC has authority to limit state and local governments to cost-based fees. In the meanwhile, we suggest that you have ample good reasons to undertake rigorous and methodical cost studies that will enable you to understand your true costs and to defend your pricing decisions.

Undertake a cost analysis related to your application fee, so as to document the full range of expenses incurred for reviewing an application. If your actual costs, including staff time, exceed the FCC’s fees, such a study may protect you in the event you are challenged for assessing higher fees than the presumptively reasonable fees specified in the Order. While much remains to be understood about the Order and its limitations, reasonable application review costs might include:

• IT investments to enable online applications
• Review of applications for completeness, technical suitability, and compliance with standards
• Field inspections before and after construction
• Administration of a public notification process

Undertake a cost analysis related to your ongoing attachment or rental fee, so as to document the expenses you incur to maintain and support the asset on which the wireless equipment is mounted. To determine ongoing fees, reasonable costs to consider might include:

• The attacher’s share of maintenance, repair, and replacement specific to the particular mounting asset
• Lost opportunity or revenue because you are forced to forego the use of the pole or space for other purposes
• IT investments to track and manage attachment data

9. Develop a plan to reserve space on your assets to meet your needs and the needs of other public sector users.

One of our main concerns about the Order is that it may effectively give wireless companies forced access to public assets, regardless of the existing or anticipated needs of the public asset owner. If this is the case, you may have less access to your own assets for the core government and utility functions for which the facilities were erected—as well as for future wireless attachments to meet your Internet of Things, Smart Communities, public safety, and other needs—in light of the fact that light poles and utility poles typically cannot hold more than one small cell attachment.

For this reason, we recommend you evaluate and document the existing and future public sector need for use of your assets. The resulting plan should demonstrate why and how it is necessary to reserve some of those assets for future public sector use. Such a plan could be instrumental in enabling you to keep private deployers off the assets you will need to meet public sector uses in the future.

10. Establish or update and publish aesthetic standards for attachments.

In the Order, the FCC claims that “providers…densify their networks with new small cell deployments that have antennas often no larger than a small backpack.”[4] The image of a small cell attachment as a “small backpack” (or, as the industry likes to say, a “pizza box”) ignores the actual size and visual impact of the related cabling and equipment boxes, which can be dozens of times larger than the antenna itself. In fact, the Order itself defines a “Small Wireless Facility” as one that has an antenna occupying no more than 3 cubic feet and support facilities collectively occupying no more than 28 cubic feet.

That said, the Order goes on to note that “aesthetics requirements are not preempted if they are (1) reasonable, (2) no more burdensome than those applied to other types of infrastructure deployments, and (3) objective and published in advance.”[5]

Given this framework, we recommend making sure your aesthetic standards are clearly defined and published, and compliant with your counsel’s interpretation of the Order. Most public sector review processes already include aesthetic considerations; these should now be reviewed, updated, and published in light of the Order. In our experience, aesthetic standards may include requirements or guidance for:

• Size of antennas, equipment boxes, and cabling
• Painting of attachments to match mounting structures
• Use of shrouds, stealth techniques, or other camouflage
• Flush-mounting of antennas
• Placement of equipment in the pole base rather than on the outside of the pole
• Consistency with the character of historic neighborhoods
• Minimum spacing between attachments

If an applicant seeks to place a device in a residential neighborhood, aesthetic standards for the community should clearly state any minimum setback from dwellings, parks, or playgrounds; maximum structure heights; or limitations on the use of small, decorative structures as mounting locations.

Consult your legal counsel for full analysis and a timeline for how long the FCC will allow for public entities to publish aesthetic standards.[6]

In sum, the bad news in this Order for public entities is clear: Your control and influence over your own assets (and the primary purpose of those assets) has been greatly diminished. Indeed, the FCC Order ensures that failure to prepare will virtually eliminate any remaining control over the assets you may have.

But you can exert some level of control over this process and protect your assets and their mission-critical primary purposes. To do this, we recommend you undertake significant technical and legal planning to ensure that you have in place reasonable standards and efficient processes that best serve your interests.

CTC Technology & Energy
Baller Stokes & Lide

[1] In the Matter of Accelerating Wireless 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, 2018 WL 4678555, (rel. September 27, 2018) (“Order”) (available online: https://docs.fcc.gov/public/attachments/FCC-18-133A1.pdf).

[2] In addition, in the past two years, several states have enacted their own measures to address siting of small cell wireless facilities, and it is likely that more states will consider doing so in 2019. The FCC indicated in its Order that state provisions imposing more demanding standards than the FCC’s will prevail over the FCC’s standards and the FCC’s standards will override less demanding state standards.

[3] Order, ¶ 50.

[4] Order, ¶ 3.

[5] Order, ¶ 86.

[6] The FCC noted in the Order that it expects localities to publish their aesthetic standards within 180 days of publication of the Order in the Federal Register. (Order, ¶ 89.)