When it comes to wireless antennas, we've all heard of NIMBY (Not in My Backyard) or BANANA (Build Absolutely Nothing Anywhere Near Anyone) in zoning and siting battles at the local level. But how about NOTUP (Not on That Utility Pole)?

Bronston

That is the problem facing many Distributed Antenna System (DAS) builders as they seek local approvals to attach antennas and fiber optic cable to streetlights and utility poles in the public rights of way. Having focused mainly on large macro sites, local governments have not yet gotten their arms around the very different infrastructure of microcells and DAS. Consequently, delays in obtaining local approvals can bog a project down and put network construction goals in jeopardy.

However, there are certain strategies a DAS provider can take to help make the municipal approval process go more quickly (or at least more smoothly).

Obtain state and utility approval. First, obtain state certification from the Public Service Commission (PSC) and pole attachment rights from the telephone or electric companies. While not a silver bullet, PSC certification of public convenience and necessity does give a service provider greater rights in terms of access to rights of way and to utility poles.

Explain DAS in layman's terms. Second, meet with the local decision makers as soon as possible. Who in city government will take ownership of this approval process is never an easy question to answer. But be certain that the municipal attorney will somehow have to sign off on the approval whether it is contractual or by resolution or ordinance. So make sure they have been consulted early on and brought into the discussions. Try to get a consensus of the time frame and road map of the approval process. As part of this step, explain what DAS is and is not. DAS is not a substitute for all macro sites but a complement to them. Above all, explain the benefits DAS brings to the community. These include (at no cost to the municipality):

• Technology enhancement: DAS brings new technology, new service providers and better public safety and convenience through improved coverage and service.
• Consumer enhancement: New service providers mean more competition, better service, lower prices and a geographically neutral system (all areas in the network are equally served by a similar, unobtrusive infrastructure).
• Infrastructure enhancement: Make ready and other work will help maintain the poles and other right of way assets (and in accordance with all applicable codes) and a neutral platform will allow for multiple carriers using the system.
• Aesthetic enhancement: DAS networks result in fewer macro sites, are less obtrusive, generate lower emissions and in general have a much lower profile.
• Potential for revenue enhancement: Construction permit fees, street light fees, occasional dark fiber licenses, rental (if base station or hub is on public property and properly zoned) and potential economic development gains from contractor work and new service providers entering the market.

Campaign for approval. Third, be available for all public meetings and hearings. Make sure you have done the political homework and are familiar with the decision makers. Have a capable team that is prepared for all eventualities and questions including those relating to RF emissions and other environmental concerns. Create a record of all deliveries and responses to requests for information and submissions. Try to continue to confirm time frames and to impose deadlines as there is generally no fixed "shot clock" on local decision making. Under federal law, municipalities cannot impose barriers to entry to DAS or prohibit the use of the ROW, nor can they treat DAS providers in a discriminatory manner. Also, the federal law preempting any negative decisions by municipalities due to RF factors applies to DAS systems as well.

Maintain polite but steady pressure. Finally, keep the pressure on by explaining the time frame realities and the potential downsides to the city (i.e., loss of the DAS benefits, more macro sites and the potential for litigation). Make sure resolutions and contracts are being drafted and if not, offer to do so, or, if absolutely necessary, you may have to pay for the city to engage experienced outside counsel to take the pressure off the municipal attorney. Negotiate thoroughly all issues of concern to the municipality, which include:

• Removal of the infrastructure at the end of the term of the contract or permit through bonds or other security
• Compensation for use of street light poles
• Remedies for default by the carrier
• Hold harmless and indemnification clauses
• Representations and warranties as to the existence of DAS company and enforceability of the contract and lack of conflicts
• Maintenance obligations and general construction covenants
• Miscellaneous matters such as relocation of facilities, review of plans, assignments to third parties and other boilerplate terms and conditions. Note that consumer protection is not a DAS issue and local governments are federally preempted from regulating any rates for wireless service.

Conclusion: Retain control of the process and try to stay sane.

Bronston is a member of Cozen O'Connor, specializing in telecommunications law. He has represented several wireless and DAS providers in permitting, zoning and siting matters in the New York metropolitan area.