February 4, 2021
The COVID-19 pandemic has changed the way we live and work more profoundly than any of us thought possible. What hasn’t changed is our unwavering commitment to provide our clients, colleagues and communities with responsive and personal service in this unprecedented time.
Christopher B. Fisher
Managing Partner & Chair
Lucia Chiocchio
To kick off 2021 we have curated a selection of blogs, legal alerts, and client successes which will certainly influence the telecommunications industry in the coming years. For more information, please contact Christopher B. Fisher [email protected] or Lucia Chiocchio [email protected].
With the advent of 5G a few years ago, numerous agencies in the City of New York undertook evaluations of their rules and regulations governing the deployment of wireless facilities throughout the five boroughs. Agencies like the Department of Information Technology & Telecommunications (DoITT) issued new RFPs for small cell access to City right of way, the Department of Buildings (DOB) reviewed its long-standing building and zoning interpretations, and the Fire Department of New York (FDNY) provided further guidance on its firefighter access requirements for rooftop installations. For those engaged with the City collaborating on the legal and practical issues associated with wireless siting for decades, it’s felt like déjà vu all over again.

In late 2018 in unpublished informal guidance, the DOB’s Technical Affairs division directed plan examiners across the City to implement numerous regulatory interpretive changes immediately. The effect was swift and serious and involved numerous provisions of the City’s Building Code, Zoning Resolution and TPPN #5/98 as formally adopted by the DOB to exempt rooftop cellular facilities from zoning over twenty years ago. Two years later, the wireless industry is still addressing many of the informal changes which are materially impacting the technical ability to deploy 5G equipment and provide New Yorkers with the best-in-class wireless services they deserve. READ MORE >
On June 9, 2020, the Federal Communications Commission (FCC) took another step as part of its 5G Fast Plan to accelerate the deployment of mobile broadband infrastructure. FCC Commissioner Brendan Carr, who has led the agency’s focus on federal, state and municipal streamlining of permitting for wireless infrastructure highlighted the need for FCC action to clarify its 2014 rules in furtherance of a 2012 Act of Congress that created a category of “by right” modifications to existing wireless facilities. In moving the ruling forward as part of a vote, Commissioner Carr noted that “[r]ural America will benefit from new competition for their broadband dollars. First responders will benefit from dedicated networks and expanded capacity. And all Americans will benefit from world-leading wireless service as existing towers are upgraded to 5G.”

The FCC’s Declaratory Ruling titled Implementation of State and Local Governments’ Obligation to Approve Certain Wireless Facility Modification Requests Under Section 6409(a) of the Spectrum Act of 2012, (WT Docket No. 19-250) (5G Order) clarifies several legal issues associated with municipal permitting for collocation of wireless infrastructure on existing towers and buildings. In 2014, the FCC adopted the Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, (WT Docket No. 13-238 and 13-32, WC Docket No. 11-59) (the 2014 Infrastructure Order) which, among other things, codified rules implementing Congress’ adoption of Section 6409(a) of the Spectrum Act, an Act which mandated local zoning permits and approvals for collocation and other modifications of existing wireless infrastructure. Over the past six years, some of the FCC’s rules have been the subject of varying local interpretations creating disagreements between telecommunications providers and localities trying to follow them, which in some cases led to impediments to deployment of technical upgrades for services in the community, including 5G. READ MORE >
Legal Alerts
FCC Orders on Small Cell Regulation Upheld by Ninth Circuit
A recent Ninth Circuit decision upholding major portions of three FCC regulations is a win for the expansion of wireless communication.

In response to the dramatic increase in the deployment of small wireless facilities (small cells) to support 4G wireless networks and the even greater increase that will be needed for 5G networks, the FCC, in 2018, issued three orders related to small cell regulation. The orders—Small Cell, Local Moratoria, and One-Touch Make-Ready Orders—were all promulgated under the Telecommunications Act of 1996 and sought to modernize the FCC’s regulatory structure consistent with the intent of the Act to encourage the rapid deployment of advanced telecommunications technology and the expansion of wireless communication.

The expansion of wireless infrastructure and the deployment of small cells can sometimes be met with resistance from local governments and public and private utility companies that own the utility poles that small cells are attached to. The FCC’s orders met such resistance and were immediately challenged by various stakeholders, including municipal groups and utility companies. The various legal challenges were consolidated into one matter before the Ninth Circuit Court of Appeals, decided earlier this year. City of Portland v. U.S., 969 F3d 1020 (2020). With minor exception, the Ninth Circuit affirmed the orders, finding that the FCC acted within the scope of its congressionally delegated authority and that its conclusions were reasonable. READ MORE >
To prevent the spread of COVID-19 and protect the public, the Governors of New York and Connecticut issued Executive Orders reducing the in-person workforce of all non-essential businesses and not-for-profit entities. Only essential businesses or entities providing essential services are exempt from the workforce reductions. These prevention and protection measures resulted in non-essential businesses shifting to “work-from-home”, schools in both states to suspend classroom teaching for on-line instruction and most everyone relying on wireless networks for essential goods and services, such as telemedicine. First responders and the general public also rely now more than ever on adequate telecommunications when calling-in and responding to emergencies.

Recognizing that reliable wireless service is critical during this state of emergency, telecommunications facilities are deemed “essential infrastructure” by both New York (Executive Order 202.6) and Connecticut (Executive Order No. 7H). In New York Executive Order 202.13 the New York State Empire State Development Corporation (NYSESDC) reaffirmed that construction by utility companies, such as telecommunications providers, is indeed essential and exempt from the workforce reductions. The federal government also identifies the continued operation and growth of telecommunications capabilities as vital during this unprecedented time. On March 16, 2020, the Director of the United States Department of Homeland Security, Cybersecurity and Infrastructure Security Agency, National Communications Coordination Branch issued a directive ordering cooperation and access to allow telecommunications providers to maintain their infrastructure to ensure the continuation of communication capabilities during the COVID-19 pandemic. READ MORE >
Client Successes
Cuddy & Feder helps Telecommunications Clients Secure Two New Tower Approvals to Provide FirstNet and Wireless Services in Connecticut
Cuddy & Feder’s Telecommunications Practice, led by Christopher Fisher and Lucia Chiocchio, guided Homeland Towers, LLC and AT&T through contested cases before the Connecticut Siting Council (CSC) securing approvals for two new tower facilities in the towns of New Canaan and Kent Connecticut. These communities along the Gold Coast of Connecticut and in the Litchfield Hills have historically lacked reliable wireless services, including public safety emergency communications. State approvals for these new tower infrastructure projects will fulfill the long-standing critical demand for network services to the public in parts of the state that have been unserved since the advent of commercial cellular. READ MORE >
Cuddy & Feder's Litigation and Regulatory Teams Combine Efforts to Successfully Secure a Small Cell DAS Network on Long Island
Following a lengthy and contested process, which included fierce local opposition, a municipal moratorium, amended applications, and litigation, Cuddy & Feder was able to successfully conclude ExteNet Systems, Inc.’s efforts to install a small cell DAS network in the Village of Lake Success, when the Eastern District of New York entered a consent judgment finally resolving the matter in October 2020. READ MORE >
ExteNet Systems, Inc. Wins First Case in Second Circuit Interpreting and Applying the FCC’s Updated Shot Clock Rules for Small Cells
In what appears to have been a case of first impression in the Second Circuit interpreting and applying the Federal Communication Commission’s updated “shot clock” regulations, Cuddy & Feder obtained a complete victory for ExteNet Systems, Inc. in its challenge to the Town of North Hempstead’s failure to act on ExteNet’s request for a right of way agreement and application to install 16 small wireless facilities as part of a distributed antenna system (DAS) network. ExteNet Systems, Inc. v. Town of North Hempstead, No. 20-cv-354 (ERK) (SJB) (E.D.N.Y.). READ MORE >
Cuddy & Feder LLP | 914-761-1300 | 914-761-5372 | [email protected] | cuddyfeder.com
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