PCIA The Wireless Infrastructure Association ( PCIA ) respectfully. submits this letter amicus curiae in support of American Tower Corporation s

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1 March 26, 2012 Molly Dwyer, Clerk of the Court United States Court of Appeals for the Ninth Circuit P.O. Box San Francisco, CA Re: Amicus Curiae Letter in Support of Appellee/Cross-Appellant American Tower Corp. in American Tower Corporation v. The City of San Diego, et. al. App. Case Nos / ; American Tower Corporation, et. al. v. The City of San Diego, et. al. App. Case Nos / , Supporting Reversal of District Court s Findings Regarding American Tower Corp. s Telecommunications Act of 1996 Claims Dear Ms. Dwyer, PCIA The Wireless Infrastructure Association ( PCIA ) respectfully submits this letter amicus curiae in support of American Tower Corporation s Briefs In Response to City Of San Diego et al. s Brief on Appeal and Brief on Cross-Appeal of Appellee/Cross-Appellant American Tower Corp. ( ATC ), American Tower Corp. v. City of San Diego, CA, et. al., App. Case Nos / ; American Tower Corporation, et. al. v. The City of San Diego, et. al. App. Case App. Case Nos / (9th Cir. Mar. 19, 2012) ( ATC s briefs ), pursuant to PCIA s Motion To File Amicus Curiae Letter In Support Of Plaintiff Appellee / Cross-Appellant American Tower Corporation, American Tower Corp. v. City of San Diego, CA, et. al. App. Case Nos / (9th Cir. Mar. 21, 2012); American Tower Corp., et. al. v. City of

2 San Diego, CA, et. al., App. Case Nos / (9th Cir. Mar. 26, 2012). PCIA 1 is the trade association representing the wireless telecommunications infrastructure industry. PCIA s members develop, own, manage and operate more than 125,000 telecommunications towers and antenna structures upon which cell sites can be collocated. PCIA seeks to facilitate the widespread deployment of communications networks across the country, consistent with the mandate of Telecommunications Act of 1996 ( TCA ), Pub. L. No , 110 Stat. 56 (1996). PCIA and its members work with the federal government, partner with communities across the nation and participate in pertinent litigation such as the foregoing case to affect solutions for wireless infrastructure deployment that are responsive to the needs of the industry and the unique sensitivities and concerns of states and localities. Amicus Curiae PCIA-The Wireless Infrastructure Association state that there are no parent corporations and that there are no publicly held corporations that own ten percent or more of its stock. 1 The source of amicus authority to file this letter is based on Rule 29 of the Federal Rules of Appellate Procedure pursuant to Ninth Circuit Advisory Committee Note to Circuit Rule 29-1 encouraging amici to file a short letter in lieu of a brief. Amicus attempted to obtain the consent of all parties to file this letter but were unable to do so. This letter was not authored in whole or in part by counsel for a party, and no person or entity has made a monetary contribution to the preparation or submission of this letter. 2

3 Certain siting policies, such as time limits for conditional use permits ( CUP ) for wireless infrastructure, and interpretations of the TCA, such as the Ninth Circuit s significant gap test for determining effective prohibition under section 704 of the TCA, T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987, 995 (9th Cir. 2009) (emphasis in original) (citing MetroPCS v. City & County of San Francisco, 400 F.3d 715, 734 (9th Cir. 2005), do not contemplate nextgeneration wireless networks. Allowing states and localities to impose burdensome zoning regulations on existing wireless infrastructure increases the costs of infrastructure deployment and maintenance and effectively prohibits the deployment of next-generation wireless networks. Therefore, PCIA supports ATC s briefs and joins its argument that the Ninth Circuit reverse the District Court s ruling on ATC s TCA claims. Recent federal and state policy initiatives advocate for leveraging existing wireless infrastructure to deliver high-speed mobile broadband and the opportunities derived therefrom to all Americans. See, e.g., Cal. Gov t Code (2006); Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. No , 6406, 6409 (2012). The City of San Diego not only effectively prohibited use of ATC s facilities under the TCA, 47 U.S.C. 332(c)(7)(B)(i)(II), when it denied ATC s CUPs, but also frustrated these policy goals. 3

4 Demand for Wireless Service Drives Wireless Facility Deployment Wireless services, from basic voice communication to mobile broadband, enable communication, productivity, mobility and public safety. Wireless infrastructure is the backbone of wireless networks; without it, wireless services cannot be delivered to users. Wireless infrastructure enables use of spectrum by providing the vital link between the end-user and the network. The strategic deployment of wireless infrastructure improves the efficient use of limited spectrum resources, which in turn improves the performance of wireless services. Wireless providers are currently undertaking a multi-faceted effort to deliver next-generation wireless services, such as 4G LTE, in addition to ensuring that current and next-generation networks have the capacity to handle the surge in traffic that comes with the increased adoption rates of smartphones, tablets and other data devices. Wireless networks must adapt to growing capacity demands due to a 1,800 percent increase in traffic on U.S. wireless networks in the last four years, Mobile Future, 2011 Mobile Year In Review (Dec. 2011), 2 and a projected growth of eighteen times current levels of mobile data traffic in the next five years, Quentin Hardy, The Explosion of Mobile Video, N.Y. Times, Feb. 14, Mobile Internet users are projected to outnumber wireline Internet users by 2015, 2 Available at: 3 Available at: 4

5 when a majority of Americans will utilize a wireless device as their primary Internet access tool. Hayley Tsukayama, IDC: Mobile Internet Users to Outnumber Wireline Users by 2015, Washington Post, Sept. 12, This will result in two billion networked mobile devices by Mobile Future, 2011 Mobile Year In Review. In addition, with more than 70 percent of all emergency calls placed using a wireless device, FCC.gov, Guide: Wireless 911 Services. 5 The ability to access fire, rescue and police services may be significantly hindered without wireless infrastructure, especially for those relying on wireless as their sole form of voice communications. To provide the services that consumers demand and rely upon, wireless carriers and infrastructure providers must use existing infrastructure effectively to deploy next-generation wireless networks to meet coverage and capacity demands. Unfortunately, the build out of infrastructure is often subject to persistent and costly barriers that inhibit such deployment, such as the time limits for ATC s permits and the denial of its CUPs that led to the lengthy dispute in the foregoing case. 4 Available at: internet-users-to-outnumber-wireline-users-by- 2015/2011/09/12/gIQAkZP7MK_blog.html?wprss=post-tech. 5 Available at: 5

6 Deploying Next Generation Wireless Networks Requires the Efficient Use of Existing Infrastructure A regulatory regime that streamlines use of existing wireless infrastructure is a well-recognized method for allowing wireless carriers and infrastructure providers to keep pace with increased user demands. The Court must recognize the need to leverage and utilize existing infrastructure to deploy timely next-generation wireless networks consistent with the TCA. 47 U.S.C. 706 (1996). When initially constructed, wireless infrastructure is approved through an exhaustive zoning review process that addresses the health, safety and welfare concerns of the community. See Comments of PCIA The Wireless Infrastructure Association and The DAS Forum, WC Docket No , Notice of Inquiry, at (filed July 18, 2011). During this process, the public and local officials are afforded ample notice and opportunity to participate and provide input. To maximize efficiencies, wireless communications structures are typically designed and constructed to accommodate multiple antennas and service providers through the addition of wireless facilities, called collocation. Collocation allows multiple carriers to provide wireless services to consumers, including increased mobile broadband coverage and capacity, which increases competition and consumer choice. 6

7 In recent years, numerous states have revised wireless siting laws and regulations to streamline the review process for siting of wireless facilities on existing infrastructure. California, Florida, Georgia, Nevada, New Jersey, North Carolina and Tennessee passed legislation that streamlines the efficient use of existing infrastructure by facilitating the collocation and modification. See Cal. Gov t Code (2006); Fla. Stat (2006); O.C.G.A B B-4; Nev. Rev. Stat (2003); N.J. Stat. 40:55D-46.2 (2012); N.C. Gen. Stat. 160A (2007); Tenn. Code Ann (2005). San Diego s ten year time limits on ATC s permits frustrate the efficient use of existing infrastructure. Time limits for permits on wireless infrastructure frustrate both federal policy initiatives, as discussed below, and the wireless industry s attempts to use existing infrastructure. If a carrier seeks to collocate on an existing tower and that facility s permit is set to expire within a short number of years, the carrier is forced to find another collocation opportunity, and likely one that will not meet its service requirements to the same extent as the originally chosen infrastructure. Analogous to potential collocators, a consumer seeking to purchase a condominium in a building with a ten year zoning permit would be deterred that if the new permit is not obtained, they will lose their home in less than 10 years. Therefore, such time limits inherently inhibit wireless deployment 7

8 through the use of existing infrastructure by obfuscating the predictability and consistency necessary for wireless network planning. Determining Effective Prohibition under the TCA Must Account for Current Federal Policy Initiatives The Ninth Circuit s interpretation of the TCA should reflect federal policymakers intent to encourage the rapid deployment of new telecommunications technologies through the use of existing infrastructure. San Diego s denial of ATC s CUP applications prohibited ATC from utilizing the existing infrastructure to meet capacity demands, thereby violating the TCA. Under the TCA, local government s regulation of personal wireless facilities cannot prohibit or have the effect of prohibiting the provision of personal wireless services. 47 U.S.C. 332(c)(7)(B)(i)(II). Under the Ninth Circuit s test, a plaintiff asserting this provision must demonstrate a significant gap in service and that the way it proposes to fill the significant gap in services is the least intrusive on the values that the denial sought to serve. T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987, 995 (9th Cir. 2009) (emphasis in original) (quoting MetroPCS, 400 F.3d at 734). Recent federal policy initiatives seek to decrease burdensome regulatory impediments to the use of existing infrastructure. These initiatives recognize that the fastest, most cost-effective way to deploy next-generation networks to meet capacity and coverage demands requires use of existing 8

9 infrastructure. The significant gap test does not consider the capacity demands that the use of collocation seeks to address. The Federal Communications Commission s National Broadband Plan recognized that, in order to lead the world in mobile innovation, the government must take steps to improve utilization of existing infrastructure.... Connecting America: The National Broadband Plan, at 109 (Mar. 2010). With the passage of the Middle Class Tax Relief and Job Creation Act of 2012 ( the Act"), Pub. L. No , 6406, 6409 (2012) 6 signed into law on February 22, 2012, Congress further recognized the important role that collocation plays in deploying wireless service. See 158 Cong. Rec. E (daily ed. Feb. 24, 2012) (statement of Rep. Upton). 7 Section 6406 of the Act provides that in building a nationwide, interoperable, public safety network, existing infrastructure must be used to the maximum extent economically desirable. The Act at Section 6409 of the Act, which modifies state or local authority under section 704 of the TCA, streamlines the efficient use of existing infrastructure, allowing the collocation and modification of such facilities without the need for a discretionary zoning review process at the local level. Id. at Available at: 112hr3630enr.pdf. 7 Available at: pt1-PgE237-5.pdf. 9

10 In the foregoing case, San Diego s denial of ATC s CUPs effectively prohibited the operation of ATC s wireless towers as existing infrastructure that could be used to meet capacity demands on the network, thereby violating the TCA. The District Court dismissed this claim based on the significant gap test. In Re Cell Tower Litigation, 807 F.Supp.2d 928, (S.D.Cal. 2011). The significant gap test sets a difficult and outdated standard with which to comply because it accounts solely for the coverage needs of wireless networks today. The test calls for the court to look at the geographical coverage as it exists to determine if wireless service is impaired. T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987, 995 (9th Cir. 2009). The measure of wireless coverage is no longer solely geographical due to data-driven smartphones and advanced mobile applications. And, therefore, the test does not account for the severely strained networks or the capacity needs of current and next-generation wireless networks. As discussed above, deploying infrastructure today helps providers prepare for growth in wireless service demands in coverage and capacity of tomorrow. The significant gap test must recognize that regulations that limit the efficient use of previously approved wireless infrastructure effectively prohibits the provision of wireless service at a time when the adoption of smartphones and data intensive mobile applications is ever-increasing. The significant gap test must be redefined or replaced with a test that considers capacity demands and the use of 10

11 existing infrastructure, because it currently fails to account for wireless service providers preparation for next generation network demands. 11

12 Conclusion The foregoing case provides an opportunity for the Ninth Circuit to revisit past interpretations of the TCA and consider recent federal policy initiatives and current wireless network demands. PCIA urges the Ninth Circuit to work proactively to ensure that citizens, businesses and first responders have access to the wireless services they demand and rely upon. DATED: March 26, 2012 PCIA The Wireless Infrastructure Association By: /s/ Kara L. Azocar Kara L. Azocar Attorney for Amicus Curiae PCIA The Wireless Infrastructure Association 901 N. Washington St., Suite 600 Alexandria, VA (703)

13 CERTIFICATE OF COMPLIANCE I certify that this letter complies with the type-volume limitation set forth in Rule 32(a)(7)(B) of the Federal Rules of Appellate Procedure. This letter is proportionally spaced, uses a Times New Roman type face and 14-point font, and according to Microsoft Word, the brief as a whole contains approximately 2,516 words. DATED: March 26, 2012 PCIA The Wireless Infrastructure Association By: /s/ Kara L. Azocar Kara L. Azocar Attorney for Amicus Curiae PCIA The Wireless Infrastructure Association 901 N. Washington St., Suite 600 Alexandria, VA (703) Advocacy@pcia.com 13

14 CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing Amicus Curiae Letter By PCIA The Wireless Infrastructure Association In Support Of Plaintiff Appellee / Cross-Appellant American Tower Corporation with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on March 26, Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system. I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within 3 calendar days to the following non-cm/ecf participants: Carmen A. Brock Jan I. Goldsmith Donald R. Worley CITY ATTORNEY'S OFFICE 1200 Third Avenue San Diego, CA DATED: March 26, 2012 PCIA The Wireless Infrastructure Association By: /s/ Kara L. Azocar Kara L. Azocar Attorney for Amicus Curiae PCIA The Wireless Infrastructure Association 14