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Is Troy’s telecom skirmish a sign of national shift?

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Is Troy’s telecom skirmish a sign of national shift?

In late February, Mobilitie, a telecommunications infrastructure contractor, installed seven tall wooden poles in Troy. Some neighbors objected on aesthetic grounds, and many public officials, including the mayor, initially seemed not to know who owned the poles nor who approved their deployment.

As The Alt only recently learned, Mobilitie appears to have obtained all appropriate local approvals and permits, which the city issued in May, July, and September of last year. (We have submitted a Freedom of Information Law request for those records, just to be sure.)

The process for utility installations in Troy, historically, has been as follows: The bureau of code enforcement receives applications and forwards them to the engineering department; after signing off on locations, the engineering department returns the applications to code enforcement to issue permits. “This process has been in place for many years, through at least two Engineers,” deputy mayor Monica Kurzejeski wrote to the city council last week in an email obtained by The Alt. “This same process was followed in this situation.”

Requirements and procedures for local approvals pertaining to telecommunications equipment vary by municipality. Troy’s city code, for instance, states that no “poles or fixtures for the carrying of aerial wires or cables shall hereinafter be erected in any of the public places, squares, streets, alleys or public grounds of the City without the permit in writing of the Commissioner of Public Works, approved in writing by the Mayor.” This was not done for Mobilitie’s project in Troy, a fact highlighted by city council president Carmella Mantello.

But last week, at a city council finance committee meeting, deputy mayor Monica Kurzejeski resisted the notion that that portion of the law applied to Mobilitie’s project, since no wires or cables were involved. While this seems technically correct, it points to a broader issue—Troy’s laws, like those of other municipalities, have yet to account for major cell carriers’ (or their contractors’) need to build tens of thousands more wireless facilities across the country to accommodate the exponential increase in demand for data services over the past decade.

Mobilitie officials say the 17 planned sites in Troy are part of a nationwide effort to shore up the physical network of wireless carrier Sprint in advance of the launch of its fifth generation wireless system, or 5G, in 2020. To carry out the initiative, Mobilitie must navigate a patchwork of outdated local laws.

“That’s part of where our technology being new does provide some challenges for jurisdictions because a lot of what has been crafted in terms of ordinances deal with the full-scale towers or deal with lines,” Paul Hartman, director of government relations at Mobilitie, told the city council at last week’s finance committee meeting. “As a wireless infrastructure company, unfortunately we do kind of run into some of these challenges where people don’t know exactly which bucket to put us in.”

To erect wireless facilities in public rights-of-way in New York state, as Mobilitie does, a company must obtain a Certificate of Public Convenience and Necessity (CPCN) from the state Public Service Commission. Mobilitie obtained its CPCN in 2006.

At the federal level, the Telecommunications Act of 1996 states that no municipality statute or regulation “may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.” The law also preserves localities’ zoning authority over the facilities, if they choose to exercise it.

To make the most of this authority—to exert influence over location, height, and design—cities like Troy should “amend their old cell tower ordinances to become wireless facilities ordinances that address these facilities in the public rights-of-way,” Dan Cohen, a principal at Cohen Law Group, a firm that represents localities in legal battles with telecommunications companies, told The Alt. “The city of Troy has that legal authority.”

The city seems headed in that direction. In her email to the city council, the deputy mayor said the city is “in communication” with the New York Conference of Mayors, which will advise Troy and other member cities on how to update their laws and regulations. Council President Carmella Mantello also told The Alt that she plans to introduce legislation to that effect.

When the poles went up and rancor ensued in early March, the city halted further installations and worked (successfully) to persuade Mobilitie to take down four of them, including an 80-footer near The Ruck, a popular bar downtown. Mobilitie agreed to reduce the overall number of new poles from 23 to 7; the other 10 facilities will be attached to existing structures.  

The city’s new corporation counsel, James Caruso, also negotiated a five-year license agreement between the city and Mobilitie, whereby the city will collect $35,000 in fees the first year and likely $32,500 each year after that. The city council may vote to adopt the agreement in June.

“Wow,” said Cohen, the attorney who represents municipalities in these matters, when apprised of this development. “It sounds like the city made progress.”

At a city council finance committee meeting in April, the proposed agreement precipitated a tense exchange between the city’s corporation counsel and councilman Mark McGrath, who questioned whether Troy was getting the “best deal” and repeatedly demanded comparables.

“You’re not gonna know if it’s a good deal,” Caruso told McGrath, “and you are relying on my expertise, ‘cause I negotiated this deal.”

He continued: “I’m telling you right off, OK? The first offer they made, I rejected it. I didn’t even counter. They made another offer, I rejected that. They tripled their offer—$32,000 a year, from zero. Zero outlay of Troy money. Zero outlay of Troy personnel. $2,500 administrative fee. Their original offer was, like, five hundred bucks. I got ‘em to give us $2,500.”

McGrath clapped back. “If it wasn’t for me and the email I sent, [the city wasn’t] charging ‘em a dime!” he exclaimed. “I was the one [who] sent the email that said, ‘I don’t care how bad the poles look—they’re gonna pay us.’”

As Council President Mantello, at that April meeting, ushered through a motion by McGrath to table a vote on the agreement for a future finance committee meeting (which occurred last week), Caruso interjected with an ominous warning.

“They have the right to put these poles in the city of Troy,” he said. “Section 253 of the Telecommunications Act of 1996. There is legal precedent for this. As the city of Troy’s corporation counsel, I need to advise you, legally, that what you’re doing here tonight, and what I think you’re gonna do with this, has legal ramifications.”

But at Mobilitie’s subsequent presentation at the finance committee meeting last week, it seemed the specter of litigation had receded. Council President Mantello pressed company representatives to relocate one already-installed pole on Hutton Street (“The neighbors are not happy”), but the council generally seemed mollified by Mobilitie’s conciliatory efforts. The company shared comparables suggesting the fees offered to Troy were relatively high.

“I wasn’t feeling good about this entire experience,” said councilman Dean Bodnar. “But having said that, and not wanting to dwell on it because I dwelled on it enough over the past three weeks…I want to say that I appreciate the presentation that you gave us tonight. I think that you’ve come a long way toward answering basic questions we had, one of which was, ‘Who are you people?’”

“The fault is as much on Troy city government as it is with Mobilitie as a private company,” Bodnar added. “I think that there were some dynamics at play within Troy city government which kind of fueled the fire here,” he said, citing staffing limitations due to budgetary considerations.

“Our goal, as it has been from the outset, is to find a solution that satisfies all parties and brings a significantly improved wireless network—WiFi, hotspots, video streaming—to Troy,” a Mobilitie spokesperson said in an emailed statement to The Alt. “We are attempting to be a good neighbor and partner, as we believe our actions show, and we are continuing to work with the City to find suitable network locations.”

While the flap in Troy seems headed toward a somewhat amicable conclusion, a larger tussle involving Mobilitie is playing out at the Federal Communications Commission. In November, the company filed a petition with the agency for a declaratory ruling, seeking to reduce what it considers “high and discriminatory fees” imposed by municipalities for constructing wireless facilities in public rights-of-way.

“There’s a fight brewing at the FCC,” said Dan Cohen, whose law firm filed a comment opposing Mobilitie’s petition on behalf of Pittsburgh, Philadelphia, and a number of small localities. “The municipalities…have mobilized in a remarkable way.” The FCC case docket shows nearly 1,000 filings.

Mobilitie’s cause may not have been helped by a leaked Sprint internal memo published by Event Driven, a market intelligence news website, earlier this month.

“As you know, we initiated a trial [in] Feb across both the mini macro and monopole programs which concluded at the end of March,” the memo, which is dated April 25, begins. “The trial granted Mobilitie permission to commence construction without necessarily securing certain build pre-requisites [sic].”

In a later section titled “Mini macros built without full AZP” (an acronym for acquisition, zoning, and planning), the memo states that “allowing sites to commence construction without fully completing regulatory compliance…increases the weekly rate of sites commencing construction, however, the findings of the trial showed that ‘breaking the process’ to facilitate this, created downstream issues which also constricted the commissioning process resulting in fewer sites on-air…In addition, commencing construction prior to securing all regulatory approvals exposes both Sprint and Mobilitie to reputational risk without enjoying any tangible on-air benefit.”

WirelessEstimator.com, an industry news site, in a story on the Event Driven scoop, wrote that Mobilitie “is well-known for installing DAS [distributed antenna system] poles in community rights of way without getting permission.”

Asked in an email about the memo and whether it pertained to Troy, a Sprint spokesperson replied, “We take regulatory compliance at all levels very seriously. The internal memo you are referencing is poorly worded, and does not reflect our approach to regulatory compliance. Sprint has a strong record in this regard at the federal, state and local levels.” A Mobilitie spokesperson told The Alt that the trial described in the memo did not pertain to Troy.

Matters of execution aside, Troy’s city council seems universally supportive of an expansion of data services.

“We want to be a ‘smart city,’” Council President Mantello said at the April meeting. “We just obviously want it done properly. We want it to fit with the landscape, and we want it to fit into our neighborhoods.”

“Maybe we’re not gonna wind up with something that’s perfect,” councilman Bodnar mused at last week’s meeting. But now, he added, it seems like the city will end up with “something we can live with.”

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