What Can We Do Now? Regulating Short-Term Rentals and Small Cell Deployment. Elisha D. Hodge MTAS Legal Consultant TCMA Conference November 2, 2018

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1 What Can We Do Now? Regulating Short-Term Rentals and Small Cell Deployment Elisha D. Hodge MTAS Legal Consultant TCMA Conference November 2,

2 2

3 Short-Term Rentals 3

4 Airbnb 4

5 History

6 History (Cont.) 6

7 History (Cont.)

8 The Battle at Legislative Plaza 2017 HB1020/SB108

9 The Battle at Legislative Plaza 2017 (cont.)

10 The Battle at the New Legislative Plaza 2018

11 Public Chapter 972: The Short-Term Rental Unit Act What Does It Really Say? Tenn. Code Ann. Section (a) (The grandfather provision): Any ordinance, resolution, regulation, rule, or other requirement of any type that prohibits or effectively prohibits or otherwise regulates the use of property as a short-term rental unit does not apply to property that was being used as a short-term rental unit, prior to the enactment of the ordinance, resolution, regulation, rule, or other requirement by the local governing body. Provides that the law in place at the time that the property was being used as a short-term rental unit is the law that governs the use of the short-term rental unit until the property is sold, transferred, ceases being used as a short-term rental unit for a period of 30 continuous months, or has been in violation of generally applicable local laws 3 or more separate times as provided by T.C.A

12 Public Chapter 972: What Does It Really Say? (cont.) Tenn. Code Ann. Section (b) (The Brentwood exception): Any ordinance, resolution, regulation, or other requirement of any type enacted prior to January 1, 2014, that expressly limits the period of time a residential dwelling may be rented and prohibits or effectively prohibits the use of property as a shortterm rental unit may apply to any property within the municipality, regardless of the properties current use. 12

13 Public Chapter 972: What Does It Really Say? (cont.) Tenn. Code Ann. Section (a): A municipality or metropolitan government is not prevented from prohibiting the continued use of a short-term rental unit, if the unit has been in violation of a generally applicable local law 3 or more separate times and the provider has no appeal rights remaining. The burden of proving that a local law was violated is on the local governing body. 13

14 Public Chapter 972: What Does It Really Say? (cont.) Tenn. Code Ann. Section (b): Authorizes the local governing body to put in place a permitting or application process for short-term rental units. Provides that when a local governing body authorizes the use of short-term rental units through a permitting or application process, the use of a short-term rental unit may be suspended during the time that a unit does not maintain a permit or have an approved application if the permitting and application process requirements are reasonable. However, the language also provides nothing extinguishes a provider s right to the continued use of the property as a short-term rental unit unless the property is sold, transferred, ceases being used as a shortterm rental unit for a period of 30 continuous months, or has been in violation of generally applicable local laws 3 or more separate times as provided by T.C.A

15 Public Chapter 972: What Does It Really Say? (cont.) Tenn. Code Ann. Section (c): If the local governing body allows public complaints to be filed as part of a permitting or application process, the local governing body must notify the complainant that any false complaint made against a unit is punishable as perjury under T.C.A

16 Public Chapter 972: What Does It Really Say? (cont.) Tenn. Code Ann. Section (d): If a municipality or metropolitan government prohibits or effectively prohibits the operation of a short-term rental unit that is authorized to operate under T.C.A (a), the provider may challenge the prohibition, regulation, suspension, or regulation as in conflict with this Act, through a civil action or appeal in chancery or circuit court. 16

17 Public Chapter 972: What Does It Really Say? (cont.) Tenn. Code Ann. Section : Preempts any ordinance, resolution, rule, or other requirement enacted, maintained, or enforced by a municipality or metropolitan government that is in conflict with this Act. 17

18 What Can We Do Now? 1. Municipalities ARE NOT PREEMPTED from prohibiting or regulating shortterm rentals... But be mindful of the providers who are grandfathered. 2. If your municipality does not currently prohibit or regulate short-term rentals (zoning aside) and the municipality is not going to prohibit or regulate them, this legislation has not impact. 3. If your municipality does not currently prohibit or regulate short-term rentals (zoning aside), but the municipality intends to do so in the future, 1.) a new ordinance needs to be passed specifically addressing the prohibition or regulation of short-term rentals, to include the permitting or application process, if either will be required; 2.) the municipality will need to try to identify (create an inventory) providers that existed prior to the ordinance being passed to determine whether they are grandfathered. 18

19 What Can We Do Now? (cont.) 4. If the municipality has a complaint process tied to the application or permitting process, create signage, forms, and include on the municipality's website that making a false complaint can be punishable as perjury. 5. If your municipality passed an ordinance or resolution regulating or prohibiting short-term rentals and the ordinance or resolution is in conflict with this Act, it should be repealed and no longer enforced. 19

20 Short Term Rental Nightmares

21 Small Cells 21

22 What Are Small Cells? AT&T

23 Why Are Small Cells Needed? According to telecommunication providers, small cells: 1. Provide increased data capacity; 2. Help service providers eliminate expensive rooftop systems and installation or rental costs, which reduces the overall cost; and 3. Help improve the performance of mobile handsets by substantially increasing their battery life. Nguyen, Tuan (2017) Small Cell Networks and the Evolution of 5G (Part 1) 23

24 Why Are Small Cells Needed? (cont.) Constant growth in use of wireless devices like smart phones and tablets, along with the explosion of new applications for everything from mobile banking and real-time traffic monitoring to tele-health and distance learning, results in a massive amount of data that communications networks must handle. -AT&T spokesman Joe Burgan 24

25 The Plan Cities Legislature FCC 25

26 Step 1: Court Cities 26

27 Step 1: Approach Individual Cities 27

28 The Response to Step 1

29 Step 2: Court the Legislature 29

30 Step 2 of the Plan: Move on the State Legislature 30

31 Public Chapter 819, Acts of 2018 The Competitive Wireless Broadband lnvestment, Deployment, and Safety Act of 2018

32 Small Wireless Facility (Small Cell) Defined Small cell is defined as a wireless facility with an antenna that could fit within an enclosure of no more than six (6) cubic feet in volume; and other wireless equipment in addition to the antenna that is cumulatively no more than twenty-eight (28) cubic feet in volume, regardless of whether the facility is ground-mounted or polemounted. However, small cells are often accompanied by an electric meter, concealment element, telecommunications demarcation box, grounding equipment, power transfer switch, cut-off switch, or a vertical cable run for the connection of power and other services and those items are not included in the maximum size allowances. 32

33 So... 33

34 Right-of-way (ROW) Defined Right-of-way or ROW is defined as the space, in, upon, above, along, across, and over all public streets, highways, avenues, roads, alleys, sidewalks, tunnels, viaducts, bridges, skywalks under the control of the authority, and any unrestricted public utility easement established, dedicated, platted, improved, or devoted for utility purpose and accepted as such public utility easement by the authority, but excluding lands other than streets that are owned by the authority. 34

35 Potential Support Structure (PSS) Defined Potential support structure for a small wireless facility or PSS is defined as a pole or other structure used for wireline communications, electric distribution, lighting, traffic control, signage, or a similar function, including poles installed solely for the colocation of a small wireless facility. When PSS is modified by the term new, then new PSS means a PSS that does not exist at the time the application is submitted, including, but not limited to, a PSS that will replace an existing pole. 35

36 3 Ways Small Cells Can Be Deployed in the ROW on a PSS 1. The small cell may be physically attached, or collocated, to an existing pole or sign. 2. The small cell may be incorporated into the design of a new pole that replaces the existing pole, referred to as either a modified PSS or replacement PSS. 3. The provider may install a new pole in a location in which there is not currently a pole and the small cell may either be attached to or incorporated into its design. 36

37 The Details 37

38 Applications Permitted Deploying a small cell Installing new or modified PSS Provider replacing own PSS Not Permitted Making repairs, replacing parts on own cell Replacing own cell with one same or smaller Installing micor wireless facility 38

39 Applications (cont.) 1. A preliminary site plan with a diagram or engineering drawing depicting the design for installation of the small wireless facility with sufficient detail to determine that the design of the installation and any new PSS or any modification of a PSS is consistent with all generally applicable safety and design requirements, including the requirements of the Manual on Uniform Traffic Control Devices. 2. The location of the site, including the latitude and longitudinal coordinates of the specific location of the site. 3. Identification of any third party upon whose PSS the applicant intends to collocate and certification by the applicant that it has obtained approval from the third party. 39

40 Applications (cont.) 4. The applicant's identifying information and the identifying information of the owner of the small wireless facility and certification by the applicant or the owner that such person agrees to pay applicable fees and rates, repair damage, and comply with all nondiscriminatory and generally applicable ROW requirements for deployment of any associated infrastructure that is not a small wireless facility and the contact information for the party that will respond in the event of emergency related to the small wireless facility. 5. The applicant's certification of compliance with surety bond, insurance or indemnification requirements, rules requiring maintenance of infrastructure deployed in ROW, requiring relocation or timely removal of infrastructure in ROW no longer utilized, and any rules requiring relocation or repair procedures for infrastructure in ROW under emergency conditions, if any, that the municipality or metropolitan government imposes on a general and non-discriminatory basis upon entities entitled to deploy infrastructure in the ROW. 40

41 Applications (cont.) 6. The applicant's certification that the proposed site plan and design plans meet or exceed all applicable engineering, materials, electrical, and safety standards, including all standards related to the structural integrity and weight-bearing capacity of the PSS and small wireless facility. Requires the standards relevant to engineering to be certified by a licensed professional engineer. 41

42 One-time $200 Permitted Fees Maxium fee per application: $100 - first 5 small cells and $ small cells Annual fee of no more than $100 for each small cell Fees for work and traffic permits required of other providers performing construction in the right of way Fees Permitted for: collocating small cells, installing modified PSS, and installing new PSS Fees Not Permitted for: maintenance, repairs, or replacing small cell components, replacing a provider-owned small cell that is the same size or smaller that what is being replaced, or installing a micro cell 42

43 The Timeline for Making a Decision on a Request (Shot Clock) The Application Shot Clock 43

44 Shot Clock (cont.) Initial Review Period 44

45 Shot Clock (cont.) Application is Incomplete 45

46 Shot Clock (cont.) Conference with Provider 46

47 Shot Clock (cont.) Application is Incomplete 47

48 Shot Clock (cont.) By Volume 48

49 Shot Clock (cont.) Conference Held for Requested Deployment on Regulatory Sign 49

50 Aesthetic Plans and Undergrounding Requirements Aesthetic Plan is defined in the Act as any written resolution, regulation, policy, site plan or approved plat that imposes any aesthetic restrictions or requirements that apply to all providers operating within the affected area that does not have the effect of precluding the deployment of any small cells. Examples of what could be included in an aesthetic plan: 1. The color or design of street lights; 2. Regulations governing the location of above-ground structures on a sidewalk; and 3. Requiring all utilities to be buried underground. 50

51 What Can We Do Now? 1. Determine whether your municipality will have an application process. 2. Develop an application. -public-acts-2018-includes-small-cells-competitive-wirelessbroadband 3. Establish a tickler system that includes each small cell deployment request, fees paid, and dates required to comply with the shot clock. 4. To the extent possible, inventory the poles, regulatory signs, bridges, and overpasses in your municipality. 51

52 What Can We Do Now? (cont.) 5. Develop, adopt, and enforce an aesthetic plan. 6. Adopt and enforce undergrounding requirements. 7. Require providers to relocate facilities, including any PSS, small wireless facility, or other related infrastructure that that inhibit public safety. 8. Enforce breakaway sign post requirements and safety restrictions imposed for all structures within a ROW. 9. Enforce vegetation control requirements that are imposed upon entities that deploy infrastructure in a ROW in order to prevent damage or injury due to infrastructure that is obscured from view due to vegetation. 52

53 What Can We Do Now? (cont.) 10. Enforce generally applicable local rules regarding removal of unsafe, abandoned, or inoperable obstructions in a ROW. 11. Require structures and facilities placed within a ROW to be constructed and maintained as not to obstruct or hinder the usual travel upon pedestrian or automotive travel ways. 12. Requiring compliance with Americans with Disabilities Act Accessibility Guidelines (ADAAG) standards adopted by the authority to achieve compliance with the Americans with Disabilities Act (42 U.S.C et seq.), including Public Rights-of-Way Accessibility Guidelines (PROWAG) if adopted by the authority. 53

54 What Can We Do Now? (cont.) 13. Prohibit obstruction of the legal use of the ROW. 14. Require providers to repair damage caused by entities entitled to deploy infrastructure in a ROW, including damage to public roadways or to other utility facilities placed in a ROW. 15. Require a provider, upon making application, to certify that it has secured a surety bond, insurance, or indemnification that will cover any negligence associated deployment of a small cell on a new or modified PSS. 54

55 What Can We Do Now? (cont.) 16. Require providers to certify that the proposed site and design meets or exceeds all applicable engineering, materials, electrical, and safety standards related to the structural integrity and weight-bearing capacity of the small cell and associated PSS, upon making application. 17. Upon approval of an application seeking deployment of a PSS by means of the installation of either a new or modified PSS, require the provider to provide a professional engineer s certification that the new or modified PSS has been completed consistent with the approved design submitted and all applicable safety and engineering standards. *A city does not assume ownership of a new or modified pole or sign until such time as the provider makes any necessary improvements to secure such certification. 55

56 What Can We Do Now? (cont.) 18. Ensure that any PSS that replaces an existing pole or sign and is designed to incorporate a small cell within its structure continue to perform the same functions as the pole or sign being replaced. *No replacement pole shall become the property of the city until the city has conducted an inspection and determined that the replacement pole maintains the functionality of the pole being replaced. 19. Require any provider seeking to deploy a small cell on a bridge or overpass to provide a professional engineer s certification that the small cell was deployed consistent with the submitted design, that the bridge or overpass maintains the same structural integrity as before the installation, and that during the installation process neither the provider nor its contractors discovered evidence of damage to or deterioration of the bridge or overpass that compromises its structural integrity. 56

57 What Can We Do Now? (cont.) 20. When a provider proposes to replace an existing pole or sign with a new pole that incorporates a small cell within its structure, require the provider to indicate on its application whether it will assume responsibility for maintenance and repairs in case of damage to the facility or structure, or whether it will allow the city to replace its damaged PSS with a pole of the city s choosing and require the provider to remove and dispose of the associated small cell. 57

58 Step 3: Court the FCC (and Probably Win) 58

59 Taking the Fight to the FCC And in This Corner...

60 Taking the Fight to the FCC And in This Corner... 60

61 The FCC Declaratory Ruling 61

62 The Details 62

63 The FCC Order: Fees We conclude that ROW access fees, and fees for the use of government property in the ROW, such as light poles, traffic lights, utility poles, and other similar property suitable for hosting Small Wireless Facilities, as well as application or review fees and similar fees imposed by a state or local government as part of their regulation of the deployment of Small Wireless Facilities inside and outside the ROW, violate Sections 253 or 332(c)(7) unless these conditions are met: (1) the fees are a reasonable approximation of the state or local government s costs, (2) only objectively reasonable costs are factored into those fees, and (3) the fees are no higher than the fees charged to similarly-situated competitors in similar situations. -Paragraph 50 of the Order 63

64 The FCC Order: Fees (cont.) Safe Harbor 1. $500 for non-recurring fees, including a single up-front application that includes up to five Small Wireless Facilities, with an additional $100 for each Small Wireless Facility beyond five, or 2. $1,000 for non-recurring fees for a new pole (i.e., not a collocation) intended to support one or more Small Wireless Facilities; and 3. $270 per Small Wireless Facility per year for all recurring fees, including any possible ROW access fee or fee for attachment to municipally-owned structures in the ROW 64

65 The FCC Order: Aesthetic Plans and Undergrounding Requirements We conclude 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. -Paragraph 87 of the Order [W]e believe that a requirement that all wireless facilities be deployed underground would amount to an effective prohibition given the propagation characteristics of wireless signals... Further, a requirement that materially inhibits wireless service, even if it does not go so far as requiring that all wireless facilities be deployed underground, also would be considered an effective prohibition of service. -Paragraph 90 of the Order 65

66 The FCC Order: Shot Clock days for review of an application for collocation using a preexisting structure Paragraph 105 of the Order days for review of an application for attachment using a new structure-paragraph 105 of the Order days to determine whether an application is incomplete-paragraph 142 of the Order 66

67 The FCC Order: Shot Clock (cont.) Batched Applications We see no reason why the shot clocks for batched applications to deploy Small Wireless Facilities should be longer than those that apply to individual applications because, in many cases, the batching of such applications has advantages in terms of administrative efficiency that could actually make review easier. Under our approach, in extraordinary cases, a siting authority... can rebut the presumption of reasonableness of the applicable shot clock period where a batch application causes legitimate overload on the siting authority s resources. -Paragraphs 114 and 115 of the Order 67

68 What Can We Do Now? 1. Read the order and become familiar with the requirements in it. The Order becomes effective 90 days after it is published on the Federal Register, or January 14, /15/ /accelerating-wireless-andwireline-broadband-deployment-by-removingbarriers-to-infrastructure 2. Pay attention to the legal challenges and watch for any legislative action by the General Assembly. 68

69 Contact Information: Phone: (615) MTAS Website: 69