_Hawke__H__McKeon&__H__H

SniscakLLFATTORNEYS AT LAW

Christopher M. Arfaa(717) 236-1300 x231cmarfaa(h msIeaI.com

100 North Tenth Street, Harrisburg, PA 17101 Phone: 717.236.1300 Fax: 717.236.4841 www.hms1egaI.com

Via Electronic Filing

April 19, 2016

Rosemary Chiavetta, SecretaryPennsylvania Public Utility CommissionCommonwealth Keystone Building400 North Street, 2’ floor (filing room)Harrisburg, PA 17120

Re: Review of Issues Relating to Commission Certification of Distributed AntennaeSystem Providers in Pennsylvania; Docket No. M-2016-2517831; COMMENTSOF CTIA - THE WIRELESS ASSOCIATION®

Dear Secretary Chiavetta:

Attached for filing with the Pennsylvania Public Utility Commission are the Commentsof CTIA — The Wireless Association® in connection with the above-captioned docket.

If you have any questions with regard to this filing, please direct them to me. Thank youfor your attention to this matter.

CMA!dasAttachment

Very truly yours,

CounsellorCTIA — The Wireless Association®

BEFORE THE

PENNSYLVANIA PUBLIC UTILITY COMMISSION

Review of Issues Relating to Commission Certification of Distributed Antennae System Providers in Pennsylvania

Docket. No. M-2016-2517831

COMMENTS OF CTIA – THE WIRELESS ASSOCIATION®

Benjamin L. Aron Director – State Regulatory Affairs CTIA – THE WIRELESS ASSOCIATION® 1400 16th Street, NW, Suite 600 Washington, DC 20036

Christopher M. Arfaa, Attorney ID #57047 HAWKE MCKEON & SNISCAK LLP 100 N. 10th Street Harrisburg, PA 17101 (717) 236-1300 cmarfaa@hmslegal.com Counsel for CTIA – THE WIRELESS ASSOCIATION®

April 19, 2016

TABLE OF CONTENTS

I. Introduction .......................................................................................................................... 1

II. Distributed Antenna Systems Benefit Wireless Consumers ............................................ 3

III. The PUC Has The Authority And Responsibility To Regulate CAPs Offering DAS Services.................................................................................................................................. 8

A. CAPs That Provide DAS Service Are “Public Utilities” Under Pennsylvania Law ...................................................................................................................................8

B. The PUC Has the Authority and Responsibility to Regulate Many Aspects of DAS CAPs’ Provision of Service ...................................................................................14

1. The Public Utility Code Gives the PUC Extensive and Exclusive Regulatory Authority Over DAS CAPs, Except to the Extent Such Authority Is Preempted by Federal Law .......................................................................................14

2. Federal Law Preempts Certain Aspects of Private Utility Pole Attachment and DAS Node Siting ...............................................................................................14

3. State Regulation of CAPs Deploying DAS Facilities Does Not Contravene Sections 253 or 332(c)(3) of the Communications Act ............................................16

IV. The PUC Should Continue to Issue Certificates of Public Convenience to CAPs Deploying DAS Facilities in Order to Promote Pennsylvania’s Telecommunications Policies ................................................................................................................................. 18

V. Conclusion .......................................................................................................................... 20

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I. INTRODUCTION

CTIA – The Wireless Association® (“CTIA”)1 submits these Comments to the

Pennsylvania Public Utility Commission (the “PUC” or “Commission”) in response to the

Commission’s Order initiating this proceeding.2

As the Commission is well aware, it is a national and state priority to expand mobile

broadband to all Americans while ensuring adequate capacity to meet demand and increase the

availability of next-generation wireless broadband services. To meet this goal and satisfy

consumer demand, the deployment of wireless infrastructure is essential. Demand for wireless

capacity is booming: more consumers are accessing mobile broadband every year, driving more

innovation and expanding access to public safety services. But wireless service providers’

ability to meet this demand depends on the removal of barriers to deploy the infrastructure that

supports wireless services. Traditional “macrocell” infrastructure – huge antennas bolted to

enormous towers and other tall structures – has done an excellent job of extending coverage

across Pennsylvania and the rest of the nation, and it will continue to play a critical role in

maintaining and expanding that coverage. However, continually-increasing consumer usage due

to the widespread adoption of smartphones and the development of wireless broadband-

dependent applications and services, among other factors, has created a voracious demand for

1 CTIA – The Wireless Association® is an international nonprofit membership organization that has represented the wireless communications industry since 1984. Membership in the association includes wireless carriers and their suppliers, as well as providers and manufacturers of wireless data services and products. More information about CTIA is available on the Association’s website at http://www.ctia.org/about-us. 2 Review of Issues Relating to Commission Certification of Distributed Antennae System Providers in Pennsylvania, Doc. No. M-2016-2517831 (Feb. 23, 2016) [hereinafter “PUC DAS Order”].

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additional wireless capacity even in areas where coverage is ubiquitous. Further, the

forthcoming transition to fifth generation (“5G”) wireless networks will require even more

infrastructure deployment as the wireless industry continues to enhance its network capabilities

to the benefit of consumers.

Distributed antenna systems (“DAS”) deployed by neutral-party providers such as

competitive access providers (“CAPs”) have played and will continue to play an important role

in helping wireless service providers to meet this demand and enhance wireless consumers’

service effectively, efficiently, and unobtrusively. Pennsylvania’s certification of DAS providers

as CAPs subject to the Pennsylvania Public Utility Code has enabled such providers to fulfill this

role effectively. Therefore, CTIA respectfully urges the Commission to leave in place its current

policy of issuing certificates of public convenience to DAS CAPs.

These Comments briefly explain how DAS solutions work, and how wireless service

providers use DAS CAPs’ services to improve delivery of wireless services to consumers. The

Comments then address the Commission’s legal authority and responsibility to regulate DAS

CAPs. The Comments explain why DAS CAPs are in fact public utilities under Pennsylvania

law and not “commercial mobile service providers” under federal law. While federal law has

preempted state regulation of certain aspects of DAS which are reserved for the Federal

Communications Commission (“FCC”) (in particular, access to poles, ducts and rights-of-way

owned by private utilities and the siting of DAS node antennas), Congress and the FCC have left

most aspects of DAS CAP regulation to the states. The Comments then describe some of the

tangible benefits that DAS CAPs have helped provide to Pennsylvania consumers and conclude

that, in the absence of any evidence of public detriment, there is no reason for the Commission to

change its practice of issuing certificates of public convenience to DAS CAPs.

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II. DISTRIBUTED ANTENNA SYSTEMS BENEFIT WIRELESS CONSUMERS

Wireless service providers have historically deployed “macrocell” sites on towers and

other tall structures in order to expand geographic service area coverage, to improve coverage in

existing service areas, and to accommodate newer technologies. However, in recent years, the

industry has started to use DAS facilities to fill local coverage gaps and to increase local capacity

in indoor locations, in densely populated outdoor areas, and even underground.

A DAS network distributes radio frequency (“RF”) signals from a central hub to specific

areas, typically areas with poor coverage or inadequate capacity, and aggregates the return

signals at the hub for connection with wireless service providers’ networks. A DAS network

generally consists of three primary components:

1. A number of remote DAS node(s), each including at least one antenna for the transmission and reception of a wireless service provider’s RF signals. Depending on the particular DAS network architecture and the environment in which it is deployed, DAS nodes may include equipment in addition to the antennas, e.g., amplifiers, remote radio heads, signal converters and power supplies.

2. A high-capacity signal transport medium (typically, fiber optic cable) connecting each DAS node back to a central communications hub site.

3. Radio transceivers or other head-end equipment located at the hub site that propagates and/or converts, processes or controls the communications signals transmitted and received through the DAS nodes.3

3 The HetNetForum, “Distributed Antenna Systems (DAS) and Small Cell Technologies Distinguished,” at 6 (Feb. 2013), available at http://www.thedasforum.org/resources/send/2-resources/24-das-and-small-cell-technologies-distinguished (visited April 12, 2016) [hereinafter, HetNetForum Feb. 2013]. Some DAS networks are configured as RF-to-optical-to-RF systems, in which equipment at the hub converts RF signals generated by the wireless service provider’s radio transceiver to optical signals that are transported via fiber optic cable to the DAS Nodes where the optical signal is converted back to RF in order to be transmitted via the remote antenna. Other configurations, typically used by Long Term Evolution (LTE) operators, utilize an optical driver-to-fiber-to-RF system configuration. In this scenario, optical output equipment at the hub drives light along the fiber to remote sites where, for the first time, the signal becomes an RF signal. The transportation of the wireless service provider’s signal, no matter the configuration, can stretch many feet or many miles depending on the system design and may span multiple municipalities or other local jurisdictions. Id. See also Implementation of Section

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DAS networks can be configured to support multiple wireless service providers

deploying a variety of frequency bands and wireless service technologies in a small form-factor.

While DAS networks are often driven by the same or similar radio transceiver equipment that

wireless service providers us with macrocell sites, DAS solutions enable these resources to be

narrowly targeted to the areas where they are most needed. Nodes can be shifted to different

parts of the DAS Network as subscriber locations and demands shift.4 Since most DAS networks

are technology-agnostic, DAS network deployments are attractive to wireless service providers

that hold RF spectrum licenses across multiple frequency bands and use multiple wireless

technologies (as well as wireless service providers that anticipate upgrading to new technologies

such as 4G LTE).5

6002(b) of the Omnibus Budget Reconciliation Act of 1993; Annual Report and Analysis of Competitive Market Conditions With Respect to Mobile Wireless, Including Commercial Mobile Services, WT Docket No. 15-125, Eighteenth Report, DA 15-1487 ¶ 63 n.161, 25 FCC Rcd 14515, 14560 n.161 (2015) [hereinafter Eighteenth Wireless Competition Report]. 4 HetNetForum Feb. 2013 at 4. DAS networks should not be confused with “small cell” (i.e., picocell, microcell, metrocell and/or femtocell) technologies, which are also used to extend coverage and add capacity to wireless providers’ networks. Like DAS nodes, small cells transmit at signal power levels that are much lower than macrocells, are physically much smaller than macrocells, and are typically mounted or installed in the public right-of-way at low elevations when deployed outdoors. However, small cell solutions are typically deployed piecemeal to provide coverage or enhance capacity in small areas with a single wireless communications technology for a single wireless carrier. In contrast, the distributed architecture of a DAS network – including the design and configuration of the high capacity fiber optic network providing interconnectivity and the ability to operate large numbers of DAS nodes from a central hub location – allows the typical DAS network to provide more robust, scalable, flexible and efficient solutions to a wider range of capacity and coverage challenges than small cells. A DAS network can be deployed to simultaneously accommodate multiple wireless frequencies and technologies for two or more wireless service providers. DAS networks can also be designed or relatively easily retrofitted to handle 2G, 3G and 4G commercial frequencies that operate in a range from 700 to 2500 MHz, as well as public safety UHF and VHF frequency bands (150 and 450 MHz band channels). HetNetForum Feb. 2013 at 4. 5 HetNetForum Feb. 2013 at 6-7.

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DAS networks are attractive solutions because they are scalable and flexible. DAS

antennas can be placed on utility poles, buildings, or traffic signal poles, in areas where

constructing towers is not feasible or wireless traffic demands are too great to be met solely with

fewer, larger macrocells.6 A DAS network can be deployed outdoors or within large buildings or

partially enclosed structures, and can range from two to hundreds of DAS nodes.

Each DAS node typically transmits RF signals at much lower power levels than is

common for macrocell sites. Outdoor DAS nodes are typically attached to utility poles or similar

structures in the public rights of way at heights that are relatively low and uniform, consistent

with the smaller coverage area for each DAS node.

For purposes of the current inquiry, it is important to note that DAS networks are not

merely the antennas that are deployed at the remote DAS nodes. As explained above, a DAS

network requires, in addition to the antennas and other equipment installed at each DAS node,

high capacity transport facilities and head-end sites with signal processing, conversion and/or

amplification equipment. Conversely, it is important to note that neutral-host DAS networks are

not the equivalent of wireless service providers’ systems. A neutral-host DAS facility is a

separate mini-network operating seamlessly within a wireless service provider’s radio network

(or within the networks of multiple providers), comprising a combination of antennas, backhaul

facilities and associated transmission equipment.

A DAS network may be deployed and owned by a single wireless service provider,7 a

private property owner with particular on-premises communications needs (such as an enterprise

6 Eighteenth Wireless Competition Report ¶¶ 63-64, 25 FCC Rcd at 14559-14560. 7 DAS systems deployed and operated by commercial mobile radio service (“CMRS”) providers are not the subject of the Commission’s inquiry in this docket. Such systems are part of CMRS providers’ networks and are beyond the Commission’s jurisdiction.

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customer, or a building or venue owner), or – the subject of the current inquiry – a third-party

neutral-host DAS network service provider such as a CAP. As in the case of traditional cell

towers, many if not most DAS facilities are owned and operated by independent companies

rather than by wireless service providers.8

DAS CAPs typically provide “RF Transport Service”9 or “Dedicated Point-to-Point

Permanent Virtual Circuit Transport Service”10 to wireless service providers pursuant to tariff.

The service uses optical signaling over dedicated transport facilities to provide wireless service

providers with links to DAS nodes from which they can radiate RF coverage.11 While the

configurations of DAS networks vary, they generally require the customer (i.e., the wireless

service provider) to collocate equipment at the head end/hub to transmit and receive the

customer/wireless service provider’s RF traffic to and from the antennas at remote DAS nodes.12

8 See Eighteenth Wireless Competition Report ¶ 65, 25 FCC Rcd at 14561. 9 See, e.g., ATC Outdoor DAS, LLC, Pa. PUC Tariff No. 1, § 5.2 (Orig. Sheet No. 27); Crown Castle NG East, Inc. Pa. PUC Tariff No. 1, § 3.1 (Orig. pg. 30); Mobilitie, LLC, Pa PUC Telephone Tariff No. 1, § 3.1 (Orig. pg. 32); SQF, LLC Pa. PUC Tariff No. 1, § 3.1 (Orig. pg. 17). 10 See, e.g., ExteNet Outdoor Networks (fka Clearlinx Network Corp.) Pa. PUC Telephone Tariff No. 1, § 3.1 (Orig. pg. 28); Public Wireless, Inc. Pa. PUC Tariff No. 1, § 4.1 (Orig. Sheet 30). 11 ATC Outdoor DAS, LLC, Pa. PUC Tariff No. 1, § 5.2.1.A (Orig. Sheet No. 27) (“RF Transport Services utilize optical technology, including multi-wavelength optical technology over dedicated transport facilities to provide Customers with links to radiate RF coverage.”); see Crown Castle NG East, Inc. Pa. PUC Tariff No. 1, § 3.1.1.A (Orig. pg. 30) (same); Mobilitie, LLC, Pa PUC Telephone Tariff No. 1, § 3.1.1.A. (Orig. pg. 32) (same); SQF, LLC Pa. PUC Tariff No. 1, § 3.1.1.A (Orig. pg. 18) (same); see also ExteNet Outdoor Networks (fka Clearlinx Network Corp.) Pa. PUC Telephone Tariff No. 1, § 3.1.1 (Orig. pg. 28) (“The RF/Optical conversion equipment converts Customers' RF signals into optical signals, and places those signals into a PVC that traverses Company DAS network facilities between the Head End and one or more Points of Presence….”); Public Wireless, Inc. Pa. PUC Tariff No. 1, § 4.1 (Orig. Sheet 30) (same). 12 See, e.g, ExteNet Outdoor Networks (fka Clearlinx Network Corp.) Pa. PUC Telephone Tariff No. 1, § 3.1.1 (Orig. pg. 28) (“The Head End contains Customers’ circuit terminating equipment, Base Transceiver Station and related peripheral equipment, as well as Company’s and/or Customer’ s RF/Optical conversion equipment.”); SQF, LLC Pa. PUC Tariff No. 1, § 3.1.1.B

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In this way, the RF signals are generated and received by the wireless service provider’s own

equipment (i.e., the wireless service provider’s collocated transceiver and the wireless service

provider’s end-user handset), and the DAS CAP “provides optical transit services for Customer

[i.e., wireless service provider] RF signals.”13

DAS technology thus provides wireless service providers with an important means of

increasing both bandwidth capacity and network call capacity. By increasing bandwidth, DAS

networks enhance wireless customers’ access to broadband services. By increasing network call

capacity, DAS networks increase the number of wireless calls that can be completed in a specific

geographic area, and thus reduce the potential for dropped or failed calls during periods of

intense network usage, such as at large public gatherings or during public emergencies. The

increased bandwidth and call capacities made possible by DAS provide important public safety

benefits. The increased call capacity enables a greater volume of calls, including emergency

calls, and the additional bandwidth facilitates access to advanced services, eventually including

next-generation emergency services. By allowing wireless service providers to greatly expand

their capacity, DAS networks generate significant benefits for Pennsylvania consumers.

(Orig. pg. 18) (“RF Transport Services connect Customer-provided wireless capacity equipment to Customer-provided or Company provided bi-directional RF-to-optical conversion equipment at a hub Facility…. At the remote end, Customer or Company provided RF-to-optical conversion equipment allows bi-directional conversion between optical signals and RF signals.”). 13 ATC Outdoor DAS, LLC, Pa. PUC Tariff No. 1, § 5.2.2.A (Orig. Sheet No. 27); Mobilitie, LLC, Pa PUC Telephone Tariff No. 1, § 3.1.1.B. (Orig. pg. 32) (same); see Crown Castle NG East, Inc. Pa. PUC Tariff No. 1, § 3.1.1.B (Orig. pg. 30) (similar); SQF, LLC Pa. PUC Tariff No. 1, § 3.1.1.B (Orig. pg. 18) (similar).

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III. THE PUC HAS THE AUTHORITY AND RESPONSIBILITY TO REGULATE CAPS OFFERING DAS SERVICES

A. CAPs That Provide DAS Service Are “Public Utilities” Under Pennsylvania Law

The Pennsylvania Public Utility Code (the “Code”) defines “public utility” to include the

following:

(1) Any person or corporations now or hereafter owning or operating in this Commonwealth equipment or facilities for:

* * *

(vi) Conveying or transmitting messages or communications, except as set forth in paragraph (2)(iv), by telephone or telegraph or domestic public land mobile radio service including, but not limited to, point-to-point microwave radio service for the public for compensation. 14

The referenced exception in paragraph (2)(iv) removes wireless service providers from the

definition and thus from PUC regulation:

(2) The term does not include:

(iv) Any person or corporation, not otherwise a public utility, who or which furnishes mobile domestic cellular radio telecommunications service.15

A DAS CAP is obviously a “person … owning equipment or facilities for … [c]onveying

or transmitting messages or communications … for compensation.” While they do not market

their services the general public, under Pennsylvania precedent a person provides “public” utility

service within the meaning of the statute when she or he offers service to “any limited portion”

of the public; “the fact that only a limited number of persons may have occasion to use [the

14 66 Pa. C.S. § 102 (“Public Utility,” (1)(vi)). 15 Id. § 102 (“Public Utility,” (2)(iv)).

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service] does not make it a private undertaking if the public generally has a right to such use.”16

As “carriers’ carriers,” DAS CAPs offer their services to any member of the limited portion of

the public that comprises wireless service providers operating in Pennsylvania. Although the

number of persons who might have occasion to use their service is limited, DAS CAPs are

therefore “public utilities” under the Code, unless the RF optical transport service they provide

falls within the exception for “mobile domestic cellular radio telecommunications service.”17

The term “mobile domestic cellular radio telecommunications service” is not defined in

the Code. However, the Commission properly views the term as synonymous with the federal

term, “commercial mobile radio service” (“CMRS”).18 Section 332 of the Communications Act

defines “commercial mobile service” as any “mobile service” that is provided for profit and

makes interconnected service available to the public or to a substantial portion of the public.19

The commercial mobile service provisions of the Act are implemented under section 20.3 of the

FCC’s rules, which employs the term “commercial mobile radio service.”20 Section 20.3 defines

16 Borough of Ambridge v. Pa. PSC, 165 A. 47, 49 (Pa. Super. 1933); see, e.g., Waltman v. Pa. PUC, 596 A.2d 1221, 1223 (Pa. Cmwlth. 1991) (“The test for determining whether utility services are being offered ‘for the public’ is whether or not such person holds himself out, expressly or impliedly, as engaged in the business of supplying his product or service to the public, as a class, or to any limited portion of it, as contradistinguished from holding himself out as serving or ready to serve only particular individuals.”) (quoting Drexelbrook v. Pa. PUC, 418 Pa. 430, 212 A.2d 237, 239 (1965)); id. at 1224 (“The private or public character of a business does not depend upon the number of persons who actually use the service; rather, the proper characterization rests upon whether or not the service is available to all members of the public who may require the service.”) (quoting C.E. Dunmire Gas Co., Inc. v. Pa. PUC, 413 A.2d 473 (Pa. Cmwlth. 1980)). See also Warwick Water Works, Inc. v. Pa. PUC, 699 A.2d 770 (Pa. Cmwlth. 1997) (finding that the existence of a relationship above and beyond that of a service provider and customer tends to show the private nature of the service).) 17 66 Pa C.S. § 102 (“Public Utility,” (2)(iv)) 18 PUC DAS Order at n.4. 19 47 U.S.C. § 332(d)(1). 20 47 C.F.R. § 20.3.

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“Commercial Mobile Radio Service” as a “mobile service” that is an “interconnected service”

provided to the public or a substantial portion of the public for compensation.21 Thus, whether

the DAS service provided by CAPs constitutes CMRS under federal law – and thus “mobile

domestic cellular radio telecommunications service” under Pennsylvania law – depends on

whether it is both a “mobile service” and an “interconnected service” under federal law. It is not.

DAS CAPs provide point-to-point transport services to wireless carriers, not retail end

users. DAS CAPs receive communications signals that their wireless service provider customers

hand off to them at fixed points, and then the DAS CAPs transport those signals over their fiber

optic facilities. The handoff may occur at the DAS CAP’s hub, where the wireless service

provider’s base station is collocated or connected, or it may occur at a DAS node when the signal

originates from a retail end-user’s mobile device registered on the wireless service provider’s

network. When an RF signal is transmitted from a mobile device to a DAS node, the signal is

handed over to the DAS CAP at the antenna, converted to light waves, and then transported

through the CAP’s optic network to the hub or head end. The signal is then converted back to an

RF signal and handed off to the wireless service provider at its base station. The wireless service

provider’s base station equipment ultimately controls the RF transmissions. When the

communication travels in the opposite direction, the wireless service provider’s base station

equipment originates signals that are handed off to the DAS CAP at its hub. The CAP then

transports the signals across its fiber optic lines, converts them back into RF near the DAS node.

The wireless provider’s base station controls the transmission of the RF signals from the antenna

to the end user’s mobile device.

21 47 C.F.R. § 20.3.

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The service provided by DAS CAPs is not CMRS, and DAS CAPs thus fail to qualify for

the CMRS provider exemption from the definition of “public utility” under the Code, because

DAS CAP service is not a “mobile service.” Section 3(27) of the Communications Act and

Section 20.3 of the FCC’s Rules, in turn, define the term “mobile service,” in pertinent part, as:

a radio communication service carried on between mobile stations or receivers and land stations, and by mobile stations communicating among themselves.22

DAS CAP service fails to satisfy this definition for two reasons.

First, DAS CAPs do not provide “mobile service” because they do not provide “radio

communication service.” The Communications Act defines “radio communication” as “the

transmission by radio of writing, signs, signals, pictures, and sounds of all kinds, including all

instrumentalities, facilities, apparatus, and services (among other things, the receipt, forwarding

and delivery of communications) incidental to such transmissions).”23 DAS CAPs do not

provide “radio communications service” because the service they provide is the transportation of

signals across their optical networks between the wireless service provider’s base station and the

antennas installed at the DAS nodes. As described above, although DAS CAP services are used

to help facilitate wireless service, the actual “transmission by radio” is performed by the wireless

service provider, not the CAP. The CAPs do not have any radios in their DAS facilities—all

radio equipment is provided by the wireless service provider, either in the form of its base station

or in the form of its end users’ mobile devices.

Second, DAS CAPs do not provide “mobile service” because they do not provide

communication between mobile stations or between mobile stations and land stations. A

22 47 U.S.C. § 153(27); 47 C.F.R. § 20.3 (emphasis added). 23 47 U.S.C. § 153(33) (emphasis added).

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“mobile station” is defined by the Communications Act as “a radio-communication station

capable of being moved and which ordinarily does move.”24 DAS CAPs provide transport

between fixed points, i.e., the wireless service providers’ equipment at the CAP’s head end/hub

and the antennas at the DAS nodes. Neither the base station facilities nor the antennas

“ordinarily… move,” and therefore they are not “mobile stations” within the meaning of the Act.

Since DAS CAPs do not provide “radio communications service,” and even if they did,

they do not do so between “mobile stations” or between mobile stations and land stations, they

do not provide a “mobile service” within the meaning of the Communications Act. Because

DAS CAPs do not provide a “mobile service,” they do not provide CMRS under federal law.

And, because DAS CAPs do not provide CMRS, they do not provide “mobile domestic cellular

radio telecommunications service” within the meaning of the exception to the definition of

“public utility.”25

DAS CAPs do not provide CMRS, and therefore fail to qualify for the exemption from

the definition of “public utility,” for the separate and independent reason that DAS CAP service

is not an “interconnected service.” Section 332(d)(2) of the Communications Act states that “the

term ‘interconnected service’ means service that is interconnected with the public switched

network (as such terms are defined by regulation by the [FCC]).”26 The FCC has defined

“interconnected service” as “a service that is interconnected with the public switched network, or

interconnected with the public switched network through an interconnected service provider, that

gives subscribers the capability to communicate to or receive communication from all other users

24 47 U.S.C. § 153(28). 25 See PUC DAS Order at n.4; 66 Pa. C.S. § 102 (“Public Utility,” (2)(iv)). 26 47 U.S.C. § 332(d)(2).

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on the public switched network.”27 The transport service offered by DAS CAPs does not meet

this definition because it does not offer its subscribers, i.e., wireless service providers, the

capability of reaching “all other users on the public switched network.” Instead, it offers the

much more limited capability of carrying traffic between points within the subscriber’s own

network. As the FCC has explained, an interconnected service does not include “any interface

between a licensee's facilities and the public switched network exclusively for a licensee's

internal control purposes.”28 Therefore, even if DAS CAPs provided “mobile service” – which

they do not – they still would not provide CMRS under federal law because they do not provide

“interconnected service.”

Since DAS CAPs do not provide CMRS, they do not provide “mobile domestic cellular

radio telecommunications service” within the meaning of the Code’s exception to the definition

of “public utility.”29 Therefore, since they do transmit communications for the public for

compensation, DAS CAPs are, in fact, “public utilities” as that term is defined by the

Pennsylvania Public Utility Code.30

27 47 C.F.R. § 20.3. 28 In the Matter of Appropriate Regulatory Treatment for Broadband Access to the Internet over Wireless Networks, 22 F.C.C. Rcd. 5901, 5916-17 (2007) (footnotes omitted). 29 See PUC DAS Order at n.4; 66 Pa. C.S. § 102 (“Public Utility,” (2)(iv)). 30 66 Pa. C.S. § 102 (“Public Utility,” (1)(vi)).

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B. The PUC Has the Authority and Responsibility to Regulate Many Aspects of DAS CAPs’ Provision of Service

1. The Public Utility Code Gives the PUC Extensive and Exclusive Regulatory Authority Over DAS CAPs, Except to the Extent Such Authority Is Preempted by Federal Law

As public utilities, DAS CAPs cannot provide service without the approval of this

Commission, “evidenced by its certificate of public convenience, first had and obtained.”31 Once

a certificate has been issued, the Commission’s regulatory authority over public utilities such as

DAS CAPs is both extensive and exclusive:

[T]he Commonwealth, through the Public Utility Code and its predecessor statutes, gave the PUC all-embracing regulatory jurisdiction over the operations of public utilities. See County of Chester v. Phila. Elec. Co.; Duquesne Light Co. v. Upper St. Clair Twp. “If each [local government] were to pronounce its own regulation and control over electric wires, pipelines and oil lines, the conveyors of power and fuel could become so twisted and knotted as to adversely affect the welfare of the entire state.” County of Chester, 420 Pa. at 425, 218 A.2d at 333. “It is for that reason that the [l]egislature has vested in the [PUC] exclusive authority over the complex and technical service and engineering questions arising in the location, construction and maintenance of all public utilities facilities.” Id. at 426, 218 A.2d at 333.32

Therefore, the Commission is not only permitted, but required, to continue regulating DAS

CAPs, except to the extent such regulation has been preempted by federal law.

2. Federal Law Preempts Certain Aspects of Private Utility Pole Attachment and DAS Node Siting

Limited preemption of state law has occurred in two areas relevant to DAS CAPs: (i)

access to poles, ducts, conduits or rights-of-way owned or controlled by other utilities, and (ii)

the siting of DAS nodes. First, the federal “pole attachment act,” codified as section 224 of the

31 66 Pa. C.S. § 1102(a)(1). 32 PECO Energy Co. v. Twp. of Upper Dublin, 922 A.2d 996, 1003 (Pa. Cmwlth. 2007) (emphasis and alterations by PECO Energy court).

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Communications Act,33 requires a private utility to provide telecommunications providers with

nondiscriminatory access to any pole, duct, conduit or right-of-way owned or controlled by it.34

The Act directs the FCC to implement and enforce the pole attachment provisions of the Act.35

Therefore, the PUC’s regulatory authority over DAS CAPs does not extend to the attachment or

deployment of CAP facilities (DAS nodes, fiber optic cable, junction boxes, etc.) to, on or in

poles, ducts, conduit or rights-of-way owned or controlled by private utilities.36 Second, the FCC

has recently determined that the limitations on local zoning authority imposed by the

Communications Act,37 and the FCC’s implementing regulations (in particular, its “shot clock

ruling”)38 override inconsistent state and local land use law with respect to DAS siting

applications.39

The federal regulation of access to private utilities’ poles, conduits and rights of way and

the federal restrictions on state and local regulation of DAS nodes siting are, of course, binding

33 47 U.S.C. § 224. 34 Id. § 224(f). 35 Id. § 224(b). 36 The Act also provides a “reverse preemption” procedure by which states may retain regulatory authority over the rates, terms and conditions of pole attachments. 47 U.S.C. § 224(c). It is CTIA’s understanding that Pennsylvania has not exercised its rights under this provision. 37 47 U.S.C. § 332(c)(7). 38 In Re Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review and to Preempt Under Section 253 State and Local Ordinances that Classify All Wireless Siting Proposals as Requiring a Variance, FCC No. 09-99, 24 FCC Rcd 13994 (Declaratory Ruling Released Nov. 18 2009) [hereinafter Shot Clock Ruling]. The FCC Shot Clock Ruling presumptively set the time frames of what constituted “a reasonable period of time” for a city to act in response to an application to occupy a municipal right of way. Shot Clock Ruling ¶ 37. 39 Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, etc., WT Docket No. 13-238 et al., Report and Order, FCC 14-153, at ¶213 n.593, ¶271 (rel. Oct. 21, 2014) [hereinafter, 2014 Wireless Infrastructure Order].

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on Pennsylvania and this Commission. However, CTIA submits that federal preemption in these

areas, while strong, is also quite narrow. There are many aspects of the “optical transit services”

provided by DAS CAPs that have nothing to do with private utility pole attachments or the siting

of DAS nodes. The Pennsylvania General Assembly has charged this Commission with

regulation of all other aspects of the public utility service provided by DAS CAPs, and this

authority and responsibility may only be set aside if they somehow conflict with, and therefore

are preempted by, other provisions of federal law.

3. State Regulation of CAPs Deploying DAS Facilities Does Not Contravene Sections 253 or 332(c)(3) of the Communications Act

The Commission has asked whether its continued regulation of DAS CAPs runs afoul of

sections 253 or 332(c)(3)(A) of the Communications Act. It does not.

Section 253 of the Communications Act, entitled “Removal of Barriers to Entry,”

provides, in pertinent part, as follows:

a) In general. No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.

(b) State regulatory authority. Nothing in this section shall affect the ability of a State to impose, on a competitively neutral basis and consistent with section 254 of this title, requirements necessary to preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers.40

In determining whether to issue a certificate of public convenience, the Commission must

determine whether the applicant possesses the requisite legal, financial and technical fitness to

40 47 U.S.C. § 253.

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provide the service at issue.41 Judicious application of this requirement does not have the effect

of prohibiting the ability of any entity to provide a telecommunications service, as is

demonstrated by the fact that the Commission has applied a streamlined version of the

certification requirement to telecommunications providers, including CLECs, IXCs and CAPs,

without serious challenge for twenty years. Continuing to do so will not violate section 253(a).

Moreover, section 253(b) actually affirms state commissions’ regulatory authority over DAS

CAPs in all areas except private utility pole attachments and DAS node siting. The Public

Utility Code charges the Commission with the responsibility of ensuring that a public utility

fulfills its statutory obligation to “furnish and maintain adequate, efficient, safe, and reasonable

service and facilities” and “make all such repairs, changes, alterations, substitutions, extensions,

and improvements in or to such service and facilities as shall be necessary or proper for the

accommodation, convenience, and safety of its patrons, employees, and the public.”42 This

dovetails precisely with the Communications Act’s preservation of state regulatory authority to

impose and enforce competitively-neutral requirements necessary “to protect the public safety

and welfare, ensure the continued quality of telecommunications services, and safeguard the

rights of consumers.”43

Section 332(c)(3)(A) provides, in pertinent part, that “no State or local government shall

have any authority to regulate the entry of or the rates charged by any commercial mobile service

41 See, e.g., In re UGI Utilities, Inc., 101 Pa. P.U.C. 737 (Aug. 18, 2006). “Although fitness or ability are not specific statutory requirements, they have developed by judicial and administrative interpretation of Section 1102 of the Code, 66 Pa. C.S. § 1102, and Section 1103(a) of the Code.” Mobilfone of Northeastern Pennsylvania, Inc. v. Pennsylvania Pub. Util. Comm'n, 67 Pa. Cmwlth. 219, 222, 446 A.2d 1001, 1003 n.1 (1982) (citations omitted). 42 66 Pa. C.S. § 1501. 43 47 U.S.C. § 253(b).

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or any private mobile service.” This does not apply to the PUC’s regulation of DAS CAPs

because, as shown above, the service they provide is not a “commercial mobile service” (i.e.,

CMRS) within the meaning of the Communications Act.

As shown, neither Section 253 nor Section 332(c)(3)(A) of the Communications Act

prevents the Commission from exercising its jurisdiction to certificate DAS providers in

Pennsylvania.

IV. THE PUC SHOULD CONTINUE TO ISSUE CERTIFICATES OF PUBLIC CONVENIENCE TO CAPS DEPLOYING DAS FACILITIES IN ORDER TO PROMOTE PENNSYLVANIA’S TELECOMMUNICATIONS POLICIES

The PUC’s policy of issuing certificates of public convenience to CAPs deploying DAS

facilities has produced concrete benefits for Pennsylvania wireless service consumers. For

example, DAS CAP Crown Castle NG has deployed systems in Philadelphia’s historic and

central business districts and in Pittsburgh’s Oakland neighborhood.44 In Philadelphia, the city’s

large population, tourism industry, and proximity to other major metro areas created a need for

shareable, high-performing wireless infrastructure that could support a variety of innovative

voice and data services for local residents and handle frequent surges in traffic from visitors.

The new network also had to adhere to the city’s requirements, including preserving the

surroundings of its historic district. Traditional wireless infrastructure solutions were not

available to meet all of these needs. Crown Castle deployed hundreds of nodes that enabled

wireless service providers to add capacity needed to handle a growing wireless user base,

significant traffic surges, and the addition of new services, including enhanced voice quality,

44 Crown Castle NG describes its product as a “small cell solution.” Regardless of nomenclature, the product is a neutral-host, small node, scalable system typical of a DAS.

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faster file transfer rates, and the ability to support video.45 Crown Castle’s Pittsburgh

deployment met similar challenges and produced similar benefits.46 Conversely, there is no

evidence of systemic problems caused by certificating DAS CAPs. Occasional individual

problems, such as abuse of authority or failure to pay assessments, can and should be addressed

by the PUC on an individual basis.47

CTIA respectfully submits that refusing to issue certificates of public convenience to

DAS CAPs would contravene Pennsylvania law and policy. As demonstrated above, DAS CAPs

are “public utilities” under the Public Utility Code, and the General Assembly has thus charged

the Commission with responsibility to regulate their entry and provision of service.48 Failure to

continue to do so would constitute an abdication of that responsibility. Even if the Public Utility

Code did not require the Commission to stay the course – and it does – the Commission should

continue to do so on the grounds that it is sound public policy. As shown above, DAS CAPs

have helped wireless service providers to improve the services they provide to Pennsylvania

consumers. In the absence of any evidence of countervailing public harm, a change in the

Commission’s practice of issuing certificates of public convenience to DAS CAPs would not be

in the public interest.

45 Crown Castle, “Case Study – Central business district in Philadelphia” (2015) available at http://www.crowncastle.com/Projects/easset_upload_file71_5274_e.pdf. (visited Apr. 19, 2016) (copy attached as Exhibit A). 46 Crown Castle, “Case Study – A faster network for a fast-paced neighborhood” (2015), available at http://www.crowncastle.com/Projects/easset upload file817 7746 e.pdf (visited Apr. 19, 2016) (copy attached as Exhibit B). 47 See, e.g, Voltz v. ATC Outdoor DAS, LLC, Docket No. C-2012-2305428, Order Denying Preliminary Objections (ALJ Colwell, Sept. 14, 2012). 48 See 66 Pa. C.S. §§ 501 (general powers), 502 (enforcement proceedings), 701 (procedure on complaints), 1101 (beginning of service), 1102 (enumeration of acts requiring certificate), 1303 (adherence to tariffs), 1501 (character of service and facilities), and 1505 (proper service and facilities established on complaint).

V. CONCLUSION

CTIA appreciates the opportunity to submit these comments on this important issue. For

all of the foregoing reasons, CTIA respectfully requests that the Commission continue its

practice of issuing certificates of public convenience to Competitive Access Providers deploying

distributed antenna systems.

Respectfully submitted,

Benjamin L. AronDirector — State Regulatory AffairsCTTA — THE WIRELESS ASSOCIATION®

1400 16th Street, NW, Suite 600Washington, DC 20036

April 19, 2016

Arfaa, Attorney ID #57047HAWKE MCKEON & SNISCAK LLP100 N. 10th StreetHarrisburg, PA 17101(717) 236-1300cmarfaa@hmslegal.com

CounselforCTIA — THE WIRELESSASSOCIATION®

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EXHIBIT A

EXHIBIT B