A Pennsylvania appeals court recently reinstated the status of Distributed Antennae System network operators (“DAS”) as public utilities, after concluding that DAS fall within the definition of public utilities set forth in 66 Pa. C.S. § 102(1)(vi) (facilities that “convey or transmit messages or communications.”). In so doing, the Commonwealth Court overturned a March, 2017 Public Utility Commission (“PUC”) decision that found that DAS were exempt from the PUC’s “public utility” definition. The Commonwealth Court’s decision reinstates the public utility status that DAS operators had enjoyed from 2005 until the PUC’s 2017 decision.

DAS network systems are independently-owned networks through which infrastructure such as antennae and related wireless signal conversion equipment are installed on existing municipal light posts, utility poles, buildings and other structures in the public right-of-way. These systems receive and transmit end user wireless traffic in the form of voice, data, video and internet traffic to Wireless Service Providers (“WSPs”) such as Verizon, AT&T, Sprint, and the like. DAS networks receive end-user wireless traffic information through their antenna and equipment. They then convert the traffic into the protocol of the WSP, and transmit the data through ground-based cabling to the WSP’s network. DAS network operators do not directly transmit wireless service to the public and do not maintain a direct financial relationship with the customers of the WSPs.

In Crown Castle NG East, LLC v. Pennsylvania Public Utility Commission (Docket No. 697 C.D. 2017), the Commonwealth Court held that the PUC Order conflated the transportation services DAS network operators provide to their WSP customers with the commercial services the WSP provides to its retail end-user cell phone customers. The Court held this was contrary to PUC’s regulations, prior Commonwealth Court’s decisions and was inconsistent with federal law and case law decided by other jurisdictions.

As a result of the Commonwealth Court’s ruling, DAS network operators are once again considered public utilities. Municipalities should be aware that any zoning ordinances enacted or amended after the 2017 PUC Order regulating DAS network operators may be declared invalid in whole or part.

For further information on the impact of this ruling on municipalities’ ordinances and policies, please contact Lamb McErlane attorney Alex Baumler, Email: abaumler@lambmcerlane.com, Phone: 610-701-3277.

Alex is an associate in the municipal practice group where he handles municipal, land use, property tax, administrative, environmental law and finance matters. He also works with townships, boroughs, school districts and municipal authorities, as well as corporations and individuals.