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PUC Rules That DAS System Providers Are Not Public Utilities – Municipal Law Alert

alex_baumler

On March 2, 2007, the Pennsylvania Public Utility Commission issued an Order (Docket No. M-2016-2517831) resulting from its self-initiated review of the issues relating to the Commission’s existing regulation of Distributed Antennae System Providers (“DAS”) as public utilities. After an extensive notice and comment process, the PUC determined that the Commission does not have jurisdiction under the Public Utility Code to issue Certificates of Public Convenience to DAS providers seeking to offer service in Pennsylvania. The Commission held that DAS network providers are properly excluded from the definition of “public utility” based on the fact that the predominant feature of their systems is the provision of wireless service that is both mobile and interconnected in nature. As a result, moving forward, the PUC will not issue Certificates to DAS providers and will determine which of the current Certificates will be revoked with regard to the portion that relates to wireless services.

Although DAS networks can be constructed in numerous configurations, these systems commonly 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 which receive and transmit end user wireless traffic in the form of voice, data, video and internet traffic to wireless service providers (“WSP”). At their most basic level, DAS networks receive end user wireless traffic through antenna and equipment, convert traffic into the protocol of the WSP, and transmit data through some form of ground-based cabling to the WSPs network.

Over the past 10 years, the Commission has regulated DAS providers under the notion that DAS systems provided a physical point-to-point transmission without any recognition of the wireless and antennae-based components of the systems. Traditionally, WSPs (such as Verizon, AT&T, Sprint, etc.) have constructed towers with wireless antennae in order to extend and boost the ability of end users to transmit wireless radio signal transmissions to their networks. However, with the proliferation of both cellular communication devices and end users over the past decade, WSPs have increasingly turned to DAS providers as a fast, efficient and cost-effective means of providing greater wireless signal capacity and speed through dense siting of DAS antennae and equipment on structures located in the public right-of-way. Accompanying the shift to DAS networks has been the attendant issue that DAS equipment must be installed in many more locations in order to function effectively.

Accordingly, in light of the PUC’s ruling, if they have not already, municipalities and elected officials should begin the process of updating their existing ordinances to clearly provide for regulation of DAS networks placed in the public right-of-way. Absent a legislative change to the Public Utility Code, the Order of the PUC is considered final.

For further information on the impact of this ruling on ordinances and policies, please contact
Alex J. Baumler, abaumler@lambmcerlane.com, 610-701-3277.

Alex is an associate in the municipal practice group at Lamb McErlane 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.