Category Archives: Uncategorized

Potential Pitfalls Under the Work For Hire Doctrine

Whether your business is well-established or in its initial start-up phase, having an engaging website and a prominent online presence is critical for your business to remain competitive in today’s world. But there are many potential legal pitfalls for the unwary; one of which is the question of who owns the intellectual property rights to the photographs, written content (including blog entries such as this one), and source code contained within the website. Like most legal questions, the answer is not always clear.

Under U.S. copyright law, an original work that is fixed in a tangible medium of expression is generally the property of the author who creates it. Not everything can be copyrighted. Types of “work” that can be protected by copyright include literary, pictorial, and graphic works, among some others. The original author, or someone deriving rights from the original author, has the exclusive right to control the use of the work, including reproduction, distribution, transfer, and display of the work.

An important exception to this general rule is the “work made for hire” doctrine. If a work, such as a photograph or written content that is included on your company’s website, is created by an employee within the scope of employment, then the employer – and not the employee – is automatically the exclusive owner of the copyright to the work, absent an agreement between the parties to the contrary. For example, this blog entry is owned by Cuddy & Feder LLP, not by yours truly.

Your company would be well-advised to ensure that your written agreement with your independent contractor include words of assignment so that, even if the work does not constitute a “work made for hire” for copyright purposes, the independent contractor agrees to assign all right, title, and interest in and to the intellectual property in the work to your company.

The work for hire doctrine becomes more complicated when the author of the work is not an employee but an independent contractor. The distinction between an employee and an independent contractor is governed by the rules of agency law and is frequently a fact-specific issue. Although there is no bright-line rule, a crude rule-of-thumb is that the greater the level of control exercised over the creation of the work by the other party, the more likely the author will be considered an employee of the other party.

The distinction between an employee and an independent contractor is important because the work of an independent contractor will be considered a “work made for hire” only if:

  • the work is specially ordered or commissioned;
  • the parties expressly agree in a signed writing that the work will be considered a “work made for hire”; and
  • the work is one of the following nine types of work designated under Section 101 of the federal Copyright Act (title 17 of the U.S. Code): (i) a contribution to a collective work, (ii) a part of a motion picture or other audiovisual work, (iii) a translation, (iv) a supplementary work (such as literary forewords, pictorial illustrations in a book, charts, or indices), (v) a compilation, (vi) an instructional text, (vii) a test, (viii) answer material for a test, or (ix) an atlas. Without all three of these conditions satisfied, the work will not be considered “for hire” and the original author will retain copyright to the work.Even if the work is specially commissioned from an independent contractor and there is a signed written agreement that expressly states that the work is made for hire, as is often the case, the original author may potentially retain the copyright if the work does not fall within one of the nine types designated under Section 101 of the Copyright Act. While certain written content is included, there are notable absences from the statutory list, including photographs.

As a result, if your company hires a photographer as an independent contractor to take new shots for your company’s website and you enter into a written signed agreement that expressly states that the photographs are “works made for hire,” the photographer may be able to retain ownership of the copyright to the photographs and may therefore be able to reproduce or display the photos in other media and could even sell the photos to a third party without your notice or consent. To avoid that outcome, you should ensure that the independent contractor assigns all intellectual property in the work to your company.

Your company would be well-advised to ensure that your written agreement with your independent contractor include words of assignment so that, even if the work does not constitute a “work made for hire” for copyright purposes, the independent contractor agrees to assign all right, title, and interest in and to the intellectual property in the work to your company. Here is some sample language for this issue:

The Contractor and the Company consider the products of the services to be rendered by the Contractor pursuant to this Contract (the “Work”) to be a work made for hire. The Contractor agrees that the Work and all rights therein are the sole and exclusive property of the Company, including without limitation all rights under or arising from U.S. copyright law.

If the Work is not considered to be a work made for hire under applicable law for any reason, then the Contractor hereby irrevocably and unconditionally assigns and transfers to the Company and its successors and assigns all right, title, and interest in and to the copyright in the Work and all other and further works based on, derived from, or incorporating the Work, and any and all copyright applications and registrations relating thereto, including all renewals and extensions thereof, without further notice or limitation.

Of course, there are several further legal issues that your company should address when working with independent contractors who are providing services or material for your website or marketing campaign, including protecting your company against potential liability in the event the contractor’s work infringes any copyright or proprietary rights of third parties or contains material that is otherwise contrary to the law.

Consult a knowledgeable attorney to avoid these pitfalls and ensure that your company’s marketing campaign is not hindered by any unnecessary legal disputes over the ownership of copyright.

Cell tower zoning and permitting lawyers – New York cell tower case victory

Cuddy & Feder Obtains Second Circuit Victory for Homeland and Verizon in Cell Tower Zoning and Permitting Case

In a significant appellate decision interpreting the Telecommunications Act (TCA), the Second Circuit Court of Appeals last week ruled in favor of Cuddy & Feder’s client Homeland Towers and Verizon, clearing the way for construction of a new 150’ cell phone tower in the Town of East Fishkill, New York.

Our Firm served as lead counsel on the original zoning application and continued in that role in the subsequent litigation seeking to compel the issuance of permits. Back in January 2015, the District Court struck down the Town’s denial of Homeland and Verizon’s original application under Section 332(c)(7) of the TCA and ordered the Town to issue any and all zoning and other permits for the facility within 30 days. Despite the District Court’s order, the Town refused to issue the required permits and instead, appealed the decision to the Second Circuit.

This is the first time that a Second Circuit decision under TCA Section 332(c)(7) held there was in fact an effective prohibition in service and swept away bureaucratic delay tactics to order immediate issuance of a new tower permit. In affirming the decision below, the Circuit Court adopted the District Court’s reasoning and found it had “properly granted summary judgment in favor of Homeland and Verizon on their claim that the Town’s denial of their application constituted an effective prohibition of wireless services in violation of the TCA.” Going forward, this decision will provide strong ammunition for Section 332(c)(7) effective prohibition claims under the TCA and constitutes the first Second Circuit guidance on the true meaning of significant gaps in service under the TCA.

Importantly, the Second Circuit credited Verizon’s technical radio frequency reports and scientific data, and rejected the Town’s assertion that it “rebutted plaintiffs evidence of a significant coverage gap with an informal driver survey that purposed to show a lack of dropped calls in the disputed area”.

We think the outcome here demonstrates how the legal standard in the Second Circuit is shifting in a way that will help facilitate timely infrastructure build-out by the wireless industry. While the Town had premised its decision to deny the original permit request on an ad hoc and insufficiently documented assertion that there were no gaps in local cell service, Homeland and Verizon compiled a compelling set of technical and scientific data demonstrating that there was a clear lack of reliable service in the relevant service area and a lack of alternatives to a tower. As our partner Chris Fisher explains it, under this new holding, the focus in future disputes under Section 337(c)(7) in the Second Circuit case will now be on the reliability of service based on objective criteria instead of a mere allegation otherwise. Importantly, the Second Circuit credited Verizon’s technical radio frequency reports and scientific data, and rejected the Town’s assertion that it “rebutted plaintiffs evidence of a significant coverage gap with an informal driver survey that purposed to show a lack of dropped calls in the disputed area”. The Court settled the point that the neighbors’ non-expert call data was not evidence sufficient to refute scientific radio frequency analyses.

The Second Circuit’s decision also concludes, for the first time in express terms, that an applicant seeking relief for alleged violations of the TCA only needs to prevail on one of its TCA claims to succeed on a litigation. Indeed, the Second Circuit expressly stated that because it affirmed “the district court on the ground that the denial of the plaintiffs’ application constituted an effective prohibition of wireless services, we need not reach the remainder of the defendants’ arguments on appeal” (e.g., whether the Town’s denial was supported by substantial evidence).

So in an immediate way, we are pleased that the Circuit Court decision clears the way for Homeland Towers and Verizon Wireless to provide customers with more reliable wireless services along the Taconic State Parkway, as well as to commercial and residential areas of the community. More broadly, we see this as a meaningful step forward in shaping the applicable legal framework, helping reduce the regulatory barriers to services being provided in all wireless infrastructure scenarios including towers, DAS, small cells, whether it be coverage or capacity situations.

Please click here to download the text of the Second Circuit’s decision in Verizon Wireless & Homeland Towers, LLC v. Town of East Fishkill.

Eligible Facility Modifications & Permitting – A Status Update from the Field

Enactment of federal legislation in 2012 and subsequent FCC proceedings and rulemaking this past year ushered in a new legal dynamic for state and local permitting for certain classes of wireless facilities. Section 6409(a) of the so-called Spectrum Act created “collocation by right” and a national standard to facilitate the rapid build-out of such wireless infrastructure 1. By streamlining the review and approval process at the local and state level for minor installations on towers and other structures, Congress intended to “promote the deployment of the network facilities needed to provide broadband wireless services” in furtherance of its initial foray into the field with adoption of Section 332(c)(7) of the Communications Act adopted some twenty years ago.2

Perhaps not unexpectedly, the FCC initiated a rule making proceeding and published an order in October of 2014 to clarify and implement various rules for applicants and municipal permitting agencies.3 The FCC Wireless Infrastructure Order among other things established detailed criteria and requirements applicable to state and local permitting for “eligible facilities”. In its order, the FCC ruled that:

  • Eligible facility modifications can include changes at existing communications tower sites, rooftop facilities and DAS systems, among other types of wireless infrastructure;
  • Within 60 days from the date of filing, a State or local government must approve an application covered by Section 6409(a) of the Spectrum Act; and
  • A State or local government may only require applicants to provide documentation that is reasonably related to determining whether the eligible facilities request meets the requirements of Section 6409(a) of the Spectrum Act and associated FCC regulations.

The FCC’s implementing regulations were subsequently published and became effective earlier this year.4 Legal challenges from the municipal sector are still pending with oral argument in Montgomery County v. FCC (Case Nos. 15-240 and 15-1284, 4th Circuit) just held on October 28, 2015.

One Year Anniversary of the FCC’s Wireless Infrastructure Order

Last month marked the first anniversary of the FCC’s Wireless Infrastructure Order. While appeals make their way through the courts, we thought a report from the field might help answer the questions being most frequently asked by clients about what the Spectrum Act and FCC Wireless Infrastructure Order have meant in practice since that time. In our experience, Section 6409 and FCC Regulations have achieved a great deal and shifted some of the regulatory burdens onto municipalities when permitting collocation and site modifications that are eligible facilities. Indeed, while the FCC did not completely preempt zoning for eligible facility modifications, the order itself and rationales articulated for the FCC’s regulations have made for a substantially constructive dialogue between the wireless industry and state and local government agencies. This in turn has lead to numerous successes for our clients in further streamlining permitting for eligible facility modifications in jurisdictions we’ve practiced in for over 20 years.

Connecticut

In Connecticut, authority over telecommunications tower facilities rests exclusively with the Connecticut Siting Council, a state agency. Over a decade ago, Connecticut adopted progressive legislation and collocation by right regulations, which are widely known in the industry as “exempt modifications” or “tower sharing requests”. Nevertheless, in 2015 a State legislative bill was presented that would have required Siting Council hearings on all applications it received. Working with our clients and colleagues, we were able to educate legislators about the FCC Wireless Infrastructure Order and ultimately avoided State legislation that would have conflicted with the Spectrum Act.5 That coupled with our representation of the plaintiff in New Cingular Wireless PCS, LLC v. City of West Haven, No. 3:11cv1967, 2013 WL 3458069 (D. Conn. July 9, 2013) in which the court upheld a wireless carriers’ right to municipal permits for a rooftop collocation have preserved and protected the benefits Section 6409(a) of the Spectrum Act provided to the wireless industry.

At Cuddy & Feder, we find that even just a phone call from one of our telecommunications practice attorneys in such instances can mean all the difference in avoiding timely and costly delays and getting our clients straight to a building permit.

In 2015, we also successfully advocated in support of a Siting Council interpretation of State statutes and its adherence to the FCC’s Wireless Infrastructure Order related to tower extensions up to twenty feet in height. A year prior, our office had sought an as applied ruling from the Council and in fact obtained approval for a client’s tower extension without the requirement for a public hearing based on Section 6409(a) of the Spectrum Act.6 After the FCC’s order was issued in late 2014, the Siting Council initiated its own proceeding in which we participated formally. The result was a declaratory ruling in March of 2015 that exempts eligible tower modifications from public hearings and streamlines approvals for tower extensions under 20 feet in height.7 The Siting Council now reviews and approves such submissions routinely in a 30-45 day timeframe consistent with its consideration of exempt modifications and tower sharing requests, a substantial reduction in time and cost for permitting eligible facility modifications in Connecticut.

New York

The New York “picture” is a bit more complicated than Connecticut as jurisdiction for towers and non-tower sites rests solely with municipalities. Advocacy for streamlining permitting for eligible facility modifications is generally town by town and case by case. With the support of our clients, we have nevertheless advocated for zoning interpretations and waivers and obtained numerous referrals to the Building Department for administrative approval as part of building permit applications. Candid communications with municipal attorneys, planners, and building officials have been key to our successes and in some cases the results have exceeded expectations. In Yonkers, one of New York’s biggest cities, our telecommunications team successfully represented a client before the Zoning Board of Appeals (ZBA) and obtained a citywide interpretation that eligible facility modifications did not require amended special permit applications or variances and must be processed and approved via an administrative review by City planning staff and the building department. These types of advancements on a local level, yield long term cost savings for the wireless industry above and beyond what federal regulations allow and set important precedents that eligible facility requests should just be administrative review prior to issuance of a building permit.

These New Dynamics Support Further Municipal or State Legislative Action

Upon adoption of the FCC’s regulations in 2015, it seemed logical to conclude that, while Congress did not expressly preempt zoning for eligible facility modifications, municipalities would embrace federal standards and criteria and conform immediately to federal laws. While that has in many instances been true in our experience, there are still numerous municipalities in New York that require zoning, consultant reviews and significant submission requirements for eligible facility modifications. In talking with municipal representatives in such cases, they most often point to their outdated local wireless regulations and zoning as the reason they require zoning permits procedurally versus any true substantive interest in regulating eligible facility modifications.

Petitioning for code changes on a town by town basis is, however, simply not something the wireless industry is prepared to undertake. Additionally, municipalities are unlikely to initiate amendments to their own codes given the time and cost related to legislative revisions. This despite collaborative discussions at continuing legal and planning education events over this past year where Cuddy & Feder attorneys educated municipal officials regarding Section 6409 of the Spectrum Act. (Click here to see a CLE presentation Cuddy & Feder lawyers made recently at Touro Law Center entitled “Planning and Permitting Mobile Broadband Communications Infrastructure: Is It Time to Amend Your Local Code?”) As such, it’s our opinion that state legislation to implement and/or mirror Section 6409 of the Spectrum Act and make eligible facilities “by-right” would be appropriate, cost effective and yield even greater certainty for both applicants and municipalities in states like New York.

What’s 2016 Look Like for EFR Permitting?

Are we destined to have to zone many eligible facility modifications in places like New York in 2016? Probably. In the absence of municipal or state action, the answer is likely yes. Only strategic communications at the municipal level can help overcome procedural barriers, onerous submission requirements and streamline permitting consistent with Congressional intent and FCC regulations. At Cuddy & Feder, we find that even just a phone call from one of our telecommunications practice attorneys in such instances can mean all the difference in avoiding timely and costly delays and getting our clients straight to a building permit. Give us a call next time you are being told to zone an eligible facility modification and we’ll see if we can avoid that result altogether with an interpretation of existing local laws. And please let us know if you are interested in supporting efforts to push for legislation in New York State.

Data Center Zoning - Data Center Development, Permits & Zoning

Due Diligence and Zoning for Data Centers

Our modern society has a voracious demand for data and we are increasingly turning to data centers to satisfy this need. The digital economy, growth in mobile devices and applications, increased availability and reliance on the internet of things (IoT) all translate into tremendous growth of cloud services and an explosion in data center traffic. The latest update to Cisco’s Global Cloud Index, which annually assesses network traffic trends around the world, forecasts that “global data center traffic is projected to triple between 2014 and 2019, with cloud traffic within data centers forecast to quadruple during that period.”1 In North America this translates to data center traffic reaching 4.5 zettabytes2 per year (373 exabytes per month) by 2019, up from 1.5 zettabytes per year (124 exabytes per month) in 2014.3

Increased demand means a greater need for infrastructure typically requiring governmental approvals from various corners: municipal, county, state and perhaps even federal agencies. Moving through these processes expeditiously is critical to successful execution of any business plan and effectively navigating these processes can make a tremendous difference as to when, or even if, a new asset comes online. Some communities already have data center zoning provisions. Middletown Connecticut, Newark Delaware and Loudon County Virginia are some examples and many other top tier market areas such as New Jersey are well versed in data center development.4 But increased demand for infrastructure likely means increased development of data center infrastructure in communities that may not have experience with some of the industry’s unique needs. Existing zoning laws may not provide a neat “fit” for these needs and a good deal of education about data center development and operation may be required in the process.

Begin with Definitions & Zones

Data centers as an industry and a physical development are relatively new and are not typically contemplated in many zoning codes as a separate and distinct use. When searching for properties data center developers are wise to first review permitted uses and describe their project in ways that pair with those defined uses. In part this is because certain zoning districts disallow particular uses and it is critical that an applicant’s proposed use is permitted in the zone in which the property is classified. It is also important because certain uses can trigger particular requirements that may not benefit or make sense for a data center as an enterprise. For example, it may appear simple to qualify as an “office” under a particular zoning code, but providing for the code prescribed parking requirements for that use may limit development on the property and in the end be wholly unnecessary as traditional office complexes require much more parking than data centers typically require. An understanding of the applicable definitions and zoning requirements up front can pay long-term dividends.

How is the Project Regulated?

Depending on the scale of the data center different levels of regulatory review may apply. Contrary to industry leasing standards based on power consumption, regulators still value square footage as a critical metric for evaluating any development and its impacts on a community. Many municipal codes have specific thresholds of square footage that trigger additional or perhaps more complicated regulatory review. For example, a smaller data center in an existing building will likely require only building department/code enforcement review.

Early consultation with professionals who appreciate the unique needs of a data center coupled with due diligence and zoning proficiency can be a key and valuable differentiator.

By contrast, a new building, addition or even a smaller modular unit external to an existing building may require site plan review by a planning board or commission and require a much longer lead time to approval. The same technology housed outside the same office building in a temporary or semi-permanent/scalable module can be regulated in a much more widely variable manner. Depending on the nature of the project, a portable or semi-permanent module may be classified as an accessory use to the primary building on site. There may be concerns with the visual appearance of such modules, with many reviewing boards and commissions predisposed to dislike the appearance of pre-fabricated units. This can leave an applicant in a quandary as to how to get approvals for something which comes to them from vendors “as is”. Careful planning can achieve some desired mitigation including placement and screening.

Some zoning codes have site plan and special permitting standards specifically applicable to any development of a larger scale.5 This will require additional information and analysis regarding potential impacts to the environment including storm water and animal habitat. In these circumstances an applicant often must demonstrate compliance with particular criteria before approval and issuance of a building permit. There can be many variables involved in this process and it is important to understand at the outset what approvals are required for a given project.

Community Desire & Direction

Some communities are willing partners actively looking to host data centers within their borders. Other communities will have little to no experience with data centers and zoning provisions may not be favorable to an easy answer. It may present a challenge to bring existing real estate assets online in communities that do not have zoning provisions to accommodate the particular use and have concerns about permitting the use in the community. This can become much more cumbersome if there is opposition from members of the public. Typical site plan review and special permit review processes require a public hearing where the public may air concerns and cite potential issues with development. Achieving success in these circumstances can potentially require significant investment of time and “soft costs” requiring appearance of development teams at meetings and coordination of amended plans. Every community is different and a thorough understanding of issues up front can mean the difference between a project moving ahead on schedule, facing extensive delays or not receiving approval.

Conclusion

Data centers are moving to the edge of the network to support the accelerating demand for cloud services and speed. Increased decentralization of these physical assets will generally mean migration out of the traditional urban core or industrial park setting for many new data center facilities. It’s there where zoning and acquisition due diligence will play a key role with other typical factors such as reliable and redundant power and fiber optic cable plant. To avoid some unnecessary pitfalls and streamline opportunities, data center developers will need to increasingly borrow approaches from the real estate community. Early consultation with professionals who appreciate the unique needs of a data center coupled with due diligence and zoning proficiency can be a key and valuable differentiator

Demystifying the Small Cell Regulatory Environment

Over the past 30 years, wireless communications have revolutionized the way Americans live, work and play. The ability to reliably connect with one another in a mobile environment has proven essential to the public’s health, safety, welfare and rapidly evolving Internet of Things (IoT) economy. But wireless networks and their current architecture are simply not equipped to support the speed and throughput needed to provide reliable wireless services. Gartner forecasts that 25 billion connected devices will be in use by 2020 while some experts predict we’ll need 1,000 times more bandwidth within the next 10 years alone.

Who among us hasn’t experienced slow network connections or weak signals in an office building between 9-5 when thousands of users may be connected and utilizing data or during a sporting event when thousands of fans are simultaneously trying to post selfies? And what happens when its not just screens that are connected but things? It begs the question – how do we enhance service and capacity to accommodate wireless demand in office buildings, residences, campuses, stadiums, roadways/subways or in urban settings, not to mention the coming Internet of Everything (IoE)?

The answer may lie with “small cell” technology. Infonetics Research forecasts the global small cell market to grow to nearly $2.5 billion by 2018 and, indeed, we’re witnessing unprecedented growth in the advancement and deployment of new technologies with an eye towards IoT and smart cities. Verizon’s ThingSpace and AT&T Foundry have unveiled their visions for an IoT future. Another prominent movement in the space is Google’s Sidewalk Labs, which recently took over LinkNYC – an effort to bring free public Wi-Fi to NYC via citywide Wi-Fi kiosks. Undoubtedly, commercial small cell deployments figure heavily into the mix. So why then are some small cell deployments – the very same ones that would help deliver the “smart city” – encountering municipal regulatory resistance?

Part of the problem is confusion and the need for municipal education. There are no clear regulatory standards that define what “small cells” actually are. Furthermore, there’s a significant lack of understanding regarding the technology itself, the need for small cell deployment, in general, and – if the hurdle of understanding “need” is cleared – how small cell deployments should be approached.

So What Are “Small Cells” – Anything Smaller Than a Tower?

Let’s start by underscoring what “small cells” are not for municipal purposes. Small cells are not “towers”, “femtocells,” “Wi-Fi routers,” or even some “rooftop sites” where carriers may just be installing less than the full complement of a carrier’s FCC spectrum typically seen in a “macrosite.” Small cells may be, but are not technically synonymous with “Distributed Antenna Systems” (“DAS”) either. Indeed, while the term “DAS” in particular is commonly used interchangeably with “small cells” they in fact differ widely when it comes to actual infrastructure applications.

DAS, whether indoor or outdoor, is more typically a whole system with numerous antennas and RF/Optical equipment integrated to cover larger geographic areas outdoors or in large buildings over 500,000 square feet in size. More technically focused, a small cell might better be referred to as a “picocell” or “microcell” where the service can be focused in a relatively small geographic area indoors or outdoors through one piece of equipment no bigger than a pizza box.

Notably, over the past decade, the outdoor DAS industry has matured and gone through much of the same regulatory cycle at a municipal level that macrosites have experienced for the past 30 years. Yet, we’re still in a phase of municipal education and development of best practices to speed DAS deployments.

We submit that “small cells” in 4G LTE deployments are “indoor or outdoor units where the radio frequency equipment and transmitting elements are consolidated into one piece of hardware that can be affixed to a building, light pole or other structure with a power and fiber or microwave fronthaul/backhaul feed.” It remains to be seen what a “small cell” will be for 5G deployments anticipated by year 2020.

If able to deploy DAS and small cells quickly and cost effectively, mobile operators can supply service with surgical precision, ease network congestion, utilize limited spectral resources more efficiently, increase capacity, and ultimately, provide a better customer experience. Notably, over the past decade, the outdoor DAS industry has matured and gone through much of the same regulatory cycle at a municipal level that macrosites have experienced for the past 30 years. Yet, we’re still in a phase of municipal education and development of best practices to speed DAS deployments.

While we in the industry typically know the difference between DAS and small cells, municipal officials simply do not and, as a result, will continue to lump all wireless infrastructure together for regulatory purposes, which is absolutely the wrong approach. So are we destined for the same long winding regulatory road for small cell deployments?

Municipal Regulatory Climate for Small Cells

State enabling legislation for zoning or use of rights-of-way often falls under the auspices of local municipalities for local regulation and implementation. As such, small cell deployments like macrosites are subject to widely varying regulatory regimes.

In the outdoor arena, many municipalities will treat a small cell similar to a full rooftop macrosite, or even a new tower, and most zoning code enforcement officers will simply resort to what are likely outdated regulations passed in the wake of the 1996 Telecommunications Act.

Clearly, small cells, which are physically small and located at low elevations without any visual impact, don’t deserve the same level of regulatory scrutiny as towers. At its core, a small cell installation functions much in the same way as an outdoor Wi-Fi router, which uses unlicensed spectrum, and should therefore not be subject to costly, outdated regulatory schemes. As noted in Crown Castle NG East v. Town of Greenburgh, N.Y., 2013, “for even DAS in the ROW, the small and “de minimus” visual impact should not, and cannot, place small scale technology on the same regulatory level as a macro site.”

What is urgently needed is for municipal regulatory authorities and policy makers to reconsider how DAS and small cell deployments are authorized and regulated in order to realize economic development and social benefits for local industry and citizenry. Zoning and the past 30 years of macrosite deployments simply should not provide the foundation for the legal, planning and policy review of DAS and small cell deployments.

Navigating The “Process”

At Cuddy & Feder, we’re working on the front lines with mobile operators and their infrastructure partners to navigate many of the uncharted regulatory waters of local-level DAS and small cell deployments and to demystify the landscape for municipalities in an effort to avoid unnecessary, lengthy and costly review processes that are burdensome for all parties.

By educating municipal officials using recent developments in federal policy that seek to advance wireless technology rapidly, we’ve shifted many projects from potentially “bad” outcomes to “great” ones for our clients and municipal stakeholders.

Advocacy

It is vital for our industry to continue to draw attention to these issues and advance, federal, state, and municipal laws to keep pace with technological change. To this end, my colleague, Chris Fisher, Chair of our Telecommunications Practice Group, was recently appointed Chair of the Committee within PCIA’s Innovation and Technology Council dedicated to educating municipalities and developing a streamlined process or “best practices” model whereby industry and local authorities can better interpret and apply recent changes to the regulatory landscape and work collaboratively to remove unnecessary obstacles to small cell deployment.

If we solve some of the regulatory mystery that exists today and stimulate deployment opportunities locally, we set the stage to provide consumers and local economies what they want and need and open the door for 5G and IoT which will depend even more on smaller cell technologies and ubiquitous services. And if we’re truly to deliver on the promise of “smart cities,” there’s still much work to be done to advance small cells.

Mobility & A New Pioneering Era

It’s been some thirty years since the first commercial cell phone calls were made in NYC ushering in a new era in communications. It was the 80s and many of us recall the “brick” – first generation analog technology with the clarity of a phonograph and a price point only the “Wolves of Wall Street” could afford. It was a call from McCaw Cellular, led by one of our industry’s great entrepreneurs, Craig McCaw, that introduced “mobility” to Cuddy & Feder.

It was a pioneering time then with the need for legal assistance with real estate, zoning and environmental challenges impacting the first cellular deployments. While the firm, quite frankly, had never heard of a “cell tower” before, its experience in representing cable companies, fiber optic wholesalers, and local exchanges allowed us to quickly tool a practice to support this new cellular industry. Early victories in classifying cellular providers as public utilities for local zoning purposes and brokering municipal and property owner relationships helped the cellular industry succeed in its first deployments.

It’s hard to imagine that several decades later, we’re in the fourth generation of wireless technology deployments, and already talking about 5G deployments as we approach 2016!

So where are we at this moment in time? It’s clearly an exciting time to be in mobility and I submit we are in a new “pioneering” era of wireless – this one quickened by technology and convergence. The wireless industry continues to grow, meet new challenges and deliver on new opportunities. Connected cars, the Internet of Things or Everything, M2M, mobile health, and new applications are driving further innovation for businesses and consumers and contributing to economic growth. Technologies including MIMO, location based services, WiFi and others are accelerating the tremendous pace of change in mobility. New infrastructure solutions are also meeting head on the need for network densification with new modalities of delivering wireless services including iDAS, oDAS, and small cells.

Yet, perhaps not unsurprisingly, state and local barriers to mobility continue to challenge our industry. Now more than ever, people with credibility and knowledge in our industry must step forward and lead effective advocacy at the state and local level.

For our part, we led early victories to categorize tower infrastructure as a public necessity for zoning purposes, were lead counsel in several precedent setting cases since adoption of the Telecommunications Act twenty years ago, have stopped municipal consultant abuses and delays, and furthered the Shot Clock and 6409 through judicial and municipal interpretations. We continue to advocate daily for the industry in administrative proceedings from historic preservation, zoning, environmental and siting permits, and in support of state legislation to streamline siting and open up new lands for infrastructure. We are also negotiating with property owners and municipalities on real estate deals and ROW consents for fiber, DAS and small cells. Yet, perhaps not unsurprisingly, state and local barriers to mobility continue to challenge our industry. Now more than ever, people with credibility and knowledge in our industry must step forward and lead effective advocacy at the state and local level.

Because these barriers persist, industry needs more than just “lawyers”, it requires counselors and advocates with Cuddy & Feder’s depth of experience and knowledge who can help accelerate solutions effectively. It’s why as a firm we give back through our volunteer time, scholarship, mentoring and participation in organizations that can make a positive change in delivering on the promise of mobility. Whether it’s PCIA, as leaders; members of its Innovation and Technology Council, as founders; President and Regulatory Chairs of the New York State Wireless Association; or as NYC Chair of the Women in Wireless Leadership Forum; our wireless attorneys are more than just counselors, problem solvers, and litigators. We’re advocates for our industry – and look forward to pioneering the new legal solutions needed for this next generation of wireless.