NOTICES

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

[47 Pa.B. 1931]
[Saturday, April 1, 2017]

Public Meeting held
March 2, 2017

Commissioners Present: Gladys M. Brown, Chairperson, statement follows, dissenting; Andrew G. Place, Vice Chairperson, statement follows, dissenting; John F. Coleman, Jr., statement follows; Robert F. Powelson; David W. Sweet

Review of Issues Relating to Commission Certification of Distributed Antennae System Providers in Pennsylvania; M-2016-2517831

Order

By the Commission:

 Before the Commission for consideration is the resolution of a formal proceeding to address the operations of providers of distributed antennae systems (DAS) networks, the relevant regulatory oversight of the Commission under applicable Pennsylvania and federal law, and other attendant issues related to DAS networks. The Commission has reviewed the comments and reply comments, and all the information provided therein. This order summarizes the information and presents our conclusions regarding the continued certification of DAS networks as public utilities.¹ In summary, the Commission concludes that operators of DAS networks are not public utilities under the Public Utility Code and, therefore, are not subject to Commission jurisdiction and are not entitled to a certificate of public convenience (CPC) issued by the Commission.

 The Commission also concludes that it is not required by federal law to certificate DAS network providers and that revocation of DAS network CPCs will have no impact on the rights of DAS networks already protected by federal law. Revocation of the CPCs will only deprive the DAS networks of the right to exercise eminent domain and of exemption from local zoning ordinances, which are rights held by certificated public utilities in Pennsylvania.

Background

 The Commission regulates the entry of telecommunications carriers offering public utility service in Pennsylvania through the adjudication of applications CPCs. These applications are filed pursuant to Section 1101 of the Public Utility Code (Code).² In fact, a telecommunications carrier that is a public utility as defined by Pennsylvania law cannot operate lawfully in Pennsylvania without a CPC from the Commission. In reviewing the nature, operations, and legal status of various new forms of telecommunications carriers, the Commission has determined that there are many unanswered questions related to several telecommunications carriers that provide and operate DAS networks in Pennsylvania. To date, the Commission has issued CPCs to several telecommunications carriers that utilize DAS to provide service in Pennsylvania. More recently, the Commission approved the application of SQF, LLC (SQF) to operate as a competitive access provider (CAP) in Pennsylvania.³ SQF utilizes DAS to offer its service and was granted authority to provide both interstate and intrastate wholesale services in Pennsylvania.

 Over the last ten years or so, the Commission has certificated DAS network operators,⁴ but without any discussion or analysis of their jurisdictional status. Often, the applicant did not identify itself as a DAS operator, but rather described its intended service as simply providing ''point-to-point'' transport without any recognition of the radio (wireless) component of the service or, if so, described it as ''RF [radio frequency] transport'' also without recognizing the essential antenna facilities of the DAS network.⁵ The DAS network industry has evolved from a small niche player to prominence as a major driver of the wireless industry's build out of end-user customer facing facilities.

 More recently, the Commission has become concerned about the jurisdictional nature of the service provided over DAS networks and other attendant issues related thereto. Accordingly, in supporting the Commission's decision to certificate SQF in Pennsylvania, the written statement of Commissioner John F. Coleman, Jr. noted that SQF's application was unopposed and that, by granting the application, the Commission was treating SQF like the other DAS providers that had come before the Commission requesting a CPC. Commissioner Coleman's statement in SQF also noted that there was a legitimate question as to whether the Commission can certificate providers of DAS networks. Specifically, Commissioner Coleman questioned whether a DAS provider was a ''public utility'' as defined by Pennsylvania law that can be certificated or whether a DAS provider was expressly excluded from the definition of ''public utility'' and, thus, cannot be certificated under state law. This statement also questioned whether the Commission is required under federal law to certificate a DAS provider, including whether denying a CPC to an otherwise fit DAS provider prohibits or has the effect of prohibiting DAS service in Pennsylvania in violation of federal law.⁶ Furthermore, the DAS applications for authority that the Commission had previously granted were all uncontested. This means that the legal and factual issues surrounding whether to certificate DAS providers have yet to be fully and openly vetted in an on-the-record proceeding before the Commission.

 Consequently, by Order entered February 23, 2016, the Commission initiated a formal investigatory proceeding to examine the issues surrounding the certification of providers and operators of DAS networks as public utilities in Pennsylvania.⁷ The issues that were to be examined included, among other things: (1) whether DAS providers are public utilities under Pennsylvania law that can be certificated;⁸ (2) whether the Commission should or is required to certificate these carriers in furtherance of federal law; (3) whether DAS service is an interstate service, intrastate service, or both; and (4) whether a CPC is needed to confer property rights to DAS providers to site the facilities/equipment used to provide DAS service, including access to rights-of-way and eminent domain. Our examination also includes other aspects of our regulatory oversight for DAS providers, such as tariffs and complaints, and any other considerations that an interested party believes should be examined. In order to focus the scope of the proceeding, the Commission issued information requests in an Appendix attached to the Order and requested comments and reply comments from interested parties. Lastly, commenters were also welcome to provide any additional input on relevant issues that had not been otherwise specifically raised in the Appendix to the Order.

 The questions the Commission issued in the Appendix to Order regarding DAS networks are as follows:

1. What is Distributed Antenna System (DAS) service?

a. Explain what DAS service is, including the following: (1) the network components used to provide DAS service; (ii) the demarcation point between a DAS provider's network and the provider's network that it serves, as determined in legal agreements or otherwise; and (iii) how traffic is collected, transported, and delivered over a DAS network, including any protocol conversions that occur along the transmission path of the traffic.

2. Whether a DAS provider is a ''public utility'' as defined by Pennsylvania law that can be certificated by the Commission.

a. Does a DAS provider meet the definition of ''public utility'' under Section 102(1)(vi) of the Public Utility Code (Code) or is a DAS provider expressly excluded from the definition of ''public utility'' under Section 102(2)(iv) of the Code?

b. Is granting public utility status to DAS providers consistent with Commission precedent, including Commission certification of carriers that provide wholesale intrastate telecommunications service in Pennsylvania to retail Internet Service Providers and retail Voice over Internet Protocol Providers?

3. Whether the operations of a DAS provider can be certificated in Pennsylvania.

a. Is DAS service in Pennsylvania interstate service, intrastate service or both?

b. What is the legal and/or factual basis, if any, for the Commission to certificate a DAS provider in Pennsylvania that is engaged in the provision of interstate services only?

c. In reference to 3.b., please address the statutory definition of a ''public utility'' under Section 102(1) of the Code (''Any person or corporation now or hereafter owning or operating in this Commonwealth equipment or facilities for: . .'') in conjunction with Sections 102(1)(vi), 102(2)(iv), and 3012 (''[t]elecommunications service'') of the Code and whether these sources provide a basis for Commission certification.

d. Is the Commission preempted from certificating a DAS provider engaged in the provision of interstate service only under Section 104 of the Code and applicable federal law, including Section 152(a) of the Communications Act of 1934 and related case law?

4. Whether the Commission is required by federal law to certificate a DAS provider seeking a Certificate of Public Convenience (CPC) in Pennsylvania.

a. Does denying a CPC to a DAS provider prohibit or have the effect of prohibiting DAS service in Pennsylvania in violation of Section 253(a) of the Telecommunications Act of 1996 (TA-96)?

b. Does denying a CPC to a DAS provider violate Section 253(b) of TA-96, which preserves state authority to impose requirements, on a competitively-neutral basis, related to intrastate telecommunications services?

c. Does denying a CPC to a DAS provider violate any other federal statutory provision, any decision of the Federal Communications Commission, and/or any federal court decision?

5. Separation of DAS provider operations.

a. If the antenna equipment of a DAS provider used to collect wireless traffic is owned and/or operated by a separate legal entity (e.g., a subsidiary or affiliate) than the owner and/or operator of the wireline facilities/equipment used to perform the transport function, how, if at all, would this impact whether the owner and operator of the wireline transport function is a ''public utility'' under Pennsylvania law? Would such an arrangement facilitate the Commission's certification process for such providers?

b. What are the potential advantages and disadvantages with such an approach?

6. Whether public utility status is needed for a DAS provider to site its facilities/equipment used to provide service in Pennsylvania.

a. Explain how, if at all, the following rights under federal and/or state law are impacted if a DAS provider is not a public utility under Pennsylvania law: (i) the right of a DAS provider to access public rights-of-way to install its own poles/structures in Pennsylvania, to attach its own facilities/equipment to poles/structures owned by other entities in Pennsylvania, or to access their conduits; (ii) the right of a DAS provider to attach its own facilities/equipment to poles/structures in Pennsylvania owned by other, non-governmental entities, including public utilities, and/or access their conduits; and (iii) the right of a DAS provider to attach facilities/equipment to state or local government-owned poles/structures in Pennsylvania.

b. When DAS providers attach facilities/equipment to poles/structures or access conduits owned by non-governmental entities in Pennsylvania, including public utilities, is it the practice of the pole/structure owners to require the DAS provider to obtain a CPC from the Commission prior to allowing the attachment? If so, what is the legal basis for this practice?

c. Explain what impact, if any, conferring public utility status to DAS providers has on the property rights of state and/or local governments and/or private property owners in Pennsylvania.

7. What is the business value of a CPC to a DAS provider?

a. Is it the practice of a customer or potential customer in Pennsylvania to require a DAS provider to obtain a CPC from the Commission prior to entering into a business relationship with the DAS provider? If so, what is the legal basis for this practice?

b. Even if not required by customers or potential customers, is having a CPC from the Commission something that wholesale or retail customers or potential customers in Pennsylvania prefer prior to entering into a business relationship with a DAS provider? If so, why?

c. How do other state commissions deal with the applications and certifications of DAS providers?

8. DAS providers and wholesale interconnection/collocation.

a. Explain whether DAS providers interconnect with the Public Switched Telephone Network (PSTN).

b. To the extent DAS providers interconnect with the PSTN, explain whether they enter into wholesale interconnection and/or collocation agreements with Incumbent Local Exchange Carriers (ILECs) pursuant to Section 252 of TA-96 or obtain interconnection through commercial agreements with ILECs that are not approved by the Commission.

c. To the extent DAS providers interconnect with the PSTN, explain whether their wholesale interconnection and/or collocation agreements with ILECs utilize or potentially can utilize unbundled network elements or UNEs.

d. To the extent a DAS provider seeks to enter into a wholesale interconnection and/or collocation agreement with an ILEC that is subject to Commission approval, explain whether the failure to obtain a CPC from the Commission impedes or otherwise affects the commencement of negotiations with the ILEC for wholesale interconnection/collocation.

e. To the extent a DAS provider seeks to enter into a wholesale interconnection and/or collocation agreement with an ILEC that is subject to Commission approval, explain whether failing to obtain a CPC from the Commission impedes or otherwise affects the ability of the provider to timely and effectively obtain wholesale interconnection/collocation and hence, amounts to a barrier to entry under Section 253(a) of TA-96.

9. DAS providers and E911/911 Service.

a. Explain whether DAS providers transport or otherwise handle wireless 911/E911 call and data traffic where such traffic eventually needs to timely and reliably reach the appropriate public safety answering point or PSAP.

10. Assuming DAS providers are public utilities under Pennsylvania law, what services and rate elements should be included in a DAS provider's intrastate tariff with the Commission?

11. Assuming DAS providers are public utilities under Pennsylvania law, does the Commission have jurisdiction under Section 1501 of the Code or other applicable law to adjudicate informal and/or formal complaints filed at the Commission against DAS providers, including complaints involving the siting of DAS facilities/equipment?

12. Provide non-proprietary physical network diagram(s) of typical DAS provider network(s). Such diagram(s) should include appropriate legends, explain any technical terminology abbreviations, depict traffic flows, and depict interconnection and/or collocation arrangements with other telecommunications carriers or communications providers.

Investigation Order, Appendix (footnotes omitted).

 Interested parties filed comments addressing the Commission's several questions above.⁹ Replies to the comments were also filed.¹⁰

 The initial inquiry here is whether Pennsylvania law permits the certification of DAS network operators as public utilities and allows the issuance of CPCs as such. We next review the necessity of a CPC to the DAS operators' construction of facilities.

 Finally, if DAS networks are not public utility facilities under the Code,¹¹ then we need to identify next steps to address such an outcome.

 Based upon our review of the comments and reply comments, the Commission makes the following conclusions regarding the jurisdictional status of DAS networks: (1) DAS facilities are used to provide a ''wireless'' service; (2) DAS facilities furnish mobile domestic cellular radio telecommunications service and, hence, cannot be certificated as public utilities under the Code; and (3) DAS networks cannot take advantage of eminent domain and local zoning ordinance exemptions expressly conferred on public utilities in Pennsylvania certificated by the Commission.

Discussion

1. DAS Networks

 The Commission determines that DAS networks provide infrastructure on the end-user side of the traditional CMRS carrier's network. This network collects and delivers end-user wireless traffic on a wholesale basis to the retail CMRS carrier.¹² There are three main actors that interact with the DAS network: the retail CMRS provider;¹³ the DAS operator itself; and the retail, end-user customer. The retail CMRS provider, also called the wireless service provider (WSP) in the industry comments, is the DAS operator's customer.¹⁴

 At its most fundamental, a DAS network is composed of three main components:

 (1) Powered antennae and related signal conversion equipment that transmits (and receives) end-user wireless traffic and that converts the protocol (called the ''node'');

 (2) Some form of terrestrial transport (most likely fiber) that carries the traffic between the DAS and WSP networks; and

 (3) A connection between the two networks, usually located at the WSP's switch or a carrier hotel (called the ''hub'').¹⁵

 The DAS network operator's wireless antennae are placed on existing municipal light posts, utility poles, buildings, and other structures, often in the public right-of-way. DAS network operators also construct their own poles and facilities to support the antennae/node.¹⁶ DAS facilities allow WSPs ''to expand their networks in a fast, cost-effective and efficient manner.''¹⁷

 The WSP, not the DAS network operator, exchanges voice traffic with the public switched telephone network (PSTN).¹⁸ DAS business plans do not touch the safety and traditional interconnection issues with which the Commission is normally concerned. The DAS network is not responsible for the hand-off to the 911 emergency centers—the WSP is accountable for that. DAS operators also do not interconnect with other carriers or the PSTN—that also is handled by the WSP. DAS networks do not need phone numbers—numbering is the WSP's function.

 2. Issues Involving DAS Siting

 There are aesthetic and engineering advantages to the deployment of the low height antennae that the cell phone industry is increasingly utilizing either in their own systems or through independent, third-party DAS networks. CTIA articulates the industry transition well:

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 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.¹⁹

 As the FCC has noted, ''DAS deployments offer robust and broad coverage without creating the visual and physical impacts of multiple macrocells.'' Two years ago, the FCC noted that ''DAS and small-cell deployments are a comparatively cost-effective way of addressing increased demand for wireless broadband services, particularly in urban areas. As a result, providers are rapidly increasing their use of these technologies, and the growth is projected to increase exponentially in the coming years.''²⁰

The challenge of DAS deployment is principally one of land use: Although the facilities used in these networks are smaller and less obtrusive than traditional cell towers and antennas, they must be deployed more densely—i.e., in many more locations—to function effectively. As a result, local land-use authorities in many areas are facing substantial increases in the volume of siting applications for deployment of these facilities. This trend in infrastructure deployment is expected to continue, and even accelerate, as wireless providers begin rolling out 5G services.²¹

 At the urging of the wireless industry, Congress and the FCC have increasingly struggled with the associated wireless facility siting issues, attempting to find the line between the preservation of local zoning rights and the public's increasing demand for added wireless capacity. The FCC's 2009 Shot Clock Ruling²² prescribed specific time frames for municipal review and permitting of wireless towers so that wireless deployment would not be delayed or burdened by unreasonable municipal challenges to siting.²³ The FCC further directed that permit denials must be based upon ''substantial evidence,'' prescribed review of environmental impacts, prohibited discriminatory treatment, and established an accelerated judicial review of permit denials. As part of its consideration of the role of DAS facilities in its 2011 Pole Attachment Order,²⁴ the then-Chairman of the FCC acknowledged that ''DAS deployments use multiple antennas to extend wireless coverage and provide service more efficiently than conventional wireless antennas.''²⁵

 Next, in 2012, Congress passed the Spectrum Act,²⁶ which directed that a state or local government may not deny, and shall approve, any request for a modification of an existing wireless tower or base station.²⁷ The FCC's ensuing Wireless Infrastructure Order implemented this Act, as well as extended all prior zoning privileges to DAS facilities.

 Nor has all the action been at the federal level. At the end of 2012, the Pennsylvania General Assembly enacted the Wireless Broadband Collocation Act (Act 191), which provides for a streamlined approval process for certain qualifying wireless collocations, modifications and replacements of existing facilities, including DAS networks.²⁸ Act 191 extends the wireless industry's rights beyond federal law, including a definition of eligible facilities and a 90-day deadline for decisions on license approvals.

3. Regulation Of DAS Operators As Public Utilities

 Turning to the threshold jurisdictional inquiry, DAS networks meet the initial legal test of public utility status since they are operating facilities that convey or transmit messages or communications.²⁹ The more challenging question, however, is whether the DAS operators are doing so by the technology of ''mobile domestic cellular radio,'' a form of service that is expressly excluded from the definition of ''public utility.''³⁰

 Such technology-based regulatory differentiation is not unusual. The Pennsylvania General Assembly has also excluded cable phone and any other form of IP-based telecommunications from Commission jurisdiction except for very limited purposes not germane here.³¹ Indeed, by these various exclusions, the Commission has very limited jurisdiction over telecommunications services in Pennsylvania and focuses on traditional incumbent and competitive ''landline'' telephone offerings. No entity that uses facilities that provision mobile services, other than DAS network operators, has sought a CPC from us.³²

4. Wireless Service

 It is clear that DAS facilities are used to provide a wireless service. In its 2014 rulemaking that extended the wireless tower zoning reforms to DAS networks and their antennae, the FCC ruled that these are wireless facilities entitled to the same siting advantages created in the 1996 Telecommunications Act, the 2009 Shot Clock Ruling, the 2011 Pole Attachment Order, and the 2012 Spectrum Act.³³

 Specifically, the FCC stated that DAS ''is used to provide personal wireless service'' and the antennae installed by DAS network operators are wireless towers³⁴ for purposes of federal law. As it described in the Wireless Infrastructure Order:

We clarify that to the extent DAS or small-cell facilities, including third-party facilities such as neutral host DAS deployments, are or will be used for the provision of personal wireless services, their siting applications are subject to the same presumptively reasonable timeframes that apply to applications related to other personal wireless service facilities.³⁵

 The FCC's conclusion that DAS networks are facilities that utilize wireless (radio) technology in order to provide personal wireless service is persuasive.³⁶ The FCC sets the rules for CMRS compensation, availability of capacity, auctioning and management of spectrum, customer information, pole attachments, and all other things that are wireless. The regulatory classification of DAS by the FCC as a provider of ''personal wireless service'' is persuasive as we seek to answer the same question under state law.

 Nevertheless, the DAS operators contend in this proceeding that they are providing a landline service no different from the typical middle mile, point-to-point, ''backhaul service'' offered by almost every telecommunications carrier.³⁷ This position, however, is based upon an incomplete description of the DAS network. Simplified, it asserts that the radio frequency—the spectrum—is owned and transmitted by the retail WSP and only passively carried by the DAS carrier as a throughput on terrestrial facilities.

 There are several flaws with this line of reasoning. First, the view that the DAS antenna is passive because it does not generate signal is unreasonably restrictive. Even where the signal is generated at the head end (or hub), the DAS antenna transmits (or receives) the radio signal to (and from) the wireless end-user customer.³⁸ Moreover, the DAS operator's node provides other active functions such as RF-to-optical-RF signal conversion or simple RF conversion at the node/antenna.³⁹

 The DAS operator is operating equipment that plays a vital and active role in a wireless session by providing an antenna that directly interfaces with the end-user's wireless device—both sending and receiving radio signal. The DAS antenna receives RF at the node, converts it to digital or optical format for transport over a cable or fiber line, only to be converted back to RF at the hub and handed back to the WSP, or the CMRS carrier's ultimate end-user. The fact that the retail WSP holds title to the spectrum license or may generate the signal for the DAS network to carry does not diminish the active collection, conversion, and distribution of the wireless signal by the DAS network.

 Nor is it universally true among DAS operators that there is no operator-supplied radio involved or that the retail WSP generates the radio signal back at the hub, as some commenters assert.⁴⁰ For example, ExteNet de-scribes its network as supplying radios and generating the radio signal.⁴¹ The FCC notes that small cell operators,⁴² one form of microcells, supply radio transceivers at the node.⁴³

 There is no homogeneity among DAS networks.⁴⁴ As the PCIA warns, ''it would be a mistake to attempt to define DAS as a specific technological configuration currently deployed by a particular company.''⁴⁵ We agree that it would be an error to base our ruling on any one narrow view of a network.

 Rather, DAS networks should be defined by their functionality (the service furnished), not by any particular configuration of facilities. Our statute excludes from our jurisdiction any person that operates equipment that ''furnishes mobile domestic cellular radio telecommunications service.'' There is no requirement under our law that the service be a stand-alone offering. The term ''furnish'' as used in the statutory exception means (second definition) ''to provide'' or ''to supply.''⁴⁶ As previously discussed, DAS networks are used to furnish, supply and provide personal wireless services and, thus, meet this definition.

 We disagree with the proposition that DAS networks are just like the landline transport facilities that have been traditionally certificated by us. Stated simply, it is the DAS antennae that cause the crossover into the wireless realm and make the difference under Pennsylvania law. BCAP, representing the cable companies, states that ''backhaul transport service is separate and distinct from the antenna-based service offered by DAS operators that may also include a transport segment.''⁴⁷

 Our Investigation Order specifically asked the DAS carriers to identify ''the demarcation point between a DAS provider's network and the provider's network that it serves, as determined in legal agreements or otherwise. . . .'' ExteNet, the only commenter to respond to this question directly, reported that ''[t]he hub is traditionally the demarcation or 'meet-me' point between the DAS provider and WSP network. The parties may agree to a different point. In newer architectures, the demarcation point is located in the [WSP] carrier's facility.''⁴⁸ Based upon this explanation, we conclude that the DAS provider is responsible for the facilities that are located between the end-user's device and the WSP hub, not just from the antenna to the hub. This further buttresses the conclusion that DAS facilities are used to furnish a wireless service.

 In treating DAS facilities as wireless in nature, the FCC rejected the same arguments that the DAS operators now assert before us, namely that the DAS network is merely terrestrial back haul:

Some commenters argue that the shot clocks should not apply because some providers describe DAS and small-cell deployments as wireline, not wireless, facilities. The City of Eugene, Oregon, for example, argues that the Commission should not consider DAS a personal wireless service because one DAS provider has argued that its service is ''no different from, and indeed competes directly with, the fiber-based backhaul/private line service provided by Incumbent Local Exchange Carriers.'' This argument is not persuasive. Determining whether facilities are ''personal wireless service facilities'' subject to Section 332(c)(7) does not rest on a provider's characterization in another context; rather, the analysis turns simply on whether they are facilities used to provide personal wireless services.⁴⁹

 The wireless association's rebuttal to this citation is circular.⁵⁰ The FCC did not equivocate in applying the label of ''personal wireless service'' to DAS.⁵¹ The point made in the FCC's Wireless Infrastructure Order is that, to the extent a DAS operator employs the FCC's rules regarding siting, it agrees that it is providing ''personal wireless service.''

 State law also bears on this point. At the end of 2012, Pennsylvania enacted the Wireless Broadband Collocation Act (Act 191), which provides for a streamlined approval process for certain qualifying wireless collocations, modifications and replacements of existing facilities, including DAS.⁵² Act 191 extends favorable land use rules to and ''wireless telecommunications facilities'' beyond federal law.⁵³ DAS operators use these rules, which are applicable to ''equipment and network components, including antennas, transmitters, receivers, base stations, cabling and accessory equipment, used to provide wireless data and telecommunications services.'' Again, by taking advantage of the special siting rules applicable to wireless facilities, DAS carriers implicitly concede that their facilities are used to furnish a wireless service.

5. Mobile Service

 Continuing, because we propose to conclude that DAS facilities are used to furnish radio (i.e., wireless) services, the only remaining legal issue related to our jurisdictional inquiry is whether the service is ''mobile.''⁵⁴ The FCC has only ruled that DAS operators fall into the general category of ''personal wireless service'' but has not specified which of the three types are involved: ''commercial mobile services, unlicensed wireless services and common carrier exchange access service.''⁵⁵

 Whether the service is mobile or fixed turns on the end-user's equipment and whether it is mobile under the federal rules, which we will apply here. Incorporating the federal definitions into this analysis, commercial mobile radio is ''any mobile service (as defined in section 3) that is provided for profit and makes interconnected service available (A) to the public or (B) to such classes of eligible users as to be effectively available to a substantial portion of the public.''⁵⁶ Section 3(27) of the federal Communications Act defines a ''mobile service'' as ''radio communication service carried on between mobile stations or receivers and land stations, and by mobile stations communicating among themselves.''⁵⁷ The Act, in turn, defines a ''mobile station'' as ''a radio-communication station capable of being moved and which ordinarily does move.''⁵⁸

 The Commenters do not specify the type of consumer equipment with which the DAS networks communicate. Our view and the record of this case lead to the conclusion that the wireless communication is to mobile devices such as tablets and smart phones. The DAS operators' comments support this conclusion. The CTIA acknowledges that DAS network transmits ''the [radio] signals. . .to the end user's mobile device.''⁵⁹ In describing the operation of its network, Crown Castle acknowledges the ''radio transmissions between the Node [the DAS antenna] and a carrier customer's subscriber's mobile device.''⁶⁰

 The commenting DAS operators resist application of the term ''mobile'' on the grounds that they only provide ''transport service over fiber optic lines between stationary hubs and stationary nodes'' and deny providing ''a service between the Node and any consumer's mobile device.''⁶¹ This is a continuation of the position that a DAS network is exclusively using landline facilities to stream the WSP signal that the FCC expressly rejected in its Wireless Infrastructure Order and with which this Order concurs. This logic turns all definitions on their head. The large dishes on the macro towers are stationary also, but no one argues that these are part of a fixed, not mobile, service.

 Next, the DAS operators argue that they do not provide 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]).'''⁶² The DAS operators, elsewhere in their comments, concede that calls that flow through their antennae are connected to the PSTN. The argument here instead appears to be that the interconnection function is performed by the WSP and not the DAS operator. However, DAS networks provide a WSP's end-user customer with connectivity to the WSP's network, which is interconnected to the PSTN. Thus, DAS service assists in making interconnected voice and/or data service available to end-users a/k/a the public or a substantial portion thereof.

 In conclusion, DAS facilities furnish mobile domestic cellular radio telecommunications service and, hence, cannot be certificated as public utilities under the Code.

6. Effects Of Loss Of Public Utility Status

 As a preliminary matter, we note that the primary adverse consequence of the possible decertification of DAS networks raised by any party relates solely to facilities siting—gaining access to public rights-of-way and zoning permits to deploy new facilities or to connect to existing structures. None of the traditional earmarks of utility regulation—the establishment of just and reasonable rates or the maintenance of reasonable service—are matters of expressed concern by any commenter.

 It is argued that decertification of DAS networks would constitute a barrier to entry in violation of federal law.⁶³ In our view, decertification of DAS does not violate federal law. Certainly, federal law precludes state and local governments from enacting competitive barriers to market entry against DAS network operators. However, we fail to see how allowing DAS networks to operate free from Commission oversight forms one.

 Moreover, federal law cannot be used to compel the Commission to certificate a non-utility in violation of state law based on the effects that losing utility status may have on a facilities siting regimen administered by other governmental units. Section 253 of the Telecommunications Act of 1996 (TA-96)⁶⁴ does not compel the Commission to come to the aid of a non-jurisdictional entity. To the extent that a local zoning board, for example, enacts an unreasonable requirement, it is that local regulation that violates Section 253 and not the Commission's failure to offer assistance.

 Moreover, federal law expressly preempts any attempt by this Commission to regulate either market entry of, or the rates charged by, an entity providing CMRS.⁶⁵ Thus, federal law precludes us from requiring DAS network operators to obtain a CPC.

 In any event, predictions regarding the loss of CPC status among DAS network providers range from no significant change forecast by the municipal participants to an apocalypse projected by the DAS network operators.⁶⁶ Several commenters who are DAS operators argue that denying CPCs to providers of DAS service may prohibit or may have the effect of prohibiting DAS service in Pennsylvania by impeding their ability to deploy DAS networks in Pennsylvania. According to one commenter, pole owners frequently require proof that the attaching party holds certification from a governmental authority like the Commission. The commenter adds that local governments in Pennsylvania commonly require the presentation of a CPC as a condition to access public rights-of-way.⁶⁷

 We are very mindful of the DAS operator's description of poor treatment at the hands of pole owning utilities and municipal licensing authorities,⁶⁸ as well as instances of overreaching by DAS network operators that the municipalities describe. We now explore those specific points of friction between DAS operators and property holders.

7. Pole Attachments

 The Commission does not regulate pole attachments. The opportunity to do so exists, but the Commission has never triggered the ''reverse preemption'' provisions of the federal Communications Act.⁶⁹ Pennsylvania utilities and pole attachers, therefore, follow the federal rules as designed and administered by the FCC. The FCC recently tightened and strengthened the pole attachment rules, providing lower rates and easier, more efficient attachment by all telecommunications carriers.⁷⁰

 DAS commenters argue that pole access often is denied absent ''proof'' of telecommunications status.⁷¹ ExteNet observes: ''As a practical matter, requesting proof of certification is a short cut for utility pole owners. It allows them to avoid expensive, time-consuming research in order to make their own legal determination about what the requesting entity is or is not entitled to by law or regulation.''⁷² The analogy is that a CPC is ''a 'ticket' which demonstrates that the holder is entitled to certain rights and privileges and undertakes certain responsibilities.''⁷³

 At the same time, the DAS commenters acknowledge the FCC has extended pole attachment rights to all telecommunications service providers. Specifically, Section 224 of TA-96 grants pole access rights so long as a company is a telecommunications service provider.⁷⁴ This Order expressly recognizes that DAS operators provide telecommunications service. Non-certificated telecommunications providers routinely gain access to poles, evidencing that a CPC is not required to attach to poles.⁷⁵ Thus, no CPC is required for DAS facilities to attach to utility poles.

 We decline to issue certificates as a ''shortcut,'' because of alleged unreasonable practices surrounding pole attachments. But, we would also find that it is illegal for any utility to require a CPC from this Commission as a requirement for allowing a telecommunication service provider to exercise its pole occupancy rights.⁷⁶ While the Commission does not regulate pole attachments, going forward, the Commission should entertain complaints alleging deteriorated pole access by electric and telephone public utilities as alleged violations of Section 1501 of the Code⁷⁷ and subject to fines and penalties.⁷⁸

 We also note that DAS carriers may register with the FCC to provide interstate telecommunications services,⁷⁹ and suggest that the DAS operators employ the fact of registration as ''proof'' of ''telecommunications'' status to the extent that such is necessary.

 In conclusion, loss of a CPC does not affect a DAS operator's rights to attach to utility poles.

8. Public Right-Of-Way Occupancy

 The DAS carriers also complain about the behaviors of local municipalities in granting them occupancy in public rights-of-way. Specifically, the DAS operators claim that ''certification is also critical'' to a provider's access to public rights-of-way, because ''[u]nder Pennsylvania law, access to the public right-of-way is available [only] to 'public utility corporation[s]'''⁸⁰ citing to 15 Pa.C.S. § 1511(e).⁸¹ We disagree. While this statutory section does address public utility access to rights-of-way, it does not preclude non-certificated entities from also occupying public rights-of-way, and such access is guaranteed for DAS operators through other laws.

 TA-96 clearly prohibits any state or local action that would prevent the placement of DAS facilities in public rights-of-way:

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.⁸²

 TA-96 expressly recognizes, but also limits the use of local right-of-way regulation:

Nothing in this section affects the authority of a State or local government to manage the public rights-of-way or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory basis, if the compensation required is publicly disclosed by such government.⁸³

 The municipalities concede the requirement to allow public right of way access is obligatory regardless of the possession of a CPC:

Under Section 253(a) of TA-96, if a wireless provider, such as those that utilize DAS systems as a part of their CMRS, can demonstrate a need for its proposed facility, that provider cannot be blocked from installing and operating such facilities by the local zoning authority. By virtue of the fact that DAS systems are typically constructed to infill specific existing capacity and coverage gaps, the DAS provider need only demonstrate the need for such facilities to the local zoning authority and comply with reasonable standards to gain approval for construction, modification and/or placement of facilities in the public rights-of-way.⁸⁴

 Furthermore, the commenters raising concerns about public right-of-way access fail to consider the rules established under state and federal law to facilitate the deployment of wireless facilities, including DAS networks. As noted previously, there have been three recent developments that have granted greater and better defined public right-of-way access to wireless facilities, including DAS network facilities. The FCC's 2009 Shot Clock Ruling; the FCC's 2014 Wireless Infrastructure Order (implementing the federal Spectrum Act of 2012); and, finally, the Pennsylvania Wireless Broadband Collocation Act of 2012 (Act 191),⁸⁵ have narrowed time frames, required written bases for municipal action, and limited the grounds for rejection. In other words, DAS access to rights-of-way is robust and becoming more so due to efforts that have nothing to do with the issuance by this Commission of a CPC.

 In conclusion, we see no benefit conferred upon DAS operators for public right-of-way occupancy that they would not have in the absence of a CPC.

9. Overriding Zoning Rules And Exercising Eminent Domain

 One of the most troubling aspects of this case stems from the fact that the Pennsylvania General Assembly has conferred special powers on certificated public utilities, including an exemption from local zoning rules and the power of eminent domain.⁸⁶ Other industries, such as retail CMRS or cable companies, which also compete in the telecommunications space, do not possess such rights.

 By granting a CPC, the Commission simultaneously confers DAS operators with the powers of eminent domain and special exemption from local zoning regulations that apply to utility structures other than buildings.⁸⁷ These are powerful rights, preserved for special industries and carefully written into our corporate statutes.⁸⁸

 The Municipal Associations describe the use of these powers:⁸⁹

CPC issuance to DAS providers pits municipal zoning authority (as preserved by TA-96 and recognized by the FCC in its October 2014 Report and Order) against the rights and privileges associated with Commission certification. It creates an adversarial framework that impedes the interaction between local zoning authorities (i.e., Pennsylvania municipalities) and the wireless industry. The industry's belief that CPCs allow DAS providers unrestricted access to the public rights-of-way—like traditional public utilities enjoy—and to install their wireless facilities without proceeding through the municipal zoning process or gaining any type of municipal approvals, is misplaced.⁹⁰

This is troublesome and creates an opportunity for competitive, for-profit companies to legally ''take'' private property. It also opens the door for situations in which DAS providers are able to use the Commission's certification to access private property without having to negotiate with the property owner. Surely this was not the intention of the General Assembly when it created the Public Utility Code and outlined the rights and benefits to which a traditional, certificated public utility should be entitled.⁹¹

The individual municipal comments echo this concern:

Public utilities can legally take ownership of virtually any public or private property so long as they provide the property owner with just compensation. This is one of the most intrusive powers that could ever be conferred upon a governmental entity, let alone a private company.⁹²

 Even without a CPC, however, DAS operators will still have the property zoning and occupancy rights under the many, various protections previously catalogued in this Order.⁹³ Moreover, these rights are protected by federal law specifically for wireless facilities (in addition to the broader protections of Section 253):

The regulation of the placement, construction, and modification of personal wireless service facilities[⁹⁴

] by any State or local government or instrumentality thereof. . .shall not unreasonably discriminate among providers of functionally equivalent services; and shall not prohibit or have the effect of prohibiting the provision of personal wireless services.⁹⁵

 As previously discussed, similar zoning rights are guaranteed to DAS operators under Act 191.

 Upon review, the only property rights that DAS network operators would forgo with the loss of certificated public utility status would be the power of eminent domain and to override local zoning rules. This outcome is appropriate in our opinion and is consistent with the federal and state approach to the siting of wireless facilities, which is one of streamlining local zoning and not overriding it. The property rights granted to traditional public utilities are based upon the concepts of natural monopoly, universal obligation to serve the public, protection of the public from unjust or discriminatory charges and inadequate service. These concepts have no application here. DAS operators have sought CPCs to obtain the property rights associated with public utility status.

 No statute or regulatory rule has granted such powers to DAS facility operators. The General Assembly has been enduringly silent on the issuance of CPCs to DAS operators. Indeed, Act 191 applies and shapes the zoning rules applicable to wireless facility siting. It does not override them. Also, Act 191 recognizes no special corporate status for DAS operators under the Public Utility Code. Nor was the Commission given any authority or asked to play any role under Act 191. Oversight of zoning disputes over wireless facility siting was given to ''the courts of common pleas of the county where [the facility] is located.''⁹⁶ The same is true under federal law.⁹⁷

 In summary, the premise of these enacted statutes and rules is incongruous with granting ''public utility'' status to the DAS network provider. Certificating DAS carriers as ''public utilities'' with the right to override local zoning requirements renders the provisions of Act 191, for example, unnecessary. By certificating, the Commission extends the DAS operators rights beyond those intended for them by the Pennsylvania General Assembly under Act 191 and the Congress by the Spectrum Act.

 We are not comfortable providing greater property rights to any industry than are defined by the General Assembly.

Conclusion

 This Commission has issued certificates to DAS network operators as far back as 2005, when the industry was in its nascent stages and without any discussion or debate. It has continued to grant CPCs, but has increasingly questioned the legality and need of doing so given the heightened DAS siting activity in recent years and the associated controversies.

 The explosive deployment of DAS networks in the last two or three years has caused the Commission to open this docket to evaluate the prudence and effect of issuing CPCs to a portion of the wireless industry whose business focus is the deployment of towers and antennae that extends and makes WSP deployment, particularly CMRS, more robust.

 Since those original certifications, DAS facility operators have developed a more favorable environment for ensuring that their equipment can be effectively positioned without a certificate from the Commission. The Pennsylvania General Assembly and United States Congress have enacted statutes that expressly define and grant the property rights necessary to deploy wireless networks. Moreover, the FCC has issued several decisions further bolstering these rights. These actions obviate the DAS operators' objective in seeking the Commission's certification in the first place—gaining property rights for wireless facility siting. These efforts are ongoing and will further refine DAS operator property rights.

 Today, we conclude that DAS operators are operating networks that furnish wireless service to mobile devices. Given that our enabling state statute unequivocally places the operation of CMRS facilities outside of our regulatory purview and based upon the comments presented here, we declare DAS networks to be beyond the Commission's regulatory reach.

 DAS networks are not public utilities under Pennsylvania state law. As articulated above, where a carrier operates an antenna, the function of which is to receive and transmit wireless radio, the service is more than simply terrestrial, wireline back haul and, we have concluded that, the facilities provide CMRS.

 We fully support the deployment of broadband services, no matter the medium. The Commission is not authorized, however, to grant super property rights to DAS networks and we decline to exceed the statutory authority granted us by the General Assembly.

Next Steps

 In view of the forgoing analysis, if the DAS industry seeks the affirmative conference of ''public utility corporation'' rights, the debate needs to be transitioned to General Assembly and/or Congress. We would also note that state legislatures around the country are enacting further reforms for wireless facility deployment.⁹⁸ Were such an effort to come to Pennsylvania, the Commission would participate if invited to do so.

 Going forward, absent a change of law, the Commission will not issue certificates of public convenience to companies for the operation of DAS networks and certificates may not be used for the placement of DAS network facilities.

 As to existing certificates issued to DAS network operators, the Commission staff will undertake research and engage in individual discussions with those companies to determine whether their certificates should be rescinded. The Commission's actions do not affect the placement of any facilities that occurred while a DAS operator may have held a CPC from this Commission. On the other hand, existing certificates shall not be used to define property rights to construct new DAS facilities.

 The technology will undoubtedly change, and basing our ruling upon a particular configuration of facilities would not be advisable. However, the facilities that provision CMRS include the antennae themselves,⁹⁹ as well as associated radio transceivers, antennae, coaxial or fiber-optic cable, regular and backup power supplies, and associated equipment. Any proposed new tower structure built for the sole or primary purpose of supporting the antenna and associated facilities would also be included in facilities excluded from public utility status under the Public Utility Code.

 As noted by both the Office of Consumer Advocate and the PCIA, there are a variety of wireline-based backhaul carriers that the Commission certificates and it is not our intention to foreclose DAS carriers from obtaining a certificate for that line of business.¹⁰⁰

 If a company provides other services that are within the Commission's jurisdiction, the company may amend its initial application with supporting data. In so doing, the Commission will remove the DAS network aspect from the prior orders granting certification and focus strictly on the wireline portion of the company's business model;¹⁰¹ Therefore,

 It Is Ordered That:

 1. Distributed Antennae System facilities furnish mobile domestic cellular radio telecommunications service within the meaning of Section 102(2)(iv) of the Public Utility Code and are, therefore, excluded from the definition of ''public utility'' set forth in Section 102(1)(vi).

 2. No Certificate of Public Convenience is required for Distributed Antennae System facilities to attach to utility poles, and, therefore, decertification does not affect a Distributed Antennae System operator's rights, as a telecommunications service provider, to attach its facilities to utility poles.

 3. Within 90 days of the entry date of this Order, the Bureau of Technical Utility Services shall complete an investigation of previously-granted certificates of public convenience for the purposes of identifying carriers engaged in the construction and operation of Distributed Antennae System networks.

 4. Within 180 days of the entry date of this Order, the Bureau of Technical Utility Services shall complete an examination of those previously-certificated companies identified as Distributed Antennae System carriers for the purpose of determining whether or not such companies provide other services within the Commission's jurisdiction. The Bureau of Technical Utility Services may ask for additional time as needed.

 5. The Bureau of Technical Utility Services shall issue revised orders clarifying that the certificates of Distributed Antennae System network operators that offer services other than CMRS as defined in this Order are still valid as to those non-Distributed Antennae System services.

 6. Bureau of Technical Utility Services shall refer Distributed Antennae System-only companies to the Law Bureau for the purposes of issuing default orders to rescind their Certificates of Public Convenience upon 30 days' notice in accordance with due process.

 7. Bureau of Technical Utility Services shall notify the Secretary's Bureau to revoke the provisional authority of any pending applications of Distributed Antennae System-only networks and to return those applications as unfiled.

 8. In addition to the parties to this proceeding, a copy of this order be served on the Energy Association of Pennsylvania, the Pennsylvania Telephone Association and the Broadband Cable Association of Pennsylvania.

 9. This Order shall be published in the Pennsylvania Bulletin.

 10. The formal proceeding to examine the issues surrounding certification of Distributed Antennae System providers in Pennsylvania is marked closed.

ROSEMARY CHIAVETTA, 
Secretary

Statement of Chairperson Gladys M. Brown

 For over 20 years, the Commission has been granting certificates of public convenience (CPCs) to Competitive Access Providers (CAPs). The Commission should continue granting Distributed Antenna System (DAS) providers CPCs as CAPs. DAS is a form of wholesale common carrier telecommunications transport service regardless of the services provided over that connection or the technology or combinations of technologies used to do it.¹⁰²

 The Commission should reject claims that any use of wireless technology by any DAS provider prohibits the Commission from granting CPCs because the Commission cannot regulate wireless under Section 102 of the Public Utility Code, 66 Pa.C.S. § 102. The Commission must distinguish between the DAS providers' common carrier wholesale telecommunications service which relies on fixed wireless technology, which is within the Commission's jurisdiction, from retail mobile wireless service sold to consumers that is not regulated by the Commission under Section 102.

 Continuing the practice of granting CPCs to DAS is more consistent with federal and state law especially in light of our prior practice and the overwhelming comments in support of certification.¹⁰³ The Commission authorized a CPC for a non-DAS applicant who used wireless technology, as have others.¹⁰⁴ DAS providers are a wholesale telecommunications common carrier service that partially relies on wireless technology, owns no spectrum, needs no numbers, and serves all carriers. Retail wireless, on the other hand, serves only their own customers, owns spectrum, and needs numbers. DAS transports the calls of all carriers to locations that, in turn, interconnect with the Public Switched Network (PSN).¹⁰⁵ The indirect transport DAS provides to the PSN is not only for wireless calls either; it includes wireline calls, 911 calls, and the internet.

 The harm caused by refusing to grant CPCs to DAS providers cannot be overstated. DAS providers with no CPC lack eminent domain or exemption from local zoning. DAS is the next generation of wholesale transport service needed to offload astronomical increases in the demand for the broadband needed to carry voice calls and access the internet, both of which are telecommunications service under federal law. DAS transports all of this traffic for any carrier and also offloads their traffic onto fiber networks that, in turn, indirectly connect to the PSN. This is less expensive than each provider building their own network. The fact that a third-party may be involved with DAS does not make DAS anything less than a common carrier wholesale provider of transport service.

 The denial of CPCs to DAS providers may not be competitively or technologically neutral as required by Section 253 of federal law. The absence of a CPC means DAS providers have no eminent domain or local zoning exemption. However, DAS providers affiliated with a carrier who has a CPC can leverage the eminent domain and local zoning exemption of their partner's CPC to their mutual advantage. Stand-alone DAS providers may be competitively disadvantaged because they cannot leverage any eminent domain or zoning exemption although they still must compete to serve the same wireless carriers.

 The impact to local municipalities may also be worsened by denying CPCs to DAS. The absence of a CPC means that parties in conflict with DAS providers' actions will not have recourse to the Commission under Section 1501 of the Code, 66 Pa.C.S. § 1501. On the other hand, DAS providers with CPCs make it easier for the Commission to address conflicts between DAS providers and localities under Section 1501.

 The absence of a CPC could discourage investment in DAS networks in rural Pennsylvania as well. DAS providers will be less willing to invest in those areas because the needed legal rights are unpredictable. The reduced presence, in turn, makes it more expensive for wireless and broadband providers to serve rural areas that are already more expensive to service. DAS networks serve all carriers. The cost to build separate networks makes it more expensive, not less, to serve rural high cost areas.

 For these reasons, the Commission should continue to certify DAS as a wholesale telecommunications transport service regardless of the technology or combinations of technologies used to provide the service.

GLADYS M. BROWN, 
Chairperson

Statement of Vice Chairperson Andrew G. Place

 Before us for disposition are the results of the Commission formal proceeding that was initiated more than a year ago regarding ''the operations of distributed antennae systems (DAS), the relevant regulatory oversight of the Commission under applicable Pennsylvania and federal law, and other attendant issues.''¹⁰⁶ The Commission solicited and received comments and reply comments in the underlying formal proceeding.

 The credible comments on the record of this proceeding carefully analyze and strongly support the premise that DAS providers can continue to be classified as public utilities. There is no technical or legal reason to discontinue the past practice of the Commission in granting such applications to the extent that individual DAS provider applications for certification to the Commission meet the requisite statutory and regulatory requirements under applicable Pennsylvania and federal law.

 The current practice of certifying DAS entities as public utilities and competitive access providers (CAPs) follows the Commission's long trend in properly and lawfully certifying competitive telecommunications carriers that wish to enter the Pennsylvania marketplace and offer both intrastate and interstate services. This practice has been consistent with the relevant mandates of the federal Telecommunications Act of 1996 (TA-96) that this Commission has implemented and continues to police consistent with the parameters of applicable Pennsylvania law. The relevant certification process was established so as to not present any barrier to entry and to not ''prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.'' 47 U.S.C. § 253(a) (emphasis added). This process has been refined through subsequent case adjudications, court appeals, and other proceedings including various mergers.¹⁰⁷

 The Commission's evolving implementation and enforcement of TA-96 have resulted in numerous benefits for the Commonwealth and its citizens. The Commission's actions have facilitated wholesale interconnection arrangements and agreements between competing telecommunications carriers. They have permitted competitive carriers entering the Pennsylvania marketplace to obtain valuable numbering resources when and where needed, and the Commission has continued to effectively exercise its delegated authority to conserve, manage and reclaim such resources. The Commission is also able to exercise appropriate regulatory oversight over the physical network facilities and the quality and reliability of services that certified competitive telecommunications carriers provide. To the extent that the network facilities of certified competitive carriers handle or otherwise transport wireline and/or wireless 911/E911 emergency call traffic, the Commission exercises appropriate oversight so that such traffic reaches the appropriate public safety answering points (PSAPs) on a timely and reliable basis. The market entry of Commission certified competitive carriers provides service and pricing alternatives for various retail and wholesale access services, including broadband access and availability. Furthermore, the installation, operation, and maintenance of new network infrastructure within the Commonwealth have beneficial effects for employment, economic development, and new business models.

 Telecommunications and broadband networks and their technologies, architectures, and physical facilities continue to evolve. Such networks are capable and do provide multijurisdictional services that utilize a variety of communications protocols while the Commission exercises appropriate regulatory oversight over the services and network facilities of the telecommunications public utilities that operate under its jurisdiction.

A. The Use of A Technology and Architecture Mix Does Not Bar DAS Certification

 The use of a technology and architecture mix by DAS providers for the wholesale transport of telecommunications and communications traffic does not technically and legally remove them from the Commission's jurisdiction. The technology and architecture mix does not equate or transform them into wireless service providers (WSPs) or commercial mobile radio service (CMRS) providers.¹⁰⁸ As the CTIA Comments in this proceeding specifically indicate:

 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 [typically fiber optic cable] 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 a wireless service provider's 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.

* * *

 DAS CAPs typically provide ''RF Transport Service'' or ''Dedicated Point-to-Point Permanent Virtual Circuit Transport Service'' 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 [radio frequency] coverage. 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 RF traffic to and from the antenna at remote DAS nodes. 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.''

* * *

 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.

* * *

 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 ''mobile station'' is defined by the Communications Act as a ''radio-communication station capable of being moved and which ordinarily does move.'' DAS CAPs provide transport between fixed points, i.e., the wireless service provider's equipment at the CAP's head end/hub and the antennas at the DAS nodes. Neither the base station facilities not the antennas ''ordinarily. . .move,'' and therefore they are not ''mobile stations'' within the meaning of the [federal Communications] Act.

 CTIA Comments, at 5—7, 10—12 (emphasis in the original, footnotes omitted).

 It is plainly obvious from the majority of the initial and reply comments received in this proceeding, in order for the DAS providers to facilitate the wholesale transport of various types of wireless traffic associated with their respective WSP customers, the various radiofrequency transmissions depend on the WSP network equipment and the WSP end-user mobile devices. Most importantly, such transmissions depend entirely on the electromagnetic spectrum radiofrequencies that the WSPs and their end-users' devices utilize. As Crown Castle aptly indicates ''[w]ithout the radio frequency signal, which is generated and controlled by Crown Castle's wireless carrier customers, the [DAS] antennae are no more capable of providing service than they would be boxed up in a warehouse.''¹⁰⁹

 Furthermore, it is beyond question that it is the WSPs and their mobile telecommunications switching offices (MTSOs) that control the flow of the wireless traffic that originates with or terminates to the mobile devices of their respective end-users.¹¹⁰ The DAS provider networks, with their mixed fixed wireless antenna and terrestrial fiber optic links simply facilitate the wholesale transport of such traffic. The DAS networks do not possess the requisite electromagnetic spectrum radiofrequencies that enable wireless traffic to materialize in the first place.¹¹¹ Also, DAS providers do not have the technical means to control the flows of the same traffic to the ultimate wireless or landline network services end-user. For example, DAS providers operating as CAPs lack numbering resources that are crucial for the appropriate routing of ordinary wireless voice calls. In these important respects, the wholesale transport functionalities that DAS providers furnish to WSPs and other entities do not equate with a retail distribution function. Instead, the WSPs' electromagnetic spectrum radiofrequencies, their network facilities, and the WSPs' end-user mobile devices (with their embedded intelligence and antennas) create this retail distribution function. Rather, the DAS providers' wholesale transport services are comparable to the conventional point-to-point dedicated special access services that are offered by a number of other providers both within Pennsylvania and throughout the nation. Such providers include incumbent local exchange carriers (ILECs), competitive local exchange carriers (CLECs), and other CAPs that are certified as public utilities by the Commission. It is also widely known that WSPs already utilize special access services from these provider categories both in Pennsylvania and elsewhere (e.g., backhaul services from WSP macro cell towers).

 The fixed wireless antenna, the radiofrequency signal conversion, and the terrestrial fiber optic transport combination of network architecture, equipment, and facilities of the DAS providers is not something novel for this Commission. The Commission has approved in the past certification applications by competitive carriers where combinations of wireless and landline network architectures were put forward as potential innovative solutions for wholesale access and transport services.¹¹² The Commission has explicitly permitted the use of ''any technology'' under the statutory mandates of Chapter 30 of the Public Utility Code and operational relationships between Chapter 30 ILECs with their wireless affiliate so that such ILECs could timely meet their broadband deployment commitments through wireless network solutions, facilities, and equipment provided by their affiliate.¹¹³ Naturally, this has not transformed or equated the corresponding ILEC operations and Chapter 30 responsibilities to those of the affiliated and unregulated WSP.

 The FCC pronouncements that ostensibly equate DAS providers and their networks with WSPs are not dispositive of the issue whether DAS providers can continue to operate and be certified as public utilities in Pennsylvania. The relevant FCC directives primarily dealt with the issue of encouraging and facilitating the timely and ubiquitous deployment of wireless infrastructure capable of providing broadband access services throughout the United States including Pennsylvania. This is a laudable goal that statutorily the states, including this Commonwealth, are asked to participate.¹¹⁴ This goal is not only enshrined in federal law but it is also one of the statutory directives to this Commission and is contained in Chapter 30 of the Public Utility Code. However, when it comes to the issues and specifics of public utility certification and regulatory oversight of DAS provider operations, the states play that role and not the FCC. Not surprisingly, a very large number of states including Pennsylvania have chosen to regulate the market entry and operations of DAS providers through certifications, registrations, or some other form of licensing.¹¹⁵ That would not have occurred if DAS providers and their respective wholesale transport networks were considered, classified, or otherwise identified as WSPs or as mere extensions of unaffiliated CMRS provider operations.

 In summary, the DAS providers primarily engage in wholesale transport functions and services through their respective networks and only facilitate but do not themselves provide CMRS services. Thus, they legally and technically can and do qualify for the public utility classification and regulatory treatment by this Commission under applicable Pennsylvania law. Consequently, this Commission did not reach any erroneous decisions in certifying and regulating DAS providers as CAPs.

B. The Lack of Commission Certification for DAS Providers Will Create Negative Effects

 A change in the existing Commission policy of certifying and regulating the wholesale transport operations of DAS providers within Pennsylvania will create negative effects that are not sustainable under applicable Pennsylvania and federal law. This is evidenced by the credible and on the record comments that have been received in the underlying proceeding. Since DAS providers that engage in wholesale transport functions and services are not WSPs or mere extensions of unaffiliated WSPs, the lack of Commission action and certification of relevant applications will run contrary to the federal statutory prohibition of ''barriers to entry'' under Section 253(a) of TA-96. 47 U.S.C. § 253(a). DAS providers that will voluntarily apply and seek CAP certification from this Commission but will be unable to obtain it will be simply put in an unequal footing with other incumbent and competitive carriers that already operate in Pennsylvania and already provide similar wholesale access and transport services. The comments of ExteNet are instructive in this respect:

 Denying a CPC [certificate of public convenience] to a carrier that utilizes DAS architecture is also discriminatory. Because the Commission has already granted CPCs to public utilities that have deployed DAS network architecture, any theoretical change could be prospective only. That means that carriers with existing authorizations, like Level 3 or Zayo, would continue to offer their services and receive any rights and privileges, such as nondiscriminatory access to poles, ducts and conduits, while new entrants effectively would be denied access to deploy new networks within the Commonwealth. Such a discriminatory outcome runs afoul of Section 253(c).

 In many respects, the distinction between providers of traditional fiber transport services and DAS providers is in name and marketing only. Traditional fiber transport service providers can, and do, provide telecommunications services using DAS architecture alongside their traditional fiber transport services. Similarly, ExteNet provides the same traditional fiber transport services alongside its DAS architecture. Thus, the differentiation of who is a provider of DAS services may rest solely in the company's marketing of itself or may be indistinguishable altogether.

ExteNet Comments, at 14-15 (footnotes omitted).

 Such an outcome not only is inimical to the proper functioning of competitive telecommunications services markets within Pennsylvania, but it also unnecessarily upends the Commission's long-term and sound certification practices that are rooted on the Implementation Orders of TA-96. If this Commission's regulatory jurisdiction is not complemented with the requisite degree of technological neutrality, we may find that this agency and its staff will have to engage in needless searching expeditions on whether a provider of wholesale transport services is or is not connected with the antennas of a DAS architecture in order to pass judgment on a certification application. This approach can and will lead to inconsistent and discriminatory results that in themselves will constitute unlawful ''barriers to entry'' under TA-96.

 Similarly, any modification of existing CAP certificates of DAS providers will create its own level of uncertainty and the distinct possibility of inconsistent outcomes that can cause costly litigation before the Commission as well as in appellate courts of proper jurisdiction.¹¹⁶ Such providers already render wholesale transport services not only to WSPs but to other entities as well.¹¹⁷ This may oblige both already certified and potential entrant DAS providers to undergo needless organizational contortions through the use of unnecessary ''separate corporate structures solely to meet a regulatory dictate.''¹¹⁸ This approach will have inherent disadvantages for a DAS provider that may include ''the formation of multiple entities within the Commonwealth'' potentially requiring ''various certifications'' and ''intercompany agreements as well as the creation of separate accounting and tax books for each entity.''¹¹⁹

 Such an environment is not conducive to attracting innovative competitive telecommunications carriers to enter and operate within the Commonwealth. In turn, this may discourage continuous and needed investment in telecommunications and broadband network infrastructure within Pennsylvania or, alternatively, it may make such capital investment more expensive and more limited that it should be. Naturally, this outcome does not at the end create any benefits for Pennsylvania consumers, especially in areas that are in need of broadband access services at higher speeds than what may already be available. In addition, the same outcome does not permit the Commission to fulfill its statutory directives on the State level and its continuous implementation obligations on the federal level.

ANDREW G. PLACE, 
Vice Chairperson

Statement of Commissioner John F. Coleman, Jr.

 The Commission initiated this proceeding to obtain answers to questions about the operations and jurisdiction of distributed antennae systems (DAS). As stated in our order initiating this proceeding, the legal and factual issues surrounding whether to certificate operators of DAS networks had yet to be fully and openly vetted in an on-the-record proceeding before the Commission. Therefore, we established a notice and comment process to more thoroughly vet DAS. Following input received from interested parties, we are now in a position to act.

 In my view, the threshold question here is whether the Commission has jurisdiction under state law to issue a Certificate of Public Convenience (CPC) to DAS operators seeking to offer service in Pennsylvania. In my view, the answer to this question hinges on whether DAS operators operate facilities providing commercial mobile radio service (CMRS) that excludes these operators from the definition of ''public utility'' under Pennsylvania law.

 I acknowledge that both sides make reasonable arguments on whether DAS operators are excluded from being public utilities. On one hand, DAS networks could be viewed as providing fiber-based transport service that is fixed, not mobile, and hence, is not excluded from the definition of ''public utility.'' On the other hand, DAS networks could be viewed as providing mobile wireless service that is expressly excluded from the definition of ''public utility.''

 I support the proposed motion because I believe DAS operators come under the CMRS exclusion in the Public Utility Code and therefore, are not public utilities.¹²⁰ I agree with the motion that DAS operators are excluded from the definition of ''public utility'' because they provide wireless service that is a mobile and interconnected service.¹²¹ As CMRS providers, DAS operators cannot be certificated by the Commission¹²² and do not need a CPC to operate lawfully in Pennsylvania.

 It has been argued that denying CPCs to DAS operators may prohibit or may have the effect of prohibiting DAS operations by impeding the deployment of DAS networks in Pennsylvania in violation of federal law.¹²³ Specifically, the DAS operator commenters are concerned about access to public rights-of-way and to utility poles. I am sympathetic to these concerns and agree that all parties involved should act reasonably with the siting of DAS facilities. However, these policy concerns should not drive our decision here. Rather, our decision should be based on the law and whether DAS operators are excluded from the definition of ''public utility'' under the CMRS exclusion. In any event, for the reasons set forth in the motion, I do not agree that the loss of public utility status is a competitive barrier to entry in violation of federal law.

 Admittedly, the timing of a decision that DAS operators are not public utilities is not ideal, given that the Commission previously has certificated numerous of these entities. However, I do not believe that the timing should prevent us from doing what I believe is the right thing legally. Therefore, I support the ''next steps'' proposed in the motion to address the certification status of DAS operators on a per-operator basis, in accordance with applicable law.

 In closing, my support of the proposed motion should not be construed as being anti-DAS or anti-wireless service. Rather, it is based entirely on my reading of the law, and I do not take my position lightly. I recognize the important role that DAS networks play in providing wireless service, including broadband, to end-users in Pennsylvania and nationwide. I also recognize the potential impediments that can exist when providers seek to deploy their DAS networks. However, I believe that with the rules established under state and federal law to facilitate the deployment of wireless infrastructure, DAS operators can effectively deploy DAS networks in Pennsylvania without public utility status. To the extent DAS providers believe these rules are not adequate, I urge them to voice their concerns to the Federal Communications Commission¹²⁴ and/or the General Assembly to effectuate any necessary or appropriate changes.

JOHN F. COLEMAN, Jr., 
Commissioner

[Pa.B. Doc. No. 17-560. Filed for public inspection March 31, 2017, 9:00 a.m.]

_______

¹  We note that any potential fines, penalties, or other remedial action against DAS providers that currently are certificated in Pennsylvania is not within the scope of this proceeding.

²  66 Pa.C.S. § 1101, et seq.

³  Application of SQF, LLC for approval to offer, render, furnish or supply telecommunication services as a Competitive Access Provider to the Public in the Commonwealth of Pennsylvania, Docket No. A-2015-2490501 (Order entered November 19, 2015) (SQF). (http://www.puc.state.pa.us/pcdocs/1395676.docx). See also the Statement of Vice Chairman John F. Coleman, Jr. (http://www.puc.state.pa.us//pcdocs/1392246.pdf) and the Dissenting Statement of Commissioner Robert F Powelson (http://www.puc.state.pa.us//pcdocs/1392235.pdf).

⁴  Most recently in SQF.

⁵  For example, see Application of NextG Networks of NY Inc. d/b/a NextG Networks East for approval to offer, render, furnish or supply telecommunication services as a Competitive Access Provider to the Public in the Commonwealth of Pennsylvania, Docket No. A-311354F0002 (Order entered April 8, 2005); see also PA PUC Telephone Tariff No. 1, NextG Networks of NY effective April 14, 2005. NextG is now Crown Castle. Crown Castle Comments at 1 n.1.

⁶  See 47 U.S.C. § 253(a).

⁷  Review of Issues Relating to Commission Certification of Distributed Antennae System Providers in Pennsylvania, Docket No. M-2016-2517831 (Order entered February 23, 2016) (Investigation Order).

⁸  The Commission has held that the provision of wholesale services can fall within the definition of public utility service, which is evident with the existence of numerous certificated utilities currently offering wholesale services in Pennsylvania. See generally Application of Core Communications, Inc. for Authority to amend its existing Certificate of Public Convenience and Necessity and to expand Core's Pennsylvania operations to include the provision of competitive residential and business local exchange telecommunications services throughout the Commonwealth of Pennsylvania, Docket Nos. A-310922F0002AmA & AmB (Order entered December 4, 2006), aff'd, Rural Telephone Co. Coalition v. Pa. Public Utility Commission, 941 A.2d 751 (Pa. Cmwlth. 2008). Thus, a retail service component is not a requirement to be a public utility in Pennsylvania.

⁹  Commenters include: The Wireless Association (CTIA), The Wireless Infrastructure Association (PCIA), Crown Castle NG East LLC and Pennsylvania—CLEC LLC (Crown Castle), ExteNet Systems, Inc. (ExteNet), various municipal non-profit associations, and many individual municipalities. The various associations representing, in aggregate, nearly all of Pennsylvania's 2,600 municipalities that filed Comments and Reply Comments are the Pennsylvania Municipal League (PML), the Pennsylvania State Association of Township Supervisors (PSATS), the Pennsylvania State Association of Boroughs (PSAB) and the Pennsylvania State Association of Township Commissioners (PSATC) (collectively Municipal Associations) as well as multiple individual municipalities. The Office of Consumer Advocate (OCA) and the Broadband Cable Association of Pennsylvania (BCAP) also participated. We thank everyone for their participation and comments, which have been extremely helpful to us as we have deliberated on this matter.

¹⁰  BCAP, OCA, PCIA, PML, Crown Castle, CTIA, and ExteNet.

¹¹  Some DAS operators assert that they are certificated in other jurisdictions, but do not specifically speak to the law in those jurisdictions. See, e.g., Crown Castle Comments at 1. The Public Utility Code in Pennsylvania, however, specifically prohibits our regulation of CMRS service as a public utility. We also note that ''[i]n some states, state law may only require 'registration' or some other form of approval not called a certificate of public convenience.'' Id. at 13 n.17. In Pennsylvania, there is no registration category in the telecommunications arena; only full public utilities with CPCs. We also note ExteNet's statement that: ''ExteNet is also registered with the Federal Communications Commission (''FCC'') to provide interstate telecommunications services.'' ExteNet Comments at 3.

¹²   The traffic typically consists of commingled transmissions of voice, data, and video traffic, including Internet traffic.

¹³   Mobile cellular service providers such as Verizon Wireless, AT&T Mobility, Sprint, and T-Mobile are traditional, retail CMRS providers in this category. Municipal Association Comments at 4.

¹⁴  The Municipal Associations describe DAS as follows: ''DAS is principally a repeater system that extends or boosts a provider's radio frequency (''RF'') signals or spectrum from their network to the edge in order to support end user mobile and stationary devices in areas where their signal coverage and capacity are lacking.'' Municipal Association Comments at 2. We take this as a general description and not necessarily an engineering one. Crown Castle Reply Comments at 9, CTIA Reply Comments at 3.

¹⁵  PCIA Comments at 3. The OCA Comments cite to three different sources for similar summaries of a DAS network. OCA Comments at 3-4.

¹⁶  DAS networks operate indoors and outdoors. In most indoor applications, the network operator is dealing with a single land owner or landlord. The issues addressed by the commenters principally apply to outdoor DAS and the use of public spaces. As the Municipal Association's explain: ''Outdoor DAS focuses on bringing coverage to an outdoor area where the existing network cannot provide adequate coverage or capacity (e.g. a rural area where the signals cannot reach or a dense urban area where the network cannot provide sufficient capacity). It creates capacity boosts where there is a weak signal. Installation of outdoor DAS is more challenging than indoor DAS, because of the outdoor weather elements creating the need for sufficient structure to support wind-load and secure closets for equipment.'' Municipal Association Comments at 2.

¹⁷  ExteNet Comments at 2.

¹⁸  See, for example In re Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, FCC No. 14-153, ¶ 34, 29 FCC Rcd. 12,842 (Report and Order released Oct. 21, 2014), 80 Fed. Reg. 1238 (Jan. 8. 2015) (Wireless Infrastructure Order) at ¶ 31 and ExteNet Comments at 21.

¹⁹  CTIA Comments at 1-2 (emphasis in original).

²⁰  Wireless Infrastructure Order at ¶ 34 (emphasis added).

²¹  Streamlining Deployment of Small Cell Infrastructure By Improving Wireless Facilities Siting Policies; Mobilitie, LLC Petition For Declaratory Ruling, FCC WT Docket No. 16-421, FCC Notice dated December 22, 2016 (''Mobilitie Petition'') at 2.

²²  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) (Shot Clock Ruling). The FCC Shot Clock Ruling presumptively established what constitutes ''a reasonable period of time'' for a municipality to act in response to an application to occupy a municipal right-of-way. Shot Clock Ruling at ¶ 37.

²³  These rules were extended to DAS facilities in 2014.

²⁴  Implementation of Section 224 of the Act; A National Broadband Plan for Our Future; WC Docket No. 07-245 and GN Docket No. 09-51 (Report and Order and Order On Reconsideration released April 7, 2011) (Pole Attachment Order).

²⁵  FCC 2011 Pole Attachment Order at 138-139 (statement of Chairman Julius Genachowski) (mandating a time frame for pole and right-of-way owners to provide broadband providers and deployers of wireless broadband technologies like DAS access to utility poles so as not to delay broadband buildout).

²⁶  As part of the Middle Class Tax Relief and Job Creation Act of 2012, 112 Pub.L. 96, Title VI, § 6409(a), 126 Stat. 156, 232 (2012) (Section 6409(a)), codified at 47 U.S.C. § 1455(a) (Spectrum Act).

²⁷  47 U.S.C. § 1455(a)(1).

²⁸  53 P.S. §§ 11702.1, et seq.

²⁹  66 Pa.C.S. § 102; see § 102(2)(iv) (relating to exclusions from the definition of ''public utility'') (''Any person or corporation now or hereafter owning or operating in this Commonwealth equipment or facilities for. . .[c]onveying or transmitting messages or communications. . .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. . .[except that] [t]he term does not include. . .[a]ny person or corporation, not otherwise a public utility, who or which furnishes mobile domestic cellular radio telecommunications service.'').

³⁰  As we noted in our initial order: ''CMRS is a defined term in the federal Communications Act but not in the Pennsylvania Public Utility Code (Code). However, we view CMRS as synonymous with ''mobile domestic cellular radio telecommunications service,'' which is the term used in the Code to describe wireless service.'' Investigation Order at 3 n.4.

³¹  Voice-Over-Internet Protocol Freedom Act, P.L. 627 of 2008, codified at 73 P.S. §§ 2251.1, et seq.

³²  The Commission did, on one occasion, agree to certificate a ''fixed wireless'' operation (i.e., immovable end-user base station in the end-user's premises), which did not ultimately become operational and was not issued a CPC. Application of Vanguard Telecom Corp., d/b/a Cellular One, for Approval to Offer, Render, furnish, or Supply Facilities-based Competitive Local Exchange Telecommunication Services and Facilities-based Competitive Access Provider Services; Docket Nos. A-310621 F0002 and A-310621 F0003.

³³  Wireless Infrastructure Order at ¶ 271 (emphasis added).

³⁴  It is worth reflecting on the fact that no macro tower has ever sought to be certificated by us, only the smaller cells.

³⁵  Wireless Infrastructure Order at ¶ 270. The FCC uses the term ''personal wireless services,'' which it defines as ''commercial mobile services, unlicensed wireless services and common carrier exchange access service.'' 47 U.S.C. § 332(c)(7)(C)(i).

³⁶  The DAS carriers agree that the federal definition should be applied. See, for example CTIA Comments at 10 (''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.'').

³⁷  ExteNet Comments at 16 (''In this circumstance, the radios, antennas and facilities qualify as equipment and facilities used to convey communications to the public for compensation, just as traditional wireline transport facilities do.'').

³⁸  CTIA Comments at 3.

³⁹  Id. at 3 n.3.

⁴⁰  The CTIA asserts: ''The [DAS operators] 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.'' CTIA Comments at 11.

⁴¹  ''The nodes are typically deployed with multiband antennas. . .Each antenna is connected to small distributed remote radio units. . . .'' ExteNet Comments at 6.

⁴²  The CTIA observes that: ''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.'' CTIA Comments at 4. Later it recognizes the industry confusion over nomenclature: ''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.'' CTIA Comments at 18 n.44.

⁴³  Wireless Infrastructure Order at ¶ 31.

⁴⁴  As Crown Castle acknowledges, even about its DAS network, ''there is no single combination of equipment that defines a DAS network.'' Crown Castle Comments at 3.

⁴⁵  PCIA Comments at 3 (''While this description is high-level, it would be a mistake—both technologically and from a legal or policy perspective—to attempt to define DAS as a specific technological configuration currently deployed by a particular company. DAS is a generic description of a network for providing telecommunications service. Like all telecommunications networks, it is evolving rapidly and being deployed in differing manners by different providers. Accordingly, the Commission should avoid trying to set legal or regulatory treatment based on a narrowly-defined technological configuration that does not accurately reflect an evolving market.'').

⁴⁶  http://www.macmillandictionary.com/us/dictionary/american/furnish; https://www.merriam-webster.com/dictionary/furnish; https://en.oxforddictionaries.com/definition/furnish. Black's Law Dictionary confirms that the word ''furnish'' (first definition) means: ''To supply or provide.''

⁴⁷  BCAP Reply Comments at 1 (emphasis added). We decline to render any ruling on the jurisdictionality of cable company facilities, although BCAP requests one. We are only dealing with DAS networks at this time.

⁴⁸  ExteNet Comments at 7.

⁴⁹  Wireless Infrastructure Order at ¶ 271 (emphasis added).

⁵⁰  Interestingly, the individual carriers themselves did not address this important point. However, from the industry association comments it is clear that the operators have availed themselves of the benefits of both the FCC's Shot Clock and the federal Spectrum Act, as well as our state Act 191.

⁵¹  CTIA Reply Comments at 8 (It is clear from the actual language of the Report and Order that the FCC did not ''recognize[] DAS providers as PCS,'' as the Municipal Associations insist, and that the FCC merely clarified that where DAS facilities are or will be used in the provision of PCS, local zoning boards considering siting applications are subject to the deadlines of the Shot Clock Order.) and PCIA Reply Comments at 15-16 (''Rather, it addressed the extent to which DAS facilities qualify for the same siting timeframes laid in the FCC's 2009 'Shot Clock' order. Section 332(c)(7) of the Communications Act differentiates between local government actions that have an impact on personal wireless services and decisions that concern personal wireless service facilities. The FCC did not establish or change any regulatory classification of services provided via DAS networks.'').

⁵²  53 P.S. §§ 11702.1, et seq.

⁵³  Including a definition of eligible facilities and a 90-day deadline for decisions on license approvals. Remedies are in the county courts of common pleas, which decisions are to be rendered on ''an expedited basis.'' There is no role provided for the Commission under Act 191 and the premise of the Act seems incongruous with the ''public utility'' status of the DAS provider. Because certificated ''public utilities'' may override local zoning requirements, requiring DAS providers to be certificated as ''public utilities'' would seem to render the provisions of Act 191 relating to DAS rights on certain facilities within local municipalities unnecessary.

⁵⁴  No one has argued that the service is not ''commercial.''

⁵⁵  47 U.S.C. § 332(c)(7)(C)(i). The DAS commenters do not assert that they are furnishing either unlicensed wireless services or common carrier exchange access service.

⁵⁶  Id. at § 332(d).

⁵⁷  Id. at § 3(27) (emphasis added),

⁵⁸  Id. at § 3(28) (emphasis added).

⁵⁹  CTIA Comments at 10 (emphasis added).

⁶⁰   Crown Castle Comments at 4 (emphasis added).

⁶¹  Id. at 11.

⁶²  CTIA Comments at 12.

⁶³  Under Section 253(a) of the TA-96, ''[n]o State or local statute or regulation. . .may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.'' 47 U.S.C. § 253(a).

⁶⁴  47 U.S.C. §§ 201, et seq.

⁶⁵  47 U.S.C. § 332(c)(3).

⁶⁶  See, e.g.: Crown Castle Comments at 17 (''such an action. . .would likely discourage innovation. . .[and] disrupt the marketplace.''); PCIA Comments at 12-13 (''could well have the legal effect of blocking those providers from accessing public rights-of-way pursuant to 15 Pa. Cons. Stat. § 1511 and the practical effect of the same regarding utility poles.''); ExteNet Comments at 2. (''as a practical matter creates at best a high hurdle to market entry and at worst a barrier to entry.'').

⁶⁷   Crown Castle Comments at 13-14, 15.

⁶⁸  Id.

⁶⁹  47 U.S.C. § 224(c).

⁷⁰  Pole Attachment Order. Under this ruling, wireless carriers have clearly defined access to poles, including pole-tops and benefit from the lowered attachment rate and specified procedures designed to enhance attachment.

⁷¹  ExteNet Comments at 1 (''The. . .reality is that a DAS provider without a CPC would be unable to document to pole owners that it is a telecommunications provider, and therefore entitled to access to poles at reasonable rates. . . .This creates a barrier to entry contrary to Section 253(a).'').

⁷²  ExteNet Comments at 19.

⁷³  Id. at 18.

⁷⁴  PCIA Comments at 10 (''technically, certification by a state commission is not required for a provider to access poles. . . .Nonetheless, telecommunications providers often encounter opposition.'').

⁷⁵  Municipal Association Reply Comments at 4 (''Throughout the Commonwealth, cable operators of all sizes routinely negotiate pole attachment agreements and still manage to maintain a profitable business model and serve Pennsylvania residents. It would seem that the wireless industry's fear of a pole attachment Armageddon is negated in its entirety with proper utilization of the rights and benefits conferred by the Pole Act. (See PCIA Comments, page 10, explaining that a DAS provider ''without a CPC will face opposition, impediments, and potentially outright barriers to accessing the critical infrastructure.'').

⁷⁶  To the extent that current pole attachment agreement require a telecommunications service to also hold a CPC from this Commission, we note that such a provision would also violate our ruling here today.

⁷⁷  66 Pa.C.S. § 1501.

⁷⁸  When Gamma Ventures sought a Commission certificate, we so warned all public utilities that access to utility poles is an existing right of all telecommunications carriers that does not require a certificate from this Commission. In Re Application of Gamma Ventures, LLC for Certificate of Public Convenience and Necessity to Provide Telecommunications Services in Pennsylvania, Docket No. A-2014-2412630 (Order entered June 19, 2014). This warning is once again provided as part of this proceeding. To ensure that pole owners are aware of our concerns, this order will be served upon the associations representing them and published in the Pennsylvania Bulletin.

⁷⁹  ExteNet Comments at 3.

⁸⁰  PCIA Comments at 11. See also Crown Castle Comments at 15 (''For access to public rights-of-way, possessing a CPC may be even more critical. . .therefore get access to the public rights-of-way, the company must be a ''public utility corporation.'').

⁸¹  15 Pa.C.S. § 1511(e) (''A public utility corporation shall have the right to enter upon and occupy streets, highways, waters and other public ways and places for one or more of the principal purposes specified in subsection (a) and ancillary purposes reasonably necessary or appropriate for the accomplishment of the principal purposes, including the placement, maintenance and removal of aerial, surface and subsurface public utility facilities thereon or therein.'').

⁸²  47 U.S.C. § 253(a).

⁸³  47 U.S.C. § 253(c) (emphasis added).

⁸⁴  Municipal Association Comments at 12. See also Municipal Association Comments at 15 (''A DAS provider does not need public utility status to site its facilities and/or equipment to provide service in Pennsylvania. The right of a DAS provider to access the public rights-of-way to either install new poles, or to attach to existing infrastructure, is not diminished by the refusal to grant a CPC to that provider. First and foremost, a DAS provider still has the ability to locate its facilities on poles and other infrastructure in the public rights-of-way.'').

⁸⁵  The various individual municipal comments also recognize the DAS carriers' rights in this regard. City of Allentown Comments at 2, City of Philadelphia Comments at 2, City of Wilkes Barre Comments at 2 (''Moreover, there are ample federal and state zoning laws and regulations that protect wireless providers, including DAS contractors. These include, but are not limited to, the 1996 Telecommunications Act, the FCC's Wireless Infrastructure Order, the FCC's 2009 'Shot Clock' Order, and the PA Wireless Broadband Colocation Act of 2012. In short, DAS contractors are strongly protected under federal and state law without having to grant them utility status.'').

⁸⁶  Section 1103 of the Business Corporation Law (BCL) defines ''public utility corporation'' as including ''[a]ny domestic or foreign corporation for profit that. . .is subject to regulation as a public utility by the Pennsylvania Public Utility Commission or an officer or agency of the United States.'' 15 Pa.C.S. § 1103.

⁸⁷  See, for example, Duquesne Light Co. v. Upper St. Clair Twp., et al., 105 A.2d 287 (Pa. 1954); South Coventry Twp. v. Philadelphia Elec. Co., 504 A.2d 368 (Pa. Cmwlth. 1986), and Heitzel v. Zoning Hearing Bd. of Millcreek Twp., 533 A.2d 832, 833 (Pa. Cmwlth. 1987).

⁸⁸  15 Pa.C.S. § 1511(a).

⁸⁹  Municipal Association Comments at 17 (''With a CPC in hand, they often argue that they are not subject to any type of municipal regulation, including basic zoning requirements. . . .Furthermore, DAS providers often argue that they are entitled to use their public utility status for access to municipal and state-owned property for the placement of facilities and equipment.'').

⁹⁰  Municipal Association Reply Comments at 7-8.

⁹¹  Id. at 7.

⁹²  City of Allentown Comments at 2, City of Philadelphia Comments at 2, City of Wilkes Barre Comments at 2.

⁹³  We also note the likelihood that the FCC is set for another round of wireless facility siting review. Mobilitie Petition, FCC Notice dated December 22, 2016.

⁹⁴  As noted previously, the FCC has ruled that DAS networks are ''personal wireless service facilities'' in the Wireless Infrastructure Order and extended these rights to them.

⁹⁵  47 U.S.C. § 332(c)(7)(B). This same section compels zoning action ''within a reasonable period of time'' and be ''in writing and supported by substantial evidence contained in a written record. . . .'' These rights have been improved (from a DAS perspective) subsequently under the Shot Clock Ruling and the Wireless Infrastructure Order.

⁹⁶  53 P.S. § 11702.5(a).

⁹⁷  47 U.S.C. § 332(c)(7) (''commence an action in any court of competent jurisdiction'').

⁹⁸  In Arizona, SB 1214 would allow an entity to install, operate, and maintain microcell equipment and small cell equipment in the public highways within a political subdivision under certain conditions. In California, SB 649 would apply the prohibitions that relate to the siting of wireless telecommunications facilities in the public rights-of-way to the approval of small cell facilities. HF 380 in Iowa proposes specific ''rules and limitations'' for the application for and deployment of small wireless facilities. In Virginia, SB 1282, a bill that seeks to provide a uniform procedure for the way in which wireless infrastructure is approved by localities and installed in the public rights-of-way has been sent to the Governor for his signature.

⁹⁹  The FCC's rules, while not binding upon us, are helpful. Section 17.2(a) defines ''antenna structure'' as including ''the radiating and/or receive system, its supporting structures and any appurtenances mounted thereon.'' 47 C.F.R. § 17.2(a).

¹⁰⁰  PCIA Comments at 8.

¹⁰¹  As part of this process, the Bureau of Technical Utility Services may also investigate claims of zero intrastate revenues, which may be a separate basis for rescinding existing or declining to issue new certificates to offer intrastate services.

¹⁰²  The point-to-point fixed location wireless transport DAS provides has been a common carrier telecommunications service under federal law since the late 1960's when MCI was allowed to provide fixed point-to-point microwave technology, a form of fixed wireless service, as a specialized common carrier to compete against incumbents in the long-distance business. Peter Huber et al., Federal Telecommunications Law (2nd Ed. 2011), § 1.5.3. Pennsylvania's CAPs have long provided a similar common carrier telecommunications wholesale service.

¹⁰³  The FCC's Time Warner decision at WT Docket No. 06-255 (2007) and the Commonwealth Court decision in RTCC v. Pa. PUC, 941 A.2d 751 (Pa. Commw. 2008) support that result. The services provided over a wholesale telecommunications network, which includes wholesale transport service, is irrelevant when deciding if the carrier is providing wholesale telecommunications service. A carrier providing wholesale telecommunications common carrier service has legal rights under state and federal law. The FCC has twice upheld our law on wholesale service and rejected petitions to preempt Pennsylvania law because incumbent carriers refused to provide access to wholesale providers. DQE v. North Pittsburgh, File No. EB-05-MD-027EB (2007); Fiber Technologies v. North Pittsburgh Telephone Company, File No. EB-05-MD-014 (2007).

¹⁰⁴  Application of Vanguard Telecom Corp.; Docket Nos. A-310621 F0002 and A-310621 F0003. The Commission authorized a CAP and CLEC CPC but the applicant was purchased by ATT and never completed the process. Wisconsin issues CPCs; Texas is considering it.

¹⁰⁵  Federal courts rejected industry claims on appeal that regulators abused discretion or erred as a matter of law by redefining the phrase ''Public Switched Network to be anything other than the traditional Public Switched Telephone Network (PSTN) under federal law in the recent decision upholding the FCC's reclassification of Basic Internet Access Service (BIAS) and PCS as wireless service as CMRS common carrier telecommunications service. USTA v. FCC, Docket No. 15-1063 (DCCA: June 14, 2016), pp. 63-64.

¹⁰⁶  Docket No. M-2016-2517831, Order initiating proceeding entered February 23, 2016, at 1.

¹⁰⁷  See generally In re: Implementation of the Telecommunications Act of 1996, Docket No. M-00960799, Order entered June 3, 1996, 1996 WL 482990; Order on Reconsideration entered September 9, 1996, 26 Pa.B. 4588 (1996), 1996 WL 482990 (collectively Implementation Orders); Application of Intrado Communications, Inc. for Approval to Offer, Render, Furnish or Supply Telecommunications Services as a Competitive Local Exchange Carrier to the Public in the Service Territories of: Verizon Pennsylvania Inc.; Verizon North Inc.; The United Telephone Company of Pennsylvania d/b/a Embarq Pennsylvania, Docket Nos. A-2008-2027726, A-2008-2027733, A-2008-2027713, Order entered August 1, 2008 (CLEC supplying alternative 911/E911 connectivity services is entitled to rights and responsibilities of Sec. 251 and 252 of TA-96, 47 U.S.C. §§ 251 and 252); Application of Comcast Business Communications, LLC d/b/a Comcast Long Distance for Expanded Authority to Offer, Render, Furnish or Supply Telecommunications Services as a Competitive Local Exchange Carrier to the public in the Commonwealth of Pennsylvania, et al., Docket Nos. A-2008-2029089 et al., Order entered September 29, 2008; Final Order Regarding the Commission's Plan to Implement A One-Year Timeframe for Inactive Telecommunications Carriers To Provide Service On An Annual Basis Within the Commonwealth of Pennsylvania, Docket Nos. M-2011-2273119 and M-00960799, Order entered July 19, 2012; Proposed Modifications to the Application Form for Approval of Authority to Offer, Render, Furnish, or Supply Telecommunications Services to the Public in the Commonwealth of Pennsylvania, Docket No. M-00960799, Final Order entered May 22, 2014; Application of Momentum Telecom, Inc. for approval of the Abandonment or Discontinuance of Competitive Local Exchange Carrier and Interexchange Carrier Reseller Services to the Public in the Commonwealth of Pennsylvania, Docket No. A-2014-2450071, Order entered May 20, 2015.

¹⁰⁸  The terms CMRS providers and WSPs are hereby used interchangeably.

¹⁰⁹  Crown Castle Comments, at 8.

¹¹⁰  The same WSP networks and MTSOs also control the flows of traffic between their wireless end-user subscribers and the end-user subscribers of landline based network services.

¹¹¹  Such scarce and critical electromagnetic spectrum radiofrequencies are usually purchased, owned, and allocated to WSPs.

¹¹²  See generally Amended Application of Vanguard Telecom Corp., d/b/a CellularOne, for approval to offer, render, furnish, or supply Facilities-based Competitive Local Exchange Telecommunication Services and Facilities-based Competitive Access Provider Services, Docket Nos. A-310621F0002 & A-310621F0003, Tentative Order entered April 8, 1999, 29 Pa.B. 2107; Amended Application of Vanguard Telecom Corp. for Approval to Offer, Render, Furnish, or Supply Telecommunications Services as a Competitive Local Exchange Carrier to the Public in the Commonwealth of Pennsylvania in the Areas Served By Selected Rural Telephone Companies; Amended Application of Vanguard Telecom Corp. for Approval to Offer, Render, Furnish, or Supply Telecommunications Services as a Competitive Access Provider to the Public in the Commonwealth of Pennsylvania in the Areas Served By Selected Rural Telephone Companies, Docket Nos. A-310621F0002 & A-310621F0003, Order entered August 23, 2000. Vanguard did not operate as a CLEC and CAP in Pennsylvania because it was eventually absorbed into the wireless operations of AT&T. Vanguard was a CMRS carrier when it had applied for CLEC and CAP certification, and it was providing interexchange services under Commission authority. August 23, 2000 Order, at 5.

¹¹³  Petition of David K. Ebersole, Jr. and the Office of Consumer Advocate for a Declaratory Order, Docket No. P-2012-2323362, Tentative Order entered December 26, 2012, Final Order entered February 28, 2013.

¹¹⁴  See generally 47 U.S.C. § 1302(a) (Sec. 706(a) of TA-96).

¹¹⁵  ''ExteNet and its wholly owned subsidiaries hold authorizations to provide intrastate telecommunications services in 35 states including the Commonwealth. . .It also provides point-to-point data transport services (i.e. fiber only networks).'' ExteNet Systems (ExteNet) Comments, at 3.

¹¹⁶  ExteNet Comments, at 14 and n. 13.

¹¹⁷  PCIA Comments, at 9; ExteNet Comments, at 14-15.

¹¹⁸  ExteNet Comments, at 16.

¹¹⁹  ExteNet Comments, at 16-17.

¹²⁰  Section 102(2)(iv) of the Public Utility Code excludes from the definition of ''public utility'' any person or corporation, not otherwise a public utility, who furnishes mobile domestic cellular radio telecommunications service a/k/a wireless service. 66 Pa.C.S. § 102(2)(iv).

¹²¹  CMRS is not defined by Pennsylvania law. However, to be considered CMRS under federal law, the service must be a wireless service that is mobile and interconnected. See 47 U.S.C. § 332(d)(1).

¹²²  As noted in the motion, federal law preempts the Commission from regulating the market entry of CMRS carriers. 47 U.S.C. § 332(c)(3).

¹²³  Under Section 253(a) of the Communications Act, ''[n]o State or local statute or regulation. . .may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.'' 47 U.S.C. § 253(a).

¹²⁴  The FCC recently initiated a proceeding to determine whether any further FCC action is necessary to address any problems with the siting of wireless network facilities. Mobilite, LLC Petition for Declaratory Ruling, WT Docket No. 16-421, Public Notice, (December 22, 2016) at page 2.

---

No part of the information on this site may be reproduced for profit or sold for profit.

This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.

---