Broadband Communities

MAY-JUN 2019

BROADBAND COMMUNITIES is the leading source of information on digital and broadband technologies for buildings and communities. Our editorial aims to accelerate the deployment of Fiber-To-The-Home and Fiber-To-The-Premises.

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MULTIFAMILY BROADBAND TECHNOLOGY 1 0 | B R O A D B A N D C O M M U N I T I E S | w w w. b r o a d b a n d c o m m u n i t i e s . c o m | M AY / J U N E 2 0 1 9 FCC Proposed Expansion Of the OTARD Rule Providers should explore the possible implications of the rule change and share comments with the FCC. O n April 12, 2019, the FCC Wireless Bureau released a notice of proposed rulemaking (NPRM) concerning the extension of the Over-the-Air- Reception-Devices (OTARD) rule to cover small antenna devices used as carrier hub facilities rather than as consumer signal reception equipment. Pressure to transform the OTARD rule from a consumer-protection measure into an end run around local regulation for the bene†t of wireless carriers is the result of a conˆuence of historical accidents, driven by the evolution of wireless technology and producing a conˆict between public policies that were once seen as parallel. Še primary technological driver has been the rapid rise of wireless platforms as a supplement to and an eventual replacement for wired platforms for pay television, internet access and voice services. Following enactment of the Telecom Act of 1996, the FCC promulgated two parallel sets of rules dealing with the placement of wireless devices on private property. On the one hand, the OTARD rules were intended to preempt almost all local regulation of the placement of consumer reception devices by customers of a wireless service (initially satellite television and, beginning in 2000, †xed wireless data). On the other hand, Section 704 of the Telecom Act largely preserved the ability of local governments to regulate the placement of large, obtrusive structures used to transmit wireless telecommunications signals. Back then, things seemed clear: local regulation of wireless reception devices used by consumers is extremely limited, and local authority over wireless transmission devices used by big carriers is preserved. Inevitably, however, technology evolved in ways that muddy the once- clear distinction between reception and transmission devices and therefore between the regulatory schemes governing their placement. What rules apply to devices that both receive and transmit wireless signals? CONSIDERING THE IMPLICATIONS Še FCC already stretched the scope of the OTARD rule almost to its breaking point by ruling (in the Triton Networks case) that a wireless antenna relaying signals via a mesh network can qualify as an OTARD device, despite the fact that it serves remote customers, as long as at least one customer is located at or near the antenna site. In the new NPRM, the Wireless Bureau proposes to take the crucial additional step of eliminating the requirement that there be at least one customer at the antenna site so that the OTARD rule protects not only reception devices but transmission hubs as well. To take that step would mean, among other things, that OTARD can no longer be viewed primarily as a pro-consumer measure. On the contrary, the FCC is proposing to transform a rule that allows consumers to install small reception devices in their homes into a license to wireless carriers to install anything they want (provided it does not exceed OTARD's 1-meter-diameter limit) anywhere they want, as long as the carrier owns or leases the site. If the proposal becomes †nal, the OTARD rule would have to be seen as a powerful route by which wireless telecommunications and data carriers may escape not only traditional principles of property law but also the reach of almost all traditional police- power regulation at the local level. Še driving force behind the NPRM is the exponential increase in the number of hub or signal relay stations By Carl Kandutsch / e Kandutsch Law Oce, Multifamily Broadband Council

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