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Shulman Rogers Tower Group Alert

October 29, 2013

Wireless Infrastructure Opportunities in Transit Rail

Transit rail operators are increasingly interested in wireless infrastructure. Their ridership has come to demand the almost ubiquitous wireless coverage that they are used to in metropolitan areas and along major roadways. For underground transit rail lines, communications facilities have become a matter of life and death. From terrorism and natural disasters to derailments and blackouts, effective communications for both rail personnel and public safety officials are no longer optional.

Underground deployments are expensive to both engineer and to implement. The business case for allowing one carrier to construct underground facilities solely for its own use, while great for that carrier, has been found lacking for the rail operators. Scalable deployments that can handle future networks from FirstNet to competitive commercial carriers are essential. All of this sounds very familiar to people in the world of DAS.

Positive Train Control, or PTC, is barreling down the tracks like a runaway locomotive. For above ground deployments, PTC will require LMR antennas to be placed at the 25’ – 80’ level approximately every 1 to 2 miles. The infrastructure is simply not there currently to support such an endeavor. Let’s take a moment to allow the tower developers in the audience to clean the drool off their keyboards…

So you want to build PTC infrastructure? Here are some interesting challenges you might face: There are lots of undocumented things buried in the rail rights-of-way (ROW), from decommissioned utility lines to burned out rail cars! Have you ever done title work for a rail ROW? It can be a rather messy endeavor. Some rail ROWs have been used as diesel dump sites for decades. Good luck with that NEPA certification and EPA rule compliance.

On the “positive” site of PTC, one can put anything in a rail ROW if it is for purposes of rail operation. Preemption of the local zoning process might just make up for some of the aforementioned obstacles. Sure, but how much money can be made for hosting PTC antennas? See above re: scalable deployments; the key is to construct facilities that are capable of expansion. For anyone who has not had the pleasure of taking the Acela from DC to Boston, you would be amazed at how many gaps there are in coverage along this busy route. The opportunities for collocation abound. It is becoming increasingly difficult to find rail ROWs that do not have dark fiber sitting along the route. Built-in backhaul, anyone?

Another Way the Rails Can Help the Infrastructure Industry…

The FCC is seeking comments on a proposed Program Comment to govern the review of PTC wayside facilities construction under Section 106 of the National Historic Preservation Act (“NHPA”). The ideas under consideration for the potential Program Comment are described in a Section 106 Scoping Document recently issued by the Commission. With the December 31, 2015 deadline for PTC implementation fast approaching, the Commission is exploring ways to streamline the Section 106 review process for the estimated 20,000+ wayside poles/towers it estimates are needed.

The Commission’s review process under Section 106 of the NHPA, as modified by two Nationwide Programmatic Agreements, seeks to ascertain whether proposed wireless siting facilities may affect historic properties. If adopted, a Program Comment would identify alternative procedures for an applicant to follow in order to determine if its proposed PTC wayside facilities may affect historic properties that are listed, or are eligible to be listed, in the National Register for Historic Places. As part of this review process, Tribal Nations are provided with the opportunity to participate as stakeholders and object to any project that impacts historic tribal lands, meaning not just current reservations, but ancestral homelands stretching from Long Island to Long Beach. 

While this proceeding is focused on expediting the process for review of PTC facilities, it is entirely possible that the expedited procedures established here could later be applied to the siting industry writ large. Comments are due to the FCC by November 15, and because of the expedited nature of this proceeding, there will be no opportunity for reply comments. For assistance in preparing and filing your comments, or any other questions regarding this proceeding, please contact Michael Higgs.

Now is the time to make your voice heard!

The contents of this Alert are for informational purposes only, and do not constitute legal advice. If you have any questions about this Alert, please contact a member of the Shulman Rogers Tower Group or the Shulman Rogers attorney with whom you regularly work.

Contact

Alan S. Tilles
301-231-0930