Verizon Communications Inc. (“Verizon”), through several affiliates, provides telecommunications, information, and television services through both wired and wireless technology throughout the Commonwealth of Virginia.  Verizon’s affiliate service providers include regulated public utilities, franchised cable television providers, and non-regulated wireless providers.  As such, Verizon has a unique perspective on the exemptions contained in the Uniform Statewide Building Code (“USBC”) for support structures used to provide telecommunications and information services.  Verizon submits that exempting support structures from the USBC based on the entity installing the structure (as provided in the current rules) or the services provided using those support structures (as provided in the proposed rules) is unreasonable, discriminatory, and violates new state legislation that will take effect on July 1, 2017.

Currently, 13VAC5-63-20.D exempts, among other things, “poles and towers supporting the related wiring installed by a provider of publicly regulated utility service or a franchised cable television operator” from the USBC.  The proposed revision exempts, among other things, “supporting structures used for providing wired utility, telecommunications, information, or cable television service” from the USBC.  However, support structures used to provide wireless transmission of radio broadcast, telecommunications, or information service are not exempt.    

There is no rational basis to exempt support structures used for wired telecommunications and information services from the USBC, but not the same structures used for wireless telecommunications and information services.  Wireless telecommunications and information services providers (collectively “wireless providers”) are increasingly expanding beyond the use of traditional cell phone towers to support wireless infrastructure. 

As more providers install small cell technology, they are doing so on the same wooden poles used by wired utilities, telecommunications, information, and cable providers.  These wooden poles are currently exempt from the USBC, but are regulated by the National Electrical Safety Standard.  The wooden poles are graded at the mill based on industry recognized formulas governing the capacity of the poles.  Under the current rules, if a new wooden pole is installed to support wireless equipment, it would only be exempt from the USBC if it is installed by regulated utility or franchised cable provider.  However, increasingly, wireless providers and wireless infrastructure providers are seeking to install such poles themselves rather than relying on a regulated utility or franchised cable provider to do so.  Under the proposed rules, such a wooden pole would be exempt from the USBC if it was also used to provide wired utility, telecommunications, information, or cable television service, but not if is used provided solely wireless services.

As a result of this disparity in the exemptions, wireless providers face added expense and delays as they are required to (i) negotiate pole attachment agreements with public utilities and franchise cable providers to install equipment on their poles are used to provide wired telecommunications or information services, or (ii) obtain a building permit to build a new pole.  Under the building permit process, a building official may require that a professional engineer certify the capacity of the pole.  Such verification would require an inspection of the pole to verify its condition, adding costs and delay to its use to support wireless equipment.  And for existing poles, the structural engineer’s certification would necessarily include numerous disclaimers that may not be accepted by the building official.  For example, the engineer may not be able to verify the condition of interior of the pole, the depth of the pole, or that the installation of the pole was done correctly. 

An exemption from the USBC for support structures based solely on the type of provider that installed it or the type of services provided over it is unfair and discriminatory.  As such, the proposed revisions would violate SB 1282 passed by the 2017 General Assembly. 

Intended to facilitate the installation of wireless infrastructure in the Commonwealth to increase wireless telecommunications and broadband services, SB 1282 established new Virginia Code § 56-484.27.A that prohibit localities and the Virginia Department of Transportation from imposing on wireless services providers and wireless infrastructure providers “any restrictions or requirements concerning the use of the public rights-of-way, including the permitting process, the zoning process, notice, time and location of excavations and repair work, enforcement of the statewide building code, and inspections, that are unfair, unreasonable, or discriminatory.” (emphasis added).  Exempting support structures used for wired telecommunication and information services from the USBC, but not support structures used for wireless telecommunications and information services is unfair and discriminatory, and thus would violate this new provision of state law that takes effect July 1, 2017.  Moreover, as described above the additional inspection process required to obtain a building permit for wooden poles supporting wireless equipment is directly contrary to goal of SB 1282, as well as state and federal policies that facilitate installation of wireless infrastructure in order to expand broadband access.   

Verizon respectfully submits that support structures used to provide any telecommunications or information service should be exempt from the USBC, regardless of who installs them or whether they are wired or wireless.  To the extent the Board finds it appropriate to distinguish between traditional cellular towers and traditional utility poles, it should exempt all support structures used to provide telecommunications or information services regulated by the National Electrical Safety Code from the USBC.