BEFORE THE

BOARD OF HOUSING AND COMMUNITY DEVELOPMENT

OF VIRGINIA

 

 

In re Virginia Uniform Statewide Building Code (13 VAC 5-63)

Proposed Regulations, 13 VAC5-63-20.D and 13 VAC5-63-80.B

 

                                                                                                

Comments of the Virginia Cable Telecommunications Association on

Suggested Revisions to the Uniform Statewide Building Code

 

            The Virginia Cable Telecommunications Association (“VCTA”), by counsel, hereby submits comments to the Board of Housing and Community Development (“BHCD”) on suggested revisions to the BHCD’s proposed new version of the Virginia Uniform Statewide Building Code (“USBC”).

I.          Introduction

 

            Since 1966, the VCTA has served as the trade association for cable television operators in Virginia and their affiliates.  As envisioned by the Telecommunications Act of 1996, cable television operators have entered the telecommunications market (through corporate affiliates) as competitive local exchange carriers (“CLECs”) and have become the principal facilities-based competitors to the incumbent local exchange carriers (“ILECs”).  Cable television operators in Virginia generally have established separate telephone company subsidiaries or affiliates to obtain CLEC certification from the State Corporation Commission of Virginia.

II.        Background

            Cable CLECs provide facilities-based competition to ILECs, but deliver their communications signals through various different technologies. 

In 2002, a municipal inspection authority in Virginia claimed that a cable CLEC’s method of providing telephone service required a permit under then - existing provisions of the USBC.

            The VCTA challenged that local assertion, believing that cable television and cable CLEC installations were exempt under the existing provisions of the USBC; but the VCTA proceeded to offer clarifications to those existing USBC provisions in 2003 which resulted in express exemptions in the USBC for cable CLEC providers.

            The 2017 proposed amendments to 13VAC 5-63-20.D and 13 VAC 5-63-80.B revise the same USBC sections that were a concern to the VCTA and other communications providers in 2003.

            While the VCTA appreciates the efforts of the BHCD working group studying USBC revisions to update these provisions, some of the changes made do not reflect current communications practices (or current or anticipated technology), and consequently need further minor revisions.

III.       Suggested USBC Changes.

            While cable and telephone installations of cable CLECs (and their cable television affiliates) are generally already exempt from the USBC, under the proposed language in the new regulations there are risks that new technology and current business and regulatory models could lead to disputes with local authorities over the scope of the exemptions (resulting in appeals to the local boards of building code appeals and eventually to the State Building Code Technical Review Board).  The most efficient solution would be to clarify the USBC at this stage in the rulemaking process to reflect new technology and current business and regulatory practices.

            A.        13 VAC 5-63-20 D

                        Wireline vs. wireless service distinction

            The draft regulations create a new distinction between wireline and wireless service, essentially separating out wireless service and providing it with a narrower exemption – specifically that structures supporting wireline services are exempt from the USBC, but structures supporting wireless services will not be exempt from the USBC.

            At present, wireline communications services are typically delivered (in the case of aerial installations) by attaching wirelines to utility poles.  These utility poles, as supporting structures for wireline communications, are exempt from the USBC.

            Wireless communications services today typically use radio signals (for at least part of their transmission paths), delivered by microwave transmitters placed on elevated towers or tall buildings for efficient signal transmissions, or, in the case of mico-wireless facilities, may be mounted on the strand between the utility poles.

            As long as the existing utility poles still carry wireline facilities, these poles are presumably exempt structures; but if existing wireline facilities are removed from a pole, or if new utility poles are added which will only be used to mount a wireless antenna (and may be necessary in some cases for improved service coverage), the same utility pole, installed by the same carrier, will lose its USBC exemption if it is used only for wireless purposes.  This approach, requiring local permits and consequent delays for broadband deployment, would be contrary to federal and state policy seeking to encourage broadband deployment and will likely give rise to disputes over whether federal pre-exemption of state and local barriers to broadband deployment should apply.  It also seems to impose an unnecessary regulatory burden, without any justification.  As the attached Reply Comments[1] of the NCTA in an FCC proceeding make clear on pages 2-3, the communications network of the next decade will be a mix of wireless and wireline facilities.  Those Reply Comments also note that the FCC needs to take a holistic approach to encourage communications deployment to facilitate both wired and wireline construction, and keep them on a level playing field.

The 2017 Virginia General Assembly has just enacted legislation to encourage wireless services deployment, 2017 SB 1282 (to become effective July 1, 2017 as Va. Code §§ 15.2-2316.3, 15.2-2316.4, 15.2-2316.5, and 56-484.26 through 56-484.31).

Va. Code §56-484.27A of that new bill provides in pertinent part “No locality… shall impose on wireless service providers or wireless infrastructure providers any restrictions or requirements concerning …enforcement of the statewide building code and inspections, that are unfair, unreasonable or discriminatory.”

The proposed distinctions in the proposed new USBC treatment of wireline vs. wireless structure, without any rationale or justification, would seem exactly such an unfair, unreasonable and discriminatory burden.

In addition, in Va. Code §58-484.29.C of the new bill one particular type of wireless attachment (a “micro-wireless” facility) is singled out for special protection.  “Localities shall not impose any fee or require any application or permit for the installation, placement, maintenance or replacement of micro-wireless facilities...” 

The proposed new USBC burden which would be imposed on wireless structures seems both inconsistent with state policy and prohibited by these new statutory provisions.

The better solution would be to do away completely with the proposed wireline-wireless distinction, and keep the existing language of the current USBC unchanged on this point, exempting structures supporting wireline or wireless utility or cable television facilities from the USBC.

            An alternative approach would be to exempt at least traditional utility poles from regulation, even when used for wireless service.  Towers or buildings on which wireless installations are made could be regulated as non-exempt structures, but traditional utility poles could continue to be exempt.

            This change could be implemented as follows:

            13 VAC5-63-20.  Section 102

            D.        Section 102.3 exemptions. The following are exempt from this code:

                        2.  Electrical equipment, transmission equipment, and related wiring used for wireless transmission of radio, broadcast, telecommunications or information service, and supporting structures in the form of traditional utility poles, in accordance with all of the following conditions:

                        2.1.      Buildings housing exempt equipment and wiring and structures (other than traditional utility poles) supporting exempt equipment and wiring shall be subject to the USBC.

            B.         13 VAC 5-63-20 D

            Ownership and Control of Equipment, Wiring and Supporting Structures

            The existing exemption for communications equipment and wiring applies if the “ownership and control” of the equipment and wiring is by the communication service provider or its affiliates.  Changes in communications policy and business models already strain the concept of “ownership and control” under this existing language.

A fiber sheath attached to a utility pole will contain multiple fiber optic cables, some of which may be owned by the communications entity which owns the sheath; but other fibers within the sheath may be owned by other regulated communications providers and other fibers by private parties, or governmental entities.  Some fibers may be owned outright by third parties, and some may be fibers in which third parties have either exclusive leases or “irrevocable rights of use”.  Arguably the sheath owner can claim that if it owns and controls the external sheath then this constitutes  “ownership and control” of the equipment and wiring.

            However, the proposed regulations would change this to mandate in Section 102.3.1.1 that “The equipment, wiring and supporting structures are owned and controlled by a provider of publicly regulated utility service or a franchised cable television operator or its affiliates.”

            The addition of “supporting structures” to equipment and wiring could suggest that all three factors -  equipment, wiring and structure - must be owned by the same entity.  In fact, cable television operators rarely own their own utility poles (supporting structures) but rely on federal and state access rights to use utility poles of public utilities.

            A single utility pole typically has multiple attachers, with each attachment owned by a different entity.  Some attachments (such as a power supply) may serve one attacher, but can potentially serve multiple attachers.  As noted earlier, in the case of a fiber optic communications sheath, today there are often multiple owners of rights within that sheath.  Federal and state policy obviously encourages colocation of communications assets and sharing of communications facilities, not installation of multiple poles, power supplies and other equipment by every different communications provider.

            To avoid any future confusion or disputes over this issue, the easiest approach would be to revise the language as follows:

            13 VAC 5-63-20.  Section 102

                        D.  Section 102.3 Exemptions.  The following are exempt from this code:

                        1.1  The equipment, wiring and supporting structures are owned or controlled by a provider of publicly regulated utility service or a franchised cable television operator or its affiliates.  In the case of communications facilities, only ownership or control of the external physical features or elements of any wiring or equipment by a provider of publicly regulated utility service or a franchised cable televisions operator or its affiliates shall be required.

    

[1] See Exhibit C, the April 7,2017 Reply Comments of the NCTA (The Internet & Television Association) in the Matter of Streamlining Deployment of Small Cell Infrastructure by Improving Wireless Facilities Siting Policies, FCC WT Docket No. 16-421.

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