Crown Castle NG East LLC and Pennsylvania-CLE LLC v. PA PUC ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Crown Castle NG East LLC and :
Pennsylvania-CLE LLC, :
Petitioners :
:
v. : No. 697 C.D. 2017
: Argued: February 7, 2018
Pennsylvania Public Utility :
Commission, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION BY
JUDGE COHN JUBELIRER FILED: June 7, 2018
The Petitioners in this case operate neutral-host Distributed Antenna System
(DAS) networks, which are used by various wireless companies to transport wireless
data and voice traffic. For 10 years, the Pennsylvania Public Utility Commission
(Commission) certificated DAS networks as public utilities. On March 17, 2017,
the PUC issued an Order (DAS Order) in which it reversed its longstanding practice,
finding that DAS network operators are not public utilities under the Pennsylvania
Public Utility Code (Code)1 and, therefore, are not within the Commission’s
1
66 Pa. C.S. §§ 101-3316.
jurisdiction. After the Commission denied reconsideration of the DAS Order,
Petitioners Crown Castle NG East LLC and Pennsylvania-CLE LLC (together,
Crown Castle), petitioned for review of the Commission’s Orders. While the facts
may be quite technical, the legal principles involved are straightforward. After
reviewing the relevant language in the Code, this Court’s precedent, the decisions
related to the certification of DAS networks by public utility commissions in other
jurisdictions, and relevant federal law, we conclude the Commission erred in its
interpretation of the Code to exclude DAS network operators from the definition of
public utility, and, accordingly, we reverse.
I. Background
A. DAS Networks
Generally, neutral-host DAS networks provide transport services to their
Wireless Service Provider (WSP) customers, such as AT&T Wireless or Verizon
Wireless, via the networks’ fiber optic lines, which run between remote, fixed-point
“nodes” and a centrally-located “hub.”2 The DAS network works in conjunction
with the facilities and equipment owned by the WSPs and the WSPs’ retail customer,
the cell phone or smart phone user, to provide transport to wireless communication.
DAS networks essentially provide increased coverage and/or capacity within a
localized area by collecting wireless traffic from a WSP’s retail end-user,
transmitting it over the DAS network (typically using terrestrial fiber optic lines)
and delivering it back to the WSP’s network. An advantage of a DAS network is
that it “us[es] components that are a fraction of the size of macrocell deployments,
[that] can be installed – with little or no impact – on utility poles, buildings, and
2
WSPs can operate their own DAS networks that serve only their retail end-user customers.
2
other existing structures.” In Re: Acceleration of Broadband Deployment by
Improving Wireless Facilities Siting Policies, 29 FCC Rcd. 12865, 12867 (F.C.C.
2014) (2014 Wireless Infrastructure Order). “DAS deployments offer robust and
broad coverage without creating the visual and physical impacts of multiple
macrocells.” Id. at 12879. They can be deployed in “densely populated urban areas,
where traditional towers are not feasible or in areas, such as stadiums, where
localized wireless traffic demands would require an unrealistic number of
macrocells.” Id. at 12880. DAS networks may be owned and operated by a WSP
for the sole use of its customers, or owned and operated by a neutral-host, such as
Crown Castle NG East LLC, which may lease its network to multiple WSPs.
B. The Commission’s Treatment of DAS Networks from 2005 to 2015
Between 2005 and 2015, the Commission granted certificates of public
convenience (Certificate) to DAS network operators as competitive access providers
(CAPs)3 on the basis that they were public utilities under subsection (1)(vi) of the
definition of public utility under the Code:
(1) Any person or corporations now or hereafter owning or operating
in this Commonwealth equipment or facilities for:
***
(vi) Conveying or transmitting messages or communications,
except as set forth in paragraph (2)(iv), 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.
***
(2) The term does not include:
3
“CAP service . . . [i]s a dedicated point-to-point or multipoint service; voice or data.” In
Re: Review of Issues Relating to Comm’n Certification of Distributed Antennae Sys. Providers in
Pa., No. M-2016-2517831 at 3 n.5 (Pa. P.U.C. 2016) (internal quotation marks omitted).
3
***
(iv) Any person or corporation, not otherwise a public utility, who
or which furnishes mobile domestic cellular radio
telecommunications service.
Section 102 of the Code, 66 Pa. C.S. § 102. At least five DAS network operators,
including Crown Castle,4 were granted Certificates by the Commission during that
time period.
In 2015, during the Commission’s consideration of an application for a
Certificate filed by the DAS network operator SQF, LLC, (SQF), two members of
the Commission began questioning the Commission’s historical treatment of DAS
network operators as public utilities under subsection (1)(vi) of the Code. See Appl.
of SQF, LLC for Approval to Offer, Render, Furnish or Supply Telecomm. Servs. as
a Competitive Access Provider to the Pub. in the Commonwealth of Pa., No. A-
2015-2490501 (Pa. P.U.C. 2015), Statements of then-Vice Chairman John F.
Coleman, Jr., and former-Commissioner Robert F. Powelson.5 If DAS networks’
operators were not public utilities under subsection (1)(vi), they stated, then the
4
Crown Castle NG East LLC originally received a Certificate under the name NextG
Networks of NY, Inc., but subsequently changed its name. (Crown Castle’s Comments at 1 n.1,
Reproduced Record (R.R.) at 52a.) Pennsylvania-CLE LLC also received a Certificate and, as a
result of a merger, both Crown Castle NG East LLC and Pennsylvania-CLE LLC are “wholly-
owned subsidiaries of a common parent.” (Id.) Throughout the country, Crown Castle owns and
operates “shared telecommunications infrastructure” in the amount of 15,000 DAS and small cell
installations, and more than 16,000 miles of fiber optic lines, and provides telecommunications
services via DAS networks. (Id. at 53a.) Crown Castle currently holds Certificates or the
equivalent in 46 states and in Puerto Rico and the District of Columbia, and it provides DAS
networks in more than 35 communities throughout Pennsylvania. (Id.)
5
These statements are available at http://www.puc.state.pa.us/pcdocs/1392246.pdf and
http://www.puc.state.pa.us/pcdocs/1392235.pdf (last visited June 6, 2018). Vice Chairman
Coleman served in that position until December 31, 2015, and remains on the Commission.
Commissioner Powelson is no longer a Commission member having been appointed to the Federal
Energy Regulatory Commission.
4
Commission did not have jurisdiction to regulate or issue Certificates to those
operators. See id.; Section 501 of the Code, 66 Pa. C.S. § 501 (setting forth the
Commission’s general powers to, inter alia, supervise and regulate all public utilities
in the Commonwealth). The Commission granted a Certificate to SQF, but directed
the opening of formal proceedings to investigate the question of whether DAS
network operators were public utilities over which the Commission had jurisdiction.
C. The Commission’s 2016 Investigatory Proceedings
In February 2016, the Commission opened a formal investigatory proceeding
on the jurisdictional question. In particular, this question was whether DAS network
operators were public utilities under subsection (1)(vi) as an entity that conveyed or
transmitted messages or communications, as they had been historically treated, or
fell within the exclusion from that definition set forth in subsection (2)(iv) for “[a]ny
person or corporation, not otherwise a public utility, who or which furnishes mobile
domestic cellular radio telecommunications service.” 66 Pa. C.S. § 102. The term
“mobile domestic cellular radio telecommunications service” is not defined in the
Code, but has been considered synonymous with the term “commercial mobile radio
service” (CMRS), (Reproduced Record (R.R.) at 18a n.4), which is defined by
Section 20.3 of the federal telecommunications regulations (Federal Regulations),
47 C.F.R. § 20.3.6 Traditionally, it is the WSPs that provide CMRS to their retail
6
CMRS is defined as “[a] mobile service that is: (a)(1) provided for profit, i.e., with the
intent of receiving compensation or monetary gain; (2) [a]n interconnected service; and
(3) [a]vailable to the public, or to such classes of eligible users as to be effectively available to a
substantial portion of the public.” 47 C.F.R. § 20.3. In pertinent part, an “interconnected service”
is “[a] service: (a) [t]hat is interconnected with the public switched network, or interconnected
with the public switched network through an interconnected service provider, that gives
subscribers the capability to communicate to or receive communication from other users on the
5
cell phone customers, because CMRS is an interconnected, mobile wireless
communication service that is provided to the public for profit. Vice Chairman
Coleman and Commissioner Powelson suggested that DAS network operators were,
in actuality, furnishing CMRS because the services and infrastructure the DAS
network operators offered to their WSP customers could not be separated from the
federally-regulated CMRS the WSPs offered to their own retail end-users. Under
this interpretation, they contended, the services provided by DAS network operators
were outside the Commission’s jurisdiction.
The investigation did not include a hearing, and, instead, the Commission
requested comments and reply comments from stakeholders regarding whether:
“DAS [operators] are public utilities under Pennsylvania law that can be
certificated”; “the Commission should or is required to certificate these carriers in
furtherance of federal law”; “DAS service is an interstate service, intrastate service,
or both”; and “a C[ertificate] is needed to confer property rights to DAS [operators]
to site the facilities/equipment used to provide DAS service, including access to
rights-of-way and eminent domain.”7 (R.R. at 19a.) Further, the stakeholders were
to address in their responses whether DAS network operators furnish CMRS, thereby
precluding them from being a public utility under subsection (2)(iv).
public switched network[.]” Id. “Mobile service” is “[a] radio communication service carried on
between mobile stations or receivers and land stations, and by mobile stations communicating
among themselves . . . .” Id. “Radio communication” “means the transmission by radio of writing,
signs, signals, pictures, and sounds of all kinds, including all instrumentalities, facilities, apparatus,
and services (among other things, the receipt, forwarding, and delivery of communications)
incidental to such transmission.” Section 153(40) of the Federal Telecommunications Act of 1996
(Federal Act), 47 U.S.C. § 153(40). A “‘mobile station’ means a radio-communication station
capable of being moved and which ordinarily does move.” Section 153(34) of the Federal Act, 47
U.S.C. § 153(34).
7
The Commission set forth additional questions for stakeholders to answer in an appendix
to the February 2016 Order.
6
Numerous stakeholders responded. Crown Castle and ExteNet Systems, Inc.8
(ExteNet) and organizations representing DAS network providers and owners of
telecommunications facilities, including CTIA – The Wireless Association (CTIA)
and PCIA – The Wireless Infrastructure Association (together, Industry
Stakeholders), responded with comments. Also responding were the Pennsylvania
Municipal League, the Pennsylvania State Association of Township Supervisors, the
Pennsylvania State Association of Boroughs, and the Pennsylvania State
Association of Township Commissioners (together, Municipal Stakeholders).
Finally, the Office of Consumer Advocate (Consumer Advocate) offered comments.
Industry Stakeholders indicated that DAS network operators should retain
their status as public utilities under subsection (1)(vi) as intrastate
telecommunications service providers, as they historically have been treated by the
Commission and numerous other jurisdictions. Industry Stakeholders maintained
that DAS network operators were not furnishing CMRS because they do not offer
mobile or wireless services regulated by the Federal Communications Commission
(FCC). Rather, DAS network operators offer wholesale point-to-point transport
services to WSPs, similar to those that were considered certificated
telecommunications services in Rural Telephone Company Coalition v.
Pennsylvania Public Utility Commission, 941 A.2d 751 (Pa. Cmwlth. 2008).
Although pursuant to Section 224 of the Federal Telecommunications Act of 1996
(Federal Act), 47 U.S.C. § 224 (addressing pole attachments for wireless facilities),
and FCC rulings, DAS network operators should be permitted access to municipal
and public utility rights-of-way to install DAS network facilities, Industry
Stakeholders stated they often needed to show a Certificate before being granted that
8
ExteNet Systems, Inc. (ExteNet) is a DAS network operator that holds a Certificate in
Pennsylvania and is also certificated in 35 states. (ExteNet’s Comments at 3, R.R. at 106a.)
7
access. Even potential clients, they indicated, have requested proof of a DAS
network operator’s Certificate before entering into an agreement with the operator.
Industry Stakeholders also commented that not providing DAS network operators
with Certificates, or stripping them of their existing Certificates, could violate
Section 253 of the Federal Act, 47 U.S.C. § 253,9 by impeding the operators’ ability
to compete in a fair and balanced regulatory environment.
Municipal Stakeholders took the position that DAS network operators were
expressly excluded from the definition of public utilities because they provide
interstate CMRS. According to Municipal Stakeholders, DAS network operators
provide CMRS because they facilitate traditional CMRS services. They contended
that continuing to grant Certificates to DAS network operators is inconsistent with
Commission precedent and with Rural Telephone because those operators do not
connect to the Public Switched Telephone Network (PSTN) and are primarily
interstate telecommunications CMRS falling within the FCC’s regulatory purview.
Municipal Stakeholders stated that federal law and Pennsylvania’s Wireless
9
Section 253(a) of the Federal Act provides, in pertinent part, “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.” 47
U.S.C. § 253(a). Section 253(b) states:
Nothing in this section shall affect the ability of a State to impose, on a
competitively neutral basis and consistent with section 254 of this title,
requirements necessary to preserve and advance universal service, protect the
public safety and welfare, ensure the continued quality of telecommunications
services, and safeguard the rights of consumers.
47 U.S.C. § 253(b). Section 253(c) allows 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.”
47 U.S.C. § 253(c).
8
Broadband Collocation Act10 amply protects DAS network operators’ ability to site
DAS facilities within public rights-of-way or on existing public utility facilities, and
they were unaware of any municipality or public utility requiring DAS network
operators to obtain a Certificate before allowing the placement of DAS facilities.
They further claimed that federal law does not require the Commission to issue
Certificates to DAS network operators, and the denial or rescission of Certificates to
those operators will not violate Section 253 of the Federal Act or any other federal
law. Granting Certificates, which confer an exemption from local zoning and the
power of eminent domain, to DAS network operators, Municipal Stakeholders
stated, would have a detrimental effect on local and state governments.
Consumer Advocate commented that DAS network operators were better
classified as providing interstate wholesale CMRS service than as a public utility.
Consumer Advocate posited that the Commission was not required by federal law to
issue Certificates to DAS network operators, and that DAS network operators
already have access to pole attachments under federal law. However, Consumer
Advocate was in favor of each certificated CAP being reviewed to determine
whether it otherwise qualified as a public utility.
Industry Stakeholders submitted responses to the comments of Municipal
Stakeholders and Consumer Advocate reiterating their earlier arguments, adding that
DAS network operators do not meet the federal definition of CMRS and pointing
out that those operators do not provide wholesale or other CMRS services but
intrastate transmission or transport path services to wireless carriers. PCIA
observed that finding an entity that facilitates traditional CMRS services to be a
CMRS provider would re-define numerous providers of non-DAS types of
10
Act of October 24, 2012, P.L. 1501, 53 P.S. §§ 11702.1-11702.6.
9
telecommunication services, such as traditional backhaul service11 providers, as
CMRS providers, an outcome that should be avoided.
II. The Commission’s 2017 DAS Order
After considering the comments and reply comments, the Commission
entered the DAS Order on March 17, 2017,12 reversing its historic treatment of DAS
network operators based on the Commission’s finding that they were not public
utilities because their “facilities furnish mobile domestic cellular radio
telecommunications service” and, therefore, were not subject to the Commission’s
jurisdiction or entitled to a Certificate. (DAS Order at 1, 33, 35.) The Commission
provided technological and legal explanations for its conclusion that DAS network
operators fall within the exclusion set forth in subsection (2)(iv).
Technologically, the Commission found that DAS networks consist of: (1) a
“[p]owered antenna[] and related signal conversion equipment” to receive and
transmit end-user wireless traffic and to convert the information (Node); (2) “[s]ome
form of ‘terrestrial’ transport (most likely fiber) that carries the traffic between the
DAS and WSP networks”; and (3) a connector “between the two networks, usually
located at the WSP’s switch or carrier hotel” (Hub). (Id. at 11.) The DAS network
antennas are located on existing utility poles, municipal light posts, buildings, and
other structures frequently in a public right-of-way – but, the Commission explained,
DAS network operators can also construct their own poles and facilities.
11
Backhaul service is the transport of traffic between a wireless carrier’s tower-mounted
antennas and the wireless carrier’s facilities. (CTIA’s Reply Comments at 3, R.R. at 208a.)
12
The DAS Order was adopted on March 2, 2017, but was not entered until March 17,
2017.
10
The Commission found that “DAS networks provide infrastructure on the
end-user side of the traditional CMRS carrier’s network” by allowing WSPs, which
are CMRS carriers and the DAS network’s customer, “to expand their networks in a
fast, cost-effective, and efficient manner.” (Id. at 10-11 (quoting ExteNet’s
Comment at 2).) The Commission recognized that it is the WSP, not the DAS
network operator, that exchanges the voice traffic to the PSTN and is responsible for
the hand-off to 911 emergency centers, with other carriers, or the PSTN. Similarly,
phone numbers are a part of the WSP’s function and are not needed for the operation
of the DAS network. Notwithstanding this, the Commission observed that the DAS
networks are used to connect the WSP’s retail end-user customer with the WSP’s
network, which, in turn, is connected with the PSTN. (Id. at 22.) Thus,
technologically, it found a link between the PSTN and the DAS network.
Legally, the Commission cited the Code’s statutory language, as well as
relevant Federal Regulations and FCC rulings, to determine that DAS network
operators were outside the Commission’s jurisdiction. Looking at the statutory
definitions in the Code, the Commission acknowledged that DAS network operators
met the initial legal definition of public utility because they operate “facilities that
convey or transmit messages or communications.” (Id. at 14.) However, the
Commission concluded that “DAS networks should be defined by their
functionality,” and DAS equipment “plays a vital and active role in the wireless
session by providing [the] antenna[s] that directly interface[] with the end-user’s
wireless device” as it both sends and receives the radio signal. (Id. at 18.) Focusing
on this point and the use of the DAS network equipment, the Commission read
subsections (1)(vi) and (2)(iv) together and construed the Code’s definition of public
utility as excluding “any person that operates equipment that ‘furnishes mobile
11
domestic cellular radio telecommunications service.’” (Id. (quoting 66 Pa. C.S.
§ 102).) This definition, according to the Commission, did not require “that the
service be a stand-alone offering.” (Id.) Turning to the dictionary, the Commission
observed that to “furnish” means “to provide” or “to supply.” (Id.) Applying those
definitions, the Commission concluded that DAS network facilities are used to
supply and provide personal wireless services to the WSPs’ customers. (Id.)
Because DAS network operators operate equipment that is used to furnish CMRS to
the WSPs’ customers, the Commission held that they also furnished “mobile
domestic cellular telecommunications service.” 66 Pa. C.S. § 102. Therefore, it
concluded, DAS network operators were expressly excluded from the definition of
public utility and could not “be certificated as public utilities under the Code.” (DAS
Order at 23.)
The Commission looked for additional support for this conclusion in the
Federal Regulations defining CMRS and in the FCC’s rulings related to siting
wireless facilities. Noting that DAS network facilities “utilize wireless (radio)
technology in order to provide personal wireless service” via the Nodes and Hubs,
and provide both a mobile and interconnected service through their relationship with
the WSPs and the WSPs’ end-user customers, the Commission found DAS networks
provided CMRS under the Federal Regulations. (Id. at 16, 21-22.) The Commission
found further support for its conclusion in the 2014 Wireless Infrastructure Order,
in which the FCC expanded certain siting advantages available to wireless facilities
under the Federal Act and prior FCC rulings to DAS facilities “to the extent . . .
[those] facilities . . . are or will be used for the provision of personal wireless
services.” (Id. at 15-16 (quoting 2014 Wireless Infrastructure Order at 12973)
(emphasis omitted).) Relying on this statement, the Commission concluded that the
12
FCC classified DAS networks as “a provider of ‘personal wireless service’” under
federal law, and, therefore, subject to the FCC’s regulations. (Id. at 16.)
The Commission considered Industry Stakeholders’ assertions that DAS
networks did not provide “wireless” services and that changing course would lead
to adverse consequences to the industry and a violation of federal law, but found
them unpersuasive. It was unpersuaded by the suggestion that DAS networks
provide landline service, via the use of fiber optic lines. The Commission found this
to be “an incomplete description of the DAS network” that was “unreasonably
restrictive” because the DAS network’s Nodes actively transmit or receive radio
frequency (RF) signals from the wireless end-user customer and convert the RF
signals to digital or optical format to be transported over the network’s fiber optic
lines. (Id. at 16-17.) The Commission was similarly unpersuaded by claims
regarding the potential adverse impact, observing “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.” (Id. at 23
(emphasis in original).) It held, however, that because DAS networks were covered
by the Federal Act and FCC’s rulings related to siting, there are existing provisions
guaranteeing DAS network operators the ability to attach their equipment to public
utility poles, place equipment in public rights-of-way, and avoid unreasonable
zoning restrictions. Finally, the Commission was not persuaded that it was
compelled by federal law to issue Certificates to an entity that did not qualify as a
public utility under the Code and there would be no violation of federal law because
it could not “see how allowing DAS networks to operate free from Commission
oversight form[ed]” a competitive barrier to market entry. (Id. at 23.)
13
For these reasons, the Commission held that DAS network operators were not
public utilities under the Code and were not entitled to Certificates for the operation
of their DAS network facilities. Thus, the Commission declared that: it would no
longer issue Certificates to DAS network operators; existing DAS network facilities
would not be affected by the DAS Order but Certificates could not be used (and were
not needed) to construct new DAS network facilities; and the Commission’s staff
would review the existing Certificates granted to DAS network operators to
determine whether the Certificates should be rescinded. (Id. at 35-36.)
Chairman Gladys M. Brown dissented. She observed that for over 20 years,
Certificates were granted to CAPs, which have included the wholesale
telecommunications transport services provided by DAS network operators. That
practice, according to Chairman Brown, should continue regardless of the
technological means by which those transport services are provided. She explained
that “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[s] under
federal law.” (DAS Order, Dissenting Statement of Chairman Gladys M. Brown at
2.) Thus, Chairman Brown disagreed with the DAS Order that “any use of wireless
technology by any DAS [operator] prohibit[ed] the Commission from granting
C[ertificates].” (Id. at 1.) Chairman Brown explained that “[t]he Commission must
distinguish between the DAS [operators’] common carrier wholesale
telecommunications service which relies on fixed wireless technology, which is
within the Commission’s jurisdiction, from the retail mobile wireless service sold to
consumers that is not regulated by the Commission under Section 102.” (Id.) The
DAS operators, she stated, rely partially on wireless technology, but own no
14
spectrum, need no phone numbers, and serve all carriers. This is unlike retail
wireless companies, the WSPs, which serve only their own customers, own
spectrum, and need phone numbers to operate. Chairman Brown observed that DAS
networks provide indirect transport to the PSTN not only to wireless calls, but also
to wireline calls and 911 calls. The harm, she asserted, in refusing to grant
Certificates to DAS network operators, could not be overstated. The refusal to grant
Certificates to these DAS network operators could negatively impact the resolution
of conflicts between local municipalities and DAS network operators, future
investment in DAS networks in Pennsylvania, and the ability of neutral DAS
network operators to compete. (Id. at 2.) According to Chairman Brown,
“[c]ontinuing the practice of granting C[ertificates] to DAS [network operators] is
more consistent with federal and state law especially in light of [the Commission’s]
prior practice and overwhelming comments in support of certification.” (Id. at 1.)
Now-Vice Chairman Andrew G. Place also disagreed. He stated “[t]here is
no technical or legal reason to discontinue the past practice of the Commission in
granting such applications” so long as the DAS network operator meets “the
requisite statutory and regulatory requirements under applicable Pennsylvania and
federal law.” (DAS Order, Dissenting Statement of Vice Chairman Andrew G. Place
at 1.) He concluded that the Commission’s current practice of granting Certificates
to DAS network operators as telecommunications carriers was consistent with the
Federal Act, Pennsylvania law, adjudications, and appellate decisions. (Id.)
According to Vice Chairman Place, these “actions have facilitated wholesale
interconnection arrangements and agreements between competing
telecommunications carriers,” which have had “beneficial effects for employment,
economic development, and new business models.” (Id. at 2.) Vice Chairman Place
15
noted that DAS network operators’ use of technology and architecture “for the
wholesale transport of telecommunications and communications traffic does not
technically and legally remove them from the Commission’s jurisdiction” or
transform those operators into WSPs or CMRS providers. (Id.) Vice Chairman
Place believed there would be negative consequences from ending the practice of
certificating DAS network operators that are unsustainable under Pennsylvania and
federal law and that would create levels of uncertainty “not conducive to attracting
innovative competitive telecommunications carriers to enter and operate within the
Commonwealth.” (Id. at 5-7.)
Now-Commissioner Coleman issued a statement in support of the DAS Order
acknowledging that both sides made reasonable arguments on whether DAS network
operators are public utilities. (DAS Order, Statement of Commissioner John F.
Coleman, Jr. at 1.) However, Commissioner Coleman ultimately agreed with the
DAS Order, concluding that DAS network operators provided a mobile and
interconnected service and, as such, were furnishing CMRS, a service that was
outside the Commission’s jurisdiction. (Id.) He recognized the concerns of DAS
network operators regarding their access to public rights-of-way and utility poles
absent a Certificate, but did not agree that this should result in the continued
treatment of those operators as public utilities under the Code. (Id. at 2.) Rather,
Commissioner Coleman believed the existing siting rules for wireless facilities’
infrastructure should provide sufficient protection for the DAS network operators to
deploy their facilities effectively. (Id.)
Crown Castle and ExteNet filed timely petitions for reconsideration,
requesting the Commission to review the DAS Order based on alleged errors of law,
overlooked arguments, and new facts. The Commission granted the petitions
16
pending further review and consideration of the merits of the petitions on April 10,
2017. (R.R. at 356a-57a.) After considering their merits, the Commission
determined that the petitions did not raise any new arguments in response to the DAS
Order, but were seeking another bite at the apple. The Commission disagreed that
it overlooked or left unaddressed their prior arguments. Thus, the petitions did not
meet the standard for the grant of reconsideration and were denied. Vice Chairman
Place dissented, stating that the petitions met the standard for substantive
reconsideration and that the DAS Order should be reversed for the reasons set forth
in the petitions.
Crown Castle filed a Petition for Review with this Court on June 2, 2017,
seeking judicial review of both the DAS Order and the May 4, 2017 Reconsideration
Order. Crown Castle filed an Application for Stay or Supersedeas of the
Commission’s Orders, which this Court granted on August 29, 2017. Following
briefing and oral argument, this matter is ready for disposition.13
III. Discussion
A. Parties’ Arguments
Crown Castle argues the Commission erred in reversing its decade-long
treatment of DAS network providers as public utilities under the Code. It maintains
the DAS Order is based on erroneous interpretations of the Code’s definition of
public utility and is inconsistent with this Court’s precedent and other jurisdictions’
13
“[A]ppellate review of an Order of the Commission is limited to[] . . . determining . . .
whether[: (1)] a constitutional violation or error in procedure has occurred; (2) the decision is in
accordance with the law[;] and (3) the necessary findings of fact are supported by substantial
evidence.” PECO Energy Co. v. Pa. Pub. Util. Comm’n, 791 A.2d 1155, 1160 (Pa. 2002). “With
respect to issues of law, our standard of review is de novo and our scope of review is plenary.”
Coal. for Affordable Util. Servs. and Energy Efficiency in Pa. v. Pa. Pub. Util. Comm’n, 120 A.3d
1087, 1095 (Pa. Cmwlth. 2015).
17
treatment of DAS networks. Crown Castle asserts the Commission erred in
interpreting the Code’s definition of public utility as excluding it, and other DAS
network operators, because they are not providers of CMRS, but of
telecommunications services that fall within the Commission’s jurisdiction. Crown
Castle claims the Commission’s extension of the exclusion set forth in subsection
(2)(iv) from a person or corporation that “furnishes mobile domestic cellular radio
telecommunications service,” 66 Pa. C.S. § 102, to a person or corporation that owns
or operates equipment that facilitates the furnishing of that service goes beyond the
clear statutory language and should not be sanctioned by the Court. In particular,
Crown Castle argues, the Commission impermissibly added the phrase “that
operates equipment that facilitates” the furnishing of CMRS to subsection (2)(iv),
id. (emphasis added), and misinterpreted multiple federal definitions relating to what
constitutes CMRS to justify its position.
Moreover, Crown Castle argues, the Commission’s change in its longstanding
treatment of DAS network operators, which was consistent with that of public utility
commissions in other jurisdictions, is based on the Commission’s conflation of the
services provided by the DAS network operators’ customers, i.e., the WSPs, with
those provided by the DAS network. While the WSPs provide CMRS to their end-
user cell phone customers, DAS networks provide only underlying transport services
via its fiber optic lines to the WSPs, similar to the transport path services found to
be valid public utility services in Rural Telephone. That the WSPs “incorporate
Crown Castle’s transport service as a component part of their provision of mobile
service does not convert Crown Castle’s RF transport service into a mobile service.”
(Crown Castle’s Brief (Br.) at 38.) Crown Castle observes that this Court, in Rural
Telephone, rejected similar arguments seeking to conflate the services of one entity
18
with the services provided by that entity’s customer, and it should do so again
here.14,15
The Commission responds that it did not err in concluding that DAS network
operators are not public utilities because its interpretation of the Code is reasonable
and is consistent with the 2014 Wireless Infrastructure Order and federal law.
Contrary to Crown Castle’s contentions, the Commission maintains, its
interpretation of subsection (2)(iv) is consistent with the principles of statutory
construction and that, as the agency charged with implementing the Code, its expert
interpretation of the Code is entitled to great deference. Popowsky v. Pa. Pub. Util.
Comm’n, 706 A.2d 1197, 1203 (Pa. 1997). While Crown Castle reads subsection
(2)(iv) in a restrictive fashion, focusing solely on the word “furnishes” to argue that
the Commission erred, the Commission points out that “owning or operating . . .
equipment or facilities” is found in the general definition of public utility set forth
in subsection (1)(vi). 66 Pa. C.S. § 102. It contends it properly read the two
provisions together to reach a reasonable result. Moreover, the Commission argues,
14
Crown Castle provides additional argument on how: certain necessary findings of fact
are not supported by substantial evidence; the Commission disregarded the language “otherwise a
public utility” in subsection (2)(iv), 66 Pa. C.S. § 102; the DAS Order adversely affects Crown
Castle and other DAS network providers; and the DAS Order violates Section 253 of the Federal
Act, 47 U.S.C. § 253. However, because of our disposition, we will not address these additional
arguments.
15
ExteNet has intervened in this matter, and in addition to adopting Crown Castle’s brief,
argues the Commission erred in its interpretation of subsection (2)(iv) by adding language to that
provision resulting in an expansion of that section’s scope and meaning. It further argues the
Commission did not consider whether DAS network operators furnish CMRS, but focused on the
utilization of DAS network facilities that are leased by WSPs to furnish CMRS to the WSPs’
customers, which is not how the subsection (2)(iv) exclusion is drafted. That a DAS network
operator’s customer may be furnishing CMRS using leased DAS network facilities does not,
ExteNet contends, convert the DAS network operator into a furnisher of CMRS. ExteNet
maintains that DAS networks do not and cannot furnish CMRS but do provide, similar to the
telecommunications carrier in Rural Telephone, point-to-point telecommunications transport
services on a wholesale basis to non-utility CMRS providers.
19
the General Assembly could not have meant “for an entity to circumvent the
exclusion set forth in [subs]ection (2)(iv) by claiming only to ‘facilitate’ the
furnishing of CMRS with its network to third-party CMRS providers instead of
furnishing the CMRS outright itself to retail customers.” (Commission’s (Comm’n)
Br. at 22-23.) Because DAS networks are “nothing more than a conduit from a
mobile phone user to the CMRS provider’s network, thereby extending that mobile
wireless network,” DAS networks “essentially furnish[] non-jurisdictional mobile
domestic cellular radio telecommunications service.” (Id. at 23.)
Additionally, the Commission maintains its interpretation is consistent with
the FCC’s rulings that DAS networks, including neutral-host deployments and their
facilities, such as the antenna, are personal wireless service facilities. It was on this
basis, the Commission asserts, that the FCC extended the siting protections given to
wireless facilities to DAS networks in the 2014 Wireless Infrastructure Order.
Moreover, its conclusion that DAS networks provide CMRS is amply supported by
the record and by the federal regulations defining CMRS. Here, DAS network
facilities accept and transport RF signals from WSPs’ retail end-users’ mobile
devices that will re-connect with the WSP’s network, and which will, ultimately,
connect with the PSTN. Thus, DAS networks are used to provide a mobile,
interconnected service to the public for profit and meet the definition of CMRS.16
16
Municipal Stakeholders intervened in support of the DAS Order and argue, inter alia,
that the Commission’s interpretation of the Code is entitled to deference because it is not
erroneous, but is consistent with the subsection (2)(iv), the Federal Act, and Federal Regulations
defining CMRS, the findings of the FCC, and the weight of the evidence. They maintain that the
distinction cited by Crown Castle between companies “that furnish” CMRS and companies “that
operate equipment” that furnishes CMRS is one without a difference and that it is not possible to
“furnish” CMRS without operating equipment that facilitates furnishing that service. They further
argue Crown Castle and other DAS network operators do not provide services to the public at large
and, therefore, should not be considered public utilities. Additionally, they challenge Crown
20
In its reply brief, Crown Castle reiterates several of the arguments set forth in
its initial brief. It also points out that the Commission recognized in its appellate
brief that subsection (2)(iv) is unambiguous17 and, therefore, Crown Castle asserts,
the Commission should have interpreted that subsection in accordance with the
language actually used by the General Assembly. Despite this, Crown Castle asserts,
the Commission added language to subsection (2)(iv) that focused on the use of
equipment owned or operated by DAS network operators, rather than on whether the
DAS network operators were themselves furnishing CMRS. Crown Castle claims
the Commission’s interpretation ignores the actual language the General Assembly
used in subsection (2)(iv), conflicts with the General Assembly’s intent, and changes
the effect of the subsection.
B. Analysis
With these arguments in mind, we turn to the issues before us – whether the
Commission’s interpretation of the definition of public utility and the exclusion set
forth in subsection (2)(iv) of that definition is consistent with the statutory language,
this Court’s precedent, the treatment of DAS network operators in other
jurisdictions, and federal law. We begin by reviewing the statutory language to
determine if it supports the Commission’s new interpretation.
Castle’s assertion that it will suffer adverse consequences from not having its Certificate, pointing
to the federal protections for the siting of wireless facilities, which, per the 2014 Wireless
Infrastructure Order, include DAS networks.
17
Crown Castle quotes the following from the Commission’s Brief: “The Petitioners
cannot argue that the relevant exclusion set forth in [subs]ection [](2)(iv) of the Code is
ambiguous.” (Comm’n’s Br. at 17.)
21
i. The Statutory Language
The touchstone of interpreting statutory language “is to ascertain and
effectuate the intention of the General Assembly.” Section 1921(a) of the Statutory
Construction Act of 1972, 1 Pa. C.S. § 1921(a); Colville v. Allegheny Cty. Ret. Bd.,
926 A.2d 424, 431 (Pa. 2007). “Every statute shall be construed, if possible, to give
effect to all of its provisions.” 1 Pa. C.S. § 1921(a). A guiding principle of statutory
construction is that, “[w]hen the words of a statute are clear and free from all
ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its
spirit.” 1 Pa. C.S. § 1921(b). It is only when the words of the statute are ambiguous
or unclear that courts will apply the principles of statutory construction to determine
the intent of the General Assembly. 1 Pa. C.S. § 1921(c); Zane v. Friends Hosp.,
836 A.2d 25, 31 (Pa. 2003).
“A statute is ambiguous when there are at least two reasonable interpretations
of the text under review.” Warrantech Consumer Prods. Servs., Inc. v. Reliance Ins.
Co. in Liquidation, 96 A.3d 346, 354-55 (Pa. 2014). When a statute is ambiguous,
we are guided by certain principles, including that courts “have no authority to add
or insert language into a statute” and should not, through interpretation, add a
requirement that the General Assembly did not include. Summit Sch., Inc. v. Dep’t
of Educ., 108 A.3d 192, 199 (Pa. Cmwlth. 2015). However, there are times where
“[w]ords and phrases which may be necessary to the proper interpretation of a statute
. . . may be added in the construction thereof,” but not if the added language would
“conflict with [the statute’s] obvious purpose and intent” or “in any way affect [the
statute’s] scope and operation.” Section 1923(c) of the Statutory Construction Act
of 1972, 1 Pa. C.S. § 1923(c).
22
As in all statutory construction matters, we begin with the relevant statutory
language. Section 102 of the Code defines public utility as:
(1) Any person or corporations now or hereafter owning or
operating in this Commonwealth equipment or facilities for:
***
(vi) Conveying or transmitting messages or communications,
except as set forth in paragraph (2)(iv), 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.
66 Pa. C.S. § 102 (emphasis added). The Commission found that DAS network
operators fall within the general definition of public utility because they operate
“facilities that convey or transmit messages or communications.” (DAS Order at
14.) However, in subsection (2)(iv), the General Assembly specifically excluded
from this definition “[a]ny person or corporation, not otherwise a public utility,
who or which furnishes mobile domestic cellular radio telecommunications
service,” in other words, furnishes CMRS. 66 Pa. C.S. § 102 (emphasis added).
Here, the Commission construed the Code’s statutory language as excluding
from its “jurisdiction any person that operates equipment that ‘furnishes mobile
domestic cellular radio telecommunications service’” and found that DAS network
operators operate such equipment. (DAS Order at 18 (quoting subsection (2)(iv)).)
The Commission argues this interpretation is entitled to substantial deference
because of the highly technical nature of the Code and the Commission’s role in
implementing the Code. While this level of deferential review is generally
applicable to Commission interpretations of the Code, Dauphin County Industrial
Development Authority v. Pennsylvania Public Utility Commission, 123 A.3d 1124,
1133 (Pa. Cmwlth. 2015), the Commission’s interpretation in the DAS Order
23
deviates from its historical interpretation and application of the Code to DAS
network operators and, as such, is not entitled to much deference.
“An administrative agency may revise and correct its prior interpretation of a
statute”; but “it cannot expect that its later interpretation is entitled to very
much deference.” Id. at 1135 (emphasis added); see also Mazza v. Sec’y of Dep’t
of Health and Human Servs., 903 F.2d 953, 958 (3d Cir. 1990) (an agency’s
interpretation of its statute is entitled to little deference when it is at odds with a prior
interpretation). There has been no change in the Code since the Commission began
granting Certificates to DAS network operators in 2005. Yet, in 2017, the
Commission reversed course and decided, notwithstanding this longstanding
practice, that it no longer had jurisdiction because DAS network operators were not
public utilities. Given the very recent change in its interpretation of the Code, the
Commission’s interpretation set forth in the DAS Order is not entitled to much
deference. Dauphin Cty. Indus. Dev. Auth., 123 A.3d at 1135; Mazza, 903 F.2d at
958.
By its express terms, subsection (2)(iv) excludes from the definition of public
utility only a “person or corporation, not otherwise a public utility, who or which
furnishes mobile domestic cellular radio telecommunications service,” i.e., CMRS.
66 Pa. C.S. § 102 (emphasis added). Unlike the general definition of public utility
in subsection (1), subsection (2)(iv) does not include the phrase “owning or
operating . . . equipment or facilities.” Id. Nevertheless, in reaching its conclusion
excluding DAS network operators from the definition of public utility, the
Commission added that language to subsection (2)(iv), thereby expanding the scope
of the statutory exclusion. Under the Commission’s interpretation, the exclusion
now includes not only a person or company that “furnishes” CMRS, but also any
24
person or company who owns or operates equipment that is used, pursuant to a
service agreement, in furnishing CMRS, even if that person or company does not,
itself, furnish CMRS. However, words and phrases may not be added to a statute
if the addition will “in any way affect its scope and operation.” 1 Pa. C.S.
§ 1923(c) (emphasis added). The addition of language is not warranted where the
existing statutory text makes sense as it is written and the implied reading of words
into that text “change[s] the existing meaning or effect of the actual statutory
language.” Pa. Sch. Bds. Ass’n, Inc. v. Pub. Sch. Emps. Ret. Bd., 863 A.2d 432, 439
(Pa. 2004). The existing statutory text of subsection (2)(iv), as written, makes sense,
and the Commission’s implied reading of “that operates equipment” into that text
“change[s] the existing meaning or effect of the actual statutory language” by
expanding its application to entities that do not fall within the plain language of the
statutory exclusion. Id.
The Commission maintains that its construction of subsection (2)(iv) is
necessary to prevent entities from circumventing the exclusion, a result that the
General Assembly must not have intended. However, “where the legislature
includes specific language in one section and excludes it from another section, the
language may not be implied where excluded” and “the omission of such a provision
from a similar section is significant to show a different legislative intent.”
Commonwealth v. Mazzetti, 44 A.3d 58, 67 (Pa. 2012); see also Popowsky, 706 A.2d
at 1203 (stating “when the legislature includes specific language in one section of a
statute and excludes it from another, it should not be implied where excluded”)
(internal quotation omitted). In drafting the exclusion, the General Assembly chose
not to include the broader owner/operator of equipment/facilities language found in
subsection (1) in subsection (2)(iv). The omission of this language in subsection
25
(2)(iv) must be given effect in ascertaining the General Assembly’s intent, which the
Commission’s more expansive interpretation does not do. For these reasons, the
Commission’s new interpretation of subsection (2)(iv) set forth in the DAS Order is
not supported by the statutory language.
ii. This Court’s Precedent and the Determinations of Other
Jurisdictions
Although we conclude the Commission’s new interpretation is not supported
by the statutory language, our inquiry is not over because we must also consider
whether DAS network operators’ services include actually furnishing CMRS.
Crown Castle asserts that the Commission’s conclusion that DAS network operators
furnish CMRS is erroneous because its network cannot furnish (supply or provide)
CMRS where it: has no control over the generation of the radio transmissions that
are transported via its network; has no license for spectrum to facilitate the radio
communication between the Node and the end-user’s cell phone – the WSP owns
that spectrum; and has no customer relationship with that end-user – who is the
WSP’s customer. Rather, Crown Castle asserts, it provides transport path service
for its WSP customers’ wireless communications and such service is a certificated
telecommunications service. Rural Telephone, 941 A.2d at 758-59. The DAS
Order’s conflation of the transport services DAS network operators provide to their
WSP customers with the CMRS the WSP provides to its retail end-user cell phone
customer, Crown Castle argues, is contrary to this Court’s decision in Rural
Telephone and inconsistent with the determinations of other jurisdictions.
There is no dispute that the WSPs have contracts with their retail cell phone
customers whereby the WSPs provide phone numbers and CMRS to those customers
or that it is the WSPs that own the spectrum over which those customers’ radio
26
signals are transmitted. In contrast, to provide the services offered by DAS network
operators, those operators own no spectrum, need no phone numbers, and their
contractual relationship is solely with the WSP, not with the retail cell phone user.
Furthermore, while the Commission indicated that the DAS network “transmits (or
receives) the radio signals to (and from) the wireless end-user customer,” (DAS
Order at 17), the DAS network operator has no control over the generation of that
signal. Until such radio signals are generated by the WSP and its end-user, there is
nothing for the DAS network to do. Under these circumstances, it does not appear
the DAS network operator can, itself, furnish CMRS. However, in concluding that
DAS network operators were not public utilities under subsection (2)(iv), the
Commission focused not on whether the DAS networks could actually furnish
CMRS, but on the fact that DAS networks were used by the WSP to furnish the
WSP’s CMRS. In doing so, the Commission conflated the CMRS of the DAS
network operators’ customers with the transport path services of the DAS network
operator. Such conflation, as Crown Castle argues, is contrary to this Court’s
decision in Rural Telephone.
In Rural Telephone, Core Communications (Core) sought approval to provide
additional connectivity services to internet service providers (ISPs) in new service
territories. 941 A.2d at 753. ISPs, among others, contracted with Core for the
provision of transmission path services for their internet services. The ISPs were
Core’s only customers, and Core offered no services directly to the general public.
Similar to the arguments that DAS network operators furnish CMRS, the objectors
in Rural Telephone argued that Core was a wholesale ISP and granting it a
Certificate would give it a competitive advantage over other ISPs. Id. at 756, 763.
However, this Court held that Core’s “transmission path service [was] a
27
telecommunication service under the Code,” and that while the “internet service
[was] an information service” that did not fall within the Commission’s jurisdiction,
“the transmission path needed to provide that internet service is a telecommunication
service” under state and federal law. Id. at 758. Further, consistent with the purpose
of encouraging competition, we concluded that Core now had “the ability to provide
an alternative transmission path service” allowing its ISP customers to compete with
other ISPs in that area. Id. at 759. Finally, we noted that, although Core provided
services to a limited class of customers, the ISPs, rather than the general public, it
still provided a public utility service “for the public.”18 Id. at 760.
In the DAS Order, the Commission concluded that the transport services
provided by DAS network operators were the equivalent of the CMRS provided by
the WSPs to their customers. However, pursuant to Rural Telephone, DAS network
operators’ transport service, which conveys or transmits messages or
communications to the public for compensation, is a telecommunications service
under the Code notwithstanding the fact that the WSPs use it to transmit a service
not regulated by the Commission, here CMRS. Id. at 758-59. Consistent with Rural
Telephone, Chairman Brown persuasively explained in her Dissenting Statement
that “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” provide that transport service.
(Dissenting Statement of Chairman Brown at 1 (emphasis added).) Thus, like Core
in Rural Telephone, Crown Castle and other neutral-host DAS network operators
offer contractual transport services to their WSP customers that should not, as the
18
Thus, the fact that Crown Castle and other neutral-host DAS network operators provide
services to WSPs, rather than the general public, does not preclude their status as a public utility.
Rural Telephone, 941 A.2d at 760.
28
Commission did in the DAS Order, be equated to the CMRS offered by the WSP,
over which the Commission has no jurisdiction. Yet, the DAS Order does not
distinguish between the transport path service, which relies on fixed wireless
technology and is otherwise within the Commission’s jurisdiction, from the CMRS
transported along that path, which the WSPs sell to their customers and is not
regulated by the Commission under Section 102 of the Code. As such, the
Commission’s conclusion that DAS network operators actually furnish CMRS on
this basis is inconsistent with Rural Telephone.
This reasoning is consistent with that in other jurisdictions, which have
recognized that the transport services offered by DAS networks are
telecommunications services that are properly certificated as public utilities. For
example, the Texas Public Utility Commission (Texas Commission) considered, in
2017, whether ExteNet’s DAS network system, which provided transport services
for CMRS providers, constituted a wireless service. Compl. of ExteNet Network
Sys., Inc., against the City of Houston for Imposition of Fees for Use of Pub. Right
of Way, PUC Docket No. 45280, SOAH Docket No. XXX-XX-XXXX, 2017 WL
2079683, at *4 (Tex. P.U.C. 2017). After holding a formal evidentiary hearing, the
Texas Commission determined, based on a similar technical description of the DAS
networks here, that ExteNet was providing a telecommunications service, not a
CMRS service. Id. at *2. The Texas Commission concluded ExteNet did not
provide a wireless or mobile service because, inter alia, it: lacked the right to use
specific radio spectrum under a FCC license; had no spectrum allocated to its
telecommunication services; could not independently provide a radio
communication service; does not send or “receive[] any radio communications until
activated by ExteNet’s CMRS retail customer”; and did not offer CMRS to end-user
29
customers. Id. at *4-5. Similar to ExteNet’s DAS network in Texas, the DAS
networks Crown Castle and other neutral-host DAS network operators own have no
spectrum, need no phone numbers to operate, cannot independently provide a radio
communication service, and are activated only by the CMRS retail customer.
In California, the California Public Utilities Commission (California
Commission) granted NextG Networks of California, Inc. (NextG), a certificate of
public convenience “to provide [RF] transport services” by placing “microcells and
antennas on existing utility poles” to “augment [wireless] carriers’ geographic
wireless coverage and improve system capacity.” City and Cty. of San Francisco v.
NextG Networks of Cal., Inc., Nos. 05-03-010, 06-01-006, 2006 WL 151886, at *1
(Cal. P.U.C. 2006), slip op. at 1 (referencing a prior California Commission order
granting that authority to NextG). Denying a challenge to NextG’s attempts to attach
its network components in public rights-of-way, the California Commission
confirmed that NextG had the authority, via its certificate, to provide RF transport
services via its network as a telecommunications service. Id. at *3-4, slip op. at 3-
6. In doing so, the California Commission observed that its decision was consistent
with its treatment of services similar to NextG’s RF transport services, such as a
DAS network service operated by Crown Castle Solutions Corporation and the
installation of microwave antennas. Id. at *3, slip op. at 6. Like NextG in California,
Crown Castle and other neutral-host DAS network operators in Pennsylvania are
providing RF transport services via their networks as a telecommunications service.
We also note that this Court, in Rural Telephone, recognized the importance
of encouraging competition through the availability of alternative transmission path
services. Because Crown Castle and the DAS networks at issue here are neutral-
host networks, they provide an alternative transmission path service that transports
30
calls from the customers of multiple WSPs. Their expansion can encourage
competition by allowing multiple WSPs to utilize those networks to expand and
improve the WSPs’ coverage in a particular area. Holding, as the Commission does
in the DAS Order, that these DAS networks are not public utilities could hinder the
development of “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,” as well as to offload “traffic onto fiber networks that, in
turn, indirectly connect to the PS[T]N” that can include wireline and 911 calls.
(Dissenting Statement of Chairman Brown at 2.) Accordingly, the Commission’s
change in its treatment of DAS network operators also is inconsistent with Rural
Telephone’s recognition that competition is encouraged through the certification of
providers of wholesale transport services, even if the services being transported do
not, themselves, fall within the jurisdiction of the Commission.
For these reasons, it cannot be said that DAS network operators’ services
include actually furnishing CMRS. This Court, in Rural Telephone, recognized that
the Code treats transmission services as telecommunications services that fall within
the Commission’s jurisdiction even if they transmit non-jurisdictional services, and
at least two other jurisdictions have found that the provision of RF transport services
via a DAS network is a telecommunications service entitled to a certificate of public
convenience. While the Commission’s prior interpretation of the Code was
consistent with these decisions, its new interpretation set forth in the DAS Order is
not.
iii. The FCC’s 2014 Wireless Infrastructure Order
31
Finally, we turn to the Commission’s contention that its new interpretation
treating DAS network operators as furnishing CMRS is supported by the FCC’s
2014 Wireless Infrastructure Order. In the 2014 Wireless Infrastructure Order, the
FCC explained that certain siting protections set forth in the Federal Act and the
FCC’s rulings for wireless facilities would apply to DAS facilities, including neutral-
host DAS deployments, “to the extent [those facilities] are or will be used for the
provision of personal wireless services.” 2014 Wireless Infrastructure Order at
12973. Notably, Section 332(c)(7)(C) of the Federal Act separately defines
“personal wireless services” and “personal wireless service facilities” as:
(i) the term “personal wireless services” means commercial mobile
services, unlicensed wireless services, and common carrier wireless
exchange access services;
(ii) the term “personal wireless service facilities” means facilities for
the provision of personal wireless services; . . . .
47 U.S.C. § 332(c)(7)(C). Thus, the Federal Act distinguishes between “personal
wireless services,” which includes CMRS, and the facilities that are used to provide
“personal wireless services.” Id. It does not equate the two as both being “personal
wireless services.” Accordingly, when the FCC extended the siting protections for
wireless facilities to neutral-host DAS network facilities when they are used to
provide personal wireless services, it did not find, as the Commission held in the
DAS Order, that the DAS networks, themselves, were providers of personal wireless
services.
Moreover, the question before the FCC in the 2014 Wireless Infrastructure
Order was not whether the DAS network operators were providing CMRS, but
whether expanding the siting protections to those networks, whose facilities are
used to provide wireless service, was consistent with the Federal Act, regulations,
32
and the FCC’s rulings. This is different from the question before the Commission,
which was whether Crown Castle, and other neutral-host DAS network operators,
should continue to receive Certificates as providers of telecommunications transport
services or whether DAS network operators are “furnishing” CMRS and excluded
from the definition of public utility. Unlike Section 332(c)(7)(C) of the Federal Act,
which separately addresses “personal wireless services” and “personal wireless
service facilities,” the exclusion set forth in subsection (2)(iv) applies only to those
persons or companies that furnish the CMRS itself and does not, by its terms, address
those that operate facilities that are used to provide CMRS that do not, themselves,
furnish CMRS. Therefore, we are not persuaded by the Commission’s reliance on
the 2014 Wireless Infrastructure Order to support its new interpretation of
subsection (2)(iv).
IV. Conclusion
For 10 years, the Commission granted Certificates to DAS network operators
as public utilities, which allowed for the continued development and expansion of
small cell technology to provide transmission services to support the increasing
demand for wireless communications services throughout the Commonwealth. The
Commission’s 2017 change in its interpretation was prompted by jurisdictional
concerns related to whether those operators were, in actuality, furnishing CMRS
regulated by the FCC. However, for the reasons discussed above, the Commission’s
new interpretation of the Code to exclude DAS network operators from the definition
of public utility under subsection (2)(iv) because they furnish CMRS is not
supported by the plain language of the Code or the principles of statutory
construction, the precedent of this Court, the determinations of public utility
33
commissions in other jurisdictions, or the 2014 Wireless Infrastructure Order.
Accordingly, the Commission’s Orders are reversed.
_____________________________________
RENÉE COHN JUBELIRER, Judge
Judge Brobson did not participate in the decision in this case.
34
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Crown Castle NG East LLC and :
Pennsylvania-CLE LLC, :
Petitioners :
:
v. : No. 697 C.D. 2017
:
Pennsylvania Public Utility :
Commission, :
Respondent :
ORDER
NOW, June 7, 2018, the March 17, 2017 and May 4, 2017 Orders of the
Pennsylvania Public Utility Commission, entered in the above-captioned matter, are
REVERSED.
_____________________________________
RENÉE COHN JUBELIRER, Judge