In an earlier blog post, we discussed how the Commonwealth Court reversed the decision by the Pennsylvania Public Utility Commission (“PUC”) to no longer issue certificates of public convenience to neutral host distributed antenna system (“DAS”) network operators. Having a certificate of public convenience is important to a DAS network operator since it affords the operator access to public rights-of-way and limits the applicability of municipal regulation to DAS networks. The Commonwealth Court had determined that the PUC’s new interpretation of the statutory language was not entitled to much deference and was not supported by the statutory language, precedent or federal law. The PUC appealed and the Pennsylvania Supreme Court recently affirmed the Commonwealth Court’s decision.
The Court first held that the Commonwealth Court was correct in its determination that the PUC’s interpretation of the statute at issue was not entitled to deference by the appellate court since the statute was unambiguous. Next, the Court concluded that neutral host DAS network operators fall within, and are not excluded from, the definition of a public utility. The critical distinction for the Court was the difference between operating equipment that allows a service to be provided versus actually providing the service. Neutral host DAS networks don’t actually furnish the service. They provide the infrastructure (e.g., antenna nodes, fiber lines, etc.) that allows the services to be to be provided by the wireless service providers. Lastly, the Court concluded that the finding that neutral host DAS network operators are public utilities was consistent with both federal law and the Commonwealth Court’s precedent.
Following the Court’s decision, neutral host DAS network operators will continue to be recognized as public utilities in Pennsylvania and be issued certificates of public convenience. As a result, they will continue to have access to public rights-of-way and municipal regulation of their networks will be limited.
Please contact any member of the McNees Wallace & Nurick Land Use Group with questions regarding this post or for assistance with any land use issues.