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.
2

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.
3

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).
4

***

(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. A2015-2490501 (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 “whollyowned 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.
5

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 
6

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 operatorsfurnish 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.
7

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.)
8

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). 
9

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.
10

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.
11

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 
12

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 
13

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.)
14

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 
15

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 
16

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 
17

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).
18

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 enduser 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 
19

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. 
20

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 
21

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.)
22

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).
23

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 
24

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
25

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 
26

(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 
27

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 
28

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. 
29

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. 473-16-1861, 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 
30

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 neutralhost networks, they provide an alternative transmission path service that transports 
31

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
32

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 rulingsfor wireless facilities would apply to DAS facilities, including neutralhost 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, 
33

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 operatorsfrom 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 
34

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.
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 :

O R D E R

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