by Gary Taylor

Section 6409(a) of the Spectrum Act provides:

[A] state or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.

This post will focus on the FCC’s guidelines for the review of applications for collocation, modification, and replacement of wireless facilities. Again, the FCC ruling generally sided with the wireless industry with its permitting and timeline guidance.

Applications. The FCC ruling does permit local governments to require an application to allow local officials to determine whether the proposed facility changes are covered by Section 6409(a). The FCC found that nothing in 6409(a) indicates that local governments must approve requests merely because applicants claim they are covered. The ruling, however, prevents local governments from requiring any documentation beyond that needed to determine whether the request is covered by Section 6409(a); local governments may not require documentation “proving the need for the proposed modification or presenting the business case for it.”

Timelines. The FCC also established a “specific and absolute timeframe” for processing of requests under Section 6409(a): 60 days, including review to determine whether an application is complete. If an application has not been approved or denied within 60 days from the date of filing (with the exceptions noted below), the request will be deemed granted. The “deemed granted” becomes effective after the applicant notifies the local government in writing that the applicant is invoking this right.

The 60-day clock may be extended only (1) by mutual agreement between the local government and applicant, or (2) by a local government determination that the application is incomplete. Under (2), the local government must inform the applicant of the incompleteness within 30 days of the initial filing, and must clearly and specifically delineate in writing the missing information. The clock will resume when the information is provided, but may be tolled again if the local government notifies the applicant within 10 days that the application remains incomplete. This notification cannot contain requests for new information beyond what was previously requested.

Remedies. The FCC does not want to be the forum for resolving disputes over Section 6409(a), and therefore stated that “the most appropriate course for a party aggrieved by operation of Section 6409(a) is to seek relief from a court of competent jurisdiction.”

Non-application of 6409(a). Finally, the FCC determined that Section 6409(a) is meant to apply to local governments only when acting in their role as land use regulators. As such, Section 6409(a) does not apply when local governments are acting as property owners; when, for example, city or county governments are leasing space for the installation of wireless equipment on rooftops, water towers, power poles, or other government-owned property.

In the final blogpost (tomorrow) on this topic, I will cover the remaining sections of the FCC ruling that do not address Section 6409(a), but rather are meant to clarify the application of the shot clock that was affirmed by the US Supreme Court in 2013.

by Gary Taylor

Section 6409(a) of the Spectrum Act provides:

[A] state or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.

In an attempt to clarify the ambiguities of Section 6409(a), the Federal Communications Commission (FCC) issued a new rule of interpretation on October 21, which takes effect 90 days from that date. Several key definitions were addressed in my previous post. This post continues with a review of still more definitions, specifically the meaning of “collocation,” “modification,” “replacement” and “substantial change.”

Collocation. Modification. The FCC interpreted “collocation” to mean “the mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes.” This definition encompasses the initial mounting of equipment on a tower or base station. In crafting this definition the FCC rejected the argument of local governments that collocation should be limited to the mounting of equipment on structures that already have transmission equipment on them. “Modification” “includes collocation, removal, or replacement of an antenna or any other transmission equipment associated with the supporting structure.”

Replacement is interpreted to include only the transmission equipment, and not the structure on which the equipment is located, even under the condition that replacement would not substantially change the physical dimensions of the structure. The FCC acknowledged that replacement of an entire structure might affect local land use values differently than the addition, removal, or replacement of transmission equipment only.

Substantial change. In crafting guidance for what constitutes a “substantial change” to the physical dimensions of a tower or base station, the FCC chose to adopt an objective, measurable standard as opposed to allowing local governments to conduct more individualized, contextual consideration. In doing so, the FCC rejected the argument that in some instances a small physical change could lead to a substantial change in impact.  A “substantial change” is thus any of the following:

For towers outside the public right-of-way, a “substantial change”

• increases the height of the tower by more than 10%, or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed 20 feet, whichever is greater, or
• protrudes from the edge of the tower more than 20 feet, or more than the width of the tower structure at the level of the appurtenance, which ever is greater.

For towers in the right-of-way, and all base stations, a “substantial change”

• increases the height of the tower or base station by more than 10% or 10 feet, whichever is greater, or
• protrudes from the edge of the structure more than 6 feet

Changes in height are to be measured from the original support structure in cases where the deployments are or will be separated horizontally. In other circumstances, changes in height are to be measured from the dimensions of the original tower or base station and all originally approved appurtenances, and any modifications approved prior to the passage of the Spectrum Act.  The changes are measured cumulatively; otherwise a series of small changes could add up to a cumulative change that exceeds the “substantial change” threshold.

For all towers and base stations, a “substantial change”

• involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed four cabinets;
• entails any excavation or deployment outside the current site of the tower or base station;
• defeats the existing concealment elements of the tower or base station; or
• does not comply with conditions associated with the prior approval of construction or modification of the tower or base station unless the non-compliance is due to any of the “substantial change” thresholds identified above.

State and local governments may continue to enforce and condition approval on compliance with generally applicable building, structural, electrical, and safety codes and with other laws codifying objective standards reasonably related to health and safety.

by Gary Taylor

Congress passed the Federal Telecommunications Act (FTA) in 1996 to facilitate the rapid deployment of wireless services across the country. One action for achieving that goal was to limit local zoning authority over personal wireless services facilities in some respects. It “prohibited” local governments from preventing services to a geographic area, and “unreasonably discriminating” among service providers. Aside from those limitations, it left essentially intact the ability of local governments to approve or deny the initial placement of wireless facilities, and the expansion or modification of those facilities.

In 2012, however, Congress moved further into the realm of local zoning control with the Spectrum Act, also commonly known as the Middle Class Tax Relief and Job Creation Act. Section 6409(a) of the Spectrum Act provides:

[A] state or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.

“Eligible facilities request” is defined in the Spectrum Act as any request for modification of an existing wireless tower or base station that involves (a) collocation of new transmission equipment; (b) removal of transmission equipment; or (c) replacement of transmission equipment. Other than this term, however, Congress did not provide definitions for any other words or phrases.

In an attempt to clarify the ambiguities of Section 6409(a) the Federal Communications Commission (FCC) issued a new rule of interpretation. The 155-page rule was adopted on October 21, and takes effect 90 days from that date. The new rule lays out several key definitions, most of which were written in a way that favors the wireless industry and limits local government authority.

Wireless services, wireless tower or base station, transmission equipment – General applicability. The FCC began by interpreting Section 6409(a) to apply broadly to equipment used “in connection with any FCC-authorized wireless communications service.” This is much broader than simply cell phone equipment. The FCC found that Congress has used the term “personal wireless services” in the past to refer to cell phone services, and Congress’s choice of “wireless services” instead established an intent to apply 6409(a) broadly to collocations on infrastructure that supports licensed or unlicensed, terrestrial or satellite, including commercial mobile, private mobile, broadcast, and public safety services, as well as fixed wireless services such as microwave backhaul or fixed broadband. This part of the new rule itself has significant potential implications for local planners and communities. Many communities will likely be required to update local ordinances and practices in order to comply. Most local ordinances either do not address these types of facilities at all, or address them in a way that will be inconsistent with the FCC ruling.

Transmission equipment. The FCC defined “transmission equipment” as “any equipment that facilitates transmission for any Commission-licensed or authorized wireless communication service, including, but not limited to, radio transceivers, antennas and other relevant equipment associated with and necessary to their operation, including coaxial or fiber-optic cable, and regular and backup power supply.” It includes “equipment used in any technological configuration associated with any Commission-authorized wireless transmission” such as those listed above.

Existing….The word “existing” is an important modifier that defines the applicability of the ruling. The ruling only applies to modifications to “existing” wireless towers and base stations. At what point in time does a tower become an “existing” tower? Any tower in place at the time of the ruling? Any tower, once built? The FCC determined that the term “existing requires that wireless towers or base stations have been reviewed and approved under the applicable local zoning or siting process or that the deployment of existing transmission equipment on the structure received another form of affirmative state or local regulatory approval.” If a tower or base station was built or installed without proper review it is not an “existing” tower, but if it was “lawfully constructed” (legally nonconforming) it is an “existing” tower.

Wireless tower. “Tower” is defined in the new rule as “any structure built for the sole or primary purpose of supporting any Commission-licensed or authorized antennas and their associated facilities.” The “sole or primary purpose” language narrows the applicability of the act to exclude structures similar to a tower, but broadens it to include all types of wireless transmission equipment identified above.

Base station. “Base station” includes “a structure that currently supports or houses an antenna, transceiver, or other associated equipment that constitutes part of a base station at the time of the application is filed.” It encompasses support equipment “in any technological configuration.” The FCC considers this definition “sufficiently flexible to encompass…future as well as current base station technologies and technological configurations, using either licensed or unlicensed spectrum.” This definition also rejects the position that “base station” refers only to the equipment compound associated with a tower and the equipment located on it; thus the FCC considers the broad array of structures necessary to the deployment of wireless communications infrastructure to fall under this definition, whether or not the structures are collocated with a tower.

In the next blogpost I will review the ruling’s definition of “substantial change,” and the mandatory timelines for processing siting applications.