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.
