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.
