Last November I posted four pieces discussing the FCC’s October 2014 declaratory ruling explaining/interpreting Section 6409(a) of the Spectrum Act (aka the Middle Class Tax Relief and Job Creation Act), which reads:
[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.
(Advice: You may need to read or reread the four pieces for the necessary background to follow the rest of this post).
Yesterday I had a good discussion with Dustin Miller of the Iowa League of Cities about how the 60-day deadline for making decisions on “eligible facilities requests” found in the Spectrum Act can be squared with the 90-day deadline for collocations found in the 2009 FCC declaratory ruling. He provided me with copies of some valuable documents that the PCIA and the National League of Cities worked on together and recently released, including a Wireless Facility Siting Model Chapter for local ordinances, and accompanying Cover Sheet and Checklist. With regard to collocations, the 60-day deadline (from date application is filed) found in the Spectrum Act technically only applies to collocations that do not result in a substantial change to the physical dimensions of the existing facility as that term is defined in the 2014 ruling. So for example, deploying a new antenna array that protrudes more than 6 feet from the edge of an existing tower located in the public ROW would not fall under the new ruling (with its 60-day deadline) because that would be a substantial change to the physical dimensions of the tower. Instead, such an application would be covered by the 90-day deadline for collocations as set forth in the 2009 ruling.
The conversation with Dustin revolved around the hair-splitting that often will be required of local governments to know whether the 60-day or 90-day deadline applies in any given circumstance. Site plans are not always as detailed as would be necessary to apply the FCC rules, equipment is constantly evolving in a way that muddies the interpretation of the rules, and so on. At a minimum local governments should require wireless industry applicants to clearly state in their applications whether they believe the 60-day (collocation involving no substantial change) or 90-day (collocation that is a substantial change) deadline applies, and provide substantiating details sufficient for the local government to make its own judgment. If an application is mistakenly treated as one with a 90-day deadline but belongs in the 60-day category, however, it must be deemed automatically approved any time after the 60th day, upon notification by the applicant. Of course, disagreement over the 60 vs. 90 judgment in and of itself can give rise to litigation, as the wireless industry will want to establish precedents for putting more types of modifications into the 60-day category.
One potential solution for local governments is the safe approach – Simply apply the 60-day deadline to all collocation requests, whether or not they meet one of the tests for determining substantial change.
As always, of course, none of this is legal advice. That is what your city or county attorney provides!
The National League of Cities is sponsoring a webinar tomorrow on the cell tower topic. This is the relevant information:
Increasing Wireless Communications Services for Your Residents
Wednesday, March 25, 2:00 – 3:15 pm Central Time
To register click here.Wireless communications services are vital to cities because it improves the ways residents can get online and access information. In an effort to increase Internet access through wireless networks, the Federal Communications Commission (FCC) has developed a set of rules around wireless siting practices that cities will need to adhere to. Panelists on this webinar will discuss the importance of wireless broadband for their communities and how local governments are getting ready to respond to the new FCC rules.
