Planning Board denial not a “final action” under Federal Telecommunications Act when review by Board of Appeals required by ordinance

by Hannah Dankbar and Gary Taylor

Global Tower Assets, LLC; Northeast Wireless Networks, LLC v. Town of Rome
Federal 1st Circuit Court of Appeals, January 8, 2016

Global Tower Assets and Northeast Wireless Networks obtained a leasehold interest in Rome, Maine. According to Rome’s Ordinance applicants must get permission from Rome Planning Board to build a wireless communication tower.

The Ordinance includes a section that reads, “[a]dministrative appeals and variance applications submitted under this Ordinance shall be subject to the standards and procedures established by the Town of Rome Board of Appeals.”

The companies first asked for permission from the Planning Board to build the tower on April 8, 2013. The Board discussed the proposal on May 20, 2013 and held other meetings over the next few months. On February 10, 2014, the Planning Board voted to deny the application because the application was not complete. On March 10, 2014 the Planning Board published their decision. The decision was sent to the Board of Appeals for Review. The next day, the companies filed suit in the United States District Court for the District of Maine.

Part of their suit included complaints under the Telecommunications Act (TCA) of 1996. The TCA provides relief to those who are denied permission to build telecommunication facilities at the state or local level trough “final action”. However, the TCA does not define “final action”.  In this case, the question is whether the administrative process ended. The companies filed their TCA challenge to the Town of Rome Planning Board’s decision before the decision was reviewed by the local board of appeals. In Maine there is a general requirement that land use and zoning appeals are first heard by a zoning board of appeals before they can be litigated in state court.  Thus under Maine law “Rome necessarily made review by the board of appeals a prerequisite to judicial review.” There was an opportunity for the Planning Board’s decision to be overturned through an administrative (rather than judicial) process, meaning that the decision of the Planning Board was not a “final action” within the meaning of the TCA. The legislative history of the TCA does not reject a two-step administrative process at the local level to determine “final actions.”  Because the administrative process, as defined by Rome’s Ordinance was not complete the District Court was correct to dismiss the complaints.

Links to law presentations from 2015 APA-Iowa Annual Conference

The powerpoint presentations from the 2015 APA-Iowa Annual Conference held in Sioux City on October 14-16 are now available here.

Thursday afternoon session on Signs and Cell Towers, by Peter McNally, Dustin Miller and Gary Taylor

Iowa APA 2015 Cell Towers
Iowa APA 2015 Signs

Friday morning AICP Law session by Gary Taylor

Iowa APA 2015 Law session

More cell tower discussion, documents from National League of Cities and NaCO, and a webinar tomorrow

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.

FCC ruling Part IV: Shot clock clarification and other matters

by Gary Taylor

While the bulk of the October 21 FCC ruling addressed Section 6409(a) which addresses collocation, modification, and replacement of wireless facilities, it also contained a section meant to clarify the 90- and 150-day presumptive deadlines (the “cell tower shot clock”) set forth by the FCC in a 2009 ruling, and a section to address industry concerns about local governments giving preference to siting wireless facilities on local government property.

Shot clock clarifications. Since 1996, Federal Telecommunications Act (FTA) Section 332(c)(7)(B) has required local governments to act on applications for personal wireless service facilities within a “reasonable period of time.” The 2009 order set presumptive time limits based on what the FCC considers to be reasonable. Under the ruling, local governments have 90 days to act on requests for collocations (placing personal wireless service antennas on existing towers) and 150 days for all other applications. The ability of the FCC to set these rules governing local review was approved by the US Supreme Court in 2013.

The FCC clarified that the presumptively reasonable 90- and 150-day deadlines begin to run from the date of filing (with the exceptions noted below), the application. The deadlines may be extended only by a local government determination that the application is incomplete. 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.

How does the 2009 ruling square with the October 21 ruling, particularly with regard to the deadlines for action on collocations (discussed in yesterday’s blogpost)? The FCC first pointed out that Section 332(c)(7) deals only with personal wireless service facilities (cell phone equipment), which is a much narrower focus than “wireless facilities” – the focus of Section 6409(a) of the Spectrum Act. The FCC also noted that some collocation applications under Section 332(c)(7) do not constitute “eligible facilities requests” under Section 6409(a). Recognizing that the provisions cover different (though overlapping) types of applications, the FCC declined to make any “changes or clarifications” to the 2009 ruling that would harmonize it with the October 21 ruling. Local governments are thus left to muddle through the distinctions in collocation applications to determine the appropriate timeline to which they must adhere.

DAS facilities. The FCC further clarified that the shot clock deadlines apply to Distributed Antenna Systems (DAS) applications. DAS are small facilities that are increasingly being deployed to fill in coverage gaps and enhance capacity in congested areas (urban corridors, stadiums, hotels, convention centers, etc.)

Preference for deployment on government property. The wireless industry has expressed concerns over local governments giving preference to siting wireless facilities on local government property, arguing that it unreasonably discriminates among providers by limiting the siting flexibility of subsequent wireless entrants in a given area. The FCC recognized that some such local policies – those that “pressure” applicants to use local government property, coupled with regulations that make it nearly impossible to site facilities elsewhere – may be discriminatory as applied. Nevertheless, the FCC declined to find that such preference is discriminatory as a matter of course, and so refused to make a rule that municipal property preferences are per se unreasonable.

FCC ruling on collocation explained, Part III

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.

FCC ruling on collocation explained, Part II

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.

FCC ruling on collocation explained, Part 1

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.

GAO report: National Flood Insurance Program far from healthy

A report recently released by the General Accounting Office (GAO) makes clear that the National Flood Insurance Program (NFIP) will remain a policy and political nightmare for Congress for years to come.

As of Dec. 31, 2013, the NFIP owed the government $24 billion, and had not made a principal payment since 2010. The report says that the 2012 law which reauthorized the program for five years requires FEMA to issue a report to Congress by January 2013 on a repayment plan setting forth options to repay FEMA’s total debt to Treasury within 10 years. However, as of January 2014, FEMA had not issued such a report. The GAO report says that most of the options for retiring the debt would require congressional action. As required by the act, FEMA is establishing a reserve fund that could help reduce the need for future borrowing from Treasury, the GAO report said. “However, FEMA is unlikely to initially meet the act’s annual targets for building up the reserve, due partly to statutory limitations on annual premium increases.” Although Biggert-Waters, passed in 2012 phased out insurance rate subsidies on many properties, the Homeowners Flood Insurance Affordability Act passed a few months ago reinstates some of the subsidies ordered phased out by Biggert-Waters. As a result, “phasing out and eventually eliminating subsidies remaining after the 2014 Act poses challenges for FEMA.”

Besides the concern that the NFIP is unlikely to attain the congressional mandate of paying off its current long-term outlook within the required 10 years, the report raises another critical issue that has escaped public attention: the fact that there is no means of ensuring that people who by law should have flood insurance—that is, homeowners with mortgages in vulnerable areas—purchase the product. It suggests that if everyone who should have flood insurance purchases the product, it would reduce the revenue shortages that are a key component of its main problem, affordability.  Under the NFIP, there is no significant penalty for not requiring mortgage-holders in flood zones to secure and maintain flood insurance coverage, and information on the extent of compliance with purchase requirement “is limited.”

The report takes issue with complaints that the FEMA’s flood mapping activities overstates the risk of flooding. The report in fact argues that, “FEMA’s methodology for determining full-risk premium rates may not fully reflect the actual risk of flood damage as intended by Congress.”

 

A link to the full GAO report is here.

Partnership for Sustainable Communities survives Senate vote

The Senate Subcommittee on Transportation, Housing and Urban Development voted yesterday to preserve funding for two key components of the federal Partnership for Sustainable Communities in the FY2012 appropriations bill. Last week, the U.S. House of Representatives voted to strip funding for the federal Partnership for Sustainable Communities.

The bill includes $90 million for HUD’s Sustainable Communities Initiative, a $10 million decrease from FY2011, including $63 million for Regional Planning Grants and $27 million for Community Challenge Grants. The bill also includes $550 million for USDOT’s TIGER program, an increase of $23 million from last year. The bill is scheduled to be marked up today by the Appropriations Committee. Amendments will be allowed in this process.

Department of Justice marks 10th anniversary of RLUIPA

September 22 marked the 10th anniversary of President Clinton’s signing of the Religious Land Use and Institutionalized Persons Act (RLUIPA).  The press release issued by the U.S. Department of Justice offered that:

The law was enacted in response to concerns that places of worship, particularly those of religious and ethnic minorities, were often discriminated against in zoning matters, and that individuals in prisons, mental health facilities, nursing homes and other institutions were frequently denied full religious freedom.

To mark the anniversary the DOJ issued a report detailing the efforts of the DOJ to enforce the law.  The report contains a number of interesting case examples.

The DOJ also released a Q and A policy statement on the law, what it is, and how it should be interpreted.  Good reading for planners unfamiliar with RLUIPA.

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