New law addressing the collocation of telecommunication facilities
|On Wednesday February 23, 2012, President Obama signed into law the “Middle Class Tax Relief and Job Creation Act of 2012.” Section 6409 of this new law addresses the collocation of telecommunication facilities. The new law specifically addresses certain types of modifications on “existing wireless towers.”***Please note it is unclear right now what effect this federal law will have in jurisdictions that have separately enacted similar legislation at the state level regarding collocations, and the timeline for review and approval of those types of facilities.
Those divergent provisions may be subject to a constitutional determination by the court system.
Indeed, most industry commentators, in reviewing the new federal law, have suggested it will be subject to significant litigation to figure out what Congress meant by the provisions that were enacted.
…Therefore, CityScape is recommending “for the moment” that you not make any rash decisions until there is further clarification or interpretation of this new legislation. Of course, please feel free to contact CityScape if you have specific questions or have concerns about your existing methodology for review of wireless facilities.
The wireless industry proposed this new federal law and is using the FCC’s Nationwide Programmatic Agreement as its source for definitions. In that document, a “tower” is defined as “any structure built for the sole or primary purpose of supporting FCC-licensed antenna and their associated facilities.”
There is also a provision that the proposed collocation cannot “substantially change” the physical dimensions of such tower or base station in order to be an “eligible facility.”
The FCC Nationwide Programmatic Agreement defines “substantially change” as follows:
The pertinent portions of the new law are below:
12 SEC. 6409. WIRELESS FACILITIES DEPLOYMENT.
(a) FACILITY MODIFICATIONS.—
(1) IN GENERAL.—Notwithstanding section 704 of the Telecommunications Act of 1996 (Public Law 104–104) or any other provision of law, 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.
(2) ELIGIBLE FACILITIES REQUEST.—For purposes of this subsection, the term ‘‘eligible facilities request’’ means 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.
(3) APPLICABILITY OF ENVIRONMENTAL LAWS.—Nothing in paragraph (1) shall be construed to relieve the Commission from the requirements of the National Historic Preservation Act or the National Environmental Policy Act of 1969.
Communities may need to amend certain sections of their existing wireless telecommunication’s policies to address the definition of “substantially change.” Below is an example of language that could address this issue: