Loyal readers may recall we previously wrote about new federal laws that affected local government’s authority over certain types of wireless siting applications. In Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012, Congress said that local governments SHALL approve (and may not deny) applications for an “eligible facility” that seeks to modify an existing tower or other structure (in other words, a co-location application or one that involves the removal or replacement of existing equipment). Congress limited this provision to applications that did not “substantially change” the physical dimensions of a tower or base station, but did not bother to define what it meant by “substantially change”. We predicted that there would be some guidance on what was meant by “substantially change” and the first such guidance has now been released by the FCC.
The Wireless Telecommunications Bureau of the FCC, in a Public Notice dated January 25, 2013 (“Public Notice”), has offered “interpretive guidance” regarding Section 6409. While not a formal rulemaking proceeding or adjudication by the agency, the Public Notice at least sheds some light on the issues involved and how the FCC views them.
The Public Notice notes initially that while it has not received any formal petition to interpret Section 6409 nor is it aware of any court decisions interpreting Section 6409 yet, it has received numerous informal inquiries from the wireless industry and local governments on the interpretation of Section 6409 and wished to set forth its “guidance” regarding those provisions.
So what guidance did the FCC Offer?
1. What does “substantially change” mean? According to the FCC, “substantially change” should be defined (as the wireless industry has previously suggested) by the FCC’s prior definition of that term in the context of the National Programmatic Agreement for the Collocation of Wireless Antennas (47 CFR §1, Appendix B), and which it further adopted in the 2009 Declaratory Ruling on the timeline for processing colocation applications (the “Shot Clock Ruling”). (As an aside, the Shot Clock Ruling is currently before the US Supreme Court where two local governments are challenging the FCC’s ability to impose a timeline on their application and approval processes. A decision on that issue will be issued by June).
So what is that definition? “Substantially change” means any proposal that involves:
A) the mounting of the proposed antenna on the tower would increase the existing 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 twenty feet, whichever is greater, except that the mounting of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to avoid interference with existing antennas; or
B) the mounting of the proposed antenna would involve the installation of more than the standard number of new equipment cabinets for the technology involved, not to exceed four, or more than one new equipment shelter; or
C) the mounting of the proposed antenna would involve adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than twenty feet, or more than the width of the tower structure at the level of the appurtenance, whichever is greater, except that the mounting of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to shelter the antenna from inclement weather or to connect the antenna to the tower via cable; or
D) the mounting of the proposed antenna would involve excavation outside the current tower site, defined as the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site.
IF you have an application for a facility that does not exceed these standards, it is NOT a substantial change and you are obligated to approve that application under Section 6409.
2. What is a “wireless tower or base station?” Congress also didn’t bother to define this term, so the FCC has again turned to the National Programmatic Agreement and stated that it was, in its opinion:
“any structure built for the sole or primary purpose of supporting FCC-licensed antennas and their associated facilities. The Commission has described a “base station” as consisting of “radio transceivers, antennas, coaxial cable, a regular and backup power supply, and other associated electronics.” Section 6409(a) applies to the collocation, removal, or replacement of equipment on a wireless tower or base station. In this context, we believe it is reasonable to interpret a “base station” to include a structure that currently supports or houses an antenna, transceiver, or other associated equipment that constitutes part of a base station. Moreover, given the absence of any limiting statutory language, we believe a “base station” encompasses such equipment in any technological configuration, including distributed antenna systems and small cells.”
Note that this definition is an expansion of the language in the granddaddy of all wireless legislation, Section 704 of the 1996 Telecommunications Act (47 USC §332(c)(7), which only covered “personal wireless services”. The FCC interpreted Congress’ use of the phrase “wireless tower or base station” to mean more than just those types of facilities covered by “personal wireless services”.
3. Can local government still require an application? The FCC took the position that although qualifying applications under Section 6409 MUST be approved by local government, implicit in that “approval” is the requirement for an application to be submitted for such administrative approval.
4. Is there a time limit on processing such application for approval? The FCC noted that while Congress did not establish a time period, since applications under Section 6409 were by their nature colocations, the time periods specified in the 2009 FCC Declaratory Ruling (“Shot Clock”) should apply, and thus 90 days should be the maximum period for reviewing such applications prior to approval. HOWEVER, note that in some states, state law prescribes a shorter period of time for review and adjudication of colocation applications, so you’ll need guidance from your legal staff on what your applicable timeline may be. ALSO note as mentioned above that the “Shot Clock Ruling” is under review by the Supreme Court so this particular guidance may be stayed depending on what happens at the Court.
5. What’s it all mean? The federal government (with the encouragement of the wireless industry) has in a number of proceedings evidenced a desire to further expand wireless infrastructure coverage across the United States to develop a wireless network that is commensurate with our wired network. Legislation such as Section 6409 and agency interpretations of same are all part of that effort and all work to dilute your ability to locally regulate this particular type of infrastructure. You can expect current and future applicants to point to Section 6409 and this “guidance” and claim there is no “substantial change” and thus demand approval of their applications. However, unstated in the FCC’s “guidance” is how to deal with these applications, which “must” be approved, where there are serious safety and tower loading concerns. If the colocation application raises a structural or stability issue, what is a local government to do when faced with a purportedly compulsory approval requirement? This is likely the situation that will generate the first set of cases that go before a court for a decision. We would hope that a court would favor a local jurisdiction’s decision on safety/structural concerns but it is unclear at this time what might happen.
While this FCC “guidance” is merely that and not an official rule-making or adjudication, we would suggest that any court looking at this issue in the future is likely going to defer to the FCC’s interpretations of these terms and issues in reaching a decision on a particular application that is being litigated. Of course, we’re always here to help guide you through these issues and make sure you stay on the right side of the regulations.