This is Part 3 of 4 of our summary of the FCC’s September Notice of Proposed Rulemaking (“NPRM”) on “Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies”.
Part 3 of the NPRM directly affects your ability to regulate the placement of wireless infrastructure, and you should, if nothing else, respond to this part of the NPRM with comments to the FCC.
Before we get to the meat of the matter, we need to cover a little background and history. Remember back in Part 1 we discussed briefly the National Programmatic Agreement (the “NPA”), which exempted certain collocations from environmental and historical reviews (at the federal level) if they met certain criteria, including not “substantially changing” the size of existing infrastructure when collocating.
The NPA also gave parameters to what would constitute a “substantial change” so that you could determine if you needed to undertake NEPA(environmental) or NHPA (historical) review or were eligible for the exemption.
In 2012, the wireless industry was able to have Congress include a little paragraph in the 2012 Middle Class Job Creation and Tax Relief Act, known as Section 6409(a), which says that “notwithstanding section 704 of the Telecommunications Act of 1996 [codified as 47 U.S.C. § 332(c)(7)] 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.”
It goes on to define the term “eligible facilities request” 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.
Finally, Section 6409(a) says that notwithstanding the above language, it shall not be construed to relieve the FCC from the requirements of the NHPA or NEPA.
Congress didn’t bother to define any of the terms contained in Section 6409(a) apart from what an “eligible facilities request” was.
In partial response to enactment of Section 6409(a), the FCC’s Wireless Bureau came out with “informal guidance” in January 2013 for local government to assist in interpreting what Congress meant by Section 6409(a).
In the “informal guidance” the Bureau took the NPA’s definition of “substantially change” and said that definition is what Congress intended to use, so that wireless collocations that did NOT meet the “substantially change” threshold would have to be APPROVED by local government.
The NPA definition of “substantially change is:
1) 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
2) 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
3) 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
4) 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 the collocation causes at least one of the items above to be met, then it is a “substantial change” under the NPA.
That then brings us to the NPRM, and in Part 3, the FCC seeks to define all of those terms that Congress used but did not define in Section 6409(a), so as to avoid different interpretations based on judicial decisions, local interpretations, and other factors.
The NPRM also asks if, should the FCC define these terms and override local regulations that differ, there should be a timeline to phase in the federal rule to allow local government to revise their rules to harmonize with the federal rule.
The NPRM also notes that some states have enacted state laws that also create a streamlined approval process, some of which have different standards (specifically North Carolina….)
The NPRM asks for comments on how to define the terms Congress used in Section 6409(a).
For example, Verizon suggests that “existing wireless tower or base station” includes any structure, irrespective of whether it has communications equipment already or not.
With that definition, almost anything could be defined as a “collocation” which must be approved by local government under 6409(a) – building, streetlight, water tank, billboard, steeple.
It is imperative that local government file comments on how to define these terms to ensure that “collocations” are defined properly as additions to existing wireless infrastructure.
The NPRM also wants to know about “removal” and “replacement” definitions, since replacements of equipment that don’t substantially change the structure also are supposed to have mandatory approval. As many applications we see now involve a provider upgrading/replacing equipment, particularly 4G installations, these definitions are also key to retaining some level of local regulation. Most importantly, the NPRM asks if they should adopt the NPA definition of “substantially change” for Section 6409(a), and if so, what about situations where there are sequential incremental modifications which individually do not meet the “substantial change” definition but collectively do?
At what point could local government say the change is now “substantial” and mandatory approval is not required? In addition, the NPRM asks if it should use different standards for concealed facilities.
Once past the definitions issue, the NPRM then tackles the question of what Congress meant by “may not deny and shall approve” and how to implement that language.
The FCC does tentatively conclude that the Section 6409(a) language applies to local government in a regulatory capacity and not as a landowner, so, for example, if you have a municipal tower and are leasing space to a wireless provider and another provider wants to collocate, or the existing provider wants to modify its facilities, you aren’t bound to approve that request as the landlord by Section 6409(a).
However, in your regulatory capacity, the FCC wants to know your thoughts “on whether, by directing that States and localities “may not deny and shall approve” covered requests, Section 6409(a) requires States and localities to approve all requests that meet the definition of eligible facilities requests and do not result in a substantial change in the dimensions of the facility, without exception and/or discretionary review.
We also seek comment on whether there are any special circumstances under which, notwithstanding this unqualified language, Section 6409(a) would permit a State or local government to deny an otherwise covered request.
We further seek comment on whether States and localities may make the grant of a covered request subject to conditions on or alterations to the request. If so, what types of conditions or alterations may they require that would be consistent with Section 6409(a)? In particular, we seek comment below on whether and/or to what extent States and localities may require any covered requests to comply with State or local building codes and land use laws and whether States and localities are required to approve an otherwise covered modification of a tower or base station that has legal, nonconforming status or that does not conform to a condition or restriction that the State or locality imposed as a prerequisite to its original approval of the tower or base station.“
The NPRM also wants to know to what extent you as the local regulator may require any covered requests to comply with State or local building codes and land use laws.
1) For example, must you grant a facilities modification request that would result in an increase in height above the maximum height permitted by an applicable zoning ordinance?
2) Can you require a modification or collocation to be in compliance with general building codes or other laws reasonably related to health and safety such as load-bearing limits on applications that otherwise meet the standard for approval under Section 6409(a)(1).
3) Can you condition the approval of a modification on the underlying structure’s compliance with the hardening standards under TIA-222 Revision G, Structural Standards for Antenna Supporting Structures and Antennas?
4) What about your ability to deny an application for an otherwise covered modification if the structure, as modified, would not meet the fall zone or setback distance that your ordinance requires?
5) What about facilities that were originally approved as concealed but the modifications proposed would diminish that concealment – do you have to approve those under Section 6409(a)?
As you can see, the FCC wants input from local government on all of these issues and it is in your interest to provide that input. The NPRM also concludes, consistent with the January 2013 Informal Guidance, that Section 6409(a) does not preclude local government from requiring an application to be made by a provider seeking approval for a collocation or modification of an existing facility.
In fact, the FCC notes that the only way you can determine IF the proposal meets the Section 6409(a) requirements is to accept an application and review the information contained in it.
The NPRM also solicits comment on what should (and should not) be required to be provided as part of the application process, and also whether an application, once determined to be eligible under Section 6409(a), should be administratively approved or if it still can go before some sort of board or hearing for approval (keeping in mind the requirement that it must be approved).
The final portion of Part 3 of the NPRM deals with what happens once an application under Section 6409(a) is made.
The FCC wants to know if 90 days (the FCC’s “shot clock” timeline for collocation application processing”) is a sufficient timeline to approve these requests, or if a shorter timeline is appropriate given the fact that you must approve the application.
What happens if you enact a moratorium on all applications (to prevent applicants from making an application that has to be approved?) The NPRM proposes that a moratorium will not have any effect on whatever timeline is adopted to approve these requests.
Finally, the NPRM’s last avenue of inquiry in Part 3 is what happens if local government fails to act on an eligible request within 90 days or whatever timeline standard is adopted. Does the applicant go to court (as currently required under similar shot clock circumstances) to get their permit or should the application be “deemed approved” if not adjudicated in the required time, and if so, whether that conclusion effectively preempts all local regulation and raises 10th amendment constitutional issues about federal/state law.
The FCC suggests as a solution that an aggrieved applicant file a Petition for Declaratory Ruling with the FCC alleging the local government’s failure to comply with Section 6409(a), and the FCC would then issue an opinion on the matter that would take precedence over the local government’s action (or inaction). The FCC already does this in similar contexts, where local government attempts to regulate RF exposure, which is exclusively the domain of the FCC.
Part 3 of the NPRM could significantly alter local government’s ability to regulate collocations and modifications of wireless facilities.
The FCC should hear from you about how you feel about these proposals and you should provide them with examples of how these “collocations” and “modifications” frequently have serious impacts on the health, safety and welfare of your constituents, and the aesthetics of your community. In Part 4 of our series, we’ll explore the final portion of the NPRM, dealing with what the FCC thinks should happen if you don’t meet the FCC’s “shot clock” timelines for adjudicating applications for collocations (90 days) or new towers (150 days).
Next – Part 4 to conclude our summary of FCC’s September Notice of Proposed Rulemaking (“NPRM”)
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