FCC Offers “Guidance” on Local Government Tower Siting Issues

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.

T-Mobile and MetroPCS strike a deal

BERLIN (AP) — Struggling cellphone companies T-Mobile USA and MetroPCS Communications are set to merge, in a deal that will create an operator with more than 40 million subscribers.

In a joint statement, the two companies said Wednesday that Deutsche Telekom AG, the owner of T-Mobile USA, will hold 74 percent of the new business, while MetroPCS’s shareholders will hold the remainder, as well as receiving a payment of about $1.5 billion.

“The combined company, which will retain the T-Mobile name, will have the expanded scale, spectrum and financial resources to aggressively compete with the other national U.S. wireless carriers,” the two said.

Both companies have struggled in the highly-competitive U.S. cellphone market.

And even after the combination with Dallas-based MetroPCS, which has 9.3 million subscribers, T-Mobile USA — the country’s fourth-largest cellphone company with 33.2 million subscribers — will still trail the market’s No. 3, Sprint Nextel Corp.

However, the deal would give T-Mobile USA, which is based in Bellevue, Washington, access to more space on the airwaves, a critical factor as cellphone carriers try to expand their capacity for wireless broadband.

Last year, AT&T struck a deal to buy T-Mobile USA for $39 billion for much the same reason. That was shot down by regulators, who believed competition would suffer if the second-largest cellphone company were to gobble up the fourth-largest.

“We are committed to creating a sustainable and financially viable national challenger in the U.S., and we believe this combination helps us deliver on that commitment,” Deutsche Telekom chief executive officer Rene Obermann said.

Deutsche Telekom said the combined company would have revenues of around $24.8 billion based on analysts’ estimates, and cost synergies are expected to be worth $6 to $7 billion.

The deal still has to be agreed by shareholders and will require regulatory approval.

The regulatory concerns this time round appear set to be much milder than the proposed deal involving AT&T. Both companies are relatively small, and T-Mobile USA has been losing subscribers for the last two years.

A linkup would be complicated by the fact that MetroPCS and T-Mobile USA use different network technologies. That means MetroPCS phones would not work on T-Mobile USA’s network, and vice versa. However, both companies are deploying the same “fourth-generation” or “4G” technology, so they’re on a path to harmonizing their networks.

Deutsche Telekom’s CEO Obermann said the new company will have the “resources to expand its geographic coverage, broaden choice among all types of customers and continue to innovate, especially around the next-generation LTE network.”

This consolidation of competitors may impact local government because typically with consolidations come changes to wireless infrastructure in order to blend the two companies’ assets in an efficient manner.  Local government could see an uptick in applications for site modifications arising from the merger if it is approved and completed.

Wireless Telecommunication Consultants – FCC Shot Clock

The FCC’s “Shot Clock” for local government’s processing of wireless communications applications (90 days for collocations and 150 days for other wireless siting applications, applicable to jurisdictions where the state has not enacted similar “shot clocks”) was recently affirmed by the 5th Circuit Court of Appeals (with certain caveats) in a case brought by the cities of San Antonio and Arlington, Texas against the FCC.

In its decision, the 5th Circuit said that although the FCC’s judgment in establishing those timelines was reasonable and within the scope of its authority, the failure by local government to adhere to those time limits does not automatically mean that that local government has per se violated the 1996 Telecom Act. Instead, the 5th Circuit said in that case the burden shifts to the local government to explain its failure to meet the applicable deadline. Examples of such  explanations” of failure to meet the deadline, according to the 5th Circuit, might be wireless applicant’s own failure to submit requested information, or some other extenuating circumstances; or the local government could show it was acting diligently in its consideration of an application, but that the necessity of complying with, for example, applicable environmental regulations caused a delay, or because the application was complex in its nature or scope.

So you don’t automatically grant the right to the applicant to build the wireless site if you miss the FCC deadline – but the burden does shift to you to show why you need more time and were unable to meet that deadline, either because of issues with the application or some other complexity or extenuating circumstance. As summarized by the 5th Circuit “The time frames are not hard and fast rules but instead exist to guide courts in their consideration of cases challenging state or local government inaction.”

FCC Wireless Telecommunications News and Notes

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:

  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 fee, 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.

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:

  • 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
  • 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
  • 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
  • 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.