On October 21, 2014, the Federal Communications Commission (the “FCC”) issued new rules addressing modifications of “wireless facilities.” The new rules have not yet been published in the Federal Register and will not become effective until 90 days after they are published, so there is some time before they take effect, but wireless providers, neighborhood activists and local governments should be aware of the impact of the new rules.
The entire order is over 150 pages long (although the rules themselves only extend for 10 pages) and is intended to implement a 2012 Federal statute that required the following:
“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.”
The statute provided little further guidance, leaving that to the FCC, which has now set out how local governments must address modifications to existing wireless facilities.
There are several pieces to the rules, but generally, local governments must approve collocation, replacement or removal of wireless facilities, so long as the request does not propose a “substantial change to the physical dimension” of the facility. For cell towers, “substantial change” is defined to exclude modifications that increase the height by less than 20 feet or 10% of the existing tower height. For “support structures,” substantial change does not include installation of the “standard number of new equipment cabinets for the technology involved” or, if there are preexisting cabinets, cabinets that are less than 10% larger in height or volume than any other ground cabinet.
The new rules also address the review process and put in place a new “shot-clock” rule, limit local governments ability to request documentation and specifically prohibits a local government from requiring any documentation regarding the business need for the modification.
There is a chance that reconsideration of the rules will be sought or that the rules could be appealed. But unless that happens, all involved in siting wireless facilities should begin thinking about implementing the new rules.
In February, President Obama signed into law HR 3630, also known as the “Middle Class Tax Relief and Job Creation Act of 2012,” which extended unemployment benefits and payroll tax deductions. Congress stuffed the bill with several additional provisions, including one that affects local government decisions regarding the siting of wireless facilities.
The legislation expressly requires that a local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station, so long as the modification does not substantially change the physical dimension of the tower or base station. This approval must be granted regardless of provisions in the Telecommunications Act of 1996 (Section 704) or any other provision of law. An “eligible facilities request” is any modification request that involves the collocation of new transmission equipment; removal of transmission equipment; or replacement of transmission equipment.
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