Monday, February 27, 2012

Amendment to Telecommunications Act Limits Local Control of Cellular Facilities


Last week, President Obama signed HR 3630, the Middle Class Tax Relief and Job Creation Act of 2012, into law.  In addition to extending unemployment benefits and tax cuts, the law also amends the Telecommunications Act of 1996.  The new law would limit local government authority to control the collocation of new facilities or the removal or replacement of existing facilities on existing towers or structures.

The pertinent language is contained in Section 6409, as follows:

             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.

*          *          *
The new law does not provide any guidance as to what constitutes a “modification” or a substantial change.  Consequently, local governments should be prepared for telecommunication providers arguing for an expansive interpretation of the type of changes that local governments “shall approve.” 

In most cases, the new law will have little impact on how municipalities process the majority of facility modifications. For example, the removal or replacement of transmission equipment has often been administratively approved by the local siting authority where the number and size of antennas have not substantially changed.  On the other hand, if a new carrier wants to collocate their antennas on an existing pole or tower, they are likely to need a new base station, which would not fall within these new restrictions on local control.  Where a new carrier can share a base station with an existing carrier, the law will apply to limit local zoning authority but this is a rare circumstance. 

There will be even more emphasis on municipalities to ensure that their initial siting review is done correctly and that their cellular zoning ordinances are up to date so they can demand enough information to make a decision based on evidence in the record, and not just on speculation and bias.  Moreover, the authority granted to each carrier should be the minimum required to permit service.  In that way, municipalities can better limit the circumstances where the local zoning authority must issue a non-discretionary permit for collocation.

Thanks to IMLA’s Local Government blog for reporting on this new law.

Post Authored by Adam Simon and Julie Tappendorf, Ancel Glink

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