In my December 28th blog post, I focused on the difficulties many carriers encounter while attempting to develop wireless sites. Even though collocation, or the installation of antennas on existing towers and structures, seems like a no-brainer from an approval standpoint, these types of applications, as well as modifications to existing towers, can often be as costly and cumbersome as obtaining local approval for a new tower. As many of you know by now, the Middle Class Tax Relief and Job Creation Act of 2012 (“Tax Relief Act”), which President Obama signed into law last week, contained a late Christmas gift for the wireless industry. It is a gift that should make collocation on existing tower sites, as well as equipment upgrades a little bit easier. Amidst the other much more talked about provisions in the Tax Relief Act, was Section 6409(a), which was the product of several years of lobbying by the PCIA (the Wireless Infrastructure Association), which provides that “Notwithstanding Section 704 of the Telecommunications Act of 1996…a state or local government may not deny, and shall approve, any “eligible facilities request” for a modification of an existing tower or base station that does not “substantially” change the physical dimensions of such tower or base station.” The term “eligible facilities request” is defined as any request for a modification of an existing tower or base station that involves the addition of new antennas or transmission equipment or the removal or replacement of existing antennas or transmission equipment.
At first glance, this would appear to require all state and local governments to approve collocation requests as well as any site upgrades. What is interesting about the language Congress chose is that it left open the possibility that state and local governments could still deny applications for collocation on structures that are not “existing towers”, as was indicated in a February 22nd blog post by Jonathan Kramer, with whom I presented a program last Friday at the AGL Western Regional Wireless Conference entitled, “What We Can Teach Municipalities About Wireless”. Jonathan advises local governments on how the 1996 Telecommunications Act impacts their authority to zone and permit wireless sites and assists municipalities in their review of wireless site applications. Jonathan’s position is that collocating antennas on structures that are not “wireless towers” could still be subject to denial by municipalities depending on the applicable local ordinances and how they define the term “tower”. Our other co-presenter, Robert Jystad, who represents carriers and tower companies on all facets of site development, and I disagreed with Jonathan on the practical impact the new law would have on site development and site upgrades, but all on the panel agreed that this will no doubt lead to interesting conversations at the local and state level, between lawyers for the industry and state and local government representatives.
I disagree with Jonathan and agree with Robert that Section 6409 will likely trump state and local ordinances to the extent that they prevent modifications to “grandfathered” sites, sites that were never zoned or that pre-date current wireless tower ordinances. I also agree with Robert that Section 6409 should apply to collocation on all structures. Unfortunately, there is no record of Congress’ intent with regard to the interpretation of the phrase “existing tower”, but given its plain meaning and Congress’ explicit intent to usurp the authority of state and local governments to deny collocation and site modification requests, the term arguably applies to any structure that can support wireless antennas. In that regard, Section 6409 may also trump zoning conditions imposed on towers that limit antenna collocation and placement. One thing that Section 6409 did not do was waive any existing requirements imposed by the National Historic Preservation Act (“NHPA”) or the National Environmental Policy Act of 1969 (“NEPA”). As a result, to the extent that a proposed collocation or antenna modification implicates NHPA or NEPA, compliance is still required. Interestingly, Congress did not carve out or exclude from Section 6409 environmental or historical reviews that may be required under state or local law, only federal law.
The other buried jewels for the wireless industry in the Tax Relief Act were Sections 6409(b) and (c), which have received a bit less attention from the industry than Section 6409(a), thus far. Sections 6409(b) and (c) are likely to provide much needed relief to carriers who are looking to locate antennas on federal buildings and land, or who need easements or rights-of-way across federal property in order to enhance and expand backhaul capacity. Here in Hampton Roads (the Norfolk, VA market) and in other parts of the country where the federal government owns a high percentage of the buildings and land in a market, this part of Section 6409 could revive old and long dead search rings. In order to standardize and speed-up the process of locating antenna sites on federal property, Congress has tasked the Administrator of the General Services Administration (“GSA”) with developing a standard application, master contract and fee schedule for all antenna sites on federal property. The master contracts for tower sites and collocations on existing structures and facades will apply to all publicly accessible buildings and property, unless the Administrator determines the use of the property in question warrants non-standard treatment. GSA is required to draft the master contracts within 60 days of the enactment of the Tax Relief Act. This marks the first time since then-President Bill Clinton issued an executive order requiring the GSA to make federal property available for use by wireless carriers, that Congress has stepped in to standardize and speed-up this process.
At the end of the day, Congress did provide “relief” for carriers developing and upgrading wireless sites and their customers; however, as with many new laws, the devil is in the details. Through advocacy, education and most likely, some litigation, the true impact of this new law will likely become much more clear in the years to come.