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The Federal Communications Commission last week released regulations regarding the siting of wireless communications equipment that will dramatically curtail local zoning and land use authority.
The regulations, due to take effect early next year, are a result of a directive in the Middle Class Tax Relief and Job Creation Act, also referred to as the Spectrum Act, passed by Congress and signed by the president in 2012. The act included language intended to streamline the permitting process for wireless “collocation,” or the siting of wireless equipment on existing structures.
Under Section 6409 of the Spectrum Act, “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,” including requests to “collocat[e] new transmission equipment.”
The FCC’s regulations create guidelines for wireless collocation that allow for the rapid deployment of wireless networks by dramatically restricting local decision-making around the process.
Industry applicants will be able to submit a wireless collocation application to a municipality for the placement of additional wireless equipment on a wireless tower or other structure already supporting wireless equipment. Applicants may pursue this process if the modification they seek is not a substantial change, defined by the FCC as less than 10 percent or 20 feet in height or double the width of a tower up to 20 feet, or, for non-tower base stations, not more than 10 percent in height or 10 feet, whichever is greater, or 6 feet in width.
Upon submission of the application, the municipality has 60 days to issue a decision. If the application is incomplete, the municipality must notify the applicant in writing within 30 days of submission, specifying the missing pieces. This pauses the 60-day review period until the applicant responds. The municipality then has 10 days to review the application for a second time and notify the applicant in writing of any items that remain missing, again pausing the review period until the applicant responds.
The municipality must then determine if the application meets building code standards as well as existing conditions or requirements on the previously approved permits for that structure, such as camouflaging or blending the equipment or antennae. If the application meets building codes and previously existing requirements, the municipality must permit the collocation.
Should the municipality fail to act on an application within the 60-day period, the application would be deemed granted, and the applicant may inform the municipality in writing of its desire to act on the application.
Challenges by either party may be pursued in court.
The regulations will become effective 90 days after their publication in the Federal Register, meaning that they will likely take effect in January or February of 2015.
The FCC’s regulations follow a major battle in Massachusetts during the most recent formal legislative session, which ended on July 31. The telecommunications industry had pushed language, in both a stand-alone bill and as an amendment to the House version of a comprehensive economic development bill, which would have allowed wireless communications companies to collocate antennas and other wireless equipment on any structure capable of bearing the additional weight, with few exceptions.
Under the proposed state legislation, the company would merely be required to submit a simple application to a municipality, and the municipality would have only 90 days to act on it. The only standard for denial would be if the application did not meet the state building code, leaving the municipality with no general siting control.
If the municipality failed to act within the requisite 90-day period, the application would be considered approved.
The municipality would only be allowed to assess on the applicant a technical consulting fee of up to $1,000, greatly limiting the municipality’s capacity to procure outside assistance to assess the proposal.
The MMA expressed strong opposition to the legislation. In a June letter to state legislators, MMA Executive Director Geoff Beckwith wrote: “The telecommunications industry is moving quickly to fast-track legislation to preempt virtually all municipal zoning or control over the siting of wireless antennas and equipment in Massachusetts. We respectfully ask you to oppose this far-reaching effort to prevent cities, towns and citizens from having any effective say in how the build-out of wireless networks impacts their neighborhoods.”
As a result of strong and widespread opposition from local officials, the final economic development bill did not contain the industry language, and the stand-alone bill did not advance any further in the legislative process after it received an initial favorable report from the Legislature’s Joint Committee on Telecommunications, Utilities and Energy.
MMA staff will continue to analyze the local implications of the FCC regulations.
• Download FCC ruling (1.2M PDF)