The Federal Communications Commission recently released a public notice offering “guidance” on the meaning of a 2012 federal law that limits local zoning authority over modifications to wireless towers and base stations. The public notice from the FCC’s Wireless Telecommunications Bureau (Bureau) suggests local governments cannot control the size of those wireless facilities. We expect that the wireless industry will claim that local governments must accept this interpretation. However, we believe the public notice has no legal effect and is wrong. With your help, we intend to demonstrate promptly to the FCC that the public notice, if followed, could cause serious safety problems and lead to results that Congress never anticipated.
The Bureau’s public notice interprets Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012. In that section, Congress ordered that “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.”
Addressing Section 6409(a), the Bureau’s public notice issued late last week states:
The 6409(a) phrase “substantially change the physical dimensions” means only a “substantial increase in the size of the tower,” allowing any other changes in dimension.
Mandatory approval of proposed modifications is broadened dramatically. The separate terms “wireless tower” and “base station” include any structure that already supports an antenna or similar facility.
A local government acts unreasonably if it fails to grant a modification application within 90 days because the local government must “invariably” approve the request.
The public notice is not a law or rule but the FCC could give this or some future interpretation the force of law.
The guidance in the public notice could have staggering impacts on local communities. For example, a local government could be compelled to allow a previously approved distributed antenna system (DAS) system running down Main Street to place additional appurtenances “that would protrude from the edge of” the existing facilities for 20 feet in any direction. The public notice asserts the request must be approved even if it would “substantially change the physical dimensions” from the perspective of the community or public safety. And an appurtenance could extend further than 20 feet if it were necessary to protect the antenna from inclement weather. Local aesthetic and safety concerns would be irrelevant.
There are good reasons to believe that Congress did not anticipate this. We ask you to consider how the detailed guidance at page 2 of the public notice would affect your community. How would the duty to approve every tower modification request impact your community? How would such a duty affect public safety? Please share any details by the end of February with BB&K attorneys Gail A. Karish or Matthew K. Schettenhelm in the firm’s telecommunications group. These facts will be important for our upcoming presentations to the FCC.
The FCC has indicated that this may be the first step in a multi-pronged effort to further limit the zoning authority of local governments.
If you have any questions or concerns, please contact the attorneys above or your BB&K attorney.
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