The Federal Communications Commission is considering adopting rules that could limit local governments’ zoning authority and allow wireless-service providers to add facilities to existing buildings, towers, and other structures in public rights-of-way and elsewhere. The wireless industry will likely push the federal agency to adopt rules that will allow them to place and expand facilities with little or no oversight.
On October 7, BB&K telecommunication attorneys discussed how the proceeding could affect local zoning, right-of-way management, historical preservation and environmental regulation—and how local governments can protect their interests.
At least two sections of the FCC’s Notice of Proposed Rulemaking directly address local government zoning authority and right-of-way control: The FCC is proposing to implement Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, which states that “a state or local government may not deny, and shall approve” particular requests to collocate, remove, or replace transmission equipment on an “existing wireless tower or base station” if the request would not “substantially change the physical dimensions of such tower or base station.” The FCC is considering adopting rules to implement the statute, which could affect local government authority to review changes to existing facilities on private property or in the rights-of-way, and affect local authority to enforce conditions limiting the size of an already-approved wireless facility. In the past, the wireless industry has asked the FCC to adopt a rule that would require local authorities to authorize extensions of 20 feet without condition. State laws governing collocation in California and elsewhere could be significantly affected.
In addition, the FCC is asking whether it should supplement its “shot clock”—the rules defining how long a local government has to act on an application—to deem an application automatically granted if the locality fails to satisfy the FCC’s deadlines. It asks whether its shot clock runs from the time that an application is filed even if the community has adopted a local moratorium on applications. And it asks whether a local government “unreasonably discriminates” when it requires a preference for siting on government property. The FCC’s actions on these issues could significantly limit local authority to address complex wireless siting issues.
Joseph Van Eaton, Telecommunications Partner (Washington, DC)
Matthew Schettenhelm, Teleccomunications Attorney (Washington, DC)
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