The FCC issued a Public Notice last week clarifying Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 regarding the streamlining of the collocation process.
The legislation simply stated, “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.” When it was passed in February 2012, critics let out a cry that none of the terms were defined in the act.
“Unfortunately, the wording of the statute is vague, leaving providers and state and local governments struggling with how to interpret it,” Russell Fox, member, Mintz Levin, wrote in a Communications Advisory. “While courts may be asked to decide what Congress intended these terms to mean, the FCC’s Public Notice provides at least some indication of how the expert agency defines the terms.”
Jonathan Adelstein, president & CEO of PCIA – the Wireless Infrastructure Association, applauded the Commission’s move.
“We could not be more pleased with the FCC’s efforts to promote wireless broadband deployment,” he said in a prepared release. “Foremost, clarifying definitions related to the federal collocation and modification provision of the Middle Class Tax Relief and Job Creation Act eliminates confusion among state and local jurisdictions trying to comply with the law.”
The legislation had also been criticized by municipalities that, although they support collocations, felt their local zoning authority had been usurped. The FCC has maintained that the components of a collocation had been defined in various rulings and the Public Notice footnoted several of them. While there have been no petitions for interpretation, the FCC said enough informal requests had been made that the agency felt obliged to act.
“This action will create greater certainty and predictability for providers that today invest more than $25 billion per year in mobile infrastructure, one of the largest U.S. sectors for private investment,” FCC Chairman Julius Genachowski said in a prepared release.
In the Public Notice, the FCC published its answers to several of the most frequently asked questions about Section 6409(a).
Using the Nationwide Collocation Agreement with the Advisory Council on Historic Preservation and the National Conference of State Historic Preservation Officers, the Commission defined the term “tower” as “any structure built for the sole or primary purpose of supporting FCC-licensed antennas and their associated facilities.” A “base station,” according to the FCC, consists of “radio transceivers, antennas, coaxial cable, a regular and backup power supply, and other associated electronics,” including small cells and DAS.
The Commission said a “substantial change in the physical dimensions” of a tower or base station, could be determined by a four-prong test, which was instituted in the Nationwide Collocation Agreement.
“Although Congress did not adopt the Commission’s terminology of ‘substantial increase in size’ in Section 6409(a), we believe that the policy reasons for excluding from Section 6409(a) collocations that substantially change the physical dimensions of a structure are closely analogous to those that animated the Commission in the Nationwide Collocation Agreement and subsequent proceedings,” the FCC wrote in the Public Notice.
According to the Nationwide Collocation Agreement, a “substantial increase in the size of the tower” can be ascertained by 1) the addition of a certain amount of height 2) the addition of an appurtenance adding a certain width to the structure 3) the addition of more than the standard number of equipment cabinets and equipment shelters or 4) an excavation outside the current site.
The FCC also concluded that even though the state or local government must approve and may not deny a request for collocation, it may require the filing of an application for administrative approval.