The “Middle Class Tax Relief and Job Creation Act of 2012” passed by Congress last week had an amendment of great interest to the tower industry. It will streamline the process of modifying wireless by eliminating municipalities’ ability to deny modifications to wireless towers that don’t change the physical dimensions of the site. President Obama is expected to sign the legislation.
Under Section 6409, wireless facilities deployment, the amendment states, “Notwithstanding section 704 15 of the Telecommunications Act of 1996 or any other provision of law, 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.”
The bill could potentially speed up the process of upgrading cell towers with 4G equipment, unless municipalities find loopholes.
The amendment defined a modification as the collocation of new transmission equipment, the removal of transmission equipment and the replacement of transmission equipment. The new law, however, does not supersede the FCC’s requirements under the National Historic Preservation Act or the National Environmental Policy Act.
“Coupled with the FCC shot clock, the legislation represents a huge step forward in streamlining the local permit process for tower collocation and carrier technology upgrades,” said Christopher Fisher, attorney and partner at Cuddy & Feder.
Although the legislation is a victory for the wireless industry, expect the municipality camp to set to work finding loopholes in the bill’s language.
Tim Gasser, project manager – wireless collocation at Puget Sound Energy, wasn’t that hopeful. “That doesn’t sound all that useful to me. Adding antenna or replacing with larger antenna can be portrayed as changing physical dimensions, i.e., exposed surface area. That gets you to arguing over what ‘substantially’ means,” he said.
The language in the amendment is too vague, according to Jonathan Kramer, an attorney who serves a municipal wireless consultant. For example, he notes that the term “wireless tower” is not defined.
“Absent some local government code definition to the contrary, a building with an existing cell site on it is not a wireless tower; a park light standard with an existing wireless cell site is not a wireless tower; a church steeple with a cell site inside it is not a wireless tower; a billboard with an existing wireless site is not a wireless tower; a mono-cross is not a wireless tower,” Kramer wrote on his blog. “In reality, relatively few physical structures should be called a ‘wireless tower,’ especially by governments.”
Kramer also notes that the term “base station” is not defined and asserts that the term “eligible facilities request” has three different meanings. He advises municipalities to review the terms in their wireless ordinances and make sure they are defined.
“A careful, informed, rational project analysis is absolutely required to ensure that governments are not granting collocations ‘by right’ where no ‘by right’ truly exists,” Kramer wrote. “Start by looking at your wireless ordinance. Does your ordinance contain a provision that actually defines a ‘wireless tower’ or a ‘tower’ or a ‘base station’? You are certainly going to want to review and likely tighten up those definitions to limit undesirable spillover.”