July 2, 2015 — Legislation implementing the FCC’s Report and Order, “Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies,” is now being passed in the state legislatures.
Most recently, Iowa Governor Terry Branstad signed into law a bipartisan bill aimed at speeding the deployment of wireless infrastructure on June 23. It was the second such bill in as many months with the passage of the Indiana Wireless Telecommunications Investment Act on May 27. Each piece of legislation mirrors the FCC’s order defining the terms of Section 6409(a) of the Spectrum Act, which developed rules for wireless site applications at the state and local level including a new shot clock with a deemed granted remedy.
The Iowa Cell Siting Act, House File 655, expanded the deemed granted remedy beyond collocations to include new builds. The bill sets a 150-day shot clock for a municipality to act on a new build and a 90-day period for action on a collocation request, before each are deemed granted. The FCC’s Order covered only collocations with deemed granted remedy for municipal inaction.
Similar to the FCC Order, the Iowa law defines certain terms, such as collocation, base station, antenna, existing structure, small cell facility, tower, transmission equipment and utility pole.
Arguably the most important definition was “substantial change” to the existing support structure, which determines if a wireless application can be treated as an eligible facilities request and expedited treatment under Section 6409(a). One of several litmus tests for a substantial change was if the tower height increases 10 percent or by the height of an additional array.
The bill also denies a permit authority the ability to evaluate an applicant’s business decisions concerning the customer demand, service quality or desired signal strength to a particular location.
Oddly enough, while the FCC’s order implementing Section 6409(a) makes its way into state law, it is concurrently being challenged by local governments in several U.S. Courts of Appeals to determine if it is an unconstitutional exercise of power by the federal government over the states.
Jonathan Kramer, Telecom Law Firm, said that in the event the FCC rules implementing Section 6409(a) are overturned by the 4th Circuit Court of Appeals, state laws governing siting would remain in tact, providing the wireless industry with a backup plan.
“If the local governments’ appeal is successful, cities and counties in those states that have adopted state-level 6409(a) rules will find that they still have to comply with those state rules mirroring the federal rules,” Kramer said. “Essentially, the current state-level thrust is a way for the industry to hedge its bets in the face of a potential loss in federal court.”