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Bill Stuffing – Federal Government Extends Its Reach into Cell Tower Land Use Decision Making

In February, President Obama signed into law HR 3630, also known as the “Middle Class Tax Relief and Job Creation Act of 2012,” which extended unemployment benefits and payroll tax deductions. Congress stuffed the bill with several additional provisions, including one that affects local government decisions regarding the siting of wireless facilities.

The legislation expressly requires that a local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station, so long as the modification does not substantially change the physical dimension of the tower or base station. This approval must be granted regardless of provisions in the Telecommunications Act of 1996 (Section 704) or any other provision of law. An “eligible facilities request” is any modification request that involves the collocation of new transmission equipment; removal of transmission equipment; or replacement of transmission equipment.

The new law does not prevent a locality from reviewing a proposed collocation installation. However the federal government imposes limitations on local government consideration of wireless tower proposals in this legislation. The bill does contain several ambiguities. For example, the law only applies to “wireless towers” and, under some FCC orders, wireless towers are facilities built for the “sole or primary purpose of supporting antennas and their associated facilities used to provide FCC-licensed services.” If that latter definition applies, many collocation applications may not be considered “wireless towers” that would be subject to the new law. Moreover, the new law does not define what constitutes a “substantial change.” Therefore, local governments may still retain the authority to deny a proposal because a change in tower size creates a traffic or accessibility hazard.

The bill is effective immediately and local governments may anticipate that aggressive tower companies will seek approvals under the provisions of the new law. Local governments should audit their wireless facility codes and update approval criteria to reflect the new substantial change in physical dimension standard. Further, the FCC has rulemaking authority that may also affect the implementation of the new law. Local governments and tower companies alike should keep an eye on FCC activity related to this new rule.

The new legislation, combined with the federal government’s significant intrusion into local decision making pointed out in Ed Sullivan’s analysis of the City of Arlington v. FCC case, shows that D.C.’s hands are stretching across the wireless universe to streamline placement of wireless towers. But, with every new idea, controversy about its implementation is sure to follow.

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We regularly update clients about changes in real estate law and on industry trends. This includes briefing clients on legislative proposals in the federal tax, housing and other legal areas affecting their businesses. Staying current enables you to anticipate and prevent legal problems as well as capitalize on new developments.
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