If the Tower Doesn’t Grow, Can Municipalities Say No?

John Pestle of Varnum and I have been invited to speak on  this month’s T-Mobile’s National External Affairs Headliner Speaker Series.  This is a monthly conference call/webinar with hundreds of internal and external T-Mobile executives, managers, line-level staff, and outside contractors.

The title of our lecture, thought up by T-Mobile, is “If the Tower Doesn’t Grow, Can Municipalities Say No?

The conference call is scheduled for Wednesday, April 25th at 11am PST/2pm EST.

If you’re invited, you should already have the call-in information.  If not, you’ll have to contact External Affairs to get it.

This should be fun!  I have lots of slides to share.

Heck, I’ve always wanted to be a headliner!

(Added 4/23 at 8:50 a.m. PDT: I’ve received several questions asking if non-T-Mobiler’s can sit in on the call.  The answer is that I wish I could say yes.  This is a closed webinar, so you’ll have to ask your contact at T-Mobile External Affairs whether you can join in. -jlk)

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Kramer’s 6409 Webinar: Cal Bar Grants 1 hour of MCLE Credit

The State Bar of California has granted 1.0 hours of MCLE credit for attorneys attending Jonathan’s Sec. 6409 Webinar on April 5th. This follows the American Planning Association’s approval of Certification Maintenance credit of 1.0 hours for LAW.

If you are a government attorney outside of California, you may still be able to receive CLE credit in your jurisdiction using the Uniform Certificate of Attendance which will be issued after the webinar.

If you are with a government and wish to attend the Webinar at no charge (MCLE and CM credits are also at no charge), please visit http://Bit.ly/sec6409 for more information and to sign up. About 70% of the available webinar ports have now been taken, so please don’t delay.

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Might Apple buy Sprint?

Okay, it sounds wild, but let’s look at this for a bit…

Sprint has committed $15B to Apple in connection with securing rights to market the iPhone to Sprint’s subscribers (let’s not talk about the newest Apple product, the iHeatingPad). That’s a lot of cash, and I’ll bet that Apple’s contract leave virtually no room for Sprint to get out from under the weight of an 800 pound Apple.

At the same time, the $9B Sprint was expecting from LightSquared seems to drifted away. This raises very serious questions about the future of Sprint’s touted Network Vision upgrade. As a result, Sprint’s plans to shutter some 30,000 cell sites, relying on the Network Vision project to make it possible…must have dropped to ‘maybe’ status, too.

Clearwire. That word has turned into a blackhole of cash for Sprint, and Google just helped further devalue Sprint’s, ah, majority investment by dumping the Google-held shares at a 90% write off. WiMax is not Sprint’s path forward–LTE is. Clearwire may be too late to Sprint’s party.

Sprint’s Board of Directors last month vetoed Dan Hesse’s plan to buy MetroPCS (for a 30% premium, no less). That puts Dan Hesse’s future outlook at Sprint at a 30% deficit (others say that number is even worse). Will there be new blood on the head of the pin, much less new confusions over the direction the pin is pointing? Hey, how about T-Mobile buying MetroPCS?

This month, Sprint seems to have tried…and failed…to get a network sharing agreement with T-Mobile, according to the Wall Street Journal. I guess that shots a hole in my idea about a SprinT-Mobile merger.

Let’s not forget the grandest of Sprint’s Grand Experiments: Nextel. Oh, you want to forget about that? Likely Sprint does, too.

With research firm Sanford Bernstein dropping its rating on Sprint, citing that Sprint might visit BK land, the Bad News Band keeps marching on. For a thoughtful look at this particular issue, see the SeekingAlpha story of March 20th by clicking here.

Now let’s consider Apple.

Apple has attained the status of a ‘mythical creature’ that can seemingly devour all that blocks it path.

Apple has been fanatical about controlling, to the n-th degree, every element of its users experiences with all of the Apple devices. It controls the look and feel of the user experience, and via the App Store all of the applications on iPhones that have not been subject to a jailbreak, as well as iPads of various operating temperatures.

It must peeve Apple that it decided to confine its iPhone and iPad devices originally on an exclusive basis to AT&T to run on that carrier’s less-than-robust and less-than-adequate-capacity network, and one that actually gave up spectrum in the failed T-Mobile love affair.

Now, at least, Verizon subscribers have a better chance at being able to enjoy close to 3G speeds with their iSomethings.

Oh, yes, there’s that cash reserve thing for Apple. It’s sitting on more cash than the U.S. Treasury, and since last Summer it has been the most valuable company you’ll find in the U.S., and maybe anywhere in the entire galaxy.

If Apple thinks about it, it can have its cake and eat it, too: Buy Sprint, fund and complete Network Vision, deploy 4G at real 4G speed, and dump all of the Sprint phones save for Apple iSomethings. Using the software defined radios of Network Vision, Apple can actually build a wireless network that is optimized for data (but still including the voice app that defines LTE). Siri may be the first step to Skynet, albeit with a programmed sense of humor. (How much wood can a woodchuck chuck? See here.)

For Apple, a Sprint purchase would yield it monthly cash flow that can be put back into expanding and optimizing the “Apple Wireless” Network Vision. And given Sprint’s majority ownership in Clearwire (and the 106ish MHz Clearwire controls in the U.S.), Apple would have a real playground to expand data capacity and speeds.

Maybe Apple might make apply the principles of the iTunes Store to Sprint to shift the marketing of Sprint services to the faceless online monolith. Buy a phone and activate service online. Forget about pins dropping.

It just seems right for Apple to continue its quest to control everything its users see and do with the iSomethings now and in the future by controlling its own data delivery network. At the same time, it can keep feeding iSomethings to Verizon, AT&T, and any other carrier that can’t afford to be left in Apple’s iDust.

With the passing of Steve Jobs, the direct minutia-level control he seemed to exert on Apple (at least according to Isaacson) has also passed. This may free up the current management of Apple to take the leap (no, not Leap Wireless) to controlling even more of the user experience, but from a new distance, all without asking “WWSD?”

Of course, Apple might buy T-Mobile instead–or as well–and do more or less the same thing, but that’s a thought best left for a future post.

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Quote from PCIA’s Webinar on Sec. 6409

I had a chance to legitimately listen in on the PCIA’s webinar last week providing their membership with the industry’s view of how the new rules are to be used, and taught to local governments.

I won’t go into much detail now about the PCIA’s webinar now, other than to say three things:

1. It was informative to hear the PCIA’s view of the strengths and weakenesses of the new law; and

2. Far more teaching than boasting occured (to the PCIA’s credit); and

3. The ‘quote of the meeting’ (relating to a local government’s limited ability to deny a Sec. 6409 project) was:

“If the tower doesn’t grow, they can’t say no!”

I’ll be sharing more from the PCIA’s webinar when I conduct mine (for local government attorneys/agencies) on April 5th. If you qualify, please sign up at http://bit.ly/sec6409.

About half the slots are now reserved, so please don’t wait until the last moment to sign up. One hour of MCLE credit has been applied for.

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KTLF to Conduct Sec. 6409 Teleconference on 4/5/12

Sec. 6409: A Landmark Change in Wireless Tower Siting
KTLF to Conduct Special Webinar on April 5th for California Local Governments
(California MCLE Application Filed For 1 Hour Credit)


On February 17, 2012, Congress passed the “Middle Class Tax Relief and Job Creation Act of 2012″ (the “Act”) and sent it on to President Obama, who signed the Act into law. The President signed the Act into law. In 145 words, Congress has changed the process for collocations and site equipment changes, and added many new loopholes in the process. Here’s what the new law says:

Sec. 6409. WIRELESS FACILITIES DEPLOYMENT (a) FACILITY MODIFICATIONS.-
(1) IN GENERAL.- Notwithstanding section 704 of the Telecommunications Act of 1996 (Public Law 104-104) 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.
(2) ELIGIBLE FACILITIES REQUEST.- For purposes this subsection, the term ”eligible facilities request” means any request for modification of an existing wireless tower or base station that involves –
(A) collocation of new transmission equipment;
(B) removal of transmission equipment; or
(C) replacement of transmission equipment.
(3) APPLICABILITY OF ENVIRONMENTAL LAWS.- noting in paragraph (1) shall be construed to relieve the Commission from the requirements of the National Historic Preservation Act or the National Environmental Policy Act of 1969.

The implications of these 145 words will be determined in cases that will queued up in various circuit courts.

Kramer Telecom Law Firm will be presenting a special 1-hour Webinar on April 5th at 10:00 a.m. PDT regarding the new law. This teleconference is open ONLY to local governments and is geared for local government attorneys. There is no charge for local governments to attend this Webinar.

While the teleconference will touch on relevant California laws, the main thrust of the teleconference will be quite useful to local government attorneys across the country.

The teleconference will review the provisions of the new law, and provide nuts-and-bolts strategies to address the challenges the new law raises. There is no limit on the number of persons at each location who can participate, but the number of locations is limited.

California MCLE Credit: An application is being filed with the State Bar of California to grant one (1) hour of general MCLE credit for this presentation.  If you wish to receive MCLE credit (if approved by the California Bar)  please be sure to provide your State Bar Number on the registration form where requested.   If more than one attorney per location seeks credit, be sure to provide all names and bar numbers on the sign-up form in the Questions and Comments section.

For information about reserving a spot for this teleconference, send us an online reservation via THIS LINK. Priority for the limited number of spots will be given in this order: (1) KTLF PC and Kramer.Firm clients; (2) SCAN & NATOA members working for governments; (3) other local governments.

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One Industry View of 6409

Lisa Murphy
Lisa Murphy, Esq.

Lisa Murphy, of LeClairRyan in Norfolk, Virginia is an attorney representing wireless carriers in land use matters (read: she represents carriers before government agencies). On February 24th, Lisa and I spoke on a panel at the AGL Conference in Las Vegas, which touched on Section 6409’s potential impacts on the siting process.

Not surprisingly, Lisa and I do not agree on how far 6409 will reach to change the siting process.  That said, the views expressed in her recent blog post are well worth considering in the larger context of the national discussions now beginning on how to implement this new law.

At first glance, this would appear to require all state and local governments to approve collocation requests as well as any site upgrades. What is interesting about the language Congress chose is that it left open the possibility that state and local governments could still deny applications for collocation on structures that are not “existing towers”, as was indicated in a February 22nd blog post by Jonathan Kramer, with whom I presented a program last Friday at the AGL Western Regional Wireless Conference entitled, “What We Can Teach Municipalities About Wireless”. Jonathan advises local governments on how the 1996 Telecommunications Act impacts their authority to zone and permit wireless sites and assists municipalities in their review of wireless site applications. Jonathan’s position is that collocating antennas on structures that are not “wireless towers” could still be subject to denial by municipalities depending on the applicable local ordinances and how they define the term “tower”. Our other co-presenter, Robert Jystad, who represents carriers and tower companies on all facets of site development, and I disagreed with Jonathan on the practical impact the new law would have on site development and site upgrades, but all on the panel agreed that this will no doubt lead to interesting conversations at the local and state level, between lawyers for the industry and state and local government representatives.

I disagree with Jonathan and agree with Robert that Section 6409 will likely trump state and local ordinances to the extent that they prevent modifications to “grandfathered” sites, sites that were never zoned or that pre-date current wireless tower ordinances. I also agree with Robert that Section 6409 should apply to collocation on all structures. Unfortunately, there is no record of Congress’ intent with regard to the interpretation of the phrase “existing tower”, but given its plain meaning and Congress’ explicit intent to usurp the authority of state and local governments to deny collocation and site modification requests, the term arguably applies to any structure that can support wireless antennas. In that regard, Section 6409 may also trump zoning conditions imposed on towers that limit antenna collocation and placement. One thing that Section 6409 did not do was waive any existing requirements imposed by the National Historic Preservation Act (“NHPA”) or the National Environmental Policy Act of 1969 (“NEPA”). As a result, to the extent that a proposed collocation or antenna modification implicates NHPA or NEPA, compliance is still required. Interestingly, Congress did not carve out or exclude from Section 6409 environmental or historical reviews that may be required under state or local law, only federal law.

Lisa makes other interesting and informative points from the industry’s view.  To read her entire blog post click here.  Look around her blog while you’re there.

Recommended.

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PCIA says Sec. 6409 worth “hundreds of millions of dollars”

Let me start by saying that I personally like and respect Mike Fitch, who is the President and Chief Executive Officer of the PCIA – The Wireless Infrastructure Association.  I’ve had the pleasure of sitting next to him several times on panels at wireless and government conferences. Mike is a smart guy, well spoken, and well spoken of.

You know, however, that with a preface like that I’m leading to something…

I’m disappointed that in announcing the passage of Section 6409 to the various state wireless associations, Mike said in part in his memo:

Significant victory for the industry

This legislation is an important win for our industry. It will save hundreds of millions of dollars as the industry deploys new technologies without wasteful review of existing wireless infrastructure sites. This will enable better network planning and build-out on existing and new sites. It will produce more capital investment and job growth to keep up with the dramatic increase in wireless use.

(Emphasis added.)

Wasteful review of existing wireless sites?

I suspect that significant segments of the public and state and local governments don’t agree that their reviews of wireless site collocation applications is “wasteful.”  Rather, it’s far more likely that the public and governments would says that the review is necessary to promote community aesthetics, and to deter the expansion of legal non-conforming uses.

It’s interesting that in Mike’s public press release posted to the PCIA website, he omitted the “wasteful” reference, when he said:

This legislation is a significant victory for our industry and for all consumers, businesses and public safety agencies that rely on wireless connectivity. . . It is a common sense measure that will significantly reduce regulatory burdens on infrastructure deployment—saving the industry hundreds of millions of dollars over many years. The ultimate beneficiaries are the nation’s wireless users, who will gain access to better, faster and more ubiquitous service as a result of the accelerated pace of deployment.

It’s all in the eyes of the beholder.  What is wasteful to one is protective to another.  For now, however, the industry has scored a major victory.

Local governments are already talking about how to work with and around the worst parts of Section 6409, and how to track the results of those 145 words.

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TriStar Investors (a.k.a. “David”) v. American Tower (a.k.a. “Goliath”)

The Northern District of Texas is the home of a significant wireless law suit just filed, and one which will be of keen interest nationwide to both industry members, and to wireless site landlords.  Heck, this case will fascinate the likes of Unison, Wireless Capital Partners, Communications Capital Group, Landmark, and the others who (like TriStar) purchase cell site leases and take easements in the property under cell sites.

In this case, David (TriStar Investors) is suing Goliath (American Tower and its various operating companies) for:

Count 1: Violation of the Lanham Act, 15 U.S.C. 1125(a)
Count 2: Unfair Competition
Count 3: Business Disparagement
Count 4: Tortious Interference with Existing Contract
Count 5: Tortious Interference with Prospective Business Relations
Count 6: Breach of Contract

In Count 7, TriStar asks (under Texas law) for a permanent injunction commanding American Tower to refrain from doing three things.

Specifically it asks the court to permanently bar American Tower from:

(1) making false statements about its own services and commercial activities in negotiations with landowners;
(2) making false statements about TriStar’s services and commercial activities in negotiations with landowners; and
(3) making statements to landowners under contract with TriStar for purposes of inducing a breach of the TriStar contract.

As set out in the introduction to the case by TriStar:

This is a case about unfair competition and false advertising in the cell tower industry. American Tower, a massive corporation, has resorted to unfair and illegal tactics in negotiations with landowners for cell tower sites when faced with competition from a tiny competitor, TriStar. Rather than competing fairly and acquiring sites through superior offers, American Tower has systematically misinformed and deceived landowners to acquire sites under less favorable economic terms than those offered by TriStar, to the material detriment of TriStar and landowners nationwide.

(Complaint @ 1)

Some interesting assertions taken from TriStar’s complaint:

“[B]eginning in 1999, carriers began to outsource their towers by transferring control of the towers to a new market entity: the
tower company.” (Compliant @ 25)  “The first transaction in which a carrier transferred control of its towers occurred in 1999. Under the terms of that transaction, Bell Atlantic sold actual ownership of the tower steel to Crown Castle.” (Compliant @ 28)

“The tower companies, in exchange for their investment of capital to control a tower site, were the beneficiaries of two critical opportunities: (1) the lease-back payment from the carrier that had previously owned the tower, and (2) the option to lease additional space on the tower to other wireless carriers.” (Complaint @ 26)

“Today, there are more than 100,000 cell towers in the United States. Over half of those towers are controlled by three major public tower companies.” (Complaint @ 27)

“American Tower recently disclosed that approximately 86% of the communications sites in its portfolio are located on leased land. In order to establish or maintain their control of tower sites and generate revenue, American Tower must negotiate new ground leases, or renewals of current ground leases, with landowners on an individualized basis.” (Compliant @ 30)

Here’s a biggie: “Since the formation of the cell tower industry in the mid-1990s, the total cash flow produced by a typical cell tower has increased by more than $50,000 per year, while the total cash flow received by a typical landowner in the form of ground rent has increased by less than $10,000 per year. Whereas the typical landowner previously received approximately 40% of a cell tower location’s total cash flow, landowners now typically receive less than 15% from the tower companies. Over the course of the past 15 years, the total cash flow from a typical cell tower has increased by more than 400%, while the share of total cash flow that is typically received by a landowner has declined by more than 50%.” (Complaint @ 33)  “A typical cell tower operated by American Tower produces annual gross cash flow in excess of $80,000 for the company, whereas the landowner of such site typically receives less than $15,000.” (Compliant @ 34)

Fascinating, eh?

Now, about TriStar, formed in 2005:

“Most commonly through execution of an easement with the landowner, but occasionally via a fee purchase or successor lease, TriStar acquires the right to manage a communications site once the underlying ground lease with the existing tower company expires. The tower company enjoys the full benefit of its lease for the duration of the existing term without interference from TriStar. Upon lease expiration, TriStar takes over the management of the tower property from the tower company and endeavors to maximize benefit to the landowner.” (Complaint @ 39).  [See my comments below for more on this. -jlk]

“TriStar has acquired (or has fully executed agreements to acquire) control of over 600 tower locations throughout the continental United States.” (Complaint @ 41)

Why is American Tower ticked at TriStar?

“Since entering the industry, TriStar has acquired property rights underlying several hundred tower locations leased or subleased by American Tower. TriStar’s business model is to not renew leases with American Tower when they expire, but instead to operate each tower site for wireless communications purposes upon expiration of the respective lease (either by acquiring rights to the existing tower or constructing a replacement tower at the same location, which is typically permitted by local zoning regulations).” (Complaint @ 43)

If the snippets above have not made you want to read the entire complaint then I don’t know what will.  The full complaint is linked below.  You really should read it if you’re into wireless as anything more than a

As a wireless attorney working for site landlords (both private parties and governments), I’ll be particularly interested in following this case.  I have some tower site landlord clients that have been warned by American Tower that if they sell their sites to anyone by American Tower, they face the wrath of Goliath’s legal department.  That’s even if the landlord today sells an interest that does not commence until after American Tower’s interest completely terminates.

Apparently, American Tower believes that one of its rights today, is to have the future opportunity to enter into a new contract after the current one expires.  That’s a legal stretch somewhat equivalent to you telling your office landlord that if today he enters into a new lease with a different tenant for your office space, and that new lease does not commence until after the final expiration date of your lease, you can sue the landlord claiming …. ah …. ah ….

I wonder how long it will take for some enterprising attorney to try to form a class of site landlords who have been ‘dissuaded’ by American Tower, but that’s for a different post.

Read the complaint…Don’t wait for the movie: David v. Goliath

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Congress Gifts Wireless Industry with By-Right Collocation…Or Does It?

On February 17, 2012, Congress passed the “Middle Class Tax Relief and Job Creation Act of 2012” (the “Act”) and sent it on to President Obama for his signature.  It seems likely that the President will sign the Act.

The California Wireless Association said about the Act in an email bulletin to its members (of which I am one): “In effect, Section 6409 exempts from local discretionary review collocations and modifications that do not substantially increase the size of the tower.”  Well, that’s one view, but it’s not complete, and it’s not that simple.

Let’s review….

Congress’s Election Year Gift to the Wireless Industry

As I discussed in a prior post, the Act contains the following significant gift to the wireless industry, grafted on to this Act from its former home in the stalled S.911 :

Sec. 6409. WIRELESS FACILITIES DEPLOYMENT

(a) FACILITY MODIFICATIONS.-

(1) IN GENERAL.-Notwithstanding section 704 of the Telecommunications Act of 1996 (Public Law 104-104) 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.

(2) ELIGIBLE FACILITIES REQUEST.-For purposes this subsection, the term ”eligible facilities request” means any request for modification of an existing wireless tower or base station that involves –

(A) collocation of new transmission equipment;

(B) removal of transmission equipment; or

(C) replacement of transmission equipment.

(3) APPLICABILITY OF ENVIRONMENTAL LAWS.-noting in paragraph (1) shall be construed to relieve the Commission from the requirements of the National Historic Preservation Act or the National Environmental Policy Act of 1969.

Since it appears very likely that Sec. 6409 will become the law of the land, let’s take some time to dissect it for impact, defenses, and results.

What Types of Sites Are Protected by Sec. 6409?

Sec. 6409 does not on its face apply to any structures other than existing wireless towers.  The Act does not even define what constitutes a “wireless tower.”

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.

In reality, relatively few physical structures should be called a “wireless tower” (especially by governments).

While it’s difficult to argue that monopoles are not wireless towers, if the monopole has a light standard on it located in a parking lot, and the monopole was put in to add wireless to a prior existing light standard, then it is straight-forward to argue that the monopole with the light standard is not a wireless tower.  It was a replacement for a light standard that was not a wireless tower, and the original use was preserved.  Yes, this is the wireless equivalent of “Who’s on First?! Who! Who?”

Let’s turn to the Act’s coverage of a “base station” (no pun intended).  The term “base station” is also not defined in the Act.  Since the term can mean different things depending on which side of the planning counter you normally stand, let’s take a closer look.

If the term “base station” means equipment cabinets, and a site presently has two cabinets, then doubling the number of cabinets to four would certainly be a substantial change in the physical dimensions of the base station.  If the existing “base station” is contained within a closed room or building, then doubling the number cabinets of the base station might not be a substantial change.  Context is important.

Since site configurations differ from site to site, carrier-to-carrier, and location-to-location, we can’t say in knee-jerk fashion whether an expansion of 5% of 50% of a wireless tower or base station is a substantial change in the physical dimensions for the purposes of the Act.  This will take a case-by-case reasoned analysis to reach a sound answer.

“Or” v. “And” Makes a Big Difference

Next, let’s look at how Sec. 6409 requires we evaluate a change in physical dimensions.

Sec. 6409(a)(1) does not say, ‘…a modification of an existing wireless tower and base station…’  Rather, it bifurcates the analysis when it says, in fact, a “…modification of an existing wireless tower or base station…” (Emphasis added).    This one word change unambiguously means that if a collocation proposal comes in for an existing wireless tower, then the government should conduct a two prong analysis.

The first prong is to determine whether the proposed expansion on the wireless tower will “substantially change the physical dimensions of [the existing] wireless tower.”  The second prong asks whether the proposed collocation will “substantially change the physical dimensions of the [existing] base station.”

If the answer to either prong is yes, then the collocation would fall outside of the rights and protections granted under Section 6409.  That said, then the government must still consider whether the project is one that should be permitted, conditioned, or barred under the local code governing wireless site installations.

An “Eligible Facilities Request” — Not As Obvious as it Might Seem

Turning to Section 6409(a)(2), now let’s look at what constitutes an “ELIGIBLE FACILITIES REQUEST.”

The term ‘eligible facilities request’ has three distinctly separate meanings, all of which are important to governments.  The first is that it means any request for modification of an existing wireless tower or base station that involves “collocation of new transmission equipment.”  This seems to be the main thrust of the Act, but it is interesting that the collocation of new transmission equipment does not mean the collocation of a new carrier or carriers on an existing tower.  There may be some governments that look at the plain text and say that this subsection (a)(2)(A) only applies to the existing occupant(s) on the real wireless tower who are, for themselves only, collocating new transmission equipment.

Subsection (a)(2)(B) makes it clear that an existing carrier on the wireless tower may by right remove its transmission equipment on the tower or at the base station.  Governments will like this section, since it will result in a reduction in the visual impact of a wireless site.

Subsection (a)(2)(C) makes it clear that an existing carrier on the wireless tower may by right replace its existing transmission equipment.  Again, size matters, if the replacement will be substantially larger or smaller compared to the existing transmission equipment.

NHPA & NEPA: Status Quo

I’m not going to spill too much e-ink over (a)(3).  The status quo is maintained and the as the FCC’s duties under the National Historic Preservation Act or the National Environmental Policy Act of 1969 are reaffirmed.

Recommendations to Governments

As a government wireless planner, you are about to have gleeful carrier reps–and even more gleeful carrier attorneys–telling you that Sec. 6409 makes your job soooo much easier now: Just say ‘yes’ to every collocation and your government won’t get sued.  They might even suggest that you tell the public that Congress is to blame for all this, rather than the carrier, right? Well, no, it’s not that easy for you, the carrier, or the public.

A careful, informed, rational project analysis is absolutely required to insure that governments are not granting collocations “by right” where no “by right” truly exists.

Start by looking at your wireless ordinance.  (You do have one, right?)  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.  For example, if you define wireless tower to mean every wireless site, then your definition will need to be changed pronto!

Use a detailed wireless application form (you should be using one, anyway).  Don’t blow your FCC Shot Clock deadlines because you didn’t use a detailed application, and you didn’t review the complete application at the time it hit your planning counter.  Consider requiring wireless applicants to make appointments to tender applications so you’ll block enough time to review project at the counter.  If the application is incomplete, make sure the applicant leaves with an incomplete letter at the time so that the shot clock doesn’t begin to run.

Sec. 6409 does not preempt a local government’s right (and some think a duty) to evaluate current and planned emissions for compliance with the FCC’s standards at 47 C.F.R. § 1.1307 et seq. and FCC OET Bulletin 65.  If the the by-right collocation project won’t comply with the FCC rules–and some don’t as proposed–then don’t be bullied into permitting a non-compliant project.

Especially consider legal non-confirming wireless towers and sites (a site that was legal under local law at the time it was constructed, but would not be permissible today under current local law…think “ugly monopole”).  The Act’s language would suggest that a government cannot deny a proposed collocation on a legal non-conforming site. Your government may well want to amend your local code right now to indicate that other than maintaining or replacing existing antennas with like sizes and shapes, any other material changes would be deemed to be ‘substantial’ for the purposes of collocation under the Act.  I’m sure that a lot of wireless industry attorneys will disagree, but most governments tolerate legal non-confirming uses only so long as they are not exacerbated or extended in term.

Speaking of term, some states (like California) permit local government to limit the length of wireless site permits to some term of years.  In California, the shortest term is normally 10 years, but modifying by expansion a legal non-confirming site would likely fall within the exception permitted in the Government Code (I helped write this section of the California Government Dode…call me…I’ll tell you more).

If you face granting a mandatory collocation on a wireless site that will term out, say, in 7 years,  then you’ll want to term-limit the collocation permit to expire at the same time as the underlying site permit.  This will be especially important in legal non-confirming settings.

I’m sure that some governments will use the enactment of Sec. 6409 to justify adopting a siting moratorium.  It may well be justified given the potentially drastic impacts the new law will have on a major sector of wireless siting.  We’ll have to wait and see.

Recommendations to the Industry

Congratulations industry, you’ve earned a well-funded victory at Congress!

Now, don’t overstate the scope of your new rights when dealing with governments.

Please don’t say that diesel generators to provide standby power are somehow “transmission equipment.”  It won’t fly, and you won’t get points for creativity, either.

Don’t make hollow threats of law suits, especially over technicalities such as trying to torture and graft favorable current meanings from ordinance terms created years ago for a substantially different purpose.  You’ll find enough legitimate bad-actor cases to develop case law that will rationally guide governments…and carriers…how to use the new law as a surgical tool where truly needed, rather than a blunt force instrument to inflict trauma simply for trauma’s sake.

Remember that governments may consider using your blunt force instrument threats to justify a siting moratorium for up to a year, or even longer.  Is that what you really want?

Work with governments to ease into this paradigm shift.  You’ll both be happier, even if the public won’t be.

Please (don’t) let the games begin.

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About the author:

Jonathan Kramer is a California-based radio frequency engineer, wireless siting advisor, and an attorney working primarily on behalf of local governments and wireless site landlords around the U.S.  Jonathan notes that the opinions expressed in this article are his own, and do not necessarily reflect those of any of his clients, friends or foes.  Kramer’s main website is TelecomLawFirm.com.




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