Wireless Industry Trying Again to Force Unregulated Collocation

You might think that the Payroll Tax Bill being hashed out in the Conference Committee would deal with, well, payroll taxes. Alas, you’d be wrong.

The wireless industry is trying very hard to insert language into the final version of the Bill that would strip state and local governments of the ability to control modifications to existing cell sites.

Specifically, the draft conference committee report contains the following provision:

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 [the] purposes of 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.—Nothing 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 language above is terribly flawed as it uses terms that are imprecise at best, and downright confusing at worst: “…substantially change the physical dimensions of such tower or base station…” Huh? This means that a collocation could substantially alter the aesthetics of an existing site outside of local control so long as the collocation does not substantially change to physical dimensions of the tower or or base station.

The proposed language would also remove the ability of a government to deny a collocation on a legal non-conforming site (a site that was legal under local law at the time it was constructed, but would not be permissible today under current local law). Ugly monopoles will get uglier with the addition of new antennas that do not “substantially change the physical dimensions of such tower” and that’s just the way it is.

Would anyone like to bet a law suit on what “substantially change” means?

If you believe that the language in the conference draft is offensive to local control of the rational deployment of wireless facilities designed to promote community aesthetics, now is the time to act. Really, now.

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