Category: 6409

Must Cities Administratively Approve 6409(a) Projects? Nope.

Must Cities Administratively Approve 6409(a) Projects? Nope.

Posted on by Dr. Jonathan L. Kramer

Section 6409(a) of the Middle Class Tax Relief ActI recently received a phone call from a very senior government rep of a very large wireless carrier.  The carrier’s rep called to share his displeasure that the city I frequently work with would not administratively grant approval of what he determined to be subject to Section 6409(a) of the Middle Class Tax Relief Act as modification project of an existing cell site.

Here are the general facts:

  1. When the Planning Commission approved the initial cell site project, it explicitly placed a condition on the project that required the applicant to come back to the P.C. for any site modifications;
  2. The carrier accepted the condition;
  3. Now the carrier wants to modify the site to change out the antennas (and presumably a bit more) to support 4G services;
  4. The carrier does not want to back to the Planning Commission since that would require public notice and a hearing;
  5. The city has no administrative approval process to allow staff to override a Planning Commission condition on an approved project; and
  6. As of this writing, the carrier’s rep has not yet submitted his project modification application to the city.

The government planner for the city involved told the carrier’s rep that he would have to submit his request following the usual application process, and that the project could be scheduled quickly for Planning Commission review.  The carrier’s rep told the planner that the cty is obligated to process 6409(a) projects administratively and to then grant approval without a hearing.  The carrier’s rep threatened to sue the city if the project was not administratively approved.   He made the same assertion and threat to me when we talked.

I told the carrier’s rep that nowhere in 6409(a) did Congress define an administrative process–much less any specific process–that a local jurisdiction must follow when considering (1) whether a project is subject to the benefits of 6409(a) treatment, and (2) if the project is subject to 6409(a) treatment whether the project must be approved administratively.   He disagreed, saying that its employer’s problem if the city has no administrative process to follow, and that 6409(a) requires it.

What I told the carrier’s rep is that where no administrative procedure exists to override a Planning Commission condition on an approved project, the condition (to bring back any site modifications to the Planning Commission) has to be followed even if the outcome may be predetermined by 6409(a).   Remember, whether a project is subject to 6409(a) is a factual determination that must be made by the local government, rather than by the carrier.  Given that the FCC’s guidance of last month is not binding on cities or even the Commission, and that guidance requires you ignore the plain words in the statute to follow the Commission’s recommendations, it’s obvious that facts have to be determined, and that those facts count.

The bottom line is that there is no federal requirement under 6409(a) that any particular process be used when considering a project that may be subject to 6409(a).

Where there such a requirement in the text of 6409(a), it would simply bolster the already interesting commandeering arguments being made by local government counsel who assert that 6409(a) is unconstitutional.

Time will tell.

PS: Don’t forget that the FCC shot clock still applies to 6409(a) projects, just like it does to non-6409(a) projects.

 

 

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FCC Offers "Guidance" on Sec. 6409(a)

FCC Offers “Guidance” on Sec. 6409(a)

Posted on by Dr. Jonathan L. Kramer

fcc.logoYesterday, January 25th, the FCC released a public notice titled,  “WIRELESS TELECOMMUNICATIONS BUREAU OFFERS GUIDANCE ON INTERPRETATION OF SECTION 6409(a) OF THE MIDDLE CLASS TAX RELIEF AND JOB CREATION ACT OF 2012” (DA 12-2047).

As an aside, I note that the Commission did not consult with its own Intergovernmental Advisory Committee, much less advise them of the release of this Guidance in advance.

The Commission crafted its Section 6409(a) Guidance to provide the public its own view of how state and local governments should interpret the following self-created questions:

  1. What does it mean to “substantially change the physical dimensions” of a tower or base station?
  2. What is a “wireless tower or base station”?
  3. May a state or local government require an application for an action covered under Section 6409(a)?
  4. Is there a time limit within which an application must be approved?

I’ll let you read the Guidance for yourself (see link below)  to learn the Commission’s thoughts in response to its four questions.  I’m not going to get into my specific thoughts about the Guidance other than to say that it is flawed and overreaching in most areas covered.  The only bright light is that the Commission did recognize that carriers are not exempt or excused from following the state or local government application process  for collocations covered by Section 6409(a).

Importantly, however, there is about a 103% certainty that wireless carrier representatives will show up to local governments toting a copy of the Guidance misrepresenting it as the way that 6409(a) must be read and understood by those governments. That will be factually incorrect, but its tough for planners at “the counter” to critically evaluate a document bearing the FCC seal.  That critical evaluation and the inevitable challenges to the Guidance will be a job for attorneys and stakeholder organizations like NATOA.

At the end, the Commission’s Guidance is advisory only.  Given the fundamental omissions and differences in Section 6409(a) (some of which are acknowledged by the Commission), Section 6409(a) remains a moving target, as does compliance with that moving target.

Click here to read the FCC’s Guidance on 6409(a)

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Forget the Cell Site Lease Buyout – Buy The Whole Property

Posted on by Dr. Jonathan L. Kramer

In an interesting twist on a wireless site lease buyout, Global Signal (a unit of Crown Castle) has not only bought out an existing cell site lease in Fort Myers, Florida…it bought the entire underlying property and the existing commercial office building as well.

Crown Castle paid $1,000,000 for a property recently assessed to be worth about $620,000. The property was originally listed for $1,200,000.

Here’s what the seller’s listing agent, Kevin Fitzgerald of NAI Southwest Florida said about the deal, “I think [Crown Castle] liked the property location, and they have an interest in the cell tower in the back of it,” he says. “To the best of our knowledge they are going to try to lease [the building] out.”

Was Crown Castle crazy?

Yeah.  Crazy like a fox.

The site is located to serve the Midpoint Bridge  as well as Page Field, the local airport.  It is certainly in a great location for commuter and fixed high capacity/volume wireless traffic. There appear to be six levels of antennas on this legacy monopole, which is no doubt subject to the relaxed  Sec. 6409(a) collocation rules.

The current cell site income was reported as being about $5,500 per month.  Using the usual valuation benchmarks, this would have meant that a likely offer on just the lease and easement would be in the range of $792,000 to $990,000, with the higher number being more likely closer the a deal point.  The lease buyout value might even be higher if the underlying lease is within 10 years of its natural expiration.

When you look at the rent that Crown Castle was paying, nearly $5,500 per month (presumably tied to the collocations at the site, and also likely to be effectively increasing 2 to 5% per year), as well as the residual value Crown Castle can recognize by flipping the property minus the cell site ($620,000ish minus some value for the internal portion of the building that will continue to be used by one or more of the collocators) plus the short or long term tax loss from the purchase price, the deal seems to make a lot of sense from Crown Castle’s standpoint.  A lot of sense, actually.  It’s like Crown Castle got the property thrown in nearly for free on top of the wireless lease buyout.

Yes, a sweet deal for Crown Castle.

Likely not so sweet a deal for Peninsula Associates LLP, the seller, which probably also paid a 7% real estate sales commission to NAI while apparently leaving a whole boatload of money on the table on the way out the door.

Reported information regarding the sale (believed to be accurate but not guaranteed):

BUYER: Global Signal Acquisitions IV LLC, Canonsburg, Pa.

SELLER: Peninsula Associates LLP

PROPERTY: 1421 Colonial Blvd Fort Myers, FL 33907 (building constructed in 1965); Alternate address: 1421 Cr 884 W, Fort Myers, FL 33907

LISTED: August, 2012; Contract in October, 2012.

CURRENT SALES PRICE: $1 million (7855 square feet/$127 per square foot; Lot size: 0.83 acres; about 850 square feet inside building used by cell tower tenants.

PREVIOUS SALES RICE: $420,000, December 1988

ASSESSED MARKET VALUE (2011): $620,302  ($404,302 for building; 216,000 for land)

READ NAI’S LISTING FLYER: Click Here.


View Larger Map  (and zoom+ satellite view to see the entire tower)

 

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Third-Party Sec. 6409(a) Presentation

Posted on by Dr. Jonathan L. Kramer

A California government recently received a third-party consultant presentation in an open meeting study session ostensibly regarding wireless collocation siting under Section 6409(a).

I am making available the audio and slides of the presentation, along with my legal analysis and commentary regarding the information and the reliability of the information offered during the lecture, to my municipal clients and selected others.

If you are a municipal client or are otherwise interested, please contact me directly for access to the password-restricted site containing the materials.

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Section 6409(b)(1): Mandatory Wireless Siting on Federal Property?

Section 6409(b)(1): Mandatory Wireless Siting on Federal Property?

Posted on by Dr. Jonathan L. Kramer

I’ve spent a lot of time and spilled a lot of ink writing about Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 (H.R. 3630).  That’s the poorly conceived and equally poorly written section addressing wireless collocations at some existing wireless sites.

This posting is not about 6409(a).

Rather, in this post I turn my attention to Section 6409(b)(1) of the Middle Class Tax Relief and Job Creation Act of 2012.  That section sets out a new federal policy regarding wireless siting on federal property and federal buildings.  As we all know, there’s a lot of federal property, and a heck of a lot of federal buildings.

Let’s start with a quick review of 6409(b)(1), which is the meat of the section:

Sec. 6409
. . .
(b) FEDERAL EASEMENTS AND RIGHTS-OF-WAY.—

(1) GRANT.—If an executive agency, a State, a political subdivision or agency of a State, or a person, firm, or organization applies for the grant of an easement or right-of-way to, in, over, or on a building or other property owned by the Federal Government for the right to install, construct, and maintain wireless service antenna structures and equipment and backhaul transmission equipment, the executive agency having control of the building or other property may grant to the applicant, on behalf of the Federal Government, an easement or right-of-way to perform such installation, construction, and maintenance.

I’ve recently heard that some members of the public are looking at Section 6409(b) as some sort of Congressional mandate requiring the federal government property be made available for the installation of wireless sites.

Not so.

Section 6409(b) of the Middle Class Tax Relief Act does not require that federal agencies lease their property, buildings, roads, waterways, etc. to anyone, much less to wireless entities.   Section 6409(b)(1) makes it clear via one very important word (“may”) that the approval is not mandatory; rather it is permissive and approval may be withheld.

The discretion the federal government reserves to itself is perfectly logical when you think about it.  Consider, for example, national security and operational reasons why Congress would not want 6409(b) to require wireless siting on federal property.

Look at who is permitted to apply for such an easement under 6409(b)(1), including any: “…executive agency, a State, a political subdivision or agency of a State, or a person, firm, or organization”.  Virtually anyone (and I mean anyone) can apply to access federal property to install a wireless site.

Yet, would anyone with a straight face suggest that a foreign government (an “organization” within the meaning of the Section) could compel the National Security Agency to allow it to put equipment and antennas on top of the NSA headquarters building at Fort Meade?

Similarly, would anyone reasonably suggest that a secured research facility operated by a federal agency must open access to its property to allow for the installation and operation of antennas that might cause facility security concerns, or interfere with sensitive experiments?

To torture this discussion just a bit more, would anyone actually believe that Section 6409(b) would compel the installation of wireless antennas within the National Radio Quiet Zone at the National Radio Astronomy Observatory (NRAO) in Green Bank, WV or at the radio receiving facilities for the United States Navy in Sugar Grove, WV?

(Huh? You didn’t know there was a place in the U.S. where the only public telephones are pay telephones, and where government agents will hunt you down for installing a Wi-Fi at your home or for using a cell phone? See: http://www.gb.nrao.edu/nrqz)

To all of the above, the rational answer is an obvious, ‘Of course not.’

At the end of the day, the federal government has created a general policy…but absolutely no requirement…that wireless facilities be allowed on federal property and buildings on a fee-basis, and within reasonable limits to be determined by each agency and at each location.  Logically, this would also allow the federal government the right to exclude wireless facilities at any federal location for practically any valid reason.

Here’s an interesting question and wrinkle regarding wireless siting outside of the U.S. territorial limits.  Does Section 6409(b)(1) allow a wireless firm, whether foreign or domestic, to apply to siting on U.S. federal lands and buildings physically located  in other countries?  For example, would 6409(b)(1) open the door for Vodafone U.K. to apply put a cell tower on the grounds of the U.S. Embassy, located on prime real estate at 24 Grosvenor Square in  London?

Section 6409(a) is a mess.

Section 6409(b)(1) joins the ranks of 6409(a).

Jonathan

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FCC Likely to Revisit RF Emissions Safety Rules

Posted on by Dr. Jonathan L. Kramer

Wireless Week is reporting that the FCC may open an inquiry into its RF emissions safety standards.

WW reports that Chairman Julius Genachowski is circulating a draft inquiry among the Commissioners that may (and is likely to be) voted on by the full Commission to require a in-depth review of the FCC’s existing environmental RF rules. Those rules are found at 47 C.F.R. § 1.1307 et seq., and discussed in terms approaching plain English in the Commission’s widely-used publication, “Local Government Official’s Guide to Transmitting Antenna RF Emission Safety: Rules, Procedures, and Practical Guidance” (which I co-authored and co-edited).

If the Commission takes over the reins on this hot potato subject, it’s my opinion that the Commission is very unlikely to change the existing rules regarding cell towers, but it make take a closer look at the rules regarding Specific Absorption Rate (“SAR”) which govern cell phone handsets.

Should the Commission proceed forward, I would expect the review process to take upwards of a year to complete.  During this period, it’s very likely that segments of the public will call on local governments to halt cell siting reviews and permitting pending the outcome of the FCC’s review.  The simple answer is that unless the FCC directs state and local governments to halt siting reviews (somewhere around a 0.00000% chance, in my view), the usual local processing of wireless site permits should continue unchanged.

Remember that under Section 704 of the Telecom Act, local governments are permitted to determine planned compliance with the existing FCC rules.  Section 6409(a) of the Middle Class Tax Relief Act would suggest that the authority in Section 704 is only applicable to emissions safety reviews of new wireless sites, and perhaps not applicable to “collocations” at “eligible facilities” (whatever those terms mean as they are not defined by Congress).

Finally, I expect that if the Commission moves forward with a review of RF emissions safety, it’s quite likely that the wireless industry—freshly emboldened by its facial win with Section 6409(a)—will use the inquiry as a means to promote their notion that no RF safety reviews should be conducted or considered by state and local governments.

Stay tuned…this may well get interesting.

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

Posted on by Dr. Jonathan L. Kramer

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

Posted on by Dr. Jonathan L. Kramer

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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