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.



Current Issues in Cell Tower Leases

March 3, 2011: 2 hour live teleconference
1 pm ET (12 pm CT, 11 am MT, 10 am PT)

Teleconference Highlights:

The wireless industry has built more than 250,000 cell sites in the United States in the past 20 years. But many more cell sites are needed as iPhones, iPads and the like strain existing network capacity with data, email, computer and video applications, as well as to fill gaps in coverage. New cell sites and significant modifications to existing cell sites will also be needed due to the FCC’s new advanced wireless services and goal of using wireless to increase broadband speeds and coverage.

This audio conference will help level the playing field by providing private and municipal property owners with the expertise of two faculty members highly experienced in cell tower and cell site leases – property owners usually are negotiating such leases for the first time, while the cell companies have teams who work exclusively on such leases.

This audio conference will focus on key business issues in wireless site leases, including lease rates, who gets the revenues from additional antennas or carriers being co-located at a site, potential underpayments by cell companies on existing sites and why rent reduction requests generally should be denied. An emphasis on the industry-specific elements and terms of modern cell site leases, and renewals and modifications of expiring leases, which are important for the property owner, their attorney and the leasing agent involved in these efforts. You will be better able to identify and resolve issues that are unique to wireless siting, including what may be included in a lease that cannot be included in a government-issued permit, site location and value, lease term and terminations, access requirements, interference regulation and mitigation, design and camouflage, and radio frequency emissions issues.

Learning Objectives

  • You will be able to maintain and increase the revenues the property owner receives, and discuss the common elements of private wireless site leases on developed and undeveloped land.
  • You will be able to utilize practice pointers, including key concepts, for owners of private property and their attorneys, as well as municipalities and municipal attorneys.
  • You will be able to understand the basics of wireless technology and the real property, technical and technology issues that drive a wireless carrier’s siting and leasing process.
  • You will be able to review insurance and indemnity provisions to protect the property owner.

Faculty Information

John W. Pestle, Esq., Varnum LLP
Jonathan L. Kramer, Esq., FSCTE, BTS, BDS, BPS, Kramer Telecom Law Firm, P.C.

MCLE/Educational Credit Information

  • AIA
  • AICP (Pending)
  • CC
  • CLE
  • ENG
  • PMI

Who Should Attend?

This audio conference is designed for attorneys, planners, directors of development, project managers, government administrators, council and board members, land use officials, public works and utilities directors, municipal government officials, engineers, architects, surveyors and real estate professionals.

5 Easy Ways to Register:
Phone: 1-866-352-9539
Fax: 1-715-833-3953
Mail: Lorman Education Services, Dept 5382, PO Box 2933, Milwaukee, WI 53201-2933
Seminar ID: 387436

Kramer’s Upcoming Speaking Engagements

International Municipal Lawyers Association:
Cell Tower Leasing Issues for Municipal Governments November 18, 2010 1:00 p.m. to 2:00 p.m. ET
John Pestle and Jonathan Kramer will be presenting a teleconference titled, “Cell Tower Leasing Issues” for municipal governments. For more information, please follow this link.
Wireless 101 for Attorneys: New Mexico Municipal League Attorneys Association Winter Meeting & Seminar, December 1, 2010

Jonathan will present his Wireless 101 for attorneys at the “New Mexico Municipal League Attorneys Association Winter Meeting and Seminar” (now that’s a mouthful) in December.

For more information, please follow this link.

Current Issues in Cell Tower Regulation and Zoning Rules
December 2, 2010Jonathan and John W. Pestle will be co-presenters on the extremely popular topic of ‘Current Issues in Cell Tower Regulation and Zoning Rules.’ The teleconference is coordinated by Lorman Education Services.

Jonathan will focus on the technology issues (transmission, RF safety, equipment) as they intertwine with the legal issues connected with cell site regulation and zoning by governments. John Pestle will take the lead on the case law and non-technical regulations (his case law handbook it simply outstanding).

This lecture is geared towards private practice and municipal government attorneys. For more information and registration details, please click on the links below:

Click here to visit the Lorman Course and Registration Page.

Note that continuing education participation units/credits are available for these seminars: AICP (Pending); CC; CLE/MCLE (please check Lorman’s “Detailed Credit Information” page for states that have already been approved); ENG; and PMI.

AGL Regional Conference – San Francisco
San Francisco Westin Hotel – Market Street
December 3, 2010
Jonathan will be a presenter at the Above Ground Level Magazine Regional Conference.

For more information please check back here soon!