Third-Party Sec. 6409(a) Presentation

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.


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

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
. . .

(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:

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).



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)


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.