Section 6409 (Wireless Facilities Deployment) of the Middle Class Tax Relief and Job Creation Act of 2012, signed on February 22, 2012.
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 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.
In the first two cases the 4th Circuit decided last month, both involving Fairfax County (“County”) denials, T-Mobile Northeast LLC v. Fairfax County Board of Supervisors, No. 11-1060, 2012 WL 664504 (4th Cir. Mar. 1, 2012), and New Cingular Wireless PCS, LLC d/b/a AT&T Mobility v. Fairfax County Board of Supervisors, No. 10-2381, 2012 WL 922435 (4th Cir. Mar. 19, 2012), the 4th Circuit sided once again with the municipality holding that neither of those tower denials violated the Act. The more surprising of those two opinions was the opinion in the T-Mobile case against the County. What is most shocking about that case is that it involved the extension of a power pole on which the County had already approved two prior collocation applications. Interestingly, that case was decided just after President Obama signed the Middle Class Tax Relief and Job Creation Act of 2012 (the “Tax Relief Act”) into law.
As many of you know by now, the Middle Class Tax Relief and Job Creation Act of 2012 (“Tax Relief Act”), which President Obama signed into law last week, contained a late Christmas gift for the wireless industry. It is a gift that should make collocation on existing tower sites, as well as equipment upgrades a little bit easier. Amidst the other much more talked about provisions in the Tax Relief Act, was Section 6409(a), which was the product of several years of lobbying by the PCIA (the Wireless Infrastructure Association), which provides that “Notwithstanding Section 704 of the Telecommunications Act of 1996…a state or local government may not deny, and shall approve, any “eligible facilities request” for a modification of an existing tower or base station that does not “substantially” change the physical dimensions of such tower or base station.”
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.
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.
Felicia N. Trujillo, ND, GCFP
DOCTORS W.A.R.N. (Wireless And Radiation Network)
Bones for Life(R)Teacher-in-Training
PO Box 28068
Santa Fe, NM 87592-8068
"Politics--can't live with 'em, can't live without 'em."
F. N. Trujillo