Interpretation of Section 6409(a) Cell Tower Ordinance

On February 22, 2012, the Middle Class Tax Relief and Job Creation Act of 2012 (Tax Act)1 became law.
Section 6409(a) of the Tax Act provides that a state or local government “may not deny, and shall approve” any request for collocation, removal, or replacement of transmission equipment on an existing wireless tower or base station, provided this action does not substantially change the physical dimensions of the tower or base station.

To date, the Commission has not received any formal petition to interpret or apply the provisions of Section 6409(a). We also are unaware of any judicial precedent interpreting or applying its terms. The Wireless Telecommunications Bureau has, however, received informal inquiries from service providers, facilities owners, and state and local governments seeking guidance as to how Section 6409(a) should be applied. In order to assist interested parties, this Public Notice summarizes the Bureau’s understanding of Section 6409(a) in response to several of the most frequently asked questions.

 

What does it mean to “substantially change the physical dimensions” of a tower or base station?

Section 6409(a) does not define what constitutes a “substantial change” in the dimensions of a tower or base station. In a similar context, under the Nationwide Collocation Agreement with the Advisory Council on Historic Preservation and the National Conference of State Historic Preservation Officers, the Commission has applied a four-prong test to determine whether a collocation will effect a “substantial increase in the size of [a] tower.” A proposed collocation that does not involve a substantial increase in size is ordinarily excluded from the Commission’s required historic preservation review under Section 106 of the National Historic Preservation Act (NHPA).

The Commission later adopted the same definition in the 2009 Declaratory Ruling to determine whether an application will be treated as a collocation when applying Section 332(c)(7) of the Communications Act of 1934.6 The Commission has also applied a similar definition to determine whether a modification of an existing registered tower requires public notice for purposes of environmental review.

Under Section I.C of the Nationwide Collocation Agreement, a “substantial increase in the size of the 
tower
” occurs if:
1) [t]he mounting of the proposed antenna on the tower would increase the existing height of 
the tower by more than 10%, or by the height of one additional antenna array with separation 
from the nearest existing antenna not to exceed twenty feet, whichever is greater, except that
the mounting of the proposed antenna may exceed the size limits set forth in this paragraph
if necessary to avoid interference with existing antennas; or

2) [t]he mounting of the proposed antenna would involve the installation of more than the
standard number of new equipment cabinets for the technology involved, not to exceed four, 
or more than one new equipment shelter; or

3) [t]he mounting of the proposed antenna would involve adding an appurtenance to the
body of the tower that would protrude from the edge of the tower more than twenty feet, or 
more than the width of the tower structure at the level of the appurtenance, whichever is
greater, except that the mounting of the proposed antenna may exceed the size limits set
forth in this paragraph if necessary to shelter the antenna from inclement weather or to
connect the antenna to the tower via cable; or

4) [t]he mounting of the proposed antenna would involve excavation outside the current 
tower site, defined as the current boundaries of the leased or owned property surrounding the
tower and any access or utility easements currently related to the site.

Although Congress did not adopt the Commission’s terminology of “substantial increase in size” in Section 6409(a), we believe that the policy reasons for excluding from Section 6409(a) collocations that substantially change the physical dimensions of a structure are closely analogous to those that animated the Commission in the Nationwide Collocation Agreement and subsequent proceedingsIn light of the Commission’s prior findings, the Bureau believes it is appropriate to look to the existing definition of “substantial increase in size” to determine whether the collocation, removal, or replacement of equipment on a wireless tower or base station substantially changes the physical dimensions of the underlying structure within the meaning of Section 6409(a).

 

What is a “wireless tower or base station”?

A “tower” is defined in the Nationwide Collocation Agreement as “any structure built for the sole or primary purpose of supporting FCC-licensed antennas and their associated facilities.” The Commission has described a “base station” as consisting of “radio transceivers, antennas, coaxial cable, a regular and backup power supply, and other associated electronics.”

Section 6409(a) applies to the collocation, removal, or replacement of equipment on a wireless tower or base station. In this context, we believe it is reasonable to interpret a “base station” to include a structure that currently supports or houses an antenna, transceiver, or other associated equipment that constitutes part of a base station.10 Moreover, given the absence of any limiting statutory language, we believe a “base station” encompasses such equipment in any technological configuration, including distributed antenna systems and small cells.

Section 6409(a) by its terms applies to any “wireless” tower or base station. By contrast, the scope of Section 332(c) extends only to facilities used for “personal wireless services” as defined in that section.11 Given Congress’s decision not to use the pre-existing definition from another statutory provision relating to wireless siting, we believe the scope of a “wireless” tower or base station under Section 6409(a) is not intended to be limited to facilities that support “personal wireless services” under Section 332(c).

 

May a state or local government require an application for an action covered under Section 
6409(a)?

Section 6409(a) states that a state or local government “may not deny, and shall approve, any eligible
facilities request….” It does not say that a state or local government may not require an application to be filed. The provision that a state or local government must approve and may not deny a request to take a covered action, in the Bureau’s view, implies that the relevant government entity may require the filing of an application for administrative approval.

 

Is there a time limit within which an application must be approved?

Section 6409(a) does not specify any period of time for approving an application. However, the statute
clearly contemplates an administrative process that invariably ends in approval of a covered application. We believe the time period for processing these applications should be commensurate with the nature of the review.
In the 2009 Declaratory Ruling, the Commission found that 90 days is a presumptively reasonable period of time to process collocation applications.

In light of the requirement of Section 6409(a) that the reviewing authority “may not deny, and shall approve” a covered request, we believe that 90 days should be the maximum presumptively reasonable period of time for reviewing such applications, whether for “personal wireless services” or other wireless facilities.

 

If you still have doubts, send us a short email to support@octaviatech.com and we can talk about them.

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