Payroll tax cut extension law gives modest relief to wireless tower industry; Congress to localities: States’ rights? What states’ rights?
In a little noticed section of the landmark Middle Class Tax Relief and Job Creation Act, Congress has thrown the wireless industry – or, more specifically, the folks who build towers for the wireless industry – a small measure of relief in the on-going struggle to get tower modifications approved and constructed. Buried in a collection of odds and ends dumped, seemingly as afterthoughts, at the end of the law, Section 6409 requires state and local governments to approve modifications of wireless towers and base stations as long as those modifications don’t substantially change the dimensions of the existing structures.
The wireless industry has long complained that local authorities hold up approval of new tower construction either out of either misplaced concern for interference issues or simply as a revenue-generating mechanism. That problem has increasingly spread to tower modifications as well.
The streamlining of needed approvals is a big inducement to licensees to collocate on existing structures, saving considerable time and money in getting a station up and operating. Most federal rules properly treat minor modifications of existing structures as non-events that require little or nothing in the way of prior approvals. Local authorities, by contrast, have come to see such collocation applications as an additional opportunity to interpose themselves into the process, usually not to the financial or operational benefit of the carriers.
Congress moved to correct this abuse. In Section 6409 it simply pre-empts states and local authorities from being able to deny eligible facilities requests, i.e., requests involving:
- the collocation of new transmission equipment;
- the removal of transmission equipment; or
- the replacement of transmission equipment.
Once the President signs the act into law, these seemingly innocuous alterations of existing structures will be safe from state and local meddling. (The law does leave all applicable environmental rules with respect to such towers in effect.)
At least two questions remain.
First, the legislative history is largely silent as to any basis for the law’s pre-emptive action. Normally, Congress is reluctant to pre-empt traditional local prerogatives without having built a strong rationale for the action. Since zoning laws have traditionally fallen within the province of cities and counties, Congress appears to be taking a large step into murky, and potentially dangerous, jurisdictional waters.
Second, this section of the Act applies to “wireless towers and base stations”. Neither term is defined here or anywhere else in the Communications Act. Do “wireless towers” include broadcast towers, which of course transmit their content wirelessly? If so, this would add a large set of towers to the protected mix. Some broadcast towers, of course, simultaneously serve, or can serve, as towers for wireless communications carriers. The legislative history suggests that Congress had in mind “cellular towers” when it referred to “wireless towers”, but the law itself includes no such limitation. The scriptural exegesis of this point will no doubt put many a lawyer’s offspring through private school in the years ahead.
Section 6409 also extends another apparent helping hand to the tower industry. It provides that agencies of the Federal government “may” grant an easement or right-of-way to applicants seeking to install wireless service antenna structures on Federal property. While the thought here was nice, the absence of a mandate to permit the easement (i.e., the critical use of “may” rather than “shall”) pretty much leaves such things where they were: in the hands of sometimes quixotic bureaucrats.
The law recognizes that a maze of different Federal agencies have been imposing a farrago of widely varying tower siting application requirements on hapless applicants. To rationalize the process, Congress has now mandated the development of a single government-wide form for siting applications and a standard contract for facilities sited on Federal property. This seemingly small step could simplify enormously the process of securing rights to construct towers on Federal properties.
These modest measures, together with the recent upholding of the FCC’s “shot clock” rules, should put at least a small smile on the faces of tower constructors.