Changes in Wireless Laws Require Municipal Action

June 13, 2019

By Bob Duchen, Tom Duchen, and Mike Bradley

In October, 2014 the FCC issued an Order (14-153) and corresponding Rules in January, 2015, most of which became effective in April, 2015 requiring Local Governments to work faster and more efficiently to approve modification Applications for Cellular Facilities (for example, placing new antennas on existing structures). There are numerous procedural steps that Local Governments can still take to protect their interests and constituents. Additionally, when a Local Government acts in its proprietary capacity as a Landowner, it can also still negotiate favorable Leases and establish its own timeframes to do so.This Order updates the FCC’s “Shot Clocks” which required Local Governments to approve Cellular Applications in 90 or 150 days depending upon the type of Application. This Order requires even faster municipal approval (60 days) for basic changes or upgrades involving collocation, removal or replacement of transmission equipment that do not substantially change the physical dimensions of an existing tower or base station. If your Local Government fails to timely act and if this is a Section 6409(a) Application, the provider’s Application will be deemed granted upon notification from the provider.

The Order is designed to “…further facilitate the delivery of more wireless capacity in more locations to consumers throughout the United States.” The Order, though, does not ensure fair and thorough coverage. In several instances, the Order allows cellular providers to move quickly and with a great deal of flexibility. However, Local Governments can still require an Application and information regarding Building and Safety Codes, Stealth Facilities, Changes in Size to Towers or Base Stations and other pertinent matters. Additionally, the Order implements new rules with respect to Distributed Antenna Systems (“DAS”) and Small Cell Sites.

Efficient cellular approval processes may be a good thing; however, making Local Governments react in a very short amount of time is not (60 days to approve an eligible facilities request if the modification meets the Federal criteria of not substantially changing the physical dimensions of the existing tower or base station).

Make sure you require an Application from the cellular provider to ensure that it is actually entitled to expedited handling since not all Applications qualify for expedited treatment.

The 155 page Order and Rules are lengthy and complicated. We recommend studying this Order and the Rules to determine what changes to your Codes, Regulations, Applications and other Forms are needed to achieve compliance with the mandatory Federal requirements. Further, a Local Government should review its existing Leases to determine under what circumstances providers would need further Local Government approval to add other Antennas or Facilities or to sublease space.

If your municipality needs help and guidance, the League of Minnesota Cities along with Bradley, Hagen & Gullikson, LLC (“Bradley Firm”) and River Oaks Communications Corporation (“River Oaks”) are here to assist. Mike Bradley, a principal of the Bradley Firm (mike@bradleylawmn.com) and Bob Duchen, Vice President of River Oaks (bduchen@rivoaks.com), are long-time telecommunications consultants to local governments throughout the country. They can help you understand the FCC Order and Rules and work with you to handle and review cellular providers’ Applications and timely update your Codes, Regulations, Forms, Application Processes and Leases.

Do not be confused by cellular companies’ Application requests. Make sure that they actually meet the complex Federal criteria as you carefully consider their Applications to deploy more Towers, Antennas, Base Stations and equipment in your community.