About the Presenter practice focused on representing governments and other landowners in wireless infrastructure regulations and transactions. co-author of the Brief of Amici Curiae against Sec. 6409(a) in Montgomery Cnty. v. FCC Robert C. May III Partner Telecom Law Firm, PC 6986 La Jolla Blvd, Ste. 204 La Jolla, CA 92037 Direct: (619) 272-6200 tripp@telecomlawfirm.com co-author of California Local Governments (League of CA Cities, CSAC, and SCAN NATOA) comments and reply comments to FCC in the 2015 Infrastructure Order SCAN NATOA member of the year 2014 for pro bono advocacy in the 2015 Infrastructure Order JD, University of San Diego School of Law Executive Editor, San Diego Law Review Executive Board, Moot Court
Section 6409(a) (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. (3) Applicability of environmental laws. Nothing in paragraph (1) shall be construed to relieve the Commission from the requirements of the National Historic Preservation Act or the National Environmental Policy Act of 1969. 47 U.S.C. 1455(a)
FCC s 2015 Infrastructure Order wide issue range 288 pages interprets Section 6409(a) substantive definitions procedural rules creates deemed-granted remedy on 60-day mini shot clock 29 FCC Rcd. 12864 (Oct. 17, 2014)
Section 6409(a) Plain-English Translation State and local governments may not deny, and shall approve any eligible facilities request so long as it does not substantially change the physical dimensions of the existing wireless tower or base station. Basic Three-Step Analysis Did the applicant request approval pursuant to 6409(a)? Does it qualify as an eligible facilities request? Would it cause a substantial change?
Eligible Facilities Request Any request add or alter transmission equipment to an existing tower or base station. Transmission Equipment Existing Tower: [A]ny structure built for the sole or primary purpose of supporting any Commission-licensed or authorized antennas and their associated facilities. Base Station: [T]he equipment and non-tower supporting structure at a fixed location that enable Commissionlicensed or authorized wireless communications between user equipment and a communications network. 47 U.S.C. 1455(a)(2); 47 C.F.R. 1.40001 et seq.
ROW Sites Towers or Base Stations?
Substantial Change Thresholds for ROW Sites Criteria Height Width Equipment Cabinets Excavation Concealment Permit Condition Compliance Threshold 10 feet or 10% (whichever is greater); OR 6 feet from the edge; OR not more than 4 cabinets; OR no ground-mounted cabinet more than 10% taller or more voluminous than existing ground-mounted cabinets; OR no new ground-mounted cabinets outside the proximity of existing ground-mounted cabinets; OR the leases or owned area (plus any easements), and further restricted to the area in proximity to groundmounted cabinets; OR cannot defeat existing concealment elements; OR proposal must conform to all permit conditions, unless in conflict with height, width, cabinets or excavation thresholds (what s notably absent??)
Deemed-Granted Remedy The FCC deems-granted any request seeking approval under [Section 6409(a) regulations] when a state or local government fails to approve or deny the application within 60 days. Which Approval is Deemed Granted? Applicant Determines Applicability? Can a Denial Trigger an Effective Prohibition?
Novel ROW Issues Created by the 2015 Infrastructure Order Other Wireless Transmission Equipment in the Public ROW? What s an Equipment Cabinet? Semi-Subjective ROW Management Regulations? Historic/Scenic Preservation ROW Regulations?