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Foster Swift Municipal Law News
May 2013
The Michigan Townships Association’s January/February 2013 edition of the Michigan Township News contained two excellent articles on cellular towers. The cover article noted that President Obama signed into law the "Middle Class Tax Relief and Job Creation Act of 2012." The MTA’s article mentioned that Section 6409(a) of the Job Creation Act contains a clause that did not get as much press as the rest of the Act, but is important to municipalities. Section 6409(a) significantly limits a municipality’s power to review requests relating to modifying an existing cell tower or replacing existing equipment on a cell tower:
" . . . 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."
The same law defines an "eligible facilities request" as any request to modify an existing cell tower or base station that involves collocating new transmission equipment; removing transmission equipment; or replacing transmission equipment.
After Section 6409 was enacted, the Federal Communications Commission (FCC) received several questions on how exactly Section 6409(a) worked. In response, the FCC recently issued a Public Notice to give guidance on key parts of Section 6409(a). The Public Notice is technically just "interpretive guidance" to help parties understand their obligations under Section 6409(a). The FCC retains the ultimate discretion to interpret Section 6409(a) the same as or different than the Public Notice’s interpretation. Nevertheless, the FCC’s Public Notice gives Michigan municipalities some key insight into how Section 6409(a) works. The following is a recap of the highlights of the FCC’s Public Notice:
What does it mean to "substantially change the physical dimensions" of a tower or base station?
Under Section 6409(a), a municipality must approve applications if changes would not "substantially change the physical dimensions of the tower or base station." But Section 6409(a) does not define what constitutes a "substantial change" in the dimensions of a tower or base station. So what exactly does that phrase mean? The FCC’s Public Notice answered this question by saying that a "substantial change in the physical dimensions of a tower" occurs if any of the following occur:
- The 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 20 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 antennae.
- The 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.
- The mounting of the proposed antenna would involve adding an appurtenance (an accompanying part or feature) to the body of the tower that would protrude from the edge of the tower more than 20 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.
- The 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.
What is a "wireless tower or base station?"
Remember that Section 6409(a) applies to any request to modify an "existing wireless tower or base station." The FCC stated that a wireless tower or base station is not limited to facilities that support "personal wireless service."
May a municipality require an application for an action covered under Sec. 6409(a)?
Yes. A municipality may not deny any eligible request when it does not substantially change the physical dimensions of the tower or base station. But, a municipality 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 to approve an application. The Public Notice states that 90 days is the rough guide. If a municipality has not approved an application within 90 days, the municipality will likely be presumed to have taken an unreasonable amount of time to approve the application.
Other Thoughts
A municipality that receives an expression of interest regarding locating telecommunications equipment should keep this Public Notice in mind. Proactively consulting with an attorney can help clarify a specific telecommunications request and avoid costs down the road. A municipality should also remember the numerous other laws pertaining to locating telecommunications equipment, such as:
- MCL 125.3514 (the Michigan Legislature’s May 2012 passage of its own cell tower law, Act 143 of 2012);
- the federal Telecommunications Act, 47 USC 151 et seq.; and
- the FCC Orders and federal rules on the subject.
If you have questions feel free to contact Anne Seurynck (616.726.2240) of the Foster Swift Municipal Practice Group.