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FCC: Ordinances that Prefer Cellular Facilities be Located on Municipal Property may be Illegal

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Ronald D. Richards Jr.
Foster Swift Municipal Law News
January 30, 2014

Municipalities that have a location for wireless telecommunications equipment are in an enviable position. Wireless Internet demand caused the number of cell sites to increase in 2011 alone by 12 percent – many of those sites were on municipal-owned property, such as a water tower or municipal-owned cell tower. Having such property means a municipality can lease space to others wanting to locate wireless equipment. This provides valuable income to many municipalities. To help take advantage of that potential revenue stream, or to pursue other related goals, many municipalities have adopted an ordinance that sets preferences for where wireless facilities have to be located. Some do this through a so-called, preferred siting ordinance: an ordinance that sets out allowed locations by a list of preferred locations – such as requiring the facilities be located based on a list of locations (with the first listed being the highest priority): (a) on municipal-owned properties first; or (b) if none, then on existing towers or structures on municipal-owned properties; or (c) if none, on any other non-municipal-owned property. These “preferred siting ordinances” are at great risk after a recent declaration from the Federal Communications Commission (FCC).

Just recently, the FCC issued another notice (the Notice) directed at speeding-up companies’ deployment of wireless broadband facilities. The FCC’s Notice focuses on removing perceived road blocks, hurdles, and delays in that approval process. It also is seeking to remove potentially unreasonable or discriminatory handling of wireless equipment siting applications – in a way that municipalities may not like.

To promote increased deployment of wireless broadband facilities, the FCC’s Notice seeks comment on various changes it proposes, some of which are summarized below. Comments on the FCC’s proposals are due 60 days after the Notice is published in the federal register, and reply comments are due 90 days after the Notice is published in the federal register. As of this newsletter’s printing, that publication had not yet occurred.

The Notice Directly Questions Preferred Siting Ordinances

The FCC’s Notice seeks comment on many issues. One issue it expressly seeks comment on relates to preferred siting ordinances. Specifically, the Notice seeks comment on the following:

    • Whether local laws that establish preferences for placing wireless facilities on municipal property are unreasonably discriminatory and therefore illegal under federal law. The Notice expressly noted, for example, that some municipalities have local ordinances that set preferences for putting wireless facilities on municipal property. The FCC seeks comment on whether those preferences violate Section 332(c).

Though hard to tell at this point because the time to comment has not expired, an objective reading of the Notice – along with the FCC’s other recent actions – suggests that, reading between the lines, the FCC may very well take a position soon that such preferred siting ordinances are invalid.

If you have questions about handling a telecommunications equipment request, cell site leases, or ordinances regulating cellular equipment, please contact Ron Richards at rrichards@fosterswift.com or 517.371.8154.