Feds Pass New Law Limiting A Municipality’s Authority to DENY Requests to Collocate or Replace Wireless Tower Equipment
Foster Swift Municipal Law News
On February 17, 2012, Congress passed the "Middle Class Tax Relief and Job Creation Act of 2012" (the "Act"), HR 3630. President Obama has signed the Act into law. Though most of the attention given the Act highlights its extension of unemployment benefits and tax cuts, the Act also impacts municipalities. The Act has a little-known clause that amends the federal telecommunications laws to limit municipalities’ authority to deny certain requests to modify existing wireless towers or replace existing facilities on existing towers or structures.
Here is the relevant part of the new Act:
Sec. 6409. WIRELESS FACILITIES DEPLOYMENT
(a) FACILITY MODIFICATIONS.
- 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.
- 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:
- collocation of new transmission equipment;
- removal of transmission equipment; or
- replacement of transmission equipment.
- 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.
The exact limits this new Act places on municipalities is a bit unclear. For example, it is unclear whether (a)(2)(A) applies only to the existing tenant on a wireless tower who is, for itself only, collocating new transmission equipment, or for any new carriers who wish to collocate an existing wireless tower. We suspect that the exact reach of this new Act will be determined in court cases coming down the pipe. Until then, though, municipalities must ensure that they are aware of this new law and work to handle wireless applications consistent with the express language in the Act.