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November 3, 2014

RE: I.  FCC Rule Enables Wireless Industry to Short Circuit Local Land Use Review
        II. FCC Rule Eliminates Public Safety Communications Mandate

Dear Mayor:

I.  FCC Rule Enables Wireless Industry to Short Circuit Local Land Use Review

Please bring this matter to the attention of your Municipal Attorney, your Planning Professionals and your Code Officers.

On Friday, October 17, the Federal Communications Commission (FCC) adopted a Report and Order “…to promote the deployment of wireless infrastructure … by eliminating unnecessary reviews, thus reducing the costs and delays associated with facility citing and construction” (The regulation has been posted on our website at http://www.njslom.org/documents/FCC-14-153A1.pdf.) This rule will become effective in 90 days once it is published in the Federal Register. During the transitional period, you should review your local land use and construction code ordinances to establish procedures to ensure as much protection to your communities as the regulations allow.

Back in February, we wrote two letters (at http://www.njslom.org/letters/2014-0226-Cell-Tower.html and http://www.njslom.org/letters/2014-0228-FCC.html) concerning the FCC rule-making proposal that could allow the wireless industry to build onto existing towers, with little or no regard to local planning, zoning or building codes. The rules could also require unconditional local approval of industry plans to append wireless facilities to utility poles, light poles and road signs. On behalf of the League and New Jersey municipalities, our Special Counsel, Joel Shain, Esq., submitted comments to the FCC. You can access our submission at http://www.njslom.org/documents/SRR-013114-FCC.pdf.

The FCC unanimously voted to adopt a Report and Order that will “promote deployment of the wireless infrastructure necessary to provide the public with ubiquitous, advanced wireless broadband services.” (http://www.fcc.gov/document/fcc-boosts-wireless-broadband-easing-infrastructure-burdens). The Order clarifies several statutory limitations on state and local government authority to review wireless infrastructure siting applications. Simply speaking, this means local entities will have to be more compliant with efforts from wireless companies seeking to add or improve wireless coverage. 

The Report and Order update and tailor the manner in which the FCC evaluates the impact of proposed deployments on the environment and historic properties.  It also adopts rules to clarify and implement statutory limitations on State and local government authority to review infrastructure siting applications— including a “deemed granted” remedy (also known as the “Shot Clock”) if a State or local government fails to act on an eligible facilities modification request within 60 days of submission.  Finally, it adopts an exemption from the environmental public notification process for “temporary towers” that are in place only for short periods of time. 

In addition to the 60 day ‘deemed granted’ provision, which can be extended by mutual agreement or by a written notice to the applicant specifically delineating all missing documents or information, within 30 days of submission, that the application is incomplete, the new rule provides that:

  • Communities will not be allowed to establish a local moratorium to get breathing room to write new
    ordinances or bylaws in response to the new rules, which will take effect 90 days after publication in
    the Federal Register;
  • "Collocation" includes the siting of antennas on existing structures, not necessarily existing structures
    that currently host wireless antennas - this will open up a huge swath of new potential locations for
    industry, and impact neighborhoods in every corner of targeted communities, all based on decisions
    made by the industry using their cost and build-out drivers;
  • States and municipalities may continue to enforce and condition approval on compliance with
    ‘generally applicable’ building, structural, electrical and safety codes, “and other laws codifying
    objective standards reasonably related to health and safety.
  • Significantly, this rule does not apply to local governmental entities acting in their proprietary
    capacities, i.e., where such entities enter into lease and license agreements to allow parties to place
    antennas and other wireless service facilities on local-government property.

The streamlined process of limited local review would apply to proposals for modification of existing towers and base stations, which are not deemed, by the rules, to “substantially change” the physical dimensions of a tower or base station. The rules limit the definition of the key term, “substantially change” to the following criteria:

  • for towers outside of public rights-of-way, it increases the height by more than 20 feet or 10%, whichever is greater; for those towers in the rights-of-way and for all base stations, it increases the height of the tower or base station by more than 10% or 10 feet, whichever is greater;
  • for towers outside of public rights-of-way, it protrudes from the edge of the tower more than twenty feet, or more than the width of the tower structure at the level of the appurtenance, whichever is greater; for those towers in the rights-of-way and for all base stations, it protrudes from the edge of the structure more than six feet;
  • it involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed four cabinets;
  • it entails any excavation or deployment outside the current site of the tower or base station;
  • it would defeat the existing concealment elements of the tower or base station; or
  • it does not comply with conditions associated with the prior approval of the tower or base station unless the non-compliance is due to an increase in height, increase in width, addition of cabinets, or new excavation that does not exceed the corresponding “substantial change” thresholds. 

II. FCC Rule Eliminates Public Safety Communications Mandate

On a more positive note, in another Report and Order (available at http://www.njslom.org/documents/FCC14-172.pdf), approved the same day, the FCC took favorable action on another issue of importance to New Jersey municipalities. The FCC eliminated the requirement that, by December, 2016, all public safety communications be broadcast on the 700 Mhz communications spectrum. This could have forced first responders to make expensive changes to their wireless systems.  By revoking the requirement, the FCC will enable licensees to extend the life of existing systems and will provide public safety with greater flexibility in determining the optimal future use of the band.

Very truly yours,

William G. Dressel, Jr.
Executive Director

 

 

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