New Developments
p
in
Wireless Communications Facilities
Siti and
Siting
dL
Leases
MMAA Conference
MMAA Conference Osage Beach, Missouri
July 13, 2012
July 13 2012
Presented by:
Daniel G. Vogel
Ryan A. Moehlman
Cunningham, Vogel & Rost, P.C.
legal counselors to local government
333 S. Kirkwood Road, Suite 300
St. Louis, Missouri 63122
314.446.0800
www.municipalfirm.com
TELECOMMUNICATIONS
ACT OF 1996
47 U.S.C. §
47 U.S.C. § 332(c)(7) of the federal Telecommunications Act of 1996 (the “TCA”) provides: (
)p
• Limits local government power to regulate placement, construction, and modification of “personal wireless service f iliti ” i
ll t
facilities,” i.e.: cell towers,
• But “specifically preserved the authority of local zoning g
g
p
,
,
boards ‘over decisions regarding the placement, construction, and modification of personal wireless service facilities,’ 47 and modification of personal wireless service facilities,’ 47 U.S.C. §§ 332(c)(7)(A)
U.S.C. 332(c)(7)(A).” .” USCOC of Greater Iowa, Inc. v. Zoning USCOC of Greater Iowa, Inc. v. Zoning Bd Of Adjustment of the City of Des Moines (8th Cir 2006)
Bd. Of Adjustment of the City of Des Moines (8th Cir. 2006).
Procedural Requirements of TCA
Decisions on the placement, construction, and modification of personal wireless service facilities
modification of personal wireless service facilities must satisfy the following:
must satisfy the following:
1 Decision “
1.
D i i “i
Decision “in writing
“in writing”
i
iti ”‐‐ §332(c)(7)(B)(iii)
332( )(7)(B)(iii)
2. Supported by “
Supported by “substantial evidence
substantial evidence” in a written ” in a written record‐‐
record
d‐‐ §332(c)(7)(B)(iii)
332( )(7)(B)(iii)
3. Decision within a “
Decision within a “reasonable period of time
reasonable period of time””‐‐ §
332(c)(7)(B)(ii) ( )( )( )( )
Substantive Requirements
q
of TCA
Local government regulation of personal wireless Local government regulation
service facilities cannot:
service facilities cannot: 1. Unreasonably discriminate among providers of functionally equivalent services ‐‐
functionally equivalent services §332(c)(7)(B)(i
332(c)(7)(B)(i)(I)
2 Prohibit or have 2.
or have the effect of prohibiting
or have the effect of prohibiting
the effect of prohibiting
provision of personal wireless services ‐‐
provision of personal wireless services ‐‐
§332(c)(7)(B)(
332(c)(7)(B)(ii)(II)
3. Regulate “on the basis of the Regulate “on the basis of the environmental environmental effects of radio frequency emissions”
effects of radio frequency emissions
emissions” ‐‐
§332(c)(7)(B)(iv) Remedy for Violations of TCA
• Remand‐
Remand‐ See USCOC of Greater Missouri, LLC v. County of Franklin (E.D. Mo. 2008)
County of Franklin (E.D. Mo. 2008). . • Injunction
Injunction‐
j
‐ But see Sprint Spectrum L.P. v. County p
p
y
of St. Charles (E.D. Mo. 2005). FCC’S
FCC
S SHOT CLOCK RULE
FCC09‐99 (Nov. 2009) ‐
FCC09‐
99 (Nov. 2009) ‐ Interprets TCA requirement that decisions must be done in a “reasonable period of time.”
•
90 days to process applications requesting 90 days to process applications requesting co
90 d
t
li ti
ti co‐‐
locations (antennas on existing towers/structures)
towers/structures).
•
150 days to process all other applications (new towers/structures).
•
Applicants and the City can agree to extend the above timeframes. •
Complete Application
• The 90‐
The 90‐day or 150‐
day or 150‐day time limits day time limits do not start do not start to run
to run until
until the applicant files a complete until the applicant files a the applicant files a complete complete
application. application
. • Local governments must Local governments must inform an applicant inform an applicant that their application is incomplete
h h i
li i i i
l
within 30 within i hi 30 30
days of receiving an incomplete application.
Cityy of Arlington
v. FCC (5th
Cir. 2012))
g
(
• Rule upheld – Shot Clock Rule was appropriate exercise of the
FCC’s authority to interpret TCA.
• Shot Clock Rule creates a presumption that a City failed to act
within reasonable amount of time.
– “the presumption simply disappears” if countering evidence
presented by City
– Burden of proving unreasonable delay then returns to
Applicant.
• Note: If delay is needed, make sure the City’s record contains
documentation showing the reasons for delay and showing that
the delay was reasonable.
Action Plan to Deal with
Sh t Cl
kR
l
FCC Shot
Clock
Rule
• Review
Review City
City’ss wireless facility siting
wireless facility siting ordinance ordinance
to ensure it does not conflict with Rule
• Incorporate new time limits expressly into Incorporate new time limits expressly into
existing codes and practices.
• Implement procedures regarding what I l
t
d
di
h t
constitutes a “complete application.”
– See CVR’s Model Wireless Communication S
’
d l i l
i i
Facilities Code • Notify and educate officials and staff.
N if
d d
ffi i l
d ff
NEW FEDERAL STATUTE
PROHIBITING DENIAL OF
CERTAIN COLLOCATION
REQUESTS
• Section 6409(a) of the Middle Class Tax Relief Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012
and Job Creation Act of 2012
• Approved on February 22, 2012
The New Statute
Section 6409
6409(a)
(a) of the Act (47 U.S.C. 1455
1455(a)(
(a)(1
1)‐(2)) provides
provides::
§ 1455
1455.. Wireless facilities deployment
(a) Facility modifications
(1) In general
general.. Notwithstanding section 704 [47 U.S.C. § 332
332]] of the
Telecommunications Act of 1996 (Public Law 104‐
104‐104
104)) or any other
provision of law, a State or local government may not deny
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
h i l dimensions
di
i
off such
h tower
t
or base
b
station.
station
t ti .
(2) Eligible facilities request
request.. For purposes of this subsection, the term
“eligible facilities request” means any request for modification of an
existing
i ti wireless
i l
t
tower
or base
b
station
t ti that
th t involves
i l —
involves—
(A) collocation of new transmission equipment
equipment;;
(B) removal of transmission equipment
equipment;; or
(C) replacement of transmission equipment
equipment..
Undefined Terms
g
y
p
f
“Notwithstanding…any other provision of law”
Notwithstanding…any other provision of law
”
– Building/Safety Code?
– Zoning Code?
– Airport overlay requirements?
Note: Nothingg in § 1455 strips
Note:
p cities of their
right to review applications and issue the
necessaryy zoningg p
permits/approvals
pp
.
Undefined Terms
“. . . substantially change the physical dimensions of such tower or base station.”
•“National Collocation Agreement”
“N ti
l C ll ti A
t”
– Defines “substantial increase in the size of the tower”
• (1) Height (1) Height – Greater of 10% of existing height or height of Greater of 10% of existing height or height of
additional array plus 20 ft
• (2) Equipment (2) Equipment –– More than More than the standard number of new equipment cabinets for the technology involved, not to exceed four, or more than one new equipment shelter; or
• (3) Width (3) Width – Greater of 20ft protruding from edge of tower or (3) Width –
Greater of 20ft protruding from edge of tower or
width of tower at attachment height; or
• (4) Site (4) Site ‐‐ excavation outside the current tower site (boundaries of the tower’s lease or fee area plus related access or utility easements).
Undefined Terms
• Under National Collocation Agreement,
the depicted additions to this 100 ft.
ft.
monopole would not “Substantially
Substantially
change the physical dimensions of such
tower or base station”
• NCA is only one possible method off
determining whether an application
“Substantially change[s] the physical
dimensions of such tower or base
station””
station
• NCA greatly favors wireless industry
• NOT BINDING ON CITIES
• Anticipated changes to Model Wireless
Communications
Facilities
Code
forthcoming as law develops
develops..
MODEL WIRELESS
COMMUNICATIONS
FACILITIES CODE
Available at:
http://www.municipalfirm.com/documents/CVRMod
elWirelessCommunicationsFacilitiesCode2012.pdf
Model versions or provisions adopted by dozens of local governments throughout Missouri, Illinois, & g
g
,
,
Kansas including those successfully litigating TCA claims.
Model Code Elements
• Shared‐
Shared‐use requirements
• Design requirements
Design requirements
– Color
– Type
– Lighting
– Code Compliance
C d C
li
• Three‐
Three‐Level Permitting System
1. Permitted as of right
2. Permitted with administrative review
3. Permitted by conditional use permit
Model Code Elements
Three‐Level Permitting System
Three‐
1. Permitted as of right
•
•
•
•
City property (by lease)
Existing buildings
Fully concealed
Transmission electric tower
2 Permitted
2.
Permitted with administrative review
with administrative review
• Disguised (not 3’ diameter “flagpole”)
• Existing tower once time increases
Existing tower once time increases
• Electric poles and temporary towers
3. Permitted by conditional use permit
Permitted by conditional use permit
• Everything else
TOWER LEASES
Opportunities for locating on Public Property
Property
• Water tanks, • Athletic fields/parks, Athl ti fi ld / k
• Flagpole locations, • Public buildings, P bli b ildi
• Private development partnering
t i
Antennas on top off ballpark
b ll k light
li h standards
d d
at Memorial Park in Webster Groves
TOWER LEASES
Opportunities to Increase Revenue
•
•
•
•
•
Lease assignments
Expansions of equipment or site
p
q p
Lease term extensions
Sale of leases/easements
Sale of leases/easements
Lease language revisions Lease language revisions –– conformity payments t
TOWER LEASES
New Lease Negotiation Issues
• Revenue
• Indemnification
– No indemnification by governmental entities of private parties; Mo. Atty. Gen. Op. 137
private parties; Mo. Atty. Gen. Op. 137‐‐87 (Webster, 12‐‐18
12
18‐‐1987)
• Regulation of RF Interference
– Cities can regulate RF as a landlord
Ci i
l
RF
l dl d
• No interference with public use
• Length of Terms
• Termination of rights –
Termination of rights – both sides
CUNNINGHAM, VOGEL & ROST, P.C.
legal counselors to local government
For More Information
Visit Our Website:
www.municipalfirm.com
or contact us at
333 S. Kirkwood Road, Suite 300
St. Louis, Missouri 63122
314.446.0800
dan@municipalfirm.com; ryan@municipalfirm.com
These materials and the related presentation are intended for discussion purposes and to
provide those attending the meeting with useful ideas and guidance on the topics and
issues covered.
covered. The materials and the comments of the presenters do not constitute, and
should not be treated as, legal advice regarding the use of any particular technique,
device, or suggestion, or its legal advantages or disadvantages.
disadvantages. Although we have made
every effort
ff t to
t ensure the
th accuracy off these
th
materials
t i l and
d the
th presentation,
t ti
neither
ith the
th
attorneys presenting at this meeting nor Cunningham, Vogel & Rost, P.C. assume any
responsibility for any individual’s reliance on the written or oral information presented.
presented.