Cell Towers and Signs
Peter McNally, The Grinnell Group
Dustin Miller, Iowa League of Cities
Gary Taylor, AICP, Iowa State University
Today’s Agenda
Cell Towers
• Who’s been playing in the sandbox?
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Supreme Court of the United States (SCOTUS)
US Congress
Federal Communications Commission
Iowa Legislature
• What does it all mean?
Signs (fewer players, same question)
T-Mobile South
v.
City of Roswell, GA
SCOTUS, January 14, 2015
T-Mobile South v. City of Roswell
SCOTUS, January 14, 2015
The Federal Telecommunications Act of 1996
requires, among other things, that a local board or
commission’s denial of an application for a wireless
facility “shall be in writing and supported by
substantial evidence contained in a written record.”
SCOTUS told us what this means.
T-Mobile South v. City of Roswell
SCOTUS Jan 14, 2015
Local government must provide written reasons for denying a
cell tower application.
– “These reasons need not be elaborate or even sophisticated,
but rather…simply clear enough to enable judicial review.”
The denial and written reasons do not need to be in the same
document; i.e., separate detailed minutes satisfy this
requirement.
– Detailed minutes (or even a verbatim transcript) of hearings are
sufficient.
If the decision and written reasons are in separate documents
they must be issued “essentially contemporaneously.”
– “If a locality is not in a position to provide its reasons promptly,
the locality can delay the issuance of its denial … and instead
release it along with its reasons once those reasons are ready to
be provided.”
Discussion?
Federal Communications
Commission
2009 Shot Clock Rule
Cell tower shot clock
• The FTA requires state or local governments to act on
applications for wireless facilities “within a reasonable
period of time after the request is duly filed.”
• November 2009 – under its rulemaking authority the FCC
sets presumptive time limits based on what the FCC
considers to be “reasonable.”
– 90 days to act on requests for collocations (placing antennas on
existing towers)
– 150 for all other applications.
• Failure to meet deadline constitutes “failure to act,” and
allow the applicant to bring a lawsuit within 30 days.
City of Arlington, TX v. FCC
SCOTUS, May 20, 2013
• Congress has unambiguously vested the FCC with
general authority to administer the FTA through
rulemaking and adjudication, and the agency’s
interpretation of “reasonable period of time” was
done in the exercise of that authority.
• The shot clock lives.
United States Congress
2012 - The Spectrum Act
Spectrum Act § 6409(a)
• [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.
• Every noun and verb seems to require
interpretation!!
Congress provided one…
Eligible facilities request
• Defined in the Spectrum Act as any request for
modification of an existing wireless tower or
base station that involves (a) collocation of
new transmission equipment; (b) removal of
transmission equipment; or (c) replacement of
transmission equipment.
Federal Communications
Commission
2014 – FCC provides 155 pages of the
rest!
FCC interpretation, October 2014
Existing
• Wireless towers or base stations that have
been reviewed and approved under local
zoning or other form of “affirmative state or
local regulatory approval.” If a tower or base
station was built or installed without proper
review it is not an “existing” tower, but if it
was “lawfully constructed” (legally
nonconforming) it is an “existing” tower.
FCC interpretation, October 2014
Wireless tower
• Any structure built for the sole or primary
purpose of supporting any Commissionlicensed or authorized antennas and their
associated facilities.”
– The “sole or primary purpose” language narrows
the applicability of the act to exclude structures
similar to a tower.
Base Station
Base Station
• Structures other than towers that support or house an
antenna, transceiver, or other associated equipment that
constitutes part of a “base station” at the time the
application is filed with State or municipal authorities,
even if the structure was not built for the sole or primary
purpose of providing such support.
– Includes private, broadcast, and public safety services, as well
as unlicensed wireless services and fixed wireless services
such as microwave backhaul.
– Includesradio transceivers, antennas, coaxial or fiber-optic
cable, regular and backup power supplies, and comparable
equipment, regardless of technological configuration
(including DAS and small-cell).
Transmission Equipment
Transmission Equipment
• Equipment that facilitates transmission for any
Commission-licensed or authorized wireless
communication service, including, but not limited to,
radio transceivers, antennas, coaxial or fiber-optic
cable, and regular and backup power supply. The
term includes equipment associated with wireless
communications services including, but not limited
to, private, broadcast, and public safety services, as
well as unlicensed wireless services and fixed
wireless services such as microwave backhaul.
Collocation
Collocation
• The mounting or installation of transmission
equipment on an eligible support structure for
the purpose of transmitting and/or receiving
radio frequency signals for communications
purposes.
– Covers first wireless installation on a structure.
FCC interpretation, October 2014
Substantial change
• For all towers and base stations, a “substantial change”
– involves installation of more than the standard number of
new equipment cabinets for the technology involved, but
not to exceed four cabinets;
– entails any excavation or deployment outside the current
site of the tower or base station;
– defeats the existing concealment elements of the tower or
base station; or
– does not comply with conditions associated with the prior
approval of construction or modification of the tower or
base station unless the non-compliance is due to any of
the “substantial change” thresholds identified above.
FCC interpretation, October 2014
Substantial change
• For towers outside the public right-of-way
– increases the 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, or
– protrudes 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, which ever is greater.
• For towers in the right-of-way, and all base stations
– increases the height of the tower or base station by more
than 10% or 10 feet, whichever is greater, or
– protrudes from the edge of the structure more than 6 feet
FCC interpretation, October 2014
60 days to make decision on application that falls under
Spectrum Act (eligible facilities requests) except…
1. by mutual agreement between the local government and
applicant, or
2. by a local government determination that the application
is incomplete.
– the local government must inform the applicant of the
incompleteness within 30 days of the initial filing, and must
clearly and specifically delineate in writing the missing
information. The clock will resume when the information is
provided, but may be tolled again if the local government
notifies the applicant within 10 days that the application
remains incomplete.
– This notification cannot contain requests for new information
beyond what was previously requested.
FCC Interpretation, October 2014
• If it is not an “eligible facilities request” it falls
under the original shot clock rule.
– 90 days for co-locations that represent a
“substantial change” per the 2014 rule
– 150 days for new towers.
Discussion?
Iowa Cell Tower Legislation
HF 655
2015 – We’re just piling on
Iowa Cell Tower Legislation
• HF655 is meant to work in harmony with
previously adopted FCC rules.
– Sets forth definitions for base station, collocation,
eligible facilities request, existing tower,
substantial change, tower, transmission
equipment, wireless support structure that mirror
the FCC rulings.
– Sets forth same shot clock deadlines.
Iowa Cell Tower Legislation
• Lists 13 actions local governments cannot take
when presented with a proposal for a wireless
facility.
• Some of these reflect language and intent of
FTA of 1996.
• Some are new.
Local governments cannot…
1. …require an applicant to submit information about
service design, customer demand, or quality of
service to or from a particular area or site.
–
All records, documents, and electronic data submitted to
the local government as part of the application process
are treated as information subject to the Open Records
Act (Iowa Code Chapter 22).
2. …force co-location
–
Can require an applicant applying for a new tower to
state in it’s application that it conducted an analysis of
available collocation opportunities.
Local governments cannot…
3. …dictate the type of transmission equipment or
technology to be used, or discriminate between
different types of infrastructure or technology.
4. …require the removal of existing towers, base
stations, or transmission equipment as a
condition to approval of an application.
– may adopt reasonable rules regarding removal of
abandoned towers or transmission equipment. (but
see #10)
Local governments cannot…
5. …impose environmental testing, sampling, or
monitoring requirements for radio frequency emissions.
6. ….regulate radio frequency signal strength or the
adequacy of service quality.
7. …reject the application based on perceived or alleged
environmental effects of radio frequency emissions.
8. …prohibit the placement of emergency power systems that
comply with federal and state environmental
requirements.
Local governments cannot…
9. …charge an application fee, consulting fee, or
other fee associated with the submission,
review, processing, or approval of an application
that is not required for similar types of
commercial development.
– Fees shall be based on actual, direct, and reasonable
administrative costs
• No more than $500 for “eligible facilities request” (existing
tower, no substantial change)
• No more than $3,000 for new tower or those that do not
constitute an “eligible facilities request”
Local governments cannot…
10...impose surety requirements to ensure
removal of abandoned or unused towers
equipment unless imposed on other types of
commercial development.
11...condition approval on agreement to allow
co-location at less than the market rate
Local governments cannot…
12...limit the duration of the approval of an
application
– except that construction shall be commenced
within two years of final approval, and diligently
pursued to completion.
13...discriminate on the basis of the ownership
of any property, structure, or tower when
promulgating rules or procedures for siting
wireless facilities or evaluating applications.
Iowa Cell Tower Legislation
• Airport zoning under Iowa Code Chapter 329 is
still permissible.
• Regulation of alterations to exterior features
within an historic preservation district, or on local
historic landmarks is still permissible.
• A local government shall not mandate, require, or
regulate the installation, location, or use of
transmission equipment on a utility pole.
Leases on public property
• The local government must offer the market
rate value for use of that land.
– Goes to an appraisers panel if parties cannot
agree on market value.
– Local government may refuse to lease if it
disagrees with appraisers’ opinion.
• The term of the lease shall be for at least 20
years.
Discussion?