At the end of last week, Congress passed the "Middle Class Tax
Relief and Job Creation Act of 2012" (the Act). President Obama is
expected to sign the Act into law in the next several days. The Act includes a
provision that is of substantial interest to those involved with the deployment
and upgrade of wireless communications facilities. The goal of the provision is
to reduce impediments to modifications to existing facilities and co-location
on existing towers.
Pursuant to Section 6409(a)(1) of the Act, "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."
Section 6409(2) of the Act defines an "eligible facilities request"
as a request to modify an "existing wireless tower or base station"
that includes the (i) "collocation of new transmission equipment,"
(ii) "removal of transmission equipment," or (iii) "replacement
of transmission equipment." Click here for the full text of Section 6409
of the Act.
The Act is a positive step designed to assist carriers as they continue
to develop and modify their networks to meet ever-increasing subscriber demands
and overcome the municipal challenges associated with upgrading their networks
to accommodate 3G and now 4G technologies. "We have been involved in the
leading edge of the deployment of these new technologies for our clients, and
have seen first-hand resistance from municipalities to the required
modifications of existing sites. This is true despite the importance that the
federal government has placed on the rapid deployment of personal wireless and
wireless broadband networks," said Rick Sousa, Chair of the Prince Lobel
Telecommunications Practice Group.
The Act’s provisions leave some questions unanswered. The Act prohibits
a state or local government from denying a request to modify an eligible
facility, but does not exempt the carrier from having to file, and seek
approval of, the necessary application. In addition, while the Act may require
the governmental authority to approve the application, the extent to which the
governmental authority may place conditions on its approval is unclear.
Furthermore, it is important to note that the Act does not modify the carriers’
obligations to comply with the National Historic Preservation Act or the
National Environmental Policy Act of 1969.
Carriers should expect some jurisdictions and their consultants and
counsel to aggressively try to exploit any ambiguities in the Act, such as the
lack of a definition of either a "wireless tower" or a "base
station." In addition, the Act
leaves wide open the question of what constitutes a "substantial physical
change." These ambiguities will be
at the heart of the discussions with governmental authorities, and we
anticipate jurisdictions to enact local zoning ordinances or bylaws that
attempt to narrowly define these terms in an attempt to retain as much control
as possible over siting decisions.
Therefore, despite the Act’s
goal to streamline the modification of existing facilities, a number of open
questions will require further definition from either the Federal
Communications Commission or, more likely, the courts. As with early cases
under the Telecommunications Act of 1996, the choices regarding which cases to
litigate and the resulting decisions will be of considerable importance in
defining the impact of the Act.
For questions about the information presented here, or for more
information about any telecommunications matter, please contact the author of
this alert, Brian S. Grossman, or Rick M. Sousa, Chair of theTelecommunications Practice Group. Brian
can be reached at 617 456 8184 or firstname.lastname@example.org and Rick can be
reached at 617 456 8123 or email@example.com.