Section 6409(a): Cell Tower Siting Law

Land Deveopment Training
December 4, 2012 — 1,531 views  

Modifying a cell tower site has gotten easier this year due to a new law passed under the Middle Class Tax Relief Act. Section 6409(a) of the Act now requires local and state governments to approve applications for cell tower collocations and modification of existing wireless communication facilities if they do not substantially increase the size of the tower or base station.

The new law applies to:

- Collocation of new transmission equipment;
- Removal of transmission equipment; or
- Replacement of transmission equipment.

It will not apply to siting of new towers or additional transmission equipment that does not act as replacement equipment. It will also not apply to structures that are not base stations or wireless towers. Standardization of applications for approval have been created. New master contracts for placement of wireless equipment on land owned by the federal government are being created.

Previously, state and local governments were permitted to review applications for modification or collocation and provide an approval or denial of an application within a “reasonable time”. The reasonable time period was presumptively 150 days for tower modifications and 90 days for collocations. Applications could be denied provided they did not prohibit service or have the effect of prohibiting service, or discriminate between providers. Developers were then required to seek court intervention if their application was wrongfully denied.

Under the new law, the burden has shifted to the state and local governments to approve modification and collocations that do not substantially increase the size of the existing tower or equipment. The process of obtaining local approval for tower modifications should be far less difficult than in the past, and the waiting period should be shortened substantially.

Unfortunately, the new statute does not define the term “substantially increase”. The National Collocation Agreement does provide some parameters. It defines a “substantial increase in size” of more than 10% increase in height plus 20 feet. A protrusion more than the width of the tower or 20 feet can also be considered a substantial increase in size. Greater than 4 cabinets or 1 new structure meets the definition.

Both the National Historic Preservation Act and National Environmental Policy Act of 1969 remain in full force and effect and cannot be bypassed by the new law. A government agency, an executive agency of the federal government or a state government or a political subdivision now has the authority to grant an easement or right of way for a property that it operates. This provision allows the installer to deal directly with the site manager, rather than the General Services Administration or a comparable state agency.

 

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