FCC's guidance on site modifications won't settle much

editor's corner

Not everyone was thrilled about the FCC's recent effort to define terms in a law passed year that essentially prohibits jurisdictions from blocking moderate modifications to existing wireless towers or base stations. Though it was attempting to settle disputes regarding application of the law, the FCC may have simply given the dueling sides a longer list of specific points to dispute.

The FCC guidance concerns Section 6409(a) of last year's Middle Class Tax Relief and Job Creation Act of 2012, a.k.a., the Tax Relief Act (TRA). This section of the law was clearly designed to help mobile operators clear sometimes testy zoning hurdles as they work to upgrade their 3G networks and deploy new LTE equipment, thus improving the nation's mobile broadband infrastructure.

Section 6409(a) states simply, "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." Unfortunately, that law, which more than a few contend is poorly written due to its ambiguity, raised as many questions as it answered.

By issuing its take on the law last week, the FCC's Wireless Telecommunications Bureau sought to quell debates regarding a number of issues, including what exactly constitutes a tower or base station and what it means to "substantially change" a site's physical dimensions. The guidance, included in a public notice, is obviously designed as a tool operators can present to local zoning officials in order to win quicker approval for site modifications, with the FCC saying the document is meant to "assist parties in understanding their obligations under Section 6409(a)."

Trade group PCIA heralded the FCC's move for eliminating "confusion among state and local jurisdictions trying to comply with the law." However, critics have been quick to note that the commission's guidance is an advisory only and does not carry the weight of law. Jonathan Kramer, a contract wireless planner and California attorney who regularly advises local governments on siting issues, not surprisingly wrote that the guidance "is flawed and overreaching in most areas covered."

He suggested critical evaluation of, and challenges to, this guidance will be undertaken by attorneys and organizations such as the National Association of Telecommunications Officers and Advisors (NATOA), whose membership includes local government agencies, staff and public officials, as well as consultants, attorneys and engineers who consult local governments on their telecommunications needs.

Bottom line: Though the FCC's public notice may settle some questions about Section 6409(a) that have been asked by jurisdictions as well as operators themselves, it is far from the last word. Expect attorneys on both sides to have a field day with the commission's guidance, which, unless it provides a foundation for new state telecommunications laws or local ordinances, remains merely a collection of suggestions.

Do you think the FCC's public notice regarding Section 6409(a) will help operators win faster approvals for site modifications? Let us know in this week's poll.--Tammy

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