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Solimar Research

New Rule on Wireless Towers May Frustrate Cities, Planners

Josh Stephens on
Jan 19, 2015

Among all of California's non-native tree species, one in particular may experience a growth spurt in the coming years. It's not the fan palm or the eucalyptus but rather the cell-phone pine and its incongruous cousin, the cell-phone palm. A new rule, established in 2012 by the Federal Communications Commission and recently updated, might mean taller palms, bigger pines, and more prominent towers for cities that are caught flat-footed – even if they don't the like the way the cell towers are disguised.

 The FCC's new guidelines, adopted in December and published January 8 in the Federal Register, clarify what was a significant grey area in Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012, which effectively updated many of the rules in the 1996 Telecommunications Act. 

The new guidelines establish a strict timeline for evaluating projects that fall under Section 6409 protection. Section 6409 gives localities the right to challenge the modification of cell phone transmission towers if the locality finds that the modifications—such as the addition of a new antenna—would "substantially change the physical dimensions of such tower or base station." 

If a requested modification is not "substantial," the locality "may not deny, and shall approve" the request, according to Section 6409. The law thus dictates that approval is the default action, and the locality has the burden of proving that a modification is ineligible. 

"We're only allowed to deny something if it's a substantial change to the existing structure," said Christy Marie Lopez, an attorney with Aleshire & Wynder and immediate past president of the States of California and Nevada Chapter of Telecom Officers and Associates.

After two years of debate, in and out of court, over the meaning of "substantially," the new guidelines define it as a modification that is 10% larger than the facility's existing envelope or 20 feet taller than the existing facility's height. While the federal government may dismiss the impact of smaller modifications, many cities with strict codes for aesthetics and visual blight might disagree. 

"I think that the new FCC order strips away more local authority over, most importantly, aesthetics," said Lopez. "That (guideline) doesn't give a city a lot of wiggle room to require carriers to bring their outdated, un-stealth towers into conformance with the city's rules on aesthetics….And now the community is affected by what could be called visual blight." 

Lopez explained that a city might lose the power to, for instance, compel a carrier to camouflage a tower modification as a pine tree or palm tree, as many towers are. 

Modifications that do not meet these significance thresholds may still be challenged by localities. But, the new guidelines place a strict timeline on these challenges. It is this new "shot clock" that has many planners and city attorneys worried. 

The new guidelines give localities 30 days to determine whether a project proposal is "incomplete" and, therefore, subject to a challenge. Previous iterations of Section 6409 gave localities 60 days, with more opportunities to stop the clock. The new 30-day period essentially requires that cities line up all of their analysis at once, not only regarding zoning, but also regarding safety and engineering. City officials, such as planners and building and safety inspectors, may need to review applications simultaneously rather than in sequence. 

"The procedures…require a level of coordination that is unusual for these types of projects," said attorney Robert "Tripp" May, vice president of Telecom Law Firm, P.C.

Because Section 6409 defaults to approval, a city's failure to adhere to the 30-day timeline means that an application will be automatically approved. In some cases, applications that would have heavy impacts on cities are the ones most likely to overwhelm their ability to process them. 

"One thing that the shot clock doesn't equip cities well for is when a carrier comes in with a batch of applications," said Javan Rad, assistant city attorney for the City of Pasadena.

The rule may also prey on cities that do not have sufficient staff or are bogged down with other planning matters. 

"What it just depends on is the size of the city, the sophistication of the city staff itself, the need for wireless services in that city, the topography of the city," said Rad. Rad suggested that, while he does not expect many applications in a built-out city like Pasadena, certain desert cities are likely to see substantial numbers of applications. 

"That's one of the reasons why it's caused some anxiety among engineers and planners who are going to be the ones in charge of being able to process these and the amount of time that they need," said Lopez.

"If everybody is playing fair, the applicants have done a good job of explaining how their application fits into 6409 and they will allow the city to make a decision," said Rad.  

According to May, the new rules are largely a matter of expediency, which neither respects nor disrespects localities' aesthetic concerns. "They're a federal agency that is tasked with rolling out wireless broadband at the highest rate possible," said May. 

That is precisely what has not happened in the past, according to the guidelines' proponents. Others say that that is exactly what the guidelines are supposed to do – and that cities should embrace them. 

"We've often been stymied at the local level with local planning authorities," said Michael Shonafelt, partner Newmeyer & Dillon LLP, which represents carriers and telecom industry groups. "That allows carriers to deploy those technologies in a way that the Telecom Act originally envisioned."

      The rule may also be designed to thwart what some in the telecommunications industry consider to be frivolous objections to cell phone towers. Shonafelt dismissed many aesthetic concerns as a "tempest in a teapot." He said, in fact, that many objections raised on aesthetic grounds are often proxies for stakeholders' concerns about health. Some believe that microwaves from cell towers can have ill effects on health, but federal law forbids governments from taking these claims into account. 

A single antenna may not ruin a neighborhood, even if it does slip through bureaucratic cracks. But many critics of the new guidelines and Section 6409 are concerned about larger issues. 

Many are decrying the guidelines as the latest chapter in a long-running debate over the role the federal government may play in land-use matters that are typically considered the sole domain of localities. Some consider it an attempt by the wireless industry to pre-empt local zoning codes that the industry considers inconvenient or hostile to its business. 

"The FCC stepping into what was traditionally local control is certainly a concern," said Rad. May went so far as to say that some attorneys think that the FCC's approach to local land use may be "unconstitutional, because it basically mandates that local officials...implement federal program." 

Shonafelt said that local officials need to look at the bigger picture. He contends that the FCC has identified a national interest that compels localities to accept the constraints of the Telecom Act and Section 6409 because wireless communications transcend local boundaries. 

"We're falling behind as a nation," said Shonafelt, in reference to the nation's telecom infrastructure and, in particular, its deployment of 4G wireless broadband. "Because there's a national interest that overrides the local interest sometimes, some of those powers will be curtailed a little bit."

He also encouraged cities to put the new guidelines in perspective.  

"These facilities are pretty small-scale," said Shonafelt. "It's not like the entitlement of a multiunit apartment complex where you need lots of time to study the environmental impacts and other things."

Contacts: 

Christy Marie Lopez, Aleshire & Wynder LLP, www.awattorneys.com, 310.527.6660

Robert "Tripp" May, Telecom Law Firm, LLP, telecomlawfirm.com, 310.405.7333

Javan Rad, City of Pasadena City Attorney's Office, cityofpasadena.net/CityAttorney, 626.744.4141

Michael Shonafelt, partner, Newmeyer & Dillon LLP, www.newmeyeranddillion.com, 949.854.7000