Cell Towers and Signs Peter McNally, The Grinnell Group Dustin Miller, Iowa League of Cities Gary...

Cell Towers and Signs

Peter McNally, The Grinnell GroupDustin Miller, Iowa League of Cities

Gary Taylor, AICP, Iowa State University

Today’s Agenda

Cell Towers• Who’s been playing in the sandbox?

– 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, GASCOTUS, 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 RoswellSCOTUS, January 14, 2015

T-Mobile South v. City of RoswellSCOTUS 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. FCCSCOTUS, 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.


Wireless tower • Any structure built for the sole or primary

purpose of supporting any Commission-licensed 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 StationBase 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 EquipmentTransmission 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.

CollocationCollocation• 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.


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.


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


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 LegislationHF 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.


• 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)


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.


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”


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


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.


• 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?

Cell Towers and Signs Peter McNally, The Grinnell Group Dustin Miller, Iowa League of Cities Gary...

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