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C H A R T E R E D Affirmative Adam Equal oppoauney Employer
MEMORANDUM
TO: Sherburne/Wright Counties Cable Commission
FROM: Bob Vose
DATE: October 3, 2013
RE: Further FCC Action Regarding Wireless Facility Siting
The Federal Communications Commission (FCC) is considering adoption of rules further
impacting local governments' zoning authority. The proposed rules would allow wireless
service providers to add facilities to existing buildings, towers, and other structures in
public rights-of-way and elsewhere. The wireless industry is pushing for adoption of the
rules.
Background
Under the Telecommunications Act of 1996, 47 USC § 332(c)(7), local governments
retained zoning authority over wireless towers, antennas, and related facilities.
Notwithstanding, the FCC has issued several orders interpreting the law in a manner that
restricts local authority over wireless facilities. Most notably, the FCC established a
"shot clock” requiring action on zoning requests related to wireless facilities within 90
days for collocations (i.e. adding wireless facilities to an existing tower) and 150 days for
other applications. In Minnesota, this has relatively impact because of the "60 day rule,"
Minn. Stat. § 15.99, governing zoning actions.
Subsequently, Congress passed Section 6409(a) of the Job Creation Act of 2012 which
states that "a state or local government may not deny, and shall approve" particular
requests to add, remove, or replace transmission equipment on an "existing wireless
tower or base station" if the request would not "substantially change the physical
dimensions of such tower or base station."
It is our view that these regulations do not apply where the governmental entity is acting
in a proprietary capacity; i.e. the rules do not apply to leasing of municipal property to
wireless companies. Additionally, these regulations only apply to facilities used for
"personal wireless services" which generally means cell phone service, and does not
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include data-transmission-only services. Finally, with limited exceptions, these
regulations do not apply to excavation and installation of new fiber connections to
existing wireless facilities.
New FCC Rulemaking
The FCC has initiated a new proposed rulemaking related to zoning of wireless facilities.
Comments from interested parties are due 60 days from date of publication in the Federal
Register. However, it is unclear when the proposed rules will be published due to the
federal shutdown.
The proposed rules could impact Minnesota cities. First, the FCC proposes to make a
non-binding "guidance" it issued in response to the Job Creation Act of 2012 into a
binding regulation. In the guidance, the FCC stated that adding an antenna to a tower that
increases the height by less than 10%, or by twenty feet, whichever is greater, is not a
"substantial change" and thus must be approved. Similarly, the FCC concluded that an
antenna that protrudes horizontally from the body of a tower by less than twenty feet, or
the width of the tower at the level of the appurtenance, whichever is greater, is not
substantial. The FCC proposes to adopt these conclusions as a binding rule.
In response, the FCC recently issued a non-binding "guidance" concluding that adding an
antenna to tower that increases the height by less than 10%, or by twenty feet, whichever
is greater, is not a "substantial change." Similarly, the FCC concluded that the addition
of an antenna that protrudes horizontally from the body of a tower by less than twenty
feet, or the width of the tower at the level of the appurtenance, whichever is greater, is not
substantial.
In addition, the FCC is asking whether it should supplement its "shot clock" to deem an
application automatically granted if the locality fails to satisfy the FCC's deadlines. It
asks whether the shot clock runs from the time that an application is filed even if the
community has adopted a moratorium on applications. And it asks whether a local
government "unreasonably discriminates" when it requires a preference for siting on
government property. Unlike the current "shot clock," these proposed actions could
impact municipal zoning authority in Minnesota.
Finally, current FCC rules governing the environmental and historic preservation review
of wireless deployments focus on new, large-scale deployments on towers or other tall
structures. The rules exempt the collocation of antennas on existing antenna towers and
buildings from most environmental review. The proposed rules would expand the
exemption to include existing structures such as utility poles, water tanks, light poles, and
road signs.
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