Wireless Antenna Facility Modifications: Part II, Recent FCC Actions. Published by the New Jersey Law Journal on January 7, 2021.

This is the second article in a two-part discussion of recent actions by the Federal Communications Commission. It provides an overview of two more recent FCC Orders that clarify the law regarding the 2014 Order and Section 6409(a) of the 2012 Middle Class Tax Relief and Job Creation Act.
By Gregory D. Meese and Edward W. Purcell | January 07, 2021 at 12:00 PM

This is the second article in a two-part discussion of recent actions of the Federal Communications Commission’s (FCC) directed at promoting wireless technology deployment related to Section 6409(a) of the 2012 Middle Class Tax Relief and Job Creation Act and the FCC 2014 Order interpreting same. 47 CFR §1.6100.

In a nutshell, Section 6409(a) provides that “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.” 47 U.S.C. §1455(a)(1). In this article, we will provide an overview of two more recent FCC Orders that clarify the law regarding the 2014 Order and Section 6409(a).

According to the FCC, the touchstone of the first order, which was issued on June 10, 2020 ( the “June Order”), was to promote the nationwide adoption of new fifth generation or 5G wireless technology. The June Order also answers nearly all of the “vexing” issues described in our last article. The second order, which was issued on Nov. 3, 2020 (the “November Order”), dealt with a long-standing request of the wireless industry that the FCC should allow greater flexibility related to equipment deployment and find that a carrier may “excavate or deploy” outside of the current site without causing a “substantial change” under Section 6409a.

Commencement of Shot Clock
The 2014 Order stated that the 60-day shot clock begins “on the date on which an applicant submits [an eligible facilities request] seeking review,” but did not define when the shot clock commences. As discussed in our first article, there has been a great deal of confusion about whether formal site plan and variance approvals should apply and, if they do, whether the shot clock starts when a zoning permit is filed, a site plan or variance application is submitted or when any of these formal applications are deemed “complete” after all requested information has been provided. The June Order clarifies this issue by seeking to strike a balance that requires the applicant to comply with the local government’s procedural rules, while requiring that action be taken quickly. As a result, the June Order states that the shot clock is triggered when (1) the applicant takes the first procedural step that the local jurisdiction requires, and (2) the applicant submits written documentation addressing the applicable criteria that demonstrates the proposal’s compliance with the requirements of Section 6409a.

The FCC also explained that a local government may not delay the triggering of the shot clock by establishing a “first step” that is outside of the applicant’s control or by defining the “first step” as a combination or sequencing of steps. June Order at 19. Moreover, a local government may not delay the start of the shot clock by requiring an applicant to submit documentation other than the documentation required under the FCC rules. “For example, if a locality requires as the first step in its section 6409(a) process that an applicant meet with a local zoning board, that applicant would not need to submit local zoning documentation as well in order to trigger the shot clock.” Id. at 20.

Although a local government may use standard zoning authorizations such as conditional use permits and variances in connection with its consideration of an eligible facilities request, the requirements to obtain such authorizations may not be used to delay the start of the shot clock. As stated by the FCC, the shot clock would begin once the applicant takes the first step in whatever process the local government uses in connection with reviewing applications subject to section 6409(a) “and submits all documentation required under our rules.” Id. at 21. Thus, for New Jersey purposes, the shot clock would start upon the submission of an application for a zoning permit, site plan approval, or a variance (depending upon the procedure of the jurisdiction)—not upon a completeness determination for same. Subsequently, “if the locality rejects the applicant’s request to modify wireless facilities as incomplete based on requirements relating to such permits, variances or similar authorizations, the shot clock would not be tolled and the application would be deemed granted after 60 days if the application constitutes an eligible facilities request under our rules.” Id. at 21.

Increase in Height of Towers
A modification of a tower outside of the public rights-of-way would cause a substantial change if it “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 twenty feet, whichever is greater.” 47 C.F.R. §1.40001(b)(7)(i). To resolve any confusion as to how the 20-foot distance is measured, the June Order defines the phrase “separation from the nearest existing antenna” to mean “the distance from the top of the highest existing antenna on the tower to the bottom of the proposed new antenna to be deployed above it.” June Order at 25. Thus, when determining whether an application satisfies the criteria for an eligible facilities request, localities should not measure this separation from the top of the existing antenna to the top of the new antenna, because the height of the new antenna itself should not be included when calculating the allowable height increase. Rather, under FCC’s interpretation, the word “separation” refers to the distance from the top of the existing antenna to the bottom of the proposed antenna.

Measuring the Volume of Equipment Cabinets
The 2014 Order defined a “substantial change” for towers in public rights-of-way and base stations to include the installation of ground cabinets that are 10% larger than existing ground cabinets. 47 C.F.R. §1.40001(b)(7)(iv). The June Order held that the term equipment cabinet “does not include small pieces of equipment such as remote radio heads/remote radio units, amplifiers, transceivers mounted behind antennas, and similar devices” if they are not used as physical containers for smaller, distinct devices. June Order at 29-30. In addition, it stated that the maximum number of additional equipment cabinets that can be added is measured for each separate eligible facility request and is not a cumulative limit. Id.

Concealment elements are part of the design of the facility that are intended to make the facility look like something other than a wireless facility. According to the 2014 Order, an installation that defeats the concealment elements of an eligible support structure would be a “substantial change.” 47 C.F.R. §1.40001(b)(7)(v). The June Order clarifies that “in order to be considered a concealment element, it must have been part of the facility that was approved in the locality’s prior review” and not part of a condition associated with siting approval. June Order at 35. To “defeat concealment,” the proposed modification must “cause a reasonable person to view the structure’s intended stealth design as no longer effective after modification.” Id. at 38.

For instance, a small increase in the height of a stealth monopine (with the 6409(a) allowance), would not defeat concealment if it would not cause a reasonable person to view the structure’s intended stealth design (i.e., the design of the wireless facility to resemble a pine tree) as no longer effective after the modification. Id. at 39. If the prior approval required that the monopine must be hidden behind a tree line, a proposed modification that would make it visible above the tree line would be permitted if it was within the height threshold of 6409(a). Id.

Conditions Associated with the Siting Approval
The 2014 Order states that a modification is a substantial increase if “it does not comply with conditions associated with the siting approval” provided this limitation does not apply to any modification that is non-compliant only in a manner that would not exceed the thresholds identified in the rules. 47 C.F.R. §1.6100(b)(7)(vi). The June Order confirms that (1) the condition must have been an expressed condition of approval, and (2) that it cannot be used to prevent modifications specifically allowed and not deemed to be substantial under the rules. June Order at 41. “In other words, when a proposed modification otherwise permissible under sections 1.6100(b)(7)(i)-(iv) cannot reasonably comply with conditions under section 1.6100(b)(7)(vi), the conflict should be resolved in favor of permitting the modifications. For example, a local government’s condition of approval that requires a specifically sized shroud around an antenna could limit an increase in antenna size that is otherwise permissible under section 1.6100(b)(7)(i)” and “the size limit of the shroud would not be enforceable if it purported to prevent a modification to add a larger antenna, but a local government could enforce its shrouding condition if the provider reasonably could install a larger shroud to cover the larger antenna and thus meet the purpose of the condition.” Id. at 43.

The June Order also provides that walls or fences are not concealment elements, but are conditions of approval. Consequently, if new equipment would be visible over the wall or fence, “the locality may require a provider to make a reasonable effort to extend the wall or fence to maintain the covering of the equipment.” Id.

Excavation or Deployment Outside the Current Site
Pursuant to the 2014 Order, a “substantial change … entails any excavation or deployment outside the current site.” 47 C.F.R. §1.40001(b)(7)(iv). The 2014 Order also defined “site” for towers not located in the public rights-of-way as “the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site,” and it defined “site” for other eligible support structures as being “further restricted to that area in proximity to the structure and to other transmission equipment already deployed on the ground.” 47 C.F.R. §1.6100(b)(6). Wireless Carriers have, over time, urged the FCC to revise this requirement and permit an expansion of an existing compound beyond the current site to the entirety of any leased premises to allow for the deployment of additional equipment.

While the November Order “softens” the relatively strict language set forth in the 2014 Order, it is not entirely everything the wireless carriers asked for. First, the FCC held that, for towers not located in the public rights-of-way, the “modification of an existing site that entails ground excavation or deployment of transmission equipment of up to 30 feet in any direction outside a tower’s site will not be disqualified from streamlined processing under Section 6409a on that basis.” November Order, at 9. In making this change, the FCC reasoned that such a deployment is “sufficiently modest so as not to substantially change the physical dimensions of a tower or base station, that this amendment to our rules thus represents a permissible construction of Section 6409a.” Id. The FCC also redefined “site” to mean “the current boundaries of a site are the boundaries that existed as of the date the original support structure or a modification to that structure was last reviewed and approved by a state or local government, if the approval of the modification occurred prior to the Spectrum Act or outside of the Section 6409(a) process.” Id. at 28.

The FCC also made clear that the changes set forth in its November Order did not affect towers in the public rights-of-way, which would still be subject to the same language set forth in the 2014 Order. The Commission recognized that “activities in public rights-of-way are more likely to raise aesthetic, safety, and other issues, “and that the “towers in the public rights-of-way should be subject to the more restrictive … criteria applicable to non-tower structures rather than the criteria applicable to other towers.” Id. at 32. Consequently, the November Order really only speaks to expanding compounds related to existing towers that are located outside of the public rights-of-way.

Municipalities, wireless carriers and legal practitioners that service them have had the benefit of eight years’ experience with Section 6409a. As set forth in our first article, a number of “vexing” issues have arisen regarding the implementation of the law and the 2014 Order. The June and November Orders have done a lot to help resolve these issues and, when it comes to excavation and deployment, have indeed broadened the existing law. Over time, no doubt, these changes will become understood and accepted by municipalities. This, in turn, will give wireless carriers the benefit of streamlined siting processes which can be used to roll-out the newest forms of wireless telecommunications technology.

Gregory D. Meese is a principal of Price, Meese, Shulman & D’Arminio, P.C. He is a former Chairman of the Board of Directors of the NJSBA Land Use Law Section, Counsel to the Builders Association of Northern New Jersey, and Co-chair of the Environmental Law Section of the Bergen County Bar Association. He is also the editor of the annual Land Use Citator.
Edward W. Purcell is an associate at the Price Meese, concentrating his practice in the areas of land use, planning and telecommunications law.

Reprinted with permission from the January 7, 2021, issue of the New Jersey Law Journal. Further duplication without permission is prohibited. All rights reserved. © 2021 ALM Media Properties, LLC.