This is a repost from a legal alert by Best Best & Kreiger telecom attorneys
President Obama signed into law a bill passed by Congress last week that extended unemployment benefits and the payroll tax deduction. The bill, HR 3630, includes other provisions relevant to local government, such as restrictions on siting of wireless facilities and changes to the public safety radio spectrum. The new law, signed by the President on Wednesday, is effective immediately. Local governments should take immediate action to review and possibly amend local ordinances to protect their interests and avoid lawsuits.
Under Section 332(c)(7) of the Telecommunications Act, local governments have broad authority to control the siting of cellular and other wireless towers, antennas, and related facilities. Many cities and counties have ordinances that govern both the initial placement and modification of wireless facilities. The new law may require changes to those rules. It mandates local approval of certain applications for modification of “an existing wireless tower or base station.”
The law states that “Notwithstanding [Section 332(c)(7)] or any other provision of law, 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.”
Local governments should anticipate that representatives of tower companies will claim that cities and counties must approve many pending collocation applications unless the expansion adds significantly to the height or width of a facility. Entities that have placed wireless facilities on public light poles and other public property may argue they can now expand their facilities without review by the local government. We expect providers to move quickly to challenge local ordinances that consider any collocation factor other than “physical dimensions.” More aggressive applicants may claim the failure to “approve” subjects jurisdictions to damages and attorneys fees for failure to act.
Don’t be intimidated, but do look seriously at your ordinance. The law does not prevent a locality from reviewing a proposed installation. There are significant ambiguities in the new law that undercut claims you “must act” on every collocation application.
Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.
The City’s roadside solicitation law was enacted back in the 1980s because of all the traffic/safety problems associated with day laborers soliciting employment from moving cars. The law was not limited to day laborers, and barred any individual from standing on a street or highway and soliciting, or attempting to solicit employment, business, or contributions from an occupant of any motor vehicle. The definition of street included sidewalks, parkways, medians, alleys and curbs. The Ninth Circuit ruled that the City’s solicitation ordinance was unconstitutional in that although it was content neutral, it was not narrowly tailored. The Ninth Circuit decision features one of the harshest dissents we’ve read. It’s worth reading.
Filed February 06, 2012 (merits-stage brief)
A group of property owners brought an equal protection claim against the City of Indianapolis due to the City’s decision to provide tax relief only on a prospective basis. Prior to 2005, the City would finance sewer projects by apportioning the costs to property owners. The City allowed owners to pay in full or by installments (10, 20, 30 year options). At some point, the City decided to move away from this method of financing and moved to a completely different system and made the decision to forgive the remaining amounts owed under the old system. However, the affected owners had not all paid the same amount since some homeowners had paid in full while some had opted for the longest term financing possible.
IMLA has submitted a brief in this case to emphasize that the City’s actions meet the rational basis standard. City’s have reasonable, legitimate and even compelling reasons for differentiating between tax refunds and prospective tax relief. We invite you to read this excellent brief.