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.