Model Ordinance to Help Muni’s in Wireless Siting

March 17, 2015

By J. Sharpe Smith —

Adelstein

March 17, 2015 — Even though local jurisdictions are fighting Section 6409(a) in court, a coalition of state local and government association has joined with the wireless industry to develop materials to help local jurisdictions adopt guidelines surrounding the FCC’s implementation of Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012.

PCIA – the Wireless Infrastructure Association in concert with the CTIA—the Wireless Association, the National Association of Counties, the National Association of Telecommunications Officers and Advisors, and the National League of Cities developed the educational materials at the urging of FCC Comm. Mignon Clyburn who asked the opposing sides to help ease the implementation of the FCC’s new rules.

The educational materials include a model ordinance, which constitutes the FCC’s Report and Order boiled down into ordinance language, and an application checklist.

“There is a need to rapidly deploy more infrastructure to meet the booming demand for wireless mobile data. Comm. Clyburn wisely called upon municipalities and industry to work together, leading our consortium to come up with a superb set of educational materials that will help localities with the responsible siting of these facilities,” said Jonathan Adelstein, PCIA’s president and CEO and a former FCC Commissioner.

The model ordinance defines certain terms contained in Section 6409(a), including base station, eligible facilities, collocation and substantial change. The model ordinance defines the responsibilities of the municipality in determining if an application is an Eligible Facilities Request. The ordinance also explains under what circumstances the 60-day review period may be tolled.

If a jurisdiction determines that the applicant’s request is not covered by Section 6409(a), the model ordinance states that the timeframe under Section 332(c)(7), as prescribed by the FCC’s Shot Clock order, will begin to run at that point. The model ordinance also includes the FCC’s language that if a jurisdiction fails to act on an application within the prescribed timeframe for review it is “deemed granted.”

The Wireless Facility Siting: Section 6409(a) Checklist walks the jurisdiction through the steps of reviewing an application for approval under the FCC’s new guidelines.

Municipal Reaction to the Model Ordinance

The model ordinance shifts burdens from federal law to local law, which is a problem in case that federal law is found to be unconstitutional, according to Jonathan Kramer, municipal attorney.

“The current lawsuit against Section 6409(a) is a good example of why you should not repeat federal law in local law,” he said. “Those cities that adopt the PCIA model ordinance will remain under those obligations, even if the FCC has its tower siting rules that are based on 6409(a) are overturned in court, because they have adopted them into their own local law.”

Kramer believes the model ordinance does a good job of addressing several procedural issues. “The model ordinance is a good starting point, but it contains things that most sophisticated governments would not include in a final ordinance,” he said.

Omar Masry, wireless planner, City of San Francisco, was not impressed with the model ordinance, noting that it doesn’t cover circumstances where a carrier wants to modify an existing deployment in a way that makes it unsightly.

“It doesn’t appear to address issues such as a set of existing panel antennas on the face of an elevator penthouse of a historic building where the carrier wants to raise the antennas well into view above the roof line in a way that detracts from the view of the building and also add RRUs on the backs of each pipe mount with tangles of cabling and a GPS antenna on a pipe mount above the antennas,” he said.