New FCC Rules Make Collo Apps Nondiscretionary

December 11, 2014

By J. Sharpe Smith —

December 11, 2014 — In the top regulatory item of the year, the FCC clarified the legislative language from Section 6409(a) of the Spectrum Act to make collocation applications into a nondiscretionary and objective process, Robert Jystad, managing partner of the Channel Law Group, told the audience at the AGL Conference, Dec. 4, in Phoenix, Arizona.

The Spectrum Act states that the “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” as long as it doesn’t change its dimensions. It was passed to speed up the deployment of wireless broadband equipment.

“Under Section 6409, a cell site application should be just like getting a building permit, because it is objective, nondiscretionary and ministerial. The question is whether you qualify as an eligible facility,” Jystad said.

The FCC proceeding, known as “Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies” was discussed by a panel that included Jystad; Robert Smith, manager of the Town of Chino Valley, Arizona; Marvin Webster, president of the Environmental Corporation of America; and Christine Crowe, a partner with Wilkinson Barker Knauer. The panel was moderated by Karla Richards of Virtus Communications.

Going to the courts to remedy an unreasonable delay is always a challenge, Jystad said, and he hoped that the FCC would implement a deemed-granted solution for all violations of the FCC shot clock including new towers.

“They did it only for Section 6409 not Section 332. That was disappointing, but Section 332 had already been through the courts,” he said.

Previously, there was no presumption that a cell site was being built because a carrier had made the business decision that there was a need, so municipalities have required carriers to prove their need for additional RF coverage.

Under the new adopted FCC rules, state and local governments may only require applicants to provide documentation that is related to determining whether the request meets the requirements of Section 6409, according to Jystad. Additionally, state and local governments may not require documentation proving the need for the proposed modification or presenting the business case for it.

“Hooray, Hallelujah. Finally, we can get away from significant-gap and least-intrusive means analysis,” Jystad said. “How many sites have you looked at? Is it a capacity issue or a coverage issue? That effort to get into the business of the industry was one of the worst things that have happened to the rapid deployment of wireless facilities in the United States.

“We now have the FCC saying that, at least under modifications, a business case analysis or a needs-based analysis cannot be required,” he added.

The FCC clarified some aspects of the Section 332 shot clock, which was ambiguous concerning notices of incomplete applications.

“One thing that is clear under 6409(a) is the entire process can go only 60 days,” Jystad said. “You can’t go through an indefinite cycle of notices of incompleteness, which is a very nice clarification.”
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J. Sharpe Smith is the editor of the AGL Link and Small Cell Link newsletters.