Tax Law Facilitates Wireless Use of Easements, Federal Buildings

March 20, 2012

The Middle Class Tax Relief and Job Creation Act signed by Obama, Feb. 22, is the gift that will keep on giving to the wireless industry.

Some components of the bill have been widely reported on: reduced local control of collocations, incentive auctions and spectrum for a nationwide public safety network. Another, less publicized provision in the bill may facilitate the use of federal easement and rights of way for wireless equipment and the use of federal buildings to site wireless facilities, according to Russell Fox, a member of the law firm Mintz Levin, who spoke last week at the AGL Northeast Regional Conference in Philadelphia.

The tax law allows, but not require, federal agencies to give easements or rights of way for wireless service equipment and backhaul transmission equipment. Next, the law directs the General Services Administration (GSA) to develop forms for wireless companies to fill out in order to request permission to use the easement or right of way.

The GSA will develop a fee structure for use of the right of way but has the ability to waive the fee in the interest of expanding wireless broadband coverage. The fees may be used by agencies to cover costs of granting easement or rights of way.

“It is hard to say what the impact is going to be because the agencies are not mandated to take this action,” Fox said. “Presumably they could act today, if they wanted to, to let you have an easement or right of way. So if they really wanted to, today, they could provide it. Maybe this will encourage more of that.”

Next month, by April 22, the GSA is required to provide master contracts for cell site developers to enter into deals to put wireless service facilities on federal building and federal structures.

Any publicly accessible federal building will be available unless the GSA determines for whatever reason that is not appropriate — not big enough or not structurally sound enough, to put an antenna on it. As with the easement and right of way, the GSA has to develop the application forms for siting wireless facilities.

“It is hard to determine the impact of this until the forms are developed and we see what kind of information they ask for and we see how responsive the federal agencies are in making their facilities available,” Fox said. “This, too, might take some lawsuits from people who want to get on federal buildings. If the agency gives you a hard time, you may have to bring them to court to let you on.”