RCR Wireless News: Small cell regulations: Section 6409(a) and the Mobile Now Act. Part 2.

Small cell regulations review

Section 6409(a) application contents and processing

Under the Section 6409(a) Rules, localities that process eligible facility request applications may not require applicants to provide any information beyond that which is reasonably related to determining whether the application meets the requirements of the rules. Localities may not, for example, require “proof of need” (e.g., business reasons as to why an applicant is requesting collocation). Localities may, however request that an applicant provide information that is “objectively related to determining whether an application qualifies as an eligible facilities request.”

While entities such as the National League of Cities have proposed a checklist for Section 6409(a) applications, there is no “standard” eligible facilities request application. Many localities have their own applications, while others require a letter containing applicable information. Application fees always apply, regardless of the form of request. Localities’ applications vary widely concerning the specific information they require. Some localities, for example, request that applicants provide detailed information about compliance with local ordinances that they view as pertinent to an eligible facilities request. A typical application requires an applicant to provide at a minimum, the following types of information (with substantial documentation to prove the responses):

● whether the applicant holds a valid property interest in the proposed site;

● description as to how the proposal qualifies as an eligible facilities request;

● description as to how a structure qualifies as an existing tower or base station;

● whether the proposal will cause a substantial change to the structure;

● whether the proposal complies with applicable health and safety laws;

● whether the proposal raises and NEPA or NHPA concerns; and

● description of equipment and whether it is authorized by the FCC.

If a locality deems an eligible facilities request complete and in compliance with the rules, it is required to grant zoning authority within 60 days of submission. Many localities are, however, sticklers for their (often arcane) administrative rules, and are not shy about returning applications as incomplete or improperly filed. Returned applications toll the shot clock, which does not commence running again until the requested information is provided to the local government.

Various state and local government requirements

Any business that seeks to deploy small cells and/or DAS in a given state will need to register with the Secretary of State’s office to obtain a certificate authorizing it to do business in that state. States also require that anyone doing business therein register with the Department of Revenue and/or file business taxes. It is critical that these filings be done in a timely manner, as states will typically levy substantial fines and other sanctions on non-compliant businesses.

Among the many other requirements that a locality may impose on an eligible facilities request applicant include: (a) attending a pre-application meeting with local officials to discuss details of the proposed deployment and compliance with applicable local ordinances; (b) submission of FCC and Federal Aviation Administration (“FAA”) certificates of compliance concerning the structure on which collocation is planned; and (c) a statement of data security compliance.

Non-section 6409(a) deployment: state and local laws

Entities that plan to deploy small cells or DAS that do not meet the requirements of the Section 6409(a) Rules are subject to all manner of additional state and/or local laws and regulations. For example, deployment on local-government owned property typically requires the provider and locality to negotiate and execute a master license agreement (“MLA”). Basic MLA terms include:

● grant of license;

● scope of permitted uses;

● ROW rental fee;

● protection of city resources;

● contract term;

● sublicenses for each installation;

● application approval process;

● confidentiality of government infrastructure data and

● general contract provisions.

State and local laws for general (non-Section 6409(a)) RF equipment installation often have onerous provisions that can substantially delay the siting process. Pre-grant public hearings, for example, are not uncommon. Many states and localities also require applicants to provide detailed information concerning “viability,” which means compliance with, among other things: local development policies, public notice requirements, building codes, noise ordinances, safety regulations, labeling processes, lighting requirements, fees, and historic preservation and environmental laws. Moreover, many states and localities have no shot clocks; those that do usually have review periods that are substantially longer than the federal 60 day cycle. Some states and localities subject siting applications to multiple layers of review by different government agencies.

MOBILE NOW Act 

A proposed law that is currently wending its way through Congress will, if passed, provide some additional regulatory relief from restrictive local siting laws. The crux of the bipartisan “Making Opportunities for Broadband Investment and Limiting Excessive and Needless Obstacles to Wireless (MOBILE NOW) Act” is the allocation of spectrum for wireless 5G services. But, it also contains numerous provisions concerning RF equipment siting:

● Expands the types of services covered by federal zoning rules and creates a new standard for “unreasonable discrimination” by government officials. (Current standard requires non-discrimination among providers of “functionally equivalent services”; proposed new standard requires non-discrimination among providers of “personal wireless services” as opposed to just functionally equivalent services).

● Preempts local governments’ ability to require removal or replacement due to “passage of time” or “the availability of alternative technology or design.”

● Prohibits local governments from requiring information to evaluate an applicant’s claim that there is a “gap in coverage.”

● Bars local governments from governing the size or placement of emergency backup power systems and from taking any steps to ensure that such facilities comply with federal and state environmental regulations.

● Imposes for the first time limitations on fees a locality can assess on permits.

● Imposes the most conservative interpretation of the FCC’s shot clock to include all proceedings required for the approval of an application.

Conclusion

Section 6409(a) certainly makes life easier for businesses that plan to deploy small cells and/or DAS in a manner that complies with the rules. There are, however, different interpretations of what constitutes information that is “objectively related to determining whether an application qualifies as an eligible facilities request.” Many localities view that standard liberally and require applicants to provide a great deal of information with their applications.

For non- Section 6409(a) applicants the siting process is often increased exponentially, as states and localities may impose a plethora of regulations that substantially encumber the applicant. MOBILE NOW will help, if it is passed. But even then, it will likely take well over a year for the applicable agency to complete a rulemaking proceeding and release the final rules. And, MOBILE NOW is somewhat limited in scope. It is, therefore, critical that any business that plans to install small cells, DAS, or indeed any type of RF transmitter work with an experienced consultant or attorney who knows the rules and procedures, works well with local officials, and understands how to expedite the administrative processes.

Today, the IoT industry has a lot of players. As the industry matures, many will drop by the wayside. Those providers who deploy first may be the final ones standing. 

About the Author

IoT Attorney Ronald E. Quirk is Senior Managing Attorney at  Marashlian & Donahue, PLLC, The CommLaw Group. Mr. Quirk’s legal career has spanned more than 20 years, including several years at the Federal Communications Commission (FCC) and AMLAW 100 firms. He specializes in helping IoT and wireless firms build and expand their businesses by assisting them in navigating the complex labyrinths of federal, state, and local legal and regulatory processes.  Mr. Quirk is the author of the Global Guide to RF Equipment Authorization.  Mr. Quirk can be reached at (703) 714-1305 or [email protected].