New Jersey municipalities should be aware that new rules adopted by the Federal Communications Commission (FCC) regarding wireless facilities might require amendments to local land use ordinances. Among other significant changes, the FCC’s Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies limit the discretion of local governments with respect to wireless collocation applications.
As previously discussed on this blog, many of the FCC’s new wireless rules are mandated under Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 (Spectrum Act). It provides, in part, that “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.”
Because the Section 6409(a) does not define any of its terms, the FCC rules fill in the gaps. Not surprisingly, the telecommunications carriers and local governments each proposed different interpretations during the rulemaking process. In most cases, the FCC sided with the telecomm industry; however, local governments were able to preserve some of their discretion.
Limits on Local Oversight
The new FCC rules adopt an objective standard for determining when a proposed modification will “substantially change the physical dimensions” of an existing tower or base station. For instance, a change would be deemed substantial if it entails any excavation or deployment outside the current footprint of the tower or base station; would defeat the existing concealment elements of the tower or base station; or fails to comply with conditions associated with the prior approval of the structure, subject to certain exceptions such as a non-substantial increase in height.
While the new rules remove a great deal of discretion, New Jersey municipalities retain some oversight over whether applications are approved. For example, they “may continue to enforce and condition approval on compliance with generally applicable building, structural, electrical, and safety codes and with other laws codifying objective standards reasonably related to health and safety.”
The FCC’s wireless siting rules also clarify that the term “existing” requires that wireless towers or base stations have been reviewed and approved under the applicable local zoning or siting process or that the deployment of existing transmission equipment on the structure received another form of affirmative State or local regulatory approval. Accordingly, if a facility did not initially undergo proper regulatory review, municipalities are not obligated to grant the new application.
New Application Approval Deadlines
Under the new rules, New Jersey municipalities must adhere to strict timeframes for approving collocation applications. Most notably, local governments have 60 days to act on the application (referred to as the “shot clock”) or it will be deemed granted. The running of the period may be tolled by mutual agreement or upon notice that an application is incomplete.
Given the extent of the new regulations, New Jersey municipalities are advised to meet with local counsel to determine what measures, if any, they should take in preparation.
For more information about the new FCC rules or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.