Section 6409 of the Spectrum Act prohibits state and local governments from denying wireless equipment modification requests as long as the modifications do not “substantially change the physical dimensions” of the tower or facility. It was part of legislation passed by Congress back in 2012, intended to streamline the permitting and zoning process, and thus speed up wireless coverage deployment.
A decade later, Section 6409 is as relevant as ever, and a tool used by telecom law firms, such as Saul Ewing, to navigate local regulations and get the approvals to build clients’ towers. Greg Rapisarda, Partner at Saul Ewing, is very experienced in using Section 6409, which includes colocation by-right for existing wireless facilities for expansions in height and width of the tower and the compound.
“After 10 years, Section 6409 is a strong tool and, surprisingly, one used all the time,” Rapisarda said. “We spent the first six years after 6409 passed working with municipalities to update their codes and educating them about impacts on colocations and modifications. In our practice, our use of 6409 has fluctuated but, surprisingly, has been our primary tool, or one of them in numerous cases this year.”
Rapisarda provides consultation, legal advice, and strategy relating to all aspects of wireless infrastructure development. He works with carriers, tower companies and vendors on all land use, zoning, permitting, and related approvals and agreements that are needed to develop wireless infrastructure. He also litigates in real estate or telecom act claims. Rapisarda does most of his work in and around Maryland, Washington D.C. and Virginia, or he can rely on partners and associates with similar skills sets in Pennsylvania, Florida, Illinois, and Massachusetts.
Recently, Rapisarda’s expertise was needed to get colocations approved on existing facilities. For example, one monopole colocation was delayed because the related compound expansion pushed into the setback, and the county insisted (at first) on a variance. Instead of applying for a variance, a discretionary approval with a high legal standard and high risk for the client, Rapisarda relied on 6409 and subsequent FCC decisions as a mandatory lens to view and apply local code, which ruled out the variance and led to, as the county agreed, a low risk, virtually nondiscretionary approval of the compound expansion that was not substantial change.
“We found a pathway with the highest chance for success, lowest risk of failure, and enough to persuade the county to agree,” Rapisarda explained. “6409 helped us use and clarify the county’s definition for a minor expansion or minimal expansion of a non-conforming use.”
In another case, a vendor for a carrier applied for a building permit (BP) by-right to put in a new rooftop macro facility. The county rejected the BP, declared the new rooftop facility would require a special use (discretionary) permit because, as the planner explained, the county required a special use permit for a rooftop facility that was previously approved and installed by a different carrier. The county thought this seemed “fair,” but then Rapisarda got involved.
“We analyzed the local code and telecom requirements, confirmed our client’s facility would be second on the rooftop, and framed everything within 6409 and federal law. Then the county understood that an existing rooftop facility made the entire rooftop an eligible facility,” Rapisarda explained. “Under Section 6409, you can expand it, add antennas and equipment, and increase the height, all within a non-substantial change.” Under Section 6409, the vendor’s request was not discretionary, and the county agreed it should be by-right. In another case, a county required a discretionary special use permit for a rooftop facility, which did not violate Section 6409 because the new facility was proposed on a “clean” rooftop.
We often deal with excessive regulations but sometimes we run into municipal planners who interpret or apply those regulations to make it exponentially harder or even impossible to comply and pull a by-right permit, says Rapisarda. In one case, a carrier needed to swap out antennas on a rooftop facility. The carrier’s engineer completed a structural analysis of the rooftop, confirmed it could handle the heavier antennas, and submitted a signed and sealed report to the county.
The county planner held up the permit for six weeks, looking for proof that the building’s walls were up to code, and could structurally accommodate the existing roof and the wireless facility. The planner refused to budge, or even agree that one licensed professional engineer cannot be forced to redo or recertify work from another LPE. The supervisor agreed the county could not require a rooftop tenant to second guess or recertify a building permit issued in the 1980s and the engineer’s structural analysis of the rooftop satisfied the code requirement, so the BP could be issued.
Rapisarda believes the recent uptick in using Section 6409 may be related to an adversarial mindset held by some planners, combined with what appears to be a lack of respect for any limit to their authority. “Many planners don’t appear to understand the statutory limits on their regulatory authority,” he said.
Rapisarda’s goal is, first and foremost, to help his clients navigate the regulatory process and obtain the necessary permit as quickly as possible and with the least legal risk. And sometimes that means educating a planner on a law that was passed a decade ago.
By J. Sharpe Smith, Inside Towers Technology Editor