In order for wireless networks to be constructed, carriers must work with two primary stakeholders that have the power to significantly slow the progress of construction and modification: local jurisdictions and other utility pole owners.
That’s according to Crown Castle and American Tower Corporation, which told the FCC this week that clarifying Section 6409 of the agency’s rules will serve the public interest by facilitating the review process for wireless infrastructure modifications and speeding broadband deployment. The towercos were commenting on petitions for rulemaking from the Wireless Infrastructure Association and CTIA concerning wireless infrastructure deployment.
Though many states and localities have enacted federally-compliant and complementary codes to streamline the process of reviewing eligible facilities requests (EFRs), others continue to impose the same requirements on EFRs as they do for all other wireless siting approvals, according to Crown. This means EFRs must go through multiple approval processes before an applicant can proceed to construction. “For example, one township in New York first requires an applicant to obtain a planning approval before applying for and obtaining architectural board approval, prior to applying for a building permit,” says Crown.
Another significant delay occurs where a state or local government approves an EFR but adds unacceptable conditions that are not authorized under Section 6409. “The types of conditions that are added to EFR approvals are varied. Frequently, these conditions are particularly problematic because they extend well beyond the scope of the modification that is subject to the EFR or the authority of the applicant to comply,” Crown explains. The towerco cited examples such as: additional landscaping, painting or other aesthetic requirements, access road maintenance or improvements, performance bonds for removal of entire tower sites, indemnification agreements between landowner and jurisdiction or tower owner/operator and jurisdiction, and maintenance plans.
Many localities label certain elements of the original siting approval as concealment factors in order to deny an EFR. American Tower says interpretation of concealment varies widely. It asks the Commission to “clarify that the size of the facility, transmitter, or related equipment specified in a permit, in and of itself, would not constitute a concealment element; rather, such ‘concealment elements’ should be “limited to equipment and materials used specifically to conceal the visual impact of a wireless facility.”
“Section 6409 was intended to reduce regulatory burdens and remove regulatory barriers in order to facilitate infrastructure deployment; not to allow localities to put additional deployment roadblocks in place on the basis of patently overbroad interpretations of the term ‘concealment elements,’” states American Tower.
When there are differences of opinion between a local government and an applicant on whether a requested modification meets the “defeat concealment” criteria, an applicant is effectively precluded from using Section 6409, according to Crown. “An applicant must choose either to abandon its modification, leave its fate to the courts in litigation, or to follow the jurisdiction’s often lengthy discretionary approval process. As the modifications are often necessary for coverage or to upgrade or replace equipment, the applicant has no option but to go through full zoning processes, which results in a long process with substantial additional costs,” states the towerco.
Crown would like the FCC to further define “equipment cabinet.” There is no definition in the 6409 Rules. The towerco explains: “As a result, multiple jurisdictions have taken the unreasonable position that certain small transmission equipment mounted on a tower, such as remote radio units, constitute ‘equipment cabinets.’”
“Multiple applicants have been forced into a discretionary conditional use permit process based on excessive equipment cabinets even when the scope of work does not actually include the addition of any actual equipment cabinets,” Crown explains. The company agrees with WIA that the Commission should clarify that unrelated blight or other violations on an owner’s property may not impact or delay the processing of an EFR. A city in Maryland refused to allow any permits to be obtained for EFRs because, entirely unrelated to the tower site, excavation and clearing activities had been conducted by a property owner without proper permits, according to the towerco.
By Leslie Stimson, Inside Towers Washington Bureau Chief
October 31, 2019