Our attorneys contribute to local and regional publications, conferences and training forums. Our quarterly newsletter Gov-Law Connection updates on important cases, statutes, rules and other matters germane to the legal needs of the Northwest’s local governments.
The recent adoption of a new federal law, HR 3630, impacts local government restrictions on siting of wireless telecommunications facilities. Under Section 332(c)(7) of the Telecommunications Act, local governments have broad authority to control the siting of cellular and wireless towers, antennas, and other related facilities. HR 3630 impacts local government zoning restrictions for such facilities. Specifically, HR 3630 § 4225 provides:
“Notwithstanding Section 704 of the Telecommunications Act of 1996 or any other provision of law, 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.”
An “eligible facilities request” is any modification request that "involves" collocation of new transmission equipment, or removal or replacement of existing transmission equipment. Basic terms in the legislation, including "wireless tower" and "substantially change," are undefined and will ultimately be defined by the courts or by the Federal Communications Commission (FCC).
Some in the telecommunications field are predicting that several tower companies will respond aggressively to this new law; some companies may even go so far as to claim that local governments must approve pending collocation applications unless the expansion significantly adds to the height or width of a facility. However, it is important to note that the new federal law does not prevent a locality from reviewing and making decisions regarding proposed collocation. There are significant ambiguities in the new law that weaken claims that a locality "must act" on every collocation application.
Having said that, we should not expect interpretation of the new law in the immediate future. For this reason, cities and counties should do two things in the meantime: (1) review local requirements for facility collocations for consistency with the new “substantial change in physical dimension” standard, and (2) inform elected officials and applicable boards and committees on this law so that any decisions granting or denying collocation are consistent with HR 3630.
Stay tuned for updates regarding interpretation and implementation of this law, as well as any information from the FCC on these changes.
On January 23, 2012, the Fifth Circuit Court of Appeals affirmed the FCC's "shot clock" order, but limited its effect. The order allows providers to file suit in the event that a municipality takes longer than 90 - 150 days to act on cell tower zoning requests. The court said if a municipality has a reasonable excuse for exceeding the shot clock, then the presumption that it acted improperly does not apply, and the courts are able to independently examine the facts, and make a decision as to whether taking more time was actually reasonable.
This is certainly a good case for municipalities. However, it must be noted that the Ninth Circuit has not yet ruled on this matter. We will continue to monitor developments on this issue and provide updates accordingly.
Government entities are often approached by wireless communication companies searching for a site to build communication facilities. Towards that end, below are some issues to keep in mind during cell tower lease negotiations. 1. Term – Many wireless companies are looking for long term leases that average about 25 years. Typically, this is in the form of 4 five year terms with automatic renewal clauses with little to no control on the part of the Landowner in terminating the lease. A better approach is to negotiate a 10-15 year lease with an option to terminate after the first or second extension term.
2. Rent Escalation – Some companies might suggest a term escalation (i.e. 5% increase every 5 years, etc). The better option is to negotiate a yearly rent increase around 3%.
3. Co-Location – Landowners should ensure there are lease provisions allowing for additional rent if other carriers co-locate (i.e. install antennas) on the site. This additional rent can be in the form of co-location fees or ground space rental for the equipment required to co-locate.
4. Equipment – Landowners should also require exact drawings of the equipment allowed on the site. Any additional equipment should require written consent from the landowner. This is particularly important for governmental entities who are concerned with site aesthetics.
5. Bankruptcy Affirmation Clauses – It is also prudent for landowners to require a bankruptcy affirmation clause, particularly when renting to smaller, start-up carriers. These clauses ensure that when a wireless company files for bankruptcy they are required to affirm the lease. This offers some protection if the company abandons the site in the event of a bankruptcy.
6. Easements – Carriers might ask for easements to access or build on the property. Instead of granting easements, if possible, allow a right of access or license to access the property.
7. Design – Encourage the carrier to use more aesthetically pleasing designs and retain final design approval. The more integrated the design is with the existing structure or site, the better.
8. Location – Remember, the carrier has chosen this site for a reason - because it is advantageous for them and there is a need for coverage. Do not hesitate to negotiate with the carrier for higher rents! Yearly rents can run from $700-$2000 a month.