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.