No substantial change.
Local and state government agencies have to say yes to any request for “collocation, removal, or replacement of transmission equipment on an existing wireless tower or base station,” so long as it doesn’t involve a substantial change to the existing structure’s dimensions. That’s what last year’s Middle Class Tax Relief and Job Creation Act required. Now, the FCC has issued guidance that tries to come up with practical rules to apply it.
Drawing on language from a couple of past rulings, the FCC says that…
- Requests must be granted. Local and state government agencies can tell applicants to fill out a form, but the only legal answer is “yes”.
- This mandatory yes has to be given within ninety days.
- The definition of a substantial change is the same as now being used in national historic preservation reviews.
That standard says that a change is not substantial if it doesn’t add more than 10% to the height of the tower or extend attachments out more than 20 feet to the side or involve the construction of a certain number of equipment cabinets or shelters.
The rules apply to any wireless installation, including distributed antenna systems and small cells. Although the guidance doesn’t explicitly say that unlicensed facilities get the same treatment, it does to go to some trouble to say that it applies to “any ‘wireless’ tower or base station.”
On the other hand, federal environmental and historical preservation rules still apply. That muddies the waters a bit. Local governments are still challenging the FCC’s authority to implement a “shot clock” for new cellular facilities. Expect this federal preemption to end up in court too.