Model Ordinances for New Wireless Antenna Facility Siting Regulations

Cities and counties need to revisit their wireless antenna facility siting regulations to bring them up-to-date with the FCC’s October 2014 Acceleration of Broadband Deployment Order, which includes final rules implementing Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 (47 U.S.C. § 1455(a)). (The wireless communications provisions were inserted into a much larger piece of congressional legislation that had little to do with wireless telecommunications issues.) The FCC has encouraged the industry and local government organizations to ease the siting review process by developing a model ordinance and providing information to assist local governments in accomplishing that goal.

The regulatory changes were enacted at the request of the telecommunications industry to ease local government regulations that, in the industry’s opinion, unduly delayed the siting approval process. These changes primarily affect modifications to existing wireless antenna facilities – typically colocations on existing facilities. The crucial wording from the federal legislation reads:

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.

Interpreting exactly what the above language means was the FCC’s primary task. As stated in the FCC order:

Section 6409(a) includes a number of undefined terms, however, that bear directly on how the provision applies to infrastructure deployments, and the record confirms that there are substantial disputes on a wide range of interpretive issues under the provision. We accordingly adopt rules that clarify many of these terms and enforce their requirements, thus advancing Congress’s goal of facilitating rapid deployment.

The FCC's interpretation of Section 6409(a) has, however, caused controversy, and we have heard that a coalition of local governments is being assembled nationally for the purpose of challenging the FCC rules as being in conflict with federal law. We'll keep an eye on that.

Meanwhile, to aid in the implementation of Section 6409(a) and the FCC regulations, a consortium that included PCIA (a wireless telecom infrastructure association), the National League of Cities (NLC) and the National Association of Counties (NaCO) developed a model ordinance and implementation checklist. The Kenyon Disend PLLC law firm in Issaquah has also released a model ordinance to their municipal clients and has graciously made it available for other local governments to use. NLC has provided a detailed summary of the provisions of the new regulations with the greatest impact on local governments.

We encourage Washington local governments to review these documents and work with their legal counsel and planning staff to ensure that their regulations are consistent with the FCC regulations. The new regulations go into effect in early April, so you should not delay starting your update process. Local governments will need to act on any complete application for wireless facilities modifications meeting the federal requirements within 60 days, or the application will be deemed automatically granted.