New requirements for local government regulation of wireless communication
The Federal Communication Commission issued new rules on regulation of wireless communication facilities. The rules continue to restrict local government’s ability to regulate wireless antenna and tower placement.
February 18, 2015 - Author: Kurt H. Schindler, Michigan State University Extension
In 2012, the United States Congress passed a law that says “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.”
Such limits on local authority exist in the Federal Telecommunications Act of 1996 (FTA) and new limitations were added at the start of 2012 and more limitations at the start of 2013. Many missed the new restrictions added to the FTA because some of the broadband and wireless legislation was buried in the Middle Class Tax Relief and Job Creation Act of 2012 (Spectrum Act) (also known as the federal sequestration budget cuts act [sequestration act]) – in Title VI –Public Safety Communications and Electromagnetic Spectrum Auctions; Subtitle D Spectrum Auction Authority; Section 6409 Wireless Facilities Deployment. Also, the Michigan Zoning Enabling Act was amended by PA 143 of 2012 to add a section 514 on wireless communications, which also limits local government regulation of such facilities. The state law requires most applications to be handled as permitted uses, but in some cases may be special uses – with a cap on application fees, deadlines for actions, and other matters.
A result of the passage of the FTA and Spectrum Act was confusion over the many ambiguities found in Congress’ action. For Michigan, an attempt was made to clarify that with the publication of Land Use Series “Limits and parameters on local and state regulation of wireless communication,” September 13, 2013 by Michigan State University Extension.
In an attempt to clarify the ambiguities of Section 6409(a) of the Spectrum Act, the Federal Communications Commission (FCC) issued a new rule of interpretation located in 47 C.F.R. Part 1 and Part 17 of the Federal Communications Commission Report and Order, October 17, 2014 (FCC14-153), Appendix B. The 155-page rule effect 90 days from that date, January 19, 2015. The new rule lays out several key definitions, most of which were written in a way that favors the wireless industry and limits local government authority. This flyer is an update of Land Use Series “Limits and parameters on local and state regulation of wireless communication,” (2013) and will review 1. the FTA, 2. the Spectrum Act, 3. the 2014 FCC ruling and 4. the Michigan statutory amendment.
MSU Extension just completed updating the above flyer, and that updated flyer is now available. Also, MSU Extension will offer a webinar on this topic, as part of the Citizen Planner continuing education webinar series for 2015.
In the meantime, here is what local governments should be doing. This topic now has federal code, the 2014 FCC ruling, court rulings, and state statute each providing ground rules, and sometimes contradicting each other. At the very minimum review your zoning (or other ordinances) to make sure it does not contravene these points:
- The ordinance includes “wireless communication” wireless, broadband, licensed or unlicensed, terrestrial or satellite, including commercial mobile, private mobile, broadcast, and public safety services, as well as fixed wireless services such as microwave backhaul or fixed broadband, and other such services.
- The ordinance does not require any documentation beyond what is needed to determine the proposed construction is covered under the Spectrum Act (section 6409(a)). Michigan statute allows requiring a site plan, map of the property.
- The ordinance does not require a showing of need for the modification.
- No discrimination between different businesses, providers of wireless services.
- The ultimate effect of local and state regulation cannot result in prohibiting the ability of a business, or businesses, to provide personal wireless services to an area.
- Collocated facilities on a structure that complies with existing zoning and does not increase height more than 20 feet or 10 percent, whichever is greater and other details, are handled as permitted uses.
- Collocated facilities on a structure that complies with existing zoning and does increase height more than 20 feet or 10 percent, whichever is greater and other details, are handled as special use permit type one (see updated flyer). Federal Guidance may not allow approval by special use permit, conditions, or standards.
- New facilities are handled as special use permit type two (see updated flyer). Federal Guidance may not allow approval by special use permit, conditions, or standards.
- Permit fees do not exceed actual costs or $1,000, whichever is less.
- Decisions are acted upon within specified deadlines
- Federal requirement of 30 days to notify an application is incomplete. Michigan requirement of 14 days to notify an application is incomplete.
- Federal requirement of 90 days for a decision on a collocation on an existing structure (e.g., tower). Michigan requirement of 60 days for a decision on a collocation on an existing structure (e.g., tower).
- Federal requirement of 150 days for a decision on a new facility. Michigan requirement of 90 days for a decision on a new facility.
- Decisions are provided in writing and supported by substantial evidence in writing (if the denial and reasons are not in the same document, both must be issued at the same time).
- Conditions of approval may only be required if directly related to zoning, another ordinance, state or federal law. Federal Guidance may not allow approval by special use permit, conditions, or standards.
- Findings of fact cannot include health impacts/concerns of radio frequency emissions if such emissions comply with FCC regulations on emissions.
- Findings of fact cannot include concerns about property values of nearby land unless documented by expert testimony and study done specifically for that location (e.g., qualified land appraiser or mortgage banker’s expert testimony).
- Terminology used in a local ordinance is consistent with how words are defined and used by the FCC, specifically in the Spectrum Act, the 2014 FCC Ruling), and Michigan Statute definitions.
- Base station (Federal)
- Collocate (Michigan)
- Collocation (Federal)
- Eligible facilities request (Federal)
- Equipment compound (Michigan)
- Existing (Federal)
- Replacement of transmission equipment (Federal)
- Shall approve (Federal)
- Substantial change (Federal)
- Transmission equipment (Federal)
- Wireless communications equipment (Michigan)
- Wireless communication support structure (Michigan)
- Wireless tower (Federal)
- Cannot regulate Michigan State Police radio communication systems.
For more detail and explanation, read the updated MSU Extension Land Use Series pamphlet.