LA Lawyer Article: Tower Building
Wireless communication has become one of the most important sectors of the national economy.1 Many U.S. households have given up their landline telephone entirely in favor of reliance on wireless services.2
Businesses have also greatly increased their demand for wireless services as retailers use mobile devices to scan purchases and documents to complete sales transactions. The connected car of the future is anticipated to allow drivers to manage e-mail, access the Internet, and program television recordings by voice command. Healthcare is going wireless as well, as doctors and hospitals are increasingly able to monitor patients remotely. This augmented demand has resulted in a need for the wireless industry to expand, modify and replace its wireless network infrastructure. Consequently, service providers are constantly required to obtain local governmental approvals for new wireless facility construction as well as modifications to existing wireless infrastructure.
Each wireless facility (commonly referred to as a cell site) can only provide service within a given area (the facility’s coverage) and to a certain number of users (capacity). Therefore, wireless carriers are continually monitoring their capacity to identify areas where new facilities may be needed. Customer complaints of dropped calls and failed calls are part of this process. The geographic area in which a new facility will be considered, known as a search ring, is literally represented by a circle, or ring, on a map. The carriers then select potential locations (candidates) within the search ring for consideration. For each candidate, computer modeling tests forecasting the coverage for the proposed site are prepared in order to help the carrier assess how the proposed candidate will benefit the overall network. This is often followed by a radio frequency (RF) testing in the field that helps confirm the actual signal strength predicted by the computer modeling. These tests are submitted to the municipality.
There are various types of wireless facilities. The most commonly recognized facility is the tower, which typically comes in three designs: the monopole, the self-supporting lattice tower, and the guyed lattice tower. In urban areas, monopoles are quite common. This type has a single pylon or pole to which various antennae are mounted. Monopoles are often camouflaged as trees, such as a palm (monopalm), pine (monopine), or eucalyptus (monoeuc). Monopole facilities typically range from 50 to 200 feet in height. The lattice tower can be much taller and is customarily installed in rural areas where coverage must be much broader. Generally, the taller the tower, the broader the coverage area.
In addition to tower facilities, cell sites can also be mounted to various existing structures, including light poles, water tanks, building exteriors, and rooftops. The placement of a cell site on a existing structure is know as a collocation. Collocations may be camouflaged by faux building facades or even an extension of the building, such as a faux cupola or clock tour. A camouflaged site is referred to as a stealth facility, and the creation of a camouflaged cell site design is called stealthing. The creativity of a stealth facades is endless and may range from faux boulders to faux cacti, even a faux bison. While community members and local property owners may prefer stealthed sites, they come with their own set of complications. At times, community opposition to a cell site may force a carrier to consider unique stealth design solutions that may be economically and logistically impractical for the carrier. For example, one local community’s efforts to require a cell site design of a faux angel proved unsuccessful due to space limitations. This design would actually have negatively impacted existing property use.3 Moreover, communities that seek to limit the visual effects of a cell site by requiring stealthing should be aware that stealthed sites may provide reduced coverage levels and limit collocation opportunities, which eventually may result in the need for additional cell sites in the community.4
Collocation may also refer to the practice of subleasing space at an existing cell site, usually a tower. Collocations involve the negotiation of RF interference confers among the carriers, minimum space separation requirements of the various kinds of equipment and structural considerations arising from the installation of multiple pieces of hardware on a single-tower structure, which may require reinforcement of the tower. While an existing tower may be a potential candidate for collocation, there may be technological, legal, and business barriers. The available space at the tower may be at the wrong height, the sublease terms may be too risky, or the rent may be too high. While a municipality may not be able to force a carrier to collocate, a carrier may nevertheless have an incentive to consider collocation for various reasons, including a good working relationship with the tower owner of the potential for an expedited land use process made available under a new federal law.5
The Approval Process
Although wireless communication siting, much like the zoning for any real estate development, is handled at the municipal level, federal and state laws play some part in the approval process. Almost two decades ago, Congress recognized the benefits to American business and consumers resulting from streamlined wireless siting.6
The Telecommunications Act of 19967 confirms that state and local governments maintain authority over the placement, construction, and modification of wireless facilities,8 but it also provides certain protections to service providers. For example, municipalities can not unreasonably discriminate among carriers providing similar services9 or deny an application because another carrier serves the area.10 Additionally, municipalities cannot act in a manner that prohibits or has the effect of prohibiting wireless services.11 Municipalities reviewing zoning applications for wireless facilities also must act within a reasonable time after the request is submitted.12 Under what are referred to as the shot clock requirements, reasonable response times have been defined as 90 days for site modification and collocations13 and 150 days for a new cell site,14 unless otherwise agreed between parties.15 Municipalities may not deny or regulate wireless facilities due to environmental concerns arising from RF emissions16 so long as the equipment complies with FCC regulations.17 Finally, any land use denial must be in writing and supported by substantial evidence within the written record.18
Municipal regulations governing the land use approval process for wireless facilities differ widely. Whereas some regulations allow wireless communication facilities in certain districts as a matter of right, others require variances, and still others impost height restrictions and setback requirements or visual screening of some type, including landscaping, or may treat wireless facilities as a special use or require site plan approval.19 Regardless of the applicable process, the carrier should confer with the jurisdiction early in the application process to discuss the proposed project and confirm the requirements. Many jurisdictions will agree to a reapplication meeting at which both the applicant (or its representative) and a planning official meet and confer regarding the design and location of the proposed facility. This meeting allows the applicant to get important feedback from the municipality and to make any requested changes prior to submitting the application.
The carrier should expect to provide the jurisdiction with information regarding the site selection process, such as maps identifying the search ring, the location of the proposed candidate, and the proposed coverage area. The carrier also should provide information on the types of services and the proposed facility equipment and design, including identification of the applicant and property owner, as well as their respective representatives; a description of the property, including geographic features and vegetation; site plan drawings shoeing the dimensions of facility components; the type of infrastructure proposed (monopole versus collocation), including any foundation or other support structure; the number, type, and dimensions of antennae; tower lighting as may be required by federal law;20 and the dimensions and construction materials of the equipment. To this end, standard submission requirements include construction drawings signed and sealed by a state-licensed engineer showing in detail the ground layout, the tower, equipment dimensions, and electrical details, along with an engineer’s structural analysis attesting to the ability of the proposed facility to handle the equipment load.
As part of the approvals process, the carrier may also be required to establish, among other things, that the height of the facility is the lowest technically feasible to accomplish the carrier goals and that collocation on another tower, building, or other structure is not a viable option. In addition, the carrier may have to show that the site will have emergency backup power sources in the event of a power outage at the property; that the site designs minimizes visual and other impacts of the site, including by stealth design or landscaping; and a detailed analysis of why an alternative candidate was not selected. A carrier may also have to demonstrate a viable plan for the removal of the facility and respiration of the site upon discontinuance of use.
Because each jurisdiction may have its own unique process, it is difficult to list the possible additional steps that may be required of the carrier in order to complete the land use approval process, but as one example, the carrier may need to subdivide the land so that the communication facility is located on a separate parcel. As another example, some municipalities require carriers to regularly submit construction plans so that the municipality can have some general understanding of potential future site applications.21 many municipalities make the building permit process an integral part of the zoning approval process with the building permit approval contingent upon the zoning approval or vice versa.22
The public hearing is a sensitive component of the land use approval process in jurisdiction where it is required. These hearings may attract community interest as concerned citizens sometimes express a preference that the facility be located “not in my back yard.” Carriers must develop a good rapport with the community in order to address their concerns. The local zoning department staff can therefore provide valuable insight into local community responses to previous sitting applications, which helps the prospective carrier identify issues that may arise in the public hearing process.
An environmental impact report must be prepared, adverse environmental impacts of the proposed facility must be disclosed to the public, and feasible environmental mitigation measures must be determined and adopted. Additionally, a Phase I Environmental Site Assessment report must be prepared disclosing any reconstruction recognized environmental concerns at the site and plan for addressing these concerns. Implementation of that plan and any subsequent remediation efforts are also disclosed to the municipality.25
Similarly, a National Environmental Policy Act review must be conducted to determine whether the site is located in a wilderness area, wildlife preserve, floodplain, wetland, or area with high intensity lights; whether there are threatened or endangered species; whether the site is located within view of historic properties or within designated historic districts; whiter the site is located on a Native American religious site; and whether the site will be compliant with certain RF emission-related requirements. 26
All wireless facilities must be evaluated to determine whether the site will be located within an area that is registered, or may be registered for listing in the National Register of Historic Places. Placement of wireless facilities within these environmentally sensitive areas will require FCC approval.27
For facilities located on the California coast, the applicant must determine whether a local coastal plan applies in order to ensure that the facility will meet the plan requirements. For other coastal areas, the applicant must work with the California Coastal Commission to ensure that the facility is consistent with Costal Commission requirements.28
Notwithstanding the ubiquitous nature of wireless facilities and the federal imposition of timely review requirements under the shot clock, carriers have reported persistent delays in the land use approval process. Based upon information collected by CTIA,29 wireless service facility siting application have waited for approval anywhere from one to three years, even with respect to collocations on existing towers and the simple replacement of existing equipment.30 Processing time for applications in several California communities has been reported to range from 28 to 36 months.31The California Wireless Association has taken an active role in working with local jurisdictions throughout the state to reduce the length of time that applications are in process.
As part of the Middle Class Tax Relief and Job Act of 2012, recognition of the vital importance of a streamlined approval process resulted in the passage of important wireless facility deployment legislation. With respect to the placement of new equipment on an existing facility, or the sublease of space at an existing facility by a new carrier to the site (i.e., collocation), the federal act provides that local governments must approve such land use application so long as the changes will not substantially change the physical dimensions of the tower facility.32 This effectively preempts zoning review processes and conditional approvals. The FCC has confirmed that these site modifications may be handled through an application for administrative approval.33 The authority of the FCC to promulgate and enforces these regulations was recently upheld by the U.S. Supreme Court in Arlington v. FCC.34 Accordingly, it would seem that many local wireless ordinances may require rewriting to incorporate these new streamlined processes. In September 2013, Los Angeles instituted a new zoning process to implement the act’s procedures by allowing certain wireless facility modifications to be handled by administrative sign-off and administrative plan approval.35 The states of Michigan, Missouri, and New Jersey have enacted similar provisions.36
As wireless technology and demand continue to advance, the land use approval process has adapted as well. From the jurisdictional standpoint, local authorities have begun to accept land use applications via e-mail. These submissions are easily tracked, saved, catalogued, and reviewed. Additionally, electronic materials are more easily forwarded to all necessary parties. This is a faster, greener, and more cost-effective approach.
From a technology standpoint, wireless networks are adapting as well. The traditional wireless network model built on large, outdoor wireless facilities (macrosites) has evolved to include smaller wireless facilities known as microcells, small cells, and Distributed Antenna Systems. The advantage of these smaller cell sites is that they provide continuous coverage to a select group of users located in close proximity to the site. Because these small cells are often located on private property or outdoors, but within the public right-of-way, they often require no zoning approvals. Small cells thus provide a benefit to both the community and the carrier by being visually unobtrusive and easily deployed.
The potential benefits from wireless devices and services are limitless. Therefore, expeditious wireless facility siting will continue to be an essential part of the conveniences we have come to expect in everyday life.
 Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review and to Preempt Under Section 253 State and Local Ordinances that Classify All Wireless Siting Proposals as Requiring a Variance, Declaratory Ruling, 24 FCC Rcd 13994, ¶5 (rel. Nov. 18, 2009), available at https://hraunfoss.gov/edocs public/attachmatch/FCC-09-99Al.pdf [hereinafter Petition].
 STEPHEN J. BLUMBERG & JULIAN V. LUKE, CENTERS FOR DISEASE CONTROL AND PROTECTION, WIRELESS SUBSTITUTION: EARLY RELEASE ESTIMATES FROM THE NATIONAL HEALTH INTERVIEW SURVEY, 1 (May 2010), available at http://www.cdc.gov/nchs/data/nhis/earlyrelease/wireiess201012.pdf.
 Verizon Clips the Wings of Proposed Glassell Park Angel, theeastsiderla.com (Oct. 14, 2011), available at http://www.theeastsideria.com/2011/10/verizon-clips-the-wings-of-proposed-glassell-park-angel.
 Wireless Facility Siting 101: A Resource for Local and State Planning Authorities, at 24, available at http://calwa.org/wp-content/uploads/2012/O1/PCIAWireless-Infrastructure-101-FINAL-6.pdf.
 The Middle Class Tax Relief and Job Creation Act of 2012 (Tax Act) provides that local governments must approve modifications of existing wireless facilities that would not result in a substantial change in the physical dimension of the site. See Pub. L. 112-96, § 6409,126 Stat. 156 (2012). For example, the addition of a limited number of antennas on an existing monopole by a new carrier subleasing space at the site may potentially qualify. See also Wireless Telecommunications Bureau Offers Guidance on Interpretation of Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, FCC Public Notice (Jan. 25,2013).
 Peter M. Degnan, et al., The Telecommunications Act of 1996: § 704 of the Act and Protections Afforded the Telecommunications Provider in the Facilities Siting Context, 3 MICH. TELECOMM. TECH. L. REV. 1, 3 (1997), available at http://www.mttlr.org/volthree/mclaren.pdf (citing H.R. Conf. Rep. No.104-458, at 113 (1996), as reprinted in 1996 U.S.C.C.A.N. 124).
 See, e.g., SANTA BARBARA COUNTY ARTICLE II COASTAL ZONING ORDINANCE §35-144 F, available at http://www.sbcountyplanning.org/permitting/ldpp/auth_reg/ordinances.cfm.
 Towers of a certain height or located within a certain proximity to airports must be reviewed by the FAA. Upon a determination by the FAA that the tower does not pose a danger to air traffic, the site must be registered with the FCC. The FCC, based on recommendations issued by the FAA, may require tower lights, paint, or other markings to ensure the tower is visible to aircraft.
 See, e.g., COUNTY OF SAN DIEGO ZONING ORDINANCE §§6980 et seq., available at http://www.sdcounty.ca.gov/pds/zoning/z6000.pdf.
 The CTIA is an international nonprofit organization representing the wireless communications industry whose members include wireless carriers and their suppliers, as well as providers and manufacturers of wireless data services and products. See http://www.ctia.org/aboutCTIA.
 Wireless Telecommunications Bureau Offers Guidance on Interpretation of Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, FCC Public Notice (Jan. 25, 2013), available at ftp://ftp.fcc.govlpublDaily_Releases/Daily_Business/120131db0128/DA-12-2047A1.txt.