The FCC’s new Section 6409 Rules go into effect soon
In November 2014, we discussed the Federal Communications Commission’s adoption of new rules streamlining the local land use and regulatory approvals process. The FCC’s ruling has now been officially published and will soon take effect. The bulk of the new FCC rules regarding Section 6409 will go into effect on April 8th, however, the provisions governing the tolling of the shot clock and the ability to move forward using the “deemed granted” method of approval will have to wait until the White House Office of Management and Budget (OMB) reviews and approves, and subsequent FCC notice process is completed. Provisions of the new FCC rules not related to Section 6409 become effective on February 9th. Anyone seeking to obtain local land use and regulatory approvals affected by the new rulemaking should be aware of these effective dates.
A summary of the key 10 takeaways from the FCC rulemaking is below.
To determine whether your project may fall under the streamlined zoning approval process of Section 6409, these 6409 definitions and substantial change analysis chart may help you navigate through the requirements.
TOP TEN REASONS THE NEW FCC WIRELESS RULES MATTER
- Section 6409 can apply to a wide range of projects, including antenna modifications, fiber adds, generators adds, collocations on an existing wireless facility, the placement of the first wireless facility on an existing building or other structure – even tower enhancements.
- A jurisdiction reviewing a Section 6409 application can only ask for information reasonable designed to establish whether the application qualifies for 6409 treatment.
- Section 6409 applications have a new, shorter shot clock – 60 days.
- When a jurisdiction fails to meet the 6409 shot clock, the application is deemed approved.
- The shot clock begins to run from the submission of an application and the jurisdiction has 30 days to tell you what’s missing from your application and justify why that’s needed.
- Upon resubmission, the jurisdiction has 10 days to tell you if you didn’t provide all the previously requested information and it cannot ask for anything new.
- The shot clock is not paused by a moratorium on zoning review.
- DAS and Small Cell installations may qualify for the protections afforded to macrosites under Sections 332 and 6409.
- Qualifying DAS and Small Cell installations are exempt from NEPA and Section 106 assessments.
- Qualifying COWs, COLTs, and other temporary tower facilities are exempt from the 30 day ASR public notice requirement.
You Can’t Do Zoning That Way
by Sean W. Maddox
Md7 Land Use Department
The first time I was told that zoning couldn’t be done remotely was on my first day in the Land Use department at Md7. At the time, my supervisor was explaining that conventional industry wisdom suggested there was a need for in-market zoning and permitting services, but that she (and Md7) had a differing view. So, we got started on a project in New York and New Jersey, while working from our San Diego office. Then some projects came in in the Southeast, then the Midwest, then the Northwest too. Within months, I had pulled zoning and permitting approvals in several states I never even stepped foot in.
I heard that zoning couldn’t be done remotely again the first time I went to a telecom networking event. At that event I heard it several times, actually; first from a recruiter, and then a competitor. Still relatively new to the industry, I more or less let it pass. If these industry veterans were sure that an in-market presence was necessary, then I figured they must have their reasons. Arguing otherwise seemed like a fruitless endeavor at the time, but I took note of their opinions, even if in practice I knew differently. Plus my supervisor had said that we may need to handle a zoning approval in person if a Public Hearing was required, so I thought that must be what these other folks were talking about.
After a couple years and many more networking events, I heard again that zoning couldn’t be done remotely. This time, it was from someone in the industry with whom I’d developed a working relationship, and they were rather insistent that it just couldn’t work the Md7 way. Then I explained how we have worked in 36 states, in over 3,500 jurisdictions, and had success in every one. I also detailed what is really a simple explanation for our success. We have a team of lawyers who are very comfortable reading code online, scoping out the process, and engaging planning and building staff over the phone. FedEx and UPS over night to just about anywhere in the U.S., with e-mail notifications to let you know the package sent to a jurisdiction has arrived in real-time. And we have found, again and again, that busy city employees very much appreciate receiving professional and complete packages, and have no problem processing them and sending the permits back in the pre-paid envelopes we include. If needed, we always have the option to have our contractor drop off, pick up, or sign for the permit in question. It’s been incredibly simple, efficient, and successful. By the end of our talk, I was pretty certain that this conversation had swayed another convert to remote zoning, and I would no longer hear from that person that it couldn’t be done.
As many times as I’ve heard that zoning can’t be done remotely, there is notably one group of folks from whom I’ve never heard it… the planners, building officials, and city staff in jurisdictions across the country.
Did you know that Md7 does Zoning & permitting?
Zoning and Permitting Highlights
Md7 is developing new best practices in the field of zoning and permitting. Our team of zoning and permitting professionals leverages the experience of former planners, construction project managers, and attorneys to reduce overall project cycle times and get our clients on air faster.
- Performed Zoning and/or Permit (building, electrical, mechanical, and floodplain) services in 36 states including California, Florida, New Jersey and New York;
- Reviewed Zoning and Permit requirements for over 9,000 sites;
- Services include preparation of Airspace Studies, Joint Spectrum Analyses, and customized reports tailored to the jurisdictional requirements providing scope of work detail.
COST AND CYCLE-TIME REDUCTIONS
- On a recent client project involving over one thousand antenna modifications across six states nationwide we reduced cycle times on 60% of the sites:
- Jurisdictions forecasted 30 days for Admin Zoning Approval – in many cases, actual approvals were obtained in half that time;
- Jurisdictions forecasted 30 business days for Building Permits – in most cases, Md7 had permits issued in 14 business days or less;
- Persuaded jurisdictions to reclassify site modification projects originally designated as needing Public Hearings to Administrative Review, resulting in zoning completion dates 90 days sooner than forecasted by carrier.
WHAT HELPS SET US APART
We maintain a growing database of best practices, contacts, forms, code provisions, etc., for all jurisdictions (currently, over 3,500) where Md7 has performed services.
STATES WHERE MD7 HAS PERFORMED ZONING AND PERMIT SERVICES
Zoning Forecast for 2015
by Cynthia Hanson
Project Manager for Land Use
The wireless industry has long lamented the bureaucracy and delays in the land use approval process for wireless facilities. Zoning approvals are handled at the local municipal and state level. Nevertheless, Congress and the Federal Communications Commission have stepped in and issued various carrier-friendly protections. In 1996, Congress required state and local governments to act on wireless facility siting applications within a reasonable period of time. In 2009, the Federal Communications Commission clarified that a reasonable response time would generally be 90 days for modifications, and 150 days for new sites. These response times became known as the shot clock.
In 2012, Congress passed the Spectrum Act (also known as Section 6409), which was intended to further streamline the approval process for qualifying modification and collocation projects. This Act provides that a jurisdiction must approve an “eligible facilities request” for the modification of an “existing” wireless tower or base station that does not “substantially change” the physical dimensions of the tower or base station. Despite interpretive guidance from the Federal Communications Commission in January 2013, the industry and local jurisdictions disagreed on when and how the streamlined process should apply. Much of the debate centered on the terms “existing” and “substantial change.”
The year of 2015 is shaping up to be an interesting year for telecom zoning. So far this year, the FCC issued new rules and the U.S. Supreme Court published an opinion, both addressing wireless facility deployment timeframes. The FCC published new rules providing detailed clarification on when the streamlined zoning approval process under the Spectrum Act would be triggered among other provisions regarding categorical exclusions, DAS and Small Cells and temporary towers. The new FCC rules also provide for a new, shorter shot clock (60 days) for approvals falling under the Spectrum Act. If a jurisdiction fails to meet this deadline, approval for the deployment is deemed granted by the local jurisdiction.
In T-Mobile South, LLC v. City of Roswell, the US Supreme Court ruled that the detailed reasons for a jurisdiction’s denial of a zoning application must also be in writing and be contemporaneously available to the applicant. Where the city issued its detailed reasons 26 days after the date of the written denial and only 4 days before expiration of the carrier’s time to appeal, the city failed to meet its obligations.
The bulk of the new FCC rules regarding Section 6409 will go into effect on April 8th, however, the provisions governing the tolling of the shot clock and the ability to move forward using the “deemed granted” method of approval will have to wait until the White House Office of Management and Budget (OMB) reviews and approves, and subsequent FCC notice process is completed. Provisions of the new FCC rules not related to Section 6409 become effective on February 9th. The FCC’s rationale in delaying the effective date of the 6409 provisions was to provide time for jurisdictions and carriers to alter their processes to ensure compliance with the provisions of these new rules. During the 90 days from publication in the Federal Register to the effective date of the 6409 provisions, jurisdictions can be expected to pass new zoning laws to bring their local codes in compliance with the FCC rules. Application processes and checklists will be revised to guide planning staff through the expedited approval process and ensure that the correct shot clock is used. Carriers will create new processes to govern their application submissions and application tracking post-submittal. The carriers will develop new systems to carefully track the shot clock time frame and to accurately account for any tolling of this time period. New protocols will be issued to the carriers’ engineering firms regarding the detail required in site plans with the goal of showing jurisdictions that the proposed deployment meets the “no substantial change” test.
The new FCC rules leave matters of aesthetics to the local jurisdictions, but require an application denial based on aesthetics to be in writing and contain sufficient detail for the applicant to address the objections. Expect litigation to continue over issues surrounding the aesthetics of wireless facilities. New litigation also can be expected to arise from the enforcement of the “deemed granted” provision by the carriers and the tolling of the shot clock by the jurisdictions. While the new FCC rules provide welcome guidance as to key terms of the Spectrum Act and give a roadmap to expedite the approval of qualifying wireless facility deployments, there remain some ambiguities in these new rules. As can be expected, both the carrier and the jurisdiction will interpret these ambiguities in a light most favorable to their position.