Earth Matters- October 2012: New Legislation Should Promote Cell Tower Improvements

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Effective February 22, 2012, Congress passed new legislation that precludes state and local governments from denying, and directs them to approve, modifications to existing wireless towers or base stations that do not substantially change the physical dimensions of the tower or base station. Section 6409(a)(2) of the Middle Class Tax Relief and Job Creation Act of 2012 covers requests for modification that involve: (A) collocation of new transmission equipment; (B) removal of transmission equipment; or (C) replacement of transmission equipment.

This legislation is a step forward in facilitating the deployment of wireless telecommunications services by ensuring state and/or local approval of modifications that do not effect a substantial change to the tower or base station. By enacting Section 6409, Congress preempted nearly all local and state authority over cell site modifications.

Beyond any direct challenges to the legality of Section 6409, the success of the provision in streamlining deployment of wireless services will depend on how courts interpret the numerous terms and clauses in the new law. Section 6409(a) does not override local zoning authority for new builds or if modifications to existing sites substantially change the dimensions of the tower or base station. Section 6409(a) also does not appear to preclude state or local authorities from creating some delay for covered modifications, by requiring an application and permit process for administrative review, even if approval of the modification request is still mandatory.

Section 6409 is a key change in federal telecommunications law. How broadly the law will be interpreted to preempt state and local governments from interfering with cell site modifications remains to be seen.

Questions about this new legislation can be directed to Morgan G. Graham, Partner in the Phillips Lytle Environment and Energy Practices, at (716) 847-7070 or mgraham@phillipslytle.com.