MEMORANDUM

To:

Managers, Administrators, Clerks, Attorneys, and Planners

From:

Kimberly S. Hibbard, General Counsel

Date:

September 15, 2013

Re:

City Authority to Regulate Wireless Telecommunications

HB 664 Cell Tower Deployment Act (S.L. 2013-185)

There has been a long-standing tension between the wireless industry, which seeks to
maximize capacity to provide cell and data services in a competitive environment and
therefore prefers an expedited, streamlined and predictable regulatory process, and
local governments, which seek to apply land use controls and processes that take into
account local conditions, aesthetics, public safety, comprehensive plans, and citizen
concerns. Although much of this dynamic has unfolded at the federal level, with
Congress, the Federal Communications Commission (FCC) and the courts playing key
roles, state legislatures are increasingly stepping into the debate to make state policy
decisions as to where the balance should lie.
During the 2013 session, the N.C. General Assembly did so, enacting HB 664 Cell
Tower Deployment Act (S.L. 2013-185). The legislation amends existing statutes to further
restrict the authority of local governments with regard to the siting of new wireless
structures and the collocation of wireless facilities on existing structures.
This memorandum provides an overview of federal law and a brief background on the
push for state legislation, followed by a summary of existing law and the major changes
contained in HB 664.
I.

Federal Law

The legal framework for the regulation of wireless telecommunications is a complex

mix of federal laws and administrative rules, state statutes, local ordinances, and case
law.

Pertinent federal law is found primarily in the Telecommunications Act of 1996. That
act generally preserves local government authority to regulate the placement,
construction, and modification of personal wireless service facilities. However, it
specifies that such regulation cannot prohibit or have the effect of prohibiting the
provision of personal wireless services and cannot unreasonably discriminate among
providers of functionally equivalent services. It requires that local governments act on
any request for authorization to place, construct, or modify personal wireless service
facilities within a reasonable time, taking into account the nature and scope of the
request. Decisions to deny requests must be in writing and supported by substantial
evidence in the written record. Further, it prohibits regulation on the basis of the
environmental effects of radio frequency emissions as long as the facility in question is
in compliance with the FCCs regulations concerning such emissions. 47 U.S.C.
332(c)(7).
In 2009, the FCC issued a declaratory ruling interpreting the reasonable time for
taking action on requests. This ruling, setting presumptive time limits on local
government review of applications, is widely known as the shot clock. Under the
FCC ruling, local governments have 90 days to render a decision regarding a collocation
on an existing cell tower and 150 days for all other types of applications. Litigation
challenging the FCCs authority to interpret the ambiguous language in the federal
statute was resolved earlier this year, with the U.S. Supreme Court ruling that the shot
clock interpretation is within the broad authority granted to the FCC to implement the
Telecommunications Act. City of Arlington, Texas v. Federal Communications Commission,
569 U.S. ___ (decided May 20, 2013).
Meanwhile, Congress amended the federal Telecommunications Act as a part of the
Middle Class Tax Relief and Job Creation Act of 2012. A key new provision expressly
limits local government authority to control the collocation of new facilities or the
removal or replacement of existing facilities on existing towers. Section 6409 (Wireless
Facilities Deployment) provides that 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 (emphasis added). Under the amendment, an eligible facilities request
is defined to mean any request for modification of an existing wireless tower or base
station that involves collocation of new transmission equipment, removal of
transmission equipment, or replacement of transmission equipment. The federal statute
did not provide a definition of what constitutes a modification or a substantial
change in physical dimensions. 47 U.S.C. 1455(a).
The FCC stepped in again to fill in the blanks on what constitutes a substantial change
in dimensions. See FCC Public Notice, DA 12-2047 (dated January 25, 2013). In its
guidance (not yet a rulemaking), the FCC suggested use of the test developed in the
Nationwide Collocation Agreement, an agreement created in the context of historic
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preservation issues. Under this test, a substantial change in physical dimensions would
occur if
(1) the proposed antenna would increase the existing height of the tower by
more than 10%, or by the height of one additional antenna array with
separation from the nearest existing antenna not to exceed twenty feet,
whichever is greater (may exceed these size limits if necessary to avoid
interference with existing antennas);
(2) the proposed antenna would involve the installation of more than the
standard number of new equipment cabinets for the technology involved,
not to exceed four, or more than one new equipment shelter;
(3) the proposed antenna would involve adding an appurtenance to the body
of the tower that would protrude from the edge of the tower more than
twenty feet, or more than the width of the tower structure at the level of the
appurtenance, whichever is greater (may exceed these size limits if
necessary to shelter the antenna from inclement weather or connect the
antenna to the tower via cable; OR
(4) the proposed antenna would involve excavation outside the current tower
site, defined as the current boundaries of the leased or owned property
surrounding the tower and any access or utility easements currently related
to the site.
The Middle Class Tax Relief and Job Creation Act also included provisions directing the
establishment of a nationwide public safety wireless broadband network. FirstNet, the
authority tasked with building the network, is to use existing infrastructure to the
maximum extent economically desirable, see 47 U.S.C. 1428, and it is anticipated that a
large increase in collocations will be necessary to accomplish this..
II.

State Law

While agency action and litigation were playing out at the federal level, the industry
turned to state legislatures to seek relief from local requirements and processes
perceived as roadblocks to deployment. In the 2007 session, the N.C. General Assembly
responded to industry frustration by enacting Part 3E of G.S. Chapter 160A, Article 19
(Wireless Telecommunications Facilities), and parallel provisions for counties in G.S.
Chapter 153A, Article 18. Those statutes generally set forth local government authority,
specified categories of collocations that are entitled to streamlined processing, and
established a state law shot clock for action on such collocations.
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The smartphone explosion occurred in the years after the 2007 state law was enacted
and has exponentially increased the demand for data transmission capacity. As a
result, the wireless industry sought amendments to state law this year. The industry
argued that further expediting local government approvals for collocations is necessary
to aid in the rapid deployment of mobile broadband infrastructure, both to facilitate the
national emergency communications network contemplated by the 2012 federal
amendment and to meet the publics growing demand for state-of-the-art wireless
services. Legislation was also pitched as a way to conform state law to federal, lifting
some of the confusion that might result from inconsistencies between the two.
The 2013 session was marked by a focus on regulatory reform as a way to remove
impediments to economic growth. The League advocated for a version of HB 664 that
would make only those changes necessary to conform to federal law. During a rapid
negotiation process, some improvements to early versions were achieved and several
proposed changes were scaled back. In the end, however, the legislation as enacted
goes beyond conformance to federal law and impacts city authority in significant ways,
reflecting the General Assemblys public policy decision to strike the balance in favor of
a reduced regulation.
III.

Summary of HB 664

Following are the major provisions of HB 664. A brief summary of the existing statute
is provided to give a better picture of what has changed.
a. General municipal authority
Existing statute. Unless expressly stated otherwise, cities may regulate wireless
facilities and structures based on land use, public safety, and zoning considerations,
including aesthetics, landscaping, structural design, setbacks, and fall zones, or state
and local building code requirements, consistent with the provisions of federal law.
Public safety does not include requirements relating to radio frequency emissions.
G.S. 160A-400.52(a).
New state law: The existing provisions setting forth the basic parameters of city
authority were moved to new GS 160A-400.51A. The new provision clarifies that
public safety is broadly defined to include, without limitation, federal, state, and local
safety regulations other than those relating to radio frequency emissions.
b. New wireless support structures
Existing statute. Applications for new support structures such as cell towers may only
be reviewed for compliance with public safety, land use, and zoning issues addressed in
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the citys regulations. The city can look at evidence as to whether existing structures
could be used for antenna placement instead of constructing a new tower, whether the
proposed height of the new tower is necessary to provide the designed service, and
whether residential, historic and scenic areas cannot be served from outside those areas.
Cities can also require applicants to evaluate whether collocation on an existing
structure is reasonably feasible. However, the city may not evaluate the applicants
business decisions about its designed service, customer demand, or quality of service to
or from particular areas. G.S. 160A-400.52(c). Decisions to approve or deny
applications must be made within a reasonable period of time consistent with the
issuance of other land-use permits. G.S. 160A-400.52(e).
New state law. Although the amended statute retains the language summarized above,
it further restricts the type of information that can be requested of the applicant. The
city may not require information about the specific need for a new wireless support
structure, including whether the service from the new structure is to add additional
wireless coverage or capacity, and may not require proprietary, confidential, or other
business information to justify the need for the new structure. G.S. 160A-400.52(c). It is
not entirely clear how cities can continue to evaluate all of the items in G.S. 160A400.52(c) in light of this prohibition. The additional prohibition may make it very
difficult for cities to gather substantial evidence to support the denial of an application
as required under federal law. The amended statute retains the reasonable period of
time for decisions, but note that this period should not exceed the 150 days allowed for
non-collocation applications under the federal shot clock.
c. Substantial modification of a wireless support structure
Existing statute. Existing law does not include the term substantial modification. It
differentiates between those collocations that are entitled to streamlined processing and
those that are not, but an increase in physical dimensions is only one of the criteria
considered in making that determination, and any amount of increase in height or
width can be a disqualifier.
New state law. HB 664 makes the approval procedures and limitations that are
applicable to new wireless support structures also applicable to a subset of collocations
that are considered substantial modifications. Substantial modification is defined in
the statute as the mounting of a wireless facility on a wireless support structure that
substantially changes the physical dimensions of the support structure. The definition
creates a presumption that a change meeting any of three listed criteria is a substantial
modification, but it leaves the door open for a city to demonstrate that other types of
changes constitute a substantial modification. G.S. 160A-400.51(7a).
Note that HB 664s definition of substantial modification is not the same as that
contained in the FCCs guidance outlined on page 2-3 above. The FCC guidance criteria
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(1) and (3) are included in the state statutory definition, while (2) and (4) are not. The
state law definition also includes an additional category of substantial modification
increasing the square footage of the existing equipment compound by more than 2,500
square feet. The overall effect of HB 664s definition is to create a much broader set of
collocations that will not meet the definition of substantial modification and will
therefore be entitled to streamlined processing rather than the same standards and
procedures as new wireless structures. It also raises the possibility that state law will be
inconsistent with federal law once the FCC completes a rulemaking to establish a
binding interpretation as to what constitutes a substantial change in physical
dimensions.
d. Mandatory approval of some requests
Existing statute. Existing state law does not mandate approval.
New state law. The amended law cites to the federal Middle Class Tax Relief and Job
Creation Act and provides that pursuant to that act a city may not deny and shall
approve any eligible facilities request. G.S. 160A-400.53(a). An eligible facilities
request is defined as a request for modification of an existing wireless tower or base
station that involves collocation of new transmission equipment or replacement of
transmission equipment but does not include a substantial modification. G.S. 160A400.51(4a).
This significant removal of local discretion generally tracks the amended federal law.
Note that the federal definition of an eligible facilities request includes removal of
equipment, an item not included in the state definition.
e. Streamlined processing and shot clock
Existing statute. Under existing law, two categories of collocations are entitled to
streamlined processing: (1) collocations where an additional wireless facility is within
the number of facilities previously approved for the support structure and meets all the
requirements and conditions of the original approval, and (2) collocations that do not
increase the overall dimensions of the tower, do not increase the ground area for
equipment enclosures, comply with regulations and conditions applied to the initial
wireless facilities placed on the tower, comply with federal, state and local safety
requirements; and do not exceed weight limits for the structure.
Under the existing streamlined processing, the application is reviewed for conformity
with site plan and building permit requirements but is not otherwise subject to zoning
requirements or public hearings. The local government must review the application
and identify any deficiencies within 45 days of submission, and a written decision to
approve or deny a completed application must then be made within 45 days.
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New state law. The amended statute applies streamlined processing to all types of
collocations (except those that create a substantial modification) and to the new
category of eligible facilities requests (see definition above). A collocation is the
placement of wireless facilities on an existing structure, not limited to towers, while an
eligible facilities request involves modification of an existing tower or base station.
The new law retains the state shot clock for streamlined processing45 days to identify
deficiencies in the completeness of the application and 45 days to render a decision in
writing once the application is complete. [For an eligible facilities request, the decision
must be to approve; for a collocation that is not an eligible facilities request, the decision
is either to approve or deny.] A city may deem an application incomplete if there is
insufficient evidence provided to show that the proposal will comply with federal, state,
and local safety requirements, but the city may not deem applications incomplete for
any issue not directly related to the actual content of the application and subject matter
of the collocation or eligible facilities request.
f. Maintenance of equipment
Existing statute. Maintenance of structures and facilities is subject to the citys general
authority to regulate applications. G.S. 160A-400.52(a).
New state law. Federal law treats the replacement of transmission equipment for
existing towers and base stations as an eligible facilities request that must be approved,
presumably after an application has been reviewed. The amended state law includes
replacement of transmission equipment in the definition of eligible facilities request as
well, but goes on to specify that nothing in the statute requires an application and
approval for routine maintenance or limits routine maintenance of support structures
and facilities. Routine maintenance is defined to include activities associated with
regular and general upkeep of structures and facilities, including replacement of
existing facilities with facilities of the same size. G.S. 160A-400.53(a).
g. Consultant fees
Existing statute: Consultant fees must be reasonable and not in excess of what is usual
and customary for such services. G.S. 160A-400.52(f).
New state law: Under the new provisions, consultant fees are further limited. For new
wireless support structures and collocations that are substantial modifications, fees for
the review of an application may not be used for a consultants travel and meal
expenses, or for a contingent fee consultant arrangement. G.S. 160A-400.52(f). For
eligible facilities requests and collocations that are not substantial modifications, cities
may not impose a consultant fee in excess of $1,000 and there is a similar prohibition on
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use of application fees for consultants travel and expenses or contingent consultant
arrangement. G.S. 160A-400.53(a3).
h. State property
Previous statute. The state may lease property for the construction and placement of
communications towers on state land and for the placement of antennas on state-owned
structures. City and county ordinances apply to towers and antennas so authorized.
G.S. 146-29.2.
New state law. The state may lease property or grant an easement or license for towers
and equipment on state land and for installing and operating equipment on towers,
buildings, or ground area owned or leased by the state. The Governor, with approval of
the Council of State, may adopt rules authorizing the Department of Administration to
approve and execute classes of leases, easements, and licenses. Land in the state parks
system may only be leased or conveyed with approval of the Secretary of the
Department of Environment and Natural Resources. The provision regarding city and
county ordinances remains unchanged. G.S. 146-29.2.
i. Effective date
The amendments to the city and county enabling statutes will become effective October
1, 2013. The provisions dealing with state lands were effective June 26, 2013.
IV.

Local action needed

Please review as soon as possible any local ordinances that regulate wireless structures
and facilities, in close consultation with the city attorney and planning staff.
Amendments to conform to the new provisions in HB 664 are likely to be necessary.
This is also an opportunity to ensure that ordinances are in line with all recent
developments at the federal level.
For further reading on the regulation of wireless sites, see these School of Governments
blog posts: Can We Top Off Our Tower? http://canons.sog.unc.edu/?p=7046, and
Wireless Telecommunications Facilities: Can North Carolina Communities Avoid Shot-Clock
Violations? http://canons.sog.unc.edu/?p=1668. The League will be working to
update materials on the www.nclm.org website as well.