Local Government Law Bulletin June 16, 2016 Michael J. Huff

Siting Considerations for Distributed Antenna Systems and Telecommunications Facilities in Municipal Rights-of-Way

Municipalities across Michigan are increasingly receiving applications from telecommunications providers seeking to install or expand wireless facilities in their public rights-of-way. While providers would ordinarily need to seek local zoning approval for such installations or expansions, both Congress and the State Legislature have implemented statutory and regulatory frameworks to encourage the growth of a robust national telecommunications network and limit local authority to deny providers. It is important for municipalities to understand these limits to their authority, and promptly and carefully review each application to avoid rights vesting in the telecommunications provider.

Federal Limitations

In 2012, Congress passed the Spectrum Act, which included, among other things, a series of measures designed to encourage the development of broadband technology across the country. The Act is administered and implemented by the Federal Communications Commission (“FCC”). The Act and regulations issued by the FCC place certain timelines and affirmative obligations on both states and municipalities, meaning that states and municipalities must act in the manner ordered by the federal government.

For example, a municipality is required to approve any application which requests the expansion of equipment on an existing tower or base station if the expansion does not “substantially change” the physical size of the tower or base station. While there are some nuances in the various rules set forth by the FCC, the basic rule is that a “substantial change” for towers is one that is in excess of 10% when a tower is not located within a right-of-way. In other words, a tower not in a right-of-way may be increased by up to 10%. For other towers, the limitation on the height increase allowed for a tower is the greater of 10% or ten feet.

Telecommunications providers are also permitted to attach new equipment to towers which expand the width of towers which are not in the public right-of-way. The rule allows the addition of equipment to expand the size of a tower as long as the equipment does not exceed the greater of a distance of twenty feet from the edge of the tower or the width of the base of the tower.

In addition to the prohibition on denying any eligible facility request for modification of an existing wireless tower or base station that does not “substantially change” the physical dimensions of such tower or base station, the rules drafted by the FCC require a municipality to let a telecommunications provider who submits an application seeking approval of the installation of additional telecommunications equipment know if its application is one that qualifies under the rules set forth by the FCC within 60 days of the receipt of the application. However, a municipality actually needs to initially review the application even quicker than sixty days because a municipality has only 30 days to let a telecommunications provider know whether or not its application is complete. If a municipality does not act upon an application received from a telecommunications provider within the time periods in this paragraph, the application is automatically deemed to be approved.

There are three different scenarios under which a telecommunications provider can submit an application to modify its existing telecommunications equipment: (1) when it wants to remove its existing equipment; (2) when it wants to replace its existing equipment; or (3) when it wants to attach new equipment to its existing equipment. Since telecommunications companies are regularly changing or improving the capabilities of their equipment and the increase in broadband demand is leading to a need for bigger and better functioning equipment, many telecommunications providers are acting aggressively under the FCC’s rules to try to push municipalities into allowing the providers to expand their equipment.

Michigan Limitations

In addition to the requirements of the Spectrum Act and FCC’s rules, there are multiple state laws that limit local authority when it comes to requests for expansion from telecommunications providers and which add to municipalities’ need to properly and timely reply to applications for telecommunications equipment; most notably, the Michigan Zoning Enabling Act and the Metropolitan Extension Telecommunication Rights-of-Way Oversight Act (“Metro Act”).

The Zoning Enabling Act was amended in 2012 with language that is favorable to telecommunications service providers. The amendment provided that wireless communications equipment would be a permitted use of property which did not require approval as a special land use if three conditions are met:

  1. The new wireless communications equipment will be attached to an existing structure or compound;
  2. The existing structure is in compliance with the local zoning ordinance or was approved by the local government; and
  3. The new equipment will not: (i) increase the overall height of the structure by more than the greater of 20 feet or 10% of the original height; (ii) increase the overall width of the structure by more than the minimum necessary; and (iii) increase the area of an existing compound to an area greater than 2,500 feet.

In other words, the State granted broad expansion rights for telecommunications equipment so long as the existing structure was in compliance with applicable zoning.

The Metro Act also applies to wireless communication equipment in Michigan. Effective November 1, 2002, the Metro Act established a new system of governing the authority and responsibilities of municipalities regarding the use of public rights-of-way by telecommunication providers. To locate telecommunication facilities in the public rights-of-way, the Metro Act requires that the provider obtain a permit from the municipality. Like the FCC’s rules, the Metro Act includes a “shot clock,” requiring an application for a permit submitted by a telecommunications provider to be granted or denied within 45 days. A municipality is not permitted to “unreasonably deny” a permit.

Municipalities should be aware that not all applications are covered by the Metro Act. As wireless technology evolves, many municipalities are being asked to issue Metro Act permits to allow the location of distributed antenna systems (“DAS”) in their public rights-of-way. The Metro Act itself states that telecommunication facilities do not include antennas or supporting structures for antennas. As a result, an application to install a DAS is arguably not covered under the plain language of the Metro Act.

As DAS networks are not telecommunication facilities, a separate licensing agreement may be required for providers seeking to install those systems in public rights-of-way. Municipalities should be careful in reviewing requests from telecommunications providers for a Metro Act Permit to assure it is properly covered by the Act.

Even though the FCC and the State of Michigan have granted some favorable rights to telecommunications providers, benefits remain for municipalities. For example, the FCC has clarified that the Spectrum Act and FCC regulations apply to municipalities only in their capacities as regulators. This means municipalities retain the right to determine the conditions under which they want to permit and license DAS and other telecommunications equipment on their own property. Further, the FCC has stated that municipalities are not prevented from enacting ordinances and policies which encourage telecommunications providers to contract with them, provided that the ordinances are not discriminatory or otherwise illegal. A municipality may also address health, safety and welfare concerns related to the installation of additional telecommunications equipment in an ordinance.

This area of law is nuanced and changes are expected as the national telecommunications network continues to expand and evolve. Because of the “shot clocks,” municipalities must be diligent in timely responding to applications. While telecommunications providers tend to push their interpretations of their attachment rights aggressively, municipalities maintain certain legal and contractual authority, and there is some opportunity for municipalities to increase revenue through licensing agreements.

If you receive an application to install or expand wireless facilities or would like to enact a policy or ordinance with respect to DAS and other telecommunications equipment, please contact one of our local government attorneys to assist you.

See the latest from our firm.

Let’s start a partnership worth keeping.