FCC RULING REQUIRING BACKUP POWER FOR CELL TOWERS
This will alert you about an FCC ruling requiring backup power for cell towers which may generate activity and litigation for municipalities in the next year regarding (1) cell towers on municipal property, and (2) zoning, permits and other regulations affecting cell towers on private property. The key points are as follows.
Order: On October 4 the FCC issued an order reinforcing and clarifying a prior order requiring cell phone (and landline) phone companies within one year to install backup power supplies at most sites (and have portable power supplies available for sites without permanent backup power). This is an outgrowth of Hurricane Katrina, a finding that telephone and cell phone companies there did not have adequate backup power supplies to keep the phones operating, and hence that backup power supplies need to be installed at key phone and cell phone locations nationwide. See http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-07-177A1.doc
In its order, the FCC declined to exempt cell antennas in non-traditional locations, such as the small “distributed antenna” systems popularized by companies such as NextG, which are often located on utility poles, light poles, in the rights of way, or camouflaged in steeples and the like.
The FCC order does not by its terms preempt state or local laws or leases which prevent backup power installations–but as set forth below, cell companies may claim that Federal law preempts in any event, even as to lease terms that prohibit dangerous substances (e.g.–gasoline) from being introduced on the municipal land or building being leased for a cell antenna.
Municipal Sites: As a result, municipalities may shortly see a lot of activity to put generators and battery backup systems at cell tower sites on private and public property, including those in the rights of way. This may cause problems for towers in sensitive municipal locations, such as on the roofs of municipal or school buildings, or on water towers, because the systems typically involve gas, diesel or propane powered generators (with accompanying fuel tanks) or batteries with lots of sulfuric acid. Lease terms often prohibit such dangerous substances or require municipal approval of changes from the initial installation, and either type of system is heavy, which may cause building or structural concerns.
Cell companies may seek lease amendments to allow them to install such backup power systems (in fact the FCC said they should seek such amendments, if leases now preclude such systems). Due to decisions by the Ninth Circuit Court of Appeals, in west coast and adjacent states the cell companies may claim that lease provisions effectively preventing backup power systems violate Section 253 of the Federal Communications Act. On the other hand, municipalities may have concerns if they justifiably don’t want such systems installed on particular properties, yet the lease does not clearly preclude them.
Zoning, Building Codes and the Like: The cell phone companies complained to the FCC that local zoning laws, building codes or environmental restrictions may prevent backup power installations.
Municipalities should be aware that if this is the case, they may face challenges to such laws not under the FCC order but under the cell tower zoning provisions of the Federal 1996 Telecommunications Act. These provisions apply to all state and local laws which regulate the “placement, construction or modification” of cell towers–i.e. building codes, permits and other local requirements, not just zoning. They require action by a municipality in “a reasonable time” which here the carriers will argue is very short, given the FCC directive for backup power installations to be completed within a year. Carriers will likely argue that local requirements which they can’t comply with “prohibit or effectively prohibit” the provision of cell phone service, in violation of the statute.
And (this is often the hardest part) under the statute, all denials have to “in writing” and based on “a written record”. Although these requirements sound simple, the courts have interpreted them in ways that local practices and procedures often may not meet. Failure to meet them is one of the most common reasons local zoning decisions violate the Federal statute. Most importantly, note that a violation of the statute usually (under court decisions) leads to the permit or zoning approval in question being granted as it was applied for, the courts do not send the case back to the municipality for it to redo in compliance with the statute.
Suggested Actions: Municipalities should examine the leases they have with cell companies, to see if backup power supplies (batteries or generators) can be installed without municipal approval, especially as to locations where this would be a concern.
Municipalities should be prepared to respond promptly to the various types of local approvals (zoning, building codes, permits, environmental) which may be involved in likely new backup power installations at cell sites. They should make sure they comply with the Federal statute regarding zoning and other local regulations applicable to cell towers. In particular, in a contentious case, municipalities should make sure to involve people with knowledge of the statute and comply with its procedural requirements regarding the form of any denial, what has to be in it and the need for a written record.
We have a detailed paper on the Federal cell tower statute. If you would like a copy, either email me, or get a copy from our web site–go to HTTP://www.varnumlaw.com/serviceGroups/cableTV/cellularwireless/