Cell Towers

Municipalities face continuing increases in the number of cell phone and WiMAX (see below) antennas and towers. Approximately 12,000 new cell phone towers and antennas are added each year to fill gaps and add capacity (as cell "phones" become more like mini laptop computers, with video, data, pictures, email and Internet surfing), plus roughly 100,000 new antennas and towers for WiMAX service. The Federal Telecommunications Act of 1996 preserves local zoning of such towers. Under "Useful Links" (right), see our 60-page "Cell Tower Zoning" paper on cell tower zoning under the 1996 Act and the major cases under that Act.

On January 23, 2012 the Fifth Circuit Federal Court of Appeals upheld - -  but limited the effect of - - the FCC's "shot clock" order.  The FCC order allows providers to go to court if a municipality takes more than 90 days (for collocations) or 150 days (for new towers) to act on cell tower zoning requests.

In English, the court said if a municipality has much of a reason for exceeding the shot clocks, then any presumption it acted improperly goes away and the courts take an independent look at the pros and cons of whether taking more time was reasonable.

And the court noted the possibility that courts in some areas outside the Fifth Circuit (which covers Texas, Louisiana and Mississippi) may find the shot clocks invalid.  Some courts give less deference to agency decisions than does the Fifth Circuit.

More information and copy of the decision can be found on Recent Developments.  Further information on the shot clocks is as follows:

On November 18, 2009 the FCC issued an order setting "shot clocks" of 90 and 150 days for municipal action on cell tower zoning requests. Click here to view slides from our seminar presentation on the shot clock order. And here is the legal article, "The FCC's 'Shot Clock' Order: An Overview of the Risks and Concerns" we wrote for the May/June 2010 issue of IMLA's Municipal Lawyer: The Journal of Local Government Law.

On August 4, 2010 the FCC issued an Order denying the Petition for Reconsideration described below, leaving the 2009 order unchanged.

Municipal groups then filed a Petition for Reconsideration of the order. We filed comments on January 22 on behalf of IMLA (International Municipal Lawyers Association) supporting the Petition for Reconsideration. Click here for the comments. The comments address one of the most common questions raised about the November 18 order - - for larger municipalities that allow for administrative appeals of zoning decisions, do the shot clocks apply only to a municipality's initial decision on a zoning request, or do they cover the time required for administrative appeals (such as from a Planning Commission decision to a Zoning Board of Appeals) as well?

The comments show that under the language of the Federal act, where Congress distinguished between initial and final decisions by municipalities on cell tower zoning matters, that the shot clocks cannot apply to (or must be tolled during) administrative appeals of cell tower zoning decisions and explained the reasons for this (e.g. - - whether there is an appeal is beyond a municipality's control). We asked the Commission to modify its order to comply with the statute, so that it expressly provides that the shot clocks only apply to initial zoning actions, and do not apply to (or are tolled during) the time period from an initial zoning decision until the completion of "final action" on an administrative appeal.

The firm sells model cell tower leases which have been used by hundreds of municipalities and other landowners nationwide. They are also suitable for WiMAX leases. The leases are drafted from the property owner's perspective, and are a generalized version of signed leases which the firm's attorneys have negotiated in recent years. They contain provisions which often can effectively double or triple the rent the property owner receives and has protections against the bankruptcy of the provider.

WiMAX/Wi-Fi

WiMAX service - - high speed over the air broadband service for your computer, home or office which covers an entire city or county - - is being rolled out in more than 100 U.S. metropolitan areas in 2009 and 2010. Clearwire, Comcast and some other cable operators are starting to offer it for fixed and mobile broadband service. And it may be how high speed broadband service is brought to rural areas, such as under the Federal stimulus legislation. Many new cell towers and antennas - - in the 100,000 range - - will likely be needed for this new service.

WiMAX poses unique challenges for landowners and municipalities - - For existing cell tower sites, it may provide them with more revenue, if a lease amendment is required to add WiMAX antennas. The firm sells model WiMAX leases, drafted from a property owner's perspective.

Many municipalities are now considering providing wireless or Wi-Fi service, either for use by their own field personnel, for the public in parks and selected buildings, or available citywide. We have assisted cities on these types of projects, as they consider whether private companies or the city should provide the service, and on contracts with private companies for Wi-Fi service.

Among the legal issues such projects pose for cities and their attorneys are things as: A good legal and technical definition of the service to be provided; good descriptions of where the service will be provided; a clear description of who will provide customer service and technical support to users, and addressing potential RF interference issues in agreements for Wi-Fi access points to be located on municipal buildings or in the rights of way.

Among the Federal laws involved are CALEA (for systems providing service to the public); making sure the FCC's OTARD rules (preempting local zoning and other requirements) do not apply; and Communications Act Section 253 relating to not preventing the provision of telecommunications service, and not discriminating on certain right of way related matters.