Category Archives: Uncategorized

FCC Orders on Small Cell Regulation Upheld by Ninth Circuit

FCC Orders on Small Cell Regulation Upheld by Ninth Circuit

A recent Ninth Circuit decision upholding major portions of three FCC regulations is a win for the expansion of wireless communication.

In response to the dramatic increase in the deployment of small wireless facilities (small cells) to support 4G wireless networks and the even greater increase that will be needed for 5G networks, the FCC, in 2018, issued three orders related to small cell regulation. The orders—Small Cell, Local Moratoria, and One-Touch Make-Ready Orders—were all promulgated under the Telecommunications Act of 1996 and sought to modernize the FCC’s regulatory structure consistent with the intent of the Act to encourage the rapid deployment of advanced telecommunications technology and the expansion of wireless communication.

The expansion of wireless infrastructure and the deployment of small cells can sometimes be met with resistance from local governments and public and private utility companies that own the utility poles that small cells are attached to. The FCC’s orders met such resistance and were immediately challenged by various stakeholders, including municipal groups and utility companies. The various legal challenges were consolidated into one matter before the Ninth Circuit Court of Appeals, decided earlier this year. City of Portland v. U.S., 969 F3d 1020 (2020).
With minor exception, the Ninth Circuit affirmed the orders, finding that the FCC acted within the scope of its congressionally delegated authority and that its conclusions were reasonable.

Local Fees

The court upheld the FCC’s factual determination that excessive local fees have a prohibitive effect on wireless services and upheld the presumptively reasonable (safe harbor) fees the FCC set, which limit the application and yearly recurring fees that local governments can charge for small cells in the public right-of-way (ROW).

Shot Clocks & ROW Access

The court upheld the new time requirements (Shot Clocks) for local authorities to act on applications to deploy small cells: 60 days for applications for collocation of small cells on existing infrastructure and 90 days for location on new infrastructure. It also held that the Shot Clocks apply to all applications required for deployment. In a departure from past guidance, the FCC held that the presumptive remedy for failure to act within the Shot Clock timeframe is an injunction directing that the local government issue all permits necessary for deployment.
The court also upheld the FCC’s determination that the Telecommunications Act, and the FCC’s correspondent regulations, apply to applications to access the ROW. Specifically, the court held that in managing access to the ROW, municipalities are not acting in a proprietary capacity and therefore do not have discretion to either prevent ROW access or to manage the ROW to benefit the municipality’s financial interests.

RF Exposure

Often a hot button issue with the public, the Court found that the FCC had previously reviewed and addressed radiofrequency (RF) emissions standards and that the existing regulations related to RF exposure did not require amendment.

Local Moratoria on Small Cell Applications

The court upheld the FCC’s prohibition on local moratoria related to accepting, processing and approving applications for the deployment of small cells and the prohibition on “de facto” moratoria—local practices that unreasonably delay and effectively ban such applications. This determination also strikes down any local ordinances expressly banning 5G deployment.

Utility Pole Attachments

The court upheld the One-Touch Make-Ready Order, which expedites the process of attaching wireless infrastructure to utility poles. In upholding the order, the court confirmed that:

  • The FCC has the authority under the Telecommunications Act to regulate utility-owned pole attachments.
  • Wireless telecommunications companies attaching to utility poles can use their own utility-approved or qualified contractors to perform simple and complex make-ready work as it relates to their deployments on the pole and within the power-supply space above the utility pole.
  • Public and private utility companies are prohibited from denying utility pole access to a new wireless telecommunications company solely because of a preexisting safety violation that the new attacher to the pole did not cause.

Aesthetics

The only aspect of the Small Cell Order that the court reversed related to local aesthetic regulations. The court struck down the requirement that local aesthetic regulations be no more burdensome than those applied to other types of infrastructure deployments and the requirement that aesthetic regulations be objective. The court found the Telecommunications Act does permit some type of different treatment of different technologies, and that the “objective” requirement was itself vague. The court did affirm the FCC’s requirement than any aesthetic requirements be reasonable, however.

Conclusion

Portland upholds the FCC’s ability to interpret and enforce the Telecommunications Act and limits local authority over small cell deployments. While the realities on the ground are that small cell deployments will likely continue to face local resistance in some instances, Portland substantially limited the ability of local governments to construct a regulatory bulwark against deployment.

The New York State Office of Renewable Energy Siting Will Hold Public Hearings Starting November 17, 2020 on its Draft Regulations

In April 2020, New York State enacted the Accelerated Renewable Energy Growth and Community Benefit Act, which has been codified as New York State Executive Law § 94-c. The purpose of the Act is to expedite the review and permitting of major renewable energy facilities to help New York achieve its renewable energy targets as required by New York’s 2019 Climate Leadership and Community Protection Act (CLCPA).

A comprehensive introduction to the Accelerated Renewable Energy Growth and Community Benefit Act (the Act) and its potential long-term impacts is found in Neil J. Alexander’s “Support for the Energy Sector in New York State, Part 3: Long-Term” blog. As noted, the new siting rules will ensure that renewable projects larger than 25 megawatts (MW) can receive approval within a year of the application being deemed complete, which is in stark contrast with the previous siting process that could take several years or more. To help achieve this end, the Act established the Office of Renewable Energy Siting (ORES) to administer the expedited siting process in a predictable and timely manner, while providing opportunities for input from local municipalities. The ORES is tasked with promulgating regulations within a year and correspondingly issued its first draft regulations for public comment on September 16, 2020. Five in-person public hearings and two virtual public hearings on the draft regulations will be held across the state in November of this year. More detailed information on the public hearings, which begin next week, is available here.

Pre-Application Reports, Studies, and Local Engagement

The draft regulations include several notable features. Among the more salient aspects, the regulations require significant pre-planning before submitting an application to ORES and a completeness determination is made, which starts the clock on the one-year approval period:

  • Consultation with local agencies is required no less than 60 days before an application is filed. The Applicant must also meet with community members who may be adversely impacted with notice mailed to all persons within one (1) mile of a proposed solar facility or within five (5) miles of a proposed wind facility. Notice must also be provided no less than three (3) days before the date an application is filed.
  • At the earliest possible time in the preliminary project planning any Federal, State or locally regulated streams, wetlands and waterbodies must be delineated. The draft wetland and stream delineation reports must be submitted to the ORES and NYSDEC with ORES providing a final approved jurisdictional determination to the Applicant within 60 days of receipt of the Applicant’s draft reports.
  • The Applicant must also conduct a wildlife site characterization and provide the results to the ORES and NYSDEC. The Applicant shall then meet with the ORES and NYSDEC within four weeks of delivery of the draft wildlife report unless the meeting is waived by agreement. Habitat assessments and/or survey reports may also be required based on the characteristics of the site.
  • If any portion of the project is within an area of archeological sensitivity an Applicant must conduct a Phase IA archeological/cultural resources study and submit the results to the ORES who will inform the Applicant as to whether a Phase IB field study is required. If warranted by the Phase I studies, the Applicant may also be required to conduct a Phase II site evaluation to assess the boundaries, integrity and significance of cultural resources identified.

Lastly, if an Applicant is seeking a permit for a major renewable energy facility other than a solar facility or a wind facility, it must consult with ORES one year prior to submitting an application. Any Applicant is afforded the opportunity to request a pre-application consultation with ORES.

Compliance (or Non-Compliance) with Local Laws

Another notable feature of the Act and draft regulations is that Applicants are directed to construct and operate a facility in accordance with applicable local laws, except for those local laws that ORES determines, at its discretion, to be unreasonably burdensome. For each local law identified by an Applicant a statement justifying the exemption request must be provided.

The statement must demonstrate:

  • There are technological limitations that would make compliance technically impossible, impractical or otherwise unreasonable;
  • The costs to consumers associated with applying the identified local substantive requirements would outweigh the benefits of applying such provision; or
  • The needs of consumers for the facility outweigh the impacts on the community that would result from refusal to apply the identified substantive requirements.

Considering the foregoing, ORES may elect to not apply an identified requirement if it finds such requirement is unreasonably burdensome in view of the CLCPA targets and the environmental benefits provided by the facility. Local laws which the Applicant believes are unduly restrictive must also be identified for the local agencies as part of the preapplication consultation process along with an explanation of all efforts by the Applicant to comply with such local provisions. Municipalities further participate in the process by filing a statement of local law compliance with the ORES which can lead to an adjudicatory hearing if substantive and significant issues are raised.

Compliance with local setback requirements is one area that may provide the potential for reoccurring conflict. The setbacks established by the draft regulation’s Uniform Standards and Conditions are summarized in Tables 1 and 2:

The Uniform noise standards present another area of potential conflict with local regulation. The draft regulations establish that a maximum noise limit of 45 dBA for any non-participating residence and 55 dBA for any participating residence is permitted for both wind and solar facilities. Additionally, facilities are permitted on agricultural lands and where a facility proposes to permanently or temporarily impact active agricultural lands, the facility must be constructed in accordance with the New York State Department of Agriculture and Markets Mitigation Guidelines. This includes retaining an independent third-party consultant to monitor compliance with the required agricultural mitigation plan.

Host Community Benefits

To offset any potential burden, the Act and draft regulations also require the Applicant to provide host community benefits. A proposal was released by Department of Public Service Staff on September 23, 2020 suggesting that residential electric utility customers residing in a host community receive an annual bill credit for each of the first 10 years that the facility operates in the community. Facility owners would make an annual contribution of $500 per megawatt for major solar facilities and $1,000 per megawatt for a major wind facility which would be distributed equally among the residential utility customers of the community.

Determination of Completeness

Once an Applicant meets all of its pre-application obligations and submits an application to ORES it must be deemed “complete” before the prescriptive time limit to issue a permit accrues. The ORES must make this determination of completeness or incompleteness within sixty (60) days of receipt of the application. If the application is determined incomplete, ORES must notify the Applicant and list all identified areas of incompleteness and a description of the specific deficiencies. If the ORES fails to provide notice of its determination within sixty (60) days, the application is deemed complete. Notably, applications may only be amended prior to the notice of completeness, and amendments defined as “major” must additionally receive the express written permission of ORES before they can be filed.

As noted above, ORES must act on an application within one (1) year of the Office deeming the application complete and within six (6) months of the Office deeming an application complete for facilities which are proposed for a “repurposed” site such as a brownfield, landfill or other previously disturbed commercial or industrial use property.

For more information on the Act and the draft regulations contact energy@cuddyfeder.com.

Cuddy and Feder Law Firms New York

NYS Executive Order Extends Remote Notarization

On March 19th, 2020, Governor Cuomo signed Executive Order 202.7, which temporarily suspended the rule requiring physical appearance before a notary public and authorized notarization via audio-video technology. On November 3rd, 2020, Governor Cuomo extended the use of audio-video technology through December 3rd, 2020 with Executive Order 202.72.

In order to comply with Executive Orders 202.7 and 202.72, all parties must abide by the following procedures as outlined in the Executive Orders, and as set forth in the Guidelines posted by the New York Department of State: a) the signatory must present a valid photo ID to the Notary during the video conference, and may not simply transmit a copy of the ID prior to or after the video conference; b) the parties must be able to interact directly during the video conference; c) the signatory must be physically located in New York, and must affirmatively represent this to the Notary; and d) the signatory must transmit a copy of the signed document directly to the Notary, by fax or email, on the same date the document was signed, and the Notary may then notarize the transmitted copy of the document and either fax or email the document back to the signatory.

We will continue to monitor the Governor’s website for any extensions to Executive Order 202.7 as a result of the ongoing COVID-19 pandemic.

Greenwich CT waterfront

Life in a Flood Zone: What to Know When Renovating Shoreline Property

The majority of land along Long Island Sound and major rivers in New York and Connecticut are located within a special flood hazard area, otherwise known as the “100-year flood zone.” Floodplain development standards apply to a wide range of land use projects in the 100-year flood zone, including both large commercial redevelopments and single-family home renovations. For many of the communities in this area, flooding is a major problem and compliance with Federal and newly-updated local laws is a hot topic.

Given the heightened concerns over floodplain development standards and new municipal initiatives, Cuddy & Feder’s land use attorneys are seeing both commercial and residential projects impacted by requirements for compliance with flood zone regulations. Be it a new multi-family residential building, shopping center, addition to an existing home, tennis court restoration or even a new pool, floodplain development requirements can impact many types of projects.

Federal Guidance

The National Flood Insurance Program (NFIP) is administered by the Federal Emergency Management Agency (FEMA) and provides financial protection to property owners by offering flood insurance. FEMA’s Flood Insurance Rate Maps (FIRMs) identify flood hazards and risks for specified areas by classifying them into flood zones and assigning Base Flood Elevations which reflect the area of land that has a 1 percent chance of flooding in a given year.

When planning a project, it is important to know if you are in a special flood hazard area and if so, what the designation of flood zone and Base Flood Elevation the property is classified in.

FEMA flood zones are not only used to determine insurance requirements and costs, they determine construction standards and prohibitions for development. FEMA’s detailed design and construction standards can apply to new buildings, accessory structures and the alteration of some existing buildings that constitute a “Substantial Improvement.” These standards vary depending on the classification of the flood zone and in some areas, can prohibit certain designs altogether.

Additional Local Laws

In addition to federal law requirements, New York and Connecticut state laws require municipalities to adopt and enforce local flood plain management laws for flood-prone areas to reduce the risk of flooding. Many communities have adopted their own floodplain development laws that exceed FEMA’s technical standards, so it is important to review more than just the federal design bulletins when planning for a project. For example, design restrictions prohibit a basement in all areas of special flood area, due to concerns of hydrostatic pressure and flood forces on exterior walls that can compromise structural integrity of the building. The lowest habitable floor of the home must be elevated to or above base flood level, depending on what the local code requires for the flood zone classification. Another common obstacle is the restriction of or prohibition of fill, depending on the flood zone classification. This restriction can impact plans for accessory structures, such as tennis courts and pools. Note that many of these standards are applicable to renovations of older homes if the alterations constitute a “substantial improvement.”

A local official or agency is typically designated to administer the floodplain management program and will review architectural and engineering plans for compliance with floodplain requirements and issuance of a separate floodplain development permit.

Pending Updates and Amendments to Flood Zone Classification

The existing FIRMs for many local areas, including Westchester County, have proven outdated given technical advances in surveying and engineering capabilities. FEMA, in collaboration with State, county and local governments, is in the process of updating the flood maps to reflect more accurate elevations, water flow and drainage patterns based on available technology. Until the preliminary maps are finalized however, all development must adhere to standards for the property’s officially designated flood zone. Relief may however be available for those property owners seeking to make improvements in an area that is inaccurately classified. Flood maps can be corrected to reflect actual current elevations, which can change the flood zone classification of a property or structure. Such a request is made to FEMA through the Letter of Map Amendment (LOMA) or a Letter of Map Revision (LOMR) process. This process of amending or revising a flood map to reflect accurate conditions must be completed before filing a building permit or site plan application with the municipality because noncompliance with floodplain development standards precludes any other local approval authority or action. In rare instances, variances from these standards can be granted by the designated floodplain appellate body, commonly the Planning Board.

When planning a project, it is important to know if you are in a special flood hazard area and if so, what the designation of flood zone and Base Flood Elevation the property is classified in. We recommend having a recent and accurate survey of the property conducted so elevations can be reviewed and working with an architect who is familiar with floodplain development design standards. Cuddy & Feder’s land use attorneys can assist with flood zone development and have extensive experience working with FEMA’s mapping specialist and engineers to amend flood zone classification and have also obtained variances from local floodplain development codes in cases of specialized circumstances.

Cop directing traffic due to a road block

Rethinking Force Majeure in Light of COVID-19

As a result of the impacts of COVID-19, many parties are having difficulty satisfying contractual obligations. As such, now more than ever, it is imperative that parties have an understanding of how New York Courts interpret the force majeure doctrine and the doctrine of impossibility, both of which may be used to excuse non-performance in certain circumstances.

It is crucial that force majeure clauses are carefully drafted so as to include COVID-19 and other public health emergencies.

As a general matter, New York Courts narrowly construe force majeure clauses. A party will be excused from performance only if the force majeure clause includes the specific event that prevents that party’s performance. Reade v. Stoneybrook Realty, 63 A.D.3d 433, 434 (1st Dept. 2009). In circumstances where an agreement does not include a force majeure clause, or where an agreement does not specify the relevant occurrence as a force majeure event, courts will generally not allow a force majeure defense to be claimed. General Electric Company v. Metals Resources Group Ltd., 293 A.D.2d 417 (1st Dept. 2002). Since the force majeure doctrine will generally only be available where a provision in an agreement specifically allocates risk in case of a force majeure event, it is crucial that force majeure clauses are carefully drafted so as to include COVID-19 and other public health emergencies.

Where the force majeure doctrine cannot be used to excuse non-performance of contractual obligations, a party may try to excuse its non-performance under the doctrine of impossibility. The doctrine of impossibility excuses non-performance where, among other things, performance of the contractual obligation is objectively impossible. Reed Found., Inc. v. Franklin D. Roosevelt Four Freedoms Park, LLC, 108 A.D.3d 1, 7 (1st Dep’t 2013). Accordingly, New York Courts have held that performance of a contractual obligation is not excused when such failure is occasioned merely by financial difficulty or economic hardship, even to the extent of insolvency or bankruptcy. Id.; see also Ebert v. Holiday Inn, 628 F. App’x 21, 23 (2d Cir. 2015). In one of the early cases examining contractual relationships during COVID-19, the court did not excuse the defendants’ non-performance of a contractual obligation under the doctrine of impossibility merely because the defendants’ financial difficulties arose out of the COVID-19 pandemic and compliance with the PAUSE Executive Order. Lantino v. Clay LLC, No. 1:18-CV-12247 (SDA), 2020 WL 2239957 (S.D.N.Y. May 8, 2020).

Given New York courts’ hesitation to blindly use the doctrines of force majeure and impossibility to excuse non-performance, in the future, parties should pay particular attention to the force majeure clauses in their agreements and make sure such clauses are drafted with enough specificity to increase the chances that New York courts will rely on such a clause in order to excuse non-performance.

Read more about force majeure

Rooftop Solar Leases: Revenue

Many property owners in Westchester have unfortunately found their rental income streams negatively impacted by the COVID-19 pandemic. In the face of such unpredictability in the market, many landlords are looking at alternatives to traditional tenancies, and rooftop solar leasing is one such attractive source. But prior to entering into any rooftop solar lease, landlords should be aware of certain issues common to the solar industry.

First, solar leases tend to run for longer terms than typical office or retail leases. Most have terms of 20-25 years with options for one or more additional five-year terms. As a result, lease provisions related to the condition of the property and, more specifically, the roof, are especially important. A main point of negotiation is what happens if the roof needs to be repaired or replaced during the term of the lease, which is probable given the lengthy term. Solar tenants, of course, will try to pass the cost of removing/re-installing the solar facility, and any lost revenue thereof, upon the landlord, but there are many ways to reach a compromise on the issue.

Solar leases tend to run for longer terms than typical office or retail leases. Most have terms of 20-25 years with options for one or more additional five-year terms.

Generally, most solar tenants request a certain period of time for due diligence, approvals and construction prior to commencing rent payments under the lease. This period can range from as short as six months to as long as 36 months. During this period, the tenant typically has the right to terminate the lease if it determines that the solar project is not feasible. If the period of time is considerable, a landlord could request compensation in consideration for reserving the roof for the tenant.

Many solar tenants obtain financing to pay for the cost of constructing the solar facility, likely secured by the tenant’s interest in the lease. Therefore, the tenant will request that the lease contain various lender-friendly provisions. Landlords should review these provisions carefully, as they may restrict the landlord’s ability to exercise its rights under the lease after a tenant default.

Other typical issues include:

  • Assignment provisions: solar tenants typically seek to assign their interest in the lease to an operator of solar facilities
  • Access to light: solar tenants typically restrict the landlord from constructing any improvements on the roof that may impede access to sunlight (i.e., satellite dishes, wireless towers, etc.)
  • Guaranty of lease: landlords should consider whether or not to request a guaranty of the lease, either during the construction period or throughout the term
  • Insurance and roof warranties: the landlord should ensure that the solar installation does not increase the lender’s insurance premiums or void any roof warranties (some solar installations will penetrate the roof and others will not)
  • Taxes/PILOT: in New York, real property improved by a solar facility is exempt from re-assessment as a result of the solar facility for a period of 15 years, but the applicable municipality may nevertheless impose on the property a Payment In Lieu of Taxes Agreement, which, if not paid, will result in a lien on the real property

The Real Estate and Transactional Department at Cuddy & Feder is available to address all your solar leasing concerns.

NYC Law Seeks to Suspend Individual Guarantor Liability in Commercial Leases

Updated: October 30, 2020

 

NYC Law Seeks to Suspend Individual Guarantor Liability in Commercial Leases
Effective immediately as of May 26, 2020, individuals may not be personally liable for certain tenant obligations they agreed to guaranty. A new law signed by Mayor Bill de Blasio prohibits the enforcement of “a provision in a commercial lease or other rental agreement” involving real property located within New York City which provides that an individual guarantor is liable for rent, utility expenses, taxes, and/or routine building maintenance fees for which the commercial tenant is responsible if certain conditions are satisfied. These conditions relate to impacts suffered by the commercial tenant as a result of compliance with Governor Andrew Cuomo’s executive orders issued in response to the COVID-19 pandemic.

Accordingly, under the new law, if:

  • the tenant was required to cease serving food or beverage for on-site consumption pursuant to executive order 202.3 issued on March 16th; or
  • if the tenant is a non-essential retailer subject to in-person limitations pursuant to executive order 202.6 issued on March 18th; or
  • if the tenant was required to close to members of the public pursuant to executive order 202.7 issued on March 19th; and
  • the tenant’s default occurred between March 7, 2020 through September 30, 2020, then, the individual guarantor will not be personally liable for rent, utility expenses, taxes, and/or routine building maintenance fees for which the commercial tenant is responsible under the lease.

While the new law may seem to present a significant challenge for landlords seeking to enforce their rights against individual guarantors during the pandemic, practitioners have found that the law is ambiguous in a couple of key respects.

First, most guarantees of tenant obligations do not appear in a “commercial lease or other rental agreement”. Rather, it is typical to find a separate document wherein the individual guarantees the tenant’s obligations under the lease. The lease itself may not refer to a guaranty at all. Based on the plain reading of the new law, it is unclear whether the law will apply to prohibit the enforcement of a stand-alone guaranty.

Second, a number of ambiguities arise depending on when and how a landlord chooses to notice a tenant’s default under the lease, including during the time period set forth in the law.

In sum, while the new law may provide for relief to certain tenants during these unprecedented times, the specific application of the law remains unclear at present. The Real Estate and Transactional Department at Cuddy & Feder, led by Partner and Department Chair Michael L. Katz, is monitoring the situation and will continue to provide updates as developments in the new law unfold.

Cuddy and Feder Law Firms New York

New York State Continues the Suspension of In-Person Meeting and Public Hearing Requirements

Governor Cuomo signed Executive Order 202.48 (E.O. 202.48) on July 6, 2020 and Executive Order 202.49 (E.O. 202.49) on July 7, 2020  which continue the suspension of in-person meeting and in-person public hearing requirements in continued response to the COVID-19 Pandemic. E.O. 202.48 and E.O. 202.49 are the latest in a string of Executive Orders intended to balance the needs of public safety and continued economic growth throughout the state.

The Suspension of In-Person Meeting Requirements Is Continued Until August 5, 2020

E.O. 202.48 continues the suspensions and modifications of law contained in Executive Order 202.1. E.O. 202.1 suspended several laws of the state, including the New York State Open Meetings Law (OML), permitting the continuation of municipal meetings via teleconference or video conference. E.O. 202.1’s directive is now continued through August 5, 2020:

Article 7 of the Public Officers Law, to the extent necessary to permit any public body to meet and take such actions authorized by the law without permitting in public in-person access to meetings and authorizing such meetings to be held remotely by conference call or similar service, provided that the public has the ability to view or listen to such proceeding and that such meetings are recorded and later transcribed.

Public Hearings To Be Continued To Be Held Remotely or Postponed Until August 6, 2020

E.O. 202.49 continues the prohibition contained in E.O. 202.15, dated April 9, 2020, which restricts the conduct of in-person public hearings unless such hearing can be held remotely through use of telephone conference, video conference, and/or other similar service. A notable exception from E.O. 202.49 is hearings before the Department of Environmental Conservation pursuant to the Environmental Conservation Law (ECL) are permitted to resume in-person.

Many municipalities have seamlessly transitioned to virtual or remote platforms to conduct public meetings.  Cuddy & Feder LLP continues to provide continued, quality legal service by staying up-to-date on the technology used and has participated in over 120+ virtual meetings and hearings involving the land use entitlement process to date. For more information please contact landuse@cuddyfeder.com.

NYSERDA Issues Guidance on Re-Opening for the Clean Energy Industry

In recognition of New York’s staggering number of job losses in the clean energy industry and the great eagerness to reopen, the New York State Energy Research and Development Authority (NYSERDA) collaborated with its energy partners to develop guidance and information that will assist non-essential energy and clean energy businesses and activities plan for a safe return to work.

For the clean energy sector, it was recognized that many firms that participate in NYSERDA programs would restart as part of a region’s Phase I reopening, falling within the “Construction” category and sub-categories. Clean energy construction activities are subject to the Construction Guidelines for Employers and Employees and Interim Guidance for Construction Activities promulgated by the Department of Health (DOH) and must also abide by the Empire State Development Corporation (ESD) information and guidance included in their FAQ on NY Forward and Business Reopening.

Each business is required to develop a Business Safety Plan using the State’s template or develop their own safety plan.

In addition to this available guidance, NYSERDA has prepared a webinar and PowerPoint specific to clean energy sector which is available on its COVID-19 website under contractor and construction guidance. The webinar provides an overview of the re-opening and a walk through of the DOH guidance on safe construction activities, which must be reviewed and distributed to employees. Most importantly, for every company or firm participating in State or investor-owned utility clean energy programs, an authorized representative must, as a prerequisite to undertaking any clean energy construction work, attest that they have reviewed the DOH construction guidance and shared its contents with all company staff. A link to the attestation is embedded within the DOH guidance, and it is recommended a print copy be maintained for company records.

Further, each business is required to develop a Business Safety Plan using the State’s template or develop their own safety plan. These plans, however, do not need to be submitted to NYSERDA or any other State agency for approval, but must be retained on premises and made available to the DOH or local health or safety authorities in the event of an inspection.

Cuddy & Feder’s experienced Energy + Environmental attorneys are available to address all your re-opening, energy and environmental law concerns. For more information contact energy@cuddyfeder.com.

Technician working on communications tower - 5G

FCC’s Latest 5G Infrastructure Order and 60 Day Municipal Review of Eligible Facility Modifications

On June 9, 2020, the Federal Communications Commission (FCC) took another step as part of its 5G Fast Plan to accelerate the deployment of mobile broadband infrastructure. FCC Commissioner Brendan Carr, who has led the agency’s focus on federal, state and municipal streamlining of permitting for wireless infrastructure highlighted the need for FCC action to clarify its 2014 rules in furtherance of a 2012 Act of Congress that created a category of “by right” modifications to existing wireless facilities. In moving the ruling forward as part of a vote, Commissioner Carr noted that “[r]ural America will benefit from new competition for their broadband dollars. First responders will benefit from dedicated networks and expanded capacity. And all Americans will benefit from world-leading wireless service as existing towers are upgraded to 5G.”

The FCC’s Declaratory Ruling titled Implementation of State and Local Governments’ Obligation to Approve Certain Wireless Facility Modification Requests Under Section 6409(a) of the Spectrum Act of 2012, (WT Docket No. 19-250) (5G Order) clarifies several legal issues associated with municipal permitting for collocation of wireless infrastructure on existing towers and buildings. In 2014, the FCC adopted the Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, (WT Docket No. 13-238 and 13-32, WC Docket No. 11-59) (the 2014 Infrastructure Order) which, among other things, codified rules implementing Congress’ adoption of Section 6409(a) of the Spectrum Act, an Act which mandated local zoning permits and approvals for collocation and other modifications of existing wireless infrastructure. Over the past six years, some of the FCC’s rules have been the subject of varying local interpretations creating disagreements between telecommunications providers and localities trying to follow them, which in some cases led to impediments to deployment of technical upgrades for services in the community, including 5G.

The 5G Order clarifies the FCC’s 2014 rules by among other items adopting:

  • A ruling that confirms the 60-day shot clock for local approval begins when an application is filed with the municipality and provided the applicant asserts the request involves an eligible facility modification;
  • A ruling that clarifies what constitutes an equipment cabinet and the number of permitted cabinets as part of an eligible facility request;
  • A ruling clarifying that local concealment and aesthetic permit conditions must be specifically cited in a prior zoning approval and cannot be interpreted to thwart certain tower expansions or changes that are covered by the law as eligible facility modifications; and
  • A ruling clarifying how to calculate the 20’ by right tower height extension which is permitted by the FCC’s regulations.

All of these clarifications were based on review of a lengthy administrative record that included filings by industry and municipal agencies and their respective experiences and positions over the past several years implementing the Act and FCC rules.

The FCC’s 60-day shot clock and related rules for local processing of applications for wireless site modifications are designed to eliminate onerous or vague provisions that can be used to delay or deny applications and that have no legitimate land use or zoning rationale as determined by Congress.

One of the major clarifications issued by the FCC squarely addressed the start of the 60-day shot clock for this subset of wireless facility applications under section 6409(a). These filings are often subject to local “wireless” laws or arguments as to when the 60-day shot clock starts to run for review and approval of an application or the date of a deemed granted approval in the face of inaction by the permitting authority. The 5G Order clarifies that the 60-day shot clock for municipal permit review and approval of a modification under section 6409(a) commences when:

  1. the applicant takes the first procedural step that the local jurisdiction requires as part of its applicable regulatory review process; and
  2. the applicant submits documentation showing that the modification qualifies for streamlined review as an EFR.

The FCC’s ruling incorporates a balanced approach so that a local government may not delay the triggering of the shot clock by establishing preliminary steps or steps that are outside of the applicant’s control or objectively verifiable. It also ensures applicants are clearly filing requests and applications that expressly assert an EFR is involved as defined and specified in FCC regulations.

As applied and as an example, if the first step required by a local government requires an applicant meet with municipal staff before making any permit application filing, the shot clock starts when a written request is made to schedule that meeting, a step within the applicant’s control, and provided information pursuant to FCC rules is filed noting that the project involves an EFR. As a result, municipalities simply can no longer avoid commencement of the 60 day review period by setting up requirements that involve a sequencing of procedural steps or even multiple zoning applications and filings. If a local government requires separate consultations with the local staff or agencies, the shot clock is triggered by taking any one of those actions, along with providing the requisite documentation under section 6409(a) and FCC rules.

Moreover, a municipality cannot “toll” the running of the shot clock by citing a local law that requires sequential review by multiple boards or steps in the administrative review process for an EFR to be considered and approved. So, even if a municipality typically requires their planning board to review all EFR applications on referral by the building department, the shot clock starts when a building permit application is filed by the applicant provided it includes information required by FCC regulations. In that scenario, the building department and planning board must then coordinate to ensure the application is timely reviewed and acted on by both agencies or it will be deemed granted after 60 days.

Ultimately the FCC found that all these clarifications “serve to remove uncertainty about the scope and meaning of various provisions of section 1.6100 consistent with the text, history, and purpose of the 2014 Infrastructure Order.” The FCC’s 60-day shot clock and related rules for local processing of applications for wireless site modifications were designed to eliminate onerous or vague provisions that can be used to delay or deny applications and that have no legitimate land use or zoning rationale as determined by Congress.

This latest step by the FCC should dramatically reduce disagreements over the scope and effect of the FCC’s streamlining rules and certainly enhance the deployment of 5G and other enhanced wireless network technologies. These rules also provide an impetus for municipalities to once and for all amend local rules to truly streamline EFRs, avoid the burden on local zoning agencies to take up these reviews and simply incorporate an administrative review into any required building permit application for such projects. These clarifications also obviate the need for municipal consultants at all being involved in the EFR review process which is ministerial and straightforward under any scenario. We encourage municipalities to interpret their existing processes, procedures and laws and take any needed steps to comply with federal law which will further economic opportunity, benefit first responders and ensure connectivity for all Americans quickly and efficiently and without artificial local processes that provide no meaningful benefit to the community as a whole.