The wireless industry scored a big victory in 2012 with Congress’ adoption of Section 6409 of the Spectrum Act, a portion of the Federal Middle Class Tax Relief and Job Creation Act of 2012 (which we will refer to here as Section 6409, mostly to avoid repeating its rather large name).1
Section 6409 requires municipalities to approve applications to add, replace or modify wireless transmission equipment currently on existing towers, buildings and other structures that contain transmission equipment (e.g., smokestacks or water towers with antennas). The goal of Section 6409 is clear – “to promote the deployment of wireless infrastructure. . . . by eliminating unnecessary reviews, thus reducing the costs and delays associated with facility siting and construction.”2 How does Section 6409 seek to achieve this goal? The answer is simple. Municipalities are limited in what documents they can ask for from 6409 applicants, and they are required to approve 6409 applications based on those documents within 60 days . . . “or else”.
Or else what, you ask? Good question. If a municipality fails to approve a complete application filed under Section 6409 within 60 days from its filing date, then the application is deemed granted. The “deemed granted” concept is a topic for another post (coming soon). We will need some extra time to walk through best practices for protecting applicants’ rights.
The 60 day approval period sounds great in theory. However, industry applicants know all too well that the realities of municipal understaffing and an ongoing misunderstanding by municipal officials as to how to handle these type of applications often leads to delays similar to those Congress and the FCC sought to eliminate. Think about it: You file a building permit application for a 6409 eligible modification. It sits on someone’s desk for two weeks. You get a phone call or an email two weeks later requesting an additional form or fee, or worse, a request for a planning or zoning application submission because that “is just what the zoning code says and that is what we have always done with wireless applications.” By this point it is too late to help the municipality set a path for 60 day compliance.
I can tell you from experience in working with dozens of municipalities on 6409 applications that early education and an exchange of information are key elements in making Section 6409 work the way it was intended. Remember, most municipalities rarely have the budget or staff to monitor developments in wireless regulations, and on average they may deal with a few 6409 applications over the course of an entire year. So, although not required, applicants should include an outline or bullet point explanation in their application materials briefly explaining what 6409 is and how the project meets its narrow parameters. This is a simple, yet effective way to avoid gridlock and confusion at the municipal level. An outline, coupled with a pre-application phone call to the municipal attorney and/or building inspector from a team member (that has a clear understanding of 6409 and a good relationship with the municipality) just giving them a “heads-up” can be the difference between an applicant receiving an approval within 60 days (and being on-air soon thereafter), or being caught up in a long drawn out zoning process that the municipality committed the applicant to simply because it was unaware of the policy and proper procedures for 6409 applications.
By walking the municipality through the process before filing and then outlining it again in the submission, an applicant can manage everyone’s expectations appropriately and try to ensure the municipality’s understanding is consistent with yours. An applicant can also find out what, if any, unique forms or administrative items the municipality requires in order to ensure that your application is complete when filed. There is nothing more frustrating than when a 6409 applicant receives a planning or zoning approval within the 60 day period, but is then delayed for weeks or even months because the applicant didn’t submit the correct structural calculations, construction details, or number of plan sets, for example.
Section 6409 applicants should remember that the 60 day mandatory approval timeframe will only serve their goals of receiving a timely approval and providing service to their customers if both sides understand the basic mechanics and legal framework of the 6409 procedures. A little extra effort upfront can save a whole lot of time and money on the back end of the process.
To read Part 2, please click here.
