6409 Supplement

A few important items on “6409” | Eligible Facilities Requests
- Federal Communications Commission Rules for Modifications* to Existing Wireless Facilities

Separate link to Tools for Adapting to AB 57 (New California law)

• Can a waiver help? During oral arguments before the Court of Appeals, those representing the FCC were asked by the judges about the potentially significant size changes allowed by the FCC’s interpretation (2014 Report and Order) of Section 6049. The FCC took the position (both in oral argument and in its brief) that States and localities could seek a waiver: “The Order leaves States and localities free to request a waiver of the Section 6409(a) rules in appropriate circumstances under the Commission’s general waiver process, 47 C.F.R. § 1.925(b)(3)(i), (ii).”
  When the Court asked about the 60 day shot clock continuing to run during this waiver process, the FCC responded that the locality could request a stay (presumably from a court).
  It remains to be seen whether and under what circumstances the FCC would grant such waivers, since the FCC’s Report and Order indicated disputes should be resolved in courts of competent jurisdiction and, as explained by the FCC, the general waiver process is meant to address “outlier” cases. The Court, in footnote 8 of its Order, indicated that “the waiver procedure provides a forum for municipal complaints, even if the procedure is not formally part of the Order.” Link to FCC Brief (see references to waivers).
• A request to modify the site (e.g. new antennas/equipment) in a manner that defeats existing concealment (e.g. screening) elements (if present) would not quality for the 6409 process (and 60 day approval clock). Make sure the existing facility actually still features the screening that may have been required previously. It is not rare to find that required screening was never actually installed during the initial build, or was somehow removed over time during un-permitted work at the site.
  
  The effect of this rule tends to now offer significant advantages to requiring substantial screening or concealment elements for new facilities. Without those elements, the FCC’s interpretations may mean that what gets approved for the initial site may not in any way resemble how the facility looks later on as substantial modifications to unscreened facilities are made over time based on 6409.

This faux building contains existing SCREENED panel antennas (inside). Adding UNSCREENED panel antennas above the faux building would defeat existing screening and would therefore not be eligible for 6409.

• 6409 doesn’t apply if the applicant’s (property owner) site features wireless facilities that were never built correctly (substantial conformance) or maintained properly by the project sponsor (wireless carriers). To qualify as an eligible facility covered by Section 6409, the facility (base station or wireless tower) must be “existing.” The FCC found that the term “existing” requires that “wireless towers or base stations have been reviewed and approved under the applicable local zoning or siting process or that the deployment of existing transmission equipment on the structure received another form of affirmative State or local regulatory approval (e.g., authorization from a State public utility commission).
  Thus, if a tower or base station was constructed or deployed without proper review, was not required to undergo siting review, or does not support transmission equipment that received another form of affirmative State or local regulatory approval, the governing authority is not obligated to grant a collocation application under Section 6409(a).”
• 6409 would appear to allow a wireless carrier to increase certain facility heights beyond any local established height limits, as long as doing so didn’t defeat any existing concealment elements. Determine if height limit rules should be amended to allow for screening elements as an option (if not currently present and the carrier is willing to add some screening elements) that may temper the effect of such increases. If a tower is near an airport, the height increase could trigger the requirement to add tower lighting. Additional cabinets to support new tower lighting may make the proposal ineligible for 6409.
• 6409 may not apply to certain facilities that may have been approved by right or without permits. So this may not apply to certain legacy facilities that pre-dated specific rules/review on wireless facilities. Review this issue closely with counsel.
• Local government can still add certain conditions to projects; though not related to the height and equipment size changes allowed under 6409 (unless existing concealment/screening elements would be defeated). FCC also ruled that facility modification remains subject to “building codes and other non-discretionary structural and safety codes.” Specifically, local governments may require a request covered by Section 6409 “to comply with generally applicable building, structural, electrical, and safety codes or with other laws codifying objective standards reasonably related to health and safety.”

PUBLIC RIGHT-OF-WAY

Credit: League of California Cities Filing

• For facilities in the public right-of-way (such as oDAS or Small Cell on brand new or existing wood or steel light/utility poles), 6409 would not apply if the scope involves new ground disturbances (e.g. for ground mounted cabinets) at sites that do not currently feature any ground-mounted cabinets.
  
  The request would not be covered by Section 6409 if it involves installation of any new equipment cabinets on the ground if there are no pre-existing ground cabinets associated with the structure, or else involves installation of ground cabinets that are more than 10% larger in height or overall volume than any other ground cabinets associated with the structure.
  
  In addition, a modification “substantially changes” the physical dimensions of a tower or base station, as measured from the dimensions of the tower or base station inclusive of any modifications approved prior to the passage of the Spectrum Act, if it entails “any excavation or deployment outside of the current site of the tower or base station.”
  
  The FCC defines “site” for towers outside of the public rights-of-way as “the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site.” For other towers (i.e. towers in the public ROW) and all base stations, the FCC further restricts the site to “that area in proximity to the structure and to other transmission equipment already deployed on the ground.” If there are currently cabinets make sure they were previously permitted.
  
  In other words due to 6409, the most obvious limitations to significantly modifying a wireless facility on a wooden utility pole (for example) are primarily utility regulations (limits on equipment and antenna placement per a State rule known as General Order 95 or “GO 95”), and whether new ground mounted equipment is proposed if no cabinets are currently on the ground.
  
  So, for example, a “DAS R” facility (small and streamlined), on a pole not owned by a local government, could be modified after construction (using 6409) in a manner (adding six foot horizontal extension arms, 10-foot vertical extension for new antennas, large noisy cabinets, and adding multiple antennas with wide cable runs dangling below) that does not remotely resemble the original approval.

NEW SITES IN LIGHT OF 6409

• If new projects are approved where antennas and equipment are not fully screened (e.g. with a screen wall or fake vent pipes) but have still been deliberately designed to minimize their appearance (e.g. tops of antennas are even with the top of the penthouse wall surface and/or shrouds are placed below panel antennas to hide cable loops from view, along with slim mounting brackets for a more flush mount to the wall surface); then make specific mention of those screening techniques (refer to them as “concealment elements”) in the motion of approval (or notes associated with the building permit approval for principally permitted facilities).

Unscreened panel antennas and cable trays on an elevator penthouse.

• This is an important step in establishing a written record with respect to future modifications (e.g. significantly taller replacement antennas) that may seek to defeat existing concealment elements.

However, it may be prudent to err on the side of caution and request screen walls or other screening elements more often.

HISTORIC PRESERVATION

• Section 106 (historic preservation) review still applies to certain types of building/location/districts (see the FCC’s 2014 Report and Order). If you agency receives a Section 106 letter, make sure to provide comment (if appropriate, based on concerns regarding historic/cultural resources), including suggesting mitigation measures (e.g. relocation of antennas, cable trays or equipment, and use of screening), and indicating that further review would be needed if plans and photo simulations weren’t provided up front.

Unscreened panel antennas mounted on the facade of a building considered a historic resource

• The FCC adopted several exclusions with regard to the Section 106 process for review of effects on historic properties, including: (1) for collocations on utility structures, including utility poles and electric transmission towers, that meet the following conditions: (a) The deployment does not exceed a specified size limitation, when measured together with any other wireless deployment on the same structure; (b) The deployment will involve no new ground disturbance; and (c) The deployment is not (i) inside the boundary of a historic district, or within 250 feet of the boundary of a historic district; (ii) located on a structure that is a designated National Historic Landmark or is listed in or eligible for listing in the National Register of Historic Places (National Register); or (iii) the subject of a pending complaint alleging adverse effect on historic properties. (2) for collocations on buildings and any other non-tower structures that meet the following conditions: (a) There is an existing antenna on the building or structure; (b) The new deployment meets certain requirements related to visibility and proximity to an existing antenna; (c) The new antenna will comply with all zoning conditions and historic preservation conditions on existing antennas that directly mitigate or prevent effects, such as camouflage or concealment requirements; (d) The deployment will involve no new ground disturbance; and (e) The deployment is not (i) inside the boundary of a historic district, or within 250 feet of the boundary of a historic district; (ii) located on a structure that is a designated National Historic Landmark or is listed in or eligible for listing in the National Register; or (iii) the subject of a pending complaint alleging adverse effect on historic properties.
• See also National League of Cities breakdown of rules Note that the following bullet point on the League website regarding State or local government does not appear to be relevant in California, for New and Collocation (if not eligible for 6409) Facility requests (due to AB 57): “Decline to adopt an additional remedy for State or local government failures to act within the presumptively reasonable time limits.”
• November 2014 video presentation before the City of Calabasas on 6409:

Per Jonathan Kramer: To better understand some elements in my lecture, please understand that it followed immediately after planning item where Verizon Wireless came to the City to permit-in-arrears a site they modified without first securing City permits. This was the sixth time they had modified their cell sites in the City without benefit of first securing City permits.

• Presentation on the FCC Report and Order (6409) at the League of California Cities
• League of California Cities article on Section 6409 (starting on Page 11).

*Modifications typically involve 1) adding, relocating or swapping antennas (sometimes with newer antennas up to 8 feet tall) and microwave dishes; 2) Adding or replacing equipment cabinets, radio relay units, or diesel generators; and 3) increasing the overall tower height or width to support more equipment.