FCC Comments: Preemption of Local Wireless Regulations

On September 27, 2013, the Federal Communication Commission (FCC) released a Notice of Proposed Rulemaking (NPRM), related to how wireless tower siting applications (e.g., for cell phone and similar communications systems) are processed by cities. 

The 86-page NPRM covers several issues.  Most important to cities is the issue relating to the FCC proposing rules to implement legislation (Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012) passed by Congress last year.  Section 6409 provides that:

Notwithstanding . . . any other provision of law, a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.

The FCC sought comments to clarify the provision above.  While the language seems clear, some industry groups have contended – among many other things – that it mandates cities to allow access to city facilities for wireless facility placement.

In comments filed by the National League of Cities, the National Association of Telecommunications Officers and Advisors, the National Association of Counties, and the United States Conference of Mayors, those national organizations urged the FCC not to hinder broadband deployment by adopting formal rules that would impose a one size fits all interpretation.

The Texas Municipal League and the Texas Coalition of Cities for Utility Issues filed reply comments to supplement the national organizations.  The comments essentially state that the FCC should not attempt to preempt local authority relating to wireless facilities.

The FCC will now consider the numerous governmental and industry comments that were filed.

TML member cities may use the material herein for any purpose. No other person or entity may reproduce, duplicate, or distribute any part of this document without the written authorization of the Texas Municipal League.

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