Some Q & A Regarding Cell Towers
This article is intended in include typical questions and answers that many municipalities have when confronting the enactment of a new or revised cell tower law or in connection with the review of a cell tower siting application.
My hope is that the information provided will be used as a tool to assist municipal officials who are contemplating a new cell tower law or revised regulations. It is also intended to debunk some of the misconceptions and false information being supplied by some local wireless consultants as a means to mislead municipalities into enacting burdensome and over reaching laws many of which involve significant legal risks and exposure.
Q1: Does the wireless industry object to a local municipality's regulation of cell towers?
A1: In my experience, no. I believe that the wireless industry generally does not object to regulation of cell towers as long as the regulations are fair, well balanced and in compliance with established law. Unfortunately, there are many local cell tower laws that appear to be intended to prohibit or "effectively prohibit" cell towers from certain areas, which is a clear violation of the Telecommunications Act of 1996. The enactment of fair and well balanced regulations that (i) identify reasonable application requirements and (ii) create concrete standards by which an application is to be reviewed usually leads to a prompt and efficient review process, something the industry favors.
Hopefully some of the Q & A provided above will assist municipalities avoid some typical pit falls when it comes to enacting new cell tower laws.
Choosing a Wireless Consultant
Some municipalities wish to retain a wireless consultant to assist with the preparation of new or revised tower regulations. This is understandable since many municipal officials have little experience with the wireless industry. If a municipality elects to retain a consultant to assist it with tower regulations, the municipality would be well served identify and retain a well qualified consultant.
As in any industry, there are good and bad wireless consultants. A good wireless consultant is well qualified, reasonable and not fixated on generating income. Typically the good wireless consultant is a licensed engineer (often an electrical engineer) or a qualified radio frequency engineer (note that radiofrequency engineers are not licensed by the State of New York). Choosing an unqualified consultant will not protect the municipality; in fact an unqualified consultant will likely expose the municipality to increased risk of litigation.
Here are some factors to consider when choosing a wireless consultant.
1. Be wary of a consultant who preaches fear. There are certain consultants who routinely claim that absent his/her services, the wireless industry will embark on an intense assault on the municipality resulting in the construction of numerous unnecessary towers in the town. These types of fear tactics are unnecessary and untrue. Wireless carriers are not known for installing unnecessary facilities; it is simply too expensive and bad business to do so.
2. Carefully scrutinize a consultant’s draft tower law. There are certain consultants who have “canned” tower laws that are offered to municipalities either free or for a nominal charge provided that municipality contracts with that consultant to review any and all future wireless applications. Although this looks appealing to the municipality there are certain pit falls associated with such a decision. In my experience, these “canned” tower regulations have been written by individuals with little or no knowledge of existing NYS and federal law; that's why it is free or very inexpensive. Unfortunately, many of these types of laws include illegal provisions. A town which enacts such a law increases its exposure to litigation.
3. Be cautious about a consultant that demands to take control of the review process away from the municipal board with permitting jurisdiction. This is not legally permissible in NY and often leads to an over-burdensome, excessive and expensive review in violation of federal and state law. A tell tale sign of this is a consultant who demands that his/her process be followed without exception. I have witnessed some consultants control the entire review process for a year or longer with little or no input from the permitting jurisdiction. This abdication of the permitting jurisdiction’s authority presents legal issues with the review process.
4. Question the length of review of a typical application. Often the unqualified consultant will spend a year or more reviewing an application (even though the consultant isn’t qualified to review the technical documentation in the first place). Many unqualified consultants pretend that wireless applications are complicated and complex; don’t be fooled, they are not. Unqualified consultants do this to increase the review time and money earned.
5. Municipalities, don't be fooled by a lengthy review. No matter how long an unqualified consultant takes to review an application, do not think that the project will change. Typically after a lengthy review, the unqualified consultant recommends approval of the project with little or no changes. This is a further sign that the municipality receives no benefit from hiring an unqualified consultant. The project usually goes through in the proposed location anyway. This is due in large part to the Town's consultant knowledge that he/she lacks the qualifications to challenge the expert testimony which usually accompanies the wireless application.
6. Be cautious with a consultant who emphasizes that his/her services will not cost the community anything; that the carrier will pay for everything. The consultant who bills an excessive amount and has the town attempt to recoup the fees through an escrow account to be funded by the applicant present special risks to the municipality.
7. Excessive application fees for tower applications present potential legal issues, especially when the application fees for other uses are substantially less. Example: a new tower application fee in certain “canned” tower laws can be as high as $5,000, while the fee for the same type of application for a different use may be 25 times less (i.e. $200). There is no justification for such discrepancy.
Hiring a well qualified wireless consultant is serious business. Some municipalities continue to discourage wireless uses in their towns through the enactment of burdensome and over reaching tower regulations. This has not gone unnoticed.
The Federal Communications Commission (FCC) on November 18, 2009 issued what is commonly referred to as a Shot Clock Declaratory Ruling. The ruling places new time constraints on land use/zoning applications for new wireless facilities. An application for collocation (i.e. placing antennas on an existing tower or structure) shall be decided in 90 days; an application for a new tower shall be decided in 150 days. Failure to do so presumptively constitutes a failure to act under Section 332(c)(7)(B)(v) of the TCA of 1996.
