(A) Background. Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L 112-96, codified as 47 U.S.C. section 1455(a) ("section 6409"), generally requires that state and local governments "may not deny, and shall approve" requests to collocate, remove or replace transmission equipment at an existing tower or base station. Federal Communication Commission ("FCC") regulations interpret this statute and establish procedural rules for local review, which generally preempt certain subjective land-use regulations, limit permit application content requirements and provide the applicant with a potential "deemed-granted" remedy when the state or local government fails to approve or deny the request within 60 calendar days after submittal (accounting for any tolling periods). Moreover, whereas section 704 of the Telecommunications Act of 1996, Pub. L. 104-104, codified as 47 U.S.C. section 332, applies to only "personal wireless service facilities" (e.g., cellular telephone towers and equipment), section 6409 applies to all "wireless" facilities licensed or authorized by the FCC (e.g., cellular, Wi-Fi, satellite, microwave backhaul, and the like).
(B) Definitions. Abbreviations, phrases, terms, and words used in this section that are relevant to section 6409(a) facilities are defined in § 154.142.
(C) Applicability. This chapter applies to all requests for approval to collocate, replace or remove transmission equipment at an existing tower or base station submitted pursuant to section 6409(a).
(D) Application review. Under federal law, the city must approve or deny an application for an eligible facilities request, together with any other city permits required for a proposed wireless facility modification, within 60 days after the applicant submits the application for a wireless facility minor modification permit, unless tolled due to issuance of any notice of incomplete filing or by mutual agreement between the city and the applicant. Under federal law, failure to act on a wireless facility minor modification permit application within the 60-day review period, excluding tolling period, will result in the permit being deemed granted by operation of law.
(E) Prior permit approvals. The following prior permit approvals are required prior to qualifying for approval of an eligible facilities request under section 6409.
(1) Section 6409 approval. Any request to collocate replace or remove transmission equipment at an existing tower or base station submitted with a written request for approval under section 6409 shall require an amendment to the underlying telecom permit for the tower or base station subject to the reviewing authority's approval, conditional approval, or denial without prejudice.
(2) Other permits and regulatory approvals. No colocation or modification approved pursuant to this chapter may occur unless the applicant also obtains all other permits and regulatory approvals as may be required by any other federal, state, or local government agencies, which include without limitation building permits, encroachment permits, electrical permits and any other permits and/or regulatory approvals issued by other departments or divisions within the city. Furthermore, any section 6409 approval granted under this chapter shall remain subject to any and all lawful conditions and/or legal requirements associated with such other permits or regulatory approvals.
(F) Required findings for approval. The City Manager or designee may approve or conditionally approve any application for a section 6409 eligible facilities request subject to the following findings:
(1) Involves colocation, removal, or replacement of transmission equipment on an existing tower or base station; and
(2) Does not substantially change the physical dimensions of the existing tower or base station.
(G) Criteria for denial without prejudice. The City Manager or designee may deny without prejudice any application for a section 6409 EFR approval if the City Manager or designee finds that the proposed project:
(1) Does not meet the finding required in division (E);
(2) Involves replacement of the entire support structure; or
(3) Violates any legally enforceable law, regulation, rule, standard or permit condition reasonably related to public health and safety, which includes without limitation laws, regulations, rules, standards, or permit conditions related to building and electric codes, aviation safety, and flood control.
(Ord. 2021-03, passed 12-7-2021)