This piece is “Part II” of a two part blog on Section 6409 of the Spectrum Act – a portion of the Federal Middle Class Tax Relief and Job Creation Act of 2012, or “Section 6409” for short.1 “Part 1” is available for a quick review of some basics of Section 6409.
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 to promote the deployment of wireless infrastructure by eliminating unnecessary reviews, costs and delays. The tools to achieve Section 6409’s goal are set forth in the FCC’s implementing regulations (47 C.F.R. § 1.40001).
The FCC regulations specifically contain a “failure to act” provision which appears to be the “hammer” in the 6409 toolbox.2 The failure to act provision states that: “In the event the reviewing State or local government fails to approve or deny a request seeking approval under [Section 6409] within the timeframe for review (accounting for any tolling), the request shall be deemed granted.” (Emphasis added.) This generally means that if a municipality fails to approve a complete application filed under Section 6409 within 60 days from its filing date, then the application is approved by default. The question that has many applicants wondering is what do they do next after their application is “deemed granted” by a municipality’s lack of action?
Let’s walk through a typical fact pattern, like that described in Part I of this blog, and some potential issues for an applicant to consider.
An applicant files a complete building permit application for a 6409 eligible modification meeting all applicable building code requirements and establishing compliance with the 6409 parameters. The 60-day period is about to expire without the Town granting the application, and without the Town providing the applicant with any written notice within the first 30 days (identifying items the Town would have wanted the applicant to submit as part of its review).
First, the applicant should consider sending a pre-60 day expiration communication notifying the municipality in writing of the impending approval deadline. This helps to keep the municipality informed and encourages the municipality’s compliance before the 6409 deadline expires.
Second, once the 60-day period expires the FCC regulations require an applicant to send notice. Indeed, the regulations actually state: “The deemed grant does not become effective until the applicant notifies the applicable reviewing authority in writing after the review period has expired (accounting for any tolling) that the application has been deemed granted.” (Emphasis added). This is the only “deemed granted” procedural requirement stated in the FCC regulations.
It is worth noting that one Circuit Court opined that the “failure to act” provision and “deemed granted” language does not actually require the municipality to take any action. Specifically, the Fourth Circuit held in Montgomery County, Md. v. F.C.C. that the “deemed granted” procedure comports with the Tenth Amendment because it does not require the states or municipalities to take action, but rather allows the applications to be granted by default rather than an affirmative approval.3 The Court interpreted this key provision to preempt state and local regulations that prevent an applicant’s Section 6409 request from being timely approved.
The applicant’s third, and possibly final step is very much dependant on the specific facts of the application, the applicant’s goals for the application and the applicant’s past experiences with the municipality. A strict reading of Section 6409 supports the applicant proceeding with work. However, a particular applicant may be willing to allow the municipality a few extra days to issue the requested permit, or to at least acknowledge that the request has been deemed granted if perhaps the applicant previously had a favorable 6409 experience with the same municipality.
Applicants should speak with experienced practitioners in advance of their 6409 filings to establish a strategy at the start of the process to ensure that their rights under federal law are protected, and to minimize the risk of experiencing protracted delays and unnecessary expenses.