The Middle Class Tax Relief and Job Creation Act of 2012 (the “Tax Relief Act”), which President Obama signed into law on February 22, 2012, is commonly thought of as the legislation which extended the payroll tax exemption. However, the Tax Relief Act contained numerous unrelated provisions.
Among these provisions of the Tax Relief Act was Section 6409(a), a product of several years of lobbying by the wireless telecommunications industry. This provision provides that “notwithstanding Section 704 of the Telecommunications Act of 1996…a state or local government may not deny, and shall approve, any “eligible facilities request” for a modification of an existing tower or base station that does not “substantially” change the physical dimensions of such tower or base station.” The term “eligible facilities request” is defined as any request for a modification of an existing wireless communications tower or base station that involves the addition of new antennas or transmission equipment or the removal or replacement of existing antennas or transmission equipment.
FCC Issues Guidance For Interpretation of Section 6409(a)
For nearly a year following the enactment of the Act, local governments have operated under substantial confusion as to how to apply Section 6409(a)’s limitations on local government approvals of “eligible facilities requests.” On January 25, 2013, the FCC finally released guidance on the following questions:
- What does it mean to “substantially change the physical dimensions” of a tower or base station?
- What is a “wireless tower or base station”?
- May a state or local government require an application for an action covered under Section 6409(a)?
- Is there a time limit within which an application must be approved?
The FCC Guidance can be found here.
While the FCC clarification is advisory only, it is welcomed by many local governments who have been struggling with the ambiguous wording of the new statute.
Section 6409(a) Presents Constitutional Questions
As local governments contend with the application of the statute to wireless facilities in their communities, it is also likely that Section 6409(a) could be subject to a Constitutional challenge, under the Commerce Clause and 10th Amendment of the U.S. Constitution. Recent U.S. Supreme Court cases have interpreted both the Commerce Clause and 10th Amendment to limit the federal government’s authority to intrude on the police powers traditionally reserved for state and local governments. Section 6409(a) impinges on local police powers by its attempts to override “any” and all provisions of state and local law related to review of wireless facilities applications.
In Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, 531 U.S. 159 (2001)(“SWANCC”), the U.S. Supreme Court construed the federal Clean Water Act so as to not preempt state and local regulations, affirming that Congress’ authority under the Commerce Clause is limited in regard to the area of land and water use, traditionally an area primarily controlled by the states and local governments. This decision is just one in a long trend of the Supreme Court’s narrowing of the authority of Congress to compel or control state and local government actions based on the Commerce Clause. The zoning regulation of wireless facilities falls within an area which is similarly a subject of local control. Local governments have an argument that Section 6409(a) of the Tax Relief Act is unconstitutional, although wireless telecommunications providers can be expected to mount a strong defense to any such challenge.
Author(s): Johanna M. Lundgren
