Recent changes to RSA 12-K facilitate a streamlined application process for the collocation or modification of personal wireless service facilities (“PWSF”) such that carriers may, in many instances, side-step the local land use board approval process, traditionally employed by New Hampshire municipalities in this context, altogether. Governing bodies and local land use boards alike should be familiar with the changes to the law.
RSA 12-K, “Deployment of Personal Wireless Service Facilities,” was amended in 2013 to reflect developments in federal law, mainly that of Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012, Public Law 112-96, signed into law on 22 February 2012 which amends Section 704 of the Telecommunications Act (47 U.S.C. § 332(7)), and promote the public policy of facilitating greater access to broadband for all residents of New Hampshire. The focus here will be on the amendments related to the siting, collocation and modification of PWSFs.
RSA 12-K’s definition of “personal wireless service facility” mirrors the definition found in the federal Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7)(C)(ii), and includes:
[F]acilities used or to be used by a licensed provider of personal wireless services. A PWSF includes the set of equipment and network components, exclusive of the underlying tower or mount, including, but not limited to, antennas, accessory equipment, transmitters, receivers, base stations, power supplies, cabling, and associated equipment necessary to provide personal wireless services.
RSA 12-K:2, XXII. “‘Collocation’ means the placement or installation of new PWSFs on existing towers or mounts, including electrical transmission towers and water towers, as well as existing buildings and other structures capable of structurally supporting the attachment of PWSFs in compliance with applicable codes.” RSA 12-K:2, X. Collocation does not include, however, “substantial modifications” which are modifications to existing PWSFs which would significantly increase the height of a tower or mount, adding a large appurtenance to an existing PWSF, increasing the square footage of the existing equipment compound by more than 2,500 square feet, or modifying the PWSF in any way that would defeat the effect of the camouflage. See RSA 12-K:2, XXV for specifics. In summary, the new rules discussed below apply to applications for collocation or modification which do not rise to the level of constituting a “substantial modification.”
RSA 12-K:10 and RSA 12-K:11 pertain to collocation and modification of PWSFs. The new law in these sections establish uniform application and approval criteria. Specifically, review of collocation and modification applications are limited to a review “for conformance with applicable building permit requirements and shall not otherwise be subject to zoning or land use requirements, including design or placement requirements, or public hearing review.” RSA 12-K:10, I. In other words, these applications cannot be vetted through the traditional Planning Board site review process. Further, within 45 days of receiving a collocation or modification application, the reviewing authority must: 1) review the same in light of its conformity with applicable building permit requirements and consistency with RSA 12-K; 2) make a final decision to approve or disapprove the application; and 3) advise the applicant in writing of its final decision. RSA 12-K:10, II. Importantly, a collocation or modification application is deemed to be complete unless the review authority notifies the applicant, in writing, within 15 calendar days of submission, of the “specific deficiencies in the collocation application or modification application which, if cured, would make the [the application] complete.” RSA 12-K:10, I. If the reviewing authority fails to act on a collocation or modification application within 45 calendar days, the application is deemed approved. RSA 12-K:10, III.
Additionally, no reviewing authority may require an applicant to submit information about, or evaluate an applicant’s business decisions with respect to, its designed service, customer demand for service, or quality of its service to or from a particular area or site; evaluate a collocation or modification application based on the availability of other potential locations; decide which type of personal wireless services, infrastructure, or technology will be used by the applicant; require the removal of existing mounts, towers, or PWSFs, as a condition to approval; impose environmental testing, sampling, or monitoring requirements; reject an application based on perceived or alleged environmental effects of radio frequency emissions; charge an application fee, consulting fee or other fee associated with submission, review, processing, and approval of collocation or modification application that is not required for similar types of commercial development within the authority’s jurisdiction; impose any type of financial surety to ensure that abandoned or unused facilities can be removed unless the reviewing authority imposes similar requirements on other permits for other types of commercial development or land uses; or limit the duration of the approval of a collocation or modification application. See RSA 12-K:11, I(a) – (n).
Complicating things, on 17 October 2014, the Federal Communications Commission (“FCC”) released new rules which implement and enforce Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, which may, upon further analysis, impact the validity of the RSA 12-K in New Hampshire.
In summary, local planning officers, code enforcement officers, and land use boards in New Hampshire should be aware of the basic nature of the aforementioned changes in RSA 12-K so they are readily able to timely handle an application for collocation or modification of a PWSF. Additionally, every effort should be made to track additional developments and/or changes in the law which may be enacted in light of the new FCC rules.