by, David C. Kirk, AICP
Troutman Sanders LLP
In little more than a decade personal wireless communication devices have gone from a luxury enjoyed by few to a near-necessity relied on by many. A recent study by the Centers for Disease Control estimates that approximately 25% of households in Georgia have “cut the cord” and now rely entirely on wireless devices for their personal communication needs. In some jurisdictions, more than 85% of all emergency (E-911) calls are made using wireless devices. At home, at work, and in between wireless devices and wireless communication have become an essential part of our everyday lives.
As the number of people using wireless mobile devices has skyrocketed, the devices themselves have rapidly evolved from simple cellular telephones to sophisticated handheld computers. Users not only make phone calls, but send and receive electronic messages, surf the internet, download music and videos, and perform a host of other functions ranging from simple to sophisticated. It seems as though there’s an “app” for almost everything, with more available on a daily basis. In fact, it is anticipated that within a few years the majority of Americans will access the internet using a wireless device.
As more and more Georgians use an increasing array of wireless voice, data, and broadband services the demand on the underlying wireless infrastructure continues to grow. In response to this astonishing growth, and in recognition of the importance wireless communication plays in personal, business, and emergency communication around the State, the Georgia General Assembly recently passed the Advanced Broadband Collocation Act (the “Act”), which Governor Perdue signed into law on May 24, 2010 (O.C.G.A. §§ 36-66B-1 through 36-66B-4). The Act grew out of cooperative discussions over many months involving the Association County Commissioners of Georgia, the Georgia Municipal Association, local governments, and the wireless industry, and establishes a streamlined, consistent process for the installation or upgrade of facilities necessary to increase the availability of advanced wireless communication services throughout Georgia.
As indicated by its title, the Act applies only to “collocation” – the placement of new wireless facilities (such as a new antenna array) on a previously approved and constructed tower or other support structure along with the placement of equipment within the existing equipment compound, and “modification” – the improvement, upgrade, expansion, or replacement of existing wireless facilities on an existing tower or support structure and within an existing equipment compound. In these cases, the land use or zoning decision involving the original location of the telecommunications tower or other support structure already has been made, and the General Assembly concluded that detailed zoning or land use analysis was unwarranted simply to collocate on or modify such existing facilities. The Act has no impact on local land use and zoning decisions involving the location of new towers or support structures.
When an application for collocation or modification meets several criteria set forth in the Act, it must be reviewed using the streamlined process provided in the Act. The proposed new or modified facility must not increase the height or width of the existing tower or support structure, it must not increase the dimensions of the existing equipment compound, it must comply with all original conditions of approval for the site, and the additional equipment must not exceed the weight limits for the tower or support structure, as demonstrated by a letter from a licensed structural engineer.
This streamlined process requires local jurisdictions to treat a qualifying application for collocation or modification generally as it would any other application for site plan or building permit approval. Such reviews can be carried out using existing staff, just as other building plan reviews are performed. No additional zoning review is permitted – aside from what is typically done for building permits. No radio frequency information or other technical documentation intended to “prove the need” or otherwise justify the carrier’s business decision may be required of the applicant. To safeguard the ability of local first responders to communicate, the local government may require a letter certifying that the proposed wireless facility will not interfere with local emergency communications.
Finally, reflecting a recent Declaratory Ruling by the Federal Communications Commission, the Act establishes a maximum 90-day period for local review and final action on applications for collocation or modification. Consistent with these federal rules, if the local government determines an application is incomplete and notifies the applicant in writing within 30 days after the application is filed, the 90-day period does not resume until the applicant responds with the required information.
For many local governments in Georgia, the Advanced Broadband Collocation Act will have little or no effect on how they review applications for collocation or modification. These jurisdictions’ ordinances already distinguish between the land use and zoning decisions involved in the initial siting of telecommunication towers and the inherently administrative process of issuing permits for the installation of equipment on existing facilities. For others, some revisions may be required in order to comply with the law and ensure the timely deployment of wireless facilities to support personal, business and emergency communications throughout Georgia. Local planners are in the best position to work with their city or county attorney to review their local ordinance to make sure it complies with the Act and, if necessary, to make the minor revisions necessary to reflect the Act’s requirements.