All local governments, regardless of population, urgently need direct federal funding to continue to fight COVID-19 and protect their residents through the summer and beyond. The citizens of small towns matter just as much as the citizens of big counties, and New Jersey municipal employees contribute at least as much to society as private sector workers.

FCC to Consider Further Action Preempting Local Authority of Telecommunication Equipment Siting

This week the Federal Communications Commission announced that it would be considering at its June 9^th open meeting, the “State/Local Approval of Wireless Equipment Modifications Under Section 6409(a)” Declaratory Ruling and Notice of Proposed Rulemaking.  The League opposes the Declaratory Ruling (Ruling) and Notice of Proposed Rulemaking (NPRM).

The Ruling and the NPRM stem from petitions filed by the Wireless Industry Association (WIA) and the Communications Technology Industry Association (CTIA), in late 2019. These proposals aim to further limit local oversight of wireless towers and pole attachments.  If enacted, the proposals would substantially limit current authority local governments have to manage changes made to large wireless towers in their communities, as well as further limiting the control pole owners, such as local governments or utilities, have over pole attachments.

The draft declaratory ruling and NPRM would have the following effects on site modification processes, if enacted as currently written:

 

Declaratory Ruling:

• 60-day shot clocks for so-called "6409(a)" structures – that is, those subject to certain streamlined review conditions as an "eligible facilities request" to alter an existing structure – would begin when applicants take the first step in a locality's review process and submits written documentation addressing how the proposed modification would not cause a "substantial change" to the existing structure.
• This first step must be objectively verifiable, must be a single step and not a series, and within the applicant's control – i.e., not the date of a meeting with local government staff or a hearing, but the date that meeting was requested.
• All subsequent processes and steps must be completed within the 60-day shot clock window.
• Several definition changes regarding measuring the distance between existing towers and "equipment cabinets".
• Weakening of concealment oversight by local governments so that modifications may not be rejected on concealment grounds unless the modification would "cause a reasonable person to view the structure's intended stealth design as no longer effective after the modification" (several examples are provided in the text of the item).

 

NPRM:

• The FCC seeks comment on proposed changes to rules regarding excavation or deployment outside the boundaries of an existing tower site, including the definition of the boundaries of a tower site, which would affect whether certain modifications of existing structures qualify for streamlined section 6409(a) review.
• Proposes that the existing site be defined to include the applicant's leased or owned area at the time of the application, even if that area was not included in the original site.
• Proposes defining any excavation or deployment within 30 feet of the existing boundaries of a macro tower as not a significant change, and so eligible for streamlined review.

• Comments on the NPRM would be due 20 days after publication in the Federal Register and reply comments 30 days after publication.

The League has submitted a letter to FCC Commissioners, opposing the Ruling and NPRM and supporting the comments that the National League of Cities and other local government groups have submitted in regard to the WIA and CTIA Petitions.

We strongly urge all to write to the FCC expressing their opposition to this unnecessary and inappropriate preemption of local control.  If you do submit a letter we kindly request that you please be sure to copy the League.

Contact: Frank Marshall, Esq., Associate General Counsel, FMarshall@njlm.org or 609-695-3481 x137.

On Monday Governor Murphy unveiled his multi-stage approach to reopen businesses and activities.  The stages will be driven by the following:  health indicators such as new cases, hospitalizations and ICU and ventilators usage; availability of testing and contact tracing capacity per 100,000 residents; healthcare system resiliency with beds, healthcare workers and personal protective equipment; ability to effectively safeguard work places; safe guarded childcare, education, transit ability; and compliance of individuals and employers.  To resume in person work for all there must be widespread use of vaccine or life-saving treatment.  The Governor noted that measures from previous stages may be “swiftly reinstated” if health conditions deteriorate.

The stages are as follows:

Maximum Restrictions

• Most individuals stay at home and activity is limited to essential tasks.
• Permitted activities and businesses include:
  • Emergency health care
  • Essential construction
  • Manufacturing
  • Essential retail, including grocery stores and pharmacies
  • K-12 and Higher Education engaged in distance learning
  • Child Care open for essential workers only

Stage 1 (New Jersey is currently in stage 1)

• Relaxation of restrictions on low-risk activities, if appropriately safeguarded
• Phased-in businesses may include:
  • Non-essential, but easiest to safeguard work activities at physical location if they meet safeguarding and modification guidelines. For example, non-essential construction with protections.
  • Some non-essential retail may open with significant modification, such as curbside pick-up
  • All workers who can work from home continue to work from home even if their industry is reopening.
  • Phased-in activities include:
    • State and county parks
    • Non-essential construction
    • Curbside retail
    • Drive-in activities
    • Beaches
    • Elective surgeries
    • K-12 and Higher Education engaged in distance learning
    • Child Care expanded with capacity restrictions

Restrictions are relaxed on additional activities that can be easily safeguarded.

Stage 2

• Relaxation of restrictions on additional activities that can be easily safeguarded
• Phased-in businesses may include:
  • More work activities allowed at physical locations only if they adhere to safeguarding and modification guidelines. For example,
    • Expanded retail
    • Safeguarded restaurants with outdoor seating
• Possibly included could be
  • Limited personal care
  • Indoor dining
  • Museums
  • Libraries
• All with significantly reduced capacity
• All workers who can work from home continue to work from home even if their industry is reopening.
• Some personal care services may be provided on a limited basis
• K-12 and Higher Education potential for some in-person learning with modifications
• Child Care expanded with capacity restrictions
• Summer schools and summer camps may have limited in-person engagement if health conditions improve

Stage 3

• Relaxation of restrictions on most activities with significant safeguarding
• Phased-in businesses may include:
  • More work activities allowed at physical locations only if they adhere to safeguarding and modification guidelines. For example,
    • In-person meetings
• Possibly included could be
  • Expanded dining
  • Critical in-office work
  • Limited entertainment
  • Expanded personal care
  • Bars with limited capacity
• All workers who can work from home continue to work from home even if their industry is reopening.
• Personal care services may be provided on a more extended basis

Across all stages the following precautions may include:

• Continue to work from home for work than can be done from home
• Clinically high-risk individuals who can stay at home should continue to do so
• All residents and businesses should follow state and federal safeguarding guidelines which include
  • Washing of hands
  • Wearing of mask in public
  • Respecting social distancing
  • Minimizing of  gatherings
  • Disinfecting workplace and businesses
  • No mass gatherings
  • K-12 and Higher Education may operate in-person learning with reduce capacity
  • Child Care likely open for most
  • Day and summer camps likely open for all with safeguards and modifications

If public health indicators, safeguarding, or compliance worsen on a sustained basis, New Jersey will be prepared to move back to more restrictive stages as well.

Contact:  Lori Buckelew, Sr. Legislative Analyst, lbuckelew@njlm.org, 609-695-3481 x112.