Wireless communications providers in New Jersey that want to build new wireless facilities or expand existing ones have additional tools to do so under the Federal Communications Commission's (FCC) recently enacted rules. In its Oct. 17, 2014, report and order, the FCC clarified the time frames under which a municipality must act on an application for the construction of a new wireless facility.

If a municipality fails to act within those time frames, a wireless facility applicant may obtain relief, including a court order requiring the municipality to permit the facility's construction. As to the collocation of equipment on existing wireless facilities, the FCC finally issued definitions as to what constitutes a “substantial change” in the facility. If the proposed collocation does not represent a substantial change, then federal law requires the municipality to approve the application. Overall, the FCC's 2014 order significantly improves a wireless applicant's ability to obtain approval of an application for a new tower or collocation on an existing one.

Construction of New Wireless Facilities

The ability of municipalities in New Jersey to prevent the construction of new wireless facilities is circumscribed by federal law. The Telecommunications Act of 1996 (TCA), 47 U.S.C. §332(c)(7), was enacted to improve telecommunications services and to remove barriers to entry. In order to accomplish those goals, the TCA limits the ability of municipalities to refuse to approve an application for a new wireless service facility. The TCA imposes several limitations: (1) a municipality may not discriminate among providers of functionally equivalent services; (2) a municipality may not regulate the placement of a tower on the basis of environmental effects of radio frequency emissions, so long as the facility complies with the FCC's radio frequency regulations; (3) a municipality may not regulate facilities in a manner that prohibits the provision of wireless services; (4) a municipality's decision to deny a facility application must be supported by substantial evidence and expressed in writing; and (5) a municipality must act on a facility application within a reasonable period of time. 47 U.S.C. §332(c)(7)(B). A wireless applicant that is adversely affected by a municipality's violation of the TCA may commence an action in state or federal court or petition the FCC for relief.