Activism: industry opportunities
The past couple of years have placed economic pressure upon all sectors of the communications business, including the tower industry. While the reasons range from the burst of the dot-com bubble to slower development of new technologies, several key federal developments are on the horizon. The developments include the expected release of a Federal Communications Commission decision radically changing spectrum policy, and a nationwide tower-antenna agreement. Taken together, the developments offer a well-positioned entity the opportunity to reemerge from the communications industry recession as a more resilient player.
In response to criticisms that spectrum was underutilized or inefficiently used, the commission issued a Notice of Proposed Rulemaking in November 2000 that offered to revolutionize the way the communications industry envisions spectrum ownership. In short, the commission proposed that licensees have the flexibility to lease all or portions of their assigned spectrum without the need of prior Commission approval. Until recently, accountability, eligibility and other technical regulatory issues have kept the release of a commission order on the subject in “pending” status. The recent release of the Spectrum Policy Task Force’s report, whose recommendations included “provid[ing] incentives for efficient spectrum use… through flexible rules and facilitating secondary markets,” indicate that the release of the order is close at hand.
The spectrum policy shift offers the potential of an entirely new licensee pool. Licensees possessing large amounts of underutilized spectrum who have been reluctant to assign their rights away for fear of not gaining the full return of their investment will now be able to “lease” their respective spectrum rights for defined periods of time. Entities interested in ownership of the license, but not the regulatory compliance issues associated with ownership, may become the future spectrum lessees. Such entities could include security conscious organizations that require absolute control of the day-to-day operation of the license.
Entities that adapt to this new model stand to gain the most from the commission’s policy shift. As an example, licensees will be able to offer a whole new group of potential tenants to tower owners possibly permitting renegotiations of tower leases. First steps should include gaining a thorough understanding and familiarity with the communication needs of local players and industry at large. Seeking competent counsel to draft frequency lease agreements that maximize reward and limit risk will be essential.
Around the time of publication of this article, the commission and the ACHP will be releasing a draft national agreement designed to streamline the siting of new and replacement communications antennas under the National Historic Preservation Act. The streamlining would exclude certain wireless communications and broadcast facilities from review by the SHPO, the FCC and the ACHP.
For example, in most cases, modification as defined as “not substantially increasing the size of the existing tower” or construction of towers of 400 feet or less that are within 200 feet of either: 1) a right-of-way corridor designated for towers or utility transmission lines; or 2) an existing limited access Interstate Highway with a speed limit of 55 MPH or higher; or 3) a railway corridor in active use for passenger trains would qualify for exclusion of NHPA under the current draft.
The proposed agreement also establishes a presumed Area of Potential Effects parameter for visual effects of a tower. As an example, towers 400 feet or taller would have a presumed APE of a circle with a radius of one and a half miles from the center of a tower. While determinations of visual effect would not be prohibited beyond the defined parameters, the presumption would not continue to exist.
The draft agreement will be released for public comment for 30 days, after which the commission will release a final version with any revisions it deems necessary based on the comments.
The agreement has the potential of alleviating the time and resource burdens placed upon tower owners that undertake the NHPA review process allowing communication providers greater site flexibility.
However, as with any commission decision, the need for a zealous advocate remains, so arguments such as whether a modification is “substantial” can be made.
Additionally, the proposed agreement applies only to historic sites and does not affect one’s NEPA requirements.
In summary, government activism provides a wealth of opportunities to the entity that best positions itself. Whether one insulates himself with informed advisers or seeks a flexible business model, the goal is to make the laws, regulations or commission decisions work for you.
Jason Kerben is an attorney with the telecommunications group of the law firm of Shulman Rogers Gandal Pordy & Ecker. Contact him at 301.230.5200 or [email protected]