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HomeMy WebLinkAboutMT06004C 6409 Eligible Facilities Request6409 Eligible Facilities Request for Modifications to an Existing Wireless Facility Tower Date: 8/20/25 Site Address: 219 E Tamarack Street, Bozeman MT 59715 Dear City of Bozeman Planning Department: Re: Eligible Facilities Request to modify Transmission Equipment on an Existing Wireless Tower located at 219 E Tamarack Street, Bozeman, MT 59715 A. T-Mobile’s Proposed Project is an Eligible Facilities Request that Must Be Granted Network Connex on behalf of T-Mobile West LLC (“Applicant”) is submitting the attached application to add, remove, modify, or replace Transmission Equipment (the “Request”) at the Tower located at 219 E Tamarack Street, Bozeman, MT 59715 in the City of Bozeman (“Jurisdiction”). This Request is covered by Section 6409 of the Spectrum Act (47 U.S.C. Sect. 1455(a)),1 which provides that state and local governments “may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.” In this case, the enclosed Request involves a proposal to collocate on the existing wireless facility owned by Gallatin County 911 at the site address listed above. The existing Tower is a structure that is 100’ high and presently contains wireless facilities. The Federal Communications Commissions (“FCC”) determined that any modification to an existing telecommunications Tower that meets the following criteria does not substantially change the physical dimensions of the existing Tower (47 C.F.R. § 1.6100(b)(7)), and therefore is an Eligible Facilities Request that must be granted under Section 6409. The proposed project satisfies those criteria because it: 1) Will not increase the height of the Tower by more than ten percent (10%) or twenty (20) feet, whichever is greater; Details: There is no facility or appurtenance height increase proposed in the scope of this project 2) Does not protrude from the edge of the Tower by more than twenty (20) feet; Details: The proposed project scope will not entail the addition of any structure equipment that protrudes more than 20’ from the edge of the Tower 3) The proposed project does not defeat any existing concealment elements at the site. To be considered a “concealment element,” the element must have been a part of the facility at either: 1 See also 47 C.F.R. § 1.6100 (the FCC’s 6409 implementing regulations). (1) the time of original approval; or (2) at the last modification of the tower if such modification occurred prior to the February 22, 2012 or outside the 6409(a) process (whichever is later). A “concealment elements” is something that makes a wireless facility appear to be something “fundamentally different than a wireless facility,” it does not include “any attribute that minimizes the visual impact of a facility, such as a specific location on a rooftop site or placement behind a tree line or fence.”2 Moreover, a modification can increase the size of the concealment features, so long as they: (i) do not increase by more than the criteria in (1) and (2) above, and (ii) would continue to make “the structure appear not to be a wireless Facility.” If so, then the modification would not defeat concealment. Details: The existing site does not have any existing concealment elements, so this criterion is satisfied 4) Does not entail any excavation more than 30 feet outside the current site area unrelated to utility connections; Details: The proposed project will not involve excavations outside the current site area or less than 30 feet outside the current site area aside from required underground utility connections 5) Does not involve the installation of more than the standard number of equipment cabinets for the technology involved, not to exceed four. Details: The proposed project will involve the installation of 2 new cabinets 6) The proposed project complies with all prior conditions of approval for the existing site, except for any non-compliance that is due to an increase in height, increase in width, addition of equipment cabinets, or new excavation that does not exceed the thresholds above. These conditions may relate to aesthetics or minimizing the visual impact of the wireless facility. To be enforced, there must be express evidence of specific conditions of approval and continued compliance with such conditions. Response: The proposed project will comply with all prior conditions of approval for the existing site Finally, all of the equipment being installed as part of this Request qualifies as Transmission Equipment under the FCC’s rules at 47 C.F.R. § 1.6100(b)(8). Based on the foregoing, the Request qualifies for expedited processing under the Spectrum Act. B. The 60 day Shot Clock Applies to All Necessary Permits or Authorizations to Necessary for T-Mobile to Proceed with the Request 2 Implementation of State and Local Governments’ Obligation to Approve Certain Wireless Facility Modification Requests Under Section 6409(a) of the Spectrum Act of 2012 , FCC 20-75, Declaratory Ruling and Notice of Proposed Rulemaking, ¶ 35 (June 10, 2020). (“5G Upgrade Order”). Under Section 6409 “a State or local government may not deny, and shall approve, any eligible facilities request... within 60 days of the filing of a complete application.”3 As the FCC’s explained, that time period covers “all qualifying applications” and all necessary permits and authorizations.4 Where a jurisdiction requires an applicant to obtain clearance from separate departments and/or to obtain numerous permits, the FCC explained that the applicant starts the 60 day shot clock when: 1) it takes the “first procedural step” that the jurisdiction requires, even if there are multiple potential “first steps” with various municipal committees or departments, and 2) the applicant provides written documentation demonstrating that the applicable eligible facilities request criteria are satisfied.5 Here, the 60-day shot clock starts with the filing of the enclosed application. C. Notice of Expedited Permit Processing and Deemed Granted Remedy Under federal law, any Eligible Facilities Request is deemed granted 60 days after a complete application is filed. Thus, if 60 days pass after the submission of this Request and the City has not acted to grant or deny the Request, it will be deemed granted.6 At that time, the applicant may advise the City that the application has been deemed granted. If the City wishes to contest whether Request has been deemed granted, the burden is on the City to file a lawsuit in a court of competent jurisdiction within 30 days after receipt of a written communication notifying it that the Request has been deemed granted. Here, it is clear that the deemed granted remedy applies to all of the City’s requirements. T-Mobile is committed to working cooperatively with you to process this request in a timely and efficient manner. Please do not hesitate to contact me if you have questions at the contact information listed below. Sincerely, Ben Marcus Network Connex Agent on behalf of applicant T-Mobile bmarcus@networkconnex.com 3 Id. ¶ 39 (June 10, 2020). 47 U.S.C. § 1455(a)(1). 4 City of Portland v. U.S., 2020 U.S. App. Lexis 25553 **48-49 (9th Cir. Aug. 12, 2020). 5 5G Upgrade Order, ¶¶ 15-16 (June 10, 2020). The FCC also explained that its ruling provided “considerable flexibility” to structure their procedures for review of Eligible Facilities Requests, “but prevent localities from ‘impos[ing] lengthy and onerous processes not justified by the limited scope of review contemplated’ by Section 6409(a).” Id. ¶ 17. 6 Under the FCC’s rules, the jurisdiction has 30 days to advise the applicant of the completeness of its application. The rules also provide for the tolling of the shot clock under certain situations.