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ATTORNEY GENERAL

COUNSEL TO THE GENERL ASSEMBLY

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CHIEF DEPUTY ATTORNEY GENER-AL

DEPUTY COUNSEL

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Jenruv M. McCov

DEPUTY ATTORNEY GENER,{L

ASSISTANT ATTORNEY GENERAL

THE ATTORNEY GENERAL OF MARYLAND

OFFICE OF COUNSEL TO THE GENERAL ASSEMBLY

Devro'W Smuprn
SSISTANT AITORNEY GENERI-

March 16,2015
The Honorable Herb McMillan
164 House Off,rce Building
Annapolis, Maryland 21 40 I -199 |
Dear Delegate McMillan:
You have asked for further advice concerning House Bill727 , "Anne Arundel County Board
of Education - Wireless Telecommunications Towers - Moratorium and Repofi." Specifically, you
ask whether the bill would violate Section 6409(a) of the Middle Class Tax Relief and Job Creation
Act of 2012, now codified at 47 U.S.C. $ 1a55(a). It is my view that it would not.
47 U.S.C. $ la55(a)(1) provides

Notwithstanding section 704 ofthe Telecommunications Act of 1996 (Public

Law 104-104) or any other provision of law, a State or local government 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
dirnensions of such tower or base station
An eligible facilities request means a request for modification of an existing wireless tower or base
station that involves collocation ofnew transmission equipment removal oftransmission equipment,
orreplacementoftransmissionequipment. 47U.S.C. $ 1a55(a)(2). Thisprovisiondoesnotrelieve
the Federal Communications Commission ("FCC") from the requirements of the National Historic
Preservation Act or the National Environmental Policy Act of 1969. 47 U.S,C. $ la55(a)(3).
Testimony on behalf of CTIA - The Wireless Association, a trade association for the wireless
communication industry reflects their concern that House Bll 727 "may run afoul" of this law,
which, as interpreted by the FCC, governs the time within which governments must act upon
applications to construct and modi$ wireless facilities. It is my view that this concern is
unnecessary.

As noted in the testimony, the FCC has adopted rules to implement 47 U.S.C. $ 1455(a) in
its Infrastructure Report and Order issue October 27,2U4.1
I

,\ee https: llapps.fcc.gov/edocs_public/attachmatch.FCC- l4- I 534I .pdf

IO4 LEGISI.ATIVE

SERVICES BUILDING. 90 STATE CIRCLE.ANNAPOLIS, MARYLAND 2T4OT.T99I

4to-946-56oo . 3ot-97o-56oo . rex 4ro-946-56or. r'rr 4ro-946-t4ot. 3or-97o-S4or

The Honorable Herb McMillan

March 16,2015
Page2
Paragraph 239 of this document states

Discussion As proposed in the Infrastructure NPRM and supported by the

record, we conclude that Section6409(a) applies onlyto State and local governments
acting in their role as land use regulators and does not apply to such entities acting
in their proprietary capacities. As discussed in the record, coutts have consistently
recognized that in "determining whether government contracts are subject to
preemption, the case law distinguishes between actions a State entity takes in a
proprietary capacity- actions similar to those a private entity might take-and its
attempts to regulate." As the Supreme Court has explained, "[i]n the absence of any
express or implied implication by Congress that a State may not manage its own
property when it pursues its purely proprietary interests, and when analogous private
conduct would be permitted, this Court will not infer such a restriction." Like private
property owners, local governments enter into lease and license agreements to allow
parties to place antennas and other wireless service facilities on local-government
property, and we find no basis for applying Section 6a09@) in those circumstances.
V/e find that this conclusion is consistent with judicial decisions holding that
Sections 253 and 332(c)(7) of the Communications Act do not preempt "non
regulatory decisions of a state or locality acting in its proprietary capacity."

In short, 47 U.S.C. $ 1455(a), like the other provisions of the Telecommunications Act addressed
in my letter of March 12,2014,does not apply to the State acting in its proprietary capacity. Because

Bill727 applies only to construction of wireless telecommunications towers on the grounds

ofapublicschool,itdoesnotreachmatterscoveredby4TU.S.C. $ 1a55(a). Evenifitdid,however,
the provision would not completely preempt a moratorium for two reasons. First, by its plain
House

language, 47 U.S.C. $ 1a55(a) applies only to modifications of existing wireless towers and base
stations. It does not apply to construction of new wireless towers at all. Second, the FCC, in its
report and order, expressly recognizes existing local moratoria and provide that the time frame for
review "continues to run regardless of any local moratorium." Report and Order atl2l9. Thus,
even if the provisions of House Bill5Tl were covered by the federal provision, the bill itself would
not be preempted by federal law, there would simply be situations in which it did not apply.

Sincerely

Kathryn M. Rowe
Assistant Attorney General

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