Site Specifics

In light of the wave of scandals and indictments sweeping across the communications sector, it's sometimes difficult to remember that not all relationships between carriers and their legal representation culminate in handcuffs, Fifth Amendment pleas and white-collar prison stays. One case in point is the relationship between wireless carriers and their site acquisition and zoning counsels, an alliance that's grown in importance and complexity in tandem with the wireless industry itself.

Most municipalities now have strict ordinances on their books. Some urban areas have grown saturated with cell sites, and the land available for new construction is rapidly becoming scarce; conversely, some smaller rural communities want to keep their countrysides unblemished by towers altogether. Virtually all municipalities, however, have witnessed firsthand the explosive growth of wireless services, and should a carrier want to build a tower site in its city limits, the local government expects more in return than a simple “Thank you.”

Accordingly, carriers in expansion mode keep attorneys like Lauren Cato and Dave Domann on speed-dial. Cato and Domann are members of Richard Connor Riley and Associates, a wireless real estate consultancy with 13 regional offices across the U.S. and a client portfolio including AT&T Wireless and Sprint PCS. Founder and senior partner Riley launched the firm in 1981, and in the decades since RCRA has expanded from zoning work into site acquisition and selection as well as project management.

In zoning matters, forewarned is forearmed, said Cato, an attorney in RCRA's Detroit office. The approval process generally follows as such: Upon receiving search ring data from a carrier's radio frequency engineers, RCRA's site acquisition specialists pour over maps and zoning ordinances for the targeted jurisdiction. Taking into account height restrictions, tower separation distances, existing industrial sites and other qualifications, RCRA pinpoints the areas best suited to the carrier's needs that also won't require site variances, greatly improving a proposal's approval from local lawmakers.

“It's an integrated approach,” Cato said. “Not everywhere do we see carriers or other firms focus on zoning upfront. Our success rate is very high.”

But the terms and definitions of wireless zoning success are changing. Ilona Hogan, global manager of site acquisitions for engineering and construction firm Bechtel Communications — one of RCRA's regular partners on its site build projects — said most communities are now far more savvy about wireless technology and the rewards they stand to reap by allowing tower construction in their area. Some have even created separate bodies to govern carrier relations.

“They're much more sophisticated about the industry, for good and for bad,” Hogan said. “Most jurisdictions have gone through the [zoning] exercise and have an ordinance in place. We're not whistling in the dark on whether jurisdictions will allow towers.”

As civic awareness has grown, so have communities' demands — not to mention their financial expectations. Sometimes situations arise in which a carrier finds a property in the right spot for a site build, but the municipality will refuse to grant approval, said Domann, who oversees RCRA's Chicago-area zoning projects. But for carriers looking to introduce or expand coverage in critical regions, compromise is virtually inevitable, no matter how hard a bargain the municipality drives. “It's a very touchy issue — the municipality has the right to refuse to rent to you, or to look for higher lease rates and better terms,” he said.

Sometimes, however, no compromise can be reached because there remain rural communities that simply don't want a wireless tower blighting their landscape. Some cite environmental preservation, while others fear the purported threat of tower-generated radiation. “The health issue seems to be in a resurgence,” Cato said. “Municipalities can't deny zoning based on health effects under the rules of the 1996 Telecom Act, but it fuels angst if you respond to the health claims by arguing that it's a pre-emptive issue.”

Domann added that many ordinances state that carriers must show a need for a municipal property before a proposal will be approved. But the definition of need depends largely on which party is defining it.

“The municipality's view of need and the carrier's view are two very different things,” Domann said. “It's even been the subject of litigation — municipalities are substituting their opinion and judgment to define the necessity issue.”

Firms like RCRA now encourage their clients to consider alternative solutions to zoning problems. “We stress to our clients that they first look for existing structures,” Cato said. “Where carriers used to shy away from co-location, it's safe to say they're now very open to the idea — they understand they get their site on-air much more quickly.”

Another growing option for carriers is stealth technology — squirreling towers away inside other structures like Russian nesting dolls. “Sprint PCS just entered a deal with a lot of Connecticut jurisdictions to replace antennas inside church steeples,” Hogan said. “Deals like that are very high on our radar screen.”

But the biggest zoning dilemma facing carriers in the future may be similar to the problem often faced by their customers: Not enough minutes in their plan. More accurately, the lease contracts signed during their first wave of buildouts are nearing expiration, and no one seems quite certain what to expect next.

“A lot of municipalities are taking a more proactive stance and limiting your zoning permits by timeframe,” Domann said. Cato added that by focusing so much of their energy on getting sites up and running, very few carriers possessed the foresight to consider what might happen when approval does indeed run out.

Domann said that after so many carrier mergers and acquisitions, the intricacies of many leases are hopelessly blurred: “I anticipate that sometime in the near future, we will see a municipality challenge one of these deals and require that a tower be brought down.” And if and when that happens, all bets are off — but you can safely assume that the first thing the carrier does will be to call its lawyer.