Site Hunting? - Meet Uncle Sam and Smokey the Bear

Real estate for telecom base station and cellular sites often seems to be a sellers' market. Nevertheless, service providers often overlook the biggest landlord of them all: the federal government. Nearly one-fifth of the continental United States is public land. Those who have already located on federal land should also stay aware of new rules and fee changes affecting their leases.

Federal landlords are mandated to support commercial and private radio buildouts nationwide. The 1976 Federal Land Policy and Management Act authorized the use of national lands for telecommunications uses. (This includes not only physical facilities but also rights-of-way.) The 1996 Telecommunications Act requires federal agencies to facilitate telecom siting on buildings and land they manage when it does not conflict with the agencies' missions or their uses of the properties. In urban areas, this makes the General Services Administration the landlord (federal buildings, post offices and the like). However, for rural and remote areas there are two major players: The U.S. Forest Service (USFS) and the Bureau of Land Management (BLM).

How do they do it? -Volume!
These two agencies manage the largest chunks of real estate in the country. The USFS controls about 192 million acres (think: larger than Texas). The BLM controls 264 acres (think: California, Oregon, Washington and Idaho combined). Of course, these acreages are disaggregated all over the country and are predominantly located in the West. The USFS, obviously, has mostly forested land. The BLM's control extends over grasslands, scrubland, wilderness and mining areas. The low population density of these areas makes many of them economically less attractive for commercial wireless. Nevertheless, they have several things going for them:

  • USFS and BLM lands often include coveted mountaintop and ridgeline locations for high-power, high-location sites near cities.
  • These lands are necessary to achieve rural telecom buildouts.
  • They are near, or surround, many major arteries of the interstate highway system.
  • Homeland Security needs will require building more sites in these areas to cover critical national infrastructure, including: forests, agriculture, transportation systems, dams, and mineral and energy resources. Additionally, there is a need to add 200 sites over the next few years to the existing 500-site National Weather Service radio system, which also carries Emergency Alert System messages. These are locally built and owned sites.
  • The rental or lease rates are reasonable and tied to population changes and fixed indexes used by the government. Therefore, fees are immune to many market forces. The fee schedules are also scaled by service type.

Although the USFS and the BLM are parts of two separate U.S. departments (Agriculture and Interior, respectively), the similarity of their communications siting missions has caused them to coordinate their efforts and to standardize their leasing and rental fees. The fees are adjusted annually, and although they are non-negotiable, the annual rate of increase has been only about one or two percent. Although most fees are based on a national schedule, some uses not covered by that schedule are set by the regional USFS and BLM offices. 

Keeping abreast of changes-including free land
One important change in the last two years is that sectarian (generally, religious) broadcasters have been added to the class of users for which rental fees are waived. Non-profit, non-commercial educational TV and radio broadcasters were already exempt from federal land rental fees, as well as state and local governments. 

Public land siting fees are a given, but there are many rules and regulations requiring legal guidance on contracts and site management issues. Site construction in "natural" areas requires attention to environmental, safety, aesthetic and archeological concerns. Revised USFS rules went into force in mid-August 2003. The prior rules have been reorganized and consolidated as a new Communications Site Management Chapter 90 in the Forest Service Handbook. These new rules require FCC documentation for the aforementioned non-profit broadcaster fee waivers. Another new rules change voids the waiver for any state or local government entity that engages in commercial operations. It must pay if it uses its site to generate a profit (subleasing space to commercial carriers, for example). 

Federal land management agencies are tasked with comprehensive site plan and environmental review processes. Besides the usual operational and technical checks, a site plan must meet "scenic integrity" and other aesthetic tests before it is authorized. Hot environmental topics, such the effects of tower placements on migratory bird flightpaths, are receiving much scrutiny. Lack of proper documentation and representation for a site plan can stretch a review process into months or years.

Additionally, federal landlords must conduct periodic facilities inspections independent from any Federal Communications Commission (FCC) requirements. Consequently, all authorizations, maintenance certifications, license information, site postings, inventories and other paperwork must be kept up to date. 

Playing for the times-and space
Despite the burgeoning of aesthetic, environmental and archeological hurdles to public land siting, the current U.S. political climate may make these concerns secondary. Priorities change. There is a need to build out telecommunications infrastructure. The FCC's internal policy to promote rural buildouts (cable and wireless), along with Congressional pressure to do the same, will be one factor. The linkage of Homeland Security issues to having ubiquitous wireless systems is another. Together, these mandates will make federal land managers less reticent about fulfilling the directive in the 1996 Telecommunications Act. With professional counsel, broadcasters, private radio and commercial services providers can find advantages in this situation well within the definition of the public interest.