NMSurf, a wireless ISP covering about 500,000 homes in New Mexico, is currently at odds with Santa Fe over building a communications tower without a proper permit from the city.
According to the Santa Fe New Mexican, Santa Fe city officials say NMSurf's 80-foot tower needs to be at least 80 feet from the property line but NMSurf said that federal regulations allow the ISP to carry out the project without city approval.
"This whole issue is based on a setback rule," Albert Catanach, president of NMSurf, told FierceInstaller. He said that NMSurf's plan to combine its two rooftop towers into one of the tower on the ground should be granted under federal regulations because the first rooftop tower, built in 2005, is grandfathered as a legal non-conforming structure.
"That status should not be changing," said Catanach, adding that the modifications done to combine the two towers fall within the range allowed by the FCC.
Catanach said NMSurf submitted the original application on April 9, 2015 and invoked section 6409(a) of the spectrum act, but that Santa Fe ordinances don't make mention of more recent congressional acts and that it's caused the application to sit in limbo for more than a year.
"That's over 400 days. This is the problem Congress is trying to fix. And they did fix but some of these things will have to go to federal court," said Catanach.
According to the report, after receiving a tip that NMSurf had already built the tower, Santa Fe asked a state judge to stop work on the tower, allow for an inspection, and "decide whether to apply for a permit or let the Land Use Department issue a final written notice."
As for NMSurf, the company has filed a motion to remove the city's petition to the court, will answer the petition in the next week or so, and will ask a federal judge to grant the company the permit and order Santa Fe to revise its ordinances.
Catanach voiced his frustration over the process and said it would really be nice if the FCC was made to not only interpret laws, but also help mediate the process, similar to what's done with pole attachment issues. He said that kind of FCC involvement might help prevent issues like these from advancing to federal courts.
- read this Santa Fe New Mexican article
Verizon challenging 'burdensome and unusual' Oregon county cell siting rules
CTIA urges FCC to modify historical preservation siting rules for small cell, DAS deployments
DNS market strong but new entrants could spark legal backlash, analyst says