Eligible facilities requests under Section 6409(a)

The application the town must approve

Most land-use applications ask the town for permission. An eligible facilities request is different. Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, often called the Spectrum Act, says that 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 dimensions of that tower or base station.

That changes the planner's job. The question is not whether the modification is a good idea. It is whether the request qualifies, which turns on a set of measurable tests in the FCC's rules at 47 CFR 1.6100. If it qualifies, the town approves it. If it does not, the town says so in writing, with reasons, within the review period. Everything in between is measurement and records.

The terms that decide whether a request qualifies

An eligible facilities request is a request to modify an existing tower or base station that involves collocation of new transmission equipment, removal of transmission equipment, or replacement of transmission equipment, and that does not substantially change the structure's physical dimensions. Four definitions in the rule carry most of the weight.

Tower. A structure built for the sole or primary purpose of supporting FCC-licensed or authorized antennas and their associated facilities, together with the associated site. A monopole or lattice tower is the typical case.

Base station. Any other structure or equipment at a fixed location that enables licensed or authorized wireless communications, provided that at the time of the application it already supports or houses wireless equipment that was reviewed and approved under a zoning, siting or other regulatory process. A rooftop installation, a water tank or a church steeple with approved antennas can be a base station. A building with no approved wireless equipment on it is not one.

Existing. A tower or base station is existing if it was reviewed and approved under the applicable zoning or siting process or another regulatory review. A tower lawfully built in an area that was not zoned at the time also counts.

Site. For towers outside the public right-of-way, the current boundaries of the leased or owned property around the tower plus any related access or utility easements. For other eligible support structures, the site is further restricted to the area near the structure and other equipment already on the ground. The boundaries are those that existed when the structure or a modification was last approved outside the 6409(a) process.

The six substantial change tests

A modification substantially changes the physical dimensions of an eligible support structure if it meets any one of the six criteria in 47 CFR 1.6100(b)(7). The tests differ between towers outside the public right-of-way and all other eligible support structures, which means towers in the right-of-way and base stations.

Test	Towers outside the right-of-way	Towers in the right-of-way and base stations
1. Height	Increase of more than 10 percent, or more than the height of one additional antenna array with separation from the nearest existing antenna not exceeding 20 feet, whichever is greater	Increase of more than 10 percent or more than 10 feet, whichever is greater
2. Width	An appurtenance protruding from the edge of the tower more than 20 feet, or more than the width of the tower at that level, whichever is greater	An appurtenance protruding from the edge of the structure more than 6 feet
3. Equipment cabinets	More than the standard number of new cabinets for the technology involved, not to exceed four	The same limit, and any new ground cabinets where none exist, or ground cabinets more than 10 percent larger in height or overall volume than the existing ones
4. Excavation or deployment	Excavation or deployment of transmission equipment outside the current site by more than 30 feet in any direction, measured from a boundary that excludes access and utility easements	Any excavation or deployment outside the current site
5. Concealment	Any modification that would defeat the concealment elements of the structure
6. Prior conditions	Any modification that does not comply with conditions associated with the siting approval of the structure or equipment, except where the noncompliance would not exceed the thresholds in tests 1 to 4

Tests one through four are measurements. Tests five and six depend on what the original approval said. That split shapes how a town should review: a technician with the plans and a scale can answer the first four, while the last two require the original approval file.

Measuring height correctly

The height test is where most disputes start, because the baseline is not the structure as it stands today. The rule says changes in height are measured from the original support structure where deployments are separated horizontally, such as on a building rooftop. In other cases, height is measured from the dimensions of the tower or base station including its originally approved appurtenances and any modifications approved before the Spectrum Act was passed.

The practical effect is that the thresholds are measured against the original approved baseline, not against the last eligible facilities request. A tower that has already grown through earlier requests does not get a fresh 10 percent each time. To apply this, the town needs the original approved height and the approved appurtenances at that time, which is why the original approval file matters so much.

On a tower outside the right-of-way, the 20-foot separation alternative often produces the larger allowance on shorter towers. Compute both figures and apply the greater one. The FCC has also issued later guidance on how the separation is measured, so check the current rulings when a request sits close to the line.

Concealment and prior conditions

A modification that would defeat the concealment elements of a structure is a substantial change. A monopine with branches covering the antennas, a faux bell tower, or antennas screened behind a parapet are common examples. The town should be able to show which features were part of the concealment design when the structure was approved.

This area has moved. In 2024, the Ninth Circuit set aside the FCC's 2020 interpretation that concealment means only disguise and not also hiding a facility from view. In its September 2025 notice of proposed rulemaking, WT Docket No. 25-276, the FCC asked for comment on how to define concealment elements in response to that remand. Until the FCC acts, have your attorney confirm the current reading before you rely on concealment as the basis for a finding.

The prior conditions test has a built-in limit. A modification that breaks a condition of approval is a substantial change, unless the only noncompliance is something that would not exceed the thresholds in tests one through four. A condition that says "no further height increases" cannot by itself defeat a height increase that falls within the height test. A condition about color, landscaping or screening is more likely to stand. The town that can produce the original approval, with its plans and conditions, in the first week of the review is the town that decides an eligible facilities request on the merits.

What the town may ask for, and what it may not

When an applicant asserts in writing that a request is covered by Section 6409(a), the town may require documentation or information only to the extent reasonably related to determining whether the request meets the requirements of the rule. The town may not require other documentation, including anything intended to show the need for the facility or to justify the business decision to modify it.

That is a meaningful restriction, but the permitted category is broad enough to support a real review. A published submittal list for eligible facilities requests should include what is needed to apply each of the six tests and nothing beyond it.

• A written statement that the applicant is filing under Section 6409(a), with its analysis of each substantial change test
• Identification of the original approval: permit or case number, date, and the approved height and configuration
• Existing and proposed elevations showing overall height, antenna centerlines, and the separation between the top existing antenna and the proposed array
• Existing and proposed plan views showing appurtenance protrusion from the structure's edge and the width of the structure at that level
• A site plan showing the current site boundary, existing and proposed ground equipment, cabinet counts and dimensions, and any work outside the boundary
• Photo simulations showing how concealment elements are maintained, where the structure has them
• A list of the conditions of approval with a statement of how the modification complies with each one
• A structural analysis stamped by a licensed engineer, and the building, electrical and other permit applications required by generally applicable codes

The 60-day clock

Within 60 days of the date the applicant submits a request, the town shall approve it unless it determines the application is not covered by Section 6409(a). The 60-day period starts when the application is filed. In its 2020 ruling, which the Ninth Circuit later upheld, the FCC said the clock starts when the applicant takes the first procedural step the town requires and submits written documentation showing the request is an eligible facilities request.

The period can be tolled only by mutual agreement or when the town determines the application is incomplete. A moratorium on reviewing applications does not toll it.

The tolling rules are strict. To toll for incompleteness, the town must give written notice within 30 days of receiving the application, clearly and specifically listing all missing documents or information, and the listed items must meet the reasonably-related standard. The clock starts running again when the applicant makes a supplemental submission. The town then has 10 days to notify the applicant that the supplement did not provide what the original notice listed. A second or later notice may not ask for anything the original notice did not.

The lesson is the same as with other wireless clocks: the first completeness review must be complete. Anything the town misses there, it cannot use later to stop the clock.

Deemed granted, and what to do when the notice arrives

If the town does not approve or deny the request within the review period, accounting for tolling, the request is deemed granted. The deemed grant does not take effect until the applicant notifies the town in writing, after the period has expired, that the application has been deemed granted.

That written notice is a signal to act. Check the dates against your log immediately: when the application was filed, whether a timely notice tolled the clock, when any supplement arrived. Under 47 CFR 1.6100(c)(5), applicants and reviewing authorities may each bring claims related to Section 6409(a) in any court of competent jurisdiction. If the town believes the request was not an eligible facilities request at all, or that the clock was properly tolled, that question belongs with your attorney the day the notice arrives, not after construction begins.

What still applies

Approval under Section 6409(a) does not exempt the work from generally applicable codes. In its 2014 order implementing the statute, the FCC said a town may condition approval on compliance with generally applicable building, structural, electrical and safety codes and other laws codifying objective standards reasonably related to health and safety. The structural analysis in your submittal list exists for that reason. A modification that qualifies under 6409(a) can still be required to show the tower will carry the load.

The related permits should move on the same schedule. A building permit that sits in another department after the planning approval issues invites the argument that the town has not acted. Route the whole package together and track it against one date.

When a request does not qualify

If the modification fails any of the six tests, or the structure is not an existing tower or base station, or the work is not collocation, removal or replacement of transmission equipment, the request is not an eligible facilities request. Say so in writing within the 60-day period, identify the specific test or definition the request fails, and state the measurement or record that shows it.

That written determination does not end the matter. The applicant can still proceed with an ordinary application, which falls under the Section 332(c)(7) shot clocks and the town's normal review. Tell the applicant which process now applies, so the disagreement is about the facts and not about procedure.

The records that make this work

Every test in the rule except the simplest measurements depends on records the town created years ago: the original approved height, the approved appurtenances, the site boundary, the concealment design and the conditions of approval. In many towns those records sit in paper files, scanned without indexing, or in a permit system that was replaced twice since.

Build a site inventory now, before the next request. For every tower and base station in the town, record the original approval, the approved dimensions and configuration, the site boundary, concealment features, conditions, and every later modification. When an eligible facilities request arrives, the reviewer starts with the baseline already on the screen, and the first two weeks of the 60-day period are spent reviewing, not searching.

Frequently asked questions