[Federal Register: September 10, 2007 (Volume 72, Number 174)]
[Notices]
[Page 51635-51639]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10se07-39]
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GENERAL SERVICES ADMINISTRATION
[GSA Bulletin FMR 2007-B3]
Assessment of Fees and Recovery of Costs for Antennas of Federal
Agencies and Public Service Organizations
AGENCY: General Services Administration.
ACTION: Notice of bulletin.
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SUMMARY: The attached bulletin cancels and replaces GSA Bulletin FPMR
D-246, Assessment of Fees and Recovery of Costs for Antennas of Federal
Agencies and Public Service Organizations. This bulletin provides all
Federal agencies with general guidelines for assessing antenna
placement fees on other Federal agencies, State and local government
agencies, and charitable, public service and public safety, and non-
profit organizations. It contains much of the same guidance as GSA
Bulletin FMR 2007-B2, and includes updated information concerning the
assessment of fees and recovery of costs in connection with the
placement of antennas on Federal property.
EFFECTIVE DATE: September 10, 2007.
FOR FURTHER INFORMATION CONTACT: Stanley C. Langfeld, Director,
Regulations Management Division, Office of Governmentwide Policy, 202-
501-1737, or stanley.langfeld@gsa.gov.
Dated: August 28, 2007
Kevin Messner
Acting Associate Administrator,Office of Governmentwide Policy
Real Property
TO: Heads of Federal agencies
SUBJECT: Assessment of fees and recovery of costs for antennas of
Federal agencies and public service organizations
1. Purpose. This bulletin provides all Federal agencies with general
guidelines for assessing antenna placement fees on other Federal
agencies, State and local government agencies, and charitable, public
service and public safety, and non-profit organizations. State and
local government agencies, charitable, public service and public
safety, and non-profit organizations are referred to as ``public
service organizations'' throughout this bulletin. (The use of the
phrase ``public service organization'' is not intended to include
Federal organizations or agencies, even though such organizations may
also provide public services.)
While there may be other agency-specific statutory provisions that
authorize Federal agencies to perform certain tasks, studies, surveys,
or analyses when making their property available to other Federal
agencies and the general public, this bulletin is intended to identify
several typical costs and common authorities.
This bulletin is not a grant of authority, but merely a source of
informational guidance. It contains much of the same guidance as GSA
Bulletin FMR 2007-B2, and includes updated information concerning the
assessment of fees and recovery of costs in connection with the
placement of antennas on Federal property. It is recommended that
Federal agencies consult their legal counsel prior to instituting any
action relating to this bulletin.
2. Expiration. This bulletin contains information of a continuing
nature and will remain in effect until canceled.
3. Background.
a. The use of wireless telecommunications equipment has been
increasing and is expected to continue to increase in the future. The
Telecommunications Act of 1996 recognizes the increasing importance of
wireless telecommunications services and provides guidance for the
rapid deployment of new telecommunications technologies.
b. The General Services Administration (GSA), Office of
Governmentwide Policy (OGP), has taken a leadership role concerning the
Federal Government's policy on the placement of wireless
telecommunications equipment on Federal real property.
c. On March 14, 2007, based on input from an evaluation panel
representing several landholding Federal agencies, GSA published in the
Federal Register GSA Bulletin FMR 2007-B2, ``Placement of Commercial
Antennas on Federal Property'' (72 FR 11881). The bulletin provides
updated guidance on evaluating requests for siting telecommunications
service antennas on Federal property.
d. This bulletin is in furtherance of the efforts of the
interagency evaluation panel to provide guidance to Executive agencies
on the assessment of fees for antennas and other related equipment that
are dependent in whole or in part on the Federal spectrum rights for
their transmissions. This guidance is focused generally on the
placement of antennas belonging to other Federal agencies and certain
public service organizations. Much of this guidance also may be useful
when considering locating antennas and assessing fees for antenna
placements on Federal property for other types of wireless
telecommunications transmissions.
e. The Federal Communications Commission regulates the conditions
and procedures under which communications entities offer and operate
domestic wireless communications. This bulletin is intended to serve
only as guidance on the assessment of fees and recovery of costs for
locating antennas of other Federal agencies and certain public service
organizations on Federal property.
f. The Administrator of GSA is authorized and directed to charge
for all space and services provided to Federal agencies in accordance
with 40 U.S.C.
[[Page 51636]]
Sec. 586. Other Federal agencies, independent regulatory commissions
and mixed-ownership Government corporations are subject to their own
applicable statutory authorities when providing antenna space and
services to other Federal agencies and public service organizations,
and are encouraged to follow this guidance to the extent consistent
with their missions and policies.
g. Since there are numerous authorities applicable to Federal
agencies relating to the assessment of fees and recovery of costs when
providing antenna space and services, each agency should consult its
legal counsel prior to initiating any action relating to this bulletin.
4. Assessment of Fees and Recovery of Costs.
In addition to any other applicable authorities, Executive agencies
may assess fees or recover costs when providing antenna space and
services in accordance with the authorities described in Subsections
4.a and 4.b, below. GSA, and Executive agencies operating under a
delegation of authority from GSA, must provide antenna sites and assess
fees in accordance with the authorities described in Subsection 4.c,
below.
a. When Providing Antenna Sites to Other Executive Agencies.
(1) Authorities for assessing fees against other Executive
agencies. Unless prohibited by law, regulation or internal agency
policy, Executive agencies should consider using one of the legal
authorities described in this Subsection 4.a(1) when deciding whether
to assess user fees for the placement and servicing of antennas
belonging to other Federal agencies. Each authority has certain
benefits or limitations, which are discussed in further detail below,
depending on the assessing agency's own programmatic needs.
(A) Section 704(c) of the Telecommunications Act of 1996, Pub. L.
104-104 (Feb. 8, 1996), 47 U.S.C. Sec. 332 note. This provision
authorizes Federal agencies to charge ``reasonable fees'' to providers
of telecommunications services, including other Federal agencies, whose
antennas and equipment are for telecommunications services that are
dependent, in whole or in part, upon the use of Federal spectrum rights
for their transmission. The legislative history accompanying Section
704 offers little guidance on what might constitute a reasonable fee to
assess another Federal agency that might qualify as such a provider of
telecommunications services. For purposes of this provision, the phrase
``reasonable fees'' could be construed to allow agencies to charge
``market-based'' rents or user fees to public service antenna service
providers (i.e., rents or fees that are based on comparable private
sector rates even when those fees exceed the ouleasing agency's actual
costs). However, Federal interagency transactions typically are based
on actual cost reimbursements, and to avoid possible questions about
excessive charges, it is recommended that agencies assess fees that are
based on its actual costs when charging other Federal agencies under
this authority. Moreover, unless the assessing agency has independent
statutory authority to retain such monetary proceeds, any fees
collected pursuant to the Telecommunications Act must be deposited in
the U.S. Treasury as miscellaneous receipts.
(B) 40 U.S.C. Sec. 586(c). If an Executive agency, other than GSA,
provides ``space and services'' (which GSA has concluded includes space
for antenna sites) to another Federal agency, the agency providing the
antenna space (and related services) is authorized to charge the
antenna-siting agency at rates approved by the Administrator of General
Services.
Typically, these rates should approximate commercial charges for
comparable space and services (i.e., the agency is authorized to assess
market-based rental rates and fees for siting the antenna, even if
these charges exceed the agency's actual costs). Any amounts received
by the Executive agency are to be credited to the appropriation or fund
initially charged for providing the space or service; provided,
however, that any amounts collected in excess of the actual operating
and maintenance costs of the space or service must be deposited in the
U.S. Treasury as miscellaneous receipts.
In some instances, agencies occupying Federal property that is
under the custody and control of GSA may, under a delegation of the
Administrator's authority, charge for ``space and services'' (including
providing space and related services for antennas) under 40 U.S.C.
Sec. Sec. 121(e)(1) and 586. Such fees or charges must approximate
commercial charges for comparable space and services (i.e., market
rates) and the proceeds from such charges or fees must be deposited
into GSA's Federal Buildings Fund (40 U.S.C. Sec. 592).
(C) The Economy Act, 31 U.S.C. Sec. 1535. Although the Economy Act
does not authorize a Federal agency to charge another Federal agency a
user fee for the use of an interest in real property, in most instances
it can be used as authority by a Federal agency to be reimbursed by the
antenna-siting agency for the agency's actual costs incident to
locating and maintaining another agency's antenna. Federal agencies are
cautioned that inter-agency transactions under the Economy Act are
limited to ``goods and services'' and that the lease of sites for
antennas (e.g., building rooftop space or other real property locations
that might be suitable for antenna placements) would not qualify as a
good or service. Nevertheless, Federal agencies may consider this
authority to recoup the costs of other goods and services that might be
incidental to the siting and servicing of another agency's antenna.
Such incidental services might include protecting, maintaining and
actually locating the antenna and its related equipment on the site.
Additional regulatory guidance on charging for Economy Act services can
be found at 48 C.F.R. Subpart 17.5.
(2) Types of antenna siting costs Executive agencies may recover
from other agencies.
(A) Executive agencies may charge fees to other Federal agencies
that will recoup the agency's actual cost (if any) of providing the
antenna space or service. In addition to recouping these costs, the
agency also may recover the cost of all necessary and incidental
expenses it incurred in the siting of antennas on its property. Typical
costs that might be necessary and incidental to the placement of
antennas and related telecommunications equipment on Federal property
include:
Preparation of an Environmental Impact Statement or
Environmental Assessment under the National Environmental Policy Act of
1969, as amended, and, if required, development of a communications
site plan;
Engineering evaluation to avoid electromagnetic
intermodulations and interference;
Various other studies or analyses of the impact of
antennas and equipment on the current and planned Federal use(s) of the
property;
Preparation or recording of leases, licenses, easements,
releases, surveys, title searches, or other documents; and
Utilities, protection and necessary access to the site.
(B) In some instances, particularly when the costs in (2)(A),
above, are minimal, or when it is not practicable or possible to
identify individual cost components, the agency may estimate its
aggregate actual cost and incorporate that amount into a single lump
sum charge or a nominal user fee. These types of charges, to the
maximum extent
[[Page 51637]]
possible, should reflect the agency's actual costs for siting Federal
agency antennas.
(C) Under Federal appropriations law, it is impermissible for one
agency to use its financial resources to augment the operations of
another agency, in the absence of express statutory authority to do so.
For this reason, any time an Executive agency incurs costs for placing
an antenna of another Federal agency on its property, unless the agency
has independent authority to spend its appropriated funds to support
another agency's antenna siting activities, the agency should charge
the agency whose antenna is being located on its property for all costs
associated with the siting and servicing of the antenna.
(D) If there is any question about what costs can be incurred as
necessary and incidental expenses to the placement of an antenna or
related equipment on agency property, agency legal counsel should be
consulted prior to the agency's incurring those costs.
b. When Providing Antenna Sites to Certain Public Service
Organizations.
(1) Authorities for providing sites and charging fees to certain
public service organizations.
(A) Section 704(c) of the Telecommunications Act of 1996, Pub.L.
104-104 (Feb. 8, 1996), 47 U.S.C. Sec. 332 note. This provision
authorizes Federal agencies to make available on a fair, reasonable and
nondiscriminatory basis, Federal property, rights-of-way and easements
under their control for the placement of new telecommunications
services that are dependent, in whole or in part, upon the utilization
of Federal spectrum rights for the transmission or reception of such
services. This provision can be used to make Federal sites available to
certain public service organizations (e.g., emergency broadcast systems
and public service radio stations, and local fire, police and rescue
organizations), if such organizations' telecommunications services are
dependent, in whole or in part, upon the utilization of Federal
spectrum rights. However, this authority has obvious limitations where
a public service organization's services are not dependent on the
Federal spectrum rights for their transmission or reception. For
instance, the Telecommunications Act authority would not be applicable
when the antenna is used for non-Federal spectrum broadcasts, or for
broadband, microwave or data relay services. When a public service
organization's telecommunication services are not dependent upon the
Federal spectrum rights, Federal agencies likely will have to rely on
their individual agency authorities to make antenna sites available and
to assess fees. As noted in Section 4.a(1)(A), above, unless otherwise
authorized by law to retain antenna siting proceeds, agencies
collecting fees pursuant to the Telecommunications Act must deposit
these fees in the U.S. Treasury as miscellaneous receipts.
(B) 40 U.S.C. Sec. 581(h). This provision, formerly known as the
Public Buildings Cooperative Use Act, authorizes GSA to lease space in
or around ``public buildings'' (as defined in 40 U.S.C. Sec.
3301(a)(5)) to persons, firms or organizations engaged in ``commercial,
cultural, educational, or recreational activity'' (as defined in 40
U.S.C. Sec. 3306(a)), at rental rates established by the Administrator
of General Services that are equivalent to the prevailing commercial
rate for comparable space devoted to a similar purpose in the vicinity
of the building.
When a Federal agency receives an antenna siting request from a
public service organization, and that agency is occupying space in a
public building that is under the jurisdiction, custody or control of
GSA, the agency should refer the requesting public service organization
to the appropriate GSA Public Buildings Service regional office. The
referring agency should also advise the GSA regional office whether or
not the referring agency recommends that GSA accommodate the antenna
siting request. If GSA decides to make space available for an antenna,
the lease, permit or other rental agreement will expressly provide that
the antenna placement not be disruptive to other tenants in the
building or the surrounding area.
This authority, while also available to other agencies through a
delegation of authority from GSA, is limited to certain areas in and
around public buildings (e.g., major pedestrian access levels, rooftops
or courtyards). Furthermore, any proceeds received under a lease or
other agreement executed pursuant to 40 U.S.C. Sec. 581(h) must be
deposited into GSA's Federal Buildings Fund and credited to the
appropriation from the Federal Buildings Fund applicable to the
operation of the building. For these reasons, this authority will be of
limited use to agencies other than GSA that are considering siting
public service organization antennas in rural or remote locations or
intending to retain the proceeds from these antenna leases or other
agreements.
GSA, and Executive agencies operating under a delegation of
authority from GSA, may, under certain circumstances, charge a rental
rate less than the prevailing market rate, if the space is to be used
for non-commercial purposes and the Administrator of General Services
determines such other rate to be in the public interest (40 U.S.C.
Sec. 581(h)(2)). The decision to charge less than the prevailing
commercial rate rests solely with the Administrator and will depend on
the nature of the activity conducted on the property (e.g., an antenna
outlease of a very short duration or for broadcasts of an important
public service and educational nature). The Administrator will charge
market-based rental rates for all antenna leases, permits or other
rental agreements with organizations engaged in commercial activities.
Federal agencies should advise GSA officials about the nature and
duration of the antenna site arrangement before requesting a delegation
under this authority.
(C) 31 U.S.C. Sec. 9701. This provision expresses the sense of
Congress that each service or thing of value provided by an agency to a
person is to be self-sustaining to the extent possible. It authorizes
the head of each Federal agency to assess fees that are fair and based
on the costs to the Federal Government, the value of the service or
thing to the recipient, the public policy or interest served, and other
relevant facts.
(D) 40 U.S.C. Sec. 1314. Authorizes the Executive agency having
control of real property of the Federal Government to grant easements
in, over or on the real property to a State, a political subdivision or
agency of a State, or a person, if the head of the agency decides the
easement will not be adverse to the interests of the Federal
Government, subject to reservations, exceptions, limitations, benefits,
burdens, terms, or conditions that the head of the agency considers
necessary to protect the interests of the Federal Government. The grant
may be made without consideration, or with monetary or other
consideration. This easement authority may be used to site antennas and
related equipment on Federal property in support of constructing new
and improving existing telecommunication infrastructure, provided that
such installation does not impact adversely the interests of the
Federal Government.
(E) Federal Management Regulation, 41 C.F.R. Sec. Sec. 102-79.70 -
79.100. These sections provide regulatory guidance on siting antennas
on Federal property for Federal agencies operating under, or subject
to, the authorities of the Administrator of General Services.
(F) President Clinton's Memorandum of August 10, 1995, entitled
[[Page 51638]]
``Facilitating Access to Federal Property for the Siting of Mobile
Services Antennas,'' 60 F.R. 42023, 40 U.S.C. Sec. 581 note. This
Presidential Memorandum, which is still in effect, does not grant
independent statutory authority to Executive agencies to assess user
fees; however, it does provide guidance to agencies on procedures to
use to facilitate access to Federal property for the siting of
telecommunications service provider equipment. The Memorandum provides
that, with respect to the assessment of fees for the siting of such
equipment, unless otherwise prohibited by or inconsistent with Federal
law, Executive agencies shall charge fees based on market value for
siting antennas on Federal property, and may use competitive procedures
if not all applicants can be accommodated.
(G) Office of Management and Budget Circular A-25. This Office of
Management and Budget (OMB) Circular, entitled ``User Charges,''
revised July 8, 1993, provides guidelines that Federal agencies should
use to assess fees for Federal Government services and for the sale or
use of Federal Government property or resources.
(H) Department of Commerce Report on ``Improving Rights-of-Way
Management Across Federal Lands: A Roadmap for Greater Broadband
Deployment'' (April 2004). For antenna sites on non-GSA property,
Federal agencies are directed to the Department of Commerce Report for
additional guidance.
(2) Fees and costs Executive agencies may assess certain public
service organizations. Executive agencies should, whenever possible,
assess market-based fees (i.e., fees potentially in excess of actual
costs), when public service organizations site antennas on Federal
property. Federal agencies also should recover any additional costs
they incur associated with use of the property, right-of-way or
easement. An exception to this general rule, as discussed in greater
detail in Section 4.b(1)(B), above, is when the public service
organization is using the space for non-commercial purposes and the
Administrator of General Services determines that a rate other than the
prevailing commercial rate is in the public interest and should be
charged. However, the account into which an antenna siting fee is to be
deposited depends on the authority under which the antenna site is made
available and the fee assessed.
c. GSA's Authorities to Provide Sites for Antennas and Related
Equipment and to Assess Fees.
Enumerated below is a summary of the authorities that govern GSA's
ability to provide sites and services for antennas and related
equipment to Federal agencies and certain public service organizations
on GSA-controlled real property and to assess fees for such antenna
sites and services. As discussed in Sections 4.a and 4.b, above, some
of these authorities are also applicable to Executive agencies acting
under a delegation from GSA. Except for fees received pursuant to
Section 704(c) of the Telecommunications Act of 1996, which must be
deposited in the U.S. Treasury as miscellaneous receipts unless the
assessing agency has independent statutory authority to retain such
fees, the antenna siting proceeds generated by GSA pursuant to the
authorities described below may be deposited in GSA's Federal Buildings
Fund.
(1) 40 U.S.C. Sec. 581(g). This provision authorizes the
Administrator of General Services to obtain payments for services,
space, quarters, maintenance, repair or other facilities furnished to a
Federal agency.
(2) 40 U.S.C. Sec. 586(b). This provision authorizes the
Administrator of General Services to charge anyone furnished space and
services at rates that approximate commercial charges for comparable
space and services (including rooftop antenna space). This section
further authorizes the Administrator to exempt anyone from these
charges, if the Administrator determines that the charges would be
infeasible or impractical.
(3) 40 U.S.C. Sec. 581(h)(1). As discussed in greater detail in
Section 4.b(1)(B), above, this provision authorizes the Administrator
to lease space on major pedestrian access levels, courtyards or
rooftops of any public building to persons, firms, or organizations
engaged in commercial, cultural, educational, or recreational
activities (as defined in 40 U.S.C. Sec. 3306(a)), establish rental
rates for such leased space equivalent to the prevailing commercial
rate for comparable space devoted to a similar purpose in the vicinity
of the building and negotiate terms and conditions that protect the
public interest.
(4) 40 U.S.C. Sec. 581(h)(2). As discussed in greater detail in
Section 4.b(1)(B), above, this provision authorizes the Administrator
to make available, on occasion, or lease at a rate and on terms and
conditions that the Administrator considers to be in the public
interest, rooftops, courtyards and certain other areas in public
buildings to persons, firms or organizations engaged in cultural,
educational or recreational activities (as defined in 40 U.S.C. Sec.
3306(a)) that will not disrupt the operation of the building. This
authority can only be used if the public service organization is
engaged in a non-commercial activity.
(5) The Economy Act, 31 U.S.C. Sec. 1535. As discussed in greater
detail in Section 4.a(1)(C) , above, this provision authorizes GSA to
provide, on a reimbursable basis, goods and services to other Federal
agencies, including any goods or services that might be related to the
placement of another agency's antenna on GSA-controlled property.
(6) 31 U.S.C. Sec. 9701. As discussed in greater detail in Section
4.b(1)(C), above, this provision authorizes GSA to assess fees that are
fair and based on the value of the service or thing provided by the
agency. Since GSA typically assesses fees that are based on commercial
charges for comparable space and services as required by its
authorities set forth in Title 40 of the United States Code, GSA seldom
relies on this authority.
(7) Section 704(c) of the Telecommunications Act of 1996, Pub. L.
104-104 (Feb. 8, 1996), 47 U.S.C. Sec. 332 note. As discussed in
greater detail in Sections 4.a(1)(A) and 4.b(1)(A), above, this
provision authorizes GSA to charge reasonable fees for the use of GSA
property by agencies or organizations whose antennas and related
equipment are for telecommunications services that are dependent, in
whole or in part, upon the use of Federal spectrum rights for their
transmission. Insofar as GSA has several other authorities from which
to choose from when negotiating antenna siting agreements with
telecommunications service providers, GSA will seldom rely upon this
authority.
(8) President Clinton's Memorandum of August 10, 1995, entitled
``Facilitating Access to Federal Property for the Siting of Mobile
Services Antennas,'' 60 F.R. 42023, 40 U.S.C. Sec. 581 note. As
discussed in greater detail in Section 4.b(1)(F), above, this
Presidential Memorandum, although not an independent grant of authority
to assess user fees, does provide guidance to agencies on procedures to
use to facilitate access to Federal property for the siting of
telecommunications service provider equipment. Consistent with this
Presidential Memorandum and GSA's statutory authority to charge
commercial equivalent rates when providing space and services to
accommodate antennas, GSA will
[[Page 51639]]
continue to assess market-based fees, whenever practical and feasible.
(9) 40 U.S.C. Sec. 1314. As discussed in greater detail in Section
4.b(1)(D), above, this easement authority may be used to site antennas
and related equipment on Federal property under GSA's jurisdiction,
custody or control. The grant may be made without consideration, or
with monetary or other consideration, at the discretion of the head of
the agency.
(10) Section 412 of the GSA General Provisions, Consolidated
Appropriations Act, 2005, Pub. L. 108-447 (Dec. 8, 2004). This
provision granted GSA new and additional real property disposition
authority and the authority to retain proceeds from the disposal of its
real property. In addition to giving GSA authority to retain the net
proceeds from its real property disposals, Section 412 granted GSA
additional new authority to dispose of its real and related personal
property by various means, including by sale, lease, exchange, or
otherwise. This authority is in addition to GSA's numerous other
existing statutory authorities applicable to the use and disposal of
real property under its jurisdiction, custody or control. For GSA-
controlled property leased under Section 412 to accommodate antennas
and related equipment, the proceeds of any such lease would be
deposited into GSA's Federal Buildings Fund.
(11) Subchapters III and IV of Chapter 5 of Subtitle I of Title 40
of the United States Code. These are GSA's traditional authorities for
the disposal of surplus property. Surplus real property may be leased
under these authorities to site antennas and related equipment on
property under the jurisdiction, custody or control of GSA. In light of
the Section 412 authority discussed in the immediately preceding
paragraph, GSA may now retain the proceeds from such disposals and
deposit them into the Federal Buildings Fund.
(12) Federal Management Regulation, 41 C.F.R. Sec. Sec. 102-79.70
- 79.100. As discussed in Section 4.b(1)(E), above, these sections
provide regulatory guidance on siting antennas on Federal property
under the jurisdiction, custody or control of GSA.
(13) Office of Management and Budget Circular A-25. As discussed in
Section 4.b(1)(G), above, this OMB Circular provides guidelines that
GSA should use to assess fees for services it offers and for the sale
or use of property or resources under its jurisdiction, custody or
control.
5. Additional Information
Further information regarding this bulletin may be obtained by
contacting Mr. Stanley C. Langfeld, Director, Regulations Management
Division, Office of Governmentwide Policy, General Services
Administration, at (202) 501-1737, or stanley.langfeld@gsa.gov.
[FR Doc. E7-17755 Filed 9-7-07; 8:45 am]
BILLING CODE 6820-EP-S