[Federal Register Volume 63, Number 42 (Wednesday, March 4, 1998)] [Notices] [Pages 10631-10635] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 98-5483] ======================================================================= ----------------------------------------------------------------------- GENERAL SERVICES ADMINISTRATION [GSA Bulletin FPMR D-246] Public Buildings and Space To: Heads of Federal agencies Subject: Assessment of fees and recovery of costs for antennas of Federal agencies and public service organizations 1. What is the Purpose of This Bulletin? This bulletin provides all Federal agencies with general guidelines for assessing antenna placement fees on other Federal agencies, on State and local government agencies, and on charitable, public service/ public safety, and non-profit organizations. State and local government agencies, charitable, public service/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 Federal agency specific statutory authorities which permit landholding agencies to perform certain tasks, studies, surveys or analysis when making their property available to other Federal agencies and the general public, this guidance 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, further it is recommended that Executive departments and agencies consult their legal counsel prior to instituting any action relating to this bulletin. 2. When Does This Bulletin Expire? This bulletin expires June 30, 1999, unless sooner canceled or revised. 3. What is This Bulletin's Background? a. The use of wireless telecommunications equipment has been increasing and is expected to continue 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 the leadership role concerning the Federal Government's policy on placement of wireless telecommunications equipment on Federal real property. c. Based on the input from a working group representing several landholding Federal agencies, the GSA-OGP issued revised guidance on facilitating commercial access to Federal real property. The Associate Administrator for the OGP signed GSA Bulletin FPMR D-242, entitled ``Placement of Commercial Antennas on Federal Property,'' on June 11, 1997, and published it in the Federal Register on June 16, 1997 (62 FR 32611). d. This bulletin is the result of the further efforts of the working group to provide guidance to Executive departments and agencies for assessing fees for antennas and other related equipment, which are dependent in whole or in part on the Federal spectrum rights for their transmissions. This guidance is generally focused on the placement of antennas belonging to other Federal agencies and public service organizations. Much of this guidance may also 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 only is intended to serve as guidelines on the assessment of fees and recovery of costs for locating antennas of other Federal agencies and certain public service organizations on Federal agency property. f. Other Federal agencies, independent regulatory commissions and agencies are encouraged to use these guidelines to the extent consistent with their missions and policies. (1) GSA--In accordance with the Federal Property and Administrative Services Act of 1949, the Administrator is authorized and directed to charge for all space and services provided. (2) Other Federal agencies are subject to their own applicable statutory authorities when providing antenna space and services to other Federal agencies and public service organizations. g. Because of the myriad of legal authorities applicable to specific agencies, all Executive departments and agencies, and other Federal government organizations should consult their legal counsel prior to initiating any action relating to this bulletin. 4. What Action Is Required? In the absence of other applicable authorities, Executive departments and agencies may assess fees or recover costs for services relating to antenna sites using the guidelines presented in subsections 4.a, 4.b, and 4.c of this bulletin. GSA, and Executive departments and agencies operating under a delegation of authority from GSA, will provide antenna sites and assess fees in accordance with the statutory authorities described in subsection 4.d. a. Under what authorities may Executive departments and agencies assess fees for antenna placements against other Executive departments and agencies? Unless prohibited by law, regulation, or internal agency policy, Executive departments and agencies should consider using one of the legal authorities listed under subparagraphs (1), (2) or (3) below when deciding whether to assess user fees for the placement and servicing of antennas belonging to other Federal agencies. Each of the following authorities has certain benefits or limitations, depending on the assessing agency's own programmatic needs. For example, while an agency may be very familiar with interagency agreements under the Economy Act (discussed below), agency reimbursements under the Economy Act typically are restricted to recovering the actual costs of the assessing agency. Similarly, while authority to assess antenna siting fees pursuant to the Telecommunications Act of 1996 (discussed below) or pursuant to the Federal Property and Administrative Services Act (under a delegation of authority from GSA as discussed below) may allow agencies to assess market-based fees, unless the assessing agency has independent statutory authority to [[Page 10632]] retain such monetary proceeds, any fees received must be deposited as soon as practicable into the U.S. Treasury as miscellaneous receipts or into GSA's Federal Buildings Fund. Nevertheless, in the absence of specific agency authority to assess fees against other Federal agencies for antenna siting, Federal agencies should consider using one of the following: (1) Section 704 of the Telecommunications Act of 1996, Pub. L. 104- 104 (47 U.S.C. 332 note) (the ``Telecommunications Act''). This provision authorizes landholding agencies to charge reasonable fees to providers of telecommunications services 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. Use of the phrase ``reasonable fees'' can 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 outleasing agency's actual costs). However, Federal interagency transactions typically are based on actual cost reimbursements, and to avoid possible questions about excessive charges, we recommend that agencies assess fees that are based on their actual costs when charging other Federal agencies under this authority. See sub-section 4.b regarding fees to public service organizations. (2) Section 210 of the Federal Property and Administrative Services Act of 1949, as amended, (40 U.S.C. 490) (the ``Property Act''). If a landholding agency, acting pursuant to subsection 210(k) of the Property Act, provides ``space and services'' (which GSA has concluded includes space for antenna sites) to another Federal agency, the landholding 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 and the Director of OMB (40 U.S.C. 490(k)). 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 landholding agencies' actual costs). The landholding agency may use the moneys derived from such charges to credit the appropriation originally charged with providing the service. However, any amounts collected in excess of the actual operating and maintenance costs of the service must be deposited into the U.S. Treasury as miscellaneous receipts. In some instances, agencies occupying Federal property which 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 for antennas) under subsection 210(j) of the Property Act (40 U.S.C. 490(j) and 40 U.S.C. 486(e)). 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. 490(f)). (3) The Economy Act (31 U.S.C. 1535). While this Act does not authorize a Federal landholding 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 landholding agency to be reimbursed by the antenna-siting agency for the landholding agency's actual costs incident to the locating and maintenance of another agency's antenna. Federal agencies are cautioned that inter-agency transactions under the Economy Act are limited to ``goods and services'' and that ``antenna sites'' (e.g. leases of building rooftop space or other real property locations that might be suitable for antenna placements) would not qualify as a good or service. Nevertheless, landholding agencies may consider this authority to recoup the costs of other goods and services that might be incident 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 CFR Subpart 17.5. b. Under what authorities may Executive departments and agencies assess fees for antenna placements against public service organizations? (1) What authority do Executive departments and agencies have to provide sites and charge fees? While the Telecommunications Act also provides authority to Federal landholding agencies to provide antenna sites and incidental services to public service organizations whose telecommunication services are dependent upon the Federal spectrum rights (and provides authority to charge reasonable fees for the use of those sites), in most other instances Federal agencies will be required to rely on different statutory authorities when siting and servicing antennas on Federal lands for public service organizations. (A) As discussed above section 704 of the Telecommunications Act of 1996 allows a Federal agency to provide Federal property, rights-of- ways or easements for antenna sitings to various public service organizations (e.g., emergency broadcast systems and public service radio stations, 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 the public service organization provides telecommunications services that are not dependent, in whole or in part, on the Federal spectrum rights for their transmission or reception. For instance, the Telecommunications Act authority is likely inapplicable when the antenna is used for non- Federal spectrum broadcasts, or for broadband, microwave or data relay services. When the public service organization's telecommunication services are not dependent upon the Federal spectrum rights, Federal landholding agencies will likely have to rely on their individual agency authorities to provide antenna sites and to assess fees. However, in the absence of such independent statutory authorities to provide antenna locations and to assess fees for those locations, landholding agencies may be able to use authority granted GSA under the Public Buildings Cooperative Use Act. (B) Section 104 of the Public Buildings Cooperative Use Act (40 U.S.C. 490(a)(16)-(19) authorizes GSA to outlease space in or around public buildings to persons, firms or organizations engaged in ``commercial, cultural, educational or recreational activities'' (as defined under 40 U.S.C. 612a). When a Federal agency receives an antenna siting request by a public service organization, and that agency is occupying space in a public building that is under GSA custody and control, the agency should refer the requesting public service organizations to the appropriate GSA regional office. The referring agency should also advise GSA whether that agency recommends GSA to accommodate the requesting public service organization's siting request or not. Of course, GSA's issuance of a Cooperative Use Act outlease or permit for the antenna placement will be conditioned upon the fact that the antenna placement is not disruptive to [[Page 10633]] other tenants in that building or the surrounding area. Outleasing authority under this Act, while also available to other agencies through a delegation of authority from GSA, is limited to certain areas in, or contiguous to, public buildings (e.g., pedestrian access levels, rooftops, courtyards). Furthermore, any proceeds from antenna outleases under the Cooperative Use Act are required to be deposited into GSA's Federal Buildings Fund (40 U.S.C. 490(a)(18)). For these reasons, this authority will be of limited use to agencies considering siting public service antennas in rural or remote locations or to agencies hoping to retain the proceeds from these antenna outleases. (2) What types of fees that can be charged public service organizations? The types of fees that agencies can charge public service organizations also differ from those that can be assessed against other Federal agencies. For instance, where the restrictions of the Economy Act would likely prevent a landholding agency from charging an antenna siting Federal agency more than the landholding agency's actual costs for the goods and services provided in siting that antenna, the landholding agencies should, whenever possible, assess market-based fees (i.e., fees potentially in excess of actual costs) when siting antenna for public service organizations. Unless prohibited by law, regulation, or internal agency policy Executive departments and agencies may assess user fees for the placement and servicing of antennas belonging to public service organizations as follows: (A) Pursuant to section 704 of the Telecommunications Act of 1996: If the antenna site and incidental services are provided to public service organizations 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, landholding agencies are authorized to charge these organizations ``reasonable fees'' for their use of the Federal property, right-of-way or easement. As discussed above, the Telecommunications Act and its accompanying legislative history do not define what constitutes a reasonable fee. While we have recommended that landholding agencies charge other Federal agencies fees which would reimburse the assessing agency's actual costs (see subsection 4.(a)(1) above), when assessing public service organizations under this Act agencies should consult the following authorities, for guidance, when determining what could constitute a ``reasonable fee'' for the use of Federal property:31 U.S.C. 9701. This provision expresses Congress's intent that each service or thing of value provided by an agency is to be self-sustaining to the extent possible. It authorizes landholding agencies to assess fees that are fair and based on the value to the recipient of the service or thing provided by the Government. Further, OMB Circular A-25, titled ``User Charges,'' revised July 8, 1993, sets out Federal policy regarding fees assessed for Government services and for the sale or use of Government goods or services. President Clinton's August 10, 1995 Memorandum. While not itself a grant of statutory authority to assess user fees, the Presidential Memorandum of August 10, 1995, entitled ``Facilitating Access to Federal Property for the Siting of Mobile Services Antennas,'' provides that agencies, to the extent permitted by law, ``shall charge fees based on the market value for siting antennas on Federal property.'' 60 FR 42023 (1995), 40 U.S.C. 490 note. Landholding agencies are reminded that, unless they have independent authority to retain user fees, any proceeds from antenna siting fees assessed under section 704 of the Telecommunications Act of 1996 or pursuant to 31 U.S.C. 9701 or the Presidential Memorandum, must be deposited into the U.S. Treasury as miscellaneous receipts. (B) Pursuant to the Public Buildings Cooperative Use Act of 1976: The Public Buildings Cooperative Use Act of 1976 (40 U.S.C. Sec. 490(a)(16)-(19)) authorizes the GSA Administrator to charge fees or rental rates for the outleased space that are ``equivalent to the prevailing commercial rate for comparable space devoted to a similar purpose in the vicinity of the public building,'' 40 U.S.C. Sec. 490(a)(16). The term ``public building'' is defined in the Public Buildings Act of 1959 (40 U.S.C. Sec. 612(1)). Therefore, GSA charges market-based rents for antenna site outleases on major pedestrian access levels, courtyards and rooftops of public buildings under its custody and control. All proceeds from such antenna outleases are deposited into GSA's Federal Buildings Fund. Other landholding agencies which have custody and control of public buildings and which wish to make antenna sites on those public buildings available to various public service organizations under the Cooperative Use Act should contact GSA's Public Buildings Service at telephone number (202) 501-1100. Acting under a delegation of authority from the Administrator of General Services, these landholding agencies could make space available for antenna siting in or around the public buildings under their custody and control and assess a rental rate for that antenna site outlease. The rental rate from such delegated outlease authority must be: (i) Equivalent to the prevailing commercial rate for comparable antenna sites in the vicinity of the public building; (ii) Approved by the Administrator of General Services, and; (iii) All proceeds from the antenna site fees must be deposited into GSA's Federal Buildings Fund for crediting to the appropriation made for the operations of the public building (40 U.S.C. 490(a)(17)- (18) and 40 U.S.C. 486(e)). GSA, and Federal landholding agencies operating under a delegation of Public Buildings Cooperative Use Act authority from GSA, may in certain circumstances charge a rental rate less than the prevailing market rate if the Administrator of General Services deems such other rate to be in the public interest (40 U.S.C. Sec. 490(a)(17)). The decision to charge less than the prevailing commercial rent rate rests solely with the GSA Administrator and will depend on the nature of the activity conducted on the antenna site (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 outleases with organizations engaged in commercial activities. Landholding agencies should advise GSA officials about the nature and duration of the antenna site outlease before requesting a delegation of Cooperative Use Act outleasing authority. c. What types of costs relating to antenna sitings may Executive departments and agencies recover from other Federal agencies when charging actual costs, or from public service organizations that may be in addition to market-based site fees? (1) Executive departments and agencies may charge fees to other Executive departments and agencies that will recoup the landholding agency's actual cost (if any) of providing the property lease, easement or right-of-way. However, in addition to recouping these costs, the landholding agency may also recover the cost of all necessary and incidental expenses it incurred in the siting of antennas on that Federal property. This is also true in cases [[Page 10634]] where Executive agencies assess market-based fees from public service organizations for antenna placements on Federal property. Typical costs that might be necessary and incident to the placement of antennas and related telecommunications equipment on Federal property (in addition to fees for the use of the site property) include: (i) Preparation of an Environmental Impact Statement or Environmental Assessment under the National Environmental Policy Act, and if required, development of a communications site plan; (ii) Engineering evaluation to avoid electromagnetic intermodulations and interferences; (iii) Various other studies or analyses of the impact of antennas and equipment on the current and planned Federal use(s) of the property; (iv) Any direct or indirect (overhead) expenses for the preparation or recording of leases, licenses, easements, releases, surveys, title searches or other documents; and (v) Various costs for utilities, protection, and necessary access to the site. (We note that charges for utilities are expressly authorized to be assessed to certain public service organizations in leased space under the Public Buildings Cooperative Use Act of 1976 (40 U.S.C. 490(a)(19)); and that these types of services would likely qualify as goods and services that could be provided to other Federal agencies under the Economy Act). (2) In some instances, particularly when these costs are minimal, or when it is not practicable or possible to individually identify individual cost components, the landholding agency may estimate its aggregate actual cost and incorporate that amount into a single lump sum charge or a nominal user fee. The landholding agencies should take care to see that these types of charges, to the maximum extent possible, reflect the agencies' actual costs (for siting Federal antennas) or applicable market rates (for siting public service antennas). (3) 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 statutory authority to do so. For this reason, any time an Executive department or agency incurs costs for placing an antenna of another Federal agency on its property, unless the landholding agency has independent authority to spend its appropriated funds to support another agency's antenna siting activities, the landholding 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. (4) 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. d. What are GSA's authorities for providing property for antenna sites and for assessing fees for those sites and any related services? The following is a summary of the authorities which govern GSA's ability to provide sites and services for antennas and equipment of Federal agencies and public service organizations on GSA-controlled real property, and which establish GSA's authority to assess fees for such antenna sites and services. These authorities also are applicable to Executive departments and agencies acting under a delegation from GSA. Under the below-defined authorities, funds received in sections 4.d.(1)-4.d.(4) are deposited into the Federal Buildings Fund. Funds received in section 4.d.(5) are deposited into the U.S. Treasury as miscellaneous receipts. (1) Section 210 of the Federal Property and Administrative Services Act of 1949, as amended, (40 U.S.C. 490), (the Property Act): (A) Subsection 210(a)(6) of the Property Act authorizes the Administrator of General Services to obtain payments for services, space, maintenance, repairs or other facilities furnished to any Federal agency; (B) Subsection 210(j) authorizes and directs the Administrator of the General Services to charge anyone furnished services, space, maintenance, repair or other facilities at rates that approximate commercial charges for comparable space and services (including rooftop antenna space); (C) Subsection 210(j) further provides that the Administrator may exempt anyone from charges if he determines that such charges would be infeasible or impractical. GSA Order PBS 4210, titled ``Rent Exemption Procedures'', issued December 20, 1991, provides additional guidance on when the Administrator (or the Commissioner of GSA's Public Buildings Service by delegation) may exempt someone from these charges. (2) Section 104 of the Public Buildings Cooperative Use Act of 1976 amended the Property Act (40 U.S.C. 490(a) (16)-(19)) by authorizing the Administrator to: (A) Enter into leases of space on major public access levels, courtyards and rooftops of any public building with persons, firms, or organizations engaged in commercial, cultural, educational, or recreational activities (as defined in 40 U.S.C. 612a); and to 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 to use leases that contain terms and conditions that the Administrator deems necessary to promote competition and protect the public interest; (B) Make available, on occasion, or to lease at such rates and on such other terms and conditions as the Administrator deems to be in the public interest, rooftops, courtyards and certain other areas in public buildings to persons, firms or organizations engaged in commercial, cultural, educational or recreational activities that will not disrupt the operation of the building. (3) The Economy Act (31 U.S.C. 1535)--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. (4) 31 U.S.C. 9701--directs GSA, like other landholding agencies, to assess fees that are fair and based on the value of the service or thing provided by the Government. (Since GSA typically assesses charges that are based on commercial equivalent charges for comparable space and services, pursuant to its Property Act authorities, GSA seldom relies on this authority.) (5) Section 704 of the Telecommunications Act of 1996, Pub. L. 104- 104 (47 U.S.C. 332 note)--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. (Given GSA's other Property Act authorities, GSA will seldom use this authority.) (6) The Presidential Memorandum of August 10, 1995--directs that Executive agencies shall charge fees based on the market value for siting antennas on Federal property to the extent permissible under law. In light of this Presidential directive and GSA's statutory authority to charge market-value fees (i.e., commercial equivalent rates) under the Property Act, GSA will continue to assess market based fees whenever practical and feasible (60 FR 42023 (1995), 40 U.S.C. 490 note). 5. Who Does This Bulletin Apply To? This bulletin is intended to offer guidelines that apply to Executive [[Page 10635]] departments and agencies considering the placement on their property of antennas and related equipment belonging to other Federal agencies and public service organizations. Other Federal agencies and independent regulatory commissions are encouraged to apply these guidelines to the extent consistent with their missions and policies. 6. How Do You Obtain Further Information? Please contact Mr. Stanley C. Langfeld, Director, Real Property Policy Division on (202) 501-1737 for further information on this bulletin. Dated: February 25, 1998. G. Martin Wagner, Associate Administrator for Governmentwide Policy. [FR Doc. 98-5483 Filed 3-3-98; 8:45 am] BILLING CODE 6820-23-P