[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]
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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
