> **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 non­profit 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 t o 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.

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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]{.underline}](http://directed.to/) charge for all space and services
provided to Federal agencies in accordance with 40 U.S.C. § 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.

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**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.
104­104 (Feb. 8, 1996), 47 U.S.C. § 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. § 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.

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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. §§
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. § 592).

\(C\) The Economy Act, 31 U.S.C. § 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

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> • 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
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. § 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 pub 1 i c service
organization\'s

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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(l)(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. § 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. § 3301(a)(5)) to
persons, firms or organizations engaged in \"commercial, cultural,
educational, or recreational activity\" (as defined in 40 U.S.C. §
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. § 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. §
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

7

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. § 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 self­sustaining 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. § 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. §§ 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
\"Facilitating Access to Federal Property for the Siting of Mobile
Services Antennas,\" 60 F.R. 42023, 40 U.S.C. § 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

8

> 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
market­based 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, right­of-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. § 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. § 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.

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\(3\) 40 U.S.C. § 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. § 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. § 581(h)(2). As discussed in greater detail in Section
4.b(l)(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. § 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. § 1535. As discussed in greater detail
in Section 4.a(l)(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 GSA­controlled property.

\(6\) 31 U.S.C. § 9701. As discussed in greater detail in Section
4.b(l)(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. § 332 note. As discussed in greater
detail in Sections 4.a(l)(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. § 581 note. As discussed
in greater detail in Section 4.b(1)(F),

10

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 continue to assess market­based fees,
whenever practical and feasible.

\(9\) 40 U.S.C. § 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 GSA­controlled 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. §§ 102-79.70 - 79.100.
As discussed in Section 4.b(l)(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.

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**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]{.underline}](mailto:stanley.langfeld@gsa.gov).

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