The Daily Journal of the
United States Government
Rule
Acceleration
of Broadband Deployment by Improving Wireless Facilities Siting Policies
A Rule by the Federal Communications Commission on 01/08/2015
Document Details
Printed
version:
Publication
Date:
Agency:
Dates:
Effective
February 9, 2015, except for Sec. 1.40001, which shall be effective April 8,
2015; however, Sec. Sec. 1.40001(c)(3)(i), 1.40001(c)(3)(iii), 1.140001(c)(4),
and 17.4(c)(1)(vii), which have new information collection requirements, will
not be effective until approved by the Office of Management and Budget (OMB).
The Commission will publish a document in the Federal Register announcing OMB
approval and the relevant effective date.
Effective Date:
02/09/2015
Document
Type:
Rule
Document
Citation:
80 FR 1237
Page:
1237-1271
(35 pages)
CFR:
47 CFR 17
47 CFR 1
Agency/Docket
Numbers:
WT Docket
Nos. 13-238, 13-32
WC Docket
No. 11-59
FCC 14-153
Document
Number:
2014-28897
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Published Document
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Printed Page 1238
AGENCY:
Federal Communications Commission.
ACTION:
Final rule.
SUMMARY:
In this document, the Federal Communications Commission
(Commission) adopts rules to update and tailor the manner in which it evaluates
the impact of proposed deployments of wireless infrastructure on the
environment and historic properties. The Commission also adopts rules to
clarify and implement statutory requirements applicable to State and local
governments in their review of wireless infrastructure siting applications, and
it adopts an exemption from its environmental public notification process for
towers that are in place for only short periods of time. Taken together, these
steps will reduce the cost and delays associated with facility siting and
construction, and thereby facilitate the delivery of more wireless capacity in
more locations to consumers throughout the United States.
DATES:
Effective February 9, 2015, except for § 1.40001, which
shall be effective April 8, 2015; however, §§ 1.40001(c)(3)(i),
1.40001(c)(3)(iii), 1.140001(c)(4), and 17.4(c)(1)(vii), which have new
information collection requirements, will not be effective until approved by
the Office of Management and Budget (OMB). The Commission will publish a
document in the Federal Register announcing OMB approval and the
relevant effective date.
FOR
FURTHER INFORMATION CONTACT:
Peter Trachtenberg, Spectrum and Competition Policy Division,
Wireless Telecommunications Bureau, (202) 418-7369, email Peter.Trachtenberg@fcc.gov.
SUPPLEMENTARY
INFORMATION:
This is a summary of the Commission's Report and Order
(R&O), WT Docket Nos. 13-238, 13-32; WC Docket No. 11-59; FCC 14-153,
adopted October 17, 2014 and released October 21, 2014. The full text of this
document is available for inspection and copying during business hours in the
FCC Reference Information Center, Portals II, 445 12th Street SW., Room
CY-A257, Washington, DC 20554. Also, it may be purchased from the Commission's
duplicating contractor at Portals II, 445 12th Street SW., Room CY-B402,
Washington, DC 20554; the contractor's Web site, http://www.bcpiweb.com;
or by calling (800) 378-3160, facsimile (202) 488-5563, or email FCC@BCPIWEB.com.
Copies of the R&O also may be obtained via the Commission's Electronic
Comment Filing System (ECFS) by entering the docket number WT Docket 13-238.
Additionally, the complete item is available on the Federal Communications
Commission's Web site at http://www.fcc.gov.
I. NEPA and NHPA Review of
Small Wireless Facilities
1. The Commission first adopts measures to update its review
processes under the National Environmental Policy Act of 1969 (NEPA) and
section 106 of the National Historic Preservation Act of 1966 (NHPA or section
106), with a particular emphasis on accommodating new wireless technologies
that use smaller antennas and compact radio equipment to provide mobile voice
and broadband service. These technologies, including distributed antenna
systems (DAS), small cells, and others, can be deployed on a variety of
non-traditional structures such as utility poles, as well as on rooftops and
inside buildings, to enhance capacity or fill in coverage gaps. Updating the
Commission's environmental and historic preservation rules will enable these
innovations to flourish, delivering more broadband service to more communities,
while reducing the need for potentially intrusive new construction and
safeguarding the values the rules are designed to protect.
2. The Commission's environmental and historic preservation
rules have traditionally been directed toward the deployment of macrocells on
towers and other tall structures. Since 1974, these rules have excluded
collocations of antennas from most of the requirements under the Commission's
NEPA review process, recognizing the benefits to the environment and historic
properties from the use of existing support structures over the construction of
new structures. These exclusions have limitations. The collocation exclusion
under NEPA, which was first established in 1974, on its face encompasses only
deployments on existing towers and buildings, as these were the only support
structures widely used 40 years ago, and does not encompass collocations on
existing utility poles, for example. The collocation exclusions in the
Commission's process for historic preservation review under section 106 do not
consider the scale of small wireless facility deployments.
3. Thus, while small wireless technologies are increasingly
deployed to meet the growing demand for high mobile data speeds and ubiquitous
coverage, the Commission's rules and processes under NEPA and section 106, even
as modified over time, have not reflected those technical advances.
Accordingly, the Commission concludes that it will serve the public interest to
update its environmental and historic preservation rules in large measure to
account for innovative small facilities, and the Commission takes substantial
steps to advance the goal of widespread wireless deployment, including
clarifying and amending its categorical exclusions. The Commission concludes
that these categorical exclusions, as codified in Section 1.1306(c) and Note 1
of its rules, do not have the potential for individually or cumulatively
significant environmental impacts. The Commission finds that these
clarifications and amendments will serve both the industry and the conservation
values its review process was intended to protect. These steps will eliminate
many unnecessary review processes and the sometimes cumbersome compliance
measures that accompany them, relieving the industry of review process
requirements in cases where they are not needed. These steps will advance the
goal of spurring efficient wireless broadband deployment while also ensuring
that the Commission continues to protect environmental and historic preservation
values.
A. NEPA Categorical
Exclusions
1. Regulatory Background
4. Section 1.1306 (Note 1) clarifies that the requirement to
file an Environmental Assessment (EA) under section 1.1307(a) generally does
not apply to “the mounting of antenna(s) on an existing building or antenna
tower” or to the installation of wire or cable in an existing underground or
aerial corridor, even if an environmentally sensitive circumstance identified
in section 1.1307(a) is present. Note 1 reflects a preference first articulated
by the Commission in 1974, and codified into Note 1 in 1986, that “[t]he use of
existing buildings, towers or corridors is an environmentally desirable
alternative to the construction of new facilities and is encouraged.”Start
Printed Page 1239
2. Antennas Mounted on
Existing Buildings and Towers
a. Clarification of “Antenna”
5. The Commission first clarifies that the term “antenna” as
used in Note 1 encompasses all on-site equipment associated with the antenna,
including transceivers, cables, wiring, converters, power supplies, equipment
cabinets and shelters, and other comparable equipment. The Commission concludes
that this is the only logically consistent interpretation of the term, as
associated equipment is a standard part of such collocations, and the antennas
subject to NEPA review cannot operate without it. Thus, interpreting the term
“antenna” as omitting associated equipment would eviscerate the categorical
exclusion by requiring routine NEPA review for nearly every collocation. Such
an interpretation would frustrate the categorical exclusion's purpose. The
Commission also notes that its interpretation of “antenna” in this context is
consistent with how the Commission has defined the term “antenna” in the
comparable context of its process for reviewing effects of proposed deployments
on historic properties. Specifically, the Commission's section 106 historic
preservation review is governed by two programmatic agreements, and in both,
the term “antenna” encompasses all associated equipment.
6. Further, if associated equipment presented significant
concerns, the Commission would expect that otherwise excluded collocations that
included such equipment would, at some point over the past 40 years, have been
subject to environmental objections or petitions to deny. The Commission is
unaware of any such objections or petitions directed at backup generators or
any other associated equipment, or of any past EAs that found any significant
environmental effect from such equipment. The Commission finds some commenters'
generalized assertions of a risk of environmental effects to be unpersuasive,
and the Commission reaffirms that the collocations covered by Note 1, including
the collocation of associated equipment addressed by its clarification, will
not individually or cumulatively have a significant effect on the human
environment. While Alexandria et al. submit a declaration from Joseph
Monaco asserting that “[m]inor additions to existing facilities could have
significant effects even if only incremental to past disturbances,” the
Commission finds this position is inconsistent with the Commission's finding
that the mounting of antennas on existing towers and buildings will not have
significant effects, and with the Commission's experience administering the NEPA
process, in which a collocation has never been identified by the Commission or
the public to have caused a significant environmental effect. The Commission
further notes that the proffered examples appear to confuse consideration under
the Commission's NEPA process with review under local process, which the
Commission does not address here. To the extent that rare circumstances exist
where “even the smallest change could result in a significant effect, based on
the intrinsic sensitivity of a particular resource,” the Commission concludes
that such extraordinary circumstances are appropriately addressed through
sections 1.1307(c) and (d), as necessary.
7. The Commission finds unpersuasive Tempe's argument that
the NEPA categorical exclusion for collocation should not encompass backup
generators in particular. Tempe argues that generators cause “fumes, noise, and
the potential for exposure to hazardous substances if there is a leak or a
spill” and “should not be allowed to be installed without the appropriate
oversight.” The Wireless Telecommunications Bureau addressed all of these
potential impacts in its Final Programmatic Environmental Assessment for the
Antenna Structure Registration Program (PEA), and did not find any to be
significant. Tempe's own comments, moreover, confirm that backup generators are
already subject to extensive local, State, and Federal regulation, suggesting
that further oversight from the Commission would not meaningfully augment
existing environmental safeguards. In assessing environmental effect, an agency
may factor in an assumption that the action is performed in compliance with
other applicable regulatory requirements in the absence of a basis in the
record beyond mere speculation that the action threatens violations of such requirements.
Tempe's comments support the Commission's conclusion that such regulations
applicable to backup generators address Tempe's concerns. The Commission finds
that cell sites with such generators will rarely if ever be grouped in
sufficient proximity to present a risk of cumulative effects.
8. The Commission finds no reason to interpret “antenna” in
the Note 1 NEPA collocation categorical exclusion to omit backup generators or
other kinds of backup power equipment. The Commission finds that the term “antenna”
as used in the categorical exclusion should be interpreted to encompass the
on-site equipment associated with the antenna, including backup power sources.
Further, the need for such power sources at tower sites is largely undisputed,
as backup power is critical for continued service in the event of natural
disasters or other power disruptions—times when the need and demand for such
service is often at its greatest. The Commission amends Note 1 to clarify that
the categorical exclusion encompasses equipment associated with the antenna,
including the critical component of backup power.
9. Finally, the Commission notes that sections
1.1306(b)(1)-(3) and 1.1307(c) and (d) of its rules provide for situations
where environmental concerns are presented and, as called for by the
requirement that categorical exclusions include consideration of extraordinary
circumstances, closer scrutiny and potential additional environmental review
are appropriate. The Commission concludes that individual cases presenting extraordinary
circumstances in which collocated generators or other associated equipment may
have a significant effect on the environment, including cases in which closely
spaced generators may have a significant cumulative effect or where the
deployment of such generators would violate local codes in a manner that raises
environmental concerns, will be adequately addressed through these provisions.
b. Antennas Mounted in the
Interior of Buildings
10. The Commission clarifies that the existing NEPA
categorical exclusion for mounting antennas “on” existing buildings applies to
installations in the interior of existing buildings. An antenna mounted on a
surface inside a building is as much “on” the building as an antenna mounted on
a surface on the exterior, and the Commission finds nothing in the language of
the categorical exclusion, in the adopting order, or in the current record
supporting a distinction between collocations on the exterior or in the
interior that would limit the scope of the categorical exclusion to exterior
collocations. To the contrary, it is even more likely that indoor installations
will have no significant environmental effects in the environmentally sensitive
areas in which proposed deployments would generally trigger the need to prepare
an EA, such as wilderness areas, wildlife preserves, and flood plains. The
existing Note 1 collocation categorical exclusion reflects a finding that
collocations do not individually or cumulatively have a significant effect on
Start Printed Page 1240the human environment, even if they would otherwise
trigger the requirement of an EA under the criteria identified in sections
1.1307(a)(1)-(3) and (5)-(8). The Commission finds that this conclusion applies
equally or even more strongly to an antenna deployed inside a building than to
one on its exterior, since the building's exterior structure would serve as a
buffer against any effects. The Commission notes that the First Responder
Network Authority (FirstNet), the National Telecommunications and
Information Administration
(NTIA), and other agencies have adopted categorical exclusions covering
internal modifications and equipment additions inside buildings and structures.
For example, in adopting categorical exclusions as part of its implementation
of the Broadband Technology Opportunities Program, NTIA noted that excluding
interior modifications and equipment additions reflects long-standing
categorical exclusions and administrative records, including in particular “the
legacy categorical exclusions from the U.S. Department of Agriculture, U.S.
Department of Homeland Security, and the Federal Emergency Management Agency.”
While a Federal agency cannot apply another agency's categorical exclusion to a
proposed Federal action, it may substantiate a categorical exclusion of its own
based on another agency's experience with a comparable categorical exclusion.
This long-standing practice of numerous agencies that conduct comparable
activities, reflecting experience that confirms the propriety of the
categorical exclusion, provides further support for the conclusion that
internal collocations will not individually or cumulatively have a significant
effect on the human environment. With respect to Tempe's concern about
generators being placed inside buildings as the result of collocations, the
Commission relies on local building, noise, and safety regulations to address
these concerns, and the Commission anticipates that such regulations will
almost always require generators to be outside of any residential buildings where
their use would present health or safety concerns or else place very strict
requirements on any placement in the interior. The Commission finds it
appropriate to amend Note 1 to clarify that the Note 1 collocation categorical
exclusion applies to the mounting of antennas in the interior of buildings as
well as the exterior.
c. Antennas Mounted on Other
Structures
11. The Commission adopts its proposal to extend the
categorical exclusion for collocations on towers and buildings to collocations
on other existing man-made structures. The Commission concludes that
deployments covered by this extension will not individually or cumulatively
have a significant impact on the human environment. The Commission updates the
categorical exclusion adopted as part of Note 1 in 1986 to reflect the modern
development of wireless technologies that can be collocated on a much broader
range of existing structures. This measure will facilitate collocations and
speed deployment of wireless broadband to consumers without significantly
affecting the environment.
12. In finding that it is appropriate to broaden the
categorical exclusion contained in section 1.1306 Note 1 to apply to other
structures, the Commission relies in part on its prior findings regarding the
environmental effects of collocations. In implementing NEPA requirements in
1974, for example, the Commission found that mounting an antenna on an existing
building or tower “has no significant aesthetic effect and is environmentally
preferable to the construction of a new tower, provided there is compliance
with radiation safety standards.” In revising its NEPA rules in 1986, the
Commission found that antennas mounted on towers and buildings are among those
deployments that will normally have no significant impact on the environment.
The Commission notes in particular that collocations will typically add only
marginal if any extra height to a structure, and that in 2011, in a proceeding
addressing the Commission's NEPA requirements with respect to migratory birds,
the Commission reaffirmed that collocations on towers and buildings are
unlikely to have environmental effects and thus such collocations are
categorically excluded from review for impact on birds. Further, given that
towers and buildings are typically much taller than other man-made structures
on which antennas will be collocated, the Commission expects that there will be
even less potential for significant effects on birds from collocations on such
other structures.
13. In the Infrastructure NPRM, the Commission tentatively
concluded that the same determination applies with regard to collocations on
other structures such as utility poles and water towers. Numerous commenters
support this determination, and opponents offer no persuasive basis to
distinguish the environmental effects of collocations on antenna towers and
buildings from the effects of collocations on other existing structures.
Indeed, in this regard, the Commission notes that buildings and towers, which
are already excluded under Note 1, are typically taller than structures such as
utility poles and road signs. While some commenters raise concerns about
possible water-tank contamination or driver distraction, these concerns do not
present persuasive grounds to limit the categorical exclusion. Under sections
1.1306(a) and (b), collocations on structures such as water tanks and road
signs are already categorically excluded from the obligation to file an EA
unless they occur in the environmentally sensitive circumstances identified in
sections 1.1307(a) or (b) (such as in wildlife preserves or flood plains).
Nothing in the record leads the Commission to find that collocations in such
sensitive areas that currently require EAs present greater risks of water tank
contamination or driver distraction than collocations outside such areas. For
similar reasons, the Commission is also not persuaded by Springfield's argument
that extending the categorical exclusion to other structures without
“qualifying delimitations for how DAS facilities are defined and where they may
be installed may have unacceptable impacts on historic and other sensitive
neighborhoods.” Springfield offers no argument to explain why the NEPA
categorical exclusion for collocations on utility poles should be more
restrictive than the exclusion for collocations on buildings. Moreover, the
Commission notes that the NEPA categorical exclusion the Commission addresses
here does not exclude the proposed collocation from NHPA review for effects on
historic properties or historic districts.
14. The Commission also notes that the exclusion from
section 106 review in the Collocation Agreement is not limited to collocations
on towers and buildings but also specifically includes collocations on other
existing non-tower structures. Further, the U.S. Fish and Wildlife Service has
found collocations on existing non-tower structures to be environmentally
desirable with regard to impacts on birds, noting that they will in virtually
every circumstance have less impact than would construction of a new tower.
15. Considering that collocating on these structures is
necessary for broadband deployment, and in light of the environmental benefits
of Start Printed Page 1241encouraging collocation rather than the construction
of new structures, the Commission finds that extending the categorical
exclusion to other structures advances the public interest and meets its
obligations under NEPA.
3. Categorical Exclusion of
Deployments in Communications or Utilities Rights-of-Way
16. The Commission adopts a categorical exclusion for certain
wireless facilities deployed in above-ground utility and communications
rights-of-way. The Commission finds that such deployments will not individually
or cumulatively have a significant effect on the environment. Given that DAS
and small-cell nodes are often deployed in communications and utilities
rights-of-way, the Commission concludes that the categorical exclusion will
significantly advance the deployment of such facilities in a manner that
safeguards environmental values.
17. Specifically, this categorical exclusion, which the
Commission incorporates into its rules as section 1.1306(c), covers
construction of wireless facilities, including deployments on new or
replacement poles, only if: (1) The facility will be located in a right-of-way
that is designated by a Federal, State, local, or Tribal government for
communications towers, above-ground utility transmission or distribution lines,
or any associated structures and equipment; (2) the right-of-way is in active
use for such designated purposes; and (3) the facility will not constitute a
substantial increase in size over existing support structures that are located
in the right-of-way within the vicinity of the proposed construction.
18. Although the Commission sought comment, in the Infrastructure
NPRM, on whether to adopt a categorical exclusion that covered facilities
also located within fifty feet of a communications or utility right-of-way,
similar to the exclusion from section 106 review in section III.E. of the
National Programmatic Agreement (NPA), the Commission limits its NEPA
categorical exclusion to facilities deployed within existing communications and
utility rights-of-way. Industry commenters that support applying the
categorical exclusion to deployments within fifty feet of a right-of-way do not
explain why the conclusion that deployments in the right-of-way will not have a
significant effect on the human environment also apply outside of a
right-of-way. Such ground would not necessarily be in active use for the
designated purposes, and there could well be a greater potential outside the
right-of-way for visual impact or new or significant ground disturbance that
might have the potential for significant environmental effects. Finally, the
record supports the conclusion that a categorical exclusion limited to
deployments within the rights-of-way will address most of the deployments that
would be covered by a categorical exclusion that also encompassed deployments
nearby. Sprint, for example, emphasizes that “many DAS and small cells will be
attached to existing structures and installed within utility rights-of-way
corridors.”
19. For purposes of this categorical exclusion, the
Commission defines a substantial increase in size in similar fashion to how it
is defined in the Collocation Agreement. Thus, a deployment would result in a
substantial increase in size if it would: (1) Exceed the height of existing
support structures that are located in the right-of-way within the vicinity of
the proposed construction by more than 10% or twenty feet, whichever is
greater; (2) involve the installation of more than four new equipment cabinets
or more than one new equipment shelter; (3) add an appurtenance to the body of
the structure that would protrude from the edge of the structure more than
twenty feet, or more than the width of the structure at the level of the
appurtenance, whichever is greater (except that the deployment may exceed this
size limit if necessary to shelter the antenna from inclement weather or to
connect the antenna to the tower via cable); or (4) involve excavation outside
the current site, defined as the area that is within the boundaries of the
leased or owned property surrounding the deployment or that is in proximity to
the structure and within the boundaries of the utility easement on which the
facility is to be deployed, whichever is more restrictive.
20. The Commission notes that it has found a similar test
appropriate in other contexts, including under its environmental rules. In
particular, the first three criteria that the Commission specifies above to
define the scope of the NEPA rights-of-way categorical exclusion also define
the scope of the rights-of-way exclusion from historic preservation review
under the NPA. Similarly, for purposes of Antenna Structure Registration, the
Commission does not require environmental notice for a proposed tower
replacement if, among other criteria, the deployment will not cause a
substantial increase in size under the first three criteria of the Collocation
Agreement, and there will be no construction or excavation more than 30 feet
beyond the existing antenna structure property. Further, given that the
industry now has almost a decade of experience applying this substantial
increase test to construction in the rights-of-way under the NPA exclusion, and
in light of the efficiencies to be gained from using a similar test here, the
Commission finds the Collocation Agreement test, as modified here, to be
appropriate in this context.
21. The Commission concludes that facilities subject to this
categorical exclusion will not have a significant effect on the environment
either individually or cumulatively, and that the categorical exclusion is
appropriate. In the NPA Report and Order, 70 FR 556 Jan 4, 2005, the Commission found that
excluding construction in utilities or communications rights-of-way from
historic preservation review was warranted because, “[w]here such structures
will be located near existing similar poles, . . . the likelihood of an
incremental adverse impact on historic properties is minimal.” The Commission
finds that the potential incremental impacts on the environment are similarly
minimal. Indeed, deploying these facilities should rarely involve more than
minimal new ground disturbance, given that constructing the existing facilities
likely disturbed the ground already and given the limitations on the size of
any new poles. Moreover, any new pole will also cause minimal visual effect
because by definition comparable structures must already exist in the vicinity
of the new deployment in that right-of-way, and new poles covered by this
categorical exclusion will not be substantially larger. Further, because such
corridors are already employed for utility or communications uses, and the new
deployments will be comparable in size to such existing uses, these additional
uses are unlikely to trigger new NEPA concerns. Any such concerns would have
already been addressed when such corridors were established, and the size of
the deployments the Commission categorically excludes will not be substantial
enough to raise the prospect of cumulative effects.
22. The Commission also finds support for these conclusions
in the categorical exclusions adopted by other agencies, including FirstNet. In
establishing its own categorical exclusions, FirstNet noted as part of its
Administrative Record that its anticipated activities in constructing a
nationwide public safety broadband network would primarily include “the
installation of cables, cell towers, antenna collocations, buildings, and Start
Printed Page 1242power units,” for example in connection with “Aerial
Plant/Facilities,” “Towers,” “Collocations,” “Power Units,” and “Wireless
Telecommunications Facilit[ies.]” It defined a “Wireless Telecommunications
Facility” as “[a]n installation that sends and/or receives radio frequency
signals, including directional, omni-directional, and parabolic antennas,
structures, or towers (no more than 199 feet tall with no guy wires), to
support receiving and/or transmitting devices, cabinets, equipment rooms,
accessory equipment, and other structures, and the land or structure on which
they are all situated.” To address its NEPA obligations in connection with
these activities, FirstNet adopted a number of categorical exclusions,
including a categorical exclusion for “[c]onstruction of wireless
telecommunications facilities involving no more than five acres (2 hectares) of
physical disturbance at any single site.” In adopting this categorical exclusion,
FirstNet found that it was “supported by long-standing categorical exclusions
and administrative records. In particular, these include categorical exclusions
from the U.S. Department of Commerce, U.S. Department of Agriculture, and U.S.
Department of Energy.”
23. The Commission finds that FirstNet's anticipated
activities encompass the construction of wireless facilities and support
structures in the rights-of-way, and are therefore comparable to the wireless
facility deployments the Commission addresses here. Further, the Commission
notes that the categorical exclusions adopted by FirstNet are broader in scope
than the categorical exclusion the Commission adopts for facilities deployed
within existing rights-of-way. The Commission further notes that several other
agencies have found it appropriate to categorically exclude other activities in
existing rights-of-way unrelated to telecommunications.
24. The Commission finds that the categorical exclusion
addresses some concerns raised by municipalities, and the Commission finds that
other concerns they raise are not relevant to the environmental review process.
First, the Commission notes that the categorical exclusion it adopts addresses
Coconut Creek's objection to above-ground deployments in areas with no above-ground
infrastructure because the Commission limits it to rights-of-way in active use
for above-ground utility structures or communications towers. Second, concerns
about hazards to vehicular or pedestrian traffic are logically inapplicable. As
the Commission noted in connection with deployments on structures other than
communications towers and buildings, such concerns do not currently warrant the
submission of an EA. Rather, EAs are routinely required for deployments in
communications or utility rights-of-way only if they meet one of the criteria
specified in section 1.1307(a) or (b). Deployments in the communications or
utility rights-of-way have never been identified in the Commission's rules as
an environmentally sensitive category; indeed, the use of such rights-of-way
for antenna deployments is environmentally desirable as compared to deployments
in other areas.
Finally, the Commission finds it unnecessary to adopt Tempe's
proposed limitation, whether it is properly understood as a proposal to categorically
exclude only one non-substantial increase at a particular site or in the same
general vicinity, as such limitation has proven unnecessary in the context of
historic preservation review. Having concluded that wireless facility
deployments in communications or utility rights-of-way have no potentially
significant environmental effects individually or cumulatively, the Commission
finds no basis to limit the number of times such a categorical exclusion is
used either at a particular site or in the same general vicinity. Indeed, the
categorical exclusion encourages an environmentally responsible approach to
deployment given that, as Note 1 and section 1.1306(c) make clear, the use of
existing corridors “is an environmentally desirable alternative to the
construction of new facilities.” And, apart from environmental considerations,
it would be contrary to the public interest to unnecessarily limit the
application of this categorical exclusion.
25. To the extent that commenters propose extending the Note
1 aerial and underground corridor categorical exclusion to include components
of telecommunications systems other than wires and cables, the Commission
declines to do so. The Commission finds that the new section 1.1306(c)
categorical exclusion the Commission adopts for deployments in communications
or utilities rights-of-way will provide substantial and appropriate relief, and
that the record in this proceeding does not justify a further expansion of the
Note 1 categorical exclusion. Further, the existing Note 1 categorical
exclusion for wires and cables in underground and aerial corridors is broader
than the categorical exclusion for installations on existing buildings or
antenna towers because it is not limited by section 1.1307(a)(4) (section 106
review) or 1.1307(b) (RF emissions), while collocations on existing buildings
or towers are subject to these provisions. The Commission notes that even
parties advocating an extension of the categorical exclusion for installation
of wire and cable to additional telecommunications components concede that the
extension should not apply to review of RF emissions exposure, as the existing
categorical exclusion does. This distinction underscores that the existing
categorical exclusion of cables and wires in aerial and underground corridors
is based on an analysis that does not directly apply to other communications
facilities.
B. NHPA Exclusions
1. Regulatory Background
26. Section 1.1307(a)(4) of the Commission's rules directs
licensees and applicants, when determining whether a proposed action may affect
historic properties, to follow the procedures in the rules of the Advisory
Council on Historic Preservation (ACHP) as modified by the Collocation
Agreement and the NPA, two programmatic agreements that took effect in 2001 and
2005, respectively. The Collocation Agreement excludes collocations on
buildings or other non-tower structures outside of historic districts from
routine section 106 review unless: (1) The structure is inside the boundary of
a historic district, or it is within 250 feet of the boundary of a historic
district and the antenna is visible from ground level within the historic
district; (2) the structure is a designated National Historic Landmark or is
listed in or eligible for listing in the National Register of Historic Places
(National Register); (3) the structure is over 45 years old; or (4) the
proposed collocation is the subject of a pending complaint alleging adverse
effect on historic properties.
2. New Exclusions
27. In addition to seeking comment on whether the Commission
should add an exclusion from section 106 review for DAS and small cells
generally, the Infrastructure NPRM sought comment on whether to expand
the existing categorical exclusion for collocations to cover collocations on
structures subject to review solely because of the structure's age—that is, to
deployments that are more than 45 years old but that are not (1) inside the
boundary of a historic district, or within 250 feet of the boundary of a
historic district; (2) located on a structure that is a Start Printed Page
1243designated National Historic Landmark or is listed in or eligible for
listing in the National Register; or (3) the subject of a pending complaint
alleging adverse effect on historic properties.
28. As an initial matter, the Commission finds no basis to
hold categorically that small wireless facilities such as DAS and small cells
are not Commission undertakings. While PCIA argues that small facilities could
be distinguished, it does not identify any characteristic of such deployments
that logically removes them from the analysis applicable to other facilities.
Having determined that DAS and small cell deployments constitute Federal
undertakings subject to section 106, the Commission considers its authority
based on section 800.3(a)(1) of ACHP's rules to exclude such small facility
deployments from section 106 review. It is clear under the terms of section
800.3(a)(1) that a Federal agency may determine that an undertaking is a type
of activity that does not have the potential to cause effects to historic
properties, assuming historic properties were present, in which case, “the
agency has no further obligations under section 106 or this part [36 part 800,
subpart B].”
29. The commenters that propose a general exclusion for DAS
and small cell deployments assert that under any circumstances, such
deployments have the potential for at most minimal effects, but they do not
provide evidence to support such a broad conclusion. Moreover, several
commenters, including several SHPOs, express concerns that such deployments do
have the potential for effects in some cases. The Commission cannot find on
this record that DAS and small-cell facilities qualify for a general exclusion,
and the Commission therefore concludes, after consideration of the record, that
any broad exclusion of such facilities must be implemented at this time through
the development of a “program alternative” as defined under ACHP's rules. The
Commission is committed to making deployment processes as efficient as possible
without undermining the values that section 106 protects. The Commission staff
are working on a program alternative that, through consultation with
stakeholders, will ensure thorough consideration of all applicable interests,
and will culminate in a system that eliminates additional bureaucratic
processes for small facilities to the greatest extent possible consistent with
the purpose and requirements of section 106.
30. The Commission further concludes that it is in the
public interest to immediately adopt targeted exclusions from its section 106
review process that will apply to small facilities (and in some instances
larger antennas) in many circumstances and thereby substantially advance the
goal of facilities deployment. The Commission may exclude activities from
section 106 review upon determining that they have no potential to cause
effects to historic properties, assuming such properties are present. As
discussed in detail below, the Commission finds two targeted circumstances that
meet this test, one applicable to utility structures and the other to buildings
and any other non-tower structures. Pursuant to these findings the Commission
establishes two exclusions.
31. First, the Commission excludes collocations on existing
utility structures, including utility poles and electric transmission towers,
to the extent they are not already excluded in the Collocation Agreement, if:
(1) The collocated antenna and associated equipment, when measured together
with any other wireless deployment on the same structure, meet specified size
limitations; and (2) the collocation will involve no new ground disturbance.
Second, the Commission excludes collocations on a building or other non-tower
structure, to the extent they are not already excluded in the Collocation
Agreement, if: (1) There is an existing antenna on the building or other
structure; (2) certain requirements of proximity to the existing antenna are
met, depending on the visibility and size of the new deployment; (3) the new
antenna will comply with all zoning conditions and historic preservation
conditions on existing antennas that directly mitigate or prevent effects, such
as camouflage or concealment requirements; and (4) the deployment will involve
no new ground disturbance. With respect to both of these categories—utility
structures and other non-tower structures—the Commission extends the exclusion
only to deployments that are not (1) inside the boundary of a historic
district, or within 250 feet of the boundary of a historic district; (2) located
on a structure that is a designated National Historic Landmark or is listed in
or eligible for listing in the National Register; or (3) the subject of a
pending complaint alleging adverse effect on historic properties. In other
words, these exclusions address collocations on utility structures and other
non-tower structures where historic preservation review would otherwise be
required under existing rules only because the structures are more than 45
years old. The Commission's action here is consistent with its determination in
the NPA to apply a categorical exclusion based upon a structure's proximity to
a property listed in or eligible to be listed in the National Register rather
than whether a structure is over 45 years old regardless of eligibility.
Consistent with section 800.3(a)(1), the Commission finds collocations meeting
the conditions stated above have no potential to affect historic properties
even if such properties are present. The Commission nevertheless finds it
appropriate to limit the adopted exclusions. Given the sensitivities
articulated in the record, particularly those from the National Conference of
State Historic Preservation Officers (NCSHPO) and other individual commenting
SHPOs, regarding deployments in historic districts or on historic properties,
the Commission concludes that any broader exclusions require additional
consultation and consideration, and are more appropriately addressed and
developed through the program alternative process that Commission staff have
already begun.
a. Collocations on Utility
Structures
32. Pursuant to section 800.3(a)(1) of ACHP's rules, the
Commission finds that antennas mounted on existing utility structures have no
potential for effects on historic properties, assuming such properties are present,
where the deployment meets the following conditions: (1) The antenna and any
associated equipment, when measured together with any other wireless
deployments on the same structure, meets specified size limitations; and (2)
the deployment will involve no new ground disturbance. Notwithstanding this
finding of no potential for effects even assuming historic properties are
present, the Commission limits this exclusion (as described above) in light of
the particular sensitivities related to historic properties and districts.
Accordingly, this exclusion does not apply to deployments that are (1) inside
the boundary of a historic district, or within 250 feet of the boundary of a
historic district; (2) located on a structure that is a designated National Historic
Landmark or is listed in or eligible for listing in the National Register; or
(3) the subject of a pending complaint alleging adverse effect on historic
properties. In other words, this new targeted exclusion addresses collocations
on utility structures where historic preservation review would otherwise be
required under existing rules only because the structures are more than 45
years old.Start Printed Page 1244
33. For purposes of this exclusion, the Commission defines
utility structures as utility poles or electric transmission towers in active
use by a “utility” as defined in section 224 of the Communications Act, but not
including light poles, lamp posts, and other structures whose primary purpose
is to provide public lighting. Utility structures are, by their nature,
designed to hold a variety of electrical, communications, or other equipment,
and they already hold such equipment. Their inherent characteristic thus
incorporates the support of attachments, and their uses have continued to
evolve with changes in technology since they were first used in the mid-19th
century for distribution of telegraph services. Indeed, the Commission notes
that other, often larger facilities are added to utility structures without
review. For example, deployments of equipment supporting unlicensed wireless
operations like Wi-Fi access occur without the Commission's section 106 review
in any case, as do installations of non-communication facilities such as
municipal traffic management equipment or power equipment such as electric
distribution transformers. The addition of DAS or small cell facilities to
these structures is therefore fully consistent with their existing use.
34. While the potential for effects from any deployments on
utility structures is remote at most, the Commission concludes that the
additional conditions described above support a finding that there is no such
potential at all, assuming the presence of historic properties. First, the
Commission limits the size of equipment covered by this exclusion. In doing so,
the Commission draws on a PCIA proposal, which includes separate specific
volumetric limits for antennas and for enclosures of associated equipment, but
the Commission modifies the definition in certain respects to meet the standard
in ACHP's rules that the undertaking must have no potential for effects.
Specifically, the Commission provides that the deployment may include covered
antenna enclosures no more than three cubic feet in volume per enclosure, or
exposed antennas that fit within an imaginary enclosure of no more than three
cubic feet in volume per imaginary enclosure, up to an aggregate maximum of six
cubic feet. The Commission further provides that all equipment enclosures (or
imaginary enclosures) associated with the collocation on any single structure,
including all associated equipment but not including separate antennas or
enclosures for antennas, must be limited cumulatively to seventeen cubic feet
in volume. Further, collocations under this rule will be limited to
collocations that cause no new ground disturbance.
35. Because the Commission finds that multiple collocations
on a utility structure could have a cumulative impact, the Commission further
applies the size limits defined above on a cumulative basis taking into account
all pre-existing collocations. Specifically, if there is a pre-existing
wireless deployment on the structure, and any of this pre-existing equipment
would remain after the collocation, then the volume limits apply to the
cumulative volume of such pre-existing equipment and the new collocated
equipment. Thus, for the new equipment to come under this exclusion, the sum of
the volume of all pre-existing associated equipment that remains after the
collocation and the new equipment must be no greater than seventeen cubic feet,
and the sum of the volume of all collocated antennas, including pre-existing
antennas that remain after the collocation, must be no greater than six cubic
feet. The Commission further provides that the cumulative limit of seventeen
cubic feet for wireless equipment applies to all equipment on the ground
associated with an antenna on the structure as well as associated equipment
physically on the structure. Thus, application of the limit is the same
regardless of whether equipment associated with a particular deployment is
deployed on the ground next to a structure or on the structure itself. While
some commenters oppose an exclusion based solely on PCIA's volumetric
definition, the Commission finds that the Commission's exclusion addresses their
concerns. For example, Tempe and the CA Local Governments express concern that
PCIA's definition would allow an unlimited number of ground-mounted cabinets.
The Commission's approach provides that associated ground equipment must also
come within the volumetric limit for equipment enclosures, however, and
therefore does not allow for unlimited ground-based equipment. Further, because
the Commission applies the size limit on a cumulative basis, the Commission's
exclusion directly addresses concerns that the PCIA definition would allow
multiple collocations that cumulatively exceed the volumetric limits.
Consistent with a proposal by PCIA, the Commission finds that certain equipment
should be omitted from the calculation of the equipment volume, including: (1)
Vertical cable runs for the connection of power and other services, the volume
of which may be impractical to calculate and which should in any case have no
effect on historic properties, consistent with the established exclusion of
cable in pre-existing aerial or underground corridors; (2) ancillary equipment
installed by other entities that is outside of the applicant's ownership or
control, such as a power meter installed by the electric utility in connection
with the wireless deployment, and (3) comparable equipment from pre-existing
wireless deployments on the structure.
36. To meet the standard under section 800.3(a)(1), the
Commission further imposes a requirement of no new ground disturbance,
consistent for the most part with the NPA standard. Under the NPA standard, no
new ground disturbance occurs so long as the depth of previous disturbance
exceeds the proposed construction depth (excluding footings and other anchoring
mechanisms) by at least two feet. The Commission finds that footings and anchorings
should be included in this context to ensure no potential for effects.
Therefore, the Commission's finding is limited to cases where there is no
ground disturbance or the depth and width of previous disturbance exceeds the
proposed construction depth and width, including the depth and width of any
proposed footings or other anchoring mechanisms, by at least two feet. Some
Tribal Nations have indicated that exclusions of small facilities from section
106 review might be reasonable if there is no excavation but that any ground
disturbance would be cause for concern. The Commission finds that the
restrictions it places on both of the Commission's new section 106 exclusions
are sufficient to address this concern and ensure that there is no potential
for effects on historic properties of Tribal religious or cultural
significance. These restrictions include a strict requirement for both
exclusions of no new ground disturbance and restrictions on the size and
placement of equipment. Furthermore, both exclusions are limited to
collocations (and therefore do not include new or replacement support
structures).
37. Adoption of this exclusion will provide significant
efficiencies in the section 106 process for DAS and small-cell deployments.
Many DAS and small-cell installations involve collocations on utility
structures. PCIA also estimates that excluding collocations on these wooden
poles would increase the estimated number of excluded collocation structures by
a factor of 10—which would dramatically advance wireless infrastructure
deployment Start Printed Page 1245without impacting historic preservation
values.
b. Collocations on Buildings
and Other Non-Tower Structures
38. Verizon proposes an exclusion for collocations on any
building or other structure over 45 years old if: (1) The antenna will be added
in the same location as other antennas previously deployed; (2) the height of
the new antenna will not exceed the height of the existing antennas by more
than three feet, or the new antenna will not be visible from the ground
regardless of the height increase; and (3) the new antenna will comply with any
requirements placed on the existing antennas by the State or local zoning
authority or as a result of any previous historic preservation review process.
39. Section 800.3(a)(1) of ACHP rules authorizes an
exclusion only where the undertaking does not have the potential to cause
effects on historic properties, assuming such historic properties are present.
While the Commission concludes that this standard allows for an exclusion
applicable to many collocations on buildings and other structures that already
house collocations, the Commission finds insufficient support in the record to
adopt Verizon's proposed exclusion in its entirety. While Verizon states that
adding an antenna to a building within the scope of its proposal would not have
an effect that differs from those caused by existing antennas, the Commission
must also consider the cumulative effects of additional deployments on the
integrity of a historic property to the extent that they add incompatible
visual elements. Further, while Verizon relies heavily on the requirement that
any new deployment must meet the same conditions as the existing deployment,
the Commission cannot assume that conditions placed on a previous deployment
are always sufficient to prevent any effects, particularly in the event of
multiple additional deployments. Indeed, it is often the case that mitigating
conditions are designed to offset effects rather than eliminate or reduce them
entirely. The Commission concludes that with certain modifications to Verizon's
proposal, deployments covered by the test would have no potential for effects.
40. Specifically, the Commission finds that collocations on
buildings or other non-tower structures over 45 years old will have no
potential for effects on historic properties if: (1) There is an existing
antenna on the building or structure; (2) one of the following criteria is met:
(a) The new antenna will not be visible from any adjacent streets or surrounding
public spaces and will be added in the same vicinity as a pre-existing antenna;
(b) the new antenna will be visible from adjacent streets or surrounding public
spaces, provided that (i) it will replace a pre-existing antenna, (ii) the new
antenna will be located in the same vicinity as the pre-existing antenna, (iii)
the new antenna will be visible only from adjacent streets and surrounding
public spaces that also afford views of the pre-existing antenna, (iv) the new
antenna will not be more than three feet larger in height or width (including
all protuberances) than the pre-existing antenna, and (v) no new equipment
cabinets will be visible from the adjacent streets or surrounding public
spaces; or (c) the new antenna will be visible from adjacent streets or
surrounding public spaces, provided that (i) it will be located in the same
vicinity as a pre-existing antenna, (ii) the new antenna will be visible only
from adjacent streets and surrounding public spaces that also afford views of
the pre-existing antenna, (iii) the pre-existing antenna was not deployed
pursuant to the exclusion based on this finding, (iv) the new antenna will not
be more than three feet larger in height or width (including all protuberances)
than the pre-existing antenna, and (v) no new equipment cabinets will be
visible from the adjacent streets or surrounding public spaces; (3) the new
antenna will comply with all zoning conditions and historic preservation
conditions applicable to existing antennas in the same vicinity that directly
mitigate or prevent effects, such as camouflage or concealment requirements;
and (4) the deployment of the new antenna will involve no new ground
disturbance. Notwithstanding its finding of no potential for effects even
assuming historic properties are present, the Commission limits this exclusion
in light of many parties' particular sensitivities related to historic
properties and districts. As with the exclusion for collocations on utility
poles, this exclusion does not apply to deployments that are (1) inside the
boundary of a historic district, or within 250 feet of the boundary of a
historic district; (2) located on a structure that is a designated National
Historic Landmark or is listed in or eligible for listing in the National
Register; or (3) the subject of a pending complaint alleging adverse effect on
historic properties. In other words, this new targeted exclusion addresses
collocations on non-tower structures where historic preservation review would
otherwise be required under existing rules only because the structures are more
than 45 years old.
41. Consistent with the Verizon proposal, the Commission
requires that there must already be an antenna on the building or other
structure and that the new antenna be in the same vicinity as the pre-existing
antenna. For this purpose, a non-visible new antenna is in the “same vicinity”
as a pre-existing antenna if it will be collocated on the same rooftop, façade
or other surface, and a visible new antenna is in the “same vicinity” as a
pre-existing antenna if it is on the same rooftop, façade, or other surface and
the centerpoint of the new antenna is within 10 feet of the centerpoint of the
pre-existing antenna. Combined with the other criteria discussed below, this
requirement is designed to assure that a new antenna will not have any
incremental effect on historic properties, assuming they exist, as there will
be no additional incompatible elements.
42. In addition to Verizon's proposed requirement that the
deployment be in the same vicinity as an existing antenna, the Commission also
adopts a condition of no-visibility from adjoining streets or any surrounding
public spaces, with two narrow exceptions. For the general case, the
Commission's no-effects finding will apply only to a new antenna that is not
visible from any adjacent streets or surrounding public spaces and is added in
the same vicinity as a pre-existing antenna. In adopting this standard, the
Commission is informed by the record and also in part by General Services
Administration (GSA) Preservation Note 41, entitled “Administrative Guide for
Submitting Antenna Projects for External Review.” Preservation Note 41
recommends that an agency may recommend a finding of no effect where the
antenna will not be visible from the surrounding public space or streets and
the antenna will not harm original historic materials or their
replacements-in-kind. The Commission notes that, in addition to the measures
ensuring that there are no incremental visual effects from covered facilities,
the Commission's finding of no effects in this case is also implicitly based on
a requirement, as the GSA Note recommends, that the deployment will not harm
original historic materials. Even assuming a building is historic, however, as
required by section 800.3(a)(1), this “no harm” criterion would be satisfied by
ensuring that any anchoring on the building was not performed on the historic
materials of the property or their replacements-in-kind. It is therefore
unnecessary to expressly impose a “no harm” condition Start Printed Page 1246in
this case, as the exclusion the Commission adopts does not apply to historic
properties. Necessarily, any anchoring of deployments subject to the exclusion
will not be in any historic materials of the property. The Commission also notes
that, under the criteria the Commission adopts, the deployment will occur only
where another antenna has already been reviewed under section 106 and approved
for deployment in the same vicinity, and any conditions imposed on that prior
deployment to minimize or eliminate historic impact, including specifications
of where, how, or under what conditions to construct, are part of the
Commission's “no effect” finding and would apply as a condition of the
exclusion.
43. The Commission makes a narrow exception to the
no-visibility requirement where the new antenna would replace an existing
antenna in the same vicinity and where the addition of the new antenna would
not constitute a substantial increase in size over the replaced antenna. In
this situation, no additional incompatible visual element is being added, as
one antenna is a substitution for the other. The Commission permits an
insubstantial increase in size in this situation. For purposes of this
criterion, the replacement facility would represent a substantial increase in
size if it is more than three feet larger in height or width (including all
protuberances) than the existing facility, or if it involves any new equipment
cabinets that are visible from the street or adjacent public spaces. The Commission
declines to adopt the NPA definition of “substantial increase,” which allows
greater increases in height or width in some cases, because it applies to
towers, not to antenna deployments, and it is therefore overbroad with respect
to the replacement of an existing antenna. The Commission further notes that no
one has objected to Verizon's proposed limit on increases of three feet in this
context. Also, since the Commission is required to ensure no potential for
effects on historic properties assuming such properties are present, the
Commission finds it appropriate to adopt a more stringent test than in the
context of a program alternative. For these reasons, any increase in the number
of equipment cabinets that are visible from the street or adjacent public
spaces in connection with a replacement antenna constitutes a substantial
increase in size. In combination with the requirements that the new antenna be
within 10 feet of the replaced antenna and that the pre-existing antenna be
visible from any ground perspective that would afford a view of the new antenna
these requirements ensure that the replacement deployment will not have an
additional visual effect.
44. Under its second partial exception to the no-visibility
requirement, the new antenna may be in addition to, rather than a replacement
of, a pre-existing antenna, but must meet the other requirements applicable to
replacement antennas. The Commission requires that the pre-existing antenna
itself not have been deployed pursuant to this exception. While this exception
will allow an additional visual element to be added, the element is again
limited to a comparably-sized antenna in the same viewshed (and again does not
include any new visible associated equipment). Further, because the
pre-existing antenna may not itself have been deployed pursuant to this
no-effects finding, deployments cannot be daisy-chained across the structure,
which might present a potential for cumulative effects.
45. Consistent with the Verizon proposal, the Commission
requires that the new antenna comply with all zoning and historic preservation
conditions applicable to existing antennas in the same vicinity that directly
mitigate or prevent effects, such as camouflage, concealment, or painting
requirements. The Commission does not extend that requirement to conditions
that have no direct relationship to the facility's effect or how the facility
is deployed, such as a condition that requires the facility owner to pay for
historic site information signs or other conditions intended to offset harms
rather than prevent them. Its goal is to assure that any new deployments have
no effects on historic properties. Payments or other forms of mitigation
applied to antennas previously deployed on the building or structure that were
intended to compensate for any adverse effect on historic properties caused by
those antennas but were not intended to prevent that effect from occurring do
not advance its goal of assuring no effects from such collocations. The
Commission does not require that the new antenna comply with such conditions.
46. As with the exclusion the Commission adopts for
collocations on utility structures, the Commission imposes a strict requirement
of no new ground disturbance. Thus, the exclusion will permit ground
disturbance only where the depth and width of previous disturbance exceeds the
proposed construction depth and width (including footings and other anchoring
mechanisms) by at least two feet.
3. Antennas Mounted in the
Interior of Buildings
47. The Collocation Agreement provides that “[a]n antenna
may be mounted on a building” without section 106 review except under certain
circumstances, e.g., the building is a historic property or over 45
years of age. The Commission clarifies that section V of the Collocation
Agreement covers collocations in buildings' interiors. Given the limited scope
of the exclusion of collocations on buildings under the Collocation Agreement (e.g.,
the building may not itself be listed in or eligible for listing in the
National Register or in or near a historic district), there is no reason to
distinguish interior collocations from exterior collocations for purposes of
assessing impacts on historic properties.
II. Environmental
Notification Exemption for Registration of Temporary Towers
48. If pre-construction notice of a tower to the FAA is
required, the Commission's rules also require the tower owner to register the
antenna structure in the Commission's Antenna Structure Registration (ASR)
system, prior to construction or alteration. To fulfill responsibilities under
NEPA, the Commission requires owners of proposed towers, including temporary
towers that must be registered in the ASR system to provide local and national
notice prior to submitting a completed ASR application. Typically, the ASR notice
process takes approximately 40 days.
49. On May 15, 2013, in the Environmental Notification
Waiver Order (Waiver Order), the Commission granted an interim
waiver of the ASR environmental notification requirements for temporary towers
meeting certain criteria. The Commission provided that the interim waiver would
remain in effect pending the completion of a rulemaking to address the issues
raised in the petition. In the Infrastructure NPRM, the Commission
proposed to adopt a permanent exemption from the ASR pre-construction
environmental notification requirements consistent with the interim exemption
granted in the Waiver Order.
50. The Commission now adopts a permanent exemption from its
ASR environmental notification requirements for temporary towers that (1) will
be in place for no more than 60 days; (2) require notice of construction to the
FAA; (3) do not require marking or lighting under FAA regulations; (4) will be
less than 200 feet in height; and (5) will either involve no excavation or involve excavation only where the depth of previous
disturbance exceeds the proposed construction depth (excluding footings and
other anchoring mechanisms) by at least two feet. The Commission finds that
establishing the proposed exemption is consistent with its obligations under
NEPA and the Council on Environmental Quality (CEQ) regulations, and will serve
the public interest.
51. As the Commission observed in the Infrastructure
NPRM, the ASR notice process takes approximately 40 days and can take as
long as two months. The record confirms that absent the exemption, situations
would arise where there is insufficient time to complete this process before a
temporary tower must be deployed to meet near-term demand. The record, as well
as the Commission's own experience in administering the environmental notice
rule, shows that a substantial number of temporary towers that would qualify
for the exemption require registration. The Commission finds that absent an
exemption, application of the ASR notice process to these temporary towers will
interfere with the ability of service providers to meet important short term
coverage and capacity needs.
52. At the same time, the benefits of environmental notice
are limited in the case of temporary towers meeting these criteria. The purpose
of environmental notice is to facilitate public discourse regarding towers that
may have a significant environmental impact. The Commission finds that towers
meeting the specified criteria are highly unlikely to have significant
environmental effects due to their short duration, limited height, absence of
marking or lighting, and minimal to no excavation. As the Commission explained
in the Waiver Order, its experience in administering the ASR public
notice process confirms that antenna structures meeting the waiver criteria
rarely if ever generate public comment regarding potentially significant
environmental effects or are determined to require further environmental
processing. In particular, since the Waiver Order has been in place, the
Commission has seen no evidence that a temporary tower exempted from
notification by the waiver has had or may have had a significant environmental
effect. The Commission finds that the limited benefits of notice in these cases
do not outweigh the potential detriment to the public interest of prohibiting
the deployment of towers in circumstances in which the notification process
cannot be completed quickly enough to address short-term deployment needs.
Further, having concluded that pre-construction environmental notification is
categorically unnecessary in the situations addressed here, the Commission
finds it would be inefficient to require the filing and adjudication of
individual waiver requests for these temporary towers. The Commission concludes
that adoption of the exemption is warranted.
53. The Commission also adopts the proposal to require no
post-construction environmental notice for temporary towers that qualify for
the exemption. Ordinarily, when pre-construction notice is waived due to an
emergency situation, the Commission requires environmental notification shortly
after construction because such a deployment may be for a lengthy or indefinite
period of time. The Commission finds that requiring post-construction
notification for towers intended to be in place for the limited duration
covered by the exemption is not in the public interest as the exempted period
is likely to be over or nearly over by the time the notice period ends.
Additionally, the Commission notes again that it has rarely seen temporary
antenna structures generate public comment regarding potentially significant
environmental effects. The Commission further notes that of the many commenters
supporting an exemption, none opposed its proposal to exempt qualifying temporary
towers from post-construction environmental notification.
54. The Commission finds that the objections to the proposed
exemption raised by Lee County, Tempe, and Orange County are misplaced. They
express concerns that a temporary towers exemption would eliminate local review
(including local environmental review) and antenna structure registration
requirements. The exemption the Commission adopts does neither of these things.
First, the temporary towers measure does not exempt any deployment from any otherwise
applicable requirement under the Commission's rules to provide notice to the
FAA, to obtain an FAA “no-hazard” determination, or to complete antenna
structure registration. In raising its concern, Orange County notes that it
“operates . . . a large regional airport that has recently expanded through
construction of a third terminal.” The Commission finds the exemption poses no
threat to air safety. As noted, deployments remains subject to all applicable
requirements to notify the FAA and register the structure in the ASR system. If
the Commission or the FAA requires either painting or lighting, i.e.,
because of a potential threat to aviation, the exemption does not apply. Nor
does the exemption impact any local requirements. Further, the Commission
provides, as proposed in the Infrastructure NPRM, that towers eligible
for the notification exemption are still required to comply with the
Commission's other NEPA requirements, including filing an EA in any of the
environmentally sensitive circumstances identified by the rules. The Commission
further provides that if an applicant determines that it needs to complete an
EA for a temporary tower otherwise eligible for the exemption, or if the
relevant bureau makes this determination pursuant to section 1.1307(c) or (d)
of the Commission's rules, the application will not be exempt from the
environmental notice requirement.
55. The Commission concludes that making the exemption
available for towers less than 200 feet above ground level is appropriate and
adequate to ensure that the exemption serves the public interest both by
minimizing potential significant environmental effects and by enabling wireless
providers to more effectively respond to large or unforeseen spikes in demand
for service. CTIA indicates that carriers deploy temporary towers more than 150
feet tall to replace damaged towers of similar height, and that having to use
shorter towers to stand in for damaged towers may reduce coverage and thereby
limit the availability of service during emergencies. The Commission agrees
with CTIA that reducing the maximum tower height could undermine the intended
purpose of the exemption. Further, the proposed limit of less than 200 feet
will allow appropriate flexibility for taller temporary models, as they become
available.
56. The Commission concludes that 60 days is an appropriate
time limit for the deployment of towers under this exemption. This time limit
has substantial support in the record, and the Commission finds that 60 days
strikes the proper balance between making this exemption a useful and effective
tool for facilitating urgently needed short term communications deployments and
facilitating public involvement in Commission decisions that may affect the
environment. The brief duration of the covered deployments renders
post-construction notification unnecessary in the public interest because the
deployment will be removed by the time a post-construction notice period is
complete or shortly thereafter. As the intended deployment period grows,
however, the applicability of that reasoning erodes. For emergency deployments
that may last up to six months or even longer, post-construction notice will generally be warranted, as the Commission has
indicated previously. Thus, the Commission finds that the existing procedure—i.e.,
site-specific waivers that are generally conditioned on post-construction
notice—remains appropriate for emergency towers that will be deployed for
longer periods than those covered by the narrow exemption the Commission
establishes in this proceeding.
57. The Commission declines to define consequences or to
adopt special enforcement mechanisms for misuse of the exemption, as proposed
by some commenters. The Commission agrees with Springfield, however, that the
Commission should adopt a measure to prevent the use of consecutive deployments
under the exemption to effectively exceed the time limit. The Commission
therefore requires that at least 30 days must pass following the removal of one
exempted temporary tower before the same applicant may rely on the exemption
for another temporary tower covering substantially the same service area. While
AT&T argues that the Commission should not adopt measures to prevent
“speculative abuses,” the Commission concludes that this narrow limitation on
the consecutive use of the exemption will help to ensure that it applies only
to deployments of brief duration, as intended. Further, the Commission is not
persuaded by CTIA's argument that such a restriction would interfere with a carrier's
flexibility to respond to unforeseen events. The restriction places no limit on
the number of exempt towers that can be deployed at any one time to cover a
larger combined service area. The Commission also notes that its rule provides
for extensions of the 60-day period in appropriate cases, which should further
ensure that applicants have sufficient flexibility to respond to unforeseen
events.
58. The Commission further clarifies that under appropriate conditions, such as natural disasters or national emergencies, the relevant bureau may grant waivers of this limitation applicable to defined geographic regions and periods. In addition, a party subject to this limitation at a particular site may still request a site-specific waiver of the notice requirements for a subsequent temporary deployment at that site.
59. To implement the new temporary towers exemption,
Commission staff will modify FCC Form 854. The Commission notes that the
modification of the form is subject to approval by the Office of Management and
Budget (OMB). To ensure clarity, the Commission provides that the exemption
will take effect only when the Wireless Telecommunications Bureau issues a
Public Notice announcing OMB's approval. The Commission further provides that,
until the new exemption is effective, the interim waiver of notification
requirements for temporary towers remains available.
III. Implementation of
Section 6409(a)
A. Background
60. Congress adopted section 6409 in 2012 as a provision of
Title VI of the Middle Class Tax Relief and Job Creation Act of 2012, which is
more commonly known as the Spectrum Act. Section 6409(a), entitled “Facility
Modifications,” has three provisions. Subsection (a)(1) provides that
“[n]otwithstanding section 704 of the Telecommunications Act of 1996 [codified
as 47 U.S.C. 332(c)(7)] or any
other provision of law, a State or local government may not deny, and shall
approve, any eligible facilities request for a modification of an existing
wireless tower or base station that does not substantially change the physical
dimensions of such tower or base station.” Subsection (a)(2) defines the term
“eligible facilities request” as any request for modification of an existing
wireless tower or base station that involves (a) collocation of new
transmission equipment; (b) removal of transmission equipment; or (c)
replacement of transmission equipment. Subsection (a)(3) provides that
“[n]othing in paragraph (a) shall be construed to relieve the Commission from
the requirements of the National Historic Preservation Act or the National
Environmental Policy Act of 1969.” Aside from the definition of “eligible
facilities request,” section 6409(a) does not define any of its terms.
Similarly, neither the definitional section of the Spectrum Act nor that of the
Communications Act contains definitions of the section 6409(a) terms. In the Infrastructure
NPRM, the Commission sought comment on whether to address the provision
more conclusively and comprehensively. The Commission found that it would serve
the public interest to seek comment on implementing rules to define terms that
the provision left undefined, and to fill in other interstices that may serve
to delay the intended benefits of section 6409(a).
B. Discussion
61. After reviewing the voluminous record in this
proceeding, the Commission decides to adopt rules clarifying the requirements
of section 6409(a), and implementing and enforcing these requirements, in order
to prevent delay and confusion in such implementation. As the Commission noted
in the Infrastructure NPRM, collocation on existing structures is often
the most efficient and economical solution for mobile wireless service
providers that need new cell sites to expand their existing coverage area,
increase their capacity, or deploy new advanced services. The Commission agrees
with industry commenters that clarifying the terms in section 6409 will
eliminate ambiguities in interpretation and thus facilitate the zoning process
for collocations and other modifications to existing towers and base stations.
Although these issues could be addressed over time through judicial decisions,
the Commission concludes that addressing them now in a comprehensive and
uniform manner will ensure that the numerous and significant disagreements over
the provision do not delay its intended benefits.
62. The record demonstrates very substantial differences in
the views advanced by local government and wireless industry commenters on a
wide range of interpretive issues under the provision. While many localities
recommend that the Commission defer to best practices to be developed on a
collaborative basis, the Commission finds that there has been little progress
in that effort since enactment of section 6409(a) well over two years ago.
While the Commission generally encourages the development of voluntary best
practices, the Commission is also concerned that voluntary best practices, on
their own, may not effectively resolve many of the interpretive disputes or
ensure uniform application of the law in this instance. In light of these
disputes, the Commission takes this opportunity to provide additional certainty
to parties.
63. Authority. The Commission finds that it has
authority under section 6003 of the Spectrum Act to adopt rules to clarify the
terms in section 6409(a) and to establish procedures for effectuating its
requirements. The Commission also has broad authority to “take any action
necessary to assist [FirstNet] in effectuating its duties and responsibilities”
to construct and operate a nationwide public safety broadband network. The
rules the Commission adopts reflect the authority conferred by these
provisions, as they will facilitate and expedite infrastructure deployment in
qualifying cases and thus advance wireless broadband deployment by commercial
entities as well as FirstNet.
1. Definition of Terms in
Section 6409(a)
a. Scope of Covered Services
64. The Commission first addresses the scope of wireless
services to which the provision applies through the definitions of both
“transmission equipment” and “wireless tower or base station.” After
considering the arguments in the record, the Commission concludes that section
6409(a) applies both to towers and base stations and to transmission equipment
used in connection with any Commission-authorized wireless communications
service. The Commission finds strong support in the record for this
interpretation. With respect to towers and base stations, the Commission
concludes that this interpretation is warranted given Congress's selection of
the broader term “wireless” in section 6409(a) rather than the narrow term
“personal wireless service” it previously used in section 332(c)(7), as well as
Congress's express intent that the provisions of the Spectrum Act “advance
wireless broadband service,” promoting “billions of dollars in private
investment,” and further the deployment of FirstNet. The Commission finds that
interpreting “wireless” in the narrow manner that some municipal commenters
suggest would substantially undermine the goal of advancing the deployment of
broadband facilities and services, and that interpreting section 6409(a) to
facilitate collocation opportunities on a broad range of suitable structures
will far better contribute to meeting these goals, and is particularly
important to further the deployment of FirstNet. The Spectrum Act directs the
FirstNet authority, in carrying out its duty to deploy and operate a nationwide
public safety broadband network, to “enter into agreements to utilize, to the
maximum extent economically desirable, existing . . . commercial or other
communications infrastructure; and . . . Federal, State, tribal, or local
infrastructure.” For all of these reasons, the Commission finds it appropriate
to interpret section 6409(a) as applying to collocations on infrastructure that
supports equipment used for all Commission-licensed or authorized wireless
transmissions.
65. The Commission is not persuaded that Congress's use of
the term “base station” implies that the provision applies only to mobile
service. As noted in the Infrastructure NPRM, the Commission's rules
define “base station” as a feature of a mobile communications network, and the term
has commonly been used in that context. It is important, however, to interpret
“base station” in the context of Congress's intention to advance wireless
broadband service generally, including both mobile and fixed broadband
services. The Commission notes, for example, that the Spectrum Act directs the
Commission to license the new commercial wireless services employing H Block,
AWS-3, and repurposed television broadcast spectrum under “flexible-use service
rules”—i.e., for fixed as well as mobile use. Moreover, in the context
of wireless broadband service generally, the term “base station” describes
fixed stations that provide fixed wireless service to users as well as those
that provide mobile wireless service. Indeed, this is particularly true with regard
to Long Term Evolution (LTE), in which base stations can support both fixed and
mobile service. The Commission finds that, in the context of section 6409(a),
the term “base station” encompasses both mobile and fixed services.
66. The Commission is also not persuaded that it should
exclude “broadcast” from the scope of section 6409(a), both with respect to
“wireless” towers and base stations and with respect to transmission equipment.
The Commission acknowledges that the term “wireless providers” appears in other
sections of the Spectrum Act that do not encompass broadcast services. The
Commission does not agree, however, that use of the word “wireless” in section
6409's reference to a “tower or base station” can be understood without
reference to context. The Commission interprets the term “wireless” as used in
section 6409(a) in light of the purpose of this provision in particular and the
larger purposes of the Spectrum Act as a whole. The Commission finds that
Congress intended the provision to facilitate collocation in order to advance
the deployment of commercial and public safety broadband services, including
the deployment of the FirstNet network. The Commission agrees with NAB that
including broadcast towers significantly advances this purpose by “supporting
the approximately 25,000 broadcast towers as collocation platforms.” The
Commission notes that a variety of industry and municipal commenters likewise
support the inclusion of broadcast towers for similar reasons. Finally, the
Commission observes that this approach is consistent with the Collocation
Agreement and the NPA, both of which define “tower” to include broadcast
towers. These agreements address “wireless” communications facilities and
collocation for any “communications” purposes. They extend to any “tower” built
for the sole or primary purpose of supporting any “FCC-licensed” facilities.
The Commission finds these references particularly persuasive in ascertaining
congressional intent, since section 6409(a) expressly references the Commission's
continuing obligations to comply with NEPA and NHPA, which form the basis for
these agreements.
67. The Commission further concludes that a broad
interpretation of “transmission equipment” is similarly appropriate in light of
the purposes of section 6409(a) in particular and the Spectrum Act more
generally. The statute's Conference Report expresses Congress's intention to
advance wireless broadband service generally, and as PCIA states, a broad
definition of this term will ensure coverage for all wireless broadband
services, including future services not yet contemplated. Defining
“transmission equipment” broadly will facilitate the deployment of wireless
broadband networks and will “minimize the need to continually redefine the term
as technology and applications evolve.” The Commission also notes that a broad
definition reflects Congress's definition of a comparable term in the context
of directly related provisions in the same statute; in section 6408, the
immediately preceding provision addressing uses of adjacent spectrum, Congress
defined the term “transmission system” broadly to include “any
telecommunications, broadcast, satellite, commercial mobile service, or other
communications system that employs radio spectrum.”
68. The Commission disagrees with commenters who contend
that including broadcast equipment within covered transmission equipment does
not advance the goals of the Spectrum Act. While broadcast equipment does not
itself transmit wireless broadband signals, its efficient collocation pursuant
to section 6409(a) will expedite and minimize the costs of the relocation of
broadcast television licensees that are reassigned to new channels in order to
clear the spectrum that will be offered for broadband services through the
incentive auction, as mandated by the Spectrum Act. The Commission concludes
that inclusion of broadcast service equipment in the scope of transmission
equipment covered by the provision furthers the goals of the legislation and
will contribute in particular to the success of the post-incentive auction
transition of television broadcast stations to their new channels. The
Commission notes that the language of section 6409(a) is broader than that used
in section Start Printed Page 1250332(c)(7), and it is reasonable to construe
it in a manner that does not differentiate among various Commission-regulated
services, particularly in the context of mandating approval of facilities that
do not result in any substantial increase in physical dimensions.
69. The Commission further rejects arguments that Congress
intended these terms to be restricted to equipment used in connection with
personal wireless services and public safety services. The Communications Act
and the Spectrum Act already define those narrower terms, and Congress chose
not to employ them in section 6409(a), determining instead to use the broader
term, “wireless.” The legislative history supports the conclusion that Congress
intended to employ broader language. In the Conference Report, Congress
emphasized that a primary goal of the Spectrum Act was to “advance wireless
broadband service,” which would “promot[e] billions of dollars in private
investment, and creat[e] tens of thousands of jobs.” In light of its clear
intent to advance wireless broadband deployment through enactment of section
6409(a), the Commission finds it implausible that Congress meant to exclude
facilities used for such services.
b. Transmission Equipment
70. The Commission adopts the proposal in the Infrastructure
NPRM to define “transmission equipment” to encompass antennas and other
equipment associated with and necessary to their operation, including power
supply cables and backup power equipment. The Commission finds that this
definition reflects Congress's intent to facilitate the review of collocations
and minor modifications, and it recognizes that Congress used the broad term
“transmission equipment” without qualifications that would logically limit its
scope.
71. The Commission is further persuaded by wireless industry
commenters that power supplies, including backup power, are a critical
component of wireless broadband deployment and that they are necessary to
ensure network resiliency. Indeed, including backup power equipment within the
scope of “transmission equipment” under section 6409(a) is consistent with
Congress's directive to the FirstNet Authority to “ensure the . . . resiliency
of the network.” Tempe's assertion that backup power is not technically
“necessary” because transmission equipment can operate without it is
unpersuasive. Backup power is certainly necessary to operations during those
periods when primary power is intermittent or unavailable. The Commission also
concludes that “transmission equipment” should be interpreted consistent with
the term “antenna” in the NPA and, given that the NPA term encompasses “power
sources” without limitation, the Commission finds that “transmission equipment”
includes backup power sources. Finally, while the Commission recognizes the
concerns raised by local government commenters regarding the potential hazards
of backup power generators, the Commission finds that these concerns are fully
addressed in the standards applicable to collocation applications discussed
below.
72. The Commission defines “transmission equipment” under
section 6409(a) as any equipment that facilitates transmission for any
Commission-licensed or authorized wireless communication service, including,
but not limited to, radio transceivers, antennas and other relevant equipment
associated with and necessary to their operation, including coaxial or
fiber-optic cable, and regular and backup power supply. This definition
includes equipment used in any technological configuration associated with any
Commission-authorized wireless transmission, licensed or unlicensed, terrestrial
or satellite, including commercial mobile, private mobile, broadcast, and
public safety services, as well as fixed wireless services such as microwave
backhaul or fixed broadband.
c. Existing Wireless Tower or
Base Station
73. The Commission adopts the definitions of “tower” and
“base station” proposed in the Infrastructure NPRM with certain
modifications and clarifications, in order to give independent meaning to both
of these statutory terms, and consistent with Congress's intent to promote the
deployment of wireless broadband services. First, the Commission concludes that
the term “tower” is intended to reflect the meaning of that term as it is used
in the Collocation Agreement. The Commission defines “tower” to include any
structure built for the sole or primary purpose of supporting any
Commission-licensed or authorized antennas and their associated facilities.
74. As proposed in the Infrastructure NPRM, the
Commission interprets “base station” to extend the scope of the provision to
certain support structures other than towers. Specifically, the Commission
defines that term as the equipment and non-tower supporting structure at a
fixed location that enable Commission-licensed or authorized wireless
communications between user equipment and a communications network. The
Commission finds that the term includes any equipment associated with wireless
communications service including, but not limited to, radio transceivers,
antennas, coaxial or fiber-optic cable, regular and backup power supply, and
comparable equipment. The Commission notes that this definition reflects the
types of equipment included in its definition of “transmission equipment,” and
that the record generally supports this approach. For example, DC argues that
the Commission should define a base station as “generally consist[ing] of radio
transceivers, antennae, coaxial cable, a regular and backup power supply, and
other associated electronics.” TIA concurs that the term “base station”
encompasses transmission equipment, including antennas, transceivers, and other
equipment associated with and necessary to their operation, including coaxial
cable and regular and backup power equipment.
75. The Commission further finds, consistent with the
Commission's proposal, that the term “existing . . . base station” includes a
structure that, at the time of the application, supports or houses an antenna,
transceiver, or other associated equipment that constitutes part of a “base
station” as defined above, even if the structure was not built for the sole or
primary purpose of providing such support. As the Commission noted in the Infrastructure
NPRM, while “tower” is defined in the Collocation Agreement and the NPA to
include only those structures built for the sole or primary purpose of
supporting wireless communications equipment, the term “base station” is not
used in these agreements. The Commission rejects the proposal to define a “base
station” to include any structure that is merely capable of supporting wireless
transmission equipment, whether or not it is providing such support at the time
of the application. The Commission agrees with municipalities' comments that by
using the term “existing,” section 6409(a) preserves local government authority
to initially determine what types of structures are appropriate for supporting
wireless transmission equipment if the structures were not built (and thus were
not previously approved) for the sole or primary purpose of supporting such
equipment. Some wireless industry commenters also support its interpretation
that, Start Printed Page 1251while a tower that was built for the primary
purpose of housing or supporting communications facilities should be considered
“existing” even if it does not currently host wireless equipment, other
structures should be considered “existing” only if they support or house
wireless equipment at the time the application is filed.
76. The Commission finds that the alternative definitions
proposed by many municipalities are unpersuasive. First, the Commission rejects
arguments that a “base station” includes only the transmission system
equipment, not the structure that supports it. This reading conflicts with the
full text of the provision, which plainly contemplates collocations on a base
station as well as a tower. Section 6409(a) defines an “eligible facilities
request” as a request to modify an existing wireless tower or base station
by collocating on it (among other modifications). This statutory structure
precludes the Commission from limiting the term “base station” to transmission
equipment; collocating on base stations, which the statute envisions, would be
conceptually impossible unless the structure is part of the definition as well.
The Commission further disagrees that defining “base station” to include
supporting structures will deprive “tower” of all independent meaning. The
Commission interprets “base station” not to include wireless deployments on
towers. Further, the Commission interprets “tower” to include all structures
built for the sole or primary purpose of supporting Commission-licensed or
authorized antennas, and their associated facilities, regardless of whether
they currently support base station equipment at the time the application is
filed. Thus, “tower” denotes a structure that is covered under section 6409(a)
by virtue of its construction. In contrast, a “base station” includes a
structure that is not a wireless tower only where it already supports or houses
such equipment.
77. The Commission is also not persuaded by arguments that
“base station” refers only to the equipment compound associated with a tower
and the equipment located upon it. First, no commenters presented evidence that
“base station” is more commonly understood to mean an equipment compound as
opposed to the broader definition of all equipment associated with transmission
and reception and its supporting structures. Furthermore, the Collocation
Agreement's definition of “tower,” which the Commission adopts in the R&O,
treats equipment compounds as part of the associated towers for purposes of
collocations; if towers include their equipment compounds, then defining base
stations as equipment compounds alone would render the term superfluous. The
Commission also notes that none of the State statutes and regulations
implementing section 6409(a) has limited its scope to equipment and structures
associated with towers. In addition, the Commission agrees with commenters who
argue that limiting the definition of “base station” (and thus the scope of
section 6409(a)) to structures and equipment associated with towers would
compromise the core policy goal of bringing greater efficiency to the process
for collocations. Other structures are increasingly important to the deployment
of wireless communications infrastructure; omitting them from the scope of section
6409(a) would mean the statute's efficiencies would not extend to many if not
most wireless collocations, and would counterproductively exclude virtually all
of the small cell collocations that have the least impact on local land use.
78. Some commenters arguing that section 6409(a) covers no
structures other than those associated with towers point to the Conference
Report, which, in describing the equivalent provision in the House bill, states
that the provision “would require approval of requests for modification of cell
towers.” The Commission does not find this ambiguous statement sufficient to
overcome the language of the statute as enacted, which refers to “modification
of an existing wireless tower or base station.” Moreover, this statement
from the report does not expressly state a limitation on the provision, and
thus may reasonably be read as a simplified reference to towers as an important
application of its mandate. The Commission does not view this language as
indicating Congress's intention that the provision encompasses only
modifications of structures that qualify as wireless towers.
79. The Commission thus adopts the proposed definition of
“base station” to include a structure that currently supports or houses an
antenna, transceiver, or other associated equipment that constitutes part of a
base station at the time the application is filed. The Commission also finds
that “base station” encompasses the relevant equipment in any technological
configuration, including DAS and small cells. The Commission disagrees with
municipalities that argue that “base station” should not include DAS or small
cells. As the record supports, there is no statutory language limiting the term
“base station” in this manner. The definition is sufficiently flexible to
encompass, as appropriate to section 6409(a)'s intent and purpose, future as
well as current base station technologies and technological configurations,
using either licensed or unlicensed spectrum.
80. While the Commission does not accept municipal arguments
to limit section 6409(a) to equipment or structures associated with towers, the
Commission rejects industry arguments that section 6409(a) should apply more
broadly to include certain structures that neither were built for the purpose
of housing wireless equipment nor have base station equipment deployed upon
them. The Commission finds no persuasive basis to interpret the statutory
provision so broadly. The Commission agrees with Alexandria et al. that the
scope of section 6409(a) is different from that of the Collocation Agreement,
as the statutory provision clearly applies only to collocations on an existing
“wireless tower or base station” rather than any existing “tower or structure.”
Further, interpreting “tower” to include structures “similar to a tower” would
be contrary to the very Collocation Agreement to which these commenters point,
which defines “tower” in the narrower fashion that the Commission adopts. The
Commission also agrees with municipalities as a policy matter that local governments
should retain authority to make the initial determination (subject to the
constraints of section 332(c)(7)) of which non-tower structures are appropriate
for supporting wireless transmission equipment; its interpretations of “tower”
and “base station” preserve that authority.
81. Finally, the Commission agrees with Fairfax that the
term “existing” requires that wireless towers or base stations have been
reviewed and approved under the applicable local zoning or siting process or
that the deployment of existing transmission equipment on the structure
received another form of affirmative State or local regulatory approval (e.g.,
authorization from a State public utility commission). Thus, if a tower or base
station was constructed or deployed without proper review, was not required to
undergo siting review, or does not support transmission equipment that received
another form of affirmative State or local regulatory approval; the governing
authority is not obligated to grant a collocation application under section
6409(a). The Commission further clarifies that a wireless tower that does not
have a permit because it was not in a zoned area when it was built, but was
lawfully constructed, is an “existing” tower. The Commission finds that its
Start Printed Page 1252interpretation of “existing” is consistent with the
purposes of section 6409(a) to facilitate deployments that are unlikely to
conflict with local land use policies and preserve State and local authority to
review proposals that may have impacts. First, it ensures that a facility that
was deployed unlawfully does not trigger a municipality's obligation to approve
modification requests under section 6409(a). Further, it guarantees that the
structure has already been the subject of State or local review. This
interpretation should also minimize incentives for governing authorities to
increase zoning or other regulatory review in cases where minimally intrusive
deployments are currently permitted without review. For example, under this
interpretation, a homeowner's deployment of a femtocell that is not subject to
any zoning or other regulatory requirements will not constitute a base station
deployment that triggers obligations to allow deployments of other types of
facilities at that location under section 6409(a). By thus preserving State and
local authority to review the first base station deployment that brings any
non-tower structure within the scope of section 6409(a), the Commission ensures
that subsequent collocations of additional transmission equipment on that
structure will be consistent with congressional intent that deployments subject
to section 6409(a) will not pose a threat of harm to local land use values.
82. On balance, the Commission finds that the foregoing
definitions are consistent with congressional intent to foster collocation on
various types of structures, while addressing municipalities' valid interest in
preserving their authority to determine which structures are suitable for
wireless deployment, and under what conditions.
d. Collocation, Replacement,
Removal, Modification
83. The Commission concludes again that it is appropriate to
look to the Collocation Agreement for guidance on the meaning of analogous
terms, particularly in light of section 6409(a)(3)'s specific recognition of the
Commission's obligations under NHPA and NEPA. As proposed in the Infrastructure
NPRM and supported by the record, the Commission concludes that the
definition of “collocation” for purposes of section 6409(a) should be
consistent with its definition in the Collocation Agreement. The Commission
defines “collocation” under section 6409(a) as “the mounting or installation of
transmission equipment on an eligible support structure for the purpose of
transmitting and/or receiving radio frequency signals for communications
purposes.” The term “eligible support structure” means any structure that falls
within the definitions of “tower” or “base station.” Consistent with the
language of section 6409(a)(2)(A)-(C), the Commission also finds that a
“modification” of a “wireless tower or base station” includes collocation,
removal, or replacement of an antenna or any other transmission equipment
associated with the supporting structure.
84. The Commission disagrees with municipal commenters who
argue that collocations are limited to mounting equipment on structures that
already have transmission equipment on them. That limitation is not consistent
with the Collocation Agreement's definition of “collocation,” and would not
serve any reasonable purpose as applied to towers built for the purpose of
supporting transmission equipment. Nevertheless, the Commission observes that
the Commission's approach leads to the same result in the case of “base
stations;” since its definition of that term includes only structures that already
support or house base station equipment, section 6409(a) will not apply to the
first deployment of transmission equipment on such structures. Thus, the
Commission disagrees with CA Local Governments that adopting the Commission's
proposed definition of collocation would require local governments to approve
deployments on anything that could house or support a component of a base
station. Rather, section 6409(a) will apply only where a State or local
government has approved the construction of a structure with the sole or
primary purpose of supporting covered transmission equipment (i.e., a
wireless tower) or, with regard to other support structures, where the State or
local government has previously approved the siting of transmission equipment
that is part of a base station on that structure. In both cases, the State or
local government must decide that the site is suitable for wireless facility
deployment before section 6409(a) will apply.
85. The Commission finds that the term “eligible facilities
request” encompasses hardening through structural enhancement where such
hardening is necessary for a covered collocation, replacement, or removal of
transmission equipment, but does not include replacement of the underlying
structure. The Commission notes that the term “eligible facilities request”
encompasses any “modification of an existing wireless tower or base station
that involves” collocation, removal, or replacement of transmission equipment.
Given that structural enhancement of the support structure is a modification of
the relevant tower or base station, the Commission notes that permitting
structural enhancement as a part of a covered request may be particularly
important to ensure that the relevant infrastructure will be available for use
by FirstNet because of its obligation to “ensure the safety, security, and
resiliency of the [public safety broadband] network. . . .” In addition to
hardening for Public Safety, commercial providers may seek structural
enhancement for many reasons, for example, to increase load capacity or to
repair defects due to corrosion or other damage. The Commission finds that such
modification is part of an eligible facilities request so long as the
modification of the underlying support structure is performed in connection with
and is necessary to support a collocation, removal, or replacement of
transmission equipment. The Commission further clarifies that, to be covered
under section 6409(a), any such structural enhancement must not constitute a
substantial change as defined below.
86. The Commission agrees with Alexandria et al., that
“replacement,” as used in section 6409(a)(2)(C), relates only to the
replacement of “transmission equipment,” and that such equipment does not
include the structure on which the equipment is located. Even under the
condition that it would not substantially change the physical dimensions of the
structure, replacement of an entire structure may affect or implicate local
land use values differently than the addition, removal, or replacement of transmission
equipment, and the Commission finds no textual support for the conclusion that
Congress intended to extend mandatory approval to new structures. Thus, the
Commission declines to interpret “eligible facilities requests” to include
replacement of the underlying structure.
e. Substantial Change and
Other Conditions and Limitations
87. After careful review of the record, the Commission
adopts an objective standard for determining when a proposed modification will
“substantially change the physical dimensions” of an existing tower or base
station. The Commission provides that a modification substantially changes the
physical dimensions of a tower or base station if it meets any of the following
criteria: (1) for towers Start Printed Page 1253outside of public
rights-of-way, it increases the height of the tower by more than 10%, or by the
height of one additional antenna array with separation from the nearest
existing antenna not to exceed twenty feet, whichever is greater; for those
towers in the rights-of-way and for all base stations, it increases the height
of the tower or base station by more than 10% or 10 feet, whichever is greater;
(2) for towers outside of public rights-of-way, it protrudes from the edge of
the tower more than twenty feet, or more than the width of the tower structure
at the level of the appurtenance, whichever is greater; for those towers in the
rights-of-way and for all base stations, it protrudes from the edge of the
structure more than six feet; (3) it involves installation of more than the
standard number of new equipment cabinets for the technology involved, but not
to exceed four cabinets; (4) it entails any excavation or deployment outside
the current site of the tower or base station; (5) it would defeat the existing
concealment elements of the tower or base station; or (6) it does not comply
with conditions associated with the prior approval of construction or
modification of the tower or base station unless the non-compliance is due to
an increase in height, increase in width, addition of cabinets, or new
excavation that does not exceed the corresponding “substantial change”
thresholds identified above. The Commission further provides that the changes
in height resulting from a modification should be measured from the original
support structure in cases where the deployments are or will be separated
horizontally, such as on buildings' rooftops; in other circumstances, changes
in height should be measured from the dimensions of the tower or base station
inclusive of originally approved appurtenances and any modifications that were
approved prior to the passage of the Spectrum Act. Beyond these standards for
what constitutes a substantial change in the physical dimensions of a tower or
base station, the Commission further provides that for applications covered by
section 6409(a), States and localities may continue to enforce and condition
approval on compliance with generally applicable building, structural,
electrical, and safety codes and with other laws codifying objective standards
reasonably related to health and safety.
88. The Commission initially concludes that it should adopt
a test that is defined by specific, objective factors rather than the
contextual and entirely subjective standard advocated by the Intergovernmental
Advisory Committee (IAC) and municipalities. Congress took care to refer, in
excluding certain modifications from mandatory approval requirements, to those
that would substantially change the tower or base station's “physical
dimensions.” The Commission also finds that Congress intended approval of
covered requests to occur in a timely fashion. While the Commission
acknowledges that the IAC approach would provide municipalities with maximum
flexibility to consider potential effects, the Commission is concerned that it
would invite lengthy review processes that conflict with Congress's intent.
Indeed, some municipal commenters anticipate their review of covered requests
under a subjective case-by-case approach could take even longer than their
review of collocations absent section 6409(a). The Commission also anticipates
that disputes arising from a subjective approach would tend to require longer
and more costly litigation to resolve given the more fact-intensive nature of
the IAC's open-ended and context-specific approach. The Commission finds that
an objective definition, by contrast, will provide an appropriate balance
between municipal flexibility and the rapid deployment of covered facilities.
The Commission finds further support for this approach in State statutes that
have implemented section 6409(a), all of which establish objective standards.
89. The Commission further finds that the objective test for
“substantial increase in size” under the Collocation Agreement should inform
its consideration of the factors to consider when assessing a “substantial
change in physical dimensions.” This reflects its general determination that
definitions in the Collocation Agreement and NPA should inform its
interpretation of similar terms in section 6409(a). Further, as noted in the Infrastructure
NPRM, the Commission has previously relied on the Collocation Agreement's
test in comparable circumstances, concluding in the 2009 Declaratory Ruling
that collocation applications are subject to a shorter shot clock under section
332(c)(7) to the extent that they do not constitute a “substantial increase in
size of the underlying structure.” The Commission has also applied a similar
objective test to determine whether a modification of an existing registered
tower requires public notice for purposes of environmental review. The
Commission notes that some municipalities support this approach, and the
Commission further observes that the overwhelming majority of State collocation
statutes adopted since the passage of the Spectrum Act have adopted objective
criteria similar to the Collocation Agreement test for identifying collocations
subject to mandatory approval. The Commission notes as well that there is
nothing in the record indicating that any of these objective State-law tests
have resulted in objectionable collocations that might have been rejected under
a more subjective approach. The Commission is persuaded that it is reasonable
to look to the Collocation Agreement test as a starting point in interpreting
the very similar “substantial change” standard under section 6409(a). The
Commission further decides to modify and supplement the factors to establish an
appropriate balance between promoting rapid wireless facility deployment and
preserving States' and localities' ability to manage and protect local land-use
interests.
90. First, the Commission declines to adopt the Collocation
Agreement's exceptions that allow modifications to exceed the usual height and
width limits when necessary to avoid interference or shelter the antennas from
inclement weather. The Commission agrees with CA Local Governments that these
issues pose technically complex and fact-intensive questions that many local
governments cannot resolve without the aid of technical experts; modifications
that would not fit within the Collocation Agreement's height and width
exceptions are thus not suitable for expedited review under section 6409(a).
91. Second, the Commission concludes that the limit on
height and width increases should depend on the type and location of the
underlying structure. Under the Collocation Agreement's “substantial increase
in size” test, which applies only to towers, a collocation constitutes a
substantial increase in size if it would increase a tower's height by 10% or by
the height of one additional antenna array with separation from the nearest
existing antenna not to exceed twenty feet, whichever is greater. In addition,
the Collocation Agreement authorizes collocations that would protrude by twenty
feet, or by the width of the tower structure at the level of the appurtenance,
whichever is greater. The Commission finds that the Collocation Agreement's
height and width criteria are generally suitable for towers, as was
contemplated by the Agreement.
92. These tests were not designed with non-tower structures
in mind, and the Commission finds that they may often fail to identify
substantial changes to non-tower structures such as Start Printed Page
1254buildings or poles, particularly insofar as they would permit height and
width increases of 20 feet under all circumstances. Instead, considering the
proposals and arguments in the record and the purposes of the provision, the
Commission concludes that a modification to a non-tower structure that would
increase the structure's height by more than 10% or 10 feet, whichever is
greater, constitutes a substantial change under section 6409(a). Permitting
increases of up to 10% has significant support in the record. Further, the
Commission finds that the adoption of a fixed minimum best serves the intention
of Congress to advance broadband service by expediting the deployment of minor
modifications of towers and base stations. Without such a minimum, the
Commission finds that the test will not properly identify insubstantial
increases on small buildings and other short structures, and may undermine the
facilitation of collocation, as vertically collocated antennas often need 10
feet of separation and rooftop collocations may need such height as well.
Further, the fact that the 10-foot minimum is substantially less than the
20-foot minimum limit under the Collocation Agreement and many State statutes
or the 15-foot limit proposed by some commenters provides additional assurance
that the Commission's interpretation of what is considered substantial under
section 6409(a) is reasonable.
93. The Commission also provides, as suggested by Verizon
and PCIA, that a proposed modification of a non-tower structure constitutes a
“substantial change” under section 6409(a) if it would protrude from the edge
of the structure more than six feet. The Commission finds that allowing for
width increases up to six feet will promote the deployment of small facility
deployments by accommodating installation of the mounting brackets/arms often
used to deploy such facilities on non-tower structures, and that it is
consistent with small facility deployments that municipalities have approved on
such structures. The Commission further notes that it is significantly less
than the limits in width established by most State collocation statutes adopted
since the Spectrum Act. The Commission finds that six feet is the appropriate
objective standard for substantial changes in width for non-tower structures,
rather than the alternative proposals in the record.
94. The Commission declines to apply the same substantial
change criteria to utility structures as apply to towers. While Verizon argues
in an ex parte that this approach is justified because of the
“significant similarities” between towers and utility structures, its own
comments note that in contrast to “macrocell towers,” utility structures are
“smaller sites[.]” Because utility structures are typically much smaller than
traditional towers, and because utility structures are often located in
easements adjacent to vehicular and pedestrian rights-of-way where extensions
are more likely to raise aesthetic, safety, and other issues, the Commission
does not find it appropriate to apply to such structures the same substantial
change criteria applicable to towers. The Commission further finds that towers
in the public rights-of-way should be subject to the more restrictive height
and width criteria applicable to non-tower structures rather than the criteria
applicable to other towers. The Commission notes that, to deploy DAS and
small-cell wireless facilities, carriers and infrastructure providers must
often deploy new poles in the rights-of-way. Because these structures are
constructed for the sole or primary purpose of supporting Commission-licensed
or authorized antennas, they fall under the definition of “tower.” They are
often identical in size and appearance to utility poles in the area, which do
not constitute towers. As a consequence, applying the tower height and width
standards to these poles constructed for DAS and small-cell support would mean
that two adjacent and nearly identical poles could be subject to very different
standards. To ensure consistent treatment of structures in the public
rights-of-way, and because of the heightened potential for impact from
extensions in such locations, the Commission provides that structures
qualifying as towers that are deployed in public rights-of-way will be subject
to the same height and width criteria as non-tower structures.
95. The Commission agrees with commenters that its
substantial change criteria for changes in height should be applied as limits
on cumulative changes; otherwise, a series of permissible small changes could
result in an overall change that significantly exceeds the adopted standards.
Specifically, the Commission finds that whether a modification constitutes a
substantial change must be determined by measuring the change in height from
the dimensions of the “tower or base station” as originally approved or as of
the most recent modification that received local zoning or similar regulatory
approval prior to the passage of the Spectrum Act, whichever is greater.
96. The Commission declines to provide that changes in
height should always be measured from the original tower or base station
dimensions, as suggested by some municipalities. As with the original tower or
base station, discretionary approval of subsequent modifications reflects a
regulatory determination of the extent to which wireless facilities are
appropriate, and under what conditions. At the same time, the Commission
declines to adopt industry commenters' proposal always to measure changes from
the last approved change or the effective date of the rules. Measuring from the
last approved change in all cases would provide no cumulative limit at all. In
particular, since the Spectrum Act became law, approval of covered requests has
been mandatory and approved changes after that time may not establish an
appropriate baseline because they may not reflect a siting authority's judgment
that the modified structure is consistent with local land use values. Because
it is impractical to require parties, in measuring cumulative impact, to
determine whether each pre-existing modification was or was not required by the
Spectrum Act, the Commission provides that modifications of an existing tower
or base station that occur after the passage of the Spectrum Act will not
change the baseline for purposes of measuring substantial change. Consistent
with the determination that a tower or base station is not covered by section
6409(a) unless it received such approval, this approach will in all cases limit
modifications that are subject to mandatory approval to the same modest
increments over what the relevant governing authority has previously deemed
compatible with local land use values. The Commission further finds that, for
structures where collocations are separated horizontally rather than vertically
(such as building rooftops), substantial change is more appropriately measured
from the height of the original structure, rather than the height of a
previously approved antenna. Thus, for example, the deployment of a 10-foot
antenna on a rooftop would not mean that a nearby deployment of a 20-foot
antenna would be considered insubstantial.
97. Again drawing on the Collocation Agreement's test, the
Commission further provides that a modification is a substantial change if it
entails any excavation or deployment outside the current site of the tower or
base station. As in the Collocation Agreement, the Commission defines the
“site” for Start Printed Page 1255towers outside of the public rights-of-way as
the current boundaries of the leased or owned property surrounding the tower
and any access or utility easements currently related to the site. For other
towers and all base stations, the Commission further restricts the site to that
area in proximity to the structure and to other transmission equipment already
deployed on the ground.
98. The Commission also rejects the PCIA and Sprint proposal
to expand the Collocation Agreement's fourth prong, as modified by the 2004
NPA, to allow applicants to excavate outside the leased or licensed premises.
Under the NPA, certain undertakings are excluded from the section 106 review,
including “construction of a replacement for an existing communications tower
and any associated excavation that . . . does not expand the boundaries of the
leased or owned property surrounding the tower by more than 30 feet in any
direction or involve excavation outside these expanded boundaries or outside
any existing access or utility easement related to the site.” The NPA exclusion
from section 106 review applies to replacement of “an existing communications
tower.” In contrast, “replacement,” as used in section 6409(a)(2)(C), relates
only to the replacement of “transmission equipment,” not the replacement of the
supporting structures. Thus, the activities covered under section 6409(a) are
more nearly analogous to those covered under the Collocation Agreement than
under the replacement towers exclusion in the NPA. The Commission agrees with
localities comments that any eligible facilities requests that involve
excavation outside the premises should be considered a substantial change, as
under the fourth prong of the Collocation Agreement's test.
99. Based on its review of the record and various state
statutes, the Commission further finds that a modification constitutes a
substantial change in physical dimensions under section 6409(a) if the change
(1) would defeat the existing concealment elements of the tower or base station,
or (2) does not comply with pre-existing conditions associated with the prior
approval of construction or modification of the tower or base station. The
first of these criteria is widely supported by both wireless industry and
municipal commenters, who generally agree that a modification that undermines
the concealment elements of a stealth wireless facility, such as painting to
match the supporting façade or artificial tree branches, should be considered
substantial under section 6409(a). The Commission agrees with commenters that
in the context of a modification request related to concealed or
“stealth”-designed facilities—i.e., facilities designed to look like
some feature other than a wireless tower or base station—any change that
defeats the concealment elements of such facilities would be considered a
“substantial change” under section 6409(a). Commenters differ on whether any
other conditions previously placed on a wireless tower or base station should
be considered in determining substantial change under section 6409(a). After
consideration, the Commission agrees with municipal commenters that a change is
substantial if it violates any condition of approval of construction or
modification imposed on the applicable wireless tower or base station, unless
the non-compliance is due to an increase in height, increase in width, addition
of cabinets, or new excavation that does not exceed the corresponding
“substantial change” thresholds. In other words, modifications qualify for
section 6409(a) only if they comply, for example, with conditions regarding
fencing, access to the site, drainage, height or width increases that exceed
the thresholds the Commission adopted and other conditions of approval placed
on the underlying structure. This approach, the Commission finds, properly
preserves municipal authority to determine which structures are appropriate for
wireless use and under what conditions, and reflects one of the three key
priorities identified by the IAC in assessing substantial change.
100. The Commission agrees with PCIA that legal,
non-conforming structures should be available for modification under section
6409(a), as long as the modification itself does not “substantially change” the
physical dimensions of the supporting structure as defined here. The Commission
rejects municipal arguments that any modification of an existing wireless tower
or base station that has “legal, non-conforming” status should be considered a
“substantial change” to its “physical dimensions.” As PCIA argues, the approach
urged by municipalities could thwart the purpose of section 6409(a) altogether,
as simple changes to local zoning codes could immediately turn existing
structures into legal, non-conforming uses unavailable for collocation under
the statute. Considering Congress's intent to promote wireless facilities
deployment by encouraging collocation on existing structures, and considering
the requirement in section 6409(a) that States and municipalities approve
covered requests “[n]otwithstanding . . . any other provision of law,” the
Commission finds the municipal commenters' proposal to be unsupportably
restrictive.
101. The record also reflects general consensus that
wireless facilities modification under section 6409(a) should remain subject to
building codes and other non-discretionary structural and safety codes. As
municipal commenters indicate, many local jurisdictions have promulgated code
provisions that encourage and promote collocations and replacements through a
streamlined approval process, while ensuring that any new facilities comply
with building and safety codes and applicable Federal and State regulations.
Consistent with that approach on the local level, the Commission finds that
Congress did not intend to exempt covered modifications from compliance with
generally applicable laws related to public health and safety. The Commission
concludes that States and localities may require a covered request to comply
with generally applicable building, structural, electrical, and safety codes or
with other laws codifying objective standards reasonably related to health and
safety, and that they may condition approval on such compliance. In particular,
the Commission clarifies that section 6409(a) does not preclude States and
localities from continuing to require compliance with generally applicable
health and safety requirements on the placement and operation of backup power
sources, including noise control ordinances if any. The Commission further
clarifies that eligible facility requests covered by section 6409(a) must still
comply with any relevant Federal requirement, including any applicable
Commission, FAA, NEPA, or section 106 requirements. The Commission finds that
this interpretation is supported in the record, addresses a concern raised by
several municipal commenters and the IAC, and is consistent with the express
direction in section 6409(a) that the provision is not intended to relieve the
Commission from the requirements of NEPA and NHPA.
102. In sum, the Commission finds that the definitions,
criteria, and related clarifications it adopts for purposes of section 6409(a)
will provide clarity and certainty, reducing delays and litigation, and thereby
facilitate the rapid deployment of wireless infrastructure and promote advanced
wireless broadband services. At the same time, the Commission concludes that
its approach also addresses concerns Start Printed Page 1256voiced by municipal
commenters and reflects the priorities identified by the IAC. The Commission
concludes that this approach reflects a reasonable interpretation of the
language and purposes of section 6409(a) and will serve the public interest.
2. Application Review
Process, Including Timeframe for Review
103. As an initial matter, the Commission finds that State
or local governments may require parties asserting that proposed facilities
modifications are covered under section 6409(a) to file applications, and that
these governments may review the applications to determine whether they
constitute covered requests. As the Bureau observed in the Section 6409(a)
PN, the statutory provision requiring a State or local government to
approve an “eligible facilities request” implies that the relevant government
entity may require an applicant to file a request for approval. Further,
nothing in the provision indicates that States or local governments must
approve requests merely because applicants claim they are covered. Rather,
under section 6409(a), only requests that do in fact meet the provision's
requirements are entitled to mandatory approval. Therefore, States and local
governments must have an opportunity to review applications to determine
whether they are covered by section 6409(a), and if not, whether they should in
any case be granted.
104. The Commission further concludes that section 6409(a)
warrants the imposition of certain requirements with regard to application
processing, including a specific timeframe for State or local government review
and a limitation on the documentation States and localities may require. While
section 6409(a), unlike section 332(c)(7), does not expressly provide for a
time limit or other procedural restrictions, the Commission concludes that
certain limitations are implicit in the statutory requirement that a State or
local government “may not deny, and shall approve” covered requests for
wireless facility siting. In particular, the Commission concludes that the
provision requires not merely approval of covered applications, but approval
within a reasonable period of time commensurate with the limited nature of the
review, whether or not a particular application is for “personal wireless
service” facilities covered by section 332(c)(7). With no such limitation, a
State or local government could evade its statutory obligation to approve
covered applications by simply failing to act on them, or it could impose
lengthy and onerous processes not justified by the limited scope of review
contemplated by the provision. Such unreasonable delays not only would be
inconsistent with the mandate to approve but also would undermine the important
benefits that the provision is intended to provide to the economy, competitive
wireless broadband deployment, and public safety. The Commission requires that
States and localities grant covered requests within a specific time limit and
pursuant to other procedures outlined below.
105. The Commission finds substantial support in the record
for adopting such requirements. It is clear from the record that there is
significant dispute as to whether any time limit applies at all under section
6409(a) and, if so, what that limit is. The Commission also notes that there is
already some evidence in the record, albeit anecdotal, of significant delays in
the processing of covered requests under this new provision, which may be
partly a consequence of the current uncertainty regarding the applicability of
any time limit. Because the statutory language does not provide guidance on
these requirements, the Commission is concerned that, without clarification,
future disputes over the process could significantly delay the benefits
associated with the statute's implementation. Moreover, the Commission finds it
important that all stakeholders have a clear understanding of when an applicant
may seek relief from a State or municipal failure to act under section 6409(a).
The Commission finds further support for establishing these process
requirements in analogous State statutes, nearly all of which include a
timeframe for review.
106. Contrary to the suggestion of municipalities, the
Commission disagrees that the Tenth Amendment prevents the Commission from
exercising its authority under the Spectrum Act to implement and enforce the
limitations imposed thereunder on State and local land use authority. These
limitations do not require State or local authorities to review wireless
facilities siting applications, but rather preempt them from choosing to
exercise such authority under their laws other than in accordance with Federal
law—i.e., to deny any covered requests. The Commission therefore adopts
the following procedural requirements for processing applications under section
6409(a).
107. First, the Commission provides that in connection with
requests asserted to be covered by section 6409(a), State and local governments
may only require applicants to provide documentation that is reasonably related
to determining whether the request meets the requirements of the provision. The
Commission finds that this restriction is appropriate in light of the limited
scope of review applicable to such requests and that it will facilitate timely
approval of covered requests. At the same time, under this standard, State or
local governments have considerable flexibility in determining precisely what
information or documentation to require. The Commission agrees with PCIA that
States and localities may not require documentation proving the need for the
proposed modification or presenting the business case for it. The Commission
anticipates that over time, experience and the development of best practices
will lead to broad standardization in the kinds of information required. As
discussed above, even as to applications covered by section 6409(a), State and
local governments may continue to enforce and condition approval on compliance
with non-discretionary codes reasonably related to health and safety, including
building and structural codes. The Commission finds that municipalities should
have flexibility to decide when to require applicants to provide documentation
of such compliance, as a single documentation submission may be more efficient
than a series of submissions, and municipalities may also choose to integrate
such compliance review into the zoning process. Accordingly, the Commission
clarifies that this documentation restriction does not prohibit States and
local governments from requiring documentation needed to demonstrate compliance
with any such applicable codes.
108. In addition to defining acceptable documentation
requirements, the Commission establishes a specific and absolute timeframe for
State and local processing of eligible facilities requests under section
6409(a). The Commission finds that a 60-day period for review, including review
to determine whether an application is complete, is appropriate. In addressing
this issue, it is appropriate to consider not only the record support for a
time limit on review but also State statutes that facilitate collocation
applications. Many of these statutes impose review time limits, thus providing
valuable insight into States' views on the appropriate amount of time.
Missouri, New Hampshire, and Wisconsin, for example, have determined that 45
days is the maximum amount of time available to a municipality to review
applications, while Georgia, North Start Printed Page 1257Carolina, and
Pennsylvania have adopted a 90-day review period, including review both for
completeness and for approval. Michigan's statute provides that after the
application is filed, the locality has 14 days to deem the application complete
and an additional 60 days to review. The Commission finds it appropriate to adopt
a 60-day time period as the time limit for review of an application under
section 6409(a).
109. The Commission finds that a period shorter than the
90-day period applicable to review of collocations under section 332(c)(7) of
the Communications Act is warranted to reflect the more restricted scope of
review applicable to applications under section 6409(a). The Commission further
finds that a 60-day period of review, rather than the 45-day period proposed by
many industry commenters, is appropriate to provide municipalities with
sufficient time to review applications for compliance with section 6409(a),
because the timeframe sets an absolute limit that—in the event of a failure to
act—results in a deemed grant. Thus, whereas a municipality may rebut a claim
of failure to act under section 332(c)(7) if it can demonstrate that a longer
review period was reasonable, that is not the case under section 6409(a).
Rather, if an application covered by section 6409(a) has not been approved by a
State or local government within 60 days from the date of filing, accounting
for any tolling, as described below, the reviewing authority will have violated
section 6409(a)'s mandate to approve and not deny the request, and the request
will be deemed granted.
110. The Commission further provides that the foregoing
section 6409(a) timeframe may be tolled by mutual agreement or in cases where
the reviewing State or municipality informs the applicant in a timely manner
that the application is incomplete. As with tolling for completeness under
section 332(c)(7) (as discussed in the R&O), an initial determination of
incompleteness tolls the running of the period only if the State or local
government provides notice to the applicant in writing within 30 days of the
application's submission. The Commission also requires that any determination
of incompleteness must clearly and specifically delineate the missing
information in writing, similar to determinations of incompleteness under
section 332(c)(7). Further, consistent with the documentation restriction
established above, the State or municipality may only specify as missing
information and supporting documents that are reasonably related to determining
whether the request meets the requirements of section 6409(a).
111. The timeframe for review will begin running again when
the applicant makes a supplemental submission, but may be tolled again if the
State or local government provides written notice to the applicant within 10
days that the application remains incomplete and specifically delineates which
of the deficiencies specified in the original notice of incompleteness have not
been addressed. The timeframe for review will be tolled in this circumstance
until the applicant supplies the relevant authority with the information delineated.
Consistent with determinations of incompleteness under section 332(c)(7) as
described below, any second or subsequent determination that an application is
incomplete may be based only on the applicant's failure to provide the
documentation or information the State or municipality required in its initial
request for additional information. Further, if the 10-day period passes
without any further notices of incompleteness from the State or locality, the
period for review of the application may not thereafter be tolled for
incompleteness.
112. The Commission further finds that the timeframe for
review under section 6409(a) continues to run regardless of any local
moratorium. This is once again consistent with its approach under section
332(c)(7), and is further warranted in light of section 6409(a)'s direction
that covered requests shall be approved “[n]otwithstanding . . . any other
provision of law.”
113. Some additional clarification of time periods and
deadlines will assist in cases where both section 6409(a) and section 332(c)(7)
apply. In particular, the Commission notes that States and municipalities
reviewing an application under section 6409(a) will be limited to a restricted
application record tailored to the requirements of that provision. As a result,
the application may be complete for purposes of section 6409(a) review but may
not include all of the information the State or municipality requires to assess
applications not subject to section 6409(a). In such cases, if the reviewing
State or municipality finds that section 6409(a) does not apply (because, for
example, it proposes a substantial change), the Commission provides that the
presumptively reasonable timeframe under section 332(c)(7) will start to run
from the issuance of the State's or municipality's decision that section
6409(a) does not apply. To the extent the State or municipality needs
additional information at that point to assess the application under section
332(c)(7), it may seek additional information subject to the same limitations
applicable to other section 332(c)(7) reviews. The Commission recognizes that,
in such cases, there might be greater delay in the process than if the State or
municipality had been permitted to request the broader documentation in the
first place. The Commission finds that applicants are in a position to judge
whether to seek approval under section 6409(a), and the Commission expects they
will have strong incentives to do so in a reasonable manner to avoid
unnecessary delays. Finally, as the Commission proposed in the Infrastructure
NPRM, the Commission finds that where both section 6409(a) and section
332(c)(7) apply, section 6409(a) governs, consistent with the express language
of section 6409(a) providing for approval “[n]otwithstanding” section 332(c)(7)
and with canons of statutory construction that a more recent statute takes
precedence over an earlier one and that “normally the specific governs the
general.”
114. Beyond the guidance provided in the R&O, the
Commission declines to adopt the other proposals put forth by commenters
regarding procedures for the review of applications under section 6409(a) or
the collection of fees. The Commission concludes that its clarification and
implementation of this statutory provision strikes the appropriate balance of
ensuring the timely processing of these applications and preserving flexibility
for State and local governments to exercise their rights and responsibilities.
Given the limited record of problems implementing the provision, further action
to specify procedures would be premature.
3. Remedies
115. After a careful assessment of the statutory provision
and a review of the record, the Commission establishes a deemed granted remedy
for cases in which the applicable State or municipal reviewing authority fails
to issue a decision within 60 days (subject to any tolling, as described above)
on an application submitted pursuant to section 6409(a). The Commission further
concludes that a deemed grant does not become effective until the applicant
notifies the reviewing jurisdiction in writing, after the time period for
review by the State or municipal reviewing authority as prescribed in the
Commission's rules has expired, that the application has been deemed granted.
116. The Commission's reading of section 6409(a) supports
this approach. Start Printed Page 1258The provision states without equivocation
that the reviewing authority “may not deny, and shall approve” any qualifying
application. This directive leaves no room for a lengthy and discretionary
approach to reviewing an application that meets the statutory criteria; once
the application meets these criteria, the law forbids the State or local
government from denying it. Moreover, while State and local governments retain
full authority to approve or deny an application depending on whether it meets
the provision's requirements, the statute does not permit them to delay this
obligatory and non-discretionary step indefinitely. In the R&O, the
Commission defines objectively the statutory criteria for determining whether
an application is entitled to a grant under this provision. Given the objective
nature of this assessment, then, the Commission concludes that withholding a
decision on an application indefinitely, even if an applicant can seek relief
in court or in another tribunal, would be tantamount to denying it, in
contravention of the statute's pronouncement that reviewing authorities “may
not deny” qualifying applications. The Commission finds that the text of
section 6409(a) supports adoption of a deemed granted remedy, which will
directly serve the broader goal of promoting the rapid deployment of wireless
infrastructure. The Commission notes as well that its approach is consistent
with other Federal agencies' processes to address inaction by State and local
authorities.
117. Many municipalities oppose the adoption of a deemed
granted remedy primarily on the ground that it arguably represents an intrusion
into local decision-making authority. The Commission fully acknowledges and
values the important role that local reviewing authorities play in the siting
process, and, as the Commission stated in the Infrastructure NPRM, “[the
Commission's] goal is not to `operate as a national zoning board.' ” At the
same time, its authority and responsibility to implement and enforce section
6409(a) as if it were a provision of the Communications Act obligate the
Commission to ensure effective enforcement of the congressional mandate
reflected therein. To do so, given its “broad grant of rulemaking authority,”
the importance of ensuring rapid deployment of commercial and public safety
wireless broadband services as reflected in the adoption of the Spectrum Act,
and in light of the record of disputes in this proceeding, as well as the prior
experience of the Commission with delays in municipal action on wireless
facility siting applications that led to the 2009 Declaratory Ruling,
the Commission concludes it is necessary to balance these federalism concerns
against the need for ensuring prompt action on section 6409(a) applications.
The Commission adopts this approach in tandem with several measures that
safeguard the primacy of State and local government participation in local land
use policy, to the extent consistent with the requirements of section 6409(a).
First, the Commission has adopted a 60-day time period for States and
localities to review applications submitted under section 6409(a). While many
industry commenters proposed a 45-day review period based on the
non-discretionary analysis that the provision requires, the Commission has
provided more time in part to ensure that reviewing authorities have sufficient
time to assess the applications.
118. Second, the Commission is establishing a clear process
for tolling the 60-day period when an applicant fails to submit a complete
application, thus ensuring that the absence of necessary information does not
prevent a State or local authority from completing its review before the time
period expires.
119. Third, even in the event of a deemed grant, the section
106 historic preservation review process—including coordination with State and
Tribal historic preservation officers—will remain in place with respect to any
proposed deployments in historic districts or on historic buildings (or
districts and buildings eligible for such status).
120. Fourth, a State or local authority may challenge an
applicant's written assertion of a deemed grant in any court of competent
jurisdiction when it believes the underlying application did not meet the
criteria in section 6409(a) for mandatory approval, would not comply with
applicable building codes or other non-discretionary structural and safety
codes, or for other reasons is not appropriately “deemed granted.”
121. Finally, and perhaps most importantly, the deemed
granted approach does not deprive States and localities of the opportunity to
determine whether an application is covered; rather, it provides a remedy for a
failure to act within the fixed but substantial time period within which they
must determine, on a non-discretionary and objective basis, whether an
application fits within the parameters of section 6409(a).
122. The Commission emphasizes as well that it expects
deemed grants to be the exception rather than the rule. To the extent there
have been any problems or delays due to ambiguity in the provision, the
Commission anticipates that the framework it has established, including the
specification of substantive and procedural rights and applicable remedies,
will address many of these problems. The Commission anticipates as well that
the prospect of a deemed grant will create significant incentives for States
and municipalities to act in a timely fashion.
123. With respect to the appropriate forum for redress or
for resolving disputes, including disputes over the application of the deemed
grant rule, the Commission finds that the most appropriate course for a party
aggrieved by operation of section 6409(a) is to seek relief from a court of
competent jurisdiction. Although the Commission finds that it has authority to
resolve such disputes under its authority to implement and enforce that
provision, the Commission also finds that requiring that these disputes be
resolved in court, and not by the Commission, will better accommodate the role
of the States and local authorities and serve the public interest for the
reasons the municipal commenters identify and as discussed in the R&O.
124. A number of factors persuade the Commission to require
parties to adjudicate claims under section 6409(a) in court rather than before
the Commission. First, Commission adjudication would impose significant burdens
on localities, many of which are small entities with no representation in
Washington, DC and no experience before the Commission. The possible need for
testimony to resolve disputed factual issues, which may occur in these cases,
would magnify the burden. The Commission is also concerned that it may simply
lack the resources to adjudicate these matters in a timely fashion if the
Commission enables parties to seek its review of local zoning disputes arising
in as many as 38,000 jurisdictions, thus thwarting Congress's goal of speeding
up the process. The Commission also agrees with municipalities that it does not
have any particular expertise in resolving local zoning disputes, whereas
courts have been adjudicating claims of failure to act on wireless facility
siting applications since the adoption of section 332(c)(7).
125. The Commission requires parties to bring claims related
to section 6409(a) in a court of competent jurisdiction. Such claims would
appear likely to fall into one of three categories. First, if the State or
local authority has denied the application, an applicant might seek to
challenge that denial. Second, if an Start Printed Page 1259applicant invokes
its deemed grant right after the requisite period of State or local authority
inaction, that reviewing authority might seek to challenge the deemed grant.
Third, an applicant whose application has been deemed granted might seek some
form of judicial imprimatur for the grant by filing a request for declaratory
judgment or other relief that a court may find appropriate. In light of the
policy underlying section 6409(a) to ensure that covered requests are granted
promptly, and in the self-interest of the affected parties, the Commission
would expect that these parties would seek judicial review of any such claims
relating to section 6409(a) expeditiously. The enforcement of such claims is a
matter appropriately left to such courts of competent jurisdiction. Given the
foregoing Federal interest reflected in section 6409(a), it would appear that
the basis for equitable judicial remedies would diminish significantly absent
prompt action by the aggrieved party. In its judgment, based on the record
established in this proceeding, the Commission finds no reason why (absent a
tolling agreement by parties seeking to resolve their differences) such claims
cannot and should not be brought within 30 days of the date of the relevant
event (i.e., the date of the denial of the application or the date of
the notification by the applicant to the State or local authority of a deemed
grant in accordance with the Commission's rules).
4. Non-application to States
or Municipalities in Their Proprietary Capacities
126. As proposed in the Infrastructure NPRM and
supported by the record, the Commission concludes that section 6409(a) applies
only to State and local governments acting in their role as land use regulators
and does not apply to such entities acting in their proprietary capacities. As
discussed in the record, courts have consistently recognized that in
“determining whether government contracts are subject to preemption, the case
law distinguishes between actions a State entity takes in a proprietary
capacity—actions similar to those a private entity might take—and its attempts
to regulate.” As the Supreme Court has explained, “[i]n the absence of any
express or implied implication by Congress that a State may not manage its own
property when it pursues its purely proprietary interests, and when analogous
private conduct would be permitted, this Court will not infer such a
restriction.” Like private property owners, local governments enter into lease
and license agreements to allow parties to place antennas and other wireless
service facilities on local-government property, and the Commission finds no
basis for applying section 6409(a) in those circumstances. The Commission finds
that this conclusion is consistent with judicial decisions holding that
sections 253 and 332(c)(7) of the Communications Act do not preempt “non
regulatory decisions of a state or locality acting in its proprietary
capacity.”
127. The Commission declines at this time to further
elaborate as to how this principle should apply to any particular circumstance
in connection with section 6409(a). The Commission agrees with Alexandria et
al. that the record does not demonstrate a present need to define what actions
are and are not proprietary, and the Commission concludes in any case that such
a task is best undertaken, to the extent necessary, in the context of a
specific municipal action and associated record.
5. Effective Date
128. Based on its review of the record, the Commission is
persuaded that a transition period is necessary and appropriate. The Commission
agrees with certain municipal commenters that affected State and local
governments may need time to make modifications to their laws and procedures to
conform to and comply with the rules the Commission adopts in the R&O
implementing and enforcing section 6409(a), and that a transition period is
warranted to give them time to do so. The Commission concludes as proposed by
the IAC and other parties that the rules adopted to implement section 6409(a)
will take effect 90 days after Federal Register publication.
IV. Section 332(c)(7) and the
2009 Declaratory Ruling
A. Background
129. In 2009, the Commission adopted a Declaratory Ruling in
response to a petition requesting clarification on two points: what constitutes
a “reasonable period of time” after which an aggrieved applicant may file suit
asserting a failure to act under section 332(c)(7), and whether a zoning
authority may restrict competitive entry by multiple providers in a given area
under section 332(c)(7)(B)(i)(II). In the 2009 Declaratory Ruling, the
Commission interpreted a “reasonable period of time” under section
332(c)(7)(B)(ii) to be 90 days for processing collocation applications, and 150
days for processing applications other than collocations. The Commission
further determined that failure to meet the applicable timeframe presumptively
constitutes a failure to act under section 332(c)(7)(B)(v), enabling an
applicant to pursue judicial relief within the next 30 days.
130. In the Infrastructure NPRM, while stating that
it would not generally revisit the 2009 Declaratory Ruling, the
Commission sought comment on six discrete issues arising under section
332(c)(7) and the 2009 Declaratory Ruling: (1) Whether and how to
clarify when a siting application is considered complete for the purpose of
triggering the 2009 Declaratory Ruling' s shot clock; (2) whether to
clarify that the presumptively reasonable period for State or local government
action on an application runs regardless of any local moratorium; (3) whether
the 2009 Declaratory Ruling applies to DAS and small-cell facilities;
(4) whether to clarify the types of actions that constitute “collocations” for
purposes of triggering the shorter shot clock; (5) whether local ordinances
establishing preferences for deployment on municipal property violate section
332(c)(7)(B)(i)(I); and (6) whether to adopt an additional remedy for failures
to act in violation of section 332(c)(7).
B. Discussion
1. Completeness of
Applications
131. The Commission finds that it should clarify under what
conditions the presumptively reasonable timeframes may be tolled on grounds
that an application is incomplete. As an initial matter, the Commission notes
that under the 2009 Declaratory Ruling, the presumptively reasonable
timeframe begins to run when an application is first submitted, not when it is
deemed complete. Accordingly, to the extent municipalities have interpreted the
clock to begin running only after a determination of completeness, that
interpretation is incorrect.
132. Further, consistent with proposals submitted by Crown
Castle and PCIA, the Commission clarifies that, following a submission in
response to a determination of incompleteness, any subsequent determination
that an application remains incomplete must be based solely on the applicant's
failure to supply information that was requested within the first 30 days. The
shot clock will begin running again after the applicant makes a supplemental
submission. The State or local government will have 10 days to notify the
applicant that the supplemental submission did not provide the information
identified in the original notice delineating missing information. In other
words, a subsequent Start Printed Page 1260determination of incompleteness can
result in further tolling of the shot clock only if the local authority
provides it to the applicant in writing within 10 days of the supplemental
submission, specifically identifying the information the applicant failed to
supply in response to the initial request. Once the 10-day period passes, the
period for review of the application may not thereafter be tolled for
incompleteness.
133. The Commission further provides that, in order to toll
the timeframe for review on grounds of incompleteness, a municipality's request
for additional information must specify the code provision, ordinance, application
instruction, or otherwise publically-stated procedures that require the
information to be submitted. This requirement will avoid delays due to
uncertainty or disputes over what documents or information are required for a
complete application. Further, while some municipal commenters argue that
“[n]ot all jurisdictions codify detailed application submittal requirements
because doing so would require a code amendment for even the slightest change,”
the Commission's approach does not restrict them to reliance on codified
documentation requirements.
134. Beyond these procedural requirements, the Commission
declines to enumerate what constitutes a “complete” application. The Commission
finds that State and local governments are best suited to decide what information
they need to process an application. Differences between jurisdictions make it
impractical for the Commission to specify what information should be included
in an application.
135. The Commission finds that these clarifications will
provide greater certainty regarding the period during which the clock is tolled
for incompleteness. This in turn provides clarity regarding the time at which
the clock expires, at which point an applicant may bring suit based on a
“failure to act.” Further, the Commission expects that these clarifications
will result in shared expectations among parties, thus limiting potential
miscommunication and reducing the potential or need for serial requests for
more information. These clarifications will facilitate faster application
processing, reduce unreasonable delay, and accelerate wireless infrastructure
deployment.
2. Moratoria
136. The Commission clarifies that the shot clock runs
regardless of any moratorium. This is consistent with a plain reading of the 2009
Declaratory Ruling, which specifies the conditions for tolling and makes no
provision for moratoria. Moreover, its conclusion that the clock runs
regardless of any moratorium means that applicants can challenge moratoria in
court when the shot clock expires without State or local government action,
which is consistent with the case-by-case approach that courts have generally
applied to moratoria under section 332(c)(7). This approach, which establishes
clearly that an applicant can seek redress in court even when a jurisdiction
has imposed a moratorium, will prevent indefinite and unreasonable delay of an
applicant's ability to bring suit.
137. Some commenters contend that this approach would, in
effect, improperly require municipal staff to simultaneously review and update
their regulations to adapt to new technologies while also reviewing
applications. The Commission recognizes that new technologies may in some cases
warrant changes in procedures and codes, but finds no reason to conclude that
the need for any such change should freeze all applications. The Commission is
confident that industry and local governments can work together to resolve
applications that may require more staff resources due to complexity, pending
changes to the relevant siting regulations, or other special circumstances.
Moreover, in those instances in which a moratorium may reasonably prevent a
State or municipality from processing an application within the applicable
timeframe, the State or municipality will, if the applicant seeks review, have
an opportunity to justify the delay in court. The Commission clarifies that the
shot clock continues to run regardless of any moratorium.
138. The Commission declines at this time to determine that
a moratorium that lasts longer than six months constitutes a per se
violation of the obligation to take action in a reasonable period of time.
Although some have argued that a six-month limit would “discourage localities
from circumventing the intent of the Commission's shot clock rules,” others
disagree, and the record provides insufficient evidence to support a per se
determination at this juncture. Given its clarification that the presumptively
reasonable timeframes apply regardless of moratoria, any moratorium that
results in a delay of more than 90 days for a collocation application or 150
days for any other application will be presumptively unreasonable.
3. Application to DAS and
Small Cells
139. The Commission clarifies that to the extent DAS or
small-cell facilities, including third-party facilities such as neutral host
DAS deployments, are or will be used for the provision of personal wireless
services, their siting applications are subject to the same presumptively
reasonable timeframes that apply to applications related to other personal
wireless service facilities. The Commission notes that courts have addressed
the issue and, consistent with its conclusion, have found that the timeframes
apply to DAS and small-cell deployments.
140. Some commenters argue that the shot clocks should not
apply because some providers describe DAS and small-cell deployments as
wireline, not wireless, facilities. Determining whether facilities are
“personal wireless service facilities” subject to section 332(c)(7) does not
rest on a provider's characterization in another context; rather, the analysis
turns simply on whether they are facilities used to provide personal wireless
services. Based on its review of the record, the Commission finds no evidence
sufficient to compel the conclusion that the characteristics of DAS and small-cell
deployments somehow exclude them from section 332(c)(7) and the 2009
Declaratory Ruling. For similar reasons, the Commission rejects Coconut
Creek's argument that the shot clocks should apply only to neutral host
deployments.
141. Some commenters suggest revising the Commission's
proposal on the grounds that the unique qualities of DAS and small-cell systems
require longer timeframes for municipal review. The Commission declines to
adjust the timelines as these commenters suggest. The Commission notes that the
timeframes are presumptive, and the Commission expects applicants and State or
local governments to agree to extensions in appropriate cases. Moreover, courts
will be positioned to assess the facts of individual cases—including whether
the applicable time period “t[ook] into account the nature and scope of [the]
request”—in instances where the shot clock expires and the applicant seeks
review. The Commission also notes that DAS and small-cell deployments that
involve installation of new poles will trigger the 150-day time period for new
construction that many municipal commenters view as reasonable for DAS and
small-cell applications. The Commission finds it unnecessary to modify the
presumptive timeframes as they apply to DAS applications.Start Printed Page
1261
4. Definition of Collocation
142. After reviewing the record, the Commission declines to
make any changes or clarifications to the existing standard established in the 2009
Declaratory Ruling for applying the 90-day shot clock for collocations. In
particular, the Commission declines to apply the “substantial change” test that
the Commission establishes in the R&O for purposes of section 6409(a). The
Commission observes that sections 6409(a) and 332(c)(7) serve different
purposes, and the Commission finds that the tests for “substantial change” and
“substantial increase in size” are appropriately distinct. More specifically,
the test for a “substantial increase in size” under section 332(c)(7) affects
only the length of time for State or local review, while the test the
Commission adopts under section 6409(a) identifies when a State or municipality
must grant an application. This is a meaningful distinction that merits a more
demanding standard under section 6409(a).
143. Considering that these provisions cover different
(though overlapping) pools of applications, it is appropriate to apply them
differently. Further, the Commission finds no compelling evidence in the record
that using the same test for both provisions would provide significant
administrative efficiencies or limit confusion, as some have argued. The
Commission preserves distinct standards under the two provisions.
5. Preferences for
Deployments on Municipal Property
144. The Commission finds insufficient evidence in the record
to make a determination that municipal property preferences are per se
unreasonably discriminatory or otherwise unlawful under section 332(c)(7). To
the contrary, most industry and municipal commenters support the conclusion
that many such preferences are valid. Consistent with the majority of comments
on this issue, the Commission declines at this time to find municipal property
preferences per se unlawful under section 332(c)(7).
6. Remedies
145. After reviewing the record, the Commission declines to
adopt an additional remedy for State or local government failures to act within
the presumptively reasonable time limits. The Commission also notes that a
party pursuing a “failure to act” claim may ask the reviewing court for an
injunction granting the application. Moreover, in the case of a failure to act
within the reasonable timeframes set forth in the Commission's rules, and
absent some compelling need for additional time to review the application, the
Commission believes that it would also be appropriate for the courts to treat
such circumstances as significant factors weighing in favor of such relief.
V. Procedural Matters
A. Final Regulatory
Flexibility Analysis
146. As required by section 603 of the Regulatory
Flexibility Act (RFA), the Commission has prepared a Final Regulatory
Flexibility Analysis (FRFA) of the expected impact on small entities of the
requirements adopted in the R&O. To the extent that any statement contained
in the FRFA is perceived as creating ambiguity with respect to the Commission's
rules, or statements made in the R&O, the rules and R&O statements
shall be controlling.
1. Need for, and Objectives
of, the Report and Order
147. In the R&O, the Commission takes important steps to
promote the deployment of wireless infrastructure, recognizing that it is the
physical foundation that supports all wireless communications. The R&O
adopts and clarifies rules in four specific areas in an effort to reduce
regulatory obstacles and bring efficiency to wireless facility siting and construction.
The Commission does this by eliminating unnecessary reviews, thus reducing the
burden on State and local jurisdictions and also on industry, including small
businesses. In particular, the Commission updates and tailors the manner in
which the Commission evaluates the impact of proposed deployments on the
environment and historic properties. The Commission also adopts rules to
clarify and implement statutory requirements related to State and local
government review of infrastructure siting applications, and the Commission
adopts an exemption from its environmental public notification process for
towers that are in place for only short periods of time. Taken together, these
steps will further facilitate the delivery of more wireless capacity in more
locations to consumers throughout the United States. Its actions will expedite
the deployment of equipment that does not harm the environment or historic
properties, as well as recognize the limits on Federal, State, Tribal, and
municipal resources available to review those cases that may adversely affect
the environment or historic properties.
148. First, the Commission adopts measures to refine its
environmental and historic preservation review processes under NEPA and NHPA to
account for new wireless technologies, including physically small facilities
like those used in DAS networks and small-cell systems that are a fraction of
the size of macrocell installations. Among these, the Commission expands an
existing categorical exclusion from NEPA review so that it applies not only to
collocations on buildings and towers, but also to collocations on other
structures like utility poles. The Commission also adopts a new categorical
exclusion from NEPA review for some kinds of deployments in utilities or
communications rights-of-way. With respect to NHPA, the Commission creates new
exclusions from section 106 review to address certain collocations that are
currently subject to review only because of the age of the supporting
structure. The Commission takes these steps to assure that, as the Commission
continues to meet its responsibilities under NEPA and NHPA, the Commission also
fulfills its obligation under the Communications Act to ensure that rapid,
efficient, and affordable radio communications services are available to all
Americans.
149. Second, regarding temporary towers, the Commission
adopts a narrow exemption from the Commission's requirement that owners of
proposed towers requiring ASR provide 30 days of national and local notice to
give members of the public an opportunity to comment on the proposed tower's
potential environmental effects. The exemption from notification requirements
applies only to proposed temporary towers meeting defined criteria, including
limits on the size and duration of the installation, that greatly reduce the
likelihood of any significant environmental effects. Allowing licensees to
deploy temporary towers meeting these criteria without first having to complete
the Commission's environmental notification process will enable them to more
effectively respond to emergencies, natural disasters, and other planned and
unplanned short-term spikes in demand without undermining the purposes of the
notification process. This exemption will “remove an administrative obstacle to
the availability of broadband and other wireless services during major events
and unanticipated periods of localized high demand” where expanded or
substitute service is needed quickly.Start Printed Page 1262
150. Third, the Commission adopts rules to implement and
enforce section 6409(a) of the Spectrum Act. Section 6409(a) provides, in part,
that “a State or local government may not deny, and shall approve, any eligible
facilities request for a modification of an existing wireless tower or base
station that does not substantially change the physical dimensions of such
tower or base station.” By requiring timely approval of eligible requests,
Congress intended to advance wireless broadband service for both public safety
and commercial users. Section 6409(a) includes a number of undefined terms that
bear directly on how the provision applies to infrastructure deployments, and
the record confirms that there are substantial disputes on a wide range of
interpretive issues under the provision. The Commission adopts rules that clarify
many of these terms and enforce their requirements, thus advancing Congress's
goal of facilitating rapid deployment. These rules will serve the public
interest by providing guidance to all stakeholders on their rights and
responsibilities under the provision, reducing delays in the review process for
wireless infrastructure modifications, and facilitating the rapid deployment of
wireless infrastructure and promoting advanced wireless broadband services.
151. Finally, the Commission clarifies issues related to
section 332(c)(7) of the Communications Act and the Commission's 2009
Declaratory Ruling. Among other things, the Commission explains when a
siting application is complete so as to trigger the presumptively reasonable
timeframes for local and State review of siting applications under the 2009
Declaratory Ruling, and how the shot clock timeframes apply to local
moratoria and DAS or small-cell facilities. These clarifications will eliminate
many disputes under section 332(c)(7), provide certainty about timing related
to siting applications (including the time at which applicants may seek
judicial relief), and preserve State and municipal governments' critical role
in the siting application process.
152. Taken together, the actions the Commission takes in the
R&O will enable more rapid deployment of vital wireless facilities,
delivering broadband and wireless innovations to consumers across the country.
At the same time, they will safeguard the environment, preserve historic
properties, protect the interest of Tribal Nations in their ancestral lands and
cultural legacies, and address municipalities' concerns over impacts to
aesthetics and other local values.
2. Summary of Significant
Issues Raised by Public Comments in Response to the IRFA
153. No commenters directly responded to the IRFA. Some
commenters raised issues of particular relevance to small entities, and the
Commission addresses those issues in the FRFA.
3. Response to Comments by
the Chief Counsel for Advocacy of the Small Business Administration
154. Pursuant to the Small Business Jobs Act of 2010, the
Commission is required to respond to any comments filed by the Chief Counsel
for Advocacy of the Small Business Administration (SBA), and to provide a
detailed statement of any change made to the proposed rules as a result of
those comments. The Chief Counsel did not file any comments in response to the
proposed rules in this proceeding.
4. Description and Estimate
of the Number of Small Entities To Which Rules Will Apply
155. The RFA directs the Commission to provide a description
of and, where feasible, an estimate of the number of small entities that will
be affected by the rules, if adopted. The RFA generally defines the term “small
entity” as having the same meaning as the terms “small business,” “small
organization,” and “small government jurisdiction.” In addition, the term
“small business” has the same meaning as the term “small business concern”
under the Small Business Act. A small business concern is one which: (1) Is
independently owned and operated; (2) is not dominant in its field of
operation; and (3) satisfies any additional criteria established by the SBA.
156. The R&O adopts rule changes regarding local and
Federal regulation of the siting and deployment of communications towers and other
wireless facilities. Due to the number and diversity of owners of such
infrastructure and other responsible parties, including small entities that are
Commission licensees as well as non-licensees, the Commission classifies and
quantify them in the remainder of this section.
157. Small Businesses, Small Organizations, and Small
Governmental Jurisdictions. The Commission's action may, over time, affect a
variety of small entities. To assist in assessing the R&O's effect on these
entities, the Commission describes three comprehensive categories—small
businesses, small organizations, and small governmental jurisdictions—that
encompass entities that could be directly affected by the rules the Commission
adopts. As of 2010, there were 27.9 million small businesses in the United
States, according to the SBA. A “small organization” is generally “any
not-for-profit enterprise which is independently owned and operated and is not
dominant in its field.” Nationwide, as of 2007, there were approximately
1,621,315 small organizations. Finally, the term “small governmental
jurisdiction” is defined generally as “governments of cities, counties, towns,
townships, villages, school districts, or special districts, with a population
of less than fifty thousand.” Census Bureau data for 2007 indicate that there
were 89,527 governmental jurisdictions in the United States. The Commission
estimates that, of this total, as many as 88,761 entities may qualify as “small
governmental jurisdictions.” Thus, the Commission estimates that most
governmental jurisdictions are small.
158. Wireless Telecommunications Carriers (except
satellite). The Census Bureau defines this category as follows: “This industry
comprises establishments engaged in operating and maintaining switching and
transmission facilities to provide communications via the airwaves.
Establishments in this industry have spectrum licenses and provide services
using that spectrum, such as cellular phone services, paging services, wireless
Internet access, and wireless video services.” The appropriate size standard
under SBA rules is for the category Wireless Telecommunications Carriers
(except Satellite). In this category, a business is small if it has 1,500 or
fewer employees. For this category, census data for 2007 show that there were
1,383 firms that operated for the entire year. Of this total, 1,368 firms had
employment of 999 or fewer employees and 15 had employment of 1000 employees or
more. According to Commission data, 413 carriers reported that they were
engaged in the provision of wireless telephony, including cellular service,
PCS, and Specialized Mobile Radio (SMR) telephony services. Of these, an
estimated 261 have 1,500 or fewer employees and 152 have more than 1,500
employees. Consequently, the Commission estimates that approximately half or
more of these firms can be considered small. Thus, using available data, the
Commission estimates that the majority of wireless firms can be considered
small.
159. Personal Radio Services. Personal radio services
provide short-range, low-power radio for personal communications, radio
signaling, and business communications not provided Start Printed Page 1263for
in other services. Personal radio services include services operating in
spectrum licensed under part 95 of the Commission's rules. These services
include Citizen Band Radio Service, General Mobile Radio Service, Radio Control
Radio Service, Family Radio Service, Wireless Medical Telemetry Service,
Medical Implant Communications Service, Low Power Radio Service, and Multi-Use
Radio Service. There are a variety of methods used to license the spectrum in
these rule parts, from licensing by rule, to conditioning operation on
successful completion of a required test, to site-based licensing, to
geographic area licensing. Under the RFA, the Commission is required to make a
determination of which small entities are directly affected by the rules the
Commission adopts. Since all such entities are wireless, the Commission applies
the definition of Wireless Telecommunications Carriers (except Satellite),
pursuant to which a small entity is defined as employing 1,500 or fewer
persons. Many of the licensees in these services are individuals, and thus are
not small entities. In addition, due to the mostly unlicensed and shared nature
of the spectrum utilized in many of these services, the Commission lacks direct
information upon which to base an estimation of the number of small entities
under an SBA definition that might be directly affected by the R&O.
160. Public Safety Radio Services. Public safety radio
services include police, fire, local government, forestry conservation, highway
maintenance, and emergency medical services. There are a total of approximately
127,540 licensees within these services. Governmental entities as well as private
businesses comprise the licensees for these services. All governmental entities
in jurisdictions with populations of less than 50,000 fall within the
definition of a small entity.
161. Private Land Mobile Radio. Private Land Mobile Radio
(PLMR) systems serve an essential role in a range of industrial, business, land
transportation, and public safety activities. These radios are used by
companies of all sizes operating in all U.S. business categories that operate
and maintain switching and transmission facilities to provide communications
via the airwaves. Establishments in this industry have spectrum licenses and
provide services using that spectrum, such as cellular phone services, paging
services, wireless Internet access, and wireless video services. The SBA has
not developed a definition of small entity specifically applicable to PLMR
licensees due to the vast array of PLMR users. The Commission believes that the
most appropriate classification for PLMR is Wireless Communications Carriers
(except satellite). The size standard for that category is that a business is
small if it has 1,500 or fewer employees. For this category, census data for
2007 show that there were 11,163 establishments that operated for the entire
year. Of this total, 10,791 establishments had employment of 999 or fewer
employees and 372 had employment of 1000 employees or more. Thus under this
category and the associated small business size standard, the Commission
estimates that the majority of PLMR licensees are small entities that may be
affected by its action.
162. Similarly, according to Commission data, 413 carriers
reported that they were engaged in the provision of wireless telephony,
including cellular service, PCS, and SMR telephony services. Of these, an
estimated 261 have 1,500 or fewer employees and 152 have more than 1,500
employees. Consequently, the Commission estimates that approximately half or
more of these firms can be considered small. Thus, using available data, the
Commission estimates that the majority of wireless firms can be considered
small.
163. The Commission's 1994 Annual Report on PLMRs indicates
that at the end of fiscal year 1994 there were 1,087,267 licensees operating
12,481,989 transmitters in the PLMR bands below 512 MHz. Because any entity
engaged in a commercial activity is eligible to hold a PLMR license, the rules
the Commission adopts could potentially impact every small business in the
United States.
164. Multiple Address Systems. Entities using Multiple
Address Systems (MAS) spectrum, in general, fall into two categories: (1) Those
using the spectrum for profit-based uses, and (2) those using the spectrum for
private internal uses. With respect to the first category, the Commission
defines “small entity” for MAS licensees as an entity that has average annual
gross revenues of less than $15 million over the three previous calendar years.
“Very small business” is defined as an entity that, together with its
affiliates, has average annual gross revenues of not more than $3 million over
the preceding three calendar years. The SBA has approved these definitions. The
majority of MAS operators are licensed in bands where the Commission has
implemented a geographic area licensing approach that requires the use of
competitive bidding procedures to resolve mutually exclusive applications. The
Commission's licensing database indicates that, as of April 16, 2010, there
were a total of 11,653 site-based MAS station authorizations. Of these, 58
authorizations were associated with common carrier service. In addition, the
Commission's licensing database indicates that, as of April 16, 2010, there
were a total of 3,330 Economic Area market area MAS authorizations. The
Commission's licensing database indicates that, as of April 16, 2010, of the
11,653 total MAS station authorizations, 10,773 authorizations were for private
radio service. In addition, an auction for 5,104 MAS licenses in 176 EAs was
conducted in 2001. Seven winning bidders claimed status as small or very small
businesses and won 611 licenses. In 2005, the Commission completed an auction
(Auction 59) of 4,226 MAS licenses in the Fixed Microwave Services from the
928/959 and 932/941 MHz bands. Twenty-six winning bidders won a total of 2,323
licenses. Of the 26 winning bidders in this auction, five claimed small
business status and won 1,891 licenses.
165. With respect to the second category, which consists of
entities that use, or seek to use, MAS spectrum to accommodate their own
internal communications needs, MAS serves an essential role in a range of
industrial, safety, business, and land transportation activities. MAS radios
are used by companies of all sizes, operating in virtually all U.S. business
categories, and by all types of public safety entities. For the majority of
private internal users, the definition developed by the SBA would be more
appropriate than the Commission's definition. The applicable definition of
small entity in this instance appears to be the “Wireless Telecommunications
Carriers (except satellite)” definition under the SBA rules. Under that SBA
category, a business is small if it has 1,500 or fewer employees. For this
category, census data for 2007 show that there were 11,163 establishments that
operated for the entire year. Of this total, 10,791 establishments had employment
of 99 or fewer employees and 372 had employment of 100 employees or more. Thus
under this category and the associated small business size standard, the
Commission estimates that the majority of wireless telecommunications carriers
(except satellite) are small entities that may be affected by its action.
166. Broadband Radio Service and Educational Broadband
Service. Broadband Radio Service systems—previously referred to as Multipoint
Start Printed Page 1264Distribution Service (MDS) and Multichannel Multipoint
Distribution Service systems, and “wireless cable”—transmit video programming
to subscribers and provide two-way high speed data operations using the
microwave frequencies of the Broadband Radio Service (BRS) and Educational
Broadband Service (EBS) (previously referred to as the Instructional Television
Fixed Service). In connection with the 1996 BRS auction, the Commission
established a small business size standard as an entity that had annual average
annual gross revenues of no more than $40 million over the previous three
calendar years. The BRS auctions resulted in 67 successful bidders obtaining
licensing opportunities for 493 Basic Trading Areas (BTAs). Of the 67 auction
winners, 61 met the definition of a small business. BRS also includes licensees
of stations authorized prior to the auction. The Commission previously
estimated that of the 61 small business BRS auction winners, based on its
review of licensing records, 48 remain small business licensees. In addition to
the 48 small businesses that hold BTA authorizations, there are approximately
86 incumbent BRS licensees that are considered small entities; 18 incumbent BRS
licensees do not meet the small business size standard. After adding the number
of small business auction licensees to the number of incumbent licensees not
already counted, there are currently approximately 133 BRS licensees that are
defined as small businesses under either the SBA's rules or the Commission's
rules. In 2009, the Commission conducted Auction 86, which involved the sale of
78 licenses in the BRS areas. The Commission established three small business
size standards that were used in Auction 86: (i) An entity with attributed
average annual gross revenues that exceeded $15 million and did not exceed $40
million for the preceding three years was considered a small business; (ii) an
entity with attributed average annual gross revenues that exceeded $3 million
and did not exceed $15 million for the preceding three years was considered a
very small business; and (iii) an entity with attributed average annual gross
revenues that did not exceed $3 million for the preceding three years was
considered an entrepreneur. Auction 86 concluded in 2009 with the sale of 61
licenses. Of the 10 winning bidders, two bidders that claimed small business
status won four licenses; one bidder that claimed very small business status
won three licenses; and two bidders that claimed entrepreneur status won six
licenses. The Commission notes that, as a general matter, the number of winning
bidders that qualify as small businesses at the close of an auction does not
necessarily represent the number of small businesses currently in service.
167. In addition, the SBA's placement of Cable Television
Distribution Services in the category of Wired Telecommunications Carriers is
applicable to cable-based educational broadcasting services. Since 2007, Wired
Telecommunications Carriers have been defined as follows: “This industry
comprises establishments primarily engaged in operating and/or providing access
to transmission facilities and infrastructure that they own and/or lease for
the transmission of voice, data, text, sound, and video using wired
telecommunications networks. Transmission facilities may be based on a single
technology or a combination of technologies.” Establishments in this industry
use the wired telecommunications network facilities that they operate to
provide a variety of services, such as wired telephony services, including VoIP
services; wired (cable) audio and video programming distribution; and wired
broadband Internet services. Establishments providing satellite television
distribution services using facilities and infrastructure that they operate are
included in this industry. The SBA has determined that a business in this
category is a small business if it has 1,500 or fewer employees. Census data
for 2007 shows that there were 3,188 firms in this category that operated for
the duration of that year. Of those, 3,144 had fewer than 1000 employees, and
44 firms had more than 1000 employees. Thus under this category and the
associated small business size standard, the majority of such firms can be
considered small. In addition to Census data, the Commission's Universal
Licensing System indicates that as of July 2013, there are 2,236 active EBS
licenses. The Commission estimates that of these 2,236 licenses, the majority
are held by non-profit educational institutions and school districts, which are
by statute defined as small businesses.
168. Location and Monitoring Service (LMS). LMS systems use
non-voice radio techniques to determine the location and status of mobile radio
units. For purposes of auctioning LMS licenses, the Commission has defined a
“small business” as an entity that, together with controlling interests and
affiliates, has average annual gross revenues for the preceding three years not
to exceed $15 million. A “very small business” is defined as an entity that,
together with controlling interests and affiliates, has average annual gross
revenues for the preceding three years not to exceed $3 million. These
definitions have been approved by the SBA. An auction for LMS licenses
commenced on February 23, 1999 and closed on March 5, 1999. Of the 528 licenses
auctioned, 289 licenses were sold to four small businesses.
169. Television Broadcasting. This Economic Census category
“comprises establishments primarily engaged in broadcasting images together
with sound. These establishments operate television broadcasting studios and
facilities for the programming and transmission of programs to the public.” The
SBA has created the following small business size standard for such businesses:
Those having $38.5 million or less in annual receipts. The 2007 U.S. Census
indicates that 2,076 television stations operated in that year. Of that number,
1,515 had annual receipts of $10,000,000 dollars or less, and 561 had annual
receipts of more than $10,000,000. Since the Census has no additional
classifications on the basis of which to identify the number of stations whose
receipts exceeded $38.5 million in that year, the Commission concludes that the
majority of television stations were small under the applicable SBA size
standard.
170. Apart from the U.S. Census, the Commission has
estimated the number of licensed commercial television stations to be 1,387. In
addition, according to Commission staff review of the BIA Advisory Services,
LLC's Media Access Pro Television Database on March 28, 2012, about 950
of an estimated 1,300 commercial television stations (or approximately 73
percent) had revenues of $14 million or less. The Commission estimates that the
majority of commercial television broadcasters are small entities.
171. The Commission notes, that in assessing whether a
business concern qualifies as small under the above definition, business
(control) affiliations must be included. Its estimate likely overstates the
number of small entities that might be affected by its action because the
revenue figure on which it is based does not include or aggregate revenues from
affiliated companies. In addition, an element of the definition of “small
business” is that the entity not be dominant in its field of operation. The
Commission is unable at this time to define or quantify the criteria that would
establish whether a specific television station is dominant in its field of
operation. The estimate of small businesses to which rules may apply does not
exclude any television station Start Printed Page 1265from the definition of a
small business on this basis and is possibly over-inclusive to that extent.
172. In addition, the Commission has estimated the number of
licensed noncommercial educational (NCE) television stations to be 395. These
stations are non-profit, and considered to be small entities.
173. There are also 2,414 LPTV stations, including Class A
stations, and 4,046 TV translator stations. Given the nature of these services,
the Commission will presume that all of these entities qualify as small
entities under the above SBA small business size standard.
174. Radio Broadcasting. The SBA defines a radio broadcast
station as a small business if it has no more than $35.5 million in annual
receipts. Business concerns included in this category are those “primarily
engaged in broadcasting aural programs by radio to the public.” According to
review of the BIA Publications, Inc. Master Access Radio Analyzer Database as
of November 26, 2013, about 11,331 (or about 99.9 percent) of 11,341 commercial
radio stations have revenues of $38.5 million or less and thus qualify as small
entities under the SBA definition. The Commission notes that in assessing
whether a business concern qualifies as small under the above definition,
revenues from business (control) affiliations must be included. This estimate
likely overstates the number of small entities that might be affected, because
the revenue figure on which it is based does not include or aggregate revenues
from affiliated companies.
175. In addition, an element of the definition of “small
business” is that the entity not be dominant in its field of operation. The
Commission is unable at this time to define or quantify the criteria that would
establish whether a specific radio station is dominant in its field of
operation. The estimate of small businesses to which rules may apply does not
exclude any radio station from the definition of a small business on this basis
and may be over-inclusive to that extent. Also, as noted, an additional element
of the definition of “small business” is that the entity must be independently
owned and operated. The Commission notes that it can be difficult to assess
this criterion in the context of media entities and the estimates of small
businesses to which they apply may be over-inclusive to this extent.
176. FM translator stations and low power FM stations. The
rules and clarifications the Commission adopts could affect licensees of FM
translator and booster stations and low power FM (LPFM) stations, as well as
potential licensees in these radio services. The same SBA definition that
applies to radio broadcast licensees would apply to these stations. The SBA
defines a radio broadcast station as a small business if such station has no
more than $38.5 million in annual receipts. Currently, there are approximately
6,155 licensed FM translator and booster stations and 864 licensed LPFM
stations. Given the nature of these services, the Commission will presume that
all of these licensees qualify as small entities under the SBA definition.
177. Multichannel Video Distribution and Data Service
(MVDDS). MVDDS is a terrestrial fixed microwave service operating in the
12.2-12.7 GHz band. The Commission adopted criteria for defining three groups
of small businesses for purposes of determining their eligibility for special
provisions such as bidding credits. It defined a very small business as an
entity with average annual gross revenues not exceeding $3 million for the
preceding three years; a small business as an entity with average annual gross
revenues not exceeding $15 million for the preceding three years; and an
entrepreneur as an entity with average annual gross revenues not exceeding $40
million for the preceding three years. These definitions were approved by the
SBA. On January 27, 2004, the Commission completed an auction of 214 MVDDS
licenses (Auction No. 53). In this auction, ten winning bidders won a total of
192 MVDDS licenses. Eight of the ten winning bidders claimed small business
status and won 144 of the licenses. The Commission also held an auction of
MVDDS licenses on December 7, 2005 (Auction 63). Of the three winning bidders
who won 22 licenses, two winning bidders, winning 21 of the licenses, claimed
small business status.
178. Satellite Telecommunications. Two economic census
categories address the satellite industry. Both establish a small business size
standard of $32.54 million or less in annual receipts.
179. The first category, “Satellite Telecommunications,”
“comprises establishments primarily engaged in providing telecommunications
services to other establishments in the telecommunications and broadcasting
industries by forwarding and receiving communications signals via a system of
satellites or reselling satellite telecommunications.” Census Bureau data for
2007 show that 607 Satellite Telecommunications establishments operated for
that entire year. Of this total, 533 had annual receipts of under $10 million,
and 74 establishments had receipts of $10 million or more. Consequently, the
Commission estimates that the majority of Satellite Telecommunications firms
are small entities that might be affected by its action.
180. The second category, “All Other Telecommunications,”
comprises “establishments primarily engaged in providing specialized
telecommunications services, such as satellite tracking, communications
telemetry, and radar station operation. This industry also includes
establishments primarily engaged in providing satellite terminal stations and
associated facilities connected with one or more terrestrial systems and
capable of transmitting telecommunications to, and receiving telecommunications
from, satellite systems. Establishments providing Internet services or voice
over Internet protocol (VoIP) services via client-supplied telecommunications
connections are also included in this industry.” For this category, Census data
for 2007 shows that there were a total of 2,639 establishments that operated
for the entire year. Of those, 2,333 operated with annual receipts of less than
$10 million and 306 with annual receipts of $10 million or more. Consequently,
the Commission estimates that a majority of All Other Telecommunications
establishments are small entities that might be affected by its action.
181. Non-Licensee Tower Owners. Although at one time most
communications towers were owned by the licensee using the tower to provide
communications service, many towers are now owned by third-party businesses
that do not provide communications services themselves but lease space on their
towers to other companies that provide communications services. The
Commission's rules require that any entity, including a non-licensee, proposing
to construct a tower over 200 feet in height or within the glide slope of an
airport must register the tower with the Commission on FCC Form 854. Thus,
non-licensee tower owners may be subject to the environmental notification
requirements associated with ASR registration, and may benefit from the
exemption for certain temporary antenna structures that the Commission adopts
in the R&O. In addition, non-licensee tower owners may be affected by its
interpretations of section 6409(a) of the Spectrum Act or by its revisions to
its interpretation of section 332(c)(7) of the Communications Act.Start Printed
Page 1266
182. As of September 5, 2014, the ASR database includes
approximately 116,643 registration records reflecting a ”Constructed” status
and 13,972 registration records reflecting a “Granted, Not Constructed” status.
These figures include both towers registered to licensees and towers registered
to non-licensee tower owners. The Commission does not keep information from
which it can easily determine how many of these towers are registered to
non-licensees or how many non-licensees have registered towers. Regarding
towers that do not require ASR registration, the Commission does not collect
information as to the number of such towers in use and cannot estimate the
number of tower owners that would be subject to the rules the Commission
adopts. Moreover, the SBA has not developed a size standard for small
businesses in the category “Tower Owners.” The Commission is unable to
determine the number of non-licensee tower owners that are small entities. The
Commission believes that when all entities owning 10 or fewer towers and
leasing space for collocation are included, non-licensee tower owners number in
the thousands, and that nearly all of these qualify as small businesses under
the SBA's definition for “All Other Telecommunications.” In addition, there may
be other non-licensee owners of other wireless infrastructure, including DAS
and small cells that might be affected by the regulatory measures the
Commission adopts. The Commission does not have any basis for estimating the
number of such non-licensee owners that are small entities.
5. Description of Projected
Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities
183. The R&O adopts a narrow exemption from the
Commission's requirement that owners of proposed towers requiring ASR
registration provide 30 days of national and local notice to give members of
the public an opportunity to comment on the proposed tower's potential
environmental effects. The exemption from the notice requirements applies only
to applicants seeking to register temporary antenna structures meeting certain
criteria that greatly reduce the likelihood of any significant environmental
effects. Specifically, proposed towers exempted from the Commission's local and
national environmental notification requirement are those that (i) will be in
use for 60 days or less, (ii) require notice of construction to the Federal
Aviation Administration (FAA), (iii) do not require marking or lighting
pursuant to FAA regulations, (iv) will be less than 200 feet in height, and (v)
will involve minimal or no excavation.
184. The Commission's rules require that any entity,
including a non-licensee, proposing to construct a tower over 200 feet in
height or within the glide slope of an airport must register the tower with the
Commission on FCC Form 854. An applicant seeking to claim the temporary towers
exemption from the environmental notification process must indicate on its FCC
Form 854 that it is claiming the exemption for a new, proposed temporary tower
and demonstrate that the proposed tower satisfies the applicable criteria.
While small entities must comply with these requirements in order to take
advantage of the exemption, on balance, the relief from compliance with local
and national environmental notification requirements provided by the exemption
greatly reduces burdens and economic impacts on small entities.
185. The applicant may seek an extension of the exemption
from the Commission's local and national environmental notification requirement
of up to sixty days through another filing of Form 854, if the applicant can
demonstrate that the extension of the exemption period is warranted due to
changed circumstances or information that emerged after the exempted tower was
deployed. The exemption adopted in the R&O is intended specifically for
proposed towers that are intended and expected to be deployed for no more than
60 days, and the option to apply for an extension is intended only for cases of
unforeseen or changed circumstances or information. Small entities, like all
applicants, are expected to seek extensions of the exemption period only rarely
and any burdens or economic impacts incurred by applying for such extensions
should be minimal.
6. Steps Taken To Minimize
the Significant Economic Impact on Small Entities, and Significant Alternatives
Considered
186. The RFA requires an agency to describe any significant
alternatives that it has considered in developing its approach, which may
include the following four alternatives (among others): “(1) the establishment
of differing compliance or reporting requirements or timetables that take into
account the resources available to small entities; (2) the clarification,
consolidation, or simplification of compliance and reporting requirements under
the rule for such small entities; (3) the use of performance rather than design
standards; and (4) an exemption from coverage of the rule, or any part thereof,
for such small entities.” The FRFA incorporates by reference all discussion in
the R&O that considers the impact on small entities of the rules adopted by
the Commission. In addition, the Commission's consideration of those issues as
to which the impact on small entities was specifically discussed in the record
is summarized below.
187. The actions taken in the R&O encourage and promote
the deployment of advanced wireless broadband and other services by tailoring
the regulatory review of new wireless network infrastructure consistent with
the law and the public interest. The Commission anticipates that the steps
taken in the R&O will not impose any significant economic impacts on small
entities, and will in fact help reduce burdens on small entities by reducing
the cost and delay associated with the deployment of such infrastructure.
188. In the R&O, the Commission takes action in four
major areas relating to the regulation of wireless facility siting and
construction. In each area, the rules the Commission adopts and clarifications
the Commission makes will not increase burdens or costs on small entities. To
the contrary, its actions will reduce costs and burdens associated with
deploying wireless infrastructure.
189. First, the Commission adopts measures with regard to its
NEPA process for review of environmental effects regarding wireless broadband
deployment that should reduce existing regulatory costs for small entities that
construct or deploy wireless infrastructure, and will not impose any additional
costs on such entities. Specifically, the Commission clarifies that the
existing NEPA categorical exclusion for antenna collocations on buildings and
towers includes equipment associated with the antennas (such as wiring,
cabling, cabinets, or backup-power), and that it also covers collocations in a
building's interior. The Commission also expands the NEPA collocation
categorical exclusion to cover collocations on structures other than buildings
and towers, and adopts a new NEPA categorical exclusion for deployments, including
deployments of new poles, in utility or communications rights-of-way that are
in active use for such purposes, where the deployment does not constitute a
substantial increase in size over the existing utility or communications uses.
The Commission also adopts measures concerning its section 106 process for
review of impact on historic properties. First, the Commission adopts certain
Start Printed Page 1267exclusions from section 106 review, and the Commission
clarifies that the existing exclusions for certain collocations on buildings
under the Commission's programmatic agreements extend to collocations inside
buildings. These new exclusions and clarifications will reduce environmental
compliance costs of small entities by providing that eligible proposed
deployments of small wireless facilities do not require the preparation of an
Environmental Assessment.
190. Second, the Commission adopts an exemption from the
Commission's requirement that ASR applicants must provide local and national
environmental notification prior to submitting a completed ASR application for
certain temporary antenna structures meeting criteria that makes them unlikely
to have significant environmental effects. Specifically, the Commission exempts
antenna structures that (1) will be in place for 60 days or less; (2) require
notice of construction to the FAA; (3) do not require marking or lighting under
FAA regulations; (4) will be less than 200 feet above ground level; and (5)
will involve minimal or no ground excavation. This exemption will reduce the
burden on wireless broadband providers and other wireless service providers,
including small entities.
191. Third, the Commission adopts several rules to clarify
and implement the requirements of section 6409(a) of the Spectrum Act. In
interpreting the statutory terms of this provision, such as “wireless tower or
base station,” “transmission equipment,” and “substantially change the physical
dimensions,” the Commission generally does not distinguish between large and
small entities, as the statute provides no indication that such distinctions
were intended, and such distinctions have been proposed. Further, these
clarifications will help limit potential ambiguities within the rule and thus
reduce the burden associated with complying with this statutory provision,
including the burden on small entities. Generally, the Commission clarifies
that section 6409(a) applies only to State and local governments acting in
their regulatory role and does not apply to such entities acting in their proprietary
capacities.
192. With regard to the process for reviewing an application
under section 6409(a), the Commission provides that a State or local government
may only require applicants to provide documentation that is reasonably related
to determining whether the eligible facility request meets the requirements of
section 6409(a) and that, within 60 days from the date of filing (accounting
for tolling), a State or local government shall approve an application covered
by section 6409(a). Where a State or local government fails to act on an
application covered under section 6409(a) within the requisite time period, the
application is deemed granted. Parties may bring claims under section 6409(a)
to a court of competent jurisdiction. The Commission declines to entertain such
disputes in a Commission adjudication, which would impose significant burdens
on localities, many of which are small entities with no representation in
Washington, DC or experience before the Commission. Limiting relief to court
adjudication lessens the burden on applicants in general, and small entities
specifically.
193. Lastly, the Commission adopts clarifications of its
2009 Declaratory Ruling, which established the time periods after which a State
or local government has presumptively failed to act on a facilities siting
application “within a reasonable period of time” under section 332(c)(7) of the
Act. Specifically, the Commission clarifies that the timeframe begins to run
when an application is first submitted, not when it is deemed complete by the
reviewing government. Further, a determination of incompleteness tolls the shot
clock only if the State or local government provides notice to the applicant in
writing within 30 days of the application's submission, specifically delineating
all missing information. Following a submission in response to a determination
of incompleteness, any subsequent determination that an application remains
incomplete must be based solely on the applicant's failure to supply missing
information that was identified within the first 30 days. These clarifications
will provide greater certainty in the application process and reduce the
potential or need for serial requests for more information. These
clarifications will facilitate faster application processing, reduce
unreasonable delay, and reduce the burden on regulated entities, including
small businesses.
194. The Commission also clarifies that to the extent DAS or
small-cell facilities, including third-party facilities such as neutral host
DAS deployments, are or will be used for the provision of personal wireless
services, their siting applications are subject to the same presumptively
reasonable timeframes that apply to applications related to other personal
wireless service facilities under section 332(c)(7). The Commission clarifies
further that the presumptively reasonable timeframes run regardless of any
applicable moratoria, and that municipal property preferences are not per se
unreasonably discriminatory or otherwise unlawful under section 332(c)(7).
Finally, the Commission concludes that the explicit remedies under section
332(c)(7) preclude adoption of a deemed granted remedy for failures to act.
These clarifications reduce confusion and delay within the siting process which
in turn reduces the burden on industry and State and local jurisdictions alike,
which may include small entities.
7. Federal Rules That Might
Duplicate, Overlap, or Conflict With the Rules
195. None.
8. Report to Congress
196. The Commission will send a copy of the R&O, including
the FRFA, in a report to be sent to Congress and the Government Accountability
Office pursuant to the Congressional Review Act.
9. Report to Small Business
Administration
197. The Commission's Consumer and Governmental Affairs
Bureau, Reference Information Center, will send a copy of the R&O,
including the FRFA, to the Chief Counsel for Advocacy of the SBA.
B. Paperwork Reduction Act
198. The R&O contains revised information collection
requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will
be submitted to the Office of Management and Budget (OMB) for review under
section 3507(d) of the PRA. OMB, the general public, and other Federal agencies
will be invited to comment on the modified information collection requirements
contained in this proceeding in a separate Federal Register Notice. In
addition, the Commission notes that pursuant to the Small Business Paperwork
Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the
Commission previously sought specific comment on how the Commission might
further reduce the information collection burden for small business concerns
with fewer than 25 employees. In addition, the Commission has described impacts
that might affect small businesses, which includes most businesses with fewer
than 25 employees, in the FRFA.
C. Congressional Review Act
199. The Commission will send a copy of the R&O in a
report to be sent to Congress and the Government Accountability Office pursuant
to the Start Printed Page 1268Congressional Review Act (CRA), see 5 U.S.C. 801(a)(1)(A).
VI. Ordering Clauses
200. It is ordered, pursuant to sections 1, 2, 4(i),
7, 201, 301, 303, 309, and 332 of the Communications Act of 1934, as amended,
sections 6003, 6213, and 6409(a) of the Middle Class Tax Relief and Job
Creation Act of 2012, Public Law 112-96, 126
Stat. 156, 47 U.S.C. 151, 152, 154(i),
157, 201, 301, 303, 309, 332, 1403, 1433, and 1455(a), section 102(C) of the
National Environmental Policy Act of 1969, as amended, 42 U.S.C. 4332(C), and
section 106 of the National Historic Preservation Act of 1966, as amended, 16 U.S.C. 470f, that the
R&O IS hereby adopted. If any section, subsection, paragraph,
sentence, clause or phrase of the R&O or the rules adopted therein is
declared invalid for any reason, the remaining portions of the R&O and the
rules adopted therein shall be severable from the invalid part and shall
remain in full force and effect.
201. It is further ordered that parts 1 and 17 of the
Commission's Rules ARE amended as set forth in Appendix B of the R&O
(see the Final Rules contained in this summary), and that these changes shall
be effective 30 days after publication in the Federal Register,
except for section 1.40001, which shall be effective 90 days after
publication in the Federal Register; provided that those rules and
requirements that require approval by the Office of Management and Budget (OMB)
under the Paperwork Reduction Act shall become effective after the
Commission publishes a notice in the Federal Register announcing such
approval and the relevant effective date.
202. It is further ordered that the Commission's
Consumer and Governmental Affairs Bureau, Reference Information Center, shall
send a copy of this Report and Order, including the Final Regulatory
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business
Administration.
List
of Subjects
- Administrative practice and procedure
- Communications common carriers
- Environmental impact statements
- Federal buildings and facilities
- Radio
- Reporting and recordkeeping requirements
- Satellites
- Telecommunications
- Aviation safety
- Communications equipment
- Reporting and recordkeeping requirements
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Final Rules
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR part 1 and part 17 as follows:
PART
1—PRACTICE AND PROCEDURE
1. The authority citation for part 1 is amended to read as
follows:
Authority: 15 U.S.C. 79, et seq.;
47 U.S.C. 151, 154(i),
154(j), 155, 157, 160, 201, 225, 227, 303, 309, 332, 1403, 1404, 1451, 1452,
and 1455.
2. Section 1.1306 is amended by adding paragraph (c) and
revising the first sentence of Note 1 read as follows:
Actions
which are categorically excluded from environmental processing.
* * * * *
(c)(1) Unless § 1.1307(a)(4) is applicable, the provisions
of § 1.1307(a) requiring the preparation of EAs do not encompass the
construction of wireless facilities, including deployments on new or
replacement poles, if:
(i) The facilities will be located in a right-of-way that is
designated by a Federal, State, local, or Tribal government for communications
towers, above-ground utility transmission or distribution lines, or any
associated structures and equipment;
(ii) The right-of-way is in active use for such designated
purposes; and
(iii) The facilities would not
(A) Increase the height of the tower or non-tower structure
by more than 10% or twenty feet, whichever is greater, over existing support
structures that are located in the right-of-way within the vicinity of the
proposed construction;
(B) Involve the installation of more than four new equipment
cabinets or more than one new equipment shelter;
(C) Add an appurtenance to the body of the structure that
would protrude from the edge of the structure more than twenty feet, or more
than the width of the structure at the level of the appurtenance, whichever is
greater (except that the deployment may exceed this size limit if necessary to
shelter the antenna from inclement weather or to connect the antenna to the
tower via cable); or
(D) Involve excavation outside the current site, defined as
the area that is within the boundaries of the leased or owned property surrounding
the deployment or that is in proximity to the structure and within the
boundaries of the utility easement on which the facility is to be deployed,
whichever is more restrictive.
(2) Such wireless facilities are subject to § 1.1307(b) and
require EAs if their construction would result in human exposure to
radiofrequency radiation in excess of the applicable health and safety
guidelines cited in § 1.1307(b).
Note
1:
The provisions of § 1.1307(a) requiring the preparation of
EAs do not encompass the mounting of antenna(s) and associated equipment (such
as wiring, cabling, cabinets, or backup-power), on or in an existing building,
or on an antenna tower or other man-made structure, unless § 1.1307(a)(4) is
applicable. * * *
* * * * *
3. Section 1.1307 is amended by redesignating paragraph
(a)(4) as (a)(4)(i), and by adding new paragraph (a)(4)(ii) and a Note to
paragraph (a)(4)(ii) to read as follows:
Actions that
may have a significant environmental effect, for which Environmental
Assessments (EAs) must be prepared.
(a) * * *
(4) * * *
(ii) The requirements in paragraph (a)(4)(i) of this section
do not apply to:
(A) The mounting of antennas (including associated equipment
such as wiring, cabling, cabinets, or backup-power) on existing utility
structures (including utility poles and electric transmission towers in active
use by a “utility” as defined in Section 224 of the Communications Act, 47 U.S.C. 224, but not
including light poles, lamp posts, and other structures whose primary purpose
is to provide public lighting) where the deployment meets the following
conditions:
(1) All antennas that are part of the deployment fit
within enclosures (or if the antennas are exposed, within imaginary enclosures)
that are individually no more than three cubic feet in volume, and all antennas
on the structure, including any pre-existing antennas on the structure, fit
within enclosures (or if the antennas are exposed, within imaginary enclosures)
that total no more than six cubic feet in volume;
(2) All other wireless equipment associated with the
structure, including pre-existing enclosures and including equipment on the
ground associated with antennas on the structure, are cumulatively no more than
seventeen cubic feet in volume, exclusive of
(i) Vertical cable runs for the connection of power and
other services;
(ii) Ancillary equipment installed by other entities
that is outside of the applicant's ownership or control, andStart Printed Page
1269
(iii) Comparable equipment from pre-existing wireless
deployments on the structure;
(3) The deployment will involve no new ground
disturbance; and
(4) The deployment would otherwise require the
preparation of an EA under paragraph (a)(4)(i) of this section solely because
of the age of the structure; or
(B) The mounting of antennas (including associated equipment
such as wiring, cabling, cabinets, or backup-power) on buildings or other
non-tower structures where the deployment meets the following conditions:
(1) There is an existing antenna on the building or
structure;
(2) One of the following criteria is met:
(i) Non-Visible Antennas. The new antenna is
not visible from any adjacent streets or surrounding public spaces and is added
in the same vicinity as a pre-existing antenna;
(ii) Visible Replacement Antennas. The new
antenna is visible from adjacent streets or surrounding public spaces, provided
that
(A) It is a replacement for a pre-existing antenna,
(B) The new antenna will be located in the same
vicinity as the pre-existing antenna,
(C) The new antenna will be visible only from adjacent
streets and surrounding public spaces that also afford views of the
pre-existing antenna,
(D) The new antenna is not more than 3 feet larger in
height or width (including all protuberances) than the pre-existing antenna,
and
(E) No new equipment cabinets are visible from the
adjacent streets or surrounding public spaces; or
(iii) Other Visible Antennas. The new antenna
is visible from adjacent streets or surrounding public spaces, provided that
(A) It is located in the same vicinity as a
pre-existing antenna,
(B) The new antenna will be visible only from
adjacent streets and surrounding public spaces that also afford views of the
pre-existing antenna,
(C) The pre-existing antenna was not deployed
pursuant to the exclusion in this subsection (§ 1.1307(a)(4)(ii)(B)(2)(iii)),
(D) The new antenna is not more than three feet
larger in height or width (including all protuberances) than the pre-existing
antenna, and
(E) No new equipment cabinets are visible from the
adjacent streets or surrounding public spaces;
(3) The new antenna complies with all zoning
conditions and historic preservation conditions applicable to existing antennas
in the same vicinity that directly mitigate or prevent effects, such as
camouflage or concealment requirements;
(4) The deployment of the new antenna involves no new
ground disturbance; and
(5) The deployment would otherwise require the
preparation of an EA under paragraph (a)(4) of this section solely because of
the age of the structure.
Note
to paragraph (a)(4)(ii):
A non-visible new antenna is in the “same vicinity” as a
pre-existing antenna if it will be collocated on the same rooftop, façade or
other surface. A visible new antenna is in the “same vicinity” as a
pre-existing antenna if it is on the same rooftop, façade, or other surface and
the centerpoint of the new antenna is within ten feet of the centerpoint of the
pre-existing antenna. A deployment causes no new ground disturbance when the
depth and width of previous disturbance exceeds the proposed construction depth
and width by at least two feet.
* * * * *
4. Add Subpart CC to part 1 to read as follows:
Subpart
CC—State and Local Review of Applications for Wireless Service Facility
Modification
Wireless
Facility Modifications.
(a) Purpose. These rules implement section 6409 of
the Spectrum Act (codified at 47 U.S.C. 1455), which
requires a State or local government to approve any eligible facilities request
for a modification of an existing tower or base station that does not
substantially change the physical dimensions of such tower or base station.
(b) Definitions. Terms used in this section have the
following meanings.
(1) Base station. A structure or equipment at a fixed
location that enables Commission-licensed or authorized wireless communications
between user equipment and a communications network. The term does not
encompass a tower as defined in this subpart or any equipment associated with a
tower.
(i) The term includes, but is not limited to, equipment
associated with wireless communications services such as private, broadcast,
and public safety services, as well as unlicensed wireless services and fixed
wireless services such as microwave backhaul.
(ii) The term includes, but is not limited to, radio
transceivers, antennas, coaxial or fiber-optic cable, regular and backup power
supplies, and comparable equipment, regardless of technological configuration
(including Distributed Antenna Systems and small-cell networks).
(iii) The term includes any structure other than a tower
that, at the time the relevant application is filed with the State or local
government under this section, supports or houses equipment described in
paragraphs (b)(1)(i) through (ii) of this section that has been reviewed and
approved under the applicable zoning or siting process, or under another State
or local regulatory review process, even if the structure was not built for the
sole or primary purpose of providing such support.
(iv) The term does not include any structure that, at the
time the relevant application is filed with the State or local government under
this section, does not support or house equipment described in paragraphs
(b)(1)(i)-(ii) of this section.
(2) Collocation. The mounting or installation of
transmission equipment on an eligible support structure for the purpose of
transmitting and/or receiving radio frequency signals for communications
purposes.
(3) Eligible facilities request. Any request for
modification of an existing tower or base station that does not substantially
change the physical dimensions of such tower or base station, involving:
(i) Collocation of new transmission equipment;
(ii) Removal of transmission equipment; or
(iii) Replacement of transmission equipment.
(4) Eligible support structure. Any tower or base
station as defined in this section, provided that it is existing at the time
the relevant application is filed with the State or local government under this
section.
(5) Existing. A constructed tower or base station is
existing for purposes of this section if it has been reviewed and approved
under the applicable zoning or siting process, or under another State or local
regulatory review process, provided that a tower that has not been reviewed and
approved because it was not in a zoned area when it was built, but was lawfully
constructed, is existing for purposes of this definition.
(6) Site. For towers other than towers in the public
rights-of-way, the current boundaries of the leased or owned property
surrounding the tower and any access or utility easements currently related to
the site, and, for other eligible support structures, further restricted to
that area in proximity to the structure and to other transmission equipment
already deployed on the ground.
(7) Substantial change. A modification substantially
changes the physical dimensions of an eligible Start Printed Page 1270support
structure if it meets any of the following criteria:
(i) For towers other than towers in the public
rights-of-way, it increases the height of the tower by more than 10% or by the
height of one additional antenna array with separation from the nearest existing
antenna not to exceed twenty feet, whichever is greater; for other eligible
support structures, it increases the height of the structure by more than 10%
or more than ten feet, whichever is greater;
(A) Changes in height should be measured from the original
support structure in cases where deployments are or will be separated
horizontally, such as on buildings' rooftops; in other circumstances, changes
in height should be measured from the dimensions of the tower or base station,
inclusive of originally approved appurtenances and any modifications that were
approved prior to the passage of the Spectrum Act.
(ii) For towers other than towers in the public
rights-of-way, it involves adding an appurtenance to the body of the tower that
would protrude from the edge of the tower more than twenty feet, or more than
the width of the tower structure at the level of the appurtenance, whichever is
greater; for other eligible support structures, it involves adding an
appurtenance to the body of the structure that would protrude from the edge of
the structure by more than six feet;
(iii) For any eligible support structure, it involves
installation of more than the standard number of new equipment cabinets for the
technology involved, but not to exceed four cabinets; or, for towers in the
public rights-of-way and base stations, it involves installation of any new
equipment cabinets on the ground if there are no pre-existing ground cabinets
associated with the structure, or else involves installation of ground cabinets
that are more than 10% larger in height or overall volume than any other ground
cabinets associated with the structure;
(iv) It entails any excavation or deployment outside the
current site;
(v) It would defeat the concealment elements of the eligible
support structure; or
(vi) It does not comply with conditions associated with the
siting approval of the construction or modification of the eligible support
structure or base station equipment, provided however that this limitation does
not apply to any modification that is non-compliant only in a manner that would
not exceed the thresholds identified in § 1.40001(b)(7)(i) through (iv).
(8) Transmission equipment. Equipment that
facilitates transmission for any Commission-licensed or authorized wireless
communication service, including, but not limited to, radio transceivers,
antennas, coaxial or fiber-optic cable, and regular and backup power supply.
The term includes equipment associated with wireless communications services
including, but not limited to, private, broadcast, and public safety services,
as well as unlicensed wireless services and fixed wireless services such as
microwave backhaul.
(9) Tower. Any structure built for the sole or
primary purpose of supporting any Commission-licensed or authorized antennas
and their associated facilities, including structures that are constructed for
wireless communications services including, but not limited to, private,
broadcast, and public safety services, as well as unlicensed wireless services
and fixed wireless services such as microwave backhaul, and the associated
site.
(c) Review of applications. A State or local
government may not deny and shall approve any eligible facilities request for
modification of an eligible support structure that does not substantially
change the physical dimensions of such structure.
(1) Documentation requirement for review. When an
applicant asserts in writing that a request for modification is covered by this
section, a State or local government may require the applicant to provide
documentation or information only to the extent reasonably related to
determining whether the request meets the requirements of this section. A State
or local government may not require an applicant to submit any other
documentation, including but not limited to documentation intended to
illustrate the need for such wireless facilities or to justify the business
decision to modify such wireless facilities.
(2) Timeframe for review. Within 60 days of the date
on which an applicant submits a request seeking approval under this section,
the State or local government shall approve the application unless it
determines that the application is not covered by this section.
(3) Tolling of the timeframe for review. The 60-day
period begins to run when the application is filed, and may be tolled only by
mutual agreement or in cases where the reviewing State or local government
determines that the application is incomplete. The timeframe for review is not
tolled by a moratorium on the review of applications.
(i) To toll the timeframe for incompleteness, the reviewing
State or local government must provide written notice to the applicant within
30 days of receipt of the application, clearly and specifically delineating all
missing documents or information. Such delineated information is limited to
documents or information meeting the standard under paragraph (c)(1) of this
section.
(ii) The timeframe for review begins running again when the
applicant makes a supplemental submission in response to the State or local
government's notice of incompleteness.
(iii) Following a supplemental submission, the State or
local government will have 10 days to notify the applicant that the
supplemental submission did not provide the information identified in the
original notice delineating missing information. The timeframe is tolled in the
case of second or subsequent notices pursuant to the procedures identified in
this paragraph (c)(3). Second or subsequent notices of incompleteness may not
specify missing documents or information that were not delineated in the
original notice of incompleteness.
(4) Failure to act. In the event the reviewing State
or local government fails to approve or deny a request seeking approval under
this section within the timeframe for review (accounting for any tolling), the
request shall be deemed granted. The deemed grant does not become effective
until the applicant notifies the applicable reviewing authority in writing
after the review period has expired (accounting for any tolling) that the
application has been deemed granted.
(5) Remedies. Applicants and reviewing authorities
may bring claims related to Section 6409(a) to any court of competent
jurisdiction.
PART
17—CONSTRUCTION, MARKING, AND LIGHTING OF ANTENNA STRUCTURES
5. The authority citation for part 17 continues to read as
follows:
Authority: Sections 4, 303, 48 Stat. 1066, 1082, as amended;
47 U.S.C. 154, 303.
Interpret or apply sections 301, 309, 48 Stat. 1081, 1085 as amended; 47 U.S.C. 301, 309.
6. Amend § 17.4 by revising paragraphs (c)(1)(v) and
(c)(1)(vi), and adding paragraph (c)(1)(vii) to read as follows:
Antenna
structure registration.
* * * * *
(c) * * *Start Printed Page 1271
(1) * * *
(v) For any other change that does not alter the physical
structure, lighting, or geographic location of an existing structure;
(vi) For construction, modification, or replacement of an
antenna structure on Federal land where another Federal agency has assumed
responsibility for evaluating the potentially significant environmental effect
of the proposed antenna structure on the quality of the human environment and
for invoking any required environmental impact statement process, or for any
other structure where another Federal agency has assumed such responsibilities
pursuant to a written agreement with the Commission (see § 1.1311(e) of
this chapter); or
(vii) For the construction or deployment of an antenna
structure that will:
(A) Be in place for no more than 60 days,
(B) Requires notice of construction to the FAA,
(C) Does not require marking or lighting under FAA
regulations,
(D) Will be less than 200 feet in height above ground level,
and
(E) Will either involve no excavation or involve excavation
only where the depth of previous disturbance exceeds the proposed construction
depth (excluding footings and other anchoring mechanisms) by at least two feet.
An applicant that relies on this exception must wait 30 days after removal of
the antenna structure before relying on this exception to deploy another
antenna structure covering substantially the same service area.
* * * * *
[FR Doc. 2014-28897
Filed 1-7-15; 8:45 am]
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