Part 1 of 4: FCC September 2013 Notice of Proposed Rulemaking (“NPRM”) Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies

We’ve told you many times about the continued erosion of local regulatory control over wireless infrastructure.  Well, the FCC continues that process in its September 2013 Notice of Proposed Rulemaking (“NPRM”).

The NPRM (which runs 86 pages) click here for link to entire document puts forth a number of proposals which will affect your ability as a locality to determine the placement, size, and composition of wireless infrastructure in your community.

You do have the opportunity to file comments to the FCC’s proposals (which would be due 60 days after the NPRM is published in the Federal Register, a date which is unknown at the time of writing due to the federal shutdown) and Cityscape urges you to have your city or county attorney file comments regarding the proposals’ effects on local government.

The NPRM’s proposals cover a number of topics, in 4 general areas; we will tackle them one topic at a time to make it easier to digest, and easier for you to prepare comments to file with the FCC.

Part 1:

Expediting Deployment of DAS/Small Cells – The first part addresses a desire to make it easier to deploy DAS (Distributed Antenna Systems) and Small Cell (also called microcell) systems.  After describing how DAS/Small Cells work and suggesting that because of their smaller “footprint”, they are a more desirable infrastructure in historic districts (versus traditional cell sites), the FCC then asks whether the DAS/Small Cells should be subject to the same environmental/historic review as traditional infrastructure.

As some of you know, the construction of most new wireless infrastructure requires federal review under NEPA (the National Environmental Policy Act of 1969) to determine if there is a significant environmental impact because of the proposed structure.

NEPA reviews fall into 3 categories:

  1. Significant impact (which require a big study)
  2. No significant impact (which require a streamlined study to come to that conclusion)
  3. Categorical exclusions (which are exempt from any review.)   Currently, collocations on existing towers or buildings are categorical exclusions from NEPA, except for historical preservation effects and RF exposure limits.

In addition to NEPA, new facilities have to contend with NHPA (the National Historic Preservation Act), which requires review of any facilities that may impact property included or eligible to be included in the National Register of Historic Places.  Collocations are generally excluded from NHPA review as a result of an agreement with the industry called the National Collocation Programmatic Agreement, unless the collocation results in a “substantial change” in the size of the infrastructure (remember that phrase for later).

The wireless industry has asked the FCC to categorically exclude collocations of DAS/Small Cells from any NEPA/NHPA federal review.

Verizon went even further than the industry as a whole, asking for exemptions not only for collocations on existing antenna towers and buildings but also to facilities mounted on structures such as utility poles, water tanks, light poles, and road signs, thus excluding them from environmental review except for historic preservation and RF emissions exposure compliance. Imagine a stop sign with a wireless antenna on top!

In response to industry requests, the FCC is proposing in the NPRM to redefine “categorically excluded” facilities to include collocations on an “existing building, antenna tower, or other structure” (the change is adding the phrase “or other structure.”)  The FCC wants comment on this idea, as well as whether it should cover not only the antenna equipment but also the ancillary “ground” equipment associated with wireless facilities.

In addition to the above proposal, the FCC is also considering adoption of a new categorical exclusion from the NEPA/NHPA rules for DAS/Small Cell systems (different from the existing collocation exception that they propose broadening above.)

If they do adopt a new categorical exclusion, the FCC is asking how it should be defined.  They recognize that some DAS systems may have equipment similar to traditional wireless infrastructure and that may be inconsistent with a categorical exclusion, and would prefer creating definitions based on objective facts such as size, weight and location rather than just a category called “DAS”.

One industry proposed definition of equipment that would be categorically excluded would be:

  1. Equipment Volume. An equipment enclosure shall be no larger than seventeen (17) cubic feet in volume.
  2. Antenna Volume. Each antenna associated with the installation shall be in an antenna enclosure of no more than three (3) cubic feet in volume. Each antenna that has exposed elements shall fit within an imaginary enclosure of no more than three (3) cubic feet.
  3. Infrastructure Volume. Associated electric meter, concealment, telecom demarcation box, ground-based enclosures, battery back-up power systems, grounding equipment, power transfer switch, and cut-off switch may be located outside the primary equipment enclosure(s) and are not included in the calculation of Equipment Volume.  Volume is a measure of the exterior displacement, not the interior volume of the enclosures.

Any equipment that is concealed from public view in or behind an otherwise approved structure or concealment, is not included in the volume calculations.

Notably, a lot of “stuff” is not included in the calculations for this proposed exclusion from environmental processing.

Thirdly, the FCC asks if DAS/Small Cells should be included in the exclusion currently available (under the National Programmatic Agreement referenced above) for wireless infrastructure that:

  1. Are located in or within 50 feet of a right-of-way designated for communications tower or above-ground utility transmission or distribution lines
  2. Do not constitute a substantial increase in size over existing structures in the right-of-way in the vicinity of the proposed construction
  3. Are not located within the boundaries of a historic property
  4. Have provided the required notices to tribal organizations under the National Programmatic Agreement.

The FCC then asks about the same issues in the context of historic preservation and whether DAS/Small Cells should be eligible for categorical exclusion from historical preservation review.  In particular, whether the attachment of these facilities to telephone poles/street lamps in historic corridors should be categorically excluded, where the telephone pole/street lamps may be part of what makes the corridor “historic” in nature.

DAS is an ascendant technology, and you are going to be seeing it more in your local community in the future.

We would suggest that comments to the FCC on this section of the NPRM should point out the effect of any infrastructure (DAS included) on historic districts, and the importance of properly defining any exclusion that the FCC is thinking of granting to DAS/Small Cells.  In particular, you want to make sure that DAS facilities deemed exempt are not just a single provider site, but rather can accommodate multiple providers, otherwise you could face the real possibility of a DAS site for Provider 1 on one telephone pole, a site for Provider 2 on the next pole, a site for Provider  3 on the next pole, and so on.

Coming Next – Part 2 – Temporary Tower Exemptions from Environmental Processing.

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