Part 2 of our 4-part discussion of the FCC’s recent Notice of Proposed Rulemaking (“NPRM”)

“Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies.”

As we noted in Part 1, the FCC is proposing new rules on wireless siting issues that may impact local government’s ability to regulate the placement of these facilities.

Part 1 discussed proposed new federal rules for the siting of DAS/Small Cell facilities, either as collocations or as new facilities.

Part 2:  Proposes rules for the siting of temporary towers, and is the section least affecting local government.

The NPRM proposes to permanently exempt “temporary” towers from the environmental review, historical review, and federal antenna structure registration requirements provided the structures meet certain requirements.

By way of background, most antenna structures require (in addition to the environmental review and historical review that we’ve talked about) registration with the FAA and FCC (Antenna Structure Registration,) to ensure that structures of certain heights are painted and illuminated to avoid creating a hazard to aviation.

“Temporary” towers become necessary when there are large crowds gathered for events, weather disaster areas or miscellaneous reasons. At the wireless industry’s prior request, the FCC had granted an interim waiver to exempt temporary facilities from environmental review if they are up for less than 60 days, require notification to the FAA, do not require lighting or painting, are less than 200 feet in height, and involve little or no excavation.   The NPRM proposes to make that interim waiver (and its standards) permanent.

The FCC asks if the standards are reasonable, in particular the 60-day limitation.  Many jurisdictions that address temporary structures use 60 days as a measuring stick, so the FCC’s proposal for 60 days appears to be reasonable and consistent with many local regulations.

The NPRM does ask what the FCC should do if the “temporary” facility ends up being needed more than 60 days – think about the facilities that had to be built after Hurricane Sandy in NJ last year, and the timeline for replacing the permanent infrastructure that was destroyed.  Should those “temporary” facilities then have to go through the environmental and historical review process?

Next up are the two sections of the NPRM that most affect local government – Part 3, which discusses implementing Section 6409(a) of the 2012 Middle Class Job Creation and Tax Relief Act (now found at 47 USC Section 1445(a)) relating to wireless applications that local government MUST approve, and Part 4, dealing with the FCC “shot clock” and what happens to wireless applications that aren’t addressed in the shot clock window.

Click here for the entire FCC Document

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