FCC September 2013 Notice of Proposed Rulemaking (“NPRM”) aka “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 Provide  3 on the next pole, and so on.

PART 2:  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?

PART 3:  Directly affects your ability to regulate the placement of wireless infrastructure, and you should, if nothing else, respond to this part of the NPRM with comments to the FCC. 

Before we get to the meat of the matter, we need to cover a little background and history.  Remember back in Part 1 we discussed briefly the National Programmatic Agreement (the “NPA”), which exempted certain collocations from environmental and historical reviews (at the federal level) if they met certain criteria, including not “substantially changing” the size of existing infrastructure when collocating.

The NPA also gave parameters to what would constitute a “substantial change” so that you could determine if you needed to undertake NEPA(environmental) or NHPA (historical) review or were eligible for the exemption.

In 2012, the wireless industry was able to have Congress include a little paragraph in the 2012 Middle Class Job Creation and Tax Relief Act, known as Section 6409(a), which says that “notwithstanding 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.”

It goes on to define 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.

Finally, Section 6409(a) says that notwithstanding the above language, it shall not be construed to relieve the FCC from the requirements of the NHPA or NEPA.

Congress didn’t bother to define any of the terms contained in Section 6409(a) apart from what an “eligible facilities request” was.

In partial response to enactment of Section 6409(a), the FCC’s Wireless Bureau came out with “informal guidance” in January 2013 for local government to assist in interpreting what Congress meant by Section 6409(a).

In the “informal guidance” the Bureau took the NPA’s definition of “substantially change” and said that definition is what Congress intended to use, so that wireless collocations that did NOT meet the “substantially change” threshold would have to be APPROVED by local government.

The NPA definition of “substantially change is:

  1. the mounting of the proposed antenna on the tower would increase the existing 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, except that the mounting of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to avoid interference with existing antennas; or
  2. the mounting of the proposed antenna would involve the installation of more than the standard number of new equipment cabinets for the technology involved, not to exceed four, or more than one new equipment shelter; or
  3. the mounting of the proposed antenna would involve 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, except that the mounting of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to shelter the antenna from inclement weather or to connect the antenna to the tower via cable; or
  4. the mounting of the proposed antenna would involve excavation outside the current tower site, defined as the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site.

If the collocation causes at least one of the items above to be met, then it is a “substantial change” under the NPA.

That then brings us to the NPRM, and in Part 3, the FCC seeks to define all of those terms that Congress used but did not define in Section 6409(a), so as to avoid different interpretations based on judicial decisions, local interpretations, and other factors.

The NPRM also asks if, should the FCC define these terms and override local regulations that differ, there should be a timeline to phase in the federal rule to allow local government to revise their rules to harmonize with the federal rule.

The NPRM also notes that some states have enacted state laws that also create a streamlined approval process, some of which have different standards (specifically North Carolina….)

The NPRM asks for comments on how to define the terms Congress used in Section 6409(a).

For example, Verizon suggests that “existing wireless tower or base station” includes any structure, irrespective of whether it has communications equipment already or not.

With that definition, almost anything could be defined as a “collocation” which must be approved by local government under 6409(a) – building, streetlight, water tank, billboard, steeple.

It is imperative that local government file comments on how to define these terms to ensure that “collocations” are defined properly as additions to existing wireless infrastructure.

The NPRM also wants to know about “removal” and “replacement” definitions, since replacements of equipment that don’t substantially change the structure also are supposed to have mandatory approval.  As many applications we see now involve a provider upgrading/replacing equipment, particularly 4G installations, these definitions are also key to retaining some level of local regulation.  Most importantly, the NPRM asks if they should adopt the NPA definition of “substantially change” for Section 6409(a), and if so, what about situations where there are sequential incremental modifications which individually do not meet the “substantial change” definition but collectively do?

At what point could local government say the change is now “substantial” and mandatory approval is not required?  In addition, the NPRM asks if it should use different standards for concealed facilities.

Once past the definitions issue, the NPRM then tackles the question of what Congress meant by “may not deny and shall approve” and how to implement that language.

The FCC does tentatively conclude that the Section 6409(a) language applies to local government in a regulatory capacity and not as a landowner, so, for example, if you have a municipal tower and are leasing space to a wireless provider and another provider wants to collocate, or the existing provider wants to modify its facilities, you aren’t bound to approve that request as the landlord by Section 6409(a).

However, in your regulatory capacity, the FCC wants to know your thoughts “on whether, by directing that States and localities “may not deny and shall approve” covered requests, Section 6409(a) requires States and localities to approve all requests that meet the definition of eligible facilities requests and do not result in a substantial change in the dimensions of the facility, without exception and/or discretionary review.

We also seek comment on whether there are any special circumstances under which, notwithstanding this unqualified language, Section 6409(a) would permit a State or local government to deny an otherwise covered request.

We further seek comment on whether States and localities may make the grant of a covered request subject to conditions on or alterations to the request. If so, what types of conditions or alterations may they require that would be consistent with Section 6409(a)? In particular, we seek comment below on whether and/or to what extent States and localities may require any covered requests to comply with State or local building codes and land use laws and whether States and localities are required to approve an otherwise covered modification of a tower or base station that has legal, nonconforming status or that does not conform to a condition or restriction that the State or locality imposed as a prerequisite to its original approval of the tower or base station.

The NPRM also wants to know to what extent you as the local regulator may require any covered requests to comply with State or local building codes and land use laws.

  1. For example, must you grant a facilities modification request that would result in an increase in height above the maximum height permitted by an applicable zoning ordinance?
  2. Can you require a modification or collocation to be in compliance with general building codes or other laws reasonably related to health and safety such as load-bearing limits on applications that otherwise meet the standard for approval under Section 6409(a)(1).
  3. Can you condition the approval of a modification on the underlying structure’s compliance with the hardening standards under TIA-222 Revision G, Structural Standards for Antenna Supporting Structures and Antennas?
  4. What about your ability to deny an application for an otherwise covered modification if the structure, as modified, would not meet the fall zone or setback distance that your ordinance requires?
  5. What about facilities that were originally approved as concealed but the modifications proposed would diminish that concealment – do you have to approve those under Section 6409(a)?

As you can see, the FCC wants input from local government on all of these issues and it is in your interest to provide that input.  The NPRM also concludes, consistent with the January 2013 Informal Guidance, that Section 6409(a) does not preclude local government from requiring an application to be made by a provider seeking approval for a collocation or modification of an existing facility.

In fact, the FCC notes that the only way you can determine IF the proposal meets the Section 6409(a) requirements is to accept an application and review the information contained in it.

The NPRM also solicits comment on what should (and should not) be required to be provided as part of the application process, and also whether an application, once determined to be eligible under Section 6409(a), should be administratively approved or if it still can go before some sort of board or hearing for approval (keeping in mind the requirement that it must be approved).

The final portion of Part 3 of the NPRM deals with what happens once an application under Section 6409(a) is made.

The FCC wants to know if 90 days (the FCC’s “shot clock” timeline for collocation application processing”) is a sufficient timeline to approve these requests, or if a shorter timeline is appropriate given the fact that you must approve the application.

What happens if you enact a moratorium on all applications (to prevent applicants from making an application that has to be approved?)  The NPRM proposes that a moratorium will not have any effect on whatever timeline is adopted to approve these requests.

Finally, the NPRM’s last avenue of inquiry in Part 3 is what happens if local government fails to act on an eligible request within 90 days or whatever timeline standard is adopted.  Does the applicant go to court (as currently required under similar shot clock circumstances) to get their permit or should the application be “deemed approved” if not adjudicated in the required time, and if so, whether that conclusion effectively preempts all local regulation and raises 10th amendment constitutional issues about federal/state law. 

The FCC suggests as a solution that an aggrieved applicant file a Petition for Declaratory Ruling with the FCC alleging the local government’s failure to comply with Section 6409(a), and the FCC would then issue an opinion on the matter that would take precedence over the local government’s action (or inaction).  The FCC already does this in similar contexts, where local government attempts to regulate RF exposure, which is exclusively the domain of the FCC.

Part 3 of the NPRM could significantly alter local government’s ability to regulate collocations and modifications of wireless facilities.

The FCC should hear from you about how you feel about these proposals and you should provide them with examples of how these “collocations” and “modifications” frequently have serious impacts on the health, safety and welfare of your constituents, and the aesthetics of your community.  In Part 4 of our series, we’ll explore the final portion of the NPRM, dealing with what the FCC thinks should happen if you don’t meet the FCC’s “shot clock” timelines for adjudicating applications for collocations (90 days) or new towers (150 days).        

PART 4:  As we noted in our previous three summaries, the FCC is proposing new rules on wireless siting issues that may impact local government’s ability to regulate the placement of these facilities.

In Part 4 of the NPRM, the FCC expands upon some of the questions it touched upon in Part 3, in the context of timelines for adjudicating collocation applications, to address the timeline question for all wireless applications, both collocations and new facilities, and what happens under that timeline.  As before, some background is required.

In Section 704 of the 1996 Telecommunications Act, Congress said that local government should act upon applications for all types of wireless facilities within a reasonable period of time, and that an applicant aggrieved by a local government’s action or inaction could go to court to enforce Section 704.

In 2008, the wireless industry petitioned the FCC to define what was a “reasonable period of time.”  What resulted was the 2009 “Shot Clock” ruling, in which the FCC found that in states that did not otherwise already have a state law on the issue, an application for a collocation should be acted upon in 90 calendar days and a new facility within 150 calendar days.  The “Shot Clock” ruling noted some states had shorter timelines (for example, in Florida, you have 45 business days to act on a collocation application.)

Understandably, some local governments did not like the FCC sticking its nose into their business, and the cities of Arlington and San Antonio TX, among others, took the FCC to court arguing that it did not have authority to impose a timeline on when they had to act.  Ultimately the case ended up before the US Supreme Court, which decided this past June that the FCC did, in fact, have authority to impose the Shot Clock on local government.

Having received the Supreme Court’s blessing for its authority to impose the Shot Clock, the FCC in Part 4 of the NPRM turned to addressing what should happen if a local government failed to meet the Shot Clock timelines in processing an application.

Under the Shot Clock ruling, failure to meet those timelines meant that the applicant could go to court and seek a judicial decision that their application should be granted.  But the FCC noted that such a remedy isn’t really helpful because of the time it takes for a case to wind its way through the judicial system.

So the NPRM, while stressing that it isn’t intending to revisit the issues it decided in the 2009 Shot Clock ruling, invites comment on six issues associated with same that could stand some clarification:

  1.  Definition of collocation – under the Shot Clock, “collocations” have to be acted upon within 90 days – how should that be defined?  Should that mean collocations that are not “substantial changes” like in Section 6409(a) or any collocation whatsoever?
  2. Completeness of Application – under the Shot Clock, the time doesn’t start to run until an application is deemed “complete” (as long as the local government asked for additional info within 30 days of initial application).  The NPRM asks if it should clarify what “complete” means and when the clock should start running.
  3. Moratoria – The NPRM seeks comment on what happens to the Shot Clock if a local moratorium precludes making an application (thus preventing the clock from ever starting).  Since the Shot Clock ruling did not address moratoria, the NPRM wants comments on how that should be addressed.
  4. Applicability of the Shot Clock to DAS facilities.  Way back in Part 1 of this we discussed DAS/Small Cells and the NPRM’s proposals to exempt them from certain federal regulations.  In Part 4, the NPRM asks if DAS/Small Cells should be subject to the Shot Clock timeframes.  The NPRM preliminarily concludes that they should but requests comment on that conclusion.
  5. Preferences for municipal siting.  The wireless industry alleges that ordinances that create a preference for siting on public property over private property constitute “unreasonable discrimination” under Section 704 of the 1996 Telecommunications Act.  The NPRM wants comments on whether those preferences create discrimination in siting.  This is a very important item to comment upon to the FCC.  Local government that does express a preference in its regulations for siting on public property, in order to better plan and control the placement of wireless infrastructure in its community, would be severely harmed by a finding that such preferences in local ordinances are discriminatory.
  6. “Deemed Granted” remedy.  The NPRM wants comment on whether it should change the remedy for violations of the Shot Clock.  Now, an aggrieved applicant has to go to Court and get a judicial determination that it should be entitled to construct because the local government did not meet the Shot Clock.  The wireless industry wants the FCC to rule that if you don’t make a decision within the Shot Clock timeline, the application is “deemed granted” and you have no further say over its construction.  The FCC wants to know what you think about that idea and whether or not they even have the authority to make that the rule.

Responses to these items in Part 4, along with those regarding collocations in Part 3, should at a minimum be part of your community’s comments to the FCC.  Because of the federal shutdown and newly reopening we don’t have a timeline right now to file comments with the FCC, but we’ll post information once the timeline for comments is established and also instructions on how to file the comments electronically through the FCC’s ECFS (electronic comment filing system.)

For right now, please route this 4 part summary to your city or county attorney so they can help you prepare comments for filing with the FCC.  As we mentioned earlier, the timeline for filing will be 60 days from publication of the NPRM in the Federal Register, so once that date is established, we’ll let you know the deadline. 

Click here for entire FCC document.

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