FCC’s REPORT AND ORDER ON IMPROVING WIRELESS SITING POLICIES
Part 1 – Changes to Federal Rules – Exclusions from Certain Federal Requirements
The FCC’s Report and Order (the “Order”) released October 21, 2014 on Improving Wireless Facilities Siting Policies covered a lot of topics associated with local regulatory control of wireless siting issues, as well as a number of federal regulatory issues; our goal here in Part 1 is to summarize as clearly as feasible the decisions made by the FCC in this Report and Order regarding federal regulations and describe how those decisions may impact your local regulatory abilities when it comes to wireless facility siting. In Part 2, we’ll look at the issue of Temporary Towers and how the FCC deals with them relative to federal regulations, and in Part 3, we’ll deal with the rest of the Order and its impact on local regulatory siting issues.
The Order tackles a number of federal regulatory issues, particularly involving DAS (Distributed Antenna Systems) and small-cell systems.
Currently, anyone constructing a tower or wireless facility has to meet certain federal regulatory standards to comply with provisions of the National Environmental Policy Act of 1969 (NEPA) and Section 106 of the National Historic Preservation Act of 1966 (NHPA). The wireless industry asked the FCC to consider reducing or eliminating some of the NEPA and NHPA requirements for DAS and small-cell systems, because their “footprint” was much less than typical wireless facilities.
The Order makes 3 changes as it relates to NEPA regulations:
- It amends the existing NEPA categorical exclusion for antenna collocations on buildings and towers to clarify that it includes equipment associated with the antennas (such as wiring, cabling, cabinets, and backup-power equipment), and that it also covers collocations in a building’s interior,
- It amends the NEPA categorical exclusion for collocations to cover collocations on structures other than buildings and towers; and
- It 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.
NONE of these changes to the NEPA rules affect the existing RF exposure requirements in other federal regulations, which remain in full force and effect and applicable to all types of wireless facilities.
The Order then goes on to adopt two (2) new exclusions to the provisions of Section 106 of NHPA;
First, it excludes from Section 106 review collocations on utility structures, including utility poles and electric transmission towers,that meet the following conditions: (1) the antenna and any associated equipment, when measured together with any other wireless deployments on the same structure, meet specified size limitations; and (2) the deployment will involve no new ground disturbance.
Second, it excludes collocations on buildings and any other non-tower structures that meet the following conditions: (1) there is an existing antenna on the building or structure; (2) the collocation meets one of three alternative criteria for visibility, location, and size, as described in detail below; (3) the new antenna complies 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 involves no new ground disturbance.
The Order continues by saying that these two NHPA collocation exclusions are limited, however, 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 two new targeted exclusions address collocations on utility structures and other non-tower structures where historic preservation review would otherwise be required only because the structures are more than 45 years old. In addition to these two new exclusions, the Order further clarified that the existing exclusions for certain collocations on buildings under the Commission’s programmatic agreements extend to collocations inside buildings.
The FCC said they would continue to look at adopting further exclusions but needed to study the issue further and promised further action in 18-24 months on this particular point.
After stating the exclusions above, the Order discusses how to define a “small cell” and “DAS systems”. According to the FCC;
- “Small cells are low-powered wireless base stations that function like cells in a mobile wireless network, typically covering targeted indoor or localized outdoor areas ranging in size from homes and offices to stadiums, shopping malls, hospitals, and metropolitan outdoor spaces…Because these cells are significantly smaller in coverage area than traditional macrocells, networks that incorporate small-cell technology can reuse scarce wireless frequencies, thus greatly increasing spectral efficiency and data capacity within the network footprint.”
- “A DAS network distributes RF signals from transceivers at a central hub to a specific service area with poor coverage or inadequate capacity. As typically configured, a DAS network consists of: (1) a number of remote communications nodes deployed throughout the desired coverage area, each including at least one antenna for transmission and reception; (2) a high capacity signal transport medium (typically fiber optic cable) connecting each node to a central communications hub site; and (3) radio transceivers located at the hub site (rather than at each individual node as is the case for small cells) to process or control the communications signals transmitted and received through the antennas. DAS deployments offer robust and broad coverage without creating the visual and physical impacts of multiple macrocells. Further, whereas small cells are usually operator-managed and support only a single wireless service provider, DAS networks can often accommodate multiple providers using different frequencies and/or wireless air interfaces.”
The Order then provides additional details about the NEPA exclusions discussed above before moving onto defining certain terms and their applicability to NEPA and NHPA provisions. First up was “antenna” which is entitled to certain categorical exclusions from NEPA processing. The Order clarifies that the word “antenna” for purposes of the NEPA categorical exclusion to mean “all on-site equipment associated with the antenna, including transceivers, cables, wiring, converters, power supplies, equipment cabinets and shelters, and other comparable equipment.” In particular, the Order goes into great detail to stress that the categorical exclusion also applies to backup generators that are part of an installation. The Order further clarified that this NEPA exclusion for “antennas” mounted to a building also included antennas mounted inside a building, and then broadened the exclusion to include antennas mounted to other man-made structures besides towers and buildings, like utility poles and water towers (after dismissing some municipal concerns about water safety by creating a NEPA exclusion). Finally, the Order expands NEPA exclusions by creating a new exclusion for DAS and small cell facilities located in utility or public rights of way, which:
“…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.”
For purposes of this new exclusion, a “substantial increase in size” means an installation that 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.
The foregoing represents a summary of the changes the Order made relative to NEPA regulations and the new exclusions it created to the existing requirement of applicants to undertake Environmental Assessments when seeking to construct wireless facilities. This represents a reduction of federal regulation but doesn’t specifically address any local regulatory issues.
The Order continues by addressing NHPA and Section 106 obligations and new exclusions to those federal regulations. Section 106 requires certain wireless facilities, if they have the potential to adversely affect historic properties, to submit an Environmental Assessment, even if it wasn’t required under NEPA because of an otherwise applicable exclusion. In determining whether an application has the potential to affect historic properties, the FCC has previously established certain exclusions from Section 106 review, including collocations on towers (subject to certain exceptions) as well as buildings or other non-tower structures outside of historic districts 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; (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.
With that background, the Order created a number of new exclusions from NHPA review;
- Collocations on existing utility structures, including utility poles and electric transmission towers, 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.
- Collocations on a building or other non-tower structure, 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 exclusion is extended 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.
Finally, the FCC clarified that the existing exclusions regarding collocations of wireless facilities on building for NHPA purposes also applied to wireless facilities located within buildings.
All of the foregoing is an effort by the FCC to make it easier for wireless providers to deploy infrastructure, particularly small cell systems and DAS systems, by creating exclusions to certain federal environmental and historical regulations for these types of systems. While this part of the Order does not directly impact local regulatory issues, some of the definitions in this part of the Order must be considered for inclusion in your local regulations so that there can be apples to apples comparisons when reviewing wireless facility applications.
Part 2 – Changes to Federal Rules – Temporary Towers
In Part 2, we’re going to talk about the changes the Order has made when it comes to temporary towers (sometimes called “COWs” for “cellular on wheels”).
First, some background. Many towers require registration and approval from both the FCC and the FAA. The FAA issues what is called a “No Hazard Determination” and the FCC issues an Antenna Structure Registration (“ASR”). Typically, if your tower is high enough to require a No Hazard Determination from the FAA, you also have to get an ASR from the FCC. To get an ASR, you have to jump through certain hoops.
Previously, the FCC required owners of proposed towers, including temporary towers, that require registration 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, as applicants must provide public notice, allow 30 days for the filing of any requests for further environmental review, and then wait for the FCC to clear the tower for construction.
There are some existing exceptions to this rule, and the wireless industry had previously asked the FCC to create an exemption for temporary towers so that they could be put up quickly either prior to a scheduled event or after an emergency situation. The FCC did previously give the industry an interim exemption from the ASR public notice requirements in 2013 for temporary towers that:
(1) would be in use for 60 days or less,
(2) required the filing of a Form 7460-1 with the FAA, (the “No Hazard Determination”),
(3) did not require marking or lighting pursuant to FAA regulations, and
(4) would be less than 200 feet in height.
In considering making the interim exemption to the ASR public notice requirement permanent in some form, the FCC in the Order looked at the situations where temporary towers were typically deployed, covering a variety of scenarios:
(1) newsworthy events that occur without any prior notice and require immediate deployments, such as natural disasters;
(2) other events that occur with less than 30 days advance notice, such as certain political events and parades for sports teams;
(3) events for which the timing and general location are known in advance, but where the specific locations for temporary towers are unknown until days before the event, such as state fairs and major sporting events; and
(4) situations in which unexpected difficulties with permanent structures require the deployment of temporary towers while permanent facilities are repaired.
After considering these issues, the Order granted a permanent exemption from the ASR public notification requirements, with certain conditions. The exemption will only be applicable to 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.
In addition, the Order stated that the exemption could NOT be used if the temporary tower would otherwise trigger an Environmental Assessment (“EA”) under NEPA (discussed in Part 1). For example, if the construction of a temporary tower created a hazard to migratory birds, and thus triggered the need for an EA, the applicant would still have to go through the ASR application process and provide national and local notice for the required 30 days.
The Order further clarified that temporary towers that qualified for this exemption would likewise not be obligated to provide post-construction notice in the ASR process. Previously, if you got an exemption from the pre-construction ASR notification because of an emergency, you would later have to still provide that notification and wait the required 30 day period because the temporary emergency deployment could be for an extended period of time. Since the time limit for the facilities eligible for the exemption is only 60 days (subject to extension as discussed below) the FCC saw no reason to compel post-construction notice since the tower would be gone by the time the notification period was completed.
The FCC did permit temporary towers eligible for the exemption to have a single extension of up to 60 days, and only upon a showing that the need to keep the exempted temporary tower in place beyond the initial 60 days is due to changed circumstances or information that emerged after the exempted temporary tower was deployed.
The FCC pointed out that it had several communities express concerns that a temporary towers exemption would eliminate local review (including local environmental review) and antenna structure registration requirements. It made it clear that the exemption it was adopting did neither of those things, saying:
“First, the temporary towers measure does not exempt any deployment from any otherwise applicable requirement under our rules to provide notice to the FAA, to obtain an FAA “no-hazard” determination, or to complete antenna structure registration. Nor does the exemption impact any local requirements. Further, we provide, 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 our rules.”
Finally, to address concerns for abuse of the rule by the wireless industry in putting up and taking down “temporary towers” every 60 days to avoid the notice requirement, the Order 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.
So what should be your take-away from this part of the Order?
- The exemption granted by the FCC to certain temporary towers has NO effect at all upon your local regulations, which should address temporary towers; and
- The FCC’s defined parameters of eligible temporary towers should be used by local government in defining the type of temporary towers that could be put up in your community without significant regulation, for no longer than the prescribed period of time (60 days).
Tracking the FCC’s standards in your local regulations gives you a much more defensible position when it comes to someone challenging the reasonableness of those regulations because you’ve adopted the same standards as the FCC has used.
Part 3 – The Big Lebowski – Implementing Federal Law on Local Siting
Now let’s tackle the big issues for local government in Part 3 of our breakdown of the Order. We’re going to break this up into two smaller sections, because there’s a lot of material here:
Section A – Defining the Terms
In the final portion of the Order, the FCC takes up multiple issues arising from the various federal laws and rules that have been passed affecting wireless infrastructure siting since the 1996 Telecommunications Act. For clarity purposes going forward, let’s define what we’re going to be talking about:
- Section 704 of the 1996 Telecommunications Act – this “preserved local zoning authority” but required local government to not discriminate amongst wireless providers and not block the deployment of wireless networks – we’ll call this “Section 704” throughout;
- The 2008 Declaratory Ruling by the FCC – this established at timeline for local government to process both collocation applications (90 days) and new wireless applications (150 days), which we’ll call the “Shot Clock” because everyone else does.
- Section 6409 of the 2012 Middle Class Tax Relief and Job Creation Act. This mandated that local governments shall approve and may not deny an eligible facilities request for collocation if there is not a “substantial change” in an existing “tower or base station”. But Congress failed to define many of the parameters. We’ll call this “Section 6409”. The relevant portions of text from Section 6409 is as follows: “[n]otwithstanding section 704 of the Telecommunications Act of 1996 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. An eligible facilities request is one that requests 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
The Order first sets its sights on defining and clarifying Section 6409, and so we’ll focus on that in this Section. After acknowledging that Congress didn’t provide a lot of guidance on what it meant by some of the terms used in Section 6409, the FCC decided to provide some definitions and rules of interpretation, saying that “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.”
The FCC then started by providing definitions for:
- “wireless tower or base station,”
- “transmission equipment,”
- “collocation,” and
- “substantially changes the physical dimensions.”
Defining these terms, according to the FCC, will enable better navigation through the Section 6409 language above to determine if an application “shall be approved”.
So, what is “transmission equipment” and what is a “wireless tower or base station”? According to the FCC, “transmission equipment” for purposes of Section 6409 means ) any equipment used in connection 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.
A “wireless tower or base station” then is any infrastructure that supports equipment used for all Commission-licensed or authorized wireless transmissions.
Standing alone, this represents a HUGE expansion of the realm of possible structures that collocated wireless communications facilities could be placed on with compulsory approval under Section 6409. For example, using this language, a commercial wireless provider could argue for a Section 6409 compulsory approval of their equipment on a residential home with a amateur wireless tower on it or even a DirecTV satellite dish (the home being infrastructure supporting equipment used for Commission licensed wireless transmissions). As we’ll see later, the FCC did provide some limitation on this definition.
The Order also reaffirms that broadcasting infrastructure is also considered a wireless tower or base station for purposes of Section 6409 AND that transmission equipment includes antennas, cables, and auxiliary power equipment, such as generators.
Getting even more specific, the Order defines a “tower” as a structure built for the sole or primary purpose of supporting any Commission-licensed or authorized antennas and their associated facilities.
It defines “base station” as 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.
Going further, it then says an “existing base station” is 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.
The Order points out its agreement with local government’s 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. In other words, there’s got to be some kind of equipment in place in order to support a collocation request. However, as noted above, the universe of type of equipment has expanded dramatically because of the way it has been defined.
The FCC did throw a bone to local government at the end of this part, saying
“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).”
In other words, a collocation application under Section 6409 has to be for a location that has at least once previously been reviewed for some type of local regulatory approval of communications services.
They went on to state 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, finding that interpretation 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.
Then to bring it all home, and clarify some of the definitions above, the FCC stated (when talking about the use of “existing” above) that this definition would be beneficial to local government because:
“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), we ensure 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.
So that’s a little bit of a relief – when we talked above about what constituted a wireless tower or base station, remember the FCC’s new definition expanded the universe of possible facilities significantly. In this final portion of the definitions of these items, the FCC clarified that only those wireless towers or base stations that have undergone zoning or some other regulatory review will be eligible for processing of Section 6409 collocations. This, however, does not change the scenario we described above, because if an amateur facility on a residential structure is granted zoning approval, in theory a commercial wireless facility could now be located on that same “tower or base station” using Section 6409. The net effect of this is that local government is going to have to more stringently regulate and approve a lot of OTHER type of infrastructure initially because of its potential to be used for commercial wireless collocations.
And speaking of collocation, the FCC then turned to the remaining definitions.
For collocation, the Order defaults back to prior FCC regulations in coming up with a definition, and said it defined:
“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,” as discussed above. Consistent with the language of Section 6409(a)(2)(A)-(C), we also find 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.”
Collocation, for the purposes of Section 6409, does NOT mean only on infrastructure that already had transmission equipment installed on it. But in the same way the FCC went through its contortions to define base station and tower as being something that’s been through some sort of prior local zoning approval, the same theory applies here. As long as the structure has been through some sort of local zoning approval, putting wireless equipment on it will generally be a “collocation” for Section 6409 purposes, subject to the final standards about not substantially changing the structure.
The FCC’s final word on this is as follows: “….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.” Note also that the Order affirmed that removal or replacement of transmission equipment on an existing structure, AND the strengthening/hardening of the underlying structure for collocation, replacement or removal of equipment could also be an eligible facilities request and thus subject to Section 6409 compulsory approval, but that replacement of underlying infrastructure was NOT covered by this definition. And of course, any such “strengthening” or “hardening” of the structure would have to not constitute a “substantial change” to be eligible.
Which takes us to the definition of “substantially change” as used in Section 6409. The Order looked to the existing 4 part FCC definitions of that term, and unbelievably, actually made them more complicated; Under the new FCC definition;
“Specifically, and for the reasons discussed below, we provide that a modification substantially changes the physical dimensions of a tower or base station if it meets any of the following criteria:
(1) (a) for towers outside 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; (b) 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) (a) 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; (b) 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. We further provide 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 Section 6409.
Simple, right? It’ll be so easy now to determine if a proposed wireless facility modification constitutes a “substantial change” that makes it ineligible for Section 6409 approval.
Putting aside the sarcasm above, the Order took the existing definition and layered new subparts to it, removed some exceptions, and added two new conditions.
First, for purposes of measuring height and width of modifications, you now have two different standards, depending on whether the existing infrastructure is within a public right of way or not. The stricter parameters for structures within a right of way were imposed to provide greater protection to aesthetics and safety within rights of way. The FCC made a point of stating that these standards would apply to infrastructure that either was built for communications purposes or not, so for example a existing light stanchion and a new DAS pole in the same right of way would be subject to the same standards for determining if a change to either was “substantial”.
The Order removed prior exceptions to these height and width limits that existed for interference or weather related reasons and allowed changes in excess of these dimensions to NOT be considered “substantial” for those specified reasons. The FCC said there was no longer any justification for such exceptions.
And most importantly, those height and width changes are measured from the original locally approved wireless infrastructure facility, and not from any interim modifications or changes that may have transpired.
The Order clarified that for the “excavation” component of the test, the word “site” would mean, for towers outside of a public right 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. For towers within a right of way and all base stations, “site” would mean the “…area in proximity to the structure and to other transmission equipment already deployed on the ground.”
Finally, the Order added two new elements to the definition of “substantial change”. One is if the modifications have the effect of defeating or diminishing the concealment aspects of an existing facility, it will be a “substantial change”. That seems pretty simple and noncontroversial, and both local government and industry seemed in agreement about that factor. The second new element is more complicated; The FCC said it was agreeing with local government’s comments:
“…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 we identify above. 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 we adopt above, and other conditions of approval placed on the underlying structure. This approach, we find, properly preserves municipal authority to determine which structures are appropriate for wireless use and under what conditions.”
So what does that new standard mean? Well, supposed you have previously approved a non right of way tower to be constructed at 100 feet and approved it conditioned upon it not being able to be increased in height more than 10 feet. A Section 6409 eligible request to collocate and add 20 feet to the tower is made. Since that exceeds your prior conditions (10 feet) but does not violate the “substantial change” standards (10% or 20 feet, whichever is greater), this would NOT be a substantial change, assuming all other factors met the test as well. Now suppose you allowed a 100 foot tower to be built in the same circumstances, but with a 30 foot increase height limitation. A request for collocation to add 30 feet to the tower would ordinarily exceed the “substantial change” definition of 10% or 20 feet and thus would NOT be eligible under Section 6409, but because you allowed an increase to 30 feet, it would still be eligible under Section 6409 because you agreed to broaden the standards when originally approved.
The Order affirms that these standards apply equally to legally nonconforming structures in your jurisdiction. They too will be eligible for Section 6409 modifications.
Finally, the FCC pointed out that wireless facility modifications under Section 6409 should remain subject to building codes and other non-discretionary structural and safety codes. In particular, they clarified that Section 6409 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.”
What does this mean for you as a local government? Well, first and foremost, even if you recently updated your regulations, you’re going to have to edit them again since the definitions have all changed. Secondly, and more importantly, because of the broadening of the definition of “tower” and “base station” by the FCC, you are going to have to review and regulate in much greater detail a much broader swath of infrastructure in terms of its initial construction because of its potential to now be used for commercial wireless infrastructure. That means, for example, you may need to now regulate amateur radio operators who ordinarily enjoy a limited federal preemption from regulation (PRB-1, adopted by most states as a statutory preemption) to preclude use of their non-commercial amateur facilities as commercial wireless infrastructure under Section 6409….And they aren’t going to be happy about that.
Section B(1) – Time to Act and Remedies for Inaction
To paraphrase Steve Miller, “time keeps on ticking…ticking…into the future”. Having established the definitions needed to determine if an application could be processed using Section 6409, the Order then turned to what applicable timeline should be used for the process.
The Order first acknowledged that applications must be provided to local government from parties claiming Section 6409, so that local government has the opportunity to review applications to determine whether they are covered by Section 6409, and if not, whether they should in any case be granted. However, the Order said that (1) the information to be provided in these applications will be limited and (2) the time for review of these applications will be limited.
With respect to application content, the Order says that “local governments may only require applicants to provide documentation that is reasonably related to determining whether the request meets the requirements of [Section 6409].” The Order does NOT say what those reasonably related documents might be, rather that “local governments have considerable flexibility in determining precisely what information or documentation to require…” but that local government “may not require documentation proving the need for the proposed modification or presenting the business case for it.”
As to timeline, the Order SHORTENS the prior 90 day collocation timeline under the Shot Clock to 60 DAYS for Section 6409 applications. Local government can toll the 60 day clock by giving notice to the applicant within the first 30 days of incompleteness of their application, but the notice must specify the missing information and supporting documents that are reasonably related to determining whether the request meets the requirements of Section 6409. The clock will start again when the applicant re-submits, but can be tolled again if the local government gives notice within 10 days of the resubmission of continued missing material. The Order clarifies also that the 60 day clock for Section 6409 applications continues to run even if your community enacts a moratorium. IF, after reviewing a proposed Section 6409 application, you determine that it isn’t eligible for Section 6409 processing because it constitutes a “substantial change” as the Order has now defined that term, then the 90 day timeline from the Shot Clock ruling kicks in, starting from the day you decide the application is not Section 6409 eligible, and you have to process the collocation or modification application under the Shot Clock.
As to what happens if you don’t act on a Section 6409 application within 60 days (subject to the tolling provisions above), the Order adopts a “deemed granted” remedy. The Order said Congress was clear in using the “shall approve, and may not deny” language in Section 6409 that if the application is eligible, it must be approved. Thus in the FCC’s opinion the “deemed granted” remedy is the only correct choice, though it did add that “…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 our rules has expired, that the application has been deemed granted.”
Although the Order adopts this remedy, it suggests that this remedy isn’t necessarily the last word on the subject. Acknowledging that judicial determination may be necessary, the Order goes on to say:
“…Accordingly, we require parties to bring claims related to [Section 6409] 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 applicant 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 making that determination, the Order said that …. “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] 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.”
So the takeaway from this part of the Order is that Section 6409 applications must be tailored to request permissible information and then must be acted upon quickly in order to avoid a “deemed granted” remedy. This will require local government to change regulations and procedures to avoid the “deemed granted” pitfall. Even with all of that, you will still have the opportunity to go to court to challenge a Section 6409 application.
Section B(2) Government as Landlord
The Order continues by pointing out that Section 6409 applies only to local government in its regulatory capacity and NOT as a landlord. Should you choose in your capacity as a landlord to limit the number and type of applicants on your public property infrastructure, you will not be burdened by Section 6409.
Section B(3) Effective Date
The Order did acknowledge that the changes it was implementing would require changes in local government’s procedures, and so the Order’s new rules don’t take effect until 90 days after publication of the Order in the Federal Register. That has not yet happened, so the earliest effective date will be sometime in early 2015 for these new rules.
Section B(4) “Complete” Applications
Having tackled the big issues, the Order did some housekeeping matters that are somewhat important.
First, as it relates to Section 704 and the Shot Clock ruling, the Order sought to provide clarity as to some issues.
Previously, the Shot Clock timeline was considered to have started running when an application was deemed “complete”. But the Order says that is a wrong interpretation. The Shot Clock timeline starts when the application is SUBMITTED. Local government can then “stop” the clock within the initial 30 days by saying the application is incomplete. The time starts running again when the applicant re-submits with the missing information. Local government can then “stop” it again within 10 days of resubmission by again identifying missing information, and it will again start running upon the 2nd resubmission. After that you can’t stop the clock because of incompleteness.
In order to stop the clock, local government’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.” Beyond that guidance, the Order declined to further elaborate on what made a “complete” application.
Section B(5) Moratoria
Just as noted in the discussion above regarding Section 6409’s 60 day shot clock, moratoria will likewise not stop the timeline of days for “substantial change” collocations (90) or new towers (150) under the Shot Clock ruling. The Order finds that 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.”
If that happens and an applicant goes to court to force a decision because you’ve not met the Shot Clock timelines, a court is going to look to the FCC and this Order to determine if your moratoria is reasonable and you’re going to have to prove how and why it was reasonable. The Order also declined to rule that a moratorium in excess of 6 months was a per se violation of the obligation to act in a reasonable time, leaving that decision up to the courts as well.
Section B(6) DAS & Small Cells
Continuing its grab bag of rulings, the Order rolls on to discuss the applicability of Section 704 and the Shot Clock to DAS & Small Cell installations. The Order makes clear that both of those regulations apply to DAS and Small Cell facilities, including third party facilities that serve as neutral host DAS deployments. So long as the installation is part of “ …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.”
Section B(7) Section 704/Shot Clock Definition of Collocation
Moving along to more esoteric material, the Order then considered how to define collocation for purposes of Section 704 and the Shot Clock (as opposed to Section 6409). Remember that for purposes of determining which Shot Clock timeline (90 or 150) to follow, a collocation was defined to mean placing an antenna on an existing structure as long as it did not involve a “substantial increase….in size” as that was defined in other FCC documents.
After first considering adopting the same test as it did above for Section 6409 collocations, the FCC rejected that approach as being too stringent for the Shot Clock purposes. For Section 6409 purposes, the definition was to determine if a local government “shall approve, and may not deny” an application, and thus it needed to be very refined. For the Shot Clock purposes, the FCC decided to keep the original standard it had applied in the Shot Clock proceeding, which is the 4 part standard starting with 10% or 20 foot height increase that you should all be familiar with and should have already integrated into your regulations.
What this means is separate definitions in your regulations for Section 6409 eligible applications and other traditional collocations that are not Section 6409 eligible.
Section B(8) Preferences for Deployments on Municipal Property
In an important nod to local government, the FCC said in the Order that it would NOT find establishment of a preference for siting on public property in local regulations to be a per se violation of Section 704’s requirements to not discriminate amongst providers. The Order said while some preferences coupled with onerous regulations could have that effect, those decisions would have to be made on a case by case basis.
As we frequently advocate for establishing preferences on public property (because you can control deployment better as a landlord than as a regulatory entity), the preservation of this ability is an important tool for local government.
Section B(9) Remedies for Shot Clock violations
Finally, the FCC considered whether to change the remedies available for applicants who don’t get action on their applications within 90 or 150 days, as applicable, under the Shot Clock ruling. The FCC decided NOT to adopt the “deemed granted” remedy it gave in the Section 6409 context but rather preserve the existing remedy for the applicant to go to court and ask for expedited review of the local government’s failure to act, which the FCC said seems to have worked adequately so far.
Thankfully, the FCC called it quits at that point, having addressed all of the issues which it said it would consider when it first issued the Notice of Proposed Rulemaking. The FCC considered hundreds of comments from both industry and local government in coming to its findings. Although clearly not everyone is happy about the Order, the FCC did at least clarify a number of murky items that led to different results in different jurisdictions because of different interpretations of what Congress or the FCC “meant” in some of its language.
It is entirely possible that the Order will be challenged by parties in court, much like the Shot Clock was all the way up to the US Supreme Court. However, based on the deference that the Supreme Court gave the FCC in the Shot Clock case, we suspect these new rules will likely stick around until the FCC decides to tweak them further, which may happen sooner than later given some of the changes made here, in particular the expansion of the universe of “eligible facilities” that can support Section 6409 collocations. We think that may have some unintended consequences that may cause the FCC to revisit that issue.
Look for information soon on a webinar we’re going to put together to try and cover the highlights of the Order in an hour long presentation. Of course, should you have any specific questions, we’re always available to assist.
Thanks for staying on the ride until the end. Please check that you’ve taken all your belongings before departing the train.