At the FCC’s October Open Meeting on October 17, the Commission unanimously adopted a Report and Order to update its rules and procedures for new and modified antenna structures. In the News Release following the vote, the Commission noted the new rules are expected to create the foundation for increased advanced wireless broadband deployment nationwide. In their comments at the Open meeting, the Commissioners focused on the effect the new rules will have to facilitate Distributed Antenna Systems (“DAS”) and small cell deployment.
The full text of the Report and Order has not yet been released. The new rules will take effect 90 days after it is published in the Federal Register. The longer period was a concession to Commissioner Clyburn’s concerns about the burdens on state and local governments to comply with the new rules, which will impose a “shot clock” on state and local government review. The Report and Order will focus on five key areas to address wireless infrastructure deployment:
1) The current National Environmental Policy Act (NEPA) review process currently has an exclusion for certain antennas attached to existing structures. The Report and Order will expand the exclusion to include additional changes to structures, such as larger dimensions to antennas attached to the structure.
2) The state historic preservation officer (SHPO) review in the current rules will be updated to add exclusions for non-substantial changes to structures although not in areas designated as historic sites. The FCC also looks at broader program alternatives with the Tribal Nations and SHPO’s for streamlining the review process. Commissioner Pai specifically noted that a new National Programmatic agreement was expected in the next 18-24 months which would address these issues, as well as other matters, to further ease deployment.
3) The Report and Order will update the state and local government review process for new towers and modifications to existing structures. The Report and Order will define additional terms and adopts rules to clarify and implement statutory limitations on State and local government. Specifically, the Report and Order will establish a 60-day “deemed granted” remedy when state and local governments fail to act within that two-month time frame on an eligible facilities modification request under Section 6409(a) of the Spectrum Act.
4) The Commission’s Section 332 antenna siting “shot clock” requires state and local governments to act within “reasonable time”. The newly adopted Report and Order includes injunctive relief for tower owners in the event state/local entities do not comply with the shot clock, thereby providing further teeth to the Commission’s interpretation of Section 332 to facilitate deployment.
5) Finally, the Report and Order codifies the Commission’s waiver previously granted to allow temporary towers on a streamlined basis. Particularly, temporary towers are not subject to the 30-day notice requirement.
In Commissioner Clyburn’s statement at the Open Meeting adopting the Report and Order, she confirmed that her vote in favor of the Order was also the result of CTIA and PCIA reaching an agreement to a series of actions with state and local governments to aid transition to the new rules. CTIA and PCIA agreed to:
1) Provide information to state and local governments with limited resources of processes and resources established in other jurisdictions.
2) Provide/conduct educational webinars for state and local governments on the application process and FCC rules.
3) Assist in drafting sample ordinances for state/local entities to use in their review process.
4) Provide a checklist for entities to use in association with the streamlined process
The Commission is expected to release the complete Report and Order in the near term. While the new rules are expected to expedite DAS and small cell deployment, the new rules will impact any company seeking to construct new towers for wireless services.