Proposed Wireless Infrastructure Item Clarifies Rules Concerning Local Reviews to Speed 5G Deployments

A draft Declaratory Ruling and Notice of Proposed Rulemaking ("NPRM"), if adopted, would clarify the agency’s 2014 rules governing the process state and local governments use to review deployments of new antenna and equipment on existing wireless infrastructure and seek comment on a related proposal concerning excavations for such expansions. The clarifications, which are meant to speed the deployment of 5G infrastructure, largely mirror those sought in a pair of petitions for declaratory ruling filed by the Wireless Infrastructure Association ("WIA") and CTIA in the fall of 2019. Those petitions allege that despite the 2014 rules, states and localities continue to erect barriers that slow their ability to add new facilities to existing infrastructure. In comments on the petitions, states and localities contend that they are substantially complying with the rules and that any delays are caused by applicants or their contractors. However, the FCC apparently plans to move forward with adopting most, though not all, of the industry group clarification requests.

For those who have been following the FCC over the past three years under Chairman Pai’s leadership, the draft item builds on the agency’s multifaceted effort to pave a clear path for the private sector to deploy 5G technologies. Prior efforts include repurposing low-, mid-, and high-band spectrum for mobile wireless operations, reducing the circumstances under which wireless infrastructure deployments must undergo federal historic preservation and environmental reviews, and preempting states and localities from using review processes to slow the deployment of small cells.

The agency is set to vote on the item at its June 9, 2020, open meeting.

Declaratory Ruling Clarifying Local Review Rules

The draft Declaratory Ruling is meant to strengthen several of the rules the FCC adopted in 2014 to implement Section 6409(a) of the Spectrum Act of 2012. That section says that “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.” The Commission’s rules implementing the statute were meant to provide clarity and guidance to state and local governments and the wireless industry on how to apply the statutory directive. The WIA and CTIA petitions claim that certain conditions established by states and localities continue to impede the deployment of private 5G networks. Accordingly, the draft Declaratory Ruling addresses the following:

• Trigger for 60-Day Shot Clock – Under existing rules, state and local governments must approve or deny an eligible facilities request within 60 days or the request is deemed granted. The shot-clock begins on the day an applicant submits a request. The draft Declaratory Ruling would clarify that an applicant is deemed to have submitted a request when it “takes the first procedural step in a locality’s application process and submits written documentation showing that a proposed modification is an eligible facilities request.” This clarification is intended to preserve localities flexibility to structure their permitting procedures, but prohibit localities from treating applications as incomplete unless applicants comply with a series of time-consuming requirements.
• Other Shot Clock Clarifications – The Declaratory Ruling would also prohibit localities from delaying the triggering or starting of the shot clock by (1) “establishing a ‘first step’ that is outside of the applicant’s control or is not objectively verifiable”; (2) “defining the ‘first step’ as a combination or sequencing of steps”; (3) declining to accept documentation required under FCC rules to demonstrate the eligible facilities request conditions are satisfied or requiring the submission of other documentation; and (4) using requirements to obtain conditional use permits, variances, or other similar types of authorizations to cause delays. Additionally, it would establish the submission of a typical filing for a standard zoning or siting review as the first procedural step in jurisdictions that have not established specific procedures.
• Separation Between Existing and New Antenna ­– Under existing rules, a tower modification outside public rights-of-way would cause a substantial change if 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.” The Declaratory Ruling would clarify that “separation from the nearest existing antenna” means the distance from the top of the highest existing antenna to the bottom of the proposed new antenna that would be deployed above it.
• Equipment Cabinets ­– Under existing rules, the number of new equipment cabinets affects whether a modification would cause a substantial change. The Declaratory Ruling would clarify that “equipment cabinets” does not include “small pieces of equipment such as remote radio heads/remote radio units, amplifiers, transceivers mounted behind antennas, and similar devices” if they “are not used as physical containers for smaller, distinct devices.” It declines to determine that “equipment cabinets” means only those installed on the ground.
• Concealment Elements – Existing rules state that a modification would substantially change an existing structure if it would “defeat the concealment elements” of the structure that was originally approved. The Declaratory Ruling would specify that a “concealment element” is one “that is part of a stealth-designed facility intended to make a structure look like something other than a wireless facility” and was part of a prior approval. An attribute that minimizes the visual impact of a facility or that was not considered a concealment element at the time of initial approval would not be considered a modification. The FCC proposes to clarify that a proposed modification “defeats” a concealment element if it would “cause a reasonable person to view a structure’s intended stealth design as no longer effective.”
• Limits on Other Conditions – Existing rules provide that a modification is a substantial change if it does not comply with any other original “conditions associated with the siting approval.” The Declaratory Ruling would clarify that “conditions associated with the siting approval” can include aesthetic conditions to minimize the visual impact of a wireless facility as long as the conditions do not prevent modifications explicitly allowed by rules that would permit modifications based on antenna height, antenna width, equipment cabinets, and excavations or deployments outside the current site, and “so long as there is express evidence that at the time of approval the locality required the feature and conditioned approval upon its continuing existence.”
• Effect of Environmental Impact Agreements – Under existing rules, environmental impact assessments must occur when certain defined actions during construction of a facility might significantly affect the environment, including historic properties. The Declaratory Ruling would clarify that such assessments are not required when the FCC and applicants have entered into a memorandum of agreement to mitigate effects of a proposed deployment on historic properties if the only basis for the assessment was the potential for significant effects on such properties.

The Commission opted to issue an NPRM on one additional proposal in the WIA petition, regarding when a modification requires excavations. Existing rules provide that “[a] modification substantially changes the physical dimensions of an eligible support structure if . . . [i]t entails any excavation or deployment outside the current site” of a tower or base station, and is therefore not eligible for the streamlined procedures under the statute. Industry and localities disagree on whether “current site” means the boundaries at the time the tower was first approved or at the time the applicant seeks approval for a modification. WIA also asked the Commission to change its rules so that “a modification would not cause a “substantial change” if it entails excavation or facility deployments at locations of up to 30 feet in any direction outside the boundaries of a macro tower compound,” on the basis that colocation on existing towers is difficult to achieve without increasing the size of compounds. The NPRM seeks comment on these issues.

Democrats and Republicans Clash in Congressional Letters on Item

Democrats and Republicans on the House Energy and Commerce Committee sent competing letters to FCC Chairman Pai concerning the draft item. Democrats asked that he delay the vote on the item, saying that “under the guise of clarifying . . . existing rules, [it] would grant companies the right to expand existing cell sites without any regard to local processes” and without meaningful insight from local governments, who are currently burdened with responding to the ongoing coronavirus pandemic. Republicans urged the FCC to press forward with the vote, also evoking the coronavirus pandemic to assert that the item would reduce “unnecessary regulatory burdens,” which would further streamline deployment and facilitate connectivity that is even more critical “[d]uring these unprecedented times.”

At the FCC, the two Democratic commissioners, Rosenworcel and Starks, expressed support for delaying the vote.As of this writing, Chairman Pai and Commissioner O’Rielly have not commented on the delay request. Republican Commissioner Carr strongly supports the item and is leading the charge for its adoption. We expect the vote to proceed and the item to be approved largely unchanged.