FCC Rules on Wireless Facility Siting Order
Last month, the Federal Communications Commission (FCC) adopted a "Report and Order" that takes steps to increase broadband deployment. Prior to the order, the FCC sought input on Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 ("Spectrum Act"), which prohibits local governments from denying eligible facilities' requests to modify existing wireless towers or stations if the modification does not substantially change the dimensions of the facility.
In comments, NLC, along with the U.S. Conference of Mayors, the National Association of Counties, and the National Association of Telecommunications Officers and Communications Officers filed in February and March, the groups urged the FCC not to adopt formal rules that would preempt local zoning and permitting authority or impose a one-size-fits all approach. Unfortunately, while the FCC's Order addressed some of the concerns raised by the groups, it fell short of our request and imposes a short window, only 90 days, following publication in the Federal Register before the rules are to be implemented.
There was a potential positive result for cities as a result of the proceeding. In response to a request from FCC Commissioner Mignon Clyburn, CTIA - The Wireless Association® and PCIA - The Wireless Infrastructure Association expressed their interest and willingness to work with municipal government representatives after adoption of the Order on developing materials and gathering information that will foster a greater understanding of Section 6409(a) and facilitate timely and consistent wireless facility modifications. Both associations also made specific commitments related to this expression. NLC will be vigilant in working with Commissioner Clyburn to ensure these commitments are met.
The FCC will hold a webinar to review the details of the Order on Tuesday, December 2nd at 1pm.
Below is a detailed summary of the provisions of the regulation with the greatest impact on cities:
Section 6409(a) of the Spectrum Act
The FCC adopted rules and clarified terms to implement and enforce Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 (Spectrum Act). These include:
- Clarify that Section 6409(a) applies to support structures and to transmission equipment used in connection with any Commission-licensed or authorized wireless transmission;
- Define "transmission equipment" to encompass antennas and other equipment associated with and necessary to their operation, including power supply cables and backup power equipment;
- Define "tower" to include any structure built for the sole or primary purpose of supporting any Commission-licensed or authorized antennas and their associated facilities;
- Clarify that the term "base station" includes structures other than towers that support or house an antenna, transceiver, or other associated equipment that constitutes part of a "base station" at the time the relevant application is filed with State or municipal authorities, even if the structure was not built for the sole or primary purpose of providing such support, but does not include structures that do not at that time support or house base station components;
- Clarify that a modification "substantially changes" the physical dimensions of a tower or base station, as measured from the dimensions of the tower or base station inclusive of any modifications approved prior to the passage of the Spectrum Act, if it meets a defined set of criteria;
- Provide that States and localities may continue to enforce and condition approval on compliance with generally applicable building, structural, electrical, and safety codes and with other laws codifying objective standards reasonably related to health and safety;
- With regard to the process for reviewing an application under Section 6409(a), provide that:
- A State or local government may only require applicants to provide documentation that is reasonably related to determining whether the eligible facilities request meets the requirements of Section 6409(a);
- Within 60 days from the date of filing, accounting for tolling, a State or local government shall approve an application covered by Section 6409(a); and
- The running of the period may be tolled by mutual agreement or upon notice that an application is incomplete provided in accordance with the same deadlines and requirements applicable under Section 332(c)(7), as described in the Order, but not by a moratorium;
- Provide that an application filed under Section 6409(a) is deemed granted if a State or local government fails to act on it within the requisite time period;
- Clarify that Section 6409(a) applies only to State and local governments acting in their role as land use regulators and does not apply to such entities acting in their proprietary capacities; and
- Provide that parties may bring disputes-including disputes related to application denials and deemed grants-in any court of competent jurisdiction. The Commission will not entertain such disputes.
Section 332(c)(7) of the Communications Act
The Commission has taken the following actions:
- Clarify, with regard to the Commission's determination in the 2009 Declaratory Ruling, that a State or municipality may toll the running of the shot clock if it notifies the applicant within 30 days of submission that its application is incomplete. Details of tolling and in complete applications are:
- The timeframe begins to run when an application is first submitted, not when it is deemed complete by the reviewing government;
- A determination of incompleteness tolls the shot clock only if the State or local government provides notice to the applicant in writing within 30 days of the application's submission, specifically delineating all missing information, and specifying the code provision, ordinance, application instruction, or otherwise publically-stated procedures that require the information to be submitted;
- Following an applicant's submission in response to a determination of incompleteness, the State or local government may reach a subsequent determination of incompleteness based solely on the applicant's failure to supply the specific information that was requested within the first 30 days;
- The shot clock begins running again when the applicant makes its supplemental submission; however, the shot clock may again be tolled if the State or local government notifies the applicant within 10 days that the supplemental submission did not provide the specific information identified in the original notice delineating missing information;
- Clarify that the presumptively reasonable timeframes run regardless of any applicable moratoria;
- Clarify that where DAS or small-cell facilities, including third-party facilities such as neutral-host DAS deployments, are or will be used for the provision of personal wireless services, their siting applications are subject to the 2009 Declaratory Ruling and the presumptively reasonable timeframes it established; and
- Decline to adopt an additional remedy for State or local government failures to act within the presumptively reasonable time limits.
Section 106 Exclusion
The FCC adopted an exclusion from Section 106 review for collocations on buildings and any other nontower structures that meet the following conditions:
- There is an existing antenna on the building or structure;
- The new deployment meets certain requirements related to visibility and proximity to an existing antenna;
- 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;
- The deployment will involve no new ground disturbance; and
- The deployment is 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.
Environmental and Historic Preservation Review Processes
The FCC adopted measures to refine their environmental and historic preservation review processes under the National Environmental Policy Act (NEPA) and National Historic Preservation Act (NHPA) to account for new wireless technologies, including physically small facilities like those used in distributed antenna system (DAS) networks and small-cell systems that are a fraction of the size of macrocell installations. These measures include:
- Amend 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) and that it also covers collocations in a building's interior;
- Amend the NEPA categorical exclusion for collocations to cover collocations on structures other than buildings and towers; and
- Adopt 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.
The FCC codified waivers previously granted by the Commission and has adopted a narrow exemption from the Commission's requirement that owners of proposed towers requiring antenna structure registration (ASR) provide 30 days of national and local notice to give members of the public an opportunity to comment on the proposed tower's potential environmental effects. The exemption from notification requirements applies only to proposed temporary towers meeting defined criteria, including limits on the size and duration of the installation, that greatly reduce the likelihood of any significant environmental effects.