FCC Order – Acceleration of Wireless Broadband Deployment (Part I)
UPDATE – May 19, 2015: With OMB Approval, Three Important Subsections Took Effect on May 18, 2015
Three important subsections of the FCC rule discussed in our blog posts below required OMB approval, delaying their effective date beyond April 8, 2015 (when most of the FCC rule took effect). On Monday, May 18, 2015, OMB approval of these three provisions was published in the Federal Register, and they became effective on the same day.
The three provisions are: (a) the 30-day deadline to toll an application for an eligible facilities request for incompleteness (§ 1.40001(c)(3)(i)), (b) the 10-day deadline to notify an applicant that its supplemental submittal is insufficient (§ 1.40001(c)(3)(iii)), and (c) the “deemed granted” remedy for a State or local government’s failure to approve or deny an application for an eligible facilities request (§ 1.140001(c)(4)).
It is important to note that OMB “has approved, for a period of three years” – so we can expect more review of these provisions in the future.
UPDATE – January 13, 2015: Order to Take Effect in February
The FCC published its Report and Order (“Order”) discussed below in the Federal Register on January 8, 2015. Publication triggers its 30-day and 90-day deadlines.
The Order will be effective February 9, 2015 – for the most part. The exception is § 1.40001, which deals with the implementation of Section 6409. It will take effect on April 8, 2015. However, three important subsections of § 1.40001 may be delayed beyond April 8, 2015, pending completion of the OMB approval process. These three provisions are: (a) the 30-day deadline to toll an application for an eligible facilities request for incompleteness (§ 1.40001(c)(3)(i)), (b) the 10-day deadline to notify an applicant that its supplemental submittal is insufficient (§ 1.40001(c)(3)(iii)), and (c) the “deemed granted” remedy for a State or local government’s failure to approve or deny an application for an eligible facilities request (§ 1.140001(c)(4)).
The published Order incorporates an Erratum that the FCC issued on January 5. The Erratum made minor changes, including renumbering certain sections of the rules. Therefore, please reference the published Order when quoting or citing to the Order.
The pace of wireless infrastructure deployment is about to accelerate following the Federal Communications Commission’s Order, unanimously adopted on October 17, 2014. The Order eliminates certain reviews and reduces the costs and delays associated with facility siting and construction. It significantly affects wireless communications carriers, infrastructure providers and municipalities. The original version of the Order with the FCC Commissioners’ individual comments is here.
The Order covers four main topics:
- It implements Section 6409(a) to allow for by right permitting for facility modifications;
- It refines the FCC’s prior “Shot Clock” Ruling;
- It exempts certain projects from review under the National Environmental Policy Act (“NEPA”) and the National Historic Preservation Act (“NHPA”); and
- It expedites deployment of temporary towers.
Part I of this blog post analyzes the first two topics which are of interest not only to wireless communication carriers and infrastructure providers but also to the local governmental officials, boards and departments charged with processing permit applications covered by Section 6409(a). Part II of this blog post discusses the last two topics. Please click here for Part II.
Part I – FCC’s Implementation of Section 6409(a) and the FCC Shot Clock Ruling
Section 6409(a) – Expedited By Right Approvals
The Order will make it easier for wireless communications providers to implement modifications to wireless communications infrastructure. It provides clear standards by which to determine whether a modification is substantial change or not, and therefore whether it qualifies for expedited approval. It also places strict limits on the local government process for reviewing applications subject to expedited approval.
Congress enacted Section 6409(a) of Title VI of the Middle Class Tax Relief and Job Creation Act of 2012 (more commonly known as the “Spectrum Act”) to facilitate and streamline a by-right review process for modifications to wireless infrastructure that do not amount to “substantial change.” The FCC Order provides important guidance to the wireless industry and municipalities about their rights and responsibilities under Section 6409(a).
The Order Defines Key Terms
Section 6409(a) provides, in part, 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.” Section 6409(a)(2) defines 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. However, the statute leaves many of these key terms undefined. The Order clarifies that Section 6409(a) applies to towers, base stations and transmission equipment used in connection with any FCC-licensed or authorized communication services and it defines these and other key terms as follows:
- “Transmission equipment” means antennas and other equipment associated with and necessary to their operation which includes power supply cables and backup power equipment.
- “Tower” means any structure built for the sole or primary purpose of supporting any Commission-licensed or authorized antennas and their associated facilities regardless of whether they currently support base station equipment at the time the application is filed.
- “Base station” means 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. This also includes any equipment associated with wireless communications service including, but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supply, and comparable equipment. A “base station” does not include structures that do not at the time of the relevant application support or house base station components.
- “Collocation” is defined 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.
- “Eligible support structure” means any structure that falls within the definitions of “tower” or “base station” as defined in the Order.
- “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.
The Order also clarifies that an “eligible facilities request” includes hardening a tower or support structure through structural enhancement where such hardening is necessary for a covered collocation, replacement, or removal of transmission equipment and so long as any such structural enhancement must not constitute a substantial change. The complete replacement of the underlying structure is excluded from the definition of an eligible facilities request.
What is and is not a “Substantial Change”
After defining these terms, the Order provides clear standards for what does and does not constitute a “substantial change” to the physical dimensions of a tower or base station. All modifications are measured from the dimensions of the tower or base station inclusive of any modifications approved prior to the passage of the Spectrum Act. Under the Order, a substantial change occurs if a proposed modification exceeds any of the following criteria – anything less is not a “substantial change” and is therefore eligible for expedited approval pursuant to Section 6409(a):
- For towers outside of public rights-of-way,
- If the height increases by more than 20 feet or 10%, whichever is greater;
- If the modification 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.
- For towers in public rights-of-way and for all base stations,
- If the height increases by more than 10% or 10 feet, whichever is greater;
- If it protrudes from the edge of the structure more than six feet.
- If it involves installing more than the standard number of new equipment cabinets for the technology involved, but not to exceed four cabinets.
- If it entails any excavation or deployment outside the current site of the tower or base station;
- If it would defeat the existing concealment elements 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 set forth in the Order).
- If it does not comply with conditions associated with the prior approval 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).
Any modification that does not exceed the above criteria is not a “substantial change” and is eligible for expedited approval under Section 6409(a).
The Order provides that States and localities may enforce compliance with generally applicable building, structural, electrical, and safety codes and with other laws codifying objective standards reasonably related to health and safety. This does not include discretionary forms of zoning relief.
Expedited Approval Procedure
The Order places strict procedural limits on the process for reviewing an application for expedited approval under Section 6409(a). The Order provides 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). The Order recognizes that an application may be complete for purposes of Section 6409(a) review but may not include all of the information the State or municipality requires to assess applications not subject to Section 6409(a).
- Within 60 days from the date of filing, accounting for any tolling (but regardless of any local moratorium), a State or local government shall approve an application covered by Section 6409(a).
- The 60-day period may be tolled by mutual agreement or upon notice that an application is incomplete (in accordance with the same deadlines and requirements applicable under Section 332(c)(7) as described in the Shot Clock section below).
- 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. Constructive approval is effective when the applicant notifies the reviewing jurisdiction in writing that the application has been deemed granted.
The FCC clarified that Section 6409(a) applies only to State and local governments acting in their role as land use regulators. It does not apply to those entities acting in their proprietary capacities.
Any dispute related to denials or constructive grants may be brought in any court of competent jurisdiction, but an action may not be filed with the FCC. The FCC will not entertain such disputes.
The rules adopted to implement Section 6409(a) under the Order will take effect 90 days after Federal Register publication.
Limits on any Time Out under the Shot Clock
The FCC’s Order addresses certain questions related to Section 332(c)(7) and the Commission’s 2009 Declaratory Ruling (the “Shot Clock” Ruling) that established the presumptively reasonable time periods within which a State or local government must act on a facilities siting application under Section 332(c)(7) of the Telecommunications Act of 1996.
The Order clarifies 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, but the following limits apply:
- 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.
- The presumptively reasonable timeframes run regardless of any applicable moratoria.
The Order also clarifies 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 Shot Clock Ruling.
The FCC declined to adopt any additional remedies for State or local government failures to act within the presumptively reasonable time limits (e.g. a deemed grant remedy).
Photo Credit: Greg Elin