Environmental and Land Use Law

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FCC Order – Acceleration of Wireless Broadband Deployment (Part II)

FCC Commissioner Ajit Pai said, “[F]or far too long and in far too many places, a web of municipal, state, and federal regulations has entangled those trying to build [wireless] infrastructure.”

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.

ORIGINAL ARTICLE:

The Federal Communications Commission’s unanimous Report and Order (“Order”) adopted on October 17, 2014 implemented multiple steps to accelerate the deployment of wireless communications infrastructure.

In Part I of our post, we explored the implementation of Section 6409(a) and the FCC’s refinement of its prior Shot Clock ruling.  Please click here for Part I.

In Part II of our post below, we discuss the changes to the National Environmental Policy Act (“NEPA”) and the National Historic Preservation Act (“NHPA”) review processes and how the FCC’s ruling affects the siting of temporary towers.

The original version of the Order with the FCC Commissioners’ individual comments is here.

Part II – Changes to NEPA and NHPA Review and Relaxation of Rules for Temporary Towers

Exceptions to NEPA and NHPA Review

The Order streamlines the environmental and historical review process under NEPA and the NHPA by creating new exclusions and confirming the applicability of prior exclusions. Specifically, the Order:

  • Amends the existing NEPA categorical exclusion for antenna collocations on towers and on and within buildings. This clarifies that collocation includes equipment associated with the antennas (e.g. wiring, cabling, cabinets, and backup-power).
  • Amends the NEPA categorical exclusion for collocations to include collocations on structures other than buildings and towers (e.g. utility poles, water tanks, and road signs).
  • 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 (as defined in the Order).
  • Adopts an exclusion from NHPA Section 106 review for collocations on utility structures, including utility poles and electric transmission towers, subject to certain conditions concerning size, ground disturbance, proximity to historic districts, and that it is not located on a designated National Historic Landmark or structure that is listed in or eligible for listing in the National Register of Historic Places.
  • Adopts an exclusion from Section 106 review for collocations on buildings and any other non-tower structures subject to conditions, including requiring an existing antenna on the building or structure, imposing certain requirements related to visibility and proximity to an existing antenna, compliance with zoning and historic preservation conditions on existing antennas that directly mitigate or prevent effects on historic properties (e.g. camouflage or concealment requirements), ground disturbance, and that it is not located on a designated National Historic Landmark or structure that is listed in or eligible for listing in the National Register of Historic Places.
  • Confirms that exclusions for certain collocations on buildings under the FCC’s programmatic agreements extend to collocations inside buildings.

Temporary Towers

The Order expedites the deployment of temporary towers by codifying a waiver the FCC had previously granted.

The Order adopts a narrow exemption from the FCC’s requirement that owners of proposed towers requiring antenna structure registration (ASR) provide 30 days of national and local notice to give the public an opportunity to comment on a proposed tower’s potential environmental effects.  The exemption applies to temporary towers that meet criteria that make them unlikely to have significant environmental effects.  Specifically, the FCC exempted antenna structures from these notification requirements if they:

  • Will be in place for 60 days or less;
  • Require notice of construction to the Federal Aviation Administration (FAA);
  • Do not require marking or lighting under FAA regulations;
  • Will be less than 200 feet above ground level; and
  • Will involve minimal or no ground excavation.

Photo Credit: Greg Elin

About the Author

Stephen D. Anderson – Partner

Steve represents clients with complex governmental, permitting, land use and environmental matters.

Please contact Steve with any questions at 617.621.6510 or sanderson@andersonkreiger.com.


Posted In: Municipal Law, Telecom

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