September 5, 2018
FCC FACT SHEET
Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment;
Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment
Declaratory Ruling and Third Report and Order
WT Docket No. 17-79; WC Docket No. 17-84
Background: To meet rapidly increasing demand for wireless services and prepare our national
infrastructure for 5G, providers must deploy infrastructure at significantly more locations using new,
small cell facilities. Building upon streamlining actions already taken by state and local governments,
this Declaratory Ruling and Third Report and Order is part of a national strategy to promote the timely
buildout of this new infrastructure across the country by eliminating regulatory impediments that
unnecessarily add delays and costs to bringing advanced wireless services to the public.
What the Declaratory Ruling and Third Report and Order Would Do:
- Clarify the scope and meaning of the effective prohibition standard set forth in Sections 253 and
332(c)(7) of the Communications Act as they apply to state and local regulation of wireless
infrastructure deployment. - Conclude that Sections 253 and 332(c)(7) limit state and local governments to charging fees that are
no greater than a reasonable approximation of their costs for processing applications and for
managing deployments in the rights-of-way. - Identify specific fee levels for small wireless facility deployments that presumably comply with the
relevant standard. - Provide guidance on certain state and local non-fee requirements, including aesthetic and
undergrounding requirements. - Establish two new shot clocks for small wireless facilities (60 days for collocation on preexisting
structures and 90 days for new builds) and codify the existing 90 and 150 day shot clocks for non-
small wireless facility deployments that were established in the 2009 Declaratory Ruling. - Make clear that all state and local government authorizations necessary for the deployment of
personal wireless service infrastructure are subject to those shot clocks. - Conclude that a failure to act within the new small wireless facility shot clock constitutes a
presumptive prohibition on the provision of services. Accordingly, we would expect local
governments to provide all required authorizations without further delay.
This document is being released as part of a “permit-but-disclose” proceeding. Any presentations or views on the
subject expressed to the Commission or its staff, including by email, must be filed in WT Docket No. 17-79 and WC
Docket No. 17-84, which may be accessed via the Electronic Comment Filing System (https://www.fcc.gov/ecfs/).
Before filing, participants should familiarize themselves with the Commission’s ex parte rules, including the general
prohibition on presentations (written and oral) on matters listed on the Sunshine Agenda, which is typically released
a week prior to the Commission’s meeting. See 47 CFR § 1.1200 et seq.
Before the Federal Communications Commission
Washington, D.C. 20554
In the Matter of
WT Docket No. 17-79 Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment
)
WC Docket No. 17-84 Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment
DECLARATORY RULING AND THIRD REPORT AND ORDER*
TABLE OF CONTENTS
Heading …………………………………………………………………………………………………………………. Paragraph #
I. INTRODUCTION …………………………………………………………………………………………………………………. 1
II. BACKGROUND …………………………………………………………………………………………………………………. 14
A. Legal Background ………………………………………………………………………………………………………….. 14
B. The Need for Commission Action ……………………………………………………………………………………. 23
III. DECLARATORY RULING …………………………………………………………………………………………………. 30
A. Overview of the Section 253 and Section 332(c)(7) Framework Relevant to Small
Wireless Facilities Deployment ……………………………………………………………………………………….. 34
B. State and Local Fees ………………………………………………………………………………………………………. 41
C. Other State and Local Requirements that Govern Small Facilities Deployment ……………………… 78
D. States and Localities Act in Their Regulatory Capacities When Authorizing and Setting Terms for Wireless Infrastructure Deployment in Public Rights of Way ……………………………….. 88
E. Responses to Challenges to Our Interpretive Authority and Other Arguments ……………………….. 94
IV. THIRD REPORT AND ORDER …………………………………………………………………………………………… 99
A. New Shot Clocks for Small Wireless Facility Deployments ………………………………………………. 100
1. Two New Section 332 Shot Clocks for Deployment of Small Wireless Facilities …………… 101
2. Batched Applications for Small Wireless Facilities …………………………………………………….. 109
B. New Remedy for Violations of the Small Wireless Facilities Shot Clocks …………………………… 112
C. Clarification of Issues Related to All Section 332 Shot Clocks …………………………………………… 128
1. Authorizations Subject to the “Reasonable Period of Time” Provision of Section
332(c)(7)(B)(ii) ………………………………………………………………………………………………………. 128
2. Codification of Section 332 Shot Clocks …………………………………………………………………… 134
3. Collocations on Structures Not Previously Zoned for Wireless Use ………………………………. 136
4. When Shot Clocks Start and Incomplete Applications ………………………………………………… 137
V. PROCEDURAL MATTERS ……………………………………………………………………………………………….. 143
VI. ORDERING CLAUSES ……………………………………………………………………………………………………… 146
APPENDIX A — Final Rules
APPENDIX B — Comments and Reply Comments
APPENDIX C — Final Regulatory Flexibility Analysis
I. INTRODUCTION
1. America is in the midst of a transition to the next generation of wireless services, known
as 5G. These new services can unleash a new wave of entrepreneurship, innovation, and economic
opportunity for communities across the country. The FCC is committed to doing our part to help ensure
the United States wins the global race to 5G to the benefit of all Americans. Today’s action is the next
step in the FCC’s ongoing efforts to remove regulatory barriers that would unlawfully inhibit the
deployment of infrastructure necessary to support these new services. We proceed by drawing on the
balanced and commonsense ideas generated by many of our state and local partners in their own small
cell bills.
2. Supporting the deployment of 5G and other next-generation wireless services through
smart infrastructure policy is critical. Indeed, upgrading to these new services will, in many ways,
represent a more fundamental change than the transition to prior generations of wireless service. 5G can
enable increased competition for a range of services—including broadband—support new healthcare and
Internet of Things applications, speed the transition to life-saving connected car technologies, and create
jobs. It is estimated that wireless providers will invest $275 billion over the next decade in next-
generation wireless infrastructure deployments, which should generate an expected three million new jobs
and boost our nation’s GDP by half a trillion dollars. Moving quickly to enable this transition is
important, as a new report forecasts that speeding 5G infrastructure deployment by even one year would
unleash an additional $100 billion to the U.S. economy.1 Removing barriers can also ensure that every
community gets a fair shot at these deployments and the opportunities they enable.
3. The challenge for policymakers is that the deployment of these new networks will look
different than the 3G and 4G deployments of the past. Over the last few years, providers have been
increasingly looking to densify their networks with new small cell deployments that have antennas often
no larger than a small backpack. From a regulatory perspective, these raise different issues than the
construction of large, 200-foot towers that marked the 3G and 4G deployments of the past. Indeed,
estimates predict that upwards of 80 percent of all new deployments will be small cells going forward.
To support advanced 4G or 5G offerings, providers must build out small cells at a faster pace and at a far
greater density of deployment than before.
**4. ** To date, regulatory obstacles have threatened the widespread deployment of these new
services and, in turn, U.S. leadership in 5G. The FCC has lifted some of those barriers, including our
decision in March 2018, which excluded small cells from some of the federal review procedures designed for those larger, 200-foot towers. But as the record here shows, the FCC must continue to act in partnership with our state and local leaders.
5. Many states and localities have acted to update and modernize their approaches to small
cell deployments. They are working to promote deployment and balance the needs of their communities.
At the same time, the record shows that problems remain. In fact, many state and local officials have
urged the FCC to continue our efforts in this proceeding and adopt additional reforms. Indeed, we have
heard from a number of local officials that the excessive fees or other costs associated with deploying
small scale wireless infrastructure in large or otherwise “must serve” cities are materially inhibiting the
buildout of wireless services in their own communities.
6. We thus find that now is the appropriate time to move forward with an approach geared
at the conduct that threatens to limit the deployment of 5G services. In reaching our decision today, we
have benefited from the input provided by a range of stakeholders, including state and local elected
officials. FCC leadership spent substantial time over the course of this proceeding meeting directly with
local elected officials in their jurisdictions. In light of those discussions and our consideration of the
record here, we reach a decision today that does not preempt nearly any of the provisions passed in recent
state-level small cell bills. We have reached a balanced, commonsense approach, rather than adopting a
one-size-fits-all regime. This ensures that state and local elected officials will continue to play a key role
in reviewing and promoting the deployment of wireless infrastructure in their communities.
7. By building on state and local ideas, today’s action boosts the United States’ standing in
the race to 5G. Our action would eliminate around $2 billion in unnecessary costs, which would stimulate
around $2.5 billion of additional buildouts. And that new service would be deployed where it is needed
most: 97 percent of new deployments would be in rural and suburban communities that otherwise would
be on the wrong side of the digital divide.2
8. The FCC will keep pressing ahead to ensure that every community in the country gets a
fair shot at the opportunity that next-generation wireless services can enable. As detailed in the sections
that follow, we do so by taking the following steps.
9. In the Declaratory Ruling, we note that a number of appellate courts have articulated
different and often conflicting views regarding the scope and nature of the limits Congress imposed on
state and local governments through Sections 253 and 332. We thus address and reconcile this split in
authorities by taking three main actions.
10. First, we express our agreement with the U.S. Courts of Appeals for the First, Second,
and Tenth Circuits that the “materially inhibit” standard articulated in 1997 by the Clinton-era FCC’s
California Payphone decision is the appropriate standard for determining whether a state or local law
operates as a prohibition or effective prohibition within the meaning of Sections 253 and 332.
11. Second, we note, as numerous courts and prior FCC cases have recognized, that state and
local fees and other charges associated with the deployment of wireless infrastructure can unlawfully
prohibit the provision of service. At the same time, courts have articulated various approaches to
determining the types of fees that run afoul of Congress’s limits in Sections 253 and 332. We thus clarify
the particular standard that governs the fees and charges that violate Sections 253 and 332 when it comes
to the Small Wireless Facilities at issue in this decision.3 Namely, fees are only permitted to the extent that they are nondiscriminatory and represent a reasonable approximation of the locality’s reasonable
costs. In this section, we also identify specific fee levels for the deployment of Small Wireless Facilities
that presumptively comply with this standard. We do so to help avoid unnecessary litigation over fees.
**12. ** Third, we focus on a subset of other, non-fee provisions of local law that could also
operate as prohibitions on service. We do so in particular by addressing state and local consideration of
aesthetic concerns in the deployment of Small Wireless Facilities, recognizing that certain reasonable
aesthetic considerations do not run afoul of Sections 253 and 332. This responds in particular to many
concerns we heard from state and local governments about deployments in historic districts.
13. Next, we issue a Report and Order that addresses the “shot clocks” governing the review
of wireless infrastructure deployments. We take three main steps in this regard. First, we create a new set
of shot clocks tailored to support the deployment of Small Wireless Facilities. In particular, we read
Sections 253 and 332 as allowing 60 days for reviewing the attachment of a Small Wireless Facility to an
existing structure and 90 days for the construction of new qualifying facilities. Second, while we do not
adopt a “deemed granted” remedy for violations of our new shot clocks, we clarify that failing to issue a
decision up or down during this time period is not simply a “failure to act” within the meaning of
applicable law. Rather, missing the deadline also constitutes a presumptive prohibition. We would thus
expect any locality that misses the deadline to issue any necessary permits or authorizations without
further delay. We also anticipate that a provider would have a strong case for quickly obtaining an
injunction from a court that compels the issuance of all permits in these types of cases. Third, we clarify
a number of issues that are relevant to all of the FCC’s shot clocks, including the types of authorizations
subject to these time periods.
II. BACKGROUND
A. Legal Background
14. In the Telecommunications Act of 1996 (the 1996 Act), Congress enacted sweeping new
provisions intended to facilitate the deployment of telecommunications infrastructure. As U.S. Courts of
Appeals have stated, “[t]he [1996] Act ‘represents a dramatic shift in the nature of telecommunications
regulation.’”4 The Senate floor manager, Senator Larry Pressler, stated that “[t]his is the most
comprehensive deregulation of the telecommunications industry in history.”5 Indeed, the purpose of the
1996 Act is to “provide for a pro-competitive, deregulatory national policy framework . . . by opening all
telecommunications markets to competition.”6 The conference report on the 1996 Act similarly indicates that Congress “intended to remove all barriers to entry in the provision of telecommunications services.”7
The 1996 Act thus makes clear Congress’s commitment to a competitive telecommunications marketplace
unhindered by unnecessary regulations, explicitly directing the FCC to “promote competition and reduce
regulation in order to secure lower prices and higher quality services for American telecommunications
consumers and encourage the rapid deployment of new telecommunications technologies.”8
15. Several provisions of the 1996 Act speak directly to Congress’s determination that certain
state and local regulations are unlawful. Section 253(a) provides that “[n]o State or local statute or
regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the
ability of any entity to provide any interstate or intrastate telecommunications service.”9 Courts have
observed that Section 253 represents a “broad preemption of laws that inhibit competition.”10
16. The Commission has issued several rulings interpreting and providing guidance regarding
the language Congress used in Section 253. For instance, in the 1997 California Payphone decision, the
Commission, under the leadership of then Chairman William Kennard, stated that, in determining whether
a state or local law has the effect of prohibiting the provision of telecommunications services, it
“consider[s] whether the ordinance materially inhibits or limits the ability of any competitor or potential
competitor to compete in a fair and balanced legal and regulatory environment.”11
17. Similar to Section 253, Congress specified in Section 332(c)(7) that “[t]he regulation of
the placement, construction, and modification of personal wireless service facilities by any State or local
government or instrumentality thereof—(I) shall not unreasonably discriminate among providers of
functionally equivalent services; and (II) shall not prohibit or have the effect of prohibiting the provision
of personal wireless services.”12 Clause (B)(ii) of that section further provides that “[a] State or local
government or instrumentality thereof shall act on any request for authorization to place, construct, or
modify personal wireless service facilities within a reasonable period of time after the request is duly filed
with such government or instrumentality, taking into account the nature and scope of such request.”13
Section 332(c)(7) generally preserves state and local authority over the “placement, construction, and
modification of personal wireless service facilities” but with the important limitations described above.14
Section 332(c)(7) also sets forth a judicial remedy, stating that “[a]ny person adversely affected by any
final action or failure to act by a State or local government” that is inconsistent with the requirements of
Section 332(c)(7) “may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction.”15 The provision further directs the court to “decide such action on an
expedited basis.”16
18. The Commission has previously interpreted the language Congress used and the limits it
imposed on state and local authority in Section 332. For instance, in interpreting Section
332(c)(7)(B)(i)(II), the Commission has found that “a State or local government that denies an application
for personal wireless service facilities siting solely because ‘one or more carriers serve a given geographic
market’ has engaged in unlawful regulation that ‘prohibits or ha[s] the effect of prohibiting the provision
of personal wireless services,’ within the meaning of Section 332(c)(7)(B)(i)(II).”17 In adopting this
interpretation, the Commission explained that its “construction of the provision achieves a balance that is
most consistent with the relevant goals of the Communications Act” and its understanding that “[i]n
promoting the construction of nationwide wireless networks by multiple carriers, Congress sought
ultimately to improve service quality and lower prices for consumers.”18 The Commission also noted that
an alternative interpretation would “diminish the service provided to [a wireless provider’s] customers.”19
19. In the 2009 Declaratory Ruling, the Commission acted to speed the deployment of then-
new 4G services and concluded that, “[g]iven the evidence of unreasonable delays [in siting decisions]
and the public interest in avoiding such delays,” it should offer guidance regarding the meaning of the
statutory phrases “reasonable period of time” and “failure to act” “in order to clarify when an adversely
affected service provider may take a dilatory State or local government to court.”20 The Commission
interpreted “reasonable period of time” under Section 332(c)(7)(B)(ii) to be 90 days for processing
collocation applications and 150 days for processing applications other than collocations. 21 The
Commission further determined that failure to meet the applicable time frame enables an applicant to
pursue judicial relief within the next 30 days.22 In litigation involving the 90-day and 150-day time
frames, the locality may attempt to “rebut the presumption that the established timeframes are
reasonable.”23 If the agency fails to make such a showing, it may face “issuance of an injunction granting
the application.”24 In its 2014 Wireless Infrastructure Order, 25 the Commission clarified that the time frames under Section 332(c)(7) are presumptively reasonable and begin to run when the application is
submitted, not when it is found to be complete by a siting authority.26
20. In 2012, Congress adopted Section 6409 of the Middle Class Tax Relief and Job Creation
Act (the Spectrum Act), which provides further evidence of Congressional intent to limit state and local
laws that operate as barriers to infrastructure deployment. It states that, “[n]otwithstanding section 704 of
the Telecommunications Act of 1996 [codified as 47 U.S.C. § 332(c)(7)] or any other provision of law, 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.”27 Subsection (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.28 In implementing Section 6409 and in an effort to “advance[e] Congress’s goal
of facilitating rapid deployment,”29 The Commission adopted rules to expedite the processing of eligible
facilities requests, including documentation requirements and a 60-day period for states and localities to
review such requests.30 The Commission further determined that a “deemed granted” remedy was
necessary for cases in which the reviewing authority fails to issue a decision within the 60-day period in
order to “ensur[e] rapid deployment of commercial and public safety wireless broadband services.”31 The
Fourth Circuit, affirming that remedy, explained that “[f]unctionally, what has occurred here is that the
FCC—pursuant to properly delegated Congressional authority—has preempted state regulation of
wireless towers.”32
21. Consistent with these broad federal mandates, courts have recognized that the
Commission has authority to interpret Sections 253 and 332 of the Act to further elucidate what types of
state and local legal requirements run afoul of the statutory parameters Congress established.33 For
instance, the Fifth Circuit affirmed the 2009 Declaratory Ruling in City of Arlington. The court
concluded that the Commission possessed the “authority to establish the 90– and 150–day time frames”
and that its decision was not arbitrary and capricious.34 More generally, as the agency charged with
administering the Communications Act, the Commission has the authority, responsibility, and expert
judgement to issue interpretations of the statutory language and to adopt implementing regulations that
clarify and specify the scope and effect of the Act. Such interpretations are particularly appropriate where
the statutory language is ambiguous, or the subject matter is “technical, complex, and dynamic,” as it is in the Communications Act, as recognized by the Supreme Court.35 Here, the Commission has ample
experience monitoring and regulating the telecommunications sector. It is well-positioned, in light of this
experience and the record in this proceeding, to issue a clarifying interpretation of Sections 253 and
332(c)(7) that accounts both for the changing needs of a dynamic wireless sector that is increasingly
reliant on Small Wireless Facilities and for state and local oversight that does not materially inhibit
wireless deployment.
22. The congressional and FCC decisions described above point to consistent federal action,
particularly when faced with changes in technology, to ensure that our country’s approach to wireless
infrastructure deployment promotes buildout of the facilities needed to provide Americans with next-
generation services. Consistent with that long-standing approach, in the 2017 Wireless Infrastructure
NPRM/NOI, the Commission sought comment on whether the FCC should again update its approach to
infrastructure deployment to ensure that regulations are not operating as prohibitions in violation of
Congress’s decisions and federal policy.36 In August 2018, the Commission concluded that state and
local moratoria on telecommunications services and facilities deployment are barred by Section 253(a).37
B. The Need for Commission Action
23. In response to the opportunities presented by offering new wireless services, and the
problems facing providers that seek to deploy networks to do so, we find it necessary and appropriate to
exercise our authority to interpret the Act and clarify the preemptive scope that Congress intended. The
introduction of advanced wireless services has already revolutionized the way Americans communicate
and transformed the U.S. economy. Indeed, the FCC’s most recent wireless competition report indicates
that American demand for wireless services continues to grow exponentially. It has been reported that
monthly data usage per smartphone subscriber rose to an average of 3.9 gigabytes per subscriber per
month, an increase of approximately 39 percent from year-end 2015 to year-end 2016.38 As more
Americans use more wireless services, demand for new technologies, coverage and capacity will
necessarily increase, making it critical that the deployment of wireless infrastructure, particularly Small
Wireless Facilities, not be stymied by unreasonable state and local requirements.
24. 5G wireless services, in particular, will transform the U.S. economy through increased
use of high-bandwidth and low-latency applications and through the growth of the Internet of Things.39
While the existing wireless infrastructure in the U.S. was erected primarily using macro cells with
relatively large antennas and towers, wireless networks increasingly have required the deployment of
small cell systems to support increased usage and capacity. We expect this trend to increase with next-
generation networks, as demand continues to grow, and providers deploy 5G service across the nation. It
is precisely “[b]ecause providers will need to deploy large numbers of wireless cell sites to meet the
country’s wireless broadband needs and implement next-generation technologies” that the Commission
has acknowledged “an urgent need to remove any unnecessary barriers to such deployment, whether caused by Federal law, Commission processes, local and State reviews, or otherwise.”40 As explained
below, the need to site so many more 5G-capable nodes leaves providers’ deployment plans and the
underlying economics of those plans vulnerable to increased per site delays and costs.
25. Some states and local governments have acted to facilitate the deployment of 5G and
other next-gen infrastructure, looking to bring greater connectivity to their communities through forward-
looking policies. Leaders in these states are working hard to meet the needs of their communities and
balance often competing interests. At the same time, outlier conduct persists. The record here suggests
that the legal requirements in place in other state and local jurisdictions are materially impeding that
deployment in various ways.41 Crown Castle, for example, describes “excessive and unreasonable” “fees
to access the [rights-of-way] that are completely unrelated to their maintenance or management.” It also
points to barriers to market entry “for independent network and telecommunications service providers,”
including municipalities that “restric[t] access to the [right-of-way] only to providers of commercial
mobile services” or that impose “onerous zoning requirements on small cell installations when other
similar [right of way] utility installations are erected with simple building permits.”42 Crown Castle is not
alone in describing local regulations that slow deployment. AT&T states that localities in Maryland,
California, and Massachusetts have imposed fees so high that it has had to pause or decrease
deployments.43 Likewise, AT&T states that a Texas city has refused to allow small cell placement on any
structures in a right-of-way (ROW).44 T-Mobile states that the Town of Hempstead, New York requires
service providers who seek to collocate or upgrade equipment on existing towers that have been properly
constructed pursuant to Class II standards to upgrade and certify these facilities under Class III standards
that apply to civil and national defense and military facilities.45 Verizon states that a Minnesota town has
proposed barring construction of new poles in rights-of-way and that a Midwestern suburb where it has
been trying to get approval for small cells since 2014 has no established procedures for small cell
approvals.46 Verizon states that localities in New York and Washington have required special use permits
involving multiple layers of approval to locate small cells in some or all zoning districts.47
26. Further, the record in this proceeding demonstrates that many local siting authorities are
not complying with our existing Section 332 shot clock rules.48 WIA states that its members routinely face lengthy delays and specifically cite localities in New Jersey, New Hampshire, and Maine as being
problematic.49 Similarly, AT&T identified an instance in which it took a locality in California 800 days
to process an application.50 GCI provides an example in which it took an Alaska locality nine months to
decide an application. 51 T-Mobile states that a community in Colorado and one in California have
lengthy pre-application processes for all small cell installations that include notification to all nearby
households, a public meeting, and the preparation of a report, none of which these jurisdictions view as
triggering a shot clock.52 Similarly, Lightower provides examples of long delays in processing siting
applications. 53 Finally, Crown Castle describes a case in which a “town took approximately two years
and nearly twenty meetings, with constantly shifting demands, before it would even ‘deem complete’
Crown Castle’s application.”54
27. Our Declaratory Ruling and Third Report and Order are intended to address these issues
and outlier conduct. Our conclusions are also informed by findings, reports, and recommendations from
the FCC Broadband Deployment Advisory Committee (BDAC), including the Model Code for
Municipalities, the Removal of State and Local Regulatory Barriers Working Group report, and the Rates
and Fees Ad Hoc Working Group report, which the Commission created in 2017 to identify barriers to
deployments of broadband infrastructure, many of which are addressed here.55 We also considered input from numerous state and local officials, about their concerns and how they have approached wireless
deployment, much of which we took into account here. Our action is also consistent with congressional
efforts to hasten deployment, including bi-partisan legislation pending in Congress like the
STREAMLINE Small Cell Deployment Act and SPEED Act. The STREAMLINE Small Cell
Deployment Act proposes to streamline wireless infrastructure deployments by requiring siting agencies
to act on deployment requests within specified time frames and by limiting the imposition of onerous
conditions and fees.56 The SPEED Act would similarly streamline federal permitting processes.57 In the
same vein, the Model Code for Municipalities adopts streamlined infrastructure siting requirements while
other BDAC reports and recommendations emphasize the negative impact of high fees on infrastructure
deployments.58
**28. ** As do members of both parties of Congress and experts on the BDAC, we recognize the
urgent need to streamline regulatory requirements to accelerate the deployment of wireless infrastructure
for current needs and for the next generation of wireless service in 5G. State government officials also
have urged us to act to expedite the deployment of 5G technology, in particular, by streamlining overly
burdensome regulatory processes to ensure that 5G technology will expand beyond just urban centers.
These officials have expressed their belief that reducing high regulatory costs and delays in urban areas
would leave more money and encourage development in rural areas.59 “[G]etting [5G] infrastructure out
in a timely manner can be a challenge that involves considerable time and financial resources. The
solution is to streamline relevant policies – allowing more modern rules for modern infrastructure.”60
State officials have acknowledged that current regulations are “outdated” and “could hinder the timely
arrival of 5G throughout the country,” and urged the FCC “to push for more reforms that will streamline
infrastructure rules from coast to coast.”61
29. Accordingly, in this Declaratory Ruling and Third Report and Order, we act to reduce
regulatory barriers to the deployment of wireless infrastructure and to ensure that our nation remains the
leader in advanced wireless services and wireless technology.
III. DECLARATORY RULING
30. In this Declaratory Ruling, we note that a number of appellate courts have articulated
different and often conflicting views regarding the scope and nature of the limits Congress imposed on
state and local governments through Sections 253 and 332. In light of these diverging views, Congress’s vision for a consistent, national policy framework, and the need to ensure that our approach continues to
make sense in light of the relatively new trend towards the large-scale deployment of Small Wireless
Facilities, we take this opportunity to clarify and update the FCC’s reading of the limits Congress
imposed. We do so in three main respects.
31. First, in Part III.A, we express our agreement with the views already stated by the First,
Second, and Tenth Circuits that the “materially inhibit” standard articulated in 1997 by the Clinton-era
FCC’s California Payphone decision is the appropriate standard for determining whether a state or local
law operates as a prohibition or effective prohibition within the meaning of Sections 253 and 332.
32. Second, in Part III.B, we note, as numerous courts have recognized, that state and local
fees and other charges associated with the deployment of wireless infrastructure can effectively prohibit
the provision of service. At the same time, courts have articulated various approaches to determining the
types of fees that run afoul of Congress’s limits in Sections 253 and 332. We thus clarify the particular
standard that governs the fees and charges that violate Sections 253 and 332 when to comes to the Small
Wireless Facilities at issue in this decision. Namely, fees are only permitted to the extent that they
represent a reasonable approximation of the local government’s objectively reasonable costs, and are non-
discriminatory. 62 In this section, we also identify specific fee levels for the deployment of Small
Wireless Facilities that presumptively comply with this standard. We do so to help avoid unnecessary
litigation, while recognizing that it is the standard itself, not the particular, presumptive fee levels we
articulate, that ultimately will govern whether a particular fee is allowed under Sections 253 and 332. So
fees above those levels would be permissible under Sections 253 and 332 to the extent a locality’s actual,
reasonable costs (as measured by the standard above) are higher.
33. Finally, in Part III.C, we focus on a subset of other, non-fee provisions of state and local
law that could also operate as prohibitions on service. We do so in particular by addressing state and
local consideration of aesthetic concerns in the deployment of Small Wireless Facilities.
A. Overview of the Section 253 and Section 332(c)(7) Framework Relevant to Small Wireless Facilities Deployment
34. In Sections 253(a) and 332(c)(7)(B) of the Act, Congress determined that state or local
requirements that prohibit or have the effect of prohibiting the provision of service are unlawful and thus
preempted.63 Section 253(a) addresses “any interstate or intrastate telecommunications service,” while
Section 332(c)(7)(B)(i)(II) addresses “personal wireless services.”64 Although the provisions contain identical “effect of prohibiting” language,65 the Commission and different courts over the years have each
employed inconsistent approaches to deciding what it means for a state or local legal requirement to have
the “effect of prohibiting” services under these two sections of the Act. This has caused confusion among
both providers and local governments about what legal requirements are permitted under Section 253.
For example, despite Commission decisions to the contrary, some courts have held that a denial of a
wireless siting application will “prohibit or have the effect of prohibiting” the provision of a personal
wireless service under Section 332(c)(7)(B)(i)(II) only if the provider can establish that it has a significant
gap in service coverage in the area and a lack of feasible alternative locations for siting facilities.66 Other
courts have held that evidence of an already-occurring or complete inability to offer a telecommunications
service is required to demonstrate an effective prohibition under Section 253(a).67 Conversely, still other
courts like the First and Second Circuits have both endorsed prior Commission interpretations of what
constitutes an effective prohibition and recognized that, under that analytical framework, a legal
requirement can constitute an effective prohibition of services even if it is not an insurmountable barrier.68
In this Declaratory Ruling, we first reaffirm, as our definitive interpretation of the effective prohibition
standard, the test we set forth in California Payphone, namely, that a state or local legal requirement
constitutes an effective prohibition if it “materially limits or inhibits the ability of any competitor or
potential competitor to compete in a fair and balanced legal and regulatory environment.”69 We then
explain how this “material inhibition” standard applies in the context of state and local fees and aesthetic
requirements. In doing so, we confirm the First and Second Circuits’ understanding that under this
analytical framework, a legal requirement can “materially inhibit” the provision of services even if it is not an insurmountable barrier.70 We also resolve the conflicting court interpretations of the ‘effective
prohibition’ language so that continuing confusion on Section 253 does not materially inhibit the critical
deployments of Small Wireless Facilities and our nation’s drive to deploy 5G.71
35. As an initial matter, we note that our Declaratory Ruling applies with equal measure to
the effective prohibition standard that appears in both Sections 253(a) and 332(c)(7).72 This ruling is
consistent with the basic canon of statutory interpretation that identical words appearing in neighboring
provisions of the same statute should be interpreted to have the same meaning.73 Moreover, both of these provisions apply to wireless telecommunications services74 as well as to commingled services and
facilities.75
36. As explained in California Payphone and reaffirmed here, a state or local legal
requirement will have the effect of prohibiting wireless telecommunications services if it materially
inhibits the provision of such services. We clarify that an effective prohibition occurs where a state or
local legal requirement materially inhibits a provider’s ability to engage in any of a variety of activities
related to its provision of a covered service.76 This test is met not only when filling a coverage gap but
also when densifying a wireless network, introducing new services or otherwise improving service
capabilities.77 Under the California Payphone standard, a state or local legal requirement could
materially inhibit service in numerous ways—not only by rendering a service provider unable to provide
an existing service in a new geographic area or by restricting the entry of a new provider in providing
service in a particular area, but also by materially inhibiting the introduction of new services or the improvement of existing services. Thus, an effective prohibition includes materially inhibiting additional
services or improving existing services.78
37. Our reading of Section 253(a) and Section 332(c)(7)(B)(i)(II) reflects and supports a
marketplace in which services can be offered in a multitude of ways with varied capabilities and
performance characteristics consistent with the policy goals in the 1996 Act and the Communications Act.
To limit Sections 253(a) and 332(c)(7)(B)(i)(II) to protecting only against coverage gaps or the like would
be to ignore Congress’s contemporaneously-expressed goals of “promot[ing] competition[,] . . . secur[ing]
. . . higher quality services for American telecommunications consumers and encourage[ing] the rapid
deployment of new telecommunications technologies.”79 In addition, as the Commission recently
explained, the implementation of the Act “must factor in the fundamental objectives of the Act, including
the deployment of a ‘rapid, efficient . . . wire and radio communication service with adequate facilities at
reasonable charges’ and ‘the development and rapid deployment of new technologies, products and
services for the benefit of the public . . . without administrative or judicial delays[, and] efficient and
intensive use of the electromagnetic spectrum.’”80 These provisions demonstrate that our interpretation of
Section 253 and Section 332(c)(7)(B)(i)(II) is in accordance with the broader goals of the various statutes
that the Commission is entrusted to administer.
38. California Payphone further concluded that providers must be allowed to compete in a
“fair and balanced regulatory environment.”81 As reflected in decisions such as the Commission’s Texas
PUC Order, a state or local legal requirement can function as an effective prohibition either because of
the resulting “financial burden” in an absolute sense, or, independently, because of a resulting competitive
disparity.82 We clarify that “[a] regulatory structure that gives an advantage to particular services or
facilities has a prohibitory effect, even if there are no express barriers to entry in the state or local code;
the greater the discriminatory effect, the more certain it is that entities providing service using the disfavored facilities will experience prohibition.”83 This conclusion is consistent with both Commission
and judicial precedent recognizing the prohibitory effect that results from a competitor being treated
materially differently than similarly-situated providers.84 We provide our authoritative interpretation
below of the circumstances in which a “financial burden,” as described in the Texas PUC Order,
constitutes an effective prohibition in the context of certain state and local fees.
39. As we explained above, we reject alternative readings of the effective prohibition
language that have been adopted by some courts and used to defend local requirements that have the
effect of prohibiting densification of networks. Decisions that have applied solely a “coverage gap”-
based approach under Section 332(c)(7)(B)(i)(II) reflect both an unduly narrow reading of the statute and
an outdated view of the marketplace.85 Those cases, including some that formed the foundation for
“coverage gap”-based analytical approaches, appear to view wireless service as if it were a single,
monolithic offering provided only via traditional wireless towers. 86 By contrast, the current wireless marketplace is characterized by a wide variety of offerings with differing service characteristics and
deployment strategies. 87 As Crown Castle explains, coverage gap-based approaches are “simply
incompatible with a world where the vast majority of new wireless builds are going to be designed to add
network capacity and take advantage of new technologies, rather than plug gaps in network coverage.”88
Moreover, a critical feature of these new wireless builds is to accommodate increased in-building use of
wireless services, necessitating deployment of small cells in order to ensure quality service to wireless
callers within such buildings.89
40. Likewise, we reject the suggestion of some courts like the Eighth and Ninth Circuits that
evidence of an existing or complete inability to offer a telecommunications service is required under
253(a).90 Such an approach is contrary to the material inhibition standard of California Payphone and the correct recognition by courts “that a prohibition does not have to be complete or ‘insurmountable’” to
constitute an effective prohibition.91 The “effectively prohibit” language must have some meaning
independent of the “prohibit” language, and we find that the interpretation of the First, Second, and Tenth
Circuits reflects that principle, while being more consistent with the California Payphone standard than
the approach of the Eighth and Ninth Circuits.92
B. State and Local Fees
41. Federal courts have long recognized that the fees charged by local governments for the
deployment of communications infrastructure can run afoul of the limits Congress imposed in the
effective prohibition standard embodied in Sections 253 and 332.93 In Municipality of Guayanilla, for
example, the First Circuit addressed whether a city could lawfully charge a 5 percent gross revenue fee.
The court found that the “5% gross revenue fee would constitute a substantial increase in costs” for the
provider, and that the ordinance consequently “will negatively affect [the provider’s] profitability.”94 The
fee, together with other requirements, thus “place a significant burden” on the provider.95 In light of this
analysis, the First Circuit agreed that the fee “‘materially inhibits or limits the ability’” of the provider
“‘to compete in a fair and balanced legal and regulatory environment.’”96 The court thus held that the fee
does not survive scrutiny under Section 253. In doing so, the First Circuit also noted that the inquiry is
not limited to the impact that a fee would have on deployment in the jurisdiction that imposes the fee.
Rather, the court noted the aggregate effect of fees when totaled across all relevant jurisdictions.97 At the
same time, the First Circuit did not decide whether the fair and reasonable compensation allowed under
Section 253 must be limited to cost recovery or, at the very least, related to the actual use of the ROW.98
42. In City of White Plains, the Second Circuit likewise faced a 5 percent gross revenue fee, which it found to be “[t]he most significant provision” in a franchise agreement implementing an
ordinance that the court concluded effectively prohibited service in violation of Section 253.99 While the
court noted that “compensation is . . . sometimes used as a synonym for cost,”100 it ultimately did not
resolve whether fair and reasonable compensation “is limited to cost recovery, or whether it also extends
to a reasonable rent,” relying instead on the fact that “White Plains has not attempted to charge Verizon
the fee that it seeks to charge TCG,” thus failing Section 253’s “competitively neutral and
nondiscriminatory” standard.101 But the court did observe that “Section 253(c) requires compensation to
be reasonable essentially to prevent monopolist pricing by towns.”102
43. In another example, the Tenth Circuit in City of Santa Fe addressed a $6,000 per foot fee
set for Qwest’s use of the ROW.103 The court held “that the rental provisions are prohibitive because they
create[d] a massive increase in cost” for Qwest.104 The court recognized that Section 253 allows the
recovery of cost-based fees, though it ultimately did not decide whether to “measure ‘fair and reasonable’
by the City’s costs or by a ‘totality of circumstances test’” applied in other courts because it determined
that the fees at issue were not cost-based and “fail[ed] even the totality of the circumstances test.”105
Consequently, the fee was preempted under Section 253.
44. At the same time, the courts have adopted different approaches to analyzing whether fees
run afoul of Section 253, at times failing even to articulate a particular test.106 Among other things, courts
have expressed different views on whether Section 253 limits states’ and localities’ fees to recovery of
their costs or allows fees set in excess of that level.107 We articulate below the Commission’s interpretation of Section 253(a) and the standards we adopt for evaluating when a fee for Small Wireless
Facility deployment is preempted, regardless how the fee is challenged. We also clarify that the
Commission interprets Section 332(c)(7)(B)(i)(II) to have the same substantive meaning as Section
253(a).
45. Record Evidence on Costs Associated with Small Wireless Facilities. Keeping pace
with the demands on current 4G networks and upgrading our country’s wireless infrastructure to 5G
require the deployment of many more Small Wireless Facilities.108 For example, Verizon anticipates that
network densification and the upgrade to 5G will require 10 to 100 times more antenna locations than
currently exist. AT&T estimates that providers will deploy hundreds of thousands of wireless facilities in
the next few years alone—equal to or more than the number providers have deployed in total over the last
few decades.109 Sprint, in turn, has announced plans to build at least 40,000 new small sites over the next
few years.110 A report from Accenture estimates that, overall, during the next three or four years, 300,000
small cells will need to be deployed—a total that it notes is “roughly double the number of macro cells
built over the last 30 years.”111
46. The many-fold increase in Small Wireless Facilities will magnify per-facility fees
charged to providers. Per-facility fees that once may have been tolerable when providers built macro
towers several miles apart now act as effective prohibitions when multiplied by each of the many Small
Wireless Facilities to be deployed. Thus a per-facility fee may affect a prohibition on 5G service or the
densification needed to continue 4G service even if that same per-facility fee did not effectively prohibit
previous generations of wireless service.
47. Cognizant of the changing technology and its interaction with regulations created for a
previous generation of service, the 2017 Wireline Infrastructure NPRM/NOI sought comment on whether
government-imposed fees could act as a prohibition within the meaning of Section 253, and if so, what
fees would qualify for 253(c)’s savings clause.112 The 2017 Wireless Infrastructure NPRM/NOI similarly
sought comment on the scope of Sections 253 and 332(c)(7) and on any new or updated guidance the
Commission should provide, potentially through a Declaratory Ruling.113 In particular, the Commission
sought comment on whether it should provide further guidance on how to interpret and apply the phrase “prohibit or have the effect of prohibiting.”114
48. We conclude that ROW access fees, and fees for the use of government property in the
ROW,115 such as light poles, traffic lights, utility poles, and other similar property suitable for hosting
Small Wireless Facilities, as well as application or review fees and similar fees imposed by a state or local
government as part of their regulation of the deployment of Small Wireless Facilities inside and outside
the ROW, violate Sections 253 or 332(c)(7) unless these conditions are met: (1) the fees are a reasonable
approximation of the state or local government’s costs,116 (2) only objectively reasonable costs are
factored into those fees, and (3) the fees are no higher than the fees charged to similarly-situated
competitors in similar situations.117
49. We base our interpretation on several considerations, including the text and structure of
the Act as informed by legislative history, the economics of capital expenditures in the context of Small
Wireless Facilities (including the manner in which capital budgets are fixed ex ante) and the extensive
record evidence that shows the actual effects that state and local fees have in deterring wireless providers
from adding to, improving, or densifying their networks and consequently the service offered over them
(including, but not limited to, introducing next-generation 5G wireless service). We address each of these
considerations in turn.
50. Text and Structure. We start our analysis with a consideration of the text and structure of
Section 253. That section contains several related provisions that operate in tandem to define the roles
that Congress intended the federal government, states, and localities to play in regulating the provision of
telecommunications services. Section 253(a) sets forth Congress’s intent to preempt state or local legal
requirements that “prohibit or have the effect of prohibiting the ability of any entity to provide any
interstate or intrastate telecommunications service.”118 Section 253(b), in turn, makes clear Congress’s
intent that state and local “requirements necessary to preserve and advance universal service, protect the
public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the
rights of consumers” are not preempted.119 Of particular importance in the fee context, Section 253(c)
reflects a considered policy judgment that “[n]othing in this section” shall prevent states and localities
from recovering certain carefully delineated fees. Specifically, Section 253(c) makes clear that fees are
not preempted that are “fair and reasonable” and imposed on a “competitively neutral and
nondiscriminatory basis,” for “use of public rights-of-way on a “nondiscriminatory basis,” so long as they
are “publicly disclosed” by the government.120 Section 253(d), in turn, provides one non-exclusive
mechanism by which a party can obtain a determination from the Commission of whether a specific state
or local requirement is preempted under Section 253(a)—namely, by filing a petition with the
Commission.121
51. In reviewing this statutory scheme, the Commission previously has construed Section
253(a) as “broadly limit[ing] the ability of state[s] to regulate,” while the remaining subsections set forth
“defined areas in which states may regulate.”122 We reaffirm this conclusion, consistent with the view of
most courts to have considered the issue—namely, that Sections 253(b) and (c) make clear that certain
state or local laws, regulations, and legal requirements are not preempted under the expansive scope of
Section 253(a).123 Our interpretation of Section 253(a) is informed by this statutory context,124 and the
observation of courts that when a preemption provision precedes a narrowly-tailored savings clause, it is
reasonable to infer that Congress intended a broad preemptive scope.125 We need not decide today
whether Section 253(a) preempts all fees not expressly saved by Section 253(c) with respect to all types
of deployments. Rather, we conclude, based on the record before us, that with respect to Small Wireless
Facilities, even fees that might seem small in isolation have material and prohibitive effects on deployment,126 particularly when considered in the aggregate given the nature and volume of anticipated
Small Wireless Facility deployment.127 Against this backdrop, and in light of significant evidence, set
forth herein, that Congress intended Section 253 to preempt legal requirements that effectively prohibit
service, including wireless infrastructure deployment, we view the substantive standards for fees that
Congress sought to insulate from preemption in Section 253(c) as an appropriate ceiling for state and
local fees that apply to the deployment of Small Wireless Facilities in public ROWs.128
52. In addition, notwithstanding that Section 253(c) only expressly governs ROW fees, we
find it appropriate to look to its substantive standards as a ceiling for other state and local fees addressed
by this Declaratory Ruling.129 For one, our evaluation of the material effects of fees on the deployment of
Small Wireless Facilities does not differ whether the fees are for ROW access, use of government
property within the ROW, or one-time application and review fees or the like—any of which drain limited
capital resources that otherwise could be used for deployment—and we see no reason why the Act would
tolerate a greater prohibitory effect in the case of application or review fees than for ROW fees.130 In
addition, elements of the substantive standards for ROW fees in Section 253(c) appears at least analogous
to elements of the California Payphone standard for evaluating an effective prohibition under Section
253(a). In pertinent part, both incorporate principles focused on the legal requirements to which a
provider may be fairly subject,131 and seek to guard against competitive disparities.132 Without resolving
the precise interplay of those concepts in Section 253(c) and the California Payphone standard, their
similarities support our use of the substantive standards of Section 253(c) to inform our evaluation of fees
at issue here that are not directly governed by that provision.
53. From the foregoing analysis, we can derive the three principles that we articulate in this
Declaratory Ruling about the types of fees that are preempted. As explained in more detail below, we
also interpret Section 253(c)’s “fair and reasonable compensation” to refer to fees that represent a
reasonable approximation of actual and direct costs incurred by the government, where the costs being passed on are themselves objectively reasonable.133 Although there is precedent that “fair and
reasonable” compensation could mean not only cost-based charges but also market-based charges in
certain instances,134 the statutory context persuades us to adopt a cost-based interpretation here. In
particular, while the general purpose of Section 253(c) is to preserve certain state and local conduct from
preemption, it includes qualifications and limitations to cabin state and local action under that savings
clause in ways that ensure appropriate protections for service providers. The reasonableness of
interpreting the qualifications and limitations in the Section 253(c) savings clause as designed to protect
the interests of service providers is emphasized by the statutory language. The “competitively neutral and
nondiscriminatory” and public disclosure qualifications in Section 253(c) appear most naturally
understood as protecting the interest of service providers from fees that otherwise would have been saved
from preemption under Section 253(c) absent those qualifiers. Under the noscitur a sociis canon of
statutory interpretation, that context persuades us that the “fair and reasonable” qualifier in Section 253(c)
similarly should be understood as focused on protecting the interest of providers.135 As discussed in
greater detail below, while it might well be fair for providers to bear basic, reasonable costs of entry,136
the record does not reveal why it would be fair or reasonable from the standpoint of protecting providers
to require them to bear costs beyond that level, particularly in the context of the deployment of Small
Wireless Facilities. In addition, the text of Section 253(c) provides that ROW access fees must be
imposed on a “competitively neutral and nondiscriminatory basis.” This means, for example, that fees
charged to one provider cannot be materially higher than those charged to a competitor for similar uses.137
54. Other considerations support our approach, as well. By its terms, Section 253(a)
preempts state or local legal requirements that “prohibit” or have the “effect of prohibiting” the provision
of services, and we agree with court precedent that “[m]erely allowing the [local government] to recoup
its processing costs . . . cannot in and of itself prohibit the provision of services.”138 The Commission has
long understood that Section 253(a) is focused on state or local barriers to entry for the provision of
service,139 and we conclude that states and localities do not impose an unreasonable barrier to entry when
they merely require providers to bear the direct and reasonable costs caused by their decision to enter the market. 140 We decline to interpret a government’s recoupment of such fundamental costs of entry as
having the effect of prohibiting the provision of services, nor has any commenter argued that recovery of
cost by a government would prohibit service in a manner restricted by Section 253(a).141 Reasonable state
and local regulation of facilities deployment is an important predicate for a viable marketplace for
communications services by protecting property rights and guarding against conflicting deployments that
could harm or otherwise interfere with others’ use of property.142 By contrast, fees that recover more than
the state or local costs associated with facilities deployment—or that are based on unreasonable costs,
such as exorbitant consultant fees or the like—go beyond such governmental recovery of fundamental
costs of entry. In addition, interpreting Section 253(a) to prohibit states and localities from recovering a
reasonable approximation of reasonable costs could interfere with the ability of states to exercise the
police powers reserved to them under the Tenth Amendment.143 We therefore conclude that Section
253(a) is circumscribed to permit states and localities to recover a reasonable approximation of their costs
related to the deployment of Small Wireless Facilities.
55. Commission Precedent. We draw further confidence in our conclusions from the
Commission’s California Payphone decision, which we reaffirm here, finding that a state or local legal
requirement would violate Section 253(a) if it “materially limits or inhibits” an entity’s ability to compete
in a “balanced” legal environment for a covered service.144 As explained above, fees charged by a state or
locality that recover the reasonable approximation of reasonable costs do not “materially inhibit” a provider’s ability to compete in a “balanced” legal environment. To the contrary, those costs enable
localities to recover their necessary expenditures to provide a stable and predictable framework in which
market participants can enter and compete. On the other hand, in the Texas PUC Order interpreting
California Payphone, the Commission concluded that state or local legal requirements such as fees that
impose a “financial burden” on providers can be effectively prohibitive.145 As the record shows,
excessive state and local governments’ fees assessed on the deployment of Small Wireless Facilities in
the ROW in fact materially inhibit the ability of many providers to compete in a balanced environment.146
56. California Payphone and Texas PUC separately support the conclusion that fees cannot
be discriminatory or introduce competitive disparities, as such fees would be inconsistent with a
“balanced” regulatory marketplace. Thus, fees that treat one competitor materially differently than other
competitors in similar situations are themselves grounds for finding an effective prohibition—even in the
case of fees that are a reasonable approximation of the actual and reasonable costs incurred by the state or
locality. Indeed, the Commission has previously recognized the potential for subsidies provided to one
competitor to distort the marketplace and create a barrier to entry in violation of Section 253(a).147 We
reaffirm that conclusion here.
57. Legislative History. While our interpretation follows directly from the text and structure
of the Act, our conclusion finds further support in the legislative history, which reflects Congress’s focus
on the ability of states and localities to recover the reasonable costs they incur in maintaining the rights of
way.148 Significantly, Senator Dianne Feinstein, during the floor debate on Section 253(c), “offered
examples of the types of restrictions that Congress intended to permit under Section 253(c), including [to]
‘require a company to pay fees to recover an appropriate share of the increased street repair and paving
costs that result from repeated excavation.’”149 Representative Bart Stupak, a sponsor of the legislation,
similarly explained during the debate on Section 253 that “if a company plans to run 100 miles of
trenching in our streets and wires to all parts of the cities, it imposes a different burden on the right-of-
way than a company that just wants to string a wire across two streets to a couple of buildings,” making
clear that the compensation described in the statute is related to the burden, or cost, from a provider’s use
of the ROW.150 These statements buttress our interpretation of the text and structure of Section 253 and
confirm Congress’s apparent intent to craft specific safe harbors for states and localities, and to permit
recovery of reasonable costs related to the ROW as “fair and reasonable compensation,” while
preempting fees above a reasonable approximation of cost that improperly inhibit service.151
58. Capital Expenditures. Apart from the text, structure, and legislative history of the 1996
Act, an additional, independent justification for our interpretation follows from the simple, logical
premise, supported by the record, that state and local fees in one place of deployment necessarily have the
effect of reducing the amount of capital that providers can use to deploy infrastructure elsewhere, whether the reduction takes place on a local, regional or national level.152 We are persuaded that providers and
infrastructure builders, like all economic actors, have a finite (though perhaps fluid)153 amount of
resources to use for the deployment of infrastructure. This does not mean that these resources are
limitless, however. We conclude that fees imposed by localities, above and beyond the recovery of
localities’ reasonable costs, materially and improperly inhibit deployment that could have occurred
elsewhere.154 This and regulatory uncertainty created by such effectively prohibitive conduct155 creates an
appreciable impact on resources that materially limits plans to deploy service. This record evidence
emphasizes the importance of evaluating the effect of fees on Small Wireless Facility deployment on an
aggregate basis. Consistent with the First Circuit’s analysis in Municipality of Guayanilla, the record
persuades us that fees associated with Small Wireless Facility deployment lead to “a substantial increase
in costs”—particularly when considered in the aggregate—thereby “plac[ing] a significant burden” on
carriers and materially inhibiting their provision of service contrary to Section 253 of the Act.156
59. The record is replete with evidence that providers have limited capital budgets that are
constrained by state and local fees.157 As AT&T explains, “[a]ll providers have limited capital dollars to
invest, funds that are quickly depleted when drained by excessive ROW fees.”158 AT&T added that
“[c]ompetitive demands will force carriers to deploy small cells in the largest cities. But, when those
largest cities charge excessive fees to access ROWs and municipal ROW structures, carriers’ finite capital dollars are prematurely depleted, leaving less for investment in mid-level cities and smaller communities.
Larger municipalities have little incentive to not overcharge, and mid-level cities and smaller
municipalities have no ability to avoid this harm.”159 As to areas that might not be sufficiently crucial to
deployment to overcome high fees, AT&T identified jurisdictions in Maryland, California, and
Massachusetts where high fees have directly resulted in paused or decreased deployments.160 Limiting
localities to reasonable cost recovery will “allow[] AT&T and other providers to stretch finite capital
dollars to additional communities.”161 Verizon similarly explains that “[c]apital budgets are finite. When
providers are forced to spend more to deploy infrastructure in one locality, there is less money to spend in
others. The leverage that some cities have to extract high fees means that other localities will not enjoy
next generation wireless broadband services as quickly, if at all.”162 Sprint, too, affirms that, because “all
carriers face limited capital budgets, they are forced to limit the number and pace of their deployment
investments to areas where the delays and impediments are the least onerous, to the detriment of their
customers and, ultimately and ironically, to the very jurisdictions that imposed obstacles in the first
place.”163 Sprint gives a specific example of its deployments in two adjacent jurisdictions – the City of
Los Angeles and Los Angeles County – and describes how high fees in the county prevented Sprint from
activating any small cells there, while more than 500 deployments occurred in the city, which had
significantly lower fees.164 Similarly, Conterra Broadband states that “[w]hen time and capital are
diverted away from actual facility installation and instead devoted to clearing regulatory roadblocks,
consumers and enterprises, including local small businesses, schools and healthcare centers, suffer.”165
Based on the record, we find that fees charged by states and localities are causing actual delays and
restrictions on deployments of Small Wireless Facilities in a number of places across the country in
violation of Section 253(a).166
60. Our conclusion finds further support when one considers the aggregate effects of fees
imposed by individual localities, including, but not limited to, the potential limiting implications for a
nationwide wireless network that reaches all Americans, which is among the key objectives of the
statutory provisions in the 1996 Act that we interpret here.167 When evaluating whether fees result in an
effective prohibition of service due to financial burden, we must consider the marketplace regionally and
nationally and thus must consider the cumulative effects of state or local fees on service in multiple
geographic areas that providers serve or potentially would serve. Where providers seek to operate on a
regional or national basis, they have constrained resources for entering new markets or introducing,
expanding, or improving existing services, particularly given that a provider’s capital budget for a given period of time is often set in advance.168 In such cases, the resources consumed in serving one geographic
area are likely to deplete the resources available for serving other areas.169 The text of Section 253(a) is
not limited by its terms only to effective prohibitions within the geographic area targeted by the state or
local fee. Where a fee in a geographic area affects service outside that geographic area, the statute is most
naturally read to encompass consideration of all affected areas.
61. A contrary, geographically-restrictive interpretation of Section 253(a) would exacerbate
the digital divide by giving dense or wealthy states and localities that might be most critical for a provider
to serve the ability to leverage their unique position to extract fees for their own benefit at the expense of
regional or national deployment by decreasing the deployment resources available for less wealthy or
dense jurisdictions.170 As a result, the areas likely to be hardest hit by excessive government fees are not
necessarily jurisdictions that charge those fees, but rather areas where the case for new, expanded, or
improved service was more marginal to start—and whose service may no longer be economically
justifiable in the near-term given the resources demanded by the “must-serve” areas. To cite some
examples of harmful aggregate effects, AT&T notes that high annual recurring fees are particularly
harmful because of their “continuing and compounding nature.”171 It also states that, “if, as S&P Global
Market Intelligence estimates, small-cell deployments reach nearly 800,000 by 2026, a ROW fee of
$1000 per year …would result in nearly $800 million annually in forgone investment.” 172 Yet another
commenter notes that, “[f]or a deployment that requires a vast number of small cell facilities across a
metropolitan area, these fees quickly mount up to hundreds of thousands of dollars, often making
deployment economically infeasible,” and “far exceed[ing] any costs the locality incurs by orders of
magnitude, while taking capital that would otherwise go to investment in new infrastructure.”173
Endorsing such a result would thwart the purposes underlying Section 253(a). As Crown Castle observes,
“[e]ven where the fees do not result in a direct lack of service in a high-demand area like a city or urban
core, the high cost of building and operating facilities in these jurisdictions consume [sic] capital and
revenue that could otherwise be used to expand wireless infrastructure in higher cost areas. This impact of
egregious fees is prohibitory, and should be taken into account in any prohibition analysis.”174
62. Some municipal commenters endorse a cost-based approach to “ensure that localities are
fully compensated for their costs [and that] fees should be reasonable and non-discriminatory, and should
ensure that localities are made whole”175 in recognition that “getting [5G] infrastructure out in a timely
manner can be a challenge that involves considerable time and financial resources.”176 Commenters from
smaller municipalities recognize that “thousands and thousands of small cells are needed for 5G… [and] old regulations could hinder the timely arrival of 5G throughout the country”177 and urge the Commission
to “establish some common-sense standards insofar as it relates to fees associated with the deployment of
small cells [due to] a cottage industry of consultants [] who have wrongly counseled communities to
adopt excessive and arbitrary fees.”178 Representatives from non-urban areas in particular caution that, “if
the investment that goes into deploying 5G on the front end is consumed by big, urban areas, it will take
longer for it to flow outwards in the direction of places like Florence, [SC].”179 “[R]educing the high
regulatory costs in urban areas would leave more dollars to development in rural areas [because] most of
investment capital is spent in the larger urban areas [since] the cost recovery can be made in those areas.
This leaves the rural areas out.”180 We agree with these commenters, and we further agree with courts
that have considered “the cumulative effect of future similar municipal [fees ordinances]” across a broad
geographic area when evaluating the effect of a particular fee in the context of Section 253(a).181
63. Applying this approach here, the record reveals that fees above a reasonable
approximation of cost, even when they may not be perceived as excessive or likely to prohibit service in
isolation, will have the effect of prohibiting wireless service when the aggregate effects are considered,
particularly given the nature and volume of anticipated Small Wireless Facility deployment.182 The
record reveals that these effects can take several forms. In some cases, the fees in a particular jurisdiction
will lead to reduced or entirely forgone deployment of Small Wireless Facilities in the near term for that
jurisdiction.183 In other cases, where it is essential for a provider to deploy in a given area, the fees
charged in that geographic area can deprive providers of capital needed to deploy elsewhere, and lead to
reduced or forgone near-term deployment of Small Wireless Facilities in other geographic areas.184 In
both of those scenarios the bottom-line outcome on the national development of 5G networks is the
same—diminished deployment of Small Wireless Facilities critical for wireless service and building out
5G networks.185
64. Relationship to Section 332. While the above analysis focuses on the text and structure
of the Act, legislative history, Commission orders, and case law interpreting Section 253(a), we clarify
that the statutory phrase “prohibit or have the effect of prohibiting” in Section 332(c)(7)(B)(i)(II) has the same meaning as the phrase “prohibits or has the effect of prohibiting” in Section 253(a). As noted in the
prior section, there is no evidence to suggest that Congress intended for virtually identical language to
have different meanings in the two provisions.186 Instead, we find it more reasonable to conclude that the
language in both sections should be interpreted to have the same meaning and to reflect the same
standard,187 including with respect to preemption of fees that could “prohibit” or have “the effect of
prohibiting” the provision of covered service. Both sections were enacted to address concerns about state
and local government practices that undermined providers’ ability to provide covered services, and both
bar state or local conduct that prohibits or has the effect of prohibiting service.
65. To be sure, Sections 253 and 332(c)(7) may relate to different categories of state and
local fees. Ultimately, we need not resolve here the precise interplay between Sections 253 and
332(c)(7). It is enough for us to conclude that, collectively, Congress intended for the two provisions to
cover the universe of fees charged by state and local governments in connection with the deployment of
telecommunications infrastructure. Given the analogous purposes of both sections and the consistent
language used by Congress, we find the phrase “prohibit or have the effect of prohibiting” in Section
332(c)(7)(B)(i)(II) should be construed as having the same meaning and governed by the same
preemption standard as the nearly identical language in Section 253(a).188
66. Application of the Interpretations and Principles Established Here. Consistent with the
interpretations above, the requirement that compensation be limited to a reasonable approximation of
objectively reasonable costs and be non-discriminatory applies to all state and local government fees paid
in connection with a provider’s use of the ROW to deploy Small Wireless Facilities including, but not
limited to, fees for access to the ROW itself, and fees for the attachment to or use of property within the
ROW owned or controlled by the government (e.g., street lights, traffic lights, utility poles, and other
infrastructure within the ROW suitable for the placement of Small Wireless Facilities). This
interpretation applies with equal force to any fees reasonably related to the placement, construction,
maintenance, repair, movement, modification, upgrade, replacement, or removal of Small Wireless
Facilities within the ROW, including, but not limited to, application or permit fees such as siting
applications, zoning variance applications, building permits, electrical permits, parking permits, or excavation permits.
67. Applying the principles established in this Declaratory Ruling, a variety of fees not
reasonably tethered to costs appear to violate Sections 253(a) or 332(c)(7) in the context of Small
Wireless Facility deployments.189 For example, we agree with courts that have recognized that gross
revenue fees generally are not based on the costs associated with an entity’s use of the ROW,190 and
where that is the case, are preempted under Section 253(a). In addition, although we reject calls to
preclude a state or locality’s use of third party contractors or consultants, or to find all associated
compensation preempted,191 we make clear that the principles discussed herein regarding the
reasonableness of cost remain applicable. Thus, fees must not only be limited to a reasonable
approximation of costs, but in order to be reflected in fees the costs themselves must also be reasonable.
Accordingly, any unreasonably high costs, such as excessive charges by third party contractors or
consultants, may not be passed on through fees even though they are an actual “cost” to the government.
If a locality opts to incur unreasonable costs, Sections 253 and 332(c)(7) do not permit it to pass those
costs on to providers. Fees that depart from these principles are not saved by Section 253(c), as we
discuss below.
68. Interpretation of Section 253(c) in the Context of Fees. In this section, we turn to the
interpretation of several provisions in Section 253(c), which provides that state or local action that
otherwise would be subject to preemption under Section 253(a) may be permissible if it meets specified
criteria. Section 253(c) expressly provides that state or local governments may require
telecommunications providers to pay “fair and reasonable compensation” for use of public ROWs but
requires that the amounts of any such compensation be “competitively neutral and nondiscriminatory”
and “publicly disclosed.”192
69. We interpret the ambiguous phrase “fair and reasonable compensation,” within the
statutory framework we outlined for Section 253, to allow state or local governments to charge fees that
recover a reasonable approximation of the state or local governments’ actual and reasonable costs. We
conclude that an appropriate yardstick for “fair and reasonable compensation,” and therefore an indicator
of whether a fee violates Section 253(c), is whether it recovers a reasonable approximation of a state or
local government’s objectively reasonable costs of, respectively, maintaining the ROW, maintaining a
structure within the ROW, or processing an application or permit.193
70. We disagree with arguments that “fair and reasonable compensation” in Section 253(c)
should somehow be interpreted to allow state and local governments to charge “any compensation” and
we give weight to BDAC comments that “[a]s a policy matter, the Commission should recognize that
local fees designed to maximize profit are barriers to deployment.”194 Several commenters argue, in
particular, that Section 253(c)’s language must be read as permitting localities latitude to charge any fee
at all195 or a “market-based rent.”196 Many of these arguments seem to suggest that Section 253 or 332
have not previously been read to impose limits on fees, but as noted above courts have long read these
provisions as imposing such limits. Still others argue that limiting the fees state and local governments
may charge amounts to requiring taxpayers to subsidize private companies’ use of public resources.197
We find little support in the record, legislative history, or case law for that position.198 Indeed, our
approach to compensation ensures that cities are not going into the red to support or subsidize the
deployment of wireless infrastructure.
71. The existence of Section 253(c) makes clear that Congress anticipated that “effective
prohibitions” could result from state or local government fees, and intended through that clause to provide
protections in that respect, as discussed in greater detail herein.199 Against that backdrop, we find it
unlikely that Congress would have left providers entirely at the mercy of effectively unconstrained
requirements of state or local governments.200 Our interpretation of Section 253(c), in fact, is consistent
with the views of many municipal commenters, at least with respect to one-time permit or application
fees, and the members of the BDAC Ad Hoc Committee on Rates and Fees who unanimously concurred
that one-time fees for municipal applications and permits, such as an electrical inspection or a building
permit, should be based on the cost to the government of processing that application.201 The Ad Hoc
Committee noted that “[the] cost-based fee structure [for one-time fees] unanimously approved by the
committee accommodates the different siting related costs that different localities may incur to review and
process permit applications, while precluding excessive fees that impede deployment.202 We find that the
same reasoning should apply to other state and local government fees such as ROW access fees or fees for
the use of government property within the ROW.203
72. We recognize that state and local governments incur a variety of direct and actual costs in
connection with Small Wireless Facilities, such as the cost for staff to review the provider’s siting
application, costs associated with a provider’s use of the ROW, and costs associated with maintaining the
ROW itself or structures within the ROW to which Small Wireless Facilities are attached.204 We also
recognize that direct and actual costs may vary by location, scope, and extent of providers’ planned
deployments, such that different localities will have different fees under the interpretation set forth in this
Declaratory Ruling.
73. Because we interpret fair and reasonable compensation as a reasonable approximation of
costs, we do not suggest that localities must use any specific accounting method to document the costs
they may incur when determining the fees they charge for Small Wireless Facilities within the ROW.
Moreover, in order to simplify compliance, when a locality charges both types of recurring fees identified
above (i.e., for access to the ROW and for use of or attachment to property in the ROW), we see no
reason for concern with how it has allocated costs between those two types of fees. It is sufficient under
the statute that the total of the two recurring fees reflects the total costs involved.205 Fees that cannot ultimately be shown by a state or locality to be a reasonable approximation of their costs, such as high
fees designed to subsidize local government costs in another geographic area or accomplish some public
policy objective beyond the providers’ use of the ROW, are not “fair and reasonable compensation…for
use of the public rights-of-way” under Section 253(c).206 Likewise, we agree with both industry and
municipal commenters that excessive and arbitrary consulting fees or other costs should not be
recoverable as “fair and reasonable compensation,”207 because they are not a function of the provider’s
“use” of the public ROW.
74. In addition to requiring that compensation be “fair and reasonable,” Section 253(c)
requires that it be “competitively neutral and nondiscriminatory.” The Commission has previously
interpreted this language to prohibit states and localities from charging fees on new entrants and not on
incumbents.208 Courts have similarly found that states and localities may not impose a range of fees on
one provider but not on another209 and even some municipal commenters acknowledge that governments
should not discriminate on the fees charged to different providers.210 The record reflects continuing
concerns from providers, however, that they face discriminatory charges.211 We reiterate the
Commission’s previous determination that state and local governments may not impose fees on some
providers that they do not impose on others. We would also be concerned about fees, whether one-time
or recurring, related to Small Wireless Facilities, that exceed the fees for other wireless
telecommunications infrastructure in similar situations, and to the extent that different fees are charged
for similar use of the public ROW.212
75. Fee Levels Likely to Comply with Section 253. Our interpretation of Section 253(a) and
“fair and reasonable compensation” under Section 253(c) provides guidance for local and state fees
charged with respect to one-time fees generally, and recurring fees for deployments in the ROW.
Following suggestions for the Commission to “establish a presumptively reasonable ‘safe harbor’ for certain ROW and use fees,”213 and to facilitate the deployment of specific types of infrastructure critical
to the rollout of 5G in coming years, we identify in this section three particular types of fee scenarios and
supply specific guidance on amounts that are presumptively not prohibited by Section 253. Informed by
our review of information from a range of sources, we conclude that fees at or below these amounts
presumptively do not constitute an effective prohibition under Section 253(a) or Section 332(c)(7), and
are presumed to be “fair and reasonable compensation” under Section 253(c).
76. Based on our review of the Commission’s pole attachment rate formula, which would
require fees below the levels described in this paragraph, as well as small cell legislation in twenty states,
local legislation from certain municipalities in states that have not passed small cell legislation, and
comments in the record, we presume that the following fees would not be prohibited by Section 253 or
Section 332(c)(7): (a) $500 for a single up-front application that includes up to five Small Wireless
Facilities, with an additional $100 for each Small Wireless Facility beyond five, and (b) $270 per Small
Wireless Facility per year for all recurring fees, including any possible ROW access fee or fee for
attachment to municipally-owned structures in the ROW..214
77. By presuming that fees at or below the levels above comply with Section 253, we assume
that there would be almost no litigation by providers over fees set at or below these levels. Likewise, our
review of the record, including the many state small cell bills passed to date, indicate that there should be
only very limited circumstances in which localities can charge higher fees consistent with the
requirements of Section 253. In those limited circumstances, a locality could prevail in charging fees that
are above this level by showing that such fees nonetheless comply with the limits imposed by Section
253—that is, that they are (1) a reasonable approximation of costs, (2) those costs themselves are
reasonable, and (3) are non-discriminatory. Allowing localities to charge fees above these levels upon
this showing recognizes local variances in costs.
C. Other State and Local Requirements that Govern Small Facilities Deployment
78. There are also other types of state and local land-use or zoning requirements that may
restrict Small Wireless Facility deployments to the degree that they have the effect of prohibiting service
in violation of Sections 253 and 332. In this section, we discuss how those statutory provisions apply to
requirements outside the fee context both generally, and with particular focus on aesthetic and
undergrounding requirements.
79. As discussed above, a state or local legal requirement constitutes an effective prohibition
if it “materially limits or inhibits the ability of any competitor or potential competitor to compete in a fair and balanced legal and regulatory environment.”215 Our interpretation of that standard, as set forth above,
applies equally to fees and to non-fee legal requirements. And as with fees, Section 253 contains certain
safe harbors that permit some legal requirements that might otherwise be preempted by Section 253(a).
Section 253(b) saves “requirements necessary to preserve and advance universal service, protect the
public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the
rights of consumers.216 And Section 253(c) preserves state and local authority to manage the public
rights-of-way.217
80. Given the wide variety of possible legal requirements, we do not attempt here to
determine which of every possible non-fee legal requirements are preempted for having the effect of
prohibiting service, although our discussion of fees above should prove instructive in evaluating specific
requirements. Instead, we focus on some specific types of requirements raised in the record and provide
guidance on when those particular types of requirements are preempted by the statute.
81. Aesthetics. The Wireless Infrastructure NPRM/NOI sought comment on whether
deployment restrictions based on aesthetic or similar factors are widespread and, if so, how Sections 253
and 332(c)(7) should be applied to them.218 Parties describe a wide range of such requirements that
allegedly restrict deployment of Small Wireless Facilities. For example, many providers criticize
burdensome requirements to deploy facilities using “stealth” designs or other means of camouflage,219 as
well as unduly stringent mandates regarding the size of equipment, colors of paint, and other details.220
Providers also assert that the procedures some localities use to evaluate the appearance of proposed
facilities and to decide whether they comply with applicable land-use requirements are overly
restrictive.221 Many providers are particularly critical of the use of unduly vague or subjective criteria that may apply inconsistently to different providers or are only fully revealed after application, making it
impossible for providers to take these requirements into account in their planning and adding to the time
necessary to deploy facilities.222 At the same time, we have heard concerns in the record about carriers
deploying unsightly facilities that are significantly out of step with similar, surrounding deployments.
82. State and local governments add that many of their aesthetic restrictions are justified by
factors that the providers fail to mention. They assert that their zoning requirements and their review and
enforcement procedures are properly designed to, among other things, (1) ensure that the design,
appearance, and other features of buildings and structures are compatible with nearby land uses; (2)
manage ROW so as to ensure traffic safety and coordinate various uses; and (3) protect the integrity of
their historic, cultural, and scenic resources and their citizens’ quality of life.223
83. Given these differing perspectives and the significant impact of aesthetic requirements on
the ability to deploy infrastructure and provide service, we provide guidance on whether and in what
circumstances aesthetic requirements violate the Act. This will help localities develop and implement
lawful rules, enable providers to comply with these requirements, and facilitate the resolution of disputes.
We conclude that aesthetics requirements are not preempted if they are (1) reasonable, (2) no more
burdensome than those applied to other types of infrastructure deployments, and (3) published in advance.
84. Like fees, compliance with aesthetic requirements imposes costs on providers, and the
impact on their ability to provide service is just the same as the impact of fees. We therefore draw on our
analysis of fees to address aesthetic requirements. We have explained above that fees that merely require
providers to bear the direct and reasonable costs that their deployments impose on states and localities
should not be viewed as having the effect of prohibiting service and are permissible.224 Analogously,
aesthetic requirements that are reasonable in that they are reasonably directed to avoiding or remedying
the intangible public harm of unsightly or out-of-character deployments are also permissible. In assessing
whether this standard has been met, aesthetic requirements that are more burdensome than those the state
or locality applies to similar infrastructure deployments are not permissible, because such discriminatory
application evidences that the requirements are not, in fact, reasonable and directed at remedying the
impact of the wireless infrastructure deployment.
85. Finally, in order to establish that they are reasonable and reasonably directed to avoiding
aesthetic harms, aesthetic requirements must be published in advance. “Secret” rules that require
applicants to guess at what types of deployments will pass aesthetic muster substantially increase
providers’ costs without providing any public benefit or addressing any public harm. Providers cannot
design or implement rational plans for deploying Small Wireless Facilities if they cannot predict in
advance what aesthetic requirements they will be obligated to satisfy to obtain permission to deploy a
facility at any given site.
86. Undergrounding requirements. We understand that some local jurisdictions have
adopted undergrounding provisions that require infrastructure to be deployed below ground based, at least
in some circumstances, on the locality’s aesthetic concerns. A number of providers have complained that
these types of requirements amount to an effective prohibition. 225 In addressing this issue, we first
reiterate that while undergrounding requirements may well be permissible under state law as a general
matter, any local authority to impose undergrounding requirements under state law does not remove the
imposition of such undergrounding requirements from the provisions of Section 253. In this sense, we
note that a requirement that all wireless facilities be deployed underground would amount to an effective
prohibition given the propagation characteristics of wireless signals. In this sense, we agree with the U.S.
Court of Appeals for the Ninth Circuit when it observed that “[i]f an ordinance required, for instance, that
all facilities be underground and the plaintiff introduced evidence that, to operate, wireless facilities must
be above ground, the ordinance would effectively prohibit it from providing services.”226 Thus
undergrounding requirements can amount to effective prohibitions by materially inhibiting the
deployment of wireless service.
87. Minimum spacing requirements. Some parties complain of municipal requirements
regarding the spacing of wireless installations—i.e., mandating that facilities be sited at least 100, 500, or
1,000 feet, or some other minimum distance, away from other facilities, ostensibly to avoid excessive
overhead “clutter” that would be visible from public areas.227 We acknowledge that while some such
requirements may violate 253(a), others may be reasonable aesthetic requirements. Therefore, such
requirements should be evaluated under the same standards as other aesthetic requirements.228
D. States and Localities Act in Their Regulatory Capacities When Authorizing and Setting Terms for Wireless Infrastructure Deployment in Public Rights of Way
88. We confirm that our interpretations today extend to state and local governments’ terms
for access to public ROW that they own or control, including areas on, below, or above public roadways,
highways, streets, sidewalks, or similar property, as well as their terms for use of or attachment to
government-owned property within such ROW, such as light poles, traffic lights, and similar property
suitable for hosting Small Wireless Facilities.229 As explained below, for two alternative and independent
reasons, we disagree with state and local government commenters who assert that, in providing or
denying access to government-owned structures, these governmental entities function solely as “market
participants” whose rights cannot be subject to federal preemption under Section 253(a) or Section
332(c)(7).230
89. First, this effort to differentiate between such governmental entities’ “regulatory” and
“proprietary” capacities in order to insulate the latter from preemption ignores a fundamental feature of
the market participant doctrine.231 As the Ninth Circuit has observed, at its core, this doctrine is “a
presumption about congressional intent,” which “may have a different scope under different federal
statutes.”232 The Supreme Court has likewise made clear that the doctrine is applicable only “[i]n the
absence of any express or implied indication by Congress.”233 In contrast, where state action conflicts
with express or implied federal preemption, the market participant doctrine does not apply, whether or not
the state or local government attempts to impose its authority over use of public rights-of-way by permit
or by lease or contract.234 Here, both Sections 253(a) and Section 332(c)(7)(B)(i)(II) expressly address
preemption, and neither carves out an exception for proprietary conduct.235
90. Specifically, Section 253(a) expressly preempts certain state and local “legal
requirements” and makes no distinction between a state or locality’s regulatory and proprietary conduct.
Indeed, as the Commission has long recognized, Section 253(a)’s sweeping reference to “state [and] local
statute[s] [and] regulation[s]” and “other State [and] local legal requirement[s]” demonstrates Congress’s
intent “to capture a broad range of state and local actions that prohibit or have the effect of prohibiting
entities from providing telecommunications services.”236 Section 253(b) mentions “requirement[s],” a
phrase that is even broader than that used in Section 253(a) but covers “universal service,” “public safety
and welfare,” “continued quality of telecommunications,” and “safeguard[s for the] rights of consumers.”
The subsection does not recognize a distinction between regulatory and proprietary. Section 253(c),
which expressly insulates from preemption certain state and local government activities, refers in relevant
part to “manag[ing] the public rights-of-way” and “requir[ing] fair and reasonable compensation,” while
eliding any distinction between regulatory and proprietary action in either context. The Commission has
previously observed that Section 253(c) “makes explicit a local government’s continuing authority to
issue construction permits regulating how and when construction is conducted on roads and other public
rights-of-way;”237 we conclude here that, as a general matter, “manage[ment]” of the ROW includes any
conduct that bears on access to and use of those ROW, notwithstanding any attempts to characterize such
conduct as proprietary.238 This reading, coupled with Section 253(c)’s narrow scope, suggests that
Congress’s omission of a blanket proprietary exception to preemption was intentional and thus that such
conduct can be preempted under Section 253(a). We therefore construe Section 253(c)’s requirements,
including the requirement that compensation be “fair and reasonable,” as applying equally to charges
imposed via contracts and other arrangements between a state or local government and a party engaged in
wireless facility deployment.239 This interpretation is consistent with Section 253(a)’s reference to “State or local legal requirement[s],” which the Commission has consistently construed to include such
agreements.240 In light of the foregoing, whatever the force of the market participant doctrine in other
contexts,241 we believe the language, legislative history, and purpose of Sections 253(a) and (c) are
incompatible with the application of this doctrine in this context. We observe once more that “[o]ur
conclusion that Congress intended this language to be interpreted broadly is reinforced by the scope of
section 253(d),” which “directs the Commission to preempt any statute, regulation, or legal
requirement permitted or imposed by a state or local government if it contravenes sections 253(a) or (b).
A more restrictive interpretation of the term ‘other legal requirements’ easily could permit state and local
restrictions on competition to escape preemption based solely on the way in which [State] action [is]
structured. We do not believe that Congress intended this result.”242
91. Similarly, and as discussed elsewhere,243 we interpret Section 332(c)(7)(B)(ii)’s
references to “any request[s] for authorization to place, construct, or modify personal wireless service
facilities” broadly, consistent with Congressional intent. As described below, we find that “any” is
unqualifiedly broad, and that “request” encompasses anything required to secure all authorizations
necessary for the deployment of personal wireless services infrastructure. In particular, we find that
Section 332(c)(7) includes authorizations relating to access to a ROW, including but not limited to the
“place[ment], construct[ion], or modif[ication]” of facilities on government-owned property, for the
purpose of providing “personal wireless service.” We observe that this result, too, is consistent with
Commission precedent such as the Minnesota Order, which involved a contract that provided exclusive
access to a ROW. As but one example, to have limited that holding to exclude government-owned
property within the ROW even if the carrier needed access to that property would have the effect of
diluting or completely defeating the purpose of Section 332(c)(7).244
92. Second, and in the alternative, even if Section 253(a) and Section 332(c)(7) were to
permit leeway for States and localities acting in their proprietary role, the examples in the record would
be excepted because they involve States and localities fulfilling regulatory objectives.245 In the proprietary context, “a State acts as a ‘market participant with no interest in setting policy.’”246 We
contrast state and local governments’ purely proprietary actions with states and localities acting with
respect to managing or controlling access to property within public ROW, or to decisions about where
facilities that will provide personal wireless service to the public may be sited. As several commenters
point out, courts have recognized that states and localities “hold the public streets and sidewalks in trust
for the public” and “manage public ROW in their regulatory capacities.”247 These decisions could be
based on a number of regulatory objectives, such as aesthetics or public safety and welfare, some of
which, as we note elsewhere, would fall within the preemption scheme envisioned by Congress. In these
situations, the State or locality’s role seems to us to be indistinguishable from its function and objectives
as a regulator.248 To the extent that there is some distinction, the temptation to blend the two roles for
purposes of insulating conduct from federal preemption cannot be underestimated in light of the
overarching statutory objective that telecommunications service and personal wireless services be
deployed without material impediments.
93. Our interpretation of both provisions finds ample support in the record of this proceeding.
Specifically, commenters explain that public ROW and government-owned structures within such ROW
are frequently relied upon to supply services for the benefit of the public, and are often the best-situated
locations for the deployment of wireless facilities.249 However, the record is also replete with examples of
states and localities refusing to allow access to such ROW or structures, or imposing onerous terms and
conditions for such access.250 These examples extend far beyond governments’ treatment of single
structures;251 indeed, in some cases it has been suggested that states or localities are using their proprietary roles to effectuate a general municipal policy disfavoring wireless deployment in public
ROW.252 We believe that Section 253(c) is properly construed to suggest that Congress did not intend to
permit states and localities to rely on their ownership of property within a ROW as a pretext to advance
regulatory objectives that prohibit or have the effect of prohibiting the provision of covered services, and
thus that such conduct is preempted.253 Our interpretations here are intended to facilitate the
implementation of the scheme Congress intended and to provide greater regulatory certainty to states,
municipalities, and regulated parties about what conduct is preempted under Section 253(a). Should
factual questions arise about whether a state or locality is engaged in such behavior, Section 253(d)
affords state and local governments and private parties an avenue for specific preemption challenges.
E. Responses to Challenges to Our Interpretive Authority and Other Arguments
94. We reject claims that we lack authority to issue authoritative interpretations of Sections
253 and 332(c)(7) in this Declaratory Ruling. As explained above, we act here pursuant to our broad
authority to interpret key provisions of the Communications Act, consistent with our exercise of that
interpretive authority in the past.254 In this instance, we find that issuing a Declaratory Ruling is
necessary to remove what the record reveals is substantial uncertainty and to reduce the number and
complexity of legal controversies regarding certain fee and non-fee state and local legal requirements in
connection with Small Wireless Facility infrastructure. We thus exercise our authority in this Declaratory
Ruling to interpret Section 253 and Section 332(c)(7) and explain how those provisions apply in the
specific scenarios at issue here.255
95. Nothing in Sections 253 or 332(c)(7) purports to limit the exercise of our general interpretive authority.256 Congress’s inclusion of preemption provisions in Section 253(d) and Section
332(c)(7)(B)(v) does not limit the Commission’s ability pursuant to other sections of the Act to construe
and provide its authoritative interpretation as to the meaning of those provisions.257 Any preemption
under Section 253 and/or Section 332(c)(7)(B) that subsequently occurs will proceed in accordance with
the enforcement mechanisms available in each context. But whatever enforcement mechanisms may be
available to preempt specific state and local requirements, nothing in Section 253 or Section 332(c)(7)
prevents the Commission from declaring that a category of state or local laws is inconsistent with Section
253(a) or Section 332(c)(7)(B)(i)(II) because it prohibits or has the effect of prohibiting the relevant
covered service.258
96. Although some commenters contend in general terms that differences in judicial
approaches to Section 253 are limited and thus there is little need for Commission guidance,259 the interpretations we offer in this Declaratory Ruling are intended to help address certain specific scenarios
that have caused significant uncertainty and legal controversy, irrespective of the degree to which this
uncertainty has been reflected in court decisions. We also reject claims that a Supreme Court brief joined
by the Commission demonstrates that there is no need for the interpretations in this Declaratory Ruling.260
To the contrary, that brief observed that some potential interpretations of certain court decisions “would
create a serious conflict with the Commission’s understanding of Section 253(a), and [] would undermine
the federal competition policies that the provision seeks to advance.”261 The brief also noted that, if
warranted, “the Commission can restore uniformity by issuing authoritative rulings on the application of
Section 253(a) to particular types of state and local requirements.”262 Rather than cutting against the need
for, or desirability of, the interpretations we offer in this Declaratory Ruling, the brief instead presaged
them.263
97. Our interpretations of Sections 253 Section 332(c)(7) are likewise not at odds with the
Tenth Amendment and constitutional precedent, as some commenters contend.264 In particular, our
interpretations do not directly “compel the states to administer federal regulatory programs or pass
legislation.”265 The outcome of violations of Section 253(a) or Section 332(c)(7)(B) of the Act are no
more than a consequence of “the limits Congress already imposed on State and local governments” through its enactment of Section 332(c)(7).266
98. We also reject the suggestion that the limits Section 253 places on state and local rights-
of-way fees and management will unconstitutionally interfere with the relationship between a state and its
political subdivisions.267 As relevant to our interpretations here, it is not clear, at first blush, that such
concerns would be implicated.268 Because state and local legal requirements can be written and structured
in myriad ways, and challenges to such state or local activities could be framed in broad or narrow terms,
we decline to resolve such questions here, divorced from any specific context.
IV. THIRD REPORT AND ORDER
99. In this Third Report and Order, we address the application of shot clocks to state and
local review of wireless infrastructure deployments. We do so by taking action in three main areas. First,
we adopt a new set of shot clocks tailored to support the deployment Small Wireless Facilities. Second,
we adopt a specific remedy that applies to violations of these new Small Wireless Facility shot clocks,
which we expect will operate to significantly reduce the need for litigation over missed shot clocks.
Third, we clarify a number of issues that are relevant to all of the FCC’s shot clocks, including the types
of authorizations subject to these time periods.
A. New Shot Clocks for Small Wireless Facility Deployments
100. In 2009, the Commission concluded that we should use shot clocks to define a
presumptive “reasonable period of time” beyond which state or local inaction on wireless infrastructure
siting applications would constitute a “failure to act” within the meaning of Section 332.269 We adopted a
90-day clock for reviewing collocation applications and a 150-day clock for reviewing siting applications
other than collocations. The record here suggests that our two existing Section 332 shot clocks have
increased the efficiency of deploying wireless infrastructure. Many localities already process wireless
siting applications in less time than required by those shot clocks and a number of states have enacted
laws requiring that collocation applications be processed in 60 days or less.270 Some siting agencies
acknowledge that they have worked to gain efficiencies in processing siting applications and welcome the addition of new shot clocks tailored to the deployment of small scale facilities.271 Given siting agencies’
increased experience with existing shot clocks, the greater need for rapid siting of Small Wireless
Facilities nationwide, and the lower burden siting of these facilities places on siting agencies in many
cases, we take this opportunity to update our approach to speed the deployment of Small Wireless
Facilities.272
1. Two New Section 332 Shot Clocks for Deployment of Small Wireless Facilities
101. In this section, using authority confirmed in City of Arlington, we adopt two new Section
332 shot clocks for Small Wireless Facilities – 60 days for collocation of Small Wireless Facilities on
preexisting structures and 90 days for new construction of such facilities. These new Section 332 shot
clocks carefully balance the well-established authority that states and local authorities have over review of
wireless siting applications with the requirements of Section 332(c)(7)(ii) to exercise that authority
“within a reasonable period of time… taking into account the nature and scope of the request.”273 Further,
our decision is consistent with the Model Code for Municipalities recommended by the FCC’s Broadband
Deployment Advisory Committee, which utilizes this same 60-day and 90-day framework for collocation
of Small Wireless Facilities and new structures.274 Our actions will modernize the framework for wireless
facility siting by taking into consideration that states and localities should be able to address the siting of
Small Wireless Facilities in a more expedited review period than needed for larger facilities.275
102. We find compelling reasons to establish a new presumptively reasonable Section 332
shot clock of 60 days for collocations of Small Wireless Facilities on existing structures. The record
demonstrates the need for, and reasonableness of, expediting the siting review of these collocations.276
Notwithstanding the implementation of the current shot clocks, more streamlined procedures are both
reasonable and necessary to provide greater predictability for siting applications nationwide for the
deployment of Small Wireless Facilities. The two current Section 332 shot clocks do not reflect the
evolution of the application review process and evidence that localities can complete reviews more
quickly than was the case when the existing Section 332 shot clocks were adopted nine years ago. Since
2009, localities have gained significant experience processing wireless siting applications.277 Indeed,
many localities already process wireless siting applications in less than the required time278 and several
jurisdictions require by law that collocation applications be processed in 60 days or less.279 With the
passage of time, siting agencies have become more efficient in processing siting applications.280 These
facts demonstrate that a shorter, 60-day shot clock for processing collocation applications for Small
Wireless Facilities is reasonable.281
103. As we found in 2009, collocation applications are generally easier to process than new construction because the community impact is likely to be smaller.282 In particular, the addition of an
antenna to an existing tower or other structure is unlikely to have a significant visual impact on the
community. 283 The size of Small Wireless Facilities poses little or no risk of adverse effects on the
environment or historic preservation.284 Indeed, many jurisdictions do not require public hearings for
approval of such attachments, underscoring their belief that such attachments do not implicate complex
issues requiring a more searching review.285
104. Further, we find no reason to believe that applying a 60-day time frame for Small
Wireless Facility collocations under Section 332 creates confusion with collocations that fall within the
scope of “eligible facilities requests” under Section 6409 of the Spectrum Act, which are also subject to a
60-day review.286 The type of facilities at issue here are distinctly different and the definition of a Small
Wireless Facility is clear. Further, siting authorities are required to process Section 6409 applications
involving the swap out of certain equipment in 60 days, and we see no meaningful difference in
processing these applications than processing Section 332 collocation applications in 60 days. There is
no reason to apply different time periods (60 vs. 90 days) to what is essentially the same review:
modification of an existing structure to accommodate new equipment. 287 Finally, adopting a 60-day
shot clock will encourage service providers to collocate rather than opting to build new siting structures
which has numerous advantages.288
105. Some municipalities argue that smaller facilities are neither objectively “small” nor less
obtrusive than larger facilities.289 Others contend that shorter shot clocks for a broad category of
“smaller” facilities would fail to take into account the varied and unique climate, historic architecture,
infrastructure, and volume of siting applications that municipalities face.290 We take those considerations
into account by clearly defining the category of “Small Wireless Facility” in our rules and allowing siting
agencies to rebut the presumptive reasonableness of the shot clocks based upon the actual circumstances they face. For similar reasons, we disagree that establishing shorter shot clocks for smaller facilities
would impair states’ and localities’ authority to regulate local rights of way.291
106. While some commenters argue that additional shot clock classifications would make the
siting process needlessly more complex without any proven benefits,292 any additional administrative
burden from increasing the number of Section 332 shot clocks from two to four is outweighed by the
likely significant benefit of regulatory certainty and the resulting streamlined deployment process.293 We
also reject the assertion that revising the period of time to review siting decisions would amount to a
nationwide land use code for wireless siting.294 Our approach is consistent with the Model Code for
Municipalities that recognizes that the shot clocks that we are adopting for the review of Small Wireless
Facility deployment applications correctly balance the needs of local siting agencies and wireless service
providers.295 Our balance of the relevant considerations is informed by our experience with the
previously adopted shot clocks, the record in this proceeding, and our predictive judgment about the
effectiveness of actions taken here to promote the provision of personal wireless services.
107. For similar reasons as set forth above, we also find it reasonable to establish a new 90 day
Section 332 shot clock for new construction of Small Wireless Facilities. Ninety days is a presumptively
reasonable period of time for localities to review such siting applications. Small Wireless Facilities have
far less visual and other impact than the facilities we considered in 2009, and should accordingly require
less time to review.296 Indeed, some state and local governments have already adopted 60-day maximum
reasonable periods of time for review of all small cell siting applications, and, even in the absence of such
maximum requirements, several are already reviewing and approving small-cell siting applications within
60 days or less after filing.297 Numerous industry commenters advocated a 90-day shot clock for all non-collocation deployments. 298 Based on this record, we find it reasonable to conclude that construction of a
new Small Wireless Facility warrants more review time than a mere collocation of the same, but less than
the construction of a macro tower.
108. Finally, we note that our 60- and 90-day approach is similar to that in pending legislation
that has bipartisan congressional support, and is consistent with the Model Code for Municipalities.
Specifically, the draft STREAMLINE Small Cell Deployment Act, would apply a 60-day shot clock to
collocation of small personal wireless service facilities and a 90-day shot clock to any other action
relating to small personal wireless service facilities.299 Further, the Model Code for Municipalities
recommended by the FCC’s Broadband Deployment Advisory Committee also utilizes this same 60-day
and 90-day framework for collocation of Small Wireless Facilities and new structures.300
2. Batched Applications for Small Wireless Facilities
109. Given the way in which Small Wireless Facilities are likely to be deployed, in large
numbers as part of a system meant to cover a particular area, we anticipate that some applicants will
submit “batched” applications: multiple separate applications filed at the same time, each for one or more
sites or a single application covering multiple sites.301 In the Wireless Infrastructure NPRM/NOI, the
Commission asked whether batched applications should be subject to either longer or shorter shot clocks
than would apply if each component of the batch were submitted separately.302 Industry commenters
contend that the shot clock applicable to a batch or a class of applications should be no longer than that
applicable to an individual application of the same class.303 On the other hand, several commenters,
contend that batched applications have often been proposed in historic districts and historic buildings
(areas that require a more complex review process), and given the complexities associated with reviews of
that type, they urge the Commission not to apply shorter shot clocks to batched applications.304 Some localities also argue that a single, national shot clock for batched applications would fail to account for
unique local circumstances.305
110. We see no reason why the shot clocks for batched applications to deploy Small Wireless
Facilities should be longer than those that apply to individual applications because, in many cases, the
batching of such applications has advantages in terms of administrative efficiency that could actually
make review easier.306 Our decision flows from our current Section 332 shot clock policy. Under our
two existing Section 332 shot clocks, if an applicant files multiple siting applications on the same day for
the same type of facilities, each application is subject to the same number of review days by the siting
agency.307 These multiple siting applications are equivalent to a batched application and therefore the
shot clocks for batching should follow the same rules as if the applications were filed separately.
Accordingly, when applications to deploy Small Wireless Facilities are filed in batches, the shot clock
that applies to the batch is the same one that would apply had the applicant submitted individual
applications. Should an applicant file a single application for a batch that includes both collocated and
new construction of Small Wireless Facilities, the longer 90-day shot clock will apply, to ensure that the
siting authority has adequate time to review the new construction sites.
111. We recognize the concerns raised by parties arguing for a longer time period for at least
some batched applications, but conclude that a separate rule is not necessary to address these concerns.
Under our approach, in extraordinary cases, a siting authority, as discussed below, can rebut the
presumption of reasonableness of the applicable shot clock period where a batch application causes
legitimate overload on the siting authority’s resources. 308 Thus, contrary to some localities’ arguments,309
our approach provides for a certain degree of flexibility to account for exceptional circumstances. In
addition, consistent with, and for the same reasons as our conclusion below that Section 332 does not
permit states and localities to prohibit applicants from requesting multiple types of approvals
simultaneously,310 we find that Section 332(c)(7)(B)(ii) similarly does not allow states and localities to
refuse to accept batches of applications to deploy Small Wireless Facilities.
B. New Remedy for Violations of the Small Wireless Facilities Shot Clocks
112. In adopting these new shot clocks for Small Wireless Facility applications, we also
provide an additional remedy that we expect will substantially reduce the likelihood that applicants will
need to pursue additional and costly relief in court at the expiration of those time periods.
113. At the outset, and for the reasons the Commission articulated when it adopted the 2009
shot clocks, we determine that the failure of a state or local government to issue a decision on a Small
Wireless Facility siting application within the presumptively reasonable time periods above will
constitute a “failure to act” within the meaning of Section 332(c)(7)(B)(v). Therefore, a provider is, at a
minimum, entitled to the same process and remedies available for a failure to act within the new Small
Wireless Facility shot clocks as they have been under the FCC’s 2009 shot clocks. But we also add an additional remedy for our new Small Wireless Facility shot clocks.
114. State or local inaction by the end of the Small Wireless Facility shot clock will function
not only as a Section 332(c)(7)(B)(v) failure to act but also amount to a presumptive prohibition on the
provision of personal wireless services within the meaning of Section 332(c)(7)(B)(i)(II). Accordingly,
we would expect the state or local government to issue all necessary permits without further delay. In
cases where such action is not taken, we assume, for the reasons discussed below, that the applicant
would have a straightforward case for obtaining expedited relief in court.311
115. As discussed in the Declaratory Ruling, a regulation under Section 332(c)(7)(B)(i)(II)
constitutes an effective prohibition if it materially limits or inhibits the ability of any competitor or
potential competitor to compete in a fair and balanced legal and regulatory environment.312 Missing shot
clock deadlines would thus presumptively have the effect of unlawfully prohibiting service in that such
failure to act can be expected to materially limit or inhibit the introduction of new services or the
improvement of existing services.313 Thus, when a siting authority misses the applicable shot clock
deadline, the applicant may commence suit in a court of competent jurisdiction alleging a violation of
Section 332(c)(7)(B)(i)(II), in addition to a violation of Section 332(c)(7)(B)(ii), as discussed above. The
siting authority then will have an opportunity to rebut the presumption of effective prohibition by
demonstrating that the failure to act was reasonable under the circumstances and, therefore, did not
materially limit or inhibit the applicant from introducing new services or improving existing services.
116. Given the seriousness of failure to act within a reasonable period of time, we expect, as
noted above, siting authorities to issue without any further delay all necessary authorizations when
notified by the applicant that they have missed the shot clock deadline, absent extraordinary
circumstances. Where the siting authority nevertheless fails to issue all necessary authorizations and
litigation is commenced based on violations of Sections 332(c)(7)(B)(i)(II) and/or 332(c)(7)(B)(ii), we
expect that applicants and other aggrieved parties will likely pursue equitable judicial remedies.314 Given
the relatively low burden on state and local authorities of simply acting—one way or the other—within
the Small Wireless Facility shot clocks, we think that applicants would have a relatively low hurdle to
clear in establishing a right to expedited judicial relief. Indeed, for violations of Section 332(c)(7)(B),
courts commonly have based the decision whether to award permanent injunctive relief on several factors.
As courts have concluded, permanent injunctions fulfill Congressional intent that action on applications
be timely and that courts consider violations of Section 332(c)(7)(B) on an expedited basis.315 In addition,
courts have observed that “[a]lthough Congress in the Telecommunications Act left intact some of local
zoning boards’ authority under state law,” they should not be owed deference on issues relating to Section
332(c)(7)(B)(ii), meaning that “in the majority of cases the proper remedy for a zoning board decision that violates the Act will be an order. . . instructing the board to authorize construction.”316 Such relief
also is supported where few or no issues remain to be decided, and those that remain can be addressed by
a court.317
117. Consistent with those sensible considerations reflected in prior precedent, we expect that
courts will typically find expedited and permanent injunctive relief warranted for violations of Sections
332(c)(7)(B)(i)(II) and 332(c)(7)(B)(ii) of the Act when addressing the circumstances discussed in this
Order. Prior findings that permanent injunctive relief best advances Congress’s intent in assuring speedy
resolution of issues encompassed by Section 332(c)(7)(B) appear equally true in the case of deployments
of Small Wireless Facilities covered by our interpretation of Section 332(c)(7)(B)(ii) in this Third Report
and Order.318 Although some courts, in deciding whether a permanent injunction is the appropriate form
of relief, have considered whether a siting authority’s delay resulted from bad faith or involved other
abusive conduct,319 we do not read the trend in court precedent overall to treat such considerations as
more than relevant (as opposed to indispensable) to an injunction. We believe that this approach is
sensible because guarding against barriers to the deployment of personal wireless facilities not only
advances the goal of Section 332(c)(7)(B) but also policies set out elsewhere in the Communications Act
and 1996 Act, as the Commission recently has recognized in the case of Small Wireless Facilities.320 This
is so whether or not these barriers stem from bad faith. Nor do we anticipate that there would be
unresolved issues implicating the siting authority’s expertise and therefore requiring remand in most
instances.
118. In light of the more detailed interpretations that we adopt here regarding reasonable time
frames for siting authority action on specific categories of requests—including guidance regarding
circumstances in which longer time frames nonetheless can be reasonable—we expect that litigation
generally will involve issues that can be resolved entirely by the relevant court. Thus, as the Commission
has stated in the past, “in the case of a failure to act within the reasonable time frames set forth in our
rules, and absent some compelling need for additional time to review the application, we believe that it
would also be appropriate for the courts to treat such circumstances as significant factors weighing in
favor of [injunctive] relief.”321 We therefore caution those involved in potential future disputes in this
area against placing too much weight on the Commission’s recognition that a siting authority’s failure to
act within the associated timeline might not always result in a permanent injunction under the Section
332(c)(7)(B) framework while placing too little weight on the Commission’s recognition that policies
established by federal communications laws are advanced by streamlining the process for deploying
wireless facilities.
119. We anticipate that the traditional requirements for awarding permanent injunctive relief
would likely be satisfied in most cases and in most jurisdictions where a violation of 332(c)(7)(B)(i)(II)
and/or 332(c)(7)(B)(ii) is found. Typically, courts require movants to establish the following elements of permanent injunctive relief: (1) actual success on the merits, (2) continuing irreparable injury, (3) the
absence of an adequate remedy at law, (4) the injury to the movant outweighs whatever damage the
proposed injunction may cause the opposing party, and (5) award of injunctive relief would not be
adverse to the public interest. 322 Actual success on the merits would be demonstrated when an applicant
prevails in its failure-to-act or effective prohibition case.323 Continuing irreparable injury likely would be
found because remand to the siting authority “would serve no useful purpose” and would further delay the
applicant’s ability to provide personal wireless service to the public in the area where deployment is
proposed, as some courts have previously determined.324 There also would be no adequate remedy at law
because applicants “have a federal statutory right to participate in a local [personal wireless services]
market free from municipally-imposed barriers to entry,” and money damages cannot directly substitute
for this right.325 The public interest and the balance of harms also would likely favor the award of
permanent injunction because the purpose of Section 332(c)(7) is to encourage the rapid deployment of
personal wireless facilities while preserving, within bounds, the authority of states and localities to
regulate the deployment of such facilities, and the public would benefit if further delays in the
deployment of such facilities—which a remand would certainly cause—are prevented.326 We also expect
that the harm to the siting authority would be minimal because the only right of which it would be
deprived by a permanent injunction is the right to act on the siting application beyond a reasonable time
period,327 a right that “is not legally cognizable, because under [Sections 332(c)(7)(B)(i)(II) and
332(c)(7)(B)(ii)], the [siting authority] has no right to exercise this power.”328 Thus, in the context of
Small Wireless Facilities, we expect that the most appropriate remedy in typical cases involving a
violation of Sections 332(c)(7)(B)(i)(II) and/or 332(c)(7)(B)(ii) is the award of permanent injunctive relief
in the form of an order to issue all necessary authorizations.329
120. Our approach advances Section 332(c)(7)(B)(v)’s provision that certain siting disputes,
including those involving a siting authority’s failure to act, shall be heard and decided by a court of competent jurisdiction on an expedited basis. The framework reflected in this Order will provide the
courts with substantive guiding principles in adjudicating Section 332(c)(7)(B)(v) cases, but it will not
dictate the result or the remedy appropriate for any particular case; the determination of those issues will
remain within the courts’ domain.330 This accords with the Fifth Circuit’s recognition in City of Arlington
that the Act could be read “as establishing a framework in which a wireless service provider must seek a
remedy for a state or local government’s unreasonable delay in ruling on a wireless siting application in a
court of competent jurisdiction while simultaneously allowing the FCC to issue an interpretation of
§ 332(c)(7)(B)(ii) that would guide courts’ determinations of disputes under that provision.”331
121. The guidance provided here should reduce the need for, and complexity of, case-by-case
litigation and reduce the likelihood of vastly different timing across various jurisdictions for the same
type of deployment.332 This clarification, along with the other actions we take in this Third Report and
Order, should streamline the courts’ decision-making process and reduce the possibility of inconsistent
rulings. Consequently, we believe that our approach helps facilitate courts’ ability to “hear and decide
such [lawsuits] on an expedited basis,” as the statute requires.333
122. Reducing the likelihood of litigation and expediting litigation where it cannot be avoided
should significantly reduce the costs associated with wireless infrastructure deployment. For instance,
WIA states that if one of its members were to challenge every shot clock violation it has encountered, it
would be mired in lawsuits with forty-six localities.334 And this issue is likely to be compounded given
the expected densification of wireless networks. Estimates indicate that deployments of small cells could
reach up to 150,000 in 2018 and nearly 800,000 by 2026.335 If, for example, 30 percent (based on T-Mobile’s experience336) of these expected deployments are not acted upon within the applicable shot
clock period, that would translate to 45,000 violations in 2018 and 240,000 violations in 2026.337 These
sheer numbers would render it practically impossible to commence Section 332(c)(7)(B)(v) cases for all
violations, and litigation costs for such cases likely would be prohibitive and could virtually bar providers
from deploying wireless facilities.338
123. Our updated interpretation of Section 332(c)(7) for Small Wireless Facilities effectively
balances the interest of wireless service providers to have siting applications granted in a timely and
streamlined manner339 and the interest of localities to protect public safety and welfare and preserve their
authority over the permitting process.340 Our specialized deployment categories, in conjunction with the
acknowledgement that in rare instances, it may legitimately take longer to act, recognize that the siting
process is complex and handled in many different ways under various states’ and localities’ long-
established codes. Further, our approach tempers localities’ concerns about the inflexibility of the
Wireless Infrastructure NPRM/NOI’s deemed granted proposal because the new remedy we adopt here
accounts for the breadth of potentially unforeseen circumstances that individual localities may face and
the possibility that additional review time may be needed in truly exceptional circumstances.341 We
further find that our interpretive framework will not be unduly burdensome on localities because a
number of states have already adopted even more stringent deemed granted remedies.342
124. At the same time, we see merit in the argument made by some commenters that the FCC
has the authority to adopt a deemed granted remedy.343 Nonetheless, we do not find it necessary to decide that issue today, as we are confident that the rules and interpretations adopted here will provide
substantial relief, effectively avert unnecessary litigation, allow for expeditious resolution of siting
applications, and strike the appropriate balance between relevant policy considerations and statutory
objectives344 guiding our analysis.345
125. We expect that our decision here will result in localities addressing applications within
the applicable shot clocks in a far greater number of cases. Moreover, we expect that the limited
instances in which a locality does not issue a decision within that time period will result in an increase in
cases where the locality then issues all needed permits. In what we expect would then be only a few cases
where litigation commences, our decision makes clear the burden that localities would need to clear in
those circumstances. 346 Our updated interpretation of Section 332 for Small Wireless Facilities will help
courts to decide failure-to-act cases expeditiously and avoid delays in reaching final dispositions.347
Placing this burden on the siting authority should address the concerns raised by supporters of a deemed
granted remedy—that filing suit in court to resolve a siting dispute is burdensome and expensive on
applicants, the judicial system, and citizens—because our interpretations should expedite the courts’
decision-making process.
126. We find that the more specific deployment categories and shot clocks, which
presumptively represent the reasonable period within which to act, will prevent the outcome proponents
of a deemed granted remedy seek to avoid: that siting agencies would be forced to reject applications
because they would be unable to review the applications within the prescribed shot clock period.348
Because the more specific deployment categories and shot clocks inherently account for the nature and
scope of a variety of deployment applications, our new approach should ensure that siting agencies have
adequate time to process and decide applications and will minimize the risk that localities will fail to act
within the established shot clock periods. Further, in cases where a siting authority misses the deadline,
the opportunity to demonstrate exceptional circumstances provides an effective and flexible way for siting
agencies to justify their inaction if genuinely warranted. Our overall framework, therefore, should
prevent situations in which a siting authority would feel compelled to summarily deny an application
instead of evaluating its merits within the applicable shot clock period.349 We also note that if the
approach we take in this Order proves insufficient in addressing the issues it is intended to resolve, we
may again consider adopting a deemed granted remedy in the future.
127. Some commenters also recommend that the Commission issue a list of “Best Practices”
or “Recommended Practices.”350 The joint comments filed by NATOA and other government
associations suggest the “development of an informal dispute resolution process to remove parties from
an adversarial relationship to a partnership process designed to bring about the best result for all
involved” and the development of “a mediation program which could help facilitate negotiations for
deployments for parties who seem to have reached a point of intractability.”351 Although we do not at this
time adopt these proposals, we note that the steps taken in this order are intended to facilitate cooperation
between parties to reach mutually agreed upon solutions. For example, as explained below, mutual
agreement between the parties will toll the running of the shot clock period, thereby allowing parties to
resolve disagreements in a collaborative, instead of an adversarial, setting.352
C. Clarification of Issues Related to All Section 332 Shot Clocks
1. Authorizations Subject to the “Reasonable Period of Time” Provision of Section 332(c)(7)(B)(ii)
128. As indicated above, Section 332(c)(7)(B)(ii) requires state and local governments to act
“within a reasonable period of time” on “any request for authorization to place, construct, or modify
personal wireless service facilities.”353 Neither the 2009 Declaratory Ruling nor the 2014 Wireless
(Continued from previous page)
2016) (nineteen months from complaint to grant of summary judgment); Orange County–Poughkeepsie Ltd. P’ship
v. Town of E. Fishkill, 84 F. Supp. 3d 274, 293 (S.D.N.Y.), aff’d sub nom., Orange County–County Poughkeepsie
Ltd. P’ship v. Town of E. Fishkill, 632 F. App’x 1 (2d Cir. 2015) (seventeen months from complaint to grant of
summary judgment). Infrastructure Order addressed the specific types of authorizations subject to this requirement. Industry
commenters contend that the shot clocks should apply to all authorizations a locality may require, and to
all aspects of and steps in the siting process, including license or franchise agreements to access ROW,
building permits, public notices and meetings, lease negotiations, electric permits, road closure permits,
aesthetic approvals, and other authorizations needed for deployment.354 Local siting authorities, on the
other hand, argue that a broad application of Section 332 will harm public safety and welfare by not
giving them enough time to evaluate whether a proposed deployment endangers the public.355 They assert
that building and encroachment permits should not be subsumed within the shot clocks because these
permits incorporate essential health and safety reviews.356 After carefully considering these arguments,
we find that “any request for authorization to place, construct, or modify personal wireless service
facilities” under Section 332(c)(7)(B)(ii) means all authorizations necessary for the deployment of
personal wireless services infrastructure. This interpretation finds support in the record and is consistent
with the courts’ interpretation of this provision and the text and purpose of the Act.
129. The starting point for statutory interpretation is the text of the statute,357 and here, the
statute is written broadly, applying to “any” request for authorization to place, construct, or modify
personal wireless service facilities. The expansive modifier “any” typically has been interpreted to mean
“one or some indiscriminately of whatever kind,” unless Congress “add[ed] any language limiting the
breadth of that word.”358 The title of Section 332(c)(7) (“Preservation of local zoning authority”) does not
restrict the applicability of this section to zoning permits in light of the clear text of Section
332(c)(7)(B)(ii).359 The text encompasses not only requests for authorization to place personal wireless
service facilities, e.g., zoning requests, but also requests for authorization to construct or modify personal
wireless service facilities. These activities typically require more than just zoning permits. For example,
in many instances, localities require building permits, road closure permits, and the like to make
construction or modification possible.360 Accordingly, the fact that the title standing alone could be read to limit Section 332(c)(7) to zoning decisions does not overcome the specific language of Section
332(c)(7)(B)(ii), which explicitly applies to a variety of authorizations.361
130. The purpose of the statute also supports a broad interpretation. As noted above, the
Supreme Court has stated that the 1996 Act was enacted “to promote competition and higher quality in
American telecommunications services and to encourage the rapid deployment of new
telecommunications technologies” by, inter alia, reducing “the impediments imposed by local
governments upon the installation of facilities for wireless communications, such as antenna towers.”362
A narrow reading of the scope of Section 332 would frustrate that purpose by allowing local governments
to erect impediments to the deployment of personal wireless services facilities by using or creating other
forms of authorizations outside of the scope of Section 332(c)(7)(B)(ii).363 This is especially true in
jurisdictions requiring multi-departmental siting review or multiple authorizations. 364
131. In addition, our interpretation remains faithful to the purpose of Section 332(c)(7) to
balance Congress’s competing desires to preserve the traditional role of state and local governments in
regulating land use and zoning, while encouraging the rapid development of new telecommunications
technologies.365 Under our interpretation, states and localities retain their authority over personal wireless
facilities deployment. At the same time, deployment will be kept on track by ensuring that the entire
approval process necessary for deployment is completed within a reasonable period of time, as defined by
the shot clocks addressed in this Third Report and Order.
132. A number of courts have either explicitly or implicitly adopted the same view, that all
necessary permits are subject to Section 332. For example, in Cox Communications PCS, L.P. v. San
Marcos, the court considered an excavation permit application as falling within the parameters of Section
332.366 In USCOC of Greater Missouri, LLC v. County of Franklin, the Eighth Circuit reasoned that
“[t]he issuance of the requisite building permits” for the construction of a personal wireless services
facility arises under Section 332(c)(7).367 In Ogden Fire Co. No. 1 v. Upper Chichester Township, the
Third Circuit affirmed the district court’s order compelling the township to issue a building permit for the construction of a wireless facility after finding that the township had violated Section 332(c)(7).368 In
Upstate Cellular Network v. Auburn, the court directed the city to approve the application, including site
plan approval by the planning board, granting a variance by the zoning authority, and “any other
municipal approval or permission required by the City of Auburn and its boards or officers, including but
not limited to, a building permit.”369 And in PI Telecom Infrastructure V, LLC v. Georgetown–Scott
County Planning Commission, the court ordered that the locality grant “any and all permits necessary for
the construction of the proposed wireless facility.”370 Our interpretation is also consistent with judicial
precedents involving challenges under Section 332(c)(7)(B) to denials by a wide variety of governmental
entities, many of which involved variances,371 special use/conditional use permits,372 land disturbing
activity and excavation permits,373 building permits,374 and a state department of education permit to
install an antenna at a high school.375 Notably, a lot of cases have involved local agencies that are
separate and distinct from the local zoning authority,376 confirming that Section 332(c)(7)(B) is not
limited in application to decisions of zoning authorities. Our interpretation also reflects the examples in
the record where providers are required to obtain other types of authorizations besides zoning permits
before they can “place, construct, or modify personal wireless service facilities.”377
133. We reject the argument that this interpretation of Section 332 will harm the public
because it would “mean that building and safety officials would have potentially only a few days to
evaluate whether a proposed deployment endangers the public.”378 Building and safety officials will be
subject to the same applicable shot clock as all other siting authorities involved in processing the siting
application, with the amount of time allowed varying in the rare case where officials are unable to meet
the shot clock because of exceptional circumstances.
2. Codification of Section 332 Shot Clocks
134. In addition to establishing two new Section 332 shot clocks for Small Wireless Facilities,
we take this opportunity to codify our two existing Section 332 shot clocks for siting applications that do
not involve Small Wireless Facilities. In the 2009 Declaratory Ruling, the Commission found that 90 days
is a reasonable time frame for processing collocation applications and 150 days is a reasonable time frame to
process applications other than collocations.379 Since these Section 332 shot clocks were adopted as part of a
declaratory ruling, they were not codified in our rules. In the Wireless Infrastructure NPRM/NOI, the
Commission sought comment on whether to modify these shot clocks.380 We find no need to modify
them here and will continue to use these shot clocks for processing Section 332 siting applications that do
not involve Small Wireless Facilities. 381 We do, though, codify these two existing shot clocks in our
rules alongside the two newly-adopted shot clocks so that all interested parties can readily find the shot
clock requirements in one place.
135. While some commenters argue for a 60-day shot clock for all collocation categories,382
we conclude that we should retain the existing 90-day shot clock for collocations not involving Small
Wireless Facilities. Collocations that do not involve Small Wireless Facilities include deployments of
larger antennas and other equipment that may require additional time for localities to review and
process.383 For similar reasons, we maintain the existing 150-day shot clock for new construction
applications that are not for Small Wireless Facilities. While some industry commenters such as WIA,
Samsung, and Crown Castle argue for a 90-day shot clock for macro cells and small cells alike, we agree
with commenters such as the City of New Orleans that there is a significant difference between the review
of applications for a single 175-foot tower versus the review of a Small Wireless Facility with much
smaller dimensions.384
3. Collocations on Structures Not Previously Zoned for Wireless Use
136. Wireless industry commenters assert that they should be able to take advantage of the
Section 332 collocation shot clock even when collocating on structures that have not previously been
approved for wireless use.385 Siting agencies respond that the wireless industry is effectively seeking to
have both the collocation definition and a reduced shot clock apply to sites that have never been approved
by the local government as suitable for wireless facility deployment.386 We take this opportunity to
clarify that for purposes of the Section 332 shot clocks, attachment of facilities to existing structures
constitutes collocation, regardless whether the structure or the location has previously been zoned for
wireless facilities. As the Commission stated in the 2009 Declaratory Ruling, “an application is a request
for collocation if it does not involve a ‘substantial increase in the size of a tower’ as defined in the
Nationwide Programmatic Agreement (NPA) for the Collocation of Wireless Antennas.”387 The
definition of “[c]ollocation” in the NPA provides for the “mounting or installation of an antenna on an
existing tower, building or structure for the purpose of transmitting and/or receiving radio frequency
signals for communications purposes, whether or not there is an existing antenna on the structure.” 388
The NPA’s definition of collocation explicitly encompasses collocations on structures and buildings that
have not yet been zoned for wireless use. To interpret the NPA any other way would be unduly narrow
and there is no persuasive reason to accept a narrower interpretation. This is particularly true given that
the NPA definition of collocation stands in direct contrast with the definition of collocation in the
Spectrum Act, pursuant to which facilities only fall within the scope of an “eligible facilities request” if
they are attached to towers or base stations that have already been zoned for wireless use.389
4. When Shot Clocks Start and Incomplete Applications
137. In the 2014 Wireless Infrastructure Order, the Commission clarified, among other things,
that a shot clock begins to run when an application is first submitted, not when the application is deemed
complete.390 The clock can be paused, however, if the locality notifies the applicant within 30 days that
the application is incomplete. 391 The locality may pause the clock again if it provides written notice
within 10 days that the supplemental submission did not provide the information identified in the original
notice delineating missing information. 392 In the Wireless Infrastructure NPRM/NOI, the Commission sought comment on these determinations.393 Localities contend that the shot clock period should not
begin until the application is deemed complete.394 Industry commenters argue that the review period for
incompleteness should be decreased from 30 days to 15 days.395
138. Based on the record, we find no cause to alter the Commission’s prior determinations and
now codify them in our rules. Codified rules, easily accessible to applicants and localities alike, should
provide helpful clarity. The complaints by states and localities about the sufficiency of some of the
applications they receive are adequately addressed by our current policy, which preserves the states’ and
localities’ ability to pause review when they find an application to be incomplete. We do not find it
necessary at this point to shorten our 30-day initial review period for completeness because, as was the
case when this review period was adopted in the 2009 Declaratory Ruling, it remains consistent with
review periods for completeness under existing state wireless infrastructure deployment statutes396 and
still “gives State and local governments sufficient time for reviewing applications for completeness, while
protecting applicants from a last minute decision that an application should be denied as incomplete.”397
139. As noted above, multiple authorizations may be required before a deployment is allowed
to move forward. For instance, a locality may require a zoning permit, a building permit, an electrical
permit, a road closure permit, and an architectural or engineering permit for an applicant to place,
construct, or modify its proposed personal wireless service facilities. 398 All of these permits are subject to
Section 332’s requirement to act within a reasonable period of time, and thus all are subject to the shot
clocks we adopt or codify here.
140. We also find that mandatory pre-application procedures and requirements do not toll the
shot clocks. 399 Industry commenters claim that some localities impose burdensome pre-application
requirements before they will start the shot clock.400 Localities counter that in many instances, applicants
submit applications that are incomplete in material respects, that pre-application interactions smooth the
application process, and that many of their pre-application requirements go to important health and safety matters.401 We conclude that the ability to toll a shot clock when an application is found incomplete or by
mutual agreement by the applicant and the siting authority should be adequate to address these concerns.
Much like a requirement to file applications one after another, requiring pre-application review would
allow for a complete circumvention of the shot clocks by significantly delaying their start date. An
application is not ruled on within “a reasonable period of time after the request is duly filed” if the state or
locality takes the full ordinary review period after having delayed the filing in the first instance due to
required pre-application review. Indeed, requiring a pre-application review before an application may be
filed is similar to imposing a moratorium, which the Commission has made clear does not stop the shot
clocks from running.402 Therefore, we conclude that if an applicant proffers an application, but a state or
locality refuses to accept it until a pre-application review has been completed,403 the shot clock begins to
run when the application is proffered. In other words, the request is “duly filed” at that time,404
notwithstanding the locality’s refusal to accept it.
141. That said, we encourage voluntary pre-application discussions, which may well be useful
to both parties. The record indicates that such meetings can clarify key aspects of the application review
process, especially with respect to large submissions or applicants new to a particular locality’s processes,
and may speed the pace of review.405 To the extent that an applicant voluntarily engages in a pre-
application review to smooth the way for its filing, the shot clock will begin when an application is filed,
presumably after the pre-application review has concluded.
142. We also reiterate, consistent with the 2009 Declaratory Ruling, that the remedies granted
under Section 332(c)(7)(B)(v) are independent of, and in addition to, any remedies that may be available
under state or local law.406 Thus, where a state or locality has established its own shot clocks, an applicant may pursue any remedies granted under state or local law in cases where the siting authority
fails to act within those shot clocks.407 However, the applicant must wait until the Commission shot clock
period has expired to bring suit for a “failure to act” under Section 332(c)(7)(B)(v).408
V. PROCEDURAL MATTERS
143. Final Regulatory Flexibility Analysis. With respect to this Third Report and Order, a
Final Regulatory Flexibility Analysis (FRFA) is contained in Appendix C. As required by Section 603 of
the Regulatory Flexibility Act, the Commission has prepared a FRFA of the expected impact on small
entities of the requirements adopted in this Third Report and Order. The Commission will send a copy of
the Third Report and Order, including the FRFA, to the Chief Counsel for Advocacy of the Small
Business Administration.
144. Paperwork Reduction Act. This Third Report and Order does not contain new or revised
information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law
104-13.
145. Congressional Review Act. The Commission will send a copy of this Declaratory Ruling
and Third Report and Order in a report to be sent to Congress and the Government Accountability Office
pursuant to the Congressional Review Act (CRA), see 5 U.S.C. § 801(a)(1)(A).
VI. ORDERING CLAUSES
146. Accordingly, IT IS ORDERED, pursuant to Sections 1, 4(i)-(j), 7, 201, 253, 301, 303,
309, 319, and 332 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 154(i)-(j), 157,
201, 253, 301, 303, 309, 319, 332, that this Declaratory Ruling and Third Report and Order in WT Docket
No. 17-79 IS hereby ADOPTED.
147. IT IS FURTHER ORDERED that Part 1 of the Commission’s Rules is AMENDED as set
forth in Appendix A, and that these changes SHALL BE EFFECTIVE 30 days after publication in the
Federal Register.
148. IT IS FURTHER ORDERED that this Third Report and Order SHALL BE effective 30
days after its publication in the Federal Register. The Declaratory Ruling and the obligations set forth
therein ARE EFFECTIVE on the same day that this Third Report and Order becomes effective. It is our
intention in adopting the foregoing Declaratory Ruling and these rule changes that, if any provision of the
Declaratory Ruling or the rules, or the application thereof to any person or circumstance, is held to be
unlawful, the remaining portions of such Declaratory Ruling and the rules not deemed unlawful, and the
application of such Declaratory Ruling and the rules to other person or circumstances, shall remain in
effect to the fullest extent permitted by law.
149. IT IS FURTHER ORDERED that the Commission’s Consumer & Governmental Affairs
Bureau, Reference Information Center, SHALL SEND a copy of this Declaratory Ruling and Third
Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy
of the Small Business Administration.
150. IT IS FURTHER ORDERED that this Declaratory Ruling and Third Report and Order
SHALL BE sent to Congress and the Government Accountability Office pursuant to the Congressional
Review Act, see 5 U.S.C. 801(a)(1)(A).
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
Federal Communications Commission
APPENDIX A
Final Rules
Streamlining State and Local Review of Wireless Facility Siting Applications
Part 1 – Practice and Procedure
1. authority citation for Part 1 continues to read as follows:
AUTHORITY: 47 U.S.C. 151, 154(i) and (j), 155, 157, 160, 201, 224, 225, 227, 303, 309, 310, 332,
1403, 1404, 1451, 1452, and 1455.
2. Add subpart U to Part 1 of Title 47 to read as follows:
Subpart U—State and Local Government Regulation of the Placement,
Construction, and Modification of Personal Wireless Service Facilities
§ 1.6001 Purpose.
This subpart implements 47 U.S.C. 332(c)(7) and 1455.
§ 1.6002 Definitions.
Terms used in this subpart have the following meanings:
(a) Action or to act on a siting application means a siting authority’s grant of a siting application or
issuance of a written decision denying a siting application.
(b) Antenna, consistent with Rule 1.1320(d), means an apparatus designed for the purpose of emitting
radiofrequency (RF) radiation, to be operated or operating from a fixed location pursuant to Commission
authorization, for the provision of personal wireless service and any commingled information services.
For purposes of this definition, the term antenna does not include an unintentional radiator, mobile
station, or device authorized under part 15 of this title.
(c) Antenna equipment, consistent with Rule 1.1320(d), means equipment, switches, wiring, cabling,
power sources, shelters or cabinets associated with an antenna, located at the same fixed location as the
antenna, and, when collocated on a structure, is mounted or installed at the same time as such antenna.
(d) Antenna facility means an antenna and associated antenna equipment.
(e) Applicant means a person or entity that submits a siting application and the agents, employees, and
contractors of such person or entity.
(f) Authorization means any approval that a siting authority must issue under applicable law prior to the
deployment of personal wireless service facilities, including, but not limited to, zoning approval and
building permit.
(g) Collocation, consistent with the Nationwide Programmatic Agreement (NPA) for the Collocation of
Wireless Antennas, means—
(1) Mounting or installing an antenna facility on a pre-existing structure, and/or
(2) Modifying a structure for the purpose of mounting or installing an antenna facility on that structure.
(h) Deployment means placement, construction, or modification of a personal wireless service facility.
(i) Facility or personal wireless service facility means an antenna facility or a structure that is used for the
provision of personal wireless service, whether such service is provided on a stand-alone basis or
commingled with other wireless communications services.
(j) Siting application or application means a written submission to a siting authority requesting
authorization for the deployment of a personal wireless service facility at a specified location.
(k) Siting authority means a State government, local government, or instrumentality of a State
government or local government, including any official or organizational unit thereof, whose
authorization is necessary prior to the deployment of personal wireless service facilities.
(l) Small wireless facility, consistent with Section 1.1312(e)(2), is a facility that meets each of the
following conditions:
(1) The structure on which antenna facilities are mounted—
(i) Is 50 feet or less in height, or
(ii) Is no more than 10 percent taller than other adjacent structures, or
(iii) Is not extended to a height of more than 10 percent above its preexisting height as a result of the collocation of new antenna facilities; and
(2) Each antenna (excluding associated antenna equipment) is no more than three cubic feet in
volume; and
(3) All antenna equipment associated with the facility (excluding antennas) are cumulatively no more
than 28 cubic feet in volume; and
(4) The facility does not require antenna structure registration under part 17 of this chapter;
(5) The facility is not located on Tribal lands, as defined under 36 C.F.R. § 800.16(x); and
(6) The facility does not result in human exposure to radiofrequency radiation in excess of the
applicable safety standards specified in Rule 1.1307(b)
(m) Structure means a pole, tower, base station, or other building, whether or not it has an existing
antenna facility, that is used or to be used for the provision of personal wireless service (whether on its
own or comingled with other types of services).
Terms not specifically defined in this section or elsewhere in this subpart have the meanings defined in
Part 1 of Title 47 and the Communications Act of 1934, 47 U.S.C. § 151 et seq.
§ 1.6003 Reasonable periods of time to act on siting applications
(a) Timely action required. A siting authority that fails to act on a siting application on or before the shot
clock date for the application, as defined in paragraph (e) of this section, is presumed not to have acted
within a reasonable period of time.
(b) Shot clock period. The shot clock period for a siting application is the sum of—
(1) the number of days of the presumptively reasonable period of time for the pertinent type of
application, pursuant to paragraph (c) of this section, plus
(2) the number of days of the tolling period, if any, pursuant to paragraph (d) of this section.
(c) Presumptively reasonable periods of time.
(1) The following are the presumptively reasonable periods of time for action on applications seeking
authorization for deployments in the categories set forth below:
(i) Collocation of small wireless facilities: 60 days.
(ii) Collocation of facilities other than small wireless facilities: 90 days.
(iii) Construction of new small wireless facilities: 90 days.
(iv) Construction of new facilities other than small wireless facilities: 150 days.
(2) Batching.
(i) If a single application seeks authorization for multiple deployments, all of which fall within a category set forth in either paragraph (c)(1)(i) or paragraph (c)(1)(iii) of this section, then the presumptively reasonable period of time for the application as a whole is equal to that for a single deployment within that category.
(ii) If a single application seeks authorization for multiple deployments, the components of which are a mix of deployments that fall within paragraph (c)(1)(i) and deployments that fall within paragraph (c)(1)(iii) of this section, then the presumptively reasonable period of time for the application as a whole is 90 days.
(iii) Siting authorities may not refuse to accept applications under paragraphs (c)(2)(i) and (c)(2)(ii).
(d) Tolling period. The tolling period for an application (if any) is—
(1) The period of time established by written agreement of the applicant and the siting authority; or
(2) The number of days from—
(i) The day after the date when the siting authority notifies the applicant in writing that the application is materially incomplete and clearly and specifically identifies the missing documents or information that the applicant must submit to render the application complete, until
(ii) The date when the applicant submits all the documents and information identified by the siting authority to render the application complete,
(iii) But only if the notice pursuant to paragraph (d)(2)(i) is effectuated on or before the 30th day after the date when the application was submitted; or
(3) The number of days from—
(i) The day after the date when the siting authority notifies the applicant in writing that the applicant’s supplemental submission was not sufficient to render the application complete and clearly and specifically identifies the missing documents or information that need to be submitted based on the siting authority’s original request under paragraph (d)(2) of this section, until
(ii) The date when the applicant submits all the documents and information identified by the siting authority to render the application complete,
(iii) But only if the notice pursuant to paragraph (d)(3)(i) is effectuated on or before the 10th day after the date when the applicant makes a supplemental submission in response to the siting authority’s request under paragraph (d)(2) of this section
(e) Shot clock date. The shot clock date for a siting application is determined by counting forward,
beginning on the day after the date when the application was submitted, by the number of calendar days
of the shot clock period identified pursuant to paragraph (b) of this section and including any pre-
application period asserted by the siting authority; provided, that if the date calculated in this manner is a
“holiday” as defined in Rule 1.4(e)(1) or a legal holiday within the relevant State or local jurisdiction, the
shot clock date is the next business day after such date. The term “business day” means any day as
defined in Rule 1.4(e)(2) and any day that is not a legal holiday as defined by the State or local
jurisdiction.
1. Redesignate section 1.40001 as section 1.6100, and remove and reserve paragraph (a).
2. Remove subpart CC.
APPENDIX B
Comments and Reply Comments
Comments
- 5G Americas
- Aaron Rosenzweig
- ACT | The App Association
- Advisory Council on Historic Preservation
- Advisors to the International EMF Scientist Appeal
- African American Mayors Association
- Agua Caliente Band of Cahuilla Indians Tribal Historic Preservation Office
- Alaska Department of Transportation & Public Facilities
- Alaska Native Health Board
- Alaska Office of History and Archaeology
- Alexandra Ansell
- American Association of State Highway and Transportation Officials
- American Bird Conservancy
- American Cable Association
- American Petroleum Institute
- American Public Power Association
- Angela Fox
- Arctic Slope Regional Corporation
- Arizona State Parks & Trails, State Historic Preservation Office
- Arkansas SHPO
- Arnold A. McMahon
- Association of American Railroads
- AT&T
- B. Golomb
- Bad River Band of Lake Superior Tribe of Chippewa Indians
- Benjamin L. Yousef
- BioInitiative Working Group
- Blue Lake Rancheria
- Board of County Road Commissioners of the County of Oakland
- Bristol Bay Area Health Corporation
- Cahuilla Band of Indians
- California Office of Historic Preservation, Department of Parks and Recreation
- California Public Utilities Commission
- Cape Cod Bird Club, Inc.
- Catawba Indian Nation Tribal Historic Preservation Office
- Charter Communications, Inc.
- Cheyenne River Sioux Tribe Cultural Preservation Office
- Chickasaw Nation
- Chippewa Cree Tribe
- Choctaw Nation of Oklahoma
- Chuck Matzker
- Cindy Li
- Cindy Russell
- Cities of San Antonio, Texas; Eugene, Oregon; Bowie, Maryland; Huntsville, Alabama; and Knoxville, Tennessee
- Citizen Potawatomi Nation
- Citizens Against Government Waste
- City and County of San Francisco
- City of Alexandria, Virginia; Arlington County, Virginia; and Henrico County, Virginia
- City of Arlington, Texas
- City of Austin, Texas
- City of Bellevue, City of Bothell, City of Burien, City of Ellensburg, City of Gig Harbor, City of Kirkland, City of Mountlake Terrace, City of Mukilteo, City of Normandy Park, City of Puyallup, City of Redmond, and City of Walla Walla
- City of Chicago
- City of Claremont (Tony Ramos, City Manager)
- City of Eden Prairie, MN
- City of Houston
- City of Irvine, California
- City of Kenmore, Washington, and David Baker, Vice-Chair, National League of Cities Information Technology and Communications Committee
- City of Lansing, Michigan
- City of Mukilteo
- City of New Orleans, Louisiana
- City of New York
- City of Philadelphia
- City of Springfield, Oregon
- Cityscape Consultants, Inc.
- Coalition for American Heritage, Society for American Archaeology, American Cultural Resources Association, Society for Historical Archaeology, and American Anthropological Association
- Colorado Communications and Utility Alliance (CCUA), Rainier Communications Commission (RCC), City of Seattle, Washington, City of Tacoma, Washington, King County, Washington, Jersey Access Group (JAG), and Colorado Municipal League (CML)
- Colorado River Indian Tribes
- Colorado State Historic Preservation Office
- Comcast Corporation
- Commissioner Sal Pace, Pueblo Board of County Commissioners
- Community Associations Institute
- Competitive Carriers Association
- CompTIA (The Computing Technology Industry Association)
- Computer & Communications Industry Association (CCIA)
- Confederated Tribes of the Colville Reservation
- Confederated Tribes of the Umatilla Indian Reservation Cultural Resources Protection Program
- Consumer Technology Association
- Conterra Broadband Services, Southern Light, LLC, and Uniti Group, Inc.
- Critical Infrastructure Coalition
- Crow Creek Sioux Tribe
- Crown Castle
- CTIA
- CTIA and Wireless Infrastructure Association
- David Roetman, Minnehaha County GOP Chairman
- Defenders of Wildlife
- Department of Arkansas Heritage (Arkansas Historic Preservation Program)
- DuPage Mayors and Managers Conference
- East Bay Municipal Utility District
- Eastern Shawnee Tribe of Oklahoma
- Edward Czelada
- Elijah Mondy
- Elizabeth Doonan
- Ellen Marks
- EMF Safety Network, Ecological Options Network
- Environmental Health Trust
- ExteNet Systems, Inc.
- Fairfax County, Virginia
- FibAire Communications, LLC d/b/a AireBeam
- Florida Coalition of Local Governments
- Fond du Lac Band of Lake Superior Chippewa
- Forest County Potawatomi Community of Wisconsin
- Fort Belknap Indian Community
- Free State Foundation
- General Communication, Inc.
- Georgia Department of Transportation
- Georgia Historic Preservation Division
- Georgia Municipal Association, Inc.
- Gila River Indian Community
- Greywale Advisors
- History Colorado (Colorado State Historic Preservation Office)
- Hongwei Dong
- Hualapai Department of Cultural Resources
- Illinois Department of Transportation
- Illinois Municipal League
- INCOMPAS
- Information Technology and Innovation Foundation
- International Telecommunications Users Group
- Jack Li
- Jackie Cale
- Jerry Day
- Joel M. Moskowitz, Ph.D.
- Jonathan Mirin
- Joyce Barrett
- Karen Li
- Karen Spencer
- Karon Gubbrud
- Kate Kheel
- Kaw Nation
- Kevin Mottus
- Keweenaw Bay Indian Community
- Kialegee Tribal Town
- League of Arizona Cities and Towns, League of California Cities, and League of Oregon Cities
- League of Minnesota Cities
- Leo Cashman
- Lower Brule Sioux Tribe
- Li Sun
- Lightower Fiber Networks
- Lisbeth Britt
- Lower Brule Sioux Tribe
- Maine Department of Transportation
- Marty Feffer
- Mary Whisenand, Iowa Governor’s Commission on Community Action Agencies
- Mashantucket (Western) Pequot Tribe
- Mashpee Wampanoag Tribe
- Matthew Goulet
- Mayor Patrick Furey, City of Torrance, California
- McLean Citizens Association
- Miami Tribe of Oklahoma
- Missouri State Historic Preservation Office
- Mobile Future
- Mobilitie, LLC
- Mohegan Tribe of Indians of Connecticut
- Montana State Historic Preservation Office
- Monte R. Lee and Company
- Muckleshoot Indian Tribe
- Muscogee (Creek) Nation
- National Association of Tower Erectors (NATE)
- National Association of Tribal Historic Preservation Officers
- National Black Caucus of State Legislators
- National Conference of State Historic Preservation Officers
- National Congress of American Indians
- National Congress of American Indians, National Association of Tribal Historic Preservation Officers, and United South and Eastern Tribes Sovereignty Protection Fund
- National Congress of American Indians and United South and Eastern Tribes Sovereignty Protection Fund
- National League of Cities
- National League of Cities, United States Conference of Mayors, International Municipal Lawyers Association, Government Finance Officers Association, National Association of Counties, National Association of Regional Councils, National Association of Towns and Townships, and National Association of Telecommunications Officers and Advisors
- National Tribal Telecommunications Association
- National Trust for Historic Preservation
- Native Public Media
- NATOA
- Natural Resources Defense Council
- Navajo Nation and the Navajo Nation Telecommunications Regulatory Commission
- Naveen Albert
- NCTA – The Internet & Television Association
- nepsa solutions LLC
- New Mexico Department of Cultural Affairs, Historic Preservation Division
- Nez Perce Tribe
- Nina Beety
- Nokia
- North Carolina State Historic Preservation Office
- Northern Cheyenne Tribal Historic Preservation Office
- NTCA – The Rural Broadband Association
- Office of Historic Preservation for the Mashantucket Pequot Tribal Nation of Connecticut
- Ohio State Historic Preservation Office
- Oklahoma History Center State Historic Preservation Office
- Olemara Peters
- Omaha Tribe of Nebraska
- ONE Media, LLC
- Oregon State Historic Preservation Office
- Osage Nation
- Otoe-Missouria Tribe
- Pala Band of Mission Indians
- Patrick Wronkiewicz
- Pechanga Band of Luiseno Indians
- Pennsylvania State Historic Preservation Office
- Prairie Island Indian Community
- PTA-FLA, Inc .
- Pueblo of Laguna
- Pueblo of Pojoaque
- Pueblo of Tesuque
- Puerto Rico State Historic Preservation Office
- Quad Cities Cable Communications Commission
- Quapaw Tribe of Oklahoma
- R Street Institute
- Rebecca Carol Smith
- Red Cliff Band of Lake Superior Chippewa
- Representative Tom Sloan, State of Kansas House of Representatives
- Representatives Anna G. Eshoo, Frank Pallone, Jr., and Raul Ruiz, U.S. House of Representatives
- Rhode Island Historical Preservation and Heritage Commission
- Rosebud Sioux Tribe Tribal Historic Preservation Cultural Resource Management Office
- Ronald M. Powell, Ph.D.
- S. Quick
- Sacred Wind Communications, Inc.
- Samsung Electronics America, Inc.
- Santa Clara Pueblo
- Sault Ste. Marie Tribe of Chippewa Indians
- SCAN NATOA, Inc.
- Seminole Nation of Oklahoma
- Seminole Tribe of Florida
- Senator Duane Ankney, Montana State Senate
- Shawnee Tribe
- Sisseton Wahpeton Oyate
- Skokomish Indian Tribe Tribal Historic Preservation Office
- Skull Valley Band of Goshute
- Smart Communities and Special Districts Coalition
- Soula Culver
- Sprint
- Standing Rock Sioux Tribe
- Starry, Inc.
- State of Washington Department of Archaeology & Historic Preservation
- Sue Present
- Swinomish Indian Tribal Community
- Table Mountain Rancheria Tribal Government Office
- Tanana Chiefs Conference
- Telecommunications Industry Association
- Texas Department of Transportation
- Texas Historical Commission
- Thlopthlocco Tribal Town
- T-Mobile USA, Inc.
- Tonkawa Tribe of Oklahoma
- Triangle Communication System, Inc.
- Twenty-Nine Palms Band of Mission Indians
- United Keetoowah Band of Cherokee Indians In Oklahoma
- Utah Department of Transportation
- Ute Mountain Ute Tribe
- Utilities Technology Council
- Verizon
- Wampanoag Tribe of Gay Head (Aquinnah)
- WEC Energy Group, Inc.
- Wei Shen
- Wei-Ching Lee, MD, California Medical Association Delegate of Los Angeles County
- Winnebago Tribe of Nebraska
- Wireless Infrastructure Association
- Wireless Internet Service Providers Association
- Xcel Energy Services Inc.
Reply Comments
- Alaska State Historic Preservation Office
- American Cable Association
- American Public Power Association
- Association of American Railroads
- California Public Utilities Commission
- Catherine Kleiber
- Chippewa Cree Tribe
- Cities of San Antonio, Texas; Eugene, Oregon; Bowie, Maryland; Huntsville, Alabama; and Knoxville, Tennessee
- City of Baltimore, Maryland
- City of New York
- City of Philadelphia
- Colorado Communications and Utility Alliance (CCUA), Rainier Communications Commission (RCC), City of Seattle, Washington, City of Tacoma, Washington, King County, Washington, Jersey Access Group (JAG), and Colorado Municipal League (CML)
- Comcast Corporation
- Communications Workers of America
- Competitive Carriers Association
- Consumer Technology Association
- Conterra Broadband Services, Southern Light, LLC, and Uniti Group Inc.
- Critical Infrastructure Coalition
- CTIA
- Dan Kleiber
- Enterprise Wireless Alliance
- Environmental Health Trust
- ExteNet Systems, Inc.
- Florida Coalition of Local Governments
- Confederated Tribes of Grand Ronde Community of Oregon Historic Preservation Department
- INCOMPAS
- Irregulators
- League of Arizona Cities and Towns, League of California Cities, and League of Oregon Cities
- National Association of Regulatory Utility Commissioners
- National Association of Telecommunications Officers and Advisors, National League of Cities, National Association of Towns and Townships, National Association of Regional Councils, United States Conference of Mayors, and Government Finance Officers Association
- National Congress of American Indians, United South and Eastern Tribes Sovereignty Protection Fund, and National Association of Tribal Historic Preservation Officers
- National Organization of Black Elected Legislative (NOBEL) Women
- National Rural Electric Cooperative Association
- Navajo Nation and the Navajo Nation Telecommunications Regulatory Commission
- NCTA – The Internet & Television Association
- ueblo of Acoma
- Puerto Rico Telephone Company, Inc., d/b/a Claro
- Quintillion Networks, LLC, and Quintillion Subsea Operations, LLC
- Rebecca Carol Smith
- SDN Communications
- Skyway Towers, LLC
- SmallCellSite.Com
- Smart Communities and Special Districts Coalition
- Sue Present
- The Greenlining Institute
- T-Mobile USA, Inc.
- Triangle Communication System, Inc.
- United States Conference of Mayors
- Verizon
- Washington, D.C. Office of the Chief Technology Officer
- Wireless Internet Service Providers Association
- Xcel Energy Services Inc.
APPENDIX C
Final Regulatory Flexibility Analysis
1. As required by the Regulatory Flexibility Act of 1980, as amended (RFA),409 an Initial
Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rulemaking (NPRM),
released in April 2017.410 The Commission sought written public comment on the proposals in the
NPRM, including comment on the IRFA. The comments received are addressed below in Section B.
This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.411
A. Need for and Objectives of the Rules
2. In the Third Report and Order, the Commission continues its efforts to promote the
timely buildout of wireless infrastructure across the country by eliminating regulatory impediments that
unnecessarily delay bringing personal wireless services to consumers. The record shows that lengthy
delays in approving siting applications by siting agencies has been a persistent problem.412 With this in
mind, the Third Report and Order establishes and codifies specific rules concerning the amount of time
siting agencies may take to review and approve certain categories of wireless infrastructure siting
applications. More specifically, the Commission addresses its Section 332 shot clock rules for
infrastructure applications which will be presumed reasonable under the Communications Act. As an
initial matter, the Commission establishes two new shot clocks for Small Wireless Facilities applications.
For collocation of Small Wireless Facilities on preexisting structures, the Commission adopts a 60-day
shot clock which applies to both individual and batched applications. For applications associated with
Small Wireless Facilities new construction we adopt a 90-day shot clock for both individual and batched
applications.413 Next, the Commission codifies two existing Section 332 shot clocks for all other Non-
Small Wireless Facilities that were established in the 2009 Declaratory Ruling without codification.414
These existing shot clocks require 90-days for processing of all other Non-Small Wireless Facilities
collocation applications, and 150-days for processing of all other Non-Small Wireless Facilities
applications other than collocations.
3. The Commission then addresses other issues related to both the existing and new shot
clocks. In particular we address the specific types of authorizations subject to the “Reasonable Period of
Time” provisions of Section 332(c)(7)(B)(ii), finding that “any request for authorization to place,
construct, or modify personal wireless service facilities” under Section 332(c)(7)(B)(ii) means all
authorizations a locality may require, and to all aspects of and steps in the siting process, including
license or franchise agreements to access ROW, building permits, public notices and meetings, lease
negotiations, electric permits, road closure permits, aesthetic approvals, and other authorizations needed
for deployment of personal wireless services infrastructure. 415 The Commission also addresses
collocation on structures not previously zoned for wireless use,416 when the four Section 332 shot clocks begin to run, 417 the impact of incomplete applications on our Section 332 shot clocks,418 and how state
imposed shot clocks effect our Section 332 shot clocks.419
4. Finally, the Commission discuss the appropriate judicial remedy that applicants may
pursue in cases where a siting authority fails to act within the applicable shot clock period.420 In those
situations, applicants may commence an action in a court of competent jurisdiction alleging a violation of
Section 332(c)(7)(B)(i)(II) and seek injunctive relief granting the application. Notwithstanding the
availability of a judicial remedy if a shot clock deadline is missed, the Commission recognizes that the
Section 332 time frames might not be met in exceptional circumstances and has refined its interpretation
of the circumstances when a period of time longer than the relevant shot clock would nonetheless be a
reasonable period of time for action by a siting agency.421 In addition, a siting authority that is subject to
a court action for missing an applicable shot clock deadline has the opportunity to demonstrate that the
failure to act was reasonable under the circumstances and, therefore, did not materially limit or inhibit the
applicant from introducing new services or improving existing services thereby rebutting the effective
prohibition presumption.
5. The rules adopted in the Third Report and Order will accelerate the deployment of
wireless infrastructure needed for the mobile wireless services of the future, while preserving the
fundamental role of localities in this process. Under the Commission’s new rules, localities will maintain
control over the placement, construction and modification of personal wireless facilities, while at the
same time the Commission’s new process will streamline the review of wireless siting applications.
B. Summary of Significant Issues Raised by Public Comments in Response to the IRFA
6. Only one party—the Smart Cities and Special Districts Coalition—filed comments
specifically addressing the rules and policies proposed in the IRFA. They argue that any shortening or
alternation of the Commission’s existing shot clocks or the adoption of a deemed granted remedy will
adversely affect small local governments, special districts, property owners, small developers, and others
by placing their siting applications behind wireless provider siting applications.422 This argument,
however, fails to acknowledge that Section 332 shot clocks have been in place for years and reflect
Congressional intent as seen in the statutory language of Section 332. The Commission has carefully
considered this issue and has established shot clocks that take into consideration the nature and scope of
siting requests by establishing shot clocks of different lengths of time that depend on the nature of the
siting request at issue. 423 The length of these shot clocks is based in part on the need to ensure that local
governments have ample time to take any steps needed to protect public safety and welfare and to process
other pending utility applications.424 The Commission, therefore, has taken into consideration the
concerns of the Smart Cities and Special Districts Coalition and established shot clocks that will not favor
wireless providers over other applicants with pending siting applications. Further, instead of adopting a
deemed granted remedy that would grant a siting application when a shot clock lapses without a decision
on the merits, the Commission provides guidance as to the appropriate judicial remedy that applicants
may pursue and examples of exceptional circumstance where a siting authority may be justified in needing additional time to review a siting application then the applicable shot clock allows. 425 Under this
approach, the applicant may seek injunctive relief as long as several minimum requirements are met. The
siting authority, however, can rebut the presumptive reasonableness of the applicable shot clock under
certain circumstances. Under this carefully crafted approach, the interests of siting applicants, siting
authorities, and citizens are protected.
C. Response to Comments by the Chief Counsel for Advocacy of the Small Business Administration
7. Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the
Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the
Small Business Administration (SBA), and to provide a detailed statement of any change made to the
proposed rules as a result of those comments.426
8. The Chief Counsel did not file any comments in response to the proposed rules in this proceeding.
D. Description and Estimate of the Number of Small Entities to Which the Rules Will Apply
**9. ** The RFA directs agencies to provide a description of, and where feasible, an estimate of
the number of small entities that may be affected by the rules adopted herein.427 The RFA generally
defines the term “small entity” as having the same meaning as the terms “small business,” “small
organization,” and “small governmental jurisdiction.”428 In addition, the term “small business” has the
same meaning as the term “small business concern” under the Small Business Act.429 A “small business
concern” is one which: (1) is independently owned and operated; (2) is not dominant in its field of
operation; and (3) satisfies any additional criteria established by the SBA.430
10. Small Businesses, Small Organizations, Small Governmental Jurisdictions. Our actions,
over time, may affect small entities that are not easily categorized at present. We therefore describe here,
at the outset, three broad groups of small entities that could be directly affected herein.431 First, while
there are industry specific size standards for small businesses that are used in the regulatory flexibility
analysis, according to data from the SBA’s Office of Advocacy, in general a small business is an
independent business having fewer than 500 employees.432 These types of small businesses represent
99.9 percent of all businesses in the United States which translates to 28.8 million businesses.433
11. Next, the type of small entity described as a “small organization” is generally “any not-
for-profit enterprise which is independently owned and operated and is not dominant in its field.”434
Nationwide, as of August 2016, there were approximately 356,494 small organizations based on
registration and tax data filed by nonprofits with the Internal Revenue Service (IRS).435
12. Finally, the small entity described as a “small governmental jurisdiction” is defined
generally as “governments of cities, counties, towns, townships, villages, school districts, or special
districts, with a population of less than fifty thousand.”436 U.S. Census Bureau data from the 2012 Census
of Governments437 indicate that there were 90,056 local governmental jurisdictions consisting of general
purpose governments and special purpose governments in the United States.438 Of this number there were
37, 132 General purpose governments (county439, municipal and town or township440) with populations of
less than 50,000 and 12,184 Special purpose governments (independent school districts441 and special
districts442) with populations of less than 50,000. The 2012 U.S. Census Bureau data for most types of
governments in the local government category show that the majority of these governments have populations of less than 50,000.443 Based on this data we estimate that at least 49,316 local government
jurisdictions fall in the category of “small governmental jurisdictions.”444.
13. Wireless Telecommunications Carriers (except Satellite). This industry comprises
establishments engaged in operating and maintaining switching and transmission facilities to provide
communications via the airwaves. Establishments in this industry have spectrum licenses and provide
services using that spectrum, such as cellular services, paging services, wireless Internet access, and
wireless video services.445 The appropriate size standard under SBA rules is that such a business is small
if it has 1,500 or fewer employees.446 For this industry, U.S. Census data for 2012 show that there were
967 firms that operated for the entire year.447 Of this total, 955 firms had employment of 999 or fewer
employees and 12 had employment of 1000 employees or more.448 Thus under this category and the
associated size standard, the Commission estimates that the majority of wireless telecommunications
carriers (except satellite) are small entities.
14. The Commission’s own data—available in its Universal Licensing System—indicate that,
as of May 17, 2018, there are 264 Cellular licensees that will be affected by our actions.449 The
Commission does not know how many of these licensees are small, as the Commission does not collect
that information for these types of entities. Similarly, according to Commission data, 413 carriers
reported that they were engaged in the provision of wireless telephony, including cellular service,
Personal Communications Service (PCS), and Specialized Mobile Radio (SMR) Telephony services.450
Of this total, an estimated 261 have 1,500 or fewer employees and 152 have more than 1,500
employees.451 Thus, using available data, we estimate that the majority of wireless firms can be
considered small.
15. Personal Radio Services. Personal radio services provide short-range, low-power radio
for personal communications, radio signaling, and business communications not provided for in other
services. Personal radio services include services operating in spectrum licensed under Part 95 of our
rules.452 These services include Citizen Band Radio Service, General Mobile Radio Service, Radio
Control Radio Service, Family Radio Service, Wireless Medical Telemetry Service, Medical Implant
Communications Service, Low Power Radio Service, and Multi-Use Radio Service.453 There are a
variety of methods used to license the spectrum in these rule parts, from licensing by rule, to conditioning
operation on successful completion of a required test, to site-based licensing, to geographic area licensing.
All such entities in this category are wireless, therefore we apply the definition of Wireless
Telecommunications Carriers (except Satellite), pursuant to which the SBA’s small entity size standard is
defined as those entities employing 1,500 or fewer persons.454 For this industry, U.S. Census data for
2012 show that there were 967 firms that operated for the entire year.455 Of this total, 955 firms had
employment of 999 or fewer employees and 12 had employment of 1000 employees or more.456 Thus
under this category and the associated size standard, the Commission estimates that the majority of firms
can be considered small. We note however that many of the licensees in this category are individuals and
not small entities. In addition, due to the mostly unlicensed and shared nature of the spectrum utilized in
many of these services, the Commission lacks direct information upon which to base an estimation of the
number of small entities that may be affected by our actions in this proceeding.
16. Public Safety Radio Licensees. Public Safety Radio Pool licensees as a general matter,
include police, fire, local government, forestry conservation, highway maintenance, and emergency
medical services.457 Because of the vast array of public safety licensees, the Commission has not
developed a small business size standard specifically applicable to public safety licensees. The closest
applicable SBA category is Wireless Telecommunications Carriers (except Satellite) which encompasses
business entities engaged in radiotelephone communications. The appropriate size standard for this category under SBA rules is that such a business is small if it has 1,500 or fewer employees. 458 For this
industry, U.S. Census data for 2012 show that there were 967 firms that operated for the entire year.459
Of this total, 955 firms had employment of 999 or fewer employees and 12 had employment of 1000
employees or more.460 Thus under this category and the associated size standard, the Commission
estimates that the majority of firms can be considered small. With respect to local governments, in
particular, since many governmental entities comprise the licensees for these services, we include under
public safety services the number of government entities affected. According to Commission records,
there are a total of approximately 133,870 licenses within these services.461 There are 3,121 licenses in
the 4.9 GHz band, based on an FCC Universal Licensing System search of March 29, 2017.462 We
estimate that fewer than 2,442 public safety radio licensees hold these licenses because certain entities
may have multiple licenses.
17. Private Land Mobile Radio Licensees. Private land mobile radio (PLMR) systems serve
an essential role in a vast range of industrial, business, land transportation, and public safety activities.
These radios are used by companies of all sizes operating in all U.S. business categories. Because of the
vast array of PLMR users, the Commission has not developed a small business size standard specifically
applicable to PLMR users. The closest applicable SBA category is Wireless Telecommunications
Carriers (except Satellite) which encompasses business entities engaged in radiotelephone
communications.463 The appropriate size standard for this category under SBA rules is that such a
business is small if it has 1,500 or fewer employees.464 For this industry, U.S. Census data for 2012 show
that there were 967 firms that operated for the entire year.465 Of this total, 955 firms had employment of
999 or fewer employees and 12 had employment of 1000 employees or more.466 Thus under this category
and the associated size standard, the Commission estimates that the majority of PLMR Licensees are
small entities.
18. According to the Commission’s records, a total of approximately 400,622 licenses
comprise PLMR users.467 Of this number there are a total of 3,374 licenses in the frequencies range
173.225 MHz to 173.375 MHz, which is the range affected by the Third Report and Order.468 The
Commission does not require PLMR licensees to disclose information about number of employees, and
does not have information that could be used to determine how many PLMR licensees constitute small
entities under this definition. The Commission however believes that a substantial number of PLMR
licensees may be small entities despite the lack of specific information.
19. Multiple Address Systems. Entities using Multiple Address Systems (MAS) spectrum, in
general, fall into two categories: (1) those using the spectrum for profit-based uses, and (2) those using
the spectrum for private internal uses. With respect to the first category, Profit-based Spectrum use, the
size standards established by the Commission define “small entity” for MAS licensees as an entity that
has average annual gross revenues of less than $15 million over the three previous calendar years.469 A
“Very small business” is defined as an entity that, together with its affiliates, has average annual gross
revenues of not more than $3 million over the preceding three calendar years.470 The SBA has approved
these definitions.471 The majority of MAS operators are licensed in bands where the Commission has
implemented a geographic area licensing approach that requires the use of competitive bidding
procedures to resolve mutually exclusive applications.
20. The Commission’s licensing database indicates that, as of April 16, 2010, there were a
total of 11,653 site-based MAS station authorizations. Of these, 58 authorizations were associated with
common carrier service. In addition, the Commission’s licensing database indicates that, as of April 16,
2010, there were a total of 3,330 Economic Area market area MAS authorizations. The Commission’s
licensing database also indicates that, as of April 16, 2010, of the 11,653 total MAS station
authorizations, 10,773 authorizations were for private radio service. In 2001, an auction for 5,104 MAS
licenses in 176 EAs was conducted.472 Seven winning bidders claimed status as small or very small
businesses and won 611 licenses. In 2005, the Commission completed an auction (Auction 59) of 4,226
MAS licenses in the Fixed Microwave Services from the 928/959 and 932/941 MHz bands. Twenty-six
winning bidders won a total of 2,323 licenses. Of the 26 winning bidders in this auction, five claimed
small business status and won 1,891 licenses.
21. With respect to the second category, Internal Private Spectrum use consists of entities
that use, or seek to use, MAS spectrum to accommodate their own internal communications needs, MAS
serves an essential role in a range of industrial, safety, business, and land transportation activities. MAS
radios are used by companies of all sizes, operating in virtually all U.S. business categories, and by all
types of public safety entities. For the majority of private internal users, the definition developed by the
SBA would be more appropriate than the Commission’s definition. The closest applicable definition of a small entity is the “Wireless Telecommunications Carriers (except Satellite)” definition under the SBA
rules.473 The appropriate size standard under SBA rules is that such a business is small if it has 1,500 or
fewer employees.474 For this category, U.S. Census data for 2012 show that there were 967 firms that
operated for the entire year.475 Of this total, 955 firms had employment of 999 or fewer employees and
12 had employment of 1000 employees or more.476 Thus under this category and the associated small
business size standard, the Commission estimates that the majority of firms that may be affected by our
action can be considered small.
22. Broadband Radio Service and Educational Broadband Service. Broadband Radio
Service systems, previously referred to as Multipoint Distribution Service (MDS) and Multichannel
Multipoint Distribution Service (MMDS) systems, and “wireless cable,” transmit video programming to
subscribers and provide two-way high-speed data operations using the microwave frequencies of the
Broadband Radio Service (BRS) and Educational Broadband Service (EBS) (previously referred to as the
Instructional Television Fixed Service (ITFS)).477
23. BRS – In connection with the 1996 BRS auction, the Commission established a small
business size standard as an entity that had annual average gross revenues of no more than $40 million in
the previous three calendar years.478 The BRS auctions resulted in 67 successful bidders obtaining
licensing opportunities for 493 Basic Trading Areas (BTAs). Of the 67 auction winners, 61 met the
definition of a small business. BRS also includes licensees of stations authorized prior to the auction. At
this time, we estimate that of the 61 small business BRS auction winners, 48 remain small business
licensees. In addition to the 48 small businesses that hold BTA authorizations, there are approximately
there are approximately 86 incumbent BRS licensees that are considered small entities (18 incumbent
BRS licensees do not meet the small business size standard).479 After adding the number of small
business auction licensees to the number of incumbent licensees not already counted, we find that there
are currently approximately 133 BRS licensees that are defined as small businesses under either the SBA
or the Commission’s rules.
24. In 2009, the Commission conducted Auction 86, the sale of 78 licenses in the BRS
areas.480 The Commission offered three levels of bidding credits: (i) a bidder with attributed average
annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three
years (small business) received a 15 percent discount on its winning bid; (ii) a bidder with attributed
average annual gross revenues that exceed $3 million and do not exceed $15 million for the preceding three years (very small business) received a 25 percent discount on its winning bid; and (iii) a bidder with
attributed average annual gross revenues that do not exceed $3 million for the preceding three years
(entrepreneur) received a 35 percent discount on its winning bid.481 Auction 86 concluded in 2009 with
the sale of 61 licenses.482 Of the ten winning bidders, two bidders that claimed small business status won
4 licenses; one bidder that claimed very small business status won three licenses; and two bidders that
claimed entrepreneur status won six licenses.
25. EBS – The Educational Broadband Service has been included within the broad economic
census category and SBA size standard for Wired Telecommunications Carriers since 2007. Wired
Telecommunications Carriers are comprised of establishments primarily engaged in operating and/or
providing access to transmission facilities and infrastructure that they own and/or lease for the
transmission of voice, data, text, sound, and video using wired telecommunications networks.
Transmission facilities may be based on a single technology or a combination of technologies.483 The
SBA’s small business size standard for this category is all such firms having 1,500 or fewer employees.484
U.S. Census Bureau data for 2012 show that there were 3,117 firms that operated that year.485 Of this
total, 3,083 operated with fewer than 1,000 employees.486 Thus, under this size standard, the majority of
firms in this industry can be considered small. In addition to Census Bureau data, the Commission’s
Universal Licensing System indicates that as of October 2014, there are 2,206 active EBS licenses. The
Commission estimates that of these 2,206 licenses, the majority are held by non-profit educational
institutions and school districts, which are by statute defined as small businesses.487
26. Location and Monitoring Service (LMS). LMS systems use non-voice radio techniques
to determine the location and status of mobile radio units. For purposes of auctioning LMS licenses, the
Commission has defined a “small business” as an entity that, together with controlling interests and
affiliates, has average annual gross revenues for the preceding three years not to exceed $15 million.488 A
“very small business” is defined as an entity that, together with controlling interests and affiliates, has
average annual gross revenues for the preceding three years not to exceed $3 million.489 These definitions have been approved by the SBA.490 An auction for LMS licenses commenced on February 23, 1999 and
closed on March 5, 1999. Of the 528 licenses auctioned, 289 licenses were sold to four small businesses.
27. Television Broadcasting. This Economic Census category “comprises establishments
primarily engaged in broadcasting images together with sound.”491 These establishments operate
television broadcast studios and facilities for the programming and transmission of programs to the
public.492 These establishments also produce or transmit visual programming to affiliated broadcast
television stations, which in turn broadcast the programs to the public on a predetermined schedule.
Programming may originate in their own studio, from an affiliated network, or from external sources.
The SBA has created the following small business size standard for such businesses: those having $38.5
million or less in annual receipts.493 The 2012 Economic Census reports that 751 firms in this category
operated in that year.494 Of that number, 656 had annual receipts of $25,000,000 or less, 25 had annual
receipts between $25,000,000 and $49,999,999 and 70 had annual receipts of $50,000,000 or more.495
Based on this data we therefore estimate that the majority of commercial television broadcasters are small
entities under the applicable SBA size standard.
28. The Commission has estimated the number of licensed commercial television stations to
be 1,377.496 Of this total, 1,258 stations (or about 91 percent) had revenues of $38.5 million or less,
according to Commission staff review of the BIA Kelsey Inc. Media Access Pro Television Database
(BIA) on November 16, 2017, and therefore these licensees qualify as small entities under the SBA
definition. In addition, the Commission has estimated the number of licensed noncommercial educational
(NCE) television stations to be 384.497 Notwithstanding, the Commission does not compile and otherwise
does not have access to information on the revenue of NCE stations that would permit it to determine how
many such stations would qualify as small entities. There are also 2,300 low power television stations,
including Class A stations (LPTV) and 3,681 TV translator stations.498 Given the nature of these services,
we will presume that all of these entities qualify as small entities under the above SBA small business
size standard.
29. We note, however, that in assessing whether a business concern qualifies as “small”
under the above definition, business (control) affiliations must be included.499 Our estimate, therefore
likely overstates the number of small entities that might be affected by our action, because the revenue
figure on which it is based does not include or aggregate revenues from affiliated companies. In addition,
another element of the definition of “small business” requires that an entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a
specific television broadcast station is dominant in its field of operation. Accordingly, the estimate of
small businesses to which rules may apply does not exclude any television station from the definition of a
small business on this basis and is therefore possibly over-inclusive. Also, as noted above, an additional
element of the definition of “small business” is that the entity must be independently owned and operated.
The Commission notes that it is difficult at times to assess these criteria in the context of media entities
and its estimates of small businesses to which they apply may be over-inclusive to this extent.
**30. ** Radio Stations. This Economic Census category “comprises establishments primarily
engaged in broadcasting aural programs by radio to the public. Programming may originate in their own
studio, from an affiliated network, or from external sources.”500 The SBA has established a small
business size standard for this category as firms having $38.5 million or less in annual receipts.501
Economic Census data for 2012 show that 2,849 radio station firms operated during that year.502 Of that
number, 2,806 operated with annual receipts of less than $25 million per year, 17 with annual receipts
between $25 million and $49,999,999 million and 26 with annual receipts of $50 million or more.503
Therefore, based on the SBA’s size standard the majority of such entities are small entities.
31. According to Commission staff review of the BIA/Kelsey, LLC’s Publications, Inc.
Media Access Pro Radio Database (BIA) as of January 2018, about 11,261 (or about 99.92 percent) of
11,270 commercial radio stations had revenues of $38.5 million or less and thus qualify as small entities
under the SBA definition.504 The Commission has estimated the number of licensed commercial AM
radio stations to be 4,633 stations and the number of commercial FM radio stations to be 6,738, for a total
number of 11,371.505 We note, that the Commission has also estimated the number of licensed NCE radio
stations to be 4,128.506 Nevertheless, the Commission does not compile and otherwise does not have
access to information on the revenue of NCE stations that would permit it to determine how many such
stations would qualify as small entities.
32. We also note, that in assessing whether a business entity qualifies as small under the
above definition, business control affiliations must be included.507 The Commission’s estimate therefore
likely overstates the number of small entities that might be affected by its action, because the revenue
figure on which it is based does not include or aggregate revenues from affiliated companies. In addition,
to be determined a “small business,” an entity may not be dominant in its field of operation.508 We
further note, that it is difficult at times to assess these criteria in the context of media entities, and the
estimate of small businesses to which these rules may apply does not exclude any radio station from the
definition of a small business on these basis, thus our estimate of small businesses may therefore be over-inclusive. Also, as noted above, an additional element of the definition of “small business” is that the
entity must be independently owned and operated. The Commission notes that it is difficult at times to
assess these criteria in the context of media entities and the estimates of small businesses to which they
apply may be over-inclusive to this extent.
33. FM Translator Stations and Low Power FM Stations. FM translators and Low Power
FM Stations are classified in the category of Radio Stations and are assigned the same NAICS Code as
licensees of radio stations.509 This U.S. industry, Radio Stations, comprises establishments primarily
engaged in broadcasting aural programs by radio to the public.510 Programming may originate in their
own studio, from an affiliated network, or from external sources.511 The SBA has established a small
business size standard which consists of all radio stations whose annual receipts are $38.5 million dollars
or less.512 U.S. Census Bureau data for 2012 indicate that 2,849 radio station firms operated during that
year.513 Of that number, 2,806 operated with annual receipts of less than $25 million per year, 17 with
annual receipts between $25 million and $49,999,999 million and 26 with annual receipts of $50 million
or more.514 Therefore, based on the SBA’s size standard, we conclude that the majority of FM Translator
Stations and Low Power FM Stations are small.
34. Multichannel Video Distribution and Data Service (MVDDS). MVDDS is a terrestrial
fixed microwave service operating in the 12.2-12.7 GHz band. The Commission adopted criteria for
defining three groups of small businesses for purposes of determining their eligibility for special
provisions such as bidding credits. It defined a very small business as an entity with average annual gross
revenues not exceeding $3 million for the preceding three years; a small business as an entity with
average annual gross revenues not exceeding $15 million for the preceding three years; and an
entrepreneur as an entity with average annual gross revenues not exceeding $40 million for the preceding
three years.515 These definitions were approved by the SBA.516 On January 27, 2004, the Commission
completed an auction of 214 MVDDS licenses (Auction No. 53). In this auction, ten winning bidders
won a total of 192 MVDDS licenses.517 Eight of the ten winning bidders claimed small business status
and won 144 of the licenses. The Commission also held an auction of MVDDS licenses on December 7, 2005 (Auction 63). Of the three winning bidders who won 22 licenses, two winning bidders, winning 21
of the licenses, claimed small business status.518
35. Satellite Telecommunications. This category comprises firms “primarily engaged in
providing telecommunications services to other establishments in the telecommunications and
broadcasting industries by forwarding and receiving communications signals via a system of satellites or
reselling satellite telecommunications.”519 Satellite telecommunications service providers include satellite
and earth station operators. The category has a small business size standard of $32.5 million or less in
average annual receipts, under SBA rules.520 For this category, U.S. Census Bureau data for 2012 show
that there were a total of 333 firms that operated for the entire year.521 Of this total, 299 firms had annual
receipts of less than $25 million.522 Consequently, we estimate that the majority of satellite
telecommunications providers are small entities.
36. All Other Telecommunications. The “All Other Telecommunications” category is
comprised of establishments that are primarily engaged in providing specialized telecommunications
services, such as satellite tracking, communications telemetry, and radar station operation.523 This
industry also includes establishments primarily engaged in providing satellite terminal stations and
associated facilities connected with one or more terrestrial systems and capable of transmitting
telecommunications to, and receiving telecommunications from, satellite systems.524 Establishments
providing Internet services or voice over Internet protocol (VoIP) services via client-supplied
telecommunications connections are also included in this industry.525 The SBA has developed a small
business size standard for “All Other Telecommunications,” which consists of all such firms with gross
annual receipts of $32.5 million or less.526 For this category, U.S. Census data for 2012 show that there
were 1,442 firms that operated for the entire year.527 Of these firms, a total of 1,400 had gross annual
receipts of less than $25 million and 42 firms had annual receipts of $25 million to $49, 999,999.528
Thus, a majority of “All Other Telecommunications” firms potentially affected by our action can be
considered small.
37. Fixed Microwave Services. Microwave services include common carrier,529 private-
operational fixed,530 and broadcast auxiliary radio services.531 They also include the Local Multipoint Distribution Service (LMDS),532 the Digital Electronic Message Service (DEMS),533 the 39 GHz Service
(39 GHz),534 the 24 GHz Service,535 and the Millimeter Wave Service536 where licensees can choose
between common carrier and non-common carrier status.537 At present, there are approximately 66,680
common carrier fixed licensees, 69,360 private and public safety operational-fixed licensees, 20,150
broadcast auxiliary radio licensees, 411 LMDS licenses, 33 24 GHz DEMS licenses, 777 39 GHz
licenses, and five 24 GHz licenses, and 467 Millimeter Wave licenses in the microwave services.538 The
Commission has not yet defined a small business size standard for microwave services. The closest
applicable SBA category is Wireless Telecommunications Carriers (except Satellite) and the appropriate
size standard for this category under SBA rules is that such a business is small if it has 1,500 or fewer
employees.539 U.S. Census Bureau data for 2012, show that there were 967 firms in this category that
operated for the entire year.540 Of this total, 955 had employment of 999 or fewer, and 12 firms had
employment of 1,000 employees or more. Thus, under this category and the associated small business
size standard, the Commission estimates that a majority of fixed microwave service licensees can be
considered small.
38. The Commission notes that the number of firms does not necessarily track the number of
licensees. The Commission also notes that it does not have data specifying the number of these licensees
that have more than 1,500 employees, and thus is unable at this time to estimate with greater precision the
number of fixed microwave service licensees that would qualify as small business concerns under the
SBA’s small business size standard. The Commission estimates however, that virtually all of the Fixed
Microwave licensees (excluding broadcast auxiliary licensees) would qualify as small entities under the
SBA definition.
39. Non-Licensee Owners of Towers and Other Infrastructure. Although at one time most
communications towers were owned by the licensee using the tower to provide communications service,
many towers are now owned by third-party businesses that do not provide communications services
themselves but lease space on their towers to other companies that provide communications services. The
Commission’s rules require that any entity, including a non-licensee, proposing to construct a tower over 200 feet in height or within the glide slope of an airport must register the tower with the Commission’s
Antenna Structure Registration (“ASR”) system and comply with applicable rules regarding review for
impact on the environment and historic properties.
40. As of March 1, 2017, the ASR database includes approximately 122,157 registration
records reflecting a “Constructed” status and 13,987 registration records reflecting a “Granted, Not
Constructed” status. These figures include both towers registered to licensees and towers registered to
non-licensee tower owners. The Commission does not keep information from which we can easily
determine how many of these towers are registered to non-licensees or how many non-licensees have
registered towers.541 Regarding towers that do not require ASR registration, we do not collect
information as to the number of such towers in use and therefore cannot estimate the number of tower
owners that would be subject to the rules on which we seek comment. Moreover, the SBA has not
developed a size standard for small businesses in the category “Tower Owners.” Therefore, we are
unable to determine the number of non-licensee tower owners that are small entities. We believe,
however, that when all entities owning 10 or fewer towers and leasing space for collocation are included,
non-licensee tower owners number in the thousands. In addition, there may be other non-licensee owners
of other wireless infrastructure, including Distributed Antenna Systems (DAS) and small cells that might
be affected by the measures on which we seek comment. We do not have any basis for estimating the
number of such non-licensee owners that are small entities.
41. The closest applicable SBA category is All Other Telecommunications, and the
appropriate size standard consists of all such firms with gross annual receipts of $32.5 million or less.542
For this category, U.S. Census data for 2012 show that there were 1,442 firms that operated for the entire
year.543 Of these firms, a total of 1,400 had gross annual receipts of less than $25 million and 15 firms
had annual receipts of $25 million to $49, 999,999.544 Thus, under this SBA size standard a majority of
the firms potentially affected by our action can be considered small.
E. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities
42. The Third Report and Order does not establish any reporting, recordkeeping, or other
compliance requirements for companies involved in wireless infrastructure deployment.545 In addition to
not adopting any reporting, recordkeeping or other compliance requirements, the Commission takes
significant steps to reduce regulatory impediments to infrastructure deployment and, therefore, to spur the
growth of personal wireless services. Under the Commission’s approach, small entities as well as large
companies will be assured that their deployment requests will be acted upon within a reasonable period of
time and, if their applications are not addressed within the established time frames, applicants may seek
injunctive relief granting their siting applications. The Commission, therefore, has taken concrete steps to
relieve companies of all sizes of uncertainly and has eliminated unnecessary delays.
43. The Third Report and Order also does not impose any reporting or recordkeeping
requirements on state and local governments. While some commenters argue that additional shot clock
classifications would make the siting process needlessly complex without any proven benefits, the Commission concludes that any additional administrative burden from increasing the number of Section
332 shot clocks from two to four is outweighed by the likely significant benefit of regulatory certainty
and the resulting streamlined deployment process.546 The Commission’s actions are consistent with the
statutory language of Section 332 and therefore reflect Congressional intent. As a result, the additional
shot clocks that the Commission adopts will foster the deployment of the latest wireless technology and
serve consumer interests.
F. Steps Taken to Minimize the Significant Economic Impact on Small Entities, and Significant Alternatives Considered
44. The RFA requires an agency to describe any significant alternatives that it has considered
in reaching its approach, which may include the following four alternatives (among others): “(1) the
establishment of differing compliance or reporting requirements or timetables that take into account the
resources available to small entities; (2) the clarification, consolidation, or simplification of compliance
and reporting requirements under the rule for such small entities; (3) the use of performance rather than
design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small
entities.”547
45. The steps taken by the Commission in the Third Report and Order eliminate regulatory
burdens for small entities as well as large companies that are involved with the deployment of person
wireless services infrastructure. By establishing shot clocks and guidance on injunctive relief for personal
wireless services infrastructure deployments, the Commission has standardized and streamlined the
permitting process. These changes will significantly minimize the economic impact of the siting process
on all entities, including small entities, involved in deploying personal wireless services infrastructure.
The record shows that permitting delays imposes significant economic and financial burdens on
companies with pending wireless infrastructure permits. Eliminating permitting delays will remove the
associated cost burdens, and enabling significant public interest benefits by speeding up the deployment
of personal wireless services and infrastructure.
46. The Commission considered but did not adopt proposals by commenters to issue “Best
Practices” or “Recommended Practices,”548 and to develop an informal dispute resolution process and
mediation program, 549 noting that the steps taken in the Third Report and Order address the concerns
underlying these proposals to facilitate cooperation between parties to reach mutually agreed upon
solutions.550 The Commission anticipates that the changes it has made to the permitting process will
provide significant efficiencies in the deployment of personal wireless services facilities and this in turn
will benefit all companies, but particularly small entities, that may not have the resources and economies
of scale of larger entities to navigate the permitting process. By adopting these changes, the Commission
will continue to fulfill its statutory responsibilities, while reducing the burden on small entities by
removing unnecessary impediments to the rapid deployment of personal wireless services facilities and
infrastructure across the country.
Report to Congress
47. The Commission will send a copy of the Third Report and Order, including this FRFA, in a report to Congress pursuant to the Congressional Review Act.551 In addition, the Commission will send a copy of the Third Report and Order, including this FRFA, to the Chief Counsel for Advocacy of
the SBA. A copy of the Third Report and Order and FRFA (or summaries thereof) also will be published
in the Federal Register. 552 552 5 U.S.C. § 604(b).