2014 FCC WT Docket 13-238

2014 FCC WT Docket No. 13-238 & WC Docket No. 11-59

https://apps.fcc.gov/edocs_public/attachmatch/FCC-14-153A1.pdf

WT Docket No. 13-238: Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies

WC Docket No. 11-59: Acceleration of Broadband Deployment: Expanding the Reach and Reducing the Cost of Broadband Deployment by Improving Policies Regarding Public Rights of Way and Wireless Facilities Siting

Adopted: October 17, 2014

EXECUTIVE SUMMARY

21. In Section V, we adopt rules to clarify and implement the requirements of Section 6409(a) of the Spectrum Act. Among other measures, we

  • Clarify that Section 6409(a) applies to support structures and to transmission equipment used in connection with any Commission-licensed or authorized wireless transmission;

  • Define “transmission equipment” to encompass antennas and other equipment associated with and necessary to their operation, including power supply cables and backup power equipment;

    • Define “tower” to include any structure built for the sole or primary purpose of supporting any Commission-licensed or authorized antennas and their associated facilities;

    • Clarify that the term “base station” includes structures other than towers that support or house an antenna, transceiver, or other associated equipment that constitutes part of a “base station” at the time the relevant application is filed with State or municipal authorities, even if the structure was not built for the sole or primary purpose of providing such support, but does not include structures that do not at that time support or house base station components;

  • Clarify that a modification “substantially changes” the physical dimensions of a tower or base station, as measured from the dimensions of the tower or base station inclusive of any modifications approved prior to the passage of the Spectrum Act, if it meets any of the following criteria:

    • for towers outside of public rights-of-way, it increases the height by more than 20 feet or 10%, whichever is greater; for those towers in the rights-of-way and for all base stations, it increases the height of the tower or base station by more than 10% or 10 feet, whichever is greater;

    • for towers outside of public rights-of-way, it protrudes from the edge of the tower more than twenty feet, or more than the width of the tower structure at the level of the appurtenance, whichever is greater; for those towers in the rights-of-way and for all base stations, it protrudes from the edge of the structure more than six feet;

    • it involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed four cabinets;

    • it entails any excavation or deployment outside the current site of the tower or base station;

    • it would defeat the existing concealment elements of the tower or base station; or

    • it does not comply with conditions associated with the prior approval of the tower or base station unless the non-compliance is due to an increase in height, increase in width, addition of cabinets, or new excavation that does not exceed the corresponding “substantial change” thresholds;

  • Provide that States and localities may continue to enforce and condition approval on compliance with generally applicable building, structural, electrical, and safety codes and with other laws codifying objective standards reasonably related to health and safety;

  • With regard to the process for reviewing an application under Section 6409(a), provide that:

    • A State or local government may only require applicants to provide documentation that is reasonably related to determining whether the eligible facilities request meets the requirements of Section 6409(a);

    • Within 60 days from the date of filing, accounting for tolling, a State or local government shall approve an application covered by Section 6409(a); and

    • The running of the period may be tolled by mutual agreement or upon notice that an application is incomplete provided in accordance with the same deadlines and requirements applicable under Section 332(c)(7), as described below, but not by a moratorium;

    • Provide that an application filed under Section 6409(a) is deemed granted if a State or local government fails to act on it within the requisite time period;

    • Clarify that Section 6409(a) applies only to State and local governments acting in their role as land use regulators and does not apply to such entities acting in their proprietary capacities; and

    • Provide that parties may bring disputes — including disputes related to application denials and deemed grants—in any court of competent jurisdiction. The Commission will not entertain such disputes.

22. In Section VI, we adopt clarifications of our 2009 Declaratory Ruling, which established the presumptively reasonabletime periods within which a State or local government must act on a facilities siting application under Section 332(c)(7) of the Communications Act. We take the following specific actions:

  • Clarify, with regard to the Commission’s determination in the 2009 Declaratory Ruling that a State or municipality may toll the running of the shot clock if it notifies the applicant within 30 days of submission that its application is incomplete, that:

  • The timeframe begins to run when an application is first submitted, not when it is deemed complete by the reviewing government;

  • A determination of incompleteness tolls the shot clock only if the State or local government provides notice to the applicant in writing within 30 days of the application’s submission, specifically delineating all missing information, and specifying the code provision, ordinance, application instruction, or otherwise publically-stated procedures that require the information to be submitted;

  • Following an applicant’s submission in response to a determination of incompleteness, the State or local government may reach a subsequent determination of incompleteness based solely on the applicant’s failure to supply the specific information that was requested within the first 30 days;

  • The shot clock begins running again when the applicant makes its supplemental submission; however, the shot clock may again be tolled if the State or local government notifies the applicant within 10 days that the supplemental submission did not provide the specific information identified in the original notice delineating missing information;

  • Clarify that the presumptively reasonable timeframes run regardless of any applicable moratoria;

TABLE OF CONTENTS — Paragraph #

I. INTRODUCTION — 1

II. EXECUTIVE SUMMARY — 18

III. NEPA AND NHPA REVIEW OF SMALL WIRELESS FACILITIES — 23

A. Description of DAS, Small Cells, and Other Small Wireless Technologies — 29

B. NEPA Categorical Exclusions — 35

   1. Regulatory Background — 35

   2. Antennas Mounted on Existing Buildings and Towers — 39

      a. Clarification of “Antenna” — 39

      b. Antennas Mounted in the Interior of Buildings — 46

      c. Antennas Mounted on Other Structures — 50

   3. Categorical Exclusion of Deployments in Communications or Utilities Rights-of-Way — 57

C. NHPA Exclusions — 70

   1. Regulatory Background — 70

   2. New Exclusions — 76

      a. Collocations on Utility Structures — 90

      b. Collocations on Buildings and Other Non-tower Structures— 96

   3. Antennas Mounted in the Interior of Buildings — 104

IV. ENVIRONMENTAL NOTIFICATION EXEMPTION FOR REGISTRATION OF TEMPORARY TOWERS — 106

A. Background — 108

B. Discussion — 120

V. IMPLEMENTATION OF SECTION 6409(A) — 135

A Background — 136

B. Discussion — 142

   1. Definition of Terms in Section 6409(a) — 145

      a. Scope of Covered Services — 146

      b. Transmission Equipment — 155

      c. Existing Wireless Tower or Base Station — 161

      d. Collocation, Replacement, Removal, Modification — 176

      e. Substantial Change and Other Conditions and Limitations — 182

   2. Application Review Process, Including Timeframe for Review — 205

   3. Remedies — 222

   4. Non-application to States or Municipalities in Their Proprietary Capacities — 237

   5. Effective Date — 241

VI SECTION 332(C)(7) AND THE 2009 DECLARATORY RULING — 243

A. Background — 245

B. Discussion — 253

   1. Completeness of Applications — 254

   2. Moratoria263 3 Application to DAS and Small Cells — 268

   4. Definition of Collocation — 273

   5. Preferencesfor Deployments on Municipal Property — 278

   6. Remedies — 281

VII. PROCEDURAL MATTERS — 285

A. Final Regulatory Flexibility Analysis — 285

B. Paperwork Reduction Act — 286

C. Congressional Review Act — 287

VIII. ORDERING CLAUSES — 288

APPENDIX A — List of Comments and Replies

APPENDIX B — Final Rules

APPENDIX C — Final Regulatory Flexibility Analysis

3. Our actions recognize that a technological revolution has changed the wireless network landscape. The Commission’s current rules for deploying infrastructure were drafted at a time when antennas were huge and bolted to the top of enormous towers. While that kind of macrocell deployment still exists and will continue to exist, there are now a variety of complementary and alternative technologies that are far less obtrusive.

Distributed antenna system (DAS) networks and other small-cell systems use components that are a fraction of the size of macrocell deployments, and can be installed— with little or no impact—on utility poles, buildings, and other existing structures. We are revising our rules to reflect this technological progress.

At the same time, however, we recognize that State, local and Tribal governments play important roles in this process, including with respect to their own land use regulation and as part of our historic preservation review process. While we eliminate review procedures that are not necessary for small-size facilities collocated on existing structures, we do so in a manner that preserves local zoning requirements and rules requiring camouflage or concealment measures. In particular,** the rules we adopt today will allow local jurisdictions to retain their ability to protect aesthetic and safety interests**. Accordingly, our actions are intended to encourage deployments on existing towers and structures—rather than entirely new towers—in recognition that collocations almost always result in less impact or no impact at all.

9. Despite the widely acknowledged need for additional wireless infrastructure, the process of deploying these facilities can be expensive, cumbersome, and time-consuming. In addition to any private arrangements necessary to gain access to suitable land or structures,** parties must typically obtain siting approval from the local municipality**. They must also comply with the Commission’s rules for environmental review, which implement our obligations under Federal statutes including the National Environmental Policy Act of 1969 (NEPA) and Section 106 of the National Historic Preservation Act of 1966 (NHPA or Section 106).