by Lynn Whitcher and Cynthia Hanson
For a summary of key takeaways, click here. This article appeared in the February 2015 issue of AGL Magazine.
The Federal Communications Commission (FCC) was created under the Telecommunications Act of 1996 (also known as Section 332) to ensure, in part, that communications services infrastructure can be rapidly and efficiently deployed. The Act itself was intended to promote competition between providers in order to secure lower prices and higher quality communication services for the American public. In its recent wireless infrastructure report and order, the FCC acknowledges that despite the widely recognized need for additional wireless infrastructure, the process of deploying these facilities can be expensive, burdensome, and time consuming.
While the Telecommunications Act confirmed that state and local governments maintain certain authority over the placement, construction and modification of wireless facilities, the Act also provided protections to the service providers in the form of guidelines that the local jurisdictions must follow. For example, municipalities reviewing zoning applications for wireless facilities must act within a reasonable time after the request is submitted. This response period, referred to as the “shot clock,” was defined by the FCC as 90 days for a site modification or collocation, and 150 days for a new cell site, unless otherwise agreed. Any denial of an application must be in writing and supported by substantial evidence within the written record.
In continuance of its mission to ensure rapid and efficient wireless infrastructure deployments, the FCC has recently adopted new siting guidelines that will streamline local land use approvals and compliance with environmental and historical review requirements.
Collocations and Modifications to Existing Infrastructure
Where a wireless facility modification or collocation falls under the Middle Class Tax Relief and Job Creation Act of 2012 (Spectrum Act), also known as Section 6409, there are new advantages to applying for zoning approvals under this Section.
New Rule: Section 6409 can apply to a wide range of projects, including antenna modifications, fiber adds, generators adds, collocations on an existing wireless facility, the placement of the first wireless facility on an existing building or other structure – even tower enhancements
The Spectrum Act provided that state and local authorities cannot deny and must approve qualifying requests for modifications to eligible facilities. Unfortunately, the wireless industry and jurisdictions could not agree on when and how Section 6409 would apply. The intent of the Spectrum Act was to accelerate the speed of the collocation application approval process, but the FCC saw very little evidence of accelerated approval time frames in practice. The FCC has now clarified that Section 6409 can apply to a wide range of projects, including antenna modifications, the addition of new fiber optic lines, generator additions, collocations on an existing wireless facility, the placement of the first wireless facility on an existing building or other structure – even tower enhancements. To determine whether a project qualifies for treatment under Section 6409 click here (PDF).
The definitions established by the FCC are available here.
New Rule: A jurisdiction reviewing a 6409 application can only ask for information reasonable designed to establish whether the application qualifies for 6409 treatment
Aside from clarifying when Section 6409 applies, the FCC also issued important guidance with regard to what information jurisdictions can require as part of the zoning application, how long it can review it, and what happens when the jurisdiction does not meet the review deadline. When reviewing a zoning application under 6409, the jurisdiction may only seek documentation necessary to confirm whether the project qualifies for treatment under the Section. For example, Carriers cannot be asked to provide business case justifications supporting the need for the project. The jurisdictions will continue to maintain their ability to condition approval on compliance with building, structural, electrical, and other similar health and safety codes. Also, these projects must still comply with otherwise applicable federal requirements.
New Rule: 6409 applications have a new, shorter shot clock – 60 days
The FCC also created a shorter shot clock (60 days) for the review of Section 6409 applications. The shot clock begins to run upon the submission of the application, and the tolling and notices of incompleteness time frames applicable to Section 332 applications (see below) will apply to Section 6409 applications as well. Importantly, the consequence of a jurisdiction’s failure to timely complete its review is vastly different under Section 6409 as compared to Section 332.
New Rule: When a jurisdiction fails to meet the 6409 shot clock, the application is deemed approved
Where a jurisdiction fails to rule on an application covered by Section 6409 within the new 60 day shot clock period (accounting for tolling), the request will be deemed granted. The approval takes effect after written notice to the jurisdiction that the approval time period has elapsed. Presumably if the jurisdiction disagrees with this result, it is the jurisdiction that must seek relief in the courts and not the other way around, as is the case under Section 332. This “deemed granted” remedy alone may result in a significant acceleration of deployment projects and is a welcome relief for those Carriers that do not want to sue the local authorities for every violation of the shot clock.
Shot Clock Relief for Other Wireless Projects
For projects that do not qualify under Section 6409, the FCC has provided relief as well. In response to the continuing failure of many jurisdictions to comply with the shot clock timelines, the FCC has now provided detailed clarification on how and when the Section 332 shot clock applies.
New Rule: The shot clock begins to run from the submission of an application
New Rule: The jurisdiction has 30 days to tell you what’s missing from your application and justify why that’s needed
New Rule: Upon resubmission, the jurisdiction has 10 days to tell you if you didn’t provide all the previously requested information and it cannot ask for anything new
New Rule: The shot clock is not paused by a moratorium on zoning review
First, the shot clock begins to run when an application is submitted not when it has been deemed complete by the jurisdiction. Second, in the event that an application is incomplete, the jurisdiction has 30 days to request the missing information and it must also identify the code section or publically stated requirement that requires the missing information. Third, when the applicant resubmits the package, the local authority has 10 days to identify which previously requested pieces of information are still missing and the jurisdiction cannot request new information outside the scope of its original request. Gone are the days when a jurisdiction could make serial requests for information and string together multiple tolling periods to artificially elongate the shot clock approval timeframe. The FCC also addressed those jurisdictions employing a “moratorium” on zoning approvals of wireless facilities as a way to circumvent the shot clock by declaring that the shot clock will run regardless of such holds.
Because the Telecommunications Act applies only to facilities providing “personal wireless service,” there was some question as to whether zoning approvals for DAS and Small Cells (which can be used for services outside personal wireless service) fell outside the purview of the Telecommunications Act, and its shot clock requirement. The FCC has confirmed that regardless of the other applications of DAS and Small Cells, where such technologies are used to provide personal wireless service, the Section 332 shot clock applies.
Unfortunately, the FCC stopped short of changing the effect of a jurisdiction’s failure to meet the Section 332 shot clock timelines. Any disputes regarding a local authority’s failure to meet the Section 332 shot clock must be resolved in court. Also, local authorities maintain their right to request extraneous project information such traffic studies, development impact reports, copies of the underlying lease or other owner consent, etc. Accordingly, notwithstanding the significance of the Section 332 shot clock clarifications, where a project qualifies under both the Telecommunications Act and the Spectrum Act, a Carrier may wish to look to the streamlined process and stronger protections of the Spectrum Act.
New Rules for DAS and Small Cells
New Rule: DAS and Small Cell installations may qualify for the protections afforded to macrosites under Sections 332 and 6409
New Rule: Qualifying DAS and Small Cell installations are exempt from NEPA and Section 106 assessments
As noted above, the FCC has confirmed that DAS and Small Cell facility deployments may qualify for the protections of Sections 332 and 6409. Further, in light of the smaller nature and therefore lessened environmental impact of these installations, the FCC has created new environmental and historical review exemptions for these minimally obtrusive facilities. Qualifying interior facilities, collocations, and facilities in the rights-of-way will no longer need either an Environmental Assessment (EA) or Environmental Impact Statement (EIS) of potential impacts of the project under the National Environmental Policy Act of 1969 (NEPA). Specifically, the FCC amended current NEPA categorical exclusions for antenna collocations on buildings and towers to include equipment associated with the antennas such as wiring, cabling, cabinets, and backup-power equipment and to cover collocations in a building’s interior. This NEPA categorical exclusion for collocations was also extended to collocations on structures other than buildings and towers.
Further, with respect to any public right-of-way designated for communication towers, above-ground utility transmission lines, or any associated structures and equipment, and which is actively used for such purpose, the FCC created a categorical exclusion for projects that will not result in a substantial increase in size over the existing utility or communications uses. The FCC order provides guidance on what constitutes a substantial increase in size.
Similarly, qualifying collocations on utility poles and transmission towers (but not light standards) and qualifying collocations on buildings and certain non-tower structures will not require consultations with the State Historic Preservation Officer (SHPO), Tribal Historic Preservation Officer (THPO) or Advisory Council on Historic Preservation (ACHP) as otherwise required under the National Historic Preservation Act of 1966 (NHPA, also known as Section 106). In order to qualify for this exclusion and presuming no other exclusions otherwise apply, the collocated equipment, when measured with any other wireless deployment on the same structure must meet certain size and ground disturbance[vi6 limitations. Lastly, any structure can now qualify for Section 106 exclusion, regardless of age — even if older than 45 years.
The FCC indicates that its efforts in this area remain ongoing and we may see additional changes to environmental and historical review requirements for DAS networks and Small Cell facilities in the future.
New Rule: Qualifying COWs, COLTs, and other temporary tower facilities are exempt from the 30 day ASR public notice requirement.
The FCC order also addresses the following ancillary points:
- In order to allow carriers to more effectively respond to emergencies, natural disasters, and planned and unplanned short-term spikes in demand, the FCC exempted certain temporary towers from the 30 day national and local Antenna Site Registration notice requirement.
- The FCC found that the practice of a municipality giving zoning approval preference to facilities located on municipality-owned property is not, on its face, invalid.
- The FCC’s new rules do not in any way restrict a jurisdiction’s ability to negotiate lease provisions for wireless facilities located on jurisdiction owned properties.
What to Expect
As of the date of this publication, the FCC order has not yet been published in the Federal Register. Most of the new rules, and specifically the changes to 6409, will take effect 90 days after official publication.
In the meantime, PCIA and CTIA have committed to working with the local governments to assist in the implementation of these new rules. We may see these industry groups create or collaborate on a checklist to help navigate the review process and requirements. We may also see educational materials in the forms of webinars and best practices manuals, as well as model ordinances and new application forms for 6409 projects.
 47 U.S.C. § 332(c)(7)
 47 U.S.C. § 1455(a), also known as § 6409(a)
 A deployment would result in a substantial increase in size if it would: (1) exceed the height of existing support structures located in the right-of-way within the vicinity of the proposed construction by more than 10% or 20 feet, whichever is greater; (2) involve the installation of more than 4 new equipment cabinets or more than 1 new equipment shelter; (3) add an appurtenance to the body of the structure that would protrude from the edge of the structure more than 20 feet, or more than the width of the structure at the level of the appurtenance, whichever is greater (except that the deployment may exceed this size limit if necessary to shelter the antenna from inclement weather or to connect the antenna to the tower via cable); or (4) involve excavation outside the current site, defined as the area that is within the boundaries of the leased or owned property surrounding the deployment or that is in proximity to the structure and within the boundaries of the utility easement on which the facility is to be deployed, whichever is more restrictive.
 The deployment may include covered antenna enclosures no more than 3 cubic feet in volume per enclosure, or exposed antennas that fit within an imaginary enclosure of no more than 3 cubic feet in volume per imaginary enclosure, up to an aggregate maximum of 6 cubic feet. All equipment enclosures (or imaginary enclosures) associated with the collocation on any single structure, including all associated equipment but not including separate antennas or antenna enclosures, must be limited cumulatively to 17 cubic feet in volume. For purposes of these calculations, the following are not included: (a) vertical cable runs; (b) ancillary equipment installed by other parties outside the applicant’s control (such as a power meter installed by the public utility); and (c) pre-existing comparable equipment installed in connection with a prior deployment on the structure.
 Collocations on a building or other non-tower structure are excluded from Section 106 review to the extent not otherwise already excluded if: (a) there is an existing antenna on the building or structure; (b) antenna proximity requirements are met; and (c) the new antenna(s) will comply with all zoning conditions and historic preservation conditions imposed on existing antennas that mitigate or prevent environmental impact (such as stealthing requirements); and (d) they meet ground disturbance requirements. These criteria apply to equipment collocated within a building as well as on its exterior. In order to meet the antenna proximity requirements one of the following criteria must be met: (a) the new antenna will not be visible from any adjacent streets or surrounding public spaces and will be added in the same vicinity as a pre-existing antenna; (b) any new antenna visible from adjacent streets or surrounding public spaces (i) will replace a pre-existing antenna, (ii) will be located in the same vicinity as the pre-existing antenna, (iii) will be visible only from adjacent streets and surrounding public spaces that also afford views of the pre-existing antenna, (iv) will not be more than three feet larger in height or width (including any protrusions) than the pre-existing antenna; and no new equipment cabinets will be visible from the adjacent streets or surrounding public spaces; or (c) the new antenna will be visible from adjacent streets or surrounding public spaces, but (i) will be located in the same vicinity as a pre-existing antenna, (ii) will be visible only from adjacent streets and surrounding public spaces that also afford views of the pre-existing antenna, (iii) the pre-existing antenna was not deployed pursuant to the exclusion based on this finding, (iv) will not be more than three feet larger in height or width (including any protrusions) than the pre-existing antenna; and no new equipment cabinets will be visible from the adjacent streets or surrounding public spaces.
 If there is any new ground disturbance, the depth and width of the new ground disturbance (including footings and other anchoring) must exceed that of the previous ground disturbance by at least two feet.
 These temporary towers: (a) cannot be in place for more than 60 days; (b) must require construction notice to the Federal Aviation Administration (FAA); (c) must not require marking or lighting under FAA regulations; and (c) cannot extend higher than 200 feet above ground level. Additionally, if there is any new ground disturbance, the depth and width of the new ground disturbance (excluding footings and other anchoring) must exceed that of any previous ground disturbance by at least two feet.