[Federal Register Volume 76, Number 95 (Tuesday, May 17, 2011)]
[Proposed Rules]
[Pages 28397-28403]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-11966]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Chapter I

[WC Docket No. 11-59; FCC 11-51]


Acceleration of Broadband Deployment by Improving Policies 
Regarding Public Rights of Way and Wireless Facilities Siting

AGENCY: Federal Communications Commission.

ACTION: Notice of inquiry.

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SUMMARY: In this document, the Federal Communications Commission seeks 
to work with stakeholders including state and local governments, other 
Federal agencies, Tribal governments, consumer advocates, and the 
private sector to identify means of improving rights of way policies 
and wireless facilities siting requirements. Policies for managing 
rights of way and siting wireless facilities, including the procedures 
and costs for acquiring permission to build, affect how long it takes 
and how much it costs to deploy broadband. By working together with 
other interested parties on these issues, the Commission can reduce the 
costs and time required for broadband deployment, both fixed and 
mobile, which will help unleash private investment in infrastructure, 
increase efficient use of scarce public resources (including spectrum) 
and increase broadband adoption.

DATES: Comments are due July 18, 2011 and reply comments are due August 
30, 2011.

ADDRESSES: You may submit comments, identified by WC Docket No. 11-59, 
by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Federal Communications Commission's Web Site: http://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting 
comments.
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: [email protected] or phone: 202-418-
0530 or TTY: 202-418-0432.
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the supplementary 
information section of this document.

FOR FURTHER INFORMATION CONTACT: Claudia Pabo, Wireline Competition 
Bureau, Competition Policy Division, 202-418-1595.

SUPPLEMENTARY INFORMATION: 
    Pursuant to Sec. Sec.  1.415 and 1.419 of the Commission's rules, 
47 CFR 1.415 and 1.419, interested parties may file comments on or 
before July 18, 2011 and reply comments on or before August 30, 2011. 
Comments may be filed using: (1) The Commission's Electronic Comment 
Filing System (ECFS), (2) the Federal Government's eRulemaking Portal, 
or (3) by filing paper copies. See Electronic Filing of Documents in 
Rulemaking Proceedings, 63 FR 24121 (1998).
     Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/ or the Federal eRulemaking Portal: http://www.regulations.gov.
     Paper Filers: Parties who choose to file by paper must 
file an original and four copies of each filing. If more than one 
docket or rulemaking number appears in the caption of this proceeding, 
filers must submit two additional copies for each additional docket or 
rulemaking number.
    Filings can be sent by hand or messenger delivery, by commercial 
overnight courier, or by first-class or overnight U.S. Postal Service 
mail. All filings must be addressed to the Commission's Secretary, 
Office of the Secretary, Federal Communications Commission.
     All hand-delivered or messenger-delivered paper filings 
for the Commission's Secretary must be delivered to FCC Headquarters at 
445 12th St., SW., Room TW-A325, Washington, DC 20554. All hand 
deliveries must be held together with rubber bands or fasteners. Any 
envelopes must be disposed of before entering the building.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton 
Drive, Capitol Heights, MD 20743.
     U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 445 12th Street, SW., Washington, DC 20554.
    People with Disabilities: To request materials in accessible 
formats for people with disabilities (braille, large print, electronic 
files, audio format), send an e-mail to [email protected] or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).
    Filings and comments are also available for public inspection and 
copying during regular business hours at the FCC Reference Information 
Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 
20554. They may also be purchased from the Commission's duplicating 
contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, 
SW., Room CY-B402, Washington, DC 20554, telephone: (202) 488-5300, 
fax: (202) 488-5563, or via e-mail http://www.bcpiweb.com.

Initial Paperwork Reduction Act of 1995 Analysis

    This document does not contain proposed information collection 
requirements subject to the Paperwork Reduction Act of 1995, Public Law 
104-13. In addition, therefore, it does not contain any proposed 
information collection burden for small business concerns with fewer 
than 25 employees, pursuant to the Small Business Paperwork Relief Act 
of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).
    Below is a synopsis of the Commission's Notice of Inquiry in WC 
Docket No. 11-59, adopted and released April 7, 2011.

[[Page 28398]]

Synopsis of Notice of Inquiry

I. Introduction

    1. This Notice of Inquiry (Notice) concerns key challenges and best 
practices in expanding the reach and reducing the cost of broadband 
deployment by improving government policies for access to rights of way 
and wireless facilities siting. In this proceeding we seek to work with 
stakeholders including state and local governments, other Federal 
agencies, Tribal governments, consumer advocates, and the private 
sector to identify means of improving rights of way policies and 
wireless facilities siting requirements. By working together on these 
issues, we can reduce the costs and time required for broadband 
deployment, both fixed and mobile, which will help unleash private 
investment in infrastructure, increase efficient use of scarce public 
resources (including spectrum), and increase broadband adoption.
    2. Providing broadband service requires the deployment and use of 
varied and physically dispersed communications infrastructure that is 
placed in public and private rights of way and on towers and building 
roof tops. Access to public rights of way, tower sites, and buildings 
is governed by Federal, state, local, or Tribal requirements depending 
on the location. Obtaining access to rights of way on fair and 
reasonable terms, and through a predictable process, is critical for 
all infrastructure providers.
    3. This Notice is intended to update our understanding of current 
rights of way and wireless facilities siting policies, assess the 
extent and impact of challenges related to these matters, and develop a 
record on potential solutions to these challenges. This inquiry is a 
necessary step towards determining whether there is a need for 
coordinated national action to improve rights of way and wireless 
facilities siting policies, and, if so, what role the Commission should 
play in conjunction with other stakeholders. We seek a detailed record 
of the nature and scope of broadband deployment issues, including both 
best practices that have promoted deployment and matters that have 
resulted in delays.
    4. The Commission is most interested in systemic practices rather 
than individual or anecdotal situations, which are less suited for 
Federal policies. So that we might have a factual basis upon which to 
determine the nature and extent of any problems, we ask commenters to 
provide us with information on their experiences, both positive and 
negative, related to broadband deployment. In the case of comments that 
name any state or local government or Tribal or Federal entity as an 
example of barriers to broadband deployment, we strongly encourage the 
party submitting the comments to name the specific government entity it 
is referring to, and describe the actions that are specifically cited 
as an example of a barrier to broadband deployment, as this is the best 
way to ensure that all affected parties--the relevant governmental 
entity, citizens and consumer groups, and other private parties that 
have sought access in the area--are able to respond to specific 
examples or criticisms. Identifying with specificity particular 
examples or concerns will ensure that the Commission has a complete 
understanding of the practices and can obtain additional background if 
appropriate. In turn, we ask government entities to explain the policy 
goals underlying their current practices and charges regarding rights 
of way and wireless facilities siting. We seek to identify best 
practices, systemic challenges and fully consider possible steps the 
Commission can take, in partnership with Federal, state, local, and 
Tribal governments--with input from consumer groups and industry--to 
foster improvements in these areas.
    5. The Commission may move forward in other contexts to act on 
individual issues raised here, as appropriate, without awaiting 
completion of this proceeding.

II. Rights of Way and Wireless Facilities Siting Issues

    6. In this section, we describe the various types of possible 
issues regarding rights of way governance and wireless facilities 
siting requirements, and we seek input in order to obtain a more 
complete understanding of these areas. We seek to develop a complete 
record of how rights of way and wireless facilities siting decisions 
influence build out and adoption of broadband and other communications 
services. We believe that rights of way and wireless facilities siting 
issues can generally be broken into several broad categories: (1) 
Timeliness and ease of the permitting process; (2) the reasonableness 
of charges; (3) the extent to which ordinances or statutes have been 
updated to reflect current communications technologies or innovative 
deployment practices; (4) consistent or discriminatory/differential 
treatment; (5) presence or absence of uniformity due to inconsistent or 
varying practices and rates in different jurisdictions or areas; (6) 
other rights of way concerns including ``third tier'' regulation or 
requirements that cover matters not directly related to rights of way 
use or wireless facilities siting. We ask commenters to describe the 
specific kinds of public rights of way and wireless facilities siting 
issues that exist in each of these areas. Do some of these issues 
particularly affect various categories of rights of way owners, 
wireless facilities siting authorities, network users, or network 
functions? We also ask interested parties to describe best practices in 
each of these areas.

A. Timeliness and Ease of the Permitting Process

    7. The Commission recently addressed the timeliness of state and 
local permitting processes for tower siting in the Shot Clock Ruling, 
74 FR 67871 Dec. 21, 2009, which set a timeline for action on 
collocation and other tower siting applications. We seek comment on the 
application of the Shot Clock Ruling, and its efficacy in reducing 
delays in the local zoning process. In particular, has the Shot Clock 
Ruling reduced the number of collocations pending before state and 
local government authorities for periods of longer than 90 days, and 
the number of applications other than collocations pending for longer 
than 150 days? Has this approached proved satisfactory from the 
perspective of the communities in resolving actions for collocation? 
Have individual cases been taken to district courts for zoning 
authorities' failure to act, and if so, how did the courts apply the 
Shot Clock Ruling? Do parties believe that adoption of the Shot Clock 
Ruling has resulted in faster rulings from state and local government 
authorities? In answering these questions, parties should provide as 
much specificity as possible.
    8. We also seek updated information on the timeliness and ease of 
permit processing for rights of way and siting of wireless facilities. 
Are application processes defined with sufficient clarity? Is 
information on all necessary application procedures, forms, substantive 
requirements, and charges readily accessible? How do rights of way 
holders and wireless facilities siting authorities handle new or novel 
requests for access to rights of way or tower and antenna sites? Are 
there processes in place for addressing situations in which it is 
difficult to identify the rights of way holder? How could the 
application process be streamlined in certain situations, such as where 
an infrastructure provider seeks to collocate new facilities on an 
existing tower? Is the process for obtaining permits for accessing 
rights of

[[Page 28399]]

way or siting wireless facilities timely? To the extent applications 
are not processed in a timely fashion, what factors are responsible for 
delays? Are there types of errors, omissions, or substantive 
requirements in applications that frequently lead to rejection, 
dismissal, or return of the applications? What application processing 
timeframes are reasonable? Are there particular practices that can 
improve processing time frames?
    9. We also ask commenters to provide data about their experiences 
and situations. We ask commenters to submit data related to processing 
intervals for permit approval, both targeted and actual, for all 
relevant providers (data submitted by rights holders) and communities 
(data submitted by infrastructure providers). We ask that any submitted 
data be broken out in as disaggregated a fashion as possible. For 
example, we encourage commenters to include for each application the 
name of the provider; name of the location or community; type of 
project, including whether a project is wholly new or an augmentation 
of an existing facility (e.g., wireless collocation on existing 
structure); whether the community is subject to comprehensive state 
franchising or rights of way laws; and total time to process 
applications. To the extent that certain activities during a particular 
approval took an unusual length of time, we encourage participants to 
provide any relevant details, such as pre-processing time devoted to 
obtaining a complete-as-filed application, time spent negotiating, or 
time spent waiting for events external to the application process. 
Commenters also should include any other relevant categories of data or 
explanations that will make their submissions more informative.

B. Reasonableness of Charges

    10. To what extent and in what circumstances are rights of way or 
wireless facilities siting charges reasonable? Is it possible to 
identify rights of way or wireless facilities siting charges that all 
stakeholders agree are reasonable? If not, are there rate levels that 
most infrastructure providers agree are reasonable, and different rate 
levels that most government entities agree are reasonable? Are there 
instances and circumstances in which rights of way or facilities siting 
charges are unreasonable? What are appropriate criteria for determining 
the reasonableness of such charges? For example, are permitting or 
application fees unreasonable to the extent they exceed amounts that 
would recover administrative and other specifically identifiable costs? 
Are ``market based'' rates for use of public rights of way or publicly-
owned wireless facilities sites reasonable? In particular, how are 
market-based rates or other non-cost based rates for public rights of 
way determined when, in many situations, there does not appear to be a 
competitive market for public rights of way? Are market-based rates 
substantially higher than cost-based rates?
    11. We ask commenters to provide factual data to help the 
Commission understand existing charges and practices. We seek data on 
current permitting charges, including all recurring and non-recurring 
charges, as well as any application, administrative, or processing 
fees. In presenting these data, we ask commenters to identify such 
information as the type of facilities for which such charges are 
assessed; how such charges are structured (e.g., per foot or percent of 
revenue in the case of rights of way fees); whether the community is 
subject to comprehensive state franchising or rights of way laws; 
whether the charges are published in advance or individually 
negotiated, designed to approximate market rates or merely recover 
costs (direct and/or indirect), and accompanied by comprehensive terms, 
and conditions; and the value of any in-kind contributions required for 
access or permit approval. We also request commenters to include 
information that enables us to determine the extent to which such 
charges are related to impacts on the local community, such as pavement 
restoration costs for projects that involve trenching in roadways. We 
recognize that certain information may disclose competitively sensitive 
information and we understand the need to aggregate such data across 
multiple communities or providers, or otherwise present it in a way 
that does not disclose any competitively sensitive data.
    12. We also seek information on how a market-based charge is 
calculated in the context of various types of fees. For example, do 
per-foot fees and other usage fees vary depending on the number of 
providers that need access to the rights of way and the amount of fiber 
or other facilities each such provider places in the rights of way (a 
measure of demand)? To what extent do entities vary such fees based on 
other market factors, for example, the available supply, such as the 
remaining usable space within a conduit system in the rights of way, or 
the amount of land available to accommodate a new system? We also are 
interested in understanding how the levels of percent-of-revenue fees 
are set in order to achieve a market-based rate.
    13. We also invite comment on whether there are specific 
circumstances in which rights of way or wireless facilities siting 
charges are more likely to be unreasonable. For example, once an 
infrastructure provider has placed facilities in a public right of way, 
incurring sunk costs, is the public rights of way holder frequently in 
a position to exercise market power in establishing subsequent charges, 
such as on renewals of long-term contracts or requests to make changes 
to a vitally important network facility? Are there specific situations 
where such market power has been exercised? How can instances of the 
exercise of market power be identified? What situations are most likely 
to cause wireless facilities siting charges to be unreasonable? Do 
rights of way or wireless facilities site administrative and/or usage 
fees vary by the demographics of the customer base? For example, do 
holders of public rights of way, government owners of tower or antenna 
sites, and/or government entities regulating wireless facilities sites 
located in dense, urban, and/or suburban high-income areas tend to 
impose higher fees than government entities in other areas, and are 
such differences reasonable?
    14. We also request comment on the ways in which rights of way or 
wireless facilities site processing or usage charges affect broadband 
subscribers. Are such charges imposed on a broadband provider 
ultimately passed on to that provider's customers? What fraction of a 
broadband provider's costs do public rights of way and governmental 
wireless facilities site or administrative fees typically represent? 
Insofar as broadband providers charge geographically averaged rates, 
high rights of way and wireless facilities siting charges will be 
recovered by providers in part from consumers in other jurisdictions 
rather than recovered directly from consumers within the jurisdiction 
imposing the high charges. To what extent should this affect the 
analysis of rights of way and wireless facilities siting charges? For 
example, should we be concerned about excessive charges if they are 
transparent and recovered solely from residents of the jurisdiction 
imposing the charge?

C. Qualitative Information

    15. We also seek qualitative information that describes how the 
prices for rights of way and wireless facilities siting and the target 
timeframe for approval of infrastructure providers' applications are 
set, and that describe

[[Page 28400]]

the process of receiving approval to access rights of way or site 
wireless facilities, particularly for broadband. How are we to 
distinguish and evaluate different policies and practices? To help 
create a record of existing and best practices, we ask infrastructure 
providers, localities, and other interested parties to submit examples 
of model, typical, and problematic franchising or access agreements.
    16. Certain qualitative information we seek is best provided by 
states and localities. For instance, we request information on the 
policy goals and other objectives underlying practices and charges 
related to access to rights of way and approval of wireless facilities. 
To what extent are local requirements designed to achieve public 
interest goals, such as ensuring public safety, avoiding disruption of 
traffic, or maintaining roadways? What role do other civic goals play 
in guiding local rights of way and wireless governance decisions? For 
example, how do localities weigh such issues as preventing the public 
disruption and damage to roads that accompanies street cuts, or 
satisfying aesthetic, environmental, or historic preservation concerns, 
with goals of greater fixed and mobile broadband deployment and 
adoption through timely processing of permits, nondiscrimination, 
transparency, and reasonable charges?
    17. Certain other information we seek may be best provided by 
infrastructure providers. For example, we seek information about how 
rights of way issues influence the deployment decisions of 
infrastructure providers. In this regard, we request information on 
both specific instances in which a provider chose not to build out 
broadband facilities due to rights of way concerns and comprehensive 
data or analysis that might demonstrate the extent to which rights of 
way concerns are impeding broadband infrastructure investment and 
broadband adoption. As providers prioritize capital investments, to 
what extent do rights of way and wireless siting governance issues have 
an effect? How do providers take into account any uncertainty with 
regard to cost or timing? In areas where processes have been 
standardized, we ask providers to provide evidence of how this has 
affected their deployment decisions and quantify any benefits. Are 
there situations in which localities believe that infrastructure 
providers have unreasonably refused to build out broadband facilities 
despite best efforts on the part of the locality to encourage 
deployment through rights of way or wireless facility siting policies?

D. Extent to Which Ordinances or Statutes Have Been Updated To Reflect 
Current Communications Technologies or Innovative Deployment Practices

    18. We ask interested parties whether state statutes or local 
ordinances have been updated to reflect current developments in the 
communications industry or recent changes in communications 
technologies that require access to public rights of way. Where such 
updates have not occurred, do providers experience problems or issues 
with application processing or delays? For example, do existing 
ordinances or other requirements successfully address the placement of 
small antennas on existing facilities in rights of way? In particular, 
we seek comment on any challenges that may apply to the deployment of 
microcells, picocells, femtocells, and Distributed Antenna Systems 
(DAS). What, if anything, do states and localities require in order to 
permit the attachment of microcells, picocells, femtocells, and DAS 
antennas to existing infrastructure that is different from attaching 
any other antenna to a given structure? Do any states or localities 
allow all of the proposed DAS antennas within a DAS network to be 
combined in a single permit application, and is this or would this be 
helpful for DAS deployment? Are there any other ways in which 
microcells, picocells, femtocells, and DAS antennas are treated 
uniquely, and are there any ways in which states, localities, or 
wireless service providers think they should be treated differently? To 
what extent are these facilities treated as public utilities? To what 
extent are they subject to local zoning processes? To what extent 
should existing ordinances or statutes be revised to reflect changes in 
the communications industry and technology?
    19. We also seek comment on how different jurisdictions treat the 
use of existing infrastructure for wireless services, both in and out 
of rights of way. Is there disparate treatment between a pole 
attachment, i.e., the attachment of a wireless antenna to an existing 
public utility pole, and a collocation, where a wireless antenna is 
attached to some other existing structure? Are different or additional 
considerations required for some types of rights of way, such as those 
used for transportation, as compared to other types? Are there 
instances in which conflicting laws may apply to the attachment of a 
wireless antenna to an existing structure? What is the overall effect 
of these considerations on the ability and the likelihood that existing 
infrastructure can be effectively used to deploy wireless services? Do 
some regulations and policies encourage resource sharing, while others 
discourage it? Do states and localities show any preference for 
collocated antennas or for the placement of wireless facilities on 
public property? Are there particular approaches that facilitate 
wireless deployment, including DAS? Why do they work well?

E. Consistent or Discriminatory/Differential Treatment

    20. How have ordinances addressed differences in rights of way 
users and wireless facilities siting applicants, the different uses 
they make of rights of way and sites, and the different equipment they 
seek to deploy? Are differing rights of way or wireless facilities 
siting practices or charges reasonable? Do they involve unreasonable or 
discriminatory differential treatment of various types of rights of way 
users or facilities siting applicants? What are appropriate methods to 
determine whether a practice or charge is unreasonable or 
discriminatory? For example, do publicly available fee schedules for 
various categories of rights of way use tend to be nondiscriminatory? 
Are zoning requirements for wireless facilities siting 
nondiscriminatory? Are there other criteria that can and should be used 
to determine whether charges or practices are discriminatory without 
fact-intensive and burdensome administrative or court proceedings?

F. Presence or Absence of Uniformity Due to Inconsistent or Varying 
Practices and Rates in Different Jurisdictions or Areas

    21. In a given metropolitan area, the main city and various 
surrounding towns, villages, and counties may have differing practices 
and charges for rights of way usage and wireless facilities siting. To 
what extent do these practices and charges differ within a particular 
state? Does inconsistent treatment of infrastructure providers among 
states and localities make the deployment of broadband more difficult 
or time-consuming, or is inconsistency among states and/or localities 
not problematic as long as infrastructure providers have a clear path 
to follow within each jurisdiction? To what extent does the need to 
file multiple applications cause problems for infrastructure providers, 
regardless of the similarity or differences in the practices and 
charges involved?
    22. To what extent do rights of way governance and wireless 
facilities siting requirements vary between different

[[Page 28401]]

Federal government agencies? Do different agencies require varying 
types of information or do different agencies require similar 
information to be presented in different formats? To what extent do any 
differences among agencies make it more difficult to obtain permits and 
build out broadband networks on Federally controlled properties? Have 
there been efforts to increase uniformity? How successful have they 
been?

G. Other Issues

    23. Other Rights of Way or Wireless Facilities Siting Issues: We 
ask interested persons to identify and describe any other rights of way 
or wireless facilities siting issues that have an impact on broadband 
deployment and adoption. We also ask interested parties to identify any 
other practices or approaches that have been particularly beneficial to 
facilitating broadband deployment. Do government rights of way owners 
or wireless facilities siting authorities impose requirements that are 
not directly relevant to intended use? For example, in some cases in 
the past, localities owning rights of way have required that 
infrastructure providers supply information of the type usually 
required for a certificate of operating authority from the state. Is 
this an ongoing requirement for applicants seeking rights of way or 
siting permits? Are there other examples of such requirements? What are 
the policy reasons for such requirements? Are there adjustments that 
could be made to ensure that localities obtain necessary information 
and address legitimate concerns?
    24. Private Rights of Way and Tower Sites: We ask interested 
persons to provide information on issues that arise in the context of 
private rights of way or tower sites to the extent such information 
might be helpful to the Commission in achieving a complete 
understanding of potential public rights of way issues or issues 
concerning tower siting on public lands.
    25. General Scope of Concerns: We seek comment on whether specific 
rights of way and wireless facilities siting concerns are widespread or 
generally limited to particular Federal agencies, states, Tribes, and 
localities. Are rights of way and wireless facilities siting concerns 
generally less widespread in states that have adopted comprehensive 
rights of way laws than in other states? Are rights of way and wireless 
facilities siting concerns more common in certain types of areas, such 
as cities and surrounding suburbs, and less common in rural areas? We 
also ask interested persons to comment on the extent to which rights of 
way and wireless facilities siting concerns are likely to increase or 
decrease in the near future. For example in other contexts, it appears 
that many long-term rights of way contracts will expire in the next few 
years. Is this likely to cause a spike in rights of way disputes? Will 
the need for new facilities to provide next generation wireless 
services increase concerns regarding facilities siting?
    26. Additional Data Gathering: We seek input on whether the 
Commission should take any additional steps to gather information on 
issues relevant to this proceeding, including workshops, surveys, and/
or mandatory data collections. Are there any existing sources of 
relevant data the Commission could rely on for purposes of this 
proceeding?
    27. We seek input on the costs and benefits of each of these 
approaches and whether any of these approaches should be pursued in 
this proceeding. Are there any other approaches that would yield better 
results with similar or smaller investments of time and effort?

III. Solutions

A. Prior Efforts To Resolve Concerns

    28. We seek information on what interested parties have already 
done to address rights of way and wireless facilities siting concerns. 
Have the Federal government, states, localities, Tribes, and/or the 
organizations representing them developed best practices for rights of 
way and wireless facilities siting governance? We also seek comment on 
best practices proposed by private sector entities. Are there existing 
compendia of rights of way and wireless facilities siting best 
practices? Aside from state statutes, have there been efforts to 
develop consolidated rights of way application processes that cover 
multiple jurisdictions and reduce or eliminate the need to file 
multiple applications? Have other approaches to improving rights of way 
and wireless facilities siting governance been attempted? We request 
comment on the effects of previous efforts to address rights of way and 
wireless facilities siting governance. Have state statutes governing 
rights of way helped increase uniformity and reduce costs? We encourage 
states that have adopted such legislation to describe the approach 
adopted as well as the benefits and drawbacks. In addition, we ask 
interested persons to submit information on instances in which 
government entities and industry have worked together in a positive 
manner to foster broadband deployment, and describe the factors or 
circumstances that led to such constructive collaboration.

B. Options--Possible Actions To Address Current Areas of Concern

    29. In this section, we ask interested persons to comment on a 
number of actions the Commission might take to foster broadband 
deployment by addressing rights of way and wireless facilities siting 
concerns. For analytical purposes we have broken the options into two 
groups: One focused primarily on possible voluntary programs and 
educational activities coordinated or facilitated by the Commission, 
and the other involving the exercise of Commission rulemaking or 
adjudicatory authority. These sets of options are not mutually 
exclusive. We ask interested parties to comment on the benefits and 
costs of each of these potential actions, and to quantify those 
benefits and costs to the extent possible. We also ask interested 
parties to comment on the extent of the Commission's authority to take 
the various actions discussed below, particularly the Commission's 
authority to engage in rulemaking and/or adjudication. We also ask 
whether there are other effective options to foster broadband 
deployment through improvements in rights of way or wireless facilities 
siting governance.
1. Voluntary Programs and Educational Activities
    30. Commission Educational Efforts and Voluntary Activities: Should 
the Commission address rights of way and wireless facilities siting 
concerns through educational efforts and voluntary activities? We ask 
interested parties to focus on the substantive scope of such 
educational voluntary activities described below.
    31. Best/Worst Practices: Should the Commission compile a set of 
best practices for public rights of way and wireless facilities siting 
policies that are consistent with facilitating broadband deployment? If 
so, how should this be done? Should this effort focus on a limited set 
of problematic issues, or should we instead try to develop a 
comprehensive set of best practices?
    32. Increased Uniformity: Closely related to the issue of best 
practices, although emphasized somewhat differently, is the issue of 
increased uniformity. Should the Commission work to increase uniformity 
in rights of way and wireless facilities siting governance among 
localities and/or within the Federal government? Could the Commission, 
in partnership with affected stakeholders, develop a model application 
processes or other procedures or practices, to lower costs

[[Page 28402]]

and streamline processes across multiple jurisdictions?
    33. With respect to uniformity in practices and procedures within 
the Federal government, what if any steps should the Commission take to 
help streamline the process of siting facilities on Federal lands? 
Should the Commission, for example, recommend convening or 
participating in an inter-agency task force to inventory current 
procedures and identify benchmarks for best practices?
    34. Competitions and Awards: We also ask interested parties to 
comment on whether the Commission should encourage best practices and 
increased uniformity by initiating a ``race to the top'' type of 
competition. The Commission could promote streamlined processes that 
provide timely access to rights of way and wireless facilities siting 
by recognizing individual localities for their outstanding efforts on 
these issues. By doing so, the Commission would be encouraging more 
localities and states to implement rights of way or wireless facilities 
siting best practices and/or increase uniformity in these areas. What 
kinds of incentives would encourage participation by localities and 
states?
    35. Commission Sponsored Mediation: Should the Commission establish 
a process for voluntary mediation of rights of way and wireless 
facilities siting disputes by selected state or local representatives 
working in conjunction with industry? How should such a process be 
structured, and how could participation be encouraged?
    36. Improved Facilities Deployment Practices in Rights of Way: 
Should the Commission work to raise awareness about facilities 
deployment techniques that could reduce costs and speed deployment? For 
example, should the Commission promote micro trenching and deployment 
of Distributed Antenna System facilities on street light and traffic 
light poles where appropriate? We invite comment on other innovative 
rights of way or wireless facilities deployment practices that should 
be considered in this regard.
    37. Recommendations to Congress or the Administration: The National 
Broadband Plan recommended that Congress consider allowing agencies to 
set fees for access to rights of way for broadband services based on 
direct cost recovery, especially in markets currently underserved or 
unserved by broadband. The Plan also recommended that the Executive 
Branch develop master contracts for all Federal property and buildings 
covering the placement of wireless towers. Are there additional 
specific actions that the Commission should recommend to the 
Administration or to Congress that would remove roadblocks and 
encourage further broadband build out on Federal properties? For 
example, should the Commission recommend that the Executive Branch 
formally permit wireless facility sites on Federal property, including 
postal service property? Should the Commission make recommendations to 
Congress or the Administration concerning rights of way or wireless 
facilities siting concerns? For example, is legislation needed to 
address certain concerns? Would Congressional action promote 
uniformity? Should the Commission make recommendations to the 
Administration? We invite suggestions for specific legislative language 
recommended for Congress.
2. Rulemaking and Adjudication
    38. In this section we discuss possible rulemaking and adjudication 
options. We note that these options may work well as backstops to 
voluntary action and Commission educational efforts or in combination 
with such options.
    39. Adopt Policy Guidelines: Should the Commission adopt policy 
guidelines addressing rights of way or wireless facilities siting 
issues? Such guidelines could set out the Commission's views on various 
issues, such as application processing time frames, but would not be 
enforceable as rules. We invite comment on the policy benefits and 
drawbacks of this option.
    40. Adopt Rules: Should the Commission adopt rules designed to 
foster broadband deployment by addressing rights of way or wireless 
facilities siting problems?
    41. Substantive Scope of Policy Guidelines or Rules: What subjects 
should be addressed by any policy guidelines or rules adopted by the 
Commission? For example, should the Commission address the issues 
described below? Are there other substantive issues in this proceeding 
that the Commission should address through policy guidelines or rules?
    42. Safe Harbors/Triggers: Should the Commission adopt policy 
guidelines or rules establishing safe harbors for rights of way and 
wireless facilities siting procedures, practices, and charges; or 
triggers that would subject such procedures, practices, and charges to 
heightened scrutiny by the Commission or a court in particular 
circumstances? If so, what procedures, practices, and rates should be 
included in this approach?
    43. Billing Practices: Should the Commission adopt guidelines or 
rules allowing or requiring infrastructure providers to impose separate 
line item fees to recover rights of way or wireless facilities siting 
charges directly from subscribers in the jurisdiction imposing such 
charges in order to increase transparency and accountability and 
minimize cross-subsidies?
    44. Interpretation of Sections 253 and 332: Should the Commission 
adopt guidelines or rules interpreting the terms of these statutory 
provisions with respect to rights of way and wireless facilities siting 
requirements? If so, what provisions of each section should the 
Commission address and how should those provisions be interpreted?
    45. Adjudication: Should the Commission address certain rights of 
way problems through adjudication under section 253? Would this 
approach be well suited to addressing problems that are not widespread, 
but may represent significant obstacles to broadband deployment in a 
particular locality or a small number of localities?
3. Other Proposals
    46. We also invite interested parties to suggest other specific 
actions the Commission could take to improve policies regarding public 
rights of way and wireless facilities siting. In each case, we ask them 
to describe the problem or subject matter addressed and its effect on 
broadband deployment. We then ask them to explain their proposal. We 
also ask interested persons to describe the benefits of such proposals 
and to address potential drawbacks. In addition, we ask interested 
persons to identify proposals that can be implemented relatively 
quickly and those that would take longer to implement, along with 
suggested timelines.

IV. Legal Authority

    47. We believe the Commission has authority to engage in 
educational activities to foster broadband deployment through improved 
policies regarding public rights of way and wireless facilities siting 
and to coordinate and participate in voluntary activities designed to 
achieve this goal. We also believe the Commission has authority to 
adopt policy guidelines and rules concerning these issues. We ask for 
comment on these views and on whether the Commission has authority to 
adjudicate rights of way cases under section 253. An analysis of these 
legal issues is set forth below. In this regard, we emphasize that the 
views described here do not represent final determinations on these 
issues and that our ultimate legal conclusions will reflect a careful 
consideration of the comments addressing these issues.

[[Page 28403]]

A. Background

    48. We begin by reviewing the terms of the statutory provisions 
most relevant to this proceeding--section 706 of the 1996 
Telecommunications Act and sections 253 and 332(c)(7) of the 
Communications Act. We also address a number of additional statutory 
provisions in this section.
    49. Section 706(a) provides that the Commission is to encourage the 
deployment of advanced telecommunications capability to all Americans 
(including, in particular, elementary and secondary schools and 
classrooms) on a reasonable and timely basis. In granting the 
Commission authority to fulfill this mandate, Congress specifically 
directed the Commission to use various regulatory methods, including 
those that remove barriers to infrastructure investment. In the 2010 
Sixth Broadband Deployment Report, the Commission concluded that 
broadband was not being deployed to all Americans in a reasonable and 
timely manner. When the Commission makes such a negative determination, 
section 706(b) requires that the agency take immediate action to 
accelerate broadband deployment of by removing barriers to 
infrastructure investment and promoting competition.
    50. Section 253(a) bars state or local statutes, regulations, or 
other legal requirements that prohibit or have the effect of 
prohibiting the ability of any entity to provide any interstate or 
intrastate telecommunications service. Section 253(b) contains a safe 
harbor preserving competitively neutral state 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. Section 253(c) also preserves 
the authority of a State or local government to manage the public 
rights-of-way or to require fair and reasonable compensation from 
telecommunications providers, on a competitively neutral and 
nondiscriminatory basis. Section 253(d) expressly requires the 
Commission to preempt state or local government action in certain 
situations.
    51. Section 332(c)(7) of the Act applies to rights of way issues 
concerning wireless services, It preserves state and local authority 
over decisions regarding the placement, construction, and modification 
of personal wireless service facilities subject to certain limitations. 
However, under section 332(c)(7), the regulation of the placement, 
construction, and modification of personal wireless service facilities 
by any State or local government must not prohibit or have the effect 
of prohibiting the provision of personal wireless services. The statute 
also requires the State or local government to act on any request to 
place, construct, or modify personal wireless service facilities within 
a reasonable period of time.

B. Authority for Educational Activities and Voluntary Programs

    52. We believe the Commission has ample authority to engage in 
educational efforts to foster broadband deployment by encouraging 
improvements in policies regarding public rights of way and wireless 
facilities siting. We also think the Commission has ample authority to 
participate in or facilitate voluntary endeavors to achieve this goal. 
Section 706(a) specifically charges the Commission with encouraging the 
deployment of broadband through the use of methods that remove barriers 
to infrastructure investment. Section 1 of the Act also states that the 
Commission was created to ensure rapid, efficient communication 
services. In addition, section 4(i) gives the Commission broad 
authority to take whatever actions are necessary to the execution of 
its functions as long as they are not otherwise inconsistent with the 
Act. Education and involvement in voluntary programs would advance the 
goals of section 706 and section 1 and come within the broad 
flexibility accorded the Commission under section 4(i). We believe that 
such activities also further the goals of sections 253 and 332 by 
reducing the likelihood of state or local actions that have the effect 
of prohibiting the provision of a telecommunications service or 
personal wireless service in violation of those sections. We seek 
comment on these issues.

C. Authority for Rulemaking

    53. We also believe that the Commission has authority to engage in 
rulemaking to improve rights of way and wireless facilities siting 
governance. Section 201(b) states that the Commission may prescribe 
rules and regulations necessary to carry out the provisions of the Act. 
Section 303(r) contains a similar grant of rulemaking authority, and 
section 4(i) authorizes the Commission to make rules and regulations, 
and issue orders necessary in the execution of its functions. Thus, we 
believe the Commission has broad general rulemaking authority that 
would allow it to issue rules interpreting sections 253 and 332. We 
seek comment on this view. Could the Commission, for example, adopt 
rules further defining when a state or local legal requirement 
constitutes an effective barrier to the provision of a 
telecommunications service under section 253(a) or defining what 
constitutes fair and reasonable compensation under section 253(c)? We 
also seek comment on our authority to adopt rules concerning matters in 
this proceeding pursuant to section 706.

D. Adjudication of Rights of Way Cases Under Section 253

    54. We also invite comment on whether the Commission has authority 
to adjudicate rights of way disputes under section 253. The Commission 
has not taken action to resolve this issue and courts have taken 
differing approaches. Moreover, to the extent that the statutory 
language is ambiguous, the Commission is not bound by those courts' 
statutory interpretations.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 2011-11966 Filed 5-16-11; 8:45 am]
BILLING CODE 6712-01-P