[Federal Register Volume 78, Number 234 (Thursday, December 5, 2013)]
[Proposed Rules]
[Pages 73144-73169]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-28349]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 1 and 17
[WT Docket Nos. 13-238, 13-32; WC Docket No. 11-59; FCC 13-122]
Acceleration of Broadband Deployment by Improving Wireless
Facilities Siting Policies
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, the Commission seeks comment on potential
measures to expedite the environmental and historic preservation review
of new wireless facilities and on rules to implement statutory
provisions governing State and local review of wireless siting
proposals. By this action, the Commission seeks to promote the
deployment of infrastructure that is necessary to provide the public
with advanced wireless broadband services, consistent with governing
law and the public interest.
DATES: Submit comments on or before February 3, 2014. Submit reply
comments on or before March 5, 2014.
ADDRESSES: You may submit comments, identified by WT Docket No. 13-238;
WC Docket No. 11-59; WT Docket No. 13-32, by the following methods:
[squf] Federal Communications Commission's Web site: http://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting
comments.
[[Page 73145]]
[squf] People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, Cart, etc.) by email: [email protected] or phone: 202-418-
0530 or TTY: 202-418-0432.
For detailed instructions for submitting comments, including
instructions for submitting comments by mail, and additional
information on the rulemaking process, see the Supplementary
Information section of this document.
FOR FURTHER INFORMATION CONTACT: Peter Trachtenberg, at (202) 418-7369,
or by email at [email protected], or Mania Baghdadi, at (202)
418-2133, or by email at [email protected].
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking (NPRM), FCC 13-122, adopted and released on
September 26, 2013. The full text of the NPRM is available for
inspection and copying during business hours in the FCC Reference
Information Center, Portals II, 445 12th Street SW., Room CY-A257,
Washington, DC 20554. Also, it may be purchased from the Commission's
duplicating contractor at Portals II, 445 12th Street SW., Room CY-
B402, Washington, DC 20554; the contractor's Web site, http://www.bcpiweb.com; or by calling (800) 378-3160, facsimile (202) 488-
5563, or email [email protected]. Copies of the NPRM also may be obtained
via the Commission's Electronic Comment Filing System (ECFS) at http://fjallfoss.fcc.gov/ecfs2/, using the ``Search for Filings'' function and
entering the proceeding number 13-238.
Pursuant to Sec. Sec. 1.415 and 1.419 of the Commission's rules,
47 CFR 1.415, 1.419, interested parties may file comments and reply
comments on or before the dates indicated on the first page of this
document. Comments may be filed using the Commission's Electronic
Comment Filing System (ECFS). See Electronic Filing of Documents in
Rulemaking Proceedings, 63 FR 24121, May 1, 1998.
Electronic Filers: Comments may be filed electronically
using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/.
Paper Filers: Parties who choose to file by paper must
file an original and one copy 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 Street, SW., Room TW-A325, Washington, DC 20554. The filing
hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held
together with rubber bands or fasteners. Any envelopes and boxes 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 email to [email protected] or call the
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).
Availability of Documents. Comments, reply comments, and ex parte
submissions will be available for public inspection during regular
business hours in the FCC Reference Center, Federal Communications
Commission, 445 12th Street, SW., CY-A257, Washington, DC, 20554. These
documents will also be available via ECFS. Documents will be available
electronically in ASCII, Microsoft Word, and/or Adobe Acrobat.
Accessibility Information. To request information in accessible
formats (computer diskettes, large print, audio recording, and
Braille), send an email to [email protected] or call the FCC's Consumer
and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-
0432 (TTY). This document can also be downloaded in Word and Portable
Document Format (PDF) at: http://www.fcc.gov.
I. Introduction and Executive Summary
1. In this Notice of Proposed Rulemaking (NPRM), the Commission
explores opportunities to promote the deployment of infrastructure that
is necessary to provide the public with advanced wireless broadband
services, consistent with governing law and the public interest. In the
Telecommunications Act of 1996, Congress directed the Commission to
encourage the deployment on a reasonable and timely basis of advanced
telecommunications capability to all Americans by working to remove
barriers to infrastructure investment in a manner consistent with the
public interest, convenience, and necessity. The Commission has made
significant progress in recent years in expanding high-speed Internet
access and promoting broadband availability, but the Commission must
continue to examine and address impediments to broadband investment,
including impediments that may be presented by unnecessary or unclear
regulatory requirements and processes. This NPRM addresses potential
measures to expedite the environmental and historic preservation review
of new wireless facilities, as well as rules to implement statutory
provisions governing State and local review of wireless siting
proposals.
2. In the last few years, the Commission has taken a number of
significant steps to reduce barriers to wireless infrastructure
investment. In 2009, the Commission released a Declaratory Ruling
establishing presumptive timeframes for State and local processing of
wireless tower and antenna siting requests (2009 Declaratory Ruling, 74
FR 67871, December 21, 2009). In 2011, the Commission released a Notice
of Inquiry on Expanding the Reach and Reducing the Cost of Broadband
Deployment by Improving Policies Regarding Public Rights of Way and
Wireless Facilities Siting (NOI). In the NOI, the Commission sought to
develop a record on the nature and scope of both wireline and wireless
broadband deployment issues, including best practices that have
promoted deployment as well as practices that have resulted in delays,
and further sought comment on specific steps that could be taken to
identify and reduce unnecessary obstacles to obtaining access to
rights-of-way and siting wireless facilities.
3. With this NPRM, the Commission now addresses four major issues
regarding the regulation of wireless facility siting and construction,
including issues raised by commenters in the NOI proceeding, with the
goal of reducing, where appropriate, the cost and delay associated with
the deployment of such infrastructure. First, the Commission seeks
comment on expediting its environmental review process, including
review for effects on historic properties, in connection with proposed
deployments of small cells, Distributed Antenna Systems (DAS), and
other small-scale wireless
[[Page 73146]]
technologies that may have minimal effects on the environment. While
cellular service has traditionally been provided by antennas on large
communications towers, these newer technologies can be deployed on
utility poles, street lamps, water towers, or rooftops. Through these
deployments, providers can enhance the wireless capacity available to
mobile users for advanced broadband applications or fill in coverage
gaps in areas where it is not possible or economically justifiable to
put in additional large towers. They can also deploy these cells inside
buildings to enhance indoor signal strength.
4. Deployment of such technologies is therefore becoming
increasingly common as one measure to meet growing consumer demand, and
the Commission finds it may be appropriate to update its environmental
review requirements to reflect this development. These requirements are
intended to ensure that the Commission considers the environmental
effects of new wireless infrastructure deployments, including effects
on historic properties. While the Commission has acted in the past to
tailor its environmental review for the deployment of wireless
infrastructure, those processes were largely developed long before
small cell technologies became prevalent, and for the most part reflect
the scale and level of environmental concern presented by traditional
deployments on tall structures. Accordingly, the Commission seeks
comment on whether to expedite or tailor its environmental review
process for technologies such as DAS and small cells.
5. Second, in response to a petition filed by CTIA--The Wireless
Association (CTIA) filed on December 21, 2012 (``Temporary Towers
Petition''), and based on the associated record, the Commission
proposes to adopt a narrow exemption from the Commission's pre-
construction environmental notification requirements for certain
temporary towers. Under the current notification requirements, before a
party can register with the Commission a proposed communications tower
that requires registration under part 17 of its rules, and thus begin
to construct or deploy the tower in question, it must complete a
process of local and national notice, which helps to facilitate public
involvement in the Commission's consideration of the proposed
deployment's potential to create significant environmental effects.
Temporary towers are often needed with very little advance warning,
however, making the notification process impracticable. Under the
proposed exemption, eligible towers must meet specified criteria,
including very short duration, height limits, minimal or no associated
excavation, and absence of lighting, which should ensure a minimal
potential for significant environmental effects. The Commission
therefore tentatively finds that the proposed exemption will serve the
public interest by enabling providers to deploy these temporary
facilities on a timely basis in response to unanticipated short term
needs without undermining the purposes of the notification process.
6. Third, the Commission seeks comment on rules to clarify and
implement the requirements of section 6409(a) of the Middle Class Tax
Relief and Job Creation Act of 2012 (Spectrum Act). Under section
6409(a), 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. Eligible facilities
requests include collocation requests, as well as requests for removal
or replacement of existing equipment. Collocation, which involves
placing wireless equipment on pre-existing structures rather than
constructing new support structures, is often the most efficient,
rapid, and economical means of expanding wireless coverage and
capacity, and also reduces the environmental and other impacts of new
wireless facilities deployment. By requiring timely approval of
eligible collocations, section 6409(a) will help providers meet the
nation's growing demand for wireless broadband service and may be
critical to the deployment of the nationwide public safety broadband
network mandated by the Spectrum Act. Because most of the terms of the
provision are undefined, however, the Commission is concerned that
disputes over its interpretation may significantly delay these
benefits. The Commission therefore proposes to adopt rules clarifying
the provision's meaning to assist all parties in implementing its
requirements. The Commission also seeks comment on how to encourage
efforts to develop best practices for applying section 6409(a) and what
role they might play in interpreting or implementing the provision.
7. Finally, the Commission seeks comment on whether it should
address certain disputes or questions that have arisen about how to
apply its 2009 Declaratory Ruling in four specific circumstances. The
Commission also seeks comment on one additional issue of interpretation
arising under section 332(c)(7)(B)(i)(I), a provision of section
332(c)(7) that was not addressed by the 2009 Declaratory Ruling. The
Commission notes that the presumptive timeframes the Commission
established under section 332(c)(7) in the 2009 Declaratory Ruling
govern many wireless facilities siting applications that are not
covered by section 6409(a).
II. Expediting Environmental Compliance for Distributed Antenna Systems
and Small Cells
8. Many wireless technologies now connect to mobile users using
small antennas that are placed on short structures such as poles or
inside buildings and that, individually, provide coverage over a much
smaller area than a traditional cell. The Commission's environmental
rules were largely written prior to these developments, however, and
primarily reflect the environmental concerns presented by traditional
macrocell deployments on tall structures. Further, because Distributed
Antenna Systems (DAS) and small cell deployments often require a large
number of antennas or base stations to provide coverage to an area
comparable to a single macrocell, they may implicate dramatically
greater environmental compliance costs under the existing site-by-site
review process. Given these factors, and the increasing reliance on
these new technologies to meet ever increasing demand for wireless
services, including broadband, the Commission finds that it should
consider whether further tailoring of its environmental rules is
appropriate for technologies such as DAS and small cells, and, if so,
how such tailoring can be accomplished.
A. NEPA Review
9. The Commission first addresses whether and how it should
expedite its National Environmental Policy Act of 1969 (NEPA)
compliance process for DAS and small cells, and in particular whether
to adopt a categorical exclusion to relieve all or some subset of such
deployments from routine NEPA review. The Commission addresses a
possible exclusion for historic preservation review under section 106
of the National Historic Preservation Act of 1966 (NHPA) separately
below.
10. Updating the NEPA Exclusion for Collocations in Note 1 to Sec.
1.1306. The Commission first seeks comment on whether to adopt
Verizon's proposal that the Commission amend the first sentence in Note
1 to Sec. 1.1306 of the Commission's rules, which currently excludes
collocations on an existing building or antenna tower from
[[Page 73147]]
environmental review except for review for RF emissions exposure and
effects on historic properties. Verizon proposes that the exclusion
should also apply to collocations on other structures, including
structures such as utility poles, water tanks, light poles, and road
signs. For the reasons discussed below, the Commission proposes a rule
change to implement this suggestion and seeks comment.
11. As noted above, the exclusion under the first part of Note 1 to
Sec. 1.1306 already applies to the mounting of antennas on existing
towers and buildings, reflecting a determination that such collocations
individually and cumulatively are unlikely to have significant
environmental effects. The Commission tentatively concludes that the
same determination applies with regard to collocations on structures
like water towers and poles. In addition, the Commission has previously
recognized that the ability to use structures such as utility poles is
vitally important to the deployment of wireless and wireline services,
including broadband. In particular, DAS and small cell facilities,
which are critical to satisfying demand for ubiquitous mobile voice and
broadband services, often use such structures. Accordingly, to expedite
environmental processing for DAS and small cell deployments and to
update its environmental rules to reflect current industry practices
and technologies, the Commission proposes to amend Note 1 to Sec.
1.1306 to provide that the categorical exclusion in the first sentence
also applies to antennas mounted on existing structures other than
buildings and antenna towers, including structures on which equipment
associated with emerging technologies such as DAS facilities is sited.
To accomplish such a change, the Commission proposes to modify sentence
1 of the note to change the phrase ``existing building or antenna
tower'' to ``existing building, antenna tower, or other structure.''
12. The Commission seeks comment on this proposal and on whether
the proposed language requires any further definition or qualification.
For example, the Nationwide Programmatic Agreement for the Collocation
of Wireless Antennas (Collocation Agreement) and the Nationwide
Programmatic Agreement Regarding the section 106 National Historic
Preservation Act Review Process (NPA) do not distinguish between
buildings and other non-tower structures in applying exclusions from
section 106 review. The Commission believes this supports its tentative
view that there is no basis to subject collocations on structures such
as utility poles to greater environmental review than collocations on
buildings. The Commission seeks comment on this analysis. Are
collocations on structures other than towers and buildings any more
likely to have significant environmental effects than collocations on
towers and buildings? Are there certain types of existing structures
for which this is true and, if so, which types, and what effects? The
Commission further seeks comment on whether, and how, the Commission
should define, specify, or limit what constitutes a structure in any
rule that the Commission adopts. Are there any technical or other
limitations that the Commission should reference in a definition of the
term structure such that Note 1 to Sec. 1.1306 would not extend to
types of existing structures, if any, for which collocations are likely
to have significant environmental effects? Those that advocate a
different level of environmental review for collocations on any types
of existing structures, or that advocate any other limitations on an
expanded exclusion, should identify those attributes of such structures
that they believe warrant heightened scrutiny and describe with
specificity any limitations they consider appropriate.
13. The Commission seeks comment on whether any further action is
needed to adequately and appropriately tailor NEPA review for
collocations of DAS and small cell facilities or other collocations.
For example, the first sentence of Note 1 to Sec. 1.1306 specifically
excludes the mounting of antennas on existing structures from NEPA
review. The Commission's understanding, however, is that the typical
deployment of a DAS or small cell node on a pole or other structure
includes not only antennas but also associated equipment such as power
supplies, converters, and transceivers. Should the Commission further
amend the categorical exclusion for collocations so that it expressly
covers not only the mounting of antennas but also the associated
equipment? Does such associated equipment raise particular
environmental concerns that the antennas do not? Does the Commission
need to clarify or define what constitutes associated equipment for
purposes of this exclusion? If so, how should associated equipment be
defined? Are there physical, technical, or other technologically
neutral characteristics of associated equipment by which the Commission
should limit the exclusion so that there will be no significant
environmental effects?
14. The Commission also seeks comment on whether it should further
amend the first sentence of Note 1 to Sec. 1.1306 to clarify that the
collocation exclusion applies to installations in the interior of
buildings. Similarly, is any amendment needed to clarify that the first
part of the Note 1 to Sec. 1.1306 exclusion applies not only to
rooftops but also to the sides of buildings? Given that either such
clarification would not exclude facilities from section 106 review or
review for exposure to RF emissions, are there any other special
environmental concerns that might arise from collocations inside or on
the side of buildings as opposed to collocations on rooftops? If either
of these clarifications to the collocation exclusion in Note 1 to Sec.
1.1306 is appropriate, how should the language be amended to reflect
the clarification?
15. The Commission notes that while the proposed amendment to Note
1 to Sec. 1.1306 would continue to exclude only facilities that are
collocated on existing structures, the Commission is also seeking
comment below on whether to adopt a new categorical exclusion that
would broadly exclude DAS and small cell deployments, either collocated
or deployed on new poles, from its routine NEPA review procedures
(other than for compliance with RF exposure limits). The Commission
proposes the above amendment to the Note 1 to Sec. 1.1306 collocation
exclusion independent of whether the Commission also adopts a separate
categorical exclusion applicable to smaller facilities generally.
Regardless of whether the Commission also adopts a broader NEPA
exclusion for small facilities generally, it anticipates that the
proposed expansion of the Note 1 to Sec. 1.1306 collocation exclusion
to cover all structures will continue to provide independent benefits,
because it will apply to all collocations on any non-tower structure,
not merely collocations involving DAS and small cell facilities. For
example, such a clarification would also cover collocation of a
macrocell on a water tank.
16. Adopting A New Categorical Exclusion for DAS/Small Cell
Deployments. The Commission's existing categorical exclusions are
designed to capture and exclude from environmental processing those
categories of facilities that are unlikely to have significant
environmental effects. Such exclusions facilitate rapid deployment of
services to the public consistent with the Commission's obligation
under NEPA to consider environmental effects, and also preserve the
resources of the Commission and applicants for situations that may
involve greater potential for significant
[[Page 73148]]
environmental effects. The Commission therefore seeks comment on
whether DAS and small cell deployments are unlikely to have significant
environmental effects and whether the Commission should adopt a
categorical exclusion for some or all of the components involved in DAS
and small cell deployments from NEPA review other than for compliance
with RF exposure limits.
17. A typical DAS deployment includes a number of communications
nodes, each typically consisting of an antenna or antennas either
collocated on an existing support structure or deployed on a new
structure, along with a cabinet containing associated equipment. In
addition to the nodes, the DAS system includes a central hub site and
fiber or other cabling connecting the nodes to the hub. Other small
cell solutions may also include some or all of these components. If the
Commission adopts the proposal discussed above to amend the first
sentence of Note 1 to Sec. 1.1306, it believes that it would
effectively exclude the collocation of nodes for DAS, small cells, and
other comparable wireless technologies from NEPA review, other than
historic preservation review and review for compliance with its RF
exposure limits. The Commission seeks comment on this analysis. Should
the Commission adopt a special collocation exclusion for the
communications nodes of DAS, small cell, and other small wireless
technologies, either in addition to or instead of the proposed
revisions to the existing categorical exclusion for collocations
generally? If so, the Commission seeks comment on how to define the
scope of the exclusion. The Commission explores this definitional
question in greater detail below.
18. Assuming the Commission adopts a broadened collocation
exclusion, either in general or specifically for small communications
nodes, such an exclusion would not cover all construction that may be
necessary to deploy DAS, small cells, and other small facilities. In
particular, it would not cover new support structures, such as new
poles, that are constructed to support communications nodes as part of
a DAS or small cell deployment. The Commission seeks comment on whether
some or all such construction should also be excluded from NEPA review.
The Commission invites comment on the potential environmental effects
of the construction or deployment of such new supporting structures and
equipment, on whether the Commission may conclude that such facilities
are unlikely to have significant environmental effects, and, if so,
under what circumstances (e.g., categories or locations).
19. If the Commission adopts a specific NEPA exclusion for DAS and
other small wireless facilities, either for collocated facilities or
for facilities deployed on new structures, how should the Commission
define the scope or application of such an exclusion? PCIA initially
proposed that the Commission define the scope of the exclusion by
reference to DAS or small cell installations. The Commission is
concerned, however, that defining an exclusion by reference to a
specific wireless technology such as DAS may be both over-inclusive and
under-inclusive. It may be over-inclusive because some facilities
associated with the named technology could be larger and more obtrusive
than contemplated in the general case and therefore have a greater
potential for significant environmental effects. For example, future
DAS deployments over different spectrum bands may require larger or
higher antennas. A definition that relies exclusively on reference to a
particular technology may also be under-inclusive in that other
technologies that involve comparably unobtrusive wireless facilities
may be developed that equally warrant an exclusion. For example,
commercial uses of signal boosters (such as repeaters) may have
characteristics similar to DAS and small cells such that they should be
similarly eligible for any exclusion developed for DAS and small cell
deployments. The Commission therefore believes that framing any
exclusion based on objective physical factors such as height, size, or
location could be a better approach than referencing a specific
technology such as DAS. The Commission seeks comment on this analysis,
and on how to craft an exclusion based on the dimensions and other
objective characteristics of facilities, including all aspects of any
such definition.
20. Specifically, the Commission seeks comment on how it can define
the covered facilities to ensure that deployments eligible for the
categorical exclusion have no more than de minimis effects on the
environment and that changes to technology do not expand the exclusion
beyond its intent. Should the Commission define any such categorical
exclusion with reference to the height of the supporting structure, the
size of the antenna, and the dimensions of the equipment cabinets or
other ancillary equipment? If so, what dimensions should the Commission
adopt as a definition? To the extent that the Commission adopts a new
categorical exclusion that extends to new support structures, the
Commission seeks comment on how to define the structures that are
eligible, the locations where the exclusion should apply, and any other
conditions or criteria for eligibility that are necessary to ensure
that such deployments do not have a significant effect on the
environment.
21. The Commission notes that the size and architecture of
antennas, supporting structures, and other equipment may depend in part
on the characteristics of the service being provided, such as the
spectrum used. Should the Commission strive to define any exclusion in
a manner that is technologically neutral in effect as well as in form?
If so, what definitions would best achieve this end? In order to assure
that consumers can continue to benefit from technological development,
should any size or other criteria the Commission applies attempt to
anticipate potential future technological and industry developments?
22. The Commission also notes that PCIA and the HetNet Forum have
recently submitted a new proposal for the definition of facilities that
should be categorically exempt. This definition relies on defining the
maximum cubic volume of the relevant facilities rather than on specific
technological labels. PCIA and the HetNet Forum assert that their
proposed definition has widespread industry support and both
accommodates current DAS and small cell deployments and anticipates
foreseeable technological development. Specifically, they propose that
an installation conforming to the following parameters should be
exempt:
(1) Equipment Volume. An equipment enclosure shall be no larger
than seventeen (17) cubic feet in volume.
(2) Antenna Volume. Each antenna associated with the installation
shall be in an antenna enclosure of no more than three (3) cubic feet
in volume. Each antenna that has exposed elements shall fit within an
imaginary enclosure of no more than three (3) cubic feet.
(3) Infrastructure Volume. Associated electric meter, concealment,
telecom demarcation box, ground-based enclosures, battery back-up power
systems, grounding equipment, power transfer switch, and cut-off switch
may be located outside the primary equipment enclosure(s) and are not
included in the calculation of Equipment Volume.
Volume is a measure of the exterior displacement, not the interior
volume of the enclosures. Any equipment that is concealed from public
view in or behind an otherwise approved structure or concealment, is
not included in the volume calculations.
[[Page 73149]]
The Commission seeks comment on the proposed definition.
23. The Commission also seeks comment on whether any proposed
exclusion should be defined in part by the location of facilities. For
example, the NPA establishes an exclusion from routine section 106
review for deployments of wireless facilities, including deployments on
new structures, located in utility or telecommunications rights-of-way.
Specifically, deployments are not subject to section 106 review if (1)
such facilities are located in or within 50 feet of a right-of-way
designated for communications tower or above-ground utility
transmission or distribution lines, (2) the facility would not
constitute a substantial increase in size over existing structures in
the right-of-way in the vicinity of the proposed construction, (3) the
facility would not be located within the boundaries of a historic
property, and (4) the applicant has successfully completed the process
established in the NPA for Tribal and Native Hawaiian Organization
participation. The Commission seeks comment on whether it should adopt
a categorical exclusion from routine NEPA review for DAS and small
cells in rights-of-way designated for utilities or telecommunications
similar to the one in the NPA that applies to section 106 review. If
so, should the Commission apply any of the NPA conditions for this
categorical exclusion such as the one requiring that the facilities not
constitute a substantial increase in size over existing nearby
structures in the right-of-way? Would a rights-of-way categorical
exclusion appropriately and effectively tailor NEPA review for DAS and
small cells?
24. As another example of a location-based exclusion, Note 1 to
Sec. 1.1306 currently includes a categorical exclusion from all
environmental review for the installation of aerial wire or cable over
existing aerial corridors of prior or permitted use or the underground
installation of wire or cable along existing underground corridors of
prior or permitted use. PCIA proposes that the Commission similarly
exclude DAS and small cell deployments, including deployments on new
structures, that are placed along or within existing aerial or
underground corridors. The Commission seeks comment on whether it
should extend the wire and cable exclusion to cover components of DAS
or small cell deployments in such corridors, including new support
structures. Is there a basis for the Commission to conclude that DAS
and small cell deployments (whether on new or existing structures) do
not individually or cumulatively have a significant effect on the
quality of the human environment so as to qualify for a categorical
exclusion from NEPA review under 40 CFR 1508.4? To the extent that
these deployments require the deployment of fiber optic cable, is any
amendment to the existing exclusion necessary, or does the existing
exclusion for aerial or underground cables deployed in existing
corridors adequately cover such components? With regard to other
components including new structures, to what extent can such components
be placed in or along aerial or underground corridors?
25. Finally, the Commission seeks comment on whether any
categorical exclusion outside of existing aerial or underground
corridors should include specific provisions for DAS and small cell
components other than the nodes. For example, should the exclusion
cover fiber that is not already excluded under the existing Note 1 to
Sec. 1.1306 exclusion for cable in existing aerial or underground
corridors? If so, how should the Commission frame such an exclusion?
Should the hub station also be included, and if so, in what
circumstances? What additional revisions to the exclusion for existing
aerial or underground corridors would expedite DAS and small cell
deployment without risking significant environmental impact?
B. Historic Preservation Review
26. The Commission next seeks preliminary comment on whether and
how the Commission should tailor section 106 review for effects on
historic properties in the context of DAS, small cells, and similar
facilities. As one option, the Commission seeks comment on whether the
Commission can and should adopt an exclusion from section 106 review
for such facilities. The Commission notes that whether to adopt such
exclusion raises many of the same questions of definition and scope
discussed above in connection with a possible exclusion from NEPA
review, and the Commission invites commenters to consider the same
questions in addressing whether the Commission should adopt an
exclusion from section 106 review. Further, in the discussion below,
the Commission refers back as appropriate to the issues raised by a
possible NEPA exclusion. The Commission seeks comment, however, on
whether and to what extent a section 106 exclusion raises different
legal or policy issues. The Commission explores these and other issues
that relate specifically to section 106 review below.
27. The Commission also recognizes that changes to its section 106
processing rules may require coordination with the ACHP and NCSHPO and
consultation with federally recognized Tribal Nations, and the
Commission intends to undertake such coordination and consultation.
Commission staff has written separately to Tribal leaders and to THPOs
and Cultural Preservation Officials, informing them of section 106
priorities and issues for Tribal consultation, and inviting them to
share their values and initial thoughts regarding tailoring of section
106 review for DAS and small cells. In an effort to prepare Tribal
Nations for consultations, Commission staff has also discussed this
matter at meetings of inter-Tribal government organizations.
28. Options for Tailoring Historic Preservation Review. PCIA
identifies three possible avenues to tailor historic preservation
review for DAS and small cell facilities: (1) categorical exclusion;
(2) program alternative; or (3) finding that DAS and small cell
deployments are not undertakings under section 106. PCIA favors the
categorical exclusion approach as the most expeditious means to
streamline the deployment of DAS and small cells and to facilitate
wireless broadband deployment while maintaining historic preservation
goals. According to PCIA, a rulemaking to add DAS and small cell
solutions to the list of facilities that are categorically excluded
from non-RF-related environmental processing under Sec. 1.1306 (Note
1) would satisfy the Commission's responsibilities under the NHPA and
the ACHP's section 106 regulations. In particular, PCIA relies on Sec.
800.3(a)(1) of the ACHP's rules, which provides that an agency has no
further section 106 obligations if the undertaking is a type of
activity that does not have the potential to cause effects on historic
properties assuming such historic properties were present. According to
PCIA, this rule provides a categorical exclusion from the consultation
process where there is no potential adverse effect or the environmental
effects are de minimis. PCIA asserts that adopting a categorical
exclusion through a notice-and-comment rulemaking would involve all
interested parties, including the ACHP, but that, unlike the more
elaborate program alternative processes authorized by Sec. 800.14 of
the ACHP's rules, it would require only a single proceeding, thus
saving time and resources for all concerned. PCIA observes that the
third option, finding
[[Page 73150]]
DAS and small cell deployments not to be undertakings, may be more
vulnerable to protracted procedural and substantive challenges.
29. The Commission seeks comment on the alternatives of an
exclusion in its rules or a program alternative under the ACHP rules,
and the relative costs and benefits of each. The Commission invites
commenters to discuss the potential effects of DAS and small cell
systems on historic properties, as such an assessment is a key
component in selecting an appropriate procedural mechanism to depart
from the ordinary process for historic preservation review of a Federal
undertaking. Does Sec. 800.3(a)(1) of the ACHP's rules support an
exclusion in circumstances where the potential for adverse effects is
de minimis, as PCIA suggests, or only where there is no potential for
any effects on historic properties? Commenters should also address the
extent to which any revision of Sec. 1.1306 (Note 1) to exclude DAS
and small cell systems from section 106 historic preservation review
would require that the Commission consult the ACHP, SHPOs, Tribal
Nations and NHOs, or others. Given that either a Commission exclusion
or an ACHP-approved program alternative would necessarily involve and
revisit matters addressed in the NPA, what, if any, revision to the NPA
would either option require? Does the very existence of the NPA favor
or militate against adopting an exclusion in a rulemaking? Would a
program alternative, providing the agency an opportunity to tailor a
process for DAS and small cell systems in coordination with ACHP, offer
greater flexibility or more significant benefits than a Commission
exclusion? If the Commission were to pursue a program alternative,
which of the various program alternatives authorized by Sec. 800.14 of
the ACHP's rules is most appropriate, considering their relative costs
and benefits, consultative obligations, eligibility standards, and the
time required to implement each alternative? Are there are other
procedural mechanisms by which the Commission, either acting
unilaterally or in coordination with the ACHP or others, could
streamline any required historic preservation review of DAS or small
cell systems?
30. The Commission notes that, while it proceeds with this
rulemaking, it intends to work with ACHP and NCSHPO to explore the
option of a program alternative to further tailor section 106 review
for DAS, small cell, and similar facilities. Those efforts will also
inform any steps the Commission takes as a result of this NPRM.
31. Defining the Scope of the Exclusion. Assuming the Commission
excludes small wireless facilities from historic preservation review
either through adoption of an exclusion or through one of ACHP's
program alternatives, the Commission seeks comment on how to define the
scope of the exclusion. In particular, as with the possible exclusion
from NEPA review discussed above, the Commission seeks comment on how
to define the facilities that would not be subject to review under
these approaches. If the Commission does adopt an exclusion for small
facilities that covers both section 106 and NEPA review, should the
Commission define the facilities excluded from section 106 review the
same way the Commission does the facilities excluded from NEPA review?
While there may be administrative advantages to adopting the same
definition, there may also be circumstances where a facility that meets
criteria for an exclusion under NEPA does not meet the criteria for an
exclusion under section 106 and vice versa. For example, Note 1 to
Sec. 1.1306, which provides a categorical exclusion for collocations
on an existing building or antenna tower for most purposes under NEPA,
does not extend to review under section 106.
32. In order to define the scope of an exclusion or program
alternative, the Commission seeks comment on whether and under what
circumstances DAS and small cell facilities, individually and
cumulatively, are unlikely to cause an adverse effect on historic
properties. Are there some circumstances, such as placement of
facilities in historic districts or collocations near or on historic
buildings, where there is a potential for significant effects on
historic properties? If so, what conditions, criteria, or definitions
should the Commission use to identify situations in which routine
section 106 review may be appropriate while maintaining an exclusion in
the ordinary case? In the alternative, is it sufficient to rely on
Sec. Sec. 1.1307(c) and (d) of the Commission's rules, which direct
the reviewing bureau to require an Environmental Assessment (EA) for an
otherwise categorically excluded deployment where, on its own motion or
in response to public petition, the bureau finds that the deployment
may have a significant environmental impact?
33. While the general provisions of the Collocation Agreement and
the NPA already exclude many DAS and small cell facilities from some or
all of the section 106 review process, PCIA notes two provisions that
limit the applicability of the exclusions in this context. First, the
Collocation Agreement, while excluding most collocations from section
106 review, provides that collocations on existing buildings or other
non-tower structures that are over 45 years old are not excluded. PCIA
asserts that the percentage of utility poles that are 45 years or older
is significant and growing and that, as a consequence, collocations of
small wireless facilities on such existing poles will increasingly not
be excluded from review. Second, the NPA provides a partial exclusion
for deployments (including new poles) in or near utility rights-of-way,
but with certain limitations. Critically, this exclusion does not apply
if the deployment would be located within the boundaries of a historic
property. PCIA asserts that corridors including utility and highway
rights-of-way are increasingly being found eligible for the National
Register, thus reducing the availability of this exclusion.
34. The Commission seeks comment on whether, if it finds that a
comprehensive exclusion for DAS and small cells is not appropriate
through either an exclusion or a program alternative, the Commission
should address one or both of these specific concerns or tailor review
for any other categories of small facility deployments other than those
that are currently excluded under the NPA or the Collocation Agreement.
First, with respect to collocations on non-tower structures that are
over 45 years old, the Commission notes that, because utility poles are
being maintained for long periods of time, it is likely that most
utility poles will eventually fall out of the NPA exclusion. Given that
the NPA was adopted when use of structures such as utility poles for
wireless communications facilities was extremely rare, the Commission
seeks comment on whether review of collocations on older utility poles
was intended, in what ways such structures might possess historic
value, and to what extent collocation may result in adverse effects to
that historic value. The Commission seeks comment on whether it can and
should clarify or otherwise provide that the provision requiring review
of collocations on buildings and other structures over 45 years old is
not applicable to a utility pole that is over 45 years of age. If so,
how should the Commission define a utility pole for such purpose?
Should the Commission exclude other categories of non-tower structures,
such as street lamps or water towers?
35. With regard to the second issue, as noted above, according to
PCIA, use
[[Page 73151]]
of utility corridors for DAS and small cell deployment is becoming more
difficult because such corridors are increasingly being considered
historic properties or districts, and thus both new poles and
collocations in such rights-of-way are becoming subject to routine
section 106 review under the Collocation Agreement and the NPA. The
Commission seeks comment on whether collocations and new pole
deployments in utility or communications rights-of-way that otherwise
fall within the exclusions in the Collocation Agreement or the NPA
should be exempt from the section 106 historic preservation review
process regardless of whether such rights-of-way are considered
historic properties. Would additional infrastructure potentially have
significant effects on historic properties if located in utility
corridors that are already lined with utility poles and other
infrastructure of similar size? Are there any particular circumstances
that may suggest that a different result is appropriate, such as, for
example, if utility poles are a contributing element towards making a
corridor a Historic District?
36. The Commission also notes an additional issue that arises when
a collocation requires an existing utility pole to be replaced with a
new pole. The NPA currently provides that the construction of a new
tower that replaces an existing tower is excluded from routine section
106 review if it meets certain criteria. The NPA does not, however,
address replacements of utility poles or other non-tower structures.
AT&T has suggested that the Commission extend the exclusion for
replacement towers to cover replacements of non-tower structures. The
Commission seeks comment on this proposal, and in particular, whether
the Commission should provide, through an exclusion or a program
alternative, for an exclusion from routine section 106 review for
replacement utility poles. If so, should the Commission limit it to
circumstances where the new pole is no larger than the existing pole or
where there is not a substantial increase in size? Should the exclusion
apply if the replacement is constructed with different materials?
37. Finally, the Commission seeks comment on whether, to the extent
DAS, small cell, and other small facilities are not excluded from
historic preservation review, the Commission could still develop a
process that would enable the review to proceed more efficiently. For
example, the Commission seeks comment on whether and how to define
circumstances in which individual communication nodes (e.g., the
separate antenna nodes of a single DAS deployment) can be grouped
together and reviewed as a single undertaking for historic preservation
review. The Commission further seeks comment on whether and to what
extent such changes may be implemented as a matter of process by the
bureaus without any amendment of the NPA or the Commission's rules.
C. Other Considerations
38. As noted above, in an ex parte submission in the NOI
proceeding, PCIA suggests that the Commission could find that DAS and
small cell deployments are not Federal undertakings under the NHPA
pursuant to an NPA provision that grants it sole authority to determine
what activities undertaken by the Commission or its applicants
constitute undertakings within the meaning of the NHPA. In light of
PCIA's suggestion, the Commission seeks comment on the extent to which
deployments of DAS or small cell facilities qualify as Federal
undertakings under the NHPA and major Federal actions under NEPA. The
Commission invites commenters to analyze this issue in terms of the
extent to which the Commission provides, or has the authority to
provide, Federal licensing, approval, or other assistance for such
deployments, and also to consider the effects of such deployments on
the environment and historic preservation. In particular, section 319
of the Communications Act generally confers on the Commission authority
to regulate and require pre-construction approval for the construction
of any facility for which a license is required, which in turn extends
to any apparatus for the transmission of energy, or communications, or
signals by radio. Further, while the Commission has generally waived
the requirement of preconstruction approval for geographic-area
licensees, as permitted by section 319(d), the Commission has also
retained a limited approval authority under Sec. 1.1312 of the
Commission's rules to review the environmental effects of all
facilities. The Commission has found, given these provisions, that
macro site deployments are appropriately classified as Federal
undertakings, a conclusion affirmed by the United States Court of
Appeals for the District of Columbia. Is there a difference in how
these provisions apply to DAS facilities and small cells as compared to
macrocells and the towers on which they are mounted that would justify
distinguishing the deployment of DAS and small cell facilities for
purposes of classification as a Federal undertaking and major Federal
action? Is the only distinguishing factor that the physical
characteristics of DAS and small cells may make them less intrusive
than traditional macro sites? The Commission invites commenters to
describe any other differences that potentially warrant different
treatment under the NHPA and NEPA, and to explain specifically how
these differences affect the analysis of whether these deployments are
Federal undertakings and major Federal actions.
39. Assuming DAS and small cell deployments are Federal
undertakings within the meaning of the NHPA and major Federal actions
under NEPA, the Commission seeks comment on how and by what mechanisms
the Commission might implement either of the options discussed above--
categorical exclusion or program alternative. Under the Commission's
existing rules and processes, where no site-by-site filing is otherwise
required for a facility, a licensee is required to ensure compliance
with the environmental rules before constructing a facility, but is not
required to file any site-by-site certification. In particular, such a
licensee planning to construct a new facility must ascertain if a
proposed facility may have a significant environmental impact. If so,
the licensee must submit the required documentation for an
environmental assessment on which the Commission must complete
environmental processing before construction may be initiated. Is this
process appropriate for the potential exemptions discussed above?
Should the Commission consider developing documentation requirements
for demonstrating eligibility for any of the exemptions under
consideration in this NPRM? Would the costs of such documentation
requirements outweigh the benefits? What mechanism might be appropriate
to address cases in which eligibility for the exemption is unclear?
40. The Commission emphasizes that if it excludes any class of DAS
and small cell deployments or other small facilities deployments from
all routine environmental processing, including section 106 historic
preservation review, such deployments would still be subject to
Sec. Sec. 1.1307(c) and (d) of the Commission's rules. Thus, the
relevant processing bureau would still require the filing of an EA if,
either on its own motion or in response to a complaint from the public,
the bureau determines that a particular action may cause significant
environmental effects. In addition, deployments that are eligible for
the exclusions discussed in this section would still be subject to any
applicable notice requirements.
[[Page 73152]]
III. Environmental Notification Exemption for Registration of Temporary
Towers
41. In this section, the Commission proposes to adopt a limited
exemption from the environmental notification requirements that is
substantially similar to the exemption proposed by CTIA. Specifically,
and consistent with the interim exemption granted in the Waiver Order,
78 FR 59929, September 30, 2013, the Commission proposes an exemption
from its Antenna Structure Registration (ASR) environmental
notification requirements for temporary antenna structures that,
because of their characteristics, do not have the potential for
significant environmental effects. The Commission seeks comment on how
to define such an exemption, and whether the criteria set out in the
Waiver Order are sufficient and appropriate for this purpose. Under
these criteria, an antenna structure would be exempt from the
notification requirements if it (i) will be in use for 60 days or less,
(ii) requires notice of construction to the Federal Aviation
Administration (FAA), (iii) does not require marking or lighting
pursuant to FAA regulations, (iv) will be less than 200 feet in height,
and (v) will involve minimal or no excavation. The Commission seeks
comment on its proposal and on alternative approaches to address the
concerns raised in the CTIA petition.
42. In considering the proposed exemption, the Commission
recognizes that one of its responsibilities under NEPA is to facilitate
public involvement in agency decisions that may affect the environment.
CEQ regulations direct that agencies shall make diligent efforts to
involve the public in preparing and implementing their NEPA procedures
and solicit appropriate information from the public. At the same time,
an agency has wide discretion in fashioning its own procedures to
implement its environmental obligations, and considerable discretion
under CEQ regulations to decide the extent to which such public
involvement is practicable. Consistent with the discretion to identify
particular circumstances in which inviting public involvement is
impracticable or inappropriate, the Commission proposes to find that
the environmental notice requirements will typically be impracticable
for temporary towers that meet the criteria outlined above. The
Commission further proposes to find that the risk that carriers will
not be able to meet short-term capacity needs and the resulting
detriment to the public if they are required to complete the
notification process outweighs the small likelihood that the process
will confer any benefit. The Commission also notes that parties filing
comments in response to the Temporary Towers Petition PN uniformly
supported an exemption for antenna structures meeting the criteria set
out by CTIA. The Commission therefore tentatively concludes that
establishing the proposed exemption is consistent with its obligations
under NEPA and CEQ regulations, and will serve the public interest.
43. Commenters state that the environmental notification process is
impracticable for antenna structures meeting the criteria set out by
CTIA and will interfere with carriers' ability to respond to short-term
capacity needs. The ASR notice process takes approximately 40 days, as
carriers must provide local and national public notice, allow 30 days
for the filing of any requests for further environmental review, and
wait for the Commission to clear the tower for a final certification.
If a request for environmental review is filed, the deployment can be
delayed longer even if the request lacks merit. According to
commenters, situations frequently arise where there is insufficient
time to complete this process before a temporary tower must be deployed
to meet near-term demand, including (1) newsworthy events that occur
without any prior notice and require immediate deployments, such as
natural disasters; (2) other events that occur with less than 30 days
advance notice, such as certain political events and parades for sports
teams; (3) events for which the timing and general location are known
in advance, but where the specific locations for temporary towers are
unknown until days before the event, such as State fairs and major
sporting events; and (4) situations in which unexpected difficulties
with permanent structures require the deployment of temporary towers
while permanent facilities are repaired. The record, as well as the
Commission's own experience in administering the environmental notice
rule, shows that substantial numbers of such non-emergency temporary
towers require registration. In particular, notice to the FAA (and
therefore ASR registration) is necessary for towers under 200 feet in
height if they may interfere with the flight path of a nearby airport.
Therefore, absent an exemption, application of the ASR notice process
to these temporary towers will apparently prevent service providers
from meeting important short term coverage and capacity needs. The
Commission seeks comment on this analysis.
44. At the same time, the benefits of environmental notice appear
to be limited in the case of most temporary towers. The environmental
notice process is intended to effectuate the opportunity conferred by
Sec. 1.1307(c) of its rules for interested persons to allege that an
otherwise categorically excluded ASR application presents circumstances
necessitating environmental consideration in the decision-making
process. Thus, to the extent that significant environmental effects are
highly unlikely for certain classes of temporary towers, there seems to
be little reason to require environmental notification, particularly
given the harm to the public from delaying the deployment of such
towers. The Commission seeks comment on this analysis, and on whether
the criteria proposed by CTIA in the Temporary Towers Petition, as
modified in the Waiver Order, sufficiently insure against potential
environmental impact or risk to air safety from such towers.
45. In particular, CTIA proposes that, to be exempt from notice, a
temporary tower must be less than 200 feet in height and not subject to
FAA marking or lighting requirements. The Commission seeks comment on
these conditions. Evidence demonstrates that lighting and height are
major factors influencing whether an antenna structure may cause
significant environmental impacts, particularly on migratory birds.
Given this evidence, is it necessary that, in addition to the height
and lighting restrictions, eligible temporary towers be limited to
those that do not require marking? Is a requirement that eligible
temporary towers be less than 200 feet in height a sufficient height
limitation to protect against significant environmental impacts? Is it
too strict?
46. In adopting an interim waiver, the Commission added a condition
that deployments covered by the waiver either must involve no
excavation or the depth of previous disturbance must exceed the
proposed construction depth (excluding footings and other anchoring
mechanisms) by at least two feet. That specific requirement was drawn
from the NPA, which excludes towers from section 106 historic
preservation review if they are deployed for less than 24 months and
also meet this condition. As the Commission explained in adopting the
NPA, so long as no excavation will occur on previously undisturbed
ground, the risk of damage to archeological or other historic
properties from a temporary facility is small. The Commission seeks
comment on whether to similarly require no or minimal excavation as a
condition of
[[Page 73153]]
the proposed temporary towers exemption from environmental notice. Is
such a condition necessary to assure that such towers are unlikely to
have significant environmental effects, and what are the costs of the
condition? Are effects on historic properties the only concern with
excavation, and, if so, is section 106 review under the NPA, which
includes a process for public participation, sufficient to protect
against such effects? Should the Commission adopt any other structural
or construction conditions in addition to or in lieu of those proposed
in the Waiver Order?
47. Consistent with CTIA's proposal in its Petition, the Commission
proposes to limit the temporary towers exemption from notice to towers
that will be deployed for no more than 60 days. The Commission seeks
comment on this time period. The Commission notes that the NPA excludes
from review under section 106 of the NHPA a broader category of
temporary towers, generally defined as towers that will remain in place
for up to 24 months. Further, NTCH proposes that the maximum period be
three months instead of two. Would exempting from notice temporary
towers that are deployed for longer than 60 days be consistent with
avoiding a potential for all significant environmental effects, not
only those on historic properties? Is it reasonable to expect that
parties deploying a tower for more than 60 days will ordinarily have
sufficient advance notice to complete the environmental notice process,
and therefore should either do so or obtain a case-specific waiver?
Alternatively, is a period shorter than 60 days both reasonable and
necessary to protect against significant environmental effects? The
Commission also notes that the NPA permits temporary towers used for
national security purposes to exceed 24 months and still be excluded
from section 106 review. Should the Commission adopt a similar
exception to whatever time limit the Commission applies to the
notification exemption?
48. The Commission proposes to require no post-construction
environmental notice for temporary towers that qualify for the
exemption. While the Commission ordinarily requires that environmental
notice be provided within a short period after construction when pre-
construction notice is waived due to an emergency situation, the
Commission recognized in the Order on Remand, 77 FR 3935, January 26,
2012, that in some circumstances, post-construction notice may be
impractical or not in the public interest. While towers subject to
emergency waiver relief may be deployed for long periods or even
indefinitely, thus warranting post-construction notice, the Commission
addresses here only towers deployed for short periods of time. Notice
in this circumstance would seem to serve little purpose as the
deployment would be over or nearly so by the time the notice period
ended. In addition, its own experience in administering the ASR public
notice process is that temporary antenna structures rarely generate
public comment regarding potentially significant environmental effects
and rarely are determined to require further environmental processing.
The Commission therefore proposes to find that it would not be in the
public interest to require post-construction notice for towers subject
to the proposed exemption. The Commission seeks comment on its proposal
and analysis, and on the costs and benefits of requiring post-
construction notice of towers subject to the exemption. As an
alternative to completely exempting such towers from environmental
notification, would it be appropriate to establish a shorter post-
construction environmental notice period or limit the notice
requirement to national notice?
49. CTIA states in its Temporary Towers Petition that under its
proposal, towers exempted from environmental notice would still be
required to comply with the Commission's other NEPA rules, including
the obligation to certify environmental compliance on a completed ASR
application and to file an EA in appropriate cases. The Commission
proposes to retain these requirements. The Commission notes that, as
part of the NEPA rules, even if a specific facility is categorically
excluded from environmental processing under Sec. 1.1306, the
reviewing bureau shall require the filing of an EA under Sec. Sec.
1.1307(c) and (d) of the rules if the bureau determines the deployment
may have a significant environmental impact. The Commission also notes
that where an EA is filed for a registered tower, the Commission puts
the EA on public notice for 30 days and also requires the applicant to
provide local notice unless local notice was previously completed for
that tower. The Commission proposes that if an applicant determines
that it needs to complete an EA for a temporary tower that would
otherwise be exempt from environmental notice, or if the bureau makes
this determination under Sec. Sec. 1.1307(c) or (d), the application
with an EA would not be exempt from environmental notice.
Alternatively, should the Commission provide that temporary towers that
require an EA are eligible for the exemption, or that they would be
subject to national but not local notice?
50. The Commission notes that under the NPA, the exclusion from
section 106 review for temporary towers expressly includes but is not
limited to the following: a cell on wheels (COW) transmission facility,
a broadcast auxiliary services truck, a TV pickup station, a remote
pickup broadcast station (e.g., electronic newsgathering vehicle)
authorized under part 74, a temporary fixed or transportable earth
station in the fixed satellite service (e.g., satellite newsgathering
vehicle) authorized under part 25, a temporary ballast mount tower, or
any facility authorized by a Commission grant of an experimental
authorization. CTIA's Temporary Towers Petition does not specify the
types of temporary towers that would be eligible for the exemption,
apart from the other criteria CTIA proposes. Should the Commission list
or provide examples of specific types of facilities potentially
eligible for an exemption from its environmental notification rules?
What would be the purpose of limiting the exemption to listed
facilities? If the Commission does specify a list of facilities
eligible for the exemption, should the Commission replicate or modify
in any way the list provided in the NPA? Could limiting the exemption
to listed facilities have unintended consequences, such as
inadvertently excluding new technologies or types of structures?
51. The Commission seeks comment on what process should apply when
an applicant determines, subsequent to registering a tower under the
temporary towers notification exemption, that the relevant tower will
or may be needed beyond the maximum period for the exemption. Should
the Commission adopt a process for extending the period the tower may
remain in place without environmental notice? Alternatively, should the
Commission condition the grant of the exemption on the requirement
that, if the applicant needs the tower beyond the maximum period for
the exemption, it must either: (1) Provide environmental notification
before the end of the specified period; (2) obtain a case-specific
waiver; or (3) remove the tower at the end of the permitted period and
not redeploy it until environmental notice has been completed? Should
there be any other consequences for exceeding the maximum period, even
if post-construction notice is subsequently provided?
52. Finally, the Commission seeks comment generally on the costs
and benefits of the proposed exemption. The
[[Page 73154]]
Commission asks commenters to quantify costs and benefits and provide
supporting evidence, where possible. If the Commission determines that
there is no or very little potential for significant environmental
effects from these antenna structures, would environmental notification
confer any benefits? If so, would they be outweighed by the costs from
delays that might prevent deployment of these towers and result in a
loss of service to the public? The Commission specifically seeks
comment on the costs and benefits of the exemption as measured against
the alternative of applying a case-by-case waiver process similar to
that which applies to emergency situations. Under this case-by-case
waiver process, applicants are required to file a waiver request and
wait for a bureau determination of whether to grant the request. AT&T
states that a waiver process similar to that which currently applies to
emergency situations is an inefficient approach for the narrow category
of temporary towers within the scope of its proposal and creates
unnecessary uncertainty and delay. The Commission seeks comment on the
costs of the case-by-case waiver process that would be avoided by
adopting a rule. The Commission also seeks comment on the potential
that an exemption by rule would be over-inclusive, and on any costs
that might result.
IV. Implementation of Section 6409(a)
53. The Commission tentatively finds that it will serve the public
interest to establish rules clarifying the requirements of section
6409(a) to ensure that the benefits of a streamlined review process for
collocations and other minor facility modifications are not
unnecessarily delayed. As the Commission noted in the Sixteenth
Competition Report, 28 FCC Rcd 3700 (2013), collocation on existing
structures is often the most efficient and economical solution for
mobile wireless service providers that need new cell sites, either to
expand their existing coverage area, increase their capacity, or deploy
new advanced services.
54. Since Congress adopted section 6409(a) more than a year ago,
parties have expressed widely divergent views as to the meaning of its
terms and the scope of its requirements. Although the Wireless
Telecommunications Bureau's release of the Section 6409(a) PN, see
Wireless Telecommunications Bureau Offers Guidance on Interpretation of
section 6409(a) of the Middle Class Tax Relief and Job Creation Act of
2012, Public Notice, 28 FCC Rcd 1 (WTB 2013) (Section 6409(a) PN),
provided guidance on certain questions of interpretation under this
provision, the bureau left other issues unaddressed, and parties have
also raised questions and concerns regarding the Section 6409(a) PN
guidance itself. While these issues could be addressed in practice
through local interpretations, judicial decisions, and voluntary
agreements, the Commission believes on balance it serves the public
interest for us proactively to seek comment at this time on
implementing rules to define terms that the statute leaves undefined,
and to fill in other interstices that may serve to delay the intended
benefits of section 6409(a). The Commission invites comment on its
decision to do so and on any reasons why the Commission should limit or
decline to take regulatory action in this proceeding.
55. In particular, the Commission anticipates that, in the absence
of definitive guidance from the Commission, the uncertainties under
section 6409(a) may lead to protracted and costly litigation and could
adversely affect the timely deployment of a nationwide public safety
network and delay the intended streamlining benefits of the statute
with respect to other communications services. Further, addressing the
interpretation of section 6409(a) in a rulemaking, with notice and
opportunity for comment, will provide a broader opportunity for
participation and input in the implementation of this provision than,
for example, one or more adjudicatory proceedings. In addition, the
Commission believes that State and local governments, FirstNet,
Commission licensees, and tower companies will benefit from having
settled interpretations on which they can rely in determining how to
comply with the new law. The Commission therefore takes this
opportunity to examine section 6409(a) and to seek public comment on
its interpretation. The Commission seeks comment on this reasoning.
56. The Commission acknowledges, however, that there may also be
countervailing benefits to offering governments additional opportunity
to implement some or all of the provisions of section 6409(a) before
adopting prescriptive rules. Such an approach would provide State and
local governments more opportunity and flexibility to develop solutions
that best meet the needs of their communities consistent with the
requirements of the provision and may also help to distinguish those
issues that require clarification by the Commission from those on which
there is general consensus. In particular, the Commission believe that
best practices or model ordinances that reflect a consensus of industry
and municipal interests may facilitate the practical and efficient
implementation of section 6409(a), and the Commission is aware of
ongoing discussions between industry and municipal government
representatives in that regard. Therefore, the Commission invites
comment on whether it should refrain from addressing any or all of the
issues discussed below at the present time, on how the Commission might
encourage efforts to develop best practices for applying section
6409(a), and on what role best practices might play in the
interpretation or implementation of this statutory provision.
57. The Commission also notes legislative efforts by State and
local governments to streamline their collocation review processes in
response to section 6409(a) and other considerations. The Commission
seeks comment on how it could accommodate and encourage such efforts
consistent with section 6409(a) and the factors discussed above. In
particular, the Commission seeks comment on how this consideration
affects whether and to what extent the Commission should leave issues
unaddressed at this time. The Commission also seeks comment on other
ways in which principles of federalism should inform its approach to
implementation of section 6409(a). In this connection, the Commission
notes that its goal is not to operate as a national zoning board.
Rather, the Commission seeks to implement and enforce the intent of
Congress to make compliance with Federal standards a precondition to
continued State regulation in an otherwise pre-empted field. In
establishing such Federal standards, how should the Commission most
appropriately address the traditional responsibility of State and local
governments for land use matters?
58. To the extent that the Commission does adopt rules implementing
section 6409(a), the Commission also seeks comment on whether it should
provide a transition period to allow States and localities time to
implement the requirements in their laws, ordinances, and procedures.
If so, how would the Commission establish such a mechanism consistent
with the provision, and what transition period would be appropriate?
1. Terms in Section 6409(a)
59. Under section 6409(a), states and localities must grant an
eligible facilities request, defined as any request for modification of
an existing wireless tower or base station that involves collocation,
removal or replacement of
[[Page 73155]]
transmission equipment, if the request does not substantially change
the physical dimensions of the tower or base station. The Commission
will refer to an eligible request that does not substantially change
the physical dimensions of the tower or base station, and therefore
that shall be approved and must not be denied, as a covered request.
60. The scope of section 6409(a) depends on the proper
interpretation of a number of terms. The Commission seeks comment on
how to interpret or define these terms, including ``transmission
equipment,'' ``existing wireless tower or base station,''
``substantially change the physical dimensions,'' and ``collocation,''
as they are used in and apply to an eligible facilities request under
section 6409(a). The Commission also seeks comment on whether the term
eligible facilities request itself requires any further clarification
beyond the statutory definition provided in section 6409(a)(2).
Commenters addressing these issues are strongly encouraged to offer
specific definitions.
61. Transmission equipment and wireless. Section 6409(a) refers
broadly to transmission equipment without referencing any particular
service. Similarly, in defining eligible facilities to be modified, it
refers broadly to a wireless tower or base station. In contrast,
section 332(c)(7) of the Act, an older provision that also places
limits on State and local authority to regulate wireless facility
siting, extends only to facilities used for personal wireless services
as defined in that section. In the Section 6409(a) PN, the bureau
opined that the scope of a wireless tower or base station under section
6409(a) is not intended to be limited to facilities that support
personal wireless services under section 332(c)(7), given Congress's
decision not to use the pre-existing definition from another statutory
provision relating to wireless siting.
62. Consistent with the bureau's interpretation, the Commission
proposes to find that section 6409(a) applies to the collocation,
removal, or replacement of equipment used in connection with any
Commission-authorized wireless transmission, licensed or unlicensed,
terrestrial or satellite, including commercial mobile, private mobile,
broadcast, and public safety services, as well as fixed wireless
services such as microwave backhaul or fixed broadband. Similarly, the
Commission proposes to define a wireless tower or base station to
include one used for any such purpose. The Commission believes this
interpretation is warranted given the clear intent of Congress to
facilitate collocation, the substantial number of broadcast and public
safety towers that are potentially available for wireless collocation
and that are, in many cases, already being used for collocation, and
Congress's use of the term wireless rather than a more restrictive
term. The Commission also notes that the definitions of tower under
both the Collocation Agreement and NPA have a similarly broad scope,
encompassing structures used to support any Commission-licensed or
authorized service. The Commission seeks comment on its proposal and on
whether there is a reason to exclude any type of services. With respect
to the service involved, should the scope of transmission equipment to
be collocated, replaced, or removed be different from the scope of
structures to be modified? If the Commission were to exclude structures
used for certain services, how would the Commission treat a tower or
other structure that is used or usable for multiple types of service?
What about a tower that is not yet used for any service?
63. The Commission proposes to further define transmission
equipment to encompass antennas and other equipment associated with and
necessary to their operation, including, for example, power supply
cables and a backup power generator. The Commission believes this is
consistent with Congressional intent to streamline the review of
collocations and minor modifications and also with Congress's use of
the broad term transmission equipment rather than a more specific term
such as antenna. The Commission seeks comment on this proposal and
analysis. In particular, the Commission seeks comment on including
backup power equipment in light of the public interest in continued
service during emergencies. The Commission also seeks comment on
whether it should specifically include or exclude any equipment to be
considered as transmission equipment under section 6409(a).
64. The NPA defines antenna in part as an apparatus designed for
the purpose of emitting radio frequency (RF) radiation, to be operated
or operating from a fixed location pursuant to Commission
authorization, for the transmission of writing, signs, signals, data,
images, pictures, and sounds of all kinds, including the transmitting
device and any on-site equipment, switches, wiring, cabling, power
sources, shelters or cabinets associated with that antenna and added to
a tower, structure, or building as part of the original installation of
the antenna. Should the Commission adopt or adapt this definition of
antenna to define the term transmission facility under section 6409(a)?
65. Existing wireless tower or base station. The Commission seeks
comment on how to define wireless tower or base station under section
6409(a). Initially, the Commission notes that both tower and base
station have been previously defined in Commission rules and documents.
Under the Collocation Agreement, a tower is defined as any structure
built for the sole or primary purpose of supporting FCC-licensed
antennas and their associated facilities. The NPA includes a similar
definition of a tower as any structure built for the sole or primary
purpose of supporting Commission-licensed or authorized antennas,
including the on-site fencing, equipment, switches, wiring, cabling,
power sources, shelters, or cabinets associated with that tower but not
installed as part of an antenna. In part 90 of the Commission's rules,
base station is defined as a station at a specified site authorized to
communicate with mobile stations, whereas part 2 and part 24 of the
Commission's rules define base station as a land station in the land
mobile service. As noted in the Section 6409(a) PN, the Commission has
also described a base station in more detail as consisting of radio
transceivers, antennas, coaxial cable, a regular and backup power
supply, and other associated electronics. The Commission seeks comment
generally on the relevance of these definitions for defining wireless
tower or base station under section 6409(a).
66. The Commission seeks comment on the types of structures that
may be considered a wireless tower or base station under section
6409(a). At a minimum, tower would appear to include, as in the NPA,
structures built for the sole or primary purpose of supporting antennas
used for any wireless communications service. However, many other types
of structures, from buildings and water towers to streetlights and
utility poles, may also support antennas or other base station
equipment. The Commission also notes that the Commission has encouraged
the use of these types of structures to enhance capacity for wireless
networks. In the Section 6409(a) PN, the bureau opined that it is
reasonable to interpret a base station to include a structure that
supports or houses an antenna, transceiver, or other associated
equipment that constitutes part of a base station under section
6409(a). The Commission proposes to
[[Page 73156]]
find, consistent with the bureau's guidance, that the term wireless
tower or base station should be interpreted to encompass structures
that support or house an antenna, transceiver, or other associated
equipment that constitutes part of a base station, even if they were
not built for the sole or primary purpose of providing such support. In
particular, the Commission believes that interpreting section 6409(a)
to include structures that house or support base station equipment not
only is consistent with Congressional intent to streamline the
facilities application process, but also accords with established
principles of statutory construction by giving separate meaning to the
term base station as well as tower. The Commission seeks comment on
this interpretation. Should this definition be limited in any way? For
example, should a building or cabinet with equipment inside be included
in this definition? Is it material to the application of section
6409(a) whether a structure is a tower or a base station, and if so,
how should the Commission distinguish these terms?
67. The Intergovernmental Advisory Committee (IAC) argues that base
station should not be interpreted to encompass structures that support
or house only part of a base station. Rather, the IAC argues, any
interpretation of base station should reflect that a base station is a
set of equipment components that collectively provides a system for
transmission and reception of personal wireless services. The
Commission seeks comment on the IAC's argument.
68. The Commission also seeks comment on what equipment constitutes
a base station under section 6409(a). The Commission proposes,
consistent with the definition of transmission equipment proposed
above, to include antennas, transceivers, and other equipment
associated with and necessary to their operation, including coaxial
cable and regular and backup power equipment. The Commission seeks
comment on this proposal. Should the equipment that constitutes a base
station be defined in the same way as transmission equipment, more
expansively, or less expansively? Should structures housing any
particular type of equipment not be included? The Commission further
seeks comment on how to ensure that the definition of base station is
sufficiently flexible to encompass, as appropriate to section 6409(a)'s
intent and purpose, future as well as current base station technologies
and technological configurations, using either licensed or unlicensed
spectrum. In the Section 6409(a) PN, the bureau indicated that the term
base station encompasses the relevant equipment in any technological
configuration, including DAS and small cells. The Commission seeks
comment on whether to adopt this interpretation, and on what
constitutes the base station in the context of DAS or other wireless
technologies where the various components of what might traditionally
be considered a base station are dispersed over a large area and may be
owned or controlled by different parties.
69. Under section 6409(a), a wireless tower or base station must be
existing in order for its modification to be covered. In the Section
6409(a) PN, the bureau opined that an existing base station only
includes a structure that currently supports or houses base station
equipment. Verizon, however, argues that modifications of base stations
encompass collocations on buildings and other structures, even if those
structures do not currently house wireless communications equipment.
Verizon argues that the Collocation Agreement defines collocation as
encompassing the mounting of an antenna on an existing building or
structure, and that collocations in section 6409(a) should therefore be
given similar scope. The Commission seeks comment on this argument.
Does existing require only that the structure be previously constructed
at the time of the collocation application, or does this term also
require that the structure be used at that time as a tower or base
station? Do the statutory language and context argue in favor of one
interpretation or the other? Which interpretation, or some other, would
be more consistent with both facilitating deployments that are unlikely
to conflict with local land use policies (including policies that favor
use of existing structures) and preserving State and local authority to
review construction proposals that may have impacts? Should the
interpretation of existing depend on the type of structure involved?
For example, should the Commission consider a structure built for the
primary purpose of supporting or housing transmission equipment
existing under section 6409(a) whether or not it currently hosts such
equipment, while considering other structures existing only if they
currently support or house transmission equipment?
70. The Commission asks commenters, when discussing the scope of
support structures encompassed by section 6409(a), to discuss the
economic costs and benefits of adopting their proposed interpretation
and how these might relate to the intent of Congress. Are there
different costs and benefits to mandatory approval depending on the
type of structure involved?
71. Collocation, removal, and replacement. The Commission seeks
comment on how to define or interpret the terms collocation, removal,
and replacement. Under the Collocation Agreement, collocation is
defined as 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. The
Commission seeks comment on whether to adopt a similar definition of
collocation under section 6409(a).
72. The Commission also proposes to interpret a modification of a
wireless tower or base station to include collocation, removal, or
replacement of an antenna or any other transmission equipment
associated with the supporting structure, even if the equipment is not
physically located upon it. The Commission notes that the Collocation
Agreement similarly construes the mounting of an antenna on a tower to
encompass installation of associated equipment cabinets or shelters on
the ground. The Commission seeks comment on its proposed
interpretation.
73. The Commission seeks comment on whether and to what extent a
request to replace or harden a tower or other covered structure should
be considered a covered request if the replacement would not
substantially change the physical dimensions of the structure. For
example, under some circumstances, a tower may need to be replaced,
reinforced, or otherwise hardened in connection with an upgrade from 3G
to heavier 4G facilities. Should replacement of the underlying
structure be covered if it is necessary to support the otherwise
covered collocation or replacement of transmission equipment? What if
the replacement is constructed with different materials, such as if a
wooden pole must be replaced with steel? Should a requested structure
replacement be covered only for certain types of structures, such as
those originally constructed for the sole or primary purpose of
supporting communications equipment?
74. Substantially Change the Physical Dimensions. The Commission
seeks comment on whether and how to define when a modification would
substantially change the physical dimensions of a wireless tower or
base station.
75. As the bureau noted in the Section 6409(a) PN, the Collocation
Agreement establishes a four-prong test to
[[Page 73157]]
determine whether a collocation will effect a substantial increase in
the size of a tower. The Commission later adopted the same test in the
2009 Declaratory Ruling to determine whether an application will be
treated as a collocation when applying section 332(c)(7). The
Commission has also applied a similar definition to determine whether a
modification of an existing registered tower requires public notice for
purposes of environmental review.
76. Under this test, a substantial increase in the size of the
tower occurs if:
(1) [t]he mounting of the proposed antenna on the tower would
increase the existing height of the tower by more than 10%, or by the
height of one additional antenna array with separation from the nearest
existing antenna not to exceed twenty feet, whichever is greater,
except that the mounting of the proposed antenna may exceed the size
limits set forth in this paragraph if necessary to avoid interference
with existing antennas; or
(2) [t]he mounting of the proposed antenna would involve the
installation of more than the standard number of new equipment cabinets
for the technology involved, not to exceed four, or more than one new
equipment shelter; or
(3) [t]he mounting of the proposed antenna would involve adding an
appurtenance to the body of the tower that would protrude 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,
except that the mounting of the proposed antenna may exceed the size
limits set forth in this paragraph if necessary to shelter the antenna
from inclement weather or to connect the antenna to the tower via
cable; or
(4) [t]he mounting of the proposed antenna would involve excavation
outside the current tower site, defined as the current boundaries of
the leased or owned property surrounding the tower and any access or
utility easements currently related to the site.
77. The Commission seeks comment on whether to adopt the
Collocation Agreement's definition of substantial increase in the size
of the tower as the test for when a modification will substantially
change the physical dimensions of a tower or base station under section
6409(a). If the Commission does so, should the Commission apply this
test to all modification requests, including collocation, replacement,
and removal of transmission equipment? Or should the Commission modify
or clarify any of the prongs of that test for any type of requests?
78. In determining what constitutes a substantial change in
physical dimensions under section 6409(a), the Commission seeks comment
on how to address situations where the tower or other structure has
been previously modified since it was originally approved. For example,
it is theoretically possible that successive increases of 10 percent
could cumulatively increase the height of a structure by double or
more. In such situations, should the physical change in dimensions
resulting from a collocation be measured based on the structure's
original dimensions or the existing dimensions taking into account all
pre-existing modifications? Should it matter if previous expansions
occurred before or after the enactment of section 6409(a)?
79. The Commission also seeks comment on whether the standard for
what constitutes a substantial change should be different depending on
the type of structure to be modified. As the Commission noted above,
the Collocation Agreement definition applies to towers, defined as any
structure built for the sole or primary purpose of supporting FCC-
licensed antennas and their associated facilities. Should a different
standard apply to other types of structures that may be defined as
towers or base stations, such as buildings or utility poles? For
example, what are the potential effects of adding up to 10 percent to
the height of a building? Is a standard that allows for separation from
the nearest existing antenna of up to twenty feet appropriate for
structures that are much shorter than traditional towers, such as
utility poles? The Commission further seeks comment on whether a
different test should apply to stealth structures, structures and
associated base stations that have been constructed to blend in with
their surroundings. Should changes in physical dimensions that would
defeat or be inconsistent with the stealth characteristics of the
structure be considered substantial?
80. The Commission also seeks comment on the views of the IAC
regarding when a modification will substantially change the physical
dimensions of a tower or base station. In particular, the IAC argues
that the question of substantiality cannot be resolved by the adoption
of mechanical percentages or numerical rules applicable anywhere and
everywhere in the United States, but rather must be evaluated in the
context of specific installations and a particular community's land use
requirements and decisions. As an example, the IAC suggests that a
change in a tower's height of only 5 percent that would adversely
affect substantial safety, esthetic, or quality-of-life elements would
represent a substantial change in physical dimensions. The Commission
seeks comment on this interpretation, and on how, consistent with the
IAC's interpretation, the Commission might define the test for what
constitutes a substantial change in physical dimensions.
2. Review and Processing of Applications, Time Limits, and Remedies
81. Section 6409(a)(1) provides that notwithstanding section 704 of
the Telecommunications Act of 1996 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. The Commission asks for comments on the
extent to which the statutory language leaves State or local
governments discretion or authority to deny or condition approval and
what restrictions or requirements, if any, it may place on the
processes that a State or locality may adopt for the review of
applications. The Commission further seeks comment on whether section
6409(a) warrants establishment of time limits for State and local
review and prescription of remedies in the event of a failure to
approve a covered request under section 6409(a)(1).
82. May not deny and shall approve. The Commission seeks comment on
whether, by directing that States and localities may not deny and shall
approve covered requests, section 6409(a) requires States and
localities to approve all requests that meet the definition of eligible
facilities requests and do not result in a substantial change in the
dimensions of the facility, without exception and/or discretionary
review. The Commission also seeks comment on whether there are any
special circumstances under which, notwithstanding this unqualified
language, section 6409(a) would permit a State or local government to
deny an otherwise covered request. The Commission further seeks comment
on whether States and localities may make the grant of a covered
request subject to conditions on or alterations to the request. If so,
what types of conditions or alterations may they require that would be
consistent with section 6409(a)? In particular, the Commission
[[Page 73158]]
seeks comment below on whether and/or to what extent States and
localities may require any covered requests to comply with State or
local building codes and land use laws and whether States and
localities are required to approve an otherwise covered modification of
a tower or base station that has legal, non-conforming status or that
does not conform to a condition or restriction that the State or
locality imposed as a prerequisite to its original approval of the
tower or base station. The Commission also proposes below to find that
the requirement that States and localities may not deny and shall
approve covered requests in any case 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 capacities as property owners.
83. The Commission seeks comment whether and/or to what extent
States and localities may require any covered requests to comply with
State or local building codes and land use laws. For example, the
Commission seeks comment on whether a State or local government must
grant a facilities modification request that would result in an
increase in height above the maximum height permitted by an applicable
zoning ordinance. May States and localities require a covered request
to be in compliance with general building codes or other laws
reasonably related to health and safety? For example, the Commission
seeks comment on whether States or localities can continue to enforce
restrictions such as load-bearing limits on applications that otherwise
meet the standard for approval under section 6409(a)(1). May they
condition the approval of a modification on the underlying structure's
compliance with the hardening standards under TIA-222 revision G,
Structural Standards for Antenna Supporting Structures and Antennas?
What is the cost of bringing a structure into compliance with these
standards? Similarly, may a State or local government deny an
application for an otherwise covered modification if the structure, as
modified, would not meet the fall zone or setback distance that its
ordinance requires? The Commission further seeks comment on the
enforceability of codes that may not be designed for current
technologies, e.g., codes establishing set-back minimums appropriate
for towers but excessive for much shorter utility poles. The Commission
asks commenters to discuss the extent to which principles of federalism
require or permit the Commission to construe section 6409(a) in a
manner that preserves traditional State or local land use authority
with respect to any of these issues.
84. The Commission also seeks comment on whether section 6409(a) is
applicable to eligible facilities requests involving existing towers or
base stations that were approved at the time of construction but that
are no longer in conformance due to subsequent changes to the governing
zoning ordinance. Some jurisdictions routinely deny such requests,
while others require full zoning review and impose conditions such as
replacement or retrofitting of the underlying structure. The Commission
therefore seeks comment on whether States and localities are required
to approve an otherwise covered modification of a tower or base station
that has legal, non-conforming status, and whether section 6409(a)
disallows a jurisdiction from subjecting such a request to full zoning
review. The Commission further seeks comment on current municipal
practices regarding modification or collocation requests in connection
with legal, non-conforming wireless towers. What are the reasons or
justifications for the local jurisdiction to require a full zoning
review? What is the common time frame to process a local zoning review
for a request to modify a legal, non-conforming tower? What sorts of
conditions have local governments placed on their approval?
85. The Commission also seeks comment on whether States and
localities are required to approve a modification of an existing tower
or base station that does not conform to a condition or restriction
that the State or locality imposed as a prerequisite to its original
approval of the tower or base station. For example, if a municipality
has approved initial installation of some transmission facilities on a
building or other structure conditioned on the facilities meeting
standards with regard to height, width, bulk, appearance, or other
design characteristics intended to camouflage the deployment, is it
required to approve subsequent collocations on the structure that do
not meet those stealth conditions? Should a different rule apply
depending on whether the condition was imposed before or after the
effective date of section 6409(a)? The Commission seeks comment on
whether interpreting the statute to require approval of modifications
notwithstanding conditions on the original installation may create
disincentives for States and localities to approve the initial siting
of towers or base stations, and if so, how section 6409(a) can be
implemented to address this concern.
86. More broadly, the Commission seeks comment on the extent to
which any of these asserted grounds for local substantive review and
potential denial of an application should alternatively be understood
as factors in determining whether a wireless tower or base station
should be considered existing or what constitutes a substantial change
in the physical dimensions of a wireless tower or base station. For
example, should modifications that alter a facility in a fashion
inconsistent with local ordinance or with conditions on the structure's
use be considered to substantially change its physical dimensions?
Should a tower that is legal but non-conforming not be considered
existing for purposes of section 6409(a)?
87. The IAC argues that the mandate that States and localities may
not deny and shall approve requests 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 capacities as property owners.
The IAC asserts, as example, that where a county government, as
landlord rather than as land use regulator, has by contract or lease
chosen, in its discretion, to authorize the installation of an antenna
on a county courthouse rooftop of certain exact dimensions and
specifications, section 6409 does not require the county, acting in its
capacity as landlord rather than its capacity as regulator of private
land use, to allow the tenant to exceed to any extent those mutually
and contractually agreed-upon exact dimensions and specifications. The
Commission proposes to adopt this interpretation of section 6409(a) and
seeks comment, including comment on how to ensure it is clear in which
capacity governmental action is requested and in which capacity a
governmental entity is acting, and whether the Commission needs to
address how section 6409(a) applies to requests seeking a government's
approval in both capacities. For example, would section 6409(a) impose
no limits on such a landlord's ability to refuse or delay action on a
collocation request?
88. Application procedures. The Commission seeks comment on whether
section 6409(a) places restrictions, limitations, or requirements on
the filing and review process applicable to applications subject to
section 6409(a), and if so, what Federal standards would appropriately
implement such limitations. Some have suggested that because section
6409(a) provides that State and local governments shall approve covered
facilities requests, the provision requires an expedited process. Other
parties, on the other hand, have
[[Page 73159]]
argued that a fact-finding is required to determine whether section
6409(a) applies at all and that local governments need the freedom to
adopt procedures that will enable them to resolve this question. In the
Section 6409(a) PN, the bureau, noting that the provision on its face
contemplates the submission of a request, indicated that the relevant
government entity may still require the filing of an application for
administrative approval. The Section 6409(a) PN did not provide any
further procedural guidance.
89. The Commission proposes to find, consistent with the bureau
guidance, that section 6409(a) permits a State or local government at a
minimum to require an application to be filed and to determine whether
the application constitutes a covered request. This is consistent with
the statutory language providing that the government shall approve the
application. The Commission seeks comment on this proposed finding. The
Commission further seeks comment on whether, given the directive that
the State or local government shall approve, section 6409(a) permits
and warrants Federal limits on applicable fees, processes, or time for
review. If so, should the Commission define what these limits are, or
are the variations in circumstances such that it is better to address
them case-by-case? If the Commission does define them, what should the
limits be? For example, should the Commission find that section 6409(a)
warrants specific expedited procedures or limits on the documentation
that may be required with an application?
90. In particular, the Commission seeks comment on whether section
6409(a) warrants limiting the procedures for filing and reviewing an
application that the applicant characterizes as stating a covered
request to those procedures relevant to resolving whether the request
is in fact covered by section 6409(a). The Commission further seeks
comment on whether section 6409(a) permits limitations on which
officials may review an application, and if so, whether such
limitations are warranted. For example, to the extent that review under
section 6409(a) is ministerial, approval by administrative staff may be
more efficient, and no less effective, than submission to an elected
Board. Would a Federal standard requiring State and local governments
to utilize such an administrative process sufficiently protect their
ability to identify applications that are not covered by section
6409(a) and otherwise to exercise any permitted discretion? Would it be
consistent with principles of federalism to constrain State and local
government procedures in this manner, as a condition for continuing to
review covered requests? Would such a standard contradict some local
ordinances and, if so, would it raise concerns that, at least for an
interim period, the affected community could not review applications at
all? Are administrative practices sufficiently uniform among
communities that any rules could be meaningful?
91. The Commission also seeks comment on whether section 6409(a)
permits or warrants imposing limits on the kinds of information and
documentation that may be required in connection with an application
asserted to be a covered request. The Commission notes that, in the NOI
proceeding, some parties asserted that some jurisdictions were
requesting extensive documentation for collocation approvals, thereby
resulting in delay, while other jurisdictions required only the limited
information necessary to issue a common building permit. The Commission
also notes that, since the NOI was released, additional States have
taken steps to streamline local processing of collocation requests, in
part through clarifying what information may be required to support
such requests. The Commission seeks comment on such developments and on
whether, given current practices, it is now necessary or appropriate to
establish Federal standards governing the information that applicants
may be required to provide in connection with an asserted section
6409(a) request in order to ensure that such information requests do
not unnecessarily extend the application process. For example, should
the Commission clarify that States and localities may not require
information or documents in connection with an eligible facilities
request asserted to be a covered request under section 6409(a) that are
not relevant to the criteria for approval under section 6409(a)?
92. The Commission also seeks comment on whether to establish a
time limit for the processing of requests under section 6409(a). In the
Section 6409(a) PN, the bureau noted that the 2009 Declaratory Ruling
established 90 days as a presumptively reasonable period of time to
process collocation applications under section 332(c)(7). The bureau
stated that 90 days should be the maximum presumptively reasonable
period of time for reviewing requests that are covered by section
6409(a), whether for personal wireless services or other wireless
facilities. The Commission seeks comment on whether to adopt this
conclusion or adopt a shorter period, given that section 6409(a)
considerably narrows the scope of review. Should the Commission also
consider specific circumstances under which municipalities may extend
the time period? For example, consistent with the Commission's
interpretation of section 332(c)(7), should the Commission provide that
a municipality may toll the running of the period if it notifies the
applicant in writing within 30 days that an application is incomplete
and specifies the additional information or documentation required to
complete the application? Does section 6409(a) warrant imposing any
limits on the ability of a municipality to require such additional
information or documentation? Should municipalities be able to extend
the time period by agreement with the applicant?
93. The Commission notes that some jurisdictions have adopted
moratoria on the filing or processing of applications for new wireless
facilities, including collocations and other modifications that may be
covered under section 6409(a). The Commission seeks comment on current
developments of this kind, and how they may relate to covered requests
under section 6409(a). Considering Congress's explicit language that a
State or local government may not deny, and shall approve a covered
application, the Commission proposes to preempt the application of any
such moratoria to covered requests under section 6409(a), including
with respect to the running of any applicable time period. In other
words, under this proposal, a State or local government may not prevent
or delay the filing of applications asserted to be covered by section
6409(a) due to a moratorium, and it must approve covered applications
within the same time period as if no moratorium were in effect. The
Commission seeks comment on this proposal. Alternatively, the
Commission seeks comment on whether it should specify a maximum
cumulative time that may be added to the process due to moratoria and,
if so, what that time period should be, as well as whether any tolling
should be limited to moratoria that are put in place prior to
submission of the application or request.
94. The Commission anticipates that in general, review of
applications submitted under section 6409(a) will be limited to
determining whether the application states an eligible facilities
request, whether the request would substantially change the physical
dimensions of the relevant tower or base station, and whether it
satisfies any other criteria that, under interpretations
[[Page 73160]]
the Commission may adopt in this proceeding, allow the State or local
government to deny or condition an otherwise covered application.
Should the Commission distinguish any set of applications that are
unlikely to raise any significant questions of eligibility and
therefore should be subject to more stringent limitations on process,
timing, or fees? If so, what criteria should identify these
applications and what limits are appropriate under section 6409(a)? For
example, should requests for removal of transmission equipment be
eligible for a more expedited process than new collocations? Should
replacement applications also be subject to a more expedited process
and, if so, subject to what limitations on the size or appearance of
the new equipment?
95. Remedy and enforcement. The Commission seeks comment on what
remedies should be available to enforce section 6409(a) in cases of
failure to act or decisions adverse to the applicant. The Commission
first seeks comment on whether it should provide that a covered request
is deemed granted by operation of law if a State or local government
fails to act within a specified period of time. In the 2009 Declaratory
Ruling, the Commission declined to adopt such a deemed granted remedy
for local government failures to act on facilities siting applications
under section 332(c)(7)(B), finding that section 332(c)(7)(B)(v)
indicated a Congressional intent that courts should have the
responsibility to fashion appropriate case-specific remedies. Unlike
section 332(c)(7), however, section 6409(a) does not explicitly include
a judicial remedy. Indeed, whereas the terms of section 332(c)(7) do
not mandate approval of any particular request, section 6409(a)
provides that governments shall approve requests covered by the
provision. Moreover, section 6409(a) compels such action
notwithstanding section 332(c)(7) in particular. The Commission seeks
comment on whether this statutory distinction supports a deemed granted
remedy for applications subject to section 6409(a).
96. The Commission also seeks comment on whether such a remedy
raises any constitutional concerns, including concerns under the Tenth
Amendment. While the adoption of a deemed granted rule for cases of
State inaction would result in the grant of facilities siting
applications by operation of Federal law pursuant to section 6409(a),
such a rule would not appear to compel the States to enact or
administer a Federal regulatory program. Indeed, rather than drawing
the States into such involvement, the rule would simply end the
application process without a need for any State or local action at
all, since a deemed granted approach would operate automatically to
grant the application when the trigger event occurs (e.g., inaction on
the application for the amount of time specified by the rule).
Moreover, other than establishing the automatic grant, a deemed granted
rule would not prescribe any particular processes or place any
obligations on State or local governments, thereby leaving their
regulatory authority over the siting matter otherwise undisturbed. In
these respects, it would appear that a deemed granted rule would no
more constitute a Federal regulatory program imposed on the States than
would a pure preemption of State action.
97. In addition to the deemed granted approach, the Commission also
seeks comment on any alternative remedies to similarly ensure that
cases of State inaction or inordinate delay are addressed as Congress
intended. Should the Commission, for example, exercise authority under
City of New York to preempt State or local authority with respect to
covered requests that have been pending for more than a specified
period of time? Would such preemption effectively serve the goals of
section 6409(a) by precluding State or local legal action against
installations that meet the terms of section 6409(a)? Would this type
of remedy effectively enable the installation to proceed, or would the
preemption of the State/local application process prior to its normal
conclusion create other potential impediments? For example, if the
State or local body typically issues a permit after granting a siting
application, would the lack of a permit affect the wireless carrier's
ability to hire contractors to perform necessary work for the
installation? While a similar problem is conceivable with the deemed
granted approach, a carrier that receives a grant by operation of
Federal law under section 6409(a) should have recourse through
established legal frameworks to obtain any necessary paperwork and
credentials to which those receiving a grant from the State or local
government are entitled. The Commission seeks comment on this aspect of
the deemed granted approach, as well as on any other practical problems
that may arise.
98. The Commission also seeks comment on the appropriate remedy
when a State or local government impermissibly denies a covered
request. Should such a denial also be subject to a deemed granted
remedy? How feasible would this approach be when the ostensible reason
for the denial is that the request does not qualify as a covered
request? Could such denials be excluded from the deemed granted
approach without rendering the approach ineffective for addressing
impermissible denials of covered requests? Is there any other reason to
treat a State or local government's denial of an eligible facilities
request differently from its failure to act within a specified period
of time?
99. The Commission further seeks comment on how a deemed granted
remedy, if adopted, should operate, when it should be applicable, and
how it should be enforced under section 6409(a). For example, should an
applicant be required to notify a State or local government when it
believes that a deemed grant has occurred, thus providing that State or
local government the opportunity to go to court or the Commission to
seek a finding that the deemed granted remedy has not been triggered?
Or should the onus be placed on the applicant to go to court or the
Commission and asks for a finding that an application is a covered
request before it can be deemed granted? Would placing the burden on
the applicant pursuant to the latter option negate many of the benefits
of having a deemed granted remedy?
100. For the reasons discussed above, the Commission proposes to
permit the filing of complaints with the Commission alleging violations
of section 6409(a) along with any implementing rules the Commission
choose to adopt, and that such complaints be filed as petitions for
declaratory ruling. The Commission seeks comment on these proposals,
including whether it should adopt other procedures, such as those that
have been adopted in connection with other local land use actions that
affect Commission licensees. What alternative judicial remedies would a
party have? The Commission also notes that some zoning regulations
require that only a court decision can overturn a zoning decision. The
Commission seeks comment on whether and how section 6409(a) might
operate to preempt such requirements and how this issue should affect
the remedies the Commission provides.
101. Finally, the Commission seeks comment on the relation between
section 6409(a) and section 332(c)(7). While the provisions are not
coextensive, many collocation applications under section 6409(a) are
also covered under section 332(c)(7). Where both sections apply, the
Commission proposes to find that section 6409(a) governs, consistent
with canons of statutory construction that a
[[Page 73161]]
more recent statute takes precedence over an earlier one and that
normally the specific governs the general. Thus, under this
interpretation, because the substantive standard requiring approval of
covered requests under section 6409(a) appears to provide significantly
less leeway than section 337(c)(7) and is therefore in conflict with
the latter provision, where both apply, such covered requests would be
governed by the substantive standard of section 6409(a). The Commission
seeks comment on this proposed finding and any alternatives.
V. Implementation of Section 332(C)(7)
102. The Commission does not intend in this NPRM to seek comment on
or otherwise revisit any aspect of its 2009 Declaratory Ruling. As
discussed below, the Commission has received various comments in
response to the NOI asserting that it is unclear how the standards
established in the 2009 Declaratory Ruling apply in certain
specifically identified contexts or seeking clarification regarding
questions arising under section 332(c)(7) that were not addressed by
the 2009 Declaratory Ruling. Additionally, the Commission has been
asked to revisit its decision not to impose a deemed granted remedy in
cases where a State or local government fails to comply with the time
limits set forth in the 2009 Declaratory Ruling. From these comments,
the Commission has distilled six discrete issues that have been raised.
While taking the opportunity to address these issues, the Commission
stresses that it is not revisiting--or seeking comment in this
proceeding on--any of the matters decided by the 2009 Declaratory
Ruling.
103. Definition of collocation. In the 2009 Declaratory Ruling, the
Commission held that the addition of an antenna to an existing tower or
other structure constitutes a collocation for purposes of section
332(c)(7) if it does not involve a substantial increase in the size of
a tower as defined in the Collocation Agreement. However, the
Commission did not further define that term. In the context of defining
a substantial change in physical dimensions under section 6409(a), the
Commission seeks comment above on whether to adopt a different standard
depending on the type of structure to be modified. The Commission
similarly seeks comment here on whether to refine the substantial
increase in size test as applied to collocations on structures other
than communications towers under section 332(c)(7). Should the
Commission apply the test for substantial increase in size under
section 332(c)(7) in the same manner as it interprets the test under
section 6409(a) for substantial change in physical dimensions? The
Commission also seeks comment on whether terms that it defines under
both section 332(c)(7) and section 6409(a), such as collocation, should
be defined in the same way.
104. Completeness of applications. Although the 2009 Declaratory
Ruling held that a State or local government's period for acting on an
application is tolled until the applicant completes its application in
response to a request for additional information made within the first
30 days, it did not attempt to define when a siting application should
be considered complete for this purpose. PCIA has asserted that, as a
result, jurisdictions may delay processing by repeatedly requesting
additional information. AT&T also asserted that some local authorities
have tried to extend their period for decision by delaying when they
deem the application complete. The Commission seeks comment on whether
to clarify when a siting application is considered complete for the
purpose of triggering the 2009 Declaratory Ruling time frame and, if
so, how that should be determined.
105. Local moratoria. Above, the Commission seeks comment on
whether and how the requirements of section 6409(a) apply to delays in
processing applications that result from local moratoria. Here, the
Commission similarly seeks comment on whether and how the presumptively
reasonable time frames under section 332(c)(7) apply to such delays.
PCIA in its comments to the NOI argued that because the 2009
Declaratory Ruling on timelines for application review did not
explicitly discuss moratoria, many jurisdictions have enacted them in
an effort to avoid the 2009 Declaratory Ruling time frames altogether.
PCIA asserted that siting moratoria lasting longer than six months are
generally contrary to the industry-community agreement signed in 1998,
and that local jurisdictions have not followed this agreement and have
enacted moratoria extending well beyond the six-month time period.
Thus, PCIA requested that the Commission clarify the applicability of
the 2009 Declaratory Ruling to local moratoria.
106. The Commission proposes to find that the presumptively
reasonable period for State or local government action on an
application runs regardless of any local moratorium. Since the 2009
Declaratory Ruling makes no special provision for moratoria, the
Commission believes this is consistent with the plain reading of that
decision. Furthermore, the Commission believes this approach creates an
appropriate bright-line test for when a State or local government's
delay may be brought before a court. Under this reading, the
reasonableness of the moratorium may be considered by a reviewing court
in determining whether the delay violates section 332(c)(7). The
Commission seeks comment on this proposal and analysis.
107. Alternatively, the Commission seeks comment on whether the
running of the applicable presumptively reasonable period of time
should be tolled by a moratorium. The Commission also seeks comment on
whether, if it adopts this ruling, the tolling period for moratoria
should be limited to a maximum cumulative time, what that time period
should be, and whether tolling should be limited to moratoria that are
put in place prior to the submission of the application or request. The
Commission further seeks comment on how frequently moratoria are
invoked, the typical duration of moratoria, and the local interests
served by or justifications for such moratoria. The Commission notes
that if it holds that the section 6409(a) substantive standards govern
applications covered by both section 6409(a) and section 332(c)(7),
such standards would include any decisions on moratoria under section
6409(a). The Commission seeks comment on whether treatment of moratoria
should be similar under the two provisions.
108. Application to DAS. The NOI record has shown that in the
absence of any explicit discussion, some jurisdictions have interpreted
the 2009 Declaratory Ruling time frames as not applying to DAS
deployments. Neither section 332(c)(7) nor any Commission decision
interpreting section 332(c)(7) makes any distinction among personal
wireless service facilities based on technology, and absent a
compelling reason to do so, the Commission is not inclined to make such
distinctions. In any event, the Commission proposes to clarify that to
the extent DAS or small cell facilities, including third-party
facilities such as neutral host DAS deployments, are or will be used
for the provision of personal wireless services, such facilities are
subject to the same presumptively reasonable time frames and other
requirements as other personal wireless service facilities.
109. The City of Philadelphia responded to the NOI record on this
issue, arguing that a number of factors, including the possibility that
a DAS network may include a large number of discrete sites, the density
of the sites, and their tendency to have a large presence in the public
rights-of-way,
[[Page 73162]]
dictate a substantially greater time to review and evaluate permitting
applications than for traditional cell site applications, making the
time frames provided in the 2009 Declaratory Ruling inappropriate. The
2009 Declaratory Ruling does not prevent a court from taking these
factors into consideration in any determination of reasonableness,
however, and applicants and municipalities can agree to extensions of
time in appropriate cases. The Commission seeks comment on its proposal
and analysis, including any reason DAS or small cell facilities should
be subject to different time frames or other requirements.
110. Section 332(c)(7)(B)(i)(I). PCIA has asserted that some local
ordinances establish preferences for placing wireless facilities on
municipal property and argued that, by limiting the siting flexibility
of subsequent wireless entrants in a given area, such ordinances
unreasonably discriminate among providers of functionally equivalent
services in violation of section 332(c)(7)(B)(i)(I). Other commenters
have argued against such a per se conclusion. The Commission seeks
comment on whether ordinances establishing preferences for the
placement of wireless facilities on municipal property are unreasonably
discriminatory under section 332(c)(7).
111. Deemed Granted Remedy. In the 2009 Declaratory Ruling, the
Commission declined to establish a deemed granted remedy in cases where
a State or local government failed to abide by the time limits
established by the Commission. It noted at the time that section
332(c)(7)(B)(v) states that when a failure to act has occurred,
aggrieved parties should file with a court of competent jurisdiction
within 30 days and that the court shall hear and decide such action on
an expedited basis. The Commission then concluded that this provision
indicates Congressional intent that courts should have the
responsibility to fashion appropriate case-specific remedies.
112. PCIA in its comments asks the Commission to revisit this
decision and adopt a deemed granted remedy. Specifically, it claims
that adding a deemed granted rule is critical to ensuring that States
and localities act within the prescribed timelines. PCIA notes that
seeking judicial relief for violations of section 332(c)(7) can involve
great time and expense and that a deemed granted remedy would reduce
costly and time-consuming litigation, allowing those resources to be
used to fund rather than defend the expansion of broadband deployment.
What experiences have parties had since the end of the comment period
for the NOI in WC Docket No. 11-59? Should the Commission adopt
remedies beyond the one provided in the 2009 Declaratory Ruling for
violations of section 332(c)(7)? If so, what should they be? What
authority does the Commission have to adopt the proposed remedy?
VI. Other Procedural Matters
A. Initial Regulatory Flexibility Analysis
113. As required by the Regulatory Flexibility Act, see 5 U.S.C.
603, the Commission has prepared an Initial Regulatory Flexibility
Analysis (IRFA) of the possible significant economic impact on small
entities of the policies and rules addressed in this NPRM. Written
public comments are requested on the IRFA. These comments must be filed
in accordance with the same filing deadlines as comments filed in
response to this NPRM and, if submitted together with comments to the
NPRM in a single filing, must have a separate and distinct heading
designating them as responses to the IRFA. The Commission's Consumer
and Governmental Affairs Bureau, Reference Information Center, will
send a copy of this NPRM, including the IRFA, to the Chief Counsel for
Advocacy of the Small Business Administration. In addition, the NPRM
and IRFA (or summaries thereof) will be published in the Federal
Register.
1. Need for, and Objectives of, the Proposed Rules
114. In this NPRM, the Commission addresses four major issues
regarding the regulation of wireless facility siting and construction
with the goal of reducing, where appropriate, the cost and delay
associated with the deployment of such infrastructure. First, the
Commission seeks comment on expediting its environmental review,
including review under section 106 of the NHPA, in connection with
proposed deployments of small cells, Distributed Antenna Systems (DAS),
and other small wireless technologies that may have minimal effects on
the environment. While the Commission has acted in the past to tailor
its environmental review for the deployment of wireless infrastructure,
those processes were largely developed long before small cell
technologies became prevalent, and for the most part reflect the scale
and level of environmental concern presented by traditional deployments
on tall structures. Accordingly, the Commission seeks comment on
whether to further tailor its environmental review process for
technologies such as DAS and small cells through adoption of a
categorical exclusion or other means. Second, the Commission proposes
to adopt a narrow exemption from the Commission's pre-construction
environmental notification requirements for certain temporary towers.
These notification requirements provide that, before a party can
register a proposed communications tower that requires registration
under part 17 of its rules, and thus begin to construct or deploy the
tower in question, it must complete a process of local and national
notice. The proposed exemption will ensure that providers can timely
deploy temporary facilities in response to unanticipated short term
needs for broadband and other wireless services, such as in response to
newsworthy events that occur without prior notice. Third, the
Commission seeks comment on proposed rules to clarify and implement the
requirements of section 6409(a) of the Middle Class Tax Relief and Job
Creation Act of 2012 (Spectrum Act), which streamlines State and local
review of requests for modification of existing towers and base
stations to facilitate the deployment of the nationwide public safety
broadband network mandated by the Spectrum Act and help providers meet
the Nation's growing demand for wireless broadband and other advanced
services. Finally, the Commission seeks comment on certain issues
arising from section 332(c)(7) of the Communications Act and the
Commission's interpretations in the 2009 Declaratory Ruling of that
provision, in order to provide greater notice and clarity to affected
stakeholders.
2. Legal Basis
115. The authority for the actions taken in this NPRM is contained
in sections 1, 2, 4(i), 7, 201, 301, 303, 309, 332, 1403, and 1455 of
the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i),
157, 201, 301, 303, 309, 332, 1403, and 1455, section 102(C) of the
National Environmental Policy Act of 1969, as amended, 42 U.S.C.
4332(C), and section 106 of the National Historic Preservation Act of
1966, as amended, 16 U.S.C. 470f.
3. Description and Estimate of the Number of Small Entities To Which
the Proposed Rules Will Apply
116. 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 proposed rules and policies, if adopted. The RFA
generally defines the term small entity as having the same
[[Page 73163]]
meaning as the terms small business, small organization, and small
governmental jurisdiction. In addition, the term small business has the
same meaning as the term small business concern under the Small
Business Act. 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. Below, the Commission provides a description of such small
entities, as well as an estimate of the number of such small entities,
where feasible.
117. The NPRM proposes rule changes regarding local and Federal
regulation of the siting and deployment of communications towers and
other wireless facilities. Due to the number and diversity of owners of
such infrastructure and other responsible parties, including small
entities that are Commission licensees as well as non-licensees, the
Commission classifies and quantifies them in the remainder of this
section. The Commission seeks comment on its description and estimate
of the number of small entities that may be affected.
118. Small Businesses, Small Organizations, and Small Governmental
Jurisdictions. The Commission's action may, over time, affect small
entities that are not easily categorized at present. The Commission
therefore describes here, at the outset, three comprehensive, statutory
small entity size standards that encompass entities that could be
directly affected by the proposals under consideration. As of 2010,
there were 27.9 million small businesses in the United States,
according to the SBA. Additionally, a small organization is generally
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field. Nationwide, as of 2007, there were
approximately 1,621,315 small organizations. Finally, the term 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.
Census Bureau data for 2007 indicate that there were 89,527
governmental jurisdictions in the United States. The Commission
estimates that, of this total, as many as 88,761 entities may qualify
as small governmental jurisdictions. Thus, the Commission estimates
that most governmental jurisdictions are small.
119. 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 phone services,
paging services, wireless Internet access, and wireless video services.
The appropriate size standard under SBA rules is for the category
Wireless Telecommunications Carriers. The size standard for that
category is that a business is small if it has 1,500 or fewer
employees. For this category, census data for 2007 show that there were
11,163 establishments that operated for the entire year. Of this total,
10,791 establishments had employment of 99 or fewer employees and 372
had employment of 1000 employees or more. Thus under this category and
the associated small business size standard, the Commission estimates
that the majority of wireless telecommunications carriers (except
satellite) are small entities that may be affected by its proposed
action. Similarly, according to Commission data, 413 carriers reported
that they were engaged in the provision of wireless telephony,
including cellular service, PCS, and Specialized Mobile Radio (SMR)
Telephony services. Of these, an estimated 261 have 1,500 or fewer
employees and 152 have more than 1,500 employees. Consequently, the
Commission estimates that approximately half or more of these firms can
be considered small. Thus, using available data, the Commission
estimates that the majority of wireless firms can be considered small.
120. 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. The Personal Radio Services include spectrum licensed under
part 95 of its rules. These services include Citizen Band Radio Service
(CB), General Mobile Radio Service (GMRS), Radio Control Radio Service
(R/C), Family Radio Service (FRS), Wireless Medical Telemetry Service
(WMTS), Medical Implant Communications Service (MICS), Low Power Radio
Service (LPRS), and Multi-Use Radio Service (MURS). 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. Under the RFA, the Commission is required to make a
determination of which small entities are directly affected by the
rules being proposed. Since all such entities are wireless, the
Commission applies the definition of Wireless Telecommunications
Carriers (except Satellite), pursuant to which a small entity is
defined as employing 1,500 or fewer persons. Many of the licensees in
these services are individuals, and thus are 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 under an SBA definition that might be directly affected
by its proposed actions.
121. Public Safety Radio Services. Public Safety Radio Services
include police, fire, local government, forestry conservation, highway
maintenance, and emergency medical services. There are a total of
approximately 127,540 licensees within these services. Governmental
entities as well as private businesses comprise the licensees for these
services. All governmental entities with populations of less than
50,000 fall within the definition of a small entity.
122. Private Land Mobile Radio. Private Land Mobile Radio (PLMR)
systems serve an essential role in a 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 that operate and maintain 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 phone services, paging services, wireless
Internet access, and wireless video services. The SBA has not developed
a definition of small entity specifically applicable to PLMR licensees
due to the vast array of PLMR users. However, the Commission believes
that the most appropriate classification for PLMR is Wireless
Communications Carriers (except satellite). The size standard for that
category is that a business is small if it has 1,500 or fewer
employees. For this category, census data for 2007 show that there were
11,163 establishments that operated for the entire year. Of this total,
10,791 establishments had employment of 999 or fewer employees and 372
had employment of 1000 employees or more. Thus under this category and
the associated small business size standard, the Commission estimates
that the majority of wireless telecommunications carriers (except
satellite) are small entities that may be affected by its proposed
action.
123. Similarly, according to Commission data, 413 carriers reported
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that they were engaged in the provision of wireless telephony,
including cellular service, PCS, and Specialized Mobile Radio (SMR)
Telephony services. Of these, an estimated 261 have 1,500 or fewer
employees and 152 have more than 1,500 employees. Consequently, the
Commission estimates that approximately half or more of these firms can
be considered small. Thus, using available data, the Commission
estimates that the majority of wireless firms can be considered small.
124. Other relevant information about PLMRs is as follows. The
Commission's 1994 Annual Report on PLMRs indicates that at the end of
fiscal year 1994 there were 1,087,267 licensees operating 12,481,989
transmitters in the PLMR bands below 512 MHz. Because any entity
engaged in a commercial activity is eligible to hold a PLMR license,
the revised rules in this context could potentially impact every small
business in the United States.
125. 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,
the Commission defines small entity for MAS licensees as an entity that
has average gross revenues of less than $15 million in the three
previous calendar years. Very small business is defined as an entity
that, together with its affiliates, has average gross revenues of not
more than $3 million for the preceding three calendar years. The SBA
has approved of these definitions. The majority of these entities will
most likely be licensed in bands where the Commission has implemented a
geographic area licensing approach that would require the use of
competitive bidding procedures to resolve mutually exclusive
applications. 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 EA
market area MAS authorizations. The Commission's licensing database
indicates that, as of April 16, 2010, of the 11,653 total MAS station
authorizations, 10,773 authorizations were for private radio service.
126. With respect to the second category, which 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 applicable definition of small entity in
this instance appears to be the Wireless Telecommunications Carriers
(except satellite) definition under the SBA rules. Under that SBA
category, a business is small if it has 1,500 or fewer employees. For
this category, census data for 2007 show that there were 11,163
establishments that operated for the entire year. Of this total, 10,791
establishments had employment of 99 or fewer employees and 372 had
employment of 100 employees or more. Thus under this category and the
associated small business size standard, the Commission estimates that
the majority of wireless telecommunications carriers (except satellite)
are small entities that may be affected by its proposed action.
127. 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)). In connection with the
1996 BRS auction, the Commission established a small business size
standard as designating an entity that had annual average gross
revenues of no more than $40 million in the previous three calendar
years. 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, the Commission estimates 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 392 incumbent BRS licensees that are considered small
entities. After adding the number of small business auction licensees
to the number of incumbent licensees not already counted, the
Commission finds that there are currently approximately 440 BRS
licensees that are defined as small businesses under either the SBA's
or the Commission's rules.
128. In 2009, the Commission conducted Auction 86, the sale of 78
licenses in the BRS areas. The Commission offered three levels of
bidding credits: (1) 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; (2) 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 (3) 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. Auction 86 concluded in 2009 with the sale of 61 licenses.
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.
129. Location and Monitoring Service (LMS). Multilateration 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. 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. These
definitions have been approved by the SBA. 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.
130. Television Broadcasting. The SBA defines a television
broadcasting station that has no more than $35.5 million in annual
receipts as a small business. Business concerns included in this
industry are those primarily engaged in broadcasting images together
with sound. These establishments operate television broadcasting
studios and facilities for the programming and transmission of programs
to the public. These establishments also produce or transmit visual
programming to
[[Page 73165]]
affiliated broadcast television stations, which in turn broadcast the
programs to the public on a predetermined schedule. Programming may
originate in the station's own studio, from an affiliated network, or
from an external source.
131. According to Commission staff review of the BIA Financial
Network, Inc. Media Access Pro Television Database as of March 31,
2013, about 90 percent of an estimated 1,385 commercial television
stations in the United States have revenues of $35.5 million or less.
Based on this data and the associated size standard, the Commission
concludes that the majority of such establishments are small. The
Commission has estimated the number of licensed noncommercial
educational (NCE) stations to be 396. The Commission does not have
revenue estimates for NCE stations. These stations rely primarily on
grants and contributions for their operations, so the Commission will
assume that all of these entities qualify as small businesses. In
addition, there are approximately 567 licensed Class A stations, 2,227
licensed low power television (LPTV) stations, and 4,518 licensed TV
translators. Given the nature of these services, the Commission will
presume that all LPTV licensees qualify as small entities under the
above SBA small business size standard.
132. The Commission notes that in assessing whether a business
entity qualifies as small under the above definition, business control
affiliations must be included. Its estimate, therefore, likely
overstates the number of small entities affected by the proposed rules,
because the revenue figures on which this estimate is based do not
include or aggregate revenues from affiliated companies.
133. In addition, an element of the definition of small business is
that the entity not be dominant in its field of operation. The
Commission is unable at this time and in this context to define or
quantify the criteria that would establish whether a specific
television station is dominant in its market of operation. Accordingly,
the foregoing estimate of small businesses to which the rules may apply
does not exclude any television stations from the definition of a small
business on this basis and is therefore over-inclusive to that extent.
An additional element of the definition of small business is that the
entity must be independently owned and operated. 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.
134. Radio Broadcasting. This Economic Census category comprises
establishments primarily engaged in broadcasting aural programs by
radio to the public. Programming may originate in the station's own
studio, from an affiliated network, or from an external source. The SBA
defines a radio broadcasting entity that has $35.5 million or less in
annual receipts as a small business. According to Commission staff
review of the BIA Kelsey Inc. Media Access Radio Analyzer Database as
of June 5, 2013, about 90 percent of the 11,340 of commercial radio
stations in the United States have revenues of $35.5 million or less.
Therefore, the majority of such entities are small entities. The
Commission has estimated the number of licensed noncommercial radio
stations to be 3,917. The Commission does not have revenue data or
revenue estimates for these stations. These stations rely primarily on
grants and contributions for their operations, so the Commission will
assume that all of these entities qualify as small businesses. The
Commission notes that in assessing whether a business entity qualifies
as small under the above definition, business control affiliations must
be included. In addition, to be determined to be a small business, the
entity may not be dominant in its field of operation. The Commission
notes that it is difficult at times to assess these criteria in the
context of media entities, and its estimate of small businesses may
therefore be over-inclusive.
135. FM translator stations and low power FM stations. The proposed
rules and policies could affect licensees of FM translator and booster
stations and low power FM (LPFM) stations, as well as potential
licensees in these radio services. The same SBA definition that applies
to radio broadcast licensees would apply to these stations. The SBA
defines a radio broadcast station as a small business if such station
has no more than $35.5 million in annual receipts. Currently, there are
approximately 6,155 licensed FM translator and booster stations and 864
licensed LPFM stations. Given the nature of these services, the
Commission will presume that all of these licensees qualify as small
entities under the SBA definition.
136. Multichannel Video Distribution and Data Service. 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. These definitions were approved by the SBA. 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. 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.
137. Satellite Telecommunications. Two economic census categories
address the satellite industry. The first category has a small business
size standard of $30 million or less in average annual receipts, under
SBA rules. The second has a size standard of $30 million or less in
annual receipts.
138. The category of Satellite Telecommunications comprises
establishments 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. Census Bureau data for 2007 show that 607 Satellite
Telecommunications establishments operated for that entire year. Of
this total, 533 establishments had annual receipts of under $10
million, and 74 establishments had receipts of $10 million or more.
Consequently, the Commission estimates that the majority of Satellite
Telecommunications firms are small entities that might be affected by
its action.
139. The second category, i.e., All Other Telecommunications,
comprises establishments primarily engaged in providing specialized
telecommunications services, such as satellite tracking, communications
telemetry, and radar station operation. 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.
Establishments providing Internet services or voice over
[[Page 73166]]
Internet protocol (VoIP) services via client-supplied
telecommunications connections are also included in this industry. For
this category, Census data for 2007 shows that there were a total of
2,639 establishments that operated for the entire year. Of those 2,639
establishments, 2,333 operated with annual receipts of less than $10
million and 306 with annual receipts of $10 million or more.
Consequently, the Commission estimates that a majority of All Other
Telecommunications establishments are small entities that might be
affected by its action.
140. Non-Licensee Tower Owners. 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 on FCC Form 854. Thus, non-
licensee tower owners may be subject to the environmental notification
requirements associated with Antenna Structure Registration (ASR), and
may benefit from the exemption for certain temporary antenna structures
that the Commission proposes in this NPRM. In addition, non-licensee
tower owners may be affected by interpretations of section 6409(a) of
the Spectrum Act or by any revisions to its interpretation of section
332(c)(7) of the Communications Act.
141. As of June 28, 2013, there are approximately 113,612
registration records in a `Constructed' status and 13,572 registration
records in a `Granted, Not Constructed' status in the ASR database.
This includes both towers registered to licensees and towers registered
to non-licensee tower owners. The Commission does not keep information
from which the Commission can easily determine how many of these towers
are registered to non-licensees or how many non-licensees have
registered towers. Regarding towers that do not require antenna
structure registration, the Commission does not collect information as
to the number of such towers in use and therefore cannot estimate the
number of tower owners who would be subject to the proposed rules.
Moreover, the SBA has not developed a size standard for small
businesses in the category Tower Owners. Therefore, the Commission is
unable to determine the number of non-licensee tower owners that are
small entities. The Commission believes, however, that when all
individuals owning 10 or fewer towers and leasing space for collocation
are included, non-licensee tower owners number in the thousands, and
that nearly all of these qualify as small businesses under the SBA's
definition for All Other Telecommunications. In addition, there may be
other non-licensee owners of other wireless infrastructure, including
DAS and small cells, that might be affected by the regulatory measures
proposed in this NPRM. The Commission does not have any basis for
estimating the number of such non-licensee owners that are small
entities.
4. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities
142. The NPRM proposes an exemption from the environmental
notification process that, if adopted, may require amending a current
information collection. Under the environmental notification rules,
prior to filing a completed Antenna Structure Registration (ASR)
application for any new antenna structure or for certain categories of
antenna structure modifications or replacements, the ASR applicant must
initially submit into the ASR system a partially completed FCC Form 854
that includes information about the proposed antenna structure but is
not yet complete for filing. The applicant must also provide local
notice of its proposed tower through publication in a local newspaper
or other appropriate means, such as by following the local zoning
public notice process. The Commission then posts information about the
proposal on its Web site for thirty days, relying on information
submitted by the applicant. Applicants claiming either a waiver from
the notification process or entitlement to a defined exemption from the
notification process must so indicate on their Form 854 submission.
143. This NPRM proposes to adopt a new limited exemption from the
environmental notification requirements. This exemption would apply to
temporary antenna structures that, because of their characteristics, do
not have the potential for significant environmental effects. For these
antenna structures, the NPRM proposes to find that the risk that
carriers will not be able to meet short-term capacity needs if required
to complete the notification process outweighs the small likelihood
that the process will confer any benefit. The NPRM further seeks
comment on the specific criteria for such an exemption, and whether it
is sufficient for exemption if an antenna structure (1) will be in use
for 60 days or less, (2) requires notice of construction to the Federal
Aviation Administration (FAA), (3) does not require marking or lighting
pursuant to FAA regulations, (4) will be less than 200 feet in height,
and (5) will involve minimal or no excavation. Should such an exemption
be adopted, applicants would be required to indicate on their Form 854
filing that they are claiming the notification exemption for new towers
and to demonstrate that they satisfy any applicable criteria.
5. Steps Taken To Minimize Significant Economic Impact on Small
Entities and Significant Alternatives Considered
144. The RFA requires an agency to describe any significant
alternatives that it has considered in developing 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 or reporting requirements under the rule for 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 small
entities.
145. In this proceeding, the Commission seeks to encourage and
promote the deployment of advanced wireless broadband and other
services by tailoring or streamlining the regulatory review of new
wireless network infrastructure consistent with the law and the public
interest. The Commission therefore anticipates that the steps it
proposes or on which it seeks comment will not impose any significant
economic impacts on small entities, and will in fact help reduce
burdens on small entities that may need to deploy wireless
infrastructure by reducing the cost and delay associated with the
deployment of such infrastructure. As discussed below, however, certain
proposals may impose regulatory compliance costs on small
jurisdictions.
146. The NPRM seeks comment in four major areas relating to the
regulation of wireless facility siting and construction. First, it
seeks comment on whether and by what measures the Commission should
expedite environmental review under the National Environmental Policy
Act of 1969 and section 106 of the National Historic Preservation Act
of 1966 for DAS and small cell deployments and
[[Page 73167]]
other new wireless network technologies involving the deployment of
small facilities that may have minimal potential for significant
environmental effects. The proposed measures should reduce existing
regulatory costs for small entities that construct or deploy wireless
infrastructure, and will not impose any additional costs on such
entities. The Commission seeks comment on the economic impact of these
clarifications and exclusions on small entities and invite commenters
addressing these options to discuss alternatives that could further
lessen the burden on small businesses and reduce unnecessary costs and
delays associated with the deployment of wireless network
infrastructure, without risking significant environmental impact.
147. In particular, the NPRM proposes to amend the first sentence
of Note 1 to Sec. 1.1306 of the Commission's rules to clarify that the
existing NEPA exclusion for collocations of antennas on an existing
building or antenna tower also applies to collocations on other
structures, including the types of short structures upon which DAS and
small facilities may be collocated. This change would clarify that
small entities proposing to collocate wireless equipment on structures
such as poles or water towers would be entitled to the same relief from
the requirement to prepare an Environmental Assessment (EA) that they
receive under Note 1 to Sec. 1.1306 when collocating on buildings and
antenna towers. The NPRM also seeks comment on whether to further amend
the first sentence of Note 1 to Sec. 1.1306 to clarify that the
collocation exclusion applies to collocations of equipment inside
buildings as well as to equipment attached externally, and whether to
provide expressly that the exclusion for antennas also applies to
associated equipment. This change would clarify that entities,
including small entities, proposing to place wireless equipment inside
buildings or on structures such as poles or water towers would be
entitled to the same relief from the requirement to prepare an EA that
they receive under Note 1 to Sec. 1.1306 when collocating on the
outside of buildings.
148. The NPRM further seeks comment on whether to adopt new
categorical exclusions from NEPA and section 106 review for DAS and
small cells and on how such exclusions should be defined to encompass
other wireless technologies that similarly involve deployment of small
facilities and therefore warrant similar treatment for purposes of NEPA
and section 106 review. These new exclusions would reduce environmental
compliance costs of small entities by providing that eligible proposed
deployments of small wireless facilities do not require the preparation
of an EA.
149. Second, the NPRM proposes to adopt an exemption from the pre-
construction environmental notification process for certain temporary
towers that have characteristics (very short duration, height limits,
minimal or no excavation, and no lighting) that minimize their
potential to cause significant environmental effects, and seeks comment
specifically on an exemption for antenna structures that (1) will be in
use for 60 days or less, (2) require notice of construction to the FAA,
(3) do not require marking or lighting pursuant to FAA regulations, (4)
will be less than 200 feet in height, and (5) will involve minimal or
no excavation. The NPRM tentatively concludes that this exemption will
serve the public interest by reducing the burden on broadband and other
wireless service providers, including small entities. The Commission
seeks comment on the economic impact of this proposal on small
entities, and any alternative approaches that may further reduce the
burden on such entities.
150. Third, the NPRM seeks comment on rules interpreting and
implementing section 6409(a) of the Spectrum Act, which governs State
and local review of eligible requests for modification of existing
wireless towers or base stations, including requests for collocation.
In particular, it seeks comment on the interpretation of various
statutory terms, on time limits for the review of applications covered
by section 6409(a), and other issues relevant to how State or local
governments process and review applications under the provision. In
considering what interpretations to adopt from among potential
alternatives, the Commission will give full consideration to the
effects on small entities, including small governmental jurisdictions,
and will not adopt an interpretation that significantly burdens small
entities unless necessary to effectuate the intent of the statute. The
Commission invites commenters to discuss the economic impact on small
entities of the interpretations of section 6409(a) on which the
Commission seeks comment and to suggest alternatives that may reduce
the impact on small entities while achieving the goals of the
Commission and the provision. For example, the NPRM seeks comment on
how the Commission might encourage efforts to develop best practices
for applying section 6409(a), and on whether the Commission should
provide a transition period to allow States and localities to implement
the requirements of section 6409(a) in their laws, ordinances, and
procedures, without risking significant delay in implementation of the
provision.
151. Finally, the NPRM seeks comment on whether to clarify certain
aspects of the Commission's interpretations of section 332(c)(7) in the
2009 Declaratory Ruling. In particular, it seeks comment on whether to
clarify when a siting application is considered complete, how the
presumptive time frames apply in the context of local moratoria,
whether to refine the substantial increase in size test as applied to
collocations on structures other than communications towers under
section 332(c)(7), how the decisions in the 2009 Declaratory Ruling
apply to deployments of DAS and small cell facilities, and whether the
Commission should adopt remedies beyond those provided in the 2009
Declaratory Ruling. The NPRM also seeks comment on whether ordinances
establishing preferences for municipal property sitings violate section
332(c)(7)(B)(i)(I). The Commission invites commenters to discuss the
economic impact of any clarification of those rulings on small
entities, including small jurisdictions, and on any alternatives that
would reduce the economic impact on such entities.
152. For the options discussed in this NPRM, the Commission seeks
comment on the effect or burden of the prospective regulation on small
entities, including small jurisdictions, the extent to which the
regulation would relieve burdens on small entities, and whether there
are any alternatives the Commission could implement that could achieve
the Commission's goals while at the same time minimizing or further
reducing the burdens on small entities.
6. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
153. None.
B. Initial Paperwork Reduction Act Analysis
154. This document contains proposed modified information
collection requirements. The Commission, as part of its continuing
effort to reduce paperwork burdens, invites the general public and the
Office of Management and Budget (OMB) to comment on the information
collection requirements contained in this document, as required by the
Paperwork Reduction Act of 1995, Public Law 104-13. In addition,
pursuant to the Small Business Paperwork Relief Act of 2002,
[[Page 73168]]
Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission seeks
specific comment on how the Commission might further reduce the
information collection burden for small business concerns with fewer
than 25 employees.
C. Ex Parte Rules--Permit-but-Disclose
155. The proceeding this NPRM initiates shall be treated as a
permit-but-disclose proceeding in accordance with the Commission's ex
parte rules. Persons making ex parte presentations must file a copy of
any written presentation or a memorandum summarizing any oral
presentation within two business days after the presentation (unless a
different deadline applicable to the Sunshine period applies). Persons
making oral ex parte presentations are reminded that memoranda
summarizing the presentation must (1) list all persons attending or
otherwise participating in the meeting at which the ex parte
presentation was made, and (2) summarize all data presented and
arguments made during the presentation. If the presentation consisted
in whole or in part of the presentation of data or arguments already
reflected in the presenter's written comments, memoranda or other
filings in the proceeding, the presenter may provide citations to such
data or arguments in his or her prior comments, memoranda, or other
filings (specifying the relevant page and/or paragraph numbers where
such data or arguments can be found) in lieu of summarizing them in the
memorandum. Documents shown or given to Commission staff during ex
parte meetings are deemed to be written ex parte presentations and must
be filed consistent with Sec. 1.1206(b). In proceedings governed by
Sec. 1.49(f) or for which the Commission has made available a method
of electronic filing, written ex parte presentations and memoranda
summarizing oral ex parte presentations, and all attachments thereto,
must be filed through the electronic comment filing system available
for that proceeding, and must be filed in their native format (e.g.,
.doc, .xml, .ppt, searchable .pdf). Participants in this proceeding
should familiarize themselves with the Commission's ex parte rules.
VII. Ordering Clauses
156. Accordingly, it is ordered, pursuant to sections 1, 2, 4(i),
7, 201, 301, 303, 309, 332, 1403, and 1455 of the Communications Act of
1934, as amended 47 U.S.C. 151, 152, 154(i), 157, 201, 301, 303, 309,
332, 1403, and 1455, section 102(C) of the National Environmental
Policy Act of 1969, as amended, 42 U.S.C. 4332(C), and section 106 of
the National Historic Preservation Act of 1966, as amended, 16 U.S.C.
470f, that this Notice of Proposed Rulemaking is hereby adopted.
157. It is further ordered that pursuant to applicable procedures
set forth in Sec. Sec. 1.415 and 1.419 of the Commission's rules, 47
CFR 1.415, 1.419, interested parties may file comments on this Notice
of Proposed Rulemaking on or before February 3, 2014 and reply comments
on or before March 5, 2014.
158. It is further ordered that the Commission's Consumer &
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Notice of Proposed Rulemaking, including the Initial
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of
the Small Business Administration.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
For the reasons stated in the preamble, the Federal Communications
Commission proposes to amend 47 CFR parts 1 and 17 as follows:
PART 1--PRACTICE AND PROCEDURE
0
1. The authority citation for part 1 is revised to read as follows:
Authority: 15 U.S.C. 79, et seq.; 47 U.S.C. 151, 154(i),
154(j), 155, 157, 160, 201, 225, 227, 303, 309, 332, 1403, and 1455.
0
2. Amend Sec. 1.1306 by
0
a. Revising NOTE 1; and
0
b. Redesignating NOTES 2 and 3 as ``NOTE 2 to Sec. 1.1306'' and ``NOTE
3 to Sec. 1.1306'' respectively.
The revision reads as follows:
Sec. 1.1306 Actions which are categorically excluded from
environmental processing.
* * * * *
NOTE 1 to Sec. 1.1306: The provisions of Sec. 1.1307(a) of
this part requiring the preparation of EAs do not encompass the
mounting of antenna(s) and associated equipment on an existing
building, antenna tower, or other structure, or inside an existing
building or other structure, unless Sec. 1.1307(a)(4) of this part
is applicable. Such antennas and associated equipment are subject to
Sec. 1.1307(b) of this part and require EAs if their construction
would result in human exposure to radiofrequency radiation in excess
of the applicable health and safety guidelines cited in Sec.
1.1307(b) of this part. The provisions of Sec. Sec. 1.1307 (a) and
(b) of this part do not encompass the installation of aerial wire or
cable over existing aerial corridors of prior or permitted use or
the underground installation of wire or cable along existing
underground corridors of prior or permitted use, established by the
applicant or others. The use of existing buildings, towers or
corridors is an environmentally desirable alternative to the
construction of new facilities and is encouraged. The provisions of
Sec. Sec. 1.1307(a) and (b) of this part do not encompass the
construction of new submarine cable systems.
* * * * *
0
3. Add Subpart CC to part 1 read as follows:
Subpart CC--State and Local Review of Applications to Site Wireless
Facilities
Sec.
1.40001 Wireless Facility Modifications.
Sec. 1.40001 Wireless Facility Modifications.
(a) Purpose. These rules are issued under the Communications Act of
1934, as amended, 47 U.S.C. 151 et seq., implementing section 6409 of
the Middle Class Tax Relief and Job Creation Act of 2012 (codified at
47 U.S.C. 1455), which requires a State or local government to 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.
(b) Definitions. Terms used in this section have the following
meanings.
Base Station. A station at a specified site that enables wireless
communication between user equipment and a communications network,
including any associated equipment such as, but not limited to, radio
transceivers, antennas, coaxial or fiber-optic cable, and regular and
backup power supply. It includes a structure that currently supports or
houses an antenna, transceiver, or other associated equipment that
constitutes part of a base station. It may encompass such equipment in
any technological configuration, including distributed antenna systems
and small cells.
Collocation. The mounting or installation of transmission equipment
on an eligible support structure for the purpose of transmitting and/or
receiving radio frequency signals for communications purposes.
Eligible Facilities Request. Any request for modification of an
existing wireless tower or base station involving;
(i) Collocation of new transmission equipment;
(ii) Removal of transmission equipment; or
(iii) Replacement of transmission equipment.
[[Page 73169]]
Eligible Support Structure. Any structure that meets the definition
of a wireless tower or base station.
Transmission Equipment. Any equipment that facilitates transmission
for wireless communications, including all the components of a base
station, such as, but not limited to, radio transceivers, antennas,
coaxial or fiber-optic cable, and regular and backup power supply, but
not including support structures.
Wireless Tower. Any structure built for the sole or primary purpose
of supporting any FCC-licensed or authorized license-exempt antennas
and their associated facilities, including the on-site fencing,
equipment, switches, wiring, cabling, power sources, shelters, or
cabinets associated with that tower. It includes structures that are
constructed solely or primarily for any wireless communications
service, such as, but not limited to, private, broadcast, and public
safety services, as well as fixed wireless services such as microwave
backhaul.
(c) 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.
(d) A modification of an eligible support structure would result in
a substantial change in the physical dimension of such structure if
(1) The proposed modification would increase the existing height of
the support structure by more than 10%, or by the height of one
additional antenna array with separation from the nearest existing
antenna not to exceed twenty feet, whichever is greater, except that
the proposed modification may exceed the size limits set forth in this
paragraph if necessary to avoid interference with existing antennas; or
(2) The proposed modification would involve the installation of
more than the standard number of new equipment cabinets for the
technology involved, not to exceed four, or more than one new equipment
shelter; or
(3) The proposed modification would involve adding an appurtenance
to the body of the support structure that would protrude from the edge
of the support structure more than twenty feet, or more than the width
of the support structure at the level of the appurtenance, whichever is
greater, except that the proposed modification may exceed the size
limits set forth in this paragraph if necessary to shelter the antenna
from inclement weather or to connect the antenna to the support
structure via cable; or
(4) The proposed modification would involve excavation outside the
current structure site, defined as the current boundaries of the leased
or owned property surrounding the structure and any access or utility
easements currently related to the site.
PART 17--CONSTRUCTION, MARKING, AND LIGHTING OF ANTENNA STRUCTURES
0
4. The authority citation for part 17 continues to read as follows:
Authority: Secs. 4, 303, 48 Stat. 1066, 1082, as amended; 47
U.S.C. 154, 303. Interpret or apply secs. 301, 309, 48 Stat. 1081,
1085 as amended; 47 U.S.C. 301, 309.
0
5. Amend Sec. 17.4 by revising paragraphs (c)(1)(v) and (vi); and add
paragraph (c)(1)(vii) to read as follows:
Sec. 17.4 Antenna structure registration.
* * * * *
(c) * * *
(1) * * *
(v) For any other change that does not alter the physical
structure, lighting, or geographic location of an existing structure;
(vi) For construction, modification, or replacement of an antenna
structure on Federal land where another Federal agency has assumed
responsibility for evaluating the potentially significant environmental
effect of the proposed antenna structure on the quality of the human
environment and for invoking any required environmental impact
statement process, or for any other structure where another Federal
agency has assumed such responsibilities pursuant to a written
agreement with the Commission. See Sec. 1.1311(e) of this chapter; or
(vii) For any antenna structure that meets all of the following
criteria:
(A) The antenna structure will be in use for no longer than 60
days;
(B) Construction of the antenna structure requires the filing of
Form 7460-1 with the FAA;
(C) The antenna structure does not require marking or lighting
pursuant to FAA regulations;
(D) The antenna structure will be less than 200 feet in height;
(E) The antenna structure will involve either no excavation or
excavation where the depth of previous disturbance exceeds the proposed
construction depth (excluding proposed footings and other anchoring
mechanisms) by at least two feet; and
(F) Construction of the antenna structure does not require the
filing of an Environmental Assessment pursuant to Sec. 1.1307 of this
chapter.
* * * * *
[FR Doc. 2013-28349 Filed 12-4-13; 8:45 am]
BILLING CODE 6712-01-P