[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

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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

[[Page 73164]]

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