[Federal Register Volume 80, Number 5 (Thursday, January 8, 2015)]
[Rules and Regulations]
[Pages 1238-1271]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-28897]



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Vol. 80

Thursday,

No. 5

January 8, 2015

Part IV





 Federal Communications Commission





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47 CFR Parts 1 and 17





 Acceleration of Broadband Deployment by Improving Wireless Facilities 
Siting Policies; Final Rule

  Federal Register / Vol. 80 , No. 5 / Thursday, January 8, 2015 / 
Rules and Regulations  

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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 14-153]


Acceleration of Broadband Deployment by Improving Wireless 
Facilities Siting Policies

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) adopts rules to update and tailor the manner in which it 
evaluates the impact of proposed deployments of wireless infrastructure 
on the environment and historic properties. The Commission also adopts 
rules to clarify and implement statutory requirements applicable to 
State and local governments in their review of wireless infrastructure 
siting applications, and it adopts an exemption from its environmental 
public notification process for towers that are in place for only short 
periods of time. Taken together, these steps will reduce the cost and 
delays associated with facility siting and construction, and thereby 
facilitate the delivery of more wireless capacity in more locations to 
consumers throughout the United States.

DATES: Effective February 9, 2015, except for Sec.  1.40001, which 
shall be effective April 8, 2015; however, Sec. Sec.  1.40001(c)(3)(i), 
1.40001(c)(3)(iii), 1.140001(c)(4), and 17.4(c)(1)(vii), which have new 
information collection requirements, will not be effective until 
approved by the Office of Management and Budget (OMB). The Commission 
will publish a document in the Federal Register announcing OMB approval 
and the relevant effective date.

FOR FURTHER INFORMATION CONTACT: Peter Trachtenberg, Spectrum and 
Competition Policy Division, Wireless Telecommunications Bureau, (202) 
418-7369, email [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order (R&O), WT Docket Nos. 13-238, 13-32; WC Docket No. 11-59; FCC 
14-153, adopted October 17, 2014 and released October 21, 2014. The 
full text of this document 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 R&O also may be obtained via the Commission's Electronic Comment 
Filing System (ECFS) by entering the docket number WT Docket 13-238. 
Additionally, the complete item is available on the Federal 
Communications Commission's Web site at http://www.fcc.gov.

I. NEPA and NHPA Review of Small Wireless Facilities

    1. The Commission first adopts measures to update its review 
processes under the National Environmental Policy Act of 1969 (NEPA) 
and section 106 of the National Historic Preservation Act of 1966 (NHPA 
or section 106), with a particular emphasis on accommodating new 
wireless technologies that use smaller antennas and compact radio 
equipment to provide mobile voice and broadband service. These 
technologies, including distributed antenna systems (DAS), small cells, 
and others, can be deployed on a variety of non-traditional structures 
such as utility poles, as well as on rooftops and inside buildings, to 
enhance capacity or fill in coverage gaps. Updating the Commission's 
environmental and historic preservation rules will enable these 
innovations to flourish, delivering more broadband service to more 
communities, while reducing the need for potentially intrusive new 
construction and safeguarding the values the rules are designed to 
protect.
    2. The Commission's environmental and historic preservation rules 
have traditionally been directed toward the deployment of macrocells on 
towers and other tall structures. Since 1974, these rules have excluded 
collocations of antennas from most of the requirements under the 
Commission's NEPA review process, recognizing the benefits to the 
environment and historic properties from the use of existing support 
structures over the construction of new structures. These exclusions 
have limitations. The collocation exclusion under NEPA, which was first 
established in 1974, on its face encompasses only deployments on 
existing towers and buildings, as these were the only support 
structures widely used 40 years ago, and does not encompass 
collocations on existing utility poles, for example. The collocation 
exclusions in the Commission's process for historic preservation review 
under section 106 do not consider the scale of small wireless facility 
deployments.
    3. Thus, while small wireless technologies are increasingly 
deployed to meet the growing demand for high mobile data speeds and 
ubiquitous coverage, the Commission's rules and processes under NEPA 
and section 106, even as modified over time, have not reflected those 
technical advances. Accordingly, the Commission concludes that it will 
serve the public interest to update its environmental and historic 
preservation rules in large measure to account for innovative small 
facilities, and the Commission takes substantial steps to advance the 
goal of widespread wireless deployment, including clarifying and 
amending its categorical exclusions. The Commission concludes that 
these categorical exclusions, as codified in Section 1.1306(c) and Note 
1 of its rules, do not have the potential for individually or 
cumulatively significant environmental impacts. The Commission finds 
that these clarifications and amendments will serve both the industry 
and the conservation values its review process was intended to protect. 
These steps will eliminate many unnecessary review processes and the 
sometimes cumbersome compliance measures that accompany them, relieving 
the industry of review process requirements in cases where they are not 
needed. These steps will advance the goal of spurring efficient 
wireless broadband deployment while also ensuring that the Commission 
continues to protect environmental and historic preservation values.

A. NEPA Categorical Exclusions

1. Regulatory Background
    4. Section 1.1306 (Note 1) clarifies that the requirement to file 
an Environmental Assessment (EA) under section 1.1307(a) generally does 
not apply to ``the mounting of antenna(s) on an existing building or 
antenna tower'' or to the installation of wire or cable in an existing 
underground or aerial corridor, even if an environmentally sensitive 
circumstance identified in section 1.1307(a) is present. Note 1 
reflects a preference first articulated by the Commission in 1974, and 
codified into Note 1 in 1986, that ``[t]he use of existing buildings, 
towers or corridors is an environmentally desirable alternative to the 
construction of new facilities and is encouraged.''

[[Page 1239]]

2. Antennas Mounted on Existing Buildings and Towers
a. Clarification of ``Antenna''
    5. The Commission first clarifies that the term ``antenna'' as used 
in Note 1 encompasses all on-site equipment associated with the 
antenna, including transceivers, cables, wiring, converters, power 
supplies, equipment cabinets and shelters, and other comparable 
equipment. The Commission concludes that this is the only logically 
consistent interpretation of the term, as associated equipment is a 
standard part of such collocations, and the antennas subject to NEPA 
review cannot operate without it. Thus, interpreting the term 
``antenna'' as omitting associated equipment would eviscerate the 
categorical exclusion by requiring routine NEPA review for nearly every 
collocation. Such an interpretation would frustrate the categorical 
exclusion's purpose. The Commission also notes that its interpretation 
of ``antenna'' in this context is consistent with how the Commission 
has defined the term ``antenna'' in the comparable context of its 
process for reviewing effects of proposed deployments on historic 
properties. Specifically, the Commission's section 106 historic 
preservation review is governed by two programmatic agreements, and in 
both, the term ``antenna'' encompasses all associated equipment.
    6. Further, if associated equipment presented significant concerns, 
the Commission would expect that otherwise excluded collocations that 
included such equipment would, at some point over the past 40 years, 
have been subject to environmental objections or petitions to deny. The 
Commission is unaware of any such objections or petitions directed at 
backup generators or any other associated equipment, or of any past EAs 
that found any significant environmental effect from such equipment. 
The Commission finds some commenters' generalized assertions of a risk 
of environmental effects to be unpersuasive, and the Commission 
reaffirms that the collocations covered by Note 1, including the 
collocation of associated equipment addressed by its clarification, 
will not individually or cumulatively have a significant effect on the 
human environment. While Alexandria et al. submit a declaration from 
Joseph Monaco asserting that ``[m]inor additions to existing facilities 
could have significant effects even if only incremental to past 
disturbances,'' the Commission finds this position is inconsistent with 
the Commission's finding that the mounting of antennas on existing 
towers and buildings will not have significant effects, and with the 
Commission's experience administering the NEPA process, in which a 
collocation has never been identified by the Commission or the public 
to have caused a significant environmental effect. The Commission 
further notes that the proffered examples appear to confuse 
consideration under the Commission's NEPA process with review under 
local process, which the Commission does not address here. To the 
extent that rare circumstances exist where ``even the smallest change 
could result in a significant effect, based on the intrinsic 
sensitivity of a particular resource,'' the Commission concludes that 
such extraordinary circumstances are appropriately addressed through 
sections 1.1307(c) and (d), as necessary.
    7. The Commission finds unpersuasive Tempe's argument that the NEPA 
categorical exclusion for collocation should not encompass backup 
generators in particular. Tempe argues that generators cause ``fumes, 
noise, and the potential for exposure to hazardous substances if there 
is a leak or a spill'' and ``should not be allowed to be installed 
without the appropriate oversight.'' The Wireless Telecommunications 
Bureau addressed all of these potential impacts in its Final 
Programmatic Environmental Assessment for the Antenna Structure 
Registration Program (PEA), and did not find any to be significant. 
Tempe's own comments, moreover, confirm that backup generators are 
already subject to extensive local, State, and Federal regulation, 
suggesting that further oversight from the Commission would not 
meaningfully augment existing environmental safeguards. In assessing 
environmental effect, an agency may factor in an assumption that the 
action is performed in compliance with other applicable regulatory 
requirements in the absence of a basis in the record beyond mere 
speculation that the action threatens violations of such requirements. 
Tempe's comments support the Commission's conclusion that such 
regulations applicable to backup generators address Tempe's concerns. 
The Commission finds that cell sites with such generators will rarely 
if ever be grouped in sufficient proximity to present a risk of 
cumulative effects.
    8. The Commission finds no reason to interpret ``antenna'' in the 
Note 1 NEPA collocation categorical exclusion to omit backup generators 
or other kinds of backup power equipment. The Commission finds that the 
term ``antenna'' as used in the categorical exclusion should be 
interpreted to encompass the on-site equipment associated with the 
antenna, including backup power sources. Further, the need for such 
power sources at tower sites is largely undisputed, as backup power is 
critical for continued service in the event of natural disasters or 
other power disruptions--times when the need and demand for such 
service is often at its greatest. The Commission amends Note 1 to 
clarify that the categorical exclusion encompasses equipment associated 
with the antenna, including the critical component of backup power.
    9. Finally, the Commission notes that sections 1.1306(b)(1)-(3) and 
1.1307(c) and (d) of its rules provide for situations where 
environmental concerns are presented and, as called for by the 
requirement that categorical exclusions include consideration of 
extraordinary circumstances, closer scrutiny and potential additional 
environmental review are appropriate. The Commission concludes that 
individual cases presenting extraordinary circumstances in which 
collocated generators or other associated equipment may have a 
significant effect on the environment, including cases in which closely 
spaced generators may have a significant cumulative effect or where the 
deployment of such generators would violate local codes in a manner 
that raises environmental concerns, will be adequately addressed 
through these provisions.
b. Antennas Mounted in the Interior of Buildings
    10. The Commission clarifies that the existing NEPA categorical 
exclusion for mounting antennas ``on'' existing buildings applies to 
installations in the interior of existing buildings. An antenna mounted 
on a surface inside a building is as much ``on'' the building as an 
antenna mounted on a surface on the exterior, and the Commission finds 
nothing in the language of the categorical exclusion, in the adopting 
order, or in the current record supporting a distinction between 
collocations on the exterior or in the interior that would limit the 
scope of the categorical exclusion to exterior collocations. To the 
contrary, it is even more likely that indoor installations will have no 
significant environmental effects in the environmentally sensitive 
areas in which proposed deployments would generally trigger the need to 
prepare an EA, such as wilderness areas, wildlife preserves, and flood 
plains. The existing Note 1 collocation categorical exclusion reflects 
a finding that collocations do not individually or cumulatively have a 
significant effect on

[[Page 1240]]

the human environment, even if they would otherwise trigger the 
requirement of an EA under the criteria identified in sections 
1.1307(a)(1)-(3) and (5)-(8). The Commission finds that this conclusion 
applies equally or even more strongly to an antenna deployed inside a 
building than to one on its exterior, since the building's exterior 
structure would serve as a buffer against any effects. The Commission 
notes that the First Responder Network Authority (FirstNet), the 
National Telecommunications and Information Administration (NTIA), and 
other agencies have adopted categorical exclusions covering internal 
modifications and equipment additions inside buildings and structures. 
For example, in adopting categorical exclusions as part of its 
implementation of the Broadband Technology Opportunities Program, NTIA 
noted that excluding interior modifications and equipment additions 
reflects long-standing categorical exclusions and administrative 
records, including in particular ``the legacy categorical exclusions 
from the U.S. Department of Agriculture, U.S. Department of Homeland 
Security, and the Federal Emergency Management Agency.'' While a 
Federal agency cannot apply another agency's categorical exclusion to a 
proposed Federal action, it may substantiate a categorical exclusion of 
its own based on another agency's experience with a comparable 
categorical exclusion. This long-standing practice of numerous agencies 
that conduct comparable activities, reflecting experience that confirms 
the propriety of the categorical exclusion, provides further support 
for the conclusion that internal collocations will not individually or 
cumulatively have a significant effect on the human environment. With 
respect to Tempe's concern about generators being placed inside 
buildings as the result of collocations, the Commission relies on local 
building, noise, and safety regulations to address these concerns, and 
the Commission anticipates that such regulations will almost always 
require generators to be outside of any residential buildings where 
their use would present health or safety concerns or else place very 
strict requirements on any placement in the interior. The Commission 
finds it appropriate to amend Note 1 to clarify that the Note 1 
collocation categorical exclusion applies to the mounting of antennas 
in the interior of buildings as well as the exterior.
c. Antennas Mounted on Other Structures
    11. The Commission adopts its proposal to extend the categorical 
exclusion for collocations on towers and buildings to collocations on 
other existing man-made structures. The Commission concludes that 
deployments covered by this extension will not individually or 
cumulatively have a significant impact on the human environment. The 
Commission updates the categorical exclusion adopted as part of Note 1 
in 1986 to reflect the modern development of wireless technologies that 
can be collocated on a much broader range of existing structures. This 
measure will facilitate collocations and speed deployment of wireless 
broadband to consumers without significantly affecting the environment.
    12. In finding that it is appropriate to broaden the categorical 
exclusion contained in section 1.1306 Note 1 to apply to other 
structures, the Commission relies in part on its prior findings 
regarding the environmental effects of collocations. In implementing 
NEPA requirements in 1974, for example, the Commission found that 
mounting an antenna on an existing building or tower ``has no 
significant aesthetic effect and is environmentally preferable to the 
construction of a new tower, provided there is compliance with 
radiation safety standards.'' In revising its NEPA rules in 1986, the 
Commission found that antennas mounted on towers and buildings are 
among those deployments that will normally have no significant impact 
on the environment. The Commission notes in particular that 
collocations will typically add only marginal if any extra height to a 
structure, and that in 2011, in a proceeding addressing the 
Commission's NEPA requirements with respect to migratory birds, the 
Commission reaffirmed that collocations on towers and buildings are 
unlikely to have environmental effects and thus such collocations are 
categorically excluded from review for impact on birds. Further, given 
that towers and buildings are typically much taller than other man-made 
structures on which antennas will be collocated, the Commission expects 
that there will be even less potential for significant effects on birds 
from collocations on such other structures.
    13. In the Infrastructure NPRM, the Commission tentatively 
concluded that the same determination applies with regard to 
collocations on other structures such as utility poles and water 
towers. Numerous commenters support this determination, and opponents 
offer no persuasive basis to distinguish the environmental effects of 
collocations on antenna towers and buildings from the effects of 
collocations on other existing structures. Indeed, in this regard, the 
Commission notes that buildings and towers, which are already excluded 
under Note 1, are typically taller than structures such as utility 
poles and road signs. While some commenters raise concerns about 
possible water-tank contamination or driver distraction, these concerns 
do not present persuasive grounds to limit the categorical exclusion. 
Under sections 1.1306(a) and (b), collocations on structures such as 
water tanks and road signs are already categorically excluded from the 
obligation to file an EA unless they occur in the environmentally 
sensitive circumstances identified in sections 1.1307(a) or (b) (such 
as in wildlife preserves or flood plains). Nothing in the record leads 
the Commission to find that collocations in such sensitive areas that 
currently require EAs present greater risks of water tank contamination 
or driver distraction than collocations outside such areas. For similar 
reasons, the Commission is also not persuaded by Springfield's argument 
that extending the categorical exclusion to other structures without 
``qualifying delimitations for how DAS facilities are defined and where 
they may be installed may have unacceptable impacts on historic and 
other sensitive neighborhoods.'' Springfield offers no argument to 
explain why the NEPA categorical exclusion for collocations on utility 
poles should be more restrictive than the exclusion for collocations on 
buildings. Moreover, the Commission notes that the NEPA categorical 
exclusion the Commission addresses here does not exclude the proposed 
collocation from NHPA review for effects on historic properties or 
historic districts.
    14. The Commission also notes that the exclusion from section 106 
review in the Collocation Agreement is not limited to collocations on 
towers and buildings but also specifically includes collocations on 
other existing non-tower structures. Further, the U.S. Fish and 
Wildlife Service has found collocations on existing non-tower 
structures to be environmentally desirable with regard to impacts on 
birds, noting that they will in virtually every circumstance have less 
impact than would construction of a new tower.
    15. Considering that collocating on these structures is necessary 
for broadband deployment, and in light of the environmental benefits of

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encouraging collocation rather than the construction of new structures, 
the Commission finds that extending the categorical exclusion to other 
structures advances the public interest and meets its obligations under 
NEPA.
3. Categorical Exclusion of Deployments in Communications or Utilities 
Rights-of-Way
    16. The Commission adopts a categorical exclusion for certain 
wireless facilities deployed in above-ground utility and communications 
rights-of-way. The Commission finds that such deployments will not 
individually or cumulatively have a significant effect on the 
environment. Given that DAS and small-cell nodes are often deployed in 
communications and utilities rights-of-way, the Commission concludes 
that the categorical exclusion will significantly advance the 
deployment of such facilities in a manner that safeguards environmental 
values.
    17. Specifically, this categorical exclusion, which the Commission 
incorporates into its rules as section 1.1306(c), covers construction 
of wireless facilities, including deployments on new or replacement 
poles, only if: (1) The facility will be located in a right-of-way that 
is designated by a Federal, State, local, or Tribal government for 
communications towers, above-ground utility transmission or 
distribution lines, or any associated structures and equipment; (2) the 
right-of-way is in active use for such designated purposes; and (3) the 
facility will not constitute a substantial increase in size over 
existing support structures that are located in the right-of-way within 
the vicinity of the proposed construction.
    18. Although the Commission sought comment, in the Infrastructure 
NPRM, on whether to adopt a categorical exclusion that covered 
facilities also located within fifty feet of a communications or 
utility right-of-way, similar to the exclusion from section 106 review 
in section III.E. of the National Programmatic Agreement (NPA), the 
Commission limits its NEPA categorical exclusion to facilities deployed 
within existing communications and utility rights-of-way. Industry 
commenters that support applying the categorical exclusion to 
deployments within fifty feet of a right-of-way do not explain why the 
conclusion that deployments in the right-of-way will not have a 
significant effect on the human environment also apply outside of a 
right-of-way. Such ground would not necessarily be in active use for 
the designated purposes, and there could well be a greater potential 
outside the right-of-way for visual impact or new or significant ground 
disturbance that might have the potential for significant environmental 
effects. Finally, the record supports the conclusion that a categorical 
exclusion limited to deployments within the rights-of-way will address 
most of the deployments that would be covered by a categorical 
exclusion that also encompassed deployments nearby. Sprint, for 
example, emphasizes that ``many DAS and small cells will be attached to 
existing structures and installed within utility rights-of-way 
corridors.''
    19. For purposes of this categorical exclusion, the Commission 
defines a substantial increase in size in similar fashion to how it is 
defined in the Collocation Agreement. Thus, a deployment would result 
in a substantial increase in size if it would: (1) Exceed the height of 
existing support structures that are located in the right-of-way within 
the vicinity of the proposed construction by more than 10% or twenty 
feet, whichever is greater; (2) involve the installation of more than 
four new equipment cabinets or more than one new equipment shelter; (3) 
add an appurtenance to the body of the structure that would protrude 
from the edge of the structure more than twenty feet, or more than the 
width of the structure at the level of the appurtenance, whichever is 
greater (except that the deployment may exceed this size limit if 
necessary to shelter the antenna from inclement weather or to connect 
the antenna to the tower via cable); or (4) involve excavation outside 
the current site, defined as the area that is within the boundaries of 
the leased or owned property surrounding the deployment or that is in 
proximity to the structure and within the boundaries of the utility 
easement on which the facility is to be deployed, whichever is more 
restrictive.
    20. The Commission notes that it has found a similar test 
appropriate in other contexts, including under its environmental rules. 
In particular, the first three criteria that the Commission specifies 
above to define the scope of the NEPA rights-of-way categorical 
exclusion also define the scope of the rights-of-way exclusion from 
historic preservation review under the NPA. Similarly, for purposes of 
Antenna Structure Registration, the Commission does not require 
environmental notice for a proposed tower replacement if, among other 
criteria, the deployment will not cause a substantial increase in size 
under the first three criteria of the Collocation Agreement, and there 
will be no construction or excavation more than 30 feet beyond the 
existing antenna structure property. Further, given that the industry 
now has almost a decade of experience applying this substantial 
increase test to construction in the rights-of-way under the NPA 
exclusion, and in light of the efficiencies to be gained from using a 
similar test here, the Commission finds the Collocation Agreement test, 
as modified here, to be appropriate in this context.
    21. The Commission concludes that facilities subject to this 
categorical exclusion will not have a significant effect on the 
environment either individually or cumulatively, and that the 
categorical exclusion is appropriate. In the NPA Report and Order, 70 
FR 556 Jan 4, 2005, the Commission found that excluding construction in 
utilities or communications rights-of-way from historic preservation 
review was warranted because, ``[w]here such structures will be located 
near existing similar poles, . . . the likelihood of an incremental 
adverse impact on historic properties is minimal.'' The Commission 
finds that the potential incremental impacts on the environment are 
similarly minimal. Indeed, deploying these facilities should rarely 
involve more than minimal new ground disturbance, given that 
constructing the existing facilities likely disturbed the ground 
already and given the limitations on the size of any new poles. 
Moreover, any new pole will also cause minimal visual effect because by 
definition comparable structures must already exist in the vicinity of 
the new deployment in that right-of-way, and new poles covered by this 
categorical exclusion will not be substantially larger. Further, 
because such corridors are already employed for utility or 
communications uses, and the new deployments will be comparable in size 
to such existing uses, these additional uses are unlikely to trigger 
new NEPA concerns. Any such concerns would have already been addressed 
when such corridors were established, and the size of the deployments 
the Commission categorically excludes will not be substantial enough to 
raise the prospect of cumulative effects.
    22. The Commission also finds support for these conclusions in the 
categorical exclusions adopted by other agencies, including FirstNet. 
In establishing its own categorical exclusions, FirstNet noted as part 
of its Administrative Record that its anticipated activities in 
constructing a nationwide public safety broadband network would 
primarily include ``the installation of cables, cell towers, antenna 
collocations, buildings, and

[[Page 1242]]

power units,'' for example in connection with ``Aerial Plant/
Facilities,'' ``Towers,'' ``Collocations,'' ``Power Units,'' and 
``Wireless Telecommunications Facilit[ies.]'' It defined a ``Wireless 
Telecommunications Facility'' as ``[a]n installation that sends and/or 
receives radio frequency signals, including directional, omni-
directional, and parabolic antennas, structures, or towers (no more 
than 199 feet tall with no guy wires), to support receiving and/or 
transmitting devices, cabinets, equipment rooms, accessory equipment, 
and other structures, and the land or structure on which they are all 
situated.'' To address its NEPA obligations in connection with these 
activities, FirstNet adopted a number of categorical exclusions, 
including a categorical exclusion for ``[c]onstruction of wireless 
telecommunications facilities involving no more than five acres (2 
hectares) of physical disturbance at any single site.'' In adopting 
this categorical exclusion, FirstNet found that it was ``supported by 
long-standing categorical exclusions and administrative records. In 
particular, these include categorical exclusions from the U.S. 
Department of Commerce, U.S. Department of Agriculture, and U.S. 
Department of Energy.''
    23. The Commission finds that FirstNet's anticipated activities 
encompass the construction of wireless facilities and support 
structures in the rights-of-way, and are therefore comparable to the 
wireless facility deployments the Commission addresses here. Further, 
the Commission notes that the categorical exclusions adopted by 
FirstNet are broader in scope than the categorical exclusion the 
Commission adopts for facilities deployed within existing rights-of-
way. The Commission further notes that several other agencies have 
found it appropriate to categorically exclude other activities in 
existing rights-of-way unrelated to telecommunications.
    24. The Commission finds that the categorical exclusion addresses 
some concerns raised by municipalities, and the Commission finds that 
other concerns they raise are not relevant to the environmental review 
process. First, the Commission notes that the categorical exclusion it 
adopts addresses Coconut Creek's objection to above-ground deployments 
in areas with no above-ground infrastructure because the Commission 
limits it to rights-of-way in active use for above-ground utility 
structures or communications towers. Second, concerns about hazards to 
vehicular or pedestrian traffic are logically inapplicable. As the 
Commission noted in connection with deployments on structures other 
than communications towers and buildings, such concerns do not 
currently warrant the submission of an EA. Rather, EAs are routinely 
required for deployments in communications or utility rights-of-way 
only if they meet one of the criteria specified in section 1.1307(a) or 
(b). Deployments in the communications or utility rights-of-way have 
never been identified in the Commission's rules as an environmentally 
sensitive category; indeed, the use of such rights-of-way for antenna 
deployments is environmentally desirable as compared to deployments in 
other areas. Finally, the Commission finds it unnecessary to adopt 
Tempe's proposed limitation, whether it is properly understood as a 
proposal to categorically exclude only one non-substantial increase at 
a particular site or in the same general vicinity, as such limitation 
has proven unnecessary in the context of historic preservation review. 
Having concluded that wireless facility deployments in communications 
or utility rights-of-way have no potentially significant environmental 
effects individually or cumulatively, the Commission finds no basis to 
limit the number of times such a categorical exclusion is used either 
at a particular site or in the same general vicinity. Indeed, the 
categorical exclusion encourages an environmentally responsible 
approach to deployment given that, as Note 1 and section 1.1306(c) make 
clear, the use of existing corridors ``is an environmentally desirable 
alternative to the construction of new facilities.'' And, apart from 
environmental considerations, it would be contrary to the public 
interest to unnecessarily limit the application of this categorical 
exclusion.
    25. To the extent that commenters propose extending the Note 1 
aerial and underground corridor categorical exclusion to include 
components of telecommunications systems other than wires and cables, 
the Commission declines to do so. The Commission finds that the new 
section 1.1306(c) categorical exclusion the Commission adopts for 
deployments in communications or utilities rights-of-way will provide 
substantial and appropriate relief, and that the record in this 
proceeding does not justify a further expansion of the Note 1 
categorical exclusion. Further, the existing Note 1 categorical 
exclusion for wires and cables in underground and aerial corridors is 
broader than the categorical exclusion for installations on existing 
buildings or antenna towers because it is not limited by section 
1.1307(a)(4) (section 106 review) or 1.1307(b) (RF emissions), while 
collocations on existing buildings or towers are subject to these 
provisions. The Commission notes that even parties advocating an 
extension of the categorical exclusion for installation of wire and 
cable to additional telecommunications components concede that the 
extension should not apply to review of RF emissions exposure, as the 
existing categorical exclusion does. This distinction underscores that 
the existing categorical exclusion of cables and wires in aerial and 
underground corridors is based on an analysis that does not directly 
apply to other communications facilities.

B. NHPA Exclusions

1. Regulatory Background
    26. Section 1.1307(a)(4) of the Commission's rules directs 
licensees and applicants, when determining whether a proposed action 
may affect historic properties, to follow the procedures in the rules 
of the Advisory Council on Historic Preservation (ACHP) as modified by 
the Collocation Agreement and the NPA, two programmatic agreements that 
took effect in 2001 and 2005, respectively. The Collocation Agreement 
excludes collocations on buildings or other non-tower structures 
outside of historic districts from routine section 106 review unless: 
(1) The structure is inside the boundary of a historic district, or it 
is within 250 feet of the boundary of a historic district and the 
antenna is visible from ground level within the historic district; (2) 
the structure is a designated National Historic Landmark or is listed 
in or eligible for listing in the National Register of Historic Places 
(National Register); (3) the structure is over 45 years old; or (4) the 
proposed collocation is the subject of a pending complaint alleging 
adverse effect on historic properties.
2. New Exclusions
    27. In addition to seeking comment on whether the Commission should 
add an exclusion from section 106 review for DAS and small cells 
generally, the Infrastructure NPRM sought comment on whether to expand 
the existing categorical exclusion for collocations to cover 
collocations on structures subject to review solely because of the 
structure's age--that is, to deployments that are more than 45 years 
old but that are not (1) inside the boundary of a historic district, or 
within 250 feet of the boundary of a historic district; (2) located on 
a structure that is a

[[Page 1243]]

designated National Historic Landmark or is listed in or eligible for 
listing in the National Register; or (3) the subject of a pending 
complaint alleging adverse effect on historic properties.
    28. As an initial matter, the Commission finds no basis to hold 
categorically that small wireless facilities such as DAS and small 
cells are not Commission undertakings. While PCIA argues that small 
facilities could be distinguished, it does not identify any 
characteristic of such deployments that logically removes them from the 
analysis applicable to other facilities. Having determined that DAS and 
small cell deployments constitute Federal undertakings subject to 
section 106, the Commission considers its authority based on section 
800.3(a)(1) of ACHP's rules to exclude such small facility deployments 
from section 106 review. It is clear under the terms of section 
800.3(a)(1) that a Federal agency may determine that an undertaking is 
a type of activity that does not have the potential to cause effects to 
historic properties, assuming historic properties were present, in 
which case, ``the agency has no further obligations under section 106 
or this part [36 part 800, subpart B].''
    29. The commenters that propose a general exclusion for DAS and 
small cell deployments assert that under any circumstances, such 
deployments have the potential for at most minimal effects, but they do 
not provide evidence to support such a broad conclusion. Moreover, 
several commenters, including several SHPOs, express concerns that such 
deployments do have the potential for effects in some cases. The 
Commission cannot find on this record that DAS and small-cell 
facilities qualify for a general exclusion, and the Commission 
therefore concludes, after consideration of the record, that any broad 
exclusion of such facilities must be implemented at this time through 
the development of a ``program alternative'' as defined under ACHP's 
rules. The Commission is committed to making deployment processes as 
efficient as possible without undermining the values that section 106 
protects. The Commission staff are working on a program alternative 
that, through consultation with stakeholders, will ensure thorough 
consideration of all applicable interests, and will culminate in a 
system that eliminates additional bureaucratic processes for small 
facilities to the greatest extent possible consistent with the purpose 
and requirements of section 106.
    30. The Commission further concludes that it is in the public 
interest to immediately adopt targeted exclusions from its section 106 
review process that will apply to small facilities (and in some 
instances larger antennas) in many circumstances and thereby 
substantially advance the goal of facilities deployment. The Commission 
may exclude activities from section 106 review upon determining that 
they have no potential to cause effects to historic properties, 
assuming such properties are present. As discussed in detail below, the 
Commission finds two targeted circumstances that meet this test, one 
applicable to utility structures and the other to buildings and any 
other non-tower structures. Pursuant to these findings the Commission 
establishes two exclusions.
    31. First, the Commission excludes collocations on existing utility 
structures, including utility poles and electric transmission towers, 
to the extent they are not already excluded in the Collocation 
Agreement, if: (1) The collocated antenna and associated equipment, 
when measured together with any other wireless deployment on the same 
structure, meet specified size limitations; and (2) the collocation 
will involve no new ground disturbance. Second, the Commission excludes 
collocations on a building or other non-tower structure, to the extent 
they are not already excluded in the Collocation Agreement, if: (1) 
There is an existing antenna on the building or other structure; (2) 
certain requirements of proximity to the existing antenna are met, 
depending on the visibility and size of the new deployment; (3) the new 
antenna will comply with all zoning conditions and historic 
preservation conditions on existing antennas that directly mitigate or 
prevent effects, such as camouflage or concealment requirements; and 
(4) the deployment will involve no new ground disturbance. With respect 
to both of these categories--utility structures and other non-tower 
structures--the Commission extends the exclusion only to deployments 
that are not (1) inside the boundary of a historic district, or within 
250 feet of the boundary of a historic district; (2) located on a 
structure that is a designated National Historic Landmark or is listed 
in or eligible for listing in the National Register; or (3) the subject 
of a pending complaint alleging adverse effect on historic properties. 
In other words, these exclusions address collocations on utility 
structures and other non-tower structures where historic preservation 
review would otherwise be required under existing rules only because 
the structures are more than 45 years old. The Commission's action here 
is consistent with its determination in the NPA to apply a categorical 
exclusion based upon a structure's proximity to a property listed in or 
eligible to be listed in the National Register rather than whether a 
structure is over 45 years old regardless of eligibility. Consistent 
with section 800.3(a)(1), the Commission finds collocations meeting the 
conditions stated above have no potential to affect historic properties 
even if such properties are present. The Commission nevertheless finds 
it appropriate to limit the adopted exclusions. Given the sensitivities 
articulated in the record, particularly those from the National 
Conference of State Historic Preservation Officers (NCSHPO) and other 
individual commenting SHPOs, regarding deployments in historic 
districts or on historic properties, the Commission concludes that any 
broader exclusions require additional consultation and consideration, 
and are more appropriately addressed and developed through the program 
alternative process that Commission staff have already begun.
a. Collocations on Utility Structures
    32. Pursuant to section 800.3(a)(1) of ACHP's rules, the Commission 
finds that antennas mounted on existing utility structures have no 
potential for effects on historic properties, assuming such properties 
are present, where the deployment meets the following conditions: (1) 
The antenna and any associated equipment, when measured together with 
any other wireless deployments on the same structure, meets specified 
size limitations; and (2) the deployment will involve no new ground 
disturbance. Notwithstanding this finding of no potential for effects 
even assuming historic properties are present, the Commission limits 
this exclusion (as described above) in light of the particular 
sensitivities related to historic properties and districts. 
Accordingly, this exclusion does not apply to deployments that are (1) 
inside the boundary of a historic district, or within 250 feet of the 
boundary of a historic district; (2) located on a structure that is a 
designated National Historic Landmark or is listed in or eligible for 
listing in the National Register; or (3) the subject of a pending 
complaint alleging adverse effect on historic properties. In other 
words, this new targeted exclusion addresses collocations on utility 
structures where historic preservation review would otherwise be 
required under existing rules only because the structures are more than 
45 years old.

[[Page 1244]]

    33. For purposes of this exclusion, the Commission defines utility 
structures as utility poles or electric transmission towers in active 
use by a ``utility'' as defined in section 224 of the Communications 
Act, but not including light poles, lamp posts, and other structures 
whose primary purpose is to provide public lighting. Utility structures 
are, by their nature, designed to hold a variety of electrical, 
communications, or other equipment, and they already hold such 
equipment. Their inherent characteristic thus incorporates the support 
of attachments, and their uses have continued to evolve with changes in 
technology since they were first used in the mid-19th century for 
distribution of telegraph services. Indeed, the Commission notes that 
other, often larger facilities are added to utility structures without 
review. For example, deployments of equipment supporting unlicensed 
wireless operations like Wi-Fi access occur without the Commission's 
section 106 review in any case, as do installations of non-
communication facilities such as municipal traffic management equipment 
or power equipment such as electric distribution transformers. The 
addition of DAS or small cell facilities to these structures is 
therefore fully consistent with their existing use.
    34. While the potential for effects from any deployments on utility 
structures is remote at most, the Commission concludes that the 
additional conditions described above support a finding that there is 
no such potential at all, assuming the presence of historic properties. 
First, the Commission limits the size of equipment covered by this 
exclusion. In doing so, the Commission draws on a PCIA proposal, which 
includes separate specific volumetric limits for antennas and for 
enclosures of associated equipment, but the Commission modifies the 
definition in certain respects to meet the standard in ACHP's rules 
that the undertaking must have no potential for effects. Specifically, 
the Commission provides that the deployment may include covered antenna 
enclosures no more than three cubic feet in volume per enclosure, or 
exposed antennas that fit within an imaginary enclosure of no more than 
three cubic feet in volume per imaginary enclosure, up to an aggregate 
maximum of six cubic feet. The Commission further provides that all 
equipment enclosures (or imaginary enclosures) associated with the 
collocation on any single structure, including all associated equipment 
but not including separate antennas or enclosures for antennas, must be 
limited cumulatively to seventeen cubic feet in volume. Further, 
collocations under this rule will be limited to collocations that cause 
no new ground disturbance.
    35. Because the Commission finds that multiple collocations on a 
utility structure could have a cumulative impact, the Commission 
further applies the size limits defined above on a cumulative basis 
taking into account all pre-existing collocations. Specifically, if 
there is a pre-existing wireless deployment on the structure, and any 
of this pre-existing equipment would remain after the collocation, then 
the volume limits apply to the cumulative volume of such pre-existing 
equipment and the new collocated equipment. Thus, for the new equipment 
to come under this exclusion, the sum of the volume of all pre-existing 
associated equipment that remains after the collocation and the new 
equipment must be no greater than seventeen cubic feet, and the sum of 
the volume of all collocated antennas, including pre-existing antennas 
that remain after the collocation, must be no greater than six cubic 
feet. The Commission further provides that the cumulative limit of 
seventeen cubic feet for wireless equipment applies to all equipment on 
the ground associated with an antenna on the structure as well as 
associated equipment physically on the structure. Thus, application of 
the limit is the same regardless of whether equipment associated with a 
particular deployment is deployed on the ground next to a structure or 
on the structure itself. While some commenters oppose an exclusion 
based solely on PCIA's volumetric definition, the Commission finds that 
the Commission's exclusion addresses their concerns. For example, Tempe 
and the CA Local Governments express concern that PCIA's definition 
would allow an unlimited number of ground-mounted cabinets. The 
Commission's approach provides that associated ground equipment must 
also come within the volumetric limit for equipment enclosures, 
however, and therefore does not allow for unlimited ground-based 
equipment. Further, because the Commission applies the size limit on a 
cumulative basis, the Commission's exclusion directly addresses 
concerns that the PCIA definition would allow multiple collocations 
that cumulatively exceed the volumetric limits. Consistent with a 
proposal by PCIA, the Commission finds that certain equipment should be 
omitted from the calculation of the equipment volume, including: (1) 
Vertical cable runs for the connection of power and other services, the 
volume of which may be impractical to calculate and which should in any 
case have no effect on historic properties, consistent with the 
established exclusion of cable in pre-existing aerial or underground 
corridors; (2) ancillary equipment installed by other entities that is 
outside of the applicant's ownership or control, such as a power meter 
installed by the electric utility in connection with the wireless 
deployment, and (3) comparable equipment from pre-existing wireless 
deployments on the structure.
    36. To meet the standard under section 800.3(a)(1), the Commission 
further imposes a requirement of no new ground disturbance, consistent 
for the most part with the NPA standard. Under the NPA standard, no new 
ground disturbance occurs so long as the depth of previous disturbance 
exceeds the proposed construction depth (excluding footings and other 
anchoring mechanisms) by at least two feet. The Commission finds that 
footings and anchorings should be included in this context to ensure no 
potential for effects. Therefore, the Commission's finding is limited 
to cases where there is no ground disturbance or the depth and width of 
previous disturbance exceeds the proposed construction depth and width, 
including the depth and width of any proposed footings or other 
anchoring mechanisms, by at least two feet. Some Tribal Nations have 
indicated that exclusions of small facilities from section 106 review 
might be reasonable if there is no excavation but that any ground 
disturbance would be cause for concern. The Commission finds that the 
restrictions it places on both of the Commission's new section 106 
exclusions are sufficient to address this concern and ensure that there 
is no potential for effects on historic properties of Tribal religious 
or cultural significance. These restrictions include a strict 
requirement for both exclusions of no new ground disturbance and 
restrictions on the size and placement of equipment. Furthermore, both 
exclusions are limited to collocations (and therefore do not include 
new or replacement support structures).
    37. Adoption of this exclusion will provide significant 
efficiencies in the section 106 process for DAS and small-cell 
deployments. Many DAS and small-cell installations involve collocations 
on utility structures. PCIA also estimates that excluding collocations 
on these wooden poles would increase the estimated number of excluded 
collocation structures by a factor of 10--which would dramatically 
advance wireless infrastructure deployment

[[Page 1245]]

without impacting historic preservation values.
b. Collocations on Buildings and Other Non-Tower Structures
    38. Verizon proposes an exclusion for collocations on any building 
or other structure over 45 years old if: (1) The antenna will be added 
in the same location as other antennas previously deployed; (2) the 
height of the new antenna will not exceed the height of the existing 
antennas by more than three feet, or the new antenna will not be 
visible from the ground regardless of the height increase; and (3) the 
new antenna will comply with any requirements placed on the existing 
antennas by the State or local zoning authority or as a result of any 
previous historic preservation review process.
    39. Section 800.3(a)(1) of ACHP rules authorizes an exclusion only 
where the undertaking does not have the potential to cause effects on 
historic properties, assuming such historic properties are present. 
While the Commission concludes that this standard allows for an 
exclusion applicable to many collocations on buildings and other 
structures that already house collocations, the Commission finds 
insufficient support in the record to adopt Verizon's proposed 
exclusion in its entirety. While Verizon states that adding an antenna 
to a building within the scope of its proposal would not have an effect 
that differs from those caused by existing antennas, the Commission 
must also consider the cumulative effects of additional deployments on 
the integrity of a historic property to the extent that they add 
incompatible visual elements. Further, while Verizon relies heavily on 
the requirement that any new deployment must meet the same conditions 
as the existing deployment, the Commission cannot assume that 
conditions placed on a previous deployment are always sufficient to 
prevent any effects, particularly in the event of multiple additional 
deployments. Indeed, it is often the case that mitigating conditions 
are designed to offset effects rather than eliminate or reduce them 
entirely. The Commission concludes that with certain modifications to 
Verizon's proposal, deployments covered by the test would have no 
potential for effects.
    40. Specifically, the Commission finds that collocations on 
buildings or other non-tower structures over 45 years old will have no 
potential for effects on historic properties if: (1) There is an 
existing antenna on the building or structure; (2) one of the following 
criteria is met: (a) The new antenna will not be visible from any 
adjacent streets or surrounding public spaces and will be added in the 
same vicinity as a pre-existing antenna; (b) the new antenna will be 
visible from adjacent streets or surrounding public spaces, provided 
that (i) it will replace a pre-existing antenna, (ii) the new antenna 
will be located in the same vicinity as the pre-existing antenna, (iii) 
the new antenna will be visible only from adjacent streets and 
surrounding public spaces that also afford views of the pre-existing 
antenna, (iv) the new antenna will not be more than three feet larger 
in height or width (including all protuberances) than the pre-existing 
antenna, and (v) no new equipment cabinets will be visible from the 
adjacent streets or surrounding public spaces; or (c) the new antenna 
will be visible from adjacent streets or surrounding public spaces, 
provided that (i) it will be located in the same vicinity as a pre-
existing antenna, (ii) the new antenna will be visible only from 
adjacent streets and surrounding public spaces that also afford views 
of the pre-existing antenna, (iii) the pre-existing antenna was not 
deployed pursuant to the exclusion based on this finding, (iv) the new 
antenna will not be more than three feet larger in height or width 
(including all protuberances) than the pre-existing antenna, and (v) no 
new equipment cabinets will be visible from the adjacent streets or 
surrounding public spaces; (3) the new antenna will comply with all 
zoning conditions and historic preservation conditions applicable to 
existing antennas in the same vicinity that directly mitigate or 
prevent effects, such as camouflage or concealment requirements; and 
(4) the deployment of the new antenna will involve no new ground 
disturbance. Notwithstanding its finding of no potential for effects 
even assuming historic properties are present, the Commission limits 
this exclusion in light of many parties' particular sensitivities 
related to historic properties and districts. As with the exclusion for 
collocations on utility poles, this exclusion does not apply to 
deployments that are (1) inside the boundary of a historic district, or 
within 250 feet of the boundary of a historic district; (2) located on 
a structure that is a designated National Historic Landmark or is 
listed in or eligible for listing in the National Register; or (3) the 
subject of a pending complaint alleging adverse effect on historic 
properties. In other words, this new targeted exclusion addresses 
collocations on non-tower structures where historic preservation review 
would otherwise be required under existing rules only because the 
structures are more than 45 years old.
    41. Consistent with the Verizon proposal, the Commission requires 
that there must already be an antenna on the building or other 
structure and that the new antenna be in the same vicinity as the pre-
existing antenna. For this purpose, a non-visible new antenna is in the 
``same vicinity'' as a pre-existing antenna if it will be collocated on 
the same rooftop, fa[ccedil]ade or other surface, and a visible new 
antenna is in the ``same vicinity'' as a pre-existing antenna if it is 
on the same rooftop, fa[ccedil]ade, or other surface and the 
centerpoint of the new antenna is within 10 feet of the centerpoint of 
the pre-existing antenna. Combined with the other criteria discussed 
below, this requirement is designed to assure that a new antenna will 
not have any incremental effect on historic properties, assuming they 
exist, as there will be no additional incompatible elements.
    42. In addition to Verizon's proposed requirement that the 
deployment be in the same vicinity as an existing antenna, the 
Commission also adopts a condition of no-visibility from adjoining 
streets or any surrounding public spaces, with two narrow exceptions. 
For the general case, the Commission's no-effects finding will apply 
only to a new antenna that is not visible from any adjacent streets or 
surrounding public spaces and is added in the same vicinity as a pre-
existing antenna. In adopting this standard, the Commission is informed 
by the record and also in part by General Services Administration (GSA) 
Preservation Note 41, entitled ``Administrative Guide for Submitting 
Antenna Projects for External Review.'' Preservation Note 41 recommends 
that an agency may recommend a finding of no effect where the antenna 
will not be visible from the surrounding public space or streets and 
the antenna will not harm original historic materials or their 
replacements-in-kind. The Commission notes that, in addition to the 
measures ensuring that there are no incremental visual effects from 
covered facilities, the Commission's finding of no effects in this case 
is also implicitly based on a requirement, as the GSA Note recommends, 
that the deployment will not harm original historic materials. Even 
assuming a building is historic, however, as required by section 
800.3(a)(1), this ``no harm'' criterion would be satisfied by ensuring 
that any anchoring on the building was not performed on the historic 
materials of the property or their replacements-in-kind. It is 
therefore unnecessary to expressly impose a ``no harm'' condition

[[Page 1246]]

in this case, as the exclusion the Commission adopts does not apply to 
historic properties. Necessarily, any anchoring of deployments subject 
to the exclusion will not be in any historic materials of the property. 
The Commission also notes that, under the criteria the Commission 
adopts, the deployment will occur only where another antenna has 
already been reviewed under section 106 and approved for deployment in 
the same vicinity, and any conditions imposed on that prior deployment 
to minimize or eliminate historic impact, including specifications of 
where, how, or under what conditions to construct, are part of the 
Commission's ``no effect'' finding and would apply as a condition of 
the exclusion.
    43. The Commission makes a narrow exception to the no-visibility 
requirement where the new antenna would replace an existing antenna in 
the same vicinity and where the addition of the new antenna would not 
constitute a substantial increase in size over the replaced antenna. In 
this situation, no additional incompatible visual element is being 
added, as one antenna is a substitution for the other. The Commission 
permits an insubstantial increase in size in this situation. For 
purposes of this criterion, the replacement facility would represent a 
substantial increase in size if it is more than three feet larger in 
height or width (including all protuberances) than the existing 
facility, or if it involves any new equipment cabinets that are visible 
from the street or adjacent public spaces. The Commission declines to 
adopt the NPA definition of ``substantial increase,'' which allows 
greater increases in height or width in some cases, because it applies 
to towers, not to antenna deployments, and it is therefore overbroad 
with respect to the replacement of an existing antenna. The Commission 
further notes that no one has objected to Verizon's proposed limit on 
increases of three feet in this context. Also, since the Commission is 
required to ensure no potential for effects on historic properties 
assuming such properties are present, the Commission finds it 
appropriate to adopt a more stringent test than in the context of a 
program alternative. For these reasons, any increase in the number of 
equipment cabinets that are visible from the street or adjacent public 
spaces in connection with a replacement antenna constitutes a 
substantial increase in size. In combination with the requirements that 
the new antenna be within 10 feet of the replaced antenna and that the 
pre-existing antenna be visible from any ground perspective that would 
afford a view of the new antenna these requirements ensure that the 
replacement deployment will not have an additional visual effect.
    44. Under its second partial exception to the no-visibility 
requirement, the new antenna may be in addition to, rather than a 
replacement of, a pre-existing antenna, but must meet the other 
requirements applicable to replacement antennas. The Commission 
requires that the pre-existing antenna itself not have been deployed 
pursuant to this exception. While this exception will allow an 
additional visual element to be added, the element is again limited to 
a comparably-sized antenna in the same viewshed (and again does not 
include any new visible associated equipment). Further, because the 
pre-existing antenna may not itself have been deployed pursuant to this 
no-effects finding, deployments cannot be daisy-chained across the 
structure, which might present a potential for cumulative effects.
    45. Consistent with the Verizon proposal, the Commission requires 
that the new antenna comply with all zoning and historic preservation 
conditions applicable to existing antennas in the same vicinity that 
directly mitigate or prevent effects, such as camouflage, concealment, 
or painting requirements. The Commission does not extend that 
requirement to conditions that have no direct relationship to the 
facility's effect or how the facility is deployed, such as a condition 
that requires the facility owner to pay for historic site information 
signs or other conditions intended to offset harms rather than prevent 
them. Its goal is to assure that any new deployments have no effects on 
historic properties. Payments or other forms of mitigation applied to 
antennas previously deployed on the building or structure that were 
intended to compensate for any adverse effect on historic properties 
caused by those antennas but were not intended to prevent that effect 
from occurring do not advance its goal of assuring no effects from such 
collocations. The Commission does not require that the new antenna 
comply with such conditions.
    46. As with the exclusion the Commission adopts for collocations on 
utility structures, the Commission imposes a strict requirement of no 
new ground disturbance. Thus, the exclusion will permit ground 
disturbance only where the depth and width of previous disturbance 
exceeds the proposed construction depth and width (including footings 
and other anchoring mechanisms) by at least two feet.
3. Antennas Mounted in the Interior of Buildings
    47. The Collocation Agreement provides that ``[a]n antenna may be 
mounted on a building'' without section 106 review except under certain 
circumstances, e.g., the building is a historic property or over 45 
years of age. The Commission clarifies that section V of the 
Collocation Agreement covers collocations in buildings' interiors. 
Given the limited scope of the exclusion of collocations on buildings 
under the Collocation Agreement (e.g., the building may not itself be 
listed in or eligible for listing in the National Register or in or 
near a historic district), there is no reason to distinguish interior 
collocations from exterior collocations for purposes of assessing 
impacts on historic properties.

II. Environmental Notification Exemption for Registration of Temporary 
Towers

    48. If pre-construction notice of a tower to the FAA is required, 
the Commission's rules also require the tower owner to register the 
antenna structure in the Commission's Antenna Structure Registration 
(ASR) system, prior to construction or alteration. To fulfill 
responsibilities under NEPA, the Commission requires owners of proposed 
towers, including temporary towers that must be registered in the ASR 
system to provide local and national notice prior to submitting a 
completed ASR application. Typically, the ASR notice process takes 
approximately 40 days.
    49. On May 15, 2013, in the Environmental Notification Waiver Order 
(Waiver Order), the Commission granted an interim waiver of the ASR 
environmental notification requirements for temporary towers meeting 
certain criteria. The Commission provided that the interim waiver would 
remain in effect pending the completion of a rulemaking to address the 
issues raised in the petition. In the Infrastructure NPRM, the 
Commission proposed to adopt a permanent exemption from the ASR pre-
construction environmental notification requirements consistent with 
the interim exemption granted in the Waiver Order.
    50. The Commission now adopts a permanent exemption from its ASR 
environmental notification requirements for temporary towers that (1) 
will be in place for no more than 60 days; (2) require notice of 
construction to the FAA; (3) do not require marking or lighting under 
FAA regulations; (4) will be less than 200 feet in height; and (5) will 
either involve no excavation or

[[Page 1247]]

involve excavation only where the depth of previous disturbance exceeds 
the proposed construction depth (excluding footings and other anchoring 
mechanisms) by at least two feet. The Commission finds that 
establishing the proposed exemption is consistent with its obligations 
under NEPA and the Council on Environmental Quality (CEQ) regulations, 
and will serve the public interest.
    51. As the Commission observed in the Infrastructure NPRM, the ASR 
notice process takes approximately 40 days and can take as long as two 
months. The record confirms that absent the exemption, situations would 
arise where there is insufficient time to complete this process before 
a temporary tower must be deployed to meet near-term demand. The 
record, as well as the Commission's own experience in administering the 
environmental notice rule, shows that a substantial number of temporary 
towers that would qualify for the exemption require registration. The 
Commission finds that absent an exemption, application of the ASR 
notice process to these temporary towers will interfere with the 
ability of service providers to meet important short term coverage and 
capacity needs.
    52. At the same time, the benefits of environmental notice are 
limited in the case of temporary towers meeting these criteria. The 
purpose of environmental notice is to facilitate public discourse 
regarding towers that may have a significant environmental impact. The 
Commission finds that towers meeting the specified criteria are highly 
unlikely to have significant environmental effects due to their short 
duration, limited height, absence of marking or lighting, and minimal 
to no excavation. As the Commission explained in the Waiver Order, its 
experience in administering the ASR public notice process confirms that 
antenna structures meeting the waiver criteria rarely if ever generate 
public comment regarding potentially significant environmental effects 
or are determined to require further environmental processing. In 
particular, since the Waiver Order has been in place, the Commission 
has seen no evidence that a temporary tower exempted from notification 
by the waiver has had or may have had a significant environmental 
effect. The Commission finds that the limited benefits of notice in 
these cases do not outweigh the potential detriment to the public 
interest of prohibiting the deployment of towers in circumstances in 
which the notification process cannot be completed quickly enough to 
address short-term deployment needs. Further, having concluded that 
pre-construction environmental notification is categorically 
unnecessary in the situations addressed here, the Commission finds it 
would be inefficient to require the filing and adjudication of 
individual waiver requests for these temporary towers. The Commission 
concludes that adoption of the exemption is warranted.
    53. The Commission also adopts the proposal to require no post-
construction environmental notice for temporary towers that qualify for 
the exemption. Ordinarily, when pre-construction notice is waived due 
to an emergency situation, the Commission requires environmental 
notification shortly after construction because such a deployment may 
be for a lengthy or indefinite period of time. The Commission finds 
that requiring post-construction notification for towers intended to be 
in place for the limited duration covered by the exemption is not in 
the public interest as the exempted period is likely to be over or 
nearly over by the time the notice period ends. Additionally, the 
Commission notes again that it has rarely seen temporary antenna 
structures generate public comment regarding potentially significant 
environmental effects. The Commission further notes that of the many 
commenters supporting an exemption, none opposed its proposal to exempt 
qualifying temporary towers from post-construction environmental 
notification.
    54. The Commission finds that the objections to the proposed 
exemption raised by Lee County, Tempe, and Orange County are misplaced. 
They express concerns that a temporary towers exemption would eliminate 
local review (including local environmental review) and antenna 
structure registration requirements. The exemption the Commission 
adopts does neither of these things. First, the temporary towers 
measure does not exempt any deployment from any otherwise applicable 
requirement under the Commission's rules to provide notice to the FAA, 
to obtain an FAA ``no-hazard'' determination, or to complete antenna 
structure registration. In raising its concern, Orange County notes 
that it ``operates . . . a large regional airport that has recently 
expanded through construction of a third terminal.'' The Commission 
finds the exemption poses no threat to air safety. As noted, 
deployments remains subject to all applicable requirements to notify 
the FAA and register the structure in the ASR system. If the Commission 
or the FAA requires either painting or lighting, i.e., because of a 
potential threat to aviation, the exemption does not apply. Nor does 
the exemption impact any local requirements. Further, the Commission 
provides, as proposed in the Infrastructure NPRM, that towers eligible 
for the notification exemption are still required to comply with the 
Commission's other NEPA requirements, including filing an EA in any of 
the environmentally sensitive circumstances identified by the rules. 
The Commission further provides that if an applicant determines that it 
needs to complete an EA for a temporary tower otherwise eligible for 
the exemption, or if the relevant bureau makes this determination 
pursuant to section 1.1307(c) or (d) of the Commission's rules, the 
application will not be exempt from the environmental notice 
requirement.
    55. The Commission concludes that making the exemption available 
for towers less than 200 feet above ground level is appropriate and 
adequate to ensure that the exemption serves the public interest both 
by minimizing potential significant environmental effects and by 
enabling wireless providers to more effectively respond to large or 
unforeseen spikes in demand for service. CTIA indicates that carriers 
deploy temporary towers more than 150 feet tall to replace damaged 
towers of similar height, and that having to use shorter towers to 
stand in for damaged towers may reduce coverage and thereby limit the 
availability of service during emergencies. The Commission agrees with 
CTIA that reducing the maximum tower height could undermine the 
intended purpose of the exemption. Further, the proposed limit of less 
than 200 feet will allow appropriate flexibility for taller temporary 
models, as they become available.
    56. The Commission concludes that 60 days is an appropriate time 
limit for the deployment of towers under this exemption. This time 
limit has substantial support in the record, and the Commission finds 
that 60 days strikes the proper balance between making this exemption a 
useful and effective tool for facilitating urgently needed short term 
communications deployments and facilitating public involvement in 
Commission decisions that may affect the environment. The brief 
duration of the covered deployments renders post-construction 
notification unnecessary in the public interest because the deployment 
will be removed by the time a post-construction notice period is 
complete or shortly thereafter. As the intended deployment period 
grows, however, the applicability of that reasoning erodes. For 
emergency deployments that may last up to six months or even longer, 
post-

[[Page 1248]]

construction notice will generally be warranted, as the Commission has 
indicated previously. Thus, the Commission finds that the existing 
procedure--i.e., site-specific waivers that are generally conditioned 
on post-construction notice--remains appropriate for emergency towers 
that will be deployed for longer periods than those covered by the 
narrow exemption the Commission establishes in this proceeding.
    57. The Commission declines to define consequences or to adopt 
special enforcement mechanisms for misuse of the exemption, as proposed 
by some commenters. The Commission agrees with Springfield, however, 
that the Commission should adopt a measure to prevent the use of 
consecutive deployments under the exemption to effectively exceed the 
time limit. The Commission therefore requires that at least 30 days 
must pass following the removal of one exempted temporary tower before 
the same applicant may rely on the exemption for another temporary 
tower covering substantially the same service area. While AT&T argues 
that the Commission should not adopt measures to prevent ``speculative 
abuses,'' the Commission concludes that this narrow limitation on the 
consecutive use of the exemption will help to ensure that it applies 
only to deployments of brief duration, as intended. Further, the 
Commission is not persuaded by CTIA's argument that such a restriction 
would interfere with a carrier's flexibility to respond to unforeseen 
events. The restriction places no limit on the number of exempt towers 
that can be deployed at any one time to cover a larger combined service 
area. The Commission also notes that its rule provides for extensions 
of the 60-day period in appropriate cases, which should further ensure 
that applicants have sufficient flexibility to respond to unforeseen 
events.
    58. The Commission further clarifies that under appropriate 
conditions, such as natural disasters or national emergencies, the 
relevant bureau may grant waivers of this limitation applicable to 
defined geographic regions and periods. In addition, a party subject to 
this limitation at a particular site may still request a site-specific 
waiver of the notice requirements for a subsequent temporary deployment 
at that site.
    59. To implement the new temporary towers exemption, Commission 
staff will modify FCC Form 854. The Commission notes that the 
modification of the form is subject to approval by the Office of 
Management and Budget (OMB). To ensure clarity, the Commission provides 
that the exemption will take effect only when the Wireless 
Telecommunications Bureau issues a Public Notice announcing OMB's 
approval. The Commission further provides that, until the new exemption 
is effective, the interim waiver of notification requirements for 
temporary towers remains available.

III. Implementation of Section 6409(a)

A. Background

    60. Congress adopted section 6409 in 2012 as a provision of Title 
VI of the Middle Class Tax Relief and Job Creation Act of 2012, which 
is more commonly known as the Spectrum Act. Section 6409(a), entitled 
``Facility Modifications,'' has three provisions. Subsection (a)(1) 
provides that ``[n]otwithstanding section 704 of the Telecommunications 
Act of 1996 [codified as 47 U.S.C. 332(c)(7)] 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.'' Subsection (a)(2) defines 
the term ``eligible facilities request'' as any request for 
modification of an existing wireless tower or base station that 
involves (a) collocation of new transmission equipment; (b) removal of 
transmission equipment; or (c) replacement of transmission equipment. 
Subsection (a)(3) provides that ``[n]othing in paragraph (a) shall be 
construed to relieve the Commission from the requirements of the 
National Historic Preservation Act or the National Environmental Policy 
Act of 1969.'' Aside from the definition of ``eligible facilities 
request,'' section 6409(a) does not define any of its terms. Similarly, 
neither the definitional section of the Spectrum Act nor that of the 
Communications Act contains definitions of the section 6409(a) terms. 
In the Infrastructure NPRM, the Commission sought comment on whether to 
address the provision more conclusively and comprehensively. The 
Commission found that it would serve the public interest to seek 
comment on implementing rules to define terms that the provision left 
undefined, and to fill in other interstices that may serve to delay the 
intended benefits of section 6409(a).

B. Discussion

    61. After reviewing the voluminous record in this proceeding, the 
Commission decides to adopt rules clarifying the requirements of 
section 6409(a), and implementing and enforcing these requirements, in 
order to prevent delay and confusion in such implementation. As the 
Commission noted in the Infrastructure NPRM, collocation on existing 
structures is often the most efficient and economical solution for 
mobile wireless service providers that need new cell sites to expand 
their existing coverage area, increase their capacity, or deploy new 
advanced services. The Commission agrees with industry commenters that 
clarifying the terms in section 6409 will eliminate ambiguities in 
interpretation and thus facilitate the zoning process for collocations 
and other modifications to existing towers and base stations. Although 
these issues could be addressed over time through judicial decisions, 
the Commission concludes that addressing them now in a comprehensive 
and uniform manner will ensure that the numerous and significant 
disagreements over the provision do not delay its intended benefits.
    62. The record demonstrates very substantial differences in the 
views advanced by local government and wireless industry commenters on 
a wide range of interpretive issues under the provision. While many 
localities recommend that the Commission defer to best practices to be 
developed on a collaborative basis, the Commission finds that there has 
been little progress in that effort since enactment of section 6409(a) 
well over two years ago. While the Commission generally encourages the 
development of voluntary best practices, the Commission is also 
concerned that voluntary best practices, on their own, may not 
effectively resolve many of the interpretive disputes or ensure uniform 
application of the law in this instance. In light of these disputes, 
the Commission takes this opportunity to provide additional certainty 
to parties.
    63. Authority. The Commission finds that it has authority under 
section 6003 of the Spectrum Act to adopt rules to clarify the terms in 
section 6409(a) and to establish procedures for effectuating its 
requirements. The Commission also has broad authority to ``take any 
action necessary to assist [FirstNet] in effectuating its duties and 
responsibilities'' to construct and operate a nationwide public safety 
broadband network. The rules the Commission adopts reflect the 
authority conferred by these provisions, as they will facilitate and 
expedite infrastructure deployment in qualifying cases and thus advance 
wireless broadband deployment by commercial entities as well as 
FirstNet.

[[Page 1249]]

1. Definition of Terms in Section 6409(a)
a. Scope of Covered Services
    64. The Commission first addresses the scope of wireless services 
to which the provision applies through the definitions of both 
``transmission equipment'' and ``wireless tower or base station.'' 
After considering the arguments in the record, the Commission concludes 
that section 6409(a) applies both to towers and base stations and to 
transmission equipment used in connection with any Commission-
authorized wireless communications service. The Commission finds strong 
support in the record for this interpretation. With respect to towers 
and base stations, the Commission concludes that this interpretation is 
warranted given Congress's selection of the broader term ``wireless'' 
in section 6409(a) rather than the narrow term ``personal wireless 
service'' it previously used in section 332(c)(7), as well as 
Congress's express intent that the provisions of the Spectrum Act 
``advance wireless broadband service,'' promoting ``billions of dollars 
in private investment,'' and further the deployment of FirstNet. The 
Commission finds that interpreting ``wireless'' in the narrow manner 
that some municipal commenters suggest would substantially undermine 
the goal of advancing the deployment of broadband facilities and 
services, and that interpreting section 6409(a) to facilitate 
collocation opportunities on a broad range of suitable structures will 
far better contribute to meeting these goals, and is particularly 
important to further the deployment of FirstNet. The Spectrum Act 
directs the FirstNet authority, in carrying out its duty to deploy and 
operate a nationwide public safety broadband network, to ``enter into 
agreements to utilize, to the maximum extent economically desirable, 
existing . . . commercial or other communications infrastructure; and . 
. . Federal, State, tribal, or local infrastructure.'' For all of these 
reasons, the Commission finds it appropriate to interpret section 
6409(a) as applying to collocations on infrastructure that supports 
equipment used for all Commission-licensed or authorized wireless 
transmissions.
    65. The Commission is not persuaded that Congress's use of the term 
``base station'' implies that the provision applies only to mobile 
service. As noted in the Infrastructure NPRM, the Commission's rules 
define ``base station'' as a feature of a mobile communications 
network, and the term has commonly been used in that context. It is 
important, however, to interpret ``base station'' in the context of 
Congress's intention to advance wireless broadband service generally, 
including both mobile and fixed broadband services. The Commission 
notes, for example, that the Spectrum Act directs the Commission to 
license the new commercial wireless services employing H Block, AWS-3, 
and repurposed television broadcast spectrum under ``flexible-use 
service rules''--i.e., for fixed as well as mobile use. Moreover, in 
the context of wireless broadband service generally, the term ``base 
station'' describes fixed stations that provide fixed wireless service 
to users as well as those that provide mobile wireless service. Indeed, 
this is particularly true with regard to Long Term Evolution (LTE), in 
which base stations can support both fixed and mobile service. The 
Commission finds that, in the context of section 6409(a), the term 
``base station'' encompasses both mobile and fixed services.
    66. The Commission is also not persuaded that it should exclude 
``broadcast'' from the scope of section 6409(a), both with respect to 
``wireless'' towers and base stations and with respect to transmission 
equipment. The Commission acknowledges that the term ``wireless 
providers'' appears in other sections of the Spectrum Act that do not 
encompass broadcast services. The Commission does not agree, however, 
that use of the word ``wireless'' in section 6409's reference to a 
``tower or base station'' can be understood without reference to 
context. The Commission interprets the term ``wireless'' as used in 
section 6409(a) in light of the purpose of this provision in particular 
and the larger purposes of the Spectrum Act as a whole. The Commission 
finds that Congress intended the provision to facilitate collocation in 
order to advance the deployment of commercial and public safety 
broadband services, including the deployment of the FirstNet network. 
The Commission agrees with NAB that including broadcast towers 
significantly advances this purpose by ``supporting the approximately 
25,000 broadcast towers as collocation platforms.'' The Commission 
notes that a variety of industry and municipal commenters likewise 
support the inclusion of broadcast towers for similar reasons. Finally, 
the Commission observes that this approach is consistent with the 
Collocation Agreement and the NPA, both of which define ``tower'' to 
include broadcast towers. These agreements address ``wireless'' 
communications facilities and collocation for any ``communications'' 
purposes. They extend to any ``tower'' built for the sole or primary 
purpose of supporting any ``FCC-licensed'' facilities. The Commission 
finds these references particularly persuasive in ascertaining 
congressional intent, since section 6409(a) expressly references the 
Commission's continuing obligations to comply with NEPA and NHPA, which 
form the basis for these agreements.
    67. The Commission further concludes that a broad interpretation of 
``transmission equipment'' is similarly appropriate in light of the 
purposes of section 6409(a) in particular and the Spectrum Act more 
generally. The statute's Conference Report expresses Congress's 
intention to advance wireless broadband service generally, and as PCIA 
states, a broad definition of this term will ensure coverage for all 
wireless broadband services, including future services not yet 
contemplated. Defining ``transmission equipment'' broadly will 
facilitate the deployment of wireless broadband networks and will 
``minimize the need to continually redefine the term as technology and 
applications evolve.'' The Commission also notes that a broad 
definition reflects Congress's definition of a comparable term in the 
context of directly related provisions in the same statute; in section 
6408, the immediately preceding provision addressing uses of adjacent 
spectrum, Congress defined the term ``transmission system'' broadly to 
include ``any telecommunications, broadcast, satellite, commercial 
mobile service, or other communications system that employs radio 
spectrum.''
    68. The Commission disagrees with commenters who contend that 
including broadcast equipment within covered transmission equipment 
does not advance the goals of the Spectrum Act. While broadcast 
equipment does not itself transmit wireless broadband signals, its 
efficient collocation pursuant to section 6409(a) will expedite and 
minimize the costs of the relocation of broadcast television licensees 
that are reassigned to new channels in order to clear the spectrum that 
will be offered for broadband services through the incentive auction, 
as mandated by the Spectrum Act. The Commission concludes that 
inclusion of broadcast service equipment in the scope of transmission 
equipment covered by the provision furthers the goals of the 
legislation and will contribute in particular to the success of the 
post-incentive auction transition of television broadcast stations to 
their new channels. The Commission notes that the language of section 
6409(a) is broader than that used in section

[[Page 1250]]

332(c)(7), and it is reasonable to construe it in a manner that does 
not differentiate among various Commission-regulated services, 
particularly in the context of mandating approval of facilities that do 
not result in any substantial increase in physical dimensions.
    69. The Commission further rejects arguments that Congress intended 
these terms to be restricted to equipment used in connection with 
personal wireless services and public safety services. The 
Communications Act and the Spectrum Act already define those narrower 
terms, and Congress chose not to employ them in section 6409(a), 
determining instead to use the broader term, ``wireless.'' The 
legislative history supports the conclusion that Congress intended to 
employ broader language. In the Conference Report, Congress emphasized 
that a primary goal of the Spectrum Act was to ``advance wireless 
broadband service,'' which would ``promot[e] billions of dollars in 
private investment, and creat[e] tens of thousands of jobs.'' In light 
of its clear intent to advance wireless broadband deployment through 
enactment of section 6409(a), the Commission finds it implausible that 
Congress meant to exclude facilities used for such services.
b. Transmission Equipment
    70. The Commission adopts the proposal in the Infrastructure NPRM 
to define ``transmission equipment'' to encompass antennas and other 
equipment associated with and necessary to their operation, including 
power supply cables and backup power equipment. The Commission finds 
that this definition reflects Congress's intent to facilitate the 
review of collocations and minor modifications, and it recognizes that 
Congress used the broad term ``transmission equipment'' without 
qualifications that would logically limit its scope.
    71. The Commission is further persuaded by wireless industry 
commenters that power supplies, including backup power, are a critical 
component of wireless broadband deployment and that they are necessary 
to ensure network resiliency. Indeed, including backup power equipment 
within the scope of ``transmission equipment'' under section 6409(a) is 
consistent with Congress's directive to the FirstNet Authority to 
``ensure the . . . resiliency of the network.'' Tempe's assertion that 
backup power is not technically ``necessary'' because transmission 
equipment can operate without it is unpersuasive. Backup power is 
certainly necessary to operations during those periods when primary 
power is intermittent or unavailable. The Commission also concludes 
that ``transmission equipment'' should be interpreted consistent with 
the term ``antenna'' in the NPA and, given that the NPA term 
encompasses ``power sources'' without limitation, the Commission finds 
that ``transmission equipment'' includes backup power sources. Finally, 
while the Commission recognizes the concerns raised by local government 
commenters regarding the potential hazards of backup power generators, 
the Commission finds that these concerns are fully addressed in the 
standards applicable to collocation applications discussed below.
    72. The Commission defines ``transmission equipment'' under section 
6409(a) as any equipment that facilitates transmission for any 
Commission-licensed or authorized wireless communication service, 
including, but not limited to, radio transceivers, antennas and other 
relevant equipment associated with and necessary to their operation, 
including coaxial or fiber-optic cable, and regular and backup power 
supply. This definition includes equipment used in any technological 
configuration associated 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.
c. Existing Wireless Tower or Base Station
    73. The Commission adopts the definitions of ``tower'' and ``base 
station'' proposed in the Infrastructure NPRM with certain 
modifications and clarifications, in order to give independent meaning 
to both of these statutory terms, and consistent with Congress's intent 
to promote the deployment of wireless broadband services. First, the 
Commission concludes that the term ``tower'' is intended to reflect the 
meaning of that term as it is used in the Collocation Agreement. The 
Commission defines ``tower'' to include any structure built for the 
sole or primary purpose of supporting any Commission-licensed or 
authorized antennas and their associated facilities.
    74. As proposed in the Infrastructure NPRM, the Commission 
interprets ``base station'' to extend the scope of the provision to 
certain support structures other than towers. Specifically, the 
Commission defines that term as the equipment and non-tower supporting 
structure at a fixed location that enable Commission-licensed or 
authorized wireless communications between user equipment and a 
communications network. The Commission finds that the term includes any 
equipment associated with wireless communications service including, 
but not limited to, radio transceivers, antennas, coaxial or fiber-
optic cable, regular and backup power supply, and comparable equipment. 
The Commission notes that this definition reflects the types of 
equipment included in its definition of ``transmission equipment,'' and 
that the record generally supports this approach. For example, DC 
argues that the Commission should define a base station as ``generally 
consist[ing] of radio transceivers, antennae, coaxial cable, a regular 
and backup power supply, and other associated electronics.'' TIA 
concurs that the term ``base station'' encompasses transmission 
equipment, including antennas, transceivers, and other equipment 
associated with and necessary to their operation, including coaxial 
cable and regular and backup power equipment.
    75. The Commission further finds, consistent with the Commission's 
proposal, that the term ``existing . . . base station'' includes a 
structure that, at the time of the application, supports or houses an 
antenna, transceiver, or other associated equipment that constitutes 
part of a ``base station'' as defined above, even if the structure was 
not built for the sole or primary purpose of providing such support. As 
the Commission noted in the Infrastructure NPRM, while ``tower'' is 
defined in the Collocation Agreement and the NPA to include only those 
structures built for the sole or primary purpose of supporting wireless 
communications equipment, the term ``base station'' is not used in 
these agreements. The Commission rejects the proposal to define a 
``base station'' to include any structure that is merely capable of 
supporting wireless transmission equipment, whether or not it is 
providing such support at the time of the application. The Commission 
agrees with municipalities' comments that by using the term 
``existing,'' section 6409(a) preserves local government authority to 
initially determine what types of structures are appropriate for 
supporting wireless transmission equipment if the structures were not 
built (and thus were not previously approved) for the sole or primary 
purpose of supporting such equipment. Some wireless industry commenters 
also support its interpretation that,

[[Page 1251]]

while a tower that was built for the primary purpose of housing or 
supporting communications facilities should be considered ``existing'' 
even if it does not currently host wireless equipment, other structures 
should be considered ``existing'' only if they support or house 
wireless equipment at the time the application is filed.
    76. The Commission finds that the alternative definitions proposed 
by many municipalities are unpersuasive. First, the Commission rejects 
arguments that a ``base station'' includes only the transmission system 
equipment, not the structure that supports it. This reading conflicts 
with the full text of the provision, which plainly contemplates 
collocations on a base station as well as a tower. Section 6409(a) 
defines an ``eligible facilities request'' as a request to modify an 
existing wireless tower or base station by collocating on it (among 
other modifications). This statutory structure precludes the Commission 
from limiting the term ``base station'' to transmission equipment; 
collocating on base stations, which the statute envisions, would be 
conceptually impossible unless the structure is part of the definition 
as well. The Commission further disagrees that defining ``base 
station'' to include supporting structures will deprive ``tower'' of 
all independent meaning. The Commission interprets ``base station'' not 
to include wireless deployments on towers. Further, the Commission 
interprets ``tower'' to include all structures built for the sole or 
primary purpose of supporting Commission-licensed or authorized 
antennas, and their associated facilities, regardless of whether they 
currently support base station equipment at the time the application is 
filed. Thus, ``tower'' denotes a structure that is covered under 
section 6409(a) by virtue of its construction. In contrast, a ``base 
station'' includes a structure that is not a wireless tower only where 
it already supports or houses such equipment.
    77. The Commission is also not persuaded by arguments that ``base 
station'' refers only to the equipment compound associated with a tower 
and the equipment located upon it. First, no commenters presented 
evidence that ``base station'' is more commonly understood to mean an 
equipment compound as opposed to the broader definition of all 
equipment associated with transmission and reception and its supporting 
structures. Furthermore, the Collocation Agreement's definition of 
``tower,'' which the Commission adopts in the R&O, treats equipment 
compounds as part of the associated towers for purposes of 
collocations; if towers include their equipment compounds, then 
defining base stations as equipment compounds alone would render the 
term superfluous. The Commission also notes that none of the State 
statutes and regulations implementing section 6409(a) has limited its 
scope to equipment and structures associated with towers. In addition, 
the Commission agrees with commenters who argue that limiting the 
definition of ``base station'' (and thus the scope of section 6409(a)) 
to structures and equipment associated with towers would compromise the 
core policy goal of bringing greater efficiency to the process for 
collocations. Other structures are increasingly important to the 
deployment of wireless communications infrastructure; omitting them 
from the scope of section 6409(a) would mean the statute's efficiencies 
would not extend to many if not most wireless collocations, and would 
counterproductively exclude virtually all of the small cell 
collocations that have the least impact on local land use.
    78. Some commenters arguing that section 6409(a) covers no 
structures other than those associated with towers point to the 
Conference Report, which, in describing the equivalent provision in the 
House bill, states that the provision ``would require approval of 
requests for modification of cell towers.'' The Commission does not 
find this ambiguous statement sufficient to overcome the language of 
the statute as enacted, which refers to ``modification of an existing 
wireless tower or base station.'' Moreover, this statement from the 
report does not expressly state a limitation on the provision, and thus 
may reasonably be read as a simplified reference to towers as an 
important application of its mandate. The Commission does not view this 
language as indicating Congress's intention that the provision 
encompasses only modifications of structures that qualify as wireless 
towers.
    79. The Commission thus adopts the proposed definition of ``base 
station'' to include a structure that currently supports or houses an 
antenna, transceiver, or other associated equipment that constitutes 
part of a base station at the time the application is filed. The 
Commission also finds that ``base station'' encompasses the relevant 
equipment in any technological configuration, including DAS and small 
cells. The Commission disagrees with municipalities that argue that 
``base station'' should not include DAS or small cells. As the record 
supports, there is no statutory language limiting the term ``base 
station'' in this manner. The definition 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.
    80. While the Commission does not accept municipal arguments to 
limit section 6409(a) to equipment or structures associated with 
towers, the Commission rejects industry arguments that section 6409(a) 
should apply more broadly to include certain structures that neither 
were built for the purpose of housing wireless equipment nor have base 
station equipment deployed upon them. The Commission finds no 
persuasive basis to interpret the statutory provision so broadly. The 
Commission agrees with Alexandria et al. that the scope of section 
6409(a) is different from that of the Collocation Agreement, as the 
statutory provision clearly applies only to collocations on an existing 
``wireless tower or base station'' rather than any existing ``tower or 
structure.'' Further, interpreting ``tower'' to include structures 
``similar to a tower'' would be contrary to the very Collocation 
Agreement to which these commenters point, which defines ``tower'' in 
the narrower fashion that the Commission adopts. The Commission also 
agrees with municipalities as a policy matter that local governments 
should retain authority to make the initial determination (subject to 
the constraints of section 332(c)(7)) of which non-tower structures are 
appropriate for supporting wireless transmission equipment; its 
interpretations of ``tower'' and ``base station'' preserve that 
authority.
    81. Finally, the Commission agrees with Fairfax that the term 
``existing'' requires that wireless towers or base stations have been 
reviewed and approved under the applicable local zoning or siting 
process or that the deployment of existing transmission equipment on 
the structure received another form of affirmative State or local 
regulatory approval (e.g., authorization from a State public utility 
commission). Thus, if a tower or base station was constructed or 
deployed without proper review, was not required to undergo siting 
review, or does not support transmission equipment that received 
another form of affirmative State or local regulatory approval; the 
governing authority is not obligated to grant a collocation application 
under section 6409(a). The Commission further clarifies that a wireless 
tower that does not have a permit because it was not in a zoned area 
when it was built, but was lawfully constructed, is an ``existing'' 
tower. The Commission finds that its

[[Page 1252]]

interpretation of ``existing'' is consistent with the purposes of 
section 6409(a) to facilitate deployments that are unlikely to conflict 
with local land use policies and preserve State and local authority to 
review proposals that may have impacts. First, it ensures that a 
facility that was deployed unlawfully does not trigger a municipality's 
obligation to approve modification requests under section 6409(a). 
Further, it guarantees that the structure has already been the subject 
of State or local review. This interpretation should also minimize 
incentives for governing authorities to increase zoning or other 
regulatory review in cases where minimally intrusive deployments are 
currently permitted without review. For example, under this 
interpretation, a homeowner's deployment of a femtocell that is not 
subject to any zoning or other regulatory requirements will not 
constitute a base station deployment that triggers obligations to allow 
deployments of other types of facilities at that location under section 
6409(a). By thus preserving State and local authority to review the 
first base station deployment that brings any non-tower structure 
within the scope of section 6409(a), the Commission ensures that 
subsequent collocations of additional transmission equipment on that 
structure will be consistent with congressional intent that deployments 
subject to section 6409(a) will not pose a threat of harm to local land 
use values.
    82. On balance, the Commission finds that the foregoing definitions 
are consistent with congressional intent to foster collocation on 
various types of structures, while addressing municipalities' valid 
interest in preserving their authority to determine which structures 
are suitable for wireless deployment, and under what conditions.
d. Collocation, Replacement, Removal, Modification
    83. The Commission concludes again that it is appropriate to look 
to the Collocation Agreement for guidance on the meaning of analogous 
terms, particularly in light of section 6409(a)(3)'s specific 
recognition of the Commission's obligations under NHPA and NEPA. As 
proposed in the Infrastructure NPRM and supported by the record, the 
Commission concludes that the definition of ``collocation'' for 
purposes of section 6409(a) should be consistent with its definition in 
the Collocation Agreement. The Commission defines ``collocation'' under 
section 6409(a) as ``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.'' The term ``eligible support structure'' 
means any structure that falls within the definitions of ``tower'' or 
``base station.'' Consistent with the language of section 
6409(a)(2)(A)-(C), the Commission also finds that a ``modification'' of 
a ``wireless tower or base station'' includes collocation, removal, or 
replacement of an antenna or any other transmission equipment 
associated with the supporting structure.
    84. The Commission disagrees with municipal commenters who argue 
that collocations are limited to mounting equipment on structures that 
already have transmission equipment on them. That limitation is not 
consistent with the Collocation Agreement's definition of 
``collocation,'' and would not serve any reasonable purpose as applied 
to towers built for the purpose of supporting transmission equipment. 
Nevertheless, the Commission observes that the Commission's approach 
leads to the same result in the case of ``base stations;'' since its 
definition of that term includes only structures that already support 
or house base station equipment, section 6409(a) will not apply to the 
first deployment of transmission equipment on such structures. Thus, 
the Commission disagrees with CA Local Governments that adopting the 
Commission's proposed definition of collocation would require local 
governments to approve deployments on anything that could house or 
support a component of a base station. Rather, section 6409(a) will 
apply only where a State or local government has approved the 
construction of a structure with the sole or primary purpose of 
supporting covered transmission equipment (i.e., a wireless tower) or, 
with regard to other support structures, where the State or local 
government has previously approved the siting of transmission equipment 
that is part of a base station on that structure. In both cases, the 
State or local government must decide that the site is suitable for 
wireless facility deployment before section 6409(a) will apply.
    85. The Commission finds that the term ``eligible facilities 
request'' encompasses hardening through structural enhancement where 
such hardening is necessary for a covered collocation, replacement, or 
removal of transmission equipment, but does not include replacement of 
the underlying structure. The Commission notes that the term ``eligible 
facilities request'' encompasses any ``modification of an existing 
wireless tower or base station that involves'' collocation, removal, or 
replacement of transmission equipment. Given that structural 
enhancement of the support structure is a modification of the relevant 
tower or base station, the Commission notes that permitting structural 
enhancement as a part of a covered request may be particularly 
important to ensure that the relevant infrastructure will be available 
for use by FirstNet because of its obligation to ``ensure the safety, 
security, and resiliency of the [public safety broadband] network. . . 
.'' In addition to hardening for Public Safety, commercial providers 
may seek structural enhancement for many reasons, for example, to 
increase load capacity or to repair defects due to corrosion or other 
damage. The Commission finds that such modification is part of an 
eligible facilities request so long as the modification of the 
underlying support structure is performed in connection with and is 
necessary to support a collocation, removal, or replacement of 
transmission equipment. The Commission further clarifies that, to be 
covered under section 6409(a), any such structural enhancement must not 
constitute a substantial change as defined below.
    86. The Commission agrees with Alexandria et al., that 
``replacement,'' as used in section 6409(a)(2)(C), relates only to the 
replacement of ``transmission equipment,'' and that such equipment does 
not include the structure on which the equipment is located. Even under 
the condition that it would not substantially change the physical 
dimensions of the structure, replacement of an entire structure may 
affect or implicate local land use values differently than the 
addition, removal, or replacement of transmission equipment, and the 
Commission finds no textual support for the conclusion that Congress 
intended to extend mandatory approval to new structures. Thus, the 
Commission declines to interpret ``eligible facilities requests'' to 
include replacement of the underlying structure.
e. Substantial Change and Other Conditions and Limitations
    87. After careful review of the record, the Commission adopts an 
objective standard for determining when a proposed modification will 
``substantially change the physical dimensions'' of an existing tower 
or base station. The Commission provides that a modification 
substantially changes the physical dimensions of a tower or base 
station if it meets any of the following criteria: (1) for towers

[[Page 1253]]

outside of public rights-of-way, it increases the 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; for those towers in the rights-of-way and for all 
base stations, it increases the height of the tower or base station by 
more than 10% or 10 feet, whichever is greater; (2) for towers outside 
of public rights-of-way, it protrudes from the edge of the tower more 
than twenty feet, or more than the width of the tower structure at the 
level of the appurtenance, whichever is greater; for those towers in 
the rights-of-way and for all base stations, it protrudes from the edge 
of the structure more than six feet; (3) it involves installation of 
more than the standard number of new equipment cabinets for the 
technology involved, but not to exceed four cabinets; (4) it entails 
any excavation or deployment outside the current site of the tower or 
base station; (5) it would defeat the existing concealment elements of 
the tower or base station; or (6) it does not comply with conditions 
associated with the prior approval of construction or modification of 
the tower or base station unless the non-compliance is due to an 
increase in height, increase in width, addition of cabinets, or new 
excavation that does not exceed the corresponding ``substantial 
change'' thresholds identified above. The Commission further provides 
that the changes in height resulting from a modification should be 
measured from the original support structure in cases where the 
deployments are or will be separated horizontally, such as on 
buildings' rooftops; in other circumstances, changes in height should 
be measured from the dimensions of the tower or base station inclusive 
of originally approved appurtenances and any modifications that were 
approved prior to the passage of the Spectrum Act. Beyond these 
standards for what constitutes a substantial change in the physical 
dimensions of a tower or base station, the Commission further provides 
that for applications covered by section 6409(a), States and localities 
may continue to enforce and condition approval on compliance with 
generally applicable building, structural, electrical, and safety codes 
and with other laws codifying objective standards reasonably related to 
health and safety.
    88. The Commission initially concludes that it should adopt a test 
that is defined by specific, objective factors rather than the 
contextual and entirely subjective standard advocated by the 
Intergovernmental Advisory Committee (IAC) and municipalities. Congress 
took care to refer, in excluding certain modifications from mandatory 
approval requirements, to those that would substantially change the 
tower or base station's ``physical dimensions.'' The Commission also 
finds that Congress intended approval of covered requests to occur in a 
timely fashion. While the Commission acknowledges that the IAC approach 
would provide municipalities with maximum flexibility to consider 
potential effects, the Commission is concerned that it would invite 
lengthy review processes that conflict with Congress's intent. Indeed, 
some municipal commenters anticipate their review of covered requests 
under a subjective case-by-case approach could take even longer than 
their review of collocations absent section 6409(a). The Commission 
also anticipates that disputes arising from a subjective approach would 
tend to require longer and more costly litigation to resolve given the 
more fact-intensive nature of the IAC's open-ended and context-specific 
approach. The Commission finds that an objective definition, by 
contrast, will provide an appropriate balance between municipal 
flexibility and the rapid deployment of covered facilities. The 
Commission finds further support for this approach in State statutes 
that have implemented section 6409(a), all of which establish objective 
standards.
    89. The Commission further finds that the objective test for 
``substantial increase in size'' under the Collocation Agreement should 
inform its consideration of the factors to consider when assessing a 
``substantial change in physical dimensions.'' This reflects its 
general determination that definitions in the Collocation Agreement and 
NPA should inform its interpretation of similar terms in section 
6409(a). Further, as noted in the Infrastructure NPRM, the Commission 
has previously relied on the Collocation Agreement's test in comparable 
circumstances, concluding in the 2009 Declaratory Ruling that 
collocation applications are subject to a shorter shot clock under 
section 332(c)(7) to the extent that they do not constitute a 
``substantial increase in size of the underlying structure.'' The 
Commission has also applied a similar objective test to determine 
whether a modification of an existing registered tower requires public 
notice for purposes of environmental review. The Commission notes that 
some municipalities support this approach, and the Commission further 
observes that the overwhelming majority of State collocation statutes 
adopted since the passage of the Spectrum Act have adopted objective 
criteria similar to the Collocation Agreement test for identifying 
collocations subject to mandatory approval. The Commission notes as 
well that there is nothing in the record indicating that any of these 
objective State-law tests have resulted in objectionable collocations 
that might have been rejected under a more subjective approach. The 
Commission is persuaded that it is reasonable to look to the 
Collocation Agreement test as a starting point in interpreting the very 
similar ``substantial change'' standard under section 6409(a). The 
Commission further decides to modify and supplement the factors to 
establish an appropriate balance between promoting rapid wireless 
facility deployment and preserving States' and localities' ability to 
manage and protect local land-use interests.
    90. First, the Commission declines to adopt the Collocation 
Agreement's exceptions that allow modifications to exceed the usual 
height and width limits when necessary to avoid interference or shelter 
the antennas from inclement weather. The Commission agrees with CA 
Local Governments that these issues pose technically complex and fact-
intensive questions that many local governments cannot resolve without 
the aid of technical experts; modifications that would not fit within 
the Collocation Agreement's height and width exceptions are thus not 
suitable for expedited review under section 6409(a).
    91. Second, the Commission concludes that the limit on height and 
width increases should depend on the type and location of the 
underlying structure. Under the Collocation Agreement's ``substantial 
increase in size'' test, which applies only to towers, a collocation 
constitutes a substantial increase in size if it would increase a 
tower's height by 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. In addition, the Collocation Agreement 
authorizes collocations that would protrude by twenty feet, or by the 
width of the tower structure at the level of the appurtenance, 
whichever is greater. The Commission finds that the Collocation 
Agreement's height and width criteria are generally suitable for 
towers, as was contemplated by the Agreement.
    92. These tests were not designed with non-tower structures in 
mind, and the Commission finds that they may often fail to identify 
substantial changes to non-tower structures such as

[[Page 1254]]

buildings or poles, particularly insofar as they would permit height 
and width increases of 20 feet under all circumstances. Instead, 
considering the proposals and arguments in the record and the purposes 
of the provision, the Commission concludes that a modification to a 
non-tower structure that would increase the structure's height by more 
than 10% or 10 feet, whichever is greater, constitutes a substantial 
change under section 6409(a). Permitting increases of up to 10% has 
significant support in the record. Further, the Commission finds that 
the adoption of a fixed minimum best serves the intention of Congress 
to advance broadband service by expediting the deployment of minor 
modifications of towers and base stations. Without such a minimum, the 
Commission finds that the test will not properly identify insubstantial 
increases on small buildings and other short structures, and may 
undermine the facilitation of collocation, as vertically collocated 
antennas often need 10 feet of separation and rooftop collocations may 
need such height as well. Further, the fact that the 10-foot minimum is 
substantially less than the 20-foot minimum limit under the Collocation 
Agreement and many State statutes or the 15-foot limit proposed by some 
commenters provides additional assurance that the Commission's 
interpretation of what is considered substantial under section 6409(a) 
is reasonable.
    93. The Commission also provides, as suggested by Verizon and PCIA, 
that a proposed modification of a non-tower structure constitutes a 
``substantial change'' under section 6409(a) if it would protrude from 
the edge of the structure more than six feet. The Commission finds that 
allowing for width increases up to six feet will promote the deployment 
of small facility deployments by accommodating installation of the 
mounting brackets/arms often used to deploy such facilities on non-
tower structures, and that it is consistent with small facility 
deployments that municipalities have approved on such structures. The 
Commission further notes that it is significantly less than the limits 
in width established by most State collocation statutes adopted since 
the Spectrum Act. The Commission finds that six feet is the appropriate 
objective standard for substantial changes in width for non-tower 
structures, rather than the alternative proposals in the record.
    94. The Commission declines to apply the same substantial change 
criteria to utility structures as apply to towers. While Verizon argues 
in an ex parte that this approach is justified because of the 
``significant similarities'' between towers and utility structures, its 
own comments note that in contrast to ``macrocell towers,'' utility 
structures are ``smaller sites[.]'' Because utility structures are 
typically much smaller than traditional towers, and because utility 
structures are often located in easements adjacent to vehicular and 
pedestrian rights-of-way where extensions are more likely to raise 
aesthetic, safety, and other issues, the Commission does not find it 
appropriate to apply to such structures the same substantial change 
criteria applicable to towers. The Commission further finds that towers 
in the public rights-of-way should be subject to the more restrictive 
height and width criteria applicable to non-tower structures rather 
than the criteria applicable to other towers. The Commission notes 
that, to deploy DAS and small-cell wireless facilities, carriers and 
infrastructure providers must often deploy new poles in the rights-of-
way. Because these structures are constructed for the sole or primary 
purpose of supporting Commission-licensed or authorized antennas, they 
fall under the definition of ``tower.'' They are often identical in 
size and appearance to utility poles in the area, which do not 
constitute towers. As a consequence, applying the tower height and 
width standards to these poles constructed for DAS and small-cell 
support would mean that two adjacent and nearly identical poles could 
be subject to very different standards. To ensure consistent treatment 
of structures in the public rights-of-way, and because of the 
heightened potential for impact from extensions in such locations, the 
Commission provides that structures qualifying as towers that are 
deployed in public rights-of-way will be subject to the same height and 
width criteria as non-tower structures.
    95. The Commission agrees with commenters that its substantial 
change criteria for changes in height should be applied as limits on 
cumulative changes; otherwise, a series of permissible small changes 
could result in an overall change that significantly exceeds the 
adopted standards. Specifically, the Commission finds that whether a 
modification constitutes a substantial change must be determined by 
measuring the change in height from the dimensions of the ``tower or 
base station'' as originally approved or as of the most recent 
modification that received local zoning or similar regulatory approval 
prior to the passage of the Spectrum Act, whichever is greater.
    96. The Commission declines to provide that changes in height 
should always be measured from the original tower or base station 
dimensions, as suggested by some municipalities. As with the original 
tower or base station, discretionary approval of subsequent 
modifications reflects a regulatory determination of the extent to 
which wireless facilities are appropriate, and under what conditions. 
At the same time, the Commission declines to adopt industry commenters' 
proposal always to measure changes from the last approved change or the 
effective date of the rules. Measuring from the last approved change in 
all cases would provide no cumulative limit at all. In particular, 
since the Spectrum Act became law, approval of covered requests has 
been mandatory and approved changes after that time may not establish 
an appropriate baseline because they may not reflect a siting 
authority's judgment that the modified structure is consistent with 
local land use values. Because it is impractical to require parties, in 
measuring cumulative impact, to determine whether each pre-existing 
modification was or was not required by the Spectrum Act, the 
Commission provides that modifications of an existing tower or base 
station that occur after the passage of the Spectrum Act will not 
change the baseline for purposes of measuring substantial change. 
Consistent with the determination that a tower or base station is not 
covered by section 6409(a) unless it received such approval, this 
approach will in all cases limit modifications that are subject to 
mandatory approval to the same modest increments over what the relevant 
governing authority has previously deemed compatible with local land 
use values. The Commission further finds that, for structures where 
collocations are separated horizontally rather than vertically (such as 
building rooftops), substantial change is more appropriately measured 
from the height of the original structure, rather than the height of a 
previously approved antenna. Thus, for example, the deployment of a 10-
foot antenna on a rooftop would not mean that a nearby deployment of a 
20-foot antenna would be considered insubstantial.
    97. Again drawing on the Collocation Agreement's test, the 
Commission further provides that a modification is a substantial change 
if it entails any excavation or deployment outside the current site of 
the tower or base station. As in the Collocation Agreement, the 
Commission defines the ``site'' for

[[Page 1255]]

towers outside of the public rights-of-way as the current boundaries of 
the leased or owned property surrounding the tower and any access or 
utility easements currently related to the site. For other towers and 
all base stations, the Commission further restricts the site to that 
area in proximity to the structure and to other transmission equipment 
already deployed on the ground.
    98. The Commission also rejects the PCIA and Sprint proposal to 
expand the Collocation Agreement's fourth prong, as modified by the 
2004 NPA, to allow applicants to excavate outside the leased or 
licensed premises. Under the NPA, certain undertakings are excluded 
from the section 106 review, including ``construction of a replacement 
for an existing communications tower and any associated excavation that 
. . . does not expand the boundaries of the leased or owned property 
surrounding the tower by more than 30 feet in any direction or involve 
excavation outside these expanded boundaries or outside any existing 
access or utility easement related to the site.'' The NPA exclusion 
from section 106 review applies to replacement of ``an existing 
communications tower.'' In contrast, ``replacement,'' as used in 
section 6409(a)(2)(C), relates only to the replacement of 
``transmission equipment,'' not the replacement of the supporting 
structures. Thus, the activities covered under section 6409(a) are more 
nearly analogous to those covered under the Collocation Agreement than 
under the replacement towers exclusion in the NPA. The Commission 
agrees with localities comments that any eligible facilities requests 
that involve excavation outside the premises should be considered a 
substantial change, as under the fourth prong of the Collocation 
Agreement's test.
    99. Based on its review of the record and various state statutes, 
the Commission further finds that a modification constitutes a 
substantial change in physical dimensions under section 6409(a) if the 
change (1) would defeat the existing concealment elements of the tower 
or base station, or (2) does not comply with pre-existing conditions 
associated with the prior approval of construction or modification of 
the tower or base station. The first of these criteria is widely 
supported by both wireless industry and municipal commenters, who 
generally agree that a modification that undermines the concealment 
elements of a stealth wireless facility, such as painting to match the 
supporting fa[ccedil]ade or artificial tree branches, should be 
considered substantial under section 6409(a). The Commission agrees 
with commenters that in the context of a modification request related 
to concealed or ``stealth''-designed facilities--i.e., facilities 
designed to look like some feature other than a wireless tower or base 
station--any change that defeats the concealment elements of such 
facilities would be considered a ``substantial change'' under section 
6409(a). Commenters differ on whether any other conditions previously 
placed on a wireless tower or base station should be considered in 
determining substantial change under section 6409(a). After 
consideration, the Commission agrees with municipal commenters that a 
change is substantial if it violates any condition of approval of 
construction or modification imposed on the applicable wireless tower 
or base station, unless the non-compliance is due to an increase in 
height, increase in width, addition of cabinets, or new excavation that 
does not exceed the corresponding ``substantial change'' thresholds. In 
other words, modifications qualify for section 6409(a) only if they 
comply, for example, with conditions regarding fencing, access to the 
site, drainage, height or width increases that exceed the thresholds 
the Commission adopted and other conditions of approval placed on the 
underlying structure. This approach, the Commission finds, properly 
preserves municipal authority to determine which structures are 
appropriate for wireless use and under what conditions, and reflects 
one of the three key priorities identified by the IAC in assessing 
substantial change.
    100. The Commission agrees with PCIA that legal, non-conforming 
structures should be available for modification under section 6409(a), 
as long as the modification itself does not ``substantially change'' 
the physical dimensions of the supporting structure as defined here. 
The Commission rejects municipal arguments that any modification of an 
existing wireless tower or base station that has ``legal, non-
conforming'' status should be considered a ``substantial change'' to 
its ``physical dimensions.'' As PCIA argues, the approach urged by 
municipalities could thwart the purpose of section 6409(a) altogether, 
as simple changes to local zoning codes could immediately turn existing 
structures into legal, non-conforming uses unavailable for collocation 
under the statute. Considering Congress's intent to promote wireless 
facilities deployment by encouraging collocation on existing 
structures, and considering the requirement in section 6409(a) that 
States and municipalities approve covered requests ``[n]otwithstanding 
. . . any other provision of law,'' the Commission finds the municipal 
commenters' proposal to be unsupportably restrictive.
    101. The record also reflects general consensus that wireless 
facilities modification under section 6409(a) should remain subject to 
building codes and other non-discretionary structural and safety codes. 
As municipal commenters indicate, many local jurisdictions have 
promulgated code provisions that encourage and promote collocations and 
replacements through a streamlined approval process, while ensuring 
that any new facilities comply with building and safety codes and 
applicable Federal and State regulations. Consistent with that approach 
on the local level, the Commission finds that Congress did not intend 
to exempt covered modifications from compliance with generally 
applicable laws related to public health and safety. The Commission 
concludes that States and localities may require a covered request to 
comply with generally applicable building, structural, electrical, and 
safety codes or with other laws codifying objective standards 
reasonably related to health and safety, and that they may condition 
approval on such compliance. In particular, the Commission clarifies 
that section 6409(a) does not preclude States and localities from 
continuing to require compliance with generally applicable health and 
safety requirements on the placement and operation of backup power 
sources, including noise control ordinances if any. The Commission 
further clarifies that eligible facility requests covered by section 
6409(a) must still comply with any relevant Federal requirement, 
including any applicable Commission, FAA, NEPA, or section 106 
requirements. The Commission finds that this interpretation is 
supported in the record, addresses a concern raised by several 
municipal commenters and the IAC, and is consistent with the express 
direction in section 6409(a) that the provision is not intended to 
relieve the Commission from the requirements of NEPA and NHPA.
    102. In sum, the Commission finds that the definitions, criteria, 
and related clarifications it adopts for purposes of section 6409(a) 
will provide clarity and certainty, reducing delays and litigation, and 
thereby facilitate the rapid deployment of wireless infrastructure and 
promote advanced wireless broadband services. At the same time, the 
Commission concludes that its approach also addresses concerns

[[Page 1256]]

voiced by municipal commenters and reflects the priorities identified 
by the IAC. The Commission concludes that this approach reflects a 
reasonable interpretation of the language and purposes of section 
6409(a) and will serve the public interest.
2. Application Review Process, Including Timeframe for Review
    103. As an initial matter, the Commission finds that State or local 
governments may require parties asserting that proposed facilities 
modifications are covered under section 6409(a) to file applications, 
and that these governments may review the applications to determine 
whether they constitute covered requests. As the Bureau observed in the 
Section 6409(a) PN, the statutory provision requiring a State or local 
government to approve an ``eligible facilities request'' implies that 
the relevant government entity may require an applicant to file a 
request for approval. Further, nothing in the provision indicates that 
States or local governments must approve requests merely because 
applicants claim they are covered. Rather, under section 6409(a), only 
requests that do in fact meet the provision's requirements are entitled 
to mandatory approval. Therefore, States and local governments must 
have an opportunity to review applications to determine whether they 
are covered by section 6409(a), and if not, whether they should in any 
case be granted.
    104. The Commission further concludes that section 6409(a) warrants 
the imposition of certain requirements with regard to application 
processing, including a specific timeframe for State or local 
government review and a limitation on the documentation States and 
localities may require. While section 6409(a), unlike section 
332(c)(7), does not expressly provide for a time limit or other 
procedural restrictions, the Commission concludes that certain 
limitations are implicit in the statutory requirement that a State or 
local government ``may not deny, and shall approve'' covered requests 
for wireless facility siting. In particular, the Commission concludes 
that the provision requires not merely approval of covered 
applications, but approval within a reasonable period of time 
commensurate with the limited nature of the review, whether or not a 
particular application is for ``personal wireless service'' facilities 
covered by section 332(c)(7). With no such limitation, a State or local 
government could evade its statutory obligation to approve covered 
applications by simply failing to act on them, or it could impose 
lengthy and onerous processes not justified by the limited scope of 
review contemplated by the provision. Such unreasonable delays not only 
would be inconsistent with the mandate to approve but also would 
undermine the important benefits that the provision is intended to 
provide to the economy, competitive wireless broadband deployment, and 
public safety. The Commission requires that States and localities grant 
covered requests within a specific time limit and pursuant to other 
procedures outlined below.
    105. The Commission finds substantial support in the record for 
adopting such requirements. It is clear from the record that there is 
significant dispute as to whether any time limit applies at all under 
section 6409(a) and, if so, what that limit is. The Commission also 
notes that there is already some evidence in the record, albeit 
anecdotal, of significant delays in the processing of covered requests 
under this new provision, which may be partly a consequence of the 
current uncertainty regarding the applicability of any time limit. 
Because the statutory language does not provide guidance on these 
requirements, the Commission is concerned that, without clarification, 
future disputes over the process could significantly delay the benefits 
associated with the statute's implementation. Moreover, the Commission 
finds it important that all stakeholders have a clear understanding of 
when an applicant may seek relief from a State or municipal failure to 
act under section 6409(a). The Commission finds further support for 
establishing these process requirements in analogous State statutes, 
nearly all of which include a timeframe for review.
    106. Contrary to the suggestion of municipalities, the Commission 
disagrees that the Tenth Amendment prevents the Commission from 
exercising its authority under the Spectrum Act to implement and 
enforce the limitations imposed thereunder on State and local land use 
authority. These limitations do not require State or local authorities 
to review wireless facilities siting applications, but rather preempt 
them from choosing to exercise such authority under their laws other 
than in accordance with Federal law--i.e., to deny any covered 
requests. The Commission therefore adopts the following procedural 
requirements for processing applications under section 6409(a).
    107. First, the Commission provides that in connection with 
requests asserted to be covered by section 6409(a), State and local 
governments may only require applicants to provide documentation that 
is reasonably related to determining whether the request meets the 
requirements of the provision. The Commission finds that this 
restriction is appropriate in light of the limited scope of review 
applicable to such requests and that it will facilitate timely approval 
of covered requests. At the same time, under this standard, State or 
local governments have considerable flexibility in determining 
precisely what information or documentation to require. The Commission 
agrees with PCIA that States and localities may not require 
documentation proving the need for the proposed modification or 
presenting the business case for it. The Commission anticipates that 
over time, experience and the development of best practices will lead 
to broad standardization in the kinds of information required. As 
discussed above, even as to applications covered by section 6409(a), 
State and local governments may continue to enforce and condition 
approval on compliance with non-discretionary codes reasonably related 
to health and safety, including building and structural codes. The 
Commission finds that municipalities should have flexibility to decide 
when to require applicants to provide documentation of such compliance, 
as a single documentation submission may be more efficient than a 
series of submissions, and municipalities may also choose to integrate 
such compliance review into the zoning process. Accordingly, the 
Commission clarifies that this documentation restriction does not 
prohibit States and local governments from requiring documentation 
needed to demonstrate compliance with any such applicable codes.
    108. In addition to defining acceptable documentation requirements, 
the Commission establishes a specific and absolute timeframe for State 
and local processing of eligible facilities requests under section 
6409(a). The Commission finds that a 60-day period for review, 
including review to determine whether an application is complete, is 
appropriate. In addressing this issue, it is appropriate to consider 
not only the record support for a time limit on review but also State 
statutes that facilitate collocation applications. Many of these 
statutes impose review time limits, thus providing valuable insight 
into States' views on the appropriate amount of time. Missouri, New 
Hampshire, and Wisconsin, for example, have determined that 45 days is 
the maximum amount of time available to a municipality to review 
applications, while Georgia, North

[[Page 1257]]

Carolina, and Pennsylvania have adopted a 90-day review period, 
including review both for completeness and for approval. Michigan's 
statute provides that after the application is filed, the locality has 
14 days to deem the application complete and an additional 60 days to 
review. The Commission finds it appropriate to adopt a 60-day time 
period as the time limit for review of an application under section 
6409(a).
    109. The Commission finds that a period shorter than the 90-day 
period applicable to review of collocations under section 332(c)(7) of 
the Communications Act is warranted to reflect the more restricted 
scope of review applicable to applications under section 6409(a). The 
Commission further finds that a 60-day period of review, rather than 
the 45-day period proposed by many industry commenters, is appropriate 
to provide municipalities with sufficient time to review applications 
for compliance with section 6409(a), because the timeframe sets an 
absolute limit that--in the event of a failure to act--results in a 
deemed grant. Thus, whereas a municipality may rebut a claim of failure 
to act under section 332(c)(7) if it can demonstrate that a longer 
review period was reasonable, that is not the case under section 
6409(a). Rather, if an application covered by section 6409(a) has not 
been approved by a State or local government within 60 days from the 
date of filing, accounting for any tolling, as described below, the 
reviewing authority will have violated section 6409(a)'s mandate to 
approve and not deny the request, and the request will be deemed 
granted.
    110. The Commission further provides that the foregoing section 
6409(a) timeframe may be tolled by mutual agreement or in cases where 
the reviewing State or municipality informs the applicant in a timely 
manner that the application is incomplete. As with tolling for 
completeness under section 332(c)(7) (as discussed in the R&O), an 
initial determination of incompleteness tolls the running of the period 
only if the State or local government provides notice to the applicant 
in writing within 30 days of the application's submission. The 
Commission also requires that any determination of incompleteness must 
clearly and specifically delineate the missing information in writing, 
similar to determinations of incompleteness under section 332(c)(7). 
Further, consistent with the documentation restriction established 
above, the State or municipality may only specify as missing 
information and supporting documents that are reasonably related to 
determining whether the request meets the requirements of section 
6409(a).
    111. The timeframe for review will begin running again when the 
applicant makes a supplemental submission, but may be tolled again if 
the State or local government provides written notice to the applicant 
within 10 days that the application remains incomplete and specifically 
delineates which of the deficiencies specified in the original notice 
of incompleteness have not been addressed. The timeframe for review 
will be tolled in this circumstance until the applicant supplies the 
relevant authority with the information delineated. Consistent with 
determinations of incompleteness under section 332(c)(7) as described 
below, any second or subsequent determination that an application is 
incomplete may be based only on the applicant's failure to provide the 
documentation or information the State or municipality required in its 
initial request for additional information. Further, if the 10-day 
period passes without any further notices of incompleteness from the 
State or locality, the period for review of the application may not 
thereafter be tolled for incompleteness.
    112. The Commission further finds that the timeframe for review 
under section 6409(a) continues to run regardless of any local 
moratorium. This is once again consistent with its approach under 
section 332(c)(7), and is further warranted in light of section 
6409(a)'s direction that covered requests shall be approved 
``[n]otwithstanding . . . any other provision of law.''
    113. Some additional clarification of time periods and deadlines 
will assist in cases where both section 6409(a) and section 332(c)(7) 
apply. In particular, the Commission notes that States and 
municipalities reviewing an application under section 6409(a) will be 
limited to a restricted application record tailored to the requirements 
of that provision. As a result, the application may be complete for 
purposes of section 6409(a) review but may not include all of the 
information the State or municipality requires to assess applications 
not subject to section 6409(a). In such cases, if the reviewing State 
or municipality finds that section 6409(a) does not apply (because, for 
example, it proposes a substantial change), the Commission provides 
that the presumptively reasonable timeframe under section 332(c)(7) 
will start to run from the issuance of the State's or municipality's 
decision that section 6409(a) does not apply. To the extent the State 
or municipality needs additional information at that point to assess 
the application under section 332(c)(7), it may seek additional 
information subject to the same limitations applicable to other section 
332(c)(7) reviews. The Commission recognizes that, in such cases, there 
might be greater delay in the process than if the State or municipality 
had been permitted to request the broader documentation in the first 
place. The Commission finds that applicants are in a position to judge 
whether to seek approval under section 6409(a), and the Commission 
expects they will have strong incentives to do so in a reasonable 
manner to avoid unnecessary delays. Finally, as the Commission proposed 
in the Infrastructure NPRM, the Commission finds that where both 
section 6409(a) and section 332(c)(7) apply, section 6409(a) governs, 
consistent with the express language of section 6409(a) providing for 
approval ``[n]otwithstanding'' section 332(c)(7) and with canons of 
statutory construction that a more recent statute takes precedence over 
an earlier one and that ``normally the specific governs the general.''
    114. Beyond the guidance provided in the R&O, the Commission 
declines to adopt the other proposals put forth by commenters regarding 
procedures for the review of applications under section 6409(a) or the 
collection of fees. The Commission concludes that its clarification and 
implementation of this statutory provision strikes the appropriate 
balance of ensuring the timely processing of these applications and 
preserving flexibility for State and local governments to exercise 
their rights and responsibilities. Given the limited record of problems 
implementing the provision, further action to specify procedures would 
be premature.
3. Remedies
    115. After a careful assessment of the statutory provision and a 
review of the record, the Commission establishes a deemed granted 
remedy for cases in which the applicable State or municipal reviewing 
authority fails to issue a decision within 60 days (subject to any 
tolling, as described above) on an application submitted pursuant to 
section 6409(a). The Commission further concludes that a deemed grant 
does not become effective until the applicant notifies the reviewing 
jurisdiction in writing, after the time period for review by the State 
or municipal reviewing authority as prescribed in the Commission's 
rules has expired, that the application has been deemed granted.
    116. The Commission's reading of section 6409(a) supports this 
approach.

[[Page 1258]]

The provision states without equivocation that the reviewing authority 
``may not deny, and shall approve'' any qualifying application. This 
directive leaves no room for a lengthy and discretionary approach to 
reviewing an application that meets the statutory criteria; once the 
application meets these criteria, the law forbids the State or local 
government from denying it. Moreover, while State and local governments 
retain full authority to approve or deny an application depending on 
whether it meets the provision's requirements, the statute does not 
permit them to delay this obligatory and non-discretionary step 
indefinitely. In the R&O, the Commission defines objectively the 
statutory criteria for determining whether an application is entitled 
to a grant under this provision. Given the objective nature of this 
assessment, then, the Commission concludes that withholding a decision 
on an application indefinitely, even if an applicant can seek relief in 
court or in another tribunal, would be tantamount to denying it, in 
contravention of the statute's pronouncement that reviewing authorities 
``may not deny'' qualifying applications. The Commission finds that the 
text of section 6409(a) supports adoption of a deemed granted remedy, 
which will directly serve the broader goal of promoting the rapid 
deployment of wireless infrastructure. The Commission notes as well 
that its approach is consistent with other Federal agencies' processes 
to address inaction by State and local authorities.
    117. Many municipalities oppose the adoption of a deemed granted 
remedy primarily on the ground that it arguably represents an intrusion 
into local decision-making authority. The Commission fully acknowledges 
and values the important role that local reviewing authorities play in 
the siting process, and, as the Commission stated in the Infrastructure 
NPRM, ``[the Commission's] goal is not to `operate as a national zoning 
board.' '' At the same time, its authority and responsibility to 
implement and enforce section 6409(a) as if it were a provision of the 
Communications Act obligate the Commission to ensure effective 
enforcement of the congressional mandate reflected therein. To do so, 
given its ``broad grant of rulemaking authority,'' the importance of 
ensuring rapid deployment of commercial and public safety wireless 
broadband services as reflected in the adoption of the Spectrum Act, 
and in light of the record of disputes in this proceeding, as well as 
the prior experience of the Commission with delays in municipal action 
on wireless facility siting applications that led to the 2009 
Declaratory Ruling, the Commission concludes it is necessary to balance 
these federalism concerns against the need for ensuring prompt action 
on section 6409(a) applications. The Commission adopts this approach in 
tandem with several measures that safeguard the primacy of State and 
local government participation in local land use policy, to the extent 
consistent with the requirements of section 6409(a). First, the 
Commission has adopted a 60-day time period for States and localities 
to review applications submitted under section 6409(a). While many 
industry commenters proposed a 45-day review period based on the non-
discretionary analysis that the provision requires, the Commission has 
provided more time in part to ensure that reviewing authorities have 
sufficient time to assess the applications.
    118. Second, the Commission is establishing a clear process for 
tolling the 60-day period when an applicant fails to submit a complete 
application, thus ensuring that the absence of necessary information 
does not prevent a State or local authority from completing its review 
before the time period expires.
    119. Third, even in the event of a deemed grant, the section 106 
historic preservation review process--including coordination with State 
and Tribal historic preservation officers--will remain in place with 
respect to any proposed deployments in historic districts or on 
historic buildings (or districts and buildings eligible for such 
status).
    120. Fourth, a State or local authority may challenge an 
applicant's written assertion of a deemed grant in any court of 
competent jurisdiction when it believes the underlying application did 
not meet the criteria in section 6409(a) for mandatory approval, would 
not comply with applicable building codes or other non-discretionary 
structural and safety codes, or for other reasons is not appropriately 
``deemed granted.''
    121. Finally, and perhaps most importantly, the deemed granted 
approach does not deprive States and localities of the opportunity to 
determine whether an application is covered; rather, it provides a 
remedy for a failure to act within the fixed but substantial time 
period within which they must determine, on a non-discretionary and 
objective basis, whether an application fits within the parameters of 
section 6409(a).
    122. The Commission emphasizes as well that it expects deemed 
grants to be the exception rather than the rule. To the extent there 
have been any problems or delays due to ambiguity in the provision, the 
Commission anticipates that the framework it has established, including 
the specification of substantive and procedural rights and applicable 
remedies, will address many of these problems. The Commission 
anticipates as well that the prospect of a deemed grant will create 
significant incentives for States and municipalities to act in a timely 
fashion.
    123. With respect to the appropriate forum for redress or for 
resolving disputes, including disputes over the application of the 
deemed grant rule, the Commission finds that the most appropriate 
course for a party aggrieved by operation of section 6409(a) is to seek 
relief from a court of competent jurisdiction. Although the Commission 
finds that it has authority to resolve such disputes under its 
authority to implement and enforce that provision, the Commission also 
finds that requiring that these disputes be resolved in court, and not 
by the Commission, will better accommodate the role of the States and 
local authorities and serve the public interest for the reasons the 
municipal commenters identify and as discussed in the R&O.
    124. A number of factors persuade the Commission to require parties 
to adjudicate claims under section 6409(a) in court rather than before 
the Commission. First, Commission adjudication would impose significant 
burdens on localities, many of which are small entities with no 
representation in Washington, DC and no experience before the 
Commission. The possible need for testimony to resolve disputed factual 
issues, which may occur in these cases, would magnify the burden. The 
Commission is also concerned that it may simply lack the resources to 
adjudicate these matters in a timely fashion if the Commission enables 
parties to seek its review of local zoning disputes arising in as many 
as 38,000 jurisdictions, thus thwarting Congress's goal of speeding up 
the process. The Commission also agrees with municipalities that it 
does not have any particular expertise in resolving local zoning 
disputes, whereas courts have been adjudicating claims of failure to 
act on wireless facility siting applications since the adoption of 
section 332(c)(7).
    125. The Commission requires parties to bring claims related to 
section 6409(a) in a court of competent jurisdiction. Such claims would 
appear likely to fall into one of three categories. First, if the State 
or local authority has denied the application, an applicant might seek 
to challenge that denial. Second, if an

[[Page 1259]]

applicant invokes its deemed grant right after the requisite period of 
State or local authority inaction, that reviewing authority might seek 
to challenge the deemed grant. Third, an applicant whose application 
has been deemed granted might seek some form of judicial imprimatur for 
the grant by filing a request for declaratory judgment or other relief 
that a court may find appropriate. In light of the policy underlying 
section 6409(a) to ensure that covered requests are granted promptly, 
and in the self-interest of the affected parties, the Commission would 
expect that these parties would seek judicial review of any such claims 
relating to section 6409(a) expeditiously. The enforcement of such 
claims is a matter appropriately left to such courts of competent 
jurisdiction. Given the foregoing Federal interest reflected in section 
6409(a), it would appear that the basis for equitable judicial remedies 
would diminish significantly absent prompt action by the aggrieved 
party. In its judgment, based on the record established in this 
proceeding, the Commission finds no reason why (absent a tolling 
agreement by parties seeking to resolve their differences) such claims 
cannot and should not be brought within 30 days of the date of the 
relevant event (i.e., the date of the denial of the application or the 
date of the notification by the applicant to the State or local 
authority of a deemed grant in accordance with the Commission's rules).
4. Non-application to States or Municipalities in Their Proprietary 
Capacities
    126. As proposed in the Infrastructure NPRM and supported by the 
record, the Commission concludes that section 6409(a) applies only to 
State and local governments acting in their role as land use regulators 
and does not apply to such entities acting in their proprietary 
capacities. As discussed in the record, courts have consistently 
recognized that in ``determining whether government contracts are 
subject to preemption, the case law distinguishes between actions a 
State entity takes in a proprietary capacity--actions similar to those 
a private entity might take--and its attempts to regulate.'' As the 
Supreme Court has explained, ``[i]n the absence of any express or 
implied implication by Congress that a State may not manage its own 
property when it pursues its purely proprietary interests, and when 
analogous private conduct would be permitted, this Court will not infer 
such a restriction.'' Like private property owners, local governments 
enter into lease and license agreements to allow parties to place 
antennas and other wireless service facilities on local-government 
property, and the Commission finds no basis for applying section 
6409(a) in those circumstances. The Commission finds that this 
conclusion is consistent with judicial decisions holding that sections 
253 and 332(c)(7) of the Communications Act do not preempt ``non 
regulatory decisions of a state or locality acting in its proprietary 
capacity.''
    127. The Commission declines at this time to further elaborate as 
to how this principle should apply to any particular circumstance in 
connection with section 6409(a). The Commission agrees with Alexandria 
et al. that the record does not demonstrate a present need to define 
what actions are and are not proprietary, and the Commission concludes 
in any case that such a task is best undertaken, to the extent 
necessary, in the context of a specific municipal action and associated 
record.
5. Effective Date
    128. Based on its review of the record, the Commission is persuaded 
that a transition period is necessary and appropriate. The Commission 
agrees with certain municipal commenters that affected State and local 
governments may need time to make modifications to their laws and 
procedures to conform to and comply with the rules the Commission 
adopts in the R&O implementing and enforcing section 6409(a), and that 
a transition period is warranted to give them time to do so. The 
Commission concludes as proposed by the IAC and other parties that the 
rules adopted to implement section 6409(a) will take effect 90 days 
after Federal Register publication.

IV. Section 332(c)(7) and the 2009 Declaratory Ruling

A. Background

    129. In 2009, the Commission adopted a Declaratory Ruling in 
response to a petition requesting clarification on two points: what 
constitutes a ``reasonable period of time'' after which an aggrieved 
applicant may file suit asserting a failure to act under section 
332(c)(7), and whether a zoning authority may restrict competitive 
entry by multiple providers in a given area under section 
332(c)(7)(B)(i)(II). In the 2009 Declaratory Ruling, the Commission 
interpreted a ``reasonable period of time'' under section 
332(c)(7)(B)(ii) to be 90 days for processing collocation applications, 
and 150 days for processing applications other than collocations. The 
Commission further determined that failure to meet the applicable 
timeframe presumptively constitutes a failure to act under section 
332(c)(7)(B)(v), enabling an applicant to pursue judicial relief within 
the next 30 days.
    130. In the Infrastructure NPRM, while stating that it would not 
generally revisit the 2009 Declaratory Ruling, the Commission sought 
comment on six discrete issues arising under section 332(c)(7) and the 
2009 Declaratory Ruling: (1) Whether and how to clarify when a siting 
application is considered complete for the purpose of triggering the 
2009 Declaratory Ruling's shot clock; (2) whether to clarify that the 
presumptively reasonable period for State or local government action on 
an application runs regardless of any local moratorium; (3) whether the 
2009 Declaratory Ruling applies to DAS and small-cell facilities; (4) 
whether to clarify the types of actions that constitute 
``collocations'' for purposes of triggering the shorter shot clock; (5) 
whether local ordinances establishing preferences for deployment on 
municipal property violate section 332(c)(7)(B)(i)(I); and (6) whether 
to adopt an additional remedy for failures to act in violation of 
section 332(c)(7).

B. Discussion

1. Completeness of Applications
    131. The Commission finds that it should clarify under what 
conditions the presumptively reasonable timeframes may be tolled on 
grounds that an application is incomplete. As an initial matter, the 
Commission notes that under the 2009 Declaratory Ruling, the 
presumptively reasonable timeframe begins to run when an application is 
first submitted, not when it is deemed complete. Accordingly, to the 
extent municipalities have interpreted the clock to begin running only 
after a determination of completeness, that interpretation is 
incorrect.
    132. Further, consistent with proposals submitted by Crown Castle 
and PCIA, the Commission clarifies that, following a submission in 
response to a determination of incompleteness, any subsequent 
determination that an application remains incomplete must be based 
solely on the applicant's failure to supply information that was 
requested within the first 30 days. The shot clock will begin running 
again after the applicant makes a supplemental submission. The State or 
local government will have 10 days to notify the applicant that the 
supplemental submission did not provide the information identified in 
the original notice delineating missing information. In other words, a 
subsequent

[[Page 1260]]

determination of incompleteness can result in further tolling of the 
shot clock only if the local authority provides it to the applicant in 
writing within 10 days of the supplemental submission, specifically 
identifying the information the applicant failed to supply in response 
to the initial request. Once the 10-day period passes, the period for 
review of the application may not thereafter be tolled for 
incompleteness.
    133. The Commission further provides that, in order to toll the 
timeframe for review on grounds of incompleteness, a municipality's 
request for additional information must specify the code provision, 
ordinance, application instruction, or otherwise publically-stated 
procedures that require the information to be submitted. This 
requirement will avoid delays due to uncertainty or disputes over what 
documents or information are required for a complete application. 
Further, while some municipal commenters argue that ``[n]ot all 
jurisdictions codify detailed application submittal requirements 
because doing so would require a code amendment for even the slightest 
change,'' the Commission's approach does not restrict them to reliance 
on codified documentation requirements.
    134. Beyond these procedural requirements, the Commission declines 
to enumerate what constitutes a ``complete'' application. The 
Commission finds that State and local governments are best suited to 
decide what information they need to process an application. 
Differences between jurisdictions make it impractical for the 
Commission to specify what information should be included in an 
application.
    135. The Commission finds that these clarifications will provide 
greater certainty regarding the period during which the clock is tolled 
for incompleteness. This in turn provides clarity regarding the time at 
which the clock expires, at which point an applicant may bring suit 
based on a ``failure to act.'' Further, the Commission expects that 
these clarifications will result in shared expectations among parties, 
thus limiting potential miscommunication and reducing the potential or 
need for serial requests for more information. These clarifications 
will facilitate faster application processing, reduce unreasonable 
delay, and accelerate wireless infrastructure deployment.
2. Moratoria
    136. The Commission clarifies that the shot clock runs regardless 
of any moratorium. This is consistent with a plain reading of the 2009 
Declaratory Ruling, which specifies the conditions for tolling and 
makes no provision for moratoria. Moreover, its conclusion that the 
clock runs regardless of any moratorium means that applicants can 
challenge moratoria in court when the shot clock expires without State 
or local government action, which is consistent with the case-by-case 
approach that courts have generally applied to moratoria under section 
332(c)(7). This approach, which establishes clearly that an applicant 
can seek redress in court even when a jurisdiction has imposed a 
moratorium, will prevent indefinite and unreasonable delay of an 
applicant's ability to bring suit.
    137. Some commenters contend that this approach would, in effect, 
improperly require municipal staff to simultaneously review and update 
their regulations to adapt to new technologies while also reviewing 
applications. The Commission recognizes that new technologies may in 
some cases warrant changes in procedures and codes, but finds no reason 
to conclude that the need for any such change should freeze all 
applications. The Commission is confident that industry and local 
governments can work together to resolve applications that may require 
more staff resources due to complexity, pending changes to the relevant 
siting regulations, or other special circumstances. Moreover, in those 
instances in which a moratorium may reasonably prevent a State or 
municipality from processing an application within the applicable 
timeframe, the State or municipality will, if the applicant seeks 
review, have an opportunity to justify the delay in court. The 
Commission clarifies that the shot clock continues to run regardless of 
any moratorium.
    138. The Commission declines at this time to determine that a 
moratorium that lasts longer than six months constitutes a per se 
violation of the obligation to take action in a reasonable period of 
time. Although some have argued that a six-month limit would 
``discourage localities from circumventing the intent of the 
Commission's shot clock rules,'' others disagree, and the record 
provides insufficient evidence to support a per se determination at 
this juncture. Given its clarification that the presumptively 
reasonable timeframes apply regardless of moratoria, any moratorium 
that results in a delay of more than 90 days for a collocation 
application or 150 days for any other application will be presumptively 
unreasonable.
3. Application to DAS and Small Cells
    139. The Commission clarifies 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, their siting applications are subject to the same 
presumptively reasonable timeframes that apply to applications related 
to other personal wireless service facilities. The Commission notes 
that courts have addressed the issue and, consistent with its 
conclusion, have found that the timeframes apply to DAS and small-cell 
deployments.
    140. Some commenters argue that the shot clocks should not apply 
because some providers describe DAS and small-cell deployments as 
wireline, not wireless, facilities. Determining whether facilities are 
``personal wireless service facilities'' subject to section 332(c)(7) 
does not rest on a provider's characterization in another context; 
rather, the analysis turns simply on whether they are facilities used 
to provide personal wireless services. Based on its review of the 
record, the Commission finds no evidence sufficient to compel the 
conclusion that the characteristics of DAS and small-cell deployments 
somehow exclude them from section 332(c)(7) and the 2009 Declaratory 
Ruling. For similar reasons, the Commission rejects Coconut Creek's 
argument that the shot clocks should apply only to neutral host 
deployments.
    141. Some commenters suggest revising the Commission's proposal on 
the grounds that the unique qualities of DAS and small-cell systems 
require longer timeframes for municipal review. The Commission declines 
to adjust the timelines as these commenters suggest. The Commission 
notes that the timeframes are presumptive, and the Commission expects 
applicants and State or local governments to agree to extensions in 
appropriate cases. Moreover, courts will be positioned to assess the 
facts of individual cases--including whether the applicable time period 
``t[ook] into account the nature and scope of [the] request''--in 
instances where the shot clock expires and the applicant seeks review. 
The Commission also notes that DAS and small-cell deployments that 
involve installation of new poles will trigger the 150-day time period 
for new construction that many municipal commenters view as reasonable 
for DAS and small-cell applications. The Commission finds it 
unnecessary to modify the presumptive timeframes as they apply to DAS 
applications.

[[Page 1261]]

4. Definition of Collocation
    142. After reviewing the record, the Commission declines to make 
any changes or clarifications to the existing standard established in 
the 2009 Declaratory Ruling for applying the 90-day shot clock for 
collocations. In particular, the Commission declines to apply the 
``substantial change'' test that the Commission establishes in the R&O 
for purposes of section 6409(a). The Commission observes that sections 
6409(a) and 332(c)(7) serve different purposes, and the Commission 
finds that the tests for ``substantial change'' and ``substantial 
increase in size'' are appropriately distinct. More specifically, the 
test for a ``substantial increase in size'' under section 332(c)(7) 
affects only the length of time for State or local review, while the 
test the Commission adopts under section 6409(a) identifies when a 
State or municipality must grant an application. This is a meaningful 
distinction that merits a more demanding standard under section 
6409(a).
    143. Considering that these provisions cover different (though 
overlapping) pools of applications, it is appropriate to apply them 
differently. Further, the Commission finds no compelling evidence in 
the record that using the same test for both provisions would provide 
significant administrative efficiencies or limit confusion, as some 
have argued. The Commission preserves distinct standards under the two 
provisions.
5. Preferences for Deployments on Municipal Property
    144. The Commission finds insufficient evidence in the record to 
make a determination that municipal property preferences are per se 
unreasonably discriminatory or otherwise unlawful under section 
332(c)(7). To the contrary, most industry and municipal commenters 
support the conclusion that many such preferences are valid. Consistent 
with the majority of comments on this issue, the Commission declines at 
this time to find municipal property preferences per se unlawful under 
section 332(c)(7).
6. Remedies
    145. After reviewing the record, the Commission declines to adopt 
an additional remedy for State or local government failures to act 
within the presumptively reasonable time limits. The Commission also 
notes that a party pursuing a ``failure to act'' claim may ask the 
reviewing court for an injunction granting the application. Moreover, 
in the case of a failure to act within the reasonable timeframes set 
forth in the Commission's rules, and absent some compelling need for 
additional time to review the application, the Commission believes that 
it would also be appropriate for the courts to treat such circumstances 
as significant factors weighing in favor of such relief.

V. Procedural Matters

A. Final Regulatory Flexibility Analysis

    146. As required by section 603 of the Regulatory Flexibility Act 
(RFA), the Commission has prepared a Final Regulatory Flexibility 
Analysis (FRFA) of the expected impact on small entities of the 
requirements adopted in the R&O. To the extent that any statement 
contained in the FRFA is perceived as creating ambiguity with respect 
to the Commission's rules, or statements made in the R&O, the rules and 
R&O statements shall be controlling.
1. Need for, and Objectives of, the Report and Order
    147. In the R&O, the Commission takes important steps to promote 
the deployment of wireless infrastructure, recognizing that it is the 
physical foundation that supports all wireless communications. The R&O 
adopts and clarifies rules in four specific areas in an effort to 
reduce regulatory obstacles and bring efficiency to wireless facility 
siting and construction. The Commission does this by eliminating 
unnecessary reviews, thus reducing the burden on State and local 
jurisdictions and also on industry, including small businesses. In 
particular, the Commission updates and tailors the manner in which the 
Commission evaluates the impact of proposed deployments on the 
environment and historic properties. The Commission also adopts rules 
to clarify and implement statutory requirements related to State and 
local government review of infrastructure siting applications, and the 
Commission adopts an exemption from its environmental public 
notification process for towers that are in place for only short 
periods of time. Taken together, these steps will further facilitate 
the delivery of more wireless capacity in more locations to consumers 
throughout the United States. Its actions will expedite the deployment 
of equipment that does not harm the environment or historic properties, 
as well as recognize the limits on Federal, State, Tribal, and 
municipal resources available to review those cases that may adversely 
affect the environment or historic properties.
    148. First, the Commission adopts measures to refine its 
environmental and historic preservation review processes under NEPA and 
NHPA to account for new wireless technologies, including physically 
small facilities like those used in DAS networks and small-cell systems 
that are a fraction of the size of macrocell installations. Among 
these, the Commission expands an existing categorical exclusion from 
NEPA review so that it applies not only to collocations on buildings 
and towers, but also to collocations on other structures like utility 
poles. The Commission also adopts a new categorical exclusion from NEPA 
review for some kinds of deployments in utilities or communications 
rights-of-way. With respect to NHPA, the Commission creates new 
exclusions from section 106 review to address certain collocations that 
are currently subject to review only because of the age of the 
supporting structure. The Commission takes these steps to assure that, 
as the Commission continues to meet its responsibilities under NEPA and 
NHPA, the Commission also fulfills its obligation under the 
Communications Act to ensure that rapid, efficient, and affordable 
radio communications services are available to all Americans.
    149. Second, regarding temporary towers, the Commission adopts a 
narrow exemption from the Commission's requirement that owners of 
proposed towers requiring ASR provide 30 days of national and local 
notice to give members of the public an opportunity to comment on the 
proposed tower's potential environmental effects. The exemption from 
notification requirements applies only to proposed temporary towers 
meeting defined criteria, including limits on the size and duration of 
the installation, that greatly reduce the likelihood of any significant 
environmental effects. Allowing licensees to deploy temporary towers 
meeting these criteria without first having to complete the 
Commission's environmental notification process will enable them to 
more effectively respond to emergencies, natural disasters, and other 
planned and unplanned short-term spikes in demand without undermining 
the purposes of the notification process. This exemption will ``remove 
an administrative obstacle to the availability of broadband and other 
wireless services during major events and unanticipated periods of 
localized high demand'' where expanded or substitute service is needed 
quickly.

[[Page 1262]]

    150. Third, the Commission adopts rules to implement and enforce 
section 6409(a) of the Spectrum Act. Section 6409(a) provides, in part, 
that ``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.'' By requiring timely 
approval of eligible requests, Congress intended to advance wireless 
broadband service for both public safety and commercial users. Section 
6409(a) includes a number of undefined terms that bear directly on how 
the provision applies to infrastructure deployments, and the record 
confirms that there are substantial disputes on a wide range of 
interpretive issues under the provision. The Commission adopts rules 
that clarify many of these terms and enforce their requirements, thus 
advancing Congress's goal of facilitating rapid deployment. These rules 
will serve the public interest by providing guidance to all 
stakeholders on their rights and responsibilities under the provision, 
reducing delays in the review process for wireless infrastructure 
modifications, and facilitating the rapid deployment of wireless 
infrastructure and promoting advanced wireless broadband services.
    151. Finally, the Commission clarifies issues related to section 
332(c)(7) of the Communications Act and the Commission's 2009 
Declaratory Ruling. Among other things, the Commission explains when a 
siting application is complete so as to trigger the presumptively 
reasonable timeframes for local and State review of siting applications 
under the 2009 Declaratory Ruling, and how the shot clock timeframes 
apply to local moratoria and DAS or small-cell facilities. These 
clarifications will eliminate many disputes under section 332(c)(7), 
provide certainty about timing related to siting applications 
(including the time at which applicants may seek judicial relief), and 
preserve State and municipal governments' critical role in the siting 
application process.
    152. Taken together, the actions the Commission takes in the R&O 
will enable more rapid deployment of vital wireless facilities, 
delivering broadband and wireless innovations to consumers across the 
country. At the same time, they will safeguard the environment, 
preserve historic properties, protect the interest of Tribal Nations in 
their ancestral lands and cultural legacies, and address 
municipalities' concerns over impacts to aesthetics and other local 
values.
2. Summary of Significant Issues Raised by Public Comments in Response 
to the IRFA
    153. No commenters directly responded to the IRFA. Some commenters 
raised issues of particular relevance to small entities, and the 
Commission addresses those issues in the FRFA.
3. Response to Comments by the Chief Counsel for Advocacy of the Small 
Business Administration
    154. Pursuant to the Small Business Jobs Act of 2010, the 
Commission is required to respond to any comments filed by the Chief 
Counsel for Advocacy of the Small Business Administration (SBA), and to 
provide a detailed statement of any change made to the proposed rules 
as a result of those comments. The Chief Counsel did not file any 
comments in response to the proposed rules in this proceeding.
4. Description and Estimate of the Number of Small Entities To Which 
Rules Will Apply
    155. The RFA directs the Commission to provide a description of 
and, where feasible, an estimate of the number of small entities that 
will be affected by the rules, if adopted. The RFA generally defines 
the term ``small entity'' as having the same meaning as the terms 
``small business,'' ``small organization,'' and ``small government 
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.
    156. The R&O adopts 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 quantify them in the remainder of this 
section.
    157. Small Businesses, Small Organizations, and Small Governmental 
Jurisdictions. The Commission's action may, over time, affect a variety 
of small entities. To assist in assessing the R&O's effect on these 
entities, the Commission describes three comprehensive categories--
small businesses, small organizations, and small governmental 
jurisdictions--that encompass entities that could be directly affected 
by the rules the Commission adopts. As of 2010, there were 27.9 million 
small businesses in the United States, according to the SBA. 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.
    158. Wireless Telecommunications Carriers (except satellite). The 
Census Bureau defines this category as follows: ``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 (except Satellite). In this category, a 
business is small if it has 1,500 or fewer employees. For this 
category, census data for 2007 show that there were 1,383 firms that 
operated for the entire year. Of this total, 1,368 firms had employment 
of 999 or fewer employees and 15 had employment of 1000 employees or 
more. 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.
    159. Personal Radio Services. Personal radio services provide 
short-range, low-power radio for personal communications, radio 
signaling, and business communications not provided

[[Page 1263]]

for in other services. Personal radio services include services 
operating in spectrum licensed under part 95 of the Commission's rules. 
These services include Citizen Band Radio Service, General Mobile Radio 
Service, Radio Control Radio Service, Family Radio Service, Wireless 
Medical Telemetry Service, Medical Implant Communications Service, Low 
Power Radio Service, and Multi-Use Radio Service. 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 the Commission adopts. 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 the R&O.
    160. 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 in jurisdictions with populations 
of less than 50,000 fall within the definition of a small entity.
    161. 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. 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 PLMR licensees are small entities that may be affected 
by its action.
    162. Similarly, according to Commission data, 413 carriers reported 
that they were engaged in the provision of wireless telephony, 
including cellular service, PCS, and 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.
    163. 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 rules the Commission adopts could potentially impact every 
small business in the United States.
    164. 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 annual gross revenues of less than $15 million over 
the three previous calendar years. ``Very small business'' is defined 
as an entity that, together with its affiliates, has average annual 
gross revenues of not more than $3 million over the preceding three 
calendar years. The SBA has approved these definitions. The majority of 
MAS operators are licensed in bands where the Commission has 
implemented a geographic area licensing approach that requires 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 
Economic Area 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. In addition, an auction for 5,104 MAS licenses 
in 176 EAs was conducted in 2001. Seven winning bidders claimed status 
as small or very small businesses and won 611 licenses. In 2005, the 
Commission completed an auction (Auction 59) of 4,226 MAS licenses in 
the Fixed Microwave Services from the 928/959 and 932/941 MHz bands. 
Twenty-six winning bidders won a total of 2,323 licenses. Of the 26 
winning bidders in this auction, five claimed small business status and 
won 1,891 licenses.
    165. 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 action.
    166. Broadband Radio Service and Educational Broadband Service. 
Broadband Radio Service systems--previously referred to as Multipoint

[[Page 1264]]

Distribution Service (MDS) and Multichannel Multipoint Distribution 
Service 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). In connection with the 1996 
BRS auction, the Commission established a small business size standard 
as an entity that had annual average annual gross revenues of no more 
than $40 million over 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. The Commission 
previously estimated that of the 61 small business BRS auction winners, 
based on its review of licensing records, 48 remain small business 
licensees. In addition to the 48 small businesses that hold BTA 
authorizations, there are approximately 86 incumbent BRS licensees that 
are considered small entities; 18 incumbent BRS licensees do not meet 
the small business size standard. After adding the number of small 
business auction licensees to the number of incumbent licensees not 
already counted, there are currently approximately 133 BRS licensees 
that are defined as small businesses under either the SBA's rules or 
the Commission's rules. In 2009, the Commission conducted Auction 86, 
which involved the sale of 78 licenses in the BRS areas. The Commission 
established three small business size standards that were used in 
Auction 86: (i) An entity with attributed average annual gross revenues 
that exceeded $15 million and did not exceed $40 million for the 
preceding three years was considered a small business; (ii) an entity 
with attributed average annual gross revenues that exceeded $3 million 
and did not exceed $15 million for the preceding three years was 
considered a very small business; and (iii) an entity with attributed 
average annual gross revenues that did not exceed $3 million for the 
preceding three years was considered an entrepreneur. Auction 86 
concluded in 2009 with the sale of 61 licenses. Of the 10 winning 
bidders, two bidders that claimed small business status won four 
licenses; one bidder that claimed very small business status won three 
licenses; and two bidders that claimed entrepreneur status won six 
licenses. The Commission notes that, as a general matter, the number of 
winning bidders that qualify as small businesses at the close of an 
auction does not necessarily represent the number of small businesses 
currently in service.
    167. In addition, the SBA's placement of Cable Television 
Distribution Services in the category of Wired Telecommunications 
Carriers is applicable to cable-based educational broadcasting 
services. Since 2007, Wired Telecommunications Carriers have been 
defined as follows: ``This industry comprises establishments primarily 
engaged in operating and/or providing access to transmission facilities 
and infrastructure that they own and/or lease for the transmission of 
voice, data, text, sound, and video using wired telecommunications 
networks. Transmission facilities may be based on a single technology 
or a combination of technologies.'' Establishments in this industry use 
the wired telecommunications network facilities that they operate to 
provide a variety of services, such as wired telephony services, 
including VoIP services; wired (cable) audio and video programming 
distribution; and wired broadband Internet services. Establishments 
providing satellite television distribution services using facilities 
and infrastructure that they operate are included in this industry. The 
SBA has determined that a business in this category is a small business 
if it has 1,500 or fewer employees. Census data for 2007 shows that 
there were 3,188 firms in this category that operated for the duration 
of that year. Of those, 3,144 had fewer than 1000 employees, and 44 
firms had more than 1000 employees. Thus under this category and the 
associated small business size standard, the majority of such firms can 
be considered small. In addition to Census data, the Commission's 
Universal Licensing System indicates that as of July 2013, there are 
2,236 active EBS licenses. The Commission estimates that of these 2,236 
licenses, the majority are held by non-profit educational institutions 
and school districts, which are by statute defined as small businesses.
    168. Location and Monitoring Service (LMS). 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.
    169. Television Broadcasting. This Economic Census category 
``comprises establishments 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.'' The SBA has created the 
following small business size standard for such businesses: Those 
having $38.5 million or less in annual receipts. The 2007 U.S. Census 
indicates that 2,076 television stations operated in that year. Of that 
number, 1,515 had annual receipts of $10,000,000 dollars or less, and 
561 had annual receipts of more than $10,000,000. Since the Census has 
no additional classifications on the basis of which to identify the 
number of stations whose receipts exceeded $38.5 million in that year, 
the Commission concludes that the majority of television stations were 
small under the applicable SBA size standard.
    170. Apart from the U.S. Census, the Commission has estimated the 
number of licensed commercial television stations to be 1,387. In 
addition, according to Commission staff review of the BIA Advisory 
Services, LLC's Media Access Pro Television Database on March 28, 2012, 
about 950 of an estimated 1,300 commercial television stations (or 
approximately 73 percent) had revenues of $14 million or less. The 
Commission estimates that the majority of commercial television 
broadcasters are small entities.
    171. The Commission notes, that in assessing whether a business 
concern qualifies as small under the above definition, business 
(control) affiliations must be included. Its estimate likely overstates 
the number of small entities that might be affected by its action 
because the revenue figure on which it is based does not include or 
aggregate revenues from affiliated companies. 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 to define or quantify the criteria that would establish whether a 
specific television station is dominant in its field of operation. The 
estimate of small businesses to which rules may apply does not exclude 
any television station

[[Page 1265]]

from the definition of a small business on this basis and is possibly 
over-inclusive to that extent.
    172. In addition, the Commission has estimated the number of 
licensed noncommercial educational (NCE) television stations to be 395. 
These stations are non-profit, and considered to be small entities.
    173. There are also 2,414 LPTV stations, including Class A 
stations, and 4,046 TV translator stations. Given the nature of these 
services, the Commission will presume that all of these entities 
qualify as small entities under the above SBA small business size 
standard.
    174. Radio Broadcasting. The SBA defines a radio broadcast station 
as a small business if it has no more than $35.5 million in annual 
receipts. Business concerns included in this category are those 
``primarily engaged in broadcasting aural programs by radio to the 
public.'' According to review of the BIA Publications, Inc. Master 
Access Radio Analyzer Database as of November 26, 2013, about 11,331 
(or about 99.9 percent) of 11,341 commercial radio stations have 
revenues of $38.5 million or less and thus qualify as small entities 
under the SBA definition. The Commission notes that in assessing 
whether a business concern qualifies as small under the above 
definition, revenues from business (control) affiliations must be 
included. This estimate likely overstates the number of small entities 
that might be affected, because the revenue figure on which it is based 
does not include or aggregate revenues from affiliated companies.
    175. 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 to define or quantify 
the criteria that would establish whether a specific radio station is 
dominant in its field of operation. The estimate of small businesses to 
which rules may apply does not exclude any radio station from the 
definition of a small business on this basis and may be over-inclusive 
to that extent. Also, as noted, an additional element of the definition 
of ``small business'' is that the entity must be independently owned 
and operated. The Commission notes that it can be difficult to assess 
this criterion in the context of media entities and the estimates of 
small businesses to which they apply may be over-inclusive to this 
extent.
    176. FM translator stations and low power FM stations. The rules 
and clarifications the Commission adopts 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 $38.5 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.
    177. Multichannel Video Distribution and Data Service (MVDDS). 
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.
    178. Satellite Telecommunications. Two economic census categories 
address the satellite industry. Both establish a small business size 
standard of $32.54 million or less in annual receipts.
    179. The first category, ``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 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.
    180. The second category, ``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 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, 2,333 
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.
    181. 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 ASR registration, and may benefit from the 
exemption for certain temporary antenna structures that the Commission 
adopts in the R&O. In addition, non-licensee tower owners may be 
affected by its interpretations of section 6409(a) of the Spectrum Act 
or by its revisions to its interpretation of section 332(c)(7) of the 
Communications Act.

[[Page 1266]]

    182. As of September 5, 2014, the ASR database includes 
approximately 116,643 registration records reflecting a ''Constructed'' 
status and 13,972 registration records reflecting a ``Granted, Not 
Constructed'' status. These figures include both towers registered to 
licensees and towers registered to non-licensee tower owners. The 
Commission does not keep information from which it 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 ASR registration, the Commission does not collect information 
as to the number of such towers in use and cannot estimate the number 
of tower owners that would be subject to the rules the Commission 
adopts. Moreover, the SBA has not developed a size standard for small 
businesses in the category ``Tower Owners.'' The Commission is unable 
to determine the number of non-licensee tower owners that are small 
entities. The Commission believes that when all entities 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 the 
Commission adopts. The Commission does not have any basis for 
estimating the number of such non-licensee owners that are small 
entities.
5. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities
    183. The R&O adopts a narrow exemption from the Commission's 
requirement that owners of proposed towers requiring ASR registration 
provide 30 days of national and local notice to give members of the 
public an opportunity to comment on the proposed tower's potential 
environmental effects. The exemption from the notice requirements 
applies only to applicants seeking to register temporary antenna 
structures meeting certain criteria that greatly reduce the likelihood 
of any significant environmental effects. Specifically, proposed towers 
exempted from the Commission's local and national environmental 
notification requirement are those that (i) will be in use for 60 days 
or less, (ii) require notice of construction to the Federal Aviation 
Administration (FAA), (iii) do 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.
    184. 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. An applicant seeking to claim the temporary 
towers exemption from the environmental notification process must 
indicate on its FCC Form 854 that it is claiming the exemption for a 
new, proposed temporary tower and demonstrate that the proposed tower 
satisfies the applicable criteria. While small entities must comply 
with these requirements in order to take advantage of the exemption, on 
balance, the relief from compliance with local and national 
environmental notification requirements provided by the exemption 
greatly reduces burdens and economic impacts on small entities.
    185. The applicant may seek an extension of the exemption from the 
Commission's local and national environmental notification requirement 
of up to sixty days through another filing of Form 854, if the 
applicant can demonstrate that the extension of the exemption period is 
warranted due to changed circumstances or information that emerged 
after the exempted tower was deployed. The exemption adopted in the R&O 
is intended specifically for proposed towers that are intended and 
expected to be deployed for no more than 60 days, and the option to 
apply for an extension is intended only for cases of unforeseen or 
changed circumstances or information. Small entities, like all 
applicants, are expected to seek extensions of the exemption period 
only rarely and any burdens or economic impacts incurred by applying 
for such extensions should be minimal.
6. Steps Taken To Minimize the Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered
    186. 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 and reporting requirements under the rule for such 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 
such small entities.'' The FRFA incorporates by reference all 
discussion in the R&O that considers the impact on small entities of 
the rules adopted by the Commission. In addition, the Commission's 
consideration of those issues as to which the impact on small entities 
was specifically discussed in the record is summarized below.
    187. The actions taken in the R&O encourage and promote the 
deployment of advanced wireless broadband and other services by 
tailoring the regulatory review of new wireless network infrastructure 
consistent with the law and the public interest. The Commission 
anticipates that the steps taken in the R&O will not impose any 
significant economic impacts on small entities, and will in fact help 
reduce burdens on small entities by reducing the cost and delay 
associated with the deployment of such infrastructure.
    188. In the R&O, the Commission takes action in four major areas 
relating to the regulation of wireless facility siting and 
construction. In each area, the rules the Commission adopts and 
clarifications the Commission makes will not increase burdens or costs 
on small entities. To the contrary, its actions will reduce costs and 
burdens associated with deploying wireless infrastructure.
    189. First, the Commission adopts measures with regard to its NEPA 
process for review of environmental effects regarding wireless 
broadband deployment that should reduce existing regulatory costs for 
small entities that construct or deploy wireless infrastructure, and 
will not impose any additional costs on such entities. Specifically, 
the Commission clarifies that the existing NEPA categorical exclusion 
for antenna collocations on buildings and towers includes equipment 
associated with the antennas (such as wiring, cabling, cabinets, or 
backup-power), and that it also covers collocations in a building's 
interior. The Commission also expands the NEPA collocation categorical 
exclusion to cover collocations on structures other than buildings and 
towers, and adopts a new NEPA categorical exclusion for deployments, 
including deployments of new poles, in utility or communications 
rights-of-way that are in active use for such purposes, where the 
deployment does not constitute a substantial increase in size over the 
existing utility or communications uses. The Commission also adopts 
measures concerning its section 106 process for review of impact on 
historic properties. First, the Commission adopts certain

[[Page 1267]]

exclusions from section 106 review, and the Commission clarifies that 
the existing exclusions for certain collocations on buildings under the 
Commission's programmatic agreements extend to collocations inside 
buildings. These new exclusions and clarifications will reduce 
environmental compliance costs of small entities by providing that 
eligible proposed deployments of small wireless facilities do not 
require the preparation of an Environmental Assessment.
    190. Second, the Commission adopts an exemption from the 
Commission's requirement that ASR applicants must provide local and 
national environmental notification prior to submitting a completed ASR 
application for certain temporary antenna structures meeting criteria 
that makes them unlikely to have significant environmental effects. 
Specifically, the Commission exempts antenna structures that (1) will 
be in place for 60 days or less; (2) require notice of construction to 
the FAA; (3) do not require marking or lighting under FAA regulations; 
(4) will be less than 200 feet above ground level; and (5) will involve 
minimal or no ground excavation. This exemption will reduce the burden 
on wireless broadband providers and other wireless service providers, 
including small entities.
    191. Third, the Commission adopts several rules to clarify and 
implement the requirements of section 6409(a) of the Spectrum Act. In 
interpreting the statutory terms of this provision, such as ``wireless 
tower or base station,'' ``transmission equipment,'' and 
``substantially change the physical dimensions,'' the Commission 
generally does not distinguish between large and small entities, as the 
statute provides no indication that such distinctions were intended, 
and such distinctions have been proposed. Further, these clarifications 
will help limit potential ambiguities within the rule and thus reduce 
the burden associated with complying with this statutory provision, 
including the burden on small entities. Generally, the Commission 
clarifies that section 6409(a) applies only to State and local 
governments acting in their regulatory role and does not apply to such 
entities acting in their proprietary capacities.
    192. With regard to the process for reviewing an application under 
section 6409(a), the Commission provides that a State or local 
government may only require applicants to provide documentation that is 
reasonably related to determining whether the eligible facility request 
meets the requirements of section 6409(a) and that, within 60 days from 
the date of filing (accounting for tolling), a State or local 
government shall approve an application covered by section 6409(a). 
Where a State or local government fails to act on an application 
covered under section 6409(a) within the requisite time period, the 
application is deemed granted. Parties may bring claims under section 
6409(a) to a court of competent jurisdiction. The Commission declines 
to entertain such disputes in a Commission adjudication, which would 
impose significant burdens on localities, many of which are small 
entities with no representation in Washington, DC or experience before 
the Commission. Limiting relief to court adjudication lessens the 
burden on applicants in general, and small entities specifically.
    193. Lastly, the Commission adopts clarifications of its 2009 
Declaratory Ruling, which established the time periods after which a 
State or local government has presumptively failed to act on a 
facilities siting application ``within a reasonable period of time'' 
under section 332(c)(7) of the Act. Specifically, the Commission 
clarifies that the timeframe begins to run when an application is first 
submitted, not when it is deemed complete by the reviewing government. 
Further, a determination of incompleteness tolls the shot clock only if 
the State or local government provides notice to the applicant in 
writing within 30 days of the application's submission, specifically 
delineating all missing information. Following a submission in response 
to a determination of incompleteness, any subsequent determination that 
an application remains incomplete must be based solely on the 
applicant's failure to supply missing information that was identified 
within the first 30 days. These clarifications will provide greater 
certainty in the application process and reduce the potential or need 
for serial requests for more information. These clarifications will 
facilitate faster application processing, reduce unreasonable delay, 
and reduce the burden on regulated entities, including small 
businesses.
    194. The Commission also clarifies 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, their siting applications are subject to the same 
presumptively reasonable timeframes that apply to applications related 
to other personal wireless service facilities under section 332(c)(7). 
The Commission clarifies further that the presumptively reasonable 
timeframes run regardless of any applicable moratoria, and that 
municipal property preferences are not per se unreasonably 
discriminatory or otherwise unlawful under section 332(c)(7). Finally, 
the Commission concludes that the explicit remedies under section 
332(c)(7) preclude adoption of a deemed granted remedy for failures to 
act. These clarifications reduce confusion and delay within the siting 
process which in turn reduces the burden on industry and State and 
local jurisdictions alike, which may include small entities.
7. Federal Rules That Might Duplicate, Overlap, or Conflict With the 
Rules
    195. None.
8. Report to Congress
    196. The Commission will send a copy of the R&O, including the 
FRFA, in a report to be sent to Congress and the Government 
Accountability Office pursuant to the Congressional Review Act.
9. Report to Small Business Administration
    197. The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, will send a copy of the R&O, including 
the FRFA, to the Chief Counsel for Advocacy of the SBA.

B. Paperwork Reduction Act

    198. The R&O contains revised information collection requirements 
subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-
13. It will be submitted to the Office of Management and Budget (OMB) 
for review under section 3507(d) of the PRA. OMB, the general public, 
and other Federal agencies will be invited to comment on the modified 
information collection requirements contained in this proceeding in a 
separate Federal Register Notice. In addition, the Commission notes 
that pursuant to the Small Business Paperwork Relief Act of 2002, 
Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission previously 
sought specific comment on how the Commission might further reduce the 
information collection burden for small business concerns with fewer 
than 25 employees. In addition, the Commission has described impacts 
that might affect small businesses, which includes most businesses with 
fewer than 25 employees, in the FRFA.

C. Congressional Review Act

    199. The Commission will send a copy of the R&O in a report to be 
sent to Congress and the Government Accountability Office pursuant to 
the

[[Page 1268]]

Congressional Review Act (CRA), see 5 U.S.C. 801(a)(1)(A).

VI. Ordering Clauses

    200. It is ordered, pursuant to sections 1, 2, 4(i), 7, 201, 301, 
303, 309, and 332 of the Communications Act of 1934, as amended, 
sections 6003, 6213, and 6409(a) of the Middle Class Tax Relief and Job 
Creation Act of 2012, Public Law 112-96, 126 Stat. 156, 47 U.S.C. 151, 
152, 154(i), 157, 201, 301, 303, 309, 332, 1403, 1433, and 1455(a), 
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 the R&O IS 
hereby adopted. If any section, subsection, paragraph, sentence, clause 
or phrase of the R&O or the rules adopted therein is declared invalid 
for any reason, the remaining portions of the R&O and the rules adopted 
therein shall be severable from the invalid part and shall remain in 
full force and effect.
    201. It is further ordered that parts 1 and 17 of the Commission's 
Rules ARE amended as set forth in Appendix B of the R&O (see the Final 
Rules contained in this summary), and that these changes shall be 
effective 30 days after publication in the Federal Register, except for 
section 1.40001, which shall be effective 90 days after publication in 
the Federal Register; provided that those rules and requirements that 
require approval by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act shall become effective after the Commission 
publishes a notice in the Federal Register announcing such approval and 
the relevant effective date.
    202. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Report and Order, including the Final Regulatory 
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small 
Business Administration.

List of Subjects

47 CFR Part 1

    Administrative practice and procedure, Communications common 
carriers, Environmental impact statements, Federal buildings and 
facilities, Radio, Reporting and recordkeeping requirements, 
Satellites, Telecommunications.

47 CFR Part 17

    Aviation safety, Communications equipment, Reporting and 
recordkeeping requirements.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 1 and part 17 as follows:

PART 1--PRACTICE AND PROCEDURE

0
1. The authority citation for part 1 is amended 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, 1404, 1451, 1452, 
and 1455.


0
2. Section 1.1306 is amended by adding paragraph (c) and revising the 
first sentence of Note 1 read as follows:


Sec.  1.1306  Actions which are categorically excluded from 
environmental processing.

* * * * *
    (c)(1) Unless Sec.  1.1307(a)(4) is applicable, the provisions of 
Sec.  1.1307(a) requiring the preparation of EAs do not encompass the 
construction of wireless facilities, including deployments on new or 
replacement poles, if:
    (i) The facilities will be located in a right-of-way that is 
designated by a Federal, State, local, or Tribal government for 
communications towers, above-ground utility transmission or 
distribution lines, or any associated structures and equipment;
    (ii) The right-of-way is in active use for such designated 
purposes; and
    (iii) The facilities would not
    (A) Increase the height of the tower or non-tower structure by more 
than 10% or twenty feet, whichever is greater, over existing support 
structures that are located in the right-of-way within the vicinity of 
the proposed construction;
    (B) Involve the installation of more than four new equipment 
cabinets or more than one new equipment shelter;
    (C) Add an appurtenance to the body of the structure that would 
protrude from the edge of the structure more than twenty feet, or more 
than the width of the structure at the level of the appurtenance, 
whichever is greater (except that the deployment may exceed this size 
limit if necessary to shelter the antenna from inclement weather or to 
connect the antenna to the tower via cable); or
    (D) Involve excavation outside the current site, defined as the 
area that is within the boundaries of the leased or owned property 
surrounding the deployment or that is in proximity to the structure and 
within the boundaries of the utility easement on which the facility is 
to be deployed, whichever is more restrictive.
    (2) Such wireless facilities are subject to Sec.  1.1307(b) 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).

    Note 1: The provisions of Sec.  1.1307(a) requiring the 
preparation of EAs do not encompass the mounting of antenna(s) and 
associated equipment (such as wiring, cabling, cabinets, or backup-
power), on or in an existing building, or on an antenna tower or 
other man-made structure, unless Sec.  1.1307(a)(4) is applicable. * 
* *

* * * * *

0
3. Section 1.1307 is amended by redesignating paragraph (a)(4) as 
(a)(4)(i), and by adding new paragraph (a)(4)(ii) and a Note to 
paragraph (a)(4)(ii) to read as follows:


Sec.  1.1307  Actions that may have a significant environmental effect, 
for which Environmental Assessments (EAs) must be prepared.

    (a) * * *
    (4) * * *
    (ii) The requirements in paragraph (a)(4)(i) of this section do not 
apply to:
    (A) The mounting of antennas (including associated equipment such 
as wiring, cabling, cabinets, or backup-power) on existing utility 
structures (including utility poles and electric transmission towers in 
active use by a ``utility'' as defined in Section 224 of the 
Communications Act, 47 U.S.C. 224, but not including light poles, lamp 
posts, and other structures whose primary purpose is to provide public 
lighting) where the deployment meets the following conditions:
    (1) All antennas that are part of the deployment fit within 
enclosures (or if the antennas are exposed, within imaginary 
enclosures) that are individually no more than three cubic feet in 
volume, and all antennas on the structure, including any pre-existing 
antennas on the structure, fit within enclosures (or if the antennas 
are exposed, within imaginary enclosures) that total no more than six 
cubic feet in volume;
    (2) All other wireless equipment associated with the structure, 
including pre-existing enclosures and including equipment on the ground 
associated with antennas on the structure, are cumulatively no more 
than seventeen cubic feet in volume, exclusive of
    (i) Vertical cable runs for the connection of power and other 
services;
    (ii) Ancillary equipment installed by other entities that is 
outside of the applicant's ownership or control, and

[[Page 1269]]

    (iii) Comparable equipment from pre-existing wireless deployments 
on the structure;
    (3) The deployment will involve no new ground disturbance; and
    (4) The deployment would otherwise require the preparation of an EA 
under paragraph (a)(4)(i) of this section solely because of the age of 
the structure; or
    (B) The mounting of antennas (including associated equipment such 
as wiring, cabling, cabinets, or backup-power) on buildings or other 
non-tower structures where the deployment meets the following 
conditions:
    (1) There is an existing antenna on the building or structure;
    (2) One of the following criteria is met:
    (i) Non-Visible Antennas. The new antenna is not visible from any 
adjacent streets or surrounding public spaces and is added in the same 
vicinity as a pre-existing antenna;
    (ii) Visible Replacement Antennas. The new antenna is visible from 
adjacent streets or surrounding public spaces, provided that
    (A) It is a replacement for a pre-existing antenna,
    (B) The new antenna will be located in the same vicinity as the 
pre-existing antenna,
    (C) The new antenna will be visible only from adjacent streets and 
surrounding public spaces that also afford views of the pre-existing 
antenna,
    (D) The new antenna is not more than 3 feet larger in height or 
width (including all protuberances) than the pre-existing antenna, and
    (E) No new equipment cabinets are visible from the adjacent streets 
or surrounding public spaces; or
    (iii) Other Visible Antennas. The new antenna is visible from 
adjacent streets or surrounding public spaces, provided that
    (A) It is located in the same vicinity as a pre-existing antenna,
    (B) The new antenna will be visible only from adjacent streets and 
surrounding public spaces that also afford views of the pre-existing 
antenna,
    (C) The pre-existing antenna was not deployed pursuant to the 
exclusion in this subsection (Sec.  1.1307(a)(4)(ii)(B)(2)(iii)),
    (D) The new antenna is not more than three feet larger in height or 
width (including all protuberances) than the pre-existing antenna, and
    (E) No new equipment cabinets are visible from the adjacent streets 
or surrounding public spaces;
    (3) The new antenna complies with all zoning conditions and 
historic preservation conditions applicable to existing antennas in the 
same vicinity that directly mitigate or prevent effects, such as 
camouflage or concealment requirements;
    (4) The deployment of the new antenna involves no new ground 
disturbance; and
    (5) The deployment would otherwise require the preparation of an EA 
under paragraph (a)(4) of this section solely because of the age of the 
structure.

    Note to paragraph (a)(4)(ii): A non-visible new antenna is in 
the ``same vicinity'' as a pre-existing antenna if it will be 
collocated on the same rooftop, fa[ccedil]ade or other surface. A 
visible new antenna is in the ``same vicinity'' as a pre-existing 
antenna if it is on the same rooftop, fa[ccedil]ade, or other 
surface and the centerpoint of the new antenna is within ten feet of 
the centerpoint of the pre-existing antenna. A deployment causes no 
new ground disturbance when the depth and width of previous 
disturbance exceeds the proposed construction depth and width by at 
least two feet.

* * * * *

0
4. Add Subpart CC to part 1 to read as follows:

Subpart CC--State and Local Review of Applications for Wireless 
Service Facility Modification


Sec.  1.40001  Wireless Facility Modifications.

    (a) Purpose. These rules implement section 6409 of the Spectrum Act 
(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 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.
    (1) Base station. A structure or equipment at a fixed location that 
enables Commission-licensed or authorized wireless communications 
between user equipment and a communications network. The term does not 
encompass a tower as defined in this subpart or any equipment 
associated with a tower.
    (i) The term includes, but is not limited to, equipment associated 
with wireless communications services such as private, broadcast, and 
public safety services, as well as unlicensed wireless services and 
fixed wireless services such as microwave backhaul.
    (ii) The term includes, but is not limited to, radio transceivers, 
antennas, coaxial or fiber-optic cable, regular and backup power 
supplies, and comparable equipment, regardless of technological 
configuration (including Distributed Antenna Systems and small-cell 
networks).
    (iii) The term includes any structure other than a tower that, at 
the time the relevant application is filed with the State or local 
government under this section, supports or houses equipment described 
in paragraphs (b)(1)(i) through (ii) of this section that has been 
reviewed and approved under the applicable zoning or siting process, or 
under another State or local regulatory review process, even if the 
structure was not built for the sole or primary purpose of providing 
such support.
    (iv) The term does not include any structure that, at the time the 
relevant application is filed with the State or local government under 
this section, does not support or house equipment described in 
paragraphs (b)(1)(i)-(ii) of this section.
    (2) 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.
    (3) Eligible facilities request. Any request for modification of an 
existing tower or base station that does not substantially change the 
physical dimensions of such tower or base station, involving:
    (i) Collocation of new transmission equipment;
    (ii) Removal of transmission equipment; or
    (iii) Replacement of transmission equipment.
    (4) Eligible support structure. Any tower or base station as 
defined in this section, provided that it is existing at the time the 
relevant application is filed with the State or local government under 
this section.
    (5) Existing. A constructed tower or base station is existing for 
purposes of this section if it has been reviewed and approved under the 
applicable zoning or siting process, or under another State or local 
regulatory review process, provided that a tower that has not been 
reviewed and approved because it was not in a zoned area when it was 
built, but was lawfully constructed, is existing for purposes of this 
definition.
    (6) Site. For towers other than towers in the public rights-of-way, 
the current boundaries of the leased or owned property surrounding the 
tower and any access or utility easements currently related to the 
site, and, for other eligible support structures, further restricted to 
that area in proximity to the structure and to other transmission 
equipment already deployed on the ground.
    (7) Substantial change. A modification substantially changes the 
physical dimensions of an eligible

[[Page 1270]]

support structure if it meets any of the following criteria:
    (i) For towers other than towers in the public rights-of-way, it 
increases the 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; for other 
eligible support structures, it increases the height of the structure 
by more than 10% or more than ten feet, whichever is greater;
    (A) Changes in height should be measured from the original support 
structure in cases where deployments are or will be separated 
horizontally, such as on buildings' rooftops; in other circumstances, 
changes in height should be measured from the dimensions of the tower 
or base station, inclusive of originally approved appurtenances and any 
modifications that were approved prior to the passage of the Spectrum 
Act.
    (ii) For towers other than towers in the public rights-of-way, it 
involves 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; for other eligible support structures, it 
involves adding an appurtenance to the body of the structure that would 
protrude from the edge of the structure by more than six feet;
    (iii) For any eligible support structure, it involves installation 
of more than the standard number of new equipment cabinets for the 
technology involved, but not to exceed four cabinets; or, for towers in 
the public rights-of-way and base stations, it involves installation of 
any new equipment cabinets on the ground if there are no pre-existing 
ground cabinets associated with the structure, or else involves 
installation of ground cabinets that are more than 10% larger in height 
or overall volume than any other ground cabinets associated with the 
structure;
    (iv) It entails any excavation or deployment outside the current 
site;
    (v) It would defeat the concealment elements of the eligible 
support structure; or
    (vi) It does not comply with conditions associated with the siting 
approval of the construction or modification of the eligible support 
structure or base station equipment, provided however that this 
limitation does not apply to any modification that is non-compliant 
only in a manner that would not exceed the thresholds identified in 
Sec.  1.40001(b)(7)(i) through (iv).
    (8) Transmission equipment. Equipment that facilitates transmission 
for any Commission-licensed or authorized wireless communication 
service, including, but not limited to, radio transceivers, antennas, 
coaxial or fiber-optic cable, and regular and backup power supply. The 
term includes equipment associated with wireless communications 
services including, but not limited to, private, broadcast, and public 
safety services, as well as unlicensed wireless services and fixed 
wireless services such as microwave backhaul.
    (9) Tower. Any structure built for the sole or primary purpose of 
supporting any Commission-licensed or authorized antennas and their 
associated facilities, including structures that are constructed for 
wireless communications services including, but not limited to, 
private, broadcast, and public safety services, as well as unlicensed 
wireless services and fixed wireless services such as microwave 
backhaul, and the associated site.
    (c) Review of applications. A State or local government may not 
deny and shall approve any eligible facilities request for modification 
of an eligible support structure that does not substantially change the 
physical dimensions of such structure.
    (1) Documentation requirement for review. When an applicant asserts 
in writing that a request for modification is covered by this section, 
a State or local government may require the applicant to provide 
documentation or information only to the extent reasonably related to 
determining whether the request meets the requirements of this section. 
A State or local government may not require an applicant to submit any 
other documentation, including but not limited to documentation 
intended to illustrate the need for such wireless facilities or to 
justify the business decision to modify such wireless facilities.
    (2) Timeframe for review. Within 60 days of the date on which an 
applicant submits a request seeking approval under this section, the 
State or local government shall approve the application unless it 
determines that the application is not covered by this section.
    (3) Tolling of the timeframe for review. The 60-day period begins 
to run when the application is filed, and may be tolled only by mutual 
agreement or in cases where the reviewing State or local government 
determines that the application is incomplete. The timeframe for review 
is not tolled by a moratorium on the review of applications.
    (i) To toll the timeframe for incompleteness, the reviewing State 
or local government must provide written notice to the applicant within 
30 days of receipt of the application, clearly and specifically 
delineating all missing documents or information. Such delineated 
information is limited to documents or information meeting the standard 
under paragraph (c)(1) of this section.
    (ii) The timeframe for review begins running again when the 
applicant makes a supplemental submission in response to the State or 
local government's notice of incompleteness.
    (iii) Following a supplemental submission, the State or local 
government will have 10 days to notify the applicant that the 
supplemental submission did not provide the information identified in 
the original notice delineating missing information. The timeframe is 
tolled in the case of second or subsequent notices pursuant to the 
procedures identified in this paragraph (c)(3). Second or subsequent 
notices of incompleteness may not specify missing documents or 
information that were not delineated in the original notice of 
incompleteness.
    (4) Failure to act. In the event the reviewing State or local 
government fails to approve or deny a request seeking approval under 
this section within the timeframe for review (accounting for any 
tolling), the request shall be deemed granted. The deemed grant does 
not become effective until the applicant notifies the applicable 
reviewing authority in writing after the review period has expired 
(accounting for any tolling) that the application has been deemed 
granted.
    (5) Remedies. Applicants and reviewing authorities may bring claims 
related to Section 6409(a) to any court of competent jurisdiction.

PART 17--CONSTRUCTION, MARKING, AND LIGHTING OF ANTENNA STRUCTURES

0
5. The authority citation for part 17 continues to read as follows:

    Authority: Sections 4, 303, 48 Stat. 1066, 1082, as amended; 47 
U.S.C. 154, 303. Interpret or apply sections 301, 309, 48 Stat. 
1081, 1085 as amended; 47 U.S.C. 301, 309.

0
6. Amend Sec.  17.4 by revising paragraphs (c)(1)(v) and (c)(1)(vi), 
and adding paragraph (c)(1)(vii) to read as follows:


Sec.  17.4  Antenna structure registration.

* * * * *
    (c) * * *

[[Page 1271]]

    (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 the construction or deployment of an antenna structure 
that will:
    (A) Be in place for no more than 60 days,
    (B) Requires notice of construction to the FAA,
    (C) Does not require marking or lighting under FAA regulations,
    (D) Will be less than 200 feet in height above ground level, and
    (E) Will either involve no excavation or involve excavation only 
where the depth of previous disturbance exceeds the proposed 
construction depth (excluding footings and other anchoring mechanisms) 
by at least two feet. An applicant that relies on this exception must 
wait 30 days after removal of the antenna structure before relying on 
this exception to deploy another antenna structure covering 
substantially the same service area.
* * * * *
[FR Doc. 2014-28897 Filed 1-7-15; 8:45 am]
BILLING CODE 6712-01-P