[Federal Register Volume 82, Number 89 (Wednesday, May 10, 2017)]
[Proposed Rules]
[Pages 21761-21780]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-09431]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1 and 17

[WT Docket No. 17-79; FCC 17-38]


Accelerating Wireless Broadband Deployment by Removing Barriers 
to Infrastructure Investment

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) seeks comment on proposals to reduce the regulatory 
impediments to wireless network infrastructure investment and 
deployment.

DATES: Interested parties may file comments on or before June 9, 2017, 
and reply comments on or before July 10, 2017.

ADDRESSES: You may submit comments and reply comments on or before the 
dates indicated in the DATES section above. Comments may be filed using 
the Commission's Electronic Comment Filing System (ECFS). See 
Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 
(1998). All filings related to this document shall refer to WT Docket 
No. 17-79.
    [ssquf] Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: http://apps.fcc.gov/ecfs/.
    [ssquf] Paper Filers: Parties who choose to file by paper must file 
an original and one copy of each filing.
    Filings can be sent by hand or messenger delivery, by commercial 
overnight courier, or by first-class or overnight U.S. Postal Service 
mail. All filings must be addressed to the Commission's Secretary, 
Office of the Secretary, Federal Communications Commission.
    [ssquf] All hand-delivered or messenger-delivered paper filings for 
the Commission's Secretary must be delivered to FCC Headquarters at 445 
12th Street SW., Room TW-A325, Washington, DC 20554. The filing hours 
are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together 
with rubber bands or fasteners. Any envelopes and boxes must be 
disposed of before entering the building.
    [ssquf] Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton 
Drive, Capitol Heights, MD 20743.
    [ssquf] U.S. Postal Service first-class, Express, and Priority mail 
must be addressed to 445 12th Street SW., Washington DC 20554.
    People with Disabilities. To request materials in accessible 
formats for people with disabilities (braille, large print, electronic 
files, audio format), send an email to [email protected] or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).
    For additional information on the rulemaking process, see the 
SUPPLEMENTARY INFORMATION section of this document.
    In addition to filing comments with the Secretary, a copy of any 
comments on the Paperwork Reduction Act information collection 
modifications proposed herein should be submitted to the Commission via 
email to [email protected] and to Nicholas A. Fraser, Office of Management 
and Budget, via email to [email protected] or via fax at 
202-395-5167.

FOR FURTHER INFORMATION CONTACT: For further information on this 
proceeding, contact Aaron Goldschmidt, [email protected], of 
the Wireless Telecommunications Bureau, Competition & Infrastructure 
Policy Division, (202) 418-7146, or David Sieradzki, 
[email protected], of the Wireless Telecommunications Bureau, 
Competition & Infrastructure Policy Division, (202) 418-1368.

SUPPLEMENTARY INFORMATION: 
    This is a summary of the Federal Communications Commission's Notice 
of Proposed Rulemaking and Notice of Inquiry (NPRM and NOI, 
respectively), in WT Docket No. 17-79; FCC 17-38, adopted April 20, 
2017, and released on April 21, 2017. The document is available for 
download at http://fjallfoss.fcc.gov/edocs_public/. The complete text 
of this document is also available for inspection and copying during 
normal business hours in the FCC Reference Information Center, Portals 
II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. To request 
materials in accessible formats for people with disabilities (Braille, 
large print, electronic files, audio format), send an email to 
[email protected] or call the Consumer & Governmental Affairs Bureau at 
202-418-0530 (voice), 202-418-0432 (TTY).

I. Notice of Proposed Rulemaking

A. Streamlining State and Local Review

    1. In this section, the Commission addresses the process for 
reviewing and deciding on wireless facility deployment applications 
conducted by State and local regulatory agencies. The Commission seeks 
comment on several potential measures or clarifications intended to 
expedite such review pursuant to the Commission's authority under 
Section 332 of the Communications Act.
    2. The Commission has taken a number of important actions to date 
implementing Section 332(c)(7) of the Communications Act (Act) and 
Section 6409(a) of the Spectrum Act, each of which has been upheld by 
federal courts. The Commission seeks to assess the impact of the 
Commission's actions to date, in order to evaluate the measures the 
Commission discusses in the NPRM, as well as other possible actions, 
and to determine whether those measures are likely to be effective in 
further reducing unnecessary and potentially impermissible delays and 
burdens on wireless infrastructure deployment associated with State and 
local siting review processes. Thus, the Commission asks parties to 
submit facts and evidence on the issues discussed below and on any 
other matters relevant to the policy proposals set forth here. The 
Commission seeks information on the prevalence of barriers, costs 
thereof, and impacts on investment in and deployment of wireless 
services, including how such costs compare to the overall costs of 
deployment. The Commission seeks information on the specific steps that 
various regulatory authorities employ at each stage in the process of 
reviewing applications, and which steps have been most effective in 
efficiently resolving tensions among competing priorities of network 
deployment and other public interest goals. In addition, parties should 
detail the extent to which the Commission's existing rules and policies 
have or have not been successful in addressing local

[[Page 21762]]

siting review challenges, including effects or developments since the 
2014 Infrastructure Order, the Commission's most recent major decision 
addressing these issues (See Acceleration of Broadband Deployment by 
Improving Wireless Facilities Siting Policies, Report and Order, 29 FCC 
Rcd 12865 (2014) (2014 Infrastructure Order)). To the extent that 
parties have submitted information in response to the Wireless 
Telecommunications Bureau's Streamlining PN that is relevant to these 
questions, the Commission invites them to submit such data in the 
present docket (See Streamlining Deployment of Small Cell 
Infrastructure by Improving Wireless Facilities Siting Policies; 
Mobilitie, LLC Petition For Declaratory Ruling, Public Notice, 31 FCC 
Rcd 13360, 13368 (WTB 2016) (Streamlining PN)). In addition, to the 
extent parties discuss the conduct or practices of government bodies or 
wireless facility siting applicants, the Commission strongly urges them 
to identify the particular entities that they assert engaged in such 
conduct or practices.
    3. Further, in seeking comment on new or modified measures to 
expedite local review, the Commission invites commenters to discuss 
what siting applicants can or should be required to do to help expedite 
or streamline the siting review process. Are there ways in which 
applicants are causing or contributing to unnecessary delay in the 
processing of their siting applications? If so, the Commission seeks 
comment on how the Commission should address or incorporate this 
consideration in any action the Commission takes in this proceeding. 
For example, to what extent have delays been the result of incomplete 
applications or failures to properly respond to requests to the 
applicant for additional information, and how should measures the 
Commission adopts or revises to streamline application review ensure 
that applicants are responsible for supplying complete and accurate 
filings and information? Further, are there steps the industry can take 
outside the formal application review process that may facilitate or 
streamline such review? Are there siting practices that applicants can 
or should adopt that will facilitate faster local review while still 
achieving the deployment of infrastructure necessary to support 
advanced wireless broadband services?
1. ``Deemed Granted'' Remedy for Missing Shot Clock Deadlines
    4. The Commission now takes a fresh look and seeks comment on a 
``deemed granted'' remedy for State and local agencies' failure to 
satisfy their obligations under Section 332(c)(7)(B)(ii) to act on 
applications outside the context of the Spectrum Act. The Commission 
invites commenters to address whether the Commission should adopt one 
or more of the three options discussed below regarding the mechanism 
for implementing a ``deemed granted'' remedy. The Commission describes 
each of these options below and explains its analysis of its legal 
authority to adopt each of them. The Commission seeks comment on the 
benefits and detriments of each option and invites parties to discuss 
the Commission's legal analysis. The Commission also seeks comment on 
whether there are other options for implementing a ``deemed granted'' 
remedy.
    5. Irrebuttable Presumption. In the 2009 Shot Clock Declaratory 
Ruling, the Commission created a ``rebuttable presumption'' that the 
shot clock deadlines established by the Commission were reasonable (See 
Petition for Declaratory Ruling to Clarify Provisions of Section 
332(c)(7) to Ensure Timely Siting Review, Declaratory Ruling, 24 FCC 
Rcd 13994 (2009) (2009 Shot Clock Declaratory Ruling)). The Commission 
anticipated that this would give State and local regulatory agencies 
``a strong incentive to resolve each application within the time frame 
defined as reasonable.'' Thus, when an applicant sues pursuant to 
Section 332(c)(7)(B)(v) to challenge an agency's failure to act on an 
application by the applicable deadline, the agency would face the 
burden of ``rebut[ting] the presumption that the established timeframes 
are reasonable,'' and if it fails to satisfy this burden, the court 
could ``issu[e] . . . an injunction granting the application.'' The 
Commission believes one option for establishing a ``deemed granted'' 
remedy for a State or local agency's failure to act by the applicable 
deadline would be to convert this rebuttable presumption into an 
irrebuttable presumption. Thus, the Commission's determination of the 
reasonable time frame for action (i.e., the applicable shot clock 
deadline) would ``set an absolute limit that--in the event of a failure 
to act--results in a deemed grant.''
    6. The Commission believes it has legal authority to adopt this 
approach. The Commission sees no reason to continue adhering to the 
cautious approach articulated in the 2009 Shot Clock Declaratory 
Ruling--i.e., that Section 332(c)(7) ``indicates Congressional intent 
that courts should have the [sole] responsibility to fashion . . . 
remedies'' on a ``case-specific'' basis. The Commission advanced that 
theory without citing any legislative history or other sources, and the 
Fifth Circuit, in its decision upholding the 2009 Shot Clock 
Declaratory Ruling, apparently declined to rely on it. Instead, the 
Fifth Circuit found no indication in the statute and its legislative 
history of any clear Congressional intent on whether the Commission 
could ``issue an interpretation of section 332(c)(7)(B)(v) that would 
guide courts' determinations of disputes under that section,'' and went 
on to affirm that the Commission has broad authority to render 
definitive interpretations of ambiguous provisions such as this one in 
Section 332(c)(7). The Fifth Circuit further found--and the Supreme 
Court affirmed--that courts must follow such Commission 
interpretations.
    7. The Commission sees nothing in the statute that explicitly 
compels a case-by-case assessment of the relevant circumstances for 
each individual application, nor any provision specifically requiring 
that those time frames be indefinitely adjustable on an individualized 
basis, rather than subject to dispositive maximums that may be deemed 
reasonable as applied to specified categories of applications. While 
Section 332(c)(7)(B)(ii) provides that a locality must act on each 
application ``within a reasonable time, taking into account the nature 
and scope of such request,'' this does not necessarily mean that a 
reviewing court ``must consider the specific facts of individual 
applications'' to determine whether the locality acted within a 
reasonable time frame; the Commission is well-positioned to take into 
account the ``nature and scope'' of particular categories of 
applications in determining the maximum reasonable amount of time for 
localities to address each type. The Commission seeks comment on this 
analysis.
    8. Lapse of State and Local Governments' Authority. In the 
alternative (or in addition) to the irrebuttable presumption approach 
discussed above, the Commission believes it may implement a ``deemed 
granted'' remedy for State and local agencies' failure to act within a 
reasonable time based on the following interpretation of ambiguous 
provisions in the statute. Section 332(c)(7)(A) assures these agencies 
that their ``authority over decisions concerning the placement, 
construction, and modification of personal wireless service 
facilities'' is preserved--but significantly, qualifies that assurance 
with the provision ``except as provided'' elsewhere in Section 
332(c)(7). The Commission seeks comment on whether

[[Page 21763]]

the Commission should interpret this phrase as meaning that if a 
locality fails to meet its obligation under Section 332(c)(7)(B)(ii) to 
``act on [a] request for authorization to place, construct, or modify 
personal wireless facilities within a reasonable period of time,'' then 
its ``authority over decisions concerning'' that request lapses and is 
no longer preserved. Under this interpretation, by failing to act on an 
application within a reasonable period of time, the agency would have 
defaulted its authority over such applications (i.e., lost the 
protection of Section 332(c)(7)(A), which otherwise would have 
preserved such authority), and at that point no local land-use 
regulator would have authority to approve or deny an application. 
Arguably, the Commission could establish that in those circumstances, 
there is no need for an applicant to seek such approval. The Commission 
seeks comment on this interpretation and on the desirability of taking 
this approach.
    9. Preemption Rule. A third approach to establish a ``deemed 
granted'' remedy--standing alone or in tandem with one or both of the 
approaches outlined above--would be to promulgate a rule to implement 
the policies set forth in Section 332(c)(7). Sections 201(b) and 
303(r), as well as other statutory provisions, generally authorize the 
Commission to adopt rules or issue other orders to carry out the 
substantive provisions of the Communications Act. Further, the Fifth 
Circuit affirmed the determination in the 2009 Shot Clock Declaratory 
Ruling that the Commission's ``general authority to make rules and 
regulations to carry out the Communications Act includes the power to 
implement section 332(c)(7)(B)(ii) and (v).'' Accordingly, the 
Commission seeks comment on whether it could promulgate a ``deemed 
granted'' rule to implement Section 332(c)(7). The Commission also 
seeks comment on whether Section 253, standing alone or in conjunction 
with Section 332(c)(7) or other provisions of the Act, provides the 
authority for the Commission to promulgate a ``deemed granted'' rule.
2. Reasonable Period of Time To Act on Applications
    10. In 2009, the Commission determined that, for purposes of 
determining what is a ``reasonable period of time'' under Section 
332(c)(7)(B)(ii), 90 days should be sufficient for localities to review 
and act on (either by approving or denying) complete collocation 
applications, and that 150 days is a reasonable time frame for them to 
review and act on other types of complete applications to place, 
construct, or modify wireless facilities. In its 2014 Infrastructure 
Order, the Commission implemented Section 6409(a) of the Spectrum Act 
(enacted by Congress in 2012) by, among other things, creating a new 
60-day shot clock within which localities must act on complete 
applications subject to the definitions in the Spectrum Act.
    11. The Commission asks commenters to discuss whether the 
Commission should consider adopting different time frames for review of 
facility deployments not covered by the Spectrum Act. For example, the 
Commission seeks comment on whether it should harmonize the shot clocks 
for applications that are not subject to the Spectrum Act with those 
that are, so that, for instance, the time period deemed reasonable for 
non-Spectrum Act collocation applications would change from 90 days to 
60 days. Alternatively, should the Commission establish a 60-day shot 
clock for some subset of collocation applications that are not subject 
to the Spectrum Act, for example, applications that meet the relevant 
dimensional limits but are nevertheless not subject to the Spectrum Act 
because they seek to collocate equipment on non-tower structures that 
do not have any existing antennas? Should the Commission adopt 
different presumptively reasonable time frames for resolving 
applications for more narrowly defined classes of deployments such as 
(a) construction of new structures of varying heights (e.g., 50 feet 
tall or less, versus 50 to 200 feet tall, versus taller than 200 feet); 
(b) construction of new structures in or near major utility or 
transportation rights of way, or that are in or near established 
clusters of similar structures, versus those that are not; (c) 
deployments in areas that are zoned for residential, commercial, or 
industrial use, or in areas where zoning or planning ordinances 
contemplate little or no additional development; or (d) replacements or 
removals that do not fall within the scope of Section 6409(a) of the 
Spectrum Act (for example, because they exceed the dimensional limits 
for requests covered by that provision)? The Commission also requests 
comment on whether to establish different time frames for (i) 
deployment of small cell or Distributed Antenna System (DAS) antennas 
or other small equipment versus more traditional, larger types of 
equipment or (ii) requests that include multiple proposed deployments 
or, equivalently, ``batches'' of requests submitted by a single 
provider to deploy multiple related facilities in different locations, 
versus proposals to deploy one facility. Should the Commission align 
the Commission's definitions of categories of deployments for which the 
Commission specifies reasonable time frames for local siting review 
with the Commission's definitions of the categories of deployments that 
are categorically excluded from environmental or historic preservation 
review?
    12. The Commission seeks comment on what time periods would be 
reasonable (outside the Spectrum Act context) for any new categories of 
applications, and on what factors the Commission should consider in 
making such a decision. For what types or categories of wireless siting 
applications may shorter time periods be reasonable than those 
established in the 2009 Shot Clock Declaratory Ruling? The Commission 
invites commenters to submit information to help guide the Commission's 
development of appropriate time frames for various categories of 
deployment. The Commission asks commenters to submit any available data 
on whether localities already recognize different categories of 
deployment in their processes, and on the actual amounts of time that 
localities have taken under particular circumstances.
    13. The Commission also seeks comment on whether it should provide 
further guidance to address situations in which it is not clear when 
the shot clock should start running, or in which States and localities 
on one hand, and industry on the other, disagree on when the time for 
processing an application begins. For instance, the Commission has 
heard anecdotally that some jurisdictions impose a ``pre-application'' 
review process, during which they do not consider that a request for 
authorization has been filed. The Commission seeks comment on how the 
shot clocks should apply when there are such pre-application 
procedures; at what point should the clock begin to run? Are there 
other instances in which there is a lack of clarity or disagreement 
about when the clock begins to run? The Commission asks parties to 
address whether and how it should provide clarification of how the 
Commission's rules apply in those circumstances.
    14. Finally, the Commission seeks comment on whether there are 
additional steps that should be considered to ensure that a deemed 
granted remedy achieves its purpose of expediting review. For example, 
to what extent can the attachment of conditions to approvals of local 
zoning applications slow the deployment of infrastructure?

[[Page 21764]]

Are applicants encountering requirements to comply with codes that are 
not reasonably related to health and safety? To the extent these 
conditions present challenges to deployment, are there steps the 
Commission can and should take to address such challenges?
3. Moratoria
    15. Another concern relating to the ``reasonable periods of time'' 
for State and local agencies to act on siting applications is that some 
agencies may be continuing to impose ``moratoria'' on processing such 
applications, which inhibit the deployment of the infrastructure needed 
to provide robust wireless services. If so, such moratoria might 
contravene the 2014 Infrastructure Order, which clearly stated that the 
shot clock deadlines for applications continue to ``run[] regardless of 
any moratorium.'' The Commission explained that this conclusion was 
``consistent with a plain reading of the 2009 Declaratory Ruling, which 
specifies the conditions for tolling and makes no provision for 
moratoria,'' and concluded that this means that ``applicants can 
challenge moratoria in court when the shot clock expires without State 
or local government action.'' The Commission sees no reason to depart 
from this conclusion. The Commission asks commenters to submit specific 
information about whether some localities are continuing to impose 
moratoria or other restrictions on the filing or processing of wireless 
siting applications, including refusing to accept applications due to 
resource constraints or due to the pendency of state or local 
legislation on siting issues, or insisting that applicants agree to 
tolling arrangements. Commenters should identify the specific entities 
engaging in such actions and describe the effect of such restrictions 
on parties' ability to deploy or upgrade network facilities and provide 
service to consumers. The Commission proposes to take any additional 
actions necessary, such as issuing an order or declaratory ruling 
providing more specific clarifications of the moratorium ban or 
preempting specific State or local moratoria. Commenters should discuss 
the benefits and detriments of any such additional measures and the 
Commission's legal authority to adopt them.

B. Reexamining National Historic Preservation Act and National 
Environmental Policy Act Review

    16. In the following sections, the Commission undertakes a 
comprehensive fresh look at its rules and procedures implementing the 
National Environmental Policy Act (NEPA) and the National Historic 
Preservation Act (NHPA) as they relate to the Commission's 
implementation of Title III of the Act in the context of wireless 
infrastructure deployment, given the ongoing evolution in wireless 
infrastructure deployment towards smaller antennas and supporting 
structures as well as more frequent collocation on existing structures.
2. Updating Our Approach to the NHPA and NEPA
a. Need for Action
    17. Many wireless providers have raised concerns about the 
Commission's environmental and historic preservation review processes 
because, they say, these reviews increase the costs of deployment and 
pose lengthy and often unnecessary delays, particularly for small 
facility deployments. A large number of wireless providers complain 
that the Tribal component of the Section 106 review process is 
particularly cumbersome and costly. The Commission seeks concrete 
information on the amount of time it takes for Tribal Nations to 
complete the Section 106 review process and on the costs that Tribal 
participation imposes on facilities deployment and on the provision of 
service. The Commission also seeks comment and specific information on 
the extent of benefits attributable to Tribal participation under the 
Commission's Section 106 procedures, particularly in terms of 
preventing damage to historic and culturally significant properties.
    18. In addition, in May 2016, PTA-FLA filed a Petition for 
Declaratory Ruling arguing that ``Tribal fees have become so exorbitant 
in some cases to approach or even exceed the cost of actually erecting 
the tower.'' The Commission incorporates PTA-FLA's petition into this 
proceeding and seeks comment below on its proposals.
    19. Some wireless providers contend that the SHPO review process 
also results in significant delays in deployment. The Commission seeks 
comment on the costs associated with SHPO review under the Commission's 
historic preservation review process, including direct financial costs; 
costs that delay imposes on carriers, tower owners, and the public; and 
any other costs. What are the costs associated with SHPO review of 
typical small facility deployments, and how do these compare with the 
costs for tower construction projects? Does the SHPO review process 
duplicate historic preservation review at the local level, particularly 
when local review is conducted by a Certified Local Government or a 
governmental authority that issues a Certificate of Appropriateness? In 
addition, the Commission seeks comment on how often SHPO review results 
in changes to a construction project due to a SHPO's identification of 
potential harm to historic properties or confers other public benefits.
    20. Some argue that NEPA compliance imposes extraordinarily high 
costs on wireless providers and results in significant delays. The 
Commission seeks comment on the costs and relative benefits of the 
Commission's NEPA rules. What are the costs associated with NEPA 
compliance, other than costs associated with historic preservation 
review? How do the costs of NEPA compliance for tower construction 
compare to such costs for small facilities, and what specific benefits 
does the review confer?
    21. Finally, some note that facilities requiring Federal review 
must also undergo pre-construction review by local governmental 
authorities, and assert that the inability to engage in these dual 
reviews simultaneously can add significant time to the process. The 
Commission seeks comment on whether local permitting, NEPA review, and 
Section 106 review processes can feasibly be conducted simultaneously, 
and on whether there are barriers preventing simultaneous review to the 
extent it is feasible. To what extent do significant siting changes or 
the potential for such changes during the local process make 
simultaneous review impractical or inefficient? Alternatively, have 
reviewing or consulting parties in the Commission's NEPA or Section 106 
review processes declined to process an application until a local 
permitting process is complete? The Commission seeks comment on whether 
and under what circumstances simultaneous review would, on the whole, 
minimize delays and provide for a more efficient process and what 
steps, if any, the Commission should take to facilitate or enable such 
simultaneous review.
b. Process Reforms
(i) Tribal Fees
    22. In this section, the Commission identifies and seeks comment on 
several issues relevant to fees paid to Tribal Nations in the Section 
106 process. In addition to commenting on the legal framework and on 
potential resolutions to the issues, the Commission encourages 
commenters to provide specific factual information on current Tribal 
and industry practices and on the

[[Page 21765]]

impacts of those practices on licensees/tower owners, Tribal Nations, 
and timely deployment of advanced broadband services to all Americans. 
The Commission further welcomes information on the practices of other 
Federal agencies for the Commission's consideration.
    23. Neither the NHPA nor the Advisory Council on Historic 
Preservation's (ACHP) implementing regulations address whether and 
under what circumstances Tribal Nations and Native Hawaiian 
Organizations (NHO) may seek compensation in connection with their 
participation in the Section 106 process. The ACHP has, however, issued 
guidance on the subject in the form of a memorandum in 2001 and as part 
of a handbook last issued in 2012. The ACHP 2001 Fee Guidance explains 
that ``the agency or applicant is not required to pay the tribe for 
providing its views.'' Further, ``[i]f the agency or applicant has made 
a reasonable and good faith effort to consult with an Indian tribe and 
the tribe refuses to respond without receiving payment, the agency has 
met its obligation to consult and is free to move to the next step in 
the Section 106 process.'' The guidance also states, however, that when 
a Tribal Nation ``fulfills the role of a consultant or contractor'' 
when conducting reviews, ``the tribe would seem to be justified in 
requiring payment for its services, just as any other contractor,'' and 
the company or agency ``should expect to pay for the work product.'' As 
explained below, the Commission seeks comment on how the ACHP's 
guidance can be applied in the context of the Commission's existing 
procedures and the proposals in this proceeding. Moreover, the 
Commission seeks comment on practices or procedures of other Federal 
agencies with respect to addressing the various roles a Tribal Nation 
may play in the Section 106 process and how to identify those services 
for which a Tribal Nation would be justified in seeking fees.
    24. Circumstances When Fees Are Requested. The ACHP Handbook 
clearly states that no ``portion of the NHPA or the ACHP's regulations 
require[s] an agency or an applicant to pay for any form of tribal 
involvement.'' The Commission notes that ACHP guidance permits payments 
to a Tribal Nation when it fulfills a role similar to any other 
consultant or contractor. At what point in the Tower Construction 
Notification System (TCNS) process, if any, might a Tribal Nation act 
as a contractor or consultant? The Commission seeks comment on any 
facts that might affect the answer to that question. Does the 
particular request of the applicant determine whether a Tribal Nation 
is acting as a contractor or consultant? For example, the ACHP Handbook 
notes that if an applicant asks for ``specific information and 
documentation'' from a Tribal Nation, then the Tribal Nation is being 
treated as a contractor or consultant. Should the Commission infer if 
the applicant does not ask explicitly for such information and 
documentation, then no payment is necessary? The Commission also seeks 
comment on whether Tribal review for some types of deployment is less 
in the nature of a contractor or consultant. For example, would 
collocations or applications to site poles in rights of way be less 
likely to require services outside of the Tribal Nation's statutory 
role? In reviewing TCNS submissions for collocations or for siting 
poles in rights of way, under what circumstances might a Tribal Nation 
incur research costs for which it or another contractor might 
reasonably expect compensation?
    25. Once a Tribal Nation or NHO has been notified of a project, an 
applicant must provide ``all information reasonably necessary for the 
Indian tribe or NHO to evaluate whether Historic Properties of 
religious and cultural significance may be affected'' and provide the 
Tribal Nation or NHO with a reasonable opportunity to respond. The 
Commission seeks comment on this requirement and on any modifications 
the Commission can and should make. In particular, the Commission seeks 
comment on whether the information in FCC Form 620 or FCC Form 621 is 
sufficient to meet the requirement that ``all information reasonably 
necessary . . .'' has been provided to the Tribal Nation. If not, are 
there modifications to these forms that would enable the Commission to 
meet this requirement? For example, should the FCC Form 620 and FCC 
Form 621 be amended to address the cultural resources report that an 
applicant prepares after completing a Field Survey? Additionally, the 
Commission seeks comment on whether a Tribal Nation's or NHO's review 
of the materials an applicant provides under the Nationwide 
Programmatic Agreement (NPA) Section VII is ever, and if so under what 
circumstances, the equivalent of asking the Tribal Nation or NHO to 
provide ``specific information and documentation'' like a contractor or 
consultant would, thereby entitling the Tribal Nation to seek 
compensation under ACHP guidance and the NPA. If a Tribal Nation 
chooses to conduct research, surveying, site visits or monitoring 
absent a request of the applicant, would such efforts require payment 
from the applicant? If an archaeological consultant conducted research, 
surveying, site visits, or monitoring absent a request of the 
applicant, would the applicant normally be required to pay that 
contractor or consultant? The Commission seeks comment on how the ACHP 
Handbook's statement that an ``applicant is free to refuse [payment] 
just as it may refuse to pay for an archaeological consultant,'' as 
well as its statement that ``the agency still retains the duties of 
obtaining the necessary information [to fulfill its Section 106 
obligations] through reasonable methods,'' impacts the Commission's 
analysis of payments for Tribal participation.
    26. The Commission notes that some Tribal Nations have indicated 
that they assess a flat upfront fee for all applications as a way to 
recover costs for their review of all TCNS applications, thereby 
eliminating the administrative burden of calculating actual costs for 
each case. The Commission seeks comment on this manner of cost recovery 
and whether such cost recovery is consistent with ACHP's fee guidance 
in its 2012 Handbook. Tribal Nations have also indicated that they have 
experienced difficulties in collecting compensation after providing 
service as a reason for upfront fee requests. The Commission seeks 
comment on whether this concern could be alleviated if the Commission 
clarifies when a Tribal Nation is acting under its statutory role and 
when it is being hired as a contractor or consultant under the 
Commission's process. The Commission also seeks comment on whether 
there might be a more appropriate way to address this concern.
    27. What steps, if any, can the Commission take to issue the 
Commission's own guidance on the circumstances in the Commission's 
process when the Tribal Nation is expressing its views and no 
compensation by the agency or the applicant is required under ACHP 
guidance, and the circumstances where the Tribal Nation is acting in 
the role of a consultant or contractor and would be entitled to seek 
compensation? The Commission seeks comment on what bright-line test, if 
any, could be used. How does the reasonable and good faith standard for 
identification factor, if at all, into when a Tribal request for fees 
must be fulfilled in order to meet the standard? The Commission seeks 
comment on how disputes between the parties might be resolved when a 
Tribal Nation asserts that compensable effort is required to initiate 
or conclude Section 106 review. The Commission seeks comment on whether 
there are other

[[Page 21766]]

mechanisms to reduce the need for case-by-case analysis of fee 
disputes. While the Commission seeks comment generally on its process, 
the Commission also seeks comment particularly in the context of 
deployment of infrastructure for advanced communications networks.
    28. To the extent that supplementing current ACHP guidance would 
help clarify when Tribal fees may be appropriate while both 
facilitating efficient deployment and recognizing Tribal interests, 
what input, if any, should the Commission provide to the ACHP on 
potential modifications to ACHP guidance?
    29. Amount of Fees Requested. One factor that appears to be driving 
tower owners and licensees to seek Commission guidance in the fee area 
is not the mere existence of fees, but instead the amount of 
compensation sought by some Tribal Nations. How, if at all, does the 
``reasonable and good faith'' standard for identification factor into 
or temper the amount of fees a Tribal Nation may seek in compensation? 
Are there any extant fee rates or schedules that might be of particular 
use to applicants and Tribal Nations in avoiding or resolving disputes 
regarding the amount of fees?
    30. One party has requested in a petition that the Commission 
establish a fee schedule or otherwise resolve fee disputes. The 
Commission seeks comment on the legal framework applicable to this 
request. How might the impact of fee disputes on the deployment of 
infrastructure for advanced communications networks provide a basis for 
establishing a fee schedule in this context using the Communications 
Act as authority? Do the NHPA or other statutes limit the Commission's 
ability to establish such a fee schedule, and if so, how? How might the 
Miscellaneous Receipts Act (MRA) and General Accountability Office 
(GAO) precedent on improper augmentation temper the parameters of the 
Commission's actions in the area? The Commission seeks comment on 
whether other Federal agencies have established fee schedules or 
addressed the matter in any way, e.g., either formally or informally or 
with respect to particular projects. How does due regard for Tribal 
sovereignty and the Government's treaty obligations affect the 
Commission's latitude for action in this area?
    31. If the Commission were to establish a fee schedule, the 
Commission seeks comment on what weight or impact it might have on the 
Commission's process. For example, to what extent would fees at or 
below the level established by a fee schedule be considered 
presumptively reasonable? The Commission further seeks comment on what 
legal framework would be relevant to resolution of disputes concerning 
an upward or downward departure from the fee schedule. Should the fees 
specified in such a schedule serve as the presumptive maximum an 
applicant would be expected to pay, and under what circumstances might 
an upward departure from the fee schedule be appropriate? In addition 
to the concepts cited in the prior paragraph, are there other legal 
principles at play in the resolution of a dispute over a fee that might 
not arise in the context of merely setting a fee schedule? Have any 
other Federal agencies formally or informally resolved fee disputes 
between applicants and Tribal Nations, and if so, under what legal 
parameters? The Commission also seeks comment on what categories of 
services should be included, and whether the categories should be 
general or more specific. How would the Commission establish the 
appropriate level for fees? How could a fee schedule take into account 
both regional differences and changes in costs over time, i.e., 
inflation? The Commission also seeks comment on whether it should only 
establish a model fee schedule and whether that would be consistent 
with the Tribal engagement requirements contemplated by Section 106.
    32. Geographic Areas of Interest. Tribal Nations have increased 
their areas of interest within the TCNS as they have improved their 
understanding of their history and cultural heritage. As a result, 
applicants must sometimes contact upwards of 30 different Tribal 
Nations and complete the Section 106 process with each of them before 
being able to build their project. The Commission seeks comment on 
whether there are actions it can and should take to mitigate this 
burden while complying with the Commission's obligation under the NHPA 
and promoting the interests of all stakeholders. For example, the TCNS 
allows Tribal Nations and NHOs to select areas of interest at either a 
State or county level, but many Tribal Nations have asked to be 
notified of any project within entire States, and in a few instances, 
at least 20 different States. The Commission seeks comment on whether 
it could and should encourage, or require, the specification of areas 
of interest by county. The Commission also seeks comment on whether it 
should require some form of certification for areas of interest, and if 
so, what would be the default if a Tribal Nation fails to provide such 
certification.
    33. The Commission seeks comment on whether TCNS should be modified 
to retain information on areas where concerns were raised and reviews 
conducted, so that the next filer knows whether there is a concern 
about cultural resources in that area or not. To what extent should 
applicants be able to rely on prior clearances, given that resources 
may continue to be added to the lists of historic properties? To the 
extent the Commission considers allowing applicants to rely on prior 
clearances, how should the Commission accommodate Tribal Nations' 
changes to their areas of interest? The Commission further seeks 
comment on how it can protect information connected to prior site 
reviews, especially those areas where a tower was not cleared because 
there may be artifacts. The Commission also seeks comment on whether it 
can make any other changes to TCNS or the Commission's procedures to 
improve the Tribal review process.
    34. In addition, applicants routinely receive similar requests for 
compensation or compensable services from multiple Tribal Nations. 
While the Commission recognizes that each Tribal Nation is sovereign 
and may have different concerns, the Commission seeks comment on when 
it is necessary for an applicant to compensate multiple Tribal Nations 
for the same project or for the same activity related to that project, 
in particular site monitoring during construction. The Commission also 
seeks comment on whether, when multiple Tribal Nations request 
compensation to participate in the identification of Tribal historic 
properties of religious and cultural significance, whether there are 
mechanisms to gain efficiencies to ensure that duplicative review is 
not conducted by each Tribal Nation. Is it always necessary to obtain 
such services from all responding Tribal Nations that request to 
provide the service, and if so, why? Might one Tribal Nation when 
functioning in the role of a contractor perform certain services and 
share the work product with other Tribal Nations, e.g., site 
monitoring? Could an applicant hire a qualified independent site 
monitor and share its work product with all Tribal Nations that are 
interested? How would the Commission ensure that such a monitor is 
qualified so that other Tribal Nations' interests will be adequately 
considered? Should the Commission require that such a monitor meet some 
established minimum standards? The Commission also seeks comment on 
whether monitors should

[[Page 21767]]

be required to prepare a written report and provide a copy to 
applicants.
    35. Remedies and Dispute Resolution. While the ACHP has indicated 
that Tribal concurrence is not necessary to find that no historic 
properties of religious and cultural significance to Tribal Nations or 
NHOs would be affected by an undertaking, the agency is responsible for 
getting the information necessary to make that determination. The 
Commission seeks comment on how these two directives interact. The ACHP 
2001 Fee Guidance states that ``if an agency or applicant attempts to 
consult with an Indian tribe and the tribe demands payment, the agency 
or applicant may refuse and move forward.'' The Commission seeks 
comment on whether and under what circumstances the Commission should 
authorize a project to proceed when a Tribal Nation refuses to respond 
to a Section 106 submittal without payment.
    36. Under the NPA, when a Tribal Nation or NHO refuses to comment 
on the presence or absence of effects to historic properties without 
compensation, the applicant can refer the procedural disagreement to 
the Commission. The Commission seeks comment on whether it can 
adjudicate these referrals by evaluating whether the threshold of 
``reasonable and good faith effort'' to identify historic properties 
has been met, given that the Tribal Nation can always request 
government-to-government consultation in the event of disagreement.
    37. The Commission seeks comment on when it must engage in 
government-to-government consultation to resolve fee disputes, 
including when the compensation level for an identification activity 
has been established by a Tribal government.
    38. Negotiated Alternative. The Commission notes that since 
September 2016, it has been facilitating meetings among Tribal and 
industry stakeholders with the goal of resolving challenges to Tribal 
requirements in the Section 106 review process, including disagreements 
over Tribal fees. The Commission seeks comment on whether it should 
continue seeking to develop consensus principles and, if so, how those 
principles should be reflected in practice. For example, the Commission 
seeks comment on whether it should seek to enter into agreements 
regarding best practices with Tribal Nations and their representatives.
    (ii) Other NHPA Process Issues
 (ii) Other NHPA Process Issues
    39. Lack of Response. As discussed above, while both State Historic 
Preservation Officers (SHPOs) and Tribal Nations/NHOs are expected 
ordinarily to respond to contacts within 30 days, the NPA and the 
Commission's practice establish different processes to be followed when 
responses are not timely. The Commission seeks comment on what 
measures, if any, it should take to further speed either of these 
review processes, either by amending the NPA or otherwise, while 
assuring that potential effects on historic preservation are fully 
evaluated. What effect would such proposals have on addressing Section 
106-associated delays to deployment? Should different time limits apply 
to different categories of construction, such as new towers, DAS and 
small cells, and collocations? Have advances in communications during 
the past decade, particularly with respect to communications via the 
Internet, changed reasonable expectations as to timeliness of responses 
and reasonable efforts to follow up?
    40. With respect to Tribal Nations and NHOs, the Commission seeks 
comment on whether the processes established by the 2005 Declaratory 
Ruling and the Good Faith Protocol adequately ensure the completion of 
Section 106 review when a Tribal Nation or NHO is non-responsive (See 
Clarification of Procedures for Participation of Federally Recognized 
Indian Tribes and Native Hawaiian Organizations Under the Nationwide 
Programmatic Agreement, Declaratory Ruling, 20 FCC Rcd 16092 (2005) 
(2005 Declaratory Ruling)). The Commission seeks comment on whether the 
process can be revised in a manner that would permit applicants to 
self-certify their compliance with the Commission's Section 106 process 
and therefore proceed once they meet the Commission's notification 
requirements, without requiring Commission involvement, in a manner 
analogous to the ``deemed granted'' remedy for local governments. Would 
such an approach be consistent with the NPA and with the Commission's 
legal obligations? The Commission notes that Commission staff has 
discovered on numerous occasions that applicants have failed to perform 
their Tribal notifications as the Commission's processes require. If 
the Commission were to permit applicants to self-certify that they have 
completed their Tribal notification obligations, the Commission seeks 
comment on how it could ensure that the certifications are truthful and 
well-founded.
    41. Batching. In the PTC Program Comment, the ACHP established a 
streamlined process for certain facilities associated with building out 
the Positive Train Control (PTC) railroad safety system (See Wireless 
Telecommunications Bureau Announces Adoption of Program Comment to 
Govern Review of Positive Train Control Wayside Facilities, WT Docket 
13-240, Public Notice, 29 FCC Rcd 5340, Attachment (WTB 2014) (PTC 
Program Comment)). Among other aspects of the PTC Program Comment, 
eligible facilities may be submitted to SHPOs and through TCNS in 
batches.
    42. The Commission seeks comment on whether it should adopt either 
a voluntary or mandatory batched submission process for non-PTC 
facilities. What benefits could be realized through the use of 
batching? What lessons can be learned from the experience with PTC 
batching? What guidelines should the Commission provide, if any, 
regarding the number of facilities to be included in a batch, their 
geographic proximity, or the size of eligible facilities? Should there 
be other conditions on eligibility, such as the nature of the location 
or the extent of ground disturbance? Should different time limits or 
fee guidelines, if any are adopted, apply to batched submissions? What 
changes to the Commission's current TCNS and E-106 forms and processes 
might facilitate batching? The Commission seeks comment on these and 
any other policy or operational issues associated with batching of 
proposed constructions.
    43. Other NHPA Process Reforms. The Commission seeks comment on 
whether there are additional procedural changes that the Commission 
should consider to improve the Section 106 review process in a manner 
that does not compromise its integrity.
(iii) NEPA Process
    44. The Commission seeks comment on ways to improve and further 
streamline its environmental compliance regulations while ensuring that 
the Commission meets its NEPA obligations. For example, should the 
Commission consider new categorical exclusions for small cells and DAS 
facilities? If so, under what conditions and on what basis? Should the 
Commission revise its rules so that an EA is not required for siting in 
a floodplain when appropriate engineering or mitigation requirements 
have been met? Are there other measures the Commission could take to 
reduce unnecessary processing burdens consistent with NEPA?
c. NHPA Exclusions for Small Facilities
    45. As part of the effort to expedite further the process for 
deployment of wireless facilities, including small facility deployments 
in particular, the Commission seeks comment below on whether it should 
expand the categories of undertakings that are excluded from

[[Page 21768]]

Section 106 review. With respect to each of the potential exclusions 
discussed below, the Commission seeks comment on the alternatives of 
adopting additional exclusions directly in the Commission's rules, or 
incorporating into the Commission's rules a program alternative 
pursuant to the ACHP rules. The Commission may exclude activities from 
Section 106 review through rulemaking upon determining that they have 
no potential to cause effects to historic properties, assuming such 
properties are present. Where potential effects are foreseeable and 
likely to be minimal or not adverse, a program alternative under the 
ACHP's rules may be used to exclude activities from Section 106 review. 
The Commission seeks comment about whether the exclusions discussed 
below meet the test for an exclusion in 36 CFR 800.3(a)(1) or whether 
they would require a program alternative. To the extent that a program 
alternative would be necessary, the Commission seeks comment on which 
of the program alternatives authorized under the ACHP's rules would be 
appropriate. Particularly, for those potential exclusions where a 
program alternative would be required, commenters should discuss 
whether a new program alternative is necessary or whether an amendment 
to the NPA or a second amendment to the Collocation NPA would be the 
appropriate procedural mechanism (See Wireless Telecommunications 
Bureau Announces Execution of First Amendment to the Nationwide 
Programmatic Agreement for the Collocation of Wireless Antennas, Public 
Notice, 31 FCC Rcd 4617 (WTB 2016) (Collocation NPA)).
(i) Pole Replacements
    46. The Commission seeks comment on whether it should take further 
measures to tailor Section 106 review for pole replacements. As noted 
above, wireless companies are increasingly deploying new infrastructure 
using smaller antennas and supporting structures, including poles. 
Under the existing NPA, pole replacements are excluded from Section 106 
review if the pole being replaced meets the definition of a ``tower'' 
under the NPA (constructed for the sole or primary purpose of 
supporting Commission-authorized antennas), provided that the pole 
being replaced went through Section 106 review. The NPA also more 
generally excludes construction in or near communications or utility 
rights of way, including pole replacements, with certain limitations. 
In particular, the construction is excluded if the facility does not 
constitute a substantial increase in size over nearby structures and it 
is not within the boundaries of a historic property. However, proposed 
facilities subject to this exclusion must complete the process of 
Tribal and NHO participation pursuant to the NPA.
    47. The Commission seeks comment on whether additional steps to 
tailor Section 106 review for pole replacements would help serve the 
Commission's objective of facilitating wireless facility siting, while 
creating no or foreseeably minimal potential for adverse impacts to 
historic properties. For example, should the replacement of poles be 
excluded from Section 106 review, regardless of whether a pole is 
located in a historic district, provided that the replacement pole is 
not ``substantially larger'' than the pole it is replacing (as defined 
in the NPA)? The Commission envisions that this proposed exclusion 
could address replacements for poles that were constructed for a 
purpose other than supporting antennas, and thus are not ``towers'' 
within the NPA definition, but that also have (or will have) an antenna 
attached to them. This exclusion would also apply to pole replacements 
within rights of way, regardless of whether such replacements are in 
historic districts. The Commission seeks comment on this proposal and 
on whether any additional conditions would be appropriate. For example, 
consistent with the existing exclusion for replacement towers, 
commenters should discuss whether the exclusion should be limited to 
projects for which construction and excavation do not expand the 
boundaries of the leased or owned property surrounding the tower by 
more than 30 feet in any direction. How would the ``leased or owned 
property'' be defined within a utility right of way that may extend in 
a linear manner for miles?
(ii) Rights of Way
    48. The Commission seeks comment on whether to expand the NPA 
exemption from Section 106 review for construction of wireless 
facilities in rights of way. First, as noted above, current provisions 
of the NPA exclude from Section 106 review construction in utility and 
communications rights of way subject to certain limitations. The 
Commission seeks comment on whether to adopt a similar exclusion from 
Section 106 review for construction or collocation of communications 
infrastructure in transportation rights of way and whether such an 
exclusion would be warranted under 36 CFR 800.3(a)(1). The Commission 
recognizes the Commission's previous determination in the NPA Order 
that, given the concentration of historic properties near many highways 
and railroads, it was not feasible to draft an exclusion for 
transportation corridors that would both significantly ease the burdens 
of the Section 106 process and sufficiently protect historic properties 
(See Nationwide Programmatic Agreement Regarding the Section 106 
National Historic Preservation Act Review Process, Report and Order, 20 
FCC Rcd 1073 (2004) (NPA Order)). The Commission also recognized, 
however, that transportation corridors are among the areas where 
customer demand for wireless service is highest, and thus where the 
need for new facilities is greatest.
    49. In addition, since the NPA Order, wireless technologies have 
evolved and many wireless providers now deploy networks that use 
smaller antennas and compact radio equipment, including DAS and small 
cell systems. In view of the changed circumstances that are present 
today, the Commission finds that it is appropriate to reconsider 
whether the Commission can exclude construction of wireless facilities 
in transportation rights of way in a manner that guards against 
potential effects on historic properties. The Commission seeks comment 
on whether such an exclusion should be adopted, subject to certain 
conditions that would protect historic properties, and, if so, what 
those conditions should be. For example, should the Commission require 
that poles be installed by auguring or that cable or fiber be installed 
by plow or by directional drilling? What stipulations are needed if a 
deployment may be adjacent to or on National Register-eligible or 
listed buildings or structures, or in or near a historic district? 
Would it be appropriate to have any limitation on height, in addition 
to the requirement in the current rights of way exclusion that the 
structures not constitute a substantial increase in size over existing 
nearby structures? How should any new exclusion address Tribal and NHO 
participation, especially for historic properties with archaeological 
components? The Commission also seeks comment on how to define the 
boundaries of a transportation right of way for these purposes.
    50. In addition to considering whether to adopt an exclusion for 
construction in transportation rights of way, the Commission also seeks 
comment on whether to amend the current right of way exclusion to apply 
regardless of whether the right of way is located on a historic 
property. As noted above, the current right of way exclusion applies

[[Page 21769]]

only if (1) the construction does not involve a substantial increase in 
size over nearby structures and (2) the deployment would not be located 
within the boundaries of a historic property. The Commission seeks 
comment on whether this provision should be amended to exclude from 
Section 106 review construction of a wireless facility in a utility or 
communications right of way located on a historic property, provided 
that the facility would not constitute a substantial increase in size 
over existing structures. To the extent that utility and communications 
rights of way on historic properties already are lined with utility 
poles and other infrastructure, would allowing additional 
infrastructure have the potential to create effects? Commenters should 
discuss whether, if the exclusion is extended to historic properties, 
any additional conditions would be appropriate to address concerns 
about potential effects, for example any further limitation on ground 
disturbance. If so, how should ground disturbance be defined? The 
Commission also seeks comment about whether Tribal and NHO 
participation should continue to be required if an exclusion is adopted 
for facilities constructed in utility or communications rights of way 
on historic properties.
(iii) Collocations
    51. Next, the Commission seeks comment on options to further tailor 
the Commission's review of collocations of wireless antennas and 
associated equipment. The Commission's rules have long excluded most 
collocations of antennas from Section 106 review, recognizing the 
benefits to historic properties that accrue from using existing support 
structures rather than building new structures. The Commission has also 
recently expanded these exclusions in the First Amendment to the 
Collocation NPA to account for the smaller infrastructure associated 
with new technologies. The Commission seeks comment now on whether 
additional measures to further streamline review of collocations are 
appropriate, whether as a matter of 36 CFR 800.3(a)(1) or under program 
alternatives, including those discussed below and any other 
alternatives.
    52. First, the Commission seeks comment on whether some or all 
collocations located between 50 and 250 feet from historic districts 
should be excluded from Section 106 review. Under current provisions in 
the Collocation NPA, Section 106 review continues to be required for 
collocations on buildings and other non-tower structures located within 
250 feet of the boundary of a historic district to the extent those 
collocations do not meet the criteria established for small wireless 
antennas. The Commission seeks comment on whether this provision should 
be revised to exclude from Section 106 review collocations located up 
to 50 feet from the boundary of a historic district. The Commission 
seeks comment on this proposal and on whether any additional criteria 
should apply to an exclusion under these circumstances.
    53. Next, the Commission seeks comment on the participation of 
Tribal Nations and NHOs in the review of collocations on historic 
properties or in or near historic districts. Although, as stated above, 
the Collocation NPA excludes most antenna collocations from routine 
historic preservation review under Section 106, collocations on 
historic properties or in or near historic districts are generally not 
excluded, and in these cases, the NPA provisions for Tribal and NHO 
participation continue to apply. Consistent with the Commission's 
effort in this NPRM to take a fresh look at ways to improve and 
facilitate the review process for wireless facility deployments, the 
Commission seeks comment on whether to exclude from the NPA procedures 
for Tribal and NHO participation collocations that are subject to 
Section 106 review solely because they are on historic properties or in 
or near historic districts, other than properties or districts 
identified in the National Register listing or determination of 
eligibility as having Tribal significance. For instance, should the 
Commission exclude from review non-substantial collocations on existing 
structures involving no ground disturbance or no new ground 
disturbance, or non-substantial collocations on new structures in urban 
rights of way or indoors? Should the Commission exclude from the NPA 
provisions for Tribal and NHO participation collocations of facilities 
on new structures in municipal rights of way in urban areas that 
involve no new ground disturbance and no substantial increase in size 
over other structures in the right of way? Should the Commission 
exclude collocations of facilities on new structures in industrial 
zones or facilities on new structures in or within 50 feet of existing 
utility rights of way? Commenters should discuss whether collocations 
in these circumstances have the potential to cause effects on 
properties significant to Tribal history or culture. If so, are any 
effects likely to be minimal or not adverse? Does the likelihood of 
adverse effects depend on the circumstances of the collocation, for 
example whether it will cause new ground disturbance? The Commission 
also seeks comment on alternatives to streamline procedures for Tribal 
and NHO participation in these cases, for example different guidance on 
fees or deeming a Tribal Nation or NHO to have no interest if it does 
not respond to a notification within a specified period of time.
    54. Finally, the Commission seeks comment on whether the Commission 
can or should exclude from routine historic preservation review certain 
collocations that have received local approval. In particular, one 
possibility would be to exclude a collocation from Section 106 review, 
regardless of whether it is located on a historic property or in or 
near a historic district, provided that: (1) The proposed collocation 
has been reviewed and approved by a Certified Local Government that has 
jurisdiction over the project; or (2) the collocation has received 
approval, in the form of a Certificate of Appropriateness or other 
similar formal approval, from a local historic preservation review body 
that has reviewed the project pursuant to the standards set forth in a 
local preservation ordinance and has found that the proposed work is 
appropriate for the historic structure or district. By eliminating the 
need to go through historic preservation review at both local and 
Federal levels, creating an exclusion for collocations under these 
circumstances might create significant efficiencies in the historic 
preservation review process. The Commission seeks comment on this 
option and on any alternatives, including whether any additional 
conditions should apply and whether the process for engaging Tribal 
Nations and NHOs for these collocations should continue to be required.
d. Scope of Undertaking and Action
    55. The Commission also invites comment on whether it should 
revisit its interpretation of the scope of the Commission's 
responsibility to review the effects of wireless facility construction 
under the NHPA and NEPA. In the Pre-Construction Review Order, the 
Commission retained a limited approval authority over facility 
construction to ensure environmental compliance in services that no 
longer generally require construction permits (See Amendment of 
Environmental Rules, Report and Order, 5 FCC Rcd 2942 (1990) (Pre-
Construction Review Order)). In light of the evolution of technology in 
the last 27 years and the

[[Page 21770]]

corresponding changes in the nature and extent of wireless 
infrastructure deployment, the Commission seeks comment on whether this 
retention of authority is required and, if not, whether and how it 
should be adjusted. Commenters should address the costs of NEPA and 
NHPA compliance and its utility for environmental protection and 
historic preservation for different classes of facilities, as well as 
the extent of the Commission's responsibility to consider the effects 
of construction associated with the provision of licensed services 
under governing regulations and judicial precedent. For example, should 
facilities constructed under site-specific licenses be distinguished 
from those constructed under geographic area licenses? Can the 
Commission distinguish DAS and small cell facilities from larger 
structures for purposes of defining what constitutes the Commission's 
action or undertaking, and on what basis? Should review be required 
only when an EA triggering condition is met, as PTA-FLA suggests, and 
if so how would the licensee or applicant determine whether an EA is 
required in the absence of mandatory review? To the extent there is a 
policy basis for distinguishing among different types of facilities, 
would exclusions from or modifications to the NEPA and/or NHPA review 
processes be a more appropriate tool to reflect these differences? Are 
the standards for defining the scope of the Commission's undertaking or 
major Federal action different under the NHPA than under NEPA? The 
Commission also invites comment on whether to revisit the Commission's 
determination that registration of antenna structures constitutes the 
Commission's Federal action and undertaking so as to require 
environmental and historic preservation review of the registered 
towers' construction.
    56. In addition, since the Commission's environmental rules were 
adopted, an industry has grown of non-licensees that are in the 
business of owning and managing communications sites, so that most 
commercial wireless towers and even smaller communications support 
structures are now owned from the time of their construction by non-
licensees. The Commission seeks comment on how this business model 
affects the Commission's environmental and historic preservation 
compliance regime. For example, how does the requirement to perform 
environmental and historic preservation review prior to construction 
apply when the licensee is not the tower owner? If the tower is built 
pursuant to a contract or other understanding with a collocator, what 
marketplace or other effects would result from interpreting the 
environmental obligation to apply to the licensee? What about cases 
where there is no such agreement or understanding? Does the requirement 
in the Collocation NPA to perform review for collocations on towers 
that did not themselves complete Section 106 review create problems in 
administration or market distortions where the owner of the underlying 
tower may not have been subject to the Commission's rules at the time 
of construction? The Commission invites comment on these and any 
related questions.
3. Collocations on Twilight Towers
    57. There are a large number of towers that were built between the 
adoption of the Collocation NPA in 2001 and when the NPA became 
effective in 2005 that either did not complete Section 106 review or 
for which documentation of Section 106 review is unavailable. These 
towers are often referred to as ``Twilight Towers.'' The Commission 
seeks comment on steps the Commission should take to develop a 
definitive solution for the Twilight Towers issue. As the Commission 
undertakes this process, the Commission's goal remains to develop a 
solution that will allow Twilight Towers to be used for collocations 
while respecting the integrity of the Section 106 process. Facilitating 
collocations on these towers will serve the public interest by making 
additional infrastructure available for wireless broadband services and 
the FirstNet public safety broadband network. Moreover, facilitating 
collocations on existing towers will reduce the need for new towers, 
lessening the impact of new construction on the environment and on 
locations with historical and cultural significance.
    58. In particular, the Commission seeks comment on whether to treat 
collocations on towers built between March 16, 2001 and March 7, 2005 
that did not go through Section 106 historic preservation review in the 
same manner as collocations on towers built prior to March 16, 2001 
that did not go through review. Under this approach, collocations on 
such towers would generally be excluded from Section 106 historic 
preservation review, subject to the same exceptions that currently 
apply for collocations on towers built on or prior to March 16, 2001, 
i.e., collocations would be excluded from Section 106 review unless (1) 
the mounting of the antenna will result in a substantial increase in 
size of the tower; (2) the tower has been determined by the Commission 
to have an adverse effect on one or more historic properties; (3) the 
tower is the subject of a pending environmental review or related 
proceeding before the Commission involving compliance with Section 106 
of the National Historic Preservation Act; or (4) the collocation 
licensee or the owner of the tower has received written or electronic 
notification that the Commission is in receipt of a complaint from a 
member of the public, a Tribal Nation, a SHPO or the ACHP that the 
collocation has an adverse effect on one or more historic properties. 
The Commission seeks comment on whether allowing collocations without 
individual Section 106 review in these circumstances would rapidly make 
available a significant amount of additional infrastructure to support 
wireless broadband deployment without adverse impacts. In particular, 
the Commission notes that the vast majority of towers that have been 
reviewed under the NPA have had no adverse effects on historic 
properties, and the Commission is aware of no reason to believe that 
Twilight Towers are any different in that regard. Moreover, these 
towers have been standing for 12 years or more and, in the vast 
majority of cases, no adverse effects have been brought to the 
Commission's attention.
    59. Although the Commission seeks comment on such an approach, the 
Commission is mindful of the concerns that have been expressed by 
Tribal Nations and SHPOs throughout the discussions on this matter that 
simply allowing collocations to proceed would not permit review in 
those cases where an underlying tower may have undetermined adverse 
effects. In particular, Tribal Nations have expressed concern that some 
of the towers that were constructed between 2001 and 2005 may have 
effects on properties of religious and cultural significance that have 
not been noticed because their people are far removed from their 
traditional homelands. The Commission seeks comment on these concerns. 
As an initial matter, the Commission seeks comment on the Commission's 
underlying assumption regarding the likelihood that Twilight Towers had 
in their construction or continue to have adverse effects that have not 
been noted. To the extent such effects exist, what is the likelihood 
that they could be mitigated, and what is the likelihood that a new 
collocation would exacerbate those effects?
    60. The Commission further seeks comment on any alternative 
approaches. For example, should the Commission

[[Page 21771]]

considers a tower-by-tower process under which proposed collocations on 
Twilight Towers would trigger a streamlined, time-limited individual 
review, along the lines of the process discussed in the 2016 Twilight 
Towers draft term sheet? If the Commission were to adopt such an 
approach, what elements should be included? For example, some in the 
industry have recommended a tower-by-tower approach that is voluntary 
and allows tower owners to submit a tower for review as market 
conditions justify, involves same processes and systems that are used 
for new and modified towers, asks ACHP to direct SHPOs and Tribal 
Historic Preservation Officers (THPOs) to submit prompt comments on 
such towers, and imposes no monetary penalty on tower owners. The 
Commission seeks comment on whether to adopt this approach. Should 
towers be categorized, such that, for example, public safety towers 
receive priority for streamlined review? Alternatively, to what extent 
are there existing processes that function efficiently to allow 
collocations on Twilight Towers? Generally, given what the Commission 
says above about the text of the Commission's rule, the Commission does 
not anticipate taking any enforcement action or imposing any penalties 
based on good faith deployment during the Twilight Tower period.
    61. The Commission also seeks comment on the procedural vehicle 
through which any solution should be implemented. Would permitting 
collocation on Twilight Towers require either an amendment to the 
Collocation NPA or another program alternative under 36 CFR 800.14(b)? 
Is one form of program alternative preferable to another, and if so, 
why? If the Commission were to pursue a streamlined or other 
alternative review procedure, would that require an amendment to the 
Collocation NPA or other program alternative?
4. Collocations on Other Non-Compliant Towers
    62. Finally, the Commission invites comment on whether the 
Commission should take any measures, and if so what, to facilitate 
collocations on non-compliant towers constructed after March 7, 2005. 
The Commission notes that unlike in the case of the Twilight Towers, 
the rules in effect when these towers were constructed explicitly 
required compliance with the review procedures set forth in the NPA. 
The Commission invites commenters to propose procedures, including 
review processes, time frames, criteria for eligibility, and other 
measures, to address any or all of these towers.

II. Notice of Inquiry

    63. In this section, the Commission examines and seeks comment on 
the scope of Sections 253(a) and 332(c)(7) of the Communications Act 
and any new or updated guidance or determinations the Commission should 
provide pursuant to its authority under those provisions, including 
through the issuance of a Declaratory Ruling.

A. Intersection of Sections 253(a) and 332(c)(7)

    64. Both Section 253(a) and Section 332(c)(7) ban State or local 
regulations that ``prohibit or have the effect of prohibiting'' 
service. Both sections also proscribe State and local restrictions that 
unreasonably discriminate among service providers. These sections thus 
appear to impose the same substantive obligations on State and local 
governments, though the remedies provided under each are different. 
There are court decisions holding that ``the legal standard is the same 
under either [Section 253 or 332(c)(7)],'' and that there is ``nothing 
suggesting that Congress intended a different meaning of the text 
`prohibit or have the effect of prohibiting' in the two statutory 
provisions, enacted at the same time, in the same statute.'' The 
Commission seeks comment on whether there is any reason to conclude 
that the substantive obligations of these two provisions differ, and if 
so in what way. Do they apply the same standards in the same or similar 
situations? Do they impose different standards in different situations? 
The Commission invites commenters to explain how and why. The 
Commission also seeks comment on the interaction between Sections 253 
and 332(c)(7).

B. ``Prohibit or Have the Effect of Prohibiting''

    65. A number of courts have interpreted the phrase ``prohibit or 
have the effect of prohibiting,'' as it appears in both Sections 253(a) 
and 332(c)(7), but they have not been consistent in their views. Under 
Section 253(a), the First, Second, and Tenth Circuits have held that a 
State or local legal requirement would be subject to preemption if it 
may have the effect of prohibiting the ability of an entity to provide 
telecommunications services, while the Eighth and Ninth Circuits have 
erected a higher burden and insisted that ``a plaintiff suing a 
municipality under Section 253(a) must show actual or effective 
prohibition, rather than the mere possibility of prohibition.'' By the 
same token, different courts have imposed inconsistent burdens of proof 
to establish that localities violated Section 332(c)(7) by improperly 
denying siting application. The First, Fourth, and Seventh Circuits 
have imposed a ``heavy burden'' of proof on applicants to establish a 
lack of alternative feasible sites, requiring them to show ``not just 
that this application has been rejected but that further reasonable 
efforts to find another solution are so likely to be fruitless that it 
is a waste of time even to try.'' By contrast, the Second, Third, and 
Ninth Circuits have held that an applicant must show only that its 
proposed facilities are the ``least intrusive means'' for filling a 
coverage gap in light of the aesthetic or other values that the local 
authority seeks to serve. The Commission invites commenters to address 
these issues of statutory interpretation so the Commission may have the 
benefit of a full range of views from the interested parties as the 
Commission determines what action, if any, the Commission should take 
to resolve them. The Commission also invites parties to address whether 
there is some new theory altogether that the Commission should 
consider.
    66. The Commission also seeks comment on the proper role of 
aesthetic considerations in the local approval process. The use of 
aesthetic considerations is not inherently improper; many courts have 
held that municipalities may, without necessarily violating Section 
332(c)(7), deny siting applications on the grounds that the proposed 
facilities would adversely affect an area's aesthetic qualities, 
provided that such decisions are not founded merely on ``generalized 
concerns'' about aesthetics but are supported by ``substantial evidence 
contained in a written record'' about the impact of specific facilities 
on particular geographic areas or communities. The Commission seeks 
comment on whether it should provide more specific guidance on how to 
distinguish legitimate denials based on evidence of specific aesthetic 
impacts of proposed facilities, on the one hand, from mere 
``generalized concerns,'' on the other.
    67. Finally, the Commission notes that WTB's Streamlining PN sought 
comment on application processing fees and charges for the use of 
rights of way. The Commission invites parties to comment on similar 
issues relating to the application of section 332(c)(7)'s ``prohibit or 
have the effect of prohibiting'' language on infrastructure siting on 
properties beyond rights of way. For instance, the Commission

[[Page 21772]]

seeks comment on the up-front application fees that State or local 
government agencies impose on parties submitting applications for 
authority to construct or modify wireless facilities in locations other 
than rights of way. Can those fees, in some instances, ``prohibit or 
have the effect of prohibiting'' service? For instance, are those fees 
cost based? If commenters believe a particular State or locality's 
application fees are excessive, the Commission invites them to provide 
detailed explanations for that view and to explain how such fees might 
be inconsistent with section 332 of the Act. Relatedly, do wireless 
siting applicants pay fees comparable to those paid by other parties 
for similar applications, and if not, are there instances in which such 
fees violate section 332's prohibition of regulations that 
``unreasonably discriminate among providers of functionally equivalent 
services''?
    68. The Commission also seeks similar information about the 
recurring charges--as well as the other terms, conditions, or 
restrictions--that State or local government agencies impose for the 
siting of wireless facilities on publicly owned or controlled lands, 
structures such as light poles or water towers, or other resources 
other than rights of way. Do such fees or practices ``prohibit or have 
the effect of prohibiting'' service, or do they ``unreasonably 
discriminate among providers of functionally equivalent services? Are 
there disparities between the charges or other restrictions imposed on 
some parties by comparison with those imposed on others? Do any 
agencies impose charges or other requirements that commenting parties 
believe to be particularly burdensome, such as franchise fees based on 
a percentage of revenues? Are other aspects of the process for 
obtaining approval particularly burdensome? Commenters should explain 
their concerns in sufficient detail to allow State and local 
governments to respond and to allow the Commission to determine whether 
it should provide guidance on these issues.

C. ``Regulations'' and ``Other Legal Requirements''

    69. The terms of Section 253(a) specify that a ``statute,'' 
``regulation,'' or ``other legal requirement'' may be preempted, while 
the terms of Section 332(c)(7) refer to ``decisions'' concerning 
wireless facility siting and the ``regulation'' of siting. The 
Commission seeks comment on how those terms should be interpreted. For 
instance, do the terms ``statute,'' ``regulation,'' and ``legal 
requirement'' in Section 253(a) have essentially the same meaning as 
the parallel terms ``regulation'' and ``decisions'' in Section 
332(c)(7)? The Commission has held in the past that the terminology in 
Section 253(a) quoted above ``recognizes that State and local barriers 
to entry could come from sources other than statutes and regulations'' 
and ``was meant to capture a broad range of state and local actions'' 
that could pose barriers to entry--including agreements with a single 
party that result in depriving other parties of access to rights of 
way. The Commission believes there is a reasonable basis for concluding 
that the same broad interpretation should apply to the language of 
Section 332, and the Commission seeks comment on this analysis.
    70. The Commission also seeks comment on the extent to which these 
statutory provisions apply to States and localities acting in a 
proprietary versus regulatory capacity, and on what constitutes a 
proprietary capacity. In the 2014 Infrastructure Order, the Commission 
opined that the Spectrum Act and the rules and policies implementing it 
apply to localities' actions on siting applications when acting in 
their capacities as land-use regulators, but not when acting as 
managers of land or property that they own and operate primarily in 
their proprietary roles. The Order cited cases indicating that 
``Sections 253 and 332(c)(7) do not preempt non-regulatory decisions of 
a State or locality acting in its proprietary capacity.'' The 
Commission seeks comment on whether the Commission should reaffirm or 
modify the 2014 Infrastructure Order's characterization of the 
distinction between State and local governments' regulatory roles 
versus their proprietary roles as ``owners'' of public resources. How 
should the line be drawn in the context of properties such as public 
rights of way (e.g., highways and city streets), municipally-owned 
lampposts or water towers, or utility conduits? Should a distinction 
between regulatory and proprietary be drawn on the basis of whether 
State or local actions advance those government entities' interests as 
participants in a particular sphere of economic activity (proprietary), 
by contrast with their interests in overseeing the use of public 
resources (regulatory)? What about requests for proposals (RFPs) or 
contracts involving state or local entities? The Commission invites 
commenters to identify any States or local governments that have 
imposed restrictions on the installation of new facilities or the 
upgrading of existing facilities in public rights of way, and describe 
those restrictions and their impacts. Do such restrictions have 
characteristics or effects that are comparable to moratoria on 
processing applications?

D. Unreasonable Discrimination

    71. The Commission seeks comment on whether certain types of 
facially neutral criteria that some localities may be applying when 
reviewing and evaluating wireless siting applications could run afoul 
of Section 253, Section 332(c)(7), or another provision of the Act. For 
instance, the Commission asks commenters to identify any State or local 
regulations that single out telecom-related deployment for more 
burdensome treatment than non-telecom deployments that have the same or 
similar impacts on land use, to explain how, and to address whether 
this type of asymmetric treatment violates Federal law.
    72. The Commission also seeks comment on the extent to which 
localities may be seeking to restrict the deployment of utility or 
communications facilities above ground and attempt to relocate 
electric, wireline telephone, and other utility lines in that area to 
underground conduits. Obviously, it is impossible to operate wireless 
network facilities underground. Undergrounding of utility lines seems 
to place a premium on access to those facilities that remain above 
ground, such as municipally-owned street lights. Is there a particular 
way that Section 253 or 332(c)(7) should apply in that circumstance? 
More generally, the Commission seeks comment on parties' experience 
with undergrounding requirements, including how wireless facilities 
have been treated in communities that require undergrounding of 
utilities. The Commission also seeks comment on whether and how the 
Communications Act applies in such instances. For instance, may 
localities deny applications to construct new above-ground wireless 
structures in such areas, or deny applications to install collocated 
equipment on structures that may eventually be dismantled? Could 
``undergrounding'' plans ``prohibit or have the effect of prohibiting'' 
service by causing suitable sites for wireless antennas to become 
scarce? The Commission seeks comment on parties' experiences with 
undergrounding generally.
    73. Section 332(c)(7)(B)(i)(I) prohibits States and localities from 
unreasonably discriminating among providers of ``functionally 
equivalent services.'' The

[[Page 21773]]

Commission seeks comment on whether parties have encountered such 
discrimination, and ask that they provide specific examples. The 
Commission also seeks comment on what constitutes ``functionally 
equivalent services'' for this purpose. For instance, should entities 
that are considered to be utilities be viewed as an appropriate 
comparison? For the limited purpose of applying Section 
332(c)(7)(B)(i)(I), can wireless and wireline services be considered 
``functionally equivalent'' in some circumstances? Which types of 
discrimination are reasonable and which are unreasonable?

III. Procedural Matters

A. Initial Regulatory Flexibility Analysis

    74. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), the Commission has prepared an Initial Regulatory 
Flexibility Analysis (IRFA) concerning the possible significant 
economic impact on small entities of the policies and rules proposed in 
this NPRM. Written public comments are requested on this IRFA. Comments 
must be identified as responses to the IRFA and must be filed by the 
deadlines for comments provided above. The Commission will send a copy 
of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of 
the Small Business Administration (SBA).
1. Need for, and Objectives of, the Proposed Rules
    75. In this NPRM, the Commission examines how it may further remove 
or reduce regulatory impediments to wireless infrastructure investment 
and deployment in order to promote the rapid deployment of advanced 
mobile broadband service to all Americans. First, the NPRM seeks 
comment on certain measures or clarifications to expedite State and 
local processing of wireless facility siting applications pursuant to 
the Commission's authority under 332 of the Communications Act, 
including a ``deemed granted'' remedy in cases of unreasonable delay. 
Next, the Commission undertakes a comprehensive fresh look at the 
Commission's rules and procedures implementing the National 
Environmental Policy Act (NEPA) and Section 106 of the National 
Historic Preservation Act (Section 106). As part of this review, the 
Commission seeks comment on potential measures to improve or clarify 
the Commission's Section 106 process, including in the area of fees 
paid to Tribal Nations in connection with their participation in the 
process, cases involving lack of response by relevant parties including 
affected Tribal Nations, and batched processing. The Commission also 
seeks comment on possible additional exclusions from Section 106 
review, and the Commission reexamines the scope of the Commission's 
responsibility to review the effects of wireless facility construction 
under the NHPA and NEPA. Finally, the NPRM seeks comment on so-called 
``Twilight Towers,'' wireless towers that were constructed during a 
time when the process for Section 106 review was unclear, that may not 
have completed Section 106 review as a result, and that are therefore 
not currently available for collocation without first undergoing 
review. The Commission seeks comment on various options addressing 
Twilight Towers, including whether to exclude collocations on such 
towers from Section 106 historic preservation review, subject to 
certain exceptions, or alternatively subjecting collocations on 
Twilight Towers to a streamlined, time-limited review. The Commission 
expects the measures on which the Commission seeks comment in this NPRM 
to be only a part of the Commission's efforts to expedite wireless 
infrastructure deployment and the Commission invites commenters to 
propose other innovative approaches to expediting deployment.
2. Legal Basis
    76. The authority for the actions taken in this NPRM is contained 
in Sections 1, 2, 4(i), 7, 201, 253, 301, 303, 309, and 332 of the 
Communications Act of 1934, as amended 47 U.S.C. 151, 152, 154(i), 157, 
201, 253, 301, 303, 309, and 332, 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, 54 U.S.C. 306108.
3. Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Will Apply
    77. The RFA directs agencies to provide a description of, and where 
feasible, an estimate of the number of small entities that may be 
affected by the proposed rules and policies, if adopted. The RFA 
generally defines the term ``small entity'' as having the same meaning 
as the terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' In addition, the term ``small business'' 
has the same meaning as the term ``small business concern'' under the 
Small Business Act. A ``small business concern'' is one which: (1) Is 
independently owned and operated; (2) is not dominant in its field of 
operation; and (3) satisfies any additional criteria established by the 
SBA. Below, the Commission provides a description of such small 
entities, as well as an estimate of the number of such small entities, 
where feasible.
    78. The NPRM seeks comment on potential rule changes regarding 
State, 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, particularly small entities that are Commission licensees as 
well as non-licensees, the Commission classifies and quantifies them in 
the remainder of this section. The NPRM seeks comment on the 
Commission's description and estimate of the number of small entities 
that may be affected by the Commission's actions in this proceeding.
    79. Small Businesses, Small Organizations, Small Governmental 
Jurisdictions. The Commission's actions, over time, may affect small 
entities that are not easily categorized at present. The Commission 
therefore describes here, at the outset, three comprehensive small 
entity size standards that could be directly affected herein. First, 
while there are industry specific size standards for small businesses 
that are used in the regulatory flexibility analysis, according to data 
from the SBA's Office of Advocacy, in general a small business is an 
independent business having fewer than 500 employees. These types of 
small businesses represent 99.9% of all businesses in the United States 
which translates to 28.8 million businesses. Next, the type of small 
entity described as 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 1,621,215 small organizations. Finally, the small entity 
described as a ``small governmental jurisdiction'' is defined generally 
as ``governments of cities, towns, townships, villages, school 
districts, or special districts, with a population of less than fifty 
thousand.'' U.S. Census Bureau data published in 2012 indicate that 
there were 89,476 local 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.
    80. Wireless Telecommunications Carriers (except Satellite). This 
industry

[[Page 21774]]

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 services, paging 
services, wireless internet access, and wireless video services. The 
appropriate size standard under SBA rules is that such a business is 
small if it has 1,500 or fewer employees. For this industry, U.S. 
Census data for 2012 show that there were 967 firms that operated for 
the entire year. Of this total, 955 firms had employment of 999 or 
fewer employees and 12 had employment of 1000 employees or more. Thus 
under this category and the associated size standard, the Commission 
estimates that the majority of wireless telecommunications carriers 
(except satellite) are small entities.
    81. The Commission's own data--available in its Universal Licensing 
System--indicate that, as of October 25, 2016, there are 280 Cellular 
licensees that will be affected by the Commission's actions today. The 
Commission does not know how many of these licensees are small, as the 
Commission does not collect that information for these types of 
entities. Similarly, according to Commission data, 413 carriers 
reported that they were engaged in the provision of wireless telephony, 
including cellular service, Personal Communications Service (PCS), and 
Specialized Mobile Radio (SMR) Telephony services. Of this total, an 
estimated 261 have 1,500 or fewer employees and 152 have more than 
1,500 employees. Thus, using available data, the Commission estimates 
that the majority of wireless firms can be considered small.
    82. Personal Radio Services. Personal radio services provide short-
range, low-power radio for personal communications, radio signaling, 
and business communications not provided for in other services. 
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. All such entities 
in this category are wireless, therefore the Commission applies the 
definition of Wireless Telecommunications Carriers (except Satellite), 
pursuant to which the SBA's small entity size standard is defined as 
those entities employing 1,500 or fewer persons. For this industry, 
U.S. Census data for 2012 show that there were 967 firms that operated 
for the entire year. Of this total, 955 firms had employment of 999 or 
fewer employees and 12 had employment of 1000 employees or more. Thus 
under this category and the associated size standard, the Commission 
estimates that the majority of wireless telecommunications carriers 
(except satellite) are small entities. The Commission notes that many 
of the licensees in this category are individuals and 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 that may be affected by the Commission's actions in 
this proceeding.
    83. Public Safety Radio Licensees. Public Safety Radio Pool 
licensees as a general matter, include police, fire, local government, 
forestry conservation, highway maintenance, and emergency medical 
services. Because of the vast array of public safety licensees, the 
Commission has not developed a small business size standard 
specifically applicable to public safety licensees. For this category 
the Commission applies the SBA's definition for Wireless 
Telecommunications Carriers (except Satellite) which encompasses 
business entities engaged in radiotelephone communications and for 
which the small entity size standard is defined as those entities 
employing 1,500 or fewer persons. For this industry, U.S. Census data 
for 2012 show that there were 967 firms that operated for the entire 
year. Of this total, 955 firms had employment of 999 or fewer employees 
and 12 had employment of 1000 employees or more. Thus under this 
category and the associated size standard, the Commission estimates 
that the majority of wireless telecommunications carriers (except 
satellite) are small entities. With respect to local governments, in 
particular, since many governmental entities comprise the licensees for 
these services, the Commission includes under public safety services 
the number of government entities affected. According to Commission 
records, there are a total of approximately 133,870 licenses within 
these services. There are 3,121 licenses in the 4.9 GHz band, based on 
an FCC Universal Licensing System search of March 29, 2017. The 
Commission estimates that fewer than 2,442 public safety radio 
licensees hold these licenses because certain entities may have 
multiple licenses.
    84. Private Land Mobile Radio Licensees. Private land mobile radio 
(PLMR) systems serve an essential role in a vast 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. Because of the vast array of PLMR users, the 
Commission has not developed a small business size standard 
specifically applicable to PLMR users. The SBA's definition for 
Wireless Telecommunications Carriers (except Satellite) which 
encompasses business entities engaged in radiotelephone communications 
and for which the small entity size standard is defined as those 
entities employing 1,500 or fewer persons. For this industry, U.S. 
Census data for 2012 show that there were 967 firms that operated for 
the entire year. Of this total, 955 firms had employment of 999 or 
fewer employees and 12 had employment of 1000 employees or more. Thus 
under this category and the associated size standard, the Commission 
estimates that the majority of wireless telecommunications carriers 
(except satellite) are small entities. According to the Commission's 
records, there are a total of 3,374 licenses in the frequencies range 
173.225 MHz to 173.375 MHz, which is the range affected by this NPRM. 
The Commission does not require PLMR licensees to disclose information 
about number of employees, and does not have information that could be 
used to determine how many PLMR licensees constitute small entities 
under this definition. The Commission however believes that a 
substantial number of PLMR licensees may be small entities despite the 
lack of specific information.
    85. 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.
    86. With respect to the first category, Profit-based Spectrum use, 
the size standards established by the Commission define ``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. A ``Very small business'' is defined as an entity that, together 
with its affiliates, has average annual gross revenues of not more than 
$3

[[Page 21775]]

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 also indicates 
that, as of April 16, 2010, of the 11,653 total MAS station 
authorizations, 10,773 authorizations were for private radio service. 
In 2001, an auction for 5,104 MAS licenses in 176 EAs was conducted. 
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.
    87. With respect to the second category, Internal Private Spectrum 
use 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 is 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, U.S. Census data for 2012 show that there were 967 firms that 
operated for the entire year. Of this total, 955 firms had employment 
of 999 or fewer employees and 12 had employment of 1000 employees or 
more. Thus under this category and the associated small business size 
standard, the Commission estimates that the majority of wireless 
telecommunications carriers (except satellite) are small entities that 
may be affected by the Commission's action.
    88. Broadband Radio Service and Educational Broadband Service. 
Broadband Radio Service systems, previously referred to as Multipoint 
Distribution Service (MDS) and Multichannel Multipoint Distribution 
Service (MMDS) systems, and ``wireless cable,'' transmit video 
programming to subscribers and provide two-way high speed data 
operations using the microwave frequencies of the Broadband Radio 
Service (BRS) and Educational Broadband Service (EBS) (previously 
referred to as the Instructional Television Fixed Service (ITFS)).
    89. BRS--In connection with the 1996 BRS auction, the Commission 
established a small business size standard as an entity that had annual 
average gross revenues of no more than $40 million in the previous 
three calendar years. The BRS auctions resulted in 67 successful 
bidders obtaining licensing opportunities for 493 Basic Trading Areas 
(BTAs). Of the 67 auction winners, 61 met the definition of a small 
business. BRS also includes licensees of stations authorized prior to 
the auction. At this time, the Commission estimates that of the 61 
small business BRS auction winners, 48 remain small business licensees. 
In addition to the 48 small businesses that hold BTA authorizations, 
there are approximately 392 incumbent BRS licensees that are considered 
small entities. After adding the number of small business auction 
licensees to the number of incumbent licensees not already counted, the 
Commission finds that there are currently approximately 440 BRS 
licensees that are defined as small businesses under either the SBA or 
the Commission's rules.
    90. In 2009, the Commission conducted Auction 86, the sale of 78 
licenses in the BRS areas. The Commission offered three levels of 
bidding credits: (i) A bidder with attributed average annual gross 
revenues that exceed $15 million and do not exceed $40 million for the 
preceding three years (small business) received a 15 percent discount 
on its winning bid; (ii) a bidder with attributed average annual gross 
revenues that exceed $3 million and do not exceed $15 million for the 
preceding three years (very small business) received a 25 percent 
discount on its winning bid; and (iii) a bidder with attributed average 
annual gross revenues that do not exceed $3 million for the preceding 
three years (entrepreneur) received a 35 percent discount on its 
winning bid. Auction 86 concluded in 2009 with the sale of 61 licenses. 
Of the ten winning bidders, two bidders that claimed small business 
status won 4 licenses; one bidder that claimed very small business 
status won three licenses; and two bidders that claimed entrepreneur 
status won six licenses.
    91. EBS--The SBA's Cable Television Distribution Services small 
business size standard is applicable to EBS. There are presently 2,436 
EBS licensees. All but 100 of these licenses are held by educational 
institutions. Educational institutions are included in this analysis as 
small entities. Thus, the Commission estimates that at least 2,336 
licensees are small businesses. Since 2007, Cable Television 
Distribution Services have been defined within the broad economic 
census category of Wired Telecommunications Carriers. Wired 
Telecommunications Carriers are comprised of 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. The SBA's small business size 
standard for this category is all such firms having 1,500 or fewer 
employees. U.S. Census data for 2012 shows that there were 3,117 firms 
that operated that year. Of this total, 3,083 operated with fewer than 
1,000 employees. Thus, under this size standard, the majority of firms 
in this industry can be considered small. To gauge small business 
prevalence for these cable services the Commission must, however, use 
the most current census data for the previous category of Cable and 
Other Program Distribution and its associated size standard which was 
all such firms having $13.5 million or less in annual receipts. 
According to U.S. Census Bureau data for 2007, there were a total of 
996 firms in this category that operated for the entire year. Of this 
total, 948 firms had annual receipts of under $10 million, and 48 firms 
had receipts of $10 million or more but less than $25 million. Thus, 
the majority of these firms can be considered small.
    92. 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

[[Page 21776]]

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.
    93. Television Broadcasting. This Economic Census category 
``comprises establishments primarily engaged in broadcasting images 
together with sound.'' These establishments operate television 
broadcast studios and facilities for the programming and transmission 
of programs to the public. These establishments also produce or 
transmit visual programming to affiliated broadcast television 
stations, which in turn broadcast the programs to the public on a 
predetermined schedule. Programming may originate in their own studio, 
from an affiliated network, or from external sources. The SBA has 
created the following small business size standard for such businesses: 
Those having $38.5 million or less in annual receipts. The 2012 
Economic Census reports that 751 firms in this category operated in 
that year. Of that number, 656 had annual receipts of $25,000,000 or 
less, 25 had annual receipts between $25,000,000 and $49,999,999 and 70 
had annual receipts of $50,000,000 or more. Based on this data the 
Commission therefore estimate that the majority of commercial 
television broadcasters are small entities under the applicable SBA 
size standard.
    94. The Commission has estimated the number of licensed commercial 
television stations to be 1,384. Of this total, 1,264 stations (or 
about 91 percent) had revenues of $38.5 million or less, according to 
Commission staff review of the BIA Kelsey Inc. Media Access Pro 
Television Database (BIA) on February 24, 2017, and therefore these 
licensees qualify as small entities under the SBA definition. In 
addition, the Commission has estimated the number of licensed 
noncommercial educational (NCE) television stations to be 394. 
Notwithstanding, the Commission does not compile and otherwise does not 
have access to information on the revenue of NCE stations that would 
permit it to determine how many such stations would qualify as small 
entities.
    95. The Commission notes, however, that in assessing whether a 
business concern qualifies as ``small'' under the above definition, 
business (control) affiliations must be included. The Commission's 
estimate, therefore likely overstates the number of small entities that 
might be affected by the Commission's action, because the revenue 
figure on which it is based does not include or aggregate revenues from 
affiliated companies. In addition, another element of the definition of 
``small business'' requires that an 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 broadcast station is dominant in its field of operation. 
Accordingly, the estimate of small businesses to which rules may apply 
does not exclude any television station from the definition of a small 
business on this basis and is therefore possibly over-inclusive.
    96. Radio Stations. This Economic Census category ``comprises 
establishments primarily engaged in broadcasting aural programs by 
radio to the public. Programming may originate in their own studio, 
from an affiliated network, or from external sources.'' The SBA has 
established a small business size standard for this category as firms 
having $38.5 million or less in annual receipts. Economic Census data 
for 2012 shows that 2,849 radio station firms operated during that 
year. Of that number, 2,806 operated with annual receipts of less than 
$25 million per year, 17 with annual receipts between $25 million and 
$49,999,999 million and 26 with annual receipts of $50 million or more. 
Therefore, based on the SBA's size standard the majority of such 
entities are small entities.
    97. According to Commission staff review of the BIA Publications, 
Inc. Master Access Radio Analyzer Database as of June 2, 2016, about 
11,386 (or about 99.9 percent) of 11,395 commercial radio stations had 
revenues of $38.5 million or less and thus qualify as small entities 
under the SBA definition. The Commission has estimated the number of 
licensed commercial radio stations to be 11,415. The Commission notes 
that it has also estimated the number of licensed NCE radio stations to 
be 4,101. Nevertheless, the Commission does not compile and otherwise 
does not have access to information on the revenue of NCE stations that 
would permit it to determine how many such stations would qualify as 
small entities.
    98. The Commission also notes, that in assessing whether a business 
entity qualifies as small under the above definition, business control 
affiliations must be included. The Commission's estimate therefore 
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, 
to be determined a ``small business,'' an entity may not be dominant in 
its field of operation. The Commission further notes, that it is 
difficult at times to assess these criteria in the context of media 
entities, and the estimate of small businesses to which these rules may 
apply does not exclude any radio station from the definition of a small 
business on these basis, thus the Commission's estimate of small 
businesses may therefore be over-inclusive.
    99. FM Translator Stations and Low Power FM Stations. FM 
translators and Low Power FM Stations are classified in the category of 
Radio Stations and are assigned the same NAICS Code as licensees of 
radio stations. This U.S. industry, Radio Stations, comprises 
establishments primarily engaged in broadcasting aural programs by 
radio to the public. Programming may originate in their own studio, 
from an affiliated network, or from external sources. The SBA has 
established a small business size standard which consists of all radio 
stations whose annual receipts are $38.5 million dollars or less. U.S. 
Census data for 2012 indicate that 2,849 radio station firms operated 
during that year. Of that number, 2,806 operated with annual receipts 
of less than $25 million per year, 17 with annual receipts between $25 
million and $49,999,999 million and 26 with annual receipts of $50 
million or more. Based on U.S. Census data, the Commission concludes 
that the majority of FM Translator Stations and Low Power FM Stations 
are small.
    100. 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

[[Page 21777]]

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.
    101. Satellite Telecommunications. This category comprises firms 
``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.'' The category 
has a small business size standard of $32.5 million or less in average 
annual receipts, under SBA rules. For this category, U.S. Census Bureau 
data for 2012 show that there were a total of 333 firms that operated 
for the entire year. Of this total, 299 firms had annual receipts of 
less than $25 million. Consequently, the Commission estimates that the 
majority of satellite telecommunications providers are small entities.
    102. All Other Telecommunications. The ``All Other 
Telecommunications'' category is comprised of establishments that are 
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. The 
SBA has developed a small business size standard for ``All Other 
Telecommunications,'' which consists of all such firms with gross 
annual receipts of $32.5 million or less. For this category, U.S. 
Census data for 2012 show that there were 1,442 firms that operated for 
the entire year. Of these firms, a total of 1,400 had gross annual 
receipts of less than $25 million. Thus, a majority of ``All Other 
Telecommunications'' firms potentially affected by the Commission's 
action can be considered small.
    103. Fixed Microwave Services. Microwave services include common 
carrier, private-operational fixed, and broadcast auxiliary radio 
services. They also include the Local Multipoint Distribution Service 
(LMDS), the Digital Electronic Message Service (DEMS), the 39 GHz 
Service (39 GHz), the 24 GHz Service, and the Millimeter Wave Service 
where licensees can choose between common carrier and non-common 
carrier status. The SBA nor the Commission has defined a small business 
size standard for microwave services. For purposes of this IRFA, the 
Commission will use the SBA's definition applicable to Wireless 
Telecommunications Carriers (except satellite)--i.e., an entity with no 
more than 1,500 persons is considered small. Under that size standard, 
such a business is small if it has 1,500 or fewer employees. U.S. 
Census Bureau data for 2012, show that there were 967 firms in this 
category that operated for the entire year. Of this total, 955 had 
employment of 999 or fewer, and 12 firms had employment of 1,000 
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 the Commission's proposed action.
    104. According to Commission data in the Universal Licensing System 
(ULS) as of September 22, 2015 there were approximately 61,970 common 
carrier fixed licensees, 62,909 private and public safety operational-
fixed licensees, 20,349 broadcast auxiliary radio licensees, 412 LMDS 
licenses, 35 DEMS licenses, 870 39 GHz licenses, and five 24 GHz 
licenses, and 408 Millimeter Wave licenses in the microwave services. 
The Commission notes that the number of firms does not necessarily 
track the number of licensees. The Commission estimates that virtually 
all of the Fixed Microwave licensees (excluding broadcast auxiliary 
licensees) would qualify as small entities under the SBA definition.
    105. Non-Licensee Owners of Towers and Other Infrastructure. 
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's Antenna 
Structure Registration (ASR) system and comply with applicable rules 
regarding review for impact on the environment and historic properties.
    106. As of March 1, 2017, the ASR database includes approximately 
122,157 registration records reflecting a ''Constructed'' status and 
13,987 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 the Commission can easily determine how 
many of these towers are registered to non-licensees or how many non-
licensees have registered towers. Regarding towers that do not require 
ASR registration, the Commission does not collect information as to the 
number of such towers in use and therefore cannot estimate the number 
of tower owners that would be subject to the rules on which the 
Commission seeks comment. Moreover, the SBA has not developed a size 
standard for small businesses in the category ``Tower Owners.'' 
Therefore, the Commission is unable to determine the number of non-
licensee tower owners that are small entities. The Commission believes, 
however, that when all 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.'' The 
SBA has developed a small business size standard for ``All Other 
Telecommunications,'' which consists of all such firms with gross 
annual receipts of $32.5 million or less. For this category, U.S. 
Census data for 2012 show that there were 1,442 firms that operated for 
the entire year. Of these firms, a total of 1,400 had gross annual 
receipts of less than $25 million. Thus, a majority of ``All Other 
Telecommunications'' firms potentially affected by the Commission's 
action can be considered small. In addition, there may be other non-
licensee owners of other wireless infrastructure, including DAS and 
small cells, that might be affected by the measures on which the 
Commission seeks comment. The Commission does not have any basis for 
estimating the number of such non-licensee owners that are small 
entities.
4. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities
    107. The NPRM seeks comment on potential rule changes that may 
affect reporting, recordkeeping and other compliance requirements. 
Specifically the NPRM seeks comment on a specific NHPA submission 
process known as batching. Currently, a streamlined process for certain 
facilities associated

[[Page 21778]]

with building out the Positive Train Control (PTC) railroad safety 
system is in effect whereby eligible facilities may be submitted to 
State Historic Preservation Officers (SHPOs) and through the Tower 
Construction Notification System (TCNS) in batches instead of 
individually. The NPRM seeks comment on whether the Commission should 
require SHPOs and Tribal Historic Preservation Officers (THPOs) to 
review non-PTC facilities in batched submissions as well. If adopted, 
this may require modifications to reporting or other compliance 
requirements for small entities and or jurisdictions to enable such 
submissions. The Commission anticipates that batch rather than 
individual submissions will add no additional burden to small entities 
and may reduce the cost and delay associated with the deployment of 
wireless infrastructure. In addition, the NPRM seeks comment on whether 
the current Section 106 process can be revised in a manner that would 
permit applicants to self-certify their compliance with the 
Commission's Section 106 process and therefore proceed once they meet 
the Commission's notification requirements, without requiring 
Commission involvement. This self-certifying process may also require 
additional reporting or other compliance requirements for small 
entities. Similarly, the Commission anticipates that a self-
certification process will reduce the cost and delay associated with 
the deployment of wireless infrastructure for small entities by 
expediting the current Section 106 process.
5. Steps Taken To Minimize Significant Economic Impact on Small 
Entities and Significant Alternatives Considered
    108. The RFA requires an agency to describe any significant 
alternatives that it has considered in developing its approach, which 
may include the following four alternatives (among others): (1) The 
establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(3) the use of performance, rather than design, standards; and (4) an 
exemption from coverage of the rule, or any part thereof, for small 
entities.
    109. In this proceeding, the Commission seeks to examine regulatory 
impediments to wireless infrastructure investment and deployment, and 
how the Commission may remove or reduce such impediments consistent 
with the law and the public interest. The Commission anticipates that 
the steps on which the NPRM seeks comment will help reduce burdens on 
small entities that may need to deploy wireless infrastructure by 
reducing the cost and delay associated with the deployment of such 
infrastructure. As discussed below, however, certain proposals may 
impose regulatory compliance costs on small jurisdictions.
    110. The NPRM seeks comment on potential ways to expedite wireless 
facility deployment. First, it seeks comment on certain measures or 
clarifications to expedite State and local processing of wireless 
facility siting applications pursuant to the Commission's authority 
under Section 332 of the Communications Act. Specifically, the NPRM 
proposes to adopt one or more of three mechanisms for implementing a 
``deemed granted'' remedy for State and local agencies' failure to 
satisfy their obligations under Section 332(c)(7)(B)(ii) to act on 
applications outside the context of the Spectrum Act, including 
irrebuttable presumption, lapse of State and local governments' 
authority, and a preemption rule. The NPRM also seeks comment on how to 
quantify a ``reasonable period of time'' within which to act on siting 
applications. Specifically, the NPRM asks commenters to discuss whether 
the Commission should consider adopting different time frames for 
review of facility deployments not covered by Section 6409 of the 
Spectrum Act, by identifying more narrowly defined classes of 
deployments and distinct reasonable time frames to govern such classes. 
The NPRM also seeks comment on what time periods would be reasonable 
(outside the Spectrum Act context) for any new categories of 
applications, and on what factors the Commission should consider in 
making such a decision. The NPRM also seeks comment on whether the 
Commission should provide further guidance to address situations in 
which it is not clear when the shot clock should start running, or in 
which States and localities on one hand, and industry on the other, 
disagree on when the time for processing an application begins, and on 
whether there are additional steps that should be considered to ensure 
that a deemed granted remedy achieves its purpose of expediting review.
    111. In addition, the NPRM seeks comment on Moratoria. The 
Commission clarified in the 2014 Infrastructure Order that the shot 
clock deadline applicable to each application ``runs regardless of any 
moratorium.'' The NPRM asks commenters to submit specific information 
about whether some localities are continuing to impose moratoria or 
other restrictions on the filing or processing of wireless siting 
applications, including identification of the specific entities 
engaging in such actions and description of the effect of such 
restrictions on parties' ability to deploy network facilities and 
provide service to consumers. The NPRM also proposes to take any 
additional actions necessary, such as issuing an order or declaratory 
ruling providing more specific clarifications of the moratorium ban or 
preempting specific State or local moratoria. The proposed measures 
should reduce existing regulatory costs for small entities that 
construct or deploy wireless infrastructure. The Commission invites 
commenters to discuss the economic impact of any of these proposed 
measures on small entities, including small jurisdictions, and on any 
alternatives that would reduce the economic impact on such entities.
    112. Second, the NPRM undertakes a fresh look at the Commission's 
rules and procedures implementing NEPA and the NHPA as they relate to 
the Commission's implementation of Title III of the Act in the context 
of wireless infrastructure deployment. The NPRM seeks comment on 
potential measures in several areas that could improve the efficiency 
of the Commission's review under the NHPA and NEPA, including in the 
areas of fees, addressing delays, and batched processing. Specifically, 
the NPRM seeks comment on the costs, benefits, and time requirements 
associated with the historic preservation review process under Section 
106 of the NHPA, including SHPO and Tribal Nation review, as well as on 
the costs and relative benefits of the Commission's NEPA rules. The 
NPRM also seeks comment on potential process reforms regarding Tribal 
Fees, including fee amounts, when fees are requested, the legal 
framework of potential fee schedules, the delineation of Tribal 
Nation's geographic area of interest, and on potential remedies, 
dispute resolution, and possible negotiated alternatives.
    113. The NPRM then seeks comment on other possible reforms to the 
Commission's NHPA process that may make it faster, including time 
limits and self-certification when no response to a Section 106 
submission is provided, on whether the Commission should require SHPOs 
and THPOs to review non-PTC facilities in batched submissions, and if 
so, how such a process should work and

[[Page 21779]]

what sort of facilities would be eligible, and finally, whether there 
are additional procedural changes that the Commission should consider 
to improve the Section 106 review process in a manner that does not 
compromise its integrity.
    114. Further, the NPRM seeks comment on ways to improve and further 
streamline the Commission's environmental compliance regulations while 
ensuring the Commission meets its NEPA obligations. Toward that end, 
the NPRM seeks comment on whether to revise the Commission's rules so 
that an EA is not required for siting in a floodplain when appropriate 
engineering or mitigation requirements have been met and on whether to 
expand the categories of undertakings that are excluded from Section 
106 review, to include pole replacements, deployments in rights-of-way, 
and collocations based on their minimal potential to adversely affect 
historic properties. The NPRM also seeks comment on whether the 
Commission should revisit the Commission's interpretation of the scope 
of the Commission's responsibility to review the effects of wireless 
facility construction under the NHPA and NEPA. These potential changes 
to the Commission's rules and procedures implementing NEPA and the NHPA 
would reduce environmental compliance costs on entities that construct 
or deploy wireless infrastructure. These potential revisions are likely 
to provide an even greater benefit for small entities that may not have 
the compliance resources and economies of scale of larger entities. The 
Commission invites comment on ways in which the Commission can achieve 
its goals, but at the same time further reduce the burdens on small 
entities.
    115. Third, the NPRM seeks comment on steps the Commission should 
take to develop a definitive solution for the Twilight Towers issue 
that will allow Twilight Towers to be used for collocations while 
respecting the integrity of the Section 106 process. Facilitating 
collocations on these towers will serve the public interest by making 
additional infrastructure available for wireless broadband services and 
the FirstNet public safety broadband network, as well as reduce the 
need for new towers, lessening the impact of new construction on the 
environment and on locations with historical and cultural significance, 
thereby reducing the associated regulatory burden, particularly the 
burden on small entities.
    116. In particular, the NPRM seeks comment on whether to treat 
collocations on towers built between March 16, 2001 and March 7, 2005 
that did not go through Section 106 historic preservation review in the 
same manner as collocations on towers built prior to March 16, 2001 
that did not go through review. Under this approach, collocations on 
such towers would generally be excluded from Section 106 historic 
preservation review, subject to the same exceptions that currently 
apply for collocations on towers built on or prior to March 16, 2001. 
The Commission seeks comment on whether allowing collocations without 
individual Section 106 review in these circumstances would rapidly make 
available a significant amount of additional infrastructure to support 
wireless broadband deployment without adverse impacts. The NPRM also 
seeks comment on any alternative approaches and on the procedural 
vehicle through which any solution should be implemented. Finally, the 
NPRM invites comment on what measures, if any, should be taken to 
facilitate collocations on non-compliant towers constructed after March 
7, 2005, including whether the Commission should pursue an alternative 
review process, or any other alternative approach, for any or all of 
these towers. These proposals would reduce the environmental compliance 
costs associated with collocations, especially for small entities that 
have limited financial resources. The Commission invites commenters to 
discuss the economic impact of any of the proposals for the solution to 
the Twilight Towers issue on small entities, including small 
jurisdictions, and on any alternatives that would reduce the economic 
impact on such entities.
    117. For the options discussed in this NPRM, the Commission seeks 
comment on the effect or burden of the prospective regulation on small 
entities, including small jurisdictions, the extent to which the 
regulation would relieve burdens on small entities, and whether there 
are any alternatives the Commission could implement that could achieve 
the Commission's goals while at the same time minimizing or further 
reducing the burdens on small entities.
6. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules
    118. None.

B. Initial Paperwork Reduction Act Analysis

    119. This document contains proposed modified information 
collection requirements. The Commission, as part of its continuing 
effort to reduce paperwork burdens, invites the general public and the 
Office of Management and Budget (OMB) to comment on the information 
collection requirements contained in this document, as required by the 
Paperwork Reduction Act of 1995. In addition, pursuant to the Small 
Business Paperwork Relief Act of 2002, the Commission seeks specific 
comment on how the Commission might further reduce the information 
collection burden for small business concerns with fewer than 25 
employees.

C. Other Procedural Matters

1. Ex Parte Rules--Permit-But-Disclose
    120. Except to the limited extent described in the next paragraph, 
this proceeding shall be treated as a ``permit-but-disclose'' 
proceeding in accordance with the Commission's ex parte rules. Persons 
making ex parte presentations must file a copy of any written 
presentation or a memorandum summarizing any oral presentation within 
two business days after the presentation (unless a different deadline 
applicable to the Sunshine period applies). Persons making oral ex 
parte presentations are reminded that memoranda summarizing the 
presentation must (1) list all persons attending or otherwise 
participating in the meeting at which the ex parte presentation was 
made, and (2) summarize all data presented and arguments made during 
the presentation. If the presentation consisted in whole or in part of 
the presentation of data or arguments already reflected in the 
presenter's written comments, memoranda or other filings in the 
proceeding, the presenter may provide citations to such data or 
arguments in his or her prior comments, memoranda, or other filings 
(specifying the relevant page and/or paragraph numbers where such data 
or arguments can be found) in lieu of summarizing them in the 
memorandum. Documents shown or given to Commission staff during ex 
parte meetings are deemed to be written ex parte presentations and must 
be filed consistent with section 1.1206(b) of the Commission's rules. 
In proceedings governed by section 1.49(f) of the Commission's rules or 
for which the Commission has made available a method of electronic 
filing, written ex parte presentations and memoranda summarizing oral 
ex parte presentations, and all attachments thereto, must be filed 
through the electronic comment filing system available for that 
proceeding, and must be filed in their native format (e.g., .doc, .xml, 
.ppt, searchable .pdf). Participants

[[Page 21780]]

in this proceeding should familiarize themselves with the Commission's 
ex parte rules.
    121. In light of the Commission's trust relationship with Tribal 
Nations and Native Hawaiian Organizations (NHOs), and the Commission's 
obligation to engage in government-to-government consultation with 
them, the Commission finds that the public interest requires a limited 
modification of the ex parte rules in this proceeding. Tribal Nations 
and NHOs, like other interested parties, should file comments, reply 
comments, and ex parte presentations in the record in order to put 
facts and arguments before the Commission in a manner such that they 
may be relied upon in the decision-making process. But the Commission 
will exempt ex parte presentations involving elected and appointed 
leaders and duly appointed representatives of federally-recognized 
Tribal Nations and NHOs from the disclosure requirements in permit-but-
disclose proceedings and the prohibitions during the Sunshine Agenda 
period. Specifically, presentations from elected and appointed leaders 
or duly appointed representatives of federally-recognized Tribal 
Nations or NHOs to Commission decision makers shall be exempt from 
disclosure. To be clear, while the Commission recognizes that 
consultation is critically important, the Commission emphasizes that 
the Commission will rely in its decision-making only on those 
presentations that are placed in the public record for this proceeding.

IV. Ordering Clauses

    122. Accordingly, it is ordered, pursuant to Sections 1, 2, 4(i), 
7, 201, 253, 301, 303, 309, and 332 of the Communications Act of 1934, 
as amended 47 U.S.C. 151, 152, 154(i), 157, 201, 253, 301, 303, 309, 
and 332, 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, 54 U.S.C. 306108, that 
this Notice of Proposed Rulemaking and Notice of Inquiry is hereby 
adopted.
    123. It is further ordered that the Commission's Consumer & 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Notice of Proposed Rulemaking, including the Initial 
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of 
the Small Business Administration.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 2017-09431 Filed 5-9-17; 8:45 am]
 BILLING CODE 6712-01-P