[Federal Register Volume 83, Number 199 (Monday, October 15, 2018)]
[Rules and Regulations]
[Pages 51867-51886]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-22234]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[WT Docket No. 17-79, WC Docket No. 17-84; FCC 18-133]


Accelerating Wireless and Wireline Broadband Deployment by 
Removing Barriers to Infrastructure Investment

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Federal Communications Commission 
(``Commission'' or ``FCC'') issues guidance and adopts rules to 
streamline the wireless infrastructure siting review process to 
facilitate the deployment of next-generation wireless facilities. 
Specifically, in the Declaratory Ruling, the Commission identifies 
specific fee levels for the deployment of Small Wireless Facilities, 
and it addresses state and local consideration of aesthetic concerns 
that effect the deployment of Small Wireless Facilities. In the Order, 
the Commission addresses the ``shot clocks'' governing the review of 
wireless infrastructure deployments and establishes two new shot clocks 
for Small Wireless Facilities.

DATES: Effective January 14, 2019.

FOR FURTHER INFORMATION CONTACT: Jiaming Shang, Deputy Chief (Acting) 
Competition and Infrastructure Policy Division, Wireless 
Telecommunications Bureau, (202) 418-1303, email [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Declaratory Ruling and Third Report and Order (Declaratory Ruling and 
Order), WT Docket No. 17-79 and WC Docket No. 17-84; FCC 18-133, 
adopted September 26, 2018 and released September 27, 2018. The full 
text of this document is available for inspection and copying during 
business hours in the FCC Reference Information Center, Portals II, 445 
12th Street SW, Room CY-A257, Washington, DC 20554. Also, it may be 
purchased from the Commission's duplicating contractor at

[[Page 51868]]

Portals II, 445 12th Street SW, Room CY-B402, Washington, DC 20554; the 
contractor's website, http://www.bcpiweb.com; or by calling (800) 378-
3160, facsimile (202) 488-5563, or email [email protected]. Copies of the 
Declaratory Ruling and Order also may be obtained via the Commission's 
Electronic Comment Filing System (ECFS) by entering the docket number 
WT Docket 17-79 and WC Docket No. 17-84. Additionally, the complete 
item is available on the Federal Communications Commission's website at 
http://www.fcc.gov.

Synopsis

I. Declaratory Ruling

    1. In the Declaratory Ruling, the Commission notes that a number of 
appellate courts have articulated different and often conflicting views 
regarding the scope and nature of the limits Congress imposed on state 
and local governments through Sections 253 and 332. In light of these 
diverging views, Congress's vision for a consistent, national policy 
framework, and the need to ensure that the Commission's approach 
continues to make sense in light of the relatively new trend towards 
the large-scale deployment of Small Wireless Facilities, the Commission 
takes the opportunity to clarify and update the FCC's reading of the 
limits Congress imposed. The Commission does so in three main respects.
    2. First, the Commission expresses its agreement with the views 
already stated by the First, Second, and Tenth Circuits that the 
``materially inhibit'' standard articulated in 1997 by the Clinton-era 
FCC's California Payphone decision is the appropriate standard for 
determining whether a state or local law operates as a prohibition or 
effective prohibition within the meaning of Sections 253 and 332.
    3. Second, the Commission notes, as numerous courts have 
recognized, that state and local fees and other charges associated with 
the deployment of wireless infrastructure can effectively prohibit the 
provision of service. At the same time, courts have articulated various 
approaches to determining the types of fees that run afoul of 
Congress's limits in Sections 253 and 332. The Commission thus 
clarifies the particular standard that governs the fees and charges 
that violate Sections 253 and 332 when it comes to the Small Wireless 
Facilities at issue in this decision. Namely, fees are only permitted 
to the extent that they represent a reasonable approximation of the 
local government's objectively reasonable costs and are non-
discriminatory. In this section, the Commission also identifies 
specific fee levels for the deployment of Small Wireless Facilities 
that presumptively comply with this standard. The Commission does so to 
help avoid unnecessary litigation, while recognizing that it is the 
standard itself, not the particular, presumptive fee levels the 
Commission articulates, that ultimately will govern whether a 
particular fee is allowed under Sections 253 and 332. So, fees above 
those levels would be permissible under Sections 253 and 332 to the 
extent a locality's actual, reasonable costs (as measured by the 
standard above) are higher.
    4. Finally, the Commission focuses on a subset of other, non-fee 
provisions of state and local law that could also operate as 
prohibitions on service. The Commission does so in particular by 
addressing state and local consideration of aesthetic concerns in the 
deployment of Small Wireless Facilities. The Commission notes that the 
Small Wireless Facilities that are the subject of this Declaratory 
Ruling remain subject to the Commission's rules governing Radio 
Frequency (RF) emissions exposure.

A. Overview of the Section 253 and Section 332(c)(7) Framework Relevant 
to Small Wireless Facilities Deployment

    5. As an initial matter, the Commission notes that its Declaratory 
Ruling applies with equal measure to the effective prohibition standard 
that appears in both Sections 253(a) and 332(c)(7). This ruling is 
consistent with the basic canon of statutory interpretation that 
identical words appearing in neighboring provisions of the same statute 
should be interpreted to have the same meaning. Moreover, both of these 
provisions apply to wireless telecommunications services as well as to 
commingled services and facilities.
    6. As explained in California Payphone and reaffirmed here, a state 
or local legal requirement will have the effect of prohibiting wireless 
telecommunications services if it materially inhibits the provision of 
such services. California Payphone Ass'n, 12 FCC Rcd 14191 (1997). The 
Commission clarifies that an effective prohibition occurs where a state 
or local legal requirement materially inhibits a provider's ability to 
engage in any of a variety of activities related to its provision of a 
covered service. This test is met not only when filling a coverage gap 
but also when densifying a wireless network, introducing new services 
or otherwise improving service capabilities. Under the California 
Payphone standard, a state or local legal requirement could materially 
inhibit service in numerous ways--not only by rendering a service 
provider unable to provide an existing service in a new geographic area 
or by restricting the entry of a new provider in providing service in a 
particular area, but also by materially inhibiting the introduction of 
new services or the improvement of existing services. Thus, an 
effective prohibition includes materially inhibiting additional 
services or improving existing services.
    7. The Commission's reading of Section 253(a) and Section 
332(c)(7)(B)(i)(II) reflects and supports a marketplace in which 
services can be offered in a multitude of ways with varied capabilities 
and performance characteristics consistent with the policy goals in the 
1996 Act and the Communications Act. To limit Sections 253(a) and 
332(c)(7)(B)(i)(II) to protecting only against coverage gaps or the 
like would be to ignore Congress's contemporaneously-expressed goals of 
``promot[ing] competition[,] . . . secur[ing] . . . higher quality 
services for American telecommunications consumers and encourage[ing] 
the rapid deployment of new telecommunications technologies.'' In 
addition, as the Commission recently explained, the implementation of 
the Act ``must factor in the fundamental objectives of the Act, 
including the deployment of a ``rapid, efficient . . . wire and radio 
communication service with adequate facilities at reasonable charges' 
and `the development and rapid deployment of new technologies, products 
and services for the benefit of the public . . . without administrative 
or judicial delays[, and] efficient and intensive use of the 
electromagnetic spectrum.' '' These provisions demonstrate that the 
Commission's interpretation of Section 253 and Section 
332(c)(7)(B)(i)(II) is in accordance with the broader goals of the 
various statutes that the Commission is entrusted to administer.
    8. California Payphone further concluded that providers must be 
allowed to compete in a ``fair and balanced regulatory environment.'' 
As reflected in decisions such as the Commission's Texas PUC Order, a 
state or local legal requirement can function as an effective 
prohibition either because of the resulting ``financial burden'' in an 
absolute sense, or, independently, because of a resulting competitive 
disparity. Public Utility Comm'n of Texas, et al., Pet. for Decl. 
Ruling and/or Preemption of Certain Provisions of the Texas Pub. Util. 
Reg. Act of 1995, 13 FCC Rcd 3460 (1997). The Commission clarifies that 
``[a]

[[Page 51869]]

regulatory structure that gives an advantage to particular services or 
facilities has a prohibitory effect, even if there are no express 
barriers to entry in the state or local code; the greater the 
discriminatory effect, the more certain it is that entities providing 
service using the disfavored facilities will experience prohibition.'' 
This conclusion is consistent with both Commission and judicial 
precedent recognizing the prohibitory effect that results from a 
competitor being treated materially differently than similarly-situated 
providers. The Commission provides its authoritative interpretation 
below of the circumstances in which a ``financial burden,'' as 
described in the Texas PUC Order, constitutes an effective prohibition 
in the context of certain state and local fees.

B. State and Local Fees

    9. Cognizant of the changing technology and its interaction with 
regulations created for a previous generation of service, the 
Commission sought comment on the scope of Sections 253 and 332(c)(7) 
and on any new or updated guidance the Commission should provide, 
potentially through a Declaratory Ruling. In particular, the Commission 
sought comment on whether it should provide further guidance on how to 
interpret and apply the phrase ``prohibit or have the effect of 
prohibiting.''
    10. The Commission concludes that ROW access fees, and fees for the 
use of government property in the ROW, such as light poles, traffic 
lights, utility poles, and other similar property suitable for hosting 
Small Wireless Facilities, as well as application or review fees and 
similar fees imposed by a state or local government as part of their 
regulation of the deployment of Small Wireless Facilities inside and 
outside the ROW, violate Sections 253 or 332(c)(7) unless these 
conditions are met: (1) The fees are a reasonable approximation of the 
state or local government's costs, (2) only objectively reasonable 
costs are factored into those fees, and (3) the fees are no higher than 
the fees charged to similarly-situated competitors in similar 
situations.
    11. Capital Expenditures. Apart from the text, structure, and 
legislative history of the 1996 Act, an additional, independent 
justification for the Commission's interpretation follows from the 
simple, logical premise, supported by the record, that state and local 
fees in one place of deployment necessarily have the effect of reducing 
the amount of capital that providers can use to deploy infrastructure 
elsewhere, whether the reduction takes place on a local, regional or 
national level. The Commission is persuaded that providers and 
infrastructure builders, like all economic actors, have a finite 
(though perhaps fluid) amount of resources to use for the deployment of 
infrastructure. This does not mean that these resources are limitless, 
however. The Commission concludes that fees imposed by localities, 
above and beyond the recovery of localities' reasonable costs, 
materially and improperly inhibit deployment that could have occurred 
elsewhere. This and regulatory uncertainty created by such effectively 
prohibitive conduct creates an appreciable impact on resources that 
materially limits plans to deploy service. This record evidence 
emphasizes the importance of evaluating the effect of fees on Small 
Wireless Facility deployment on an aggregate basis. The record 
persuades the Commission that fees associated with Small Wireless 
Facility deployment lead to ``a substantial increase in costs''--
particularly when considered in the aggregate--thereby ``plac[ing] a 
significant burden'' on carriers and materially inhibiting their 
provision of service contrary to Section 253 of the Act.
    12. The record reveals that fees above a reasonable approximation 
of cost, even when they may not be perceived as excessive or likely to 
prohibit service in isolation, will have the effect of prohibiting 
wireless service when the aggregate effects are considered, 
particularly given the nature and volume of anticipated Small Wireless 
Facility deployment. The record reveals that these effects can take 
several forms. In some cases, the fees in a particular jurisdiction 
will lead to reduced or entirely forgone deployment of Small Wireless 
Facilities in the near term for that jurisdiction. In other cases, 
where it is essential for a provider to deploy in a given area, the 
fees charged in that geographic area can deprive providers of capital 
needed to deploy elsewhere, and lead to reduced or forgone near-term 
deployment of Small Wireless Facilities in other geographic areas. In 
both of those scenarios the bottom-line outcome on the national 
development of 5G networks is the same--diminished deployment of Small 
Wireless Facilities critical for wireless service and building out 5G 
networks.
    13. Relationship to Section 332. The Commission clarifies that the 
statutory phrase ``prohibit or have the effect of prohibiting'' in 
Section 332(c)(7)(B)(i)(II) has the same meaning as the phrase 
``prohibits or has the effect of prohibiting'' in Section 253(a). There 
is no evidence to suggest that Congress intended for virtually 
identical language to have different meanings in the two provisions. 
Instead, the Commission finds it more reasonable to conclude that the 
language in both sections should be interpreted to have the same 
meaning and to reflect the same standard, including with respect to 
preemption of fees that could ``prohibit'' or have ``the effect of 
prohibiting'' the provision of covered service. Both sections were 
enacted to address concerns about state and local government practices 
that undermined providers' ability to provide covered services, and 
both bar state or local conduct that prohibits or has the effect of 
prohibiting service.
    14. To be sure, Sections 253 and 332(c)(7) may relate to different 
categories of state and local fees. Ultimately, the Commission needs 
not resolve here the precise interplay between Sections 253 and 
332(c)(7). It is enough for it to conclude that, collectively, Congress 
intended for the two provisions to cover the universe of fees charged 
by state and local governments in connection with the deployment of 
telecommunications infrastructure. Given the analogous purposes of both 
sections and the consistent language used by Congress, the Commission 
finds the phrase ``prohibit or have the effect of prohibiting'' in 
Section 332(c)(7)(B)(i)(II) should be construed as having the same 
meaning and governed by the same preemption standard as the nearly 
identical language in Section 253(a).
    15. Application of the Interpretations and Principles Established 
Here. Consistent with the interpretations above, the requirement that 
compensation be limited to a reasonable approximation of objectively 
reasonable costs and be non-discriminatory applies to all state and 
local government fees paid in connection with a provider's use of the 
ROW to deploy Small Wireless Facilities including, but not limited to, 
fees for access to the ROW itself, and fees for the attachment to or 
use of property within the ROW owned or controlled by the government 
(e.g., street lights, traffic lights, utility poles, and other 
infrastructure within the ROW suitable for the placement of Small 
Wireless Facilities). This interpretation applies with equal force to 
any fees reasonably related to the placement, construction, 
maintenance, repair, movement, modification, upgrade, replacement, or 
removal of Small Wireless Facilities within the ROW, including, but not 
limited to, application or permit fees such as siting applications, 
zoning variance applications, building permits, electrical

[[Page 51870]]

permits, parking permits, or excavation permits.
    16. Applying the principles established in this Declaratory Ruling, 
a variety of fees not reasonably tethered to costs appear to violate 
Sections 253(a) or 332(c)(7) in the context of Small Wireless Facility 
deployments. For example, the Commission agrees with courts that have 
recognized that gross revenue fees generally are not based on the costs 
associated with an entity's use of the ROW, and where that is the case, 
are preempted under Section 253(a). In addition, although the 
Commission rejects calls to preclude a state or locality's use of third 
party contractors or consultants, or to find all associated 
compensation preempted, the Commission makes clear that the principles 
discussed herein regarding the reasonableness of cost remain 
applicable. Thus, fees must not only be limited to a reasonable 
approximation of costs, but in order to be reflected in fees the costs 
themselves must also be reasonable. Accordingly, any unreasonably high 
costs, such as excessive charges by third party contractors or 
consultants, may not be passed on through fees even though they are an 
actual ``cost'' to the government. If a locality opts to incur 
unreasonable costs, Sections 253 and 332(c)(7) do not permit it to pass 
those costs on to providers. Fees that depart from these principles are 
not saved by Section 253(c), as the Commission discusses below.
    17. Interpretation of Section 253(c) in the Context of Fees. In 
this section, the Commission turns to the interpretation of several 
provisions in Section 253(c), which provides that state or local action 
that otherwise would be subject to preemption under Section 253(a) may 
be permissible if it meets specified criteria. Section 253(c) expressly 
provides that state or local governments may require telecommunications 
providers to pay ``fair and reasonable compensation'' for use of public 
ROWs but requires that the amounts of any such compensation be 
``competitively neutral and nondiscriminatory'' and ``publicly 
disclosed.''
    18. The Commission interprets the ambiguous phrase ``fair and 
reasonable compensation,'' within the statutory framework it outlined 
for Section 253, to allow state or local governments to charge fees 
that recover a reasonable approximation of the state or local 
governments' actual and reasonable costs. The Commission concludes that 
an appropriate yardstick for ``fair and reasonable compensation,'' and 
therefore an indicator of whether a fee violates Section 253(c), is 
whether it recovers a reasonable approximation of a state or local 
government's objectively reasonable costs of, respectively, maintaining 
the ROW, maintaining a structure within the ROW, or processing an 
application or permit.
    19. The existence of Section 253(c) makes clear that Congress 
anticipated that ``effective prohibitions'' could result from state or 
local government fees, and intended through that clause to provide 
protections in that respect, as discussed in greater detail herein. 
Against that backdrop, the Commission finds it unlikely that Congress 
would have left providers entirely at the mercy of effectively 
unconstrained requirements of state or local governments. The 
Commission's interpretation of Section 253(c), in fact, is consistent 
with the views of many municipal commenters, at least with respect to 
one-time permit or application fees, and the members of the BDAC Ad Hoc 
Committee on Rates and Fees who unanimously concurred that one-time 
fees for municipal applications and permits, such as an electrical 
inspection or a building permit, should be based on the cost to the 
government of processing that application. The Ad Hoc Committee noted 
that ``[the] cost-based fee structure [for one-time fees] unanimously 
approved by the committee accommodates the different siting related 
costs that different localities may incur to review, and process permit 
applications, while precluding excessive fees that impede deployment.'' 
The Commission finds that the same reasoning should apply to other 
state and local government fees such as ROW access fees or fees for the 
use of government property within the ROW.
    20. The Commission recognizes that state and local governments 
incur a variety of direct and actual costs in connection with Small 
Wireless Facilities, such as the cost for staff to review the 
provider's siting application, costs associated with a provider's use 
of the ROW, and costs associated with maintaining the ROW itself or 
structures within the ROW to which Small Wireless Facilities are 
attached. The Commission also recognizes that direct and actual costs 
may vary by location, scope, and extent of providers' planned 
deployments, such that different localities will have different fees 
under the interpretation set forth in this Declaratory Ruling.
    21. Because the Commission interprets fair and reasonable 
compensation as a reasonable approximation of costs, it does not 
suggest that localities must use any specific accounting method to 
document the costs they may incur when determining the fees they charge 
for Small Wireless Facilities within the ROW. Moreover, in order to 
simplify compliance, when a locality charges both types of recurring 
fees identified above (i.e., for access to the ROW and for use of or 
attachment to property in the ROW), the Commission sees no reason for 
concern with how it has allocated costs between those two types of 
fees. It is sufficient under the statute that the total of the two 
recurring fees reflects the total costs involved. Fees that cannot 
ultimately be shown by a state or locality to be a reasonable 
approximation of their costs, such as high fees designed to subsidize 
local government costs in another geographic area or accomplish some 
public policy objective beyond the providers' use of the ROW, are not 
``fair and reasonable compensation . . . for use of the public rights-
of-way'' under Section 253(c). Likewise, the Commission agrees with 
both industry and municipal commenters that excessive and arbitrary 
consulting fees or other costs should not be recoverable as ``fair and 
reasonable compensation,'' because they are not a function of the 
provider's ``use'' of the public ROW.
    22. In addition to requiring that compensation be ``fair and 
reasonable,'' Section 253(c) requires that it be ``competitively 
neutral and nondiscriminatory.'' The Commission has previously 
interpreted this language to prohibit states and localities from 
charging fees on new entrants and not on incumbents. Courts have 
similarly found that states and localities may not impose a range of 
fees on one provider but not on another and even some municipal 
commenters acknowledge that governments should not discriminate on the 
fees charged to different providers. The record reflects continuing 
concerns from providers, however, that they face discriminatory 
charges. The Commission reiterates its previous determination that 
state and local governments may not impose fees on some providers that 
they do not impose on others. The Commission would also be concerned 
about fees, whether one-time or recurring, related to Small Wireless 
Facilities, that exceed the fees for other wireless telecommunications 
infrastructure in similar situations, and to the extent that different 
fees are charged for similar use of the public ROW.
    23. Fee Levels Likely to Comply with Section 253. The Commission's 
interpretations of Section 253(a) and ``fair and reasonable 
compensation'' under Section 253(c) provides guidance for local and 
state fees charged with

[[Page 51871]]

respect to one-time fees generally, and recurring fees for deployments 
in the ROW. Following suggestions for the Commission to ``establish a 
presumptively reasonable `safe harbor' for certain ROW and use fees,'' 
and to facilitate the deployment of specific types of infrastructure 
critical to the rollout of 5G in coming years, the Commission 
identifies in this section three particular types of fee scenarios and 
supply specific guidance on amounts that are presumptively not 
prohibited by Section 253. Informed by the its review of information 
from a range of sources, the Commission concludes that fees at or below 
these amounts presumptively do not constitute an effective prohibition 
under Section 253(a) or Section 332(c)(7) and are presumed to be ``fair 
and reasonable compensation'' under Section 253(c).
    24. Based on its review of the Commission's pole attachment rate 
formula, which would require fees below the levels described in this 
paragraph, as well as small cell legislation in twenty states, local 
legislation from certain municipalities in states that have not passed 
small cell legislation, and comments in the record, the Commission 
presumes that the following fees would not be prohibited by Section 253 
or Section 332(c)(7): (a) $500 for non-recurring fees, including a 
single up-front application that includes up to five Small Wireless 
Facilities, with an additional $100 for each Small Wireless Facility 
beyond five, or $1,000 for non-recurring fees for a new pole (i.e., not 
a collocation) intended to support one or more Small Wireless 
Facilities, and (b) $270 per Small Wireless Facility per year for all 
recurring fees, including any possible ROW access fee or fee for 
attachment to municipally-owned structures in the ROW.
    25. By presuming that fees at or below the levels above comply with 
Section 253, the Commission assumes that there would be almost no 
litigation by providers over fees set at or below these levels. 
Likewise, the Commission's review of the record, including the many 
state small cell bills passed to date, indicate that there should be 
only very limited circumstances in which localities can charge higher 
fees consistent with the requirements of Section 253. In those limited 
circumstances, a locality could prevail in charging fees that are above 
this level by showing that such fees nonetheless comply with the limits 
imposed by Section 253--that is, that they are (1) a reasonable 
approximation of costs, (2) those costs themselves are reasonable, and 
(3) are non-discriminatory. Allowing localities to charge fees above 
these levels upon this showing recognizes local variances in costs.

C. Other State and Local Requirements That Govern Small Facilities 
Deployment

    26. There are also other types of state and local land-use or 
zoning requirements that may restrict Small Wireless Facility 
deployments to the degree that they have the effect of prohibiting 
service in violation of Sections 253 and 332. In this section, the 
Commission discusses how those statutory provisions apply to 
requirements outside the fee context both generally, and with 
particular focus on aesthetic and undergrounding requirements.
    27. As discussed above, a state or local legal requirement 
constitutes an effective prohibition if it ``materially limits or 
inhibits the ability of any competitor or potential competitor to 
compete in a fair and balanced legal and regulatory environment.'' The 
Commission's interpretation of that standard, as set forth above, 
applies equally to fees and to non-fee legal requirements. And as with 
fees, Section 253 contains certain safe harbors that permit some legal 
requirements that might otherwise be preempted by Section 253(a). 
Section 253(b) saves ``requirements necessary to preserve and advance 
universal service, protect the public safety and welfare, ensure the 
continued quality of telecommunications services, and safeguard the 
rights of consumers. And Section 253(c) preserves state and local 
authority to manage the public rights-of-way.
    28. Given the wide variety of possible legal requirements, the 
Commission does not attempt here to determine which of every possible 
non-fee legal requirements are preempted for having the effect of 
prohibiting service, although the Commission's discussion of fees above 
should prove instructive in evaluating specific requirements. Instead, 
the Commission focuses on some specific types of requirements raised in 
the record and provide guidance on when those particular types of 
requirements are preempted by the statute.
    29. Aesthetics. The Commission sought comment on whether deployment 
restrictions based on aesthetic or similar factors are widespread and, 
if so, how Sections 253 and 332(c)(7) should be applied to them. The 
Commission provides guidance on whether and in what circumstances 
aesthetic requirements violate the Act. This will help localities 
develop and implement lawful rules, enable providers to comply with 
these requirements, and facilitate the resolution of disputes. The 
Commission concludes that aesthetics requirements are not preempted if 
they are (1) reasonable, (2) no more burdensome than those applied to 
other types of infrastructure deployments, and (3) objective and 
published in advance.
    30. Like fees, compliance with aesthetic requirements imposes costs 
on providers, and the impact on their ability to provide service is 
just the same as the impact of fees. The Commission therefore draws on 
its analysis of fees to address aesthetic requirements. The Commission 
explained above that fees that merely require providers to bear the 
direct and reasonable costs that their deployments impose on states and 
localities should not be viewed as having the effect of prohibiting 
service and are permissible. Analogously, aesthetic requirements that 
are reasonable in that they are technically feasible and reasonably 
directed to avoiding or remedying the intangible public harm of 
unsightly or out-of-character deployments are also permissible. In 
assessing whether this standard has been met, aesthetic requirements 
that are more burdensome than those the state or locality applies to 
similar infrastructure deployments are not permissible, because such 
discriminatory application evidences that the requirements are not, in 
fact, reasonable and directed at remedying the impact of the wireless 
infrastructure deployment. For example, a minimum spacing requirement 
that has the effect of materially inhibiting wireless service would be 
considered an effective prohibition of service.
    31. Finally, in order to establish that they are reasonable and 
reasonably directed to avoiding aesthetic harms, aesthetic requirements 
must be objective--i.e., they must incorporate clearly-defined and 
ascertainable standards, applied in a principled manner--and must be 
published in advance. ``Secret'' rules that require applicants to guess 
at what types of deployments will pass aesthetic muster substantially 
increase providers' costs without providing any public benefit or 
addressing any public harm. Providers cannot design or implement 
rational plans for deploying Small Wireless Facilities if they cannot 
predict in advance what aesthetic requirements they will be obligated 
to satisfy to obtain permission to deploy a facility at any given site.
    32. The Commission appreciates that at least some localities will 
require some time to establish and publish aesthetics

[[Page 51872]]

standards that are consistent with this Declaratory Ruling. Based on 
its review and evaluation of commenters' concerns, the Commission 
anticipates that such publication should take no longer than 180 days 
after publication of this decision in the Federal Register.
    33. Undergrounding requirements. The Commission understands that 
some local jurisdictions have adopted undergrounding provisions that 
require infrastructure to be deployed below ground based, at least in 
some circumstances, on the locality's aesthetic concerns. A number of 
providers have complained that these types of requirements amount to an 
effective prohibition. In addressing this issue, the Commission first 
reiterates that while undergrounding requirements may well be 
permissible under state law as a general matter, any local authority to 
impose undergrounding requirements under state law does not remove the 
imposition of such undergrounding requirements from the provisions of 
Section 253. In this sense, the Commission notes that a requirement 
that all wireless facilities be deployed underground would amount to an 
effective prohibition given the propagation characteristics of wireless 
signals. Thus, undergrounding requirements can amount to effective 
prohibitions by materially inhibiting the deployment of wireless 
service.
    34. Minimum spacing requirements. Some parties complain of 
municipal requirements regarding the spacing of wireless 
installations--i.e., mandating that facilities be sited at least 100, 
500, or 1,000 feet, or some other minimum distance, away from other 
facilities, ostensibly to avoid excessive overhead ``clutter'' that 
would be visible from public areas. The Commission acknowledges that 
while some such requirements may violate 253(a), others may be 
reasonable aesthetic requirements. For example, under the principle 
that any such requirements be reasonable and publicly available in 
advance, it is difficult to envision any circumstances in which a 
municipality could reasonably promulgate a new minimum spacing 
requirement that, in effect, prevents a provider from replacing its 
preexisting facilities or collocating new equipment on a structure 
already in use. Such a rule change with retroactive effect would almost 
certainly have the effect of prohibiting service under the standards 
the Commission articulate here. Therefore, such requirements should be 
evaluated under the same standards as other aesthetic requirements.

D. States and Localities Act in Their Regulatory Capacities When 
Authorizing and Setting Terms for Wireless Infrastructure Deployment in 
Public Rights of Way

    35. The Commission confirms that it interpretations today extend to 
state and local governments' terms for access to public ROW that they 
own or control, including areas on, below, or above public roadways, 
highways, streets, sidewalks, or similar property, as well as their 
terms for use of or attachment to government-owned property within such 
ROW, such as light poles, traffic lights, and similar property suitable 
for hosting Small Wireless Facilities. As explained below, for two 
alternative and independent reasons, the Commission disagrees with 
state and local government commenters who assert that, in providing or 
denying access to government-owned structures, these governmental 
entities function solely as ``market participants'' whose rights cannot 
be subject to federal preemption under Section 253(a) or Section 
332(c)(7).
    36. First, this effort to differentiate between such governmental 
entities' ``regulatory'' and ``proprietary'' capacities in order to 
insulate the latter from preemption ignores a fundamental feature of 
the market participant doctrine. Specifically, Section 253(a) expressly 
preempts certain state and local ``legal requirements'' and makes no 
distinction between a state or locality's regulatory and proprietary 
conduct. Indeed, as the Commission has long recognized, Section 
253(a)'s sweeping reference to ``state [and] local statute[s] [and] 
regulation[s]'' and ``other State [and] local legal requirement[s]'' 
demonstrates Congress's intent ``to capture a broad range of state and 
local actions that prohibit or have the effect of prohibiting entities 
from providing telecommunications services.'' Section 253(b) mentions 
``requirement[s],'' a phrase that is even broader than that used in 
Section 253(a) but covers ``universal service,'' ``public safety and 
welfare,'' ``continued quality of telecommunications,'' and 
``safeguard[s for the] rights of consumers.'' The subsection does not 
recognize a distinction between regulatory and proprietary. Section 
253(c), which expressly insulates from preemption certain state and 
local government activities, refers in relevant part to ``manag[ing] 
the public rights-of-way'' and ``requir[ing] fair and reasonable 
compensation,'' while eliding any distinction between regulatory and 
proprietary action in either context. The Commission has previously 
observed that Section 253(c) ``makes explicit a local government's 
continuing authority to issue construction permits regulating how and 
when construction is conducted on roads and other public rights-of-
way;'' the Commission concludes here that, as a general matter, 
``manage[ment]'' of the ROW includes any conduct that bears on access 
to and use of those ROW, notwithstanding any attempts to characterize 
such conduct as proprietary. This reading, coupled with Section 
253(c)'s narrow scope, suggests that Congress's omission of a blanket 
proprietary exception to preemption was intentional and thus that such 
conduct can be preempted under Section 253(a). The Commission therefore 
construes Section 253(c)'s requirements, including the requirement that 
compensation be ``fair and reasonable,'' as applying equally to charges 
imposed via contracts and other arrangements between a state or local 
government and a party engaged in wireless facility deployment. This 
interpretation is consistent with Section 253(a)'s reference to ``State 
or local legal requirement[s],'' which the Commission has consistently 
construed to include such agreements. In light of the foregoing, 
whatever the force of the market participant doctrine in other 
contexts, the Commission believes the language, legislative history, 
and purpose of Sections 253(a) and (c) are incompatible with the 
application of this doctrine in this context. The Commission observes 
once more that ``[o]ur conclusion that Congress intended this language 
to be interpreted broadly is reinforced by the scope of section 
253(d),'' which ``directs the Commission to preempt any statute, 
regulation, or legal requirement permitted or imposed by a state or 
local government if it contravenes sections 253(a) or (b). A more 
restrictive interpretation of the term `other legal requirements' 
easily could permit state and local restrictions on competition to 
escape preemption based solely on the way in which [State] action [is] 
structured. The Commission does not believe that Congress intended this 
result.''
    37. Similarly, the Commission interprets Section 332(c)(7)(B)(ii)'s 
references to ``any request[s] for authorization to place, construct, 
or modify personal wireless service facilities'' broadly, consistent 
with Congressional intent. As described below, the Commission finds 
that ``any'' is unqualifiedly broad, and that ``request'' encompasses 
anything required to secure all authorizations necessary for the 
deployment of

[[Page 51873]]

personal wireless services infrastructure. In particular, the 
Commission finds that Section 332(c)(7) includes authorizations 
relating to access to a ROW, including but not limited to the 
``place[ment], construct[ion], or modif[ication]'' of facilities on 
government-owned property, for the purpose of providing ``personal 
wireless service.'' The Commission observes that this result, too, is 
consistent with Commission precedent, which involved a contract that 
provided exclusive access to a ROW. As but one example, to have limited 
that holding to exclude government-owned property within the ROW even 
if the carrier needed access to that property would have the effect of 
diluting or completely defeating the purpose of Section 332(c)(7).
    38. Second, and in the alternative, even if Section 253(a) and 
Section 332(c)(7) were to permit leeway for states and localities 
acting in their proprietary role, the examples in the record would be 
excepted because they involve states and localities fulfilling 
regulatory objectives. In the proprietary context, ``a State acts as a 
`market participant with no interest in setting policy.' '' The 
Commission contrasts state and local governments' purely proprietary 
actions with states and localities acting with respect to managing or 
controlling access to property within public ROW, or to decisions about 
where facilities that will provide personal wireless service to the 
public may be sited. As several commenters point out, courts have 
recognized that states and localities ``hold the public streets and 
sidewalks in trust for the public'' and ``manage public ROW in their 
regulatory capacities.'' These decisions could be based on a number of 
regulatory objectives, such as aesthetics or public safety and welfare, 
some of which, as the Commission notes elsewhere, would fall within the 
preemption scheme envisioned by Congress. In these situations, the 
State or locality's role seems to be indistinguishable from its 
function and objectives as a regulator. To the extent that there is 
some distinction, the temptation to blend the two roles for purposes of 
insulating conduct from federal preemption cannot be underestimated in 
light of the overarching statutory objective that telecommunications 
service and personal wireless services be deployed without material 
impediments.
    39. The Commission believes that Section 253(c) is properly 
construed to suggest that Congress did not intend to permit states and 
localities to rely on their ownership of property within a ROW as a 
pretext to advance regulatory objectives that prohibit or have the 
effect of prohibiting the provision of covered services, and thus that 
such conduct is preempted. The Commission's interpretations here are 
intended to facilitate the implementation of the scheme Congress 
intended and to provide greater regulatory certainty to states, 
municipalities, and regulated parties about what conduct is preempted 
under Section 253(a). Should factual questions arise about whether a 
state or locality is engaged in such behavior, Section 253(d) affords 
state and local governments and private parties an avenue for specific 
preemption challenges.

E. Responses to Challenges to the Commission's Interpretive Authority 
and Other Arguments

    40. The Commission rejects claims that it lacks authority to issue 
authoritative interpretations of Sections 253 and 332(c)(7) in this 
Declaratory Ruling. The Commission acts here pursuant to its broad 
authority to interpret key provisions of the Communications Act, 
consistent with the Commission's exercise of that interpretive 
authority in the past. In this instance, the Commission finds that 
issuing a Declaratory Ruling is necessary to remove what the record 
reveals is substantial uncertainty and to reduce the number and 
complexity of legal controversies regarding certain fee and non-fee 
state and local legal requirements in connection with Small Wireless 
Facility infrastructure. The Commission thus exercise its authority in 
this Declaratory Ruling to interpret Section 253 and Section 332(c)(7) 
and explain how those provisions apply in the specific scenarios at 
issue here.
    41. Nothing in Sections 253 or 332(c)(7) purports to limit the 
exercise of the Commission's general interpretive authority. Congress's 
inclusion of preemption provisions in Section 253(d) and Section 
332(c)(7)(B)(v) does not limit the Commission's ability pursuant to 
other sections of the Act to construe and provide its authoritative 
interpretation as to the meaning of those provisions. Any preemption 
under Section 253 and/or Section 332(c)(7)(B) that subsequently occurs 
will proceed in accordance with the enforcement mechanisms available in 
each context. But whatever enforcement mechanisms may be available to 
preempt specific state and local requirements, nothing in Section 253 
or Section 332(c)(7) prevents the Commission from declaring that a 
category of state or local laws is inconsistent with Section 253(a) or 
Section 332(c)(7)(B)(i)(II) because it prohibits or has the effect of 
prohibiting the relevant covered service.
    42. The Commission's interpretations of Sections 253 and Section 
332(c)(7) are likewise not at odds with the Tenth Amendment and 
constitutional precedent, as some commenters contend. In particular, 
the Commission's interpretations do not directly ``compel the states to 
administer federal regulatory programs or pass legislation.'' The 
outcome of violations of Section 253(a) or Section 332(c)(7)(B) of the 
Act are no more than a consequence of ``the limits Congress already 
imposed on State and local governments'' through its enactment of 
Section 332(c)(7).
    43. The Commission also reject the suggestion that the limits 
Section 253 places on state and local rights-of-way fees and management 
will unconstitutionally interfere with the relationship between a state 
and its political subdivisions. As relevant to its interpretations 
here, it is not clear, at first blush, that such concerns would be 
implicated. Because state and local legal requirements can be written 
and structured in myriad ways, and challenges to such state or local 
activities could be framed in broad or narrow terms, the Commission 
declines to resolve such questions here, divorced from any specific 
context.

II. Third Report and Order

    44. In this Third Report and Order, the Commission addresses the 
application of shot clocks to state and local review of wireless 
infrastructure deployments. The Commission does so by taking action in 
three main areas. First, the Commission adopts a new set of shot clocks 
tailored to support the deployment Small Wireless Facilities. Second, 
the Commission adopts a specific remedy that applies to violations of 
these new Small Wireless Facility shot clocks, which the Commission 
expects will operate to significantly reduce the need for litigation 
over missed shot clocks. Third, the Commission clarifies a number of 
issues that are relevant to all of the FCC's shot clocks, including the 
types of authorizations subject to these time periods.

A. New Shot Clocks for Small Wireless Facility Deployments

    45. In 2009, the Commission concluded that it should use shot 
clocks to define a presumptive ``reasonable period of time'' beyond 
which state or local inaction on wireless infrastructure siting 
applications would constitute a ``failure to act'' within the meaning 
of

[[Page 51874]]

Section 332. The Commission adopted a 90-day clock for reviewing 
collocation applications and a 150-day clock for reviewing siting 
applications other than collocations. The record here suggests that the 
two existing Section 332 shot clocks have increased the efficiency of 
deploying wireless infrastructure. Many localities already process 
wireless siting applications in less time than required by those shot 
clocks and a number of states have enacted laws requiring that 
collocation applications be processed in 60 days or less. Some siting 
agencies acknowledge that they have worked to gain efficiencies in 
processing siting applications and welcome the addition of new shot 
clocks tailored to the deployment of small scale facilities. Given 
siting agencies' increased experience with existing shot clocks, the 
greater need for rapid siting of Small Wireless Facilities nationwide, 
and the lower burden siting of these facilities places on siting 
agencies in many cases, the Commission takes this opportunity to update 
its approach to speed the deployment of Small Wireless Facilities.
1. Two New Section 332 Shot Clocks for Deployment of Small Wireless 
Facilities
    46. In this section, the Commission adopts two new Section 332 shot 
clocks for Small Wireless Facilities--60 days for review of an 
application for collocation of Small Wireless Facilities using a 
preexisting structure and 90 days for review of an application for 
attachment of Small Wireless Facilities using a new structure. These 
new Section 332 shot clocks carefully balance the well-established 
authority that states and local authorities have over review of 
wireless siting applications with the requirements of Section 
332(c)(7)(ii) to exercise that authority ``within a reasonable period 
of time . . . taking into account the nature and scope of the 
request.'' Further, the Commission's decision is consistent with the 
BDAC's Model Code for Municipalities' recommended timeframes, which 
utilize this same 60-day and 90-day framework for collocation of Small 
Wireless Facilities and new structures and are similar to shot clocks 
enacted in state level small cell bills and the real world experience 
of many municipalities which further supports the reasonableness of its 
approach. The Commission's actions will modernize the framework for 
wireless facility siting by taking into consideration that states and 
localities should be able to address the siting of Small Wireless 
Facilities in a more expedited review period than needed for larger 
facilities.
    47. The Commission finds compelling reasons to establish a new 
presumptively reasonable Section 332 shot clock of 60 days for 
collocations of Small Wireless Facilities on existing structures. The 
record demonstrates the need for, and reasonableness of, expediting the 
siting review of these collocations. Notwithstanding the implementation 
of the current shot clocks, more streamlined procedures are both 
reasonable and necessary to provide greater predictability for siting 
applications nationwide for the deployment of Small Wireless 
Facilities. The two current Section 332 shot clocks do not reflect the 
evolution of the application review process and evidence that 
localities can complete reviews more quickly than was the case when the 
existing Section 332 shot clocks were adopted nine years ago. Since 
2009, localities have gained significant experience processing wireless 
siting applications. Indeed, many localities already process wireless 
siting applications in less than the required time and several 
jurisdictions require by law that collocation applications be processed 
in 60 days or less. With the passage of time, siting agencies have 
become more efficient in processing siting applications. These facts 
demonstrate that a shorter, 60-day shot clock for processing 
collocation applications for Small Wireless Facilities is reasonable.
    48. As the Commission found in 2009, collocation applications are 
generally easier to process than new construction because the community 
impact is likely to be smaller. In particular, the addition of an 
antenna to an existing tower or other structure is unlikely to have a 
significant visual impact on the community. The size of Small Wireless 
Facilities poses little or no risk of adverse effects on the 
environment or historic preservation. Indeed, many jurisdictions do not 
require public hearings for approval of such attachments, underscoring 
their belief that such attachments do not implicate complex issues 
requiring a more searching review.
    49. Further, the Commission finds no reason to believe that 
applying a 60-day time frame for Small Wireless Facility collocations 
under Section 332 creates confusion with collocations that fall within 
the scope of ``eligible facilities requests'' under Section 6409 of the 
Spectrum Act, which are also subject to a 60-day review. The type of 
facilities at issue here are distinctly different and the definition of 
a Small Wireless Facility is clear. Further, siting authorities are 
required to process Section 6409 applications involving the swap out of 
certain equipment in 60 days, and the Commission sees no meaningful 
difference in processing these applications than processing Section 332 
collocation applications in 60 days. There is no reason to apply 
different time periods (60 vs. 90 days) to what is essentially the same 
review: Modification of an existing structure to accommodate new 
equipment. Finally, adopting a 60-day shot clock will encourage service 
providers to collocate rather than opting to build new siting 
structures which has numerous advantages.
    50. For similar reasons, the Commission also finds it reasonable to 
establish a new 90-day Section 332 shot clock for new construction of 
Small Wireless Facilities. Ninety days is a presumptively reasonable 
period of time for localities to review such siting applications. Small 
Wireless Facilities have far less visual and other impact than the 
facilities the Commission considered in 2009 and should accordingly 
require less time to review. Indeed, some state and local governments 
have already adopted 60-day maximum reasonable periods of time for 
review of all small cell siting applications, and, even in the absence 
of such maximum requirements, several are already reviewing and 
approving small-cell siting applications within 60 days or less after 
filing. Numerous industry commenters advocated a 90-day shot clock for 
all non-collocation deployments. Based on this record, the Commission 
finds review of an application to deploy a Small Wireless Facility 
using a new structure warrants more review time than a mere 
collocation, but less than the construction of a macro tower. For the 
reasons explained below, the Commission also specifies today a 
provision that will initially reset these two new shot clocks in the 
event that a locality receives a materially incomplete application.
2. Batched Applications for Small Wireless Facilities
    51. Given the way in which Small Wireless Facilities are likely to 
be deployed, in large numbers as part of a system meant to cover a 
particular area, the Commission anticipates that some applicants will 
submit ``batched'' applications: Multiple separate applications filed 
at the same time, each for one or more sites or a single application 
covering multiple sites. The Commission sought comment on whether 
batched applications should be subject to either longer or shorter shot 
clocks than would apply if each component of the batch were submitted

[[Page 51875]]

separately. The Commission sees no reason why the shot clocks for 
batched applications to deploy Small Wireless Facilities should be 
longer than those that apply to individual applications because, in 
many cases, the batching of such applications has advantages in terms 
of administrative efficiency that could actually make review easier. 
The Commission's decision flows from its current Section 332 shot clock 
policy. Under the two existing Section 332 shot clocks, if an applicant 
files multiple siting applications on the same day for the same type of 
facilities, each application is subject to the same number of review 
days by the siting agency. These multiple siting applications are 
equivalent to a batched application and therefore the shot clocks for 
batching should follow the same rules as if the applications were filed 
separately. Accordingly, when applications to deploy Small Wireless 
Facilities are filed in batches, the shot clock that applies to the 
batch is the same one that would apply had the applicant submitted 
individual applications. Should an applicant file a single application 
for a batch that includes both collocated and new construction of Small 
Wireless Facilities, the longer 90-day shot clock will apply, to ensure 
that the siting authority has adequate time to review the new 
construction sites.
    52. The Commission recognizes the concerns raised by parties 
arguing for a longer time period for at least some batched applications 
but concludes that a separate rule is not necessary to address these 
concerns. Under the Commission's approach, in extraordinary cases, a 
siting authority, as discussed below, can rebut the presumption of 
reasonableness of the applicable shot clock period where a batch 
application causes legitimate overload on the siting authority's 
resources. Thus, contrary to some localities' arguments, the 
Commission's approach provides for a certain degree of flexibility to 
account for exceptional circumstances. In addition, consistent with, 
and for the same reasons as the Commission's conclusion below that 
Section 332 does not permit states and localities to prohibit 
applicants from requesting multiple types of approvals simultaneously, 
the Commission finds that Section 332(c)(7)(B)(ii) similarly does not 
allow states and localities to refuse to accept batches of applications 
to deploy Small Wireless Facilities.

B. New Remedy for Violations of the Small Wireless Facilities Shot 
Clocks

    53. In adopting these new shot clocks for Small Wireless Facility 
applications, the Commission also provides an additional remedy that it 
expects will substantially reduce the likelihood that applicants will 
need to pursue additional and costly relief in court at the expiration 
of those time periods.
    54. The Commission determines that the failure of a state or local 
government to issue a decision on a Small Wireless Facility siting 
application within the presumptively reasonable time periods above will 
constitute a ``failure to act'' within the meaning of Section 
332(c)(7)(B)(v). Therefore, a provider is, at a minimum, entitled to 
the same process and remedies available for a failure to act within the 
new Small Wireless Facility shot clocks as they have been under the 
FCC's 2009 shot clocks. But the Commission also adds an additional 
remedy for the new Small Wireless Facility shot clocks.
    55. State or local inaction by the end of the Small Wireless 
Facility shot clock will function not only as a Section 332(c)(7)(B)(v) 
failure to act but also amount to a presumptive prohibition on the 
provision of personal wireless services within the meaning of Section 
332(c)(7)(B)(i)(II). Accordingly, the Commission would expect the state 
or local government to issue all necessary permits without further 
delay. In cases where such action is not taken, the Commission assumes, 
for the reasons discussed below, that the applicant would have a 
straightforward case for obtaining expedited relief in court.
    56. As discussed in the Declaratory Ruling, a regulation under 
Section 332(c)(7)(B)(i)(II) constitutes an effective prohibition if it 
materially limits or inhibits the ability of any competitor or 
potential competitor to compete in a fair and balanced legal and 
regulatory environment. Missing shot clock deadlines would thus 
presumptively have the effect of unlawfully prohibiting service in that 
such failure to act can be expected to materially limit or inhibit the 
introduction of new services or the improvement of existing services. 
Thus, when a siting authority misses the applicable shot clock 
deadline, the applicant may commence suit in a court of competent 
jurisdiction alleging a violation of Section 332(c)(7)(B)(i)(II), in 
addition to a violation of Section 332(c)(7)(B)(ii), as discussed 
above. The siting authority then will have an opportunity to rebut the 
presumption of effective prohibition by demonstrating that the failure 
to act was reasonable under the circumstances and, therefore, did not 
materially limit or inhibit the applicant from introducing new services 
or improving existing services.
    57. Given the seriousness of failure to act within a reasonable 
period of time, the Commission expects, as noted above, siting 
authorities to issue without any further delay all necessary 
authorizations when notified by the applicant that they have missed the 
shot clock deadline, absent extraordinary circumstances. Where the 
siting authority nevertheless fails to issue all necessary 
authorizations and litigation is commenced based on violations of 
Sections 332(c)(7)(B)(i)(II) and/or 332(c)(7)(B)(ii), the Commission 
expects that applicants and other aggrieved parties will likely pursue 
equitable judicial remedies. Given the relatively low burden on state 
and local authorities of simply acting--one way or the other--within 
the Small Wireless Facility shot clocks, the Commission thinks that 
applicants would have a relatively low hurdle to clear in establishing 
a right to expedited judicial relief.
    58. The Commission expects that courts will typically find 
expedited and permanent injunctive relief warranted for violations of 
Sections 332(c)(7)(B)(i)(II) and 332(c)(7)(B)(ii) of the Act when 
addressing the circumstances discussed in this Order. The Commission 
believes that this approach is sensible because guarding against 
barriers to the deployment of personal wireless facilities not only 
advances the goal of Section 332(c)(7)(B) but also policies set out 
elsewhere in the Communications Act and 1996 Act, as the Commission 
recently has recognized in the case of Small Wireless Facilities. This 
is so whether or not these barriers stem from bad faith. Nor does the 
Commission anticipate that there would be unresolved issues implicating 
the siting authority's expertise and therefore requiring remand in most 
instances.
    59. The guidance provided here should reduce the need for, and 
complexity of, case-by-case litigation and reduce the likelihood of 
vastly different timing across various jurisdictions for the same type 
of deployment. This clarification, along with the other actions the 
Commission takes in this Third Report and Order, should streamline the 
courts' decision-making process and reduce the possibility of 
inconsistent rulings. Consequently, the Commission believes that its 
approach helps facilitate courts' ability to ``hear and decide such 
[lawsuits] on an expedited basis,'' as the statute requires.
    60. The Commission's updated interpretation of Section 332(c)(7) 
for Small Wireless Facilities effectively balances the interest of 
wireless service providers to have siting applications granted in a 
timely and streamlined manner and the interest of localities to

[[Page 51876]]

protect public safety and welfare and preserve their authority over the 
permitting process. The Commission's specialized deployment categories, 
in conjunction with the acknowledgement that in rare instances, it may 
legitimately take longer to act, recognize that the siting process is 
complex and handled in many different ways under various states' and 
localities' long-established codes. Further, the Commission's approach 
tempers localities' concerns about the inflexibility of a deemed 
granted proposal because the new remedy the Commission adopts here 
accounts for the breadth of potentially unforeseen circumstances that 
individual localities may face and the possibility that additional 
review time may be needed in truly exceptional circumstances. The 
Commission further finds that its interpretive framework will not be 
unduly burdensome on localities because a number of states have already 
adopted even more stringent deemed granted remedies

C. Clarification of Issues Related to All Section 332 Shot Clocks

1. Authorizations Subject to the ``Reasonable Period of Time'' 
Provision of Section 332(c)(7)(B)(ii)
    61. Section 332(c)(7)(B)(ii) requires state and local governments 
to act ``within a reasonable period of time'' on ``any request for 
authorization to place, construct, or modify personal wireless service 
facilities.'' The Commission has not addressed the specific types of 
authorizations subject to this requirement. After carefully considering 
these arguments, the Commission finds that ``any request for 
authorization to place, construct, or modify personal wireless service 
facilities'' under Section 332(c)(7)(B)(ii) means all authorizations 
necessary for the deployment of personal wireless services 
infrastructure. This interpretation finds support in the record and is 
consistent with the courts' interpretation of this provision and the 
text and purpose of the Act.
    62. The Commission's interpretation remains faithful to the purpose 
of Section 332(c)(7) to balance Congress's competing desires to 
preserve the traditional role of state and local governments in 
regulating land use and zoning, while encouraging the rapid development 
of new telecommunications technologies. Under the Commission's 
interpretation, states and localities retain their authority over 
personal wireless facilities deployment. At the same time, deployment 
will be kept on track by ensuring that the entire approval process 
necessary for deployment is completed within a reasonable period of 
time, as defined by the shot clocks addressed in this Third Report and 
Order.
2. Codification of Section 332 Shot Clocks
    63. In addition to establishing two new Section 332 shot clocks for 
Small Wireless Facilities, the Commission takes this opportunity to 
codify its two existing Section 332 shot clocks for siting applications 
that do not involve Small Wireless Facilities. In 2009 the Commission 
found that 90 days is a reasonable time frame for processing 
collocation applications and 150 days is a reasonable time frame to 
process applications other than collocations. Since these Section 332 
shot clocks were adopted as part of a declaratory ruling, they were not 
codified in the Commission's rules. The Commission sought comment on 
whether to modify these shot clocks. The Commission finds no need to 
modify them here and will continue to use these shot clocks for 
processing Section 332 siting applications that do not involve Small 
Wireless Facilities. The Commission does, though, codify these two 
existing shot clocks in its rules alongside the two newly-adopted shot 
clocks so that all interested parties can readily find the shot clock 
requirements in one place.
3. Collocations on Structures Not Previously Zoned for Wireless Use
    64. The Commission takes this opportunity to clarify that for 
purposes of the Section 332 shot clocks, attachment of facilities to 
existing structures constitutes collocation, regardless of whether the 
structure or the location has previously been zoned for wireless 
facilities. As the Commission stated in 2009, ``an application is a 
request for collocation if it does not involve a `substantial increase 
in the size of a tower' as defined in the Nationwide Programmatic 
Agreement (NPA) for the Collocation of Wireless Antennas.'' The 
definition of ``[c]ollocation'' in the NPA provides for the ``mounting 
or installation of an antenna on an existing tower, building or 
structure for the purpose of transmitting and/or receiving radio 
frequency signals for communications purposes, whether or not there is 
an existing antenna on the structure.'' The NPA's definition of 
collocation explicitly encompasses collocations on structures and 
buildings that have not yet been zoned for wireless use. To interpret 
the NPA any other way would be unduly narrow and there is no persuasive 
reason to accept a narrower interpretation. This is particularly true 
given that the NPA definition of collocation stands in direct contrast 
with the definition of collocation in the Spectrum Act, pursuant to 
which facilities only fall within the scope of an ``eligible facilities 
request'' if they are attached to towers or base stations that have 
already been zoned for wireless use.
4. When Shot Clocks Start and Incomplete Applications
    65. In 2014 the Commission clarified that a shot clock begins to 
run when an application is first submitted, not when the application is 
deemed complete. The clock can be paused, however, if the locality 
notifies the applicant within 30 days that the application is 
incomplete. The locality may pause the clock again if it provides 
written notice within 10 days that the supplemental submission did not 
provide the information identified in the original notice delineating 
missing information. The Commission sought comment on these 
determinations.
    66. Based on the record, the Commission finds no cause to alter the 
Commission's prior determinations and now codifies them in its rules. 
Codified rules, easily accessible to applicants and localities alike, 
should provide helpful clarity. The complaints by states and localities 
about the sufficiency of some of the applications they receive are 
adequately addressed by the Commission's current policy, which 
preserves the states' and localities' ability to pause review when they 
find an application to be incomplete. The Commission does not find it 
necessary at this point to shorten the 30-day initial review period for 
completeness because, as was the case when this review period was 
adopted in the 2009, it remains consistent with review periods for 
completeness under existing state wireless infrastructure deployment 
statutes and still ``gives State and local governments sufficient time 
for reviewing applications for completeness, while protecting 
applicants from a last minute decision that an application should be 
denied as incomplete.''
    67. However, for applications to deploy Small Wireless Facilities, 
the Commission implements a modified tolling system designed to help 
ensure that providers are submitting complete applications on day one. 
This step accounts for the fact that the shot clocks applicable to such 
applications are shorter than those established in 2009 and, because of 
which, there may instances where the prevailing tolling

[[Page 51877]]

rules would further shorten the shot clocks to such an extent that it 
might be impossible for siting authorities to act on the application. 
For Small Wireless Facilities applications, the siting authority has 10 
days from the submission of the application to determine whether the 
application is incomplete. The shot clock then resets once the 
applicant submits the supplemental information requested by the siting 
authority. Thus, for example, for an application to collocate Small 
Wireless Facilities, once the applicant submits the supplemental 
information in response to a siting authority's timely request, the 
shot clock resets, effectively giving the siting authority an 
additional 60 days to act on the Small Wireless Facilities collocation 
application. For subsequent determinations of incompleteness, the 
tolling rules that apply to non-Small Wireless Facilities would apply--
that is, the shot clock would toll if the siting authority provides 
written notice within 10 days that the supplemental submission did not 
provide the information identified in the original notice delineating 
missing information.
    68. As noted above, multiple authorizations may be required before 
a deployment is allowed to move forward. For instance, a locality may 
require a zoning permit, a building permit, an electrical permit, a 
road closure permit, and an architectural or engineering permit for an 
applicant to place, construct, or modify its proposed personal wireless 
service facilities. All of these permits are subject to Section 332's 
requirement to act within a reasonable period of time, and thus all are 
subject to the shot clocks the Commission adopts or codifies here.
    69. The Commission also finds that mandatory pre-application 
procedures and requirements do not toll the shot clocks. The Commission 
concludes that the ability to toll a shot clock when an application is 
found incomplete or by mutual agreement by the applicant and the siting 
authority should be adequate to address these concerns. Much like a 
requirement to file applications one after another, requiring pre-
application review would allow for a complete circumvention of the shot 
clocks by significantly delaying their start date. An application is 
not ruled on within ``a reasonable period of time after the request is 
duly filed'' if the state or locality takes the full ordinary review 
period after having delayed the filing in the first instance due to 
required pre-application review. Indeed, requiring a pre-application 
review before an application may be filed is similar to imposing a 
moratorium, which the Commission has made clear does not stop the shot 
clocks from running. Therefore, the Commission concludes that if an 
applicant proffers an application, but a state or locality refuses to 
accept it until a pre-application review has been completed, the shot 
clock begins to run when the application is proffered.
    70. That said, the Commission encourages voluntary pre-application 
discussions, which may well be useful to both parties. The record 
indicates that such meetings can clarify key aspects of the application 
review process, especially with respect to large submissions or 
applicants new to a particular locality's processes and may speed the 
pace of review. To the extent that an applicant voluntarily engages in 
a pre-application review to smooth the way for its filing, the shot 
clock will begin when an application is filed, presumably after the 
pre-application review has concluded.
    71. The Commission also reiterates that the remedies granted under 
Section 332(c)(7)(B)(v) are independent of, and in addition to, any 
remedies that may be available under state or local law. Thus, where a 
state or locality has established its own shot clocks, an applicant may 
pursue any remedies granted under state or local law in cases where the 
siting authority fails to act within those shot clocks. However, the 
applicant must wait until the Commission shot clock period has expired 
to bring suit for a ``failure to act'' under Section 332(c)(7)(B)(v).

III. Procedural Matters

A. Final Regulatory Flexibility Analysis

    72. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was 
incorporated in the Notice of Proposed Rulemaking (NPRM), released in 
April 2017 (82 FR 22453, May 16, 2017). The Commission sought written 
public comment on the proposals in the NPRM, including comment on the 
IRFA. The comments received are addressed below in Section 2. This 
present Final Regulatory Flexibility Analysis (FRFA) conforms to the 
RFA.
1. Need for and Objectives of the Rules
    73. In the Third Report and Order, the Commission continues its 
efforts to promote the timely buildout of wireless infrastructure 
across the country by eliminating regulatory impediments that 
unnecessarily delay bringing personal wireless services to consumers. 
The record shows that lengthy delays in approving siting applications 
by siting agencies has been a persistent problem. With this in mind, 
the Third Report and Order establishes and codifies specific rules 
concerning the amount of time siting agencies may take to review and 
approve certain categories of wireless infrastructure siting 
applications. More specifically, the Commission addresses its Section 
332 shot clock rules for infrastructure applications which will be 
presumed reasonable under the Communications Act. As an initial matter, 
the Commission establishes two new shot clocks for Small Wireless 
Facilities applications. For collocation of Small Wireless Facilities 
on preexisting structures, the Commission adopts a 60-day shot clock 
which applies to both individual and batched applications. For 
applications associated with Small Wireless Facilities new construction 
the Commission adopts a 90-day shot clock for both individual and 
batched applications. The Commission also codifies two existing Section 
332 shot clocks for all other Non-Small Wireless Facilities that were 
established in 2009 without codification. These existing shot clocks 
require 90-days for processing of all other Non-Small Wireless 
Facilities collocation applications, and 150-days for processing of all 
other Non-Small Wireless Facilities applications other than 
collocations.
    74. The Third Report and Order addresses other issues related to 
both the existing and new shot clocks. In particular the Commission 
addresses the specific types of authorizations subject to the 
``Reasonable Period of Time'' provisions of Section 332(c)(7)(B)(ii), 
finding that ``any request for authorization to place, construct, or 
modify personal wireless service facilities'' under Section 
332(c)(7)(B)(ii) means all authorizations a locality may require, and 
to all aspects of and steps in the siting process, including license or 
franchise agreements to access ROW, building permits, public notices 
and meetings, lease negotiations, electric permits, road closure 
permits, aesthetic approvals, and other authorizations needed for 
deployment of personal wireless services infrastructure. The Commission 
also addresses collocation on structures not previously zoned for 
wireless use, when the four Section 332 shot clocks begin to run, the 
impact of incomplete applications on the Commission's Section 332 shot 
clocks, and how state imposed shot clocks remedies effect the 
Commission's Section 332 shot clocks remedies.
    75. The Commission discusses the appropriate judicial remedy that 
applicants may pursue in cases where a

[[Page 51878]]

siting authority fails to act within the applicable shot clock period. 
In those situations, applicants may commence an action in a court of 
competent jurisdiction alleging a violation of Section 
332(c)(7)(B)(i)(II) and seek injunctive relief granting the 
application. Notwithstanding the availability of a judicial remedy if a 
shot clock deadline is missed, the Commission recognizes that the 
Section 332 time frames might not be met in exceptional circumstances 
and has refined its interpretation of the circumstances when a period 
of time longer than the relevant shot clock would nonetheless be a 
reasonable period of time for action by a siting agency. In addition, a 
siting authority that is subject to a court action for missing an 
applicable shot clock deadline has the opportunity to demonstrate that 
the failure to act was reasonable under the circumstances and, 
therefore, did not materially limit or inhibit the applicant from 
introducing new services or improving existing services thereby 
rebutting the effective prohibition presumption.
    76. The rules adopted in the Third Report and Order will accelerate 
the deployment of wireless infrastructure needed for the mobile 
wireless services of the future, while preserving the fundamental role 
of localities in this process. Under the Commission's new rules, 
localities will maintain control over the placement, construction and 
modification of personal wireless facilities, while at the same time 
the Commission's new process will streamline the review of wireless 
siting applications.
2. Summary of Significant Issues Raised by Public Comments in Response 
to the IRFA
    77. Only one party--the Smart Cities and Special Districts 
Coalition--filed comments specifically addressing the rules and 
policies proposed in the IRFA. They argue that any shortening or 
alteration of the Commission's existing shot clocks or the adoption of 
a deemed granted remedy will adversely affect small local governments, 
special districts, property owners, small developers, and others by 
placing their siting applications behind wireless provider siting 
applications. Subsequently, NATOA filed comments concerning the draft 
FRFA. NATOA argues that the new shot clocks impose burdens on local 
governments and particularly those with limited resources. NATOA 
asserts that the new shot clocks will spur more deployment applications 
than localities currently process.
    78. These arguments, however, fail to acknowledge that Section 332 
shot clocks have been in place for years and reflect Congressional 
intent as seen in the statutory language of Section 332. The record in 
this proceeding demonstrates the need for, and reasonableness of, 
expediting the siting review of certain facility deployments. More 
streamlined procedures are both reasonable and necessary to provide 
greater predictability. The current shot clocks do not reflect the 
evolution of the application review process and evidence that 
localities can complete reviews more quickly than was the case when the 
original shot clocks were adopted nine years ago. Localities have 
gained significant experience processing wireless siting applications 
and several jurisdictions already have in place laws that require 
applications to be processed in less time than the Commission's new 
shot clocks. With the passage of time, sitting agencies have become 
more efficient in processing siting applications and this, in turn, 
should reduce any economic burden the Commission's new shot clock 
provisions have on them.
    79. The Commission has carefully considered the impact of its new 
shot clocks on siting authorities and has established shot clocks that 
take into consideration the nature and scope of siting requests by 
establishing shot clocks of different lengths of time that depend on 
the nature of the siting request at issue. The length of these shot 
clocks is based in part on the need to ensure that local governments 
have ample time to take any steps needed to protect public safety and 
welfare and to process other pending utility applications. Since local 
siting authorities have gained experience in processing siting requests 
in an expedited fashion, they should be able to comply with the 
Commission's new shot clocks.
    80. The Commission has taken into consideration the concerns of the 
Smart Cities and Special Districts Coalition and NATOA. It has 
established shot clocks that will not favor wireless providers over 
other applicants with pending siting applications. Further, instead of 
adopting a deemed granted remedy that would grant a siting application 
when a shot clock lapses without a decision on the merits, the 
Commission provides guidance as to the appropriate judicial remedy that 
applicants may pursue and examples of exceptional circumstance where a 
siting authority may be justified in needing additional time to review 
a siting application then the applicable shot clock allows. Under this 
approach, the applicant may seek injunctive relief as long as several 
minimum requirements are met. The siting authority, however, can rebut 
the presumptive reasonableness of the applicable shot clock under 
certain circumstances. The circumstances under which a sitting 
authority might have to do this will be rare. Under this carefully 
crafted approach, the interests of siting applicants, siting 
authorities, and citizens are protected.
3. Response to Comments by the Chief Counsel for Advocacy of the Small 
Business Administration
    81. Pursuant to the Small Business Jobs Act of 2010, which amended 
the RFA, the Commission is required to respond to any comments filed by 
the Chief Counsel for Advocacy of the Small Business Administration 
(SBA), and to provide a detailed statement of any change made to the 
proposed rules as a result of those comments.
    82. The Chief Counsel did not file any comments in response to the 
proposed rules in this proceeding.
4. Description and Estimate of the Number of Small Entities to Which 
the Rules Will Apply
    83. 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 rules adopted herein. 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.
    84. 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 describe here, at the outset, three broad groups of small 
entities 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 percent of all businesses in the United 
States

[[Page 51879]]

which translates to 28.8 million businesses.
    85. 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 August 2016, there were approximately 356,494 small 
organizations based on registration and tax data filed by nonprofits 
with the Internal Revenue Service (IRS).
    86. Finally, the small entity described as a ``small governmental 
jurisdiction'' is defined generally as ``governments of cities, 
counties, towns, townships, villages, school districts, or special 
districts, with a population of less than fifty thousand.'' U.S. Census 
Bureau data from the 2012 Census of Governments indicate that there 
were 90,056 local governmental jurisdictions consisting of general 
purpose governments and special purpose governments in the United 
States. Of this number there were 37,132 General purpose governments 
(county, municipal and town or township) with populations of less than 
50,000 and 12,184 Special purpose governments (independent school 
districts and special districts) with populations of less than 50,000. 
The 2012 U.S. Census Bureau data for most types of governments in the 
local government category show that the majority of these governments 
have populations of less than 50,000. Based on this data the Commission 
estimates that at least 49,316 local government jurisdictions fall in 
the category of ``small governmental jurisdictions.''
    87. Wireless Telecommunications Carriers (except Satellite). This 
industry comprises establishments engaged in operating and maintaining 
switching and transmission facilities to provide communications via the 
airwaves. Establishments in this industry have spectrum licenses and 
provide services using that spectrum, such as cellular 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 1,000 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.
    88. The Commission's own data--available in its Universal Licensing 
System--indicate that, as of May 17, 2018, there are 264 Cellular 
licensees that will be affected by the Commission's actions. 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.
    89. 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 1,000 employees or more. Thus, 
under this category and the associated size standard, the Commission 
estimates that the majority of firms can be considered small. The 
Commission notes however 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.
    90. 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. The closest 
applicable SBA category is Wireless Telecommunications Carriers (except 
Satellite) which encompasses business entities engaged in 
radiotelephone communications. The appropriate size standard for this 
category 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 1,000 employees or more. Thus under this category and 
the associated size standard, the Commission estimates that the 
majority of firms can be considered small. 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.
    91. 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 closest applicable SBA 
category is Wireless Telecommunications Carriers (except Satellite) 
which encompasses business entities engaged in radiotelephone 
communications. The appropriate size standard for this category under 
SBA

[[Page 51880]]

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 
1,000 employees or more. Thus, under this category and the associated 
size standard, the Commission estimates that the majority of PLMR 
Licensees are small entities.
    92. According to the Commission's records, a total of approximately 
400,622 licenses comprise PLMR users. Of this number 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 the Third Report and Order. 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.
    93. Multiple Address Systems. Entities using Multiple Address 
Systems (MAS) spectrum, in general, fall into two categories: (1) Those 
using the spectrum for profit-based uses, and (2) those using the 
spectrum for private internal uses. With respect to the first category, 
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 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.
    94. 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.
    95. 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 closest applicable definition of 
a small entity is the ``Wireless Telecommunications Carriers (except 
Satellite)'' definition under the SBA rules. The appropriate size 
standard under SBA rules is that such 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 1,000 employees or more. Thus, under this category 
and the associated small business size standard, the Commission 
estimates that the majority of firms that may be affected by the 
Commission's action can be considered small.
    96. 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)).
    97. 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 there are approximately 86 incumbent BRS 
licensees that are considered small entities (18 incumbent BRS 
licensees do not meet the small business size standard). After adding 
the number of small business auction licensees to the number of 
incumbent licensees not already counted, the Commission finds that 
there are currently approximately 133 BRS licensees that are defined as 
small businesses under either the SBA or the Commission's rules.
    98. 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.
    99. EBS--The Educational Broadband Service has been included within 
the broad economic census category and SBA size standard for Wired 
Telecommunications Carriers since 2007. 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

[[Page 51881]]

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 Bureau data for 2012 show 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. In addition to Census Bureau data, the Commission's Universal 
Licensing System indicates that as of October 2014, there are 2,206 
active EBS licenses. The Commission estimates that of these 2,206 
licenses, the majority are held by non-profit educational institutions 
and school districts, which are by statute defined as small businesses.
    100. Location and Monitoring Service (LMS). LMS systems use non-
voice radio techniques to determine the location and status of mobile 
radio units. For purposes of auctioning LMS licenses, the Commission 
has defined a ``small business'' as an entity that, together with 
controlling interests and affiliates, has average annual gross revenues 
for the preceding three years not to exceed $15 million. A ``very small 
business'' is defined as an entity that, together with controlling 
interests and affiliates, has average annual gross revenues for the 
preceding three years not to exceed $3 million. These definitions have 
been approved by the SBA. An auction for LMS licenses commenced on 
February 23, 1999 and closed on March 5, 1999. Of the 528 licenses 
auctioned, 289 licenses were sold to four small businesses.
    101. 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 estimates that the majority of commercial 
television broadcasters are small entities under the applicable SBA 
size standard.
    102. The Commission has estimated the number of licensed commercial 
television stations to be 1,377. Of this total, 1,258 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 November 16, 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 384. 
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. There are also 2,300 low power television stations, including 
Class A stations (LPTV) and 3,681 TV translator stations. Given the 
nature of these services, the Commission will presume that all of these 
entities qualify as small entities under the above SBA small business 
size standard.
    103. 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 
estimates, 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, 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. Also, 
as noted above, an additional element of the definition of ``small 
business'' is that the entity must be independently owned and operated. 
The Commission notes that it is difficult at times to assess these 
criteria in the context of media entities and its estimates of small 
businesses to which they apply may be over-inclusive to this extent.
    104. 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 show 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.
    105. According to Commission staff review of the BIA/Kelsey, LLC's 
Publications, Inc. Media Access Pro Radio Database (BIA) as of January 
2018, about 11,261 (or about 99.92 percent) of 11,270 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 AM radio stations to be 4,633 
stations and the number of commercial FM radio stations to be 6,738, 
for a total number of 11,371. The Commission notes, that the Commission 
has also estimated the number of licensed NCE radio stations to be 
4,128. 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.
    106. 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. Also, as noted above, 
an additional element of the definition of ``small business'' is that

[[Page 51882]]

the entity must be independently owned and operated. The Commission 
notes that it is difficult at times to assess these criteria in the 
context of media entities and the estimates of small businesses to 
which they apply may be over-inclusive to this extent.
    107. 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 Bureau 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. Therefore, based on the SBA's size standard, 
the Commission concludes that the majority of FM Translator Stations 
and Low Power FM Stations are small.
    108. Multichannel Video Distribution and Data Service (MVDDS). 
MVDDS is a terrestrial fixed microwave service operating in the 12.2-
12.7 GHz band. The Commission adopted criteria for defining three 
groups of small businesses for purposes of determining their 
eligibility for special provisions such as bidding credits. It defined 
a very small business as an entity with average annual gross revenues 
not exceeding $3 million for the preceding three years; a small 
business as an entity with average annual gross revenues not exceeding 
$15 million for the preceding three years; and an entrepreneur as an 
entity with average annual gross revenues not exceeding $40 million for 
the preceding three years. These definitions were approved by the SBA. 
On January 27, 2004, the Commission completed an auction of 214 MVDDS 
licenses (Auction No. 53). In this auction, ten winning bidders won a 
total of 192 MVDDS licenses. Eight of the ten winning bidders claimed 
small business status and won 144 of the licenses. The Commission also 
held an auction of MVDDS licenses on December 7, 2005 (Auction 63). Of 
the three winning bidders who won 22 licenses, two winning bidders, 
winning 21 of the licenses, claimed small business status.
    109. 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.'' Satellite 
telecommunications service providers include satellite and earth 
station operators. 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.
    110. 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 and 42 firms had annual receipts of 
$25 million to $49,999,999. Thus, a majority of ``All Other 
Telecommunications'' firms potentially affected by the Commission's 
action can be considered small.
    111. 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. At present, there are approximately 66,680 common 
carrier fixed licensees, 69,360 private and public safety operational-
fixed licensees, 20,150 broadcast auxiliary radio licensees, 411 LMDS 
licenses, 33 24 GHz DEMS licenses, 777 39 GHz licenses, and five 24 GHz 
licenses, and 467 Millimeter Wave licenses in the microwave services. 
The Commission has not yet defined a small business size standard for 
microwave services. The closest applicable SBA category is Wireless 
Telecommunications Carriers (except Satellite) and the appropriate size 
standard for this category under SBA rules is that 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 a majority of fixed microwave service 
licensees can be considered small.
    112. The Commission notes that the number of firms does not 
necessarily track the number of licensees. The Commission also notes 
that it does not have data specifying the number of these licensees 
that have more than 1,500 employees, and thus is unable at this time to 
estimate with greater precision the number of fixed microwave service 
licensees that would qualify as small business concerns under the SBA's 
small business size standard. The Commission estimates however, that 
virtually all of the Fixed Microwave licensees (excluding broadcast 
auxiliary licensees) would qualify as small entities under the SBA 
definition.
    113. 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

[[Page 51883]]

regarding review for impact on the environment and historic properties.
    114. 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 we 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, we do 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. In 
addition, there may be other non-licensee owners of other wireless 
infrastructure, including Distributed Antenna Systems (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.
    115. The closest applicable SBA category is All Other 
Telecommunications, and the appropriate size standard 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 and 15 firms 
had annual receipts of $25 million to $49,999,999. Thus, under this SBA 
size standard a majority of the firms potentially affected by the 
Commission's action can be considered small.
5. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities
    116. The Third Report and Order does not establish any reporting, 
recordkeeping, or other compliance requirements for companies involved 
in wireless infrastructure deployment. In addition to not adopting any 
reporting, recordkeeping or other compliance requirements, the 
Commission takes significant steps to reduce regulatory impediments to 
infrastructure deployment and, therefore, to spur the growth of 
personal wireless services. Under the Commission's approach, small 
entities as well as large companies will be assured that their 
deployment requests will be acted upon within a reasonable period of 
time and, if their applications are not addressed within the 
established time frames, applicants may seek injunctive relief granting 
their siting applications. The Commission, therefore, has taken 
concrete steps to relieve companies of all sizes of uncertainly and has 
eliminated unnecessary delays.
    117. The Third Report and Order also does not impose any reporting 
or recordkeeping requirements on state and local governments. While 
some commenters argue that additional shot clock classifications would 
make the siting process needlessly complex without any proven benefits, 
the Commission concludes that any additional administrative burden from 
increasing the number of Section 332 shot clocks from two to four is 
outweighed by the likely significant benefit of regulatory certainty 
and the resulting streamlined deployment process. The Commission's 
actions are consistent with the statutory language of Section 332 and 
therefore reflect Congressional intent. Further, siting agencies have 
become more efficient in processing siting applications and will be 
able to take advantage of these efficiencies in meeting the new shot 
clocks. As a result, the additional shot clocks that the Commission 
adopts will foster the deployment of the latest wireless technology and 
serve consumer interests.
6. Steps Taken To Minimize the Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered
    118. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its approach, which may 
include the following four alternatives (among others): ``(1) The 
establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance and reporting requirements under the rule for such small 
entities; (3) the use of performance rather than design standards; and 
(4) an exemption from coverage of the rule, or any part thereof, for 
such small entities.''
    119. The steps taken by the Commission in the Third Report and 
Order eliminate regulatory burdens for small entities as well as large 
companies that are involved with the deployment of person wireless 
services infrastructure. By establishing shot clocks and guidance on 
injunctive relief for personal wireless services infrastructure 
deployments, the Commission has standardized and streamlined the 
permitting process. These changes will significantly minimize the 
economic burden of the siting process on all entities, including small 
entities, involved in deploying personal wireless services 
infrastructure. The record shows that permitting delays imposes 
significant economic and financial burdens on companies with pending 
wireless infrastructure permits. Eliminating permitting delays will 
remove the associated cost burdens and enabling significant public 
interest benefits by speeding up the deployment of personal wireless 
services and infrastructure. In addition, siting agencies will be able 
to utilize the efficiencies that they have gained over the years 
processing siting applications to minimize financial impacts.
    120. The Commission considered but did not adopt proposals by 
commenters to issue ``Best Practices'' or ``Recommended Practices,'' 
and to develop an informal dispute resolution process and mediation 
program, noting that the steps taken in the Third Report and Order 
address the concerns underlying these proposals to facilitate 
cooperation between parties to reach mutually agreed upon solutions. 
The Commission anticipates that the changes it has made to the 
permitting process will provide significant efficiencies in the 
deployment of personal wireless services facilities and this in turn 
will benefit all companies, but particularly small entities, that may 
not have the resources and economies of scale of larger entities to 
navigate the permitting process. By adopting these changes, the 
Commission will continue to fulfill its statutory responsibilities, 
while reducing the burden on small entities by removing unnecessary 
impediments to the rapid deployment of personal wireless services 
facilities and infrastructure across the country.
7. Report to Congress
    121. The Commission will send a copy of the Third Report and Order, 
including this FRFA, in a report to Congress pursuant to the 
Congressional Review Act. In addition, the

[[Page 51884]]

Commission will send a copy of the Third Report and Order, including 
this FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the 
Third Report and Order and FRFA (or summaries thereof) also will be 
published in the Federal Register.

B. Paperwork Reduction Act

    122. This Third Report and Order does not contain new or revised 
information collection requirements subject to the Paperwork Reduction 
Act of 1995 (PRA), Public Law 104-13.

C. Congressional Review Act

    123. The Commission will send a copy of this Declaratory Ruling and 
Third Report and Order in a report to be sent to Congress and the 
Government Accountability Office pursuant to the Congressional Review 
Act (CRA), see 5 U.S.C. 801(a)(1)(A).

IV. Ordering Clauses

    124. Accordingly, it is ordered, pursuant to sections 1, 4(i)-(j), 
7, 201, 253, 301, 303, 309, 319, and 332 of the Communications Act of 
1934, as amended, 47 U.S.C. 151, 154(i)-(j), 157, 201, 253, 301, 303, 
309, 319, 332, that this Declaratory Ruling and Third Report and Order 
in WT Docket No. 17-79 is hereby adopted.
    125. It is further ordered that part 1 of the Commission's rules is 
amended as set forth in the final rules of this Declaratory Ruling and 
Third Report and Order, and that these changes shall be effective 
January 14, 2019.
    126. It is further ordered that this Third Report and Order shall 
be effective January 14, 2019. The Declaratory Ruling and the 
obligations set forth therein are effective on the same day that this 
Third Report and Order becomes effective. It is our intention in 
adopting the foregoing Declaratory Ruling and these rule changes that, 
if any provision of the Declaratory Ruling or the rules, or the 
application thereof to any person or circumstance, is held to be 
unlawful, the remaining portions of such Declaratory Ruling and the 
rules not deemed unlawful, and the application of such Declaratory 
Ruling and the rules to other person or circumstances, shall remain in 
effect to the fullest extent permitted by law.
    127. It is further ordered that, pursuant to 47 CFR 1.4(b)(1), the 
period for filing petitions for reconsideration or petitions for 
judicial review of this Declaratory Ruling and Third Report and Order 
will commence on the date that a summary of this Declaratory Ruling and 
Third Report and Order is published in the Federal Register.
    128. It is further ordered that the Commission's Consumer & 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Declaratory Ruling and Third Report and Order, including 
the Final Regulatory Flexibility Analysis, to the Chief Counsel for 
Advocacy of the Small Business Administration.
    129. It is further ordered that this Declaratory Ruling and Third 
Report and Order shall be sent to Congress and the Government 
Accountability Office pursuant to the Congressional Review Act, see 5 
U.S.C. 801(a)(1)(A).

List of Subjects in 47 CFR Part 1

    Communications common carriers, Communications equipment, 
Environmental protection, Historic preservation, Radio, 
Telecommunications.

Federal Communications Commission.
Cecilia Sigmund,
Federal Register Liaison Officer, Office of the Secretary.

Final Rules

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

PART 1--PRACTICE AND PROCEDURE

0
1. The authority citation for part 1 continues to read as follows:

    Authority: 47 U.S.C. chs. 2, 5, 9, 13; Sec. 102(c), Div. P, 
Public Law 115-141, 132 Stat. 1084; 28 U.S.C. 2461, unless otherwise 
noted.


0
2. Add subpart U, consisting of Sec. Sec.  1.6001 through 1.6003, to 
read as follows:

Subpart U--State and Local Government Regulation of the Placement, 
Construction, and Modification of Personal Wireless Service 
Facilities

Sec.
1.6001 Purpose.
1.6002 Definitions.
1.6003 Reasonable periods of time to act on siting applications.


Sec.  1.6001   Purpose.

    This subpart implements 47 U.S.C. 332(c)(7) and 1455.


Sec.  1.6002  Definitions.

    Terms not specifically defined in this section or elsewhere in this 
subpart have the meanings defined in this part and the Communications 
Act of 1934, 47 U.S.C. 151 et seq. Terms used in this subpart have the 
following meanings:
    (a) Action or to act on a siting application means a siting 
authority's grant of a siting application or issuance of a written 
decision denying a siting application.
    (b) Antenna, consistent with Sec.  1.1320(d), means an apparatus 
designed for the purpose of emitting radiofrequency (RF) radiation, to 
be operated or operating from a fixed location pursuant to Commission 
authorization, for the provision of personal wireless service and any 
commingled information services. For purposes of this definition, the 
term antenna does not include an unintentional radiator, mobile 
station, or device authorized under part 15 of this chapter.
    (c) Antenna equipment, consistent with Sec.  1.1320(d), means 
equipment, switches, wiring, cabling, power sources, shelters or 
cabinets associated with an antenna, located at the same fixed location 
as the antenna, and, when collocated on a structure, is mounted or 
installed at the same time as such antenna.
    (d) Antenna facility means an antenna and associated antenna 
equipment.
    (e) Applicant means a person or entity that submits a siting 
application and the agents, employees, and contractors of such person 
or entity.
    (f) Authorization means any approval that a siting authority must 
issue under applicable law prior to the deployment of personal wireless 
service facilities, including, but not limited to, zoning approval and 
building permit.
    (g) Collocation, consistent with Sec.  1.1320(d) and the Nationwide 
Programmatic Agreement (NPA) for the Collocation of Wireless Antennas, 
appendix B of this part, section I.B, means--
    (1) Mounting or installing an antenna facility on a pre-existing 
structure; and/or
    (2) Modifying a structure for the purpose of mounting or installing 
an antenna facility on that structure.
    (3) The definition of ``collocation'' in Sec.  1.6100(b)(2) applies 
to the term as used in that section.
    (h) Deployment means placement, construction, or modification of a 
personal wireless service facility.
    (i) Facility or personal wireless service facility means an antenna 
facility or a structure that is used for the provision of personal 
wireless service, whether such service is provided on a stand-alone 
basis or commingled with other wireless communications services.
    (j) Siting application or application means a written submission to 
a siting authority requesting authorization for the deployment of a 
personal wireless service facility at a specified location.

[[Page 51885]]

    (k) Siting authority means a State government, local government, or 
instrumentality of a State government or local government, including 
any official or organizational unit thereof, whose authorization is 
necessary prior to the deployment of personal wireless service 
facilities.
    (l) Small wireless facilities, consistent with Sec.  1.1312(e)(2), 
are facilities that meet each of the following conditions:
    (1) The facilities--
    (i) Are mounted on structures 50 feet or less in height including 
their antennas as defined in Sec.  1.1320(d); or
    (ii) Are mounted on structures no more than 10 percent taller than 
other adjacent structures; or
    (iii) Do not extend existing structures on which they are located 
to a height of more than 50 feet or by more than 10 percent, whichever 
is greater;
    (2) Each antenna associated with the deployment, excluding 
associated antenna equipment (as defined in the definition of 
``antenna'' in Sec.  1.1320(d)), is no more than three cubic feet in 
volume;
    (3) All other wireless equipment associated with the structure, 
including the wireless equipment associated with the antenna and any 
pre-existing associated equipment on the structure, is no more than 28 
cubic feet in volume;
    (4) The facilities do not require antenna structure registration 
under part 17 of this chapter;
    (5) The facilities are not located on Tribal lands, as defined 
under 36 CFR 800.16(x); and
    (6) The facilities do not result in human exposure to 
radiofrequency radiation in excess of the applicable safety standards 
specified in Sec.  1.1307(b).
    (m) Structure means a pole, tower, base station, or other building, 
whether or not it has an existing antenna facility, that is used or to 
be used for the provision of personal wireless service (whether on its 
own or comingled with other types of services).


Sec.  1.6003   Reasonable periods of time to act on siting 
applications.

    (a) Timely action required. A siting authority that fails to act on 
a siting application on or before the shot clock date for the 
application, as defined in paragraph (e) of this section, is presumed 
not to have acted within a reasonable period of time.
    (b) Shot clock period. The shot clock period for a siting 
application is the sum of--
    (1) The number of days of the presumptively reasonable period of 
time for the pertinent type of application, pursuant to paragraph (c) 
of this section; plus
    (2) The number of days of the tolling period, if any, pursuant to 
paragraph (d) of this section.
    (c) Presumptively reasonable periods of time--(1) Review periods 
for individual applications. The following are the presumptively 
reasonable periods of time for action on applications seeking 
authorization for deployments in the categories set forth in paragraphs 
(c)(1)(i) through (iv) of this section:
    (i) Review of an application to collocate a Small Wireless Facility 
using an existing structure: 60 days.
    (ii) Review of an application to collocate a facility other than a 
Small Wireless Facility using an existing structure: 90 days.
    (iii) Review of an application to deploy a Small Wireless Facility 
using a new structure: 90 days.
    (iv) Review of an application to deploy a facility other than a 
Small Wireless Facility using a new structure: 150 days.
    (2) Batching. (i) If a single application seeks authorization for 
multiple deployments, all of which fall within a category set forth in 
either paragraph (c)(1)(i) or (iii) of this section, then the 
presumptively reasonable period of time for the application as a whole 
is equal to that for a single deployment within that category.
    (ii) If a single application seeks authorization for multiple 
deployments, the components of which are a mix of deployments that fall 
within paragraph (c)(1)(i) of this section and deployments that fall 
within paragraph (c)(1)(iii) of this section, then the presumptively 
reasonable period of time for the application as a whole is 90 days.
    (iii) Siting authorities may not refuse to accept applications 
under paragraphs (c)(2)(i) and (ii) of this section.
    (d) Tolling period. Unless a written agreement between the 
applicant and the siting authority provides otherwise, the tolling 
period for an application (if any) is as set forth in paragraphs (d)(1) 
through (3) of this section.
    (1) For an initial application to deploy Small Wireless Facilities, 
if the siting authority notifies the applicant on or before the 10th 
day after submission that the application is materially incomplete, and 
clearly and specifically identifies the missing documents or 
information and the specific rule or regulation creating the obligation 
to submit such documents or information, the shot clock date 
calculation shall restart at zero on the date on which the applicant 
submits all the documents and information identified by the siting 
authority to render the application complete.
    (2) For all other initial applications, the tolling period shall be 
the number of days from--
    (i) The day after the date when the siting authority notifies the 
applicant in writing that the application is materially incomplete and 
clearly and specifically identifies the missing documents or 
information that the applicant must submit to render the application 
complete and the specific rule or regulation creating this obligation; 
until
    (ii) The date when the applicant submits all the documents and 
information identified by the siting authority to render the 
application complete;
    (iii) But only if the notice pursuant to paragraph (d)(2)(i) of 
this section is effectuated on or before the 30th day after the date 
when the application was submitted; or
    (3) For resubmitted applications following a notice of deficiency, 
the tolling period shall be the number of days from--
    (i) The day after the date when the siting authority notifies the 
applicant in writing that the applicant's supplemental submission was 
not sufficient to render the application complete and clearly and 
specifically identifies the missing documents or information that need 
to be submitted based on the siting authority's original request under 
paragraph (d)(1) or (2) of this section; until
    (ii) The date when the applicant submits all the documents and 
information identified by the siting authority to render the 
application complete;
    (iii) But only if the notice pursuant to paragraph (d)(3)(i) of 
this section is effectuated on or before the 10th day after the date 
when the applicant makes a supplemental submission in response to the 
siting authority's request under paragraph (d)(1) or (2) of this 
section.
    (e) Shot clock date. The shot clock date for a siting application 
is determined by counting forward, beginning on the day after the date 
when the application was submitted, by the number of calendar days of 
the shot clock period identified pursuant to paragraph (b) of this 
section and including any pre-application period asserted by the siting 
authority; provided, that if the date calculated in this manner is a 
``holiday'' as defined in Sec.  1.4(e)(1) or a legal holiday within the 
relevant State or local jurisdiction, the shot clock date is the next 
business day after such date. The term ``business day'' means any day 
as defined in Sec.  1.4(e)(2) and any day that is not a legal holiday 
as defined by the State or local jurisdiction.

[[Page 51886]]

Sec.  1.40001  [Redesignated as Sec.  1.6100 and Amended]

0
3. Redesignate Sec.  1.40001 as Sec.  1.6100 and, in newly redesignated 
Sec.  1.6100, remove and reserve paragraph (a).

Subpart CC--[Removed]

0
4. Remove subpart CC.

[FR Doc. 2018-22234 Filed 10-12-18; 8:45 am]
BILLING CODE 6712-01-P