[Federal Register Volume 85, Number 144 (Monday, July 27, 2020)]
[Rules and Regulations]
[Pages 45126-45134]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13951]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[WT Docket No. 19-250 and RM-11849; FCC 20-75: FRS 16876]


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

AGENCY: Federal Communications Commission.

ACTION: Declaratory ruling.

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SUMMARY: In this document, the Federal Communications Commission 
(``Commission'' or ``FCC'') clarifies its rules implementing portions 
of the Spectrum Act of 2012 that streamline State and local review of 
applications to modify existing wireless infrastructure. The 
Declaratory Ruling clarifies the following: When the 60-day shot clock 
starts for local governments to review and approve an eligible 
modification; what constitutes a ``substantial change'' when a 
modification would increase the height of an existing structure, would 
require the addition of equipment cabinets, or would change the visual 
profile of a structure; and whether, within the context of the 
Commission's environmental review rules, an environmental assessment is 
required when an impact to historic properties has already been 
mitigated in the Commission's historic preservation review process.

DATES: This Declaratory Ruling was effective June 10, 2020.

[[Page 45127]]


FOR FURTHER INFORMATION CONTACT: Paul D'Ari, [email protected], of the 
Wireless Telecommunications Bureau, Competition & Infrastructure Policy 
Division, (202) 418-1150.

SUPPLEMENTARY INFORMATION: This is a summary of the FCC's Declaratory 
Ruling in WT Docket No. 19-250 and RM-11849, FCC 20-75, adopted on June 
9, 2020, and released on June 10, 2020. The document is available for 
download at https://www.fcc.gov/edocs. To request materials in 
accessible formats for people with disabilities (Braille, large print, 
electronic files, audio format), send an email to [email protected] or 
call the Consumer & Governmental Affairs Bureau at 202-418-0530 
(voice), 202-418-0432 (TTY).

Synopsis

I. Declaratory Ruling

    1. In this Declaratory Ruling, the Commission clarifies several key 
elements that determine whether a modification request qualifies as an 
eligible facilities request that a State or local government must 
approve within 60 days, and it clarifies when the 60-day shot clock for 
review of an eligible facilities request commences. These 
interpretations provide greater certainty to applicants for State and 
local government approval of wireless facility modifications, as well 
as to the reviewing government agencies, and these interpretations 
should accelerate the deployment of advanced wireless networks.
    2. Specifically, the Commission clarifies that:
     The 60-day shot clock in Sec.  1.6100(c)(2) begins to run 
when an applicant takes the first procedural step in a locality's 
application process and submits written documentation showing that a 
proposed modification is an eligible facilities request;
     The phrase ``with separation from the nearest existing 
antenna not to exceed twenty feet'' in Sec.  1.6100(b)(7)(i) allows an 
increase in the height of the tower of up to twenty (20) feet between 
antennas, as measured from the top of an existing antenna to the bottom 
of a proposed new antenna on the top of a tower;
     The term ``equipment cabinets'' in Sec.  1.6100(b)(7)(iii) 
does not include relatively small electronic components, such as remote 
radio units, radio transceivers, amplifiers, or other devices mounted 
on the structure, and up to four such cabinets may be added to an 
existing facility per separate eligible facilities request;
     The term ``concealment element'' in Sec.  1.6100(b)(7)(v) 
means an element that is part of a stealth-designed facility intended 
to make a structure look like something other than a wireless facility, 
and that was part of a prior approval;
     To ``defeat'' a concealment element under Sec.  
1.6100(b)(7)(v), a proposed modification must cause a reasonable person 
to view a structure's intended stealth design as no longer effective; 
and
     The phrase ``conditions associated with the siting 
approval'' may include aesthetic conditions to minimize the visual 
impact of a wireless facility as long as the condition does not prevent 
modifications explicitly allowed under Sec.  1.6100(b)(7)(i) through 
(iv) (antenna height, antenna width, equipment cabinets, and 
excavations or deployments outside the current site) and so long as 
there is express evidence that at the time of approval the locality 
required the feature and conditioned approval upon its continuing 
existence.
    3. Certain parties contend that the Commission lacks legal 
authority to adopt the rulings requested in the petitions, which they 
contend do not just clarify or interpret the rules established in 2014 
but also change them, requiring that the Commission issue a Notice of 
Proposed Rulemaking followed by a Report and Order. As an initial 
matter, the Commission notes that it is not adopting all of the rulings 
requested in WIA's and CTIA's petitions for declaratory ruling because 
it finds incremental action to be an appropriate step at this juncture, 
particularly given, as mentioned above, that the Commission has 
continued to take steps to ease barriers to deployment of wireless 
infrastructure since adopting rules to implement Section 6409(a). The 
determinations in this Declaratory Ruling are intended solely to 
interpret and clarify the meaning and scope of the existing rules set 
forth in the 2014 Infrastructure Order, in order to remove uncertainty 
and in light of the differing positions of the parties on these 
questions. In addition, the Commission finds it appropriate to initiate 
a Notice of Proposed Rulemaking regarding tower site boundaries and 
excavation or deployment outside the boundaries of an existing tower 
site, in order to consider whether modifications of its rules are 
needed to resolve current disputes. The Commission intends, with these 
steps, to continue to advance the same goals that led it to adopt 
regulations implementing Section 6409(a) in the first instance--to 
avoid ambiguities leading to disputes that could undermine the goals of 
the Spectrum Act, i.e., to advance wireless broadband service.

A. Commencement of Shot Clock

    4. Section 1.6100(c)(2) provides that the 60-day review period for 
eligible facilities requests begins ``on the date on which an applicant 
submits a request seeking approval.'' If the local jurisdiction ``fails 
to approve or deny a request seeking approval under this section within 
the timeframe for review (accounting for any tolling), the request 
shall be deemed granted.'' The 2014 Infrastructure Order discusses the 
procedures that local governments need to implement in order to carry 
out their obligations to approve eligible facilities requests within 60 
days; it does not, however, define the date on which an applicant is 
deemed to have submitted an eligible facilities request for purposes of 
triggering the 60-day shot clock.
    5. There is evidence in the record that some local jurisdictions 
effectively postpone the date on which they consider eligible 
facilities requests to be duly filed (thereby delaying the commencement 
of the shot clock) by treating applications as incomplete unless 
applicants have complied with time-consuming requirements. Such 
requirements include meeting with city or county staff, consulting with 
neighborhood councils, obtaining various certifications, or making 
presentations at public hearings. While some stakeholders may have 
assumed that, after the 2014 Infrastructure Order, local governments 
would develop procedures designed to review and approve covered 
requests within a 60-day shot clock period, many have not done so and 
instead continue to require applicants to apply for forms of 
authorizations that entail more ``lengthy and onerous processes'' of 
review. In such jurisdictions, applicants may need to obtain clearance 
from numerous, separate municipal departments, which could make it 
difficult to ascertain whether or when the shot clock has started to 
run.
    6. To address uncertainty regarding the commencement of the shot 
clock, the Commission clarifies that, for purposes of its shot clock 
and deemed granted rules, an applicant has effectively submitted a 
request for approval that triggers the running of the shot clock when 
it satisfies both of the following criteria: (1) The applicant takes 
the first procedural step that the local jurisdiction requires as part 
of its applicable regulatory review process under Section 6409(a), and, 
to the extent it has not done so as part of the first required 
procedural step, (2) the applicant submits written documentation 
showing that a proposed

[[Page 45128]]

modification is an eligible facilities request.
    7. By requiring that an applicant take the first procedural step 
required by the locality, the goal is to give localities ``considerable 
flexibility'' to structure their procedures for review of eligible 
facilities requests, but prevent localities from ``impos[ing] lengthy 
and onerous processes not justified by the limited scope of review 
contemplated'' by section 6409(a). In taking the first procedural step 
that the local jurisdiction requires as part of its applicable 
regulatory review process, applicants demonstrate that they are 
complying with a local government's procedures. The second criterion--
requiring applicants to submit written documentation showing that the 
proposed modification is an eligible facilities request--is necessary 
because localities must have the opportunity to review this 
documentation to determine whether the proposed modification is an 
eligible facilities request that must be approved within 60 days. The 
Commission anticipates that the documentation sufficient to start the 
shot clock under the stated criteria might include elements like a 
description of the proposed modification and an explanation of how the 
proposed modification is an eligible facilities request. The Commission 
finds that these criteria strike a reasonable balance between local 
government flexibility and the streamlined review envisioned by Section 
6409(a).
    8. In addition, the Commission finds that further clarifications 
are needed to achieve its goal of balancing local government 
flexibility with the streamlined review envisioned by Section 6409(a). 
First, the Commission clarifies that a local government may not delay 
the triggering of the shot clock by establishing a ``first step'' that 
is outside of the applicant's control or is not objectively verifiable. 
For example, if the first step required by a local government is that 
applicants meet with municipal staff before making any filing, the 
applicant should be able to satisfy that first step by making a written 
request to schedule the meeting--a step within the applicant's control. 
In this example, the 60-day shot clock would start once the applicant 
has made a written request for the meeting and the applicant also has 
satisfied the second of the criteria (documentation). The Commission 
does not wish to discourage meetings between applicants and the local 
governments, and it recognizes that such consultations may help avoid 
errors that localities have identified as leading to delays, but such 
meetings themselves should not be allowed to cause delays or prevent 
these requests from being timely approved. As an additional example, a 
local government could not establish as its first step a requirement 
that an applicant demonstrate that it has addressed all concerns raised 
by the public, as such a step would not be objectively verifiable.
    9. Second, the Commission clarifies that a local government may not 
delay the triggering of the shot clock by defining the ``first step'' 
as a combination or sequencing of steps, rather than a single step. For 
example, if a local government defines the first step of its process as 
separate consultations with a citizens' association, a historic 
preservation review board, and the local government staff, an applicant 
will trigger the shot clock by taking any one of those actions, along 
with satisfying the second of the criteria (documentation). Once the 
shot clock has begun, it would not be tolled if the local government 
were to deny, delay review of, or require refiling of the application 
on the grounds that the local government's separate consultation 
requirements were not completed. The Commission expects applicants to 
act in good faith to fulfill reasonable steps set forth by a local 
government that can be completed within the 60 day period, but the 
local government would bear responsibility for ensuring that any steps 
in its process, as well as the substantive review of the proposed 
facility modification, are all completed within 60 days. If not, the 
eligible facilities request would be deemed granted under the 
Commission's rules.
    10. Third, the Commission clarifies that a local government may not 
delay the start of the shot clock by declining to accept an applicant's 
submission of documentation intended to satisfy the second of the 
criteria for starting the shot clock. In addition, a local government 
may not delay the start of the shot clock by requiring an applicant to 
submit documentation that is not reasonably related to determining 
whether the proposed modification is an eligible facilities request. 
The Commission clarifies how its documentation rules apply in the 
context of the shot clock to provide certainty that unnecessary 
documentation requests do not effectively delay the shot clock as part 
of the local government's ``first step,'' even if providing that 
documentation would be within the applicant's control and could be 
objectively verified. For example, if a locality requires as the first 
step in its section 6409(a) process that an applicant meet with a local 
zoning board, that applicant would not need to submit local zoning 
documentation as well in order to trigger the shot clock.
    11. Fourth, the Commission notes that a local government may use 
conditional use permits, variances, or other similar types of 
authorizations under the local government's standard zoning or siting 
rules, in connection with the consideration of an eligible facilities 
request. The Commission clarifies, however, that requirements to obtain 
such authorizations may not be used by the local government to delay 
the start of or to toll the shot clock under the section 6409(a) 
process. The shot clock would begin once the applicant takes the first 
step in whatever process the local government uses in connection with 
reviewing applications subject to section 6409(a) and satisfies the 
second of the criteria (documentation). The Commission rejects 
localities' suggestions that the shot clock should not commence until 
an applicant submits documentation required for all necessary permits, 
as such an approach is inconsistent with federal law. Subsequently, if 
the locality rejects the applicant's request to modify wireless 
facilities as incomplete based on requirements relating to such 
permits, variances, or similar authorizations, the shot clock would not 
be tolled and the application would be deemed granted after 60 days if 
the application constitutes an eligible facilities request under the 
Commission's rules. Localities may only toll the shot clock ``by mutual 
agreement'' or if the locality ``determines that the application is 
incomplete.''
    12. Fifth, the Commission notes that some jurisdictions have not 
established specific procedures for the review and approval of eligible 
facilities requests under Section 6409(a). In those cases, the 
Commission clarifies that, for purposes of triggering the shot clock 
under Section 6409(a), the applicant can consider the first procedural 
step to be submission of the type of filing that is typically required 
to initiate a standard zoning or siting review of a proposed deployment 
that is not subject to section 6409(a). Comparable modification 
requests might include applications to install, modify, repair, or 
replace wireless transmission equipment on a structure that is outside 
the scope of Section 6409(a), or to mount cable television, wireline 
telephone, or electric distribution cables or equipment on outdoor 
towers or poles. Where the first step in the process is submission of 
the type of filing that is typically required for comparable 
modification requests, the Commission notes that applicants are not 
required to file any documentation that is inconsistent with

[[Page 45129]]

the Commission's rules for eligible facilities requests under Section 
6409(a).
    13. The Commission finds that these clarifications serve to remove 
uncertainty about the scope and meaning of various provisions of 
Section 1.6100 consistent with the text, history, and purpose of the 
2014 Infrastructure Order. The Commission also notes that the 
commencement of the shot clock does not excuse the applicant from 
continuing to follow the locality's procedural and substantive 
requirements (to the extent those requirements are consistent with the 
Commission's rules), including obligations ``to comply with generally 
applicable building, structural, electrical, and safety codes or with 
other laws codifying objective standards reasonably related to health 
and safety.''

B. Height Increase for Towers Outside the Public Rights-of-Way

    14. Adding new collocated equipment near or at the top of an 
existing tower can be an efficient means of expanding the capacity or 
coverage of a wireless network without the disturbances associated with 
building an entirely new structure. Adding this equipment to an 
existing tower would change the tower's physical dimensions, but if 
such a change is not ``substantial,'' then a request to implement it 
would qualify as an eligible facilities request, and a locality would 
be required to approve it. Section 1.6100(b)(7)(i) provides that a 
modification on a tower outside of the public rights-of-way would cause 
a substantial change if it ``increases the height of the tower by more 
than 10% or by the height of one additional antenna array with 
separation from the nearest existing antenna not to exceed twenty feet, 
whichever is greater.''
    15. Commenters assert that they have two different interpretations 
of the meaning of this language in Section 1.6100(b)(7)(i). Industry 
commenters read Section 1.6100(b)(7)(i) as allowing a new antenna to be 
added without being a substantial change if there is no more than 
twenty feet in ``separation'' between the existing and new antennas, 
and that the size/height of the new antenna itself is irrelevant to the 
concept of ``separation.'' Localities appear to be of the view, 
however, that such an interpretation strains what the statute and 
regulations would permit--creating different standards for antenna 
height depending on where it is located and leading to indefinite 
increases in antenna height under a streamlined process not designed 
for that purpose. Adding an antenna array to a tower out of the public 
right-of-way that increases the height of the tower would not be 
considered a substantial change, by itself, if there is no more than 
twenty feet of separation between the nearest existing antenna. The 
phrase ``separation from the nearest existing antenna'' means the 
distance from the top of the highest existing antenna on the tower to 
the bottom of the proposed new antenna to be deployed above it. Thus, 
when determining whether an application satisfies the criteria for an 
eligible facilities request, localities should not measure this 
separation from the top of the existing antenna to the top of the new 
antenna, because the height of the new antenna itself should not be 
included when calculating the allowable height increase. Rather, under 
the Commission's interpretation, the word ``separation'' refers to the 
distance from the top of the existing antenna to the bottom of the 
proposed antenna. Interpreting ``separation'' otherwise to include the 
height of the new antenna could limit the number of proposed height 
increases that would qualify for Section 6409(a) treatment, given 
typical antenna sizes and separation distances between antennas, which 
would undermine the statute's objective to facilitate streamlined 
review of modifications of existing wireless structures.
    16. Specifically, and in response to commenters' arguments 
regarding the language in Section 1.6100(b)(7)(i), the Commission find 
that its resolution is consistent with the long-established 
interpretation of the comparable standard set forth in the 2001 
Collocation Agreement for determining the maximum size of a proposed 
collocation that is categorically excluded from historic preservation 
review. Commission staff explained, in a fact sheet released in 2002, 
that under this provision of the Collocation Agreement, if a ``150-foot 
tower . . . already [has] an antenna at the top of the tower, the tower 
height could increase by up to 20 feet [i.e., the ``separation'' 
distance] plus the height of a new antenna to be located at the top of 
the tower'' without constituting a substantial increase in size. That 
standard was the source of the standard for the allowable height 
increases for towers outside the rights-of-way that the Commission 
adopted in the 2014 Infrastructure Order.
    17. The Commission's interpretation also aligns with the 
clarification sought by WIA and other industry parties. The Commission 
rejects the argument that this interpretation creates irrational 
inconsistences among height increase standards depending on the type of 
structure and whether a tower is inside or outside the rights-of-way. 
As the Commission discussed in the 2014 Infrastructure Order, limits on 
height and width increases should depend on the type and location of 
the underlying structure. The Commission therefore adopted the 
Collocation Agreement's ``substantial increase in size'' test for 
towers outside the rights-of-way, and it adopted a different standard 
for non-tower structures. Localities are rearguing an issue already 
settled in the 2014 Infrastructure Order when they urge that the same 
height increase standard should apply to different types of structures. 
The Commission also rejects the argument that this interpretation would 
lead to virtually unconstrained increases in the height of such towers. 
These concerns are unwarranted because the 2014 Infrastructure Order 
already limits the cumulative increases in height from eligible 
modifications and nothing in this Declaratory Ruling changes those 
limits.
    18. The clarification is limited to Section 1.6100(b)(7)(i) and the 
maximum increase in the height of a tower outside the rights-of-way 
allowed pursuant to an eligible facilities request under Section 
6409(a). The Commission reminds applicants that ``eligible facility 
requests covered by Section 6409(a) must comply with any relevant 
Federal requirement, including any applicable Commission, FAA, NEPA, or 
Section 106 [historic review] requirements.''

C. Equipment Cabinets

    19. To upgrade to 5G and for other technological and capacity 
improvements, providers often add equipment cabinets to existing 
wireless sites. Section 1.6100(b)(7)(iii) provides that a proposed 
modification to a support structure constitutes a substantial change if 
``it involves installation of more than the standard number of new 
equipment cabinets for the technology involved, but not to exceed four 
cabinets.'' Some localities suggest that telecommunications 
transmission equipment manufactured with outer protective covers can be 
``equipment cabinets'' under Section 1.6100(b)(7)(iii) of the rules. 
The Commission concludes that localities are interpreting ``equipment 
cabinet'' under Section 1.6100(b)(7)(iii) too broadly to the extent 
they are treating equipment itself as a cabinet simply because 
transmission equipment may have protective housing. Nor does a small 
piece of transmission equipment mounted on a structure become an 
``equipment cabinet'' simply because it is more visible when mounted 
above ground. Consistent with common usage of the term ``equipment 
cabinet'' in the

[[Page 45130]]

telecommunications industry, small pieces of equipment such as remote 
radio heads/remote radio units, amplifiers, transceivers mounted behind 
antennas, and similar devices are not ``equipment cabinets'' under 
Section 1.6100(b)(7)(iii) if they are not used as physical containers 
for smaller, distinct devices. Moreover, the Commission notes that 
Section 1.6100(b)(3) defines an ``eligible facilities request'' (i.e., 
a request entitled to streamlined treatment under Section 6409(a)) as 
any request for modification of an existing tower or base station that 
does not substantially change the physical dimensions of such tower or 
base station and that involves the collocation, removal or replacement 
of ``transmission equipment.'' Interpreting ``transmission equipment,'' 
an element required in order for a modification to qualify for 
streamlined treatment, to be ``equipment cabinets,'' an element that is 
subject to numerical limits that can cause the modification not to 
qualify for streamlined treatment, would strain the intended purposes 
of Sections 1.6100(b)(3) and 1.6100(b)(7)(iii). The Commission does not 
address here other aspects of the definition of equipment cabinets on 
which industry commenters seek clarification.
    20. In addition, the Commission clarifies that the maximum number 
of additional equipment cabinets that can be added under the rule is 
measured for each separate eligible facilities request. According to 
WIA, one unidentified city in Tennessee interprets the term ``not to 
exceed four cabinets'' in Section 1.6100(b)(7)(iii) as ``setting a 
cumulative limit, rather than a limit on the number of cabinets 
associated with a particular eligible facilities request.'' The 
Commission finds that such an interpretation runs counter to the text 
of Section 1.6100(b)(7)(iii), which restricts the number of ``new'' 
cabinets per eligible facilities request. The city's interpretation 
ignores the fact that the word ``it'' in the rule refers to a 
``modification'' and supports the conclusion that the limit on 
equipment cabinet installations applies separately to each eligible 
facilities request. This conclusion is also supported by the context of 
the rule as a whole. The number and size of preexisting cabinets are 
irrelevant to the limitation on equipment cabinets on eligible support 
structures, in contrast to the rest of the rule, which takes into 
account whether there are preexisting ground cabinets at the site and 
whether proposed new cabinets' volume exceeds the volume of preexisting 
cabinets by more than 10%.
    21. Several localities argue that this clarification would permit 
an applicant to add an unlimited number of new equipment cabinets to a 
structure so long as the applicant proposes adding them in increments 
of four or less. The Commission disagrees that this clarification 
permits an unlimited number of cabinets on a structure. The text of 
Section 1.6100(b)(7)(iii) limits the number of equipment cabinets per 
modification to no more than ``the standard number of new equipment 
cabinets for the technology involved.''

D. Concealment Elements

    22. Section 1.6100(b)(7)(v) states that a modification 
``substantially changes'' the physical dimensions of an existing 
structure if ``[i]t would defeat the concealment elements of the 
eligible support structure.'' The 2014 Infrastructure Order provides 
that, ``in the context of a modification request related to concealed 
or `stealth'-designed facilities --i.e., facilities designed to look 
like some feature other than a wireless tower or base station--any 
change that defeats the concealment elements of such facilities would 
be considered a `substantial change' under Section 6409(a).'' The 2014 
Infrastructure Order notes that both locality and industry commenters 
generally agreed that ``a modification that undermines the concealment 
elements of a stealth wireless facility, such as painting to match the 
supporting fa[ccedil]ade or artificial tree branches, should be 
considered substantial under Section 6409(a).''
    23. Stakeholders subsequently have interpreted the definition of 
``concealment element'' and the types of modifications that would 
``defeat'' concealment in different ways. Petitioners and industry 
commenters urge the Commission to clarify that the term ``concealment 
element'' only refers to ``a stealth facility or those aspects of a 
design that were specifically intended to disguise the appearance of a 
facility, such as faux tree branches or paint color.'' T-Mobile states 
that some localities are ``proffering `creative or inappropriate' 
regulatory interpretations of what a concealment element is.'' Locality 
commenters counter that there is more to concealment than ``fully 
stealthed facilities and semi-stealthed monopines.'' They argue that 
the proposed changes would undermine the ability of local jurisdictions 
to enforce regulations designed to conceal equipment. NLC asserts that 
many attributes of a site contribute to concealment, such as the 
``specific location of a rooftop site, or the inclusion of equipment in 
a particular architectural feature.'' Locality commenters contend that 
limiting concealment elements to features identified in the original 
approval would negate land use requirements that were a factor in the 
original deployment but not specified as such.
    24. Clarification of ``Concealment Element.'' The Commission 
clarifies that concealment elements are elements of a stealth-designed 
facility intended to make the facility look like something other than a 
wireless tower or base station. The 2014 Infrastructure Order defines 
``concealed or `stealth' ''-designed facilities as ``facilities 
designed to look like some feature other than a wireless tower or base 
station,'' and further provides that any change that defeats the 
concealment elements of such facilities would be considered a 
substantial change under Section 6409(a). Significantly, the 2014 
Infrastructure Order identified parts of a stealth wireless facility 
such as ``painting to match the supporting fa[ccedil]ade or artificial 
tree branches'' as examples of concealment elements. The Commission 
agrees with industry commenters that concealment elements are those 
elements of a wireless facility installed for the purpose of rendering 
the ``appearance of the wireless facility as something fundamentally 
different than a wireless facility,'' and that concealment elements are 
``confined to those used in stealth facilities.''
    25. The Commission disagrees with localities who argue that any 
attribute that minimizes the visual impact of a facility, such as a 
specific location on a rooftop site or placement behind a tree line or 
fence, can be a concealment element. As localities acknowledged in 
comments they submitted in response to the 2013 Infrastructure NPRM, 
``local governments often address visual effects and concerns in 
historic districts not through specific stealth conditions, but through 
careful placement'' conditions. The Commission's rules separately 
address conditions to minimize the visual impact of non-stealth 
facilities under Section 1.6100(b)(7)(vi) governing ``conditions 
associated with the siting approval.'' The Commission narrowly defined 
concealment elements to mean the elements of a stealth facility, and no 
other conditions fall within the scope of Section 1.6100(b)(7)(v).
    26. The Commission also clarifies that, in order to be a 
concealment element under Section 1.6100(b)(7)(v), the element must 
have been part of the facility that the locality approved in its prior 
review. The Commission's clarification that concealment elements must 
be related to the locality's prior approval is informed by the 2014 
Infrastructure Order and its underlying record, which assumed that 
``stealth''

[[Page 45131]]

designed facilities in most cases would be installed at the request of 
an approving local government. Further, in the 2014 Infrastructure 
Order, the Commission stated that a modification would be considered a 
substantial increase if ``it would defeat the existing concealment 
elements of the tower or base station.'' The Commission clarifies that 
the term ``existing'' means that the concealment element existed on the 
facility that was subject to a prior approval by the locality. In 
addition, the record in the 2014 Infrastructure Order, as relied upon 
by the Commission, characterized stealth requirements as identifiable, 
pre-existing elements in place before an eligible facilities request is 
submitted.
    27. Regarding the meaning of a prior approval in the context of an 
``existing'' concealment element, the Commission notes that Section 
1.6100(b)(7)(i) provides that permissible increases in the height of a 
tower (other than a tower in the public rights-of-way) should be 
measured relative to a locality's original approval of the tower or the 
locality's approval of any modifications that were approved prior to 
the passage of the Spectrum Act. The Commission finds it reasonable to 
interpret an ``existing'' concealment element relative to the same 
temporal reference points, which are intended to allow localities to 
adopt legitimate requirements for approval of an original tower at any 
time but not to allow localities to adopt these same requirements for a 
modification to the original tower (except for a modification prior to 
the Spectrum Act when localities would not have been on notice of the 
limitations in Section 6409(a)). In other words, the purpose of Section 
1.6100(b)(7)(v) is to identify and preserve prior local recognition of 
the need for such concealment, but not to invite new restrictions that 
the locality did not previously identify as necessary. Accordingly, the 
Commission clarifies that under Section 1.6100(b)(7)(v), a concealment 
element must have been part of the facility that was considered by the 
locality at the original approval of the tower or at the modification 
to the original tower, if the approval of the modification occurred 
prior to the Spectrum Act or lawfully outside of the Section 6409(a) 
process (for instance, an approval for a modification that did not 
qualify for streamlined Section 6409(a) treatment).
    28. The Commission is not persuaded by localities' arguments that 
this clarification would negate land use requirements that were a 
factor in the approval of the original deployment even if those 
requirements were not specified as a condition. The clarification does 
not mean that a concealment element must have been explicitly 
articulated by the locality as a condition or requirement of a prior 
approval. While specific words or formulations are not needed, there 
must be express evidence in the record to demonstrate that a locality 
considered in its approval that a stealth design for a 
telecommunications facility would look like something else, such as a 
pine tree, flag pole, or chimney. However, it would be inconsistent 
with the purpose of Section 6409(a)--facilitating wireless 
infrastructure deployment--to give local governments discretion to 
require new concealment elements that were not part of the facility 
that was subject to the locality's prior approval. The Commission 
expects that this clarification will also promote the purpose of the 
rules to provide greater certainty to localities and applicants as to 
whether a concealment element exists.
    29. Clarification of ``Defeat Concealment.'' Next, the Commission 
clarifies that, to ``defeat concealment,'' the proposed modification 
must cause a reasonable person to view the structure's intended stealth 
design as no longer effective after the modification. In other words, 
if the stealth design features would continue effectively to make the 
structure appear not to be a wireless facility, then the modification 
would not defeat concealment. The Commission's definition is consistent 
with dictionary definitions and common usage of the term ``defeat'' and 
is supported by the record. The clarification is necessary because, as 
industry commenters point out, some localities construe even small 
changes to ``defeat'' concealment, which delays deployment, extends the 
review processes for modifications to existing facilities, and 
frustrates the intent behind Section 6409(a).
    30. Examples of Whether Modifications Defeat Concealment Elements. 
The Commission offers the following examples to provide guidance on 
concealment elements and whether or not they have been defeated to help 
inform resolution of disputes should they arise:
     In some cases, localities take the position that the 
placement of coaxial cable on the outside of a stealth facility 
constitutes a substantial change based on the visual impact of the 
cable. Coaxial cables typically range from 0.2 inches to slightly over 
a half-inch in diameter, and it is unlikely that such cabling would 
render the intended stealth design ineffective at the distances where 
individuals would view a facility.
     In other cases, localities have interpreted any change to 
the color of a stealth tower or structure as defeating concealment. 
Such interpretations are overly broad and can frustrate Congress's 
intent to expedite the Section 6409(a) process. A change in color must 
make a reasonable person believe that the intended stealth is no longer 
effective. Changes to the color of a stealth structure can occur for 
many reasons, including for example, the discontinuance of the previous 
color. An otherwise compliant eligible facilities request will not 
defeat concealment in this case merely because the modification uses a 
slightly different paint color. Further, if the new equipment is 
shielded by an existing shroud that is not being modified, then the 
color of the equipment is irrelevant because it is not visible to the 
public and would not render an intended concealment ineffective. 
Therefore, such a change would not defeat concealment.
     WIA reports that a locality in Colorado claims that a 
small increase in height on a stealth monopine, which is less than the 
size thresholds of Section 1.6100(b)(7)(i) through (iv), defeats 
concealment and therefore constitutes a substantial change. The 
Commission clarifies that such a change would not defeat concealment if 
the change in size does not cause a reasonable person to view the 
structure's intended stealth design (i.e., the design of the wireless 
facility to resemble a pine tree) as no longer effective after the 
modification.
     If a prior approval included a stealth-designed monopine 
that must remain hidden behind a tree line, a proposed modification 
within the thresholds of Section 1.6100(b)(7)(i) through (iv) that 
makes the monopine visible above the tree line would be permitted under 
Section 1.6100(b)(7)(v). First, the concealment element would not be 
defeated if the monopine retains its stealth design in a manner that a 
reasonable person would continue to view the intended stealth design as 
effective. Second, a requirement that the facility remain hidden behind 
a tree line is not a feature of a stealth-designed facility; rather it 
is an aesthetic condition that falls under Section 1.6100(b)(7)(vi). 
Under that analysis, as explained in greater detail below, a proposed 
modification within the thresholds of Section 1.6100(b)(7)(i) through 
(iv) that makes the monopine visible above the tree line likely would 
be permitted under Section 1.6100(b)(7)(vi).

[[Page 45132]]

E. Conditions Associated With the Siting Approval

    31. Section 1.6100(b)(7)(vi) states that a modification is a 
substantial increase if ``[i]t does not comply with conditions 
associated with the siting approval of the construction or modification 
of the eligible support structure or base station equipment, provided 
however that this limitation does not apply to any modification that is 
non-compliant only in a manner that would not exceed the thresholds 
identified in Sec.  1.61001(b)(7)(i) through (iv).'' Industry 
commenters argue that changes specifically allowed under Section 
1.6100(b)(7)(i) through (iv) should not constitute a substantial change 
under Section 1.6100(b)(7)(vi). For example, the record shows that some 
localities claim that small increases in the size of a structure, such 
as increasing its height or increasing the width of its cannister, are 
a substantial change because they wrongly characterize any increase to 
a structure's visual profile or negative aesthetic impact as defeating 
a concealment element--even if the size changes would be within the 
allowances under the Commission's rules.
    32. Conditions associated with the siting approval under Section 
1.6100(b)(7)(vi) may relate to improving the aesthetics, or minimizing 
the visual impact, of non-stealth facilities (facilities not addressed 
under Section 1.6100(b)(7)(v)). However, localities cannot merely 
assert that a detail or feature of the facility was a condition of the 
siting approval; there must be express evidence that at the time of 
approval the locality required the feature and conditioned approval 
upon its continuing existence in order for non-compliance with the 
condition to disqualify a modification from being an eligible 
facilities request. Even so, like any other condition under Section 
1.6100(b)(7)(vi), such an aesthetics-related condition still cannot be 
used to prevent modifications specifically allowed under Section 
1.6100(b)(7)(i) through (iv) of the Commission's rules. Consistent with 
``commonplace [ ] statutory construction that the specific governs the 
general,'' the Commission clarifies that where there is a conflict 
between a locality's general ability to impose conditions under (vi) 
and modifications specifically deemed not substantial under (i)-(iv), 
the conditions under (vi) should be enforced only to the extent that 
they do not prevent the modification in (i)-(iv). In other words, when 
a proposed modification otherwise permissible under Section 
1.6100(b)(7)(i) through (iv) cannot reasonably comply with conditions 
under Section 1.6100(b)(7)(vi), the conflict should be resolved in 
favor of permitting the modifications. For example, a local 
government's condition of approval that requires a specifically sized 
shroud around an antenna could limit an increase in antenna size that 
is otherwise permissible under Section 1.6100(b)(7)(i). Under Section 
1.6100(b)(7)(vi), however, the size limit of the shroud would not be 
enforceable if it purported to prevent a modification to add a larger 
antenna, but a local government could enforce its shrouding condition 
if the provider reasonably could install a larger shroud to cover the 
larger antenna and thus meet the purpose of the condition.
    33. By providing guidance on the relationship between Section 
1.6100(b)(7)(i) through (iv) and 1.6100(b)(7)(vi), including the 
limitations on conditions that a locality may impose, the Commission 
expects there to be fewer cases where conditions, especially aesthetic 
conditions, are improperly used to prevent modifications otherwise 
expressly allowed under Section 1.6100(b)(7)(i) through (iv). The 
Commission reaffirms that beyond the specific conditions that 
localities may impose through Section 1.6100(b)(7)(vi), localities can 
enforce ``generally applicable building, structural, electrical, and 
safety codes'' and ``other laws codifying objective standards 
reasonably related to health and safety.''
    34. Examples of Aesthetics Related Conditions. Petitioners and both 
industry and locality commenters have provided numerous examples of 
disputes involving modifications to wireless facilities. Using examples 
from the record, and assuming that the locality has previously imposed 
an aesthetic-related condition under Section 1.6100(b)(7)(vi), the 
Commission offers examples to provide guidance on the validity of the 
condition to decrease future disputes and to help inform resolution of 
disputes should they arise:
     If a city has an aesthetic-related condition that 
specified a three-foot shroud cover for a three-foot antenna, the city 
could not prevent the replacement of the original antenna with a four-
foot antenna otherwise permissible under Section 1.6100(b)(7)(i) 
because the new antenna cannot fit in the shroud. As described above, 
if there was express evidence that the shroud was a condition of 
approval, the city could enforce its shrouding condition if the 
provider reasonably could install a four-foot shroud to cover the new 
four-foot antenna. The city also could enforce a shrouding requirement 
that is not size-specific and that does not limit modifications allowed 
under Section 1.6100(b)(7)(i) through (iv).
     T-Mobile claims that some localities consider existing 
walls and fences around non-camouflaged towers to be concealment 
elements that have been defeated if new equipment is visible over those 
walls or fences. First, such conditions are not concealment elements; 
rather, they are considered aesthetic conditions under Section 
1.6100(b)(7)(vi). Such conditions may not prevent modifications 
specifically allowed by Section 1.6100(b)(7)(i) through (iv). However, 
if there were express evidence that the wall or fence were conditions 
of approval to fully obscure the original equipment from view, the 
locality may require a provider to make reasonable efforts to extend 
the wall or fence to maintain the covering of the equipment.
     If an original siting approval specified that a tower must 
remain hidden behind a tree line, a proposed modification within the 
thresholds of Section 1.6100(b)(7)(i) through (iv) that makes the tower 
visible above the tree line would be permitted under Section 
1.6100(b)(7)(vi), because the provider cannot reasonably replace a 
grove of mature trees with a grove of taller mature trees to maintain 
the absolute hiding of the tower.
     In a similar vein, San Francisco has conditions to reduce 
the visual impact of a wireless facility, including that it must be set 
back from the roof at the front building wall. San Francisco states 
that it will not approve a modification if the new equipment to be 
installed does not meet the set back requirement. Even if a proposed 
modification within the thresholds of Section 1.6100(b)(7)(i) through 
(iv) exceeds the required set back, San Francisco could enforce its set 
back condition if the provider reasonably could take other steps to 
reduce the visual impact of the facility to meet the purpose of its 
condition.

F. Environmental Assessments After Execution of Memorandum of Agreement

    35. The Commission's environmental rules implementing the National 
Environmental Policy Act categorically exclude all actions from 
environmental evaluations, including the preparation of an 
environmental assessment, except for defined actions associated with 
the construction of facilities that may significantly affect the 
environment. Pursuant to Section 1.1307(a) of the Commission's rules, 
applicants currently submit an environmental assessment for those 
facilities that fall

[[Page 45133]]

within specific categories, including facilities that may affect 
historic properties protected under the National Historic Preservation 
Act. Under the Commission's current process, an applicant submits an 
environmental assessment for facilities that may affect historic 
properties, even if the applicant has executed a memorandum of 
agreement with affected parties to address those adverse effects.
    36. The Commission clarifies on its own motion that an 
environmental assessment is not needed when the FCC and applicants have 
entered into a memorandum of agreement to mitigate effects of a 
proposed undertaking on historic properties, consistent with Section 
VII.D of the Wireless Facilities Nationwide Programmatic Agreement, if 
the only basis for the preparation of an environmental assessment was 
the potential for significant effects on such properties. The 
Commission expects this clarification should further streamline the 
environmental review process.
    37. Section 1.1307(a)(4) of the Commission's rules requires an 
environmental assessment if a proposed communications facility may have 
a significant effect on a historic property. The Commission adopted a 
process to identify potential effects on historic properties by 
codifying the Wireless Facilities Nationwide Programmatic Agreement as 
the means to comply with Section 106 of the National Historic 
Preservation Act. If adverse effects on historic properties are 
identified during this process, the Wireless Facilities Nationwide 
Programmatic Agreement requires that the applicant consult with the 
State Historic Preservation Officer and/or Tribal Historic Preservation 
Officer, and other interested parties to avoid, minimize, or mitigate 
the adverse effects.
    38. When such effects cannot be avoided, under the terms of the 
Wireless Facilities Nationwide Programmatic Agreement, the applicant, 
the State Historic Preservation Officer and/or Tribal Historic 
Preservation Officer, and other interested parties may proceed to 
negotiate a memorandum of agreement that the signatories agree fully 
mitigates all adverse effects. The agreement is then sent to Commission 
staff for review and signature. Under current practice, even after a 
memorandum of agreement is executed, an applicant is still required to 
prepare an environmental assessment and file it with the Commission. 
The Commission subsequently places the environmental assessment on 
public notice, and the public has 30 days to file comments/oppositions. 
If the environmental assessment is determined to be sufficient and no 
comments or oppositions are filed, the Commission issues a Finding of 
No Significant Impact and allows an applicant to proceed with the 
project.
    39. In this Declaratory Ruling the Commission clarifies that an 
environmental assessment is unnecessary after an adverse effect on a 
historic property is mitigated by a memorandum of agreement. Applicants 
already are required to consider alternatives to avoid adverse effects 
prior to executing a memorandum of agreement. The executed agreement 
demonstrates that the applicant: Has notified the public of the 
proposed undertaking; has consulted with the State Historic 
Preservation Officer and/or Tribal Historic Preservation Officers, and 
other interested parties to identify potentially affected historic 
properties; and has worked with such parties to agree on a plan to 
mitigate adverse effects. This mitigation eliminates any significant 
adverse effects on a historic property, and each memorandum of 
agreement must include as a standard provision that the memorandum of 
agreement ``shall constitute full, complete, and adequate mitigation 
under the NHPA . . . and the FCC's rules.''
    40. The Commission notes that Section 1.1307(a) requires an 
applicant to submit an environmental assessment if a facility ``may 
significantly affect the environment,'' which includes facilities that 
may affect historic properties, endangered species, or critical 
habitats. As a result of the mitigation required by a memorandum of 
agreement, the Commission concludes that any effects on historic 
properties remaining after the agreement is executed would be below the 
threshold of ``significance'' to trigger an environmental assessment. 
After the memorandum of agreement is executed, a proposed facility 
should no longer ``have adverse effects on identified historic 
properties'' within the meaning of Section 1.1307(a)(4) and, therefore, 
should no longer be within the ``types of facilities that may 
significantly affect the environment.'' If none of the other criteria 
for requiring an environmental assessment in Section 1.1307(a) exist, 
then such facilities automatically fall into the broad category of 
actions that the Commission has already found to ``have no significant 
effect on the quality of the human environment and are categorically 
excluded from environmental processing.'' The Commission's rules should 
be read in light of the scope of the Commission's obligation under 
Section 106 and the ACHP's rules, which explicitly state that such a 
memorandum of agreement ``evidences the agency official's compliance 
with section 106.'' The Commission reminds applicants that an 
environmental assessment is still required if the proposed project may 
significantly affect the environment in ways unrelated to historic 
properties.

II. Procedural Matters

    41. Paperwork Reduction Act. This Declaratory Ruling does not 
contain proposed information collection(s) subject to the Paperwork 
Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, 
it does not contain any new or modified information collection burden 
for small business concerns with fewer than 25 employees, pursuant to 
the Small Business Paperwork Relief Act of 2002, Public Law 107-198, 
see 44 U.S.C. 3506(c)(4).
    42. Congressional Review Act. The Commission has determined, and 
the Administrator of the Office of Information and Regulatory Affairs, 
Office of Management and Budget, concurs that this rule is ``non-
major'' under the Congressional Review Act, 5 U.S.C. 804(2). The 
Commission will send a copy of this Declaratory Ruling to Congress and 
the Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).

III. Ordering Clauses

    43. 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, and Section 6409 of the Middle Class Tax Relief and 
Job Creation Act of 2012, as amended, 47 U.S.C. 151, 154(i) through 
(j), 157, 201, 253, 301, 303, 309, 319, 332, 1455 that this Declaratory 
Ruling in WT Docket No. 19-250 and RM-11849 Is hereby Adopted.
    44. It is further ordered that this Declaratory Ruling shall be 
effective upon release. It is the Commission's intention in adopting 
the foregoing Declaratory Ruling that, if any provision of the 
Declaratory Ruling, or the application thereof to any person or 
circumstance, is held to be unlawful, the remaining portions of such 
Declaratory Ruling not deemed unlawful, and the application of such 
Declaratory Ruling to other person or circumstances, shall remain in 
effect to the fullest extent permitted by law.
    45. 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 will commence on

[[Page 45134]]

the date that this Declaratory Ruling is released.
    46. It is further ordered that the Commission's Consumer & 
Governmental Affairs Bureau, Reference Information Center, Shall Send a 
copy of this Declaratory Ruling to the Chief Counsel for Advocacy of 
the Small Business Administration.
    47. It is further ordered that this Declaratory Ruling 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).

Federal Communications Commission.
Marlene Dortch,
Secretary.
[FR Doc. 2020-13951 Filed 7-24-20; 8:45 am]
BILLING CODE 6712-01-P