[Federal Register Volume 90, Number 228 (Monday, December 1, 2025)]
[Proposed Rules]
[Pages 55066-55083]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-21620]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 1
[WT Docket No. 25-276; FCC 25-67; FR ID 318640]
Build America: Eliminating Barriers to Wireless Deployments
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, the Federal Communications Commission (the
FCC or Commission) seeks to advance its Build America Agenda by seeking
comment on reforms that would free towers and other wireless
infrastructure from unlawful regulatory burdens imposed.
DATES: Comments are due December 31, 2025. Reply Comments are due
January 15, 2026.
ADDRESSES: Pursuant to Sec. Sec. 1.415 and 1.419 of the Commission's
rules, 47 CFR 1.415, 1.419, interested parties may file comments and
reply comments on or before the dates indicated on the first page of
this document. Comments may be filed using the Commission's Electronic
Comment Filing System (ECFS). You may submit comments, identified by WT
Docket No. 25-276, by any of the following methods:
Electronic Filers: Comments may be filed electronically
using the internet by accessing the ECFS: https://www.fcc.gov/ecfs.
Paper Filers: Parties who choose to file by paper must
file an original and one copy of each filing. Filings can be sent by
hand or messenger delivery, by commercial courier, or by the U.S.
Postal Service. All filings must be addressed to the Secretary, Federal
Communications Commission.
Hand-delivered or messenger delivered paper filings for
the Commission's Secretary are accepted between 8 a.m. and 4 p.m. by
the FCC's mailing contractor at 9050 Junction Drive, Annapolis
Junction, MD 20701. All hand deliveries must be held together with
rubber bands or fasteners. Any envelopes and boxes must be disposed of
before entering the building.
Commercial courier deliveries (any deliveries not by the
U.S. Postal Service)
[[Page 55067]]
must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.
Filings sent by U.S. Postal Service First-Class Mail,
Priority Mail, and Priority Mail Express must be sent to 45 L Street
NE, Washington, DC 20554.
People with Disabilities. To request materials in
accessible formats for people with disabilities (braille, large print,
electronic files, audio format), send an email to [email protected] or
call the Consumer & Governmental Affairs Bureau at 202-418-0530.
FOR FURTHER INFORMATION CONTACT: Jeff Bartlett, FCC, Wireless
Telecommunications Bureau, Competition & Infrastructure Policy
Division, (202) 418-1994, [email protected].
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking (NPRM), in WT Docket No. 25-276; FCC 25-276,
adopted and released on September 30, 2025. The full text of this
document is available at https://docs.fcc.gov/public/attachments/FCC-25-67A1.pdf.
Paperwork Reduction Act. This document may contain proposed new or
modified information collections. The Commission, as part of its
continuing effort to reduce paperwork burdens, invites the general
public and the Office of Management and Budget (OMB) to comment on any
information collections contained in this document, as required by the
Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3521. In addition,
pursuant to the Small Business Paperwork Relief Act of 2002, 44 U.S.C.
3506(c)(4), we seek specific comment on how we might further reduce the
information collection burden for small business concerns with fewer
than 25 employees.
Regulatory Flexibility Act. The Regulatory Flexibility Act of 1980,
as amended (RFA), requires that an agency prepare a regulatory
flexibility analysis for notice and comment rulemaking proceedings,
unless the agency certifies that ``the rule will not, if promulgated,
have a significant economic impact on a substantial number of small
entities.'' Accordingly, the Commission has prepared an Initial
Regulatory Flexibility Analysis (IRFA) concerning potential rule and
policy changes contained in this Notice of Proposed Rulemaking (NPRM).
The IRFA is set forth in Appendix B of the NPRM. The Commission invites
the general public, in particular small businesses, to comment on the
IRFA. Comments must be filed by the deadlines for comments on the first
page of this NPRM and must have a separate and distinct heading
designating them as responses to the IRFA.
Providing Accountability Through Transparency Act. Consistent with
the Providing Accountability Through Transparency Act, Public Law 118-
9, a summary of this document will be available on https://www.fcc.gov/proposed-rulemakings.
Synopsis
Introduction
With this Notice of Proposed Rulemaking (NPRM), we advance the
Commission's Build America Agenda by proposing reforms that would free
towers and other wireless infrastructure from regulatory burdens
imposed at the state and local level. This NPRM answers President
Trump's call across the federal government to expedite, eliminate, and
simplify permitting burdens that inhibit economic development, job
creation, and energy production. This proceeding also builds on the
Commission's successful efforts during President Trump's first term to
streamline infrastructure rules, which helped spur significant
investment and network buildout.
New infrastructure builds remain essential to this nation's 5G
leadership. American consumers demand more from their mobile networks
as wireless data traffic rises rapidly year-over-year. The number of
mobile voice subscriptions has continued to increase year-over-year. In
North America alone, experts predict a 12% compound annual growth rate
in mobile data traffic per active smartphone between 2024 and 2030. In
addition, fixed wireless access (FWA) services, which are provided over
the same networks that provide mobile voice and data service, have
gained traction in the marketplace and can play a pivotal role in
facilitating the delivery of broadband service. Artificial intelligence
(AI) is also expected to significantly increase demand on mobile
networks.
To ensure that mobile service providers can keep pace with consumer
demands and needs, we seek to continue the success of the Commission's
prior efforts to remove regulatory barriers that would unlawfully
inhibit the deployment of wireless infrastructure. This objective,
which reflects a longstanding bipartisan priority, is consistent with
Congress's stated intent in the Telecommunications Act of 1996 to
``provide for a pro-competitive, de-regulatory national policy
framework designed to accelerate rapidly private sector deployment of
advanced telecommunications and information technologies to all
Americans by opening all telecommunications markets to competition . .
. .''
In this NPRM, we first seek to clarify and potentially expand upon
the Commission's rulings under certain permitting provisions of section
6409(a) of the Spectrum Act of 2012 (Spectrum Act) that expedite state
or local approval of certain modifications of existing tower and
wireless base stations. In particular, in response to court remand, we
seek to clarify the meaning of ``concealment elements,'' which are used
by builders to minimize the visual impact of towers and other wireless
infrastructure, and to codify these clarifications in Sec. 1.6100 of
the Commission's rules, as described in Appendix A. We also ask for
comment on other changes that the Commission should consider making to
Sec. 1.6100, such as changes related to siting conditions, to further
streamline wireless permitting proceedings and facilitate the rapid
buildout of wireless infrastructure.
Second, we seek comment on whether we should take further steps to
ensure that state and local permitting regulations do not prohibit or
have the effect of prohibiting the deployment of wireless
infrastructure facilities pursuant to sections 253 and 332(c)(7) of the
Communications Act. We recognize that some state and local governments
have taken important steps to modernize their approach to siting
requests. However, in recent years, a number of state and local
regulations have inhibited the deployment, densification, and upgrading
of wireless networks, resulting in an effective prohibition of 5G
wireless services. We seek comment on such regulations, including
potential preemption, particularly those that:
Inhibit the deployment of macro cell towers and other
wireless facilities;
Impose unreasonable delays of permitting approvals;
Assess disproportionate or otherwise unreasonable fees;
Condition approval on aesthetic or similar criteria; and
Impose other regulatory impediments in violation of the
Telecommunications Act and Commission rules.
In addition, we seek comment on whether the Commission should
consider implementing alternative dispute resolution procedures to
facilitate the resolution of permitting disputes.
Our goal is to ensure that all state and local permitting
regulations that address the deployment of wireless infrastructure are
consistent with the
[[Page 55068]]
requirements of section 6409 of the Spectrum Act and sections 253 and
332(c)(7) of the Communications Act, and do not prohibit or effectively
prohibit the provision of service. As an overarching matter, we ask
that commenters that responded to our companion Notice of Inquiry
construing section 253's statutory provisions to identify portions of
that record that bear on factual, policy, economic, or legal issues
raised in this NPRM to help inform the Commission's next steps in this
proceeding.
Background
FCC Implementation of Section 6409(a) of the Spectrum Act
In section 6409(a) of the Spectrum Act, Congress recognized the
efficiency of using existing infrastructure for the expansion of
advanced wireless networks, and, accordingly, the need to expedite
state or local approval of certain modifications of existing tower and
wireless base stations. Section 6409(a) provides that ``a State or
local government may not deny, and shall approve, any eligible
facilities request for a modification of an existing wireless tower or
base station that does not substantially change the physical dimensions
of such tower or base station.'' Further, section 6003 of the Spectrum
Act requires the Commission to ``implement and enforce'' the provisions
of the Spectrum Act as if it ``is a part of the Communications Act of
1934.''
In 2014, the Commission adopted rules implementing section 6409(a).
Section 1.6100(c)(2) of the Commission's rules provides that a state or
local government must approve an eligible facilities request within 60
days of the date on which an applicant submits the request. The rules
define an ``eligible facilities request'' as ``[a]ny request for
modification of an existing tower or base station that does not
substantially change the physical dimensions of such tower or base
station, involving: (i) collocation of new transmission equipment; (ii)
removal of transmission equipment; or (iii) replacement of transmission
equipment.'' The rules provide that changes are ``substantial'' if
they: (i) exceed defined limits on increases in the height or girth of
the structure or the number of associated equipment cabinets; (ii)
involve excavation or deployment on ground outside a structure's
current site; (iii) defeat the concealment elements of the pre-existing
structure; or (iv) violate conditions previously imposed by the local
zoning authority.
In the 2020 Declaratory Ruling, the Commission clarified the 2014
rules including clarifying that the term ``concealment elements'' means
``elements of a stealth-designed facility intended to make the facility
look like something other than a wireless tower or base station,'' such
as a tree or flag pole. The Commission clarified that, ``the element
must have been part of the facility that the locality approved in its
prior review.'' The Commission determined that a modification
``defeats'' a concealment element (and thus becomes ineligible for
expedited local approval) where it ``cause[s] a reasonable person to
view the structure's intended stealth design as no longer effective
after the modification.''
The 2020 Declaratory Ruling also addressed the application of the
siting conditions provision under which a proposed modification would
not qualify as an eligible facilities request if it did ``not comply
with conditions associated with the siting approval of the construction
or modification of the eligible support structure or base station
equipment . . . .'' The 2020 Declaratory Ruling stated that this
limitation could include aesthetic conditions to minimize the visual
impact of a wireless facility, as long as the condition does not
prevent modifications explicitly allowed under the rules (antenna
height, antenna width, equipment cabinets, and excavations or
deployments outside the current site).
In 2024, the U.S. Court of Appeals for the Ninth Circuit (Ninth
Circuit) upheld the 2020 Declaratory Ruling in most respects but
remanded to the Commission to use notice-and-comment rulemaking before
clarifying the meaning of ``concealment elements.'' The court
determined that the clarifications were ``inconsistent with the
unambiguous text'' of the Commission's 2014 rules implementing section
6409(a) and therefore were ``legislative rules'' that required a
notice-and-comment rulemaking under the Administrative Procedure Act
(APA). The court found that the 2020 Declaratory Ruling did not satisfy
this procedural requirement and that this was not harmless error.
A. FCC Implementation of Sections 253 and 332(c)(7) of the
Communications Act
Sections 253 and 332(c)(7) of the Communications Act expressly
preempt state or local requirements that prohibit or have the effect of
prohibiting the provision of telecommunications service and personal
wireless service, respectively.
Section 253(a) provides that ``[n]o State or local statute or
regulation, or other State or local legal requirement, may prohibit or
have the effect of prohibiting the ability of any entity to provide any
interstate or intrastate telecommunications service.'' This provision
establishes ``a rule of preemption [that] articulates a reasonably
broad limitation on state and local governments' authority to regulate
telecommunications providers.'' Sections 253(b) and 253(c) establish
two exceptions to the rule of preemption. First, section 253(b)
preserves state statutes, regulations, and legal requirements that are
competitively neutral, consistent with section 253 of the Act, and
``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.''
Second, section 253(c) preserves ``the authority of a State or local
government to manage their public rights-of-way or to require fair and
reasonable compensation from telecommunications providers, on a
competitively neutral and nondiscriminatory basis, for the use of
public rights-of-way on a nondiscriminatory basis, if the compensation
required is publicly disclosed by such government.'' Section 253(d)
requires the Commission, after notice and comment, to preempt the
enforcement of specific state or local requirements that violate
section 253 to ``the extent necessary to correct such violation or
inconsistency.''
Similar to section 253, Congress specified in section 332(c)(7)
that ``[t]he regulation of the placement, construction, and
modification of personal wireless service facilities by any State or
local government or instrumentality thereof--(I) shall not unreasonably
discriminate among providers of functionally equivalent services; and
(II) shall not prohibit or have the effect of prohibiting the provision
of personal wireless services.'' Section 332(c)(7) also sets forth a
judicial remedy, stating that ``[a]ny person adversely affected by any
final action or failure to act by a State or local government'' that is
inconsistent with the requirements of Section 332(c)(7) ``may, within
30 days after such action or failure to act, commence an action in any
court of competent jurisdiction.''
In 2018, the Commission adopted the Small Cell Order, which
affirmed that state or local statutes, regulations, or ordinances are
unlawful when they prohibit or have the effect of prohibiting service
under sections 253(a) and 332(c)(7) with respect to ``Small
[[Page 55069]]
Wireless Facilities.'' Specifically, the Commission found that state
and local regulatory fees prohibit or have the effect of prohibiting
the deployment of Small Wireless Facilities under sections 253 and 332,
unless the fees: (1) reasonably approximate the state or local
government's costs; (2) include only ``objectively reasonable costs'';
and (3) are ``no higher than the fees charged to similarly-situated
competitors in similar situations.'' Given the characteristics of Small
Wireless Facilities and the anticipated number of deployments, the
Commission concluded that for Small Wireless Facilities, fees that
exceed these limits prohibit or have the effect of prohibiting service
when considered in the aggregate. The Commission also established
presumptive ``shot clocks'' that govern the amount of time state and
local permitting authorities can take to review applications for both
Small Wireless Facilities and other larger facilities. The Commission
also concluded that state and local ``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.''
In August 2020, the Ninth Circuit upheld the Commission's Small
Cell Order with respect to fee limitations, shot clocks, and the
finding that aesthetic requirements must be reasonable. The court,
however, vacated and remanded the Commission's determination that
aesthetic requirements be no more burdensome than those applied to
other types of infrastructure deployments, and found that the
requirement that aesthetic requirements be objective lacked a reasoned
explanation.
Discussion
B. Section 6409(a) of the Spectrum Act
We propose to revise Sec. 1.6100 of the Commission's rules (as set
forth in Appendix A of the NPRM) to codify the 2020 Declaratory
Ruling's clarifications regarding concealment elements and siting
conditions. In addition, we propose to codify the guidance and examples
the Commission provided in the 2020 Declaratory Ruling, to illustrate
how the rule revisions would operate in practice. We anticipate that
revising the rules as proposed will help provide greater certainty, and
thereby reduce the number of disputes in the permitting process.
Concealment Elements
Section 1.6100(b)(7)(v) of the Commission's rules 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,'' but it does not define what qualifies
as a ``concealment element.'' In the Wireless Infrastructure Order the
Commission stated that ``concealed or `stealth'-designed facilities''
were ``facilities designed to look like some feature other than a
wireless tower or base station,'' and that ``any change that defeats
the concealment elements of such facilities would be considered a
substantial change under section 6409(a).'' The Commission identified
``painting to match the supporting facade or artificial tree branches''
as examples of ``concealment elements.''
In the 2020 Declaratory Ruling, the Commission sought to clarify
the concealment elements provision in Sec. 1.6100(b)(7)(v), noting
that stakeholders had ``interpreted the definition of `concealment
element' and the types of modifications that would `defeat' concealment
in different ways.'' The Commission clarified that concealment elements
were ``elements of a stealth-designed facility intended to make the
facility look like something other than a wireless tower or base
station.'' The Commission also found that concealment elements are
``defeated'' when ``the proposed modification . . . cause[s] a
reasonable person to view the structure's intended stealth design as no
longer effective after the modification.'' In doing so, the Commission
rejected arguments 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.''
The Commission noted that local governments often address visual
impacts ``not through specific stealth conditions, but through careful
placement conditions'' and that the Commission's rules governing
``conditions associated with the siting approval'' separately address
conditions to minimize the visual impact of non-stealth facilities.
Consistent with the 2020 Declaratory Ruling, we propose to define
concealment elements as those elements intended to make a stealth-
designed facility look like something other than a wireless tower or
base station. We also propose that a requested modification would
``defeat'' a concealment element if it would cause a reasonable person
to view the structure's intended stealth design as ineffective. A
proposed modification would not defeat concealment if its stealth-
design elements would continue to make the structure not appear to be a
wireless facility.
We further propose to codify the guidance the Commission provided
in the 2020 Declaratory Ruling regarding the application of this
approach. For example, placing coaxial cable on the outside of a
stealth facility would be unlikely to make the stealth design of the
facility ineffective because such cables are typically a small size. A
modification that involves a change in color would only defeat
concealment if it would cause a reasonable person to view the intended
stealth design of the underlying facility as no longer effective. For
facilities stealth-designed to resemble a pine tree (a ``monopine''
wireless facility), if the prior approval of that facility requires
that the monopine remain hidden behind a tree line, a proposed
modification that makes the monopine visible above the tree line would
not defeat concealment if a reasonable person would continue to view
the stealth design of the monopine as effective. We would not view a
requirement that the facility remain hidden behind a tree line as a
feature of a stealth-designed facility, but instead as an aesthetic
siting approval condition that would fall under Sec. 1.6100(b)(7)(vi),
as described below.
We expect that these changes will provide a clearer regulatory
framework that will mitigate potential disputes during the permitting
process and expedite broadband deployment. We seek comment on this
analysis and on the scope of benefits and any potential drawbacks
associated with our proposed approach. Do commenters agree that
adopting these proposed rule changes would help spur wireless
facilities deployment by providing clarity and reducing permitting
disputes? We ask commenters to provide information about their
experiences during the permitting process. To what extent do disputes
regarding concealment elements arise? What changes have localities
viewed as defeating concealment? What effect have such disputes about
concealment elements had on efforts to deploy wireless infrastructure?
If any commenters oppose our proposed rule changes, we ask them to
explain why the proposed changes should not be adopted and to discuss
alternative approaches we should consider, including any alternative
approaches that should apply to small entities. We propose to codify
the examples to illustrate how the rules would apply and seek
[[Page 55070]]
comment on this approach. Are there other situations that we should
consider addressing in this manner?
Conditions Associated With the Siting Approval
We also propose to revise the rules to formally codify the
Commission's determinations in the 2020 Declaratory Ruling regarding
siting approval conditions. Under the current rules, a modification is
``substantial'' (and thus ineligible for expedited approval) 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 [paragraphs](b)(7)(i)
through (iv).'' Consistent with the court's decision and the 2020
Declaratory Ruling, we propose to revise the rule to clarify that any
siting approval condition--including an aesthetics-related condition or
any other condition designed to address the visual impact of a
facility--cannot be used to prevent modifications specifically allowed
under Sec. 1.6100(b)(7)(i) through (iv) of the rules.
We further propose to adopt and codify the Commission's previous
guidance and examples from the 2020 Declaratory Ruling. For example, if
a locality had an aesthetics-related condition that specified a three-
foot shroud cover for a three-foot antenna, the locality could not
prevent replacement of the original antenna with a four-foot antenna
that complies with Sec. 1.6100(b)(7)(i). If there was express evidence
that the shroud cover requirement was a condition of the locality's
original approval, the locality could enforce its shrouding condition
if the provider could reasonably install a four-foot shroud to cover
the new four-foot antenna. The locality also could enforce a shrouding
requirement that was not size-specific and that did not limit
modifications allowed under Sec. 1.6100(b)(7)(i) through (iv).
Under the proposal, existing walls and fences around non-stealth
designed facilities would be considered aesthetic conditions and not
concealment elements. However, if there was express evidence that the
wall or fence was a condition of approval in order 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 continue
covering the equipment. We further propose to codify the Commission's
2020 guidance that for a tower that was originally approved conditioned
on being hidden behind a tree line, a proposed modification, allowed
under Sec. 1.6100, that would make the tower visible above the tree
line would be permitted. A locality could not prevent such a
modification because the provider presumably could not reasonably
replace a grove of mature trees with a grove of taller mature trees to
maintain the absolute hiding of the tower.
We seek comment on the proposed rule changes. We tentatively
conclude that they would make the Commission's rules clearer and easier
to understand, streamline the wireless permitting processes across the
country, and minimize disputes over differing interpretations. We ask
for comments on this analysis and on the potential benefits or
drawbacks of this approach. In addition, we invite commenters to
discuss their experiences with respect to aesthetics-related conditions
and conditions designed to address the visual impact of wireless
facilities. Do such conditions affect the time to complete deployment,
increase costs, or reduce providers' ability to satisfy coverage
demands and/or provide enhanced services. We ask commenters to also
provide information on the extent to which such conditions have
restricted modifications to existing infrastructure that would have
otherwise been permitted under our rules. Commenters who oppose our
approach should explain why the proposed rule changes should not be
adopted and discuss alternatives the Commission should consider,
including alternatives that would be appropriate for small entities.
Other Considerations
Finally, we seek comment on other possible changes to Sec. 1.6100
to reduce permitting and other barriers to infrastructure deployment.
For example, should the Commission clarify the relationship between
time-limited conditional use permits (CUPs) and the requirements of
section 6409(a)? Recently, some local jurisdictions have passed
ordinances that require tower owners to renew their wireless tower
facility permits after 10 years, which include ``eligible facilities''
under section 6409. In some instances, after the expiration of the
initial permit period, the local government imposes new conditions on
permit renewals for deployments previously deemed eligible facilities
requests under section 6409(a). For example, a City of Monterey, CA
ordinance states that a wireless facility permit may not have a
duration longer than ten years. We seek comment on whether the
Commission should adopt a rule that, once a particular deployment is
found to be an eligible facilities request and the permit is granted by
a state or local jurisdiction, that state or local jurisdiction may not
seek to impose new conditions as part of a permit renewal process. Does
the imposition of new conditions at the time of renewal conflict with
section 6409(a)(1), which provides, in pertinent part, that ``a State
or local government may not deny, and shall approve, any eligible
facilities request for a modification of an existing wireless tower or
base station that does not substantially change the physical dimensions
of such tower or base station''? Are such ordinances equivalent to a
local or state government limiting eligible facilities status to the
length of the term of the local permit? Is there any scenario under
which an ``eligible facility'' would lose this designation after it is
acknowledged at the initial permit stage? For example, would imposing a
new condition be acceptable after a natural disaster alters the terrain
where the eligible facility was previously authorized?
Are there other changes that should be made to initial permit
application review and/or renewal applications that would clarify and
expedite deployment? Is there a need to further clarify when the
timeframe for review is deemed to have begun? Are there other
considerations regarding Sec. 1.6100 that would clarify the permitting
and renewal process and make it more efficient?
C. Sections 253 and 332(c)(7) of the Communications Act
As described in this section, we continue to see state and local
regulatory impediments to vital infrastructure builds and to the
provision of new and high quality services in a competitive
marketplace. We seek comment on whether we should take further steps to
ensure that state and local permitting regulations do not prohibit or
have the effect of prohibiting the deployment of wireless
infrastructure facilities pursuant to sections 253 and 332(c)(7) of the
Communications Act, recognizing the Ninth Circuit's guidance outlined
above. Specifically, we seek comment on state and local permitting
regulations that: inhibit the deployment of macro cell towers and other
wireless facilities, impose unreasonable delays on permitting
approvals, assess disproportionate or otherwise unreasonable fees,
condition approval on aesthetic requirements or similar criteria, and
impose other regulatory
[[Page 55071]]
impediments. In addition, we seek comment on whether the Commission
should consider implementing alternative dispute resolution procedures
to resolve permitting disputes between applicants and state and local
governments.
Macro Cell Towers and Other Wireless Facilities
The Small Cell Order focused on state and local permitting
requirements that affect the installation of Small Wireless Facilities.
We recognize, however, the importance of ensuring the timely buildout
of macro cell towers and other wireless facilities, which play a vital
role in promoting competition and securing higher-quality services.
We seek comment on whether we should extend any of the Small Cell
Order reforms adopted in 2018 or discussed in this NPRM to macro cell
towers and other wireless facilities. Are there barriers to extending
the Small Cell Order reforms to macro facilities or other wireless
facilities? Commenters should identify which reforms should or should
not be extended, and provide specific examples and data that support
their position. For example, are there aspects of the Small Cell Order
related to densification or fees that are applicable to macro towers or
other wireless facilities? If we extend any of the Small Wireless
Facilities reforms to macro cell towers and other wireless facilities,
is there a need to modify these reforms to match the specific
circumstances associated with the siting of these types of facilities?
Are there issues beyond those addressed in the Small Cell Order and
this NPRM that are unique to macro cell towers and, if so, how should
the Commission address those issues?
We also seek comment on what constitutes a macro cell tower. Are
macro cell towers simply wireless facilities that do not qualify as
Small Wireless Facilities under our rules? Are there other factors that
we should consider in defining macro cell towers and related
facilities? For instance, should we consider the height, width, and
volume of the tower or whether the tower is a monopole, lattice, or
guyed tower? Should we consider whether the macro facilities or other
wireless facilities will be placed on pre-existing structures (e.g., a
water tower)? Commenters should propose definitions for what qualifies
as a macro cell tower or other wireless facilities, explain how these
facilities are distinguishable from Small Wireless Facilities, and
articulate how the Commission should treat these other categories of
wireless facilities.
Unreasonable Delays of Permitting Approvals
In the Commission's 2009 Declaratory Ruling, the Commission
established a ``shot clock'' framework to implement the ``reasonable
period of time'' provision of section 332(c)(7)(B)(ii), finding that
the lack of a decision from a permitting authority within certain
periods of time constituted a ``failure to act''. Specifically, 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. In the Small Cell Order,
the Commission adopted a new shot clock framework to take into account
the unique features and needs of Small Wireless Facilities. There, the
Commission adopted a 60-day shot clock as a presumptively reasonable
time period for reviewing applications for Small Wireless Facility
collocations, and a 90-day shot clock as a presumptive reasonable time
period for a newly constructed structure. The Commission also codified
the presumptive 90-day and 150-day shot clocks developed in the 2009
Declaratory Ruling for siting applications that do not involve Small
Wireless Facilities.
We seek comment on how well the shot clocks codified in the
Commission's rules have helped expedite the delivery of advanced
communications services. Have the shot clock timeframes provided
greater clarity and efficiency in processing permit applications? Has
litigation been reduced? Would adopting additional shot clocks for
specific scenarios help improve the efficiency of permit approvals and,
if so, what specific revisions and/or additions should be made?
In the Small Cell Order, the Commission codified its previous
determination that a shot clock begins to run when an application is
submitted, not when it is deemed complete by the permitting authority.
The rules provide for a temporary pause or tolling if: (1) the
permitting authority notifies the applicant within 30 days of
submission that the application is materially incomplete and specifies
the information needed for completion; and (2) the locality provides
written notice to the applicant within 10 days of submission of the
applicant's response that not all of the specified information was
submitted. The shot clock restarts once the applicant submits the
supplemental information.
We seek comment on the effectiveness of these notifications in
removing complications and ensuring the efficient processing of
incomplete applications. Are permitting authorities requesting multiple
rounds of supplements, with subsequent requests including comments not
contained in the first request? How often do permitting authorities
notify applicants of incomplete filings close to the end of the shot
clock period?
The Commission determined violations of the shot clocks for Small
Wireless Facilities constitute a section 332(c) ``failure to act,'' and
a ``presumptive prohibition on the provision of personal wireless
services within the meaning of section 332(c)(7)(B)(i)(II).'' The
Commission expects that either the permitting authority would ``issue
all necessary permits without further delay,'' or the applicant would
have ``a straightforward case'' for obtaining relief in court based on
violations of section 332(c)(7). The Commission anticipated that courts
will typically find that injunctive relief is warranted if there is
inaction at the end of the shot clock period, absent extraordinary
circumstances that would rebut the presumptive shot clock period.
In the Small Cell Order, the Commission noted that ``there may be
merit'' to a ``deemed granted'' remedy but it declined to adopt this
remedy because it determined that the shot clock framework that it had
codified ``should address the concerns raised by a `deemed granted'
remedy.'' The Commission also indicated that if its approach ``proves
insufficient'' it may again consider adopting a deemed granted
approach.'' The Ninth Circuit upheld the Commission's decision not to
adopt a ``deemed granted'' remedy because the Commission had
``reasonably explained'' that the new shot clock framework would reduce
delays prevalent under the prior shot clock regime.
We seek comment on whether shot clocks are preventing unreasonable
delay or whether the Commission should reconsider its prior decision
not to adopt a deemed granted remedy. If appropriate, what would be the
basis for the Commission to adopt a ``deemed granted'' rule for shot
clock violations? For example, could a deemed granted remedy be
justified on the basis that unreasonable delays have the effect of
prohibiting deployment in violation of section 332(c)(7)(B)(i)(II)?
Could the Commission enforce a shot clock violation through a petition
under section 253(d)?
In addition, we seek comment on the effect of excessive delays on
the prohibition of covered service under section 253 and 332(c)(7). For
example,
[[Page 55072]]
can excessive delays result in the abandonment of certain planned
deployments? Can such delays also raise the cost of deployments such
that a provider might be forced to scale back a planned deployment,
either in the locality affected by the delay or in other planned
localities? Commenters should provide estimates of recent deployment
costs that were raised or schedules that were not met due to expected
or actual delays in authorization, including costs per day of delay.
How do covered service providers determine when regulatory costs and
delays make the provision of telecommunications uneconomical and,
therefore, prohibitive in a community? Do delays and costs have a
uniquely harmful effect on wireless deployments as opposed to other
types of deployments?
Disproportionate or Unreasonable State and Local Fees
Standard for Determining Reasonability of Fees. In the Small Cell
Order, the Commission recognized that ``state and local fees and other
charges associated with the deployment of wireless infrastructure can
unlawfully prohibit the provision of service'' under sections 253 and
332(c)(7). The Commission determined that ``fees are only permitted to
the extent that they are nondiscriminatory and represent a reasonable
approximation of the locality's reasonable costs.'' The Commission
identified ``specific fee levels for the deployment of Small Wireless
Facilities that presumptively comply with this standard.'' The
Commission further found that ``a variety of fees not reasonably
tethered to costs appear to violate sections 253(a) or 332(c)(7) . . .
.'' For example, the Commission noted, ``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).'' With
respect to the use of third party contractors or consultants, the
Commission found that the ``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.'' In City of
Portland, the Ninth Circuit upheld the Commission's determinations on
fees, concluding that the Commission reasonably determined that, when
localities impose small cell fees that exceed the localities' actual
and reasonable costs, those inflated fees have a prohibitive effect on
the deployment of small cells nationwide.
Subsequent to the Small Cell Order, the Wireless Telecommunications
Bureau (Bureau) addressed a petition for declaratory ruling requesting
preemption of certain recurring fees set forth in a Clark County,
Nevada (Clark County) ordinance. In doing so, the Bureau clarified
that, pursuant to the Small Cell Order, a locality, rather than the
petitioner, ``has the burden of demonstrating to the Commission why
fees above safe harbor levels should not be preempted (assuming that
the petitioner has made a prima facie case that the fees in question
do, in fact, exceed these safe harbor levels).''
We seek comment on the extent to which state and local fees
continue to impede wireless infrastructure deployment and on whether
certain findings in the Small Cell Order on fees are equally applicable
to larger wireless facilities, such as macro towers. Additionally, we
seek comment on whether we should codify the Commission's findings from
the Small Cell Order and the Verizon Clark County Dismissal Order?
Should we consider adopting other safe harbors for additional types of
fees and/or additional types of wireless infrastructure deployments,
such as larger wireless facilities? Should we further define what
constitutes reasonable costs? If so, what rules should we consider to
help ensure that costs are reasonably limited to the processing of
applications and to the use and maintenance of rights of way? Would
codifying these clarifications help prevent states and localities from
continuing to impose fees that are unlawful under sections 253 and
332(c)(7)?
Application of Economic Principles. The Commission's clarifications
on fees in the Small Cell Order stemmed from application of economic
principles and its recognition that ``infrastructure builders, like all
economic actors, have a finite (though perhaps fluid) amount of
resources to use for the deployment of infrastructure'' and that ``fees
imposed by localities, above and beyond the recovery of localities'
reasonable costs, materially and improperly inhibit deployment that
could have occurred elsewhere.'' Moreover, the Commission has
recognized the importance of considering the ``aggregate effects of
fees imposed by individual localities.'' While the Commission's focus
in the Small Cell Order was on the use of Small Wireless Facilities, we
tentatively conclude that its implicit rationale applies with equal
force to macro facilities and other wireless facilities. Such
facilities continue to be critically important components of wireless
network infrastructure nationwide and providers need these facilities
to densify their networks and help improve the quality of the services
they offer. We seek comment on whether this economic interpretation of
our rules could help set a standard for determining when high rights-
of-way and other access fees on macro facilities and other wireless
facilities would ``have the effect of prohibiting'' the deployment of
5G networks--as they would raise the cost of service provision above a
competitive level and prohibit certain efficient investments.
This theoretical grounding supports and flows naturally from the
principles the Commission articulated in the Small Cell Order, and we
seek comment on how to apply them in the context of macro and other
wireless facilities--in particular how an economic grounding
illuminates the ``prohibit or have the effect of prohibiting'' language
in sections 253 and 332. As noted, section 253 preempts any state or
local regulations that ``prohibit or have the effect of prohibiting the
ability of any entity to provide any interstate or intrastate
telecommunications service.'' We are interested in understanding this
provision from an economic perspective in a manner consistent with the
Small Cell Order.
In particular, we are interested in exploring the fact that states
and localities can set prices in a manner that is freed from
competitive constraints when setting rights-of-way and other access
charges. They therefore can charge rights-of-way fees that are higher
than the direct or incremental costs of such access, thereby
prohibiting the making of socially beneficial investments. Indeed, all
else equal, setting price above incremental costs will tend to lower
investment and reduce overall social welfare. The concern over lost
investment due to excessive fees for access to rights-of-way or
facilities within the rights-of-way is reflected in the Commission's
precedent. As the Commission said in the California Payphone Order and
emphasized again in the Small Cell Order, section 253 preempts those
``ordinance[s that] materially inhibi[t] or limi[t] the ability of any
competitor or potential competitor to compete in a fair and balanced
legal and regulatory environment.''
In competitive markets, prices tend toward marginal or incremental
cost resulting in greater consumer welfare. Fees that are closely
connected to recovering only direct or incremental costs are generally
acceptable under section 253(a), while fees that recover more overhead
such as joint and common costs require greater scrutiny. Fees that were
set without regard to costs, such as those based on a
[[Page 55073]]
percentage of a provider's revenue, require the greatest scrutiny. Do
commenters agree that fees that exceed the direct or incremental costs
of issuing permits for such facilities result in a reduction in
infrastructure investment and effectively prohibit the provision of
wireless services on that basis?
The Small Cell Order found fees above and beyond the localities'
reasonable costs can result in an effective prohibition of a deployment
elsewhere. As part of that determination, should we allow localities to
recover some portion of joint and common costs? We note that, with the
exception of Ramsey pricing, there is no non-arbitrary methodology for
allocating common costs. Economic principles, therefore, can only
suggest ranges of acceptable rights-of-way and access fees. Given the
lack of clear economic principles for allocating common costs, would
allowing recovery of common costs enable localities to load significant
common costs on to access fees, such that they would discourage network
investment?
With respect to macro facilities and other wireless facilities,
should the Commission allow localities to recover a portion of their
joint and common costs? How do these costs relate to section 253's
protection of states' and localities' ability to ``require fair and
reasonable compensation from telecommunications providers, on a
competitively neutral and nondiscriminatory basis?'' Given the
importance of encouraging the deployment of telecommunications
infrastructure, does section 253(c) require the recovery of common
costs in excess of those costs directly attributable to, or caused by,
the deployment of telecommunications infrastructure within the rights-
of-way? We seek comment on what would be an appropriate limiting
principle for joint and common costs in the context of macro and other
wireless facilities that would be within the scope of this statutory
provision and inform the Commission's determination in this proceeding.
In particular, would it be helpful for the Commission to define:
(1) which types of potential common costs could be recovered from
telecom providers; and (2) the portion of common costs that could be
recovered from each provider? As far as which types of potential common
costs could be recovered, we seek comment on limiting recoverable costs
to those that directly and unambiguously benefit the party on which the
fee is assessed. As far as the portion of common costs that could be
recovered from each provider, we seek comment on suggesting that states
and localities employ some measure of usage and/or benefits of cost-
imposing activity to determine the portion of common costs recovered
from each party benefiting from the activity. We also seek comment on
whether and to what extent we should consider cost recovery schemes the
Commission has adopted in other contexts to inform our understanding of
fees that ``ha[ve] the effect of prohibiting'' under section 253(a) and
fall outside the scope of ``fair and reasonable compensation'' under
section 253(c).
Preemption of Local Fees. We are aware that applicants seeking
permits to deploy wireless infrastructure facilities continue to face a
range of state and local fees that may prohibit or have the effect of
prohibiting telecommunications service in violation of sections 253 and
332(c)(7). These state and local fees take the form of initial one-time
fees, consulting fees, annual recurring fees, and gross revenue fees.
These fees are applicable to permit requests for both Small Wireless
Facilities as well as larger wireless facilities, such as macro towers.
We tentatively conclude that the following examples are not justified
by a state or local government's reasonable costs, and we seek comment
on whether the Commission should preempt the local regulations that
impose the fees discussed below. In addition to those listed, we also
seek comment on other instances where state and local fees may be
prohibiting or having the effect of prohibiting covered services.
One-time Fees:
The City of San Francisco, California: Application fee of
$6,874 and a surcharge of $120 for a total of $6,994;
City of San Diego, California: Fees ranging from more than
$13,000 to more than $16,000 in addition to other fees to cover an
``environmental initial study'' and an ``historic resources review'';
County of San Diego, California: Initial deposit plus fee
ranging from more than $9,000 to more than $19,000 depending on type of
facility;
Gwinnett County, Georgia: Application fee of $6,000 for
communication towers greater than 50 feet in height;
Grant County, New Mexico: Application fee of $17,500 for a
new tower and a $9,000 application fee for collocation on an existing
tower or modification of existing facilities;
Rio Rancho, New Mexico: Application fee up to $15,000 for
a new tower and $8,000 for collocation or substantial change;
Putnam Valley, New York: Building permitting fee of up to
$5,000 per linear foot in height for a new tower plus a $3,000 fee for
each antenna collocated on the tower;
Marion, North Carolina: Application fee of $5,000 for a
new wireless tower plus an additional $15,000 fee for new towers to be
located in the downtown district;
Portland, Oregon: Conditional use fee of $6,251 or $9,315
(depending on location), plus additional fees for design review,
environmental review, greenway review, and/or historic resource review
that can exceed $20,000 in total; and
Thurston County, Washington: Base application fee of
$25,776 (includes community planning and economic development,
environmental health, and public works development review).
Consulting Fees:
Oyster Bay, New York: Regulation that requires an
applicant to maintain an escrow account with a balance of between
$2,500 and $5,000 to reimburse the town for consultant costs; and
Walkersville, Maryland: Regulation that requires an expert
assistance fee of no less than $7,500 for a new tower, support
structure, or a substantial modification.
Recurring Fees:
Phoenix, Arizona: Annual recurring fees for public rights-
of-way use for macro facilities that range from more than $4,000 to
more than $27,000 depending on the size of ground equipment that is
installed at the site; and
Scottsdale, Arizona: Annual recurring fee for public
rights-of-way use for macro facilities that ranges from more than
$7,000 to more than $30,000 depending on the size of ground equipment
installed.
Gross Revenue Fees:
Ashland, Oregon: Except for limited use telecommunications
grantees, imposing minimum quarterly right-of-way usage fee equaling a
percent of the grantee's gross revenues derived from grantee's
provision of telecommunications services and telecommunications
facilities to retail customers in the City and one percent (1%) on all
other gross revenues derived from grantee's provision of
telecommunications services and telecommunications facilities to
wholesale customers in the City;
Ogden City, Utah: Providing that unless a wireless
provider is subject to the Municipal Telecommunications License Tax
under title 10, chapter 1, part 4 Utah Code Annotated, for the right to
use and occupy the right-of-way the wireless provider shall pay to the
[[Page 55074]]
City an annual fee equal to the greater of: 3.5 percent of all annual
gross revenue related to the wireless provider's use of the right-of-
way within the City or two hundred fifty dollars ($250.00) annually for
each small wireless facility located in the City;
St. George, Utah: Imposing an annual right of way usage
fee equal to the greater of: (1) three and one-half percent (3.5%) of a
wireless provider's gross revenues related to wireless provider's use
of the public way, or (2) two hundred fifty dollars ($250.00) per small
wireless facility; and
Lake Forest, Illinois: Imposing a city telecommunications
infrastructure maintenance fee upon all telecommunications retailers in
the amount of 1.0% of all gross charges charged by the
telecommunications retailer to service addresses within the city for
telecommunications originating or received in the city.
For the four categories of fee regulations provided above we seek
comment on our tentative conclusion that we should preempt these
provisions because these fee regulations prohibit or have the effect of
prohibiting the ability of wireless service providers to provide
covered service. These fees do not appear to represent a reasonable
approximation of the local permitting authority's reasonable costs. For
example, some are assessed at a flat rate and, thus, do not appear to
reflect the specifics of individual applications, such as the
conditions at the particular site or the size and other characteristics
of the proposed facility.
To the extent these fees are applicable to Small Wireless
Facilities, they do not appear to comply with the Commission's safe
harbor fee levels, and are unlikely to be based on the costs associated
with an entity's use of the public rights-of-way. For those that apply
to larger wireless facilities, such as macro towers, the cumulative
effect of these fees on macro towers can constrain providers' capital
budgets and limit their ability to upgrade and improve their networks,
similar to Small Wireless Facilities. Accordingly, we seek comment on
whether we should preempt the local fee regulations listed above for
both Small Wireless Facilities and other wireless facilities as
violating sections 253(a) and 332(c)(7).
Commenters advocating for preemption of such fees should provide
evidence and documentation demonstrating that these fees prohibit or
have the effect of prohibiting covered service and demonstrating that
these fees are not based on the locality's reasonable and actual costs.
Commenters who support these fees should explain why the Commission
should not preempt these fees. They should provide evidence or
documentation that: (1) these fees represent a reasonable approximation
of the locality's costs and that the costs themselves are reasonable;
and (2) that these fees are reasonably related to the management of
public rights-of-way or the fees represent fair and reasonable
compensation on a competitively neutral and nondiscriminatory basis for
use of public rights-of-way.
Are there other local permitting authorities that are imposing
regulatory fees that mirror the fees cited above? If so, commenters
should provide cites to these regulations, explain why the Commission
should preempt these fees, and provide a legal rationale supporting
their position, for example, that the fees are an effective prohibition
of covered services and/or are not fair and reasonable.
Aesthetic Requirements
In 2018, the Commission found that aesthetic regulations for Small
Wireless Facilities significantly impacted the ability to deploy
wireless infrastructure. The Commission stated that ``[l]ike 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 concluded that, to be permissible
under section 332, aesthetic requirements had to be reasonable, no more
burdensome than those applied to other types of infrastructure
deployments, and objective and published in advance.
In City of Portland, the Ninth Circuit upheld the Commission's
ruling that local aesthetic regulations be ``reasonable,'' and left in
place the requirement that such regulations be ``published in
advance.'' The court vacated the requirement that local aesthetic
regulations for Small Wireless Facilities be ``no more burdensome''
than those imposed on ``other types of infrastructure deployments''
because it found this requirement to ``depart[ ] from . . . Section 332
in at least two critical ways.' '' First, the court found that the
Commission's standard did ``not permit even reasonable regulatory
distinctions among functionally equivalent, but physically different
services.'' Second, the Commission's standard ``require[d] the
comparison of the challenged aesthetic regulation of 5G deployments to
the regulation of any other infrastructure deployments, while the
statute only requires a comparison with the regulation of functionally
equivalent infrastructure deployments.''
Against this backdrop, we seek comment on whether the Commission
should clarify what constitutes unreasonable discrimination in the
siting of wireless facilities and whether certain state and local
aesthetic requirements unreasonably discriminate against wireless
facilities. Are such requirements unreasonably limiting the deployment
of wireless infrastructure, including the deployment of Small Wireless
Facilities as well as larger macro towers and other wireless
facilities? Do parties seeking to deploy wireless infrastructure
facilities frequently encounter state or local aesthetic regulations
that unreasonably impose requirements on the deployment of wireless
facilities that are more burdensome than those imposed on functionally
equivalent infrastructure deployments? If so, we ask commenters to
provide specific examples of such requirements and the consequences for
wireless infrastructure deployment.
We also seek comment on the appropriate standard for detecting
unreasonable discrimination and whether to adopt that standard into our
rules. Does the City of Portland decision provide sufficient certainty
about the scope of permissible distinctions in state and local
permitting requirements generally and aesthetic regulations in
particular? What costs and resources would providers need to expend to
make a showing under the Ninth Circuit standard? Are there other
factors that should be considered in determining whether discrimination
is unreasonable in the context of a permitting authority's aesthetic
requirements for wireless infrastructure?
Regulatory Impediments
As we describe below, we continue to have concerns that state and
local authorities are adopting regulations that impede the deployment
of new and high quality services, and thereby could be in violation of
the Telecommunications Act and Commission rules. In this section, we
address the use of siting regulations for the unlawful regulation of
radiofrequency (RF) emissions, the negative impact of conditional use
permits on the provision of service, and the continued imposition of de
facto moratoria by local authorities on wireless providers in violation
of the Commission's Moratoria Order. We also reaffirm our position that
restrictions which prohibit densifying or upgrading wireless networks
result in an effective prohibition of service. Further, we seek comment
on how state and local regulations on AI may be an effective
prohibition on wireless providers'
[[Page 55075]]
ability to provide service using AI technologies.
Setbacks and Radio Frequency Emissions. Our research shows that
some localities adopted ordinances restricting the placement and manner
of infrastructure deployment (e.g., through setback provisions and pole
height requirements) for the purpose of limiting human exposure to RF
emissions. Other localities require that service providers pay for
third-party randomized testing of RF emissions, regardless of whether
there is any objective basis to suspect the tower or antennas may have
become out of compliance with the Commission's RF emissions rules. We
seek comment regarding any additional scenarios of RF emissions
regulation where state and local authorities add barriers to the
deployment of communications facilities. Commenters should provide
descriptions of such barriers and evidence of the material impacts upon
the cost and timing of facility deployment.
The Commission has exclusive authority to set RF emissions limits.
Section 332(c)(7)(B)(iv) specifically prohibits state and local
jurisdictions from regulating deployments based on RF emissions ``to
the extent that such facilities comply with the Commission's
regulations concerning such emissions.'' Accordingly, we seek comment
on whether the Commission should preempt, under sections 253(a) and (d)
and section 332(c)(7)(B)(iv), these specific state and local ordinances
(including setback regulations) as unlawful regulation of RF emissions.
Are there other specific examples of such restrictions that the
Commission should consider preempting? Should the Commission adopt a
rule prohibiting state and local government regulation of RF emissions
which involve setback requirements or establish limits on state and
local requirements for RF testing? We seek comment on additional
actions the Commission can take to prevent the use of state and local
authority to regulate the placement, construction, and modification of
wireless facilities for unlawful purposes such as RF emissions
concerns.
Conditional Use Permits. Outside of the context of facilities
eligible for section 6409 preemptive relief, some states and localities
grant applications to build or install wireless communications
facilities under a conditional use permit (CUP) with conditions,
including time-limited provisions. Under time-limited CUP approvals,
once initial approvals have expired, some localities treat renewals as
opportunities to impose new conditions on previously approved
facilities, resulting in significant costs for service providers. We
seek comment on whether state and local conditional CUPs are
effectively prohibiting the provision of covered services under
sections 253 and 332(c)(7) when they apply to facilities that not are
eligible for preemptive relief under section 6409.
In Ventura County, California, for example, providers requesting
permit extensions must ``replace or upgrade existing equipment when
feasible to reduce the facility's visual impacts and improve land use
compatibility.'' In Carlsbad, California, upon a request for an
extension of a CUP, the city will review whether the existing
facility's design continues to meet certain criteria. Do state and
local CUPs and regulations relating to the extension of such permits,
like the examples here, result in the effective prohibition of the
provision of covered service? How frequently do localities change the
permitting requirements and what are the costs to service providers and
tower owners of these changes? What are some examples of new conditions
that localities have imposed at CUP renewals? Are infrastructure
providers being required to change the design of their facilities to
accommodate the locality's updated aesthetic preferences? Do the
unpredictable costs of CUP renewal requirements discourage the
deployment of needed infrastructure?
Are the burdens associated with these types of provisions
significant enough to warrant Commission preemption under section
253(d)? We seek comment on whether we should preempt the specific local
regulations listed above and whether they prohibit or have the effect
of prohibiting covered service. If we preempt state and local CUP
regulations, how can we ensure that the range of preempted conditions
is tailored to avoid broadly preempting CUPs altogether? For example,
should we preempt durational limitations? Should we permit durational
limitations only if changes in permit conditions are limited to
legitimate safety concerns and do not include new aesthetic limitations
on existing facilities? Should we permit new conditions to be imposed
on previously approved facilities when a natural disaster has altered
the terrain thereby requiring the new condition? Alternatively, or in
addition to preemption under section 253(d), should the Commission
adopt a rule addressing CUPs and the scope of appropriate renewal
conditions?
Moratoria. In its 2018 Moratoria Order, the Commission concluded
that ``state and local moratoria on telecommunications services and
facilities deployment are barred by section 253(a) of the
Communications Act because they `prohibit or have the effect of
prohibiting the ability of any entity to provide any interstate or
intrastate telecommunications service.' '' The Declaratory Ruling gave
a brief summary of ways in which state and local governments impose
moratoria on construction, and found that moratoria fall into two
categories, express and de facto, both of which are presumptively
prohibited under section 253(a). Express moratoria are those
restrictions ``that expressly, by their very terms, prevent or suspend
the acceptance, processing, or approval of applications or permits
necessary for deploying telecommunications services and/or
facilities.'' De facto moratoria are state and local actions ``not
formally codified by state or local governments as outright
prohibitions but . . . by their operation, prohibit or have the effect
of prohibiting deployment of telecommunications services and/or
telecommunications facilities.'' The difference between de facto
moratoria and state and local actions that simply result in delay is
one of degrees. An action becomes a de facto moratorium when it results
in delay that is so unreasonable or indefinite that it discourages the
filing of applications or prevents carriers from deploying facilities.
Despite the Commission's adoption of the Small Cell Order and the
Moratoria Order, state and local governments continue to engage in the
practice of moratoria. For example, temporary bans on 5G deployments
have been adopted by Keene, NH, Hawaii County, HI, and Easton, CT.
Although not a ban, Farragut, TN passed a resolution asking states and
the federal government to take the lead in halting 5G deployments until
the FCC conducts a study of the possible health risks of 5G. We seek
comment on whether these local ordinances meet the existing definition
of moratoria or otherwise violate section 253(a) and section 332(c)(7)
because they appear to prohibit or have the effect of prohibiting
wireless service and do not appear to meet the requirements of section
253(b) and (c). We ask commenters to provide additional information
about whether express or de facto moratoria continue to exist in state
or local ordinances. For example, do localities impose setbacks of such
size or frequency that they function as de facto moratoria?
If these specific resolutions remain in effect, should we preempt
these resolutions under section 253(d)? Are there other examples of
resolutions we should consider preempting? Should
[[Page 55076]]
the Commission address either de facto or express moratoria through
adoption of rules? What other actions should the Commission take to
address the continued existence of these moratoria?
Deployment and Densification of New and High Quality Services. The
continued deployment of new and high quality services is a cornerstone
of the Communications Act and integral to the provision of
telecommunications services. When Congress comprehensively amended the
Communications Act in the Telecommunications Act of 1996 (1996 Act) and
adopted sections 253 and 332(c)(7), its stated goal was to promote
competition, improve service quality, and enable the rapid deployment
of new technologies. Section 706(a) of the 1996 Act, which exhorts the
Commission to ``encourage the deployment on a reasonable and timely
basis of advanced telecommunications capability to all Americans,''
informs the Commission's exercise of its statutory authority under
sections 253 and 332(c)(7).''
5G is the fastest growing segment of the wireless industry and
these 5G networks integrate voice services as well as new and evolving
services such as video, mobile gaming, and telehealth. Consequently,
service providers need to continue to grow their network capacity to
meet demand. However, there are a limited number of ways to increase
capacity: acquire more spectrum; develop and deploy more advanced and
efficient technology; or, reuse existing spectrum through network
densification. Spectrum is a finite resource with many users and use
cases, each with unique demands. And while technological advancements
in efficient network management are vital, they are unpredictable.
Therefore, in a spectrum constrained environment, densification, which
permits the efficient reuse of spectrum, is more important than ever to
satisfy increasing demand.
It is with this context that we turn to the preemption provisions
of the Communications Act in the context of deployment densification
and enhanced capacity for covered services. Under sections 253 and
332(c)(7), state and local laws may not ``prohibit or have the effect
of prohibiting the provision of'' telecommunications services or
personal wireless services. At the core of providing new and high
quality services is the need to densify networks. Here, the term
``densification'' refers to the build-out of facilities in support of
5G services. Such services are reliant upon the siting of additional
antennas, including macro sites and small wireless facilities, that can
transmit frequency signals that travel short distances and efficiently
reuse finite spectrum resources to provide higher bandwidth
applications. Densification enhances capacity and speed, which are
necessary to manage growing network congestion. A local regulation
blocking or delaying network deployments that provide access to new and
high quality services does not merely govern the ``placement'' of
antennas, it prevents the provision of the level of service Congress
intended the Communications Act to protect. It follows, then, that
section 253's and 332(c)(7)'s preemption of local measures that
effectively prohibit the provision of covered service must necessarily
protect a provider's right to upgrade their network through
densification in order to ensure the continued provision of high
quality telecommunications services and personal wireless services.
Jurisdictions that prohibit densification--for example, by
requiring that a coverage gap exists--overlook that 5G is a different
technology with unique features and benefits that make it well-suited
to meet demands for modern communications. Preventing the densification
of 5G networks can have a significant effect on the functionality of
telecommunications and personal wireless services, which are integrated
on 5G devices. Indeed, access to these new technologies are central to
public safety and emergency services such as transmission of 911 calls
or other emergency traffic when a network is congested or service is at
least partially disrupted. 5G networks can provide critical
communications needs--including better call reliability and management
of network congestion--for first responders during tragic events such
as natural disasters or mass shootings when communications needs surge
and time is of the essence. While prior generations of wireless
technology may become overloaded in such circumstances--leading to
audio distortions, delays in connecting calls, or dropped calls--5G
networks can minimize or eliminate these problems and help people reach
first responders and family members during emergencies. State and local
restrictions that prevent densification can pose a real and substantial
risk to public safety. In a technology-driven sector, the inability to
timely densify a network can lead to network degradation and can
effectively prohibit these important covered services.
We propose to affirm our long-standing understanding that state and
local regulations that prevent the densification of a network can be an
effective prohibition of covered services. We seek comment on whether
we should codify in our rules that an effective prohibition occurs
where a state or local requirement prevents a service provider from
improving its service capabilities (such as coverage, capacity, speed,
latency, and/or reliability) or introducing new services. What types of
limits could state or local governments place on the densification of a
network without undermining the statutory goals of protecting against
network degradation or ensuring access to new or upgraded services?
Should the Commission adopt presumptions about what would suffice to
avoid violating sections 253 and 332(c)(7)?
Our research shows that some localities continue to consider
factors that prevent the densification of networks. We seek comment on
whether the Commission should preempt these regulations under section
253(a) and (d). We also seek assistance in identifying other instances
where state and local regulations have the effect of preventing
carriers from meeting evolving consumer demands. What consumer uses are
prevented or limited by state and local restrictions on densification?
Could state and local limits on densification inhibit or slow progress
in building wireless networks capable of supporting advanced
technologies beyond 5G? Are there state or local regulatory limitations
on wireless network deployment that otherwise could inhibit U.S.
leadership in evolving technologies like artificial intelligence or
future technologies like 6G? And how might those inhibitions affect the
functionality of telecommunications and personal wireless services? Are
there additional actions we should consider to help implement the
Communications Act's goals regarding competition, service quality, and
rapid deployment of new technologies and covered services while taking
into account the role that Congress intended for state and local
authorities?
Artificial Intelligence. Mobile network operators use AI
technologies to help manage and optimize the performance of their
networks. In seeking to leverage these technologies, providers
increasingly face a complex landscape of state and local regulations on
AI. We seek comment on whether state and local regulations addressing
the use of AI may be an effective prohibition on wireless providers'
ability to provide covered service using AI technologies.
In July 2025, the White House released ``Winning the Race-America's
AI Action Plan'' (AI Action Plan) aimed at ensuring U.S. leadership in
AI technology development. The AI Action Plan directs the Commission to
[[Page 55077]]
``evaluate whether state AI regulations interfere with the agency's
ability to carry out its obligations and authorities under the
Communications Act of 1934.'' In particular, the Commission is
responsible for implementing the Communications Act, including the
deployment of higher quality service and new technologies for American
telecommunications consumers. Congress also directed the Commission to
ensure the efficient and intensive use of the electromagnetic spectrum.
Accordingly, we seek comment on ways AI tools are, or may be, used
in communications networks to provide higher quality service and ensure
the efficient and intensive use of the electromagnetic spectrum for the
public benefit. Similarly, we seek comment on how state and local
regulations on AI are, or have the effect of, impeding the advancement
of telecommunications and personal wireless service. We also request
that commenters provide legal theories on how the Commission has
authority under sections 253 and 332(c)(7) to preempt these state and
local AI regulations.
We ask commenters to provide information about state and local AI
regulations that prohibit or have the effect of prohibiting the
provision of covered wireless services, including specific examples
that may limit providers' ability to use AI tools to improve the
efficiency and quality of covered services. Are these rules overly
broad and difficult to implement, and might they prevent deployment of
AI infrastructure?
Expedited Processes for Resolving Permitting Disputes
Significant litigation at the state and local level continues to
impede the Congressional mandate of promoting a pro-competitive, de-
regulatory national policy that accelerates private sector deployment
of advanced telecommunications and information technologies and service
to all Americans. Litigation is notoriously costly and time consuming.
Delays caused by litigation diminish American consumers' access to
advanced telecommunications and take a toll in the form of lost
economic and educational opportunities and productivity, the ability to
communicate, and even harms to health and safety. Conscious of these
effects, we seek comment on whether there is a role for the Commission
to play in reducing litigation in the implementation of sections 253
and 332(c)(7) through alternative dispute resolution procedures to
resolve disagreements between permitting authorities and siting
applicants. Are there models within the Commission already that offer a
template for developing this option for permitting authorities and
applicants?
For example, what can be learned or adapted from the Market
Disputes Resolution Division of the Enforcement Bureau, which serves an
adjudicatory role in resolving formal complaints against common
carriers and utility pole owners that are filed by industry
participants, entities, or other organizations? What might be learned
or adapted from the structure, operation, and experience of the Rapid
Broadband Assessment Team (RBAT), which is a joint initiative of the
Wireline Competition Bureau and the Enforcement Bureau, to efficiently
and effectively resolve broadband-related pole attachment disputes?
Should the Commission create a process that is non-public similar to
RBAT to encourage participation?
Along these lines, should the Commission create an accelerated
process or ``rocket docket'' to resolve disputes under section 253(d)?
Section 253(d) authorizes the Commission to preempt any statute,
regulation, or legal requirement--after notice and opportunity for
public comment--if it determines that the requirement violates section
253(a) or (b). We seek comment on creating an expedited process whereby
applicants could submit petitions of disputes involving state or local
legal requirements that may violate 253(a) or (b). Would such a process
help reduce costly litigation and expedite permitting in a manner
consistent with the Communications Act?
We seek comment on the Commission's legal authority to help resolve
infrastructure siting disputes between permitting authorities and
applicants for permits to deploy communications infrastructure. How can
the Commission encourage the use of internal procedures and processes,
whether through its bureaus or offices or through other institutions
that offer these services? Are there any other approaches or
alternatives the Commission should consider to facilitate the
resolution of infrastructure siting disputes?
Procedural Matters
Ex Parte Rules. This proceeding shall be treated as a ``permit-but-
disclose'' proceeding in accordance with the Commission's ex parte
rules. Persons making ex parte presentations must file a copy of any
written presentation or a memorandum summarizing any oral presentation
within two business days after the presentation (unless a different
deadline applicable to the Sunshine period applies). Persons making
oral ex parte presentations are reminded that memoranda summarizing the
presentation must (1) list all persons attending or otherwise
participating in the meeting at which the ex parte presentation was
made, and (2) summarize all data presented and arguments made during
the presentation. If the presentation consisted in whole or in part of
the presentation of data or arguments already reflected in the
presenter's written comments, memoranda, or other filings in the
proceeding, then the presenter may provide citations to such data or
arguments in his or her prior comments, memoranda, or other filings
(specifying the relevant page and/or paragraph numbers where such data
or arguments can be found) in lieu of summarizing them in the
memorandum. Documents shown or given to Commission staff during ex
parte meetings are deemed to be written ex parte presentations and must
be filed consistent with 47 CFR 1.1206(b). In proceedings governed by
47 CFR 1.49(f), or for which the Commission has made available a method
of electronic filing, written ex parte presentations and memoranda
summarizing oral ex parte presentations, and all attachments thereto,
must be filed through the electronic comment filing system available
for that proceeding and must be filed in their native format (e.g.,
.doc, .xml, .ppt, searchable .pdf). Participants in this proceeding
should familiarize themselves with the Commission's ex parte rules.
Initial Regulatory Flexibility Analysis
As required by the Regulatory Flexibility Act of 1980, as amended
(RFA), the Federal Communications Commission (Commission) has prepared
this Initial Regulatory Flexibility Analysis (IRFA) of the policies and
rules proposed in the NPRM. The Commission requests written public
comments on this IRFA. Comments must be identified as responses to the
IRFA and must be filed by the deadlines for comments specified on the
first page of the NPRM. The Commission will send a copy of the NPRM,
including this IRFA, to the Chief Counsel for Advocacy of the Small
Business Administration (SBA). In addition, the NPRM and IRFA (or
summaries thereof) will be published in the Federal Register.
D. Need for and Objectives of the Proposed Rules
In the NPRM, the Commission proposes to revise its rules
implementing section 6409 of the
[[Page 55078]]
Spectrum Act of 2012 and sections 332(c)(7) and 253 of the
Communications Act of 1934, as amended by the Telecommunications Act of
1996, to further streamline the wireless permitting process and
facilitate the rapid buildout of wireless infrastructure. Specifically,
the NPRM proposes and seeks comment on revising Sec. 1.6100(b)(7)(v)
and (vi) of the Commission's rules regarding concealment elements and
siting conditions, respectively, in order to formally codify the
clarifications made in the 2020 Declaratory Ruling. The NPRM proposes
to codify the guidance and examples the Commission provided in the 2020
Declaratory Ruling, to illustrate how the rule revisions would operate
in practice. The NPRM also seeks comment on whether to adopt new rules
to ensure that state and local permitting regulations do not prohibit
or have the effect of prohibiting the deployment of wireless
infrastructure facilities pursuant to sections 253 and 332(c)(7) of the
Communications Act. Specifically, the NPRM seeks comment on state and
local permitting regulations that: inhibit the deployment of macro cell
towers and other wireless facilities, impose unreasonable delays on
permitting approvals, assess disproportionate or otherwise unreasonable
fees, condition approval on aesthetic requirements or similar criteria,
and impose other regulatory impediments. The NPRM seeks comment on
whether to adopt new rules codifying the protections of the
Communications Act for service providers to densify and upgrade their
networks. The NPRM seeks comment on whether to adopt new rules
preempting state and local regulations that violate provisions of the
Communications Act. In addition, it seeks comment on whether the
Commission should consider implementing alternative dispute resolution
procedures to facilitate the resolution of permitting disputes. The
Commission wishes to ensure that all state and local permitting
regulations that address the deployment of wireless infrastructure are
consistent with the requirements of sections 6409 of the Spectrum Act
and 253 and 332(c)(7) of the Communications Act, the legislative intent
of Congress, and do not prohibit or effectively prohibit the provision
of telecommunications service.
Section 6409. The NPRM proposes to revise Sec. 1.6100(b)(7)(v) of
the Commission's rules to define concealment elements as elements of a
stealth-designed facility intended to make the facility look like
something other than a wireless tower or base station and to provide
that a proposed modification would defeat a concealment element if it
would cause a reasonable person to view the structure's intended
stealth design as no longer effective after the modification. Next, the
NPRM proposes to revise Sec. 1.6100(b)(7)(vi) of the Commission's
rules to clarify that neither an aesthetics-related condition nor any
other condition designed to address the visual impact of a facility may
be used to prevent modifications specifically allowed under Sec.
1.6100(b)(7)(i) through (iv) of the rules. The Commission proposes
these revisions to help reduce permitting disputes, which in turn would
promote expedited deployments.
Additionally, the NPRM seeks comment on amending Sec. 1.6100 of
the Commission's rules to address the relationship between time-limited
conditional use permits (CUPs) and section 6409(a) of the Spectrum Act.
Some jurisdictions have ordinances that require tower owners to renew
wireless tower facility permits after 10 years. In some cases, the
local governments have imposed new conditions on permit renewals for
deployments that were previously found to be eligible facilities
requests under section 6409(a). The NPRM seeks comment on whether the
Commission should adopt a rule that clarifies that, once a particular
deployment is found to be an eligible facilities request and the permit
is granted by a state or local jurisdiction, the state or local
jurisdiction may not seek to impose new conditions when reviewing the
deployment as part of a permit renewal process. The NPRM seeks comment
on whether such ordinances that impact eligible facilities requests
conflict with section 6409(a).
Sections 332(c)(7) and 253. The NPRM seeks comment on whether to
extend any of the Small Cell Order reforms or any other measures the
Commission may adopt in this proceeding to macro cell towers and other
wireless facilities. While the Small Cell Order focused on state and
local permitting requirements that impact the installation of Small
Wireless Facilities, the Commission is equally interested in ensuring
the timely buildout of macro cell towers and other wireless facilities,
and removing regulatory obstacles that may unlawfully delay these
buildouts. The Commission also seeks comment on how and whether to
clarify the definition of a macro cell tower, and comment on what state
or local permitting issues commonly delay the buildout of macro cell
and other wireless facility deployments.
Next, the NPRM addresses issues associated with its shot clock
rules. The Commission initially adopted shot clock rules in its 2009
Declaratory Ruling, finding that unreasonable delays in the siting
process ``impede[d] the promotion of advanced services and competition
that Congress deemed critical to the Telecommunications Act of 1996,''
it established a defined time period or ``shot clock'' framework to
effectuate the ``reasonable period of time'' provision of section
332(c)(7)(B)(ii). This shot clock approach was intended to provide
clarity and a degree of certainty both to the applicants for siting
permits as well as to state and local permitting authorities. In the
Small Cell Order, the Commission adopted a new set of shot clocks
calibrated to the unique features of Small Wireless Facilities. The
Commission adopted a presumptive 60-day shot clock for reviewing Small
Wireless Facility collocations and a presumptive 90-day shot clock for
Small Wireless Facilities to be attached to a newly constructed
structure. The Commission also codified the presumptive 90-day and 150-
day shot clocks developed in the 2009 Declaratory Ruling, for a total
of four shot clocks. The shot clock rules preserved a siting agency's
ability to rebut the presumptive reasonableness of any of the
applicable shots clocks based on a specific situation. The NPRM seeks
comment on how well the shot clocks codified in the Commission's rules
have helped expedite the delivery of advanced communications services.
It also seeks comment on whether further refinement through a broader
number of shot clocks for specific scenarios is warranted.
The Commission also previously codified its determination in the
Wireless Infrastructure Order that a shot clock begins to run when an
application is submitted, not when it is deemed complete by the
permitting authority. The NPRM seeks comment on how well the
notification of incompleteness feature of the shot clock framework is
functioning as a means to remove complications in the smooth processing
of incomplete applications.
Regarding remedies for shot clock violations, the Commission
determined violations of the shot clocks for Small Wireless Facilities
constitute not only a section 332(c)(7)(B)(v) ``failure to act,'' but
also a ``presumptive prohibition on the provision of personal wireless
services within the meaning of section 332(c)(7)(B)(i)(II).'' The
Commission noted that ``there may be merit'' to a ``deemed granted''
remedy but it declined to adopt this remedy because it determined that
the shot clock
[[Page 55079]]
framework that it had codified ``should address the concerns raised by
a `deemed granted' remedy.'' The Commission also indicated that if its
approach ``proves insufficient'' it may again consider adopting a
deemed granted approach. The NPRM seeks comment on whether shot clocks
are preventing unreasonable delay or whether the Commission should
reconsider its prior decision not to adopt a deemed granted remedy.
Next, the NPRM addresses issues associated with fees imposed by
state and local permitting authorities to process permit applications.
In the Small Cell Order and the Verizon Clark County Dismissal Order,
the Commission explained that localities have the burden of proving the
reasonableness of their fees, and that fees for use of a right-of-way
can constitute an effective prohibition of service. The NPRM seeks
comment on state and local fees. Service providers continue to face a
range of state and local fees that may increase unpredictably over the
course of a project. These state and local fees take the form of
initial one-time fees, annual recurring fees, and gross revenue fees.
The NPRM seeks comment on whether to preempt a number of local
regulations that impose these types of fees as prohibiting or having
the effect of prohibiting service under sections 253(a) and 332(c)(7)
and also seeks comment on preempting the fee regulations of other local
permitting authorities whose fees mirror those described in the NPRM.
The NPRM seeks comment on whether to preempt the fee regulations listed
in the NPRM both for Small Wireless Facilities and other larger
facilities as violating sections 253(a) and 332(c)(7). The NPRM also
seeks comment on whether the Commission should take additional steps to
address fees including whether to adopt rules codifying the fee
guidance of the Small Cell Order and the Verizon Clark County Dismissal
Order and whether to extend application of the previous clarifications
on fees to macro and other wireless facilities.
Next, the NPRM seeks comment on how state and local aesthetic
requirements are affecting the deployment of wireless infrastructure.
In the Small Cell Order, the Commission found that that ``[l]ike 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 concluded that, to be permissible
under section 332(c)(7), aesthetic requirements had to be reasonable,
no more burdensome than those applied to other types of infrastructure
deployments, and objective and published in advance.
In City of Portland, the Court of Appeals for the Ninth Circuit
upheld most of the Small Cell Order, but vacated the requirement that
local aesthetic regulations for Small Wireless Facilities be ``no more
burdensome'' than those imposed on other technologies, finding that
this requirement was not consistent with the ``more lenient statutory
standard that regulations not `unreasonably discriminate.' '' The court
also found that the requirement that local aesthetic regulations be
``objective'' was ``neither adequately defined nor its purpose
adequately explained.'' The court held that section 332(c)(7)(B)(i)(I)
of the Communications Act ``permits some difference in the treatment of
different providers, so long as the treatment is reasonable'' and that
to ``establish unreasonable discrimination, providers `must show that
they have been treated differently from other providers whose
facilities are similarly situated in terms of the structure, placement
or cumulative impact as the facilities in question.' ''
In response to this decision, the NPRM seeks comment on whether the
Commission should revisit the issue of what constitutes unreasonable
discrimination in the siting of wireless facilities, and in particular,
whether certain state and local aesthetic requirements unreasonably
discriminate against wireless facilities. The NPRM also seeks comments
on whether the City of Portland decision addressing the meaning of
``unreasonable discrimination'' under section 332(c)(7) provides
sufficient certainty about the scope of permissible distinctions in
state and local permitting requirements generally and aesthetic
regulations, in particular. The NPRM asks whether additional guidance
is needed with regard to the scope of permissible aesthetic
regulations, and whether the Commission should codify the test
articulated by the 9th Circuit, into its rules.
Next, the NPRM addresses state and local regulations associated
with radiofrequency (RF). Although any RF-based state or local wireless
infrastructure deployment restrictions are explicitly prohibited by
section 332(c)(7)(B)(iv) of the Communications Act, the Commission
finds that state and local authorities continue to adopt such
regulations--particularly within the context of local setback
restrictions for siting wireless communications facilities. The NPRM
seeks comment on whether the Commission should adopt rules to address
this practice of some state and local permitting authorities. The NPRM
also seeks comment on whether the Commission should preempt these types
of regulations, and the Commission's legal authority for doing so.
Next, the NPRM seeks comment on the impact of conditional use
permits on the rapid deployment of wireless infrastructure. The
Commission has found that numerous localities impose conditional use
permits on tower builders with strict durational limits. When the
duration of the permit is over, the permit renewal process may require
expensive changes to or complete removal of the already constructed
infrastructure. These permits inject uncertainty into the network
planning process and impose large costs on tower builders and service
providers. The NPRM also seeks comment on whether the Commission should
take action to preempt state and local conditional use permits under
section 253(d) of the Communications Act. In the alternative, the
Commission seeks comment on whether to adopt a rule narrowing the scope
of conditional use permits in order to limit unlawful conditional use
permits.
Next, the NPRM considers the persistence of state and local
authorities imposing moratoria on the buildout of wireless
infrastructure. Despite the Commission stating in the Moratoria Order
that moratoria are barred by section 253(a) of the Communications Act
because they effectively prohibit the ability of any entity to provide
telecommunication services, state and local governments continue to
engage in the practice of moratoria. The NPRM seeks comment on whether,
pursuant to section 253(d), to preempt local ordinances banning 5G
equipment. It also seeks comment on what further actions the Commission
can take to address the phenomenon of de facto moratoria.
Next, the NPRM addresses the issue of network upgrades and
densification. It is the stated purpose of the Telecommunications Act
to promote competition, improve service quality, and to enable the
rapid deployment of new technologies. The Act contains several
provisions to advance this goal including section 706 which imposes on
the Commission an affirmative duty to ``encourage the deployment on a
reasonable and timely basis of advanced telecommunications capability
to all Americans,'' and section 332(c)(7)(B)(i)(II) which provides that
state and local regulations may not have the effect of prohibiting the
provision of
[[Page 55080]]
wireless service. In the Small Cell Order, the Commission clarified
that, consistent with the intent of Congress in passing the
Communications Act to promote the rapid deployment of new technologies,
state and local regulations that prevent service providers from
upgrading their networks or densifying their networks constitute an
effective prohibition of service. Despite this, numerous jurisdictions,
not recognizing that 5G networks are a new technology with distinct
network infrastructure needs, continue to prevent service providers
from densifying or upgrading their networks where an outdated legacy
network already exists. The NPRM seeks to affirm the Commission's
historic understanding that state and local regulations that prevent
the densification of a network can be an effective prohibition of
protected services. The NPRM also seeks comment on whether to codify
within our rules that state and local restrictions that prohibit the
densification and upgrading of existing networks constitute an
effective prohibition of service under sections 332(c)(7) and 253(a) of
the Communications Act, and seek comment on what presumptions the
Commission can adopt to preserve state and local authority while still
protecting the right of providers to densify and upgrade their
networks. The NPRM seeks comment on whether the Commission should
preempt restrictions that prohibit the upgrading and densification of
networks under sections 253(a) and (d).
In the NPRM, in order to ensure Americans' have access to high
equality services and the latest technology, the Commission asks
commenters to identify ways in which AI tools are used in
communications networks. The NPRM further requests comment on how state
and local regulations on AI are, or have the effect of, impeding the
advancement of telecommunications and personal wireless service. The
NPRM also requests that commenters provide legal theories on how the
Commission has authority under sections 253 and 332(c)(7) to preempt
these state and local AI regulations.
Finally, the NPRM turns its attention to whether, in order to
reduce costly litigation and to accelerate permitting, the Commission
should explore alternative dispute resolution procedures that could
facilitate the resolution of disagreements between permitting
authorities and siting applicants and seeks comment on what a
successful alternative dispute resolution might look like. The NPRM
also seeks comment on how permitting disputes could be put on an
Accelerated Docket for resolution. In addition, the NPRM seeks comment
on whether the Commission has legal authority to engage in facilitating
infrastructure siting disputes between permitting authorities and
applicants for permits to deploy communications infrastructure.
These proposed revisions will satisfy Congress's intent and meet
the Commission's statutory responsibility to enhance regulatory
certainty, reduce disputes and litigation in the permitting process,
and facilitate deployment of 5G and other advanced wireless services
throughout the country in a competitive marketplace for the advantage
all Americans.
E. Legal Basis
The proposed action is authorized 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 sections 6003 and 6409 of the Middle Class Tax
Relief and Job Creation Act of 2012, as amended, 47 U.S.C. 151, 154(i)-
(j), 157, 201, 253, 301, 303, 309, 319, 332, 1403, 1455(a).
F. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
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 under the Small
Business Act. 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.
Our actions, over time, may affect small entities that are not
easily categorized at present. We therefore describe three broad groups
of small entities that could be directly affected by our actions. In
general, a small business is an independent business having fewer than
500 employees. These types of small businesses represent 99.9% of all
businesses in the United States, which translates to 34.75 million
businesses. Next, ``small organizations'' are not-for-profit
enterprises that are independently owned and operated and not dominant
their field. While we do not have data regarding the number of non-
profits that meet that criteria, over 99 percent of nonprofits have
fewer than 500 employees. Finally, ``small governmental jurisdictions''
are defined as cities, counties, towns, townships, villages, school
districts, or special districts with populations of less than fifty
thousand. Based on the 2022 U.S. Census of Governments data, we
estimate that at least 48,724 out of 90,835 local government
jurisdictions have a population of less than 50,000.
The actions taken in the NPRM will apply to small entities in the
industries identified in the chart below by their six-digit North
American Industry Classification System codes and corresponding SBA
size standard.
----------------------------------------------------------------------------------------------------------------
% Small
Regulated industry NAICS SBA size standard Total Small firms in
code firms firms industry
----------------------------------------------------------------------------------------------------------------
All Other Information Services... 519190 1,500 employees................ 704 556 78.98
All Other Telecommunications..... 517810 $40 million.................... 1,079 1,039 96.29
Cable and Other Subscription 515210 $47 million.................... 378 149 39.42
Programming.
Media Streaming Distribution 516210 $47 million.................... 6,417 5,710 88.98
Services, Social Networks, and
Other Media Networks and Content
Providers.
Radio and Television Broadcasting 334220 1,250 employees................ 656 624 95.12
and Wireless Communications
Equipment Manufacturing.
Satellite Telecommunications..... 517410 $47 million.................... 275 242 88.00
Telecommunications Resellers..... 517121 1,500 employees................ 1,386 1,375 99.21
Wired Telecommunications Carriers 517111 1,500 employees................ 3,054 2,964 97.05
Wireless Telecommunications 517112 1,500 employees................ 2,893 2,837 98.06
Carriers (except Satellite).
----------------------------------------------------------------------------------------------------------------
[[Page 55081]]
Based on currently available U.S. Census data regarding the
estimated number of small firms in each identified industry, we
conclude that the adopted rules will impact a substantial number of
small entities. Where available, we provide additional information
regarding the number of potentially affected entities in the above
identified industries, and information for other affected entities, as
follows.
2024 Universal Service Monitoring Report Telecommunications Service Provider Data
[Data as of December 2023]
----------------------------------------------------------------------------------------------------------------
SBA size standard (1,500 employees)
-----------------------------------------------
Affected entity Total # FCC
form 499A Small firms % Small
filers entities
----------------------------------------------------------------------------------------------------------------
Competitive Local Exchange Carriers (CLECs)..................... 3,729 3,576 95.90
Incumbent Local Exchange Carriers (Incumbent LECs).............. 1,175 917 78.04
Interexchange Carriers (IXCs)................................... 113 95 84.07
Local Exchange Carriers (LECs).................................. 4,904 4,493 91.62
Local Resellers................................................. 222 217 97.75
Other Toll Carriers............................................. 74 71 95.95
Prepaid Card Providers.......................................... 47 47 100.00
Toll Resellers.................................................. 411 398 96.84
Telecommunications Resellers.................................... 633 615 97.16
Wired Telecommunications Carriers............................... 4,682 4,276 91.33
Wireless Telecommunications Carriers (except Satellite)......... 585 498 85.13
----------------------------------------------------------------------------------------------------------------
Broadband Internet Access Providers
[Internet Access Services Report: Status as of June 30, 2024]
------------------------------------------------------------------------
Number of providers of
Affected entity connections over 200 kbps
in at least one direction
------------------------------------------------------------------------
Wired Broadband Internet Access Service 2,204
Providers (Wired ISPs)....................
Wireless Broadband Internet Access Service 1,209
Providers (Wireless ISPs or WISPs)........
------------------------------------------------------------------------
G. Description of Economic Impact and Projected Reporting,
Recordkeeping, and Other Compliance Requirements for Small Entities
The RFA directs agencies to provide a description of the projected
reporting, recordkeeping and other compliance requirements of the
proposed rule, including an estimate of the classes of small entities
which will be subject to the requirement and the type of professional
skills necessary for preparation of the report or record. At this time,
the we do not believe that the proposed rules in the NPRM, if adopted,
will create any new reporting, recordkeeping, or other compliance
requirements for small and other entities preparing eligible facilities
requests under sections 6409(a), 253, or 332(c)(7) as entities are
already required to submit construction proposals outlining the work to
be done regardless of whether the project qualifies as an eligible
facilities request under sections 6409(a), 253, and 332(c)(7). In
addition, for these reasons we do not anticipate that any action we
take on the matters raised in the NPRM will require small entities to
hire additional attorneys, engineers, consultants, or other
professionals to comply with the proposed revised rules.
We anticipate that the proposed rule changes on which the NPRM
seeks comment would help reduce the economic impact on small entities
that may need to deploy wireless infrastructure by reducing the cost
and delay associated with the deployment of such infrastructure and by
reducing costly litigation. To assist the Commission in its evaluation
of the economic impact on small entities, and of the proposed rule
changes generally, and to better explore options and alternatives, the
NPRM asks small entities to discuss any benefits or drawbacks
associated with making the proposed rule changes in their comments. The
Commission expects to consider more fully the economic impact on small
entities following its review of comments filed in response to the
NPRM, including costs and benefits information.
H. Discussion of Significant Alternatives Considered That Minimize the
Significant Economic Impact on Small Entities
The RFA directs agencies to provide a description of any
significant alternatives to the proposed rules that would accomplish
the stated objectives of applicable statutes, and minimize any
significant economic impact on small entities. The discussion is
required to include alternatives such as: ``(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 rules for such small entities; (3) the
use of performance rather than design standards; and (4) an exemption
from coverage of the rule, or any part thereof, for such small
entities.
The NPRM seeks comment on proposed changes to the Commission's
existing rules implementing section 6409(a) of the Spectrum Act and
sections 253 and 332(c)(7) of the Communications Act, as well as
adopting new rules implementing sections 253 and 332(c)(7) of the
Communications Act. The purpose of these changes is to reduce economic
impact and regulatory burden on small entities and other applicants. In
this regard, the NPRM seeks comment on
[[Page 55082]]
different approaches or alternatives the Commission might take in
streamlining compliance with section 6409(a) of the Spectrum Act and
sections 253 and 332(c)(7) of the Communications Act. For instance, the
Commission may adopt rules implementing section 6409(a) of the Spectrum
Act and sections 253 and 332(c)(7) of the Communications Act
establishing that, once a particular deployment is found to be an
eligible facilities request and the permit is granted by a state or
local jurisdiction, that state or local jurisdiction may not seek to
impose new conditions when reviewing the deployment as part of a permit
renewal process. The Commission is also evaluating whether to adopt a
deemed granted remedy for violations of its shot-clock rules, and
whether to codify rules that state and local restrictions that prohibit
the densification and upgrading of existing networks constitute an
effective prohibition of service prohibited under sections 253(a) and
332(c)(7) of the Communications Act.
In the NPRM, the Commission also seeks comment on proposals to
revise the concealment elements and siting conditions provisions of
Sec. 1.6100 of its rules to provide more clarity to parties involved
in the process of obtaining local approval for siting of wireless
infrastructure and to enable small entities and others to navigate the
permitting process more effectively. In making its determinations for
the proposed rules in the NPRM, the Commission considered alternatives
intended to minimize significant economic impact on small entities. For
example, we considered other potential changes to the application
review process, such as timeframes for review, that would help clarify
and expedite the process and thereby reduce economic burdens on small
entities seeking to comply with the revised rules that are ultimately
adopted. In developing the proposed rule revisions for concealment
elements, we considered to what extent disputes about concealment
elements had on efforts to deploy wireless infrastructure and what
other approaches could be considered. Lastly, regarding the proposed
rule revisions for siting conditions, we considered factors such as the
time to complete deployment, cost impacts, and the potential delays in
satisfying coverage demand and/or enhancements for consumers.
The NPRM seeks comment on whether to revise existing rules and/or
adopt new rules under sections 253 and 332(c)(7) of the Communications
Act to protect the rights of service providers to densify and upgrade
their networks, to establish a ``deemed granted'' remedy for shot-clock
violations, and to prohibit fees that constitute an effective
prohibition of service or otherwise violate the guidance of the Small
Cell Order. It seeks comment on whether to offer clarifying guidance on
the meaning of ``unreasonable discrimination'' under section 332 of the
Communications Act. The NPRM also seeks comment on whether to preempt
under sections 253(a) and (d) and section 332(c)(7)(B)(iv) of the
Communications Act state and local regulations predicated on RF
emissions, ordinances that permit or require the use of conditional use
permits, and ordinances or resolutions that impose moratoria on the
buildout of wireless infrastructure. In the alternative, the Commission
seeks comment on whether to adopt a rule narrowing the scope of
conditional use permits in order to limit conditional use permit abuse.
The NPRM seeks comment on (1) whether to preempt a number of local
regulations that impose certain fees on applicants seeking to build
wireless infrastructure as prohibiting or having the effect of
prohibiting service under sections 253(a) and 332(c)(7); (2) whether to
preempt the fee regulations listed in the NPRM both for Small Wireless
Facilities and other larger facilities as violating sections 253(a) and
332(c)(7); and (3) whether the Commission could and should offer an
alternative dispute resolution option to reduce litigation between
permit applicants and permitting authorities.
The Commission will decide what actions it should take based on the
record developed to the NPRM. Part of the decisional process will
include evaluating the impact of these decisions on small entities and
what alternatives it might adopt to lessen significant economic impact
and regulatory burden on small entities while complying with the
requirements of sections 6409(a), 253, and 332(c)(7) of the
Communications Act. Alternative proposals and approaches from
commenters will further develop the record and could help the
Commission further minimize the economic impact on small entities. The
Commission's evaluation of the comments filed in this proceeding will
shape the final conclusions it reaches, the final alternatives it
considers, and the actions it ultimately takes to minimize any
significant economic impact that may occur on small entities from the
final rules.
I. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
None.
Ordering Clauses
Accordingly, it is ordered that, 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 sections 6003 and 6409 of the Middle Class Tax
Relief and Job Creation Act of 2012, as amended, 47 U.S.C. 151, 154(i)-
(j), 157, 201, 253, 301, 303, 309, 319, 332, 1403, 1455(a) this Notice
of Proposed Rulemaking in WT Docket No. 25-276 is adopted.
It is further ordered that, pursuant to applicable procedures set
forth in Sec. Sec. 1.415 and 1.419 of the Commission's rules, 47 CFR
1.415, 1.419, interested parties may file comments on the Notice of
Proposed Rulemaking on or before 30 days after publication in the
Federal Register, and reply comments on or before 45 days after
publication in the Federal Register.
It is further ordered that the Commission's Office of the Secretary
shall send a copy of this Notice of Proposed Rulemaking, including the
Initial Regulatory Flexibility Analysis, to the Chief Counsel for
Advocacy of the Small Business Administration.
List of Subjects in 47 CFR Part 1
Administrative practice and procedure.
Federal Communications Commission.
Marlene Dortch,
Secretary, Office of the Secretary.
Proposed Rules
For the reasons discussed in the preamble, the Federal
Communications Commission proposes to amend 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; 28 U.S.C. 2461 note; 47
U.S.C. 1754, unless otherwise noted.
0
2. Section 1.6100 is amended by revising paragraphs (b)(7)(v) and (vi)
as follows:
Sec. 1.6100 Wireless Facility Modifications.
* * * * *
(b) * * *
(7) * * *
(v) It would defeat the concealment elements of the eligible
support structure. For purposes of this paragraph, ``concealment
elements'' are
[[Page 55083]]
elements intended to make a stealth-designed facility look like
something other than a wireless tower or base station. A proposed
modification would defeat the concealment elements of the eligible
support structure if it would cause a reasonable person to view the
structure's intended stealth design as ineffective; or
Example 1 to paragraph (v): Placement of coaxial cable on the
outside of a stealth-designed facility would be unlikely to render the
intended stealth design of the facility ineffective at the distance
from which individuals would view a facility because of the typically
small size of such cabling.
Example 2 to paragraph (v): A modification that involves a change
in color would only defeat concealment if it would cause reasonable
person to view the intended stealth design of the underlying facility
as no longer effective. For instance, if 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.
Example 3 to paragraph (v): For a stealth-designed facility, (such
as a wireless facility designed to resemble a pine tree), that was
originally conditioned on the facility being hidden behind a tree line,
a proposed modification that would make the facility visible above the
tree line would not defeat the concealment elements of the facility
under Sec. 1.6100(b)(7)(v) if a reasonable person would continue to
view the intended stealth design as effective. The requirement that the
facility be hidden behind a tree line is not a feature of a stealth-
designed facility, but rather an aesthetic condition that falls under
Sec. 1.6100(b)(7)(vi).
(vi) It does not comply with conditions associated with the siting
approval of the construction or modification of the eligible support
structure or base station equipment, provided, however, that this
limitation does not apply to any modification that is noncompliant only
in a manner that would not exceed the thresholds identified in
paragraphs (b)(7)(i) through (iv) of this section. Any condition under
this paragraph (b)(7)(vi), including aesthetics-related conditions or
any other conditions designed to address the visual impact of a
facility, cannot be used to prevent modifications allowed under Sec.
1.6100(b)(7)(i) through (iv).
Example 1 to paragraph (vi): If a locality imposes an aesthetics-
related condition that specifies a three-foot shroud cover for a three-
foot antenna, the locality could not prevent the replacement of the
original antenna with a four-foot antenna otherwise permissible under
Sec. 1.6100(b)(7)(i) because the new antenna could not fit in the
original shroud. If there was express evidence that the shroud was a
condition of approval, the locality could enforce its shrouding
condition if the provider could reasonably install a four-foot shroud
to cover the new four-foot antenna. The locality also could enforce a
shrouding requirement that was not size-specific and did not limit
modifications allowed under Sec. 1.6100(b)(7)(i) through (iv).
Example 2 to paragraph (vi): Existing walls and fences around non-
camouflaged towers would be considered aesthetic conditions and not
concealment elements. However, if there was express evidence that the
wall or fence was a condition of approval, the locality may require a
provider to extend the wall or fence to continue covering the
equipment.
Example 3 to paragraph (vi): In regard to a tower that was
originally approved conditioned on being hidden behind a tree line, a
proposed modification within the thresholds of Sec. 1.6100(b)(7)(i)
through (iv) that would make the tower visible above the tree line
would be permitted under Sec. 1.6100(b)(7)(vi), assuming 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.
* * * * *
[FR Doc. 2025-21620 Filed 11-28-25; 8:45 am]
BILLING CODE 6712-01-P