On May 19, 2020, the Federal Communications Commission (FCC or Commission) released a draft Declaratory Ruling and Notice of Proposed Rulemaking clarifying certain aspects of its rules governing the deployment of wireless equipment on existing telecommunications infrastructure. The draft Declaratory Ruling provides important clarification regarding the Commission’s Rules governing collocations and modifications of existing installations in response to attempted evasions by local governments.

Scheduled for a vote at the FCC’s June meeting, the Commission’s action would clarify:

• When the 60-day shot clock commences for a locality’s review of modifications under Section 6409 of the Spectrum Act of 2012 (codified at 47 U.S.C. § 1455);
• What constitutes a “substantial change” in the existing infrastructure’s physical dimensions and the extent to which certain elements of a proposed modification affect the proposal’s eligibility for streamlined review; and
• The rules associated with proposed modifications involving historic preservation and environmental reviews.

The action also seeks comment on defining the boundaries of a tower site for purposes of determining when excavation or deployment outside said boundaries qualify for streamlined review.

Designed to accelerate wireless buildout, the FCC’s action resolves two Petitions for Declaratory Ruling filed separately by WIA and CTIA last fall. Each petition asked the FCC to make certain clarifications to a 2014 Order implementing Section 6409(a) of the Spectrum Act, which provides that localities “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.” The 2014 Order adopted rules requiring state and local governments to act within 60 days after the submission of an application for collocation or modification subject to Section 6409.

Among other issues, WIA and CTIA sought clarification of when the 60-day shot clock begins to run and how the “substantial change” term applies to proposed modifications to antenna height, the addition of equipment cabinets, and matters associated with tower concealment and aesthetics. According to WIA and CTIA, each of these topics were the subject of interpretation clashes between applicants and local governments, which in turn caused wireless buildout delays that would not be resolved absent further FCC action.

Commencement of Shot Clock

While the FCC’s 2014 Order provided localities with procedures for carrying out their obligations to approve proposed modification requests within 60 days, the order did not define the date on which an applicant is deemed to have “submitted” a request for purposes of triggering the shot clock. Because of this omission, certain localities had effectively postponed the date on which they considered a request to be “filed” by treating applications as incomplete unless applicants “complied with time-consuming requirements.”

To resolve this problem, the Commission clarifies that, for purposes of its 60-day shot clock, an applicant has effectively submitted a request for approval that triggers the running of the shot clock when it satisfies both of the following criteria:

• The applicant takes the first procedural step that the local jurisdiction requires as part of its applicable regulatory review process under Section 6409(a), to the extent it has not done so as part of the first required procedural step; and
• The applicant submits written documentation addressing the applicable eligible facilities request criteria, including that the proposed modification would not cause a “substantial change” to the existing structure.

The FCC also clarifies that localities may not delay the shot clock’s initiation by establishing a “first step” that is outside of the applicant’s control or that is not objectively verifiable (such as requiring applicants to first meet with municipal staff before making any filing) or by defining the “first step” as a combination or sequencing of steps (such as requiring separate consultations with a citizens’ association, a historic preservation review board, and the local government staff). Moreover, the FCC proscribes localities from delaying the shot clock’s initiation by declining to accept an applicant’s submission of its eligible facilities criteria documentation or by requiring that applicants first obtain conditional use permits, variances, or other similar types of authorizations.

Finally, the FCC establishes that, for jurisdictions that have not established any review/approval procedures, applicants “can consider the first procedural step to be submission of the type of filing that is typically required to initiate a standard zoning or siting review of a proposed deployment that is not subject to Section 6409(a).”

Interpretation of "Substantial Change" Term With Respect to Various Modification Elements

Height Increases

One of the most straightforward ways of modifying existing infrastructure to increase wireless coverage and capacity is by adding equipment to the top of towers. Under the FCC’s 2014 Order, modifications of towers outside the public-rights-of way cause a “substantial change” if they “increase the height of the tower by more than 10% or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater.” Disputes with local governments had occurred, however, regarding how the 20 ft. “separation” concept was to be measured.

In the proposed Declaratory Ruling, the FCC clarifies that the phrase “separation from the nearest existing antenna” means “the distance from the top of the highest existing antenna on the tower to the bottom of the proposed new antenna to be deployed above it.” Thus, when determining whether an application satisfies the criteria for an eligible facilities request, localities are not permitted to measure this separation from the top of the existing antenna to the top of the new antenna. Rather, the FCC explains, the word “separation” refers to the distance from the top of the existing antenna to the bottom of the proposed antenna.

Equipment Cabinets

In the 2014 Order, the FCC provided that a proposed modification to a support structure constitutes a “substantial change” if “it involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed four cabinets.” In the proposed Declaratory Ruling, the FCC determines that localities were interpreting the “equipment cabinet” term too broadly, and that equipment with protective housings and mounted near antennae are not per se “equipment cabinets.”

Additionally, the FCC determines that “small pieces of equipment such as remote radio heads/remote radio units, amplifiers, transceivers mounted behind antennas, and similar devices are not ‘equipment cabinets’ … if they are not used as physical containers for smaller, distinct devices.” Moreover, the FCC clarifies that the maximum number of additional equipment cabinets that can be added is measured for each separate eligible facilities request, rather than per tower.

Concealment Elements

The 2014 Order provided that “in the context of a modification request related to concealed or ‘stealth’-designed facilities … any change that defeats the concealment elements of such facilities would be considered a ‘substantial change’ under Section 6409(a).” The record demonstrated that many local governments were misconstruing the term “concealment elements” and what type of modifications would “defeat” concealment. For example, although the Commission’s 2014 Order clearly explained that the term “concealment element” referred only to stealth facilities and aspects of a design intended to disguise a facility’s appearance, such as faux tree branches or paint color, many local governments were arguing that the term was more expansive, and they claimed it included any attributes that minimized the visual impact of a facility, such as rooftop set-backs.

The FCC clarifies that “concealment elements” only include those elements of a wireless facility installed for the purposes of rendering the “appearance of the wireless facility as something fundamentally different than a wireless facility.” To be considered a “concealment element” the element “must have been part of the facility that was considered by the locality at the original approval of the tower or at the modification to the original tower,” if the approval of the modification occurred prior to the Spectrum Act or outside the Section 6409(a) process. The Commission also clarifies that, to “defeat” concealment, the proposed modification must cause a reasonable person to view the structure’s intended stealth design as no longer effective after the modification.

To provide guidance on concealment elements and whether they would be “defeated,” the FCC offers illustrations that are useful to both applicants and localities. For example, the FCC clarifies the following modifications likely would not “defeat” concealment:

• The placement of coaxial cable on the outside of a stealth facility;
• Modifications to a facility that use a slightly different paint color than the rest of the facility; and
• Small increases in height of stealth monopines that do not alter a structure’s intended stealth design in the eyes of a reasonable person.

Conditions Associated With Siting Approval

Finally, the Commission rejects local governments’ assertion that a “substantial change” occurs per se whenever a proposed modification does not comply with the conditions associated with the infrastructure’s initial siting approval. As the FCC explains, localities had been interpreting this portion of the 2014 Order too literally, rejecting proposed modifications simply because they called for small increases in the size of a structure, such as modestly increasing its height or increasing the width of its canister, even if those changes otherwise fell within the objective definitions of substantial change in the Commission’s Rules.

The FCC clarifies that such small modifications should generally be allowed, as the applicant will likely be able to comply with the aesthetic conditions originally imposed by making an alteration. For example, if a city has an aesthetic-related condition that specified a three-foot shroud cover for a three-foot antenna, the city could not prevent the replacement of the original antenna with a four-foot antenna simply because it wouldn’t be covered by the three-foot shroud. Instead, the city could enforce its shrouding condition by requiring the applicant to install a four-foot shroud to cover the new four-foot antenna (so long as such a shroud could reasonably be installed).

Elimination of Environmental Assessment Requirement After Execution of Memorandum of Agreement

The FCC’s draft Declaratory Ruling also clarifies that an environmental assessment is not required for the construction of facilities that may significantly affect the environment or historic properties protected under the National Historic Preservation Act, provided that the facility applicant has first entered into a memorandum of agreement with the State Historic Preservation Officer and/or Tribal Historic Preservation Officer. While applicants could previously enter into such memoranda of agreement to resolve disputes surrounding the impact of facilities on protected pieces of property, they still had to prepare and file environmental assessments with the FCC, which were open to public comment and Commission review.

If the Declaratory Ruling takes effect, applicants who enter into such memoranda will no longer be required to prepare and file such assessments, with the memoranda signifying that any facility effects on historic properties would be below the threshold of “significance” to trigger an environmental assessment.

Notice of Proposed Rulemaking

In addition to the above clarifications, the FCC’s draft also would seek comment on changes to its rules regarding “excavation or deployment outside the boundaries of an existing tower site,” including the definition of a tower site’s boundaries. According to the FCC, comment on this aspect is necessary to determine whether certain modifications of existing structures qualify for streamlined review under the Spectrum Act. Comments will be due 20 days after publication in the Federal Register.

CTIA Pole Attachment Related Request

CTIA’s Petition had also sought clarification of provisions of Section 224 of the Act, related to access light poles, accessing space on poles, and pole attachment agreements. The draft explains that those portions of CTIA’s Petition are being considered in WC Docket No. 17-84 and are not addressed in this Declaratory Ruling.

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