The principal rules taking effect May 18 fully implement the new 60-day “deemed granted” remedy for companies when the State or local reviewing body fails to act in a timely fashion on eligible facilities modification requests that do not substantially change the physical dimensions of the antennas structure. This rule was adopted to implement Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, which provides, in 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.” This means that companies no longer need wait for actual approval for qualifying deployments in the event the State or local government does not act within sixty days. However, the 60-day review timeframe is tolled when an application is incomplete, provided the reviewing governmental body notifies the applicant within 30 days of application receipt clearly and specifically delineating all missing documents or information. Once that information is provided, the 60-day clock resumes (but can be tolled again if further notice is provided within 10-days after supplementation of the application that the information remains incomplete). In addition, the “deemed granted" status pursuant to the 60-day rule is not effective until the applicant notifies in writing the reviewing body that the application has been deemed granted given the expiration of the 60-day period (accounting for any tolling).

The FCC's goal in the Report and Order is to streamline the review process and reduces the regulatory burdens associated with wireless deployments, such as distributed antenna system (DAS) networks and small-cell systems. The new rules clarify the statutory requirements related to State and local government review of new infrastructure requests. With this recent notice, all of the pieces of the new order are in place that support expedited deployment of wireless facilities on existing wireless towers and base stations.

Many of the new rules are scheduled to take effect in the second week of February 2015. But the entities the rules are designed to benefit will have to wait before the rules take full effect. The FCC delayed implementation of several of the significant changes to the wireless infrastructure deployment process and others are subject to review by the Office of Management and Budget (OMB), which could take months.

Any company seeking to construct new towers or similar structures or deploy antennas on existing buildings and structures for its own wireless services or those of third-parties should be aware of the various effective dates for the new rules and be prepared to comply. Below is a breakdown of the principal rules changes and their corresponding effective dates.

Effective February 9, 2015:

• The EA rules identifying actions that trigger the need for a company to complete an EA were updated to state that the EA requirements do not apply to certain wireless deployments, such as mounting an antenna and associated equipment on existing utility structures, buildings or other non-tower structures, when certain criteria are satisfied.
• Certain wireless facilities, including deployments on new or replacement poles, no longer require an Environmental Assessment (EA) if the facility is located in an active Federal, State, local or Tribal right-of-way and the facility meets certain height, size and location criteria.

• The rule providing that Antenna Structure Registrations (ASR) are no longer required for construction, modification or replacement of an antenna structure on Federal land where another Federal agency has assumed responsibility for assessing the environmental effect will take effect two months after the rules described above.
• The new Subpart CC of the rules governing State and local review of applications for wireless service facility modification is also delayed sixty days. These rules implement Section 6409 of the Spectrum Act ( 47 U.S.C. 1455), which directs State or local governments to approve any eligible request for modification of an existing tower or base station that “does not substantially change” the physical dimensions of the structure.

• The new 60-day “deemed granted” remedy for companies when the State or local reviewing body fails to act in a timely fashion on eligible facilities modification requests – those that do not substantially change the physical dimensions of the antennas structure –will not take effect OMB approval. The FCC will provide a subsequent announcement in the Federal Register to provide the effective date. In the meantime, companies must wait for actual approval.
• The new rules stating that temporary structures do not require an ASR if they will meet all of the following criteria will not take effect until the OMB completes its review: not be in place for more than sixty days, not require marking and lighting under FAA regulations, are less than 200 feet in height, and involve no new excavation. A subsequent Federal Register notice will announce the effective date. In the meantime, companies may construct such temporary structures without an ASR pursuant to the FCC’s interim waiver.

The full text of the Report and Order has not yet been released. The new rules will take effect 90 days after it is published in the Federal Register. The longer period was a concession to Commissioner Clyburn’s concerns about the burdens on state and local governments to comply with the new rules, which will impose a “shot clock” on state and local government review. The Report and Order will focus on five key areas to address wireless infrastructure deployment:

1) The current National Environmental Policy Act (NEPA) review process currently has an exclusion for certain antennas attached to existing structures. The Report and Order will expand the exclusion to include additional changes to structures, such as larger dimensions to antennas attached to the structure.

2) The state historic preservation officer (SHPO) review in the current rules will be updated to add exclusions for non-substantial changes to structures although not in areas designated as historic sites. The FCC also looks at broader program alternatives with the Tribal Nations and SHPO's for streamlining the review process. Commissioner Pai specifically noted that a new National Programmatic agreement was expected in the next 18-24 months which would address these issues, as well as other matters, to further ease deployment.

3) The Report and Order will update the state and local government review process for new towers and modifications to existing structures. The Report and Order will define additional terms and adopts rules to clarify and implement statutory limitations on State and local government. Specifically, the Report and Order will establish a 60-day "deemed granted" remedy when state and local governments fail to act within that two-month time frame on an eligible facilities modification request under Section 6409(a) of the Spectrum Act.

4) The Commission’s Section 332 antenna siting "shot clock" requires state and local governments to act within "reasonable time". The newly adopted Report and Order includes injunctive relief for tower owners in the event state/local entities do not comply with the shot clock, thereby providing further teeth to the Commission’s interpretation of Section 332 to facilitate deployment.

5) Finally, the Report and Order codifies the Commission’s waiver previously granted to allow temporary towers on a streamlined basis. Particularly, temporary towers are not subject to the 30-day notice requirement.

1) Provide information to state and local governments with limited resources of processes and resources established in other jurisdictions.

3) Assist in drafting sample ordinances for state/local entities to use in their review process.

4) Provide a checklist for entities to use in association with the streamlined process

The actions taken in the Report and Order fall into three primary areas. First, the FCC streamlined the Antenna Structure Registration (ASR) process and brought it into greater conformity with FAA recommendations on antenna structure marking and lighting specifications, construction notification, and the accuracy of data that antenna structure owners must provide. Second, the Commission updated its requirements for the maintenance of antenna structure marking and lighting and codified a process for exemptions from otherwise generally applicable quarterly inspection requirements. Finally, the Commission modified its lighting outage notification requirements and obligations regarding timeliness of repair. These updates are part of the FCC’s efforts to reform outdated and inefficient processes at the Commission.

Kelley Drye has issued a client advisory providing a detailed review of the FCC’s new tower rules. A copy of the advisory is available here.

The FCC’s goal with these updates is to increase efficiency in the tower construction process while at the same time improving compliance and maintaining the safety considerations for pilots and aircraft across the country. Currently, companies constructing new tower sites must navigate an extensive approval process, including the National Historic Preservation Act (NHPA) and the National Programmatic Agreement (NPA), review by potentially affected Tribal Nations and State Historic Preservation Offices, EPA’s National Environmental Protection Act (NEPA), as well as review and approval by local governments, the FCC and the FAA. Tower owners must also comply with tower painting, marking and lighting requirements.

In a recent blog post, Chairman Wheeler said the new rules seek to “provide clarity and reduce regulatory burdens on antenna structure owners and licensees” while protecting the FAA’s requirements to protect air travel. Wheeler expects the updates “will enable the companies that deploy wireless networks to build out quickly without unnecessary burdens and, as a result, benefit American consumers by meeting their demand for more and more wireless service.”

The specific changes to the Part 17 of the FCC’s rules addressing antenna structures, are not yet public since the Report and Order is not yet available. However, the FCC’s Wireless Telecommunications Bureau indicated the updated rules eliminate outdated provisions and streamline the regulations with FAA regulations, meaning the Report and Order deserves a close look by those owning and deploying antenna structures, as well as the operators using them. We do know that there will be an exemption from quarterly physical inspection of towers for tower owners that use robust remote monitoring systems. Additionally, the FCC updated the rules for lighting outage reporting and tower maintenance requirements. The new streamlined process could facilitate small cell and broadband deployment nationwide, which continue to be high priorities for the Commission and commercial mobile wireless providers. But tower construction firms, utilities, and many others will have a real interest in the Report and Order as well.

Ohana Media Group, LLC (Ohana): In June 2013, a Bureau agent observed that an Ohana antenna structure did not have the correct daylight hours lighting in operation on two successive days and advised Ohana of the outage. Upon being contacted by the Bureau, Ohana initiated a Notice to Airmen (NOTAM) with the Federal Aviation Administration (FAA), required when there is a known tower lighting outage of more than 30 minutes duration. When the Bureau’s Anchorage Office issued a Notice of Violation (NOV) a month later, Ohana had already repaired the lighting and installed two redundant monitoring systems. The NAL issued to Ohana proposed the base forfeiture amount with no adjustment for lighting violations ($10,000) after alleging violations of the rule requiring proper tower marking and lighting and the rule requiring notification of the nearest FAA office or Flight Service Station whenever a top steady burning light is out or any flashing obstruction light is observed or known to be not working for more than 30 minutes. Ohana’s cooperation apparently avoided the application of any aggravating factors.

Kemp Broadcasting, Inc. (Kemp): In April 2013, Bureau agents observed that Kemp’s 401-meter antenna did not have the proper daytime lighting at either the top or at three lower levels. An employee was notified in person by the agents, who returned after dark to find one of the red flashing lights required on this tower at night was out. To make a long story short, some of the lights continued to be out for several months following the agents’ initial observations. Even after receiving a mid-May NOV and further contacts from the Bureau, Kemp apparently did not initiate a NOTAM with the FAA after several months. Finally, the Bureau itself notified the FAA in mid-September. Despite all of that, and the allegations in the NAL issued to Kemp that three FCC rules were violated – failure to exhibit required lighting, failure to notify the FAA of outages, and failure to maintain a properly functioning monitoring system – the Bureau started with a base forfeiture amount of $10,000 and made a modest upward adjustment of $4000 for Kemp’s repeated failure to notify the FAA of the outages.

AT&T Services, Inc. (AT&T): Following an April 2103 complaint from the Los Angeles Police Department regarding an unlit antenna structure, an agent of the Bureau confirmed the structure, owned by AT&T, was of a sufficient height absent a special aeronautical study (i.e., over 200 feet) to require lighting and marking, as well as antenna registration. Although AT&T six days later removed a whip antenna to bring the height below 200 feet, the Bureau issued an NOV in early May. AT&T acknowledged the whip antenna had been installed five months prior to the Bureau inspection, and that the FAA had not been properly notified of the structure. The Bureau noted that the base forfeiture of $10,000 would be proposed as in the two previous cases, as well as a separate base forfeiture amount of $3000 for failing to register the antenna structure with the FCC. The Commission noted only one aggravating factor that it was applying: ability to pay. Because AT&T is a multi-billion enterprise, and to ensure the forfeiture amount is an adequate deterrent, the Bureau increased the forfeiture proposed to $25,000. Notably, the Bureau observed in a footnote that Verizon Wireless in a 2010 order received a forfeiture of only the base amount, $13,000, for the same offenses. This differential between the two cases, AT&T and Verizon Wireless, signals the increased attention that the FCC is currently willing to put on the size of companies when assessing a penalty for violation of the rules. Further, the comparison of the AT&T case with the Ohana and Kemp cases leaves the unmistakable impression, absent possible additional detail not set forth in the NALs, that given the same or similar violation simply being a large company may expose one to greater liability that being an uncooperative, non-compliant smaller one, which is not what one would necessarily expect in a rational enforcement regime.

It was too little too late. The Commission in the NAL raised the base forfeiture amount from $10,000 to $20,000 for the trio of violations on the structure due to GCI’s status as a large Tier III carrier serving much of Alaska with revenues on the order of hundreds of millions of dollars annually. The NAL demonstrates once again the Bureau’s determination to increase penalties to better serve as deterrent to large companies. This doubling by no means represents the potential ceiling for regulatory penalties on a given tower in such cases. Fortunately, there were no complications in the GCI case. In 1990, Centel agreed to pay the FCC $1,000,000 following a fatal helicopter crash in North Carolina when a tower under construction failed to have the proper marking and lighting and assessed a $2 million penalty against the company in 1996 for a series of marking and lighting violations (reduced from $3,000,000). Naturally, in the hopefully extremely cases where there is an accident and injury to life or property, the exposure to liability can extend beyond the FCC's regulations and enforcement mechanisms. (The marking and lighting regulatory obligations set forth in Part 17 of the Commission’s Rules now apply ultimately to antenna structure owners.)

The GCI NAL also serves as a reminder that the Commission’s lighting rules include not only obligations for antenna structure owners either to visually inspect lighting at least once daily or to install and maintain a continuous lighting monitoring system. In the latter case, as the NAL reminds, the rules also requires that the alarm systems themselves are inspected every three months. Further, when there is a lighting outage or malfunctioning not corrected within 30 minutes of any top steady burning light or any flashing obstruction light that is observed or otherwise known, i.e., through the alarm system, the antenna structure owner must notify the nearest Flight Service Station or office of the Federal Aviation Administration. A sound antenna lighting and marking compliance and maintenance policy, and a sufficiently robust monitoring and alarm system, to ensure adherence to the applicable regulations are essential assets for any tower owner.