CommLaw Monitor News and analysis from Kelley Drye’s communications practice group Wed, 03 Jul 2024 07:24:01 -0400 60 hourly 1 November 2017 FCC Meeting Recap: FCC Aims to Speed Wireless Deployment by Eliminating Historic Preservation Review When Replacing Utility Poles Tue, 21 Nov 2017 17:27:03 -0500 Highlighting the need for rapid infrastructure deployment to meet growing consumer data demands and support future 5G services, the Federal Communications Commission (“FCC”) unanimously adopted a Report and Order at its November 16, 2017, meeting to eliminate historic preservation review of replacement utility poles under certain conditions. The FCC’s limited action marks the first decision to come out of the much broader FCC rulemaking proceeding initiated earlier this year to foster wireless infrastructure investment and deployment. The item also consolidates the FCC’s historic preservation review requirements into a single rule to aid compliance.

The National Historic Preservation Act (“NHPA”) requires the FCC to account for the effect of any proposed “undertakings” on historic properties, including the siting of poles, including replacement poles, for communications facilities. Where undertakings are not exempt, parties must comply with detailed NHPA procedures, including consultation, information collection, and review requirements. The FCC previously exempted some pole replacements from these obligations, but it limited the exception to “towers” originally constructed for the sole or primary purpose of supporting communications antennas. By contrast, replacements for poles constructed for other purposes, such as for electric utility lines, required full NHPA review. Carriers and pole owners criticized the distinction between towers and other poles, noting that no such distinction exists for pole replacements on federal lands. However, some state historic preservation officers and Tribal authorities warned that unchecked pole construction could disturb archeological resources and other protected sites.

The new rule exempts additional pole replacements from NHPA review if they meet certain criteria:

  • Not a Tower: The pole being replaced can hold utility, communications, or related transmission lines but was not originally constructed for the sole or primary purpose of supporting communications antenna.
  • Proximity to Original Pole: The replacement pole must be located no more than ten feet away from the original pole. This represents a relaxation of the FCC’s original proposal, which would have required the replacement pole to be inserted in the same hole as the original pole. However, Commissioner O’Rielly explained that a replacement pole often must be constructed near the original pole while it still stands so that electric wires and other attachments can be transferred safely.
  • Prohibiting New Disturbances: The replacement pole must not cause any new “ground disturbance,” although the item recognizes that most rights-of-way will have been disturbed previously by the construction of the original pole or other infrastructure.
  • Restricting Extensions: The replacement pole may exceed the height of the original pole by no more than five feet or ten percent of the original pole’s height, whichever is greater.
  • Preserving Aesthetics: The replacement pole must be “consistent” with the quality and appearance of the original pole. The FCC initially indicated that the replacement pole must use the same material as the original pole, but it now will allow a change in material (e.g., replacing a wooden pole with a metal pole) so long as the replacement does not result in a significant aesthetic change. The exemption also does not apply when the original pole is itself a historic property.
While exempting qualifying replacement poles from NHPA reveiw, the FCC added language requiring parties to immediately halt construction if they uncover any burial remains or other historic sites during the replacement, even if they uncover such sites on previously disturbed land.

The FCC anticipates that the additional exemption will not affect historical properties but will spur network densification with small cell facilities to meet rising consumer demand for wireless data and support next-generation 5G services. However, the FCC also recognized that significant reforms to pole siting requirements and coordination with affected stakeholders like Tribal authorities is still necessary to accelerate deployment. As a result, it remains to be seen whether the bipartisan front shown by the FCC here will hold in the face of future, more controversial, wireless infrastructure reforms to come out of the Commission’s infrastructure proceedings.

The new pole replacement exemption will take effect within 30 days of the Report and Order’s publication in the Federal Register.

Last Pieces of Wireless Infrastructure Order Take Effect Wed, 20 May 2015 10:23:53 -0400 stock_11272012_0902On Monday, May 18, 2015, the Federal Communications Commission published a notice in the Federal Register announcing the effectiveness as of that same date of the remaining wireless infrastructure rules the agency adopted in October 2014. In an earlier blog post, we explained that the rules adopted by the FCC in its Wireless Infrastructure Report and Order were taking effect in phases. The newly effective rules were held up pending review by the Office of Management and Budget.

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.

New Wireless Infrastructure Rules to Take Effect in Phases Wed, 21 Jan 2015 00:37:48 -0500 The new FCC rules adopted in October 2014 promoting more rapid wireless infrastructure deployments will begin taking effect next month, but not all key provisions will be following the same schedule. In the Report and Order we blogged on last fall, the Commission took steps to streamline the review process and reduce the regulatory burdens associated with wireless deployments, particularly distributed antenna system (DAS) networks and other small-cell systems. Further, the new rules clarify the statutory requirements related to State and local government review of new infrastructure requests.

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.
Effective April 8, 2015:
  • 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.
Effective Date Dependent on OMB Approval
  • 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.

FAA Streamlines NOTAM Process Mon, 08 Dec 2014 23:14:11 -0500 The Federal Aviation Administration (FAA), through coordination with the FCC and other federal stakeholders, expects by mid-January 2015 to streamline the online process for submitting Notices to Airmen (NOTAMs). NOTAMs identify towers that are experiencing a lighting outage or otherwise faulty lighting and provide a mechanism for the FAA to alert aviation operations to the outage. The FCC’s Wireless Telecommunications Bureau issued an advisory on December 8th announcing the FAA’s new process which will permit tower owners to individually select the active period for each NOTAM in lieu of the current default of fifteen (15) days.

Under Part 17 of the FCC’s rules, tower owners are required to notify the FAA, either via telephone or through a web-based form maintained by the FAA’s US NOTAM office, within 30 minutes of discovering a lighting outage and subsequently take remedial steps the repair the outage as quickly as possible. The NOTAM process is critical to air safety, and the FCC has engaged in recent enforcement action where the process has not been followed, as reported in our recent blogs. Currently, all NOTAMs expire automatically after 15 days. The agencies recognized that some lighting outages cannot be addressed within the 15 day period and having a default period may create unnecessary burdens and inefficiencies on tower owners forced to make repeated filings and the agencies that process them.

To streamline the process, the FAA plans to revise its web-based form by mid-January to allow tower owners to self-select an expected repair date. The advisory warns the industry that the FCC “will respond aggressively” if it determines that tower owners are abusing the flexibility of the new process.

The updates to the NOTAM requirements are part of a larger initiative at the FCC to eliminate outdated rules and to address the rules that relate to wireless infrastructure, including recent amendments to the marking and lighting rules and the tower siting rules. Tower owners should continue to pay close attention to FCC and FAA actions in this area and take advantage of rule changes designed to facilitate deployment, maintenance, and compliance with infrastructure obligations. More liberal rules may be coupled with greater enforcement.

FCC Eases Process for Tower Construction and Wireless Infrastructure Deployment Sun, 19 Oct 2014 23:38:41 -0400 At the FCC’s October Open Meeting on October 17, the Commission unanimously adopted a Report and Order to update its rules and procedures for new and modified antenna structures. In the News Release following the vote, the Commission noted the new rules are expected to create the foundation for increased advanced wireless broadband deployment nationwide. In their comments at the Open meeting, the Commissioners focused on the effect the new rules will have to facilitate Distributed Antenna Systems (“DAS”) and small cell deployment.

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.

In Commissioner Clyburn's statement at the Open Meeting adopting the Report and Order, she confirmed that her vote in favor of the Order was also the result of CTIA and PCIA reaching an agreement to a series of actions with state and local governments to aid transition to the new rules. CTIA and PCIA agreed to:

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

2) Provide/conduct educational webinars for state and local governments on the application process and FCC rules.

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 Commission is expected to release the complete Report and Order in the near term. While the new rules are expected to expedite DAS and small cell deployment, the new rules will impact any company seeking to construct new towers for wireless services.

FCC Releases Report and Order for New Tower Rules Tue, 12 Aug 2014 15:05:30 -0400 The FCC released the Report and Order for its revised Part 17 antenna structure rules late last Friday. As noted in our recent blog post, through the new rules, the FCC intends to clarify and streamline its rules regarding construction, marking and lighting of antenna structures, while generally harmonizing them with the FAA’s rules and recommendations for towers to prevent potential adverse impact to air navigation and safety.

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.

FCC Adopts Report and Order to Streamline Tower Rules Fri, 08 Aug 2014 14:25:38 -0400 By a 5-0 vote at its August 8th Open Meeting, the Commission approved a Report and Order to streamline and update the rules governing the construction and marking and lighting of antenna structures (i.e. structures housing communications equipment). Modernization of these rules has been in the works for many years and is being addressed as part of the Commission’s process reform initiative.

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.

Failure to Maintain Tower Lighting May Cost GCI $20,000 Thu, 12 Sep 2013 10:13:12 -0400 The FCC on Wednesday found General Communications, Inc. (“GCI”) apparently liable in the amount of $20,000 as a result of an unaddressed lighting malfunction on one of the carrier’s communications towers. In the Notice of Apparent Liability (“NAL”), the Commission found that as a result of daytime lights on the 56 meter tower being out, GCI committed several rule violations: failure to (1) exhibit the required daytime medium intensity obstruction lighting on its antenna structure, (2) monitor obstruction lighting on a daily basis or maintain a functioning alarm system, and (3) notify the Federal Aviation Administration (“FAA”) of the lighting outage, which the FCC considered as being known as a result of the monitoring requirements. The matter came to light when an Enforcement Bureau field agent observed the tower structure was not lit during daytime hours on two consecutive days in September 12. The agent proceeded to contact the FAA and learned that no Notice to Airmen (“NOTAM”) had been issued as a result of the outage. The FAA issued the NOTAM immediately after being contacted. Only after being contacted by the Bureau’s Anchorage Office did GCI investigate and replace a failing a capacitor on the lighting control board and proceed to install a remote lighting monitoring and alarm system.

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.