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.