CommLaw Monitor https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor News and analysis from Kelley Drye’s communications practice group Wed, 03 Jul 2024 07:29:25 -0400 60 hourly 1 Escaping the Twilight Zone – FCC Aims to Expedite Wireless Deployment by Exempting Twilight Towers from Historic Preservation Review https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/escaping-the-twilight-zone-fcc-aims-to-expedite-wireless-deployment-by-exempting-twilight-towers-from-historic-preservation-review https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/escaping-the-twilight-zone-fcc-aims-to-expedite-wireless-deployment-by-exempting-twilight-towers-from-historic-preservation-review Mon, 18 Dec 2017 21:44:03 -0500 Consistent with Chairman Pai’s focus on accelerating infrastructure deployment to enable next generation wireless services, the Federal Communications Commission (“FCC” or “Commission”) unanimously opened at its monthly meeting on December 14, 2017 a proceeding to exempt wireless communications equipment from historic preservation requirements under certain conditions. The FCC’s action is directed at enabling operations on so-called “Twilight Towers” - wireless towers constructed between 2001 and 2005 that are claimed to have languished due to regulatory uncertainty. The Commission describes this proposal as an action that would open up potentially thousands of existing towers for collocations without the need for either the collocation or the underlying tower to complete an individual historic preservation review.

Section 106 of the National Historic Preservation Act (“NHPA”) requires the FCC to account for the effect of any proposed “undertakings” on historic properties, including collocation of wireless communications facilities. Where undertakings are not exempt, parties must comply with detailed NHPA procedures, including consultation, information collection, and review requirements.

For towers constructed between 2001 and 2005, there was considerable regulatory uncertainty about the specific procedures tower owners were supposed to follow for purposes of compliance with historic preservation requirements. To resolve this issue, the FCC proposes to exempt Twilight Towers from historic preservation review requirements and refrain from taking enforcement action against entities that deployed Twilight Towers in good faith despite lack of clear regulatory guidance.

The proposal would exempt mounting new antennas on Twilight Towers from routine historic review requirements subject to the following limitations:

  • Tower Size Increase Restrictions: The newly mounted antenna cannot increase the tower’s height by more than either ten percent or the height of another antenna array within twenty feet, whichever is greater.
  • New Equipment Installation Restrictions: The newly mounted antenna cannot require installing more than four new equipment cabinets or more than one new equipment shelter.
  • Protruding Components Restrictions: The newly mounted antenna cannot add components that protrude from the tower by more than either twenty feet or the width of the tower structure at the level of the protruding element, whichever is greater.
  • Excavation Restrictions: The newly mounted antenna cannot require excavation outside the tower site, defined as the current boundaries of the property surrounding the tower and any access or utility easements currently related to the site.
  • Prior Adverse Determination Exception: New antennas cannot be mounted to towers that the FCC has determined have an adverse effect on one or more historic properties if that effect has not been avoided or mitigated.
  • Pending Review Exception: New antennas cannot be mounted to towers that are the subject of a pending environmental review or related proceeding before the FCC involving compliance with Section 106 of the NHPA.
  • Prior Complaints Exception: New antennas cannot be mounted to a tower if the collocation licensee or tower owner has been notified that the FCC received a written complaint that the collocation has an adverse effect on one or more historic properties. Any such complaint must be “in writing and supported by substantial evidence describing how the effect from the collocation is adverse to the attributes that qualify any affected historic property for eligibility or potential eligibility for the National Register.”
The FCC anticipates that exempting Twilight Towers will not affect historical properties but will incentivize wireless infrastructure deployment by clearing the path for new collocation opportunities.

Comments on the Commission’s proposal will be due 30 days (and Reply Comments 45 days) after publication in the Federal Register.

]]>
November 2017 FCC Meeting Recap: FCC Aims to Speed Wireless Deployment by Eliminating Historic Preservation Review When Replacing Utility Poles https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/november-2017-fcc-meeting-recap-fcc-aims-to-speed-wireless-deployment-by-eliminating-historic-preservation-review-when-replacing-utility-poles https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/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.

]]>
FCC Releases Report and Order for New Tower Rules https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/fcc-releases-report-and-order-for-new-tower-rules https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/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 https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/fcc-adopts-report-and-order-to-streamline-tower-rules https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/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.

]]>