For those who have been following the FCC over the past three years under Chairman Pai’s leadership, the draft item builds on the agency’s multifaceted effort to pave a clear path for the private sector to deploy 5G technologies. Prior efforts include repurposing low-, mid-, and high-band spectrum for mobile wireless operations, reducing the circumstances under which wireless infrastructure deployments must undergo federal historic preservation and environmental reviews, and preempting states and localities from using review processes to slow the deployment of small cells.

The agency is set to vote on the item at its June 9, 2020, open meeting.

Declaratory Ruling Clarifying Local Review Rules

The draft Declaratory Ruling is meant to strengthen several of the rules the FCC adopted in 2014 to implement Section 6409(a) of the Spectrum Act of 2012. That section says 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.” The Commission’s rules implementing the statute were meant to provide clarity and guidance to state and local governments and the wireless industry on how to apply the statutory directive. The WIA and CTIA petitions claim that certain conditions established by states and localities continue to impede the deployment of private 5G networks. Accordingly, the draft Declaratory Ruling addresses the following:

• Trigger for 60-Day Shot Clock – Under existing rules, state and local governments must approve or deny an eligible facilities request within 60 days or the request is deemed granted. The shot-clock begins on the day an applicant submits a request. The draft Declaratory Ruling would clarify that an applicant is deemed to have submitted a request when it “takes the first procedural step in a locality’s application process and submits written documentation showing that a proposed modification is an eligible facilities request.” This clarification is intended to preserve localities flexibility to structure their permitting procedures, but prohibit localities from treating applications as incomplete unless applicants comply with a series of time-consuming requirements.
• Other Shot Clock Clarifications – The Declaratory Ruling would also prohibit localities from delaying the triggering or starting of the shot clock by (1) “establishing a ‘first step’ that is outside of the applicant’s control or is not objectively verifiable”; (2) “defining the ‘first step’ as a combination or sequencing of steps”; (3) declining to accept documentation required under FCC rules to demonstrate the eligible facilities request conditions are satisfied or requiring the submission of other documentation; and (4) using requirements to obtain conditional use permits, variances, or other similar types of authorizations to cause delays. Additionally, it would establish the submission of a typical filing for a standard zoning or siting review as the first procedural step in jurisdictions that have not established specific procedures.
• Separation Between Existing and New Antenna ­– Under existing rules, a tower modification outside public rights-of-way would cause a substantial change if it “increases 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.” The Declaratory Ruling would clarify that “separation from the nearest existing antenna” means the distance from the top of the highest existing antenna to the bottom of the proposed new antenna that would be deployed above it.
• Equipment Cabinets ­– Under existing rules, the number of new equipment cabinets affects whether a modification would cause a substantial change. The Declaratory Ruling would clarify that “equipment cabinets” does not include “small pieces of equipment such as remote radio heads/remote radio units, amplifiers, transceivers mounted behind antennas, and similar devices” if they “are not used as physical containers for smaller, distinct devices.” It declines to determine that “equipment cabinets” means only those installed on the ground.
• Concealment Elements – Existing rules state that a modification would substantially change an existing structure if it would “defeat the concealment elements” of the structure that was originally approved. The Declaratory Ruling would specify that a “concealment element” is one “that is part of a stealth-designed facility intended to make a structure look like something other than a wireless facility” and was part of a prior approval. An attribute that minimizes the visual impact of a facility or that was not considered a concealment element at the time of initial approval would not be considered a modification. The FCC proposes to clarify that a proposed modification “defeats” a concealment element if it would “cause a reasonable person to view a structure’s intended stealth design as no longer effective.”
• Limits on Other Conditions – Existing rules provide that a modification is a substantial change if it does not comply with any other original “conditions associated with the siting approval.” The Declaratory Ruling would clarify that “conditions associated with the siting approval” can include aesthetic conditions to minimize the visual impact of a wireless facility as long as the conditions do not prevent modifications explicitly allowed by rules that would permit modifications based on antenna height, antenna width, equipment cabinets, and excavations or deployments outside the current site, and “so long as there is express evidence that at the time of approval the locality required the feature and conditioned approval upon its continuing existence.”
• Effect of Environmental Impact Agreements – Under existing rules, environmental impact assessments must occur when certain defined actions during construction of a facility might significantly affect the environment, including historic properties. The Declaratory Ruling would clarify that such assessments are not required when the FCC and applicants have entered into a memorandum of agreement to mitigate effects of a proposed deployment on historic properties if the only basis for the assessment was the potential for significant effects on such properties.

The Commission opted to issue an NPRM on one additional proposal in the WIA petition, regarding when a modification requires excavations. Existing rules provide that “[a] modification substantially changes the physical dimensions of an eligible support structure if . . . [i]t entails any excavation or deployment outside the current site” of a tower or base station, and is therefore not eligible for the streamlined procedures under the statute. Industry and localities disagree on whether “current site” means the boundaries at the time the tower was first approved or at the time the applicant seeks approval for a modification. WIA also asked the Commission to change its rules so that “a modification would not cause a “substantial change” if it entails excavation or facility deployments at locations of up to 30 feet in any direction outside the boundaries of a macro tower compound,” on the basis that colocation on existing towers is difficult to achieve without increasing the size of compounds. The NPRM seeks comment on these issues.

Democrats and Republicans Clash in Congressional Letters on Item

Democrats and Republicans on the House Energy and Commerce Committee sent competing letters to FCC Chairman Pai concerning the draft item. Democrats asked that he delay the vote on the item, saying that “under the guise of clarifying . . . existing rules, [it] would grant companies the right to expand existing cell sites without any regard to local processes” and without meaningful insight from local governments, who are currently burdened with responding to the ongoing coronavirus pandemic. Republicans urged the FCC to press forward with the vote, also evoking the coronavirus pandemic to assert that the item would reduce “unnecessary regulatory burdens,” which would further streamline deployment and facilitate connectivity that is even more critical “[d]uring these unprecedented times.”

At the FCC, the two Democratic commissioners, Rosenworcel and Starks, expressed support for delaying the vote.As of this writing, Chairman Pai and Commissioner O’Rielly have not commented on the delay request. Republican Commissioner Carr strongly supports the item and is leading the charge for its adoption. We expect the vote to proceed and the item to be approved largely unchanged.

Background

Under current rules, wireless service providers and handset manufacturers are required to report annually to the FCC on Form 655 about the handset models they offer that are HAC as well as details about the handsets such as the specific HAC rating, when it was certified, whether it has Wi-Fi calling capability, the specific air interface on which it operates, and other functionality features. Service providers must also ensure that they have HAC handset models available in their retail stores and provide information about the HAC models in store packaging and at the point of sale. Entities subject to the rules must also provide the web address of the public webpage that contains information about the HAC handset models, ratings, and other details to help inform the consumer’s choice.

In September 2017, the FCC issued a notice of proposed rulemaking (“NPRM”) seeking comment on whether it should revise or eliminate these reporting requirements for service providers and other possible changes. Service providers, which generally have no role in the production of devices, can only report the information provided to them by manufacturers for certain parts of the report and have previously criticized the report as a burdensome, particularly for small providers. In response to the NPRM, a consensus letter was filed by some industry associations and advocates representing consumers with hearing loss (CTIA, Competitive Carriers Association, Hearing Loss Association of America, and the Telecommunications Industry Association) stating that the service provider reporting obligations were no longer necessary and that the FCC should instead require covered entities to self-certify to compliance and improve the type of HAC handset information available on their consumer-facing websites.

Proposed Rule Changes

In the draft Order, the FCC proposes to adopt rules based on the consensus letter, eliminating the service provider Form 655 reporting obligations, and instead requiring them to post the most critical information from the report to their websites. Service providers would be required to disclose information about the following on their websites:

• current non-HAC handset models offered, the level of functionality of such models, and the FCC IDs of both HAC and non-HAC handsets; and
• a link to the Global Accessibility Reporting Initiative (GARI) website with details on HAC and non-HAC devices; or alternatively, a clearly available list on the service provider’s website of no longer sold HAC devices offered in the past two years.

To facilitate service provider transition, the following implementation schedule was proposed for adoption:

• Reporting Requirement – Waiver of the service provider reporting requirement for the next filing deadline, January 15, 2019, as long as the provider submits its first certification 30 days after notice of OMB approval of the new rules in the Federal Register. Subsequently, the annual certifications for 2020 onward would be due annually on January 15.
• Website Requirement – Service providers would be required to post the new website information and maintain the outlined information within 30 days after notice of OMB approval of the new website information collection rules in the Federal Register. The posting and retention of data would need to cover the period beginning January 1, 2018 and after.

There will be plenty for interested parties to comment on, as we discussed in an earlier blog post providing an overview of the draft NPRM, which was largely retained in the document finally adopted. The FCC is considering myriad options to restructure that spectrum to introduce commercial flexible mobile use and fixed point-to-multipoint operations while protecting incumbent fixed satellite service uses and grandfathered point-to-point licenses. The 4 GHz Band is commonly recognized by the mobile industry, the FCC, and others, as a key mid-spectrum band for next-generation networks and applications, including 5G and the Internet of Things.

It’s worth keeping in mind several other related upcoming deadlines, one definite and the other not yet established. Operators of existing earth stations operating in the 4 GHz Band that are not yet licensed or registered – but which were constructed and operational by April 19, 2018 – have until October 17, 2018, to apply for the license or register. Already, it is reported that several thousand earth stations have taken advantage of the opportunity, but time will soon be running out for those earth station operators that have not taken advantage of the time-limited relief provided by the FCC from its temporary freeze on new registrations and license applications. (Applications for new space stations as well as new fixed point-to-point links are also temporarily frozen, but without exceptions.) For those operators of earth stations that are not yet registered or licensed that want to be considered for protection from interference under any new rules in the 4 GHz Band, this may well be your final opportunity to secure protection. The FCC has proposed making the freezes permanent. Remember that the FCC has waived the typical requirement for coordination reports with the registrations or license applications.

In addition, the date for complying with the certification and information collection requirements applicable to earth station and space station operators adopted in the Order accompanying the NPRM has not yet been set. Compliance with the information collection requirements may be critical to receiving whatever protections the FCC may afford existing fixed satellite service operations. On August 20, the Order was published in the Federal Register which requires: (1) certification by earth stations registered or licensed before April 19, 2018; (2) the submission of certain information by operators of temporary fixed and transportable earth stations; and (3) information applicable to licensed space stations. Earth stations licensed or renewed under the temporary filing window through October 17 will not be subject to the certification requirement. (In contrast with the draft NPRM, the final NPRM adopted by the FCC excluded the upfront collection requirements for operators of 4 GHz Band earth stations other than the temporary fixed or transportable variety, leaving potential collection requirements as something to be considered later in the rulemaking after a record of the need for such data is created and reviewed.) These information collection requirements are subject to the Paperwork Reduction Act and won’t become effective until approved by OMB and a subsequent notice is released setting the compliance date, a process which could take a couple of months or longer. For now, there is not a whole lot to do but wait for that process to play out, although it might be good idea to start gathering the information, particularly for entities that have a lot of earth stations subject to the requirements.

Many other countries are moving forward with plans to make these and/or nearby frequencies available for 5G this year or shortly thereafter, underscoring the FCC’s drive to move forward expeditiously. However, given the variety of views regarding the 4 GHz Band generated in the 2017 Mid-Band Notice of Inquiry (“Mid-Band NOI”), as well as in response to the recent FCC public notice seeking comment to help prepare the report to Congress on the 4 GHz Band required by the recently-passed RAY BAUM’S Act, there is every reason to expect that the precise outcomes of this proceeding will remain uncertain for some time despite the general move toward making more spectrum available for flexible use applications.

The agency’s most significant recent action was to release a public draft of a Notice of Proposed Rulemaking and Order (“Draft NPRM”) that it plans to vote on at its upcoming July 12 Open Meeting. As a general matter, the Draft NPRM makes plain the FCC has before it three primary objectives which, in both the near- and long-term, may be in tension:

• Add a primary mobile allocation to the band (except aeronautical mobile) and propose to clear at least part of the band for flexible mobile use “beginning at 3.7 GHz and moving higher up in the band as more spectrum is cleared.”
• Consider rule changes that “promote more spectrum efficient and intensive fixed use of the band on a shared basis starting in the top segment of the band [i.e., near and below 4.2 GHz] and moving down the band,” namely point-to-multipoint (“P2MP”) services.
• Protect incumbent operations – fixed point-to-point and fixed satellite service (“FSS”) – in the band.

As the FCC recognizes, key challenges will be “to protect existing earth station users while limiting uses that would hamper new intensive terrestrial use of the band” and what protection should be afforded existing fixed microwave links. The FCC will tackle the relative obligations and/or rights that each category of protected incumbents may have under each approach for more intense terrestrial use of the band and determine which, if any, categories of incumbents must new flexible use licensees relocate and under what standards, terms, or rules.

The challenge of protecting earth station users will require information the FCC does not yet have. The same day the FCC released the Draft NPRM, the International Bureau extended by 90 days the recently opened temporary filing window – from the original July 18 deadline to October 17, 2018 – for existing earth station operators to license or register earth stations in the 4 GHz Band that currently are not licensed or registered. When that window was open, the FCC froze all new FSS earth station and fixed microwave link applications and registrations, as applicable, in the 4 GHz Band. Further, the International Bureau, also on June 21, simultaneously issued a second public notice announcing a temporary freeze, effective immediately, on the filing of new space station license applications and new requests for U.S. market access through non-U.S.-licensed space stations to provide service in the 4 GHz Band.

The ostensible purpose of the earth station filing window afforded to operators is to allow the FCC to better understand the extent to which the band is used prior to making changes that could impact those uses. While almost 5,000 earth stations were licensed or registered as of the time of the freeze, many were not. Estimates are that there may be thousands of stations that are not in the database, but were constructed and operational, in use for a variety of non-governmental (e.g., video content) and governmental purposes (e.g., environmental and meteorological data and alerts).

The proof may be in the pudding, meaning the number of station operators that take advantage of the filing window. The Draft NPRM states the FCC’s tentative conclusion to not afford interference protection of any kind to earth station operators who do not both license or register existing operations by the October 17 deadline and also respond to an additional information request (and requirement for a certification of construction and operational status) that the Draft NPRM would direct the International Bureau, the Wireless Telecommunications Bureau, and the Office of Engineering and Technology to issue in a subsequent public notice. Indeed, the Draft NPRM seeks comment on making the freezes permanent (both for earth stations and space stations). The FCC appears to have concluded tentatively that limiting new earth stations in this manner would provide a stable spectral environment for more intensive terrestrial use, an issue to be resolved in the rulemaking based, in part, on the data collected. To complement the data collected as a result of filings made during the current limited window and in response to the forthcoming public notice contemplated by the Draft NPRM, the FCC intends to consult with the National Telecommunications and Information Administration and affected Federal agencies regarding the Federal entities, stations, and operations in the 4 GHz Band.

In addition to better understanding FSS use, the FCC concludes that co-channel sharing between incumbents and mobile services is not feasible, and seeks comment on different proposals to clear all or part of the band for flexible mobile use. Echoing some of the considerations that are in play in the contentious Ligado license modification proceedings, i.e., in the 1675-1680 MHz band where Ligado hopes to gain access to spectrum currently used for the downlinking of GOES-R weather data by transitioning satellite users to a terrestrial content delivery network, the Draft NPRM asks whether there are alternative technologies and means by which earth station operators can retrieve their information currently made available via 4 GHz Band FSS.

One last item of note: The Draft NPRM has its roots in the record developed in response to the FCC’s 2017 Mid-Band NOI, which sought to obtain information on existing and proposed uses of spectrum between 3.7 GHz and 24 GHz in the search for additional spectrum for flexible use. The Mid-Band NOI sought specific comment on the 4 GHz Band, as well as the “6 GHz Bands,” in particular 5.925- 6.425 GHz and 6.425-7.125 GHz. The Draft NPRM does not extend to the 6 GHz Bands, but foreshadows that the FCC “may address” these and other mid-band spectrum “in subsequent items.” Given the strong interest in the 6 GHz bands by advocates of unlicensed operations, and the FCC’s general goals of making unlicensed spectrum available along with licensed frequencies, those subsequent actions may be coming to an FCC Open Meeting soon.

The three-tiered 3.5 GHz band framework which is still in the process of being launched is designed to allow sharing –by multiple-user types: by primary radar and satellite users which would retain the highest priority and level of interference protection, by second-priority PALs licensed by auction, and by third-tier licensed-by-rule General Authorized Access (“GAA”) users. Advanced frequency coordinators, known as the Spectrum Access System (“SAS”) administrators supported by Environmental Sensing Capability (“ESC”) Operators, will mediate and control access rights between the three tiers of users.

Possible PAL Rule Modifications

The NPRM does not propose to alter the basic structure, but instead seeks comment on potentially modifying the licensing rules for PALs in the following ways:

• Longer License Terms. The NPRM proposes extending PAL license terms, from three years to ten years with the expectation that this will increase the value of the licenses for prospective PAL applicants and provide incentives for them to seek licenses.
• Renewal Expectancy. The FCC proposes to eliminate the current requirement that PALs automatically terminate at the end of the license term. Rather, the NPRM tentatively concludes that PALs should enjoy a renewal expectancy, in the hopes of promoting investment in deployment and minimizing the risk of stranded investment.
• Expanded Geographic License Areas. The current PAL licensing rules provide for licenses issued in each census tract, anticipating their use for small cells. The NPRM solicits comment on larger PAL license areas such as Partial Economic Areas (“PEAs”) or counties. The NPRM reflects a prediction that larger license areas would “stimulate additional investment, promote innovation, and encourage efficient use of spectrum resources,” while asking for input on impacts to smaller entities, rural deployments, and investments relying on the current rules. The NPRM reflects an openness to a variety of approaches, such as a hybrid where some of the 10 megahertz-wide PALs would be issued within PEAs whereas others would be issued on a smaller scale, or a combination of PEAs in urban areas and census tracts in rural areas, offering PALs of different sizes, among other alternatives.
• Spectrum Caps. While the Commission has not proposed to increase the amount of spectrum in the 3.5 GHz band available to PALs in excess of the current 70 megahertz – rejecting T-Mobile’s proposal in its petition and ensuring at least 80 GHz will always be available in a given area for GAA licensees – the FCC does seek comment on lifting or revising the current single-licensee cap of 40 megahertz in a given area.
• Secondary Market Transaction Reforms. Consistent with its proposal to expand the geographic size of PAL licenses, the Commission proposes to allow partitioning and disaggregation of PALS in secondary market transactions to promote the efficient use of the spectrum where a licensee does not plan to utilize the entire license authority. However, the Commission also seeks comment on whether to allow partitioning and disaggregation irrespective of whether the agency opts to expand PAL license areas.
• Auction Rule Modifications. The FCC proposes to eliminate prior restrictions on the number of PALs per license area that are made available at auction depending on the number of PAL applicants for a given license area. Currently, except in rural areas, if there is only one PAL applicant, no licenses will be issued. The NPRM asks for comment on whether the proposed changes in the term, renewability, and geographic license area of PALs would make PALs “more useful to a wider range of potential licensees and, if so, whether that would reduce the benefit of limiting the number of PALs available in a given license area or not assigning PALs in any area for which there is only one applicant.” The Commission now proposes to assign PALs even when there is only one applicant in a given license area, assuming the applicant is otherwise qualified. The NPRM also asks whether there should nonetheless be an auction – bids of a minimum amount per license issued – where there are no more than applications for seven 10 megahertz in a given area, i.e., no traditional mutual exclusivity. Finally, the Commission seeks comment on allowing PAL applicants to bid on specific spectrum blocks within any given PAL license area.

The NPRM proposes to amend the current CBRS rules which require SAS administrators to make Citizens Broadband Service Device (“CBSD”) registration information available while “obfuscating” CBRS licensees’ identities. The Commission proposes, rather, to prohibit SAS administrators from disclosing publicly CBSD registration information that may compromise the security of critical network deployments or be considered competitively sensitive. The Commission recognizes that several carriers opposed disclosure on the grounds that it could jeopardize network security and confidential business information. However, the Commission also acknowledges arguments by parties such as Google and the Wireless Internet Service Providers Association (“WISPA”) that registration information is valuable to potential co-channel operators in investigating the feasibility of deploying service in the 3.5 GHz band before incurring the cost of attempting to reserve or participate in an auction for spectrum. Accordingly, the FCC proposes to amend the rules “to prohibit public disclosure of registration information that may compromise network security or that is competitively sensitive,” while asking whether, consistent with such a prohibition, there is certain information that SAS administrators can release to would-be operators to promote increased spectrum use in the complex multi-tier priority framework.

Potential Revisions to 3.5 GHz Emissions and Interference Limits

The Commission seeks to relax the CBRS out-of-channel and out-of-band emission limits applicable in the 3.5 GHz band, principally to facilitate wider bandwidth channels. Previously, the FCC adopted the following limits:

• -13 dBm/MHz from 0 to 10 megahertz from the assigned channel edge;
• -25 dBm/MHz beyond 10 megahertz from the assigned channel edge down to 3530 MHz and up to 3720 MHz;
• -40 dBm/MHz below 3530 MHz and above 3720 MHz.

Accompanying Order Terminating Petitions

A brief Order accompanies the NPRM and consolidates several dockets pertinent to 3.5 GHz. As noted above, T-Mobile and CTIA each filed petitions for rulemaking earlier in the year seeking revisions to the 3.5 GHz band rules. In general, the Order grants both petitions but rejects proposals by T-Mobile to revisit in-band base station power limits and make the entire 150 megahertz of the band available for PALs, as discussed earlier.

* * *

If adopted, the PAL licensing reforms proposed in the NPRM could have serious ramifications for how the 3.5 GHz band is utilized. Such rule revisions could alter both the extent and the nature of investment in the 3.5 GHz band, impacting the variety of providers and operators that seek access to the band. While expanding the scope and duration of PALs could make them more attractive to large carriers for 5G deployment, these same measures, depending on the details, may act as a disincentive to participation in PALs by small businesses and rural carriers. Parties interested in the 3.5 GHz band would do well to monitor this proceeding (and even participate in the rulemaking) and look for new developments, as we will continue to do.

Mobile Wi-Fi Calling and VoIP Service Providers Now Must Comply with FCC Hearing Aid Compatibility Rules

While the FCC's HAC rules currently apply only to CMRS services or handsets with two-way switched voice or data services, the R&O expands the scope to cover handsets used for other services like Wi-Fi calling and VoIP that are increasingly available to the public as well as those that may be developed in the future. Specifically, any service provider or manufacturer of handsets (mobile devices that contain built-in speakers and are typically held to the ear in any of their ordinary uses) used with any terrestrial mobile service that enables two-way real-time voice communications among members of the public or a substantial portion of the public must comply with the new rules. The new rules will be effective 30 days after publication in the Federal Register, which had not yet occurred as of this post.

These rules will apply to technologies such as interconnected and non-interconnected VoIP services with pre-installed software applications. This includes handsets that enable voice communications through VoIP software applications installed by either the manufacturer or service provider regardless of whether the calling functionality provides interconnection to the public switched telephone network. These rules will also apply to cordless phones as well as handsets offered by wireless resellers (MVNOs), facilities-based providers, and voice communications services over Wi-Fi that do not use an in-network switching facility enabling the reuse of frequencies and seamless handoff.

The Commission opted not to extend the requirements to public safety networks, enterprise networks, and non-terrestrial networks such as Mobile Satellite Service that are not mass-marketed to the public, yet the Commission retains the right to revisit that decision in the future if necessary.

The R&O is clear that the Commission expects manufacturers to account for hearing aid compatibility during the early stages of product development, yet notes that in rare cases where a new technology cannot practicably meet the requirements, section 710 of the Communications Act expressly provides for a waiver of the rules.

Lastly, the Commission requires both manufacturers and service providers to meet defined benchmarks for deploying wireless handsets to ensure a wide selection of models for consumers with hearing loss. The Commission's existing deployment benchmarks will apply to newly covered handsets and air interfaces as of January 1, 2018 for manufacturers and Tier 1 providers, and on April 1, 2018 for handsets offered by non-Tier 1 service providers.

Other deadlines to note: The annual FCC Form 655 filing deadlines for 2015 are still in effect. Manufacturers must electronically file annual compliance reports with the Commission on July 15 of each year and service providers must file on January 15 of each year. The NPRM does ask whether to remove the annual filing requirement, should it adopt the Joint Proposal, for both providers and manufacturers, or alternatively, remove the requirement for service providers, only requiring manufacturers to file annually.

FCC Seeks Comment on Joint Proposal for Full Wireless Handset HAC Compliance in Eight Years

The Commission's NPRM solicits comment on a proposal (Joint Proposal) submitted by three consumer advocacy groups and three trade associations, which seeks to ensure that 100 percent of all new wireless handset models are accessible to consumers with hearing loss within eight years. The Competitive Carriers Association, CTIA – The Wireless Association, the Telecommunications Industry Association (TIA), the Hearing Loss Association of America, the National Association of the Deaf, and Telecommunications for the Deaf and Hard of Hearing submitted the Joint Proposal on November 12, 2015, which the FCC is considering. The proposal includes the following:

• Within two years, 66 percent of wireless handsets offered to consumers should be compliant with the requirements;
• Within five years, 85 percent of wireless handsets offered to consumers should be compliant with the requirements; and
• Within eight years, 100 percent of wireless handsets should be compliant, subject to a finding by the FCC that the goal of 100 percent is achievable using the following process:

While the Commission appears to favor the Joint Proposal, it also seeks input on alternative proposals it should consider and whether 100 percent compatibility is the appropriate benchmark. The commenters submitted the Joint Proposal in response to a Public Notice requesting updated information and comment on wireless HAC regulations last November.

FCC Seeks to Update Volume Control Requirements

Last month, the FCC released a related Notice of Proposed Rulemaking, seeking comment on the Commission's HAC rules for wireline handsets. Under this NPRM, the Commission proposes to adopt the Telecommunications Industry Association 2012 ANSI Wireline Volume Control Standard and apply the FCC's wireline telephone volume control and other HAC requirements to handsets used with VoIP services. Second, the FCC also seeks comment on a rule that would standardize volume control for wireless handsets to ensure more effective acoustic coupling between handsets and hearing aids for cochlear implants. Third, the Commission proposes to require manufacturers to exclusively use the 2011 standard developed by ANSI to certify future handsets as hearing aid compatible. Lastly, the FCC seeks comment on a process for enabling industry to use new or revised technical standards for assessing HAC compliance.

Comments on this NPRM are due 60 days after publication in the Federal Register and reply comments are due 90 days after publication in the Federal Register.

It is a busy time at the Commission with respect to HAC requirements. These new rules are extensive. Feel free to reach out to your Kelley Drye Communications Attorneys should you need assistance or having any questions about how these rules may impact your business.

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