Specifically, under the new OTMR regime, new attachers with “simple” wireline attachments (i.e., do not require relocation of existing equipment or service outages) would be allowed to perform and control most of the work to prepare a pole to hold new facilities without relying on the pole owner. The rule will apply to pole attachments governed by federal law, which applies in thirty states that do not regulate pole attachments themselves. The draft emphasizes that its new OTMR process is not a requirement and that parties are welcome to negotiate alternative solutions. The FCC also plans to codify its existing precedent that utilities cannot require an attacher to seek utility approval before “overlashing” new facilities to current attachments, but utilities can require prior notice before the attacher does such work. The FCC also plans to eliminate disparities between the pole attachment rates paid by incumbent telecommunications carriers versus cable and other telecommunications attachers. In particular, the agency intends to establish a presumption for newly-negotiated pole attachment agreements between incumbent carriers and utilities that an incumbent carrier will receive comparable pole attachment rates, terms, and conditions as a similarly-situated non-incumbent carrier or a cable television system providing telecommunications services.

The Declaratory Ruling portion of the draft item clarifies the FCC’s interpretation of Section 253(a) of the Communications Act as prohibiting a state or locality from adopting any moratoria on telecommunications infrastructure deployment. This federal preemption would apply not only to express moratoria, such as laws or regulations prohibiting deployments, but also de facto moratoria that can “effectively halt or suspend” consideration of telecommunications service permits or applications without explicitly banning them. The FCC explained that actions on the part of a state or locality that merely involve some delay do not represent preempted moratoria; instead the action would need to result in a significant or unreasonably long wait.

Rulemakings directed at accelerating broadband deployment generally have drawn bipartisan support and have been a hallmark of the Pai FCC from the beginning. The Chairman clearly sees reducing barriers to pole access for new attachments as critical to densifying networks in advance of 5G deployments. However, utilities and other pole owners likely will continue their pushback against the FCC OTMR proposals, seeking additional checks to ensure pole attachments conform to safety standards.

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.

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