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.

Wireless Infrastructure Deployment: The FCC issued a draft Declaratory Ruling and Order finding that state/local fees for accessing rights of way and other charges associated with deployments may prohibit the provision of wireless service in violation of the Communications Act. The FCC therefore plans to allow such fees and charges only to the extent they are nondiscriminatory and represent a “reasonable” approximation of the state/local governments’ costs related to the deployment. The draft item would further clarify that state/local consideration of aesthetic concerns with deployments are not necessarily unlawful, so long as any aesthetic requirements are: (1) reasonable; (2) no more burdensome than those applied to other deployments; and (3) published in advance. In addition, the FCC will establish two new shot clocks for small wireless facility deployments (60 days for collocation on preexisting structures and 90 days for new constructions) and codify existing shot clocks for larger wireless facility deployments.

911 Dialing and Location Accuracy: A draft Notice of Proposed Rulemaking seeks comment on requiring MLTS to enable users to dial 911 directly, without having to dial a prefix to reach an outside line (e.g., requiring callers to first dial 9). The FCC proposes requiring MLTS to provide a notification that a 911 call has been made to a front desk, security office, or other centralized location. The proposed rulemaking asks whether MLTS, VoIP, and other telecommunications service providers should be responsible for ensuring that “dispatchable location” information is transmitted with 911 calls, such as the calling party’s street address as well as room number, floor number, or similar data necessary to help first responders reach the called party quickly.

Auctioning Toll Free Numbers: The FCC plans to adopt a draft Report and Order that would enable it to auction off toll free numbers. Generally, the FCC has allocated toll free numbers on a first-come, first-served basis at no cost. The FCC claims this process leads to stockpiling and other inefficient uses of toll free numbers, while rewarding parties that “game” the system through computer-assisted number reservation tools. The FCC proposes that its first auction will cover 17,000 numbers recently made available in the 833 toll free code. Importantly, the FCC intends to eliminate the prohibition on secondary market sales of toll free numbers to allow successful auction participants to sell numbers to others, potentially creating a “gold rush” for prime toll free numbers.

ESIM Expansion: Under a draft Report and Order and Further Notice of Proposed Rulemaking, the FCC would consolidate the rules that apply to earth stations on aircraft, vessels, and vehicles, eliminating duplicative regulations and streamlining the application process. It would also expand the frequencies available for ESIMs to include conventional Ka-band spectrum. Operation of ESIMs is currently confined to the conventional C-band spectrum and parts of the Ku-band spectrum. The FCC argues that any potential interference issues involving incumbent satellite operators in the Ka-band can be resolved through prior coordination and industry best practices. The FCC seeks comment on whether ESIMs should be allowed to operate in additional spectrum bands, on both a protected and unprotected basis, to provide even more flexibility.

The National Environmental Policy Act (“NEPA”) and the National Historic Preservation Act (“NHPA”) require reviews of the impact on the environment or historic properties, respectively, of proposed construction of wireless communications facilities. By the Order, the Commission facilitates easier deployment of certain kinds of wireless infrastructure and eliminates delays that arose from the prior NEPA/NHPA review processes. The changes to the NEPA/NHPA rules adopted by the Order:

• Clarify that deployment of small wireless facilities by non-Federal entities does not constitute a “federal undertaking” under NHPA or a “major federal action” under NEPA. As a result, neither historic preservation nor environmental review are required for small wireless facilities, meaning those that (1) are on new structures that are either no taller than 50 feet (including their antennas) or no more than 10 percent taller than other structures in the area, whichever is greater; (2) are on existing structures where the deployment does not cause that structure to extend to a height of more than 50 feet or by more than 10 percent, whichever is greater; (3) have antennas with no more than three cubic feet in volume; and (4) use wireless equipment associated with the antenna that is no larger than 28 cubic feet. Larger wireless facilities, including those regulated by the antenna structure registration system or subject to site-by-site licensing, will continue to be subject to the existing rules governing historic preservation and environmental review, with certain modifications summarized below.
• Amend the review processes under NHPA and NEPA for non-exempted, larger wireless facilities, including changes
  • Requiring applicants that provide a proposed tower (Form 620) or collocation (Form 621) facility submission packet to State historic preservation offices (“SHPOs”) to also give the detailed information in the packets to all affected Tribal Nations. Applicants are not required to provide Tribal Nations information beyond what is required for the Form 620 or 621 submission packet even if a Tribal Nation tries to condition its response on the provision of additional content.
  • Requiring applicants with undertakings exempted from SHPO review – meaning those deemed to have minimal to no potential to affect historic properties – to identify and contact Tribal Nations to determine whether properties of significance to them may be affected. In such communications, Applicants should also fully explain the project and its location, and include contact information, a map of the proposed facility location, facility coordinates, and a description of the facility and proposed site.
  • Providing that the 30-day Tribal Nation response window begins to run once the Tribal Nation receives (or may reasonably be expected to have received) a complete submission packet. The FCC will not consider the time period for Tribal Nation response to start if the packet information is incomplete or inaccurate.
  • Establishing a new procedure to address situations where Tribal Nations fail to respond to the proposed facility submission packet.
  • Clarifying that applicants are not required to pay fees required by Tribal Nations as a part of the Section 106 process.
• Remove the requirement that applicants file environmental assessments (“EAs”) for a proposed facility that is in a floodplain as long as the proposed facility is at least one foot above the base flood elevation of the floodplain.
• Require FCC staff, in cases where the EA is complete when submitted (which is most cases), to review an EA and issue a finding of no significant impact (“FONSI”) within 60 days of the EA being placed on notice, either by publication of a public notice or a post on the Commission website. Staff should conduct initial review for adequacy and completeness for FONSI within 20 days from the date it is placed on notice.

The Order was approved on a 3-2 vote with both Democratic Commissioners, Clyburn and Rosenworcel, dissenting. These Commissioners, while generally supportive of the goal of the Order, expressed concern that the changes did not sufficiently consider the interests of local and Tribal communities and improperly interprets the coordination provisions required by NEPA and NHPA. Commissioner Clyburn stated that “the potential adverse impact of these proposed rules on Tribal Nations, historic sites, and the natural environment were severe.” Some Tribal organizations also raised objections regarding the Order. Chairman Pai, however, maintained this assessment was incorrect and that the FCC consulted “extensively with Tribal Nations, intertribal organizations, and state and local historic preservation officers” in developing the final rules. The mixed reactions suggest that some Tribal organizations may seek further Commission or judicial review.

The Order takes effect sixty (60) days after publication in the Federal Register except for those provisions which contain non-substantive modifications to existing information collection requirements which will become effective when the Commission publishes a notice in the Federal Register announcing approval by the Office of Management and Budget.

The Mobility Fund provides financial support to wireless service providers to maintain and extend mobile broadband and voice services in unserved and underserved areas. The FCC plans to give out over $4.5 billion in support through the MF-II auction to expand 4G LTE coverage in places lacking such service. The Order addresses four key issues:

1) Relaxing Letter of Credit Requirement: The FCC requires a MF-II auction winner to obtain a letter of credit covering the support received, which allows the FCC to recover funding in the event the service provider fails to meet its performance milestones. Recognizing the significant costs of obtaining a letter of credit, the FCC will allow a service provider to significantly reduce the letter of credit’s value (and simultaneously reduce the letter of credit’s cost) once the service provider meets its 80 percent service milestone. The FCC also stated that a service provider can cancel the letter of credit once it meets its final performance milestone. With these changes, the letter of credit obligations for the MF-II auction match the letter of credit obligations imposed in the Connect America Fund Phase II (“CAF-II”) auction, which covers fixed broadband deployment.

2) Clarifying Collocation Obligation: The FCC initially indicated that funding recipients would be required to provide reasonable collocation by other service providers on “all” towers that the recipients owned or managed. A number of service providers asked the FCC to reconsider this requirement, pointing out that a similar collocation requirement applicable to earlier auction winners only covered “newly constructed” towers. The FCC resolved this discrepancy by clarifying that the collocation requirement only applies to newly constructed towers in the areas where the service provider receives MF-II support.

3) Maintaining Budget and Disbursement Schedule: The FCC refused to increase the budget for the MF-II auction in response to wireless industry claims that it did not provide enough money to achieve full 4G LTE coverage in all eligible areas. The FCC affirmed its budget calculation methodology and stated that it would re-evaluate if more funding is necessary in the future. The FCC denied requests to base the budget on wireless carriers’ projected costs, expressing concern that such a system would encourage inflated claims and waste. The FCC also affirmed its monthly disbursement schedule after carriers asked it to allow larger support payments early in the network construction process. While the FCC recognized that carriers would likely incur most costs early in the network construction process, it found that trying to match each carriers’ costs during the deployment process would strain the MF-II budget. The FCC also noted that CAF-II will operate on a monthly disbursement schedule.

4) Preserving Performance Requirements: The FCC rejected calls to lower the minimum level of service required from MF-II auction winners from the current 10/1Mbps median data speed and 100 ms latency benchmarks. The FCC found such benchmarks necessary to ensure that rural offerings keep pace with their urban counterparts and do not become a “second-class” service.

The FCC also declined to extend bidding preferences to small businesses in the MF-II auction, which Commissioner Clyburn supported, or adopt new limitations on winning carriers entering into equipment exclusivity arrangements. In addition, the FCC retained the role played by the Universal Service Administrative Company in verifying the data wireless providers submit to demonstrate compliance with their MF-II auction buildout requirements.

With the last MF-II auction reconsideration petitions resolved, the FCC can move on to finalizing the set of areas eligible for funding. The FCC recently issued an initial map of areas presumptively eligible for funding. The FCC’s eligibility determinations will be subject to a challenge process, which is scheduled to begin on March 29, 2018. However, it remains unclear when the challenge process will conclude and the FCC will announce the final list of areas eligible for support through the MF-II auction. Whenever it occurs, the MF-II auction will have transformative impacts on rural wireless broadband deployment, so stakeholders should assess whether funding opportunities exist in their service areas and consider participating in the auction process.

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.”

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