On September 6, 2019, CTIA filed a Petition for Declaratory Ruling (“Petition”) in the Accelerating Wireless/Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment proceedings, requesting that the Commission issue a declaratory ruling to eliminate specific barriers to the use of existing infrastructure (WT Docket No. 17-79; WC Docket No. 17-84). Specifically, CTIA requests that the Commission clarify the deployment qualifications for streamlined siting processing and the remedies available under Section 6409(a) of the 2012 Spectrum Act, and take actions to remove uncertainty regarding access to utility poles under Section 224 of the Communications Act.
There are two statutory provisions that grant access rights to certain existing structures for wireless use. Section 6409(a) of the 2012 Spectrum Act requires siting authorities to approve applications for non-substantial collocations, removals, or modifications of wireless facilities on existing structures. Section 224 of the Communications Act gives providers access to poles owned by utilities on reasonable and nondiscriminatory rates, terms, and conditions. CTIA argues in its Petition that utilities and localities are unevenly applying and misinterpreting these provisions to deny or condition access to existing structures, which is hindering wireless broadband deployment. CTIA requests that the Commission clarify Sections 6409(a) and 224 and their implementing rules.
First, CTIA requests that the Commission clarify which deployments qualify for streamlined processing and the remedies available under Section 6409(a):
- Concealment Requirements – The Commission should clarify that the term “concealment element” applies only to a stealth facility or design element, and that concealment requirements may not be used to disqualify an application as an eligible facilities request (“EFR”). CTIA also asks the Commission to clarify that localities cannot use requirements that future modifications must comply with “blanket” concealment specifications to prevent future applications from qualifying as EFRs.
- Equipment Cabinets – The Commission should clarify that the term “equipment cabinet” means cabinets that are placed on the ground or elsewhere on the premises, and that the numerical limits on cabinets do not apply to equipment attached to the structure itself, which is covered by other parts of the rule.
- Modifications to Non-Tower Structures – The Commission should clarify that the “base station” in the context of a proposed modification is the entire non-tower structure, that a proposed modification be located anywhere on the structure, and that the dimensions of the structure must be used in determining if a modification qualifies as an EFR or substantial change.
- Failure to Act – The Commission should clarify that if a siting authority fails to timely act on an application for an EFR under Section 6409(a), the application is therefore “deemed granted” and “becomes effective”, and applicants may modify the tower or base station upon notice to the authority that the application is deemed granted. In addition, it should clarify that if the authority fails to issue a timely approval related to the modification, the approval is deemed granted.
Second, CTIA requests that the Commission take the following actions to remove uncertainty about utility pole access for wireless communication facilities under § 224:
- Access to Light Poles – The Commission should clarify that the term “pole” in this Section includes utility-owned light poles, and that utilities must afford nondiscriminatory access to light poles at rates, terms, and conditions consistent with Section 224 and the Commission’s implementing pole attachment rules.
- Access to Space on Poles – The Commission should affirm that utilities may not impose blanket prohibitions on access to any portions of their poles, and clarify that before a utility can refuse access to any part of a pole, the utility must explain in writings its precise concerns relating to lack of capacity, safety, reliability, or engineering. Additionally, the Commission should clarify that it will promptly rule on complaints regarding access refusals, overcharges, or other obstructive practices.
- Pole Attachment Agreements – The Commission should affirm its prior holding and declare that utilities cannot ask providers to accept terms and conditions that are inconsistent with the Commission’s rules, and clarify that “bargained-for attachment solutions” in the OTMR/Moratoria Order only allows parties to customize agreements within the bounds of the Commission’s rules.
CTIA argues that the Commission has clear authority to make these clarifications, and that such actions would alleviate barriers to deployment and drive more intensive use of existing infrastructure by speeding access to structures that can be used in supplying additional network capacity.
On September 13, 2019, the FCC released a Public Notice seeking comment on a Petition for Rulemaking and Petition for Declaratory Ruling filed by the Wireless Infrastructure Association (“WIA”), as well as the CTIA Petition for Declaratory Ruling.
Comments are due October 15, 2019.
Reply comments are due October 30, 2019.
On September 30, 2019, the Wireless Telecommunications Bureau and the Wireline Competition Bureau (“Bureaus”) released an Order Granting Extension of Time (“Order”) extending the comment and reply comment dates for the Petition for Rulemaking and Petition for Declaratory Ruling filed by the Wireless Infrastructure Association (“WIA”) and a Petition for Declaratory Ruling filed by CTIA (collectively, “the Petitions”). The Order grants the separate requests of a coalition of organizations representing utilities (“Utilities”) and a coalition of local governments’ associations (“Local Governments”) requesting an extension of the comment and reply comment dates by 30 days, but finds that a 14-day extension of time is warranted in this proceeding.
The Utilities and the Local Governments argue the extension is necessary to prepare meaningful comments in response to the factual allegations in the Petitions, specifically citing inadequate notice and scheduling concerns in convening with governing boards and consulting with member companies.
Comments are now due October 29, 2019.
Reply comments are due November 13, 2019.
The Bureaus also clarify that comments and reply comments that exclusively address issues relating to clarifying the implementation of Section 6409(a) should be filed in WT Docket No. 19-250 only, and filings that exclusively concern pole attachment issues should be filed in WC Docket No. 17-84 only. Filings addressing both categories of issues should be filed in both dockets.
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