On June 10, 2020, the Commission released the Declaratory Ruling and Notice of Proposed Rulemaking (“Ruling and NPRM”) in the Implementation of State and Local Governments’ Obligation to Approve Certain Wireless Facility Modification Requests Under Section 6409(a) of the Spectrum Act of 2012 proceeding, which seeks comment on changes to the Commission’s rules implementing section 6409(a) of the Spectrum Act to facilitate upgrades of existing sites for 5G networks (WT Docket No. 19-250).

 

The Ruling clarifies several aspects of section 6409(a) rules which established a streamlined process for State and local government to review applications to deploy wireless telecommunications equipment on existing infrastructure. These rules require a State or local government to 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 within 60 days.

 

Organized by category, the Ruling makes the following specific clarifications:

  • 60-Day Shot Clock
    • An applicant has effectively submitted a request for approval that triggers the running of the 60-day shot clock under section 1.600(c)(2) when it satisfies both of the following criteria: (1) the applicant takes the first procedural step that the local jurisdiction requires as part of its applicable regulatory review process under section 6409(a), and, to the extent, it has not done so as part of the first required procedural step, (2) the applicant submits written documentation showing that a proposed modification is an eligible facilities request; and
    • A local government may not delay the start of the shot clock by requiring an applicant to submit documentation that is not reasonably related to determining whether the proposed modification is an eligible facilities request.
  • Equipment Cabinets
    • The term “equipment cabinets” in section 1.6100(b)(7)(iii) does not include relatively small electronic components, such as remote radio units, radio transceivers, amplifiers, or other devices mounted behind antennas, and up to four such cabinets may be added to an existing facility per separate eligible facilities request;
    • Having a small piece of transmission equipment mounted on a structure does not make it an “equipment cabinet” simply because it is more visible when mounted above ground; and
    • In response to several localities have who argued that the Commission allowing the maximum number of additional equipment cabinets to be determined for each separate eligible facilities request would permit an applicant to add an unlimited number of new equipment cabinets to a structure so long as the applicant proposes adding them in increments of four or less, the Commission finds this is inaccurate because the text of section 1.6100(b)(7)(iii) limits the number of equipment cabinets per modification to no more than “the standard number of new equipment cabinets for the technology involved.”
  • Concealment Elements
    • The term “concealment element” in section 1.6100(b)(7)(v) means an element that is part of a stealth-designed facility intended to make a structure look like something other than a wireless facility, and that was part of a prior approval; and
    • To “defeat” a concealment element under section 1.6100(b)(7)(v), a proposed modification must cause a reasonable person to view a structure’s intended stealth design as no longer effective.
  • Additional factors influencing whether a modification request qualifies as an “eligible facilities request” that the State or local government must approve within 60 days
    • The phrase “with separation from the nearest existing antenna not to exceed twenty feet” in section 1.6100(b)(7)(i) allows an increase in the height of the tower of up to twenty (20) feet between antennas, as measured from the top of an existing antenna to the bottom of a proposed new antenna on the top of a tower; and
    • The phrase “conditions associated with the siting approval” may include aesthetic conditions to minimize the visual impact of a wireless facility as long as the condition does not prevent modifications explicitly allowed under sections 1.6100(b)(7)(i)-(iv) (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.

 

Next, the NPRM seeks comment on whether it should revise the section 6409 rules regarding boundaries of a tower site. Some commenters argue that it is difficult to collocate transmission equipment on existing macro towers without expanding the compounds surrounding those towers in order to deploy additional equipment sheds or cabinets on the ground. On the other hand, the Commission states that localities generally oppose the compound expansion and argue that excavation of up to 30 feet beyond a tower’s current site cannot be considered insubstantial. Given this debate, the Commission seeks comment on the costs and benefits of two possible approaches:

  • First approach, which would allow compound expansion under 30 feet to be included under section 6409(a) streamlined processing: The Commission proposes to revise the definition of “site” in section 1.6100(b)(6) to make clear that “site” refers to the boundary of the leased or owned property surrounding the tower and any access or utility easements currently related to the site as of the date that the facility was last reviewed and approved by a locality. Under this approach, the Commission would also amend section 1.6100(b)(7)(iv) so that modification of an existing facility that involves the ground excavation or deployment of up to 30 feet in any direction outside the facility’s site will be eligible for streamlined processing under section 6409(a).
  • Second approach, which would not allow compound expansion under 30 feet to be included under section 6409(a) streamlined processing: Alternatively, the Commission seeks comment on whether to revise the definition of the site in section 1.6100(b)(6), as proposed above, without making the proposed change to section 1.6100(b)(7)(iv). The Commission would define “site” in section 1.6100(b)(6) as the boundary of the leased or owned property surrounding the tower and any access or utility easements related to the site as of the date an applicant submits a modification request.

 

  • Comments on the NPRM are due 20 days after publication in the Federal Register.
  • Reply comments are due 30 days after publication in the Federal Register.

 

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