FCC Proposes New Rules to Ease Wireless Infrastructure Construction

When one talks about what’s hot in the wireless revolution (and, admit it, you know you do), it’s always the device makers and spectrum auctions that get most of the attention.  But everyone knows they’re just the face men.  Where would we be without the antennas, fiber optic cables, and transmission equipment that serve as the “go” to their “show”.

FCC Commissioners, including specifically Jessica Rosenworcel, agency get it.  Commissioner Rosenworcel noted that “the unsung hero of the wireless revolution is infrastructure” in a Notice of Proposed Rulemaking (NPRM) issued on  September 27.  This NPRM is seeking comment on a host of new measures to make it easier for wireless companies to build new infrastructure, hopefully easing existing service gaps and reducing the burden on overwhelmed sites.  

The proposals seek to (1) expedite the environmental and historical review processes for new “small antenna” sites (2) exempt some temporary towers from pre-construction notice and review rules, and (3) refine the rules governing when and how local and state governments have to approve new construction.  

Expediting Review of “Small Antenna” Sites 

The first of the proposals in this NPRM will make it easier for wireless providers to build distributed antenna systems (DAS) and “small cells”. These DAS and small cell systems take the place of traditional cell towers, usually in urban areas, indoors, or in places where the existing towers provide insufficient service.  

The FCC recognizes that their current review processes (mandated, in part, by the The National Environmental Policy Act of 1969 (NEPA), which says all federal agencies must require an environmental review of all “major Federal actions” that “significantly affect” the environment, with granting construction permits qualifying as a “major action”) don’t take into account the different impacts that these facilities, in contrast to traditional cell sites, have on the environment and historical neighborhoods and buildings.  

The Commission is considering exempting collocations (placing more antennas or transmission equipment on ones already in place) existing towers and structures (potentially including utility poles) from their environmental and historical reviews, though they acknowledge that there are differences between those two.  

That means there are actually a number of different proposals in play, including one to expand the “existing buildings” exemption to include everything from water towers to road signs (yes, a cell phone antenna might be coming to a stop sign near you!) and another to say these grants aren’t “major Federal actions” subject to review.  

Expanding the “Emergency Exemption” 

The second proposed change is to expand the “emergency” exemption for temporary facilities to include all temporary facilities that are less than 200 feet, have FAA notice, are going to be in place for less than 60 days, and have little or no required excavation.  

Right now, even these short-term towers are still subject to a 30 day pre-construction notice period, which means that temporary infrastructure often doesn’t get put in place. One somewhat surprising element of the proposal is that it would also allow these towers to avoid post construction public notice as well. The Commission seemed unsure of whether to use the proposed 200 foot limit for these towers, and on how to handle it when a carrier decides they’d like to keep the “temporary” towers around.  

Local and State Government Involvement 

The last proposal revolves around a persistent issue with wireless build-outs: local and state governments getting in the way. Whether it’s a city official on a power-trip, a local building code, or just a permit office with a backlog a mile high, one of the biggest hurdles wireless companies face in building more infrastructure is getting the permission of state and local governments. So Congress has used its power over interstate communications to restrict their authority when it comes to new wireless facilities, allowing the FCC to provide the guidance over  those restrictions.  

In particular, in the 2012 Middle Class Tax Relief and Job Creation Act (more commonly known to CommLawBlog readers as the “Spectrum Act”), Congress brought the Hammer of Preemption down on state and local governments, ordering that they “may not deny, and shall approve” any request to modify an existing facility that does not “substantially change” the physical dimensions of the facility.  The result:  the FCC has the power to define pretty much every term in the new rule (which is exactly what this part of the NPRM seeks to do).  

Now, the Commission indicated that it doesn’t want to completely foreclose state and local governments’ opportunities to craft their own rules and procedures.  It gives lip service to allowing other bodies to begin interpreting the rule’s terms.  But it also doesn’t seem interested in waiting for those bodies to start that interpretation process. . In reality, the FCC wants to promote collocation, and they believe that the best way to do that is to set clear rules which limit the ability of non-Federal actors to get in the way of that.  

In fact, there are a number interpretive issues the Commission highlighted, including:  

What counts as an “existing” facility (Verizon has stated that it wants the rule to include even buildings or poles that don’t currently have an antenna!)?  

What sorts of requirements and limitations the state and local governments may put on the new construction (for example, can they require that local building codes be complied with? What about if the original construction was only granted with limitations: must the newly added equipment comply as well? What kinds of evidentiary or procedural requirements may they put in place, recognizing that too much discretion there could allow them to undermine the rule?)?  

But the most important question is:  “what happens if the state or local government fails to comply with the rule?” Requiring the wireless company to go to the Commission or a court might mean that the intended acceleration from this rule would be in name only, but the commission seemed hesitant about the remedy the wireless companies want: a “deemed granted” rule. That would mean that, once a certain amount of time passed, the company would be able to act as if the town had granted their application, whether they had or not. This raises some constitutional concerns, though, and the Commission invited comments on that.  

This section of the NPRM also seeks to further refine the so-called “Shot Clock” rule. For those readers who don’t get the basketball reference, this rule came out of another provision of the Telecommunications Act of 1996, which limited how long localities can wait to act (“hold the ball”) on a pending application for a wireless facilities site. In 2009, the Commission decided that 90 days was sufficient for collocations, and 150 days was enough for all other applications. The ruling was affirmed by the Fifth Circuit and the Supreme Court, so the core issues aren’t being reconsidered.  

But the Commission does want to further clarify some issues, though, such as: 

What should be considered a “substantial increase in size”, which would turn a the shorter collocation period into the longer 150 day period?  

What should the Commission do with regard to incomplete applications, which currently do not count toward the “shot clock” with a subquestion:  what happens if the municipality just keeps requesting information as a form of delay for shot clock purposes)?   

What about so-called “local moratoria”, which are when a local government calls a “time-out” on all applications (the Commission seemed skeptical that this would be an exception to their rule)? 

The “deemed granted” issue is here as well. The FCC decided not to allow a “deemed granted” remedy in 2009, but the carriers asked it to revisit that, since the judicial remedy is expensive and time-consuming, which is the opposite of what the rule intends. The Commission seems hesitant to take that step, but it wants to hear what sorts of experiences wireless companies have had, perhaps looking for grounds to go even harder on localities.  

Like any hot, trending issue, we’d expect that the FCC is looking to move quickly (well, as quickly as it can within the requirements of the Administrative Procedure Act).   

Comments on this NPRM will be due 60 days after publication in the Federal Register, with reply comments due 30 days after that.   As always, stay connected to CommLawBlog for an update on those dates and the rest of this proceeding.