FCC Proposes Rules Promoting Deployment of DAS and Small Cells

The FCC today proposed additional rules designed to promote the rapid deployment of wireless facilities and services, particularly, distributed antenna systems (DAS) and other forms of “small cell” deployments. The NPRM, the text of which should be released shortly, recognizes the need for more widely deployed wireless infrastructure to support increased consumer and machine-to-machine dependence on wireless communications. To promote more prompt wireless deployment, the NPRM proposes rules on four issues, including clarification that the “collocation by right” provisions of the 2012 Tax Relief Act apply to DAS and small cells, that the FCC’s Shot Clock rules apply to DAS and small cells, and that a local government’s failure to comply should lead to a “deemed granted” remedy.

At today’s meeting, the Commission voted unanimously to adopt a Notice of Proposed Rulemaking seeking comment on four items:

1. Expediting Commission environmental and historical review of DAS and small cell installations, including potentially exempting DAS and small cells from the regulations;
2. Clarification and implementation of Section 6409 of the Middle Class Tax Relief and Jobs Act of 2012, including that DAS and small cells are covered by Section 6409;
3. Clarification that the Commission’s 2009 “Shot Clock” rules apply to DAS and small cells, and a proposal that if a local government fails to act within the timeframe of the Shot Clock the application will be “deemed granted.”
4. Exemption of certain temporary towers from the Commission’s notice process in the event of unanticipated, short periods.

The overwhelming recognition by the three current FCC Commissioners was that deployment of wireless infrastructure is critical and requires the same attention and emphasis as spectrum issues. Indeed, as Commissioner Pai noted, without infrastructure, all the Commission’s work on spectrum issues will be for naught.

The comments of the Commissioners at the meeting also revealed that they all appear to recognize that DAS and small cell installations have minimal or no impact on the local environment and as a result existing regulations that were designed to address cell towers that are several hundred feet high are inappropriate for DAS and small cells located on utility poles, light poles, roof tops, and similar, existing, less intrusive facilities. They also appear to recognize the problem of local barriers to deployment. For example, Commissioner Pai shared a story about how he met wireless app innovators in San Francisco who could not get wireless coverage inside their building in San Francisco, and so had to resort to a self-help reception network using chicken wire on the building roof. Commissioner Pai said it was “really wrong” if local regulations required advanced technology innovators to rely on chicken wire to get coverage.

Commissioner Pai revealed that the NPRM will propose a “deemed granted” remedy for both the Shot Clock and Section 6409. Commissioner Pai indicated his strong support for such a remedy, recognizing that otherwise local governments currently have no strong incentive to act in a timely manner or follow the mandates of Section 6409. Commissioner Pai also revealed that the NPRM proposes to clarify that municipal moratoria violate the Shot Clock Order and Section 332(c)(7).

Acting Chairwoman Clyburn revealed that the proposed exemption for temporary towers would apply to unanticipated installations that last 60 days or less, for facilities that are less than 200 feet tall, require minimum or no excavation, and require no FAA lighting.

The full text of the NPRM is expected to be released shortly, and we will issue an update with additional detail at that time.