On June 9, 2020, at its monthly open meeting and by a 3-2 vote, the Federal Communications Commission (FCC) adopted a Declaratory Ruling and Notice of Proposed Rulemaking clarifying certain aspects of its rules governing the deployment of wireless equipment on existing telecommunications infrastructure.
With only minor alterations from the draft released by the FCC on May 19, 2020, the Order provides important clarifications regarding the Commission's rules governing collocations and modifications of existing installations in response to attempted evasions by local governments that remain a deterrent to rapid deployment of wireless infrastructure.
The primary clarifications, as issued in the draft, were adopted without material change in the final Order. These clarifications include:
- When the 60-day shot clock commences for a locality's review of modifications under Section 6409 of the Spectrum Act of 2012 (codified at 47 U.S.C. § 1455);
- What constitutes a "substantial change" in the existing infrastructure's physical dimensions and the extent to which certain elements of a proposed modification affect the proposal's eligibility for streamlined review; and
- The rules associated with proposed modifications involving historic preservation and environmental reviews.
The Order, as adopted, also still seeks comment on defining the boundaries of a tower site for purposes of determining when excavation or deployment outside the original boundaries qualify for streamlined review. Certain additional proposals have, however, been added since the draft was first released by the FCC almost one month ago.
Revisions to Action as Adopted
As noted above, the final Order still maintains the same clarifications that were initially proposed in the FCC's draft (a complete summary of which can be found here). Thus, those revisions that were made between May 19 and June 9, 2020, largely provide further description and a more extensive understanding of the manner in which the FCC expects local governments and the telecommunications industry to act moving forward.
The most relevant alterations and additions to the draft that were adopted in the final Order include the following:
- In Paragraph 17, the FCC added a sentence detailing the types of documents submitted by an applicant that are sufficient to start the shot clock. These documents include "a description of the proposed modification and an explanation of how the proposed modification is an eligible facilities request."
- In Paragraph 19, the FCC added a sentence noting its expectation that modification applicants will "act in good faith to fulfill reasonable steps set forth by a local government that can be completed within the 60 day period." The FCC, however, still places the onus on the local government to meet all of the application steps it requires within the 60-day period and to otherwise keep the application on track for review and approval.
- In Paragraph 20, the FCC clarified that local governments may not delay the start of the shot clock by requiring an applicant to submit documents "that [are] not reasonably related to determining whether the proposed modification is an eligible facilities request."
- Finally, the FCC added a clarification that an applicant for modification will not be permitted to place an unlimited number of cabinets on a structure as a modification. Rather, the number of cabinets added to a structure as a modification will be limited to "the standard number of new equipment cabinets for the technology involved."
Revisions to Notice of Proposed Rulemaking
The Order as adopted still seeks comment on changes to the FCC's rules regarding "excavation or deployment outside the boundaries of an existing tower site," including the definition of a tower site's boundaries. The FCC, however, has added certain new proposals on which it seeks comment, one of which is a proposed revision to the definition of "site."
The FCC's Declaratory Ruling is effective as of its release on June 10, 2020. Comments on the adopted Notice of Proposed Rulemaking are due 20 days after the action's publication in the Federal Register, with reply comments due 10 days thereafter.
This article was originally featured as a communications advisory on DWT.com on June 12, 2020. Our editors have chosen to feature this article here for its coinciding subject matter.