The wireless industry applauded the latest FCC Notice of Proposed Rulemaking, which set out an agenda to speed up zoning for small cells, as well as for tower modifications and collocations, in comments filed last week, while associations representing local governments expressed their opposition. The NPRM builds on the Commission’s Broadband Acceleration Initiative, which was begun in 2011 to look at reducing the obstacles to wireless siting.
The FCC expressed the desire to update its environmental rules to keep up with the evolution of wireless technology to smaller, less intrusive siting. To reduce the cost and delay of deploying infrastructure, the FCC proposed expediting its environmental and historic property review process for small cells and DAS that may have minimal effects on the environment. Led by PCIA and the HetNet Forum, the wireless industry, not surprisingly, applauded this move.
“DAS and small cell installations have limited visual impacts, involve minimal ground disturbance and generally occur in existing public rights-of-way where some ground disturbance is to be expected,” PCIA wrote in its comments. “Because the environmental and historic preservation effects of such construction will be nonexistent or de minimis, a categorical exclusion is warranted.”
On the other hand, the National Association of Telecommunications Officers and Advisors (NATOA), speaking for the cities counties and mayors, warned that proposed wireless deployments may have negative effects on the environment, historic properties and neighborhoods and should be left up to local zoning boards.
“Commenters acknowledge that there may be some instances where deployment does not occur as quickly as industry would like. But not all delays are unreasonable nor are they necessarily the sole cause of local governments,” NATOA wrote in comments.
This NPRM also proposes the long-awaited implementation of Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012. The Commission asked for interpretations of certain statutory terms in Section 6409(a), which stated “a State or local government may not deny, and shall 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.”
PCIA said that if the FCC fails to interpret and define the terms of Section 6409(a), a patchwork of regulations and ordinances would result that would ultimately slow the deployment process.
“It is essential that the FCC establish consistent rules and avoid uncertainty by defining key terms in Section 6409(a),” PCIA wrote. Those terms include: “wireless,” “transmission equipment,” “wireless tower or base station,” “existing,” “collocation,” “removal,” “replacement” and “substantially change the physical dimensions.” The FCC should make clear that the statute’s “may not deny, and shall approve” mandate requires approval of all eligible facilities requests without exception and without discretionary review.
NATOA urged restraint in interpreting the terms contained in Section 6409(a). The organization offered no definitions itself but assured the FCC that it would provide guidance on definitions provided by the others.
“Commenters believe that by adopting a narrow approach, such as that recommended by the FCC’s Intergovernmental Advisory Committee (IAC) and others, the Commission can strike a proper balance between increased wireless facilities deployment and local government authority and management over the public rights-of-way,” NATOA wrote.
PCIA, however, said that the FCC should take a broad approach to defining the terms, “wireless tower” and “base station.” The association disagreed with NATOA, saying the Commission should reject the narrow definitions of the IAC.
“To encourage deployment on a broad variety of structures in lieu of new facility construction, the definition of ‘wireless tower or base station’ should not be artificially limited,” PCIA wrote. “For example, the FCC should adopt a definition of ‘tower or base station’ that can support any of the multiple types of wireless services.”
With regard to the controversial terms “substantially change the physical dimensions,” PCIA urged the FCC to adopt the four-part test for a substantial increase in the 2004 Nationwide Programmatic Agreement, which established a review process for communications towers proposed in historic areas.
“To avoid the unlikely scenario where incremental and successive increases over time lead to a substantial increase in size, the FCC should limit any cumulative increases to a combined total that does not exceed the guidelines. For example, two modifications over an extended time frame that cumulatively increase the height of the tower by up to no more than 10 percent would remain an insubstantial modification,” according to PCIA.
The association added that height, width and depth of additional equipment should be considered, but not color or weight.
In perhaps the most controversial item in this NPRM, the FCC requested comment on whether wireless siting applications should be “deemed granted” if the municipality or state does not act on them within a certain time frame. In particular, the Commission asked if the phrase “a State or local government may not deny, and shall approve” gives local governments any discretion to deny or conditionally approve applications beyond an administrative review. This is where the battle lines are distinctly drawn between the wireless industry and the local governments, and the trenches are dug.
NATOA pointedly noted that the FCC had already rejected the idea of considering an application granted if the municipality had not processed it. The Commission in 2009 prescribed that wireless entities file lawsuits if a municipality fails to act within a certain time frame .
PCIA said it was clearly Congress’s intent in Section 6409 to consider an eligible facilities request (EFR) “deemed granted” after a certain period because of the directive that states and localities “may not deny, and shall approve.”
“Deemed granted is a reasonable and appropriate way of enforcing the statute when a locality violates the ‘shall approve’ mandate in Section 6409(a),” the association wrote. “The deemed granted remedy should, under the rules, take effect immediately upon the passage of the forty-five days after an EFR application is submitted.”
With carriers making progress by leaps and bounds in LTE deployment, are the good times are about to come to an end? That was one of the questions Jonathan Adelstein, president and CEO, PCIA-The Wireless Infrastructure Association, posed to the tower executive panel at the association’s annual conference, Oct. 9 in Hollywood, Fla.
“We have seen the coverage maps … and you see them getting filled out and people are kind of wondering where are we in the 4G build out?” Adelstein asked The View From the Top – A Tower CEO Roundtable panel.
SBA Communications is busy and expects to be for some time, according to Jeff Stoops, president and CEO, because it is early in the LTE deployment.
“We’re still getting to full coverage. We’re not there yet. And we’re just beginning to crack the capacity stage and the ultimate full build out and tweaking of the networks,” Stoops said. “So, I’m very optimistic that the strong trends that we’re currently involved with will continue for some period of time.”
Ben Moreland, president and CEO, Crown Castle International, said his company is seeing a return to collocations this year as Verizon Wireless and AT&T get further along into their LTE builds.
Amendments peaked in the fourth quarter of 2012 at historically high levels at SBA Communications and now the trend is moving toward collocations, according to Stoops.
“When you think about how carriers deploy their networks, it is all about speed and efficiency, which is the amendment process,” he said. “And then what has followed in past cycles and I don’t see this one as any different is the in-fill stage where they test the holes and the demand. And that’s really satisfied by brand new tenancies.”
Steven Marshall, executive vice president, American Tower, said the company is seeing somewhat of a swing back to collocations but is still experiencing a great deal of amendment activity.
The tower CEOs discussed what might be the next carrier to enter the wireless industry and which spectrum it might use. Dish Network was held by to be the most likely to get into the ring by Moreland and Stoops
“Dish Network is very public about their need and desire to have a wireless product. They’ve been obviously very aggressive in acquiring spectrum and have made no bones about their interest in either acquiring or partnering with a wireless carrier to get out and build a wireless product,” Moreland said.
DISH controls enough spectrum and has a plan to deploy on a network-sharing basis, according to Stoops.
While Marshall had no prediction on the next carrier entrant, he said that the Dish spectrum will ultimately get deployed and drive additional demand for infrastructure.
“Maybe other people, maybe Charlie Ergen [Dish chairman of the board], will ultimately land on a particular strategy that drives a lot more infrastructure investment for us. But one thing’s for sure, this is a fantastic industry that’s got fantastic runway and great growth potential. Other carriers will continue to invest in their platforms and other people will come in to provide that need.”
The FCC has released a broadband deployment proceeding, which proposes to speed up the deployment of DAS and small cells through an exemption from the National Environmental Policy Act of 1969. The proceeding shows that the commission believes the technologies align with its spectrum management goals.
“The increasing demand for advanced wireless services and greater wireless bandwidth is driving a need for additional infrastructure deployment and new infrastructure technologies. To meet localized needs for coverage or increased capacity in outdoor and indoor environments, many wireless providers are turning in part to small cell technologies and DAS,” the FCC wrote in its Notice of Proposed Rulemaking. “Because these cells are significantly smaller in coverage area than traditional macrocells, networks that incorporate small cell technology can take advantage of greater re-use of scarce wireless frequencies, thus greatly increasing spectral efficiency and data capacity within the network footprint.”
Rules concerning environmental review of wireless deployment were developed before the advent of small cells and, therefore, reflect environmental concerns caused by cell towers. The FCC Commissioners asked whether the environmental review process may be unnecessary given the minimal effects on the environment of small cells. Additionally, deployments under National Historic Preservation Act will be discussed.
Last year PCIA – The Wireless Infrastructure Association asked the FCC to categorically exclude DAS and small cell deployments from all environmental processing, including both NEPA and Section 106 processing, with the exception of compliance with RF emission exposure limits. The FCC’s positive response to that proposal, which would speed up small cell deployment, was applauded by Jonathan Adelstein, president and CEO of PCIA.
“They hit the nail on the head by acknowledging that common-sense reforms are needed to modernize historic and environmental review processes for the deployment of DAS and small cells. They recognize we can’t treat every DAS node like a 500-foot cell tower,” Adelstein said.
Russell Fox, a member of the law firm Mintz Levin, said all of the proposals, if approved, would help the FCC keep up with advancements in wireless technology.
“A lot of this is in recognition of the fact that the tower industry is different today than it was 10 to 20 years ago,” Fox said. “We have got a lot more small cell deployment that doesn’t raise the same concerns as big towers. We also have more temporary towers. The FCC is keeping up with technology and the way wireless networks are deployed today.”