Wireless Industry, Municipalities Spar Over FCC Proceeding

February 13, 2014

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.”