TR Daily FCC Expected to Consider Wireless Declaratory Ruling, Further Notice
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Friday, May 15, 2020

FCC Expected to Consider Wireless Declaratory Ruling, Further Notice

The FCC is expected to consider at its June 9 meeting a declaratory ruling and further notice of proposed rulemaking further streamlining its wireless infrastructure rules, according to several sources.

FCC Chairman Ajit Pai is expected to announce the item in a blog posting on Monday, and the draft item is expected to be released on Tuesday. Commissioners also would likely discuss the item Tuesday at the Wireless Infrastructure Association’s online Connect (X): All Access conference.

The item would respond to petitions filed last year by the Wireless Infrastructure Association and CTIA.

WIA filed petitions for rulemaking and declaratory ruling (TR Daily, Aug. 27, 2019), while CTIA filed a petition for declaratory ruling (TR Daily, Sept. 9, 2019).

WIA’s petitions asked the FCC to grant further relief under section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012. CTIA’s petition asked the Commission to clarify provisions of section 6409, as well as section 224 of the 1934 Communications Act, as amended.

“WIA’s Petition for Rulemaking asks the Commission to amend our rules to reflect that collocations requiring an expansion of the current site—within 30 feet of a tower site—qualify for relief under Section 6409(a) and to require that fees associated with eligible facilities requests under Section 6409 be cost-based,” the Wireless Telecommunications and Wireline Competition bureaus observed in a public notice last year. “WIA’s Petition for Declaratory Ruling asks the Commission to clarify: (1) that Section 6409(a) and our related rules apply to all state and local authorizations; (2) when the time to decide an application begins to run; (3) what constitutes a substantial change under Section 6409(a); (4) that ‘conditional’ approvals by localities violate Section 6409(a); and (5) that localities may not establish processes or impose conditions that effectively defeat or reduce the protections afforded under Section 6409(a).”

“CTIA’s Petition for Declaratory Ruling asks the Commission to clarify the terms ‘concealment element,’ ‘equipment cabinet,’ and ‘base station’ in our rules, and clarify that when an application is ‘deemed granted’ under Section 6409, applicants may lawfully construct even if the siting authority has not issued construction permits,” the public notice added. “With respect to section 224, CTIA asks the Commission to: (1) determine that the definition of the term ‘pole’ in section 224 includes light poles; (2) conclude that utilities may not impose blanket prohibitions on access to certain parts of the pole; and (3) clarify that utilities may not ask attachers to accept terms and conditions that are inconsistent with the Commission’s rules.”

In comments filed at the FCC, scores of municipalities and utilities asked the Commission to reject the petitions, saying they seek actions that are not necessary, would be contrary to the law and FCC precedent, and would intrude on local land use processes. But wireless industry entities asked the Commission to adopt the provisions (TR Daily, Oct. 30, 2019).

“WIA appreciates Chairman Pai’s leadership and the diligent work of the Commission in addressing 5G network build-out priorities. WIA submitted petitions last year and has strongly advocated for them since then. We hope that the Commission will provide the needed clarifications the petitions request to smooth the path for 5G deployment,” Amy-Gabrielle Bartolac, a spokeswoman for WIA, said today.

Gerry Lederer, a partner at Best Best & Krieger LLP whose clients include localities, said the FCC should give localities more than two weeks to review any item that might be circulated. He also said that discussions between industry and municipal interests on siting issues have been productive. The FCC releases drafts of items three weeks before meetings, but the “sunshine” prohibition on lobbying the agency begins one week before meetings. —Paul Kirby, [email protected]

MainStory: FCC FederalNews WirelessDeployment

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