TR Daily FCC Open to Addressing Antenna Collocation Provision
Tuesday, May 21, 2019

FCC Open to Addressing Antenna Collocation Provision

ORLANDO — The FCC is open to taking action to make it easier for the wireless industry to collocate antennas under section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012, Will Adams, FCC Commissioner Brendan Carr’s wireless legal adviser, said today at the Wireless Infrastructure Association’s 2019 Connectivity Expo here.

“We are working on that,” Mr. Adams said during a session this afternoon. “I think industry’s been very helpful in pointing out sort of the real-world effects and problems that we’ve had around implementing section 6409,” including which projects are covered by the provision. Mr. Carr is the point person at the FCC on wireless infrastructure issues.

“I think the record’s pretty rich on this with a lot of examples of where the FCC could provide helpful clarifying comments on our regs, that they could use a refresh, and that would help solve a lot of these problems,” he added later. But he also said, “I’m not here to announce next steps.”

He said that an ex parte filing by WIA yesterday reflected issues raised in the FCC’s record (TR Daily, May 20).

“Unfortunately, despite the significant strides the Commission has made in facilitating infrastructure deployment, certain jurisdictions are still working to circumvent the protections afforded by Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012 (‘Spectrum Act’), which directs states and localities to 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.’ WIA urges the Commission to address these issues and remove these remaining unnecessary state and local barriers to wireless deployment,” the trade group said in the ex parte filing in WT docket 17-79 and WC docket 17-84.

“First, the Commission should issue a declaratory ruling clarifying that (i) Section 6409(a) and the implementing regulations apply to all state and local authorizations required to deploy new or replacement transmission equipment on existing wireless towers or base stations and (ii) the substantial change criteria in Section 1.40001(b)(7) of the Commission’s rules should be narrowly interpreted,” WIA said. “Second, the Commission should initiate a rulemaking to amend its rules to specify that collocations requiring limited compound expansions – specifically, excavation within 30 feet of a tower site – and that otherwise do not constitute substantial changes – qualify for relief under Section 6409(a) and the FCC’s implementing regulations. These discrete steps will build on the Commission’s successful and continuing efforts to remove barriers to infrastructure deployment, accelerate the expansion of next generation wireless services to consumers, and ensure continued U.S. leadership in all things wireless.”

Another panelist, Roger Sherman, founder of Waneta Strategies and of counsel at Jenner & Block LLP who worked on the Middle Class Tax Relief Act when he was a Capitol Hill aide, said that the legislation was bipartisan and some localities are “playing games with some of the language.”

Mr. Adams also said that the FCC continues to talk with the Advisory Council on Historic Preservation about twilight towers. He said he doesn’t not have any timing on action, but that the FCC is waiting for the ACHP’s nominated chairwoman to get confirmed by the Senate. “The process is actually much more complicated than it’s stated in the regs,” he said of the effort to address the towers.

In 2017, the FCC proposed a Program Comment to the ACHP to address twilight towers (TR Daily, Dec. 14, 2017).

As to what telecom legislation Congress is likely to try to push through, Mr. Sherman said that robocall legislation likely will be one of the first bills. He also noted that Rep. Doris Matsui (D., Calif.) has said she would introduce a C-band bill and Rep. Mike Doyle (D., Pa.) has said he wants to reintroduce the AIRWAVES Act.

Mr. Sherman also noted that infrastructure is important to lawmakers, noting the $40 billion included in the LIFT America Act introduced by Democrats.

Speakers also said that legislation introduced by Rep. Anna G. Eshoo (D., Calif.) to repeal the FCC’s small cell and one-touch make-ready orders has picked up considerable Democratic support in the House so it could pass that chamber but would be unlikely to get through the Republican-controlled Senate.

“I think this is a very interesting legislative approach,” said Jennifer Schneider, head of American Tower Corp.’s Washington office, noting the decision to draft the legislation similar to resolutions under the Congressional Review Act.

The speakers also discussed the impact of the small cell legislation adopted by the FCC last September (TR Daily, Sept. 26, 2018).

“It’s eased the way in a number of places,” Mr. Sherman said. But, he added, some localities are not following the new rules, which are on appeal like the one-touch make-ready regulations.

The small cell item bars states and localities from adopting rules that prohibit the deployment of wireless infrastructure, imposes limits on the fees that municipalities can charge for reviewing small cell deployments, and sets shot clocks for acting on small cell applications.

Adrian Berezowksy, president and founder of BirchCo, Inc., an environmental consulting firm, said the new timelines provide “a level of consistency in how we do our process [that] has really been a game-changer.”

However, he said, there is “room for improvement” on paperwork required for the tribal consultation process.

During a session this morning, Robert Millar, associate general counsel of Crown Castle International Corp., said that most localities are trying to comply with the small cell and one-touch make-ready orders, but not all are. “There’s a lot of education that needs to happen still,” he said.

He said that localities in states that have passed small cell bills tend to comply better with the FCC’s orders.

“There are still some attempts to justify excessive fees,” he said, especially in states such as California.

For example, he said, Santa Barbara estimates its small cell node application permit fee will be $20,000, while Pasadena wants to charge $12,000 to permit nodes.

He also cited a consultant for an unnamed California jurisdiction that wants to charge $2,350 to review each small cell node, even though 42 of them are identical.

Also, consultants are developing complex and duplicative applications and localities are still attempting to impose discriminatory restrictions for similar infrastructure, Mr. Millar said.

He also complained that some localities are developing construction standards without industry input and imposing cell spacing requirements that likely will be challenged in court as an effective small cell siting prohibition.

However, there has been some progress, he said.

Baltimore lowered its annual franchise rights-of-way fee from $1,500 to 1,800 to $270, but increased its application fees from several hundred dollars to $4,600, Mr. Millar said.

He also said that cities such as New York, Chicago, and San Francisco with historically high fees “haven’t changed their fee structures overnight” but are discussing them with industry.

Appeals of the small cell and one-touch make-ready orders will be considered by the U.S. Court of Appeals for the Ninth Circuit (San Francisco).

Half of the one-touch make-ready order will be briefed and heard with the small cell order, while the rest will be briefed and heard separately, noted Josh Turner, a partner at Wiley Rein LLP.

The FCC is unlikely to address a petition for reconsideration of the small cell order while the appeals are pending, said Mr. Turner and Laura Phillips, a partner at Drinker Biddle & Reath LLP. —Paul Kirby, [email protected]

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