TR Daily FCC’s Wireless Infrastructure Item Would Clarify 2014 Rules
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Tuesday, May 19, 2020

FCC’s Wireless Infrastructure Item Would Clarify 2014 Rules

A draft declaratory ruling circulated to FCC Commissioners for consideration at the agency’s June 9 meeting would clarify rules adopted in 2014 implementing provisions of a 2012 law that were designed to make it easier to upgrade equipment on existing towers (TR Daily, Oct. 17, 2014).

Section 6409(a) of the Spectrum Act, which was part of the Middle Class Tax Relief and Job Creation Act of 2012, said that “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.”

Last year, the Wireless Infrastructure Association filed petitions for rulemaking and declaratory ruling seeking further relief under section 6409(a) (TR Daily, Aug. 27, 2019), while CTIA filed a petition for declaratory ruling seeking clarification of the 6409(a) provisions, as well as section 224 of the Communications Act of 1934, as amended, (TR Daily, Sept. 9, 2019).

The draft declaratory ruling in WT docket 19-250 and Rulemaking 11849 would clarify when a 60-day shot clock begins, specify what new equipment qualifies for streamlined approval, and clarify the application of local governments’ concealment and aesthetic conditions of approval. A notice of proposed rulemaking would solicit comments on permissible modification-related activities that can occur outside of wireless sites.

A fact sheet on the draft item said the declaratory ruling would “[c]larify that, under section 1.6100(c)(2) of our rules, the 60-day shot clock to review and approve a modification under section 6409(a) commences when: (1) the applicant takes the first procedural step that the local jurisdiction requires as part of its applicable regulatory review process; and (2) the applicant submits documentation showing that the modification qualifies for streamlined review.”

The item also would “[c]larify the definition of ‘substantial change’ in section 1.6100(b)(7) …”

Specifically, it would clarify that (1) “[t]he phrase ‘with separation from the nearest existing antenna not to exceed twenty feet,’ in the context of permissible tower height increases from adding an antenna, is measured from the top of an existing antenna to the bottom of a proposed new antenna”; (2) “[t]he term ‘equipment cabinets’ does not include relatively small electronic components if they are not used as physical containers for smaller devices, and the maximum number of additional equipment cabinets is measured for each separate eligible facilities request”; (3) “[t]he term ‘concealment element’ must be part of a stealth-designed facility that the locality approved in its prior review; to ‘defeat’ concealment, a modification must cause a reasonable person to conclude that the structure’s intended stealth design is no longer effective”; and (4) “[t]he phrase ‘conditions associated with the siting approval’ may include conditions that require a feature to minimize the visual impact of a wireless facility, as long as there is express evidence that the feature was required as part of the prior siting approval, and as long as the conditions do not prevent otherwise permissible modifications to the physical dimensions of the structure.”

The item also would “[c]larify that an environmental assessment is not required under section 1.1307(a)(4) when the FCC, an applicant, and other affected parties have entered into a memorandum of agreement to mitigate effects on historic properties.”

The NPRM would “[s]eek comment on changes to our rules regarding excavation or deployment outside the boundaries of an existing tower site, including the definition of the boundaries of a tower site, which would affect whether certain modifications of existing structures qualify for streamlined section 6409(a) review.” It would allow only 20 days for initial comments and 10 days for replies.

FCC Commissioner Brendan Carr, who is the wireless infrastructure point person at the FCC, discussed the draft item during remarks today at the Wireless Infrastructure Association’s virtual Connect (X): All Access conference.

He noted that if the FCC adopts the item, it would be the latest designed to make it easier for the industry to deploy wireless infrastructure. Previous items have faced court challenges.

“The FCC wrote regulations implementing the law in 2014. We defined which modifications qualify for streamlined review and which don’t. And we set a 60-day shot clock on local approval,” Mr. Carr noted. “Over the last six years, we’ve all learned a lot about this process. In the thousands of interactions between local governments and infrastructure companies each year, there are many different interpretations of our rules. Some of that ambiguity can be ironed out in the give-and-take of getting the job done. However, sometimes our rules are being read to delay or block what should be straightforward projects. That drives up costs and denies Americans next-generation service that they deserve. Getting this right—implementing Congress’s directive correctly—has taken on new urgency. That’s because we’re in the midst of a series of critical wireless upgrades.”

“These actions are meant, once again, to separate the difficult project approvals from the easier ones. This will allow local governments and tower crews to focus their efforts on projects that merit more detailed review,” he stressed. “The 5G Upgrade Order is informed by months of engagement with local governments and industry, including WIA and CTIA, whose FCC petitions are addressed in the order.”

In an interview with TR Daily this afternoon, Mr. Carr noted that dozens of states and locality interests have weighed in at the Commission on the pending petitions. “The petitions themselves were very narrow and very specific,” he added. He also said that the draft item benefited from the advocacy of the state and local arguments. He said that it would adopt a provision recommended by those interests concerning when the 60-day shot clock should begin. He also said that the issues considered in the declaratory ruling are proper for that document because the Commission seeks to clarify existing rules, not adopt new ones.

“Commissioner Carr’s proposal will advance the long-standing bipartisan consensus to give wireless providers greater flexibility to rapidly upgrade existing facilities with next-generation infrastructure critical to American leadership in the emerging 5G economy,” said CTIA President and Chief Executive Officer Meredith Attwell Baker.

“Infrastructure builders are seeing that, in some cases, Congress’s goal of making it easier to collocate equipment on existing wireless sites is being stymied in practice,” said WIA President and CEO Jonathan Adelstein. “We thank Commissioner Carr for his steady leadership and the support of the Commission for paving the way for next-generation wireless services, giving America another leg up in the race to 5G.”

“I applaud Commissioner Carr for his work on the 5G Upgrade Order and am very glad to see the Commission will vote on the order during its June Open Meeting,” said Competitive Carriers Association President and CEO Steve Berry. “I thank Chairman Pai and Commissioner Carr for their commitment and leadership on infrastructure reform. Infrastructure is the backbone of wireless networks, and streamlining burdensome, unnecessary processes will greatly benefit carriers wishing to enhance and expand their networks. Ultimately, consumers stand to be the real winners, and I commend the Commission for its plan to consider further reform at its upcoming Open Meeting.”

“Recent events have shown that reliable networks are necessary for Americans to work and learn remotely. Upgrading to 5G networks is a critical step in building the infrastructure needed for the 21st century, [and] CCIA supports the Commission’s efforts to facilitate 5G deployment,” said Computer & Communications Industry Association President Matt Schruers.

“The FCC’s announcement today is welcome news for America’s consumers and tech innovators,” said Consumer Technology Association President and CEO Gary Shapiro. “5G will help power the future—enabling the consumer technology industry to develop products that will improve our lives. For these innovations to reach their full potential, broadband providers must be able to readily deploy and upgrade their wireless networks. The FCC is making this possible by streamlining the regulatory process to encourage network buildout and, by doing so, it will help our society achieve the benefits of 5G. The critical importance of internet connectivity has been highlighted by the pandemic, as Americans rely on broadband to access vital information, remain productive at work and stay in touch with loved ones.”

“Here in Cheyenne, we’ve invested in towers. We’ve invested in those significant infrastructure projects. That’s because broadband access is critical. It’s critical to our police, fire, those 911 calls. It’s critical to accessing telehealth, including mental health counseling. It’s critical to not only filing for unemployment, but finding reemployment. It’s critical to providing education at all grade levels,” said Marian Orr, mayor of Cheyenne, Wyo., in a statement included in Commissioner Carr’s press release on the draft item. “What an elegant solution to providing increased local access to services: using existing towers and being able to bolster connectivity. I support the work being done by Commissioner Carr and others in Washington to bring long overdue guidance for telecom providers when it comes to rolling out 5G technology in rural America.” But other state and local interests have been critical of the draft item. 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 (TR Daily, Oct. 30, 2019). They said today that the COVID-19 pandemic is making it even more difficult to respond to the agency’s draft item.

“Commissioner Carr had it right today in his remarks at an industry forum when he commended local governments and industry for working together on local wireless communications permitting during this COVID-19 pandemic. All we – cities and other local governments – want is for the Commission to create a longer window for this cooperation to continue,” said to Tom Cochran, CEO and executive director of the United States Conference of Mayors. “We urge the agency to resist the temptation to act at its June meeting and to defer action until a future time, providing more opportunity to work through and make progress on these issues. This precipitous action – its declaratory ruling coupled with an abbreviated rulemaking process – will only cause more harm and confusion and, in the end, do little to facilitate the collaborations that have proven so effective in the past in deploying such facilities. And, all of us need to continue to be cognizant of the unique challenges facing local governments and others during this pandemic.”

Angelina Panettieri, legislative manager-information technology and communications for the National League of Cities, said today, “We are still reviewing the item, but we are disappointed that the FCC has chosen to move forward with this petition. As we have told the FCC before, we do not think these changes are necessary, as channels already exist for providers to resolve wireless site modification disputes with localities, to the extent they arise. Further, this kind of rulemaking activity is exactly what the Administrative Procedures Act was intended to prevent.

“We are disappointed with the Commission’s choice to finalize a declaratory ruling at this time, and have urged the Commission to pause proceedings requiring substantial local government input during the COVID-19 emergency,” Ms. Panettieri continued. “Localities are already grappling with the realities of responding to a pandemic and economic crash and are looking at massive budgetary and staffing impacts for the next fiscal year. The last thing communities need is a new compliance requirement with potential unintended consequences that a number of localities have already highlighted in the record.”

National Association of Counties Associate Legislative Director and Political Outreach Manager Arthur Scott said, “Counties are on the front lines of the fight against the coronavirus pandemic and now more than ever, need a strong federal partner. We are concerned about the impact this proposed rule could have on local governments’ ability to serve as stewards of public property, safety and welfare.” Gerry Lederer, a partner at Best Best & Krieger LLP whose clients include localities, said, “In his speech to WIA today, Commissioner Carr stated ‘I want to commend local governments and industry, including WIA, for viewing this slowdown as a problem we can solve together.’ All local governments seek with this new rulemaking, cloaked in the mantle of a Declaratory Order, is that the Commission create a window for that cooperation to continue. We believe that the Commission’s action violates the APA, and we will reserve that issue for appeal, but spend the next two weeks trying to share with the Commission why its new rules will cause more harm and more confusion than they help.” At the June 9 meeting, the FCC also plans to consider a draft NPRM and order in WT dockets 20-133, 10-153, and 15-244 and RM-11824 and 11825 “that would explore innovative new uses of the 71–76 GHz, 81–86 GHz, 92–94 GHz, and 94.1–95 GHz bands [70/80/90 GHz bands], including potential rule changes to allow for the provision of wireless backhaul for 5G and the deployment of broadband services to aircraft and ships,” according to the tentative agenda released today.

The spectrum is currently “allocated to co-primary non-Federal and Federal use,” a fact sheet noted. “70/80/90 GHz band licensees currently use this spectrum for fixed, point-to-point communications links but the spectrum is unused (or minimally used) in large parts of the United States. This underuse, combined with recent technological developments, makes the 70/80/90 GHz bands a potential resource for several categories of new and innovative service offerings, especially wireless 5G backhaul and broadband services on-board aircraft and ships, in furtherance of the Commission’s 5G FAST Plan.”

The NPRM would (1) “[p]ropose changes to antenna standards for the 70 and 80 GHz bands to permit the use of smaller antennas and seek comment on whether to make similar changes in the 90 GHz band”; (2) “[p]ropose to authorize point-to-point links to endpoints in motion in the 70 and 80 GHz bands and classify those links as ‘mobile’ service”; (3) “[s]eek comment on whether the Commission should change its link registration rules for the 70/80/90 GHz bands to eliminate never-constructed links from third-party registration databases”; and (4) “[s]eek comment on any technical and operational rules necessary to allow new service offerings in the 70 and 80 GHz bands and to mitigate interference to both incumbents and other proposed users of these bands,” a fact sheet noted.

The order would deny requests filed by Aviat Networks, Inc., and CBF Networks, Inc. (d/b/a Fastback Networks) seeking “partial waiver of the Commission’s existing antenna standards for the 71–76 and 81–86 GHz bands.”

Michael Marcus, a consultant for Marcus Spectrum Solutions LLC and former FCC official who drafted the existing 70/80/90 GHz rules in the early 2000s, told TR Daily that the draft NPRM “[l]ooks quite reasonable. … We were at the cutting edge but wanted to open the door for commercial systems rather than make everyone petition and wait.”

The FCC also plans to consider a draft declaratory ruling in MB docket 20-145 “that would remove regulatory uncertainty concerning use of Broadcast Internet services provided by broadcast TV licensees as an ancillary and supplementary service, and a Notice of Proposed Rulemaking that would seek comment on modifying and clarifying existing rules to promote the deployment of Broadcast Internet services as part of the transition to ATSC 3.0,” the tentative agenda said.

A fact sheet said that the declaratory ruling would “[r]emove regulatory uncertainty that could hinder the development of the new, innovative uses of broadcast spectrum that the ATSC 3.0 standard enables by clarifying that long-standing television station ownership rules do not apply to the lease of spectrum to provide Broadcast Internet services.”

The NPRM would (1) “[s]eek comment on the extent to which we should clarify or modify our existing rules in order to further promote the deployment of Broadcast Internet services as part of the transition to ATSC 3.0”; (2) “[s]eek comment generally on potential uses of the new technological capability associated with ATSC 3.0 and any existing regulatory barriers to deployment”; and (3) “[s]eek comment on whether any changes or clarifications are needed to the ancillary and supplementary service fee rules and/or the rules defining derogation of service and analogous services.”

The Commission also plans to consider a draft public notice establishing procedures for its Phase I Rural Digital Opportunity Fund (RDOF) auction (see separate story).

Finally, the Commission plans to consider an Enforcement Bureau item. —Paul Kirby, [email protected]

MainStory: FCC FederalNews SpectrumAllocation WirelessDeployment Covid19

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