TR Daily Starks, Rosenworcel Dissent on Wireless Infrastructure Item
Tuesday, June 9, 2020

Starks, Rosenworcel Dissent on Wireless Infrastructure Item

Over the dissent of Democratic FCC Commissioners Geoffrey Starks and Jessica Rosenworcel and the opposition of scores of municipalities and groups representing them, the FCC voted 3-2 today to adopt a declaratory ruling to clarify rules adopted in 2014 implementing section 6409(a) of the Spectrum Act, which was designed to make it easier to upgrade equipment on existing towers. A companion notice of proposed rulemaking solicits comments on permissible modification-related activities that can occur outside of wireless sites.

The Democratic Commissioners agreed with Democrats in Congress and municipal groups and localities that had asked the Commission to pull the item from the agenda and allow more time for parties to weigh in on it, and Mr. Starks said the item could actually slow, rather than speed, the deployment of wireless infrastructure.

The municipal groups cited the demands facing localities due to the COVID-19 pandemic, while the Commissioners also cited racial unrest demonstrations being held across the country.

Municipal interests also complained that the declaratory ruling was not needed and that it contained more than just clarifications, requiring a rulemaking.

But supporters of the item said that localities had plenty of chance to weigh in on the item and that the clarifications in the declaratory ruling were critical to ensure wireless infrastructure is deployed.

Twenty-four Democrats on the House Energy and Commerce Committee had asked the FCC to delay today’s vote, expressing concern with the burden it would impose on local governments during the pandemic (TR Daily, June 2), while 23 Republicans on the committee had endorsed the FCC’s draft item (TR Daily, June 1). The item adopted today is the latest FCC action to streamline the deployment of wireless infrastructure.

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 Declaratory Ruling adopted today clarifies the Commission’s 2014 rules with regard to when the 60-day shot clock for local review begins,” noted a news release on the item, which was adopted in WT docket 19-250 and Rulemaking 11849. “The ruling also clarifies how certain aspects of proposed modifications—height increases, equipment cabinet additions, and impact on concealment elements and aesthetic conditions—affect eligibility for streamlined review under section 6409(a). In addition, today’s action clarifies that, under the Commission’s rules on environmental and historic preservation review, FCC applicants do not need to submit environmental assessments based only on potential impacts to historic properties when parties have entered into a memorandum of agreement to mitigate effects on those properties.”

The NPRM “seeks comment on proposed rule changes regarding excavation or deployment outside the boundaries of an existing tower site and the effects of such activities on eligibility for streamlined review under section 6409(a),” the news release added.

Commissioner Starks stressed that he supports “the deployment of infrastructure to improve service and connect more Americans. Low-income and minority families in particular rely on wireless service, and I hope that any benefits from today’s item will result in improved service and more affordable offerings for all neighborhoods, not just those with the wealthiest Americans.”

“But this isn’t the right way to achieve those goals,” he added. “Instead of reducing burdens, today’s Declaratory Ruling imposes new obligations on local governments at a time where they have the least amount of time and resources. Instead of providing clarity, it creates uncertainty. Because of these issues, I’m concerned that today’s decision may actually slow the growth of advanced wireless service rather than accelerating it.

“Those who support this decision claim that it’s necessary because local governments have unreasonably blocked straightforward modifications to existing wireless sites, insisting on burdensome and unnecessary meetings and documentation. According to the petitions, these alleged practices have slowed or prevented upgrades that would provide advanced services and allow more Americans to realize the promise of 5G. Supporters claim that we must act now to encourage the growth of these services,” the Commissioner noted. “This is starkly different from what these parties are publicly and commercially saying elsewhere. … Moreover, despite today’s challenges, local governments continue to take timely action on applications from these companies and their partners. Even industry has recognized the efforts of local governments to maintain operations while their offices must be closed, including allowing electronic filing via online portals and email, creating drop boxes for hard copies of documents, and waiving and modifying requirements regarding permits, filing fees and public meetings.

“Given the unusual circumstances and the extraordinary efforts by local governments to continue the timely processing of applications, I’m deeply disappointed that we rejected the reasonable request for more time to review the draft order submitted on behalf of local governments across the country and supported by 24 Members of Congress,” Mr. Starks added. “While it’s true that the Petitions underlying this decision were filed last Fall, as today’s decision repeatedly notes, we do not adopt the recommendations proposed in those filings. It was only with the release of the draft Declaratory Ruling just three weeks ago that commenters learned that the Commission was even considering certain issues, let alone specific outcomes. Indeed, even the Commissioners only saw the current version yesterday, which contains substantive differences from the original draft.”

The Commissioner added that he agrees “that our rules could use clarification but the item here consistently misses the mark. For example, we should clearly define when the Section 6409 shot clock starts. But while the Declaratory Ruling acknowledges the value of preliminary reviews and meetings, it nevertheless starts the shot clock before those events take place and provides no flexibility to adjust once an applicant submits its paperwork and requests that first meeting. Under today’s decision, once an applicant has taken these actions, the local government must ensure that every other step in the process is completed before the shot clock expires. This approach not only places an unfair burden on the local governments but could lead to disputes between governments and applicants about the reasonableness of any requirement and whether it can be accomplished within the 60-day shot clock period. We should have done a rulemaking to discuss these issues and how to avoid such outcomes.”

Mr. Starks also cited the difficulty for local governments that approved sites before the Spectrum Act became law.

“The confusion doesn’t stop there. This decision explicitly states that the number of equipment cabinets that can be added to a site is measured for each eligible facilities request and rejects the interpretation that the relevant rule sets a cumulative limit. The local governments are justifiably confused about whether today’s decision effectively eliminates any limitation on the number of equipment cabinets that may be added over time,” he said. “Today’s decision disagrees with the suggestion that there’s no such limit but fails to explain exactly how a local government would derive it. A rulemaking could have clearly spelled out our expectations. Taken as a whole, rather than clarifying our policies and expediting approvals, the posture of this Declaratory Ruling is likely to lead to time-consuming and costly disputes about intent and reasonableness between local governments and industry; and furthermore, it is likely to lead to protracted litigation. Moreover, because of the substantial burdens we place on local governments’ review of modifications to existing sites, those governments may even give greater scrutiny to initial siting requests, leading to additional frustration and delays.”

Mr. Starks also said the FCC should have set a longer pleading cycle on the NPRM. As circulated in the item, the pleading cycle was 20 days for initial comments and 10 days for replies.

Ms. Rosenworcel agreed that the Commission should have delayed today’s vote, citing the demand on state and local governments during the COVID-19 pandemic and demonstrations over racial unrest.

“Today the FCC adopts a declaratory ruling that requires every state and local government to immediately review and update their current ordinances, policies, and application systems involving wireless towers. They have to rework the way they process new requests, how they measure tower height, what they do with requests to add more equipment, and how they conceal structures to preserve the visual character of their communities. Addressing these things is not unreasonable. But these clarifications can be hard to put into practice and they were shared with state and local governments for the first time only three weeks ago—and my goodness, they’ve been busy,” Ms. Rosenworcel said.

“So it’s no wonder than that we have heard from the National League of Cities. We’ve heard from the United States Conference of Mayors. We’ve heard from the National Association of Counties. We’ve heard from the National Association of Telecommunications Officers and Advisors. We’ve heard from the National Association of Towns and Townships. Together they represent more than 19,000 cities, 3,069 counties, and 10,000 towns across the country,” she added.

“But the FCC has decided to ignore this modest request for time to review. I don’t get it. Why can’t we acknowledge what is happening around us?” she added. “The sad truth is that this is not the first time we’ve given short shrift to the pleas of local governments who are strained by these historic days. It was just a few weeks ago when city officials and local firefighters asked the FCC to give them more time to weigh in on the court remand of our misguided decision to roll back net neutrality. But we didn’t grant their request. However, when companies suggested they needed more time to clear the 3.5 GHz band because of the pandemic, we were quick to oblige. We pushed back the start of our next spectrum auction too, again citing business disruptions caused by the coronavirus. The FCC even granted an extension of time to a foreign company it is investigating as a national security threat to the United States.

“Why can’t we offer the same courtesy to state and local governments?” the Commissioner asked. “The law demonstrates a clear congressional policy in favor of removing locally imposed and unreasonably discriminatory obstacles to modifying existing facilities in order to foster the rapid deployment of wireless infrastructure. I know. As congressional staff, I helped write it. But some of the decisions we make today seem to be less about speeding up routine approvals under this law and more about lowering the costs of non-routine approvals by retrofitting them into this process too. If we want to see infrastructure expand broadly and equitably across this country it takes federal and state and local authorities working together to do so. History proves this is true. And in these historic times this agency should not be ramrodding this effort through without listening to cities and towns across the country. They called for a bit more time. But the Federal Communications Commission hung up. I dissent.”

But Commissioner Brendan Carr, the point person at the FCC on wireless infrastructure issues, defended the FCC’s process, saying that dozens of localities weighed in on the CTIA and WIA petitions.

“I am proud of the thorough and thoughtful process the Commission took to craft this item, and I especially thank the Wireless Telecommunications Bureau and its infrastructure team for their skill and diligence,” he said. “The two petitions that prompted this order came to us more than nine months ago. We sought comment on the petitions, and at the request of local governments and utilities, we extended the comment period into November. The record that developed was robust. We heard from infrastructure builders, broadband providers, local governments, and everyday Americans alike. Localities were especially active. We heard from 70 local governments and their associations, and they provided us nearly 700 pages of detailed comments. They made a substantial contribution to this order, and their positions carried the day on several issues we decide. For example, we require industry to make written submissions before they can claim that the shot clock starts, and we protect a broad swath of localities’ conditions of tower approval.

“In the end, by bringing greater clarity to our rules, our decision reduces disagreements between providers and governments. And it separates the wheat from the chaff—the more difficult approval decisions, such as whether and how to construct a new tower, from the easier ones, such as whether to allow an existing tower to be upgraded,” Mr. Carr added. “It’s also important that we act now because providing more broadband for more Americans has never been so important. It’s at the forefront of our minds during this COVID-19 pandemic as kids learn from home, parents provide for their families away from the office, patients access critical care outside of hospitals, and we all connect to each other at a distance. Making upgrades easier is at the heart of 6409 and this order—and it comes at a time when we need as much capacity as we can get. So I am glad that we move forward today with clarifications that will help tower crews connect even more communities.”

Mr. Carr added that he’s “grateful for the strong support this order has received from dozens of leaders in local governments and in Congress, infrastructure builders, farmers and ranchers, first responders, and technologists.”

“These clarifications will accelerate the build out of 5G infrastructure by avoiding misunderstandings and reducing the number of disputes between local governments and wireless infrastructure builders—disputes that lead to delays and lawsuits,” FCC Chairman Ajit Pai said. “With today’s action, we continue to advance the same goal that underlay the Spectrum Act and inspired the Commission’s section 6409(a) regulations in the first place—avoiding unnecessary ambiguities and roadblocks in order to advance wireless broadband service for all Americans.

“Now, there are some who argue that we should have slowed down or stopped our work on today’s Declaratory Ruling because of the COVID-19 pandemic. I could not disagree more. The COVID-19 pandemic isn’t a reason to slow down our efforts to expand wireless connectivity. It’s a reason to speed them up,” Mr. Pai said. “The pandemic has highlighted the need for all Americans to have broadband connectivity as soon as possible.”

He added that “the argument that local governments have not had a sufficient opportunity to weigh in on these issues has no merit. The petitions on which we are acting today were filed in August and September of 2019, well before the COVID-19 pandemic. And the entire period for public comment on those petitions took place last year—also well before the COVID-19 pandemic.”

During a call with reporters after today’s FCC meeting, Mr. Pai was asked whether substantial changes were made to the item since it was circulated. “I suppose that substantial is in the eye of the beholder. I didn’t think it changed that substantially,” he replied, adding that changes were made primarily at the request of Commissioner Mike O’Rielly.

As to why the pleading cycle on the NPRM was relatively brief, Mr. Pai said it was appropriate “because it’s just a six-paragraph NPRM.”

Mr. O’Rielly welcomed the changes made to the item.

“While the Commission took steps in 2014, pursuant to Congress’s direction under Section 6409 of the Spectrum Act of 2012, to set localities straight on unacceptable activity that when it came to collocating facilities, some entities are still slowing down progress or doing what they can to stop wireless innovation from reaching consumers,” he said in his statement. “Today, we clarify how some of our rules implemented in response to section 6409 should be interpreted, such as when the shot clock begins, how to measure height increases for towers when adding additional antennas, what is an equipment cabinet, and the treatment of concealment elements, among others.

“I am pleased that, at my request, further details were provided about the documentation needed to start the shot clock and to evidence that concealment elements were envisioned when obtaining a locality’s approval,” Mr. O’Rielly added. “Such guidance is necessary so that all parties understand expectations and to avoid disputes down the road. While I understand some have asked that we delay today’s action due to some concerns, many of the clarifications are straightforward and should reduce the burdens on locality staff reviewing applications. And, these clarifications are needed to facilitate the expansion of 5G networks by wireless providers and help entities like FirstNet meet their public safety obligations.

“Additionally, the notice portion of today’s item seeks comment on a proposal to allow minimal compound expansions under section 6409 streamlined processing. I am pleased that my request was accepted to make this a proposal, as opposed to simply seeking comment,” Mr. O’Rielly said. “Over the years, tower companies have repeatedly come to me with the challenges they face when compound expansions are needed to accommodate additional equipment for collocation purposes. And, there is a good foundation for such a change, as the construction of replacement towers that do not expand a compound by more than 30 feet are excluded from historic preservation review under a nationwide programmatic agreement. I expect that an order on this proposal will be presented before the Commission as quickly as possible.”

“Now that we have clarified some areas where there were ‘misunderstandings’ over the rules for streamlined collocations, it is time to conclude the ultimate collocation problem—twilight towers,” Mr. O’Rielly added. “The Commission needs to resolve this quagmire so that these towers can hold additional antennas, which are needed to provide wireless services to the American people.”

While some localities and state officials have expressed support for today’s action, most municipal entities that have weighed in opposed it. Today some reiterated their criticism.

Angelina Panettieri, legislative manager-information technology and communications for the NLC, said, “NLC is very disappointed that the Commission ignored the requests of our organization, numerous local governments, and members of Congress to push through the wireless item during the June meeting. The draft item, which was the first document that gave insight into the Commission’s actual regulatory intent, was available for public comment for less than a month. We appreciate Commissioner Rosenworcel and Commissioner Starks’ dissents and their advocacy on behalf of local governments. We are now focused on helping communities adapt to this regulatory change in the middle of a pandemic emergency and social upheaval in their communities.”

Nancy Werner, general counsel of the NATOA, said, “I appreciate that Commissioner Rosenworcel, Commissioner Starks and members of the House Energy and Commerce Committee understand that this is the wrong time to force local governments to address this issue. We all support wireless deployment to provide the best possible service to our communities. That’s why local governments have always worked with the wireless industry on deployment issues, and have continued to do so under truly extraordinary circumstances. I cannot understand the urgency of this item, or why these clarifications must be pushed through now.”

Arthur Scott, associate legislative director and political outreach manager for NACo, said, “As counties are keenly focused on combating the COVID-19 pandemic, we are disappointed to see the FCC advance an unnecessary and untimely burden on our nation’s local governments in the absence of any basis for action. We applaud FCC Commissioners Rosenworcel and Starks and members of the House Energy and Commerce Committee for their support and recognition of the county role in our nation’s intergovernmental partnership.”

“Local governments across the nation are grateful to Commissioners Rosenworcel and Starks, as well as the House Energy and Commerce Committee’s leadership, for their efforts to protect communities’ right to review and offer constructive thoughts as part of today’s rewrite of the Section 6409(a) Rules,” said Gerry Lederer, a partner at Best Best & Krieger LLP whose clients include localities. “While we have yet to see the item, we would hope that the rules were amended to include the constructive edits offered by a collection of communities under the lead of Wilmington, Delaware. When the order is released, we will meet with our clients to determine next steps. But that conversation cannot take place on a Friday as many local governments have been forced to furlough staff on Fridays due to budget constraints. Constraints that the majority of the Commission chose to ignore today.” But supporters welcomed today’s FCC vote.

“We commend Commissioner Carr and the FCC for their ongoing leadership in facilitating wireless infrastructure deployment. By clarifying the rules allowing wireless providers to upgrade existing facilities with next-generation equipment, the FCC is helping ensure America will maintain its leadership in the emerging 5G economy,” said Scott Bergmann, senior vice president-regulatory affairs for CTIA.

“This is the culmination of a multi-year effort by WIA working with the FCC to smooth the path for upgrading the nation’s wireless infrastructure through collocation. The 5G Upgrade Order comes at an ideal time as 5G deployments are accelerating. By improving the process for collocation, the FCC makes deploying 5G more efficient for communities across America. The FCC also teed up further action to expand compounds by 30 feet around existing towers, where upgrades are needed for public safety, generators, and mobile edge computing for 5G services,” said WIA President and Chief Executive Officer Jonathan Adelstein. “WIA is grateful for Commissioner Carr’s consistent leadership on these reforms and the strong support from Chairman Pai and Commissioner O’Rielly. We also thank the FCC staff for their diligent attention to WIA’s petitions. Today truly marks a victory for wireless consumers who are relying more than ever on connectivity.”

“NATE member companies perform tower co-location equipment and network upgrades on a daily basis and today’s affirmative vote by the FCC will provide much needed clarity and flexibility needed to streamline these deployment activities, make additional existing tower infrastructure eligible for these upgrades and ultimately bring more 5G services to communities and consumers across the country,” said Jim Goldwater, NATE’s director-legislative & regulatory affairs. “NATE commends Commissioner Carr and his colleagues on the Commission who voted in the affirmative to move these important 5G measures forward.”

“Achieving the full and timely potential of 5G in the United States requires good infrastructure policy. In today’s order, the FCC continues its important work in facilitating infrastructure deployment by clarifying rules to avoid unnecessary regulatory review,” said Will Johnson, SVP-federal regulatory and legal affairs for Verizon Communications, Inc. “In the 2012 Spectrum Act, Congress mandated streamlined review by state and local governments of modifications to existing wireless facilities, and today's order will further that policy. The common sense clarifications adopted today help ensure that providers quickly upgrade their existing facilities to 5G, hastening consumers’ access to next-generation wireless services.”

“The COVID-19 health crisis has reinforced the need for all Americans to have access to next-generation broadband technologies and services no matter where they live. Commissioner Carr has been a tremendous leader in this effort, and we thank him for providing guidance and support for streamlining state and local approval processes for existing structures to the benefit of communities throughout the United States,” said Joan Marsh, executive vice president-regulatory & state external affairs for AT&T, Inc.

Morgan Reed, president of ACT, which represents apps developers, said, “We applaud the FCC for today’s adoption of the 5G Upgrade Order proposed by Commissioner Brendan Carr. The next generation of internet connectivity will pay huge dividends to the American workforce and open new opportunities for our members in the dynamic app developer community and for internet of things (IoT) innovators. Apps provide the vital interface and ‘middleware’ for IoT devices and our members are driving new capabilities in connected healthcare devices, connected cars, precision farming, and more. We thank Commissioner Carr for his leadership on this issue and will continue to work with the FCC on connecting more Americans, especially at this critical time.” —Paul Kirby, [email protected]

MainStory: FCC FederalNews WirelessDeployment Covid19

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