June 10, 2020
By Jeff Schervone
This is an alert related to Federal Communications Commission (FCC) action as telecom companies continue to accelerate deployment of upgrades to wireless and wireline telecommunications infrastructure.
On June 9, 2020, the FCC voted to adopt rules to streamline deployment of 5G gear onto existing macro towers and base stations. As part if its 5G Fast Plan, the FCC has undertaken incremental steps to identify and eliminate potential barriers to deployment of super-fast broadband wireless. This action, termed the FCC “5G Upgrade Order” further limits local government review of certain wireless facility modification requests under Section 6409(a) of the Spectrum Act of 2012. In sum, the FCC action shoehorns new 5G gear in order to apply streamlined review under rules for eligible facilities requests.
Background
The FCC’s 2014 Infrastructure Order implementing the Spectrum Act provides that a “State or local government may not deny and shall approve any eligible facilities request for modification of an eligible support structure that does not substantially change the physical dimensions of such structure.” Further, a 60-day shot clock applies to such EFRs and if a local authority fails to act within 60 days, the modification request is “deemed granted.”
Since 2017, the FCC 5G Fast Plan has prioritized rapid widespread deployment of upgrades to wireless communications infrastructure, in part, by streamlining State and local government authority to review and regulate the deployment. In 2018, the FCC addressed network densification by issuing rules related to the siting of potentially millions of small wireless facilities in public rights-of-way in across the United States. Other parts of the network upgrade involve buildout of extensive fiber backhaul.
Here, the 5G Upgrade Order address another part of the broadband upgrade, the placement of new next-generation macro antenna arrays, transmission and power equipment equipment onto existing telecommunications tower site and other structures. To make a point about upgrades and regulations, FCC Commissioner Brandon Carr released footage of himself 200 feet or so up on a tower, where climbers replaced a 2G antenna with a 5G antenna in about an hour. https://twitter.com/BrendanCarrFCC/status/1268263380420354053
FCC Ruling
In the Declaratory Ruling and Notice of Proposed Rulemaking, Implementation of State and Local Governments’ Obligation to Approve Certain Wireless Facility Modification Requests Under Section 6409(a) of the Spectrum Act of 2012, WT Docket No. 19-250 and RM-11849, the FCC made the following rulings:
- The 60-day shot clock commences when (1) the applicant takes the first procedural step required by the local authority, and (2) the applicant submits documentation showing that the modification qualifies for streamlined review. Shot clock tolling is permissible if by agreement;
- The term “substantial change” does not apply (and is, therefore, eligible for streamlined review) when a facility request involves collocation of 5G gear, such as antenna arrays, radios and associated transmission equipment subject to the following:
- The 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;
- The term “equipment cabinets” does not include relatively small electronic components if they are not used as physical containers for smaller devices (such as antennas, radios, and associated transmission gear), and the maximum number of additional equipment cabinets is measured for each separate eligible facilities request, that is, four cabinets allowed per request;
- The 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
- The 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.
- An environmental assessment is not required when the FCC, an applicant, and other affected parties have entered into a memorandum of agreement to mitigate effects on historic properties.
The “5G Upgrade Order” also includes a Notice of Proposed Rulemaking where the FCC solicits comments on changes to 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 is anticipated that streamline treatment will likely encompass 30 foot outside of an existing facility’s site.
The Rules go into effect immediately upon release. All local authorities will need to digest these rules, review and adjust existing procedures and processes related to EFRs to avoid non-compliance, and train personnel accordingly.
JHS
SCHERVONE LAW 