If you missed the background, please check out Part 1 of this series of blog posts on the FCC’s most recent 5G Declaratory Ruling. This entry focuses on the key issues addressed by the Commission’s Ruling.
Commencement of Shot Clock
Current rules provide for a 60-day shot clock for local authorities to review requests to modify existing facilities and a “deemed granted” remedy for failing to act within the allowable review period, which can be tolled under certain circumstances. In its Declaratory Ruling, the Commission issued a series of clarifications designed to reduce the opportunity for a local authority to delay the start of the 60-day review period or otherwise toll the period.
The FCC clarified that the shot clock commences when: (1) the applicant takes the first procedural step required by a local jurisdiction’s 6409(a) review process and to the extent it is not done as part of the first step; and (2) submits written documentation showing that a proposed modification is an eligible facilities request under 6409(a). Documentation to start the shot clock could include, “a description of the proposed modification and an explanation of how the proposed modification is an eligible facilities request.”
The Commission specifically addressed a number of procedures that cannot be utilized to delay the commencement of, or otherwise toll, the 60-day review period for a 6409(a) review of existing facilities.
- The triggering of the shot clock cannot be delayed by establishing a “first step” that is outside of the applicant’s control or not objectively verifiable. For example, if a first step is to meet with a municipal official, that step can be satisfied by making a written request for the meeting. According to the Commission, in this example the shot clock would be trigged by the written request and by providing the requisite documentation addressing the proposed modification.
- The start of the shot clock cannot be delayed by defining the first step as a combination or a series of steps – such as requiring meetings or consultations with a number of local officials or entities.
- The shot clock may not be delayed by declining to accept an applicant’s submission intended to demonstrate it has met the criteria established by the Commission for starting the clock.
- A local jurisdiction may not delay the start of the shot clock by requiring documentation that is not reasonably related to determining whether the proposed modification is an eligible facilities request.
- Conditional authorizations are acceptable but will not delay the start of the shot clock.
For those jurisdictions that do not have a specific review process for existing facilities under Section 6409(a), the Commission found that for purposes of triggering the shot clock, the applicant can consider the “first procedural step to be the submission of the type of filing that is typically required to initiate a standard zoning or siting review of a proposed deployment that it is not subject to section 6409(a).”
Height Increases for Towers Outside the Public Rights-of-Way
Adding equipment to an existing tower changes the tower’s physical dimension. The Commission found that if that “change is not ‘substantial’ then a request to implement it would qualify as an eligible facilities request, and a locality would be required to approve it.” Under existing rules, a modification of a tower outside of a public ROW would cause a substantial change if it “increases the height of the tower by more than 10% or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater.”
The Commission clarified that “the word ‘separation’ refers to the distance from the top of the existing antenna to the bottom of the proposed antenna.” According to the FCC, interpreting “separation” to “include the height of the new antenna could limit the number of proposed height increases that would qualify for section 6409 (a) treatment given typical antenna sizes and separation distances between antennas.” The Commission found that such an interpretation would undermine “the statute’s objective to facilitate streamlined review of modifications of existing wireless structures.”
This clarification only applies to towers outside the ROWs. A different height standard continues to apply to structures within the public rights of way and base stations outside the ROWs.
Wireless carriers often must add equipment cabinets to existing wireless sites as part of the 5G upgrade. Current rules provide that a proposed modification to a support structure constitutes a substantial change if “it involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed four cabinets.” The Commission found that local jurisdictions are interpreting the phrase “equipment cabinet” too broadly in “treating the equipment itself as a cabinet simply because transmission equipment may have protective housing.” The Commission determined that “small pieces” of equipment, including remote radio units, radio transceivers, amplifiers and similar devices mounted on a structure, are not considered “equipment cabinets” under the rules “if they are not used as physical containers for smaller, distinct devices.”
Finally, the Commission clarified that the maximum number of additional cabinets that can be added is based on each separate request and is not a cumulative number for the facility involved.
Under current rules a modification “substantially changes” the physical dimensions of an existing structure if it defeats “the concealment elements” of the structure. In its 2014 Infrastructure Order, the FCC noted that for concealed or “stealth-designed” facilities – facilities designed to look like some feature other than a wireless tower or base station – a change that defeats the concealment elements would be considered a “substantial change.”
The Declaratory Ruling clarified that concealment elements are those elements of a wireless facility installed for the purpose of making the facility appear as “something fundamentally different than a wireless facility.” The Commission rejected the interpretation advanced by numerous localities that any attribute that minimizes the visual impact of a facility – such as placement behind a tree line – should be considered a concealment element.
The Commission further clarified that to be treated as a concealment element in a modification application the element itself must have been part of the facility that the local jurisdiction previously approved. There is, however, no requirement that a concealment element must have been specifically articulated as a condition by the locality in a prior approval. While specific words are not necessary, “there must be express evidence in the record” to show that a locality considered in its approval a stealth design that a facility would look like “a pine tree, flag pole, or chimney.”
Finally, the FCC clarified that to “defeat concealment,” a proposed modification “must cause a reasonable person to view the structure’s intended stealth design as no longer effective after the modification.” If the modified structure would continue to appear as something other than a wireless facility – such as a pine tree – then the modification would not defeat concealment.
Conflicts in Siting Rules Resolved in Favor of Allowing Existing Facility Modifications
Interpreting Section 1.6100 (b)(7) of its rules, the Commission found that an aesthetics related condition permitted under section 1.6100 (b)(7)(vi) cannot be used to prevent a “non-substantial” change to an eligible existing structure otherwise allowed under sections 1.6100 (b)(7)(i-iv). When a conflict exists, the aesthetic condition otherwise allowed under (vi) should be enforced only to the extent that it does not prevent the modification to the existing structure.
* * *
Please check out Part 3 of this blog post to learn more about the FCC’s Notice of Proposed Rulemaking in this same proceeding.