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The FCC last week released a DRAFT order, scheduled for a vote at its September 26 meeting, designed to dictate the process and fees that state and local governments must apply to small cell wireless antenna installations on government-owned poles and similar facilities, and on newly-constructed poles the wireless carriers want to install in state and local rights-of-way.  As currently drafted, the DRAFT order would establish shot clocks for small wireless facility review, and would declare that all fees must be cost-based.

Although 20 states have already enacted small cell legislation, some states have rejected small cell legislation, and numerous municipalities already have reached agreements with wireless carriers on the process and fees for wireless attachments and new pole installations, the FCC’s DRAFT order appears designed to override such legislation and agreements to the extent they fail to comport with the DRAFT order’s standards.

The DRAFT order would establish the following “shot clocks” for state and local review of small wireless facility applications:  60 days for collocation on preexisting structures, and 90 days for new builds.

The fees the DRAFT order addresses fees for access to public rights-of-way (ROW), and for attachments to government-owned property in the ROW, “such as light poles, traffic lights, utility poles, and other similar property.”  The DRAFT order would conclude that such fees violate the federal Communications Act’s prohibition on excessive state and local regulation unless:  “(1) the fees are a reasonable approximation of the state or local government’s costs, (2) only objectively reasonable costs are factored into those fees, and (3) the fees are no higher than the fees charged to similarly-situated competitors in similar situations.”

The DRAFT order would go even further, by specifying that the following fees presumptively would not violate the federal prohibition on excessive state and local regulation:  “(a) $500 for a single up-front application that includes up to five Small Wireless Facilities, with an additional $100 for each Small Wireless Facility beyond five, and (b) $270 per Small Wireless Facility per year for all recurring fees, including any possible ROW access fee or fee for attachment to municipally-owned structures in the ROW.”

Nowhere in the DRAFT order does the Commission explain how its proposed action establishing shot clocks and fees for municipally-owned “utility poles” and “light poles” comports with the federal Pole Attachment Act, which exempts municipally-owned poles from FCC pole attachment regulation.  In addition, the DRAFT order’s restrictive provisions will not appeal to state and local governments, whose enthusiasm for the 5G rollout appears to be diminishing with every new ruling.

For more information, please contact Tom Magee (magee@khlaw.com; 202.434.4128)

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Late last month, Marriott International, Inc. entered into a Consent Decree with the FCC to resolve a violation of Section 310(d) of the Communications Act.

BackgroundIn September 2016, Marriott acquired StarwoodHotels and Resorts Worldwide Inc. The parties closed the transaction without obtaining the Commission’s prior consent to transfer control of 65 wireless FCC licenses held by Starwood to Marriott. Section 310(d) of the Communications Act and Section 1.948 of the Commission’s Rules required the parties to secure prior consent from the FCC before closing the transaction.

Voluntary Disclosure. In February 2017, Marriott admitted to the FCC that it closed its acquisition of Starwood without obtaining the agency’s prior consent to transfer control of the various FCC radio licenses.

FCC Investigation. The Commission’s rules set forth baseline penalties for various rule violations. The baseline penalty for an unauthorized transfer of control is $8,000.  In this instance, however, the various FCC licenses were held by multiple independent companies. The FCC’s rules required each entity to file separate transfer of control applications for independent approval by the FCC.  No applications were filed, and the FCC took an aggressive stance. Instead of viewing this as a single violation (stemming from one large transaction), the FCC treated each application that was not filed as a separate rule violation. The FCC found multiple rule violations and, as a result, significantly increased Marriott’s financial penalty.

Resolution. Marriott agreed to pay $504,000 and implement a compliance plan to promote ongoing compliance with the FCC’s rules.

On the heels of this eye-popping settlement, it is helpful to understand a little more about the FCC’s Enforcement Procedures.

FCC Enforcement Procedures

Investigations typically are initiated by the FCC’s Enforcement Bureau after it receives a complaint, through an inspection, by a referral, or resulting from a voluntary disclosure. In this instance, Marriott voluntarily disclosed its violation directly to the FCC’s Wireless Bureau, which then referred the case to the agency’s Enforcement Bureau.

After an investigation is initiated, the Bureau typically sends the subject of the investigation a Letter of Inquiry (LOI) posing a series of questions related to the alleged violation. The recipient typically has 30 days to respond to the LOI, though it may request additional time.

If the Bureau reviews the LOI responses and believes a rule violation has occurred, it has a few options. It may: (i) take no further action; (ii) issue a Notice of Apparent Liability (NAL); or, (iii) negotiate a settlement agreement with the target company (aka a “Consent Decree”).

  • NAL – Alleges a rule violation occurred, finds the recipient apparently liable for a fine or penalty (typically termed a “forfeiture” in FCC parlance).
  • Consent Decree – Voluntary settlement between the LOI recipient and the FCC. A Consent Decree may require the recipient to admit wrongdoing, pay a fine to the federal government, and implement a compliance plan to guard against future rule violations.

Marriott negotiated a Consent Decree. Perhaps even more onerous than the substantial fine is the FCC-mandated compliance plan. Marriott’s Compliance plan has several burdensome components, including:

  • Compliance Officer – Designate a senior corporate manager to serve as the Compliance Officer.
  • Operating Procedures – Establish operating procedures that all covered employees follow to ensure compliance with the FCC’s transfer of control rules.
  • Compliance Manual – Develop and distribute a compliance manual to all covered employees.
  • Compliance Training Program – Establish and implement a compliance training program and train all covered employees on the FCC’s transfer of control rules within 120 days.
  • Report Noncompliance – Report any noncompliance within 15 days of discovering such noncompliance.
  • Compliance Report – File four periodic compliance reports with the FCC over the next three years. Each report must be certified by the Compliance Officer and provide a detailed description of the steps the company has taken to promote compliance with the FCC’s transfer of control rules.

*       *       *

It is never good to be in the crosshairs of the FCC’s Enforcement Bureau. And corporate transactions are ripe for potential FCC rule violations because FCC licenses are commonly overlooked by transactional teams. Since mergers and acquisitions raise unique FCC licensing issues, such transactions require heightened awareness from both parties. Only by closely tracking all FCC-licensed assets can companies involved in corporate transactions ensure compliance with all FCC requirements.

For more information, please contact Wes Wright (wright@khlaw.com; 202.434.4239).

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The FCC’s Connect America Fund Phase II Auction concluded last week.  The auction allocated nearly $1.5 billion in federal funding over the next decade to support broadband deployments in unserved areas of 45 different states.  This aggregate amount was almost $50M per year ($500M for ten years) short of the available CAF II funds.  Electric cooperatives, terrestrial fixed wireless providers, satellite operators, and incumbent local exchange carriers were among the winning bidders.

The FCC announced the winning bidders as an attachment to a Public Notice earlier this week.  The Public Notice sets forth the next steps for auction winners, including a requirement that each winning bidder submit a post-auction application for support (FCC Form 683) by October 15, 2018.  Further information about completing the FCC Form 683 is available here.  The Public Notice also clarifies that winning bidders may assign some, or all, of their winning bids to related entities.  The Public Notice sets forth the process for dividing and assigning winning bids.  The deadline for such assignments is September 14, 2018.

The other notable item for auction winners is the FCC extended its original deadline for submitting the letter of credit commitment letters and detailed technology and system design descriptions.  This information is now due by November 5, 2018.

For more information, please contact Tim Doughty (doughty@khlaw.com; 202.434.4271).

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The FCC has established deadlines for Fixed Satellite Service earth station licensees to certify the accuracy of all information on their current earth station license and provide the agency with additional details about existing operations.  Earlier this year, the Commission sought comment on the feasibility of allowing commercial wireless services to use or share use of the 3.7-4.2 GHz spectrum band.  As part of this effort, the FCC is asking earth station licensees to certify existing operations and provide additional technical information.  The FCC hopes that its efforts will unveil lightly used portions of the 4 GHz band where the agency can introduce fixed and mobile terrestrial use.

The first step is for the Commission to get its arms around existing satellite operations in the band.  As such, the FCC is asking C-Band users to provide the agency with the call sign(s); geographic location(s); licensee contact information; antenna gain; azimuth and elevation gain pattern; antenna azimuth relative to true north; antenna elevation angle; satellite(s) at which the earth station is pointed; number of transponders; how often each is used; and, antenna site elevation and height above ground.  This information is required by October 17th.

Once the FCC has completely digested all this information, it may create an opportunity for fixed microwave links in the band, but it’s a bit too early to tell how expansive any additional use of the 4 GHz band may be. For now, the FCC is focused on protecting existing satellite earth station operations.

For more information, please contact Wes Wright (wright@khlaw.com202.434.4239).

 

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On August 10, 208, the FCC’s Office of Engineering and Technology released a Public Notice seeking comment on the rule changes resulting its 2015 rule-making regarding the 3.5 GHz band.  It’s unusual for the Commission to seek comment on rule changes that were adopted several years ago when it is not reconsidering those rules.  In this case, the Spectrum Pipeline Act requires the Commission to submit a report by November 2, 2018 regarding the 3.5 GHz band rule changes and also “proposals to promote and identify additional spectrum bands that can be shared between incumbent uses and new licensed and unlicensed services under such rules and identification of at least 1 gigahertz between 6 GHz and 57 GHz for such use.”

The 2015 3.5 GHz band Order was noteworthy because it created the concept of the Citizens Broadband Radio Service (“CBRS”).  An innovative approach, the CBRS uses priority tiers, an incumbent tier, an auctioned tier, and an unlicensed tier, to maximize investment in the band, while also promoting new technologies.  The Commission’s approach generated significant interest from rural and niche service providers and users that were excited to have a band suitable for high-capacity applications.

It will be interesting to see whether the FCC’s upcoming report will mention that since 2015 the Commission has reopened the CBRS proceeding to make the spectrum more palatable to large wireless carriers. Over the objections or critical infrastructure, rural providers, wireless ISPs, and others, the Commission has proposed to increase the size of licenses in the CBRS auctioned tier to more closely align with metro markets.  Concerns have been raised that such changes will foreclose the innovative uses the band was originally envisioned for.  The Commission’s revised 3.5 GHz rules are expected later this year.

Comments on the Public Notice are due September 11, 2018 and Reply Comments are due September 26, 2018.  For more information, please contact Greg Kunkle (kunkle@khlaw.com; 202.434.4178).

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On Friday, August 3, the FCC released its order adopting a One-Touch Make-Ready (OTMR) policy for attaching telecom and cable facilities to utility poles in the 30 states that don’t regulate pole attachments themselves. The FCC stated that it believes its action should help enable deployment of small cells and wireline backhaul for 5G services. However, Commissioner Rosenworcel, the only Democrat on the Commission, stated that she is concerned that the policy will slow down deployment because the Commission’s “definitions of simple and complex processes do not provide enough real-world guidance to attachers and utilities, setting the stage for disputes and delays.”

The order itself is problematic for a number of reasons, including those raised by Commissioner Rosenworcel.

Many of the provisions do not appear well grounded in the reality of electric utility operations, and in practice might not serve the Commission’s goals of promoting broadband and 5G services.  For example, the public safety, worker safety, and reliability implications of losing control over the electric space cannot be overestimated.  While the final order makes helpful changes to address certain concerns expressed by our Coalition of Concerned Utilities in this proceeding, we would much prefer that this electric space self-help remedy be removed entirely.

For more information, please contact Tom Magee (magee@khlaw.com; 202.434.4128) or Tim Doughty (doughty@khlaw.com; 202.434.4271).

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In December 2013, the FCC adopted rules to improve 911 network reliability.  The rules require Covered 911 Service Providers (“Providers”) to take certain measures to provide reliable 911 service.  The specific measures adopted by the agency attempt to address three network vulnerabilities identified by the FCC in the aftermath of the derecho storm that knocked out 911 service along the east coast in 2012.

Earlier this summer, the FCC released a Public Notice seeking comment on the efficacy of these rules and soliciting input on whether those rules need to be revised.  Comments were filed last month and Reply Comments are due in mid-August.

The Rules

The rules require Providers to promote reliable 911 service with respect to three network elements: circuit auditing, central-office backup power, and diverse network monitoring.  Providers must certify annually that they have met the FCC’s safe harbor provisions for each of those elements or have taken reasonable alternative measures in lieu of those safe harbor protections.  The rules also require Providers to notify PSAPs of any outage that impacts 911 service.

Providers subject to these rules include entities that provide 911, E911, or NG911 capabilities such as call routing, automatic location information (ALI), automatic number identification (ANI), or the functional equivalent of those capabilities, to a public safety answering point (PSAP).

What Has Worked?

Identifying Network Elements.  The Commission considered adopting a generic standard that would have required Providers to take reasonable measures to generally promote network reliability.  Instead, it adopted specific rules that require Providers to meet precise (and narrow) benchmarks that the agency believes will promote network reliability.  This includes conducting circuit audits, ensuring adequate backup power is maintained in data centers, and having diverse paths to monitor network traffic.  These specific standards have worked.  They enable the FCC to address key vulnerabilities in the 911 network while providing the industry with clear, achievable targets.

Annual Certification.  One reason the FCC requires an annual certification is to ensure that senior management is aware of significant vulnerabilities in the 9-1-1 network and accountable for decisions regarding network design, maintenance, and disaster preparedness.  In my experience, this also has worked.  The rules require a senior executive to sign a certification under penalty of perjury, which ensures that senior management is aware of – and involved in – network design and maintenance decisions.

What Needs to be Changed?

Though largely successful, the Commission should consider a few revisions to clarify and strengthen the rules.

Definition of a Provider.  The definition of a Covered 911 Service Provider could be revised to add clarity.  The Commission should tweak this definition to confirm that a Provider must have a direct contractual relationship with a PSAP to provide routing, ALI, and/or ANI service.  This would eliminate confusion about which entities are – and are not – Providers subject to these rules.

PSAP Notifications.  The rules require Providers to communicate outage information directly to PSAPs.  The well-founded intent is to enable PSAP personnel to have real time outage information to formulate appropriate responses to network issues.  However, this frequently leads to individual PSAPs receiving multiple outage updates for a single network event.  By revising the definition of a Provider (as suggested above), the FCC may be able to eliminate some of the duplicative PSAP communication problems so that only the entity with a contractual relationship with the PSAP communicates outage information.

Where Do We Go From Here?

The FCC is seeking objective feedback about the rules because it has not yet determined whether they should be revised, expanded, curtailed, or left unchanged.  One bellwether for determining whether the FCC believes the rules have been effective is going to be how the agency treats the annual certification requirement.

Some commenters have suggested that the certification should be made once every two, three, or even five years.  Other parties urged the FCC to relax the certification obligation so that it need not be made under penalty of perjury by a corporate officer.  Still other parties have urged the FCC to eliminate the certification requirement.

How the Commission handles this issue will indicate whether the agency pursues a deregulatory agenda.

My two cents?  By and large, the rules have worked.  The FCC should make some minor clarifying revisions to the rules, but should otherwise leave the rules unchanged.

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To speed deployment of wireless broadband to the nation’s communities, the FCC created a Broadband Deployment Advisory Committee (BDAC) charged with drafting model codes to govern the relationship between wireless carriers and states and local jurisdictions. However, what may be a “model” for carriers looking to speed broadband deployment and maximize profits is not being viewed favorably by local jurisdictions seeking to protect land use from unsightly and overzealous deployment and to receive a fair share of the revenue generated from wireless carriers’ use of local infrastructure.

5G Deployments Will Benefit from Access to Public Infrastructure. Fifth generation wireless network technology – or 5G as it is more commonly known – is a dynamic broadband technology having substantial promise and potential. Wireless speeds and lower latency rates for wireless communications will improve exponentially, leading to innovation and uses that could include augmented and virtual reality, the Internet of Things, smart homes, smart cities and autonomous vehicles.

For this technology to blossom two things are necessary – sufficient spectrum and available infrastructure. It is anticipated that the full implementation of 5G calls for spectrum having super-wide bandwidth that, in turn, can only be transmitted over very short distances, resulting in the need for hundreds of thousands more cells than currently exist. These so-called “small cells” are low-powered base stations that cover much smaller areas than the typical macrocell. Whereas macrocell deployments are typically 70-300 feet in height, small cell transmitters are mounted 30-60 feet above ground, having coverage areas measured in meters, not miles.

The FCC is intent on ensuring that sufficient spectrum is available to meet the 5G needs of the wireless carriers, initiating multiple spectrum rulemakings and planning for auctions that will be conducted during the next several years. The Commission also intends to play a major part in facilitating the availability of infrastructure.

Because of the massive number of cells that will be required for 5G, local community infrastructure including traffic lights, lamp posts and similar structures are needed for a successful broadband deployment. In some residential neighborhoods, new small cells may need to be placed in public rights-of-way in front of homes and apartment complexes. This essential requirement is causing significant debate on the respective needs of carriers and communities – and much activity at the federal, state and local levels.

BDAC’s Work is Wrapping Up. With the hope of developing a framework for broadband deployment on a nationwide basis, the FCC created the BDAC to provide recommendations on how best to accelerate the deployment of broadband. As part of its mission, the BDAC is working on a Model Broadband Code for Municipalities and a Model Broadband Code for States. It hopes to finish its deliberations soon and then propose the codes to the FCC for consideration as nationwide “model” codes.

BDAC’s one-sided tilt favoring wireless carriers proved too much for some local jurisdictions. San Jose Mayor, Sam Liccardo, was initially vice chair of the BDAC’s municipal model code committee. He felt that this working group, heavily weighted with carrier representatives, was working to promote the interests of carriers and not the public. He resigned from the BDAC in January of this year saying that “after nine months of deliberation, negotiation, and discussion, we’ve made no progress toward a single proposal that will actually further the goal of equitable broadband deployment.” The Chief Technology Officer of New York City, the nation’s largest city, withdrew from the BDAC for similar reasons.

A More Balanced Approach Emerges. Six months after Mayor Liccardo’s departure from the BDAC, the City of San Jose reached small cell agreements with three wireless carriers including, AT&T and Verizon. These agreements contain numerous municipally-friendly provisions.  For example, each carrier will be required to comply with the City’s public noticing process before installing a small cell on any of the City’s light poles. In addition, each small cell will have to meet the City’s established design standards, which restrict the size and placement of each installation. Recurring fees to place small cells on city structures are market-based and range up to a rate of $2,500 per site – in stark contrast to “cost-based” rates of less than $50 proposed in other jurisdictions.

As a strong advocate of a collaborative approach to broadband deployment, FCC Commissioner Rosenworcel was so impressed that she posted San Jose’s agreements on the FCC’s website, referring to them as “model” agreements. Commissioner Rosenworcel urges similar carrier-local government cooperation across the country based on the framework of these agreements.

Restrictive State Laws Already in Place. Not all jurisdictions will have the opportunity to apply the San Jose model for the benefit of their residents. Restrictive state laws prevail in many jurisdictions. The wireless industry has been successful in its lobbying efforts to get state legislatures to pass broadband legislation favorable to the industry. These laws restrict the ability of local jurisdictions to protect land use from potential overreaching by wireless carriers or to negotiate market-based rates for carrier access to rights-of-way and local infrastructure.

At last count, some 20 states had adopted such legislation. Common elements of these statewide preemption laws include capped fees for right-of-way use, expedited timelines for processing infrastructure applications, limited scope for local governments to deny requests, presumed application approvals, and limited (or prohibited) zoning authority over attachment to new poles.

Last year, Governor Jerry Brown of California vetoed similar broadband legislation. This decision was instrumental in positioning San Jose to enter into market-based agreements enabling broadband deployment for the benefit of both the wireless industry and the local community. A true win-win situation.

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FCC Process Changes for Larger Wireless Facilities

Part 1 summarized the exemption of small wireless facilities from the FCC’s environmental review process under conditions specified in the new FCC rules adopted in March 2018. In its Second Report and Order, the FCC also took actions to streamline the review process for larger wireless facilities under the National Historic Preservation Act (NHPA) and the National Environmental Policy Act (NEPA).

The FCC clarified its procedures for engaging Tribal Nations and Native Hawaiian Organizations (NHOs) in review of construction projects located off of Tribal lands. The FCC specified that applicants must provide all potentially affected Tribal Nations and NHOs with a Form 620 (for new towers) or a Form 621 (for collocations) packet where one of these forms is prepared. Forms 620 and 621 are required for review by State Historical Preservation Officers (SHPOs). If no SHPO review is required and thus there is no Form 620 or 621, applicants must provide Tribal Nations and NHOs “information adequate to fully explain the project and its locations.” At a minimum, that must include applicant contact information, coordinates, a description of the facility to be constructed including all of its elements, and a description of the proposed site including both aerial and site photographs. The FCC time lines for Tribal responses will not begin to run until a complete and accurate submission has been made by the applicant.

Regarding time lines, the FCC reduced the period in which Tribal Nations or NHOs must respond to notification if they have issues with proposed construction from up to 60 days to up to 45 days. If there has not been a response within that maximum of 45 days, the applicant’s pre-construction obligation to the non-responding entity is discharged. The 45 days includes time for an FCC follow-up notification in addition to the initial notification by the applicant.

The FCC clarified that applicants may choose to but are not required to pay fees requested by Tribal Nations or NHOs that have been invited to participate in this process. The FCC stated that some Tribal Nations and NHOs have been asking for an “up-front fee” before they will participate (i.e., respond). The FCC found that “up-front fees” are in the nature of a processing fee and applicants are not required to pay such fees. The FCC stated that if a Tribal Nation or NHO conditions its response on receipt of up-front compensation, the FCC will treat that as a failure to respond.

The FCC addressed situations in which Tribal Nations have requested payment for activities undertaken after initial determination that historic properties are likely to be located in a site vicinity. The FCC concluded that while an applicant may negotiate and contract with a Tribal Nation or NHO for services, “an applicant is not obliged to hire a Tribal Nation or accede to Tribal requests for fees in the absence of an agreement” and may seek other means of having needed work done. An applicant’s selection of a consultant is subject to the requirement that with respect to the identification and evaluation of historic properties, any assessment of effects shall be undertaken by a professional who meets the Secretary of the Interior’s Professional Qualification Standards.

The FCC specified a conflict resolution system to apply in individual cases of disagreement between an applicant and a Tribal Nation or NHO as to whether the applicant has met the reasonable and good faith standard in connection with the hiring of paid consultants.

The FCC adopted some reforms to its own processes as well. It modified a requirement for filing an Environmental Assessment (EA) for any proposed facility located in a floodplain. The FCC exempted from that requirement facilities that, including all associated equipment, will be constructed at least one foot above the base flood elevation, unless other criteria in the FCC rules trigger an EA.

The FCC also adopted time lines on its own processes when EAs are filed. The FCC puts EAs on public notice for 30 days to allow public input. It stated that most EAs are acted upon by its issuance of a Finding of No Significant Impact (FONSI) about 15 days after the close of the public notice period. In the Second R&O, the FCC directed its staff to review EAs for completeness and adequacy to support a FONSI within 20 days of the date the EA is placed on public notice. If that review is positive, the FCC staff is instructed to advise the applicant that unless there is an informal complaint or petition to deny filed, a FONSI will be issued within 60 days of the date the EA was placed on public notice. If the staff review finds that additional information is required, the applicant will be notified within 30 days after the EA is placed on public notice. In that case, if a FONSI is warranted, it will be issued by the later of 60 days after the EA is placed on public notice or 30 days after the additional information is provided. If the additional information might affect the public’s ability to comment effectively, a new 60 day period may commence from the publication of the additional notice. Finally, if an informal complaint or petition to deny is filed against an application containing an EA, FCC staff is instructed to endeavor to try to resolve the matter within 90 days of the close of the pleading cycle.

These changes go into effect on July 2, 2018.

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FCC Exempts Wireless Small Cells from Environmental Review Requirements

A high FCC priority is to streamline broadband deployment including the wireless infrastructure necessary to provide service to the public. One FCC proceeding directed to that objective was initiated in April 2017 with a Notice of Proposed Rulemaking (NPRM), Notice of Inquiry (NOI), and Request for Comment (RFC) regarding Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment.

The NPRM addressed Pole Attachments, Expediting Copper Retirement, and Streamlining the Section 214(a) Discontinuation of Service process. The NOI addressed possible prohibition of state and local laws inhibiting broadband deployment and pre-emption of state laws governing copper retirement. The RFC addressed common carrier discontinuation of service issues unrelated to wireless infrastructure and the environmental review process.

In November 2017 the FCC adopted a (first) Report and Order (R&O). It concluded that in specified circumstances “replacement of a pole that was constructed with a sole or primary purpose other than supporting communications antennas with a pole that will support such antennas would have no potential to affect historic properties.”  Accordingly, it excluded replacement utility poles from required review under Section 206 of the National Historic Preservation Act (NHPA) if specified conditions are met. Please see my December 5, 2017 blog entry “Is the Road to 5G Paved with Federal and State Pre-emptions of Local Authority?” for a summary of those conditions.

In March 2018, the FCC adopted a Second R&O. In it, the FCC excluded small wireless facilities from National Historic Preservation Act (NPHA) and National Environmental Policy Act (NEPA) review under specified circumstances and also streamlined NHPA and NEPA review for larger wireless facilities. The FCC stated that these actions will make a real difference in promoting U.S. leadership in 5G and can cut the costs of deployment by 80%, trim months off deployment timelines, and incentivize thousands of new wireless deployments thus expanding the reach of 5G and other advanced wireless technologies in the U.S.

The FCC concluded that deployment of small wireless facilities by non-Federal entities do not require historic preservation review under NHPA nor environmental review under NEPA because such deployments are neither an “undertaking” (NHPA) nor a “major Federal action” (NEPA). The Second R&O noted that the FCC last considered whether some wireless facilities could be exempt from these requirements in 2004 when virtually all wireless sites were “macro” sites, but that new small cell sites are materially different in size and in their likelihood of impact on surrounding areas. The FCC concluded that conducting such reviews for small wireless sites would result in costs far exceeding benefits and that the burden would grow exponentially as ever-increasing numbers of small wireless facilities are deployed.

Here is the newly amended FCC rule that specifies the conditions for exclusion from NHPA and NEPA review for small wireless facilities:

Section 1.1312(e): Paragraphs (a) through (d) of this section shall not apply:

  1. to the construction of mobile stations; or
  2. where the deployment of facilities meets the following conditions:

(i)  The facilities are mounted on structures 50 feet or less in height including their antennas as defined in § 1.1320(d), or the facilities are mounted on structures no more than 10 percent taller than other adjacent structures, or the facilities do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater;

(ii) Each antenna associated with the deployment, excluding the associated equipment (as defined in the definition of antenna in § 1.1320(d)), is no more than three cubic feet in volume;

(iii) All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume;

(iv) The facilities do not require antenna structure registration under Part 17 of this chapter;

(v) The facilities are not located on Tribal lands, as defined under 36 CFR § 800.16(x); and

(vi) The facilities do not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in § 1.1307(b).

These changes were adopted by the FCC on a 3-2 vote. The changes go into effect on July 2, 2018.

Part 2 will address the actions of the FCC to streamline its environmental review process for larger wireless facilities.