FCC Declaratory Ruling Expands Guidance for Certain Existing Wireless Facilities

The Federal Communications Commission (FCC) issued a new ruling affecting local review of modification proposals to existing wireless infrastructure, intended to help expedite the deployment of 5G technology. The ruling addresses modifying existing wireless communications facilities, existing and new concealments, and it adds clarifications on shot-clock tolling and the definition of an equipment cabinet. Major points of the ruling are included in this post. Cities should review their wireless siting ordinances, regulations, processes, and permit forms to ensure compliance with the order. The full Declaratory Ruling (“FCC Order”) was released June 10, 2020, which is the effective date of the rule. For information about the rule please visit the FCC-issued fact sheet.

The Wireless Infrastructure Association (WIA) and the Wireless Association (CTIA) petitioned the FCC to clarify portions of Section 6409(a) of the 2012 Spectrum Act, which regulates the placement or modification of wireless facilities on an existing wireless tower or base station. Pursuant to the 2012 Act, applications that do not “substantially change the physical dimensions” are considered “eligible facilities requests” and are subject to the 60-day shot clock (i.e., the time limit for local approval) outlined below.

The new ruling addresses what tolls the 60-day shot clock, clarifies what constitutes “substantial change,” and cleans up a few ambiguities. The terms “substantial change” and “eligible facilities request” were previously interpreted in the FCC’s 2014 Infrastructure Order.  Some cities and local government associations have already challenged the new ruling at the Ninth Circuit Court of Appeals.

Commencement of the 60-Day Shot Clock

The 60-day shot clock to approve 6409(a) “eligible facilities requests” begins when two criteria for starting the clock have been met:

1. The applicant takes the first procedural step required by the jurisdiction’s review process (under section 6409[a] of the Spectrum Act); and
2. The applicant submits written documentation addressing the applicable eligible facilities request riteria, including that proposed modifications would not cause “substantial change” to the existing structure. 

The first procedural step must be both within the applicant’s control and verifiable. For example, if a meeting with city staff is required as the first step, the clock begins when the applicant requests the meeting (in writing, which is verifiable), not when the meeting takes place and upon the submission of the written documentation — the applicant does not need to delay the submission of such information until a later date, and the clock starts to run when both the meeting is requested and the documentation is submitted.

Local governments may not delay triggering the shot clock by declaring that multiple steps, such as separate meetings with multiple groups (e.g., historic preservation board, city staff, resident group) are considered a single step. Nor can they delay by requesting additional documentation beyond what the 2014 FCC Wireless Infrastructure Report and Order clarified. Local governments without established procedures for these types of applications are instructed that the first procedural step would be the submission of a filing “typical to initiative zoning or siting review such as wireless facilities outside of 6409(a), outdoor tower, or pole installation.”

Height Increase for Towers Outside the Public Right-of-Way

Existing FCC rules provide that a modification to a tower outside a public right-of-way is substantial if the proposed modification “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.” 47 CFR § 1.6100(b)(7)(i).

The new ruling clarifies that the 20-foot separation distance is to be measured from the top of the highest existing antenna on the structure to the bottom of the proposed additional antenna. The height of the additional antenna is not included in the calculations of the allowable height increase.

Concealment Elements

Concealed elements are defined as “elements of a stealth-designed facility intended to make it look like something other than a wireless tower or base station and that was part of a prior approval.” (See photo for an example of a stealth-designed facility.)

This narrows the definition of concealment elements to stealth designs (e.g. pine trees, clock towers, art installations) and requires that the concealment elements are limited to those that the “locality approved in its prior review” when the facility was installed. The jurisdiction may not require concealment elements that are not present on the existing facility. The FCC further provides examples of whether certain proposed modifications will defeat concealment elements in paragraph 40 of the FCC Order.

Conditions Associated with Siting Approvals

Jurisdictions may require elements designed to improve the aesthetics or reduce the visual impact of non-stealth facilities only when 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. Examples of such conditions and whether they are consistent with the ruling are in paragraph 44 of the FCC Order.

Equipment Cabinets

The FCC Order clarifies that an equipment cabinet “does not include relatively small electronic components if they are not used as physical containers for smaller devices” and specifically allows the addition of these equipment cabinets outside of the four equipment cabinet limitation. The limit of four equipment cabinets does not apply to the cumulative total on the tower but refers to the limit per eligible facilities request, essentially enabling multiple applications that include more than four equipment cabinets.

Environmental Assessments

These are not required in cases where a memorandum of agreement between parties has been entered into regarding historic properties.

Notice of Proposed Rulemaking

The FCC also issued a Notice of Proposed Rulemaking in order to address whether to revise the definition of “site.”  The question is whether the term “site” should refer to the boundary of the leased or owned property as of the date the facility was last reviewed and approved by the jurisdiction or as of the date of the application (which could include an expansion of the site without the jurisdiction’s approval). In addition, the FCC seeks comment on whether an eligible facility request should apply to ground excavation or deployment up to 30 feet in any direction outside the facility’s site. Comments related to this Notice of Proposed Rulemaking are due on July 22, 2020.

Ogden Murphy Wallace P.L.L.C. will be hosting a free webinar for local jurisdictions, New FCC Order on WCF Modifications — What Local Governments Need to Know, on Tuesday July 14, from 3:00 – 4:00 PM.