Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, 21761-21780 [2017-09431]
Download as PDF
Federal Register / Vol. 82, No. 89 / Wednesday, May 10, 2017 / Proposed Rules
tribe has jurisdiction. In those areas of
Indian country, the rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), nor will it impose
substantial direct costs on tribal
governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: April 17, 2017.
V. Anne Heard,
Acting Regional Administrator, Region 4.
[FR Doc. 2017–09392 Filed 5–9–17; 8:45 am]
BILLING CODE 6560–50–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Parts 1 and 17
[WT Docket No. 17–79; FCC 17–38]
Accelerating Wireless Broadband
Deployment by Removing Barriers to
Infrastructure Investment
Federal Communications
Commission.
ACTION: Proposed rule.
AGENCY:
In this document, the Federal
Communications Commission
(Commission) seeks comment on
proposals to reduce the regulatory
impediments to wireless network
infrastructure investment and
deployment.
DATES: Interested parties may file
comments on or before June 9, 2017,
and reply comments on or before July
10, 2017.
ADDRESSES: You may submit comments
and reply comments on or before the
dates indicated in the DATES section
above. Comments may be filed using the
Commission’s Electronic Comment
Filing System (ECFS). See Electronic
Filing of Documents in Rulemaking
Proceedings, 63 FR 24121 (1998). All
filings related to this document shall
refer to WT Docket No. 17–79.
D Electronic Filers: Comments may be
filed electronically using the Internet by
accessing the ECFS: https://apps.fcc.gov/
ecfs/.
D Paper Filers: Parties who choose to
file by paper must file an original and
one copy of each filing.
Filings can be sent by hand or
messenger delivery, by commercial
jstallworth on DSK7TPTVN1PROD with PROPOSALS
SUMMARY:
VerDate Sep<11>2014
15:10 May 09, 2017
Jkt 241001
overnight courier, or by first-class or
overnight U.S. Postal Service mail. All
filings must be addressed to the
Commission’s Secretary, Office of the
Secretary, Federal Communications
Commission.
D All hand-delivered or messengerdelivered paper filings for the
Commission’s Secretary must be
delivered to FCC Headquarters at 445
12th Street SW., Room TW–A325,
Washington, DC 20554. The filing hours
are 8:00 a.m. to 7:00 p.m. All hand
deliveries must be held together with
rubber bands or fasteners. Any
envelopes and boxes must be disposed
of before entering the building.
D Commercial overnight mail (other
than U.S. Postal Service Express Mail
and Priority Mail) must be sent to 9300
East Hampton Drive, Capitol Heights,
MD 20743.
D U.S. Postal Service first-class,
Express, and Priority mail must be
addressed to 445 12th Street SW.,
Washington DC 20554.
People with Disabilities. To request
materials in accessible formats for
people with disabilities (braille, large
print, electronic files, audio format),
send an email to fcc504@fcc.gov or call
the Consumer & Governmental Affairs
Bureau at 202–418–0530 (voice), 202–
418–0432 (tty).
For additional information on the
rulemaking process, see the
SUPPLEMENTARY INFORMATION section of
this document.
In addition to filing comments with
the Secretary, a copy of any comments
on the Paperwork Reduction Act
information collection modifications
proposed herein should be submitted to
the Commission via email to PRA@
fcc.gov and to Nicholas A. Fraser, Office
of Management and Budget, via email to
Nicholas_A._Fraser@omb.eop.gov or via
fax at 202–395–5167.
FOR FURTHER INFORMATION CONTACT: For
further information on this proceeding,
contact Aaron Goldschmidt,
Aaron.Goldschmidt@fcc.gov, of the
Wireless Telecommunications Bureau,
Competition & Infrastructure Policy
Division, (202) 418–7146, or David
Sieradzki, David.Sieradzki@fcc.gov, of
the Wireless Telecommunications
Bureau, Competition & Infrastructure
Policy Division, (202) 418–1368.
SUPPLEMENTARY INFORMATION:
This is a summary of the Federal
Communications Commission’s Notice
of Proposed Rulemaking and Notice of
Inquiry (NPRM and NOI, respectively),
in WT Docket No. 17–79; FCC 17–38,
adopted April 20, 2017, and released on
April 21, 2017. The document is
available for download at https://
PO 00000
Frm 00020
Fmt 4702
Sfmt 4702
21761
fjallfoss.fcc.gov/edocs_public/. The
complete text of this document is also
available for inspection and copying
during normal business hours in the
FCC Reference Information Center,
Portals II, 445 12th Street SW., Room
CY–A257, Washington, DC 20554. To
request materials in accessible formats
for people with disabilities (Braille,
large print, electronic files, audio
format), send an email to FCC504@
fcc.gov or call the Consumer &
Governmental Affairs Bureau at 202–
418–0530 (voice), 202–418–0432 (TTY).
I. Notice of Proposed Rulemaking
A. Streamlining State and Local Review
1. In this section, the Commission
addresses the process for reviewing and
deciding on wireless facility
deployment applications conducted by
State and local regulatory agencies. The
Commission seeks comment on several
potential measures or clarifications
intended to expedite such review
pursuant to the Commission’s authority
under Section 332 of the
Communications Act.
2. The Commission has taken a
number of important actions to date
implementing Section 332(c)(7) of the
Communications Act (Act) and Section
6409(a) of the Spectrum Act, each of
which has been upheld by federal
courts. The Commission seeks to assess
the impact of the Commission’s actions
to date, in order to evaluate the
measures the Commission discusses in
the NPRM, as well as other possible
actions, and to determine whether those
measures are likely to be effective in
further reducing unnecessary and
potentially impermissible delays and
burdens on wireless infrastructure
deployment associated with State and
local siting review processes. Thus, the
Commission asks parties to submit facts
and evidence on the issues discussed
below and on any other matters relevant
to the policy proposals set forth here.
The Commission seeks information on
the prevalence of barriers, costs thereof,
and impacts on investment in and
deployment of wireless services,
including how such costs compare to
the overall costs of deployment. The
Commission seeks information on the
specific steps that various regulatory
authorities employ at each stage in the
process of reviewing applications, and
which steps have been most effective in
efficiently resolving tensions among
competing priorities of network
deployment and other public interest
goals. In addition, parties should detail
the extent to which the Commission’s
existing rules and policies have or have
not been successful in addressing local
E:\FR\FM\10MYP1.SGM
10MYP1
jstallworth on DSK7TPTVN1PROD with PROPOSALS
21762
Federal Register / Vol. 82, No. 89 / Wednesday, May 10, 2017 / Proposed Rules
siting review challenges, including
effects or developments since the 2014
Infrastructure Order, the Commission’s
most recent major decision addressing
these issues (See Acceleration of
Broadband Deployment by Improving
Wireless Facilities Siting Policies,
Report and Order, 29 FCC Rcd 12865
(2014) (2014 Infrastructure Order)). To
the extent that parties have submitted
information in response to the Wireless
Telecommunications Bureau’s
Streamlining PN that is relevant to these
questions, the Commission invites them
to submit such data in the present
docket (See Streamlining Deployment of
Small Cell Infrastructure by Improving
Wireless Facilities Siting Policies;
Mobilitie, LLC Petition For Declaratory
Ruling, Public Notice, 31 FCC Rcd
13360, 13368 (WTB 2016) (Streamlining
PN)). In addition, to the extent parties
discuss the conduct or practices of
government bodies or wireless facility
siting applicants, the Commission
strongly urges them to identify the
particular entities that they assert
engaged in such conduct or practices.
3. Further, in seeking comment on
new or modified measures to expedite
local review, the Commission invites
commenters to discuss what siting
applicants can or should be required to
do to help expedite or streamline the
siting review process. Are there ways in
which applicants are causing or
contributing to unnecessary delay in the
processing of their siting applications? If
so, the Commission seeks comment on
how the Commission should address or
incorporate this consideration in any
action the Commission takes in this
proceeding. For example, to what extent
have delays been the result of
incomplete applications or failures to
properly respond to requests to the
applicant for additional information,
and how should measures the
Commission adopts or revises to
streamline application review ensure
that applicants are responsible for
supplying complete and accurate filings
and information? Further, are there
steps the industry can take outside the
formal application review process that
may facilitate or streamline such
review? Are there siting practices that
applicants can or should adopt that will
facilitate faster local review while still
achieving the deployment of
infrastructure necessary to support
advanced wireless broadband services?
1. ‘‘Deemed Granted’’ Remedy for
Missing Shot Clock Deadlines
4. The Commission now takes a fresh
look and seeks comment on a ‘‘deemed
granted’’ remedy for State and local
agencies’ failure to satisfy their
VerDate Sep<11>2014
15:10 May 09, 2017
Jkt 241001
obligations under Section
332(c)(7)(B)(ii) to act on applications
outside the context of the Spectrum Act.
The Commission invites commenters to
address whether the Commission
should adopt one or more of the three
options discussed below regarding the
mechanism for implementing a
‘‘deemed granted’’ remedy. The
Commission describes each of these
options below and explains its analysis
of its legal authority to adopt each of
them. The Commission seeks comment
on the benefits and detriments of each
option and invites parties to discuss the
Commission’s legal analysis. The
Commission also seeks comment on
whether there are other options for
implementing a ‘‘deemed granted’’
remedy.
5. Irrebuttable Presumption. In the
2009 Shot Clock Declaratory Ruling, the
Commission created a ‘‘rebuttable
presumption’’ that the shot clock
deadlines established by the
Commission were reasonable (See
Petition for Declaratory Ruling to Clarify
Provisions of Section 332(c)(7) to Ensure
Timely Siting Review, Declaratory
Ruling, 24 FCC Rcd 13994 (2009) (2009
Shot Clock Declaratory Ruling)). The
Commission anticipated that this would
give State and local regulatory agencies
‘‘a strong incentive to resolve each
application within the time frame
defined as reasonable.’’ Thus, when an
applicant sues pursuant to Section
332(c)(7)(B)(v) to challenge an agency’s
failure to act on an application by the
applicable deadline, the agency would
face the burden of ‘‘rebut[ting] the
presumption that the established
timeframes are reasonable,’’ and if it
fails to satisfy this burden, the court
could ‘‘issu[e] . . . an injunction
granting the application.’’ The
Commission believes one option for
establishing a ‘‘deemed granted’’
remedy for a State or local agency’s
failure to act by the applicable deadline
would be to convert this rebuttable
presumption into an irrebuttable
presumption. Thus, the Commission’s
determination of the reasonable time
frame for action (i.e., the applicable shot
clock deadline) would ‘‘set an absolute
limit that—in the event of a failure to
act—results in a deemed grant.’’
6. The Commission believes it has
legal authority to adopt this approach.
The Commission sees no reason to
continue adhering to the cautious
approach articulated in the 2009 Shot
Clock Declaratory Ruling—i.e., that
Section 332(c)(7) ‘‘indicates
Congressional intent that courts should
have the [sole] responsibility to fashion
. . . remedies’’ on a ‘‘case-specific’’
basis. The Commission advanced that
PO 00000
Frm 00021
Fmt 4702
Sfmt 4702
theory without citing any legislative
history or other sources, and the Fifth
Circuit, in its decision upholding the
2009 Shot Clock Declaratory Ruling,
apparently declined to rely on it.
Instead, the Fifth Circuit found no
indication in the statute and its
legislative history of any clear
Congressional intent on whether the
Commission could ‘‘issue an
interpretation of section 332(c)(7)(B)(v)
that would guide courts’ determinations
of disputes under that section,’’ and
went on to affirm that the Commission
has broad authority to render definitive
interpretations of ambiguous provisions
such as this one in Section 332(c)(7).
The Fifth Circuit further found—and the
Supreme Court affirmed—that courts
must follow such Commission
interpretations.
7. The Commission sees nothing in
the statute that explicitly compels a
case-by-case assessment of the relevant
circumstances for each individual
application, nor any provision
specifically requiring that those time
frames be indefinitely adjustable on an
individualized basis, rather than subject
to dispositive maximums that may be
deemed reasonable as applied to
specified categories of applications.
While Section 332(c)(7)(B)(ii) provides
that a locality must act on each
application ‘‘within a reasonable time,
taking into account the nature and
scope of such request,’’ this does not
necessarily mean that a reviewing court
‘‘must consider the specific facts of
individual applications’’ to determine
whether the locality acted within a
reasonable time frame; the Commission
is well-positioned to take into account
the ‘‘nature and scope’’ of particular
categories of applications in
determining the maximum reasonable
amount of time for localities to address
each type. The Commission seeks
comment on this analysis.
8. Lapse of State and Local
Governments’ Authority. In the
alternative (or in addition) to the
irrebuttable presumption approach
discussed above, the Commission
believes it may implement a ‘‘deemed
granted’’ remedy for State and local
agencies’ failure to act within a
reasonable time based on the following
interpretation of ambiguous provisions
in the statute. Section 332(c)(7)(A)
assures these agencies that their
‘‘authority over decisions concerning
the placement, construction, and
modification of personal wireless
service facilities’’ is preserved—but
significantly, qualifies that assurance
with the provision ‘‘except as provided’’
elsewhere in Section 332(c)(7). The
Commission seeks comment on whether
E:\FR\FM\10MYP1.SGM
10MYP1
Federal Register / Vol. 82, No. 89 / Wednesday, May 10, 2017 / Proposed Rules
jstallworth on DSK7TPTVN1PROD with PROPOSALS
the Commission should interpret this
phrase as meaning that if a locality fails
to meet its obligation under Section
332(c)(7)(B)(ii) to ‘‘act on [a] request for
authorization to place, construct, or
modify personal wireless facilities
within a reasonable period of time,’’
then its ‘‘authority over decisions
concerning’’ that request lapses and is
no longer preserved. Under this
interpretation, by failing to act on an
application within a reasonable period
of time, the agency would have
defaulted its authority over such
applications (i.e., lost the protection of
Section 332(c)(7)(A), which otherwise
would have preserved such authority),
and at that point no local land-use
regulator would have authority to
approve or deny an application.
Arguably, the Commission could
establish that in those circumstances,
there is no need for an applicant to seek
such approval. The Commission seeks
comment on this interpretation and on
the desirability of taking this approach.
9. Preemption Rule. A third approach
to establish a ‘‘deemed granted’’
remedy—standing alone or in tandem
with one or both of the approaches
outlined above—would be to
promulgate a rule to implement the
policies set forth in Section 332(c)(7).
Sections 201(b) and 303(r), as well as
other statutory provisions, generally
authorize the Commission to adopt rules
or issue other orders to carry out the
substantive provisions of the
Communications Act. Further, the Fifth
Circuit affirmed the determination in
the 2009 Shot Clock Declaratory Ruling
that the Commission’s ‘‘general
authority to make rules and regulations
to carry out the Communications Act
includes the power to implement
section 332(c)(7)(B)(ii) and (v).’’
Accordingly, the Commission seeks
comment on whether it could
promulgate a ‘‘deemed granted’’ rule to
implement Section 332(c)(7). The
Commission also seeks comment on
whether Section 253, standing alone or
in conjunction with Section 332(c)(7) or
other provisions of the Act, provides the
authority for the Commission to
promulgate a ‘‘deemed granted’’ rule.
2. Reasonable Period of Time To Act on
Applications
10. In 2009, the Commission
determined that, for purposes of
determining what is a ‘‘reasonable
period of time’’ under Section
332(c)(7)(B)(ii), 90 days should be
sufficient for localities to review and act
on (either by approving or denying)
complete collocation applications, and
that 150 days is a reasonable time frame
for them to review and act on other
VerDate Sep<11>2014
15:10 May 09, 2017
Jkt 241001
types of complete applications to place,
construct, or modify wireless facilities.
In its 2014 Infrastructure Order, the
Commission implemented Section
6409(a) of the Spectrum Act (enacted by
Congress in 2012) by, among other
things, creating a new 60-day shot clock
within which localities must act on
complete applications subject to the
definitions in the Spectrum Act.
11. The Commission asks commenters
to discuss whether the Commission
should consider adopting different time
frames for review of facility
deployments not covered by the
Spectrum Act. For example, the
Commission seeks comment on whether
it should harmonize the shot clocks for
applications that are not subject to the
Spectrum Act with those that are, so
that, for instance, the time period
deemed reasonable for non-Spectrum
Act collocation applications would
change from 90 days to 60 days.
Alternatively, should the Commission
establish a 60-day shot clock for some
subset of collocation applications that
are not subject to the Spectrum Act, for
example, applications that meet the
relevant dimensional limits but are
nevertheless not subject to the Spectrum
Act because they seek to collocate
equipment on non-tower structures that
do not have any existing antennas?
Should the Commission adopt different
presumptively reasonable time frames
for resolving applications for more
narrowly defined classes of
deployments such as (a) construction of
new structures of varying heights (e.g.,
50 feet tall or less, versus 50 to 200 feet
tall, versus taller than 200 feet); (b)
construction of new structures in or
near major utility or transportation
rights of way, or that are in or near
established clusters of similar
structures, versus those that are not; (c)
deployments in areas that are zoned for
residential, commercial, or industrial
use, or in areas where zoning or
planning ordinances contemplate little
or no additional development; or (d)
replacements or removals that do not
fall within the scope of Section 6409(a)
of the Spectrum Act (for example,
because they exceed the dimensional
limits for requests covered by that
provision)? The Commission also
requests comment on whether to
establish different time frames for (i)
deployment of small cell or Distributed
Antenna System (DAS) antennas or
other small equipment versus more
traditional, larger types of equipment or
(ii) requests that include multiple
proposed deployments or, equivalently,
‘‘batches’’ of requests submitted by a
single provider to deploy multiple
PO 00000
Frm 00022
Fmt 4702
Sfmt 4702
21763
related facilities in different locations,
versus proposals to deploy one facility.
Should the Commission align the
Commission’s definitions of categories
of deployments for which the
Commission specifies reasonable time
frames for local siting review with the
Commission’s definitions of the
categories of deployments that are
categorically excluded from
environmental or historic preservation
review?
12. The Commission seeks comment
on what time periods would be
reasonable (outside the Spectrum Act
context) for any new categories of
applications, and on what factors the
Commission should consider in making
such a decision. For what types or
categories of wireless siting applications
may shorter time periods be reasonable
than those established in the 2009 Shot
Clock Declaratory Ruling? The
Commission invites commenters to
submit information to help guide the
Commission’s development of
appropriate time frames for various
categories of deployment. The
Commission asks commenters to submit
any available data on whether localities
already recognize different categories of
deployment in their processes, and on
the actual amounts of time that
localities have taken under particular
circumstances.
13. The Commission also seeks
comment on whether it should provide
further guidance to address situations in
which it is not clear when the shot clock
should start running, or in which States
and localities on one hand, and industry
on the other, disagree on when the time
for processing an application begins. For
instance, the Commission has heard
anecdotally that some jurisdictions
impose a ‘‘pre-application’’ review
process, during which they do not
consider that a request for authorization
has been filed. The Commission seeks
comment on how the shot clocks should
apply when there are such preapplication procedures; at what point
should the clock begin to run? Are there
other instances in which there is a lack
of clarity or disagreement about when
the clock begins to run? The
Commission asks parties to address
whether and how it should provide
clarification of how the Commission’s
rules apply in those circumstances.
14. Finally, the Commission seeks
comment on whether there are
additional steps that should be
considered to ensure that a deemed
granted remedy achieves its purpose of
expediting review. For example, to what
extent can the attachment of conditions
to approvals of local zoning applications
slow the deployment of infrastructure?
E:\FR\FM\10MYP1.SGM
10MYP1
21764
Federal Register / Vol. 82, No. 89 / Wednesday, May 10, 2017 / Proposed Rules
jstallworth on DSK7TPTVN1PROD with PROPOSALS
Are applicants encountering
requirements to comply with codes that
are not reasonably related to health and
safety? To the extent these conditions
present challenges to deployment, are
there steps the Commission can and
should take to address such challenges?
3. Moratoria
15. Another concern relating to the
‘‘reasonable periods of time’’ for State
and local agencies to act on siting
applications is that some agencies may
be continuing to impose ‘‘moratoria’’ on
processing such applications, which
inhibit the deployment of the
infrastructure needed to provide robust
wireless services. If so, such moratoria
might contravene the 2014
Infrastructure Order, which clearly
stated that the shot clock deadlines for
applications continue to ‘‘run[]
regardless of any moratorium.’’ The
Commission explained that this
conclusion was ‘‘consistent with a plain
reading of the 2009 Declaratory Ruling,
which specifies the conditions for
tolling and makes no provision for
moratoria,’’ and concluded that this
means that ‘‘applicants can challenge
moratoria in court when the shot clock
expires without State or local
government action.’’ The Commission
sees no reason to depart from this
conclusion. The Commission asks
commenters to submit specific
information about whether some
localities are continuing to impose
moratoria or other restrictions on the
filing or processing of wireless siting
applications, including refusing to
accept applications due to resource
constraints or due to the pendency of
state or local legislation on siting issues,
or insisting that applicants agree to
tolling arrangements. Commenters
should identify the specific entities
engaging in such actions and describe
the effect of such restrictions on parties’
ability to deploy or upgrade network
facilities and provide service to
consumers. The Commission proposes
to take any additional actions necessary,
such as issuing an order or declaratory
ruling providing more specific
clarifications of the moratorium ban or
preempting specific State or local
moratoria. Commenters should discuss
the benefits and detriments of any such
additional measures and the
Commission’s legal authority to adopt
them.
B. Reexamining National Historic
Preservation Act and National
Environmental Policy Act Review
16. In the following sections, the
Commission undertakes a
comprehensive fresh look at its rules
VerDate Sep<11>2014
15:10 May 09, 2017
Jkt 241001
and procedures implementing the
National Environmental Policy Act
(NEPA) and the National Historic
Preservation Act (NHPA) as they relate
to the Commission’s implementation of
Title III of the Act in the context of
wireless infrastructure deployment,
given the ongoing evolution in wireless
infrastructure deployment towards
smaller antennas and supporting
structures as well as more frequent
collocation on existing structures.
2. Updating Our Approach to the NHPA
and NEPA
a. Need for Action
17. Many wireless providers have
raised concerns about the Commission’s
environmental and historic preservation
review processes because, they say,
these reviews increase the costs of
deployment and pose lengthy and often
unnecessary delays, particularly for
small facility deployments. A large
number of wireless providers complain
that the Tribal component of the Section
106 review process is particularly
cumbersome and costly. The
Commission seeks concrete information
on the amount of time it takes for Tribal
Nations to complete the Section 106
review process and on the costs that
Tribal participation imposes on
facilities deployment and on the
provision of service. The Commission
also seeks comment and specific
information on the extent of benefits
attributable to Tribal participation
under the Commission’s Section 106
procedures, particularly in terms of
preventing damage to historic and
culturally significant properties.
18. In addition, in May 2016, PTA–
FLA filed a Petition for Declaratory
Ruling arguing that ‘‘Tribal fees have
become so exorbitant in some cases to
approach or even exceed the cost of
actually erecting the tower.’’ The
Commission incorporates PTA–FLA’s
petition into this proceeding and seeks
comment below on its proposals.
19. Some wireless providers contend
that the SHPO review process also
results in significant delays in
deployment. The Commission seeks
comment on the costs associated with
SHPO review under the Commission’s
historic preservation review process,
including direct financial costs; costs
that delay imposes on carriers, tower
owners, and the public; and any other
costs. What are the costs associated with
SHPO review of typical small facility
deployments, and how do these
compare with the costs for tower
construction projects? Does the SHPO
review process duplicate historic
preservation review at the local level,
PO 00000
Frm 00023
Fmt 4702
Sfmt 4702
particularly when local review is
conducted by a Certified Local
Government or a governmental
authority that issues a Certificate of
Appropriateness? In addition, the
Commission seeks comment on how
often SHPO review results in changes to
a construction project due to a SHPO’s
identification of potential harm to
historic properties or confers other
public benefits.
20. Some argue that NEPA
compliance imposes extraordinarily
high costs on wireless providers and
results in significant delays. The
Commission seeks comment on the
costs and relative benefits of the
Commission’s NEPA rules. What are the
costs associated with NEPA compliance,
other than costs associated with historic
preservation review? How do the costs
of NEPA compliance for tower
construction compare to such costs for
small facilities, and what specific
benefits does the review confer?
21. Finally, some note that facilities
requiring Federal review must also
undergo pre-construction review by
local governmental authorities, and
assert that the inability to engage in
these dual reviews simultaneously can
add significant time to the process. The
Commission seeks comment on whether
local permitting, NEPA review, and
Section 106 review processes can
feasibly be conducted simultaneously,
and on whether there are barriers
preventing simultaneous review to the
extent it is feasible. To what extent do
significant siting changes or the
potential for such changes during the
local process make simultaneous review
impractical or inefficient? Alternatively,
have reviewing or consulting parties in
the Commission’s NEPA or Section 106
review processes declined to process an
application until a local permitting
process is complete? The Commission
seeks comment on whether and under
what circumstances simultaneous
review would, on the whole, minimize
delays and provide for a more efficient
process and what steps, if any, the
Commission should take to facilitate or
enable such simultaneous review.
b. Process Reforms
(i) Tribal Fees
22. In this section, the Commission
identifies and seeks comment on several
issues relevant to fees paid to Tribal
Nations in the Section 106 process. In
addition to commenting on the legal
framework and on potential resolutions
to the issues, the Commission
encourages commenters to provide
specific factual information on current
Tribal and industry practices and on the
E:\FR\FM\10MYP1.SGM
10MYP1
jstallworth on DSK7TPTVN1PROD with PROPOSALS
Federal Register / Vol. 82, No. 89 / Wednesday, May 10, 2017 / Proposed Rules
impacts of those practices on licensees/
tower owners, Tribal Nations, and
timely deployment of advanced
broadband services to all Americans.
The Commission further welcomes
information on the practices of other
Federal agencies for the Commission’s
consideration.
23. Neither the NHPA nor the
Advisory Council on Historic
Preservation’s (ACHP) implementing
regulations address whether and under
what circumstances Tribal Nations and
Native Hawaiian Organizations (NHO)
may seek compensation in connection
with their participation in the Section
106 process. The ACHP has, however,
issued guidance on the subject in the
form of a memorandum in 2001 and as
part of a handbook last issued in 2012.
The ACHP 2001 Fee Guidance explains
that ‘‘the agency or applicant is not
required to pay the tribe for providing
its views.’’ Further, ‘‘[i]f the agency or
applicant has made a reasonable and
good faith effort to consult with an
Indian tribe and the tribe refuses to
respond without receiving payment, the
agency has met its obligation to consult
and is free to move to the next step in
the Section 106 process.’’ The guidance
also states, however, that when a Tribal
Nation ‘‘fulfills the role of a consultant
or contractor’’ when conducting
reviews, ‘‘the tribe would seem to be
justified in requiring payment for its
services, just as any other contractor,’’
and the company or agency ‘‘should
expect to pay for the work product.’’ As
explained below, the Commission seeks
comment on how the ACHP’s guidance
can be applied in the context of the
Commission’s existing procedures and
the proposals in this proceeding.
Moreover, the Commission seeks
comment on practices or procedures of
other Federal agencies with respect to
addressing the various roles a Tribal
Nation may play in the Section 106
process and how to identify those
services for which a Tribal Nation
would be justified in seeking fees.
24. Circumstances When Fees Are
Requested. The ACHP Handbook clearly
states that no ‘‘portion of the NHPA or
the ACHP’s regulations require[s] an
agency or an applicant to pay for any
form of tribal involvement.’’ The
Commission notes that ACHP guidance
permits payments to a Tribal Nation
when it fulfills a role similar to any
other consultant or contractor. At what
point in the Tower Construction
Notification System (TCNS) process, if
any, might a Tribal Nation act as a
contractor or consultant? The
Commission seeks comment on any
facts that might affect the answer to that
question. Does the particular request of
VerDate Sep<11>2014
15:10 May 09, 2017
Jkt 241001
the applicant determine whether a
Tribal Nation is acting as a contractor or
consultant? For example, the ACHP
Handbook notes that if an applicant asks
for ‘‘specific information and
documentation’’ from a Tribal Nation,
then the Tribal Nation is being treated
as a contractor or consultant. Should the
Commission infer if the applicant does
not ask explicitly for such information
and documentation, then no payment is
necessary? The Commission also seeks
comment on whether Tribal review for
some types of deployment is less in the
nature of a contractor or consultant. For
example, would collocations or
applications to site poles in rights of
way be less likely to require services
outside of the Tribal Nation’s statutory
role? In reviewing TCNS submissions
for collocations or for siting poles in
rights of way, under what circumstances
might a Tribal Nation incur research
costs for which it or another contractor
might reasonably expect compensation?
25. Once a Tribal Nation or NHO has
been notified of a project, an applicant
must provide ‘‘all information
reasonably necessary for the Indian tribe
or NHO to evaluate whether Historic
Properties of religious and cultural
significance may be affected’’ and
provide the Tribal Nation or NHO with
a reasonable opportunity to respond.
The Commission seeks comment on this
requirement and on any modifications
the Commission can and should make.
In particular, the Commission seeks
comment on whether the information in
FCC Form 620 or FCC Form 621 is
sufficient to meet the requirement that
‘‘all information reasonably necessary
. . .’’ has been provided to the Tribal
Nation. If not, are there modifications to
these forms that would enable the
Commission to meet this requirement?
For example, should the FCC Form 620
and FCC Form 621 be amended to
address the cultural resources report
that an applicant prepares after
completing a Field Survey?
Additionally, the Commission seeks
comment on whether a Tribal Nation’s
or NHO’s review of the materials an
applicant provides under the
Nationwide Programmatic Agreement
(NPA) Section VII is ever, and if so
under what circumstances, the
equivalent of asking the Tribal Nation or
NHO to provide ‘‘specific information
and documentation’’ like a contractor or
consultant would, thereby entitling the
Tribal Nation to seek compensation
under ACHP guidance and the NPA. If
a Tribal Nation chooses to conduct
research, surveying, site visits or
monitoring absent a request of the
applicant, would such efforts require
PO 00000
Frm 00024
Fmt 4702
Sfmt 4702
21765
payment from the applicant? If an
archaeological consultant conducted
research, surveying, site visits, or
monitoring absent a request of the
applicant, would the applicant normally
be required to pay that contractor or
consultant? The Commission seeks
comment on how the ACHP Handbook’s
statement that an ‘‘applicant is free to
refuse [payment] just as it may refuse to
pay for an archaeological consultant,’’ as
well as its statement that ‘‘the agency
still retains the duties of obtaining the
necessary information [to fulfill its
Section 106 obligations] through
reasonable methods,’’ impacts the
Commission’s analysis of payments for
Tribal participation.
26. The Commission notes that some
Tribal Nations have indicated that they
assess a flat upfront fee for all
applications as a way to recover costs
for their review of all TCNS
applications, thereby eliminating the
administrative burden of calculating
actual costs for each case. The
Commission seeks comment on this
manner of cost recovery and whether
such cost recovery is consistent with
ACHP’s fee guidance in its 2012
Handbook. Tribal Nations have also
indicated that they have experienced
difficulties in collecting compensation
after providing service as a reason for
upfront fee requests. The Commission
seeks comment on whether this concern
could be alleviated if the Commission
clarifies when a Tribal Nation is acting
under its statutory role and when it is
being hired as a contractor or consultant
under the Commission’s process. The
Commission also seeks comment on
whether there might be a more
appropriate way to address this concern.
27. What steps, if any, can the
Commission take to issue the
Commission’s own guidance on the
circumstances in the Commission’s
process when the Tribal Nation is
expressing its views and no
compensation by the agency or the
applicant is required under ACHP
guidance, and the circumstances where
the Tribal Nation is acting in the role of
a consultant or contractor and would be
entitled to seek compensation? The
Commission seeks comment on what
bright-line test, if any, could be used.
How does the reasonable and good faith
standard for identification factor, if at
all, into when a Tribal request for fees
must be fulfilled in order to meet the
standard? The Commission seeks
comment on how disputes between the
parties might be resolved when a Tribal
Nation asserts that compensable effort is
required to initiate or conclude Section
106 review. The Commission seeks
comment on whether there are other
E:\FR\FM\10MYP1.SGM
10MYP1
jstallworth on DSK7TPTVN1PROD with PROPOSALS
21766
Federal Register / Vol. 82, No. 89 / Wednesday, May 10, 2017 / Proposed Rules
mechanisms to reduce the need for caseby-case analysis of fee disputes. While
the Commission seeks comment
generally on its process, the
Commission also seeks comment
particularly in the context of
deployment of infrastructure for
advanced communications networks.
28. To the extent that supplementing
current ACHP guidance would help
clarify when Tribal fees may be
appropriate while both facilitating
efficient deployment and recognizing
Tribal interests, what input, if any,
should the Commission provide to the
ACHP on potential modifications to
ACHP guidance?
29. Amount of Fees Requested. One
factor that appears to be driving tower
owners and licensees to seek
Commission guidance in the fee area is
not the mere existence of fees, but
instead the amount of compensation
sought by some Tribal Nations. How, if
at all, does the ‘‘reasonable and good
faith’’ standard for identification factor
into or temper the amount of fees a
Tribal Nation may seek in
compensation? Are there any extant fee
rates or schedules that might be of
particular use to applicants and Tribal
Nations in avoiding or resolving
disputes regarding the amount of fees?
30. One party has requested in a
petition that the Commission establish a
fee schedule or otherwise resolve fee
disputes. The Commission seeks
comment on the legal framework
applicable to this request. How might
the impact of fee disputes on the
deployment of infrastructure for
advanced communications networks
provide a basis for establishing a fee
schedule in this context using the
Communications Act as authority? Do
the NHPA or other statutes limit the
Commission’s ability to establish such a
fee schedule, and if so, how? How might
the Miscellaneous Receipts Act (MRA)
and General Accountability Office
(GAO) precedent on improper
augmentation temper the parameters of
the Commission’s actions in the area?
The Commission seeks comment on
whether other Federal agencies have
established fee schedules or addressed
the matter in any way, e.g., either
formally or informally or with respect to
particular projects. How does due regard
for Tribal sovereignty and the
Government’s treaty obligations affect
the Commission’s latitude for action in
this area?
31. If the Commission were to
establish a fee schedule, the
Commission seeks comment on what
weight or impact it might have on the
Commission’s process. For example, to
what extent would fees at or below the
VerDate Sep<11>2014
15:10 May 09, 2017
Jkt 241001
level established by a fee schedule be
considered presumptively reasonable?
The Commission further seeks comment
on what legal framework would be
relevant to resolution of disputes
concerning an upward or downward
departure from the fee schedule. Should
the fees specified in such a schedule
serve as the presumptive maximum an
applicant would be expected to pay, and
under what circumstances might an
upward departure from the fee schedule
be appropriate? In addition to the
concepts cited in the prior paragraph,
are there other legal principles at play
in the resolution of a dispute over a fee
that might not arise in the context of
merely setting a fee schedule? Have any
other Federal agencies formally or
informally resolved fee disputes
between applicants and Tribal Nations,
and if so, under what legal parameters?
The Commission also seeks comment on
what categories of services should be
included, and whether the categories
should be general or more specific. How
would the Commission establish the
appropriate level for fees? How could a
fee schedule take into account both
regional differences and changes in
costs over time, i.e., inflation? The
Commission also seeks comment on
whether it should only establish a
model fee schedule and whether that
would be consistent with the Tribal
engagement requirements contemplated
by Section 106.
32. Geographic Areas of Interest.
Tribal Nations have increased their
areas of interest within the TCNS as
they have improved their understanding
of their history and cultural heritage. As
a result, applicants must sometimes
contact upwards of 30 different Tribal
Nations and complete the Section 106
process with each of them before being
able to build their project. The
Commission seeks comment on whether
there are actions it can and should take
to mitigate this burden while complying
with the Commission’s obligation under
the NHPA and promoting the interests
of all stakeholders. For example, the
TCNS allows Tribal Nations and NHOs
to select areas of interest at either a State
or county level, but many Tribal Nations
have asked to be notified of any project
within entire States, and in a few
instances, at least 20 different States.
The Commission seeks comment on
whether it could and should encourage,
or require, the specification of areas of
interest by county. The Commission
also seeks comment on whether it
should require some form of
certification for areas of interest, and if
so, what would be the default if a Tribal
PO 00000
Frm 00025
Fmt 4702
Sfmt 4702
Nation fails to provide such
certification.
33. The Commission seeks comment
on whether TCNS should be modified to
retain information on areas where
concerns were raised and reviews
conducted, so that the next filer knows
whether there is a concern about
cultural resources in that area or not. To
what extent should applicants be able to
rely on prior clearances, given that
resources may continue to be added to
the lists of historic properties? To the
extent the Commission considers
allowing applicants to rely on prior
clearances, how should the Commission
accommodate Tribal Nations’ changes to
their areas of interest? The Commission
further seeks comment on how it can
protect information connected to prior
site reviews, especially those areas
where a tower was not cleared because
there may be artifacts. The Commission
also seeks comment on whether it can
make any other changes to TCNS or the
Commission’s procedures to improve
the Tribal review process.
34. In addition, applicants routinely
receive similar requests for
compensation or compensable services
from multiple Tribal Nations. While the
Commission recognizes that each Tribal
Nation is sovereign and may have
different concerns, the Commission
seeks comment on when it is necessary
for an applicant to compensate multiple
Tribal Nations for the same project or
for the same activity related to that
project, in particular site monitoring
during construction. The Commission
also seeks comment on whether, when
multiple Tribal Nations request
compensation to participate in the
identification of Tribal historic
properties of religious and cultural
significance, whether there are
mechanisms to gain efficiencies to
ensure that duplicative review is not
conducted by each Tribal Nation. Is it
always necessary to obtain such services
from all responding Tribal Nations that
request to provide the service, and if so,
why? Might one Tribal Nation when
functioning in the role of a contractor
perform certain services and share the
work product with other Tribal Nations,
e.g., site monitoring? Could an applicant
hire a qualified independent site
monitor and share its work product with
all Tribal Nations that are interested?
How would the Commission ensure that
such a monitor is qualified so that other
Tribal Nations’ interests will be
adequately considered? Should the
Commission require that such a monitor
meet some established minimum
standards? The Commission also seeks
comment on whether monitors should
E:\FR\FM\10MYP1.SGM
10MYP1
jstallworth on DSK7TPTVN1PROD with PROPOSALS
Federal Register / Vol. 82, No. 89 / Wednesday, May 10, 2017 / Proposed Rules
be required to prepare a written report
and provide a copy to applicants.
35. Remedies and Dispute Resolution.
While the ACHP has indicated that
Tribal concurrence is not necessary to
find that no historic properties of
religious and cultural significance to
Tribal Nations or NHOs would be
affected by an undertaking, the agency
is responsible for getting the
information necessary to make that
determination. The Commission seeks
comment on how these two directives
interact. The ACHP 2001 Fee Guidance
states that ‘‘if an agency or applicant
attempts to consult with an Indian tribe
and the tribe demands payment, the
agency or applicant may refuse and
move forward.’’ The Commission seeks
comment on whether and under what
circumstances the Commission should
authorize a project to proceed when a
Tribal Nation refuses to respond to a
Section 106 submittal without payment.
36. Under the NPA, when a Tribal
Nation or NHO refuses to comment on
the presence or absence of effects to
historic properties without
compensation, the applicant can refer
the procedural disagreement to the
Commission. The Commission seeks
comment on whether it can adjudicate
these referrals by evaluating whether the
threshold of ‘‘reasonable and good faith
effort’’ to identify historic properties has
been met, given that the Tribal Nation
can always request government-togovernment consultation in the event of
disagreement.
37. The Commission seeks comment
on when it must engage in governmentto-government consultation to resolve
fee disputes, including when the
compensation level for an identification
activity has been established by a Tribal
government.
38. Negotiated Alternative. The
Commission notes that since September
2016, it has been facilitating meetings
among Tribal and industry stakeholders
with the goal of resolving challenges to
Tribal requirements in the Section 106
review process, including disagreements
over Tribal fees. The Commission seeks
comment on whether it should continue
seeking to develop consensus principles
and, if so, how those principles should
be reflected in practice. For example,
the Commission seeks comment on
whether it should seek to enter into
agreements regarding best practices with
Tribal Nations and their representatives.
(ii) Other NHPA Process Issues
(ii) Other NHPA Process Issues
39. Lack of Response. As discussed
above, while both State Historic
Preservation Officers (SHPOs) and
Tribal Nations/NHOs are expected
VerDate Sep<11>2014
15:10 May 09, 2017
Jkt 241001
ordinarily to respond to contacts within
30 days, the NPA and the Commission’s
practice establish different processes to
be followed when responses are not
timely. The Commission seeks comment
on what measures, if any, it should take
to further speed either of these review
processes, either by amending the NPA
or otherwise, while assuring that
potential effects on historic preservation
are fully evaluated. What effect would
such proposals have on addressing
Section 106-associated delays to
deployment? Should different time
limits apply to different categories of
construction, such as new towers, DAS
and small cells, and collocations? Have
advances in communications during the
past decade, particularly with respect to
communications via the Internet,
changed reasonable expectations as to
timeliness of responses and reasonable
efforts to follow up?
40. With respect to Tribal Nations and
NHOs, the Commission seeks comment
on whether the processes established by
the 2005 Declaratory Ruling and the
Good Faith Protocol adequately ensure
the completion of Section 106 review
when a Tribal Nation or NHO is nonresponsive (See Clarification of
Procedures for Participation of Federally
Recognized Indian Tribes and Native
Hawaiian Organizations Under the
Nationwide Programmatic Agreement,
Declaratory Ruling, 20 FCC Rcd 16092
(2005) (2005 Declaratory Ruling)). The
Commission seeks comment on whether
the process can be revised in a manner
that would permit applicants to selfcertify their compliance with the
Commission’s Section 106 process and
therefore proceed once they meet the
Commission’s notification requirements,
without requiring Commission
involvement, in a manner analogous to
the ‘‘deemed granted’’ remedy for local
governments. Would such an approach
be consistent with the NPA and with the
Commission’s legal obligations? The
Commission notes that Commission
staff has discovered on numerous
occasions that applicants have failed to
perform their Tribal notifications as the
Commission’s processes require. If the
Commission were to permit applicants
to self-certify that they have completed
their Tribal notification obligations, the
Commission seeks comment on how it
could ensure that the certifications are
truthful and well-founded.
41. Batching. In the PTC Program
Comment, the ACHP established a
streamlined process for certain facilities
associated with building out the
Positive Train Control (PTC) railroad
safety system (See Wireless
Telecommunications Bureau
Announces Adoption of Program
PO 00000
Frm 00026
Fmt 4702
Sfmt 4702
21767
Comment to Govern Review of Positive
Train Control Wayside Facilities, WT
Docket 13–240, Public Notice, 29 FCC
Rcd 5340, Attachment (WTB 2014) (PTC
Program Comment)). Among other
aspects of the PTC Program Comment,
eligible facilities may be submitted to
SHPOs and through TCNS in batches.
42. The Commission seeks comment
on whether it should adopt either a
voluntary or mandatory batched
submission process for non-PTC
facilities. What benefits could be
realized through the use of batching?
What lessons can be learned from the
experience with PTC batching? What
guidelines should the Commission
provide, if any, regarding the number of
facilities to be included in a batch, their
geographic proximity, or the size of
eligible facilities? Should there be other
conditions on eligibility, such as the
nature of the location or the extent of
ground disturbance? Should different
time limits or fee guidelines, if any are
adopted, apply to batched submissions?
What changes to the Commission’s
current TCNS and E–106 forms and
processes might facilitate batching? The
Commission seeks comment on these
and any other policy or operational
issues associated with batching of
proposed constructions.
43. Other NHPA Process Reforms. The
Commission seeks comment on whether
there are additional procedural changes
that the Commission should consider to
improve the Section 106 review process
in a manner that does not compromise
its integrity.
(iii) NEPA Process
44. The Commission seeks comment
on ways to improve and further
streamline its environmental
compliance regulations while ensuring
that the Commission meets its NEPA
obligations. For example, should the
Commission consider new categorical
exclusions for small cells and DAS
facilities? If so, under what conditions
and on what basis? Should the
Commission revise its rules so that an
EA is not required for siting in a
floodplain when appropriate
engineering or mitigation requirements
have been met? Are there other
measures the Commission could take to
reduce unnecessary processing burdens
consistent with NEPA?
c. NHPA Exclusions for Small Facilities
45. As part of the effort to expedite
further the process for deployment of
wireless facilities, including small
facility deployments in particular, the
Commission seeks comment below on
whether it should expand the categories
of undertakings that are excluded from
E:\FR\FM\10MYP1.SGM
10MYP1
21768
Federal Register / Vol. 82, No. 89 / Wednesday, May 10, 2017 / Proposed Rules
jstallworth on DSK7TPTVN1PROD with PROPOSALS
Section 106 review. With respect to
each of the potential exclusions
discussed below, the Commission seeks
comment on the alternatives of adopting
additional exclusions directly in the
Commission’s rules, or incorporating
into the Commission’s rules a program
alternative pursuant to the ACHP rules.
The Commission may exclude activities
from Section 106 review through
rulemaking upon determining that they
have no potential to cause effects to
historic properties, assuming such
properties are present. Where potential
effects are foreseeable and likely to be
minimal or not adverse, a program
alternative under the ACHP’s rules may
be used to exclude activities from
Section 106 review. The Commission
seeks comment about whether the
exclusions discussed below meet the
test for an exclusion in 36 CFR
800.3(a)(1) or whether they would
require a program alternative. To the
extent that a program alternative would
be necessary, the Commission seeks
comment on which of the program
alternatives authorized under the
ACHP’s rules would be appropriate.
Particularly, for those potential
exclusions where a program alternative
would be required, commenters should
discuss whether a new program
alternative is necessary or whether an
amendment to the NPA or a second
amendment to the Collocation NPA
would be the appropriate procedural
mechanism (See Wireless
Telecommunications Bureau
Announces Execution of First
Amendment to the Nationwide
Programmatic Agreement for the
Collocation of Wireless Antennas,
Public Notice, 31 FCC Rcd 4617 (WTB
2016) (Collocation NPA)).
(i) Pole Replacements
46. The Commission seeks comment
on whether it should take further
measures to tailor Section 106 review
for pole replacements. As noted above,
wireless companies are increasingly
deploying new infrastructure using
smaller antennas and supporting
structures, including poles. Under the
existing NPA, pole replacements are
excluded from Section 106 review if the
pole being replaced meets the definition
of a ‘‘tower’’ under the NPA
(constructed for the sole or primary
purpose of supporting Commissionauthorized antennas), provided that the
pole being replaced went through
Section 106 review. The NPA also more
generally excludes construction in or
near communications or utility rights of
way, including pole replacements, with
certain limitations. In particular, the
construction is excluded if the facility
VerDate Sep<11>2014
15:10 May 09, 2017
Jkt 241001
does not constitute a substantial
increase in size over nearby structures
and it is not within the boundaries of a
historic property. However, proposed
facilities subject to this exclusion must
complete the process of Tribal and NHO
participation pursuant to the NPA.
47. The Commission seeks comment
on whether additional steps to tailor
Section 106 review for pole
replacements would help serve the
Commission’s objective of facilitating
wireless facility siting, while creating no
or foreseeably minimal potential for
adverse impacts to historic properties.
For example, should the replacement of
poles be excluded from Section 106
review, regardless of whether a pole is
located in a historic district, provided
that the replacement pole is not
‘‘substantially larger’’ than the pole it is
replacing (as defined in the NPA)? The
Commission envisions that this
proposed exclusion could address
replacements for poles that were
constructed for a purpose other than
supporting antennas, and thus are not
‘‘towers’’ within the NPA definition, but
that also have (or will have) an antenna
attached to them. This exclusion would
also apply to pole replacements within
rights of way, regardless of whether
such replacements are in historic
districts. The Commission seeks
comment on this proposal and on
whether any additional conditions
would be appropriate. For example,
consistent with the existing exclusion
for replacement towers, commenters
should discuss whether the exclusion
should be limited to projects for which
construction and excavation do not
expand the boundaries of the leased or
owned property surrounding the tower
by more than 30 feet in any direction.
How would the ‘‘leased or owned
property’’ be defined within a utility
right of way that may extend in a linear
manner for miles?
(ii) Rights of Way
48. The Commission seeks comment
on whether to expand the NPA
exemption from Section 106 review for
construction of wireless facilities in
rights of way. First, as noted above,
current provisions of the NPA exclude
from Section 106 review construction in
utility and communications rights of
way subject to certain limitations. The
Commission seeks comment on whether
to adopt a similar exclusion from
Section 106 review for construction or
collocation of communications
infrastructure in transportation rights of
way and whether such an exclusion
would be warranted under 36 CFR
800.3(a)(1). The Commission recognizes
the Commission’s previous
PO 00000
Frm 00027
Fmt 4702
Sfmt 4702
determination in the NPA Order that,
given the concentration of historic
properties near many highways and
railroads, it was not feasible to draft an
exclusion for transportation corridors
that would both significantly ease the
burdens of the Section 106 process and
sufficiently protect historic properties
(See Nationwide Programmatic
Agreement Regarding the Section 106
National Historic Preservation Act
Review Process, Report and Order, 20
FCC Rcd 1073 (2004) (NPA Order)). The
Commission also recognized, however,
that transportation corridors are among
the areas where customer demand for
wireless service is highest, and thus
where the need for new facilities is
greatest.
49. In addition, since the NPA Order,
wireless technologies have evolved and
many wireless providers now deploy
networks that use smaller antennas and
compact radio equipment, including
DAS and small cell systems. In view of
the changed circumstances that are
present today, the Commission finds
that it is appropriate to reconsider
whether the Commission can exclude
construction of wireless facilities in
transportation rights of way in a manner
that guards against potential effects on
historic properties. The Commission
seeks comment on whether such an
exclusion should be adopted, subject to
certain conditions that would protect
historic properties, and, if so, what
those conditions should be. For
example, should the Commission
require that poles be installed by
auguring or that cable or fiber be
installed by plow or by directional
drilling? What stipulations are needed if
a deployment may be adjacent to or on
National Register-eligible or listed
buildings or structures, or in or near a
historic district? Would it be
appropriate to have any limitation on
height, in addition to the requirement in
the current rights of way exclusion that
the structures not constitute a
substantial increase in size over existing
nearby structures? How should any new
exclusion address Tribal and NHO
participation, especially for historic
properties with archaeological
components? The Commission also
seeks comment on how to define the
boundaries of a transportation right of
way for these purposes.
50. In addition to considering whether
to adopt an exclusion for construction
in transportation rights of way, the
Commission also seeks comment on
whether to amend the current right of
way exclusion to apply regardless of
whether the right of way is located on
a historic property. As noted above, the
current right of way exclusion applies
E:\FR\FM\10MYP1.SGM
10MYP1
Federal Register / Vol. 82, No. 89 / Wednesday, May 10, 2017 / Proposed Rules
jstallworth on DSK7TPTVN1PROD with PROPOSALS
only if (1) the construction does not
involve a substantial increase in size
over nearby structures and (2) the
deployment would not be located
within the boundaries of a historic
property. The Commission seeks
comment on whether this provision
should be amended to exclude from
Section 106 review construction of a
wireless facility in a utility or
communications right of way located on
a historic property, provided that the
facility would not constitute a
substantial increase in size over existing
structures. To the extent that utility and
communications rights of way on
historic properties already are lined
with utility poles and other
infrastructure, would allowing
additional infrastructure have the
potential to create effects? Commenters
should discuss whether, if the exclusion
is extended to historic properties, any
additional conditions would be
appropriate to address concerns about
potential effects, for example any
further limitation on ground
disturbance. If so, how should ground
disturbance be defined? The
Commission also seeks comment about
whether Tribal and NHO participation
should continue to be required if an
exclusion is adopted for facilities
constructed in utility or
communications rights of way on
historic properties.
(iii) Collocations
51. Next, the Commission seeks
comment on options to further tailor the
Commission’s review of collocations of
wireless antennas and associated
equipment. The Commission’s rules
have long excluded most collocations of
antennas from Section 106 review,
recognizing the benefits to historic
properties that accrue from using
existing support structures rather than
building new structures. The
Commission has also recently expanded
these exclusions in the First
Amendment to the Collocation NPA to
account for the smaller infrastructure
associated with new technologies. The
Commission seeks comment now on
whether additional measures to further
streamline review of collocations are
appropriate, whether as a matter of 36
CFR 800.3(a)(1) or under program
alternatives, including those discussed
below and any other alternatives.
52. First, the Commission seeks
comment on whether some or all
collocations located between 50 and 250
feet from historic districts should be
excluded from Section 106 review.
Under current provisions in the
Collocation NPA, Section 106 review
continues to be required for collocations
VerDate Sep<11>2014
15:10 May 09, 2017
Jkt 241001
on buildings and other non-tower
structures located within 250 feet of the
boundary of a historic district to the
extent those collocations do not meet
the criteria established for small
wireless antennas. The Commission
seeks comment on whether this
provision should be revised to exclude
from Section 106 review collocations
located up to 50 feet from the boundary
of a historic district. The Commission
seeks comment on this proposal and on
whether any additional criteria should
apply to an exclusion under these
circumstances.
53. Next, the Commission seeks
comment on the participation of Tribal
Nations and NHOs in the review of
collocations on historic properties or in
or near historic districts. Although, as
stated above, the Collocation NPA
excludes most antenna collocations
from routine historic preservation
review under Section 106, collocations
on historic properties or in or near
historic districts are generally not
excluded, and in these cases, the NPA
provisions for Tribal and NHO
participation continue to apply.
Consistent with the Commission’s effort
in this NPRM to take a fresh look at
ways to improve and facilitate the
review process for wireless facility
deployments, the Commission seeks
comment on whether to exclude from
the NPA procedures for Tribal and NHO
participation collocations that are
subject to Section 106 review solely
because they are on historic properties
or in or near historic districts, other
than properties or districts identified in
the National Register listing or
determination of eligibility as having
Tribal significance. For instance, should
the Commission exclude from review
non-substantial collocations on existing
structures involving no ground
disturbance or no new ground
disturbance, or non-substantial
collocations on new structures in urban
rights of way or indoors? Should the
Commission exclude from the NPA
provisions for Tribal and NHO
participation collocations of facilities on
new structures in municipal rights of
way in urban areas that involve no new
ground disturbance and no substantial
increase in size over other structures in
the right of way? Should the
Commission exclude collocations of
facilities on new structures in industrial
zones or facilities on new structures in
or within 50 feet of existing utility rights
of way? Commenters should discuss
whether collocations in these
circumstances have the potential to
cause effects on properties significant to
Tribal history or culture. If so, are any
PO 00000
Frm 00028
Fmt 4702
Sfmt 4702
21769
effects likely to be minimal or not
adverse? Does the likelihood of adverse
effects depend on the circumstances of
the collocation, for example whether it
will cause new ground disturbance? The
Commission also seeks comment on
alternatives to streamline procedures for
Tribal and NHO participation in these
cases, for example different guidance on
fees or deeming a Tribal Nation or NHO
to have no interest if it does not respond
to a notification within a specified
period of time.
54. Finally, the Commission seeks
comment on whether the Commission
can or should exclude from routine
historic preservation review certain
collocations that have received local
approval. In particular, one possibility
would be to exclude a collocation from
Section 106 review, regardless of
whether it is located on a historic
property or in or near a historic district,
provided that: (1) The proposed
collocation has been reviewed and
approved by a Certified Local
Government that has jurisdiction over
the project; or (2) the collocation has
received approval, in the form of a
Certificate of Appropriateness or other
similar formal approval, from a local
historic preservation review body that
has reviewed the project pursuant to the
standards set forth in a local
preservation ordinance and has found
that the proposed work is appropriate
for the historic structure or district. By
eliminating the need to go through
historic preservation review at both
local and Federal levels, creating an
exclusion for collocations under these
circumstances might create significant
efficiencies in the historic preservation
review process. The Commission seeks
comment on this option and on any
alternatives, including whether any
additional conditions should apply and
whether the process for engaging Tribal
Nations and NHOs for these collocations
should continue to be required.
d. Scope of Undertaking and Action
55. The Commission also invites
comment on whether it should revisit
its interpretation of the scope of the
Commission’s responsibility to review
the effects of wireless facility
construction under the NHPA and
NEPA. In the Pre-Construction Review
Order, the Commission retained a
limited approval authority over facility
construction to ensure environmental
compliance in services that no longer
generally require construction permits
(See Amendment of Environmental
Rules, Report and Order, 5 FCC Rcd
2942 (1990) (Pre-Construction Review
Order)). In light of the evolution of
technology in the last 27 years and the
E:\FR\FM\10MYP1.SGM
10MYP1
jstallworth on DSK7TPTVN1PROD with PROPOSALS
21770
Federal Register / Vol. 82, No. 89 / Wednesday, May 10, 2017 / Proposed Rules
corresponding changes in the nature
and extent of wireless infrastructure
deployment, the Commission seeks
comment on whether this retention of
authority is required and, if not,
whether and how it should be adjusted.
Commenters should address the costs of
NEPA and NHPA compliance and its
utility for environmental protection and
historic preservation for different
classes of facilities, as well as the extent
of the Commission’s responsibility to
consider the effects of construction
associated with the provision of
licensed services under governing
regulations and judicial precedent. For
example, should facilities constructed
under site-specific licenses be
distinguished from those constructed
under geographic area licenses? Can the
Commission distinguish DAS and small
cell facilities from larger structures for
purposes of defining what constitutes
the Commission’s action or undertaking,
and on what basis? Should review be
required only when an EA triggering
condition is met, as PTA–FLA suggests,
and if so how would the licensee or
applicant determine whether an EA is
required in the absence of mandatory
review? To the extent there is a policy
basis for distinguishing among different
types of facilities, would exclusions
from or modifications to the NEPA and/
or NHPA review processes be a more
appropriate tool to reflect these
differences? Are the standards for
defining the scope of the Commission’s
undertaking or major Federal action
different under the NHPA than under
NEPA? The Commission also invites
comment on whether to revisit the
Commission’s determination that
registration of antenna structures
constitutes the Commission’s Federal
action and undertaking so as to require
environmental and historic preservation
review of the registered towers’
construction.
56. In addition, since the
Commission’s environmental rules were
adopted, an industry has grown of nonlicensees that are in the business of
owning and managing communications
sites, so that most commercial wireless
towers and even smaller
communications support structures are
now owned from the time of their
construction by non-licensees. The
Commission seeks comment on how
this business model affects the
Commission’s environmental and
historic preservation compliance
regime. For example, how does the
requirement to perform environmental
and historic preservation review prior to
construction apply when the licensee is
not the tower owner? If the tower is
VerDate Sep<11>2014
15:10 May 09, 2017
Jkt 241001
built pursuant to a contract or other
understanding with a collocator, what
marketplace or other effects would
result from interpreting the
environmental obligation to apply to the
licensee? What about cases where there
is no such agreement or understanding?
Does the requirement in the Collocation
NPA to perform review for collocations
on towers that did not themselves
complete Section 106 review create
problems in administration or market
distortions where the owner of the
underlying tower may not have been
subject to the Commission’s rules at the
time of construction? The Commission
invites comment on these and any
related questions.
3. Collocations on Twilight Towers
57. There are a large number of towers
that were built between the adoption of
the Collocation NPA in 2001 and when
the NPA became effective in 2005 that
either did not complete Section 106
review or for which documentation of
Section 106 review is unavailable.
These towers are often referred to as
‘‘Twilight Towers.’’ The Commission
seeks comment on steps the
Commission should take to develop a
definitive solution for the Twilight
Towers issue. As the Commission
undertakes this process, the
Commission’s goal remains to develop a
solution that will allow Twilight Towers
to be used for collocations while
respecting the integrity of the Section
106 process. Facilitating collocations on
these towers will serve the public
interest by making additional
infrastructure available for wireless
broadband services and the FirstNet
public safety broadband network.
Moreover, facilitating collocations on
existing towers will reduce the need for
new towers, lessening the impact of new
construction on the environment and on
locations with historical and cultural
significance.
58. In particular, the Commission
seeks comment on whether to treat
collocations on towers built between
March 16, 2001 and March 7, 2005 that
did not go through Section 106 historic
preservation review in the same manner
as collocations on towers built prior to
March 16, 2001 that did not go through
review. Under this approach,
collocations on such towers would
generally be excluded from Section 106
historic preservation review, subject to
the same exceptions that currently
apply for collocations on towers built on
or prior to March 16, 2001, i.e.,
collocations would be excluded from
Section 106 review unless (1) the
mounting of the antenna will result in
a substantial increase in size of the
PO 00000
Frm 00029
Fmt 4702
Sfmt 4702
tower; (2) the tower has been
determined by the Commission to have
an adverse effect on one or more historic
properties; (3) the tower is the subject of
a pending environmental review or
related proceeding before the
Commission involving compliance with
Section 106 of the National Historic
Preservation Act; or (4) the collocation
licensee or the owner of the tower has
received written or electronic
notification that the Commission is in
receipt of a complaint from a member of
the public, a Tribal Nation, a SHPO or
the ACHP that the collocation has an
adverse effect on one or more historic
properties. The Commission seeks
comment on whether allowing
collocations without individual Section
106 review in these circumstances
would rapidly make available a
significant amount of additional
infrastructure to support wireless
broadband deployment without adverse
impacts. In particular, the Commission
notes that the vast majority of towers
that have been reviewed under the NPA
have had no adverse effects on historic
properties, and the Commission is
aware of no reason to believe that
Twilight Towers are any different in
that regard. Moreover, these towers have
been standing for 12 years or more and,
in the vast majority of cases, no adverse
effects have been brought to the
Commission’s attention.
59. Although the Commission seeks
comment on such an approach, the
Commission is mindful of the concerns
that have been expressed by Tribal
Nations and SHPOs throughout the
discussions on this matter that simply
allowing collocations to proceed would
not permit review in those cases where
an underlying tower may have
undetermined adverse effects. In
particular, Tribal Nations have
expressed concern that some of the
towers that were constructed between
2001 and 2005 may have effects on
properties of religious and cultural
significance that have not been noticed
because their people are far removed
from their traditional homelands. The
Commission seeks comment on these
concerns. As an initial matter, the
Commission seeks comment on the
Commission’s underlying assumption
regarding the likelihood that Twilight
Towers had in their construction or
continue to have adverse effects that
have not been noted. To the extent such
effects exist, what is the likelihood that
they could be mitigated, and what is the
likelihood that a new collocation would
exacerbate those effects?
60. The Commission further seeks
comment on any alternative approaches.
For example, should the Commission
E:\FR\FM\10MYP1.SGM
10MYP1
Federal Register / Vol. 82, No. 89 / Wednesday, May 10, 2017 / Proposed Rules
jstallworth on DSK7TPTVN1PROD with PROPOSALS
considers a tower-by-tower process
under which proposed collocations on
Twilight Towers would trigger a
streamlined, time-limited individual
review, along the lines of the process
discussed in the 2016 Twilight Towers
draft term sheet? If the Commission
were to adopt such an approach, what
elements should be included? For
example, some in the industry have
recommended a tower-by-tower
approach that is voluntary and allows
tower owners to submit a tower for
review as market conditions justify,
involves same processes and systems
that are used for new and modified
towers, asks ACHP to direct SHPOs and
Tribal Historic Preservation Officers
(THPOs) to submit prompt comments on
such towers, and imposes no monetary
penalty on tower owners. The
Commission seeks comment on whether
to adopt this approach. Should towers
be categorized, such that, for example,
public safety towers receive priority for
streamlined review? Alternatively, to
what extent are there existing processes
that function efficiently to allow
collocations on Twilight Towers?
Generally, given what the Commission
says above about the text of the
Commission’s rule, the Commission
does not anticipate taking any
enforcement action or imposing any
penalties based on good faith
deployment during the Twilight Tower
period.
61. The Commission also seeks
comment on the procedural vehicle
through which any solution should be
implemented. Would permitting
collocation on Twilight Towers require
either an amendment to the Collocation
NPA or another program alternative
under 36 CFR 800.14(b)? Is one form of
program alternative preferable to
another, and if so, why? If the
Commission were to pursue a
streamlined or other alternative review
procedure, would that require an
amendment to the Collocation NPA or
other program alternative?
4. Collocations on Other Non-Compliant
Towers
62. Finally, the Commission invites
comment on whether the Commission
should take any measures, and if so
what, to facilitate collocations on noncompliant towers constructed after
March 7, 2005. The Commission notes
that unlike in the case of the Twilight
Towers, the rules in effect when these
towers were constructed explicitly
required compliance with the review
procedures set forth in the NPA. The
Commission invites commenters to
propose procedures, including review
processes, time frames, criteria for
VerDate Sep<11>2014
15:10 May 09, 2017
Jkt 241001
eligibility, and other measures, to
address any or all of these towers.
II. Notice of Inquiry
63. In this section, the Commission
examines and seeks comment on the
scope of Sections 253(a) and 332(c)(7) of
the Communications Act and any new
or updated guidance or determinations
the Commission should provide
pursuant to its authority under those
provisions, including through the
issuance of a Declaratory Ruling.
A. Intersection of Sections 253(a) and
332(c)(7)
64. Both Section 253(a) and Section
332(c)(7) ban State or local regulations
that ‘‘prohibit or have the effect of
prohibiting’’ service. Both sections also
proscribe State and local restrictions
that unreasonably discriminate among
service providers. These sections thus
appear to impose the same substantive
obligations on State and local
governments, though the remedies
provided under each are different. There
are court decisions holding that ‘‘the
legal standard is the same under either
[Section 253 or 332(c)(7)],’’ and that
there is ‘‘nothing suggesting that
Congress intended a different meaning
of the text ‘prohibit or have the effect of
prohibiting’ in the two statutory
provisions, enacted at the same time, in
the same statute.’’ The Commission
seeks comment on whether there is any
reason to conclude that the substantive
obligations of these two provisions
differ, and if so in what way. Do they
apply the same standards in the same or
similar situations? Do they impose
different standards in different
situations? The Commission invites
commenters to explain how and why.
The Commission also seeks comment on
the interaction between Sections 253
and 332(c)(7).
B. ‘‘Prohibit or Have the Effect of
Prohibiting’’
65. A number of courts have
interpreted the phrase ‘‘prohibit or have
the effect of prohibiting,’’ as it appears
in both Sections 253(a) and 332(c)(7),
but they have not been consistent in
their views. Under Section 253(a), the
First, Second, and Tenth Circuits have
held that a State or local legal
requirement would be subject to
preemption if it may have the effect of
prohibiting the ability of an entity to
provide telecommunications services,
while the Eighth and Ninth Circuits
have erected a higher burden and
insisted that ‘‘a plaintiff suing a
municipality under Section 253(a) must
show actual or effective prohibition,
rather than the mere possibility of
PO 00000
Frm 00030
Fmt 4702
Sfmt 4702
21771
prohibition.’’ By the same token,
different courts have imposed
inconsistent burdens of proof to
establish that localities violated Section
332(c)(7) by improperly denying siting
application. The First, Fourth, and
Seventh Circuits have imposed a ‘‘heavy
burden’’ of proof on applicants to
establish a lack of alternative feasible
sites, requiring them to show ‘‘not just
that this application has been rejected
but that further reasonable efforts to find
another solution are so likely to be
fruitless that it is a waste of time even
to try.’’ By contrast, the Second, Third,
and Ninth Circuits have held that an
applicant must show only that its
proposed facilities are the ‘‘least
intrusive means’’ for filling a coverage
gap in light of the aesthetic or other
values that the local authority seeks to
serve. The Commission invites
commenters to address these issues of
statutory interpretation so the
Commission may have the benefit of a
full range of views from the interested
parties as the Commission determines
what action, if any, the Commission
should take to resolve them. The
Commission also invites parties to
address whether there is some new
theory altogether that the Commission
should consider.
66. The Commission also seeks
comment on the proper role of aesthetic
considerations in the local approval
process. The use of aesthetic
considerations is not inherently
improper; many courts have held that
municipalities may, without necessarily
violating Section 332(c)(7), deny siting
applications on the grounds that the
proposed facilities would adversely
affect an area’s aesthetic qualities,
provided that such decisions are not
founded merely on ‘‘generalized
concerns’’ about aesthetics but are
supported by ‘‘substantial evidence
contained in a written record’’ about the
impact of specific facilities on particular
geographic areas or communities. The
Commission seeks comment on whether
it should provide more specific
guidance on how to distinguish
legitimate denials based on evidence of
specific aesthetic impacts of proposed
facilities, on the one hand, from mere
‘‘generalized concerns,’’ on the other.
67. Finally, the Commission notes
that WTB’s Streamlining PN sought
comment on application processing fees
and charges for the use of rights of way.
The Commission invites parties to
comment on similar issues relating to
the application of section 332(c)(7)’s
‘‘prohibit or have the effect of
prohibiting’’ language on infrastructure
siting on properties beyond rights of
way. For instance, the Commission
E:\FR\FM\10MYP1.SGM
10MYP1
21772
Federal Register / Vol. 82, No. 89 / Wednesday, May 10, 2017 / Proposed Rules
jstallworth on DSK7TPTVN1PROD with PROPOSALS
seeks comment on the up-front
application fees that State or local
government agencies impose on parties
submitting applications for authority to
construct or modify wireless facilities in
locations other than rights of way. Can
those fees, in some instances, ‘‘prohibit
or have the effect of prohibiting’’
service? For instance, are those fees cost
based? If commenters believe a
particular State or locality’s application
fees are excessive, the Commission
invites them to provide detailed
explanations for that view and to
explain how such fees might be
inconsistent with section 332 of the Act.
Relatedly, do wireless siting applicants
pay fees comparable to those paid by
other parties for similar applications,
and if not, are there instances in which
such fees violate section 332’s
prohibition of regulations that
‘‘unreasonably discriminate among
providers of functionally equivalent
services’’?
68. The Commission also seeks
similar information about the recurring
charges—as well as the other terms,
conditions, or restrictions—that State or
local government agencies impose for
the siting of wireless facilities on
publicly owned or controlled lands,
structures such as light poles or water
towers, or other resources other than
rights of way. Do such fees or practices
‘‘prohibit or have the effect of
prohibiting’’ service, or do they
‘‘unreasonably discriminate among
providers of functionally equivalent
services? Are there disparities between
the charges or other restrictions
imposed on some parties by comparison
with those imposed on others? Do any
agencies impose charges or other
requirements that commenting parties
believe to be particularly burdensome,
such as franchise fees based on a
percentage of revenues? Are other
aspects of the process for obtaining
approval particularly burdensome?
Commenters should explain their
concerns in sufficient detail to allow
State and local governments to respond
and to allow the Commission to
determine whether it should provide
guidance on these issues.
C. ‘‘Regulations’’ and ‘‘Other Legal
Requirements’’
69. The terms of Section 253(a)
specify that a ‘‘statute,’’ ‘‘regulation,’’ or
‘‘other legal requirement’’ may be
preempted, while the terms of Section
332(c)(7) refer to ‘‘decisions’’
concerning wireless facility siting and
the ‘‘regulation’’ of siting. The
Commission seeks comment on how
those terms should be interpreted. For
instance, do the terms ‘‘statute,’’
VerDate Sep<11>2014
15:10 May 09, 2017
Jkt 241001
‘‘regulation,’’ and ‘‘legal requirement’’
in Section 253(a) have essentially the
same meaning as the parallel terms
‘‘regulation’’ and ‘‘decisions’’ in Section
332(c)(7)? The Commission has held in
the past that the terminology in Section
253(a) quoted above ‘‘recognizes that
State and local barriers to entry could
come from sources other than statutes
and regulations’’ and ‘‘was meant to
capture a broad range of state and local
actions’’ that could pose barriers to
entry—including agreements with a
single party that result in depriving
other parties of access to rights of way.
The Commission believes there is a
reasonable basis for concluding that the
same broad interpretation should apply
to the language of Section 332, and the
Commission seeks comment on this
analysis.
70. The Commission also seeks
comment on the extent to which these
statutory provisions apply to States and
localities acting in a proprietary versus
regulatory capacity, and on what
constitutes a proprietary capacity. In the
2014 Infrastructure Order, the
Commission opined that the Spectrum
Act and the rules and policies
implementing it apply to localities’
actions on siting applications when
acting in their capacities as land-use
regulators, but not when acting as
managers of land or property that they
own and operate primarily in their
proprietary roles. The Order cited cases
indicating that ‘‘Sections 253 and
332(c)(7) do not preempt non-regulatory
decisions of a State or locality acting in
its proprietary capacity.’’ The
Commission seeks comment on whether
the Commission should reaffirm or
modify the 2014 Infrastructure Order’s
characterization of the distinction
between State and local governments’
regulatory roles versus their proprietary
roles as ‘‘owners’’ of public resources.
How should the line be drawn in the
context of properties such as public
rights of way (e.g., highways and city
streets), municipally-owned lampposts
or water towers, or utility conduits?
Should a distinction between regulatory
and proprietary be drawn on the basis
of whether State or local actions
advance those government entities’
interests as participants in a particular
sphere of economic activity
(proprietary), by contrast with their
interests in overseeing the use of public
resources (regulatory)? What about
requests for proposals (RFPs) or
contracts involving state or local
entities? The Commission invites
commenters to identify any States or
local governments that have imposed
restrictions on the installation of new
PO 00000
Frm 00031
Fmt 4702
Sfmt 4702
facilities or the upgrading of existing
facilities in public rights of way, and
describe those restrictions and their
impacts. Do such restrictions have
characteristics or effects that are
comparable to moratoria on processing
applications?
D. Unreasonable Discrimination
71. The Commission seeks comment
on whether certain types of facially
neutral criteria that some localities may
be applying when reviewing and
evaluating wireless siting applications
could run afoul of Section 253, Section
332(c)(7), or another provision of the
Act. For instance, the Commission asks
commenters to identify any State or
local regulations that single out telecomrelated deployment for more
burdensome treatment than non-telecom
deployments that have the same or
similar impacts on land use, to explain
how, and to address whether this type
of asymmetric treatment violates
Federal law.
72. The Commission also seeks
comment on the extent to which
localities may be seeking to restrict the
deployment of utility or
communications facilities above ground
and attempt to relocate electric, wireline
telephone, and other utility lines in that
area to underground conduits.
Obviously, it is impossible to operate
wireless network facilities underground.
Undergrounding of utility lines seems to
place a premium on access to those
facilities that remain above ground,
such as municipally-owned street lights.
Is there a particular way that Section
253 or 332(c)(7) should apply in that
circumstance? More generally, the
Commission seeks comment on parties’
experience with undergrounding
requirements, including how wireless
facilities have been treated in
communities that require
undergrounding of utilities. The
Commission also seeks comment on
whether and how the Communications
Act applies in such instances. For
instance, may localities deny
applications to construct new aboveground wireless structures in such
areas, or deny applications to install
collocated equipment on structures that
may eventually be dismantled? Could
‘‘undergrounding’’ plans ‘‘prohibit or
have the effect of prohibiting’’ service
by causing suitable sites for wireless
antennas to become scarce? The
Commission seeks comment on parties’
experiences with undergrounding
generally.
73. Section 332(c)(7)(B)(i)(I) prohibits
States and localities from unreasonably
discriminating among providers of
‘‘functionally equivalent services.’’ The
E:\FR\FM\10MYP1.SGM
10MYP1
Federal Register / Vol. 82, No. 89 / Wednesday, May 10, 2017 / Proposed Rules
Commission seeks comment on whether
parties have encountered such
discrimination, and ask that they
provide specific examples. The
Commission also seeks comment on
what constitutes ‘‘functionally
equivalent services’’ for this purpose.
For instance, should entities that are
considered to be utilities be viewed as
an appropriate comparison? For the
limited purpose of applying Section
332(c)(7)(B)(i)(I), can wireless and
wireline services be considered
‘‘functionally equivalent’’ in some
circumstances? Which types of
discrimination are reasonable and
which are unreasonable?
III. Procedural Matters
jstallworth on DSK7TPTVN1PROD with PROPOSALS
A. Initial Regulatory Flexibility Analysis
74. As required by the Regulatory
Flexibility Act of 1980, as amended
(RFA), the Commission has prepared an
Initial Regulatory Flexibility Analysis
(IRFA) concerning the possible
significant economic impact on small
entities of the policies and rules
proposed in this NPRM. Written public
comments are requested on this IRFA.
Comments must be identified as
responses to the IRFA and must be filed
by the deadlines for comments provided
above. The Commission will send a
copy of the NPRM, including this IRFA,
to the Chief Counsel for Advocacy of the
Small Business Administration (SBA).
1. Need for, and Objectives of, the
Proposed Rules
75. In this NPRM, the Commission
examines how it may further remove or
reduce regulatory impediments to
wireless infrastructure investment and
deployment in order to promote the
rapid deployment of advanced mobile
broadband service to all Americans.
First, the NPRM seeks comment on
certain measures or clarifications to
expedite State and local processing of
wireless facility siting applications
pursuant to the Commission’s authority
under 332 of the Communications Act,
including a ‘‘deemed granted’’ remedy
in cases of unreasonable delay. Next, the
Commission undertakes a
comprehensive fresh look at the
Commission’s rules and procedures
implementing the National
Environmental Policy Act (NEPA) and
Section 106 of the National Historic
Preservation Act (Section 106). As part
of this review, the Commission seeks
comment on potential measures to
improve or clarify the Commission’s
Section 106 process, including in the
area of fees paid to Tribal Nations in
connection with their participation in
the process, cases involving lack of
VerDate Sep<11>2014
15:10 May 09, 2017
Jkt 241001
response by relevant parties including
affected Tribal Nations, and batched
processing. The Commission also seeks
comment on possible additional
exclusions from Section 106 review, and
the Commission reexamines the scope
of the Commission’s responsibility to
review the effects of wireless facility
construction under the NHPA and
NEPA. Finally, the NPRM seeks
comment on so-called ‘‘Twilight
Towers,’’ wireless towers that were
constructed during a time when the
process for Section 106 review was
unclear, that may not have completed
Section 106 review as a result, and that
are therefore not currently available for
collocation without first undergoing
review. The Commission seeks
comment on various options addressing
Twilight Towers, including whether to
exclude collocations on such towers
from Section 106 historic preservation
review, subject to certain exceptions, or
alternatively subjecting collocations on
Twilight Towers to a streamlined, timelimited review. The Commission
expects the measures on which the
Commission seeks comment in this
NPRM to be only a part of the
Commission’s efforts to expedite
wireless infrastructure deployment and
the Commission invites commenters to
propose other innovative approaches to
expediting deployment.
2. Legal Basis
76. The authority for the actions taken
in this NPRM is contained in Sections
1, 2, 4(i), 7, 201, 253, 301, 303, 309, and
332 of the Communications Act of 1934,
as amended 47 U.S.C. 151, 152, 154(i),
157, 201, 253, 301, 303, 309, and 332,
Section 102(C) of the National
Environmental Policy Act of 1969, as
amended, 42 U.S.C. 4332(C), and
Section 106 of the National Historic
Preservation Act of 1966, as amended,
54 U.S.C. 306108.
3. Description and Estimate of the
Number of Small Entities to Which the
Proposed Rules Will Apply
77. The RFA directs agencies to
provide a description of, and where
feasible, an estimate of the number of
small entities that may be affected by
the proposed rules and policies, if
adopted. The RFA generally defines the
term ‘‘small entity’’ as having the same
meaning as the terms ‘‘small business,’’
‘‘small organization,’’ and ‘‘small
governmental jurisdiction.’’ In addition,
the term ‘‘small business’’ has the same
meaning as the term ‘‘small business
concern’’ under the Small Business Act.
A ‘‘small business concern’’ is one
which: (1) Is independently owned and
operated; (2) is not dominant in its field
PO 00000
Frm 00032
Fmt 4702
Sfmt 4702
21773
of operation; and (3) satisfies any
additional criteria established by the
SBA. Below, the Commission provides a
description of such small entities, as
well as an estimate of the number of
such small entities, where feasible.
78. The NPRM seeks comment on
potential rule changes regarding State,
local, and Federal regulation of the
siting and deployment of
communications towers and other
wireless facilities. Due to the number
and diversity of owners of such
infrastructure and other responsible
parties, particularly small entities that
are Commission licensees as well as
non-licensees, the Commission
classifies and quantifies them in the
remainder of this section. The NPRM
seeks comment on the Commission’s
description and estimate of the number
of small entities that may be affected by
the Commission’s actions in this
proceeding.
79. Small Businesses, Small
Organizations, Small Governmental
Jurisdictions. The Commission’s actions,
over time, may affect small entities that
are not easily categorized at present.
The Commission therefore describes
here, at the outset, three comprehensive
small entity size standards that could be
directly affected herein. First, while
there are industry specific size
standards for small businesses that are
used in the regulatory flexibility
analysis, according to data from the
SBA’s Office of Advocacy, in general a
small business is an independent
business having fewer than 500
employees. These types of small
businesses represent 99.9% of all
businesses in the United States which
translates to 28.8 million businesses.
Next, the type of small entity described
as a ‘‘small organization’’ is generally
‘‘any not-for-profit enterprise which is
independently owned and operated and
is not dominant in its field.’’
Nationwide, as of 2007, there were
approximately 1,621,215 small
organizations. Finally, the small entity
described as a ‘‘small governmental
jurisdiction’’ is defined generally as
‘‘governments of cities, towns,
townships, villages, school districts, or
special districts, with a population of
less than fifty thousand.’’ U.S. Census
Bureau data published in 2012 indicate
that there were 89,476 local
governmental jurisdictions in the
United States. The Commission
estimates that, of this total, as many as
88,761 entities may qualify as ‘‘small
governmental jurisdictions.’’ Thus, the
Commission estimates that most
governmental jurisdictions are small.
80. Wireless Telecommunications
Carriers (except Satellite). This industry
E:\FR\FM\10MYP1.SGM
10MYP1
jstallworth on DSK7TPTVN1PROD with PROPOSALS
21774
Federal Register / Vol. 82, No. 89 / Wednesday, May 10, 2017 / Proposed Rules
comprises establishments engaged in
operating and maintaining switching
and transmission facilities to provide
communications via the airwaves.
Establishments in this industry have
spectrum licenses and provide services
using that spectrum, such as cellular
services, paging services, wireless
internet access, and wireless video
services. The appropriate size standard
under SBA rules is that such a business
is small if it has 1,500 or fewer
employees. For this industry, U.S.
Census data for 2012 show that there
were 967 firms that operated for the
entire year. Of this total, 955 firms had
employment of 999 or fewer employees
and 12 had employment of 1000
employees or more. Thus under this
category and the associated size
standard, the Commission estimates that
the majority of wireless
telecommunications carriers (except
satellite) are small entities.
81. The Commission’s own data—
available in its Universal Licensing
System—indicate that, as of October 25,
2016, there are 280 Cellular licensees
that will be affected by the
Commission’s actions today. The
Commission does not know how many
of these licensees are small, as the
Commission does not collect that
information for these types of entities.
Similarly, according to Commission
data, 413 carriers reported that they
were engaged in the provision of
wireless telephony, including cellular
service, Personal Communications
Service (PCS), and Specialized Mobile
Radio (SMR) Telephony services. Of this
total, an estimated 261 have 1,500 or
fewer employees and 152 have more
than 1,500 employees. Thus, using
available data, the Commission
estimates that the majority of wireless
firms can be considered small.
82. Personal Radio Services. Personal
radio services provide short-range, lowpower radio for personal
communications, radio signaling, and
business communications not provided
for in other services. Personal radio
services include services operating in
spectrum licensed under Part 95 of the
Commission’s rules. These services
include Citizen Band Radio Service,
General Mobile Radio Service, Radio
Control Radio Service, Family Radio
Service, Wireless Medical Telemetry
Service, Medical Implant
Communications Service, Low Power
Radio Service, and Multi-Use Radio
Service. There are a variety of methods
used to license the spectrum in these
rule parts, from licensing by rule, to
conditioning operation on successful
completion of a required test, to sitebased licensing, to geographic area
VerDate Sep<11>2014
15:10 May 09, 2017
Jkt 241001
licensing. All such entities in this
category are wireless, therefore the
Commission applies the definition of
Wireless Telecommunications Carriers
(except Satellite), pursuant to which the
SBA’s small entity size standard is
defined as those entities employing
1,500 or fewer persons. For this
industry, U.S. Census data for 2012
show that there were 967 firms that
operated for the entire year. Of this
total, 955 firms had employment of 999
or fewer employees and 12 had
employment of 1000 employees or
more. Thus under this category and the
associated size standard, the
Commission estimates that the majority
of wireless telecommunications carriers
(except satellite) are small entities. The
Commission notes that many of the
licensees in this category are
individuals and not small entities. In
addition, due to the mostly unlicensed
and shared nature of the spectrum
utilized in many of these services, the
Commission lacks direct information
upon which to base an estimation of the
number of small entities that may be
affected by the Commission’s actions in
this proceeding.
83. Public Safety Radio Licensees.
Public Safety Radio Pool licensees as a
general matter, include police, fire, local
government, forestry conservation,
highway maintenance, and emergency
medical services. Because of the vast
array of public safety licensees, the
Commission has not developed a small
business size standard specifically
applicable to public safety licensees. For
this category the Commission applies
the SBA’s definition for Wireless
Telecommunications Carriers (except
Satellite) which encompasses business
entities engaged in radiotelephone
communications and for which the
small entity size standard is defined as
those entities employing 1,500 or fewer
persons. For this industry, U.S. Census
data for 2012 show that there were 967
firms that operated for the entire year.
Of this total, 955 firms had employment
of 999 or fewer employees and 12 had
employment of 1000 employees or
more. Thus under this category and the
associated size standard, the
Commission estimates that the majority
of wireless telecommunications carriers
(except satellite) are small entities. With
respect to local governments, in
particular, since many governmental
entities comprise the licensees for these
services, the Commission includes
under public safety services the number
of government entities affected.
According to Commission records, there
are a total of approximately 133,870
licenses within these services. There are
PO 00000
Frm 00033
Fmt 4702
Sfmt 4702
3,121 licenses in the 4.9 GHz band,
based on an FCC Universal Licensing
System search of March 29, 2017. The
Commission estimates that fewer than
2,442 public safety radio licensees hold
these licenses because certain entities
may have multiple licenses.
84. Private Land Mobile Radio
Licensees. Private land mobile radio
(PLMR) systems serve an essential role
in a vast range of industrial, business,
land transportation, and public safety
activities. These radios are used by
companies of all sizes operating in all
U.S. business categories. Because of the
vast array of PLMR users, the
Commission has not developed a small
business size standard specifically
applicable to PLMR users. The SBA’s
definition for Wireless
Telecommunications Carriers (except
Satellite) which encompasses business
entities engaged in radiotelephone
communications and for which the
small entity size standard is defined as
those entities employing 1,500 or fewer
persons. For this industry, U.S. Census
data for 2012 show that there were 967
firms that operated for the entire year.
Of this total, 955 firms had employment
of 999 or fewer employees and 12 had
employment of 1000 employees or
more. Thus under this category and the
associated size standard, the
Commission estimates that the majority
of wireless telecommunications carriers
(except satellite) are small entities.
According to the Commission’s records,
there are a total of 3,374 licenses in the
frequencies range 173.225 MHz to
173.375 MHz, which is the range
affected by this NPRM. The Commission
does not require PLMR licensees to
disclose information about number of
employees, and does not have
information that could be used to
determine how many PLMR licensees
constitute small entities under this
definition. The Commission however
believes that a substantial number of
PLMR licensees may be small entities
despite the lack of specific information.
85. Multiple Address Systems. Entities
using Multiple Address Systems (MAS)
spectrum, in general, fall into two
categories: (1) Those using the spectrum
for profit-based uses, and (2) those using
the spectrum for private internal uses.
86. With respect to the first category,
Profit-based Spectrum use, the size
standards established by the
Commission define ‘‘small entity’’ for
MAS licensees as an entity that has
average annual gross revenues of less
than $15 million over the three previous
calendar years. A ‘‘Very small business’’
is defined as an entity that, together
with its affiliates, has average annual
gross revenues of not more than $3
E:\FR\FM\10MYP1.SGM
10MYP1
jstallworth on DSK7TPTVN1PROD with PROPOSALS
Federal Register / Vol. 82, No. 89 / Wednesday, May 10, 2017 / Proposed Rules
million over the preceding three
calendar years. The SBA has approved
these definitions. The majority of MAS
operators are licensed in bands where
the Commission has implemented a
geographic area licensing approach that
requires the use of competitive bidding
procedures to resolve mutually
exclusive applications. The
Commission’s licensing database
indicates that, as of April 16, 2010, there
were a total of 11,653 site-based MAS
station authorizations. Of these, 58
authorizations were associated with
common carrier service. In addition, the
Commission’s licensing database
indicates that, as of April 16, 2010, there
were a total of 3,330 Economic Area
market area MAS authorizations. The
Commission’s licensing database also
indicates that, as of April 16, 2010, of
the 11,653 total MAS station
authorizations, 10,773 authorizations
were for private radio service. In 2001,
an auction for 5,104 MAS licenses in
176 EAs was conducted. Seven winning
bidders claimed status as small or very
small businesses and won 611 licenses.
In 2005, the Commission completed an
auction (Auction 59) of 4,226 MAS
licenses in the Fixed Microwave
Services from the 928/959 and 932/941
MHz bands. Twenty-six winning
bidders won a total of 2,323 licenses. Of
the 26 winning bidders in this auction,
five claimed small business status and
won 1,891 licenses.
87. With respect to the second
category, Internal Private Spectrum use
consists of entities that use, or seek to
use, MAS spectrum to accommodate
their own internal communications
needs, MAS serves an essential role in
a range of industrial, safety, business,
and land transportation activities. MAS
radios are used by companies of all
sizes, operating in virtually all U.S.
business categories, and by all types of
public safety entities. For the majority of
private internal users, the definition
developed by the SBA would be more
appropriate than the Commission’s
definition. The applicable definition of
small entity is the ‘‘Wireless
Telecommunications Carriers (except
satellite)’’ definition under the SBA
rules. Under that SBA category, a
business is small if it has 1,500 or fewer
employees. For this category, U.S.
Census data for 2012 show that there
were 967 firms that operated for the
entire year. Of this total, 955 firms had
employment of 999 or fewer employees
and 12 had employment of 1000
employees or more. Thus under this
category and the associated small
business size standard, the Commission
estimates that the majority of wireless
VerDate Sep<11>2014
15:10 May 09, 2017
Jkt 241001
telecommunications carriers (except
satellite) are small entities that may be
affected by the Commission’s action.
88. Broadband Radio Service and
Educational Broadband Service.
Broadband Radio Service systems,
previously referred to as Multipoint
Distribution Service (MDS) and
Multichannel Multipoint Distribution
Service (MMDS) systems, and ‘‘wireless
cable,’’ transmit video programming to
subscribers and provide two-way high
speed data operations using the
microwave frequencies of the
Broadband Radio Service (BRS) and
Educational Broadband Service (EBS)
(previously referred to as the
Instructional Television Fixed Service
(ITFS)).
89. BRS—In connection with the 1996
BRS auction, the Commission
established a small business size
standard as an entity that had annual
average gross revenues of no more than
$40 million in the previous three
calendar years. The BRS auctions
resulted in 67 successful bidders
obtaining licensing opportunities for
493 Basic Trading Areas (BTAs). Of the
67 auction winners, 61 met the
definition of a small business. BRS also
includes licensees of stations authorized
prior to the auction. At this time, the
Commission estimates that of the 61
small business BRS auction winners, 48
remain small business licensees. In
addition to the 48 small businesses that
hold BTA authorizations, there are
approximately 392 incumbent BRS
licensees that are considered small
entities. After adding the number of
small business auction licensees to the
number of incumbent licensees not
already counted, the Commission finds
that there are currently approximately
440 BRS licensees that are defined as
small businesses under either the SBA
or the Commission’s rules.
90. In 2009, the Commission
conducted Auction 86, the sale of 78
licenses in the BRS areas. The
Commission offered three levels of
bidding credits: (i) A bidder with
attributed average annual gross revenues
that exceed $15 million and do not
exceed $40 million for the preceding
three years (small business) received a
15 percent discount on its winning bid;
(ii) a bidder with attributed average
annual gross revenues that exceed $3
million and do not exceed $15 million
for the preceding three years (very small
business) received a 25 percent discount
on its winning bid; and (iii) a bidder
with attributed average annual gross
revenues that do not exceed $3 million
for the preceding three years
(entrepreneur) received a 35 percent
discount on its winning bid. Auction 86
PO 00000
Frm 00034
Fmt 4702
Sfmt 4702
21775
concluded in 2009 with the sale of 61
licenses. Of the ten winning bidders,
two bidders that claimed small business
status won 4 licenses; one bidder that
claimed very small business status won
three licenses; and two bidders that
claimed entrepreneur status won six
licenses.
91. EBS—The SBA’s Cable Television
Distribution Services small business
size standard is applicable to EBS.
There are presently 2,436 EBS licensees.
All but 100 of these licenses are held by
educational institutions. Educational
institutions are included in this analysis
as small entities. Thus, the Commission
estimates that at least 2,336 licensees
are small businesses. Since 2007, Cable
Television Distribution Services have
been defined within the broad economic
census category of Wired
Telecommunications Carriers. Wired
Telecommunications Carriers are
comprised of establishments primarily
engaged in operating and/or providing
access to transmission facilities and
infrastructure that they own and/or
lease for the transmission of voice, data,
text, sound, and video using wired
telecommunications networks.
Transmission facilities may be based on
a single technology or a combination of
technologies. The SBA’s small business
size standard for this category is all such
firms having 1,500 or fewer employees.
U.S. Census data for 2012 shows that
there were 3,117 firms that operated that
year. Of this total, 3,083 operated with
fewer than 1,000 employees. Thus,
under this size standard, the majority of
firms in this industry can be considered
small. To gauge small business
prevalence for these cable services the
Commission must, however, use the
most current census data for the
previous category of Cable and Other
Program Distribution and its associated
size standard which was all such firms
having $13.5 million or less in annual
receipts. According to U.S. Census
Bureau data for 2007, there were a total
of 996 firms in this category that
operated for the entire year. Of this
total, 948 firms had annual receipts of
under $10 million, and 48 firms had
receipts of $10 million or more but less
than $25 million. Thus, the majority of
these firms can be considered small.
92. Location and Monitoring Service
(LMS). LMS systems use non-voice radio
techniques to determine the location
and status of mobile radio units. For
purposes of auctioning LMS licenses,
the Commission has defined a ‘‘small
business’’ as an entity that, together
with controlling interests and affiliates,
has average annual gross revenues for
the preceding three years not to exceed
$15 million. A ‘‘very small business’’ is
E:\FR\FM\10MYP1.SGM
10MYP1
jstallworth on DSK7TPTVN1PROD with PROPOSALS
21776
Federal Register / Vol. 82, No. 89 / Wednesday, May 10, 2017 / Proposed Rules
defined as an entity that, together with
controlling interests and affiliates, has
average annual gross revenues for the
preceding three years not to exceed $3
million. These definitions have been
approved by the SBA. An auction for
LMS licenses commenced on February
23, 1999 and closed on March 5, 1999.
Of the 528 licenses auctioned, 289
licenses were sold to four small
businesses.
93. Television Broadcasting. This
Economic Census category ‘‘comprises
establishments primarily engaged in
broadcasting images together with
sound.’’ These establishments operate
television broadcast studios and
facilities for the programming and
transmission of programs to the public.
These establishments also produce or
transmit visual programming to
affiliated broadcast television stations,
which in turn broadcast the programs to
the public on a predetermined schedule.
Programming may originate in their own
studio, from an affiliated network, or
from external sources. The SBA has
created the following small business
size standard for such businesses: Those
having $38.5 million or less in annual
receipts. The 2012 Economic Census
reports that 751 firms in this category
operated in that year. Of that number,
656 had annual receipts of $25,000,000
or less, 25 had annual receipts between
$25,000,000 and $49,999,999 and 70
had annual receipts of $50,000,000 or
more. Based on this data the
Commission therefore estimate that the
majority of commercial television
broadcasters are small entities under the
applicable SBA size standard.
94. The Commission has estimated
the number of licensed commercial
television stations to be 1,384. Of this
total, 1,264 stations (or about 91
percent) had revenues of $38.5 million
or less, according to Commission staff
review of the BIA Kelsey Inc. Media
Access Pro Television Database (BIA) on
February 24, 2017, and therefore these
licensees qualify as small entities under
the SBA definition. In addition, the
Commission has estimated the number
of licensed noncommercial educational
(NCE) television stations to be 394.
Notwithstanding, the Commission does
not compile and otherwise does not
have access to information on the
revenue of NCE stations that would
permit it to determine how many such
stations would qualify as small entities.
95. The Commission notes, however,
that in assessing whether a business
concern qualifies as ‘‘small’’ under the
above definition, business (control)
affiliations must be included. The
Commission’s estimate, therefore likely
overstates the number of small entities
VerDate Sep<11>2014
15:10 May 09, 2017
Jkt 241001
that might be affected by the
Commission’s action, because the
revenue figure on which it is based does
not include or aggregate revenues from
affiliated companies. In addition,
another element of the definition of
‘‘small business’’ requires that an entity
not be dominant in its field of operation.
The Commission is unable at this time
to define or quantify the criteria that
would establish whether a specific
television broadcast station is dominant
in its field of operation. Accordingly,
the estimate of small businesses to
which rules may apply does not exclude
any television station from the
definition of a small business on this
basis and is therefore possibly overinclusive.
96. Radio Stations. This Economic
Census category ‘‘comprises
establishments primarily engaged in
broadcasting aural programs by radio to
the public. Programming may originate
in their own studio, from an affiliated
network, or from external sources.’’ The
SBA has established a small business
size standard for this category as firms
having $38.5 million or less in annual
receipts. Economic Census data for 2012
shows that 2,849 radio station firms
operated during that year. Of that
number, 2,806 operated with annual
receipts of less than $25 million per
year, 17 with annual receipts between
$25 million and $49,999,999 million
and 26 with annual receipts of $50
million or more. Therefore, based on the
SBA’s size standard the majority of such
entities are small entities.
97. According to Commission staff
review of the BIA Publications, Inc.
Master Access Radio Analyzer Database
as of June 2, 2016, about 11,386 (or
about 99.9 percent) of 11,395
commercial radio stations had revenues
of $38.5 million or less and thus qualify
as small entities under the SBA
definition. The Commission has
estimated the number of licensed
commercial radio stations to be 11,415.
The Commission notes that it has also
estimated the number of licensed NCE
radio stations to be 4,101. Nevertheless,
the Commission does not compile and
otherwise does not have access to
information on the revenue of NCE
stations that would permit it to
determine how many such stations
would qualify as small entities.
98. The Commission also notes, that
in assessing whether a business entity
qualifies as small under the above
definition, business control affiliations
must be included. The Commission’s
estimate therefore likely overstates the
number of small entities that might be
affected by its action, because the
revenue figure on which it is based does
PO 00000
Frm 00035
Fmt 4702
Sfmt 4702
not include or aggregate revenues from
affiliated companies. In addition, to be
determined a ‘‘small business,’’ an
entity may not be dominant in its field
of operation. The Commission further
notes, that it is difficult at times to
assess these criteria in the context of
media entities, and the estimate of small
businesses to which these rules may
apply does not exclude any radio station
from the definition of a small business
on these basis, thus the Commission’s
estimate of small businesses may
therefore be over-inclusive.
99. FM Translator Stations and Low
Power FM Stations. FM translators and
Low Power FM Stations are classified in
the category of Radio Stations and are
assigned the same NAICS Code as
licensees of radio stations. This U.S.
industry, Radio Stations, comprises
establishments primarily engaged in
broadcasting aural programs by radio to
the public. Programming may originate
in their own studio, from an affiliated
network, or from external sources. The
SBA has established a small business
size standard which consists of all radio
stations whose annual receipts are $38.5
million dollars or less. U.S. Census data
for 2012 indicate that 2,849 radio station
firms operated during that year. Of that
number, 2,806 operated with annual
receipts of less than $25 million per
year, 17 with annual receipts between
$25 million and $49,999,999 million
and 26 with annual receipts of $50
million or more. Based on U.S. Census
data, the Commission concludes that the
majority of FM Translator Stations and
Low Power FM Stations are small.
100. Multichannel Video Distribution
and Data Service (MVDDS). MVDDS is
a terrestrial fixed microwave service
operating in the 12.2–12.7 GHz band.
The Commission adopted criteria for
defining three groups of small
businesses for purposes of determining
their eligibility for special provisions
such as bidding credits. It defined a very
small business as an entity with average
annual gross revenues not exceeding $3
million for the preceding three years; a
small business as an entity with average
annual gross revenues not exceeding
$15 million for the preceding three
years; and an entrepreneur as an entity
with average annual gross revenues not
exceeding $40 million for the preceding
three years. These definitions were
approved by the SBA. On January 27,
2004, the Commission completed an
auction of 214 MVDDS licenses
(Auction No. 53). In this auction, ten
winning bidders won a total of 192
MVDDS licenses. Eight of the ten
winning bidders claimed small business
status and won 144 of the licenses. The
Commission also held an auction of
E:\FR\FM\10MYP1.SGM
10MYP1
jstallworth on DSK7TPTVN1PROD with PROPOSALS
Federal Register / Vol. 82, No. 89 / Wednesday, May 10, 2017 / Proposed Rules
MVDDS licenses on December 7, 2005
(Auction 63). Of the three winning
bidders who won 22 licenses, two
winning bidders, winning 21 of the
licenses, claimed small business status.
101. Satellite Telecommunications.
This category comprises firms
‘‘primarily engaged in providing
telecommunications services to other
establishments in the
telecommunications and broadcasting
industries by forwarding and receiving
communications signals via a system of
satellites or reselling satellite
telecommunications.’’ The category has
a small business size standard of $32.5
million or less in average annual
receipts, under SBA rules. For this
category, U.S. Census Bureau data for
2012 show that there were a total of 333
firms that operated for the entire year.
Of this total, 299 firms had annual
receipts of less than $25 million.
Consequently, the Commission
estimates that the majority of satellite
telecommunications providers are small
entities.
102. All Other Telecommunications.
The ‘‘All Other Telecommunications’’
category is comprised of establishments
that are primarily engaged in providing
specialized telecommunications
services, such as satellite tracking,
communications telemetry, and radar
station operation. This industry also
includes establishments primarily
engaged in providing satellite terminal
stations and associated facilities
connected with one or more terrestrial
systems and capable of transmitting
telecommunications to, and receiving
telecommunications from, satellite
systems. Establishments providing
Internet services or voice over Internet
protocol (VoIP) services via clientsupplied telecommunications
connections are also included in this
industry. The SBA has developed a
small business size standard for ‘‘All
Other Telecommunications,’’ which
consists of all such firms with gross
annual receipts of $32.5 million or less.
For this category, U.S. Census data for
2012 show that there were 1,442 firms
that operated for the entire year. Of
these firms, a total of 1,400 had gross
annual receipts of less than $25 million.
Thus, a majority of ‘‘All Other
Telecommunications’’ firms potentially
affected by the Commission’s action can
be considered small.
103. Fixed Microwave Services.
Microwave services include common
carrier, private-operational fixed, and
broadcast auxiliary radio services. They
also include the Local Multipoint
Distribution Service (LMDS), the Digital
Electronic Message Service (DEMS), the
39 GHz Service (39 GHz), the 24 GHz
VerDate Sep<11>2014
15:10 May 09, 2017
Jkt 241001
Service, and the Millimeter Wave
Service where licensees can choose
between common carrier and noncommon carrier status. The SBA nor the
Commission has defined a small
business size standard for microwave
services. For purposes of this IRFA, the
Commission will use the SBA’s
definition applicable to Wireless
Telecommunications Carriers (except
satellite)—i.e., an entity with no more
than 1,500 persons is considered small.
Under that size standard, such a
business is small if it has 1,500 or fewer
employees. U.S. Census Bureau data for
2012, show that there were 967 firms in
this category that operated for the entire
year. Of this total, 955 had employment
of 999 or fewer, and 12 firms had
employment of 1,000 employees or
more. Thus under this category and the
associated small business size standard,
the Commission estimates that the
majority of wireless telecommunications
carriers (except satellite) are small
entities that may be affected by the
Commission’s proposed action.
104. According to Commission data in
the Universal Licensing System (ULS) as
of September 22, 2015 there were
approximately 61,970 common carrier
fixed licensees, 62,909 private and
public safety operational-fixed
licensees, 20,349 broadcast auxiliary
radio licensees, 412 LMDS licenses, 35
DEMS licenses, 870 39 GHz licenses,
and five 24 GHz licenses, and 408
Millimeter Wave licenses in the
microwave services. The Commission
notes that the number of firms does not
necessarily track the number of
licensees. The Commission estimates
that virtually all of the Fixed Microwave
licensees (excluding broadcast auxiliary
licensees) would qualify as small
entities under the SBA definition.
105. Non-Licensee Owners of Towers
and Other Infrastructure. Although at
one time most communications towers
were owned by the licensee using the
tower to provide communications
service, many towers are now owned by
third-party businesses that do not
provide communications services
themselves but lease space on their
towers to other companies that provide
communications services. The
Commission’s rules require that any
entity, including a non-licensee,
proposing to construct a tower over 200
feet in height or within the glide slope
of an airport must register the tower
with the Commission’s Antenna
Structure Registration (ASR) system and
comply with applicable rules regarding
review for impact on the environment
and historic properties.
106. As of March 1, 2017, the ASR
database includes approximately
PO 00000
Frm 00036
Fmt 4702
Sfmt 4702
21777
122,157 registration records reflecting a
’’Constructed’’ status and 13,987
registration records reflecting a
‘‘Granted, Not Constructed’’ status.
These figures include both towers
registered to licensees and towers
registered to non-licensee tower owners.
The Commission does not keep
information from which the
Commission can easily determine how
many of these towers are registered to
non-licensees or how many nonlicensees have registered towers.
Regarding towers that do not require
ASR registration, the Commission does
not collect information as to the number
of such towers in use and therefore
cannot estimate the number of tower
owners that would be subject to the
rules on which the Commission seeks
comment. Moreover, the SBA has not
developed a size standard for small
businesses in the category ‘‘Tower
Owners.’’ Therefore, the Commission is
unable to determine the number of nonlicensee tower owners that are small
entities. The Commission believes,
however, that when all entities owning
10 or fewer towers and leasing space for
collocation are included, non-licensee
tower owners number in the thousands,
and that nearly all of these qualify as
small businesses under the SBA’s
definition for ‘‘All Other
Telecommunications.’’ The SBA has
developed a small business size
standard for ‘‘All Other
Telecommunications,’’ which consists
of all such firms with gross annual
receipts of $32.5 million or less. For this
category, U.S. Census data for 2012
show that there were 1,442 firms that
operated for the entire year. Of these
firms, a total of 1,400 had gross annual
receipts of less than $25 million. Thus,
a majority of ‘‘All Other
Telecommunications’’ firms potentially
affected by the Commission’s action can
be considered small. In addition, there
may be other non-licensee owners of
other wireless infrastructure, including
DAS and small cells, that might be
affected by the measures on which the
Commission seeks comment. The
Commission does not have any basis for
estimating the number of such nonlicensee owners that are small entities.
4. Description of Projected Reporting,
Recordkeeping, and Other Compliance
Requirements for Small Entities
107. The NPRM seeks comment on
potential rule changes that may affect
reporting, recordkeeping and other
compliance requirements. Specifically
the NPRM seeks comment on a specific
NHPA submission process known as
batching. Currently, a streamlined
process for certain facilities associated
E:\FR\FM\10MYP1.SGM
10MYP1
21778
Federal Register / Vol. 82, No. 89 / Wednesday, May 10, 2017 / Proposed Rules
jstallworth on DSK7TPTVN1PROD with PROPOSALS
with building out the Positive Train
Control (PTC) railroad safety system is
in effect whereby eligible facilities may
be submitted to State Historic
Preservation Officers (SHPOs) and
through the Tower Construction
Notification System (TCNS) in batches
instead of individually. The NPRM
seeks comment on whether the
Commission should require SHPOs and
Tribal Historic Preservation Officers
(THPOs) to review non-PTC facilities in
batched submissions as well. If adopted,
this may require modifications to
reporting or other compliance
requirements for small entities and or
jurisdictions to enable such
submissions. The Commission
anticipates that batch rather than
individual submissions will add no
additional burden to small entities and
may reduce the cost and delay
associated with the deployment of
wireless infrastructure. In addition, the
NPRM seeks comment on whether the
current Section 106 process can be
revised in a manner that would permit
applicants to self-certify their
compliance with the Commission’s
Section 106 process and therefore
proceed once they meet the
Commission’s notification requirements,
without requiring Commission
involvement. This self-certifying
process may also require additional
reporting or other compliance
requirements for small entities.
Similarly, the Commission anticipates
that a self-certification process will
reduce the cost and delay associated
with the deployment of wireless
infrastructure for small entities by
expediting the current Section 106
process.
5. Steps Taken To Minimize Significant
Economic Impact on Small Entities and
Significant Alternatives Considered
108. The RFA requires an agency to
describe any significant alternatives that
it has considered in developing its
approach, which may include the
following four alternatives (among
others): (1) The establishment of
differing compliance or reporting
requirements or timetables that take into
account the resources available to small
entities; (2) the clarification,
consolidation, or simplification of
compliance or reporting requirements
under the rule for small entities; (3) the
use of performance, rather than design,
standards; and (4) an exemption from
coverage of the rule, or any part thereof,
for small entities.
109. In this proceeding, the
Commission seeks to examine
regulatory impediments to wireless
infrastructure investment and
VerDate Sep<11>2014
15:10 May 09, 2017
Jkt 241001
deployment, and how the Commission
may remove or reduce such
impediments consistent with the law
and the public interest. The
Commission anticipates that the steps
on which the NPRM seeks comment
will help reduce burdens on small
entities that may need to deploy
wireless infrastructure by reducing the
cost and delay associated with the
deployment of such infrastructure. As
discussed below, however, certain
proposals may impose regulatory
compliance costs on small jurisdictions.
110. The NPRM seeks comment on
potential ways to expedite wireless
facility deployment. First, it seeks
comment on certain measures or
clarifications to expedite State and local
processing of wireless facility siting
applications pursuant to the
Commission’s authority under Section
332 of the Communications Act.
Specifically, the NPRM proposes to
adopt one or more of three mechanisms
for implementing a ‘‘deemed granted’’
remedy for State and local agencies’
failure to satisfy their obligations under
Section 332(c)(7)(B)(ii) to act on
applications outside the context of the
Spectrum Act, including irrebuttable
presumption, lapse of State and local
governments’ authority, and a
preemption rule. The NPRM also seeks
comment on how to quantify a
‘‘reasonable period of time’’ within
which to act on siting applications.
Specifically, the NPRM asks
commenters to discuss whether the
Commission should consider adopting
different time frames for review of
facility deployments not covered by
Section 6409 of the Spectrum Act, by
identifying more narrowly defined
classes of deployments and distinct
reasonable time frames to govern such
classes. The NPRM also seeks comment
on what time periods would be
reasonable (outside the Spectrum Act
context) for any new categories of
applications, and on what factors the
Commission should consider in making
such a decision. The NPRM also seeks
comment on whether the Commission
should provide further guidance to
address situations in which it is not
clear when the shot clock should start
running, or in which States and
localities on one hand, and industry on
the other, disagree on when the time for
processing an application begins, and
on whether there are additional steps
that should be considered to ensure that
a deemed granted remedy achieves its
purpose of expediting review.
111. In addition, the NPRM seeks
comment on Moratoria. The
Commission clarified in the 2014
Infrastructure Order that the shot clock
PO 00000
Frm 00037
Fmt 4702
Sfmt 4702
deadline applicable to each application
‘‘runs regardless of any moratorium.’’
The NPRM asks commenters to submit
specific information about whether
some localities are continuing to impose
moratoria or other restrictions on the
filing or processing of wireless siting
applications, including identification of
the specific entities engaging in such
actions and description of the effect of
such restrictions on parties’ ability to
deploy network facilities and provide
service to consumers. The NPRM also
proposes to take any additional actions
necessary, such as issuing an order or
declaratory ruling providing more
specific clarifications of the moratorium
ban or preempting specific State or local
moratoria. The proposed measures
should reduce existing regulatory costs
for small entities that construct or
deploy wireless infrastructure. The
Commission invites commenters to
discuss the economic impact of any of
these proposed measures on small
entities, including small jurisdictions,
and on any alternatives that would
reduce the economic impact on such
entities.
112. Second, the NPRM undertakes a
fresh look at the Commission’s rules and
procedures implementing NEPA and the
NHPA as they relate to the
Commission’s implementation of Title
III of the Act in the context of wireless
infrastructure deployment. The NPRM
seeks comment on potential measures in
several areas that could improve the
efficiency of the Commission’s review
under the NHPA and NEPA, including
in the areas of fees, addressing delays,
and batched processing. Specifically,
the NPRM seeks comment on the costs,
benefits, and time requirements
associated with the historic preservation
review process under Section 106 of the
NHPA, including SHPO and Tribal
Nation review, as well as on the costs
and relative benefits of the
Commission’s NEPA rules. The NPRM
also seeks comment on potential process
reforms regarding Tribal Fees, including
fee amounts, when fees are requested,
the legal framework of potential fee
schedules, the delineation of Tribal
Nation’s geographic area of interest, and
on potential remedies, dispute
resolution, and possible negotiated
alternatives.
113. The NPRM then seeks comment
on other possible reforms to the
Commission’s NHPA process that may
make it faster, including time limits and
self-certification when no response to a
Section 106 submission is provided, on
whether the Commission should require
SHPOs and THPOs to review non-PTC
facilities in batched submissions, and if
so, how such a process should work and
E:\FR\FM\10MYP1.SGM
10MYP1
jstallworth on DSK7TPTVN1PROD with PROPOSALS
Federal Register / Vol. 82, No. 89 / Wednesday, May 10, 2017 / Proposed Rules
what sort of facilities would be eligible,
and finally, whether there are additional
procedural changes that the
Commission should consider to improve
the Section 106 review process in a
manner that does not compromise its
integrity.
114. Further, the NPRM seeks
comment on ways to improve and
further streamline the Commission’s
environmental compliance regulations
while ensuring the Commission meets
its NEPA obligations. Toward that end,
the NPRM seeks comment on whether to
revise the Commission’s rules so that an
EA is not required for siting in a
floodplain when appropriate
engineering or mitigation requirements
have been met and on whether to
expand the categories of undertakings
that are excluded from Section 106
review, to include pole replacements,
deployments in rights-of-way, and
collocations based on their minimal
potential to adversely affect historic
properties. The NPRM also seeks
comment on whether the Commission
should revisit the Commission’s
interpretation of the scope of the
Commission’s responsibility to review
the effects of wireless facility
construction under the NHPA and
NEPA. These potential changes to the
Commission’s rules and procedures
implementing NEPA and the NHPA
would reduce environmental
compliance costs on entities that
construct or deploy wireless
infrastructure. These potential revisions
are likely to provide an even greater
benefit for small entities that may not
have the compliance resources and
economies of scale of larger entities. The
Commission invites comment on ways
in which the Commission can achieve
its goals, but at the same time further
reduce the burdens on small entities.
115. Third, the NPRM seeks comment
on steps the Commission should take to
develop a definitive solution for the
Twilight Towers issue that will allow
Twilight Towers to be used for
collocations while respecting the
integrity of the Section 106 process.
Facilitating collocations on these towers
will serve the public interest by making
additional infrastructure available for
wireless broadband services and the
FirstNet public safety broadband
network, as well as reduce the need for
new towers, lessening the impact of new
construction on the environment and on
locations with historical and cultural
significance, thereby reducing the
associated regulatory burden,
particularly the burden on small
entities.
116. In particular, the NPRM seeks
comment on whether to treat
VerDate Sep<11>2014
15:10 May 09, 2017
Jkt 241001
collocations on towers built between
March 16, 2001 and March 7, 2005 that
did not go through Section 106 historic
preservation review in the same manner
as collocations on towers built prior to
March 16, 2001 that did not go through
review. Under this approach,
collocations on such towers would
generally be excluded from Section 106
historic preservation review, subject to
the same exceptions that currently
apply for collocations on towers built on
or prior to March 16, 2001. The
Commission seeks comment on whether
allowing collocations without
individual Section 106 review in these
circumstances would rapidly make
available a significant amount of
additional infrastructure to support
wireless broadband deployment without
adverse impacts. The NPRM also seeks
comment on any alternative approaches
and on the procedural vehicle through
which any solution should be
implemented. Finally, the NPRM invites
comment on what measures, if any,
should be taken to facilitate collocations
on non-compliant towers constructed
after March 7, 2005, including whether
the Commission should pursue an
alternative review process, or any other
alternative approach, for any or all of
these towers. These proposals would
reduce the environmental compliance
costs associated with collocations,
especially for small entities that have
limited financial resources. The
Commission invites commenters to
discuss the economic impact of any of
the proposals for the solution to the
Twilight Towers issue on small entities,
including small jurisdictions, and on
any alternatives that would reduce the
economic impact on such entities.
117. For the options discussed in this
NPRM, the Commission seeks comment
on the effect or burden of the
prospective regulation on small entities,
including small jurisdictions, the extent
to which the regulation would relieve
burdens on small entities, and whether
there are any alternatives the
Commission could implement that
could achieve the Commission’s goals
while at the same time minimizing or
further reducing the burdens on small
entities.
6. Federal Rules That May Duplicate,
Overlap, or Conflict With the Proposed
Rules
118. None.
B. Initial Paperwork Reduction Act
Analysis
119. This document contains
proposed modified information
collection requirements. The
Commission, as part of its continuing
PO 00000
Frm 00038
Fmt 4702
Sfmt 4702
21779
effort to reduce paperwork burdens,
invites the general public and the Office
of Management and Budget (OMB) to
comment on the information collection
requirements contained in this
document, as required by the Paperwork
Reduction Act of 1995. In addition,
pursuant to the Small Business
Paperwork Relief Act of 2002, the
Commission seeks specific comment on
how the Commission might further
reduce the information collection
burden for small business concerns with
fewer than 25 employees.
C. Other Procedural Matters
1. Ex Parte Rules—Permit-But-Disclose
120. Except to the limited extent
described in the next paragraph, this
proceeding shall be treated as a ‘‘permitbut-disclose’’ proceeding in accordance
with the Commission’s ex parte rules.
Persons making ex parte presentations
must file a copy of any written
presentation or a memorandum
summarizing any oral presentation
within two business days after the
presentation (unless a different deadline
applicable to the Sunshine period
applies). Persons making oral ex parte
presentations are reminded that
memoranda summarizing the
presentation must (1) list all persons
attending or otherwise participating in
the meeting at which the ex parte
presentation was made, and (2)
summarize all data presented and
arguments made during the
presentation. If the presentation
consisted in whole or in part of the
presentation of data or arguments
already reflected in the presenter’s
written comments, memoranda or other
filings in the proceeding, the presenter
may provide citations to such data or
arguments in his or her prior comments,
memoranda, or other filings (specifying
the relevant page and/or paragraph
numbers where such data or arguments
can be found) in lieu of summarizing
them in the memorandum. Documents
shown or given to Commission staff
during ex parte meetings are deemed to
be written ex parte presentations and
must be filed consistent with section
1.1206(b) of the Commission’s rules. In
proceedings governed by section 1.49(f)
of the Commission’s rules or for which
the Commission has made available a
method of electronic filing, written ex
parte presentations and memoranda
summarizing oral ex parte
presentations, and all attachments
thereto, must be filed through the
electronic comment filing system
available for that proceeding, and must
be filed in their native format (e.g., .doc,
.xml, .ppt, searchable .pdf). Participants
E:\FR\FM\10MYP1.SGM
10MYP1
21780
Federal Register / Vol. 82, No. 89 / Wednesday, May 10, 2017 / Proposed Rules
in this proceeding should familiarize
themselves with the Commission’s ex
parte rules.
121. In light of the Commission’s trust
relationship with Tribal Nations and
Native Hawaiian Organizations (NHOs),
and the Commission’s obligation to
engage in government-to-government
consultation with them, the
Commission finds that the public
interest requires a limited modification
of the ex parte rules in this proceeding.
Tribal Nations and NHOs, like other
interested parties, should file
comments, reply comments, and ex
parte presentations in the record in
order to put facts and arguments before
the Commission in a manner such that
they may be relied upon in the decisionmaking process. But the Commission
will exempt ex parte presentations
involving elected and appointed leaders
and duly appointed representatives of
federally-recognized Tribal Nations and
NHOs from the disclosure requirements
in permit-but-disclose proceedings and
the prohibitions during the Sunshine
Agenda period. Specifically,
presentations from elected and
appointed leaders or duly appointed
representatives of federally-recognized
Tribal Nations or NHOs to Commission
decision makers shall be exempt from
disclosure. To be clear, while the
Commission recognizes that
consultation is critically important, the
Commission emphasizes that the
Commission will rely in its decisionmaking only on those presentations that
are placed in the public record for this
proceeding.
jstallworth on DSK7TPTVN1PROD with PROPOSALS
IV. Ordering Clauses
122. Accordingly, it is ordered,
pursuant to Sections 1, 2, 4(i), 7, 201,
253, 301, 303, 309, and 332 of the
Communications Act of 1934, as
amended 47 U.S.C. 151, 152, 154(i), 157,
201, 253, 301, 303, 309, and 332,
Section 102(C) of the National
Environmental Policy Act of 1969, as
amended, 42 U.S.C. 4332(C), and
Section 106 of the National Historic
Preservation Act of 1966, as amended,
54 U.S.C. 306108, that this Notice of
Proposed Rulemaking and Notice of
Inquiry is hereby adopted.
123. It is further ordered that the
Commission’s Consumer &
Governmental Affairs Bureau, Reference
Information Center, shall send a copy of
this Notice of Proposed Rulemaking,
including the Initial Regulatory
Flexibility Analysis, to the Chief
Counsel for Advocacy of the Small
Business Administration.
VerDate Sep<11>2014
15:10 May 09, 2017
Jkt 241001
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 2017–09431 Filed 5–9–17; 8:45 am]
BILLING CODE 6712–01–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR 1, 15, 20, and 54
[GN Docket No. 16–46; FCC 17–46]
FCC Seeks Comment and Data on
Actions To Accelerate Adoption and
Accessibility of Broadband-Enabled
Health Care Solutions and Advanced
Technologies
Federal Communications
Commission.
ACTION: Request for comments.
AGENCY:
The Federal Communications
Commission (FCC) seeks comment, data,
and information on a variety of
regulatory, policy, and infrastructure
issues related to the emerging
broadband-enabled health and care
ecosystem. The FCC seeks to ensure that
consumers—from major cities to rural
and remote areas, Tribal lands, and
underserved regions—can access
potentially lifesaving health
technologies and services, like
telehealth and telemedicine, which are
enabled by broadband connectivity. The
anticipated record will allow the
Commission and its
Connect2HealthFCC Task Force (Task
Force) to gain a broader understanding
about the current state of broadband
health connectivity. The record will also
be used by the Task Force to make
future recommendations to the
Commission.
SUMMARY:
Submit comments on or before
May 24, 2017, and reply comments on
or before June 8, 2017.
ADDRESSES: You may submit comments,
identified by GN Docket No. 16–46, by
any of the following methods:
• Electronic Filers: Comments may be
filed electronically using the Internet by
accessing the ECFS: https://apps.fcc.gov/
ecfs/ (click the ‘‘submit a filing’’ tab).
Filers should follow the instructions
provided on the Web site for submitting
comments. For ECFS filers, in
completing the transmittal screen, filers
should include their full name, U.S.
Postal service mailing address, and the
applicable docket number: GN Docket
No. 16–46.
• Paper Filers: Parties who choose to
file by paper must file an original and
one copy of each filing. Filings can be
sent by hand or messenger delivery, by
DATES:
PO 00000
Frm 00039
Fmt 4702
Sfmt 4702
commercial overnight courier, or by
first-class or overnight U.S. Postal
Service mail. All filings must be
addressed to the Commission’s
Secretary, Marlene H. Dortch, Office of
the Secretary, Federal Communications
Commission. All hand-delivered or
messenger-delivered paper filings for
the Commission’s Secretary must be
delivered to FCC Headquarters at 445
12th St. SW., Room TW–A325,
Washington, DC 20554. All hand
deliveries must be held together with
rubber bands or fasteners. Any
envelopes must be disposed of before
entering the building. The filing hours
are 8:00 a.m. to 7:00 p.m. Commercial
overnight mail (other than U.S. Postal
Service Express Mail and Priority Mail)
must be sent to 9300 East Hampton
Drive, Capitol Heights, MD 20743. U.S.
Postal Service first-class mail, Express
Mail, and Priority Mail must be
addressed to 445 12th Street SW.,
Washington, DC 20554.
Additional Filing Instruction: To the
extent feasible, parties should email a
copy of their comments to the Task
Force’s email box, at connect2health@
fcc.gov. In the email, please insert
‘‘Comments in GN Docket No. 16–46’’ in
the subject line. Copies of all filings will
be available in GN Docket No. 16–46
through ECFS and are also available for
public inspection and copying during
regular business hours at the FCC
Reference Information Center, Portals II,
445 12th St. SW., Room CY–A257,
Washington, DC 20554, telephone (202)
418–0270. Documents will be available
electronically in ASCII, Microsoft Word,
and/or Adobe Acrobat.
People with Disabilities: To request
materials in accessible formats for
people with disabilities (braille, large
print, electronic files, audio format),
send an email to fcc504@fcc.gov or call
the Consumer and Governmental Affairs
Bureau at 202–418–0530 (voice) or 202–
418–0432 (TTY). Contact the FCC to
request reasonable accommodations for
filing comments (accessible format
documents, sign language interpreters,
CART, etc.) by email at: fcc504@fcc.gov;
phone: 202–418–0530 or TTY: 202–418–
0432.
FOR FURTHER INFORMATION CONTACT: For
further information about this
Document, please contact Ben
Bartolome, Special Counsel,
Connect2HealthFCC Task Force, at (770)
935–3383, or via email at
connect2health@fcc.gov (inserting
‘‘Question re GN Docket No. 16–46’’ in
the subject line). Press inquiries should
be directed to Katie Gorscak,
Communications Director,
Connect2HealthFCC Task Force, at (202)
E:\FR\FM\10MYP1.SGM
10MYP1
Agencies
[Federal Register Volume 82, Number 89 (Wednesday, May 10, 2017)]
[Proposed Rules]
[Pages 21761-21780]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-09431]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 1 and 17
[WT Docket No. 17-79; FCC 17-38]
Accelerating Wireless Broadband Deployment by Removing Barriers
to Infrastructure Investment
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: In this document, the Federal Communications Commission
(Commission) seeks comment on proposals to reduce the regulatory
impediments to wireless network infrastructure investment and
deployment.
DATES: Interested parties may file comments on or before June 9, 2017,
and reply comments on or before July 10, 2017.
ADDRESSES: You may submit comments and reply comments on or before the
dates indicated in the DATES section above. Comments may be filed using
the Commission's Electronic Comment Filing System (ECFS). See
Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121
(1998). All filings related to this document shall refer to WT Docket
No. 17-79.
[ssquf] Electronic Filers: Comments may be filed electronically
using the Internet by accessing the ECFS: https://apps.fcc.gov/ecfs/.
[ssquf] Paper Filers: Parties who choose to file by paper must file
an original and one copy of each filing.
Filings can be sent by hand or messenger delivery, by commercial
overnight courier, or by first-class or overnight U.S. Postal Service
mail. All filings must be addressed to the Commission's Secretary,
Office of the Secretary, Federal Communications Commission.
[ssquf] All hand-delivered or messenger-delivered paper filings for
the Commission's Secretary must be delivered to FCC Headquarters at 445
12th Street SW., Room TW-A325, Washington, DC 20554. The filing hours
are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together
with rubber bands or fasteners. Any envelopes and boxes must be
disposed of before entering the building.
[ssquf] Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9300 East Hampton
Drive, Capitol Heights, MD 20743.
[ssquf] U.S. Postal Service first-class, Express, and Priority mail
must be addressed to 445 12th Street SW., Washington DC 20554.
People with Disabilities. To request materials in accessible
formats for people with disabilities (braille, large print, electronic
files, audio format), send an email to fcc504@fcc.gov or call the
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).
For additional information on the rulemaking process, see the
SUPPLEMENTARY INFORMATION section of this document.
In addition to filing comments with the Secretary, a copy of any
comments on the Paperwork Reduction Act information collection
modifications proposed herein should be submitted to the Commission via
email to PRA@fcc.gov and to Nicholas A. Fraser, Office of Management
and Budget, via email to Nicholas_A._Fraser@omb.eop.gov or via fax at
202-395-5167.
FOR FURTHER INFORMATION CONTACT: For further information on this
proceeding, contact Aaron Goldschmidt, Aaron.Goldschmidt@fcc.gov, of
the Wireless Telecommunications Bureau, Competition & Infrastructure
Policy Division, (202) 418-7146, or David Sieradzki,
David.Sieradzki@fcc.gov, of the Wireless Telecommunications Bureau,
Competition & Infrastructure Policy Division, (202) 418-1368.
SUPPLEMENTARY INFORMATION:
This is a summary of the Federal Communications Commission's Notice
of Proposed Rulemaking and Notice of Inquiry (NPRM and NOI,
respectively), in WT Docket No. 17-79; FCC 17-38, adopted April 20,
2017, and released on April 21, 2017. The document is available for
download at https://fjallfoss.fcc.gov/edocs_public/. The complete text
of this document is also available for inspection and copying during
normal business hours in the FCC Reference Information Center, Portals
II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. To request
materials in accessible formats for people with disabilities (Braille,
large print, electronic files, audio format), send an email to
FCC504@fcc.gov or call the Consumer & Governmental Affairs Bureau at
202-418-0530 (voice), 202-418-0432 (TTY).
I. Notice of Proposed Rulemaking
A. Streamlining State and Local Review
1. In this section, the Commission addresses the process for
reviewing and deciding on wireless facility deployment applications
conducted by State and local regulatory agencies. The Commission seeks
comment on several potential measures or clarifications intended to
expedite such review pursuant to the Commission's authority under
Section 332 of the Communications Act.
2. The Commission has taken a number of important actions to date
implementing Section 332(c)(7) of the Communications Act (Act) and
Section 6409(a) of the Spectrum Act, each of which has been upheld by
federal courts. The Commission seeks to assess the impact of the
Commission's actions to date, in order to evaluate the measures the
Commission discusses in the NPRM, as well as other possible actions,
and to determine whether those measures are likely to be effective in
further reducing unnecessary and potentially impermissible delays and
burdens on wireless infrastructure deployment associated with State and
local siting review processes. Thus, the Commission asks parties to
submit facts and evidence on the issues discussed below and on any
other matters relevant to the policy proposals set forth here. The
Commission seeks information on the prevalence of barriers, costs
thereof, and impacts on investment in and deployment of wireless
services, including how such costs compare to the overall costs of
deployment. The Commission seeks information on the specific steps that
various regulatory authorities employ at each stage in the process of
reviewing applications, and which steps have been most effective in
efficiently resolving tensions among competing priorities of network
deployment and other public interest goals. In addition, parties should
detail the extent to which the Commission's existing rules and policies
have or have not been successful in addressing local
[[Page 21762]]
siting review challenges, including effects or developments since the
2014 Infrastructure Order, the Commission's most recent major decision
addressing these issues (See Acceleration of Broadband Deployment by
Improving Wireless Facilities Siting Policies, Report and Order, 29 FCC
Rcd 12865 (2014) (2014 Infrastructure Order)). To the extent that
parties have submitted information in response to the Wireless
Telecommunications Bureau's Streamlining PN that is relevant to these
questions, the Commission invites them to submit such data in the
present docket (See Streamlining Deployment of Small Cell
Infrastructure by Improving Wireless Facilities Siting Policies;
Mobilitie, LLC Petition For Declaratory Ruling, Public Notice, 31 FCC
Rcd 13360, 13368 (WTB 2016) (Streamlining PN)). In addition, to the
extent parties discuss the conduct or practices of government bodies or
wireless facility siting applicants, the Commission strongly urges them
to identify the particular entities that they assert engaged in such
conduct or practices.
3. Further, in seeking comment on new or modified measures to
expedite local review, the Commission invites commenters to discuss
what siting applicants can or should be required to do to help expedite
or streamline the siting review process. Are there ways in which
applicants are causing or contributing to unnecessary delay in the
processing of their siting applications? If so, the Commission seeks
comment on how the Commission should address or incorporate this
consideration in any action the Commission takes in this proceeding.
For example, to what extent have delays been the result of incomplete
applications or failures to properly respond to requests to the
applicant for additional information, and how should measures the
Commission adopts or revises to streamline application review ensure
that applicants are responsible for supplying complete and accurate
filings and information? Further, are there steps the industry can take
outside the formal application review process that may facilitate or
streamline such review? Are there siting practices that applicants can
or should adopt that will facilitate faster local review while still
achieving the deployment of infrastructure necessary to support
advanced wireless broadband services?
1. ``Deemed Granted'' Remedy for Missing Shot Clock Deadlines
4. The Commission now takes a fresh look and seeks comment on a
``deemed granted'' remedy for State and local agencies' failure to
satisfy their obligations under Section 332(c)(7)(B)(ii) to act on
applications outside the context of the Spectrum Act. The Commission
invites commenters to address whether the Commission should adopt one
or more of the three options discussed below regarding the mechanism
for implementing a ``deemed granted'' remedy. The Commission describes
each of these options below and explains its analysis of its legal
authority to adopt each of them. The Commission seeks comment on the
benefits and detriments of each option and invites parties to discuss
the Commission's legal analysis. The Commission also seeks comment on
whether there are other options for implementing a ``deemed granted''
remedy.
5. Irrebuttable Presumption. In the 2009 Shot Clock Declaratory
Ruling, the Commission created a ``rebuttable presumption'' that the
shot clock deadlines established by the Commission were reasonable (See
Petition for Declaratory Ruling to Clarify Provisions of Section
332(c)(7) to Ensure Timely Siting Review, Declaratory Ruling, 24 FCC
Rcd 13994 (2009) (2009 Shot Clock Declaratory Ruling)). The Commission
anticipated that this would give State and local regulatory agencies
``a strong incentive to resolve each application within the time frame
defined as reasonable.'' Thus, when an applicant sues pursuant to
Section 332(c)(7)(B)(v) to challenge an agency's failure to act on an
application by the applicable deadline, the agency would face the
burden of ``rebut[ting] the presumption that the established timeframes
are reasonable,'' and if it fails to satisfy this burden, the court
could ``issu[e] . . . an injunction granting the application.'' The
Commission believes one option for establishing a ``deemed granted''
remedy for a State or local agency's failure to act by the applicable
deadline would be to convert this rebuttable presumption into an
irrebuttable presumption. Thus, the Commission's determination of the
reasonable time frame for action (i.e., the applicable shot clock
deadline) would ``set an absolute limit that--in the event of a failure
to act--results in a deemed grant.''
6. The Commission believes it has legal authority to adopt this
approach. The Commission sees no reason to continue adhering to the
cautious approach articulated in the 2009 Shot Clock Declaratory
Ruling--i.e., that Section 332(c)(7) ``indicates Congressional intent
that courts should have the [sole] responsibility to fashion . . .
remedies'' on a ``case-specific'' basis. The Commission advanced that
theory without citing any legislative history or other sources, and the
Fifth Circuit, in its decision upholding the 2009 Shot Clock
Declaratory Ruling, apparently declined to rely on it. Instead, the
Fifth Circuit found no indication in the statute and its legislative
history of any clear Congressional intent on whether the Commission
could ``issue an interpretation of section 332(c)(7)(B)(v) that would
guide courts' determinations of disputes under that section,'' and went
on to affirm that the Commission has broad authority to render
definitive interpretations of ambiguous provisions such as this one in
Section 332(c)(7). The Fifth Circuit further found--and the Supreme
Court affirmed--that courts must follow such Commission
interpretations.
7. The Commission sees nothing in the statute that explicitly
compels a case-by-case assessment of the relevant circumstances for
each individual application, nor any provision specifically requiring
that those time frames be indefinitely adjustable on an individualized
basis, rather than subject to dispositive maximums that may be deemed
reasonable as applied to specified categories of applications. While
Section 332(c)(7)(B)(ii) provides that a locality must act on each
application ``within a reasonable time, taking into account the nature
and scope of such request,'' this does not necessarily mean that a
reviewing court ``must consider the specific facts of individual
applications'' to determine whether the locality acted within a
reasonable time frame; the Commission is well-positioned to take into
account the ``nature and scope'' of particular categories of
applications in determining the maximum reasonable amount of time for
localities to address each type. The Commission seeks comment on this
analysis.
8. Lapse of State and Local Governments' Authority. In the
alternative (or in addition) to the irrebuttable presumption approach
discussed above, the Commission believes it may implement a ``deemed
granted'' remedy for State and local agencies' failure to act within a
reasonable time based on the following interpretation of ambiguous
provisions in the statute. Section 332(c)(7)(A) assures these agencies
that their ``authority over decisions concerning the placement,
construction, and modification of personal wireless service
facilities'' is preserved--but significantly, qualifies that assurance
with the provision ``except as provided'' elsewhere in Section
332(c)(7). The Commission seeks comment on whether
[[Page 21763]]
the Commission should interpret this phrase as meaning that if a
locality fails to meet its obligation under Section 332(c)(7)(B)(ii) to
``act on [a] request for authorization to place, construct, or modify
personal wireless facilities within a reasonable period of time,'' then
its ``authority over decisions concerning'' that request lapses and is
no longer preserved. Under this interpretation, by failing to act on an
application within a reasonable period of time, the agency would have
defaulted its authority over such applications (i.e., lost the
protection of Section 332(c)(7)(A), which otherwise would have
preserved such authority), and at that point no local land-use
regulator would have authority to approve or deny an application.
Arguably, the Commission could establish that in those circumstances,
there is no need for an applicant to seek such approval. The Commission
seeks comment on this interpretation and on the desirability of taking
this approach.
9. Preemption Rule. A third approach to establish a ``deemed
granted'' remedy--standing alone or in tandem with one or both of the
approaches outlined above--would be to promulgate a rule to implement
the policies set forth in Section 332(c)(7). Sections 201(b) and
303(r), as well as other statutory provisions, generally authorize the
Commission to adopt rules or issue other orders to carry out the
substantive provisions of the Communications Act. Further, the Fifth
Circuit affirmed the determination in the 2009 Shot Clock Declaratory
Ruling that the Commission's ``general authority to make rules and
regulations to carry out the Communications Act includes the power to
implement section 332(c)(7)(B)(ii) and (v).'' Accordingly, the
Commission seeks comment on whether it could promulgate a ``deemed
granted'' rule to implement Section 332(c)(7). The Commission also
seeks comment on whether Section 253, standing alone or in conjunction
with Section 332(c)(7) or other provisions of the Act, provides the
authority for the Commission to promulgate a ``deemed granted'' rule.
2. Reasonable Period of Time To Act on Applications
10. In 2009, the Commission determined that, for purposes of
determining what is a ``reasonable period of time'' under Section
332(c)(7)(B)(ii), 90 days should be sufficient for localities to review
and act on (either by approving or denying) complete collocation
applications, and that 150 days is a reasonable time frame for them to
review and act on other types of complete applications to place,
construct, or modify wireless facilities. In its 2014 Infrastructure
Order, the Commission implemented Section 6409(a) of the Spectrum Act
(enacted by Congress in 2012) by, among other things, creating a new
60-day shot clock within which localities must act on complete
applications subject to the definitions in the Spectrum Act.
11. The Commission asks commenters to discuss whether the
Commission should consider adopting different time frames for review of
facility deployments not covered by the Spectrum Act. For example, the
Commission seeks comment on whether it should harmonize the shot clocks
for applications that are not subject to the Spectrum Act with those
that are, so that, for instance, the time period deemed reasonable for
non-Spectrum Act collocation applications would change from 90 days to
60 days. Alternatively, should the Commission establish a 60-day shot
clock for some subset of collocation applications that are not subject
to the Spectrum Act, for example, applications that meet the relevant
dimensional limits but are nevertheless not subject to the Spectrum Act
because they seek to collocate equipment on non-tower structures that
do not have any existing antennas? Should the Commission adopt
different presumptively reasonable time frames for resolving
applications for more narrowly defined classes of deployments such as
(a) construction of new structures of varying heights (e.g., 50 feet
tall or less, versus 50 to 200 feet tall, versus taller than 200 feet);
(b) construction of new structures in or near major utility or
transportation rights of way, or that are in or near established
clusters of similar structures, versus those that are not; (c)
deployments in areas that are zoned for residential, commercial, or
industrial use, or in areas where zoning or planning ordinances
contemplate little or no additional development; or (d) replacements or
removals that do not fall within the scope of Section 6409(a) of the
Spectrum Act (for example, because they exceed the dimensional limits
for requests covered by that provision)? The Commission also requests
comment on whether to establish different time frames for (i)
deployment of small cell or Distributed Antenna System (DAS) antennas
or other small equipment versus more traditional, larger types of
equipment or (ii) requests that include multiple proposed deployments
or, equivalently, ``batches'' of requests submitted by a single
provider to deploy multiple related facilities in different locations,
versus proposals to deploy one facility. Should the Commission align
the Commission's definitions of categories of deployments for which the
Commission specifies reasonable time frames for local siting review
with the Commission's definitions of the categories of deployments that
are categorically excluded from environmental or historic preservation
review?
12. The Commission seeks comment on what time periods would be
reasonable (outside the Spectrum Act context) for any new categories of
applications, and on what factors the Commission should consider in
making such a decision. For what types or categories of wireless siting
applications may shorter time periods be reasonable than those
established in the 2009 Shot Clock Declaratory Ruling? The Commission
invites commenters to submit information to help guide the Commission's
development of appropriate time frames for various categories of
deployment. The Commission asks commenters to submit any available data
on whether localities already recognize different categories of
deployment in their processes, and on the actual amounts of time that
localities have taken under particular circumstances.
13. The Commission also seeks comment on whether it should provide
further guidance to address situations in which it is not clear when
the shot clock should start running, or in which States and localities
on one hand, and industry on the other, disagree on when the time for
processing an application begins. For instance, the Commission has
heard anecdotally that some jurisdictions impose a ``pre-application''
review process, during which they do not consider that a request for
authorization has been filed. The Commission seeks comment on how the
shot clocks should apply when there are such pre-application
procedures; at what point should the clock begin to run? Are there
other instances in which there is a lack of clarity or disagreement
about when the clock begins to run? The Commission asks parties to
address whether and how it should provide clarification of how the
Commission's rules apply in those circumstances.
14. Finally, the Commission seeks comment on whether there are
additional steps that should be considered to ensure that a deemed
granted remedy achieves its purpose of expediting review. For example,
to what extent can the attachment of conditions to approvals of local
zoning applications slow the deployment of infrastructure?
[[Page 21764]]
Are applicants encountering requirements to comply with codes that are
not reasonably related to health and safety? To the extent these
conditions present challenges to deployment, are there steps the
Commission can and should take to address such challenges?
3. Moratoria
15. Another concern relating to the ``reasonable periods of time''
for State and local agencies to act on siting applications is that some
agencies may be continuing to impose ``moratoria'' on processing such
applications, which inhibit the deployment of the infrastructure needed
to provide robust wireless services. If so, such moratoria might
contravene the 2014 Infrastructure Order, which clearly stated that the
shot clock deadlines for applications continue to ``run[] regardless of
any moratorium.'' The Commission explained that this conclusion was
``consistent with a plain reading of the 2009 Declaratory Ruling, which
specifies the conditions for tolling and makes no provision for
moratoria,'' and concluded that this means that ``applicants can
challenge moratoria in court when the shot clock expires without State
or local government action.'' The Commission sees no reason to depart
from this conclusion. The Commission asks commenters to submit specific
information about whether some localities are continuing to impose
moratoria or other restrictions on the filing or processing of wireless
siting applications, including refusing to accept applications due to
resource constraints or due to the pendency of state or local
legislation on siting issues, or insisting that applicants agree to
tolling arrangements. Commenters should identify the specific entities
engaging in such actions and describe the effect of such restrictions
on parties' ability to deploy or upgrade network facilities and provide
service to consumers. The Commission proposes to take any additional
actions necessary, such as issuing an order or declaratory ruling
providing more specific clarifications of the moratorium ban or
preempting specific State or local moratoria. Commenters should discuss
the benefits and detriments of any such additional measures and the
Commission's legal authority to adopt them.
B. Reexamining National Historic Preservation Act and National
Environmental Policy Act Review
16. In the following sections, the Commission undertakes a
comprehensive fresh look at its rules and procedures implementing the
National Environmental Policy Act (NEPA) and the National Historic
Preservation Act (NHPA) as they relate to the Commission's
implementation of Title III of the Act in the context of wireless
infrastructure deployment, given the ongoing evolution in wireless
infrastructure deployment towards smaller antennas and supporting
structures as well as more frequent collocation on existing structures.
2. Updating Our Approach to the NHPA and NEPA
a. Need for Action
17. Many wireless providers have raised concerns about the
Commission's environmental and historic preservation review processes
because, they say, these reviews increase the costs of deployment and
pose lengthy and often unnecessary delays, particularly for small
facility deployments. A large number of wireless providers complain
that the Tribal component of the Section 106 review process is
particularly cumbersome and costly. The Commission seeks concrete
information on the amount of time it takes for Tribal Nations to
complete the Section 106 review process and on the costs that Tribal
participation imposes on facilities deployment and on the provision of
service. The Commission also seeks comment and specific information on
the extent of benefits attributable to Tribal participation under the
Commission's Section 106 procedures, particularly in terms of
preventing damage to historic and culturally significant properties.
18. In addition, in May 2016, PTA-FLA filed a Petition for
Declaratory Ruling arguing that ``Tribal fees have become so exorbitant
in some cases to approach or even exceed the cost of actually erecting
the tower.'' The Commission incorporates PTA-FLA's petition into this
proceeding and seeks comment below on its proposals.
19. Some wireless providers contend that the SHPO review process
also results in significant delays in deployment. The Commission seeks
comment on the costs associated with SHPO review under the Commission's
historic preservation review process, including direct financial costs;
costs that delay imposes on carriers, tower owners, and the public; and
any other costs. What are the costs associated with SHPO review of
typical small facility deployments, and how do these compare with the
costs for tower construction projects? Does the SHPO review process
duplicate historic preservation review at the local level, particularly
when local review is conducted by a Certified Local Government or a
governmental authority that issues a Certificate of Appropriateness? In
addition, the Commission seeks comment on how often SHPO review results
in changes to a construction project due to a SHPO's identification of
potential harm to historic properties or confers other public benefits.
20. Some argue that NEPA compliance imposes extraordinarily high
costs on wireless providers and results in significant delays. The
Commission seeks comment on the costs and relative benefits of the
Commission's NEPA rules. What are the costs associated with NEPA
compliance, other than costs associated with historic preservation
review? How do the costs of NEPA compliance for tower construction
compare to such costs for small facilities, and what specific benefits
does the review confer?
21. Finally, some note that facilities requiring Federal review
must also undergo pre-construction review by local governmental
authorities, and assert that the inability to engage in these dual
reviews simultaneously can add significant time to the process. The
Commission seeks comment on whether local permitting, NEPA review, and
Section 106 review processes can feasibly be conducted simultaneously,
and on whether there are barriers preventing simultaneous review to the
extent it is feasible. To what extent do significant siting changes or
the potential for such changes during the local process make
simultaneous review impractical or inefficient? Alternatively, have
reviewing or consulting parties in the Commission's NEPA or Section 106
review processes declined to process an application until a local
permitting process is complete? The Commission seeks comment on whether
and under what circumstances simultaneous review would, on the whole,
minimize delays and provide for a more efficient process and what
steps, if any, the Commission should take to facilitate or enable such
simultaneous review.
b. Process Reforms
(i) Tribal Fees
22. In this section, the Commission identifies and seeks comment on
several issues relevant to fees paid to Tribal Nations in the Section
106 process. In addition to commenting on the legal framework and on
potential resolutions to the issues, the Commission encourages
commenters to provide specific factual information on current Tribal
and industry practices and on the
[[Page 21765]]
impacts of those practices on licensees/tower owners, Tribal Nations,
and timely deployment of advanced broadband services to all Americans.
The Commission further welcomes information on the practices of other
Federal agencies for the Commission's consideration.
23. Neither the NHPA nor the Advisory Council on Historic
Preservation's (ACHP) implementing regulations address whether and
under what circumstances Tribal Nations and Native Hawaiian
Organizations (NHO) may seek compensation in connection with their
participation in the Section 106 process. The ACHP has, however, issued
guidance on the subject in the form of a memorandum in 2001 and as part
of a handbook last issued in 2012. The ACHP 2001 Fee Guidance explains
that ``the agency or applicant is not required to pay the tribe for
providing its views.'' Further, ``[i]f the agency or applicant has made
a reasonable and good faith effort to consult with an Indian tribe and
the tribe refuses to respond without receiving payment, the agency has
met its obligation to consult and is free to move to the next step in
the Section 106 process.'' The guidance also states, however, that when
a Tribal Nation ``fulfills the role of a consultant or contractor''
when conducting reviews, ``the tribe would seem to be justified in
requiring payment for its services, just as any other contractor,'' and
the company or agency ``should expect to pay for the work product.'' As
explained below, the Commission seeks comment on how the ACHP's
guidance can be applied in the context of the Commission's existing
procedures and the proposals in this proceeding. Moreover, the
Commission seeks comment on practices or procedures of other Federal
agencies with respect to addressing the various roles a Tribal Nation
may play in the Section 106 process and how to identify those services
for which a Tribal Nation would be justified in seeking fees.
24. Circumstances When Fees Are Requested. The ACHP Handbook
clearly states that no ``portion of the NHPA or the ACHP's regulations
require[s] an agency or an applicant to pay for any form of tribal
involvement.'' The Commission notes that ACHP guidance permits payments
to a Tribal Nation when it fulfills a role similar to any other
consultant or contractor. At what point in the Tower Construction
Notification System (TCNS) process, if any, might a Tribal Nation act
as a contractor or consultant? The Commission seeks comment on any
facts that might affect the answer to that question. Does the
particular request of the applicant determine whether a Tribal Nation
is acting as a contractor or consultant? For example, the ACHP Handbook
notes that if an applicant asks for ``specific information and
documentation'' from a Tribal Nation, then the Tribal Nation is being
treated as a contractor or consultant. Should the Commission infer if
the applicant does not ask explicitly for such information and
documentation, then no payment is necessary? The Commission also seeks
comment on whether Tribal review for some types of deployment is less
in the nature of a contractor or consultant. For example, would
collocations or applications to site poles in rights of way be less
likely to require services outside of the Tribal Nation's statutory
role? In reviewing TCNS submissions for collocations or for siting
poles in rights of way, under what circumstances might a Tribal Nation
incur research costs for which it or another contractor might
reasonably expect compensation?
25. Once a Tribal Nation or NHO has been notified of a project, an
applicant must provide ``all information reasonably necessary for the
Indian tribe or NHO to evaluate whether Historic Properties of
religious and cultural significance may be affected'' and provide the
Tribal Nation or NHO with a reasonable opportunity to respond. The
Commission seeks comment on this requirement and on any modifications
the Commission can and should make. In particular, the Commission seeks
comment on whether the information in FCC Form 620 or FCC Form 621 is
sufficient to meet the requirement that ``all information reasonably
necessary . . .'' has been provided to the Tribal Nation. If not, are
there modifications to these forms that would enable the Commission to
meet this requirement? For example, should the FCC Form 620 and FCC
Form 621 be amended to address the cultural resources report that an
applicant prepares after completing a Field Survey? Additionally, the
Commission seeks comment on whether a Tribal Nation's or NHO's review
of the materials an applicant provides under the Nationwide
Programmatic Agreement (NPA) Section VII is ever, and if so under what
circumstances, the equivalent of asking the Tribal Nation or NHO to
provide ``specific information and documentation'' like a contractor or
consultant would, thereby entitling the Tribal Nation to seek
compensation under ACHP guidance and the NPA. If a Tribal Nation
chooses to conduct research, surveying, site visits or monitoring
absent a request of the applicant, would such efforts require payment
from the applicant? If an archaeological consultant conducted research,
surveying, site visits, or monitoring absent a request of the
applicant, would the applicant normally be required to pay that
contractor or consultant? The Commission seeks comment on how the ACHP
Handbook's statement that an ``applicant is free to refuse [payment]
just as it may refuse to pay for an archaeological consultant,'' as
well as its statement that ``the agency still retains the duties of
obtaining the necessary information [to fulfill its Section 106
obligations] through reasonable methods,'' impacts the Commission's
analysis of payments for Tribal participation.
26. The Commission notes that some Tribal Nations have indicated
that they assess a flat upfront fee for all applications as a way to
recover costs for their review of all TCNS applications, thereby
eliminating the administrative burden of calculating actual costs for
each case. The Commission seeks comment on this manner of cost recovery
and whether such cost recovery is consistent with ACHP's fee guidance
in its 2012 Handbook. Tribal Nations have also indicated that they have
experienced difficulties in collecting compensation after providing
service as a reason for upfront fee requests. The Commission seeks
comment on whether this concern could be alleviated if the Commission
clarifies when a Tribal Nation is acting under its statutory role and
when it is being hired as a contractor or consultant under the
Commission's process. The Commission also seeks comment on whether
there might be a more appropriate way to address this concern.
27. What steps, if any, can the Commission take to issue the
Commission's own guidance on the circumstances in the Commission's
process when the Tribal Nation is expressing its views and no
compensation by the agency or the applicant is required under ACHP
guidance, and the circumstances where the Tribal Nation is acting in
the role of a consultant or contractor and would be entitled to seek
compensation? The Commission seeks comment on what bright-line test, if
any, could be used. How does the reasonable and good faith standard for
identification factor, if at all, into when a Tribal request for fees
must be fulfilled in order to meet the standard? The Commission seeks
comment on how disputes between the parties might be resolved when a
Tribal Nation asserts that compensable effort is required to initiate
or conclude Section 106 review. The Commission seeks comment on whether
there are other
[[Page 21766]]
mechanisms to reduce the need for case-by-case analysis of fee
disputes. While the Commission seeks comment generally on its process,
the Commission also seeks comment particularly in the context of
deployment of infrastructure for advanced communications networks.
28. To the extent that supplementing current ACHP guidance would
help clarify when Tribal fees may be appropriate while both
facilitating efficient deployment and recognizing Tribal interests,
what input, if any, should the Commission provide to the ACHP on
potential modifications to ACHP guidance?
29. Amount of Fees Requested. One factor that appears to be driving
tower owners and licensees to seek Commission guidance in the fee area
is not the mere existence of fees, but instead the amount of
compensation sought by some Tribal Nations. How, if at all, does the
``reasonable and good faith'' standard for identification factor into
or temper the amount of fees a Tribal Nation may seek in compensation?
Are there any extant fee rates or schedules that might be of particular
use to applicants and Tribal Nations in avoiding or resolving disputes
regarding the amount of fees?
30. One party has requested in a petition that the Commission
establish a fee schedule or otherwise resolve fee disputes. The
Commission seeks comment on the legal framework applicable to this
request. How might the impact of fee disputes on the deployment of
infrastructure for advanced communications networks provide a basis for
establishing a fee schedule in this context using the Communications
Act as authority? Do the NHPA or other statutes limit the Commission's
ability to establish such a fee schedule, and if so, how? How might the
Miscellaneous Receipts Act (MRA) and General Accountability Office
(GAO) precedent on improper augmentation temper the parameters of the
Commission's actions in the area? The Commission seeks comment on
whether other Federal agencies have established fee schedules or
addressed the matter in any way, e.g., either formally or informally or
with respect to particular projects. How does due regard for Tribal
sovereignty and the Government's treaty obligations affect the
Commission's latitude for action in this area?
31. If the Commission were to establish a fee schedule, the
Commission seeks comment on what weight or impact it might have on the
Commission's process. For example, to what extent would fees at or
below the level established by a fee schedule be considered
presumptively reasonable? The Commission further seeks comment on what
legal framework would be relevant to resolution of disputes concerning
an upward or downward departure from the fee schedule. Should the fees
specified in such a schedule serve as the presumptive maximum an
applicant would be expected to pay, and under what circumstances might
an upward departure from the fee schedule be appropriate? In addition
to the concepts cited in the prior paragraph, are there other legal
principles at play in the resolution of a dispute over a fee that might
not arise in the context of merely setting a fee schedule? Have any
other Federal agencies formally or informally resolved fee disputes
between applicants and Tribal Nations, and if so, under what legal
parameters? The Commission also seeks comment on what categories of
services should be included, and whether the categories should be
general or more specific. How would the Commission establish the
appropriate level for fees? How could a fee schedule take into account
both regional differences and changes in costs over time, i.e.,
inflation? The Commission also seeks comment on whether it should only
establish a model fee schedule and whether that would be consistent
with the Tribal engagement requirements contemplated by Section 106.
32. Geographic Areas of Interest. Tribal Nations have increased
their areas of interest within the TCNS as they have improved their
understanding of their history and cultural heritage. As a result,
applicants must sometimes contact upwards of 30 different Tribal
Nations and complete the Section 106 process with each of them before
being able to build their project. The Commission seeks comment on
whether there are actions it can and should take to mitigate this
burden while complying with the Commission's obligation under the NHPA
and promoting the interests of all stakeholders. For example, the TCNS
allows Tribal Nations and NHOs to select areas of interest at either a
State or county level, but many Tribal Nations have asked to be
notified of any project within entire States, and in a few instances,
at least 20 different States. The Commission seeks comment on whether
it could and should encourage, or require, the specification of areas
of interest by county. The Commission also seeks comment on whether it
should require some form of certification for areas of interest, and if
so, what would be the default if a Tribal Nation fails to provide such
certification.
33. The Commission seeks comment on whether TCNS should be modified
to retain information on areas where concerns were raised and reviews
conducted, so that the next filer knows whether there is a concern
about cultural resources in that area or not. To what extent should
applicants be able to rely on prior clearances, given that resources
may continue to be added to the lists of historic properties? To the
extent the Commission considers allowing applicants to rely on prior
clearances, how should the Commission accommodate Tribal Nations'
changes to their areas of interest? The Commission further seeks
comment on how it can protect information connected to prior site
reviews, especially those areas where a tower was not cleared because
there may be artifacts. The Commission also seeks comment on whether it
can make any other changes to TCNS or the Commission's procedures to
improve the Tribal review process.
34. In addition, applicants routinely receive similar requests for
compensation or compensable services from multiple Tribal Nations.
While the Commission recognizes that each Tribal Nation is sovereign
and may have different concerns, the Commission seeks comment on when
it is necessary for an applicant to compensate multiple Tribal Nations
for the same project or for the same activity related to that project,
in particular site monitoring during construction. The Commission also
seeks comment on whether, when multiple Tribal Nations request
compensation to participate in the identification of Tribal historic
properties of religious and cultural significance, whether there are
mechanisms to gain efficiencies to ensure that duplicative review is
not conducted by each Tribal Nation. Is it always necessary to obtain
such services from all responding Tribal Nations that request to
provide the service, and if so, why? Might one Tribal Nation when
functioning in the role of a contractor perform certain services and
share the work product with other Tribal Nations, e.g., site
monitoring? Could an applicant hire a qualified independent site
monitor and share its work product with all Tribal Nations that are
interested? How would the Commission ensure that such a monitor is
qualified so that other Tribal Nations' interests will be adequately
considered? Should the Commission require that such a monitor meet some
established minimum standards? The Commission also seeks comment on
whether monitors should
[[Page 21767]]
be required to prepare a written report and provide a copy to
applicants.
35. Remedies and Dispute Resolution. While the ACHP has indicated
that Tribal concurrence is not necessary to find that no historic
properties of religious and cultural significance to Tribal Nations or
NHOs would be affected by an undertaking, the agency is responsible for
getting the information necessary to make that determination. The
Commission seeks comment on how these two directives interact. The ACHP
2001 Fee Guidance states that ``if an agency or applicant attempts to
consult with an Indian tribe and the tribe demands payment, the agency
or applicant may refuse and move forward.'' The Commission seeks
comment on whether and under what circumstances the Commission should
authorize a project to proceed when a Tribal Nation refuses to respond
to a Section 106 submittal without payment.
36. Under the NPA, when a Tribal Nation or NHO refuses to comment
on the presence or absence of effects to historic properties without
compensation, the applicant can refer the procedural disagreement to
the Commission. The Commission seeks comment on whether it can
adjudicate these referrals by evaluating whether the threshold of
``reasonable and good faith effort'' to identify historic properties
has been met, given that the Tribal Nation can always request
government-to-government consultation in the event of disagreement.
37. The Commission seeks comment on when it must engage in
government-to-government consultation to resolve fee disputes,
including when the compensation level for an identification activity
has been established by a Tribal government.
38. Negotiated Alternative. The Commission notes that since
September 2016, it has been facilitating meetings among Tribal and
industry stakeholders with the goal of resolving challenges to Tribal
requirements in the Section 106 review process, including disagreements
over Tribal fees. The Commission seeks comment on whether it should
continue seeking to develop consensus principles and, if so, how those
principles should be reflected in practice. For example, the Commission
seeks comment on whether it should seek to enter into agreements
regarding best practices with Tribal Nations and their representatives.
(ii) Other NHPA Process Issues
(ii) Other NHPA Process Issues
39. Lack of Response. As discussed above, while both State Historic
Preservation Officers (SHPOs) and Tribal Nations/NHOs are expected
ordinarily to respond to contacts within 30 days, the NPA and the
Commission's practice establish different processes to be followed when
responses are not timely. The Commission seeks comment on what
measures, if any, it should take to further speed either of these
review processes, either by amending the NPA or otherwise, while
assuring that potential effects on historic preservation are fully
evaluated. What effect would such proposals have on addressing Section
106-associated delays to deployment? Should different time limits apply
to different categories of construction, such as new towers, DAS and
small cells, and collocations? Have advances in communications during
the past decade, particularly with respect to communications via the
Internet, changed reasonable expectations as to timeliness of responses
and reasonable efforts to follow up?
40. With respect to Tribal Nations and NHOs, the Commission seeks
comment on whether the processes established by the 2005 Declaratory
Ruling and the Good Faith Protocol adequately ensure the completion of
Section 106 review when a Tribal Nation or NHO is non-responsive (See
Clarification of Procedures for Participation of Federally Recognized
Indian Tribes and Native Hawaiian Organizations Under the Nationwide
Programmatic Agreement, Declaratory Ruling, 20 FCC Rcd 16092 (2005)
(2005 Declaratory Ruling)). The Commission seeks comment on whether the
process can be revised in a manner that would permit applicants to
self-certify their compliance with the Commission's Section 106 process
and therefore proceed once they meet the Commission's notification
requirements, without requiring Commission involvement, in a manner
analogous to the ``deemed granted'' remedy for local governments. Would
such an approach be consistent with the NPA and with the Commission's
legal obligations? The Commission notes that Commission staff has
discovered on numerous occasions that applicants have failed to perform
their Tribal notifications as the Commission's processes require. If
the Commission were to permit applicants to self-certify that they have
completed their Tribal notification obligations, the Commission seeks
comment on how it could ensure that the certifications are truthful and
well-founded.
41. Batching. In the PTC Program Comment, the ACHP established a
streamlined process for certain facilities associated with building out
the Positive Train Control (PTC) railroad safety system (See Wireless
Telecommunications Bureau Announces Adoption of Program Comment to
Govern Review of Positive Train Control Wayside Facilities, WT Docket
13-240, Public Notice, 29 FCC Rcd 5340, Attachment (WTB 2014) (PTC
Program Comment)). Among other aspects of the PTC Program Comment,
eligible facilities may be submitted to SHPOs and through TCNS in
batches.
42. The Commission seeks comment on whether it should adopt either
a voluntary or mandatory batched submission process for non-PTC
facilities. What benefits could be realized through the use of
batching? What lessons can be learned from the experience with PTC
batching? What guidelines should the Commission provide, if any,
regarding the number of facilities to be included in a batch, their
geographic proximity, or the size of eligible facilities? Should there
be other conditions on eligibility, such as the nature of the location
or the extent of ground disturbance? Should different time limits or
fee guidelines, if any are adopted, apply to batched submissions? What
changes to the Commission's current TCNS and E-106 forms and processes
might facilitate batching? The Commission seeks comment on these and
any other policy or operational issues associated with batching of
proposed constructions.
43. Other NHPA Process Reforms. The Commission seeks comment on
whether there are additional procedural changes that the Commission
should consider to improve the Section 106 review process in a manner
that does not compromise its integrity.
(iii) NEPA Process
44. The Commission seeks comment on ways to improve and further
streamline its environmental compliance regulations while ensuring that
the Commission meets its NEPA obligations. For example, should the
Commission consider new categorical exclusions for small cells and DAS
facilities? If so, under what conditions and on what basis? Should the
Commission revise its rules so that an EA is not required for siting in
a floodplain when appropriate engineering or mitigation requirements
have been met? Are there other measures the Commission could take to
reduce unnecessary processing burdens consistent with NEPA?
c. NHPA Exclusions for Small Facilities
45. As part of the effort to expedite further the process for
deployment of wireless facilities, including small facility deployments
in particular, the Commission seeks comment below on whether it should
expand the categories of undertakings that are excluded from
[[Page 21768]]
Section 106 review. With respect to each of the potential exclusions
discussed below, the Commission seeks comment on the alternatives of
adopting additional exclusions directly in the Commission's rules, or
incorporating into the Commission's rules a program alternative
pursuant to the ACHP rules. The Commission may exclude activities from
Section 106 review through rulemaking upon determining that they have
no potential to cause effects to historic properties, assuming such
properties are present. Where potential effects are foreseeable and
likely to be minimal or not adverse, a program alternative under the
ACHP's rules may be used to exclude activities from Section 106 review.
The Commission seeks comment about whether the exclusions discussed
below meet the test for an exclusion in 36 CFR 800.3(a)(1) or whether
they would require a program alternative. To the extent that a program
alternative would be necessary, the Commission seeks comment on which
of the program alternatives authorized under the ACHP's rules would be
appropriate. Particularly, for those potential exclusions where a
program alternative would be required, commenters should discuss
whether a new program alternative is necessary or whether an amendment
to the NPA or a second amendment to the Collocation NPA would be the
appropriate procedural mechanism (See Wireless Telecommunications
Bureau Announces Execution of First Amendment to the Nationwide
Programmatic Agreement for the Collocation of Wireless Antennas, Public
Notice, 31 FCC Rcd 4617 (WTB 2016) (Collocation NPA)).
(i) Pole Replacements
46. The Commission seeks comment on whether it should take further
measures to tailor Section 106 review for pole replacements. As noted
above, wireless companies are increasingly deploying new infrastructure
using smaller antennas and supporting structures, including poles.
Under the existing NPA, pole replacements are excluded from Section 106
review if the pole being replaced meets the definition of a ``tower''
under the NPA (constructed for the sole or primary purpose of
supporting Commission-authorized antennas), provided that the pole
being replaced went through Section 106 review. The NPA also more
generally excludes construction in or near communications or utility
rights of way, including pole replacements, with certain limitations.
In particular, the construction is excluded if the facility does not
constitute a substantial increase in size over nearby structures and it
is not within the boundaries of a historic property. However, proposed
facilities subject to this exclusion must complete the process of
Tribal and NHO participation pursuant to the NPA.
47. The Commission seeks comment on whether additional steps to
tailor Section 106 review for pole replacements would help serve the
Commission's objective of facilitating wireless facility siting, while
creating no or foreseeably minimal potential for adverse impacts to
historic properties. For example, should the replacement of poles be
excluded from Section 106 review, regardless of whether a pole is
located in a historic district, provided that the replacement pole is
not ``substantially larger'' than the pole it is replacing (as defined
in the NPA)? The Commission envisions that this proposed exclusion
could address replacements for poles that were constructed for a
purpose other than supporting antennas, and thus are not ``towers''
within the NPA definition, but that also have (or will have) an antenna
attached to them. This exclusion would also apply to pole replacements
within rights of way, regardless of whether such replacements are in
historic districts. The Commission seeks comment on this proposal and
on whether any additional conditions would be appropriate. For example,
consistent with the existing exclusion for replacement towers,
commenters should discuss whether the exclusion should be limited to
projects for which construction and excavation do not expand the
boundaries of the leased or owned property surrounding the tower by
more than 30 feet in any direction. How would the ``leased or owned
property'' be defined within a utility right of way that may extend in
a linear manner for miles?
(ii) Rights of Way
48. The Commission seeks comment on whether to expand the NPA
exemption from Section 106 review for construction of wireless
facilities in rights of way. First, as noted above, current provisions
of the NPA exclude from Section 106 review construction in utility and
communications rights of way subject to certain limitations. The
Commission seeks comment on whether to adopt a similar exclusion from
Section 106 review for construction or collocation of communications
infrastructure in transportation rights of way and whether such an
exclusion would be warranted under 36 CFR 800.3(a)(1). The Commission
recognizes the Commission's previous determination in the NPA Order
that, given the concentration of historic properties near many highways
and railroads, it was not feasible to draft an exclusion for
transportation corridors that would both significantly ease the burdens
of the Section 106 process and sufficiently protect historic properties
(See Nationwide Programmatic Agreement Regarding the Section 106
National Historic Preservation Act Review Process, Report and Order, 20
FCC Rcd 1073 (2004) (NPA Order)). The Commission also recognized,
however, that transportation corridors are among the areas where
customer demand for wireless service is highest, and thus where the
need for new facilities is greatest.
49. In addition, since the NPA Order, wireless technologies have
evolved and many wireless providers now deploy networks that use
smaller antennas and compact radio equipment, including DAS and small
cell systems. In view of the changed circumstances that are present
today, the Commission finds that it is appropriate to reconsider
whether the Commission can exclude construction of wireless facilities
in transportation rights of way in a manner that guards against
potential effects on historic properties. The Commission seeks comment
on whether such an exclusion should be adopted, subject to certain
conditions that would protect historic properties, and, if so, what
those conditions should be. For example, should the Commission require
that poles be installed by auguring or that cable or fiber be installed
by plow or by directional drilling? What stipulations are needed if a
deployment may be adjacent to or on National Register-eligible or
listed buildings or structures, or in or near a historic district?
Would it be appropriate to have any limitation on height, in addition
to the requirement in the current rights of way exclusion that the
structures not constitute a substantial increase in size over existing
nearby structures? How should any new exclusion address Tribal and NHO
participation, especially for historic properties with archaeological
components? The Commission also seeks comment on how to define the
boundaries of a transportation right of way for these purposes.
50. In addition to considering whether to adopt an exclusion for
construction in transportation rights of way, the Commission also seeks
comment on whether to amend the current right of way exclusion to apply
regardless of whether the right of way is located on a historic
property. As noted above, the current right of way exclusion applies
[[Page 21769]]
only if (1) the construction does not involve a substantial increase in
size over nearby structures and (2) the deployment would not be located
within the boundaries of a historic property. The Commission seeks
comment on whether this provision should be amended to exclude from
Section 106 review construction of a wireless facility in a utility or
communications right of way located on a historic property, provided
that the facility would not constitute a substantial increase in size
over existing structures. To the extent that utility and communications
rights of way on historic properties already are lined with utility
poles and other infrastructure, would allowing additional
infrastructure have the potential to create effects? Commenters should
discuss whether, if the exclusion is extended to historic properties,
any additional conditions would be appropriate to address concerns
about potential effects, for example any further limitation on ground
disturbance. If so, how should ground disturbance be defined? The
Commission also seeks comment about whether Tribal and NHO
participation should continue to be required if an exclusion is adopted
for facilities constructed in utility or communications rights of way
on historic properties.
(iii) Collocations
51. Next, the Commission seeks comment on options to further tailor
the Commission's review of collocations of wireless antennas and
associated equipment. The Commission's rules have long excluded most
collocations of antennas from Section 106 review, recognizing the
benefits to historic properties that accrue from using existing support
structures rather than building new structures. The Commission has also
recently expanded these exclusions in the First Amendment to the
Collocation NPA to account for the smaller infrastructure associated
with new technologies. The Commission seeks comment now on whether
additional measures to further streamline review of collocations are
appropriate, whether as a matter of 36 CFR 800.3(a)(1) or under program
alternatives, including those discussed below and any other
alternatives.
52. First, the Commission seeks comment on whether some or all
collocations located between 50 and 250 feet from historic districts
should be excluded from Section 106 review. Under current provisions in
the Collocation NPA, Section 106 review continues to be required for
collocations on buildings and other non-tower structures located within
250 feet of the boundary of a historic district to the extent those
collocations do not meet the criteria established for small wireless
antennas. The Commission seeks comment on whether this provision should
be revised to exclude from Section 106 review collocations located up
to 50 feet from the boundary of a historic district. The Commission
seeks comment on this proposal and on whether any additional criteria
should apply to an exclusion under these circumstances.
53. Next, the Commission seeks comment on the participation of
Tribal Nations and NHOs in the review of collocations on historic
properties or in or near historic districts. Although, as stated above,
the Collocation NPA excludes most antenna collocations from routine
historic preservation review under Section 106, collocations on
historic properties or in or near historic districts are generally not
excluded, and in these cases, the NPA provisions for Tribal and NHO
participation continue to apply. Consistent with the Commission's
effort in this NPRM to take a fresh look at ways to improve and
facilitate the review process for wireless facility deployments, the
Commission seeks comment on whether to exclude from the NPA procedures
for Tribal and NHO participation collocations that are subject to
Section 106 review solely because they are on historic properties or in
or near historic districts, other than properties or districts
identified in the National Register listing or determination of
eligibility as having Tribal significance. For instance, should the
Commission exclude from review non-substantial collocations on existing
structures involving no ground disturbance or no new ground
disturbance, or non-substantial collocations on new structures in urban
rights of way or indoors? Should the Commission exclude from the NPA
provisions for Tribal and NHO participation collocations of facilities
on new structures in municipal rights of way in urban areas that
involve no new ground disturbance and no substantial increase in size
over other structures in the right of way? Should the Commission
exclude collocations of facilities on new structures in industrial
zones or facilities on new structures in or within 50 feet of existing
utility rights of way? Commenters should discuss whether collocations
in these circumstances have the potential to cause effects on
properties significant to Tribal history or culture. If so, are any
effects likely to be minimal or not adverse? Does the likelihood of
adverse effects depend on the circumstances of the collocation, for
example whether it will cause new ground disturbance? The Commission
also seeks comment on alternatives to streamline procedures for Tribal
and NHO participation in these cases, for example different guidance on
fees or deeming a Tribal Nation or NHO to have no interest if it does
not respond to a notification within a specified period of time.
54. Finally, the Commission seeks comment on whether the Commission
can or should exclude from routine historic preservation review certain
collocations that have received local approval. In particular, one
possibility would be to exclude a collocation from Section 106 review,
regardless of whether it is located on a historic property or in or
near a historic district, provided that: (1) The proposed collocation
has been reviewed and approved by a Certified Local Government that has
jurisdiction over the project; or (2) the collocation has received
approval, in the form of a Certificate of Appropriateness or other
similar formal approval, from a local historic preservation review body
that has reviewed the project pursuant to the standards set forth in a
local preservation ordinance and has found that the proposed work is
appropriate for the historic structure or district. By eliminating the
need to go through historic preservation review at both local and
Federal levels, creating an exclusion for collocations under these
circumstances might create significant efficiencies in the historic
preservation review process. The Commission seeks comment on this
option and on any alternatives, including whether any additional
conditions should apply and whether the process for engaging Tribal
Nations and NHOs for these collocations should continue to be required.
d. Scope of Undertaking and Action
55. The Commission also invites comment on whether it should
revisit its interpretation of the scope of the Commission's
responsibility to review the effects of wireless facility construction
under the NHPA and NEPA. In the Pre-Construction Review Order, the
Commission retained a limited approval authority over facility
construction to ensure environmental compliance in services that no
longer generally require construction permits (See Amendment of
Environmental Rules, Report and Order, 5 FCC Rcd 2942 (1990) (Pre-
Construction Review Order)). In light of the evolution of technology in
the last 27 years and the
[[Page 21770]]
corresponding changes in the nature and extent of wireless
infrastructure deployment, the Commission seeks comment on whether this
retention of authority is required and, if not, whether and how it
should be adjusted. Commenters should address the costs of NEPA and
NHPA compliance and its utility for environmental protection and
historic preservation for different classes of facilities, as well as
the extent of the Commission's responsibility to consider the effects
of construction associated with the provision of licensed services
under governing regulations and judicial precedent. For example, should
facilities constructed under site-specific licenses be distinguished
from those constructed under geographic area licenses? Can the
Commission distinguish DAS and small cell facilities from larger
structures for purposes of defining what constitutes the Commission's
action or undertaking, and on what basis? Should review be required
only when an EA triggering condition is met, as PTA-FLA suggests, and
if so how would the licensee or applicant determine whether an EA is
required in the absence of mandatory review? To the extent there is a
policy basis for distinguishing among different types of facilities,
would exclusions from or modifications to the NEPA and/or NHPA review
processes be a more appropriate tool to reflect these differences? Are
the standards for defining the scope of the Commission's undertaking or
major Federal action different under the NHPA than under NEPA? The
Commission also invites comment on whether to revisit the Commission's
determination that registration of antenna structures constitutes the
Commission's Federal action and undertaking so as to require
environmental and historic preservation review of the registered
towers' construction.
56. In addition, since the Commission's environmental rules were
adopted, an industry has grown of non-licensees that are in the
business of owning and managing communications sites, so that most
commercial wireless towers and even smaller communications support
structures are now owned from the time of their construction by non-
licensees. The Commission seeks comment on how this business model
affects the Commission's environmental and historic preservation
compliance regime. For example, how does the requirement to perform
environmental and historic preservation review prior to construction
apply when the licensee is not the tower owner? If the tower is built
pursuant to a contract or other understanding with a collocator, what
marketplace or other effects would result from interpreting the
environmental obligation to apply to the licensee? What about cases
where there is no such agreement or understanding? Does the requirement
in the Collocation NPA to perform review for collocations on towers
that did not themselves complete Section 106 review create problems in
administration or market distortions where the owner of the underlying
tower may not have been subject to the Commission's rules at the time
of construction? The Commission invites comment on these and any
related questions.
3. Collocations on Twilight Towers
57. There are a large number of towers that were built between the
adoption of the Collocation NPA in 2001 and when the NPA became
effective in 2005 that either did not complete Section 106 review or
for which documentation of Section 106 review is unavailable. These
towers are often referred to as ``Twilight Towers.'' The Commission
seeks comment on steps the Commission should take to develop a
definitive solution for the Twilight Towers issue. As the Commission
undertakes this process, the Commission's goal remains to develop a
solution that will allow Twilight Towers to be used for collocations
while respecting the integrity of the Section 106 process. Facilitating
collocations on these towers will serve the public interest by making
additional infrastructure available for wireless broadband services and
the FirstNet public safety broadband network. Moreover, facilitating
collocations on existing towers will reduce the need for new towers,
lessening the impact of new construction on the environment and on
locations with historical and cultural significance.
58. In particular, the Commission seeks comment on whether to treat
collocations on towers built between March 16, 2001 and March 7, 2005
that did not go through Section 106 historic preservation review in the
same manner as collocations on towers built prior to March 16, 2001
that did not go through review. Under this approach, collocations on
such towers would generally be excluded from Section 106 historic
preservation review, subject to the same exceptions that currently
apply for collocations on towers built on or prior to March 16, 2001,
i.e., collocations would be excluded from Section 106 review unless (1)
the mounting of the antenna will result in a substantial increase in
size of the tower; (2) the tower has been determined by the Commission
to have an adverse effect on one or more historic properties; (3) the
tower is the subject of a pending environmental review or related
proceeding before the Commission involving compliance with Section 106
of the National Historic Preservation Act; or (4) the collocation
licensee or the owner of the tower has received written or electronic
notification that the Commission is in receipt of a complaint from a
member of the public, a Tribal Nation, a SHPO or the ACHP that the
collocation has an adverse effect on one or more historic properties.
The Commission seeks comment on whether allowing collocations without
individual Section 106 review in these circumstances would rapidly make
available a significant amount of additional infrastructure to support
wireless broadband deployment without adverse impacts. In particular,
the Commission notes that the vast majority of towers that have been
reviewed under the NPA have had no adverse effects on historic
properties, and the Commission is aware of no reason to believe that
Twilight Towers are any different in that regard. Moreover, these
towers have been standing for 12 years or more and, in the vast
majority of cases, no adverse effects have been brought to the
Commission's attention.
59. Although the Commission seeks comment on such an approach, the
Commission is mindful of the concerns that have been expressed by
Tribal Nations and SHPOs throughout the discussions on this matter that
simply allowing collocations to proceed would not permit review in
those cases where an underlying tower may have undetermined adverse
effects. In particular, Tribal Nations have expressed concern that some
of the towers that were constructed between 2001 and 2005 may have
effects on properties of religious and cultural significance that have
not been noticed because their people are far removed from their
traditional homelands. The Commission seeks comment on these concerns.
As an initial matter, the Commission seeks comment on the Commission's
underlying assumption regarding the likelihood that Twilight Towers had
in their construction or continue to have adverse effects that have not
been noted. To the extent such effects exist, what is the likelihood
that they could be mitigated, and what is the likelihood that a new
collocation would exacerbate those effects?
60. The Commission further seeks comment on any alternative
approaches. For example, should the Commission
[[Page 21771]]
considers a tower-by-tower process under which proposed collocations on
Twilight Towers would trigger a streamlined, time-limited individual
review, along the lines of the process discussed in the 2016 Twilight
Towers draft term sheet? If the Commission were to adopt such an
approach, what elements should be included? For example, some in the
industry have recommended a tower-by-tower approach that is voluntary
and allows tower owners to submit a tower for review as market
conditions justify, involves same processes and systems that are used
for new and modified towers, asks ACHP to direct SHPOs and Tribal
Historic Preservation Officers (THPOs) to submit prompt comments on
such towers, and imposes no monetary penalty on tower owners. The
Commission seeks comment on whether to adopt this approach. Should
towers be categorized, such that, for example, public safety towers
receive priority for streamlined review? Alternatively, to what extent
are there existing processes that function efficiently to allow
collocations on Twilight Towers? Generally, given what the Commission
says above about the text of the Commission's rule, the Commission does
not anticipate taking any enforcement action or imposing any penalties
based on good faith deployment during the Twilight Tower period.
61. The Commission also seeks comment on the procedural vehicle
through which any solution should be implemented. Would permitting
collocation on Twilight Towers require either an amendment to the
Collocation NPA or another program alternative under 36 CFR 800.14(b)?
Is one form of program alternative preferable to another, and if so,
why? If the Commission were to pursue a streamlined or other
alternative review procedure, would that require an amendment to the
Collocation NPA or other program alternative?
4. Collocations on Other Non-Compliant Towers
62. Finally, the Commission invites comment on whether the
Commission should take any measures, and if so what, to facilitate
collocations on non-compliant towers constructed after March 7, 2005.
The Commission notes that unlike in the case of the Twilight Towers,
the rules in effect when these towers were constructed explicitly
required compliance with the review procedures set forth in the NPA.
The Commission invites commenters to propose procedures, including
review processes, time frames, criteria for eligibility, and other
measures, to address any or all of these towers.
II. Notice of Inquiry
63. In this section, the Commission examines and seeks comment on
the scope of Sections 253(a) and 332(c)(7) of the Communications Act
and any new or updated guidance or determinations the Commission should
provide pursuant to its authority under those provisions, including
through the issuance of a Declaratory Ruling.
A. Intersection of Sections 253(a) and 332(c)(7)
64. Both Section 253(a) and Section 332(c)(7) ban State or local
regulations that ``prohibit or have the effect of prohibiting''
service. Both sections also proscribe State and local restrictions that
unreasonably discriminate among service providers. These sections thus
appear to impose the same substantive obligations on State and local
governments, though the remedies provided under each are different.
There are court decisions holding that ``the legal standard is the same
under either [Section 253 or 332(c)(7)],'' and that there is ``nothing
suggesting that Congress intended a different meaning of the text
`prohibit or have the effect of prohibiting' in the two statutory
provisions, enacted at the same time, in the same statute.'' The
Commission seeks comment on whether there is any reason to conclude
that the substantive obligations of these two provisions differ, and if
so in what way. Do they apply the same standards in the same or similar
situations? Do they impose different standards in different situations?
The Commission invites commenters to explain how and why. The
Commission also seeks comment on the interaction between Sections 253
and 332(c)(7).
B. ``Prohibit or Have the Effect of Prohibiting''
65. A number of courts have interpreted the phrase ``prohibit or
have the effect of prohibiting,'' as it appears in both Sections 253(a)
and 332(c)(7), but they have not been consistent in their views. Under
Section 253(a), the First, Second, and Tenth Circuits have held that a
State or local legal requirement would be subject to preemption if it
may have the effect of prohibiting the ability of an entity to provide
telecommunications services, while the Eighth and Ninth Circuits have
erected a higher burden and insisted that ``a plaintiff suing a
municipality under Section 253(a) must show actual or effective
prohibition, rather than the mere possibility of prohibition.'' By the
same token, different courts have imposed inconsistent burdens of proof
to establish that localities violated Section 332(c)(7) by improperly
denying siting application. The First, Fourth, and Seventh Circuits
have imposed a ``heavy burden'' of proof on applicants to establish a
lack of alternative feasible sites, requiring them to show ``not just
that this application has been rejected but that further reasonable
efforts to find another solution are so likely to be fruitless that it
is a waste of time even to try.'' By contrast, the Second, Third, and
Ninth Circuits have held that an applicant must show only that its
proposed facilities are the ``least intrusive means'' for filling a
coverage gap in light of the aesthetic or other values that the local
authority seeks to serve. The Commission invites commenters to address
these issues of statutory interpretation so the Commission may have the
benefit of a full range of views from the interested parties as the
Commission determines what action, if any, the Commission should take
to resolve them. The Commission also invites parties to address whether
there is some new theory altogether that the Commission should
consider.
66. The Commission also seeks comment on the proper role of
aesthetic considerations in the local approval process. The use of
aesthetic considerations is not inherently improper; many courts have
held that municipalities may, without necessarily violating Section
332(c)(7), deny siting applications on the grounds that the proposed
facilities would adversely affect an area's aesthetic qualities,
provided that such decisions are not founded merely on ``generalized
concerns'' about aesthetics but are supported by ``substantial evidence
contained in a written record'' about the impact of specific facilities
on particular geographic areas or communities. The Commission seeks
comment on whether it should provide more specific guidance on how to
distinguish legitimate denials based on evidence of specific aesthetic
impacts of proposed facilities, on the one hand, from mere
``generalized concerns,'' on the other.
67. Finally, the Commission notes that WTB's Streamlining PN sought
comment on application processing fees and charges for the use of
rights of way. The Commission invites parties to comment on similar
issues relating to the application of section 332(c)(7)'s ``prohibit or
have the effect of prohibiting'' language on infrastructure siting on
properties beyond rights of way. For instance, the Commission
[[Page 21772]]
seeks comment on the up-front application fees that State or local
government agencies impose on parties submitting applications for
authority to construct or modify wireless facilities in locations other
than rights of way. Can those fees, in some instances, ``prohibit or
have the effect of prohibiting'' service? For instance, are those fees
cost based? If commenters believe a particular State or locality's
application fees are excessive, the Commission invites them to provide
detailed explanations for that view and to explain how such fees might
be inconsistent with section 332 of the Act. Relatedly, do wireless
siting applicants pay fees comparable to those paid by other parties
for similar applications, and if not, are there instances in which such
fees violate section 332's prohibition of regulations that
``unreasonably discriminate among providers of functionally equivalent
services''?
68. The Commission also seeks similar information about the
recurring charges--as well as the other terms, conditions, or
restrictions--that State or local government agencies impose for the
siting of wireless facilities on publicly owned or controlled lands,
structures such as light poles or water towers, or other resources
other than rights of way. Do such fees or practices ``prohibit or have
the effect of prohibiting'' service, or do they ``unreasonably
discriminate among providers of functionally equivalent services? Are
there disparities between the charges or other restrictions imposed on
some parties by comparison with those imposed on others? Do any
agencies impose charges or other requirements that commenting parties
believe to be particularly burdensome, such as franchise fees based on
a percentage of revenues? Are other aspects of the process for
obtaining approval particularly burdensome? Commenters should explain
their concerns in sufficient detail to allow State and local
governments to respond and to allow the Commission to determine whether
it should provide guidance on these issues.
C. ``Regulations'' and ``Other Legal Requirements''
69. The terms of Section 253(a) specify that a ``statute,''
``regulation,'' or ``other legal requirement'' may be preempted, while
the terms of Section 332(c)(7) refer to ``decisions'' concerning
wireless facility siting and the ``regulation'' of siting. The
Commission seeks comment on how those terms should be interpreted. For
instance, do the terms ``statute,'' ``regulation,'' and ``legal
requirement'' in Section 253(a) have essentially the same meaning as
the parallel terms ``regulation'' and ``decisions'' in Section
332(c)(7)? The Commission has held in the past that the terminology in
Section 253(a) quoted above ``recognizes that State and local barriers
to entry could come from sources other than statutes and regulations''
and ``was meant to capture a broad range of state and local actions''
that could pose barriers to entry--including agreements with a single
party that result in depriving other parties of access to rights of
way. The Commission believes there is a reasonable basis for concluding
that the same broad interpretation should apply to the language of
Section 332, and the Commission seeks comment on this analysis.
70. The Commission also seeks comment on the extent to which these
statutory provisions apply to States and localities acting in a
proprietary versus regulatory capacity, and on what constitutes a
proprietary capacity. In the 2014 Infrastructure Order, the Commission
opined that the Spectrum Act and the rules and policies implementing it
apply to localities' actions on siting applications when acting in
their capacities as land-use regulators, but not when acting as
managers of land or property that they own and operate primarily in
their proprietary roles. The Order cited cases indicating that
``Sections 253 and 332(c)(7) do not preempt non-regulatory decisions of
a State or locality acting in its proprietary capacity.'' The
Commission seeks comment on whether the Commission should reaffirm or
modify the 2014 Infrastructure Order's characterization of the
distinction between State and local governments' regulatory roles
versus their proprietary roles as ``owners'' of public resources. How
should the line be drawn in the context of properties such as public
rights of way (e.g., highways and city streets), municipally-owned
lampposts or water towers, or utility conduits? Should a distinction
between regulatory and proprietary be drawn on the basis of whether
State or local actions advance those government entities' interests as
participants in a particular sphere of economic activity (proprietary),
by contrast with their interests in overseeing the use of public
resources (regulatory)? What about requests for proposals (RFPs) or
contracts involving state or local entities? The Commission invites
commenters to identify any States or local governments that have
imposed restrictions on the installation of new facilities or the
upgrading of existing facilities in public rights of way, and describe
those restrictions and their impacts. Do such restrictions have
characteristics or effects that are comparable to moratoria on
processing applications?
D. Unreasonable Discrimination
71. The Commission seeks comment on whether certain types of
facially neutral criteria that some localities may be applying when
reviewing and evaluating wireless siting applications could run afoul
of Section 253, Section 332(c)(7), or another provision of the Act. For
instance, the Commission asks commenters to identify any State or local
regulations that single out telecom-related deployment for more
burdensome treatment than non-telecom deployments that have the same or
similar impacts on land use, to explain how, and to address whether
this type of asymmetric treatment violates Federal law.
72. The Commission also seeks comment on the extent to which
localities may be seeking to restrict the deployment of utility or
communications facilities above ground and attempt to relocate
electric, wireline telephone, and other utility lines in that area to
underground conduits. Obviously, it is impossible to operate wireless
network facilities underground. Undergrounding of utility lines seems
to place a premium on access to those facilities that remain above
ground, such as municipally-owned street lights. Is there a particular
way that Section 253 or 332(c)(7) should apply in that circumstance?
More generally, the Commission seeks comment on parties' experience
with undergrounding requirements, including how wireless facilities
have been treated in communities that require undergrounding of
utilities. The Commission also seeks comment on whether and how the
Communications Act applies in such instances. For instance, may
localities deny applications to construct new above-ground wireless
structures in such areas, or deny applications to install collocated
equipment on structures that may eventually be dismantled? Could
``undergrounding'' plans ``prohibit or have the effect of prohibiting''
service by causing suitable sites for wireless antennas to become
scarce? The Commission seeks comment on parties' experiences with
undergrounding generally.
73. Section 332(c)(7)(B)(i)(I) prohibits States and localities from
unreasonably discriminating among providers of ``functionally
equivalent services.'' The
[[Page 21773]]
Commission seeks comment on whether parties have encountered such
discrimination, and ask that they provide specific examples. The
Commission also seeks comment on what constitutes ``functionally
equivalent services'' for this purpose. For instance, should entities
that are considered to be utilities be viewed as an appropriate
comparison? For the limited purpose of applying Section
332(c)(7)(B)(i)(I), can wireless and wireline services be considered
``functionally equivalent'' in some circumstances? Which types of
discrimination are reasonable and which are unreasonable?
III. Procedural Matters
A. Initial Regulatory Flexibility Analysis
74. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), the Commission has prepared an Initial Regulatory
Flexibility Analysis (IRFA) concerning the possible significant
economic impact on small entities of the policies and rules proposed in
this NPRM. Written public comments are requested on this IRFA. Comments
must be identified as responses to the IRFA and must be filed by the
deadlines for comments provided above. The Commission will send a copy
of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of
the Small Business Administration (SBA).
1. Need for, and Objectives of, the Proposed Rules
75. In this NPRM, the Commission examines how it may further remove
or reduce regulatory impediments to wireless infrastructure investment
and deployment in order to promote the rapid deployment of advanced
mobile broadband service to all Americans. First, the NPRM seeks
comment on certain measures or clarifications to expedite State and
local processing of wireless facility siting applications pursuant to
the Commission's authority under 332 of the Communications Act,
including a ``deemed granted'' remedy in cases of unreasonable delay.
Next, the Commission undertakes a comprehensive fresh look at the
Commission's rules and procedures implementing the National
Environmental Policy Act (NEPA) and Section 106 of the National
Historic Preservation Act (Section 106). As part of this review, the
Commission seeks comment on potential measures to improve or clarify
the Commission's Section 106 process, including in the area of fees
paid to Tribal Nations in connection with their participation in the
process, cases involving lack of response by relevant parties including
affected Tribal Nations, and batched processing. The Commission also
seeks comment on possible additional exclusions from Section 106
review, and the Commission reexamines the scope of the Commission's
responsibility to review the effects of wireless facility construction
under the NHPA and NEPA. Finally, the NPRM seeks comment on so-called
``Twilight Towers,'' wireless towers that were constructed during a
time when the process for Section 106 review was unclear, that may not
have completed Section 106 review as a result, and that are therefore
not currently available for collocation without first undergoing
review. The Commission seeks comment on various options addressing
Twilight Towers, including whether to exclude collocations on such
towers from Section 106 historic preservation review, subject to
certain exceptions, or alternatively subjecting collocations on
Twilight Towers to a streamlined, time-limited review. The Commission
expects the measures on which the Commission seeks comment in this NPRM
to be only a part of the Commission's efforts to expedite wireless
infrastructure deployment and the Commission invites commenters to
propose other innovative approaches to expediting deployment.
2. Legal Basis
76. The authority for the actions taken in this NPRM is contained
in Sections 1, 2, 4(i), 7, 201, 253, 301, 303, 309, and 332 of the
Communications Act of 1934, as amended 47 U.S.C. 151, 152, 154(i), 157,
201, 253, 301, 303, 309, and 332, Section 102(C) of the National
Environmental Policy Act of 1969, as amended, 42 U.S.C. 4332(C), and
Section 106 of the National Historic Preservation Act of 1966, as
amended, 54 U.S.C. 306108.
3. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
77. The RFA directs agencies to provide a description of, and where
feasible, an estimate of the number of small entities that may be
affected by the proposed rules and policies, if adopted. The RFA
generally defines the term ``small entity'' as having the same meaning
as the terms ``small business,'' ``small organization,'' and ``small
governmental jurisdiction.'' In addition, the term ``small business''
has the same meaning as the term ``small business concern'' under the
Small Business Act. A ``small business concern'' is one which: (1) Is
independently owned and operated; (2) is not dominant in its field of
operation; and (3) satisfies any additional criteria established by the
SBA. Below, the Commission provides a description of such small
entities, as well as an estimate of the number of such small entities,
where feasible.
78. The NPRM seeks comment on potential rule changes regarding
State, local, and Federal regulation of the siting and deployment of
communications towers and other wireless facilities. Due to the number
and diversity of owners of such infrastructure and other responsible
parties, particularly small entities that are Commission licensees as
well as non-licensees, the Commission classifies and quantifies them in
the remainder of this section. The NPRM seeks comment on the
Commission's description and estimate of the number of small entities
that may be affected by the Commission's actions in this proceeding.
79. Small Businesses, Small Organizations, Small Governmental
Jurisdictions. The Commission's actions, over time, may affect small
entities that are not easily categorized at present. The Commission
therefore describes here, at the outset, three comprehensive small
entity size standards that could be directly affected herein. First,
while there are industry specific size standards for small businesses
that are used in the regulatory flexibility analysis, according to data
from the SBA's Office of Advocacy, in general a small business is an
independent business having fewer than 500 employees. These types of
small businesses represent 99.9% of all businesses in the United States
which translates to 28.8 million businesses. Next, the type of small
entity described as a ``small organization'' is generally ``any not-
for-profit enterprise which is independently owned and operated and is
not dominant in its field.'' Nationwide, as of 2007, there were
approximately 1,621,215 small organizations. Finally, the small entity
described as a ``small governmental jurisdiction'' is defined generally
as ``governments of cities, towns, townships, villages, school
districts, or special districts, with a population of less than fifty
thousand.'' U.S. Census Bureau data published in 2012 indicate that
there were 89,476 local governmental jurisdictions in the United
States. The Commission estimates that, of this total, as many as 88,761
entities may qualify as ``small governmental jurisdictions.'' Thus, the
Commission estimates that most governmental jurisdictions are small.
80. Wireless Telecommunications Carriers (except Satellite). This
industry
[[Page 21774]]
comprises establishments engaged in operating and maintaining switching
and transmission facilities to provide communications via the airwaves.
Establishments in this industry have spectrum licenses and provide
services using that spectrum, such as cellular services, paging
services, wireless internet access, and wireless video services. The
appropriate size standard under SBA rules is that such a business is
small if it has 1,500 or fewer employees. For this industry, U.S.
Census data for 2012 show that there were 967 firms that operated for
the entire year. Of this total, 955 firms had employment of 999 or
fewer employees and 12 had employment of 1000 employees or more. Thus
under this category and the associated size standard, the Commission
estimates that the majority of wireless telecommunications carriers
(except satellite) are small entities.
81. The Commission's own data--available in its Universal Licensing
System--indicate that, as of October 25, 2016, there are 280 Cellular
licensees that will be affected by the Commission's actions today. The
Commission does not know how many of these licensees are small, as the
Commission does not collect that information for these types of
entities. Similarly, according to Commission data, 413 carriers
reported that they were engaged in the provision of wireless telephony,
including cellular service, Personal Communications Service (PCS), and
Specialized Mobile Radio (SMR) Telephony services. Of this total, an
estimated 261 have 1,500 or fewer employees and 152 have more than
1,500 employees. Thus, using available data, the Commission estimates
that the majority of wireless firms can be considered small.
82. Personal Radio Services. Personal radio services provide short-
range, low-power radio for personal communications, radio signaling,
and business communications not provided for in other services.
Personal radio services include services operating in spectrum licensed
under Part 95 of the Commission's rules. These services include Citizen
Band Radio Service, General Mobile Radio Service, Radio Control Radio
Service, Family Radio Service, Wireless Medical Telemetry Service,
Medical Implant Communications Service, Low Power Radio Service, and
Multi-Use Radio Service. There are a variety of methods used to license
the spectrum in these rule parts, from licensing by rule, to
conditioning operation on successful completion of a required test, to
site-based licensing, to geographic area licensing. All such entities
in this category are wireless, therefore the Commission applies the
definition of Wireless Telecommunications Carriers (except Satellite),
pursuant to which the SBA's small entity size standard is defined as
those entities employing 1,500 or fewer persons. For this industry,
U.S. Census data for 2012 show that there were 967 firms that operated
for the entire year. Of this total, 955 firms had employment of 999 or
fewer employees and 12 had employment of 1000 employees or more. Thus
under this category and the associated size standard, the Commission
estimates that the majority of wireless telecommunications carriers
(except satellite) are small entities. The Commission notes that many
of the licensees in this category are individuals and not small
entities. In addition, due to the mostly unlicensed and shared nature
of the spectrum utilized in many of these services, the Commission
lacks direct information upon which to base an estimation of the number
of small entities that may be affected by the Commission's actions in
this proceeding.
83. Public Safety Radio Licensees. Public Safety Radio Pool
licensees as a general matter, include police, fire, local government,
forestry conservation, highway maintenance, and emergency medical
services. Because of the vast array of public safety licensees, the
Commission has not developed a small business size standard
specifically applicable to public safety licensees. For this category
the Commission applies the SBA's definition for Wireless
Telecommunications Carriers (except Satellite) which encompasses
business entities engaged in radiotelephone communications and for
which the small entity size standard is defined as those entities
employing 1,500 or fewer persons. For this industry, U.S. Census data
for 2012 show that there were 967 firms that operated for the entire
year. Of this total, 955 firms had employment of 999 or fewer employees
and 12 had employment of 1000 employees or more. Thus under this
category and the associated size standard, the Commission estimates
that the majority of wireless telecommunications carriers (except
satellite) are small entities. With respect to local governments, in
particular, since many governmental entities comprise the licensees for
these services, the Commission includes under public safety services
the number of government entities affected. According to Commission
records, there are a total of approximately 133,870 licenses within
these services. There are 3,121 licenses in the 4.9 GHz band, based on
an FCC Universal Licensing System search of March 29, 2017. The
Commission estimates that fewer than 2,442 public safety radio
licensees hold these licenses because certain entities may have
multiple licenses.
84. Private Land Mobile Radio Licensees. Private land mobile radio
(PLMR) systems serve an essential role in a vast range of industrial,
business, land transportation, and public safety activities. These
radios are used by companies of all sizes operating in all U.S.
business categories. Because of the vast array of PLMR users, the
Commission has not developed a small business size standard
specifically applicable to PLMR users. The SBA's definition for
Wireless Telecommunications Carriers (except Satellite) which
encompasses business entities engaged in radiotelephone communications
and for which the small entity size standard is defined as those
entities employing 1,500 or fewer persons. For this industry, U.S.
Census data for 2012 show that there were 967 firms that operated for
the entire year. Of this total, 955 firms had employment of 999 or
fewer employees and 12 had employment of 1000 employees or more. Thus
under this category and the associated size standard, the Commission
estimates that the majority of wireless telecommunications carriers
(except satellite) are small entities. According to the Commission's
records, there are a total of 3,374 licenses in the frequencies range
173.225 MHz to 173.375 MHz, which is the range affected by this NPRM.
The Commission does not require PLMR licensees to disclose information
about number of employees, and does not have information that could be
used to determine how many PLMR licensees constitute small entities
under this definition. The Commission however believes that a
substantial number of PLMR licensees may be small entities despite the
lack of specific information.
85. Multiple Address Systems. Entities using Multiple Address
Systems (MAS) spectrum, in general, fall into two categories: (1) Those
using the spectrum for profit-based uses, and (2) those using the
spectrum for private internal uses.
86. With respect to the first category, Profit-based Spectrum use,
the size standards established by the Commission define ``small
entity'' for MAS licensees as an entity that has average annual gross
revenues of less than $15 million over the three previous calendar
years. A ``Very small business'' is defined as an entity that, together
with its affiliates, has average annual gross revenues of not more than
$3
[[Page 21775]]
million over the preceding three calendar years. The SBA has approved
these definitions. The majority of MAS operators are licensed in bands
where the Commission has implemented a geographic area licensing
approach that requires the use of competitive bidding procedures to
resolve mutually exclusive applications. The Commission's licensing
database indicates that, as of April 16, 2010, there were a total of
11,653 site-based MAS station authorizations. Of these, 58
authorizations were associated with common carrier service. In
addition, the Commission's licensing database indicates that, as of
April 16, 2010, there were a total of 3,330 Economic Area market area
MAS authorizations. The Commission's licensing database also indicates
that, as of April 16, 2010, of the 11,653 total MAS station
authorizations, 10,773 authorizations were for private radio service.
In 2001, an auction for 5,104 MAS licenses in 176 EAs was conducted.
Seven winning bidders claimed status as small or very small businesses
and won 611 licenses. In 2005, the Commission completed an auction
(Auction 59) of 4,226 MAS licenses in the Fixed Microwave Services from
the 928/959 and 932/941 MHz bands. Twenty-six winning bidders won a
total of 2,323 licenses. Of the 26 winning bidders in this auction,
five claimed small business status and won 1,891 licenses.
87. With respect to the second category, Internal Private Spectrum
use consists of entities that use, or seek to use, MAS spectrum to
accommodate their own internal communications needs, MAS serves an
essential role in a range of industrial, safety, business, and land
transportation activities. MAS radios are used by companies of all
sizes, operating in virtually all U.S. business categories, and by all
types of public safety entities. For the majority of private internal
users, the definition developed by the SBA would be more appropriate
than the Commission's definition. The applicable definition of small
entity is the ``Wireless Telecommunications Carriers (except
satellite)'' definition under the SBA rules. Under that SBA category, a
business is small if it has 1,500 or fewer employees. For this
category, U.S. Census data for 2012 show that there were 967 firms that
operated for the entire year. Of this total, 955 firms had employment
of 999 or fewer employees and 12 had employment of 1000 employees or
more. Thus under this category and the associated small business size
standard, the Commission estimates that the majority of wireless
telecommunications carriers (except satellite) are small entities that
may be affected by the Commission's action.
88. Broadband Radio Service and Educational Broadband Service.
Broadband Radio Service systems, previously referred to as Multipoint
Distribution Service (MDS) and Multichannel Multipoint Distribution
Service (MMDS) systems, and ``wireless cable,'' transmit video
programming to subscribers and provide two-way high speed data
operations using the microwave frequencies of the Broadband Radio
Service (BRS) and Educational Broadband Service (EBS) (previously
referred to as the Instructional Television Fixed Service (ITFS)).
89. BRS--In connection with the 1996 BRS auction, the Commission
established a small business size standard as an entity that had annual
average gross revenues of no more than $40 million in the previous
three calendar years. The BRS auctions resulted in 67 successful
bidders obtaining licensing opportunities for 493 Basic Trading Areas
(BTAs). Of the 67 auction winners, 61 met the definition of a small
business. BRS also includes licensees of stations authorized prior to
the auction. At this time, the Commission estimates that of the 61
small business BRS auction winners, 48 remain small business licensees.
In addition to the 48 small businesses that hold BTA authorizations,
there are approximately 392 incumbent BRS licensees that are considered
small entities. After adding the number of small business auction
licensees to the number of incumbent licensees not already counted, the
Commission finds that there are currently approximately 440 BRS
licensees that are defined as small businesses under either the SBA or
the Commission's rules.
90. In 2009, the Commission conducted Auction 86, the sale of 78
licenses in the BRS areas. The Commission offered three levels of
bidding credits: (i) A bidder with attributed average annual gross
revenues that exceed $15 million and do not exceed $40 million for the
preceding three years (small business) received a 15 percent discount
on its winning bid; (ii) a bidder with attributed average annual gross
revenues that exceed $3 million and do not exceed $15 million for the
preceding three years (very small business) received a 25 percent
discount on its winning bid; and (iii) a bidder with attributed average
annual gross revenues that do not exceed $3 million for the preceding
three years (entrepreneur) received a 35 percent discount on its
winning bid. Auction 86 concluded in 2009 with the sale of 61 licenses.
Of the ten winning bidders, two bidders that claimed small business
status won 4 licenses; one bidder that claimed very small business
status won three licenses; and two bidders that claimed entrepreneur
status won six licenses.
91. EBS--The SBA's Cable Television Distribution Services small
business size standard is applicable to EBS. There are presently 2,436
EBS licensees. All but 100 of these licenses are held by educational
institutions. Educational institutions are included in this analysis as
small entities. Thus, the Commission estimates that at least 2,336
licensees are small businesses. Since 2007, Cable Television
Distribution Services have been defined within the broad economic
census category of Wired Telecommunications Carriers. Wired
Telecommunications Carriers are comprised of establishments primarily
engaged in operating and/or providing access to transmission facilities
and infrastructure that they own and/or lease for the transmission of
voice, data, text, sound, and video using wired telecommunications
networks. Transmission facilities may be based on a single technology
or a combination of technologies. The SBA's small business size
standard for this category is all such firms having 1,500 or fewer
employees. U.S. Census data for 2012 shows that there were 3,117 firms
that operated that year. Of this total, 3,083 operated with fewer than
1,000 employees. Thus, under this size standard, the majority of firms
in this industry can be considered small. To gauge small business
prevalence for these cable services the Commission must, however, use
the most current census data for the previous category of Cable and
Other Program Distribution and its associated size standard which was
all such firms having $13.5 million or less in annual receipts.
According to U.S. Census Bureau data for 2007, there were a total of
996 firms in this category that operated for the entire year. Of this
total, 948 firms had annual receipts of under $10 million, and 48 firms
had receipts of $10 million or more but less than $25 million. Thus,
the majority of these firms can be considered small.
92. Location and Monitoring Service (LMS). LMS systems use non-
voice radio techniques to determine the location and status of mobile
radio units. For purposes of auctioning LMS licenses, the Commission
has defined a ``small business'' as an entity that, together with
controlling interests and affiliates, has average annual gross revenues
for the preceding three years not to exceed $15 million. A ``very small
business'' is
[[Page 21776]]
defined as an entity that, together with controlling interests and
affiliates, has average annual gross revenues for the preceding three
years not to exceed $3 million. These definitions have been approved by
the SBA. An auction for LMS licenses commenced on February 23, 1999 and
closed on March 5, 1999. Of the 528 licenses auctioned, 289 licenses
were sold to four small businesses.
93. Television Broadcasting. This Economic Census category
``comprises establishments primarily engaged in broadcasting images
together with sound.'' These establishments operate television
broadcast studios and facilities for the programming and transmission
of programs to the public. These establishments also produce or
transmit visual programming to affiliated broadcast television
stations, which in turn broadcast the programs to the public on a
predetermined schedule. Programming may originate in their own studio,
from an affiliated network, or from external sources. The SBA has
created the following small business size standard for such businesses:
Those having $38.5 million or less in annual receipts. The 2012
Economic Census reports that 751 firms in this category operated in
that year. Of that number, 656 had annual receipts of $25,000,000 or
less, 25 had annual receipts between $25,000,000 and $49,999,999 and 70
had annual receipts of $50,000,000 or more. Based on this data the
Commission therefore estimate that the majority of commercial
television broadcasters are small entities under the applicable SBA
size standard.
94. The Commission has estimated the number of licensed commercial
television stations to be 1,384. Of this total, 1,264 stations (or
about 91 percent) had revenues of $38.5 million or less, according to
Commission staff review of the BIA Kelsey Inc. Media Access Pro
Television Database (BIA) on February 24, 2017, and therefore these
licensees qualify as small entities under the SBA definition. In
addition, the Commission has estimated the number of licensed
noncommercial educational (NCE) television stations to be 394.
Notwithstanding, the Commission does not compile and otherwise does not
have access to information on the revenue of NCE stations that would
permit it to determine how many such stations would qualify as small
entities.
95. The Commission notes, however, that in assessing whether a
business concern qualifies as ``small'' under the above definition,
business (control) affiliations must be included. The Commission's
estimate, therefore likely overstates the number of small entities that
might be affected by the Commission's action, because the revenue
figure on which it is based does not include or aggregate revenues from
affiliated companies. In addition, another element of the definition of
``small business'' requires that an entity not be dominant in its field
of operation. The Commission is unable at this time to define or
quantify the criteria that would establish whether a specific
television broadcast station is dominant in its field of operation.
Accordingly, the estimate of small businesses to which rules may apply
does not exclude any television station from the definition of a small
business on this basis and is therefore possibly over-inclusive.
96. Radio Stations. This Economic Census category ``comprises
establishments primarily engaged in broadcasting aural programs by
radio to the public. Programming may originate in their own studio,
from an affiliated network, or from external sources.'' The SBA has
established a small business size standard for this category as firms
having $38.5 million or less in annual receipts. Economic Census data
for 2012 shows that 2,849 radio station firms operated during that
year. Of that number, 2,806 operated with annual receipts of less than
$25 million per year, 17 with annual receipts between $25 million and
$49,999,999 million and 26 with annual receipts of $50 million or more.
Therefore, based on the SBA's size standard the majority of such
entities are small entities.
97. According to Commission staff review of the BIA Publications,
Inc. Master Access Radio Analyzer Database as of June 2, 2016, about
11,386 (or about 99.9 percent) of 11,395 commercial radio stations had
revenues of $38.5 million or less and thus qualify as small entities
under the SBA definition. The Commission has estimated the number of
licensed commercial radio stations to be 11,415. The Commission notes
that it has also estimated the number of licensed NCE radio stations to
be 4,101. Nevertheless, the Commission does not compile and otherwise
does not have access to information on the revenue of NCE stations that
would permit it to determine how many such stations would qualify as
small entities.
98. The Commission also notes, that in assessing whether a business
entity qualifies as small under the above definition, business control
affiliations must be included. The Commission's estimate therefore
likely overstates the number of small entities that might be affected
by its action, because the revenue figure on which it is based does not
include or aggregate revenues from affiliated companies. In addition,
to be determined a ``small business,'' an entity may not be dominant in
its field of operation. The Commission further notes, that it is
difficult at times to assess these criteria in the context of media
entities, and the estimate of small businesses to which these rules may
apply does not exclude any radio station from the definition of a small
business on these basis, thus the Commission's estimate of small
businesses may therefore be over-inclusive.
99. FM Translator Stations and Low Power FM Stations. FM
translators and Low Power FM Stations are classified in the category of
Radio Stations and are assigned the same NAICS Code as licensees of
radio stations. This U.S. industry, Radio Stations, comprises
establishments primarily engaged in broadcasting aural programs by
radio to the public. Programming may originate in their own studio,
from an affiliated network, or from external sources. The SBA has
established a small business size standard which consists of all radio
stations whose annual receipts are $38.5 million dollars or less. U.S.
Census data for 2012 indicate that 2,849 radio station firms operated
during that year. Of that number, 2,806 operated with annual receipts
of less than $25 million per year, 17 with annual receipts between $25
million and $49,999,999 million and 26 with annual receipts of $50
million or more. Based on U.S. Census data, the Commission concludes
that the majority of FM Translator Stations and Low Power FM Stations
are small.
100. Multichannel Video Distribution and Data Service (MVDDS).
MVDDS is a terrestrial fixed microwave service operating in the 12.2-
12.7 GHz band. The Commission adopted criteria for defining three
groups of small businesses for purposes of determining their
eligibility for special provisions such as bidding credits. It defined
a very small business as an entity with average annual gross revenues
not exceeding $3 million for the preceding three years; a small
business as an entity with average annual gross revenues not exceeding
$15 million for the preceding three years; and an entrepreneur as an
entity with average annual gross revenues not exceeding $40 million for
the preceding three years. These definitions were approved by the SBA.
On January 27, 2004, the Commission completed an auction of 214 MVDDS
licenses (Auction No. 53). In this auction, ten winning bidders won a
total of 192 MVDDS licenses. Eight of the ten winning bidders claimed
small business status and won 144 of the licenses. The Commission also
held an auction of
[[Page 21777]]
MVDDS licenses on December 7, 2005 (Auction 63). Of the three winning
bidders who won 22 licenses, two winning bidders, winning 21 of the
licenses, claimed small business status.
101. Satellite Telecommunications. This category comprises firms
``primarily engaged in providing telecommunications services to other
establishments in the telecommunications and broadcasting industries by
forwarding and receiving communications signals via a system of
satellites or reselling satellite telecommunications.'' The category
has a small business size standard of $32.5 million or less in average
annual receipts, under SBA rules. For this category, U.S. Census Bureau
data for 2012 show that there were a total of 333 firms that operated
for the entire year. Of this total, 299 firms had annual receipts of
less than $25 million. Consequently, the Commission estimates that the
majority of satellite telecommunications providers are small entities.
102. All Other Telecommunications. The ``All Other
Telecommunications'' category is comprised of establishments that are
primarily engaged in providing specialized telecommunications services,
such as satellite tracking, communications telemetry, and radar station
operation. This industry also includes establishments primarily engaged
in providing satellite terminal stations and associated facilities
connected with one or more terrestrial systems and capable of
transmitting telecommunications to, and receiving telecommunications
from, satellite systems. Establishments providing Internet services or
voice over Internet protocol (VoIP) services via client-supplied
telecommunications connections are also included in this industry. The
SBA has developed a small business size standard for ``All Other
Telecommunications,'' which consists of all such firms with gross
annual receipts of $32.5 million or less. For this category, U.S.
Census data for 2012 show that there were 1,442 firms that operated for
the entire year. Of these firms, a total of 1,400 had gross annual
receipts of less than $25 million. Thus, a majority of ``All Other
Telecommunications'' firms potentially affected by the Commission's
action can be considered small.
103. Fixed Microwave Services. Microwave services include common
carrier, private-operational fixed, and broadcast auxiliary radio
services. They also include the Local Multipoint Distribution Service
(LMDS), the Digital Electronic Message Service (DEMS), the 39 GHz
Service (39 GHz), the 24 GHz Service, and the Millimeter Wave Service
where licensees can choose between common carrier and non-common
carrier status. The SBA nor the Commission has defined a small business
size standard for microwave services. For purposes of this IRFA, the
Commission will use the SBA's definition applicable to Wireless
Telecommunications Carriers (except satellite)--i.e., an entity with no
more than 1,500 persons is considered small. Under that size standard,
such a business is small if it has 1,500 or fewer employees. U.S.
Census Bureau data for 2012, show that there were 967 firms in this
category that operated for the entire year. Of this total, 955 had
employment of 999 or fewer, and 12 firms had employment of 1,000
employees or more. Thus under this category and the associated small
business size standard, the Commission estimates that the majority of
wireless telecommunications carriers (except satellite) are small
entities that may be affected by the Commission's proposed action.
104. According to Commission data in the Universal Licensing System
(ULS) as of September 22, 2015 there were approximately 61,970 common
carrier fixed licensees, 62,909 private and public safety operational-
fixed licensees, 20,349 broadcast auxiliary radio licensees, 412 LMDS
licenses, 35 DEMS licenses, 870 39 GHz licenses, and five 24 GHz
licenses, and 408 Millimeter Wave licenses in the microwave services.
The Commission notes that the number of firms does not necessarily
track the number of licensees. The Commission estimates that virtually
all of the Fixed Microwave licensees (excluding broadcast auxiliary
licensees) would qualify as small entities under the SBA definition.
105. Non-Licensee Owners of Towers and Other Infrastructure.
Although at one time most communications towers were owned by the
licensee using the tower to provide communications service, many towers
are now owned by third-party businesses that do not provide
communications services themselves but lease space on their towers to
other companies that provide communications services. The Commission's
rules require that any entity, including a non-licensee, proposing to
construct a tower over 200 feet in height or within the glide slope of
an airport must register the tower with the Commission's Antenna
Structure Registration (ASR) system and comply with applicable rules
regarding review for impact on the environment and historic properties.
106. As of March 1, 2017, the ASR database includes approximately
122,157 registration records reflecting a ''Constructed'' status and
13,987 registration records reflecting a ``Granted, Not Constructed''
status. These figures include both towers registered to licensees and
towers registered to non-licensee tower owners. The Commission does not
keep information from which the Commission can easily determine how
many of these towers are registered to non-licensees or how many non-
licensees have registered towers. Regarding towers that do not require
ASR registration, the Commission does not collect information as to the
number of such towers in use and therefore cannot estimate the number
of tower owners that would be subject to the rules on which the
Commission seeks comment. Moreover, the SBA has not developed a size
standard for small businesses in the category ``Tower Owners.''
Therefore, the Commission is unable to determine the number of non-
licensee tower owners that are small entities. The Commission believes,
however, that when all entities owning 10 or fewer towers and leasing
space for collocation are included, non-licensee tower owners number in
the thousands, and that nearly all of these qualify as small businesses
under the SBA's definition for ``All Other Telecommunications.'' The
SBA has developed a small business size standard for ``All Other
Telecommunications,'' which consists of all such firms with gross
annual receipts of $32.5 million or less. For this category, U.S.
Census data for 2012 show that there were 1,442 firms that operated for
the entire year. Of these firms, a total of 1,400 had gross annual
receipts of less than $25 million. Thus, a majority of ``All Other
Telecommunications'' firms potentially affected by the Commission's
action can be considered small. In addition, there may be other non-
licensee owners of other wireless infrastructure, including DAS and
small cells, that might be affected by the measures on which the
Commission seeks comment. The Commission does not have any basis for
estimating the number of such non-licensee owners that are small
entities.
4. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities
107. The NPRM seeks comment on potential rule changes that may
affect reporting, recordkeeping and other compliance requirements.
Specifically the NPRM seeks comment on a specific NHPA submission
process known as batching. Currently, a streamlined process for certain
facilities associated
[[Page 21778]]
with building out the Positive Train Control (PTC) railroad safety
system is in effect whereby eligible facilities may be submitted to
State Historic Preservation Officers (SHPOs) and through the Tower
Construction Notification System (TCNS) in batches instead of
individually. The NPRM seeks comment on whether the Commission should
require SHPOs and Tribal Historic Preservation Officers (THPOs) to
review non-PTC facilities in batched submissions as well. If adopted,
this may require modifications to reporting or other compliance
requirements for small entities and or jurisdictions to enable such
submissions. The Commission anticipates that batch rather than
individual submissions will add no additional burden to small entities
and may reduce the cost and delay associated with the deployment of
wireless infrastructure. In addition, the NPRM seeks comment on whether
the current Section 106 process can be revised in a manner that would
permit applicants to self-certify their compliance with the
Commission's Section 106 process and therefore proceed once they meet
the Commission's notification requirements, without requiring
Commission involvement. This self-certifying process may also require
additional reporting or other compliance requirements for small
entities. Similarly, the Commission anticipates that a self-
certification process will reduce the cost and delay associated with
the deployment of wireless infrastructure for small entities by
expediting the current Section 106 process.
5. Steps Taken To Minimize Significant Economic Impact on Small
Entities and Significant Alternatives Considered
108. The RFA requires an agency to describe any significant
alternatives that it has considered in developing its approach, which
may include the following four alternatives (among others): (1) The
establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) the clarification, consolidation, or simplification of
compliance or reporting requirements under the rule for small entities;
(3) the use of performance, rather than design, standards; and (4) an
exemption from coverage of the rule, or any part thereof, for small
entities.
109. In this proceeding, the Commission seeks to examine regulatory
impediments to wireless infrastructure investment and deployment, and
how the Commission may remove or reduce such impediments consistent
with the law and the public interest. The Commission anticipates that
the steps on which the NPRM seeks comment will help reduce burdens on
small entities that may need to deploy wireless infrastructure by
reducing the cost and delay associated with the deployment of such
infrastructure. As discussed below, however, certain proposals may
impose regulatory compliance costs on small jurisdictions.
110. The NPRM seeks comment on potential ways to expedite wireless
facility deployment. First, it seeks comment on certain measures or
clarifications to expedite State and local processing of wireless
facility siting applications pursuant to the Commission's authority
under Section 332 of the Communications Act. Specifically, the NPRM
proposes to adopt one or more of three mechanisms for implementing a
``deemed granted'' remedy for State and local agencies' failure to
satisfy their obligations under Section 332(c)(7)(B)(ii) to act on
applications outside the context of the Spectrum Act, including
irrebuttable presumption, lapse of State and local governments'
authority, and a preemption rule. The NPRM also seeks comment on how to
quantify a ``reasonable period of time'' within which to act on siting
applications. Specifically, the NPRM asks commenters to discuss whether
the Commission should consider adopting different time frames for
review of facility deployments not covered by Section 6409 of the
Spectrum Act, by identifying more narrowly defined classes of
deployments and distinct reasonable time frames to govern such classes.
The NPRM also seeks comment on what time periods would be reasonable
(outside the Spectrum Act context) for any new categories of
applications, and on what factors the Commission should consider in
making such a decision. The NPRM also seeks comment on whether the
Commission should provide further guidance to address situations in
which it is not clear when the shot clock should start running, or in
which States and localities on one hand, and industry on the other,
disagree on when the time for processing an application begins, and on
whether there are additional steps that should be considered to ensure
that a deemed granted remedy achieves its purpose of expediting review.
111. In addition, the NPRM seeks comment on Moratoria. The
Commission clarified in the 2014 Infrastructure Order that the shot
clock deadline applicable to each application ``runs regardless of any
moratorium.'' The NPRM asks commenters to submit specific information
about whether some localities are continuing to impose moratoria or
other restrictions on the filing or processing of wireless siting
applications, including identification of the specific entities
engaging in such actions and description of the effect of such
restrictions on parties' ability to deploy network facilities and
provide service to consumers. The NPRM also proposes to take any
additional actions necessary, such as issuing an order or declaratory
ruling providing more specific clarifications of the moratorium ban or
preempting specific State or local moratoria. The proposed measures
should reduce existing regulatory costs for small entities that
construct or deploy wireless infrastructure. The Commission invites
commenters to discuss the economic impact of any of these proposed
measures on small entities, including small jurisdictions, and on any
alternatives that would reduce the economic impact on such entities.
112. Second, the NPRM undertakes a fresh look at the Commission's
rules and procedures implementing NEPA and the NHPA as they relate to
the Commission's implementation of Title III of the Act in the context
of wireless infrastructure deployment. The NPRM seeks comment on
potential measures in several areas that could improve the efficiency
of the Commission's review under the NHPA and NEPA, including in the
areas of fees, addressing delays, and batched processing. Specifically,
the NPRM seeks comment on the costs, benefits, and time requirements
associated with the historic preservation review process under Section
106 of the NHPA, including SHPO and Tribal Nation review, as well as on
the costs and relative benefits of the Commission's NEPA rules. The
NPRM also seeks comment on potential process reforms regarding Tribal
Fees, including fee amounts, when fees are requested, the legal
framework of potential fee schedules, the delineation of Tribal
Nation's geographic area of interest, and on potential remedies,
dispute resolution, and possible negotiated alternatives.
113. The NPRM then seeks comment on other possible reforms to the
Commission's NHPA process that may make it faster, including time
limits and self-certification when no response to a Section 106
submission is provided, on whether the Commission should require SHPOs
and THPOs to review non-PTC facilities in batched submissions, and if
so, how such a process should work and
[[Page 21779]]
what sort of facilities would be eligible, and finally, whether there
are additional procedural changes that the Commission should consider
to improve the Section 106 review process in a manner that does not
compromise its integrity.
114. Further, the NPRM seeks comment on ways to improve and further
streamline the Commission's environmental compliance regulations while
ensuring the Commission meets its NEPA obligations. Toward that end,
the NPRM seeks comment on whether to revise the Commission's rules so
that an EA is not required for siting in a floodplain when appropriate
engineering or mitigation requirements have been met and on whether to
expand the categories of undertakings that are excluded from Section
106 review, to include pole replacements, deployments in rights-of-way,
and collocations based on their minimal potential to adversely affect
historic properties. The NPRM also seeks comment on whether the
Commission should revisit the Commission's interpretation of the scope
of the Commission's responsibility to review the effects of wireless
facility construction under the NHPA and NEPA. These potential changes
to the Commission's rules and procedures implementing NEPA and the NHPA
would reduce environmental compliance costs on entities that construct
or deploy wireless infrastructure. These potential revisions are likely
to provide an even greater benefit for small entities that may not have
the compliance resources and economies of scale of larger entities. The
Commission invites comment on ways in which the Commission can achieve
its goals, but at the same time further reduce the burdens on small
entities.
115. Third, the NPRM seeks comment on steps the Commission should
take to develop a definitive solution for the Twilight Towers issue
that will allow Twilight Towers to be used for collocations while
respecting the integrity of the Section 106 process. Facilitating
collocations on these towers will serve the public interest by making
additional infrastructure available for wireless broadband services and
the FirstNet public safety broadband network, as well as reduce the
need for new towers, lessening the impact of new construction on the
environment and on locations with historical and cultural significance,
thereby reducing the associated regulatory burden, particularly the
burden on small entities.
116. In particular, the NPRM seeks comment on whether to treat
collocations on towers built between March 16, 2001 and March 7, 2005
that did not go through Section 106 historic preservation review in the
same manner as collocations on towers built prior to March 16, 2001
that did not go through review. Under this approach, collocations on
such towers would generally be excluded from Section 106 historic
preservation review, subject to the same exceptions that currently
apply for collocations on towers built on or prior to March 16, 2001.
The Commission seeks comment on whether allowing collocations without
individual Section 106 review in these circumstances would rapidly make
available a significant amount of additional infrastructure to support
wireless broadband deployment without adverse impacts. The NPRM also
seeks comment on any alternative approaches and on the procedural
vehicle through which any solution should be implemented. Finally, the
NPRM invites comment on what measures, if any, should be taken to
facilitate collocations on non-compliant towers constructed after March
7, 2005, including whether the Commission should pursue an alternative
review process, or any other alternative approach, for any or all of
these towers. These proposals would reduce the environmental compliance
costs associated with collocations, especially for small entities that
have limited financial resources. The Commission invites commenters to
discuss the economic impact of any of the proposals for the solution to
the Twilight Towers issue on small entities, including small
jurisdictions, and on any alternatives that would reduce the economic
impact on such entities.
117. For the options discussed in this NPRM, the Commission seeks
comment on the effect or burden of the prospective regulation on small
entities, including small jurisdictions, the extent to which the
regulation would relieve burdens on small entities, and whether there
are any alternatives the Commission could implement that could achieve
the Commission's goals while at the same time minimizing or further
reducing the burdens on small entities.
6. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
118. None.
B. Initial Paperwork Reduction Act Analysis
119. This document contains proposed modified information
collection requirements. The Commission, as part of its continuing
effort to reduce paperwork burdens, invites the general public and the
Office of Management and Budget (OMB) to comment on the information
collection requirements contained in this document, as required by the
Paperwork Reduction Act of 1995. In addition, pursuant to the Small
Business Paperwork Relief Act of 2002, the Commission seeks specific
comment on how the Commission might further reduce the information
collection burden for small business concerns with fewer than 25
employees.
C. Other Procedural Matters
1. Ex Parte Rules--Permit-But-Disclose
120. Except to the limited extent described in the next paragraph,
this proceeding shall be treated as a ``permit-but-disclose''
proceeding in accordance with the Commission's ex parte rules. Persons
making ex parte presentations must file a copy of any written
presentation or a memorandum summarizing any oral presentation within
two business days after the presentation (unless a different deadline
applicable to the Sunshine period applies). Persons making oral ex
parte presentations are reminded that memoranda summarizing the
presentation must (1) list all persons attending or otherwise
participating in the meeting at which the ex parte presentation was
made, and (2) summarize all data presented and arguments made during
the presentation. If the presentation consisted in whole or in part of
the presentation of data or arguments already reflected in the
presenter's written comments, memoranda or other filings in the
proceeding, the presenter may provide citations to such data or
arguments in his or her prior comments, memoranda, or other filings
(specifying the relevant page and/or paragraph numbers where such data
or arguments can be found) in lieu of summarizing them in the
memorandum. Documents shown or given to Commission staff during ex
parte meetings are deemed to be written ex parte presentations and must
be filed consistent with section 1.1206(b) of the Commission's rules.
In proceedings governed by section 1.49(f) of the Commission's rules or
for which the Commission has made available a method of electronic
filing, written ex parte presentations and memoranda summarizing oral
ex parte presentations, and all attachments thereto, must be filed
through the electronic comment filing system available for that
proceeding, and must be filed in their native format (e.g., .doc, .xml,
.ppt, searchable .pdf). Participants
[[Page 21780]]
in this proceeding should familiarize themselves with the Commission's
ex parte rules.
121. In light of the Commission's trust relationship with Tribal
Nations and Native Hawaiian Organizations (NHOs), and the Commission's
obligation to engage in government-to-government consultation with
them, the Commission finds that the public interest requires a limited
modification of the ex parte rules in this proceeding. Tribal Nations
and NHOs, like other interested parties, should file comments, reply
comments, and ex parte presentations in the record in order to put
facts and arguments before the Commission in a manner such that they
may be relied upon in the decision-making process. But the Commission
will exempt ex parte presentations involving elected and appointed
leaders and duly appointed representatives of federally-recognized
Tribal Nations and NHOs from the disclosure requirements in permit-but-
disclose proceedings and the prohibitions during the Sunshine Agenda
period. Specifically, presentations from elected and appointed leaders
or duly appointed representatives of federally-recognized Tribal
Nations or NHOs to Commission decision makers shall be exempt from
disclosure. To be clear, while the Commission recognizes that
consultation is critically important, the Commission emphasizes that
the Commission will rely in its decision-making only on those
presentations that are placed in the public record for this proceeding.
IV. Ordering Clauses
122. Accordingly, it is ordered, pursuant to Sections 1, 2, 4(i),
7, 201, 253, 301, 303, 309, and 332 of the Communications Act of 1934,
as amended 47 U.S.C. 151, 152, 154(i), 157, 201, 253, 301, 303, 309,
and 332, Section 102(C) of the National Environmental Policy Act of
1969, as amended, 42 U.S.C. 4332(C), and Section 106 of the National
Historic Preservation Act of 1966, as amended, 54 U.S.C. 306108, that
this Notice of Proposed Rulemaking and Notice of Inquiry is hereby
adopted.
123. It is further ordered that the Commission's Consumer &
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Notice of Proposed Rulemaking, including the Initial
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of
the Small Business Administration.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 2017-09431 Filed 5-9-17; 8:45 am]
BILLING CODE 6712-01-P