Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, 58749-58759 [2017-26940]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 82, Number 239 (Thursday, December 14, 2017)]
[Rules and Regulations]
[Pages 58749-58759]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-26940]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[WT Docket No. 17-79; FCC 17-153]


Accelerating Wireless Broadband Deployment by Removing Barriers 
to Infrastructure Investment

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: The Federal Communications Commission (Commission) eliminates 
historic preservation review of replacement utility poles that support 
communications equipment, subject to conditions that ensure no effects 
on historic properties. The Commission also consolidates historic 
preservation requirements in a single new rule.

DATES: Effective January 16, 2018.

FOR FURTHER INFORMATION CONTACT: David Sieradzki, 
[email protected], of the Wireless Telecommunications Bureau, 
Competition & Infrastructure Policy Division, 202-418-1368.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order in WT Docket No. 17-79; FCC 17-153, adopted November 16, 
2017, and released on November 17, 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 
[email protected] or call the Consumer & Governmental Affairs Bureau at 
202-418-0530 (voice), 202-418-0432 (TTY).

I. Streamlining the Historic Preservation Review Process

    1. Enhancing the nation's wireless infrastructure is essential to 
meeting the exploding demand for robust mobile services and delivering 
the next generation of applications using transformative new network 
technologies. Review of deployment proposals pursuant to Section 106 of 
the National Historic Preservation Act (NHPA), 54 U.S.C. 306108, 
generally serves the public policy objective of preserving the nation's 
historic heritage. Not all infrastructure deployments, however, have 
the potential to affect historic properties. Where such potential 
effects do not exist, requiring an individual historic preservation 
review can impose needless burdens and slow infrastructure deployment.
    2. Section 106 of the NHPA, 54 U.S.C. 306108, requires federal 
agencies to take into account the effect (if any) of their proposed 
undertakings on historic properties before proceeding with such 
undertakings. Agencies are responsible for deciding whether or not 
particular types of activities qualify as undertakings under the 
definitions in the regulations of the Advisory Council on Historic 
Preservation (ACHP). See 36 CFR 800.3(a), 800.16(y). Where an agency 
determines that a type of activity has no potential to affect historic 
properties under any circumstances, the agency may unilaterally 
eliminate the review process for such undertakings. 36 CFR 800.3(a)(1).
    3. In 2004, the Commission, the ACHP, and the National Conference 
of State Historic Preservation Officers agreed to the establishment of 
the Nationwide Programmatic Agreement for Review of Effects on Historic 
Properties for Certain Undertakings 2004 NPA). 47 CFR part 1. Of 
particular relevance here, the 2004 NPA excludes the construction of 
replacement structures from historic preservation review under defined 
conditions, but only if the structure being replaced meets the 
definition of a ``tower,'' meaning that it was constructed for the sole 
or primary purpose of supporting Commission-authorized antennas. See 47 
CFR part 1, Appendix C, section III.B. A structure that does not 
qualify as a tower, such as a pole that initially was erected to 
support electric utility lines, does not fall within the exclusion 
under the 2004 NPA even if it is later used to support Commission-
authorized antennas. Consequently, if such a pole must be replaced to 
support a communications antenna and no other exclusion applies, the 
pole replacement is subject to review.
    4. In the Notice of Proposed Rulemaking in the present proceeding, 
the Commission initiated a broad examination of the regulatory 
impediments to wireless network infrastructure investment and 
deployment, and how we may remove or reduce such impediments, 
consistent with the law and the public interest, in order to promote 
the rapid deployment of advanced wireless broadband service to all 
Americans. See Accelerating Wireless Broadband Deployment by Removing 
Barriers to Infrastructure Deployment, 32 FCC Rcd 3330 (2017) (2017 
Wireless Infrastructure NPRM) ; see also Proposed Rule, 82 FR 21761 
(May 10, 2017). The Commission specifically sought comment on whether 
to expand the categories of undertakings that are excluded from 
historic preservation review to include pole replacements, and whether 
such a step would facilitate wireless facility siting while creating no 
or foreseeably minimal potential for adverse impacts to historic 
properties. The Commission asked whether the construction of 
replacement poles should be excluded from Section 106 review, provided 
that the replacement pole is not substantially larger than the pole it 
is replacing, and solicited input on whether any additional conditions 
would be appropriate.

[[Page 58750]]

II. Exclusion for Pole Replacements That Have No Potential To Affect 
Historic Properties

    5. Pursuant to 36 CFR 800.3(a)(1), the Commission concludes that, 
in the circumstances specified below, replacement of a pole that was 
constructed with a sole or primary purpose other than supporting 
communications antennas with a pole that will support such antennas 
would have no potential to affect historic properties. The Commission 
therefore revises its rules to provide that the construction of such 
replacement poles will be excluded from Section 106 review when all the 
following conditions are met. First, paragraph (b)(3)(i) of the new 
rule provides that this new exclusion applies only if the original 
structure is a pole that can hold utility, communications, or related 
transmission lines; was not originally erected for the sole or primary 
purpose of supporting antennas that operate pursuant to a spectrum 
license or authorization issued by the Commission; and is not itself a 
historic property.
    6. In addition, paragraph (b)(3)(ii)(A) specifies that, to qualify 
for this new exclusion, the replacement pole must be located no more 
than 10 feet away from the original pole, based on the distance between 
the centerpoint of the replacement pole and the centerpoint of the 
original pole; provided that construction of the replacement pole in 
place of the original pole entails no new ground disturbance (either 
laterally or in depth) outside previously disturbed areas, including 
disturbance associated with temporary support of utility, 
communications, or related transmission lines. For purposes of 
paragraph (b)(3)(ii)(A), ``ground disturbance'' means any activity that 
moves, compacts, alters, displaces, or penetrates the ground surface of 
previously undisturbed soils.
    7. Moreover, paragraph (b)(3)(ii)(B) of the new rule provides that 
a replacement pole qualifies for this exclusion only if its height does 
not exceed the height of the original pole by more than 5 feet or 10 
percent of the height of the original pole, whichever is greater. 
Paragraph (c)(ii)(C) establishes that the appearance of such a 
replacement pole must be consistent with the quality and appearance of 
the original pole. Notably, antennas separately deployed on a 
replacement pole that is exempted under the rule adopted here remain 
subject to existing historic preservation rules about antenna 
deployments, including the exemptions for equipment that is limited in 
size set forth in 47 CFR part 1, sections VI.A.5, VII.B.2 & 3.
    8. The Commission concludes that, where all of these conditions are 
met, the construction of a replacement utility pole--i.e., a new pole 
in place of a preexisting pole that is being removed--will have no 
potential to affect historic properties (even assuming such properties 
are present), regardless of whether the original pole was built for the 
purpose of supporting communications equipment. The Commission further 
concludes that excluding such replacements from historic preservation 
review advances the public interest. The Commission has authority to 
take this step pursuant to 36 CFR 800.3(a)(1), which authorizes 
agencies to exclude undertakings that have no potential to affect 
historic properties from historic preservation review. Notably, for 
present purposes, the Commission does not revisit its treatment of the 
construction of wireless communications structures, including 
replacement structures, as Commission undertakings.
    9. The Commission anticipates that adoption of this exclusion will 
provide significant efficiencies in the deployment of replacement 
facilities. The record indicates that pole replacements are often 
required to support small cell facilities, which increasingly will be 
needed to support the rollout of next-generation services. Small cell 
antennas are much smaller and less obtrusive than traditional antennas 
mounted on macro cell towers, but a far larger number of them will be 
needed to accomplish the network densification that providers need, 
both in order to satisfy the exploding consumer demand for wireless 
data for existing services and in order to implement advanced 
technologies such as 5G. We find that excluding the pole replacements 
at issue here from review under section 106 of the NHPA will allow 
providers to complete these deployments more efficiently. In addition, 
creating an exclusion for replacement of utility poles will make more 
consistent the process that carriers and pole constructors must follow 
to comply with our historic preservation review requirements and those 
they must follow when building replacement poles that are subject to 
the requirements of other agencies applying the ACHP's 2017 Federal 
Lands Program Comment. See Advisory Council on Historic Preservation, 
Notice of Issuance of Program Comment for Communications Projects on 
Federal Lands and Property, 82 FR 23818 (May 24, 2017) (Federal Lands 
Program Comment).
    10. In implementing large-scale network densification projects that 
require deployment of large numbers of facilities within a relatively 
brief period of time, use of existing structures, where feasible, can 
both promote efficiency and avoid adverse impacts on the human 
environment. Utility poles may be an appealing option for such 
deployments, since they often are the appropriate height for small cell 
antennas and are ubiquitous in many metropolitan areas. When existing 
utility poles cannot support additional equipment, however, pole 
replacement is required. Wooden utility poles, in particular, 
frequently need to be replaced because of their age and condition. For 
example, over time, wooden poles typically begin to rot from the top, 
where additional antennas associated with small cell facilities are 
usually attached, and frequently need to be replaced to have sufficient 
strength to support additional attachments. A pole also may need to be 
replaced if it is not sturdy enough or if it lacks sufficient space to 
mount new small cell antennas above utility infrastructure already 
installed on the pole, such as electric cables, telephone lines, cable 
television wires, or other equipment.
    11. Replacement poles placed in essentially the same previously 
disturbed locations as the original structures will be sturdier than 
the preexisting poles, but will not necessarily be substantially taller 
or occupy appreciably more space on or in the ground than the original 
poles. In those circumstances, there is no likelihood that such pole 
replacements could affect historic properties. Nonetheless, under 
current rules, only replacements for poles meeting the definition of a 
``tower'' are excluded from Section 106 review while other types of 
pole replacements continue to require review. See 47 CFR part 1, 
section III.B. The Commission finds, consistent with some parties' 
comments, that there is no valid reason to continue distinguishing 
between poles based on the purpose for which they were originally 
constructed, because the statutory test is whether a federal 
undertaking has a potential effect on historic properties, and is not 
based on the prior uses of a particular structure. The Commission also 
finds that adopting an exclusion for replacement utility poles will 
promote greater consistency by providing similar treatment for similar 
replacement structures. The Commission expects that creating an 
additional exclusion for pole replacements will encourage providers to 
replace existing poles in previously

[[Page 58751]]

disturbed areas rather than undertaking new construction activity that 
potentially could affect historic properties.
    12. The Commission limits the replacement pole exclusion, as 
discussed below, to ensure that such pole replacements have no 
potential to affect historic properties. These limitations address the 
concerns raised by some parties about the potential effect of a broad, 
unlimited exclusion for replacement poles and ensure that the exclusion 
established in this rule satisfies the strict standard in the ACHP's 
rules. In adopting these conditions, we rely on, and incorporate, the 
Commission's and the ACHP's analyses in support of recent similar 
exclusions, including the exclusion of utility pole replacements in 
section VIII.B of the ACHP's 2017 Federal Lands Program Comment.
    13. The new exclusion established here focuses only on utility pole 
replacements. Accordingly, paragraph (b)(3)(i)(A) of the rule describes 
the new exclusion using terminology consistent with that in section 
III.O of the Federal Lands Program Comment by referring to poles that 
``can hold utility, communications, or related transmission lines.'' 
Notably, section III.O of the Federal Lands Program Comment defines a 
``pole'' as ``a non-tower structure that can hold utility, 
communications, and related transmission lines;'' paragraph 
(b)(3)(i)(A) of the Commission's new rule is similar, but uses the word 
``or'' instead of the word ``and,'' in order to clarify that this 
replacement pole exclusion extends to replacements where the original 
poles are capable of supporting any of the listed types of facilities, 
not necessarily all of them.
    14. Paragraph (b)(3)(i)(B) makes clear that replacements for 
structures that section III.B of the 2004 NPA defines as ``towers,'' 
since that program alternative already sets forth the conditions under 
which replacement of towers will be excluded from review. See 47 CFR 
part 1, section III.B. And paragraph (b)(3)(i)(C) of the new rule makes 
clear that the construction of new poles to replace existing poles that 
themselves qualify as historic structures are not excluded from review.
    15. The new rule's limitations regarding location, size, quality, 
and appearance of replacement poles address the concerns raised by some 
Tribal Nations, State Historic Preservation Officers, and preservation 
advocates. Consistent with commenters' concerns, the Commission finds 
that excluding replacement poles that are substantially larger than or 
that differ in other material ways from the poles being replaced might 
compromise the integrity of historic properties and districts. The 
Commission therefore excludes from historic preservation review only 
those replacement poles that are situated no more than ten feet away 
from the original hole; are no more than 10 percent or five feet taller 
than the original pole, whichever is greater; and are consistent with 
the quality and appearance of the original pole.
    16. The provision limiting the exclusion to a new pole located no 
more than 10 feet from the original structure ensures that the new pole 
is truly a ``replacement'' and that the replacement will not 
substantially alter the setting of any historic properties that may be 
nearby. The Commission finds that the minimal change in location 
permitted here, which will make pole replacements easier to construct 
as a practical matter, creates no risk of effects on historic 
properties in light of the fact that no new ground disturbance will be 
permitted. Moreover, the Commission finds that the deployment of a 
replacement pole no more than 10 feet from the original pole has no 
potential to cause effects on historic properties that might be 
present, because of the close proximity to the original pole and the de 
minimis size increase permissible to fall into this exception. The 
Commission cannot reach the same conclusion, however, with regard to 
replacement poles placed a considerable distance (e.g., 30 feet) away 
from the originals.
    17. For purposes of this new exclusion, we use a size definition 
that differs from the definition of ``substantial increase in the size 
of the tower'' in 47 CFR part 1, section 1.E.1 and in 47 CFR part 1, 
sections III.A and III.B, because that definition allows for increasing 
the height by either 10 percent or 20 feet plus the height of an 
antenna array, whichever is greater. Utility poles are typically 25 to 
40 feet tall, and we find that an increase in height limited to 10 
percent or five feet would be de minimis and thus would have no 
potential to affect historic properties. The flexibility of the five 
foot alternative addresses concerns expressed in the record that 
manufacturers typically offer standard utility poles in five-foot 
increments, and that a height increase of less than five feet often may 
be insufficient to accommodate new antennas or other equipment on a 
pole while maintaining the necessary separation from preexisting 
infrastructure on the pole.
    18. The Commission cannot reach the same conclusion as to a height 
increase of 20 feet or more, however, because it cannot conclude at 
this time that a replacement pole that is so much taller than the 
preexisting structure would have no potential for effects on any 
historic properties that may be nearby, as is required under 36 CFR 
800.3(a)(1) for an agency to act unilaterally. On the other hand, the 
Commission disagrees with the contention raised by some parties that 
allowing even small increases in height without historic preservation 
review ultimately could have effects due to the possibility that 
multiple incremental replacements over time eventually would result in 
significantly larger poles. The Commission does not find this 
speculative concern persuasive: it is aware of no evidence of such 
repeated ``stacked'' replacements of utility poles occurring under 
existing program alternatives, and it believes the likelihood such 
activities will occur in the future is remote due to the substantial 
cost of removing and replacing poles.
    19. The phrase ``consistent with the quality and appearance of the 
originals'' in paragraph (b)(3)(ii)(C) is imported from the 
corresponding exclusion in section VIII.B.3 of the Federal Lands 
Program Comment, to ensure that there can be no visual effects on any 
nearby historic properties. The Commission notes that a change in 
materials, such as replacing a wooden pole with a metal pole, is 
permissible so long as this standard is met.
    20. The Commission adopts an additional limitation as part of 
paragraph (b)(3)(ii)(A) of the rule to ensure that the pole replacement 
project--including the removal of the original pole as well as 
construction of the replacement pole--will entail no new ground 
disturbance. This limitation recognizes that construction-related 
ground disturbance or excavation may affect properties that are 
historic due to the presence of archeological resources, including 
those of cultural or religious significance to a Tribal Nation or 
Native Hawaiian organization, which are included within the definition 
of historic property in 36 CFR 800.16(l)(1). The limitation on new 
ground disturbance outside previously disturbed areas, including 
disturbance associated with temporary support of lines, as well as the 
definition of ``ground disturbance'' as ``any activity that moves, 
compacts, alters, displaces, or penetrates the ground surface of 
previously undisturbed soils,'' are taken directly from section III.I 
of the Federal Lands Program Comment. The rule also specifies that the 
limitation on ground disturbance in previously undisturbed

[[Page 58752]]

areas applies to increases in both depth and lateral disturbance.
    21. The Commission continues to require that if, after construction 
commences, the party discovers any human or burial remains or other 
historic properties (despite the previous ground disturbance), 
construction must cease immediately, and the party must promptly notify 
and consult with the Commission, the State Historic Preservation 
Officer/Tribal Historic Preservation Officer, and any affected Tribal 
Nation or Native Hawaiian organization to evaluate the discovery and 
develop any appropriate measures to handle it. See 47 CFR part 1, 
section IX.A-D. Human or burial remains also must be handled in a 
manner consistent with any applicable State or Federal laws. Id., 
section IX.D.
    22. All the conditions described above must be satisfied in order 
for a replacement pole to be excluded from historic preservation 
review. The Commission concludes that, taken together, these provisions 
will ensure protection for historic properties and guard against 
replacements that would be out of scale with preexisting utility poles 
in a particular area. By adopting this new exclusion subject to these 
limitations, the Commission continues to fulfill its statutory 
responsibilities regarding historic preservation, while removing an 
unnecessary impediment to the rapid deployment of sorely needed small 
cell facilities and other wireless infrastructure across the country.

III. Conforming Amendments and Reorganization of Historic Preservation 
Rules

    23. In this order, the Commission also reorganizes existing 
historic preservation regulations into a single rule section that will 
be clearer, more accessible, and easier to understand. Section 
1.1307(a)(4) of the Commission's rules, 47 CFR 1.1307(a)(4), previously 
commingled detailed provisions implementing the historic preservation 
review process under section 106 of the NHPA with the provisions 
implementing the National Environmental Policy Act, 45 U.S.C. 4321-
4355. To provide more clarity, the Commission is moving the historic 
preservation review provisions into a new rule, 47 CFR 1.1320, that 
more clearly sets forth the existing requirements governing that 
historic preservation review process; and within that rule, the 
Commission adopts a paragraph (b)(3) establishing the replacement 
utility pole exclusion described above.
    24. The Commission finds that notice and comment are unnecessary 
and that it has good cause to make these clarifying revisions without 
expressly seeking comment on them. Except for paragraph (b)(3)'s 
addition of a pole replacement exclusion, new section 1.1320 makes no 
substantive changes to the existing requirements implementing the 
historic preservation review process under section 106 of the NHPA and 
adds no new obligations, but merely simplifies the way the Commission's 
regulations describe them by collecting existing requirements in one 
place and organizing them in a more straightforward fashion. Moreover, 
the delay engendered by a round of comment would be contrary to the 
public interest. The simpler presentation of our requirements in the 
new rule should make it easier for licensees and applicants to 
understand and comply with our historic preservation review 
requirements, and thus may expedite the completion of such review, thus 
facilitating more expeditious deployment of wireless infrastructure.
    25. Paragraph (a) of the new rule incorporates into the 
Commission's rules the existing provisions in the ACHP's regulations 
(see, e.g., 36 CFR 800.1(a), 800.2(a), and 800.16(b) & (y)) 
establishing that all federal agencies' undertakings with the potential 
to cause effects on historic properties are subject to review under 
Section 106 of the NHPA. There was no corresponding provision in the 
Commission's preexisting rules. At the same time, the Commission amends 
47 CFR 1.1307(a)(4) to clarify that section 1.1320, as well as Section 
106 of the NHPA, identify the historic preservation factors relevant to 
whether applicants must prepare environmental assessments of proposed 
actions.
    26. Paragraphs (a)(1) and (a)(2) of the new section 1.1320 clarify 
the procedures that apply to historic preservation review of categories 
of undertakings. Paragraph (a)(1) clarifies that the ACHP's regulations 
(36 CFR 800.3-800.13) establish the default procedures that generally 
apply to Commission undertakings, unless the undertakings are subject 
to one of the Commission's program alternatives, such as those listed 
in paragraph (a)(2), in which case they are reviewed using the 
procedures described in the applicable program alternative.
    27. Paragraph (b) of the new rule lists Commission undertakings 
that are not subject to any FCC historic preservation review process. 
Paragraph (b)(1) refers to undertakings for which an agency other than 
the Commission is the lead Federal agency that is primarily responsible 
for historic preservation review. Paragraph (b)(2) recognizes that the 
Commission's program alternatives not only establish streamlined 
procedures but also exempt some categories of undertakings from review. 
Paragraph (b)(3) of the new rule sets forth the new utility pole 
replacement exclusion adopted in this order, and paragraph (b)(4) of 
the new rule is identical to paragraph (a)(4)(ii) of section 1.1307 of 
the preexisting rules, setting forth the exclusion for the collocation 
of antennas and related equipment on buildings other than towers or 
utility poles. Paragraph (c) of the new rule provides that Commission 
applicants and licensees are responsible for compliance with the 
historic preservation review procedures established in 47 CFR part 1, 
sections III-X. Paragraph (d) adopts definitions of the terms 
``antenna,'' ``applicant,'' ``collocation,'' ``tower,'' and 
``undertaking'' based on the preexisting definitions of these terms set 
forth, respectively, in 47 CFR part 1, section I.A; 47 CFR part 1, 
sections II.A.2, II.A.4, and II.A 14; and 36 CFR 800.16(y).

IV. Procedural Matters

A. Final Regulatory Flexibility Analysis

    28. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was 
incorporated in the Notice of Proposed Rulemaking (NPRM). The 
Commission sought written public comment on the proposals in the NPRM, 
including comment on the IRFA. This present Final Regulatory 
Flexibility Analysis (FRFA) conforms to the RFA.
1. Need for and Objectives of the Rules
    29. In the Order, the Commission adopts rules that streamline the 
process of deploying next-generation wireless broadband infrastructure 
by eliminating the need for historic preservation review pursuant to 
the National Historic Preservation Act (NHPA) in certain instances 
where there is no potential effect on historic properties. 
Specifically, the Commission finds that the construction of poles that 
can support antennas or other wireless communications equipment to 
replace pre-existing utility poles that are substantially identical, 
under specified conditions, has no potential to affect historic 
properties, and therefore, the historical preservation review process 
is unnecessary in this context. This order also reorganizes the rules 
governing the Commission's historic preservation

[[Page 58753]]

review procedures by bringing together provisions that previously were 
scattered across a variety of locations into a single new Rule 1.1320, 
which clearly sets forth the existing requirements but, with the 
exception of the new exclusion for replacement utility poles, does not 
modify them.
2. Summary of Significant Issues Raised by Public Comments in Response 
to the IRFA
    30. No parties filed comments that specifically addressed the rules 
and policies proposed in the IRFA. One party--the Smart Cities and 
Special Districts Coalition--filed comments arguing that some small 
local governments, special districts, property owners, or small 
developers might be harmed if the Commission were to adopt certain 
policy changes discussed in the NPRM relating to (i) batches of zoning 
applications filed with state or local governments, (ii) the maximum 
reasonable time for state or local governments to process zoning 
applications (``shot clock'' rules and ``deemed granted'' remedies), or 
(iii) limitations on proprietary properties or regulation of their use. 
The present order does not deal with any of the issues in the NPRM that 
the Smart Cities and Special Districts Coalition addressed in the cited 
portions of its comments. The Commission will address these comments 
when it acts on the relevant issues in a future order.
3. Response to Comments by the Chief Counsel for Advocacy of the Small 
Business Administration
    31. Pursuant to the Small Business Jobs Act of 2010, the Commission 
is required to respond to any comments filed by the Chief Counsel for 
Advocacy of the Small Business Administration (SBA), and to provide a 
detailed statement of any change made to the proposed rules as a result 
of those comments. The Chief Counsel did not file any comments in 
response to the proposed rules in this proceeding.
4. Description and Estimate of the Number of Small Entities to Which 
the Rules Will Apply
    32. 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 rules adopted herein 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 Small Business 
Administration (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.
    33. Small Businesses, Small Organizations, Small Governmental 
Jurisdictions. Our 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.
    34. Wireless Telecommunications Carriers (except Satellite). This 
industry 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.
    35. 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 our 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.
    36. 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 our 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

[[Page 58754]]

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 our actions in this proceeding.
    37. 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.
    38. 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 Notice. 
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.
    39. 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.
    40. 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 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.
    41. 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 our action.
    42. 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

[[Page 58755]]

Instructional Television Fixed Service (ITFS)).
    43. 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.
    44. 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.
    45. 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, however, the Commission must 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.
    46. 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 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.
    47. 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 estimates that the majority of commercial 
television broadcasters are small entities under the applicable SBA 
size standard.
    48. 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.
    49. The Commission notes, however, that in assessing whether a 
business concern qualifies as ``small'' under the above definition, 
business (control) affiliations must be included. Our estimate, 
therefore likely overstates the number of small entities that might be 
affected by our 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

[[Page 58756]]

basis and is therefore possibly over-inclusive.
    50. 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.
    51. 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.
    52. 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. Tthe 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 our estimate of small businesses may 
therefore be over-inclusive.
    53. 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.
    54. 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 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.
    55. 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.
    56. 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 our action can be 
considered small.
    57. 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

[[Page 58757]]

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 our 
proposed action.
    58. 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.
    59. 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.
    60. 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 it 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 our action can be 
considered small. In addition, there may be other non-licensee owners 
of other wireless infrastructure, including Distributed Antenna Systems 
(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.
5. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities
    61. The Commission is not imposing any additional reporting or 
record keeping requirements. Rather, as discussed in the next section, 
the Commission is reducing National Historic Preservation Act 
compliance burdens, including those on small entities, by eliminating 
the historic preservation review requirement for construction of 
replacement utility poles that are capable of supporting antennas or 
other wireless communications equipment and are substantially similar 
to the preexisting poles, subject to certain conditions. The Commission 
is also reorganizing the rules governing its historic preservation 
review procedures by consolidating them into a single new Rule 1.1320. 
This should clarify the rules and make compliance easier for small 
entities.
6. Steps Taken To Minimize the Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered
    62. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed 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 and reporting requirements under the rule for such 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 
such small entities.''
    63. This Order streamlines the process of deploying next-generation 
wireless broadband by eliminating the need for historic preservation 
review for construction of replacement utility poles in certain 
circumstances. The Commission anticipates that adoption of this 
replacement pole exclusion will provide significant efficiencies in the 
deployment of such facilities, particularly for small entities that may 
not have the compliance resources and economies of scale of larger 
entities, while still avoiding adverse impacts on historic properties. 
The exclusion will also make more consistent the process that carriers 
and pole construction companies must follow to comply with our historic 
preservation review requirements and those they must follow when 
building replacement poles that are subject to the requirements of 
other agencies pursuant to the Advisory Council on Historic 
Preservation's Program Comment for Communications Projects on Federal 
Lands and Property. By adopting this new exclusion, the Commission 
continues to fulfill our statutory responsibilities regarding historic 
preservation, while reducing the burden on small entities by removing 
unnecessary impediments to the rapid deployment of small cell 
facilities and other wireless infrastructure across the country.
    64. Further, the Order incorporates the new exclusion for 
replacement poles into our rules in a manner that more clearly 
articulates licensees' and applicants' obligations not only as to this 
specific issue, but more generally as to the entire historic 
preservation review process. Thus, the Commission is reorganizing its 
existing regulations to clarify the general requirements regarding 
historic preservation review, as well as to specify the contours of the

[[Page 58758]]

new exclusion. This simpler presentation of our requirements in the new 
rule should make it easier for licensees and applicants to understand 
and comply with our historic preservation review requirements, and thus 
may expedite the completion of such review and facilitate more 
expeditious deployment of wireless infrastructure, further reducing the 
intrinsic cost and delay associated with such deployment.
    65. As discussed above, the overall approach the Commission has 
taken is to remove regulatory requirements associated with NHPA 
compliance with respect to one specified category of undertakings and 
to simplify and clarify the existing requirements applicable in other 
contexts. In crafting this regulatory relief, the Commission has not 
identified any additional steps that itcould take with respect to small 
entities that could not also be applied to all entities that construct 
or deploy wireless infrastructure. While the new exclusion for 
replacement utility poles is not specifically directed at small 
entities, the Commission recognizes that our actions in the Order can 
potentially decrease costs for all those subject to NHPA obligations, 
including small entities.
7. Report to Congress
    66. The Commission will send a copy of the Report and Order, 
including this FRFA, in a report to be sent to Congress pursuant to the 
Congressional Review Act. In addition, the Commission will send a copy 
of the Report and Order, including this FRFA, to the Chief Counsel for 
Advocacy of the SBA. The Report and Order and FRFA (or summaries 
thereof) also will be published in the Federal Register.

B. Paperwork Reduction Act

    67. The Report and Order does not contain new or revised 
information collection requirements subject to the Paperwork Reduction 
Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does 
not contains any substantive new or modified information collection 
burden for small business concerns with fewer than 25 employees, 
pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 
107-198; see 44 U.S.C. 3506(c)(4).

C. Congressional Review Act

    68. The Commission will send a copy of the Report and Order in a 
report to be sent to Congress and the Government Accountability Office 
pursuant to the Congressional Review Act (CRA), see 5 U.S.C. 
801(a)(1)(A).

V. Ordering Clauses

    69. Accordingly, it is ordered, pursuant to Sections 1, 2, 4(i), 7, 
201, 301, 303, and 332 of the Communications Act of 1934, as amended 47 
U.S.C. 151, 152, 154(i), 157, 201, 301, 303, 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 the Report and Order is hereby 
adopted.
    70. It is further ordered that the Commission's Consumer & 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of the Report and Order, including the Final Regulatory 
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small 
Business Administration.
    71. It is further ordered that part 1 of the Commission's rules is 
amended, and that these changes shall be effective January 16, 2018.

List of Subjects in 47 CFR Part 1

    Communications common carriers, Communications equipment, 
Environmental protection, Historic preservation, Radio, 
Telecommunications.

Federal Communications Commission.
Marlene H. Dortch,
Secretary, Office of the Secretary.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 1 as follows:

PART I--PRACTICE AND PROCEDURE

0
1. The authority citation for part 1 is revised to read as follows:

     Authority:  47 U.S.C. 151, 154(i), 155, 157, 225, 303(r), 309, 
1403, 1404, 1451, and 1452.

0
2. Section 1.1307 is amended by revising paragraph (a)(4) to read as 
follows:


Sec.  1.1307   Actions that may have a significant environmental 
effect, for which Environmental Assessments (EAs) must be prepared.

    (a) * * *
    (4) Facilities that may affect districts, sites, buildings, 
structures or objects, significant in American history, architecture, 
archeology, engineering or culture, that are listed, or are eligible 
for listing, in the National Register of Historic Places (see 54 U.S.C. 
300308; 36 CFR parts 60 and 800), and that are subject to review 
pursuant to section 1.1320 and have been determined through that review 
process to have adverse effects on identified historic properties.
* * * * *

0
3. Section 1.1320 is added to subpart I to read as follows:


Sec.  1.1320   Review of Commission undertakings that may affect 
historic properties.

    (a) Review of Commission undertakings. Any Commission undertaking 
that has the potential to cause effects on historic properties, unless 
excluded from review pursuant to paragraph (b) of this section, shall 
be subject to review under section 106 of the National Historic 
Preservation Act, as amended, 54 U.S.C. 306108, by applying--
    (1) The procedures set forth in regulations of the Advisory Council 
on Historic Preservation, 36 CFR 800.3-800.13, or
    (2) If applicable, a program alternative established pursuant to 36 
CFR 800.14, including but not limited to the following:
    (i) The Nationwide Programmatic Agreement for the Collocation of 
Wireless Antennas, as amended, Appendix B of this part.
    (ii) The Nationwide Programmatic Agreement for Review of Effects on 
Historic Properties for Certain Undertakings, Appendix C of this part.
    (iii) The Program Comment to Tailor the Federal Communications 
Commission's Section 106 Review for Undertakings Involving the 
Construction of Positive Train Control Wayside Poles and 
Infrastructure, 79 FR 30861 (May 29, 2014).
    (b) Exclusions. The following categories of undertakings are 
excluded from review under this section:
    (1) Projects reviewed by other agencies. Undertakings for which an 
agency other than the Commission is the lead Federal agency pursuant to 
36 CFR 800.2(a)(2).
    (2) Projects subject to program alternatives. Undertakings excluded 
from review under a program alternative established pursuant to 36 CFR 
800.14, including those listed in paragraph (a)(2) of this section.
    (3) Replacement utility poles. Construction of a replacement for an 
existing structure where all the following criteria are satisfied:
    (i) The original structure--
    (A) Is a pole that can hold utility, communications, or related 
transmission lines;
    (B) Was not originally erected for the sole or primary purpose of 
supporting antennas that operate pursuant to the Commission's spectrum 
license or authorization; and

[[Page 58759]]

    (C) Is not itself a historic property.
    (ii) The replacement pole--
    (A) Is located no more than 10 feet away from the original pole, 
based on the distance between the centerpoint of the replacement pole 
and the centerpoint of the original pole; provided that construction of 
the replacement pole in place of the original pole entails no new 
ground disturbance (either laterally or in depth) outside previously 
disturbed areas, including disturbance associated with temporary 
support of utility, communications, or related transmission lines. For 
purposes of this paragraph, ``ground disturbance'' means any activity 
that moves, compacts, alters, displaces, or penetrates the ground 
surface of previously undisturbed soils;
    (B) Has a height that does not exceed the height of the original 
pole by more than 5 feet or 10 percent of the height of the original 
pole, whichever is greater; and
    (C) Has an appearance consistent with the quality and appearance of 
the original pole.
    (4) Collocations on buildings and other non-tower structures. The 
mounting of antennas (including associated equipment such as wiring, 
cabling, cabinets, or backup power) on buildings or other non-tower 
structures where the deployment meets the following conditions:
    (i) There is an existing antenna on the building or structure;
    (ii) One of the following criteria is met:
    (A) Non-Visible Antennas. The new antenna is not visible from any 
adjacent streets or surrounding public spaces and is added in the same 
vicinity as a pre-existing antenna;
    (B) Visible Replacement Antennas. The new antenna is visible from 
adjacent streets or surrounding public spaces, provided that
    (1) It is a replacement for a pre-existing antenna,
    (2) The new antenna will be located in the same vicinity as the 
pre-existing antenna,
    (3) The new antenna will be visible only from adjacent streets and 
surrounding public spaces that also afford views of the pre-existing 
antenna,
    (4) The new antenna is not more than 3 feet larger in height or 
width (including all protuberances) than the pre-existing antenna, and
    (5) No new equipment cabinets are visible from the adjacent streets 
or surrounding public spaces; or
    (C) Other Visible Antennas. The new antenna is visible from 
adjacent streets or surrounding public spaces, provided that
    (1) It is located in the same vicinity as a pre-existing antenna,
    (2) The new antenna will be visible only from adjacent streets and 
surrounding public spaces that also afford views of the pre-existing 
antenna,
    (3) The pre-existing antenna was not deployed pursuant to the 
exclusion in this paragraph,
    (4) The new antenna is not more than three feet larger in height or 
width (including all protuberances) than the pre-existing antenna, and
    (5) No new equipment cabinets are visible from the adjacent streets 
or surrounding public spaces;
    (iii) The new antenna complies with all zoning conditions and 
historic preservation conditions applicable to existing antennas in the 
same vicinity that directly mitigate or prevent effects, such as 
camouflage or concealment requirements;
    (iv) The deployment of the new antenna involves no new ground 
disturbance; and
    (v) The deployment would otherwise require the preparation of an 
Environmental Assessment under 1.1304(a)(4) solely because of the age 
of the structure.

    Note 1 to Paragraph (b)(4):  A non-visible new antenna is in the 
``same vicinity'' as a pre-existing antenna if it will be collocated 
on the same rooftop, fa[ccedil]ade or other surface. A visible new 
antenna is in the ``same vicinity'' as a pre-existing antenna if it 
is on the same rooftop, fa[ccedil]ade, or other surface and the 
centerpoint of the new antenna is within ten feet of the centerpoint 
of the pre-existing antenna. A deployment causes no new ground 
disturbance when the depth and width of previous disturbance exceeds 
the proposed construction depth and width by at least two feet.

    (c) Responsibilities of applicants. Applicants seeking Commission 
authorization for construction or modification of towers, collocation 
of antennas, or other undertakings shall take the steps mandated by, 
and comply with the requirements set forth in, Appendix C of this part, 
sections III-X, or any other applicable program alternative.
    (d) Definitions. For purposes of this section, the following 
definitions apply:
    Antenna means an apparatus designed for the purpose of emitting 
radiofrequency (RF) radiation, to be operated or operating from a fixed 
location pursuant to Commission authorization, for the transmission of 
writing, signs, signals, data, images, pictures, and sounds of all 
kinds, including the transmitting device and any on-site equipment, 
switches, wiring, cabling, power sources, shelters or cabinets 
associated with that antenna and added to a tower, structure, or 
building as part of the original installation of the antenna. For most 
services, an antenna will be mounted on or in, and is distinct from, a 
supporting structure such as a tower, structure or building. However, 
in the case of AM broadcast stations, the entire tower or group of 
towers constitutes the antenna for that station. For purposes of this 
section, the term antenna does not include unintentional radiators, 
mobile stations, or devices authorized under part 15 of this title.
    Applicant means a Commission licensee, permittee, or registration 
holder, or an applicant or prospective applicant for a wireless or 
broadcast license, authorization or antenna structure registration, and 
the duly authorized agents, employees, and contractors of any such 
person or entity.
    Collocation means the mounting or installation of an antenna on an 
existing tower, building or structure for the purpose of transmitting 
and/or receiving radio frequency signals for communications purposes, 
whether or not there is an existing antenna on the structure.
    Tower means any structure built for the sole or primary purpose of 
supporting Commission-licensed or authorized antennas, including the 
on-site fencing, equipment, switches, wiring, cabling, power sources, 
shelters, or cabinets associated with that tower but not installed as 
part of an antenna as defined herein.
    Undertaking means a project, activity, or program funded in whole 
or in part under the direct or indirect jurisdiction of the Commission, 
including those requiring a Commission permit, license or approval. 
Maintenance and servicing of towers, antennas, and associated equipment 
are not deemed to be undertakings subject to review under this section.

[FR Doc. 2017-26940 Filed 12-13-17; 8:45 am]
 BILLING CODE 6712-01-P