Accelerating Wireless and Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment, 45126-45134 [2020-13951]
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45126
Federal Register / Vol. 85, No. 144 / Monday, July 27, 2020 / Rules and Regulations
chemical substances identified in
paragraph (b)(1), paragraph (b)(2), and
paragraph (b)(3) of this section for the
following specific uses shall not be
considered as a significant new use
subject to reporting under this section:
(i) Use in an antireflective coating,
photoresists, or surfactant for use in
photomicrolithography and other
processes to produce semiconductors or
similar components of electronic or
other miniaturized devices.
(ii) Use of 2-Propenoic acid,
3,3,4,4,5,5,6,6,7,7,8,8,9,9,10,10,10heptadecafluorodecyl ester (CAS No.
27905–45–9) as a coating or component
of a hydrophobic and/or oleophobic
coating or barrier applied to
manufactured articles or components of
articles using an energy source or
plasma deposition methods, which
include a pulse deposition mode.
Examples of such articles include:
Electronic devices and components
thereof, medical consumables and bioconsumables, filtration devices and
filtration materials, clothing, footwear
and fabrics.
(iii) Use of Silane,
trichloro
(3,3,4,4,5,5,6,6,7,7,8,8,9,9,10,10,10heptadecafluorodecyl)-(CAS No. 78560–
44–8) as a surface treatment to make low
refractive index resin for optical
applications; surface treatment for
minerals, particles and inorganic
surfaces for hydrophobicity; and
monomer to make specialty resins
hydrophobic.
(iv) Use of Octanoic acid,
2,2,3,3,4,4,5,5,6,6,7,7,8,8,8pentadecafluoro- (CAS No. 335–67–1) as
a surfactant and coating, as part of
articles: Stickers, labels, and parts to
which those stickers and labels are
attached.
(v) Use of 1-Propanesulfonic acid, 2methyl-, 2-[[1-oxo-3-[(.gamma.-.omega.perfluoro-C4-16alkyl)thio]propyl]amino] derivs.,
sodium salts (CAS No. 68187–47–3);
Thiols, C8-20, .gamma.-.omega.perfluoro, telomers with acrylamide
(CAS No. 70969–47–0); or
Perfluorinated polyamine (generic)
(ACC274147) as a component in fire
extinguishing agent.
(vi) Use of Octanoic acid,
2,2,3,3,4,4,5,5,6,6,7,7,8,8,8pentadecafluoro- (CAS No. 335–67–1);
Octanoic acid,
2,2,3,3,4,4,5,5,6,6,7,7,8,8,8pentadecafluoro-, sodium salt (1:1) (CAS
No. 335–95–5); or Octanoic acid,
2,2,3,3,4,4,5,5,6,6,7,7,8,8,8pentadecafluoro-, ammonium salt (1:1)
(CAS No. 3825–26–1) for use in
automotive articles, both in factory
assembly and replacement parts.
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(vii) Use of Poly(difluoromethylene),
.alpha.,.alpha.’-[phosphinicobis(oxy-2,1ethanediyl)]bis[.omega.-fluoro-,
ammonium salt (1:1) (CAS No. 65530–
70–3); Poly(difluoromethylene), .alpha.fluoro-.omega.-[2-(phosphonooxy)ethyl], ammonium salt (1:1) (CAS No. 65530–
71–4); or Poly(difluoromethylene),
.alpha.-fluoro-.omega.-[2(phosphonooxy)ethyl]-, ammonium salt
(1:2) (CAS No. 65530–72–5) for use in
the manufacturing or processing of:
(A) Architectural coatings or wood
coatings, at a maximum concentration of
0.1% by weight.
(B) Industrial primer coatings for nonspray applications to metal by coil
coating application, at a maximum
concentration of 0.01% by weight.
(viii) Use of Alcohols, C8-14,
.gamma.-.omega.-perfluoro (CAS No.
68391–08–2) in the manufacture or
processing of coatings and finishes for a
variety of textile, leather, and hard
surface treatments, and in the
manufacture of wetting agents.
(ix) Use of Poly(oxy-1,2-ethanediyl),
.alpha.-hydro-.omega.-hydroxy-, ether
with .alpha.-fluoro-.omega.-(2hydroxyethyl)poly(difluoromethylene)
(1:1) (CAS No. 65545–80–4) in waterbased inks.
(x) Use of Poly(difluoromethylene),
.alpha.-[2-[(2-carboxyethyl)thio]ethyl].omega.-fluoro-, lithium salt (1:1) (CAS
No. 65530–69–0) in photo media
coatings.
(xi) Use of Ethanol, 2,2’-iminobis-,
compd. with .alpha.-fluoro-.omega.-[2(phosphonooxy)
ethyl]poly(difluoromethylene) (2:1)
(CAS No. 65530–63–4); Ethanol, 2,2’iminobis-, compd. with .alpha.,.alpha.’[phosphinicobis(oxy-2,1ethanediyl)]bis[.omega.fluoropoly(difluoromethylene)] (1:1)
(CAS No. 65530–64–5); or Ethanol, 2,2’iminobis-, compd. with .alpha.-fluoro.omega.-[2-(phosphonooxy)ethyl]
poly(difluoromethylene) (1:1) (CAS No.
65530–74–7) in paints and coatings,
grouts, and sealers.
(xii) Use of Poly(oxy-1,2-ethanediyl),
.alpha.-hydro-.omega.-hydroxy-, ether
with .alpha.-fluoro-.omega.-(2hydroxyethyl)poly(difluoromethylene)
(1:1) (CAS No. 65545–80–4) in paints,
coatings, ink jet inks, and ink
masterbatch.
(xiii) Use of 1-Propanesulfonic acid,
2-methyl-, 2-[[1-oxo-3-[(.gamma..omega.-perfluoro-C4-16alkyl)thio]propyl]amino] derivs.,
sodium salts (CAS No. 68187–47–3) in
adhesives.
(c) Specific requirements. The
provisions of subpart A of this part
apply to this section except as modified
by this paragraph (c).
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(1) Revocation of certain notification
exemptions. With respect to imports of
carpets, the provisions of § 721.45(f) do
not apply to this section. With respect
to imports of articles, the provisions of
§ 721.45(f) also do not apply to a
chemical substance identified in
paragraphs (b)(2) or (b)(3) of this section
when they are part of a surface coating
of an article. A person who imports a
chemical substance identified in
paragraph (b)(1) of this section as part
of a carpet or who imports a chemical
substance identified in paragraphs (b)(2)
or (b)(3) of this section as part of a
surface coating on an article is not
exempt from submitting a significant
new use notice. The other provision of
§ 721.45(f), respecting processing a
chemical substance as part of an article,
remains applicable.
(2) The provision at § 721.45(h) does
not apply to this section.
[FR Doc. 2020–13738 Filed 7–24–20; 8:45 am]
BILLING CODE 6560–50–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 1
[WT Docket No. 19–250 and RM–11849; FCC
20–75: FRS 16876]
Accelerating Wireless and Wireline
Broadband Deployment by Removing
Barriers to Infrastructure Investment
Federal Communications
Commission.
ACTION: Declaratory ruling.
AGENCY:
In this document, the Federal
Communications Commission
(‘‘Commission’’ or ‘‘FCC’’) clarifies its
rules implementing portions of the
Spectrum Act of 2012 that streamline
State and local review of applications to
modify existing wireless infrastructure.
The Declaratory Ruling clarifies the
following: When the 60-day shot clock
starts for local governments to review
and approve an eligible modification;
what constitutes a ‘‘substantial change’’
when a modification would increase the
height of an existing structure, would
require the addition of equipment
cabinets, or would change the visual
profile of a structure; and whether,
within the context of the Commission’s
environmental review rules, an
environmental assessment is required
when an impact to historic properties
has already been mitigated in the
Commission’s historic preservation
review process.
DATES: This Declaratory Ruling was
effective June 10, 2020.
SUMMARY:
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Paul
D’Ari, Paul.DAri@fcc.gov, of the
Wireless Telecommunications Bureau,
Competition & Infrastructure Policy
Division, (202) 418–1150.
SUPPLEMENTARY INFORMATION: This is a
summary of the FCC’s Declaratory
Ruling in WT Docket No. 19–250 and
RM–11849, FCC 20–75, adopted on June
9, 2020, and released on June 10, 2020.
The document is available for download
at https://www.fcc.gov/edocs. 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 FURTHER INFORMATION CONTACT:
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Synopsis
I. Declaratory Ruling
1. In this Declaratory Ruling, the
Commission clarifies several key
elements that determine whether a
modification request qualifies as an
eligible facilities request that a State or
local government must approve within
60 days, and it clarifies when the 60-day
shot clock for review of an eligible
facilities request commences. These
interpretations provide greater certainty
to applicants for State and local
government approval of wireless facility
modifications, as well as to the
reviewing government agencies, and
these interpretations should accelerate
the deployment of advanced wireless
networks.
2. Specifically, the Commission
clarifies that:
• The 60-day shot clock in
§ 1.6100(c)(2) begins to run when an
applicant takes the first procedural step
in a locality’s application process and
submits written documentation showing
that a proposed modification is an
eligible facilities request;
• The phrase ‘‘with separation from
the nearest existing antenna not to
exceed twenty feet’’ in § 1.6100(b)(7)(i)
allows an increase in the height of the
tower of up to twenty (20) feet between
antennas, as measured from the top of
an existing antenna to the bottom of a
proposed new antenna on the top of a
tower;
• The term ‘‘equipment cabinets’’ in
§ 1.6100(b)(7)(iii) does not include
relatively small electronic components,
such as remote radio units, radio
transceivers, amplifiers, or other devices
mounted on the structure, and up to
four such cabinets may be added to an
existing facility per separate eligible
facilities request;
• The term ‘‘concealment element’’ in
§ 1.6100(b)(7)(v) means an element that
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is part of a stealth-designed facility
intended to make a structure look like
something other than a wireless facility,
and that was part of a prior approval;
• To ‘‘defeat’’ a concealment element
under § 1.6100(b)(7)(v), a proposed
modification must cause a reasonable
person to view a structure’s intended
stealth design as no longer effective; and
• The phrase ‘‘conditions associated
with the siting approval’’ may include
aesthetic conditions to minimize the
visual impact of a wireless facility as
long as the condition does not prevent
modifications explicitly allowed under
§ 1.6100(b)(7)(i) through (iv) (antenna
height, antenna width, equipment
cabinets, and excavations or
deployments outside the current site)
and so long as there is express evidence
that at the time of approval the locality
required the feature and conditioned
approval upon its continuing existence.
3. Certain parties contend that the
Commission lacks legal authority to
adopt the rulings requested in the
petitions, which they contend do not
just clarify or interpret the rules
established in 2014 but also change
them, requiring that the Commission
issue a Notice of Proposed Rulemaking
followed by a Report and Order. As an
initial matter, the Commission notes
that it is not adopting all of the rulings
requested in WIA’s and CTIA’s petitions
for declaratory ruling because it finds
incremental action to be an appropriate
step at this juncture, particularly given,
as mentioned above, that the
Commission has continued to take steps
to ease barriers to deployment of
wireless infrastructure since adopting
rules to implement Section 6409(a). The
determinations in this Declaratory
Ruling are intended solely to interpret
and clarify the meaning and scope of the
existing rules set forth in the 2014
Infrastructure Order, in order to remove
uncertainty and in light of the differing
positions of the parties on these
questions. In addition, the Commission
finds it appropriate to initiate a Notice
of Proposed Rulemaking regarding
tower site boundaries and excavation or
deployment outside the boundaries of
an existing tower site, in order to
consider whether modifications of its
rules are needed to resolve current
disputes. The Commission intends, with
these steps, to continue to advance the
same goals that led it to adopt
regulations implementing Section
6409(a) in the first instance—to avoid
ambiguities leading to disputes that
could undermine the goals of the
Spectrum Act, i.e., to advance wireless
broadband service.
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A. Commencement of Shot Clock
4. Section 1.6100(c)(2) provides that
the 60-day review period for eligible
facilities requests begins ‘‘on the date on
which an applicant submits a request
seeking approval.’’ If the local
jurisdiction ‘‘fails to approve or deny a
request seeking approval under this
section within the timeframe for review
(accounting for any tolling), the request
shall be deemed granted.’’ The 2014
Infrastructure Order discusses the
procedures that local governments need
to implement in order to carry out their
obligations to approve eligible facilities
requests within 60 days; it does not,
however, define the date on which an
applicant is deemed to have submitted
an eligible facilities request for purposes
of triggering the 60-day shot clock.
5. There is evidence in the record that
some local jurisdictions effectively
postpone the date on which they
consider eligible facilities requests to be
duly filed (thereby delaying the
commencement of the shot clock) by
treating applications as incomplete
unless applicants have complied with
time-consuming requirements. Such
requirements include meeting with city
or county staff, consulting with
neighborhood councils, obtaining
various certifications, or making
presentations at public hearings. While
some stakeholders may have assumed
that, after the 2014 Infrastructure Order,
local governments would develop
procedures designed to review and
approve covered requests within a 60day shot clock period, many have not
done so and instead continue to require
applicants to apply for forms of
authorizations that entail more ‘‘lengthy
and onerous processes’’ of review. In
such jurisdictions, applicants may need
to obtain clearance from numerous,
separate municipal departments, which
could make it difficult to ascertain
whether or when the shot clock has
started to run.
6. To address uncertainty regarding
the commencement of the shot clock,
the Commission clarifies that, for
purposes of its shot clock and deemed
granted rules, an applicant has
effectively submitted a request for
approval that triggers the running of the
shot clock when it satisfies both of the
following criteria: (1) The applicant
takes the first procedural step that the
local jurisdiction requires as part of its
applicable regulatory review process
under Section 6409(a), and, to the extent
it has not done so as part of the first
required procedural step, (2) the
applicant submits written
documentation showing that a proposed
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modification is an eligible facilities
request.
7. By requiring that an applicant take
the first procedural step required by the
locality, the goal is to give localities
‘‘considerable flexibility’’ to structure
their procedures for review of eligible
facilities requests, but prevent localities
from ‘‘impos[ing] lengthy and onerous
processes not justified by the limited
scope of review contemplated’’ by
section 6409(a). In taking the first
procedural step that the local
jurisdiction requires as part of its
applicable regulatory review process,
applicants demonstrate that they are
complying with a local government’s
procedures. The second criterion—
requiring applicants to submit written
documentation showing that the
proposed modification is an eligible
facilities request—is necessary because
localities must have the opportunity to
review this documentation to determine
whether the proposed modification is an
eligible facilities request that must be
approved within 60 days. The
Commission anticipates that the
documentation sufficient to start the
shot clock under the stated criteria
might include elements like a
description of the proposed
modification and an explanation of how
the proposed modification is an eligible
facilities request. The Commission finds
that these criteria strike a reasonable
balance between local government
flexibility and the streamlined review
envisioned by Section 6409(a).
8. In addition, the Commission finds
that further clarifications are needed to
achieve its goal of balancing local
government flexibility with the
streamlined review envisioned by
Section 6409(a). First, the Commission
clarifies that a local government may
not delay the triggering of the shot clock
by establishing a ‘‘first step’’ that is
outside of the applicant’s control or is
not objectively verifiable. For example,
if the first step required by a local
government is that applicants meet with
municipal staff before making any filing,
the applicant should be able to satisfy
that first step by making a written
request to schedule the meeting—a step
within the applicant’s control. In this
example, the 60-day shot clock would
start once the applicant has made a
written request for the meeting and the
applicant also has satisfied the second
of the criteria (documentation). The
Commission does not wish to
discourage meetings between applicants
and the local governments, and it
recognizes that such consultations may
help avoid errors that localities have
identified as leading to delays, but such
meetings themselves should not be
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allowed to cause delays or prevent these
requests from being timely approved. As
an additional example, a local
government could not establish as its
first step a requirement that an
applicant demonstrate that it has
addressed all concerns raised by the
public, as such a step would not be
objectively verifiable.
9. Second, the Commission clarifies
that a local government may not delay
the triggering of the shot clock by
defining the ‘‘first step’’ as a
combination or sequencing of steps,
rather than a single step. For example,
if a local government defines the first
step of its process as separate
consultations with a citizens’
association, a historic preservation
review board, and the local government
staff, an applicant will trigger the shot
clock by taking any one of those actions,
along with satisfying the second of the
criteria (documentation). Once the shot
clock has begun, it would not be tolled
if the local government were to deny,
delay review of, or require refiling of the
application on the grounds that the local
government’s separate consultation
requirements were not completed. The
Commission expects applicants to act in
good faith to fulfill reasonable steps set
forth by a local government that can be
completed within the 60 day period, but
the local government would bear
responsibility for ensuring that any
steps in its process, as well as the
substantive review of the proposed
facility modification, are all completed
within 60 days. If not, the eligible
facilities request would be deemed
granted under the Commission’s rules.
10. Third, the Commission clarifies
that a local government may not delay
the start of the shot clock by declining
to accept an applicant’s submission of
documentation intended to satisfy the
second of the criteria for starting the
shot clock. In addition, a local
government may not delay the start of
the shot clock by requiring an applicant
to submit documentation that is not
reasonably related to determining
whether the proposed modification is an
eligible facilities request. The
Commission clarifies how its
documentation rules apply in the
context of the shot clock to provide
certainty that unnecessary
documentation requests do not
effectively delay the shot clock as part
of the local government’s ‘‘first step,’’
even if providing that documentation
would be within the applicant’s control
and could be objectively verified. For
example, if a locality requires as the first
step in its section 6409(a) process that
an applicant meet with a local zoning
board, that applicant would not need to
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submit local zoning documentation as
well in order to trigger the shot clock.
11. Fourth, the Commission notes that
a local government may use conditional
use permits, variances, or other similar
types of authorizations under the local
government’s standard zoning or siting
rules, in connection with the
consideration of an eligible facilities
request. The Commission clarifies,
however, that requirements to obtain
such authorizations may not be used by
the local government to delay the start
of or to toll the shot clock under the
section 6409(a) process. The shot clock
would begin once the applicant takes
the first step in whatever process the
local government uses in connection
with reviewing applications subject to
section 6409(a) and satisfies the second
of the criteria (documentation). The
Commission rejects localities’
suggestions that the shot clock should
not commence until an applicant
submits documentation required for all
necessary permits, as such an approach
is inconsistent with federal law.
Subsequently, if the locality rejects the
applicant’s request to modify wireless
facilities as incomplete based on
requirements relating to such permits,
variances, or similar authorizations, the
shot clock would not be tolled and the
application would be deemed granted
after 60 days if the application
constitutes an eligible facilities request
under the Commission’s rules.
Localities may only toll the shot clock
‘‘by mutual agreement’’ or if the locality
‘‘determines that the application is
incomplete.’’
12. Fifth, the Commission notes that
some jurisdictions have not established
specific procedures for the review and
approval of eligible facilities requests
under Section 6409(a). In those cases,
the Commission clarifies that, for
purposes of triggering the shot clock
under Section 6409(a), the applicant can
consider the first procedural step to be
submission of the type of filing that is
typically required to initiate a standard
zoning or siting review of a proposed
deployment that is not subject to section
6409(a). Comparable modification
requests might include applications to
install, modify, repair, or replace
wireless transmission equipment on a
structure that is outside the scope of
Section 6409(a), or to mount cable
television, wireline telephone, or
electric distribution cables or equipment
on outdoor towers or poles. Where the
first step in the process is submission of
the type of filing that is typically
required for comparable modification
requests, the Commission notes that
applicants are not required to file any
documentation that is inconsistent with
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the Commission’s rules for eligible
facilities requests under Section 6409(a).
13. The Commission finds that these
clarifications serve to remove
uncertainty about the scope and
meaning of various provisions of
Section 1.6100 consistent with the text,
history, and purpose of the 2014
Infrastructure Order. The Commission
also notes that the commencement of
the shot clock does not excuse the
applicant from continuing to follow the
locality’s procedural and substantive
requirements (to the extent those
requirements are consistent with the
Commission’s rules), including
obligations ‘‘to comply with generally
applicable building, structural,
electrical, and safety codes or with other
laws codifying objective standards
reasonably related to health and safety.’’
B. Height Increase for Towers Outside
the Public Rights-of-Way
14. Adding new collocated equipment
near or at the top of an existing tower
can be an efficient means of expanding
the capacity or coverage of a wireless
network without the disturbances
associated with building an entirely
new structure. Adding this equipment
to an existing tower would change the
tower’s physical dimensions, but if such
a change is not ‘‘substantial,’’ then a
request to implement it would qualify as
an eligible facilities request, and a
locality would be required to approve it.
Section 1.6100(b)(7)(i) provides that a
modification on a tower outside of the
public rights-of-way would cause a
substantial change if it ‘‘increases the
height of the tower by more than 10%
or by the height of one additional
antenna array with separation from the
nearest existing antenna not to exceed
twenty feet, whichever is greater.’’
15. Commenters assert that they have
two different interpretations of the
meaning of this language in Section
1.6100(b)(7)(i). Industry commenters
read Section 1.6100(b)(7)(i) as allowing
a new antenna to be added without
being a substantial change if there is no
more than twenty feet in ‘‘separation’’
between the existing and new antennas,
and that the size/height of the new
antenna itself is irrelevant to the
concept of ‘‘separation.’’ Localities
appear to be of the view, however, that
such an interpretation strains what the
statute and regulations would permit—
creating different standards for antenna
height depending on where it is located
and leading to indefinite increases in
antenna height under a streamlined
process not designed for that purpose.
Adding an antenna array to a tower out
of the public right-of-way that increases
the height of the tower would not be
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considered a substantial change, by
itself, if there is no more than twenty
feet of separation between the nearest
existing antenna. The phrase
‘‘separation from the nearest existing
antenna’’ means the distance from the
top of the highest existing antenna on
the tower to the bottom of the proposed
new antenna to be deployed above it.
Thus, when determining whether an
application satisfies the criteria for an
eligible facilities request, localities
should not measure this separation from
the top of the existing antenna to the top
of the new antenna, because the height
of the new antenna itself should not be
included when calculating the
allowable height increase. Rather, under
the Commission’s interpretation, the
word ‘‘separation’’ refers to the distance
from the top of the existing antenna to
the bottom of the proposed antenna.
Interpreting ‘‘separation’’ otherwise to
include the height of the new antenna
could limit the number of proposed
height increases that would qualify for
Section 6409(a) treatment, given typical
antenna sizes and separation distances
between antennas, which would
undermine the statute’s objective to
facilitate streamlined review of
modifications of existing wireless
structures.
16. Specifically, and in response to
commenters’ arguments regarding the
language in Section 1.6100(b)(7)(i), the
Commission find that its resolution is
consistent with the long-established
interpretation of the comparable
standard set forth in the 2001
Collocation Agreement for determining
the maximum size of a proposed
collocation that is categorically
excluded from historic preservation
review. Commission staff explained, in
a fact sheet released in 2002, that under
this provision of the Collocation
Agreement, if a ‘‘150-foot tower . . .
already [has] an antenna at the top of
the tower, the tower height could
increase by up to 20 feet [i.e., the
‘‘separation’’ distance] plus the height of
a new antenna to be located at the top
of the tower’’ without constituting a
substantial increase in size. That
standard was the source of the standard
for the allowable height increases for
towers outside the rights-of-way that the
Commission adopted in the 2014
Infrastructure Order.
17. The Commission’s interpretation
also aligns with the clarification sought
by WIA and other industry parties. The
Commission rejects the argument that
this interpretation creates irrational
inconsistences among height increase
standards depending on the type of
structure and whether a tower is inside
or outside the rights-of-way. As the
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Commission discussed in the 2014
Infrastructure Order, limits on height
and width increases should depend on
the type and location of the underlying
structure. The Commission therefore
adopted the Collocation Agreement’s
‘‘substantial increase in size’’ test for
towers outside the rights-of-way, and it
adopted a different standard for nontower structures. Localities are
rearguing an issue already settled in the
2014 Infrastructure Order when they
urge that the same height increase
standard should apply to different types
of structures. The Commission also
rejects the argument that this
interpretation would lead to virtually
unconstrained increases in the height of
such towers. These concerns are
unwarranted because the 2014
Infrastructure Order already limits the
cumulative increases in height from
eligible modifications and nothing in
this Declaratory Ruling changes those
limits.
18. The clarification is limited to
Section 1.6100(b)(7)(i) and the
maximum increase in the height of a
tower outside the rights-of-way allowed
pursuant to an eligible facilities request
under Section 6409(a). The Commission
reminds applicants that ‘‘eligible facility
requests covered by Section 6409(a)
must comply with any relevant Federal
requirement, including any applicable
Commission, FAA, NEPA, or Section
106 [historic review] requirements.’’
C. Equipment Cabinets
19. To upgrade to 5G and for other
technological and capacity
improvements, providers often add
equipment cabinets to existing wireless
sites. Section 1.6100(b)(7)(iii) provides
that a proposed modification to a
support structure constitutes a
substantial change if ‘‘it involves
installation of more than the standard
number of new equipment cabinets for
the technology involved, but not to
exceed four cabinets.’’ Some localities
suggest that telecommunications
transmission equipment manufactured
with outer protective covers can be
‘‘equipment cabinets’’ under Section
1.6100(b)(7)(iii) of the rules. The
Commission concludes that localities
are interpreting ‘‘equipment cabinet’’
under Section 1.6100(b)(7)(iii) too
broadly to the extent they are treating
equipment itself as a cabinet simply
because transmission equipment may
have protective housing. Nor does a
small piece of transmission equipment
mounted on a structure become an
‘‘equipment cabinet’’ simply because it
is more visible when mounted above
ground. Consistent with common usage
of the term ‘‘equipment cabinet’’ in the
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telecommunications industry, small
pieces of equipment such as remote
radio heads/remote radio units,
amplifiers, transceivers mounted behind
antennas, and similar devices are not
‘‘equipment cabinets’’ under Section
1.6100(b)(7)(iii) if they are not used as
physical containers for smaller, distinct
devices. Moreover, the Commission
notes that Section 1.6100(b)(3) defines
an ‘‘eligible facilities request’’ (i.e., a
request entitled to streamlined
treatment under Section 6409(a)) as any
request for modification of an existing
tower or base station that does not
substantially change the physical
dimensions of such tower or base
station and that involves the
collocation, removal or replacement of
‘‘transmission equipment.’’ Interpreting
‘‘transmission equipment,’’ an element
required in order for a modification to
qualify for streamlined treatment, to be
‘‘equipment cabinets,’’ an element that
is subject to numerical limits that can
cause the modification not to qualify for
streamlined treatment, would strain the
intended purposes of Sections
1.6100(b)(3) and 1.6100(b)(7)(iii). The
Commission does not address here other
aspects of the definition of equipment
cabinets on which industry commenters
seek clarification.
20. In addition, the Commission
clarifies that the maximum number of
additional equipment cabinets that can
be added under the rule is measured for
each separate eligible facilities request.
According to WIA, one unidentified city
in Tennessee interprets the term ‘‘not to
exceed four cabinets’’ in Section
1.6100(b)(7)(iii) as ‘‘setting a cumulative
limit, rather than a limit on the number
of cabinets associated with a particular
eligible facilities request.’’ The
Commission finds that such an
interpretation runs counter to the text of
Section 1.6100(b)(7)(iii), which restricts
the number of ‘‘new’’ cabinets per
eligible facilities request. The city’s
interpretation ignores the fact that the
word ‘‘it’’ in the rule refers to a
‘‘modification’’ and supports the
conclusion that the limit on equipment
cabinet installations applies separately
to each eligible facilities request. This
conclusion is also supported by the
context of the rule as a whole. The
number and size of preexisting cabinets
are irrelevant to the limitation on
equipment cabinets on eligible support
structures, in contrast to the rest of the
rule, which takes into account whether
there are preexisting ground cabinets at
the site and whether proposed new
cabinets’ volume exceeds the volume of
preexisting cabinets by more than 10%.
21. Several localities argue that this
clarification would permit an applicant
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to add an unlimited number of new
equipment cabinets to a structure so
long as the applicant proposes adding
them in increments of four or less. The
Commission disagrees that this
clarification permits an unlimited
number of cabinets on a structure. The
text of Section 1.6100(b)(7)(iii) limits
the number of equipment cabinets per
modification to no more than ‘‘the
standard number of new equipment
cabinets for the technology involved.’’
D. Concealment Elements
22. Section 1.6100(b)(7)(v) states that
a modification ‘‘substantially changes’’
the physical dimensions of an existing
structure if ‘‘[i]t would defeat the
concealment elements of the eligible
support structure.’’ The 2014
Infrastructure Order provides that, ‘‘in
the context of a modification request
related to concealed or ‘stealth’designed facilities —i.e., facilities
designed to look like some feature other
than a wireless tower or base station—
any change that defeats the concealment
elements of such facilities would be
considered a ‘substantial change’ under
Section 6409(a).’’ The 2014
Infrastructure Order notes that both
locality and industry commenters
generally agreed that ‘‘a modification
that undermines the concealment
elements of a stealth wireless facility,
such as painting to match the
supporting fac¸ade or artificial tree
branches, should be considered
substantial under Section 6409(a).’’
23. Stakeholders subsequently have
interpreted the definition of
‘‘concealment element’’ and the types of
modifications that would ‘‘defeat’’
concealment in different ways.
Petitioners and industry commenters
urge the Commission to clarify that the
term ‘‘concealment element’’ only refers
to ‘‘a stealth facility or those aspects of
a design that were specifically intended
to disguise the appearance of a facility,
such as faux tree branches or paint
color.’’ T-Mobile states that some
localities are ‘‘proffering ‘creative or
inappropriate’ regulatory interpretations
of what a concealment element is.’’
Locality commenters counter that there
is more to concealment than ‘‘fully
stealthed facilities and semi-stealthed
monopines.’’ They argue that the
proposed changes would undermine the
ability of local jurisdictions to enforce
regulations designed to conceal
equipment. NLC asserts that many
attributes of a site contribute to
concealment, such as the ‘‘specific
location of a rooftop site, or the
inclusion of equipment in a particular
architectural feature.’’ Locality
commenters contend that limiting
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concealment elements to features
identified in the original approval
would negate land use requirements
that were a factor in the original
deployment but not specified as such.
24. Clarification of ‘‘Concealment
Element.’’ The Commission clarifies that
concealment elements are elements of a
stealth-designed facility intended to
make the facility look like something
other than a wireless tower or base
station. The 2014 Infrastructure Order
defines ‘‘concealed or ‘stealth’ ’’designed facilities as ‘‘facilities
designed to look like some feature other
than a wireless tower or base station,’’
and further provides that any change
that defeats the concealment elements of
such facilities would be considered a
substantial change under Section
6409(a). Significantly, the 2014
Infrastructure Order identified parts of a
stealth wireless facility such as
‘‘painting to match the supporting
fac¸ade or artificial tree branches’’ as
examples of concealment elements. The
Commission agrees with industry
commenters that concealment elements
are those elements of a wireless facility
installed for the purpose of rendering
the ‘‘appearance of the wireless facility
as something fundamentally different
than a wireless facility,’’ and that
concealment elements are ‘‘confined to
those used in stealth facilities.’’
25. The Commission disagrees with
localities who argue that any attribute
that minimizes the visual impact of a
facility, such as a specific location on a
rooftop site or placement behind a tree
line or fence, can be a concealment
element. As localities acknowledged in
comments they submitted in response to
the 2013 Infrastructure NPRM, ‘‘local
governments often address visual effects
and concerns in historic districts not
through specific stealth conditions, but
through careful placement’’ conditions.
The Commission’s rules separately
address conditions to minimize the
visual impact of non-stealth facilities
under Section 1.6100(b)(7)(vi) governing
‘‘conditions associated with the siting
approval.’’ The Commission narrowly
defined concealment elements to mean
the elements of a stealth facility, and no
other conditions fall within the scope of
Section 1.6100(b)(7)(v).
26. The Commission also clarifies
that, in order to be a concealment
element under Section 1.6100(b)(7)(v),
the element must have been part of the
facility that the locality approved in its
prior review. The Commission’s
clarification that concealment elements
must be related to the locality’s prior
approval is informed by the 2014
Infrastructure Order and its underlying
record, which assumed that ‘‘stealth’’
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designed facilities in most cases would
be installed at the request of an
approving local government. Further, in
the 2014 Infrastructure Order, the
Commission stated that a modification
would be considered a substantial
increase if ‘‘it would defeat the existing
concealment elements of the tower or
base station.’’ The Commission clarifies
that the term ‘‘existing’’ means that the
concealment element existed on the
facility that was subject to a prior
approval by the locality. In addition, the
record in the 2014 Infrastructure Order,
as relied upon by the Commission,
characterized stealth requirements as
identifiable, pre-existing elements in
place before an eligible facilities request
is submitted.
27. Regarding the meaning of a prior
approval in the context of an ‘‘existing’’
concealment element, the Commission
notes that Section 1.6100(b)(7)(i)
provides that permissible increases in
the height of a tower (other than a tower
in the public rights-of-way) should be
measured relative to a locality’s original
approval of the tower or the locality’s
approval of any modifications that were
approved prior to the passage of the
Spectrum Act. The Commission finds it
reasonable to interpret an ‘‘existing’’
concealment element relative to the
same temporal reference points, which
are intended to allow localities to adopt
legitimate requirements for approval of
an original tower at any time but not to
allow localities to adopt these same
requirements for a modification to the
original tower (except for a modification
prior to the Spectrum Act when
localities would not have been on notice
of the limitations in Section 6409(a)). In
other words, the purpose of Section
1.6100(b)(7)(v) is to identify and
preserve prior local recognition of the
need for such concealment, but not to
invite new restrictions that the locality
did not previously identify as necessary.
Accordingly, the Commission clarifies
that under Section 1.6100(b)(7)(v), a
concealment element must have been
part of the facility that was considered
by the locality at the original approval
of the tower or at the modification to the
original tower, if the approval of the
modification occurred prior to the
Spectrum Act or lawfully outside of the
Section 6409(a) process (for instance, an
approval for a modification that did not
qualify for streamlined Section 6409(a)
treatment).
28. The Commission is not persuaded
by localities’ arguments that this
clarification would negate land use
requirements that were a factor in the
approval of the original deployment
even if those requirements were not
specified as a condition. The
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clarification does not mean that a
concealment element must have been
explicitly articulated by the locality as
a condition or requirement of a prior
approval. While specific words or
formulations are not needed, there must
be express evidence in the record to
demonstrate that a locality considered
in its approval that a stealth design for
a telecommunications facility would
look like something else, such as a pine
tree, flag pole, or chimney. However, it
would be inconsistent with the purpose
of Section 6409(a)—facilitating wireless
infrastructure deployment—to give local
governments discretion to require new
concealment elements that were not part
of the facility that was subject to the
locality’s prior approval. The
Commission expects that this
clarification will also promote the
purpose of the rules to provide greater
certainty to localities and applicants as
to whether a concealment element
exists.
29. Clarification of ‘‘Defeat
Concealment.’’ Next, the Commission
clarifies that, to ‘‘defeat concealment,’’
the proposed modification must cause a
reasonable person to view the
structure’s intended stealth design as no
longer effective after the modification.
In other words, if the stealth design
features would continue effectively to
make the structure appear not to be a
wireless facility, then the modification
would not defeat concealment. The
Commission’s definition is consistent
with dictionary definitions and common
usage of the term ‘‘defeat’’ and is
supported by the record. The
clarification is necessary because, as
industry commenters point out, some
localities construe even small changes
to ‘‘defeat’’ concealment, which delays
deployment, extends the review
processes for modifications to existing
facilities, and frustrates the intent
behind Section 6409(a).
30. Examples of Whether
Modifications Defeat Concealment
Elements. The Commission offers the
following examples to provide guidance
on concealment elements and whether
or not they have been defeated to help
inform resolution of disputes should
they arise:
• In some cases, localities take the
position that the placement of coaxial
cable on the outside of a stealth facility
constitutes a substantial change based
on the visual impact of the cable.
Coaxial cables typically range from 0.2
inches to slightly over a half-inch in
diameter, and it is unlikely that such
cabling would render the intended
stealth design ineffective at the
distances where individuals would view
a facility.
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• In other cases, localities have
interpreted any change to the color of a
stealth tower or structure as defeating
concealment. Such interpretations are
overly broad and can frustrate
Congress’s intent to expedite the Section
6409(a) process. A change in color must
make a reasonable person believe that
the intended stealth is no longer
effective. Changes to the color of a
stealth structure can occur for many
reasons, including for example, the
discontinuance of the previous color.
An otherwise compliant eligible
facilities request will not defeat
concealment in this case merely because
the modification uses a slightly different
paint color. Further, if the new
equipment is shielded by an existing
shroud that is not being modified, then
the color of the equipment is irrelevant
because it is not visible to the public
and would not render an intended
concealment ineffective. Therefore, such
a change would not defeat concealment.
• WIA reports that a locality in
Colorado claims that a small increase in
height on a stealth monopine, which is
less than the size thresholds of Section
1.6100(b)(7)(i) through (iv), defeats
concealment and therefore constitutes a
substantial change. The Commission
clarifies that such a change would not
defeat concealment if the change in size
does not cause a reasonable person to
view the structure’s intended stealth
design (i.e., the design of the wireless
facility to resemble a pine tree) as no
longer effective after the modification.
• If a prior approval included a
stealth-designed monopine that must
remain hidden behind a tree line, a
proposed modification within the
thresholds of Section 1.6100(b)(7)(i)
through (iv) that makes the monopine
visible above the tree line would be
permitted under Section 1.6100(b)(7)(v).
First, the concealment element would
not be defeated if the monopine retains
its stealth design in a manner that a
reasonable person would continue to
view the intended stealth design as
effective. Second, a requirement that the
facility remain hidden behind a tree line
is not a feature of a stealth-designed
facility; rather it is an aesthetic
condition that falls under Section
1.6100(b)(7)(vi). Under that analysis, as
explained in greater detail below, a
proposed modification within the
thresholds of Section 1.6100(b)(7)(i)
through (iv) that makes the monopine
visible above the tree line likely would
be permitted under Section
1.6100(b)(7)(vi).
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E. Conditions Associated With the Siting
Approval
31. Section 1.6100(b)(7)(vi) states that
a modification is a substantial increase
if ‘‘[i]t does not comply with conditions
associated with the siting approval of
the construction or modification of the
eligible support structure or base station
equipment, provided however that this
limitation does not apply to any
modification that is non-compliant only
in a manner that would not exceed the
thresholds identified in
§ 1.61001(b)(7)(i) through (iv).’’ Industry
commenters argue that changes
specifically allowed under Section
1.6100(b)(7)(i) through (iv) should not
constitute a substantial change under
Section 1.6100(b)(7)(vi). For example,
the record shows that some localities
claim that small increases in the size of
a structure, such as increasing its height
or increasing the width of its cannister,
are a substantial change because they
wrongly characterize any increase to a
structure’s visual profile or negative
aesthetic impact as defeating a
concealment element—even if the size
changes would be within the allowances
under the Commission’s rules.
32. Conditions associated with the
siting approval under Section
1.6100(b)(7)(vi) may relate to improving
the aesthetics, or minimizing the visual
impact, of non-stealth facilities
(facilities not addressed under Section
1.6100(b)(7)(v)). However, localities
cannot merely assert that a detail or
feature of the facility was a condition of
the siting approval; there must be
express evidence that at the time of
approval the locality required the
feature and conditioned approval upon
its continuing existence in order for
non-compliance with the condition to
disqualify a modification from being an
eligible facilities request. Even so, like
any other condition under Section
1.6100(b)(7)(vi), such an aestheticsrelated condition still cannot be used to
prevent modifications specifically
allowed under Section 1.6100(b)(7)(i)
through (iv) of the Commission’s rules.
Consistent with ‘‘commonplace [ ]
statutory construction that the specific
governs the general,’’ the Commission
clarifies that where there is a conflict
between a locality’s general ability to
impose conditions under (vi) and
modifications specifically deemed not
substantial under (i)–(iv), the conditions
under (vi) should be enforced only to
the extent that they do not prevent the
modification in (i)–(iv). In other words,
when a proposed modification
otherwise permissible under Section
1.6100(b)(7)(i) through (iv) cannot
reasonably comply with conditions
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under Section 1.6100(b)(7)(vi), the
conflict should be resolved in favor of
permitting the modifications. For
example, a local government’s condition
of approval that requires a specifically
sized shroud around an antenna could
limit an increase in antenna size that is
otherwise permissible under Section
1.6100(b)(7)(i). Under Section
1.6100(b)(7)(vi), however, the size limit
of the shroud would not be enforceable
if it purported to prevent a modification
to add a larger antenna, but a local
government could enforce its shrouding
condition if the provider reasonably
could install a larger shroud to cover the
larger antenna and thus meet the
purpose of the condition.
33. By providing guidance on the
relationship between Section
1.6100(b)(7)(i) through (iv) and
1.6100(b)(7)(vi), including the
limitations on conditions that a locality
may impose, the Commission expects
there to be fewer cases where
conditions, especially aesthetic
conditions, are improperly used to
prevent modifications otherwise
expressly allowed under Section
1.6100(b)(7)(i) through (iv). The
Commission reaffirms that beyond the
specific conditions that localities may
impose through Section 1.6100(b)(7)(vi),
localities can enforce ‘‘generally
applicable building, structural,
electrical, and safety codes’’ and ‘‘other
laws codifying objective standards
reasonably related to health and safety.’’
34. Examples of Aesthetics Related
Conditions. Petitioners and both
industry and locality commenters have
provided numerous examples of
disputes involving modifications to
wireless facilities. Using examples from
the record, and assuming that the
locality has previously imposed an
aesthetic-related condition under
Section 1.6100(b)(7)(vi), the
Commission offers examples to provide
guidance on the validity of the
condition to decrease future disputes
and to help inform resolution of
disputes should they arise:
• If a city has an aesthetic-related
condition that specified a three-foot
shroud cover for a three-foot antenna,
the city could not prevent the
replacement of the original antenna
with a four-foot antenna otherwise
permissible under Section
1.6100(b)(7)(i) because the new antenna
cannot fit in the shroud. As described
above, if there was express evidence
that the shroud was a condition of
approval, the city could enforce its
shrouding condition if the provider
reasonably could install a four-foot
shroud to cover the new four-foot
antenna. The city also could enforce a
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shrouding requirement that is not sizespecific and that does not limit
modifications allowed under Section
1.6100(b)(7)(i) through (iv).
• T-Mobile claims that some localities
consider existing walls and fences
around non-camouflaged towers to be
concealment elements that have been
defeated if new equipment is visible
over those walls or fences. First, such
conditions are not concealment
elements; rather, they are considered
aesthetic conditions under Section
1.6100(b)(7)(vi). Such conditions may
not prevent modifications specifically
allowed by Section 1.6100(b)(7)(i)
through (iv). However, if there were
express evidence that the wall or fence
were conditions of approval to fully
obscure the original equipment from
view, the locality may require a
provider to make reasonable efforts to
extend the wall or fence to maintain the
covering of the equipment.
• If an original siting approval
specified that a tower must remain
hidden behind a tree line, a proposed
modification within the thresholds of
Section 1.6100(b)(7)(i) through (iv) that
makes the tower visible above the tree
line would be permitted under Section
1.6100(b)(7)(vi), because the provider
cannot reasonably replace a grove of
mature trees with a grove of taller
mature trees to maintain the absolute
hiding of the tower.
• In a similar vein, San Francisco has
conditions to reduce the visual impact
of a wireless facility, including that it
must be set back from the roof at the
front building wall. San Francisco states
that it will not approve a modification
if the new equipment to be installed
does not meet the set back requirement.
Even if a proposed modification within
the thresholds of Section 1.6100(b)(7)(i)
through (iv) exceeds the required set
back, San Francisco could enforce its set
back condition if the provider
reasonably could take other steps to
reduce the visual impact of the facility
to meet the purpose of its condition.
F. Environmental Assessments After
Execution of Memorandum of
Agreement
35. The Commission’s environmental
rules implementing the National
Environmental Policy Act categorically
exclude all actions from environmental
evaluations, including the preparation
of an environmental assessment, except
for defined actions associated with the
construction of facilities that may
significantly affect the environment.
Pursuant to Section 1.1307(a) of the
Commission’s rules, applicants
currently submit an environmental
assessment for those facilities that fall
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within specific categories, including
facilities that may affect historic
properties protected under the National
Historic Preservation Act. Under the
Commission’s current process, an
applicant submits an environmental
assessment for facilities that may affect
historic properties, even if the applicant
has executed a memorandum of
agreement with affected parties to
address those adverse effects.
36. The Commission clarifies on its
own motion that an environmental
assessment is not needed when the FCC
and applicants have entered into a
memorandum of agreement to mitigate
effects of a proposed undertaking on
historic properties, consistent with
Section VII.D of the Wireless Facilities
Nationwide Programmatic Agreement, if
the only basis for the preparation of an
environmental assessment was the
potential for significant effects on such
properties. The Commission expects
this clarification should further
streamline the environmental review
process.
37. Section 1.1307(a)(4) of the
Commission’s rules requires an
environmental assessment if a proposed
communications facility may have a
significant effect on a historic property.
The Commission adopted a process to
identify potential effects on historic
properties by codifying the Wireless
Facilities Nationwide Programmatic
Agreement as the means to comply with
Section 106 of the National Historic
Preservation Act. If adverse effects on
historic properties are identified during
this process, the Wireless Facilities
Nationwide Programmatic Agreement
requires that the applicant consult with
the State Historic Preservation Officer
and/or Tribal Historic Preservation
Officer, and other interested parties to
avoid, minimize, or mitigate the adverse
effects.
38. When such effects cannot be
avoided, under the terms of the Wireless
Facilities Nationwide Programmatic
Agreement, the applicant, the State
Historic Preservation Officer and/or
Tribal Historic Preservation Officer, and
other interested parties may proceed to
negotiate a memorandum of agreement
that the signatories agree fully mitigates
all adverse effects. The agreement is
then sent to Commission staff for review
and signature. Under current practice,
even after a memorandum of agreement
is executed, an applicant is still
required to prepare an environmental
assessment and file it with the
Commission. The Commission
subsequently places the environmental
assessment on public notice, and the
public has 30 days to file comments/
oppositions. If the environmental
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assessment is determined to be
sufficient and no comments or
oppositions are filed, the Commission
issues a Finding of No Significant
Impact and allows an applicant to
proceed with the project.
39. In this Declaratory Ruling the
Commission clarifies that an
environmental assessment is
unnecessary after an adverse effect on a
historic property is mitigated by a
memorandum of agreement. Applicants
already are required to consider
alternatives to avoid adverse effects
prior to executing a memorandum of
agreement. The executed agreement
demonstrates that the applicant: Has
notified the public of the proposed
undertaking; has consulted with the
State Historic Preservation Officer and/
or Tribal Historic Preservation Officers,
and other interested parties to identify
potentially affected historic properties;
and has worked with such parties to
agree on a plan to mitigate adverse
effects. This mitigation eliminates any
significant adverse effects on a historic
property, and each memorandum of
agreement must include as a standard
provision that the memorandum of
agreement ‘‘shall constitute full,
complete, and adequate mitigation
under the NHPA . . . and the FCC’s
rules.’’
40. The Commission notes that
Section 1.1307(a) requires an applicant
to submit an environmental assessment
if a facility ‘‘may significantly affect the
environment,’’ which includes facilities
that may affect historic properties,
endangered species, or critical habitats.
As a result of the mitigation required by
a memorandum of agreement, the
Commission concludes that any effects
on historic properties remaining after
the agreement is executed would be
below the threshold of ‘‘significance’’ to
trigger an environmental assessment.
After the memorandum of agreement is
executed, a proposed facility should no
longer ‘‘have adverse effects on
identified historic properties’’ within
the meaning of Section 1.1307(a)(4) and,
therefore, should no longer be within
the ‘‘types of facilities that may
significantly affect the environment.’’ If
none of the other criteria for requiring
an environmental assessment in Section
1.1307(a) exist, then such facilities
automatically fall into the broad
category of actions that the Commission
has already found to ‘‘have no
significant effect on the quality of the
human environment and are
categorically excluded from
environmental processing.’’ The
Commission’s rules should be read in
light of the scope of the Commission’s
obligation under Section 106 and the
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ACHP’s rules, which explicitly state that
such a memorandum of agreement
‘‘evidences the agency official’s
compliance with section 106.’’ The
Commission reminds applicants that an
environmental assessment is still
required if the proposed project may
significantly affect the environment in
ways unrelated to historic properties.
II. Procedural Matters
41. Paperwork Reduction Act. This
Declaratory Ruling does not contain
proposed information collection(s)
subject to the Paperwork Reduction Act
of 1995 (PRA), Public Law 104–13. In
addition, therefore, it does not contain
any 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).
42. Congressional Review Act. The
Commission has determined, and the
Administrator of the Office of
Information and Regulatory Affairs,
Office of Management and Budget,
concurs that this rule is ‘‘non-major’’
under the Congressional Review Act, 5
U.S.C. 804(2). The Commission will
send a copy of this Declaratory Ruling
to Congress and the Government
Accountability Office pursuant to 5
U.S.C. 801(a)(1)(A).
III. Ordering Clauses
43. Accordingly, it is ordered,
pursuant to Sections 1, 4(i)–(j), 7, 201,
253, 301, 303, 309, 319, and 332 of the
Communications Act of 1934, as
amended, and Section 6409 of the
Middle Class Tax Relief and Job
Creation Act of 2012, as amended, 47
U.S.C. 151, 154(i) through (j), 157, 201,
253, 301, 303, 309, 319, 332, 1455 that
this Declaratory Ruling in WT Docket
No. 19–250 and RM–11849 Is hereby
Adopted.
44. It is further ordered that this
Declaratory Ruling shall be effective
upon release. It is the Commission’s
intention in adopting the foregoing
Declaratory Ruling that, if any provision
of the Declaratory Ruling, or the
application thereof to any person or
circumstance, is held to be unlawful,
the remaining portions of such
Declaratory Ruling not deemed
unlawful, and the application of such
Declaratory Ruling to other person or
circumstances, shall remain in effect to
the fullest extent permitted by law.
45. It is further ordered that, pursuant
to 47 CFR 1.4(b)(1), the period for filing
petitions for reconsideration or petitions
for judicial review of this Declaratory
Ruling will commence on
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the date that this Declaratory Ruling is
released.
46. It is further ordered that the
Commission’s Consumer &
Governmental Affairs Bureau, Reference
Information Center, Shall Send a copy
of this Declaratory Ruling to the Chief
VerDate Sep<11>2014
18:39 Jul 24, 2020
Jkt 250001
Counsel for Advocacy of the Small
Business Administration.
47. It is further ordered that this
Declaratory Ruling shall be sent to
Congress and the Government
Accountability Office pursuant to the
PO 00000
Congressional Review Act, see 5 U.S.C.
801(a)(1)(A).
Federal Communications Commission.
Marlene Dortch,
Secretary.
[FR Doc. 2020–13951 Filed 7–24–20; 8:45 am]
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Agencies
[Federal Register Volume 85, Number 144 (Monday, July 27, 2020)]
[Rules and Regulations]
[Pages 45126-45134]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13951]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 1
[WT Docket No. 19-250 and RM-11849; FCC 20-75: FRS 16876]
Accelerating Wireless and Wireline Broadband Deployment by
Removing Barriers to Infrastructure Investment
AGENCY: Federal Communications Commission.
ACTION: Declaratory ruling.
-----------------------------------------------------------------------
SUMMARY: In this document, the Federal Communications Commission
(``Commission'' or ``FCC'') clarifies its rules implementing portions
of the Spectrum Act of 2012 that streamline State and local review of
applications to modify existing wireless infrastructure. The
Declaratory Ruling clarifies the following: When the 60-day shot clock
starts for local governments to review and approve an eligible
modification; what constitutes a ``substantial change'' when a
modification would increase the height of an existing structure, would
require the addition of equipment cabinets, or would change the visual
profile of a structure; and whether, within the context of the
Commission's environmental review rules, an environmental assessment is
required when an impact to historic properties has already been
mitigated in the Commission's historic preservation review process.
DATES: This Declaratory Ruling was effective June 10, 2020.
[[Page 45127]]
FOR FURTHER INFORMATION CONTACT: Paul D'Ari, [email protected], of the
Wireless Telecommunications Bureau, Competition & Infrastructure Policy
Division, (202) 418-1150.
SUPPLEMENTARY INFORMATION: This is a summary of the FCC's Declaratory
Ruling in WT Docket No. 19-250 and RM-11849, FCC 20-75, adopted on June
9, 2020, and released on June 10, 2020. The document is available for
download at https://www.fcc.gov/edocs. 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).
Synopsis
I. Declaratory Ruling
1. In this Declaratory Ruling, the Commission clarifies several key
elements that determine whether a modification request qualifies as an
eligible facilities request that a State or local government must
approve within 60 days, and it clarifies when the 60-day shot clock for
review of an eligible facilities request commences. These
interpretations provide greater certainty to applicants for State and
local government approval of wireless facility modifications, as well
as to the reviewing government agencies, and these interpretations
should accelerate the deployment of advanced wireless networks.
2. Specifically, the Commission clarifies that:
The 60-day shot clock in Sec. 1.6100(c)(2) begins to run
when an applicant takes the first procedural step in a locality's
application process and submits written documentation showing that a
proposed modification is an eligible facilities request;
The phrase ``with separation from the nearest existing
antenna not to exceed twenty feet'' in Sec. 1.6100(b)(7)(i) allows an
increase in the height of the tower of up to twenty (20) feet between
antennas, as measured from the top of an existing antenna to the bottom
of a proposed new antenna on the top of a tower;
The term ``equipment cabinets'' in Sec. 1.6100(b)(7)(iii)
does not include relatively small electronic components, such as remote
radio units, radio transceivers, amplifiers, or other devices mounted
on the structure, and up to four such cabinets may be added to an
existing facility per separate eligible facilities request;
The term ``concealment element'' in Sec. 1.6100(b)(7)(v)
means an element that is part of a stealth-designed facility intended
to make a structure look like something other than a wireless facility,
and that was part of a prior approval;
To ``defeat'' a concealment element under Sec.
1.6100(b)(7)(v), a proposed modification must cause a reasonable person
to view a structure's intended stealth design as no longer effective;
and
The phrase ``conditions associated with the siting
approval'' may include aesthetic conditions to minimize the visual
impact of a wireless facility as long as the condition does not prevent
modifications explicitly allowed under Sec. 1.6100(b)(7)(i) through
(iv) (antenna height, antenna width, equipment cabinets, and
excavations or deployments outside the current site) and so long as
there is express evidence that at the time of approval the locality
required the feature and conditioned approval upon its continuing
existence.
3. Certain parties contend that the Commission lacks legal
authority to adopt the rulings requested in the petitions, which they
contend do not just clarify or interpret the rules established in 2014
but also change them, requiring that the Commission issue a Notice of
Proposed Rulemaking followed by a Report and Order. As an initial
matter, the Commission notes that it is not adopting all of the rulings
requested in WIA's and CTIA's petitions for declaratory ruling because
it finds incremental action to be an appropriate step at this juncture,
particularly given, as mentioned above, that the Commission has
continued to take steps to ease barriers to deployment of wireless
infrastructure since adopting rules to implement Section 6409(a). The
determinations in this Declaratory Ruling are intended solely to
interpret and clarify the meaning and scope of the existing rules set
forth in the 2014 Infrastructure Order, in order to remove uncertainty
and in light of the differing positions of the parties on these
questions. In addition, the Commission finds it appropriate to initiate
a Notice of Proposed Rulemaking regarding tower site boundaries and
excavation or deployment outside the boundaries of an existing tower
site, in order to consider whether modifications of its rules are
needed to resolve current disputes. The Commission intends, with these
steps, to continue to advance the same goals that led it to adopt
regulations implementing Section 6409(a) in the first instance--to
avoid ambiguities leading to disputes that could undermine the goals of
the Spectrum Act, i.e., to advance wireless broadband service.
A. Commencement of Shot Clock
4. Section 1.6100(c)(2) provides that the 60-day review period for
eligible facilities requests begins ``on the date on which an applicant
submits a request seeking approval.'' If the local jurisdiction ``fails
to approve or deny a request seeking approval under this section within
the timeframe for review (accounting for any tolling), the request
shall be deemed granted.'' The 2014 Infrastructure Order discusses the
procedures that local governments need to implement in order to carry
out their obligations to approve eligible facilities requests within 60
days; it does not, however, define the date on which an applicant is
deemed to have submitted an eligible facilities request for purposes of
triggering the 60-day shot clock.
5. There is evidence in the record that some local jurisdictions
effectively postpone the date on which they consider eligible
facilities requests to be duly filed (thereby delaying the commencement
of the shot clock) by treating applications as incomplete unless
applicants have complied with time-consuming requirements. Such
requirements include meeting with city or county staff, consulting with
neighborhood councils, obtaining various certifications, or making
presentations at public hearings. While some stakeholders may have
assumed that, after the 2014 Infrastructure Order, local governments
would develop procedures designed to review and approve covered
requests within a 60-day shot clock period, many have not done so and
instead continue to require applicants to apply for forms of
authorizations that entail more ``lengthy and onerous processes'' of
review. In such jurisdictions, applicants may need to obtain clearance
from numerous, separate municipal departments, which could make it
difficult to ascertain whether or when the shot clock has started to
run.
6. To address uncertainty regarding the commencement of the shot
clock, the Commission clarifies that, for purposes of its shot clock
and deemed granted rules, an applicant has effectively submitted a
request for approval that triggers the running of the shot clock when
it satisfies both of the following criteria: (1) The applicant takes
the first procedural step that the local jurisdiction requires as part
of its applicable regulatory review process under Section 6409(a), and,
to the extent it has not done so as part of the first required
procedural step, (2) the applicant submits written documentation
showing that a proposed
[[Page 45128]]
modification is an eligible facilities request.
7. By requiring that an applicant take the first procedural step
required by the locality, the goal is to give localities ``considerable
flexibility'' to structure their procedures for review of eligible
facilities requests, but prevent localities from ``impos[ing] lengthy
and onerous processes not justified by the limited scope of review
contemplated'' by section 6409(a). In taking the first procedural step
that the local jurisdiction requires as part of its applicable
regulatory review process, applicants demonstrate that they are
complying with a local government's procedures. The second criterion--
requiring applicants to submit written documentation showing that the
proposed modification is an eligible facilities request--is necessary
because localities must have the opportunity to review this
documentation to determine whether the proposed modification is an
eligible facilities request that must be approved within 60 days. The
Commission anticipates that the documentation sufficient to start the
shot clock under the stated criteria might include elements like a
description of the proposed modification and an explanation of how the
proposed modification is an eligible facilities request. The Commission
finds that these criteria strike a reasonable balance between local
government flexibility and the streamlined review envisioned by Section
6409(a).
8. In addition, the Commission finds that further clarifications
are needed to achieve its goal of balancing local government
flexibility with the streamlined review envisioned by Section 6409(a).
First, the Commission clarifies that a local government may not delay
the triggering of the shot clock by establishing a ``first step'' that
is outside of the applicant's control or is not objectively verifiable.
For example, if the first step required by a local government is that
applicants meet with municipal staff before making any filing, the
applicant should be able to satisfy that first step by making a written
request to schedule the meeting--a step within the applicant's control.
In this example, the 60-day shot clock would start once the applicant
has made a written request for the meeting and the applicant also has
satisfied the second of the criteria (documentation). The Commission
does not wish to discourage meetings between applicants and the local
governments, and it recognizes that such consultations may help avoid
errors that localities have identified as leading to delays, but such
meetings themselves should not be allowed to cause delays or prevent
these requests from being timely approved. As an additional example, a
local government could not establish as its first step a requirement
that an applicant demonstrate that it has addressed all concerns raised
by the public, as such a step would not be objectively verifiable.
9. Second, the Commission clarifies that a local government may not
delay the triggering of the shot clock by defining the ``first step''
as a combination or sequencing of steps, rather than a single step. For
example, if a local government defines the first step of its process as
separate consultations with a citizens' association, a historic
preservation review board, and the local government staff, an applicant
will trigger the shot clock by taking any one of those actions, along
with satisfying the second of the criteria (documentation). Once the
shot clock has begun, it would not be tolled if the local government
were to deny, delay review of, or require refiling of the application
on the grounds that the local government's separate consultation
requirements were not completed. The Commission expects applicants to
act in good faith to fulfill reasonable steps set forth by a local
government that can be completed within the 60 day period, but the
local government would bear responsibility for ensuring that any steps
in its process, as well as the substantive review of the proposed
facility modification, are all completed within 60 days. If not, the
eligible facilities request would be deemed granted under the
Commission's rules.
10. Third, the Commission clarifies that a local government may not
delay the start of the shot clock by declining to accept an applicant's
submission of documentation intended to satisfy the second of the
criteria for starting the shot clock. In addition, a local government
may not delay the start of the shot clock by requiring an applicant to
submit documentation that is not reasonably related to determining
whether the proposed modification is an eligible facilities request.
The Commission clarifies how its documentation rules apply in the
context of the shot clock to provide certainty that unnecessary
documentation requests do not effectively delay the shot clock as part
of the local government's ``first step,'' even if providing that
documentation would be within the applicant's control and could be
objectively verified. For example, if a locality requires as the first
step in its section 6409(a) process that an applicant meet with a local
zoning board, that applicant would not need to submit local zoning
documentation as well in order to trigger the shot clock.
11. Fourth, the Commission notes that a local government may use
conditional use permits, variances, or other similar types of
authorizations under the local government's standard zoning or siting
rules, in connection with the consideration of an eligible facilities
request. The Commission clarifies, however, that requirements to obtain
such authorizations may not be used by the local government to delay
the start of or to toll the shot clock under the section 6409(a)
process. The shot clock would begin once the applicant takes the first
step in whatever process the local government uses in connection with
reviewing applications subject to section 6409(a) and satisfies the
second of the criteria (documentation). The Commission rejects
localities' suggestions that the shot clock should not commence until
an applicant submits documentation required for all necessary permits,
as such an approach is inconsistent with federal law. Subsequently, if
the locality rejects the applicant's request to modify wireless
facilities as incomplete based on requirements relating to such
permits, variances, or similar authorizations, the shot clock would not
be tolled and the application would be deemed granted after 60 days if
the application constitutes an eligible facilities request under the
Commission's rules. Localities may only toll the shot clock ``by mutual
agreement'' or if the locality ``determines that the application is
incomplete.''
12. Fifth, the Commission notes that some jurisdictions have not
established specific procedures for the review and approval of eligible
facilities requests under Section 6409(a). In those cases, the
Commission clarifies that, for purposes of triggering the shot clock
under Section 6409(a), the applicant can consider the first procedural
step to be submission of the type of filing that is typically required
to initiate a standard zoning or siting review of a proposed deployment
that is not subject to section 6409(a). Comparable modification
requests might include applications to install, modify, repair, or
replace wireless transmission equipment on a structure that is outside
the scope of Section 6409(a), or to mount cable television, wireline
telephone, or electric distribution cables or equipment on outdoor
towers or poles. Where the first step in the process is submission of
the type of filing that is typically required for comparable
modification requests, the Commission notes that applicants are not
required to file any documentation that is inconsistent with
[[Page 45129]]
the Commission's rules for eligible facilities requests under Section
6409(a).
13. The Commission finds that these clarifications serve to remove
uncertainty about the scope and meaning of various provisions of
Section 1.6100 consistent with the text, history, and purpose of the
2014 Infrastructure Order. The Commission also notes that the
commencement of the shot clock does not excuse the applicant from
continuing to follow the locality's procedural and substantive
requirements (to the extent those requirements are consistent with the
Commission's rules), including obligations ``to comply with generally
applicable building, structural, electrical, and safety codes or with
other laws codifying objective standards reasonably related to health
and safety.''
B. Height Increase for Towers Outside the Public Rights-of-Way
14. Adding new collocated equipment near or at the top of an
existing tower can be an efficient means of expanding the capacity or
coverage of a wireless network without the disturbances associated with
building an entirely new structure. Adding this equipment to an
existing tower would change the tower's physical dimensions, but if
such a change is not ``substantial,'' then a request to implement it
would qualify as an eligible facilities request, and a locality would
be required to approve it. Section 1.6100(b)(7)(i) provides that a
modification on a tower outside of the public rights-of-way would cause
a substantial change if it ``increases the height of the tower by more
than 10% or by the height of one additional antenna array with
separation from the nearest existing antenna not to exceed twenty feet,
whichever is greater.''
15. Commenters assert that they have two different interpretations
of the meaning of this language in Section 1.6100(b)(7)(i). Industry
commenters read Section 1.6100(b)(7)(i) as allowing a new antenna to be
added without being a substantial change if there is no more than
twenty feet in ``separation'' between the existing and new antennas,
and that the size/height of the new antenna itself is irrelevant to the
concept of ``separation.'' Localities appear to be of the view,
however, that such an interpretation strains what the statute and
regulations would permit--creating different standards for antenna
height depending on where it is located and leading to indefinite
increases in antenna height under a streamlined process not designed
for that purpose. Adding an antenna array to a tower out of the public
right-of-way that increases the height of the tower would not be
considered a substantial change, by itself, if there is no more than
twenty feet of separation between the nearest existing antenna. The
phrase ``separation from the nearest existing antenna'' means the
distance from the top of the highest existing antenna on the tower to
the bottom of the proposed new antenna to be deployed above it. Thus,
when determining whether an application satisfies the criteria for an
eligible facilities request, localities should not measure this
separation from the top of the existing antenna to the top of the new
antenna, because the height of the new antenna itself should not be
included when calculating the allowable height increase. Rather, under
the Commission's interpretation, the word ``separation'' refers to the
distance from the top of the existing antenna to the bottom of the
proposed antenna. Interpreting ``separation'' otherwise to include the
height of the new antenna could limit the number of proposed height
increases that would qualify for Section 6409(a) treatment, given
typical antenna sizes and separation distances between antennas, which
would undermine the statute's objective to facilitate streamlined
review of modifications of existing wireless structures.
16. Specifically, and in response to commenters' arguments
regarding the language in Section 1.6100(b)(7)(i), the Commission find
that its resolution is consistent with the long-established
interpretation of the comparable standard set forth in the 2001
Collocation Agreement for determining the maximum size of a proposed
collocation that is categorically excluded from historic preservation
review. Commission staff explained, in a fact sheet released in 2002,
that under this provision of the Collocation Agreement, if a ``150-foot
tower . . . already [has] an antenna at the top of the tower, the tower
height could increase by up to 20 feet [i.e., the ``separation''
distance] plus the height of a new antenna to be located at the top of
the tower'' without constituting a substantial increase in size. That
standard was the source of the standard for the allowable height
increases for towers outside the rights-of-way that the Commission
adopted in the 2014 Infrastructure Order.
17. The Commission's interpretation also aligns with the
clarification sought by WIA and other industry parties. The Commission
rejects the argument that this interpretation creates irrational
inconsistences among height increase standards depending on the type of
structure and whether a tower is inside or outside the rights-of-way.
As the Commission discussed in the 2014 Infrastructure Order, limits on
height and width increases should depend on the type and location of
the underlying structure. The Commission therefore adopted the
Collocation Agreement's ``substantial increase in size'' test for
towers outside the rights-of-way, and it adopted a different standard
for non-tower structures. Localities are rearguing an issue already
settled in the 2014 Infrastructure Order when they urge that the same
height increase standard should apply to different types of structures.
The Commission also rejects the argument that this interpretation would
lead to virtually unconstrained increases in the height of such towers.
These concerns are unwarranted because the 2014 Infrastructure Order
already limits the cumulative increases in height from eligible
modifications and nothing in this Declaratory Ruling changes those
limits.
18. The clarification is limited to Section 1.6100(b)(7)(i) and the
maximum increase in the height of a tower outside the rights-of-way
allowed pursuant to an eligible facilities request under Section
6409(a). The Commission reminds applicants that ``eligible facility
requests covered by Section 6409(a) must comply with any relevant
Federal requirement, including any applicable Commission, FAA, NEPA, or
Section 106 [historic review] requirements.''
C. Equipment Cabinets
19. To upgrade to 5G and for other technological and capacity
improvements, providers often add equipment cabinets to existing
wireless sites. Section 1.6100(b)(7)(iii) provides that a proposed
modification to a support structure constitutes a substantial change if
``it involves installation of more than the standard number of new
equipment cabinets for the technology involved, but not to exceed four
cabinets.'' Some localities suggest that telecommunications
transmission equipment manufactured with outer protective covers can be
``equipment cabinets'' under Section 1.6100(b)(7)(iii) of the rules.
The Commission concludes that localities are interpreting ``equipment
cabinet'' under Section 1.6100(b)(7)(iii) too broadly to the extent
they are treating equipment itself as a cabinet simply because
transmission equipment may have protective housing. Nor does a small
piece of transmission equipment mounted on a structure become an
``equipment cabinet'' simply because it is more visible when mounted
above ground. Consistent with common usage of the term ``equipment
cabinet'' in the
[[Page 45130]]
telecommunications industry, small pieces of equipment such as remote
radio heads/remote radio units, amplifiers, transceivers mounted behind
antennas, and similar devices are not ``equipment cabinets'' under
Section 1.6100(b)(7)(iii) if they are not used as physical containers
for smaller, distinct devices. Moreover, the Commission notes that
Section 1.6100(b)(3) defines an ``eligible facilities request'' (i.e.,
a request entitled to streamlined treatment under Section 6409(a)) as
any request for modification of an existing tower or base station that
does not substantially change the physical dimensions of such tower or
base station and that involves the collocation, removal or replacement
of ``transmission equipment.'' Interpreting ``transmission equipment,''
an element required in order for a modification to qualify for
streamlined treatment, to be ``equipment cabinets,'' an element that is
subject to numerical limits that can cause the modification not to
qualify for streamlined treatment, would strain the intended purposes
of Sections 1.6100(b)(3) and 1.6100(b)(7)(iii). The Commission does not
address here other aspects of the definition of equipment cabinets on
which industry commenters seek clarification.
20. In addition, the Commission clarifies that the maximum number
of additional equipment cabinets that can be added under the rule is
measured for each separate eligible facilities request. According to
WIA, one unidentified city in Tennessee interprets the term ``not to
exceed four cabinets'' in Section 1.6100(b)(7)(iii) as ``setting a
cumulative limit, rather than a limit on the number of cabinets
associated with a particular eligible facilities request.'' The
Commission finds that such an interpretation runs counter to the text
of Section 1.6100(b)(7)(iii), which restricts the number of ``new''
cabinets per eligible facilities request. The city's interpretation
ignores the fact that the word ``it'' in the rule refers to a
``modification'' and supports the conclusion that the limit on
equipment cabinet installations applies separately to each eligible
facilities request. This conclusion is also supported by the context of
the rule as a whole. The number and size of preexisting cabinets are
irrelevant to the limitation on equipment cabinets on eligible support
structures, in contrast to the rest of the rule, which takes into
account whether there are preexisting ground cabinets at the site and
whether proposed new cabinets' volume exceeds the volume of preexisting
cabinets by more than 10%.
21. Several localities argue that this clarification would permit
an applicant to add an unlimited number of new equipment cabinets to a
structure so long as the applicant proposes adding them in increments
of four or less. The Commission disagrees that this clarification
permits an unlimited number of cabinets on a structure. The text of
Section 1.6100(b)(7)(iii) limits the number of equipment cabinets per
modification to no more than ``the standard number of new equipment
cabinets for the technology involved.''
D. Concealment Elements
22. Section 1.6100(b)(7)(v) states that a modification
``substantially changes'' the physical dimensions of an existing
structure if ``[i]t would defeat the concealment elements of the
eligible support structure.'' The 2014 Infrastructure Order provides
that, ``in the context of a modification request related to concealed
or `stealth'-designed facilities --i.e., facilities designed to look
like some feature other than a wireless tower or base station--any
change that defeats the concealment elements of such facilities would
be considered a `substantial change' under Section 6409(a).'' The 2014
Infrastructure Order notes that both locality and industry commenters
generally agreed that ``a modification that undermines the concealment
elements of a stealth wireless facility, such as painting to match the
supporting fa[ccedil]ade or artificial tree branches, should be
considered substantial under Section 6409(a).''
23. Stakeholders subsequently have interpreted the definition of
``concealment element'' and the types of modifications that would
``defeat'' concealment in different ways. Petitioners and industry
commenters urge the Commission to clarify that the term ``concealment
element'' only refers to ``a stealth facility or those aspects of a
design that were specifically intended to disguise the appearance of a
facility, such as faux tree branches or paint color.'' T-Mobile states
that some localities are ``proffering `creative or inappropriate'
regulatory interpretations of what a concealment element is.'' Locality
commenters counter that there is more to concealment than ``fully
stealthed facilities and semi-stealthed monopines.'' They argue that
the proposed changes would undermine the ability of local jurisdictions
to enforce regulations designed to conceal equipment. NLC asserts that
many attributes of a site contribute to concealment, such as the
``specific location of a rooftop site, or the inclusion of equipment in
a particular architectural feature.'' Locality commenters contend that
limiting concealment elements to features identified in the original
approval would negate land use requirements that were a factor in the
original deployment but not specified as such.
24. Clarification of ``Concealment Element.'' The Commission
clarifies that concealment elements are elements of a stealth-designed
facility intended to make the facility look like something other than a
wireless tower or base station. The 2014 Infrastructure Order defines
``concealed or `stealth' ''-designed facilities as ``facilities
designed to look like some feature other than a wireless tower or base
station,'' and further provides that any change that defeats the
concealment elements of such facilities would be considered a
substantial change under Section 6409(a). Significantly, the 2014
Infrastructure Order identified parts of a stealth wireless facility
such as ``painting to match the supporting fa[ccedil]ade or artificial
tree branches'' as examples of concealment elements. The Commission
agrees with industry commenters that concealment elements are those
elements of a wireless facility installed for the purpose of rendering
the ``appearance of the wireless facility as something fundamentally
different than a wireless facility,'' and that concealment elements are
``confined to those used in stealth facilities.''
25. The Commission disagrees with localities who argue that any
attribute that minimizes the visual impact of a facility, such as a
specific location on a rooftop site or placement behind a tree line or
fence, can be a concealment element. As localities acknowledged in
comments they submitted in response to the 2013 Infrastructure NPRM,
``local governments often address visual effects and concerns in
historic districts not through specific stealth conditions, but through
careful placement'' conditions. The Commission's rules separately
address conditions to minimize the visual impact of non-stealth
facilities under Section 1.6100(b)(7)(vi) governing ``conditions
associated with the siting approval.'' The Commission narrowly defined
concealment elements to mean the elements of a stealth facility, and no
other conditions fall within the scope of Section 1.6100(b)(7)(v).
26. The Commission also clarifies that, in order to be a
concealment element under Section 1.6100(b)(7)(v), the element must
have been part of the facility that the locality approved in its prior
review. The Commission's clarification that concealment elements must
be related to the locality's prior approval is informed by the 2014
Infrastructure Order and its underlying record, which assumed that
``stealth''
[[Page 45131]]
designed facilities in most cases would be installed at the request of
an approving local government. Further, in the 2014 Infrastructure
Order, the Commission stated that a modification would be considered a
substantial increase if ``it would defeat the existing concealment
elements of the tower or base station.'' The Commission clarifies that
the term ``existing'' means that the concealment element existed on the
facility that was subject to a prior approval by the locality. In
addition, the record in the 2014 Infrastructure Order, as relied upon
by the Commission, characterized stealth requirements as identifiable,
pre-existing elements in place before an eligible facilities request is
submitted.
27. Regarding the meaning of a prior approval in the context of an
``existing'' concealment element, the Commission notes that Section
1.6100(b)(7)(i) provides that permissible increases in the height of a
tower (other than a tower in the public rights-of-way) should be
measured relative to a locality's original approval of the tower or the
locality's approval of any modifications that were approved prior to
the passage of the Spectrum Act. The Commission finds it reasonable to
interpret an ``existing'' concealment element relative to the same
temporal reference points, which are intended to allow localities to
adopt legitimate requirements for approval of an original tower at any
time but not to allow localities to adopt these same requirements for a
modification to the original tower (except for a modification prior to
the Spectrum Act when localities would not have been on notice of the
limitations in Section 6409(a)). In other words, the purpose of Section
1.6100(b)(7)(v) is to identify and preserve prior local recognition of
the need for such concealment, but not to invite new restrictions that
the locality did not previously identify as necessary. Accordingly, the
Commission clarifies that under Section 1.6100(b)(7)(v), a concealment
element must have been part of the facility that was considered by the
locality at the original approval of the tower or at the modification
to the original tower, if the approval of the modification occurred
prior to the Spectrum Act or lawfully outside of the Section 6409(a)
process (for instance, an approval for a modification that did not
qualify for streamlined Section 6409(a) treatment).
28. The Commission is not persuaded by localities' arguments that
this clarification would negate land use requirements that were a
factor in the approval of the original deployment even if those
requirements were not specified as a condition. The clarification does
not mean that a concealment element must have been explicitly
articulated by the locality as a condition or requirement of a prior
approval. While specific words or formulations are not needed, there
must be express evidence in the record to demonstrate that a locality
considered in its approval that a stealth design for a
telecommunications facility would look like something else, such as a
pine tree, flag pole, or chimney. However, it would be inconsistent
with the purpose of Section 6409(a)--facilitating wireless
infrastructure deployment--to give local governments discretion to
require new concealment elements that were not part of the facility
that was subject to the locality's prior approval. The Commission
expects that this clarification will also promote the purpose of the
rules to provide greater certainty to localities and applicants as to
whether a concealment element exists.
29. Clarification of ``Defeat Concealment.'' Next, the Commission
clarifies that, to ``defeat concealment,'' the proposed modification
must cause a reasonable person to view the structure's intended stealth
design as no longer effective after the modification. In other words,
if the stealth design features would continue effectively to make the
structure appear not to be a wireless facility, then the modification
would not defeat concealment. The Commission's definition is consistent
with dictionary definitions and common usage of the term ``defeat'' and
is supported by the record. The clarification is necessary because, as
industry commenters point out, some localities construe even small
changes to ``defeat'' concealment, which delays deployment, extends the
review processes for modifications to existing facilities, and
frustrates the intent behind Section 6409(a).
30. Examples of Whether Modifications Defeat Concealment Elements.
The Commission offers the following examples to provide guidance on
concealment elements and whether or not they have been defeated to help
inform resolution of disputes should they arise:
In some cases, localities take the position that the
placement of coaxial cable on the outside of a stealth facility
constitutes a substantial change based on the visual impact of the
cable. Coaxial cables typically range from 0.2 inches to slightly over
a half-inch in diameter, and it is unlikely that such cabling would
render the intended stealth design ineffective at the distances where
individuals would view a facility.
In other cases, localities have interpreted any change to
the color of a stealth tower or structure as defeating concealment.
Such interpretations are overly broad and can frustrate Congress's
intent to expedite the Section 6409(a) process. A change in color must
make a reasonable person believe that the intended stealth is no longer
effective. Changes to the color of a stealth structure can occur for
many reasons, including for example, the discontinuance of the previous
color. An otherwise compliant eligible facilities request will not
defeat concealment in this case merely because the modification uses a
slightly different paint color. Further, if the new equipment is
shielded by an existing shroud that is not being modified, then the
color of the equipment is irrelevant because it is not visible to the
public and would not render an intended concealment ineffective.
Therefore, such a change would not defeat concealment.
WIA reports that a locality in Colorado claims that a
small increase in height on a stealth monopine, which is less than the
size thresholds of Section 1.6100(b)(7)(i) through (iv), defeats
concealment and therefore constitutes a substantial change. The
Commission clarifies that such a change would not defeat concealment if
the change in size does not cause a reasonable person to view the
structure's intended stealth design (i.e., the design of the wireless
facility to resemble a pine tree) as no longer effective after the
modification.
If a prior approval included a stealth-designed monopine
that must remain hidden behind a tree line, a proposed modification
within the thresholds of Section 1.6100(b)(7)(i) through (iv) that
makes the monopine visible above the tree line would be permitted under
Section 1.6100(b)(7)(v). First, the concealment element would not be
defeated if the monopine retains its stealth design in a manner that a
reasonable person would continue to view the intended stealth design as
effective. Second, a requirement that the facility remain hidden behind
a tree line is not a feature of a stealth-designed facility; rather it
is an aesthetic condition that falls under Section 1.6100(b)(7)(vi).
Under that analysis, as explained in greater detail below, a proposed
modification within the thresholds of Section 1.6100(b)(7)(i) through
(iv) that makes the monopine visible above the tree line likely would
be permitted under Section 1.6100(b)(7)(vi).
[[Page 45132]]
E. Conditions Associated With the Siting Approval
31. Section 1.6100(b)(7)(vi) states that a modification is a
substantial increase if ``[i]t does not comply with conditions
associated with the siting approval of the construction or modification
of the eligible support structure or base station equipment, provided
however that this limitation does not apply to any modification that is
non-compliant only in a manner that would not exceed the thresholds
identified in Sec. 1.61001(b)(7)(i) through (iv).'' Industry
commenters argue that changes specifically allowed under Section
1.6100(b)(7)(i) through (iv) should not constitute a substantial change
under Section 1.6100(b)(7)(vi). For example, the record shows that some
localities claim that small increases in the size of a structure, such
as increasing its height or increasing the width of its cannister, are
a substantial change because they wrongly characterize any increase to
a structure's visual profile or negative aesthetic impact as defeating
a concealment element--even if the size changes would be within the
allowances under the Commission's rules.
32. Conditions associated with the siting approval under Section
1.6100(b)(7)(vi) may relate to improving the aesthetics, or minimizing
the visual impact, of non-stealth facilities (facilities not addressed
under Section 1.6100(b)(7)(v)). However, localities cannot merely
assert that a detail or feature of the facility was a condition of the
siting approval; there must be express evidence that at the time of
approval the locality required the feature and conditioned approval
upon its continuing existence in order for non-compliance with the
condition to disqualify a modification from being an eligible
facilities request. Even so, like any other condition under Section
1.6100(b)(7)(vi), such an aesthetics-related condition still cannot be
used to prevent modifications specifically allowed under Section
1.6100(b)(7)(i) through (iv) of the Commission's rules. Consistent with
``commonplace [ ] statutory construction that the specific governs the
general,'' the Commission clarifies that where there is a conflict
between a locality's general ability to impose conditions under (vi)
and modifications specifically deemed not substantial under (i)-(iv),
the conditions under (vi) should be enforced only to the extent that
they do not prevent the modification in (i)-(iv). In other words, when
a proposed modification otherwise permissible under Section
1.6100(b)(7)(i) through (iv) cannot reasonably comply with conditions
under Section 1.6100(b)(7)(vi), the conflict should be resolved in
favor of permitting the modifications. For example, a local
government's condition of approval that requires a specifically sized
shroud around an antenna could limit an increase in antenna size that
is otherwise permissible under Section 1.6100(b)(7)(i). Under Section
1.6100(b)(7)(vi), however, the size limit of the shroud would not be
enforceable if it purported to prevent a modification to add a larger
antenna, but a local government could enforce its shrouding condition
if the provider reasonably could install a larger shroud to cover the
larger antenna and thus meet the purpose of the condition.
33. By providing guidance on the relationship between Section
1.6100(b)(7)(i) through (iv) and 1.6100(b)(7)(vi), including the
limitations on conditions that a locality may impose, the Commission
expects there to be fewer cases where conditions, especially aesthetic
conditions, are improperly used to prevent modifications otherwise
expressly allowed under Section 1.6100(b)(7)(i) through (iv). The
Commission reaffirms that beyond the specific conditions that
localities may impose through Section 1.6100(b)(7)(vi), localities can
enforce ``generally applicable building, structural, electrical, and
safety codes'' and ``other laws codifying objective standards
reasonably related to health and safety.''
34. Examples of Aesthetics Related Conditions. Petitioners and both
industry and locality commenters have provided numerous examples of
disputes involving modifications to wireless facilities. Using examples
from the record, and assuming that the locality has previously imposed
an aesthetic-related condition under Section 1.6100(b)(7)(vi), the
Commission offers examples to provide guidance on the validity of the
condition to decrease future disputes and to help inform resolution of
disputes should they arise:
If a city has an aesthetic-related condition that
specified a three-foot shroud cover for a three-foot antenna, the city
could not prevent the replacement of the original antenna with a four-
foot antenna otherwise permissible under Section 1.6100(b)(7)(i)
because the new antenna cannot fit in the shroud. As described above,
if there was express evidence that the shroud was a condition of
approval, the city could enforce its shrouding condition if the
provider reasonably could install a four-foot shroud to cover the new
four-foot antenna. The city also could enforce a shrouding requirement
that is not size-specific and that does not limit modifications allowed
under Section 1.6100(b)(7)(i) through (iv).
T-Mobile claims that some localities consider existing
walls and fences around non-camouflaged towers to be concealment
elements that have been defeated if new equipment is visible over those
walls or fences. First, such conditions are not concealment elements;
rather, they are considered aesthetic conditions under Section
1.6100(b)(7)(vi). Such conditions may not prevent modifications
specifically allowed by Section 1.6100(b)(7)(i) through (iv). However,
if there were express evidence that the wall or fence were conditions
of approval to fully obscure the original equipment from view, the
locality may require a provider to make reasonable efforts to extend
the wall or fence to maintain the covering of the equipment.
If an original siting approval specified that a tower must
remain hidden behind a tree line, a proposed modification within the
thresholds of Section 1.6100(b)(7)(i) through (iv) that makes the tower
visible above the tree line would be permitted under Section
1.6100(b)(7)(vi), because the provider cannot reasonably replace a
grove of mature trees with a grove of taller mature trees to maintain
the absolute hiding of the tower.
In a similar vein, San Francisco has conditions to reduce
the visual impact of a wireless facility, including that it must be set
back from the roof at the front building wall. San Francisco states
that it will not approve a modification if the new equipment to be
installed does not meet the set back requirement. Even if a proposed
modification within the thresholds of Section 1.6100(b)(7)(i) through
(iv) exceeds the required set back, San Francisco could enforce its set
back condition if the provider reasonably could take other steps to
reduce the visual impact of the facility to meet the purpose of its
condition.
F. Environmental Assessments After Execution of Memorandum of Agreement
35. The Commission's environmental rules implementing the National
Environmental Policy Act categorically exclude all actions from
environmental evaluations, including the preparation of an
environmental assessment, except for defined actions associated with
the construction of facilities that may significantly affect the
environment. Pursuant to Section 1.1307(a) of the Commission's rules,
applicants currently submit an environmental assessment for those
facilities that fall
[[Page 45133]]
within specific categories, including facilities that may affect
historic properties protected under the National Historic Preservation
Act. Under the Commission's current process, an applicant submits an
environmental assessment for facilities that may affect historic
properties, even if the applicant has executed a memorandum of
agreement with affected parties to address those adverse effects.
36. The Commission clarifies on its own motion that an
environmental assessment is not needed when the FCC and applicants have
entered into a memorandum of agreement to mitigate effects of a
proposed undertaking on historic properties, consistent with Section
VII.D of the Wireless Facilities Nationwide Programmatic Agreement, if
the only basis for the preparation of an environmental assessment was
the potential for significant effects on such properties. The
Commission expects this clarification should further streamline the
environmental review process.
37. Section 1.1307(a)(4) of the Commission's rules requires an
environmental assessment if a proposed communications facility may have
a significant effect on a historic property. The Commission adopted a
process to identify potential effects on historic properties by
codifying the Wireless Facilities Nationwide Programmatic Agreement as
the means to comply with Section 106 of the National Historic
Preservation Act. If adverse effects on historic properties are
identified during this process, the Wireless Facilities Nationwide
Programmatic Agreement requires that the applicant consult with the
State Historic Preservation Officer and/or Tribal Historic Preservation
Officer, and other interested parties to avoid, minimize, or mitigate
the adverse effects.
38. When such effects cannot be avoided, under the terms of the
Wireless Facilities Nationwide Programmatic Agreement, the applicant,
the State Historic Preservation Officer and/or Tribal Historic
Preservation Officer, and other interested parties may proceed to
negotiate a memorandum of agreement that the signatories agree fully
mitigates all adverse effects. The agreement is then sent to Commission
staff for review and signature. Under current practice, even after a
memorandum of agreement is executed, an applicant is still required to
prepare an environmental assessment and file it with the Commission.
The Commission subsequently places the environmental assessment on
public notice, and the public has 30 days to file comments/oppositions.
If the environmental assessment is determined to be sufficient and no
comments or oppositions are filed, the Commission issues a Finding of
No Significant Impact and allows an applicant to proceed with the
project.
39. In this Declaratory Ruling the Commission clarifies that an
environmental assessment is unnecessary after an adverse effect on a
historic property is mitigated by a memorandum of agreement. Applicants
already are required to consider alternatives to avoid adverse effects
prior to executing a memorandum of agreement. The executed agreement
demonstrates that the applicant: Has notified the public of the
proposed undertaking; has consulted with the State Historic
Preservation Officer and/or Tribal Historic Preservation Officers, and
other interested parties to identify potentially affected historic
properties; and has worked with such parties to agree on a plan to
mitigate adverse effects. This mitigation eliminates any significant
adverse effects on a historic property, and each memorandum of
agreement must include as a standard provision that the memorandum of
agreement ``shall constitute full, complete, and adequate mitigation
under the NHPA . . . and the FCC's rules.''
40. The Commission notes that Section 1.1307(a) requires an
applicant to submit an environmental assessment if a facility ``may
significantly affect the environment,'' which includes facilities that
may affect historic properties, endangered species, or critical
habitats. As a result of the mitigation required by a memorandum of
agreement, the Commission concludes that any effects on historic
properties remaining after the agreement is executed would be below the
threshold of ``significance'' to trigger an environmental assessment.
After the memorandum of agreement is executed, a proposed facility
should no longer ``have adverse effects on identified historic
properties'' within the meaning of Section 1.1307(a)(4) and, therefore,
should no longer be within the ``types of facilities that may
significantly affect the environment.'' If none of the other criteria
for requiring an environmental assessment in Section 1.1307(a) exist,
then such facilities automatically fall into the broad category of
actions that the Commission has already found to ``have no significant
effect on the quality of the human environment and are categorically
excluded from environmental processing.'' The Commission's rules should
be read in light of the scope of the Commission's obligation under
Section 106 and the ACHP's rules, which explicitly state that such a
memorandum of agreement ``evidences the agency official's compliance
with section 106.'' The Commission reminds applicants that an
environmental assessment is still required if the proposed project may
significantly affect the environment in ways unrelated to historic
properties.
II. Procedural Matters
41. Paperwork Reduction Act. This Declaratory Ruling does not
contain proposed information collection(s) subject to the Paperwork
Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore,
it does not contain any 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).
42. Congressional Review Act. The Commission has determined, and
the Administrator of the Office of Information and Regulatory Affairs,
Office of Management and Budget, concurs that this rule is ``non-
major'' under the Congressional Review Act, 5 U.S.C. 804(2). The
Commission will send a copy of this Declaratory Ruling to Congress and
the Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).
III. Ordering Clauses
43. Accordingly, it is ordered, pursuant to Sections 1, 4(i)-(j),
7, 201, 253, 301, 303, 309, 319, and 332 of the Communications Act of
1934, as amended, and Section 6409 of the Middle Class Tax Relief and
Job Creation Act of 2012, as amended, 47 U.S.C. 151, 154(i) through
(j), 157, 201, 253, 301, 303, 309, 319, 332, 1455 that this Declaratory
Ruling in WT Docket No. 19-250 and RM-11849 Is hereby Adopted.
44. It is further ordered that this Declaratory Ruling shall be
effective upon release. It is the Commission's intention in adopting
the foregoing Declaratory Ruling that, if any provision of the
Declaratory Ruling, or the application thereof to any person or
circumstance, is held to be unlawful, the remaining portions of such
Declaratory Ruling not deemed unlawful, and the application of such
Declaratory Ruling to other person or circumstances, shall remain in
effect to the fullest extent permitted by law.
45. It is further ordered that, pursuant to 47 CFR 1.4(b)(1), the
period for filing petitions for reconsideration or petitions for
judicial review of this Declaratory Ruling will commence on
[[Page 45134]]
the date that this Declaratory Ruling is released.
46. It is further ordered that the Commission's Consumer &
Governmental Affairs Bureau, Reference Information Center, Shall Send a
copy of this Declaratory Ruling to the Chief Counsel for Advocacy of
the Small Business Administration.
47. It is further ordered that this Declaratory Ruling shall be
sent to Congress and the Government Accountability Office pursuant to
the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).
Federal Communications Commission.
Marlene Dortch,
Secretary.
[FR Doc. 2020-13951 Filed 7-24-20; 8:45 am]
BILLING CODE 6712-01-P