FCC Modernizes Siting Rule for Small Hub and Relay Wireless Antennas, 11432-11442 [2021-01304]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 86, Number 36 (Thursday, February 25, 2021)]
[Rules and Regulations]
[Pages 11432-11442]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-01304]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[WT Docket No. 19-71; FCC 21-10; FRS 17395]


FCC Modernizes Siting Rule for Small Hub and Relay Wireless 
Antennas

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Federal Communication's Commission 
(``Commission'') updates its rule for over-the-air reception devices 
(OTARD) to expand its coverage to include hub and relay antennas that 
are used for the distribution of broadband-only fixed wireless services 
to multiple customer locations, regardless of whether they are 
primarily used for this purpose, provided the antennas satisfy other 
conditions of the OTARD rule. The Report and Order will allow fixed 
wireless service providers to bring faster internet speeds, lower 
latency, and advanced applications to rural and underserved communities 
in particular.

DATES: Effective March 29, 2021.

FOR FURTHER INFORMATION CONTACT: Georgios Leris, 
[email protected], Competition & Infrastructure Policy Division, 
Wireless Telecommunications Bureau, (202) 418-1994.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order in WT Docket No. 19-71, FCC 21-10, adopted on January 7, 2021 
and released on January 7, 2021. The full text of this document is 
available for public inspection online at https://docs.fcc.gov/public/attachments/FCC-21-10A1.pdf. Documents will be available electronically 
in ASCII, Microsoft Word, and/or Adobe Acrobat. Alternative formats are 
available for people with disabilities (Braille, large print, 
electronic files, audio format, etc.), and reasonable accommodations 
(accessible format documents, sign language interpreters, CART, etc.) 
may be requested by sending an email to [email protected] or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (TTY).

Synopsis

    1. The Commission in this document updates its rule for over-the-
air reception devices (OTARD) to expand its coverage to include hub and 
relay antennas that are used for the distribution of broadband-only 
fixed wireless services to multiple customer locations, regardless of 
whether they are primarily used for this purpose, provided the antennas 
satisfy other conditions of the rule.\1\ By making this modest 
adjustment to the Commission's rule while maintaining the other 
existing OTARD restrictions, it places fixed wireless broadband-only 
service providers on similar competitive footing with other service 
providers. This rule change should allow fixed wireless service 
providers to bring faster internet speeds, lower latency, and advanced 
applications--like the Internet of Things, telehealth, and remote 
learning--to all areas of the country, and to rural and underserved 
communities in particular.
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    \1\ The Commission notes that the scope of the revisions in this 
Report and Order is limited and that it declines to adopt at this 
time any of the other proposals submitted by commenters or advanced 
by the Commission in its Notice of Proposed Rulemaking. See, e.g., 
Letter from Claude Aiken, President and CEO, WISPA, to Marlene H. 
Dortch, Secretary, FCC, WT Docket No. 17-79 (filed Aug. 27, 2018); 
Updating the Commission's Rule for Over-the-Air Reception Devices, 
WT Docket No. 19-71, Notice of Proposed Rulemaking, 34 FCC Rcd 2695 
(2019) (Notice).
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    2. The Commission's OTARD rule prohibits laws, regulations, or 
restrictions imposed by State or local governments or private entities 
that impair the ability of antenna users to install, maintain, or use 
over-the-air reception devices. The Commission adopted the rule as 
directed by section 207 of the Telecommunications Act of 1996, pursuant 
to the Commission's authority under section 303 of the Communications 
Act of 1934. The rule prohibits restrictions that unreasonably delay or 
prevent installation, maintenance, or use of an antenna; unreasonably 
increase the cost of installation, maintenance, or use of an antenna; 
or preclude reception of an acceptable quality signal. For the OTARD 
rule to apply, the antenna must be installed ``on property within the 
exclusive use or control of the antenna user where the user has a 
direct or indirect ownership or leasehold interest in the property'' 
upon which the antenna is located.
    3. The original OTARD rule applied only to antennas used to receive 
video programming signals, but in the 2000 Competitive Networks First 
Report and Order the Commission expanded the rule to apply to 
``customer-end antennas

[[Page 11433]]

used for transmitting or receiving fixed wireless signals.'' The 
Commission found that unreasonable restrictions on the placement of 
customer premises antennas disadvantage providers of fixed wireless 
services as compared to their wireline competitors and unreasonably 
discriminated among providers of functionally equivalent services. The 
Commission defined fixed wireless signals as ``any commercial non-
broadcast communications signals transmitted via wireless technology to 
and/or from a fixed customer location.'' The Commission stated that the 
extension of the OTARD rule would apply ``only to antennas at the 
customer end of the wireless transmission, i.e., to antennas placed at 
the customer location for the purpose of providing fixed wireless 
service . . . to one or more customers at that location.'' The 
Commission reasoned that these antennas were customer premises 
equipment and that section 332 of the Communications Act did not act as 
a bar to OTARD protection because the antennas were not used to provide 
personal wireless services. The Commission concluded that it did ``not 
intend the rules to cover hub or relay antennas used to transmit 
signals to and/or receive signals from multiple customer locations.''
    4. In its 2004 Competitive Networks Reconsideration Order, the 
Commission revised its previous finding and determined that the OTARD 
rule applies to hub and relay antennas that are ``installed in order to 
serve the customer on such premises,'' but that it does not apply to 
hub and relay antennas designed ``primarily'' for use as hubs for 
distribution of service to multiple customer locations. The 
Commission's reconsideration responded to a petition from a licensee 
that ``deploy[ed] its networks using a `point-to-point-to-point' 
architecture in which each customer device also serv[ed] as a relay 
device.'' The Commission, noting that it had not considered ``those 
network configurations and technologies in which customer-end equipment 
performs both functions'' and offered ``advanced services,'' found 
that, ``[f]or the purposes of the OTARD protections, the equipment 
deployed in such networks shares the same physical characteristics of 
other customer-end equipment, distinguished only by the additional 
functionality of routing service to additional users.'' The Commission 
``[did] not believe that [the Commission's] rules should serve to 
disadvantage more efficient technologies.'' The Commission consequently 
found that ``the OTARD protections would apply to installations serving 
the premises customer that also relays signals to other customers, such 
as is typical in mesh networks, but would not apply to installations 
that are designed primarily for use as hubs for distribution of 
service.''
    5. In 2018, the Wireless Internet Service Providers Association 
(WISPA) asked the Commission to update the OTARD rule to apply to ``all 
fixed wireless transmitters and receivers, regardless of whether the 
equipment is used for reception, transmission, or both, so long as the 
equipment meets the existing size restrictions for customer-end 
equipment.'' WISPA argues that extending the OTARD rule to all fixed 
wireless equipment ``would be consistent with the original intent of 
OTARD, will accelerate the deployment of competitive broadband services 
in markets across the country, and will empower consumers to help bring 
competitive wireless broadband to their communities by hosting hub 
sites.''
    6. WISPA asserts that updating the OTARD rule is necessary to 
accommodate changes in fixed wireless architecture. While fixed 
wireless systems historically relied on relatively large coverage areas 
with fewer hub sites per customer, ``over time, as both the cost of 
technology fell and subscriber data increased, fixed wireless providers 
began to reduce the size of the area covered per base station.'' 
Because of these changes in technology and network design, WISPA 
contends, ``fixed wireless providers have much less choice in where 
they can locate hub sites.'' WISPA further contends that, ``in the 
absence of Commission action to modernize the OTARD rules, fixed 
wireless operators will continue to face significant hurdles to siting, 
perpetuating barriers to new investment and employment.'' WISPA further 
argues that the Commission originally declined to extend OTARD 
protections to hub sites based on ``its opinion at the time that fixed 
wireless hubs were covered under section 332'' of the Communications 
Act--an opinion that WISPA says does not apply to modern networks 
because hub sites used for fixed wireless broadband do not necessarily 
include an offering of telecommunications service.
    7. In response to WISPA's letter, the Commission issued a Notice of 
Proposed Rulemaking (Notice) seeking comment on extending the OTARD 
protections to fixed wireless facilities that operate primarily as hub 
and relay antennas, but do not qualify as personal wireless service 
facilities under section 332(c)(7) because they are not used to provide 
telecommunications services. In this Report and Order, the Commission 
updates the OTARD rule to reflect the current technological landscape 
by eliminating the restriction that excludes some hub and relay 
antennas from the scope of the OTARD protections if they are used 
primarily for the distribution of service to multiple customer 
locations. In the 2004 Competitive Networks Reconsideration Order, the 
Commission determined that customer-end equipment possessing ``the 
additional functionality of routing service to additional users'' (such 
as a node in a mesh network) would not lose OTARD protection, so long 
as the equipment was ``installed in order to serve the customer on 
[its] premises,'' but that it ``would not apply to installations that 
are designed primarily for use as hubs for distribution of service.''
    8. The revised OTARD rule applies to all hub and relay antennas 
that are used for the distribution of fixed wireless services to 
multiple customer locations, regardless of whether they are 
``primarily'' used for this purpose, as long as: (1) The antenna serves 
a customer on whose premises it is located, and (2) the service 
provided over the antenna is broadband-only.\2\ The Commission's order 
here does not modify any other aspects of the current OTARD rule. Thus, 
the rule's requirements that antennas must be less than one meter in 
diameter or diagonal measurement, that they apply to property ``where 
the user has a direct or indirect ownership or leasehold interest,'' 
and that restrictions necessary for safety and historic preservation 
are excepted, remain in place.
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    \2\ Accordingly, the Commission amends 47 CFR 1.4000 by revision 
subparagraph (a)(1) and adding subparagraph (a)(5) to reflect its 
clarification to the definition of hub and relay antennas.
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    9. Policy Considerations. The Commission finds that this limited 
expansion of the OTARD rule to fixed wireless hub and relay antennas 
will align the Commission's rules with the current fixed wireless 
technological landscape and accelerate the deployment of competitive 
fixed wireless services to consumers. The record supports the 
conclusion that the fixed wireless technologies have shifted from using 
larger antennas that transmit over greater distances--that were in use 
at the time the Commission adopted the hub and relay antenna 
restriction--to the use of smaller antennas that are located much 
closer to each other. As numerous commenters emphasize, today's fixed 
wireless networks rely on smaller antennas located in close proximity 
to each other. Even in rural areas, these networks are deployed in

[[Page 11434]]

this way so as to increase broadband capacity. These smaller antennas 
meet the OTARD size restriction, but some are excluded from OTARD 
protection due to their ``primary'' function as fixed wireless hub and 
relay antennas. If these antennas continue to be excluded from OTARD 
protection, this could prevent fixed wireless service providers from 
maintaining or expanding service, particularly broadband-only service, 
as changes in technology require more dense deployments.
    10. The Commission's updated rule will help spur the rapid 
deployment of fixed wireless networks needed for 5G and other fixed 
wireless high-speed internet services. This will benefit consumers by 
offering faster access to advanced communications services and greater 
competition among service providers. These fixed wireless networks rely 
on the installation of hub and relay antennas to transmit and receive 
signals from multiple customer locations to overcome propagation 
distance limitations and signal obstructions in delivering fixed 
wireless high-speed internet services. Further, modern fixed wireless 
antennas are multi-purpose, and can function as receivers, repeaters, 
and transmitters, thereby eliminating the distinction between fixed 
wireless hub and relay antennas that the Commission previously relied 
on in deciding to exclude some of these antennas from OTARD protection. 
As long as the antennas meet the other requirements of the Commission's 
rule, its revised rule applies equally to all fixed wireless antennas, 
no matter whether they operate primarily as receivers, hubs, or relays, 
or whether they operate on licensed or unlicensed spectrum. There is no 
longer any reason to maintain the definitional distinction in the 
Commission's rule between these types of antennas and, accordingly, the 
Commission eliminates it.\3\
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    \3\ This decision is an extension of long-standing Commission 
precedent to apply to antennas used to supply unlicensed services so 
long as the antenna is placed on property within the exclusive use 
or control of the antenna user where the user has a direct or 
indirect ownership or leasehold interest in the property.
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    11. The Commission's revision will increase competitive parity 
among fixed wireless service providers and other service providers. 
Specifically, broadband-only fixed wireless service providers that use 
this equipment will now be on similar footing as service providers 
whose services and facilities (specifically those offering 
telecommunications services and commingled services) qualify for 
protections under sections 253 and 332. And it will facilitate the 
offering of advanced services to consumers by expanding deployment 
options and reducing costs for fixed wireless service providers. 
Without this change, broadband-only fixed wireless service providers 
will continue to face significant hurdles to siting, perpetuating 
barriers to new investment and deployment. In taking this action, the 
Commission embraces its longstanding policy objective of promoting 
competition among broadband and video providers and giving consumers, 
including those in rural and remote areas, more choices among wireless 
providers, products, and services.
    12. The record illustrates that fixed wireless service providers 
face unreasonable barriers to deployment. The Commission is not 
persuaded by the claim of Local Governments and Municipal Organizations 
that there is no evidence that zoning or private restrictive covenants 
have hindered the deployment of fixed wireless hub and relay antennas, 
nor by their argument that WISPA has offered only anecdotal examples of 
zoning restrictions and private restrictive covenants that have 
impacted the installation of hub and relay antennas. Rather, based on 
the totality of the record, the Commission finds that local zoning laws 
and reviews have discouraged the deployment of modern hub and relay 
antennas and that extending OTARD to cover this equipment will 
significantly advance deployment.
    13. The Commission's expanded application of the OTARD rule to 
additional fixed wireless hub and relay antennas protects against 
restrictions that result in unreasonable delays or prevent the 
installation, maintenance or use of this equipment. Starry, a fixed 
wireless broadband-only provider, estimates that, if its base stations 
are covered by OTARD, it can activate 25% to 30% more sites in the 
coming year, which should enable it to pass more than one million 
additional homes. Starry asserts that across all its markets it takes 
on average 100 days to complete the permitting process for a single 
base station, which accounts for about 80% of the time that it spends 
in activating a site. Another fixed wireless internet service provider, 
Wisp.net, initially provided service only to tenants in the building 
where its antenna was located. It subsequently was denied a permit to 
operate a wireless hub and relay facility to provide fixed wireless 
service to customers outside the range of Wisp.net's original 
footprint. Many consumers filed comments with the Commission claiming 
that Wisp.net was their only option for receiving service and urging 
the Commission to grant Wisp.net's petition to expand the OTARD rule 
for hub and relay antennas. Similarly, WISPA provides several examples 
of where zoning or private homeowner restrictive covenants have 
hindered the deployment of fixed wireless hub and relay antennas. By 
updating OTARD, the Commission provides fixed wireless broadband 
providers protection from unreasonable delays in the installation of 
fixed wireless hub and relay antennas or the unreasonable prevention of 
such installations or deployments.
    14. The record also shows that restrictions in the application of 
the current rule to hub and relay antennas have raised costs for fixed 
wireless providers, which incur excessive permitting costs. Az Airnet, 
a wireless internet service provider in Arizona, asserts that in some 
jurisdictions the same permit fee applies to both a major cellular 
tower and a small internet relay site. New Wave, a wireless internet 
service provider operating in rural Illinois, claims that unreasonably 
high permit fees prohibit it from expanding its service. Az Airnet, New 
Wave, and other fixed wireless service providers will now be protected 
from unreasonable fees. Section 1.4000(a)(3)(ii) provides that a law, 
regulation, or restriction impairs installation, maintenance, or use of 
fixed wireless hub and relay antennas if it unreasonably increases the 
cost of installation, maintenance, or use of the equipment. Further, 
section 1.4000(a)(4) provides that ``[a]ny fee or cost imposed on a 
user by a rule, law, regulation, or restriction must be reasonable in 
light of the cost of the equipment or services and the rule, law, 
regulation or restriction's treatment of comparable devices.'' The 
Commission's expanded application of the OTARD rule extends these 
protections against unreasonable fees to the installation of all 
covered customer premises equipment, even equipment whose primary 
purpose is to serve as hub and relay antennas. The expanded application 
of this rule will allow fixed wireless service providers to install 
such equipment more quickly, efficiently, and at reduced cost, which 
should reduce construction timelines.
    15. The revised OTARD rule provides fixed wireless service 
providers with greater certainty and predictability because it 
prohibits restrictions that impair the installation, maintenance, or 
use of covered antennas. Google states that municipal zoning laws and 
community association rules not only have the potential to delay or 
impede antenna installation, but also have the

[[Page 11435]]

potential to discourage service expansion due to a lack of certainty 
and predictability. Likewise, OUTFRONT asserts that fixed wireless 
service providers face uncertain delays and costs due to local 
regulations that impact their ability to deploy networks efficiently by 
using all available sites. The protections the Commission adopts in 
this document provide broadband-only service providers with the 
certainty and predictability they need to build out and deploy fixed 
wireless networks.
    16. The Commission's revised rule also enhances the ability of 
fixed wireless service providers to deliver reliable high speed 
internet access to a greater number of unserved or underserved 
customers. WISPA cites a number of examples where the limits of the 
existing OTARD rule have precluded the provision of fixed wireless 
broadband service to areas where access is limited or non-existent. 
Common, a wireless internet service provider offering service in the 
San Francisco Bay Area, maintains that expanding the OTARD rule will 
enable it to deploy more quickly on residential rooftops to serve more 
people in suburban neighborhoods that do not otherwise have service. 
Wav Speed, a wireless internet service provider, claims that extending 
the OTARD rule to cover all fixed wireless hub and relay antennas will 
allow it to serve customers in areas where reliable high speed internet 
is unavailable or inconsistent, providing customers with the 
educational, vocational, and entertainment benefits that a modern 
internet connection permits. Az Airnet asserts that there ``is a vast 
public need, especially in rural areas, for the use of small rooftops, 
or towers to bring internet service to those that cannot currently get 
it, or can only get substandard service.'' Ionia, a wireless internet 
service provider serving rural Ionia County, Michigan, and surrounding 
areas, observes that ``[z]oning and landlord restrictions prevent the 
installation of equipment that would allow the relay of fixed wireless 
signals to nearby residents.'' Ionia indicates that modifying the OTARD 
rule to allow the placement of antennas at a customer's property 
``would allow WISPs to provide high speed broadband services to 
customers that currently cannot be reached by other means due to 
terrain or vegetation.'' MJM Telecom states that it is hampered by 
current state and local regulations and has ``turned down thousands of 
potential customers due to the fact that [it] cannot put up a small 
relay hub site allowing them to receive these services.'' By extending 
the protections of the OTARD rule to fixed wireless hub and relay 
antennas, the Commission promotes rural prosperity by enabling 
efficient, modern communications among rural households, businesses, 
schools, libraries, healthcare centers, and other important community 
institutions.
    17. The record also indicates that updating the OTARD rule will 
enable consumers to access competing video programming providers. 
Consumers increasingly stream video services over the internet, instead 
of consuming such programming through traditional video programming 
services such as cable or broadcast. As WISPA indicates, the primary 
benefit of fixed wireless antennas is to secure viewers' access to 
broadband service, which is the world's largest distributor of video 
programming services, including those of traditional television 
stations and networks. INCOMPAS agrees that updating OTARD to take into 
account the need for hub and relay antennas for broadband via fixed 
wireless networks will benefit consumers with better online video 
distribution. CTIA provides additional evidence that consumers are 
increasingly relying on wireless services for video streaming, citing 
an NTIA internet Use Survey indicating that the proportion of internet 
users watching video online has grown from 45% in 2013 to 70% in 2017. 
CTIA explains that video streaming across wireless networks requires 
multiple antennas to receive programming, including antennas that 
connect to other antennas or serve other customer locations. Reducing 
restrictions on the use of fixed wireless hub and relay equipment is 
therefore consistent with the OTARD rule's original goal of increasing 
consumer access to video programing services.
    18. The Commission emphasizes that its revision is narrow in scope 
and that it maintains the other existing OTARD restrictions.\4\ For the 
OTARD rule to apply, the antenna must be installed ``on property within 
the exclusive use or control of the antenna user where the user has a 
direct or indirect ownership or leasehold interest in the property'' 
upon which the antenna is located. The OTARD provisions also apply only 
to those antennas measuring one meter or less in diameter or diagonal 
measurement. In addition, the OTARD rule is subject to an exception for 
State, local, or private restrictions that are necessary to accomplish 
a clearly defined, legitimate safety objective, or to preserve 
prehistoric or historic places that are eligible for inclusion on the 
National Register of Historic Places, provided such restrictions impose 
as little burden as necessary to achieve the foregoing objectives, and 
apply in a nondiscriminatory manner throughout the regulated area. 
Given that the OTARD rule only applies to antennas meeting the rule's 
size restriction and only to antennas placed in areas where the 
antennas' user has exclusive use or control, the Commission's rule 
revisions will minimize any potential visual impact on properties, 
which some commenters raise.
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    \4\ The Commission also notes that installations under the OTARD 
rule may not constitute an ``existing wireless tower or base 
station'' for purposes of section 6409(a) of the Spectrum Act of 
2012. See Middle Class Tax Relief and Job Creation Act of 2012, 
Public Law 112-96, Title VI, Sec.  6409(a), 126 Stat. 156, 232-33 
(Feb. 22, 2012) (codified at 47 U.S.C. 1455(a)); 47 CFR 
1.6100(b)(5). Such installations may not have been reviewed and 
approved under the local zoning or siting process, or under another 
state or local regulatory review process, and therefore future 
modifications of these installations may not qualify for section 
6409(a) streamlined treatment.
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    19. The Commission finds the opponents' arguments unpersuasive. 
First, the Commission continues to recognize property owners' rights 
under the OTARD rule. Because the Commission maintains the ``exclusive 
use or control'' and ``direct or indirect ownership or leasehold 
interest'' restrictions, fixed wireless service providers will still 
need to negotiate agreements with appropriate parties for the placement 
of their antennas in areas where the property owner or lessee has 
exclusive use or control. Contrary to the assertion of MBC and Real 
Estate Associations, this change does not undermine access 
negotiations. Rather, the revision expands OTARD protections to a 
larger class of agreements negotiated by property owners and lessees, 
in that the rule will cover more fixed wireless equipment than was 
previously allowed. For example, the new rule would not apply to the 
placement of hub and relay antennas on a building rooftop unless the 
building owner is a customer of the provider, or unless a customer 
other than the building owner already has a leasehold right to rooftop 
space and the placement is within that customer's exclusive use and 
control. In the former circumstance, to the extent that the concern is 
that application of the rule would prevent a building owner from 
charging a market-based rate for placement of a hub antenna on the 
rooftop, the Commission notes that will not be the case.\5\ The revised 
rule will

[[Page 11436]]

not treat service providers as ``antenna users,'' and their agreements 
with building owners therefore would be subject to OTARD protection 
only if the building owner is itself a customer. Further, in that case, 
OTARD would serve to protect the antenna placement from third-party 
restrictions and would not limit the right of a provider and building 
owner customer to freely negotiate the terms of antenna placement in an 
area within the building owner's exclusive use or control. If the 
provider wishes to place a device within the leasehold premises of a 
rooftop tenant, the placement would not intrude on the building owner's 
property rights since the placement would be located within an area the 
building owner has already provided the tenant with a contractual right 
to occupy. In addition, fixed wireless hub and relay antenna 
manufacturers and service providers that use this equipment must 
continue to comply with other applicable Commission regulations, such 
as RF emissions requirements.\6\
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    \5\ The Commission therefore disagrees with the National 
Multifamily Housing Council's claim that the ``proposed amendments 
would grant wireless carriers and any other entity that leases 
rooftop space the right to install fixed wireless equipment without 
paying any more in rent or amending any other lease terms.'' NMHC 
Dec. 3, 2020 Ex Parte Letter at 2. The Report and Order continues to 
recognize property owners' rights under the OTARD rule, and rooftop 
deployments remain unaffected in most circumstances.
    \6\ Fixed wireless providers are subject to equipment 
authorization rules that require radio frequency (RF) devices to 
operate effectively without causing harmful interference. RF devices 
must be properly authorized under 47 CFR part 2 prior to being 
marketed or imported in the United States. Fixed wireless providers 
that use unlicensed spectrum are subject to Part 15 rules governing 
unlicensed operation. Part 15 of the Rules allows devices employing 
low-level RF signals to operate without individual licenses, 
provided that their operation causes no harmful interference to 
licensed services and the devices do not generate emissions or field 
strength levels greater than a specified limit.
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    20. The Commission finds that potential economic costs of its rule 
change raised by commenters are both speculative and negligible. LMC 
claims that the installation of the new antennas contemplated in the 
Notice ``would dramatically change the aesthetic of a neighborhood and 
be in contrast with their established character.'' First, although 
there is no ``aesthetics exception'' under the OTARD rule, commenters 
have not provided factual support explaining how the Commission's 
update to the rule would cause these harms. Further, the Commission 
maintains the existing restrictions in the OTARD rule that impose 
limits on the dimensions and location of equipment, so the visual 
appearance of the hub and relay equipment and antennas are the same as 
those deployments already covered under the OTARD rule. Relatedly, 
NATOA claims that, ``[f]reed from the current obligation that the 
antenna be used for the owner or tenant to receive services, a property 
owner or tenant could affix an unlimited number of antennas anywhere on 
its property.'' That claim is misplaced, as the Commission's rule 
revision requires that an antenna must be deployed in a location where 
the customer has exclusive use or control. Moreover, the customer fixed 
wireless devices, including the antennas, are small, and a provider may 
only need a few additional units to relay the signals in different 
directions, if and where applicable. In addition, the Commission's 
revision leaves unchanged the OTARD rule's exemption and waiver 
frameworks, which permit limiting antenna installations for specific 
reasons. Finally, the Commission maintains the historical preservation 
exception in the OTARD rule, which limits installations of fixed 
wireless hubs and relays antennas under certain circumstances. In these 
circumstances, the Commission determines that the limited adjustment 
adopted here is appropriate.
    21. The Commission also finds that other arguments raised by 
commenters are unfounded. MBC argues that any revision to the OTARD 
rule would cast uncertainty on ``tens of thousands'' of existing 
rooftop antenna leases. The Commission's revision is narrowly focused 
on hub and relay antennas that presently are not covered by OTARD and, 
therefore, rather than disrupting commercial and residential lease 
transactions, it should encourage parties to negotiate more lease 
transactions in the future. The rule will not affect existing rooftop 
leases unless the antenna placement is located in an area within the 
exclusive use and control of a customer, in which case the parties to 
the placement agreement would be the provider and the customer. The 
OTARD rule does not affect the provider-customer relationship; rather, 
it prohibits certain public and third-party restrictions on placements 
located at the customer's premises. If a property owner is the 
customer, then the terms of the placement will be freely negotiable 
without limitation by the OTARD rule. Similarly, contrary to Oklahoma 
Cities' claims, it is implausible that the Commission's changes will 
spur such a large increase in exploitative contracts between service 
providers and homeowners and renters that new consumer protections are 
necessary, especially because providers might be enticed to offer 
consumers discounts to meet the new wording of the OTARD rule. Local 
jurisdictions, however, can rely on the provisions of sections 
1.4000(a)(3) and (4) and the safety provisions of subsection (b)(1) to 
protect the public as long as their rules meet the standards of these 
sections. Taking into consideration all of the above, the Commission 
finds that the clear economic benefits of the rule change outweigh the 
negligible, and in some cases unfounded, economic costs.
    22. Legal Authority. In the Notice, the Commission proposed to rely 
on the legal authority the Commission originally relied on in the 2000 
Competitive Networks First Report and Order in extending the 
application of the OTARD rule to antennas used in connection with fixed 
wireless services. The Commission noted that it in 2000 assumed all hub 
sites were ``personal wireless service facilities'' covered by section 
332(c)(7) of the Act--defined by the Act to include only facilities 
that provide ``telecommunications services''--and therefore beyond the 
scope of the Commission's OTARD provisions. The Commission indicated 
that this assumption no longer appeared accurate. The Commission 
therefore sought comment on extending relief to those relay antennas 
and hub sites that are not ``telecommunications services'' and/or 
``personal wireless service facilities''--i.e., those that fall into 
the gap between the Commission's current OTARD provisions and the 
protections of sections 253 and/or 332(c)(7) of the Act, and those that 
WISPA claims are needed for modern high-speed broadband wireless 
networks.
    23. The Commission finds that modifying the OTARD rule is necessary 
for the effective exercise of its spectrum management authority under 
Title III of the Communications Act. Specifically, the Commission finds 
that section 303 of the Act provides authority for the Commission to 
modify the OTARD rule as it applies to fixed wireless devices.
    24. Congress has specifically recognized that section 303 provides 
authority to the Commission to adopt OTARD rules. While the directive 
in section 207 of the 1996 Act mandated the exercise of the 
Commission's Title III authority only to certain kinds of video 
programming, section 207 directed the Commission to address such video 
programming using its existing authority under section 303. 
Specifically, section 207 states that ``[w]ithin 180 days after the 
date of enactment of this Act, the Commission shall, pursuant to 
section 303 of the Communications Act of 1934,

[[Page 11437]]

promulgate regulations to prohibit restrictions that impair a viewer's 
ability to receive video programming services through devices designed 
for over-the-air reception. . . .'' As the Commission recognized in 
extending the OTARD rule to fixed wireless services in the 2000 
Competitive Networks First Report and Order, ``this statutory language 
reflects Congress' recognition that, pursuant to section 303, the 
Commission has always possessed authority to promulgate rules 
addressing OTARDs.'' The Commission has used its section 303 authority 
to limit State and local regulation of the placement of antennas both 
before and after section 207 was enacted.
    25. Courts have held that the Commission's statutory authority 
pursuant to Title III is broad. The Commission's authority under 
section 303 allows it, when necessary to serve the public interest, to 
allocate spectrum for specific uses, adopt rules governing services 
that use spectrum as well as rules applicable to antennas and other 
apparatus, and take action to encourage the larger and more effective 
use of spectrum. More generally, the Commission may ``[m]ake such rules 
and regulations and prescribe such restrictions and conditions, not 
inconsistent with law, as may be necessary to carry out the provisions 
of'' the Act. Fixed wireless service providers offer services using 
spectrum and are subject to the Commission's rules governing the use of 
spectrum.\7\ Evidence in the record shows that fixed wireless service 
providers seek to broaden their offerings of competitive broadband 
internet access services but are subject to State, local and private 
restrictions that increase the costs associated with deploying service 
and dampen investment. The record shows that modifying the OTARD rule 
to allow wireless internet service providers to deploy necessary 
infrastructure more readily will serve the public interest and promote 
larger and more efficient use of spectrum by increasing siting 
opportunities for wireless internet service providers, decreasing costs 
associated with deploying needed infrastructure, and encouraging 
wireless internet service providers to deploy broadband internet access 
services in additional areas across the country.\8\
---------------------------------------------------------------------------

    \7\ For example, among other requirements, fixed wireless 
providers, are subject to equipment authorization rules that require 
radio frequency (RF) devices to operate effectively without causing 
harmful interference. RF devices must be properly authorized under 
47 CFR part 2 prior to being marketed or imported in the United 
States. Fixed wireless providers that use unlicensed spectrum are 
subject to Part 15 rules governing unlicensed operation. Part 15 of 
the Rules allows devices employing low-level RF signals to operate 
without individual licenses, provided that their operation causes no 
harmful interference to licensed services and the devices do not 
generate emissions or field strength levels greater than a specified 
limit. Fixed wireless providers also are subject to current OTARD 
requirements.
    \8\ This exercise of the Commission's Title III authority will 
thus further promote the Commission's statutory mission of 
``mak[ing] available, so far as possible, to all of the people of 
the United States . . . a rapid, efficient, Nation-wide, and world-
wide wire and radio communication service with adequate facilities 
at reasonable charges,'' and ``encourag[ing] the deployment on a 
reasonable and timely basis of advanced telecommunications 
capability to all Americans . . . by utilizing, in a manner 
consistent with the public interest, convenience, and necessity . . 
. measures that promote competition in the local telecommunications 
market, or other regulating methods that remove barriers to 
infrastructure investment.'' 47 U.S.C. 151, 1302(a). Based on the 
Commission's findings regarding its authority under Title III of the 
Act, the Commission rejects National Multifamily Housing Council's 
argument that the Commission has no statutory authority to revise 
the OTARD rule.
---------------------------------------------------------------------------

    26. Several commenters argue that the Commission cannot rely on the 
authority it relied on previously to modify the OTARD rule because the 
Commission's determinations regarding its authority in the 2000 
Competitive Networks First Report and Order were based on an ``outdated 
ancillary jurisdiction analysis.'' The Commission acknowledges that the 
Commission's Competitive Networks Order was issued prior to the D.C. 
Circuit's decision in Comcast v. FCC, 600 F.3d 642 (D.C. Cir. 2010), 
which rejected the Commission's reliance on ancillary authority in the 
absence of any express delegation of authority. Nevertheless, the 
Commission's action here is based on its well recognized broad 
authority under Title III (most specifically section 303).\9\
---------------------------------------------------------------------------

    \9\ Moreover, the Commission's action is reasonably ancillary to 
its express authority to manage the radio spectrum and related 
apparatus. 47 U.S.C. 154(i), 303(r). Section 4(i) provides that 
``[t]he Commission may perform any and all acts, make such rules and 
regulations, and issue such orders, not inconsistent with this Act, 
as may be necessary in the execution of its functions.'' Section 
303(r) authorizes the Commission to ``[m]ake such rules . . . as may 
be necessary to carry out the provisions of this the Act.'' As noted 
above, the Commission's modest expansion of the existing application 
of the OTARD rules to additional hub and relay antennas is necessary 
to address the kinds of substantial obstacles to deployment of Title 
III services described above. See United States v. Southwestern 
Cable Co., 392 U.S. 157, 172-78, 180-81 (1968). The decision will 
also provide a level-playing field for broadband-only fixed wireless 
providers which lack the regulatory protections in this regard 
available only to their competitors under sections 253 and 332. See 
Mobile Communications Corp. of America v. FCC, 77 F.3d 1399 (D.C. 
Cir. 1996).
---------------------------------------------------------------------------

    27. The Commission's action also is consistent with the 
requirements imposed upon the Commission in RAY BAUM'S Act. RAY BAUM'S 
Act requires the Commission, in the Communications Marketplace Report, 
to assess the state of competition in the communications marketplace, 
assess the state of deployment of communications capabilities, and to 
assess whether laws, regulations, regulatory practices or demonstrated 
marketplace practices pose a barrier to competitive entry into the 
communications marketplace or to the competitive expansion of existing 
providers of communications services. It also requires the Commission 
to describe how it will address ``the challenges and opportunities in 
the communications marketplace that were identified through the 
assessments.''
    28. The Commission also disagrees with commenters who argue that 
the Commission lacks authority to modify the OTARD rule because hub and 
relay antennas are already governed by section 332 of the Act. 
Commenters such as the Municipal Organizations and Local Governments 
point out that, in the 2000 Competitive Networks First Report and 
Order, the Commission found that hub and relay antennas were outside 
the scope of customer-end equipment covered by the OTARD rule. The 
Municipal Organizations argue that because hub and relay antennas are 
covered under section 332(c)(7), no other provision of the Act may 
``support an action that `limit[s] or affect[s] the authority of a 
State or local government or instrumentality thereof over decisions 
regarding the placement, construction, and modification of' these 
facilities.'' To the contrary, the Commission finds that section 
332(c)(7) does not bar it from modifying the OTARD rule because it does 
not apply to antennas used in connection with the broadband-only 
services many fixed wireless providers offer.
    29. Evidence in the record shows that wireless internet service 
providers use hub and relay antennas to provide services that do not 
fall within the scope of services covered under section 332(c)(7). With 
certain exceptions, section 332(c)(7) provides for limited federal 
preemption of State and local zoning restrictions ``that prohibit or 
have the effect of prohibiting'' ``the provision of `personal wireless 
service.' '' ``Personal wireless service'' is defined under section 
332(c)(7) to mean ``commercial mobile services, unlicensed wireless 
services, and common carrier wireless exchange access services.'' 
``Unlicensed wireless service'' in turn, is defined under section 
332(c)(7) to mean ``the offering of telecommunications services using 
duly authorized devices which do not require individual licenses, but 
does not mean the provision of direct-to-home satellite services . . . 
.'' Section 253

[[Page 11438]]

similarly provides for limited federal preemption of state and local 
statute or regulations that ``prohibit or have the effect of 
prohibiting'' ``the ability of any entity to provide any interstate or 
intrastate telecommunications service.''
    30. Many fixed wireless providers offer broadband-only services 
that are outside the scope of these provisions. In this Report and 
Order, the Commission takes action to address those hub and relay 
antennas that are used in connection with the provision of broadband-
only services that fall into the gap between its current OTARD 
provisions and the protections of sections 332(c)(7) and 253 of the 
Act. In response to the request from WISPA for clarification about 
whether the Commission's prior sections 253 and 332 interpretations 
cover their offering of commingled services, the Commission reiterates 
what it already decided and the Ninth Circuit Court of Appeals 
affirmed: The scope of Commission preemption over commingled services 
is covered by sections 253 and 332 of the Act and its implementing 
regulations. Expansion of the OTARD rule to cover commingled services 
thus is unnecessary. Accordingly, this Report and Order does not 
address hub or relay antennas that are used for such commingled 
services, other than to point out that they are covered for preemption 
purposes under sections 253 and 332 of the Act.
    31. The Commission also rejects arguments that revising the OTARD 
rule as described herein would constitute a taking. The Community 
Associations Institute (CAI) argues that ``a rule allowing commercial 
communications equipment to be sited on common property without the 
association's explicit consent is a compelled physical occupation of 
such property'' and that such a rule ``would constitute a taking for 
which compensation must be made.'' The Real Estate Associations contend 
that while the revised rule would not say so on its face, its practical 
effect would be to ``give fixed wireless providers the ability to 
install and operate equipment without the consent of the owner of the 
property.'' They contend that, even though the hub or relay antenna 
might serve the needs of the end-user customer, it would ``also have 
other features that meet only the needs of the third-party service 
provider'' and argue that requiring property owners to accept the 
installation of such equipment would potentially equate to forced 
acquiescence to subleasing to fixed wireless service providers and 
would therefore violate the Fifth Amendment's prohibition on takings. 
The Commission disagrees that the revision to the OTARD rule that it 
adopts in this Report and Order would cause such results. The OTARD 
rule does not permit service providers to install hub and relay 
antennas on common property without a property owner's consent. The 
modification the Commission adopts is narrow and eliminates only the 
restriction that currently excludes some hub and relay antennas from 
the scope of the existing OTARD provisions. It does not change any 
other aspect of the current OTARD rule, including the requirement that, 
for the OTARD rule to apply, the antenna must be installed ``on 
property within the exclusive use or control of the antenna user where 
the user has a direct or indirect ownership or leasehold interest in 
the property.'' A tenant may allow a wireless service provider to place 
a hub or relay antenna on property that is within the tenant's 
exclusive use or control where the tenant has a direct or indirect 
ownership or leasehold interest in the property.
    32. In originally extending the OTARD rule to fixed wireless 
services, the Commission considered and rejected similar arguments that 
the OTARD rule would constitute a taking and concluded that, ``there is 
no constitutional impediment to the Commission forbidding restrictions 
on the placement of antennas on property within the tenant user's 
exclusive use, where that user has an interest in the property.'' The 
Commission reiterated its explanation from the OTARD Second Report and 
Order that the OTARD rule ``did not effect a taking of the premises 
owner's property within the meaning of the Fifth Amendment because by 
leasing his or her property to a tenant, the property owner voluntarily 
and temporarily relinquishes the rights to possess and use the property 
and retains the right to dispose of the property.'' In Building Owners 
and Managers Ass'n Inter. v. FCC, 254 F.3d 89 (D.C. Cir. 2001), the 
D.C. Circuit upheld the Commission's extension of OTARD protection to 
the placement of antennas on leased premises, rejecting the claim that 
the action effected a per se taking ``because it enlarges the tenant's 
rights beyond the contractual provisions of the lease, thereby 
stripping landowners of property rights that they rightfully reserved. 
. . .'' The court held that ``the landlord affected by the amended 
OTARD rule will have voluntarily ceded control of an interest in his or 
her property to a tenant'' and having done so ``thereby submits to the 
Commission's rightful regulation of a term of that occupation.'' (Ibid) 
The Commission is not convinced that its decision creates a Fifth 
Amendment takings issue, or that the broad categories of covered 
activities cited in BOMA should be restricted, simply because 
installation of the hub and relay equipment might result in the end 
user receiving money or other compensation in exchange for installation 
of the equipment on the premises. Consistent with and for the reasons 
outlined in the Commission's previous determinations, it concludes that 
revising the OTARD rule as described herein does not constitute a 
taking. A taking does not occur in such cases because, by leasing 
property to the tenant, the property owner has voluntarily and 
temporarily relinquished the right to possess and use the property and 
has instead given those rights to the tenant.
    33. The Commission also rejects arguments premised on the 
generalized concerns about the Commission's RF safety limits and that 
incrementally revising the OTARD rule would somehow violate people's 
right to bodily autonomy or their property-based right to ``exclude'' 
wireless radiation emitted by third parties from their home or would 
violate the Americans with Disabilities Act or the Fair Housing Act by 
imposing radiation on individuals in their homes. Revising the OTARD 
rule does not change the applicability of the Commission's radio 
frequency exposure requirements, and fixed wireless providers must 
ensure that their equipment remains within the applicable exposure 
limits. What is more, in 2019, the Commission declined to initiate a 
rulemaking to revise its RF emission exposure limits. The Commission 
therefore rejects certain commenters' concerns that the OTARD rule 
revisions will generally lead to unsafe RF exposure levels.
    34. Regulatory Flexibility Act. The Regulatory Flexibility Act of 
1980, as amended (RFA), requires that an agency prepare a regulatory 
flexibility analysis for notice and comment rulemakings, unless the 
agency certifies that ``the rule will not, if promulgated, have a 
significant economic impact on a substantial number of small 
entities.'' Accordingly, the Commission has prepared a Final Regulatory 
Flexibility Analysis (FRFA) concerning the possible impact of the rule 
changes contained in this Report and Order on small entities.
    35. Paperwork Reduction Act. This document does not contain an 
information collection subject to the Paperwork Reduction Act of 1995 
(PRA), Public Law 104-13. Therefore, it does not contain any new or 
modified ``information collection burden for

[[Page 11439]]

small business concerns with fewer than 25 employees,'' pursuant to the 
Small Business Paperwork Relief Act of 2002, Public Law 107-198.
    36. 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 Report and Order to Congress and the 
Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).
    37. People with Disabilities. 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).

Final Regulatory Flexibility Analysis

    38. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was 
incorporated in the Notice of Proposed Rulemaking (Notice) released in 
April 2019. The Commission sought written public comment on the 
proposals in the Notice, including comment on the IRFA. No comments 
were filed addressing the IRFA. This present Final Regulatory 
Flexibility Analysis (FRFA) conforms to the RFA.

A. Need for, and Objectives of, the Report and Order

    39. In the Report and Order, the Commission updates its rule for 
over-the-air reception devices (OTARD) to include hub and relay 
antennas that are used for the distribution of fixed wireless services 
to multiple customer locations, regardless of whether they are 
primarily used for this purpose, so long as the antennas serve a 
customer on whose premises they are located. This change is 
necessitated by the shift away from larger antennas spread over greater 
distances to 5G wireless networks with dense deployment requirements. 
Today's fixed wireless networks rely on smaller antennas located in 
close proximately to each other. These smaller antennas meet the OTARD 
size restriction but are excluded from OTARD protection due to their 
function. By updating the OTARD rule to include these antennas, the 
Commission recognizes the shift in the fixed wireless infrastructure 
landscape.
    40. The shift in the types of service provided by fixed wireless 
service providers also prompts the need for this rule change. 
Specifically, these service providers' offerings are no longer 
commingled with telecommunications services and therefore would not 
otherwise receive protection from one of the Commission's preemption 
schemes. In this regard, the Commission's actions level the playing 
field for fixed wireless broadband service providers so that they are 
better able to compete with other service providers that already 
receive protection from the Commission's OTARD rule or other preemption 
scheme. By making this modification, the Commission places fixed 
wireless broadband providers on similar footing with other service 
providers and expands siting options for fixed wireless hub and relay 
antennas. These changes will reduce costs and construction timelines 
for new fixed wireless sites. They will also provide for alternative 
locations for fixed wireless hub and relay antennas to be installed and 
remove market barriers for fixed wireless services that otherwise would 
exist. Additionally, the changes adopted in the Report and Order will 
enhance the development of broadband services and further the 
Commission's efforts to address the digital divide by helping to bring 
faster internet speeds, lower latency, and advanced applications like 
the Internet of Things (IoT), telehealth, and remote learning to rural 
and underserved areas, as well as throughout the United States.

B. Summary of Significant Issues Raised by Public Comments in Response 
to the Interim Regulatory Flexibility Analysis

    41. There were no comments filed that specifically addressed the 
proposed rules and policies presented in the IRFA.

C. Response to Comments by the Chief Counsel for Advocacy of the Small 
Business Administration

    42. Pursuant to the Small Business Jobs Act of 2010, which amended 
the RFA, the Commission is required to respond to any comments filed by 
the Chief Counsel for Advocacy of the Small Business Administration 
(SBA), and to provide a detailed statement of any change made to the 
proposed rules as a result of those comments.
    43. The Chief Counsel did not file any comments in response to the 
proposed rules in this proceeding.

D. Description and Estimate of the Number of Small Entities to Which 
the Rules Will Apply

    44. The RFA directs agencies to provide a description of, and where 
feasible, an estimate of the number of small entities that may be 
affected by the rules and adopted herein. The RFA generally defines the 
term ``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under the Small Business 
Act. A ``small business concern'' is one which: (1) Is independently 
owned and operated; (2) is not dominant in its field of operation; and 
(3) satisfies any additional criteria established by the SBA.
    45. Small Businesses, Small Organizations, Small Governmental 
Jurisdictions. The Commission's actions, over time, may affect small 
entities that are not easily categorized at present. The Commission 
therefore describes here, at the outset, three broad groups of small 
entities that could be directly affected herein. First, while there are 
industry specific size standards for small businesses that are used in 
the regulatory flexibility analysis, according to data from the Small 
Business Administration's (SBA) Office of Advocacy, in general a small 
business is an independent business having fewer than 500 employees. 
These types of small businesses represent 99.9% of all businesses in 
the United States, which translates to 30.7 million businesses.
    46. Next, the type of small entity described as a ``small 
organization'' is generally ``any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.'' 
The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000 
or less to delineate its annual electronic filing requirements for 
small exempt organizations. Nationwide, for tax year 2018, there were 
approximately 571,709 small exempt organizations in the U.S. reporting 
revenues of $50,000 or less according to the registration and tax data 
for exempt organizations available from the IRS.
    47. Finally, the small entity described as a ``small governmental 
jurisdiction'' is defined generally as ``governments of cities, 
counties, towns, townships, villages, school districts, or special 
districts, with a population of less than fifty thousand.'' U.S. Census 
Bureau data from the 2017 Census of Governments indicate that there 
were 90,075 local governmental jurisdictions consisting of general 
purpose governments and special purpose governments in the United 
States. Of this number there were 36,931 general purpose governments 
(county, municipal and town or township) with populations of less than 
50,000 and 12,040 special purpose governments--independent school 
districts with enrollment populations of less than

[[Page 11440]]

50,000. Accordingly, based on the 2017 U.S. Census of Governments data, 
the Commission estimates that at least 48,971 entities fall into the 
category of ``small governmental jurisdictions.''
    48. Local Exchange Carriers. Neither the Commission nor the SBA has 
developed a size standard for small businesses specifically applicable 
to local exchange services. The closest applicable NAICS Code category 
is Wired Telecommunications Carriers. Under the applicable SBA size 
standard, such a business is small if it has 1,500 or fewer employees. 
U.S. Census Bureau data for 2012 show that there were 3,117 firms that 
operated for the entire year. Of that total, 3,083 operated with fewer 
than 1,000 employees. Thus, under this category and the associated size 
standard, the Commission estimates that the majority of local exchange 
carriers are small entities.
    49. Wireless Telecommunications Carriers (except Satellite). This 
industry comprises establishments engaged in operating and maintaining 
switching and transmission facilities to provide communications via the 
airwaves. Establishments in this industry have spectrum licenses and 
provide services using that spectrum, such as cellular services, paging 
services, wireless internet access, and wireless video services. The 
appropriate size standard under SBA rules is that such a business is 
small if it has 1,500 or fewer employees. For this industry, U.S. 
Census Bureau data for 2012 show that there were 967 firms that 
operated for the entire year. Of this total, 955 firms employed fewer 
than 1,000 employees and 12 firms employed of 1,000 employees or more. 
Thus under this category and the associated size standard, the 
Commission estimates that the majority of Wireless Telecommunications 
Carriers (except Satellite) are small entities.
    50. The Commission's own data--available in its Universal Licensing 
System--indicate that, as of August 31, 2018 there are 265 Cellular 
licensees that will be affected by its actions. The Commission does not 
know how many of these licensees are small, as the Commission does not 
collect that information for these types of entities. Similarly, 
according to internally developed Commission data, 413 carriers 
reported that they were engaged in the provision of wireless telephony, 
including cellular service, Personal Communications Service (PCS), and 
Specialized Mobile Radio (SMR) Telephony services. Of this total, an 
estimated 261 have 1,500 or fewer employees, and 152 have more than 
1,500 employees. Thus, using available data, the Commission estimates 
that the majority of wireless firms can be considered small.
    51. Non-Licensee Owners of Towers and Other Infrastructure. 
Although at one time most communications towers were owned by the 
licensee using the tower to provide communications service, many towers 
are now owned by third-party businesses that do not provide 
communications services themselves but lease space on their towers to 
other companies that provide communications services. The Commission's 
rules require that any entity, including a non-licensee, proposing to 
construct a tower over 200 feet in height or within the glide slope of 
an airport must register the tower with the Commission's Antenna 
Structure Registration (ASR) system and comply with applicable rules 
regarding review for impact on the environment and historic properties.
    52. As of March 1, 2017, the ASR database includes approximately 
122,157 registration records reflecting a ``Constructed'' status and 
13,987 registration records reflecting a ``Granted, Not Constructed'' 
status. These figures include both towers registered to licensees and 
towers registered to non-licensee tower owners. The Commission does not 
keep information from which it can easily determine how many of these 
towers are registered to non-licensees or how many non-licensees have 
registered towers. Regarding towers that do not require ASR 
registration, the Commission does not collect information as to the 
number of such towers in use and therefore cannot estimate the number 
of tower owners that would be subject to the rules on which it seeks 
comment. Moreover, the SBA has not developed a size standard for small 
businesses in the category ``Tower Owners.'' Therefore, the Commission 
is unable to determine the number of non-licensee tower owners that are 
small entities. The Commission believes, however, that when all 
entities owning 10 or fewer towers and leasing space for collocation 
are included, non-licensee tower owners number in the thousands. In 
addition, there may be other non-licensee owners of other wireless 
infrastructure, including Distributed Antenna Systems (DAS) and small 
cells that might be affected by the measures on which the Commission 
seeks comment. The Commission does not have any basis for estimating 
the number of such non-licensee owners that are small entities.
    53. The closest applicable SBA category is All Other 
Telecommunications, and the appropriate size standard consists of all 
such firms with gross annual receipts of $3 million or less. For this 
category, U.S. Census Bureau data for 2012 show that there were 1,442 
firms that operated for the entire year. Of these firms, a total of 
1,400 had gross annual receipts of less than $25 million and 15 firms 
had annual receipts of $25 million to $49,999,999. Thus, under this SBA 
size standard a majority of the firms potentially affected by the 
Commission's action can be considered small.
    54. Lessors of Residential Buildings and Dwellings. This industry 
comprises establishments primarily engaged in acting as lessors of 
buildings used as residences or dwellings, such as single-family homes, 
apartment buildings, and town homes. Included in this industry are 
owner-lessors and establishments renting real estate and then acting as 
lessors in subleasing it to others. The establishments in this industry 
may manage the property themselves or have another establishment manage 
it for them. The appropriate SBA size standard for this industry 
classifies a business as small if it has $27.5 million or less in 
annual receipts. U.S. Census Bureau 2012 data for Lessors of 
Residential Buildings and Dwellings show that there were 42,911 firms 
that operated for the entire year. Of that number, 42,618 firms 
operated with annual receipts of less than $25 million per year, while 
142 firms operated with annual receipts between $25 million and 
$49,999,999 million. Therefore, based on the SBA's size standard the 
majority of Lessors of Residential Buildings and Dwellings are small 
entities.
    55. Property Owners' Associations. This industry comprises 
establishments formed on the behalf of individual property owners, to 
make collective decisions based on the wishes of a majority of owners. 
This includes associations formed on behalf of individual residential 
condominium owners or homeowners. These associations may provide 
overall management, publish a telephone directory of the owners, 
sponsor seasonal events for the owners, establish and collect funds to 
operate the project, enforce rules and regulations, settle differences 
of opinion among residents, and make other decisions that are vital to 
the owners. Associations formed on behalf of individual real estate 
owners or tenants that provide no property management, but which 
arrange and organize civic and social functions are included here as 
well. This industry falls within the category of, ``Other Similar 
Organizations (except Business, Professional, Labor, and Political

[[Page 11441]]

Organizations)'' under the U.S. Census Bureaus' NAICS classification 
system. The SBA small business size standard for this industry 
classifies a business as small if it has $8 million or less in annual 
receipts. U.S. Census Bureau 2012 data for this industry show that 
there were 18,347 firms that operated for the entire year. Of that 
number, 17,818 firms operated with annual receipts of less than $5 
million per year, while 382 firms operated with annual receipts between 
$5 million and $9,999,999 million. Therefore, based on the SBA's size 
standard the majority of Property Owners' Associations are small firms 
in this industry.

E. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities

    56. The revisions to the OTARD rule do not impose any new or 
additional reporting, recordkeeping, or other compliance obligations. 
However, the number of entities subject to the rule's protections may 
expand because of the Commission's actions. The revisions also will not 
require small entities to hire attorneys, engineers, consultants, or 
other professionals to comply with the rule changes. Instead, the 
Commission expect the changes adopted in the Report and Order will have 
a beneficial impact on small entities. More specifically, the revisions 
will allow small fixed wireless providers to install fixed wireless hub 
and relay antennas more quickly and efficiently and at lower cost by 
expanding the class of providers whose antennas are subject to 
regulatory protections, although the Commission cannot quantify the 
magnitude of these cost savings. Further, the OTARD rule revisions will 
reduce construction timelines for new fixed wireless sites and reduce 
barriers to entry, which may result in more small entities utilizing 
the OTARD rule's protections and installing fixed wireless equipment.
    57. By ensuring that State, local, and private restrictions do not 
delay or impede the installation of fixed wireless hub or relay 
antennas, the Commission's actions will benefit small as well as other 
fixed wireless providers by creating more siting opportunities and 
spurring investment in and deployment of wireless infrastructure. 
Communications services will become more readily available in unserved, 
underserved, and rural areas furthering the Commission's efforts to 
address the digital divide.

F. Steps Taken To Minimize the Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    58. The RFA requires an agency to describe any significant, 
specifically small business, alternatives that it has considered in 
reaching its approach, which may include the following four 
alternatives (among others): ``(1) the establishment of differing 
compliance or reporting requirements or timetables that take into 
account the resources available to small entities; (2) the 
clarification, consolidation, or simplification of compliance or 
reporting requirements under the rule for such small entities; (3) the 
use of performance, rather than design, standards; and (4) an exemption 
from coverage of the rule, or any part thereof, for such small 
entities.''
    59. In the Report and Order, the Commission revises its OTARD rule 
to expand its coverage to include hub and relay antennas that are used 
for the distribution of fixed wireless services to multiple customer 
locations, regardless of whether they are primarily used for this 
purpose, so long as the antennas serve a customer on whose premises 
they are located. By revising the OTARD rule to reflect the current 
technological landscape, the Commission's actions should reduce the 
economic impact for small entities that deploy fixed hub and relay 
antennas by reducing the costs and time associated with the deployment 
of such infrastructure.
    60. Comments filed by the Wireless internet Service Providers 
Association (WISPA) which represents fixed wireless providers--
including small providers serving rural and underserved areas, supports 
the Commission's revision of the OTARD rule stating that, ``[e]xtending 
the OTARD rules to fixed wireless hub and relay antennas would spur 
infrastructure deployment, including deployment of networks that 
involve local relaying in rural and other underserved areas and 
deployment by small providers.'' MJM Telecom a small internet service 
provider and WISPA member indicated that under the current OTARD rules, 
``[w]e have had to turn down thousands of potential customers due to 
the fact that we cannot put up a small relay hub site[,]'' and 
requested that the Commission adopted the revision to the OTARD rules 
proposed in the Notice and adopted in the Report and Order. With the 
OTARD rule change, the Commission has removed hurdles to siting which 
imposed barriers to entry, investment and deployment for fixed wireless 
providers which is a major step to level the playing field for these 
providers. Reduced costs and removal of barriers to entry coupled with 
the opportunity for expansion into unserved and underserved service 
areas and increased customer revenues for fixed wireless providers hold 
the promise of a beneficial economic impact for small entities.
    61. Some commenters have concerns about an increase in certain 
costs--such as aesthetics (e.g., too many antennas on a property) and 
disruption of existing contracts between wireless providers and 
property owners. These commenters argued that the current OTARD rule 
should be maintained. In considering these arguments, the Commission 
determined that the demonstrable economic benefits of the rule outweigh 
the economic costs, which are negligible to the extent such costs can 
be substantiated. First, the revision will enhance the ability of small 
and other fixed wireless service providers to deliver reliable high 
speed internet access to a greater number of unserved or underserved 
customers. And there will be fewer restrictions on the antennas that 
customers nationwide will be able to place on a property they control. 
The OTARD rule revision will also protect small and other fixed 
wireless broadband providers from unreasonable delays in the 
installation of fixed wireless hub and relay antennas or the 
unreasonable prevention of such installations or deployments. It will 
also provide small and other fixed wireless service providers with 
protections against unreasonable fees for the installation of hub and 
relay antennas. Further, the prohibition against restrictions that 
impair the installation, maintenance or use of covered antennas will 
provide small and other fixed wireless providers certainty and 
predictability. In addition, the Commission determined that the 
revision will promote competition by allowing more small and other 
fixed wireless providers to deploy in areas where it would not 
otherwise be economically feasible and to serve underserved communities 
such as rural areas, which is consistent with Commission policy and in 
the public interest.
    62. The National Association of Telecommunications Officers and 
Advisors (``NATOA''), the National League of Cities (``NLC''), and the 
National Association of Regional Councils (``NARC''), jointly (the 
``Municipal Organizations'') who members include small local 
governments, cities, and towns, opposed the OTARD rule change and 
provided some alternative suggestions, which

[[Page 11442]]

they claim will ``help achieve [the Commission's] goal of improved 
broadband availability.'' However, these alternatives--which the 
Municipal Organizations provide in the context of arguing that the 
Commission lacks authority to promulgate its revisions--are beyond the 
scope of this proceeding. In addition, these alternatives are not 
mutually exclusive with the actions that the Commission takes in the 
Report and Order.
    63. Moreover, with regard to some of the concerns raised by the 
Municipal Organizations, the Commission emphasizes that, while the 
Report and Order removes the primary use restriction on fixed wireless 
hub and relay antennas, it maintains the other existing OTARD 
restrictions. For the OTARD rule to apply, the antenna must be 
installed ``on property within the exclusive use or control of the 
antenna user where the user has a direct or indirect ownership or 
leasehold interest in the property'' upon which the antenna is located. 
Further, the OTARD provisions apply only to those antennas measuring 
one meter or less in diameter or diagonal measurement. In addition, the 
OTARD rule is subject to an exception for State, local, or private 
restrictions that are necessary to accomplish a clearly defined, 
legitimate safety objective, or to preserve prehistoric or historic 
places that are eligible for inclusion on the National Register of 
Historic Places, provided such restrictions impose as little burden as 
necessary to achieve the foregoing objectives, and apply in a 
nondiscriminatory manner throughout the regulated area. Given that the 
Report and Order preserves the restrictions on the physical dimensions 
and location of equipment, the rule revisions will minimize any 
potential visual impact on properties, which some commenters raise. The 
hub and relay equipment installed will resemble the equipment already 
covered under the OTARD rule.
    64. Finally, the Report and Order continues to recognize property 
owners' rights under the OTARD rule. Because it maintains the 
``exclusive use or control'' and ``direct or indirect ownership or 
leasehold interest'' restrictions, fixed wireless service providers 
will still need to negotiate agreements with appropriate parties for 
the placement of their antennas. In addition, fixed wireless hub and 
relay antenna manufacturers and service providers that use this 
equipment must continue to comply with other applicable Commission 
regulations, such as mast and RF emissions requirements. This places 
hub and relay antennas under the same kinds of restrictions as other 
equipment subject to OTARD protections. Localities and property owners 
can continue to rely on these provisions for their protection. 
Accordingly, the Commission's actions in the Report and Order removing 
the restriction on fixed wireless hub and relay antennas while 
retaining the other existing OTARD restrictions, strikes the 
appropriate balance to minimize the economic impact for fixed wireless 
providers, localities and property owners who are small entities.

Ordering Clauses

    65. Accordingly, it is ordered, pursuant to sections 1, 4(i), 
201(b), 202(a), 205, 251, 253, 303, 316, 332, and 1302 of the 
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 201(b), 
202(a), 205(a), 251, 253, 303, 316, 332, and 1302 and section 207 of 
the Telecommunications Act of 1996, Public Law 104-104, 207, 110 Stat. 
56, 114 that this Report and Order is adopted.
    66. It is further ordered that section 1.4000 of the Commission's 
rules is amended as specified in the Final Rules, and such rule 
amendments shall be effective 30 days after the date of publication of 
the text thereof in the Federal Register.
    67. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Report and Order, including the Final Regulatory 
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small 
Business Administration.

List of Subjects in 47 CFR Part 1

    Administrative practice and procedures, Communications equipment, 
Telecommunications.

Federal Communications Commission.
Marlene Dortch,
Secretary.

Final Rules

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

PART 1--PRACTICE AND PROCEDURE

Subpart S--Preemption of Restrictions That ``Impair'' the Ability 
To Receive Television Broadcast Signals, Direct Broadcast Satellite 
Services, or Multichannel Multipoint Distribution Services or the 
Ability To Receive or Transmit Fixed Wireless Communications 
Signals

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

    Authority: 47 U.S.C. chs. 2, 5, 9, 13; 28 U.S.C. 2461, unless 
otherwise noted.


0
2. Amend Sec.  1.4000 by revising paragraphs (a)(1)(i)(A) and (ii)(A) 
and adding paragraph (a)(5) to read as follows:


Sec.  1.4000  Restrictions impairing reception of television broadcast 
signals, direct broadcast satellite services or multichannel multipoint 
distribution services.

    (a)(1) * * *
    (i) * * *
    (A) Used to receive direct broadcast satellite service, including 
direct-to-home satellite service, or to receive or transmit fixed 
wireless signals via satellite, including a hub or relay antenna used 
to receive or transmit fixed wireless services that are not classified 
as telecommunications services, and
* * * * *
    (ii) * * *
    (A) Used to receive video programming services via multipoint 
distribution services, including multichannel multipoint distribution 
services, instructional television fixed services, and local multipoint 
distribution services, or to receive or transmit fixed wireless signals 
other than via satellite, including a hub or relay antenna used to 
receive or transmit fixed wireless services that are not classified as 
telecommunications services, and
* * * * *
    (5) For purposes of this section, ``hub or relay antenna'' means 
any antenna that is used to receive or transmit fixed wireless signals 
for the distribution of fixed wireless services to multiple customer 
locations as long as the antenna serves a customer on whose premises it 
is located, but excludes any hub or relay antenna that is used to 
provide any telecommunications services or services that are provided 
on a commingled basis with telecommunications services.
* * * * *
[FR Doc. 2021-01304 Filed 2-24-21; 8:45 am]
BILLING CODE 6712-01-P