Original FCC Order is here.
In the Matter of . . .
- WT Docket No. 13-238: Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies
- WC Docket No. 11-5: Acceleration of Broadband Deployment: Expanding the Reach and Reducing the Cost of Broadband Deployment by Improving Policies Regarding Public Rights of Way and Wireless Facilities Siting
- WT Docket No. 13-32: 2012 Biennial Review of Telecommunications Regulation
REPORT AND ORDER
Adopted: October 17, 2014
Released: October 21, 2014
By the Commission: Chairman Wheeler and Commissioners Clyburn, Rosenworcel, Pai, and O’Rielly issuing separate statements
Table of Contents
I. INTRODUCTION
II. EXECUTIVE SUMMARY
III. NEPA AND NHPA REVIEW OF SMALL WIRELESS FACILITIES
IV. ENVIRONMENTAL NOTIFICATION EXEMPTION FOR REGISTRATION OF TEMPORARY TOWERS
V. IMPLEMENTATION OF SECTION 6409(A)
VI. SECTION 332(C)(7) AND THE 2009 DECLARATORY RULING
VII. PROCEDURAL MATTERS
VIII. ORDERING CLAUSE
APPENDIX A –List of Comments and Replies
APPENDIX B –Final Rules
APPENDIX C –Final Regulatory Flexibility Analysis
VIII. ORDERING CLAUSES
288. ACCORDINGLY, IT IS ORDERED, pursuant to sections 1, 2, 4(i), 7, 201, 301, 303, 309, and 332 of the Communications Act of 1934, as amended, Sections 6003, 6213, and 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. No. 112-96, 126 Stat. 156, 47 U.S.C. §§ 151, 152, 154(i), 157, 201, 301, 303, 309, 332, 1403, 1433, and 1455(a), Section 102(C) of the National Environmental Policy Act of 1969, as amended, 42 U.S.C. § 4332(C), and Section 106 of the National Historic Preservation Act of 1966, as amended, 16 U.S.C. § 470f, that this Report and Order IS HEREBY ADOPTED.
If any section, subsection, paragraph, sentence, clause or phrase of this Report and Order or the rules adopted herein is declared invalid for any reason, the remaining portions of this Report and Order and the rules adopted herein SHALL BE severable from the invalid part and SHALL REMAIN in full force and effect.
289. IT IS FURTHER ORDERED that Parts 1 and 17 of the Commission’s Rules ARE AMENDED as set forth in Appendix B, and that these changes SHALL BE EFFECTIVE 30 days after publication in the Federal Register, except for Section 1.40001, which SHALL BE EFFECTIVE 90 days after publication in the Federal Register; provided, however, that those rules and requirements that require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act SHALL BECOME EFFECTIVE after the Commission publishes a notice in the Federal Register announcing such approval and the relevant effective date.
290. 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.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
APPENDIX B — Final Rules
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 C.F.R. Part 1 and Part 17 as follows:
PART 1 – PRACTICE AND PROCEDURE
1. The authority citation for Part 1 is amended to read as follows: AUTHORITY: 15 U.S.C. 79, et seq.; 47 U.S.C. 151, 154(i), 154(j), 155, 157, 160, 201, 225, 227, 303, 309, 332, 1403, 1404, 1451, 1452, and 1455.
2. Section 1.1306 is amended by revising NOTE 1 and adding NOTE 4 to read as follows: § 1.1306 Actions which are categorically excluded from environmental processing.
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NOTE 1: The provisions of § 1.1307(a) requiring the preparation of EAs do not encompass the mounting of antenna(s) and associated equipment (such as wiring, cabling, cabinets, or backup-power), on or in an existing building, or on an antenna tower or other man-made structure, unless § 1.1307(a)(4) is applicable. Such antennas and associated equipment are subject to § 1.1307(b) and require EAs if their construction would result in human exposure to radiofrequency radiation in excess of the applicable health and safety guidelines cited in § 1.1307(b). The provisions of §§ 1.1307 (a) and (b) do not encompass the installation of aerial wire or cable over existing aerial corridors of prior or permitted use or the underground installation of wire or cable along existing underground corridors of prior or permitted use, established by the applicant or others. The use of existing structures or corridors is an environmentally desirable alternative to the construction of new facilities and is encouraged. The provisions of §§ 1.1307(a) and (b) do not encompass the construction of new submarine cable systems.
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NOTE: The requirements in paragraph (a)(4) of this section do not apply to:
(a) The mounting of antennas (including associated equipment such as wiring, cabling, cabinets, or backup-power) on existing utility structures (including utility poles and electric transmission towers in active use by a “utility” as defined in Section 224 of the Communications Act, 47 U.S.C. 224, but not including light poles, lamp posts, and other structures whose primary purpose is to provide public lighting) where the deployment meets the following conditions:
(1) All antennas that are part of the deployment fit within enclosures (or if the antennas are exposed, within imaginary enclosures) that are individually no more than three cubic feet in volume, and all antennas on the structure, including any pre-existing antennas on the structure, fit within enclosures (or if the antennas are exposed, within imaginary enclosures) that total no more than six cubic feet in volume;
(2) All other wireless equipment associated with the structure, including pre-existing enclosures and including equipment on the ground associated with antennas on the structure, are cumulatively no more than seventeen cubic feet in volume, exclusive of
(i) Vertical cable runs for the connection of power and other services;
(ii) Ancillary equipment installed by other entities that is outside of the applicant’s ownership or control, and
(iii) Comparable equipment from pre-existing wireless deployments on the structure;
(3) The deployment will involve no new ground disturbance; and
(4) The deployment would otherwise require the preparation of an EA under paragraph (a)(4) of this section solely because of the age of the structure; or
(b) The mounting of antennas (including associated equipment such as wiring, cabling, cabinets, or backup-power) on buildings or other non-tower structures where the deployment meets the following conditions:
(1) There is an existing antenna on the building or structure;
(2) One of the following criteria is met:
(i) Non-Visible Antennas. The new antenna is not visible from any adjacent streets or surrounding public spaces and is added in the same vicinity as a pre-existing antenna;
(ii) Visible Replacement Antennas. The new antenna is visible from adjacent streets or surrounding public spaces, provided that
(A) it is a replacement for a pre-existing antenna,
(B) the new antenna will be located in the same vicinity as the pre-existing antenna,
(C) the new antenna will be visible only from adjacent streets and surrounding public spaces that also afford views of the pre-existing antenna,
(D) the new antenna is not more than 3 feet larger in height or width (including all protuberances) than the pre- existing antenna, and
(E) no new equipment cabinets are visible from the adjacent streets or surrounding public spaces; or
(iii) Other Visible Antennas. The new antenna is visible from adjacent streets or surrounding public spaces, provided that
(A) it is located in the same vicinity as a pre- existing antenna,
(B) the new antenna will be visible only from adjacent streets and surrounding public spaces that also afford views of the pre-existing antenna,
(C) the pre- existing antenna was not deployed pursuant to the exclusion in this subsection (§ 1.1307(a)(4), Note (b)(2)(iii)),
(D) the new antenna is not more than three feet larger in height or width (including all protuberances) than the pre-existing antenna, and
(E) no new equipment cabinets are visible from the adjacent streets or surrounding public spaces;
(3) The new antenna complies with all zoning conditions and historic preservation conditions applicable to existing antennas in the same vicinity that directly mitigate or prevent effects, such as camouflage or concealment requirements;
(4) The deployment of the new antenna involves no new ground disturbance; and
(5) The deployment would otherwise require the preparation of an EA under paragraph (a)(4) of this section solely because of the age of the structure. For purposes of this Note, a non-visible new antenna is in the “same vicinity” as a pre-existing antenna if it will be collocated on the same rooftop, façade or other surface. For purposes of this Note, a visible new antenna is in the “same vicinity” as a pre-existing antenna if it is on the same rooftop, façade, or other surface and the centerpoint of the new antenna is within ten feet of the centerpoint of the pre-existing antenna. For purposes of this Note, a deployment causes no new ground disturbance when the depth and width of previous disturbance exceeds the proposed construction depth and width by at least two feet.
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4. Part 1 is amended by adding Subpart CC as follows:
Subpart CC—State and Local Review of Applications for Wireless Service Facility Modification
§ 1.40001 Wireless Facility Modifications
(a) Purpose. These rules implement § 6409 of the Spectrum Act (codified at 47 U.S.C. 1455), which requires a State or local government to approve any eligible facilities request for a modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station.
(b) Definitions. Terms used in this section have the following meanings.
(1) Base Station. A structure or equipment at a fixed location that enables Commission-licensed or authorized wireless communications between user equipment and a communications network. The term does not encompass a tower as defined in this subpart or any equipment associated with a tower.
(i) The term includes, but is not limited to, equipment associated with wireless communications services such as private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.
(ii) The term includes, but is not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including Distributed Antenna Systems and small-cell networks).
(iii) The term includes any structure other than a tower that, at the time the relevant application is filed with the State or local government under this section, supports or houses equipment described in paragraphs (b)(1)(i)-(ii) of this section that has been reviewed and approved under the applicable zoning or siting process, or under another State or local regulatory review process, even if the structure was not built for the sole or primary purpose of providing such support.
(iv) The term does not include any structure that, at the time the relevant application is filed with the State or local government under this section, does not support or house equipment described in paragraphs (b)(1)(i)-(ii) of this section.
(2) Collocation. The mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes.
(3) Eligible Facilities Request. 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, involving:
(i) collocation of new transmission equipment;
(ii) removal of transmission equipment; or
(iii) replacement of transmission equipment.
(4) Eligible Support Structure. Any tower or base station as defined in this section, provided that it is existing at the time the relevant application is filed with the State or local government under this section.
(5) Existing. A constructed tower or base station is existing for purposes of this section if it has been reviewed and approved under the applicable zoning or siting process, or under another State or local regulatory review process, provided that a tower that has not been reviewed and approved because it was not in a zoned area when it was built, but was lawfully constructed, is existing for purposes of this definition.
(6) Site. For towers other than towers in the public rights-of-way, the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site, and, for other eligible support structures, further restricted to that area in proximity to the structure and to other transmission equipment already deployed on the ground.
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(7) Substantial Change. A modification substantially changes the physical dimensions of an eligible support structure if it meets any of the following criteria:
(i) for towers other than towers in the public rights-of-way, 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; for other eligible support structures, it increases the height of the structure by more than 10% or more than ten feet, whichever is greater;
(A) Changes in height should be measured from the original support structure in cases where deployments are or will be separated horizontally, such as on buildings’ rooftops; in other circumstances, changes in height should be measured from the dimensions of the tower or base station, inclusive of originally approved appurtenances and any modifications that were approved prior to the passage of the Spectrum Act.
(ii) for towers other than towers in the public rights-of-way, it involves adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than twenty feet, or more than the width of the tower structure at the level of the appurtenance, whichever is greater; for other eligible support structures, it involves adding an appurtenance to the body of the structure that would protrude from the edge of the structure by more than six feet;
(iii) for any eligible support structure, it involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed four cabinets; or, for towers in the public rights-of-way and base stations, it involves installation of any new equipment cabinets on the ground if there are no pre-existing ground cabinets associated with the structure, or else involves installation of ground cabinets that are more than 10% larger in height or overall volume than any other ground cabinets associated with the structure;
(iv) it entails any excavation or deployment outside the current site;
(v) it would defeat the concealment elements of the eligible support structure; or
(vi) it 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 § 1.40001(b)(7)(i)-(iv).
(8) Transmission Equipment. Equipment that facilitates transmission for any Commission-licensed or authorized wireless communication service, including, but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, and regular and backup power supply. The term includes equipment associated with wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.
(9) Tower. Any structure built for the sole or primary purpose of supporting any Commission- licensed or authorized antennas and their associated facilities, including structures that are constructed for wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul, and the associated site.
(c) Review of Applications. A State or local government may not deny and shall approve any eligible facilities request for modification of an eligible support structure that does not substantially change the physical dimensions of such structure.
(1) Documentation Requirement for Review. When an applicant asserts in writing that a request for modification is covered by this section, a State or local government may require the applicant to provide documentation or information only to the extent reasonably related to determining whether the request meets the requirements of this section. A State or local government may not require an applicant to submit any other documentation, including but not limited to documentation intended to illustrate the need for such wireless facilities or to justify the business decision to modify such wireless facilities.
(2) Timeframe for Review. Within 60 days of the date on which an applicant submits a request seeking approval under this section, the State or local government shall approve the application unless it determines that the application is not covered by this section.
(3) Tolling of the Timeframe for Review. The 60-day period begins to run when the application is filed, and may be tolled only by mutual agreement or in cases where the reviewing State or local government determines that the application is incomplete. The timeframe for review is not tolled by a moratorium on the review of applications.
(i) To toll the timeframe for incompleteness, the reviewing State or local government must provide written notice to the applicant within 30 days of receipt of the application, clearly and specifically delineating all missing documents or information. Such delineated information is limited to documents or information meeting the standard under paragraph (c)(1) of this section.
(ii) The timeframe for review begins running again when the applicant makes a supplemental submission in response to the State or local government’s notice of incompleteness.
(iii) Following a supplemental submission, the State or local government will have 10 days to notify the applicant that the supplemental submission did not provide the information identified in the original notice delineating missing information. The timeframe is tolled in the case of second or subsequent notices pursuant to the procedures identified in this paragraph (c)(3). Second or subsequent notices of incompleteness may not specify missing documents or information that were not delineated in the original notice of incompleteness.
(4) Failure to Act. In the event the reviewing State or local government 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 deemed grant does not become effective until the applicant notifies the applicable reviewing authority in writing after the review period has expired (accounting for any tolling) that the application has been deemed granted.
(5) Remedies. Applicants and reviewing authorities may bring claims related to Section 6409(a) to any court of competent jurisdiction.
PART 17 – CONSTRUCTION, MARKING, AND LIGHTING OF ANTENNA STRUCTURES
5. The authority citation for Part 17 continues to read as follows: AUTHORITY: Secs. 4, 303, 48 Stat. 1066, 1082, as amended; 47 U.S.C. 154, 303. Interpret or apply secs. 301, 309, 48 Stat. 1081, 1085 as amended; 47 U.S.C. 301, 309.
6. Section 17.4 is amended by revising paragraphs (c)(1)(v) and (c)(1)(vi), and adding paragraph (c)(1)(vii) to read as follows: § 17.4 Antenna structure registration.
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(c) * * *
(1) * * *
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(v) For any other change that does not alter the physical structure, lighting, or geographic location of an existing structure;
(vi) For construction, modification, or replacement of an antenna structure on Federal land where another Federal agency has assumed responsibility for evaluating the potentially significant environmental effect of the proposed antenna structure on the quality of the human environment and for invoking any required environmental impact statement process, or for any other structure where another Federal agency has assumed such responsibilities pursuant to a written agreement with the Commission (see §1.1311(e) of this chapter); or
(vii) For the construction or deployment of an antenna structure that will
(A) be in place for no more than 60 days,
(B) requires notice of construction to the FAA,
(C) does not require marking or lighting under FAA regulations,
(D) will be less than 200 feet in height above ground level, and
(E) will either involve no excavation or involve excavation only where the depth of previous disturbance exceeds the proposed construction depth (excluding footings and other anchoring mechanisms) by at least two feet.
An applicant that relies on this exception must wait 30 days after removal of the antenna structure before relying on this exception to deploy another antenna structure covering substantially the same service area.