On March 30, 2017, the FCC released a draft of a combined Notice of Proposed Rulemaking (“NPRM”) and Notice of Inquiry (“NOI”) (together, the “draft Notice”) designed to facilitate and accelerate the deployment of advanced wireless broadband service. The draft Notice was released in tandem with a notice focused on wireline broadband networks discussed here, and is part of Chairman Pai’s new practice of sharing drafts of items scheduled for a vote at the next FCC open meeting. The draft Notice proposes to streamline permitting and deployment of small wireless facilities to advance broadband investment and to support next generation technologies. The draft Notice comes on the heels of the Wireless Telecommunications Bureau’s December 22, 2016 Public Notice seeking comment on potential Commission actions to help expedite the deployment of small cell infrastructure by providing guidance on how federal law applies to local government review of wireless facility siting applications and local requirements for gaining access to rights of way (the “Small Cell Proceeding”). The Small Cell Proceeding spurred hundreds of filed comments addressing a wide array of issues that delay or inhibit wireless deployment.
The draft NPRM proposes:
- Streamlining state and local review of wireless siting applications; and
- Overhauling the Commission’s implementation of the National Environmental Policy Act (“NEPA”) and the National Historic Preservation Act (“NHPA”)
The draft NOI seeks comment on the intersection of Sections 253 and 332(c)(7) of the Telecommunications Act of 1996 (the “Act”) as those statutes apply to the deployment of wireless facilities, and specifically asks for comment on the appropriate interpretations of those provisions with respect to: (1) what state or local actions may “prohibit or have the effect of prohibiting service;” (2) their application on states or localities acting in a regulatory versus a proprietary capacity; and (3) what constitutes “unreasonable discrimination.”
The draft Notice is currently scheduled for the Commission’s April 20, 2017 meeting with comments and replies due within 30 and 60 days, respectively, after federal publication.
Streamlining State and Local Review
In its 2009 Shot Clock Declaratory Ruling, and again in its 2014 Infrastructure Order, the Commission took steps to establish time lines governing state and local government review of wireless siting applications. The NPRM seeks comment on the impact those orders have had on deployment, as well as evidence of delays, costs and other barriers that continue to frustrate wireless deployment. The Commission asks how it can enhance the protections of those orders to further prevent delays and unnecessary burden on wireless infrastructure deployment caused by the state and local siting review process.
The NPRM proposes adopting a “deemed granted” remedy for missing the shot clock deadlines – something that Commission Pai advocated at the time of the 2009 Shot Clock Declaratory Ruling – and invites comment on the legal basis to support such a remedy and how it should be implemented. Three potential legal mechanisms are advanced to support the “deemed granted” remedy. First, the Commission posits that it has the legal authority to declare that there is an “irrebuttable presumption” of what constitutes a reasonable time to act under Section 332(c)(7)(B)(ii). This mirrors the approach taken in the 2014 Infrastructure Order with respect to modifications and collocations under Section 6409 of the Spectrum Act. Second, the Commission suggests that the language of the Act places affirmative limits on local authority to consider wireless siting applications, to wit, if a decision is not made within a reasonable time – as required by the Act – the locality forfeits its authority to decide the application. Third, the Commission proposes that it has the authority to adopt formal rules implementing the policies set forth in Section 332(c)(7), including a “deemed granted” rule.
Following on the proposal to adopt a “deemed granted” remedy, the Commission proposes adopting additional standards for what constitute a “reasonable period of time” under the Act and tailoring such standards to specific narrowly defined classes of deployments. The current shot clock standards establish a 90 day limit for collocations and a 150 day limit for other types of wireless facility applications. The NPRM recognizes that not all collocations are alike, and that not all “other” facility deployments are alike – e.g., small cells may or may not be considered collocations for purposes of Section 6409 but present different considerations than traditional macro-sites. The Commission asks for recommendations as to appropriate time frames and appropriate classifications of different types of deployments.
The NPRM also addresses moratoria. There has been a growing trend of localities reacting to applications for small wireless facilities by adopting a moratorium. The 2014 Infrastructure Order made clear that any moratorium adopted by a locality does not toll the shot clock established in the 2009 Declaratory Ruling. The NPRM follows up on that order and asks for examples of localities that have continued to adopt moratoria and whether the Commission should issue declaratory rulings addressing specific instances of moratoria that have delayed deployment.
NHPA & NEPA Review
The NPRM proposes reexamining the implementation of NEPA and NHPA in light of the evolution of wireless infrastructure towards smaller facilities and more collocations on existing structures. Traditionally, under NEPA, the Commission has assumed responsibility for evaluating the environmental effects of wireless facility construction. Likewise, under Section 106 of the NHPA, the Commission has overseen review of the impact of wireless communications facility construction on historic properties. Recognizing that revisions to the Commission’s implementation of NEPA and NHPA impacts a variety of stakeholders, the NPRM seeks input on proposals to alleviate common hurdles to deployment posed by these two review regimes.
One of the largest current obstacles the industry faces – both in terms of time and costs – is the Tribal review process. The NPRM seeks recommendations on whether and how the Commission can adopt limitations on (1) fees charged by Tribal Nations, and (2) the scope of geographic areas of interest identified by the Tribal Nations. The NPRM also seeks comment on what actions it can take to resolve disputes and delays ensuing from the Tribal review process.
The NPRM also suggests taking measures to speed review processes required under the NHPA, including the possibility of applicants self-certifying compliance with Section 106.
One of the major ways the Commission proposes to streamline NHPA and NEPA review is by adopting rules for new categories of exclusions. For example, the NPRM proposes a categorical exclusion from NEPA review for DAS and small cell, and a categorical exclusion from Section 106 review for pole replacements, placement of wireless facilities in public rights of way, and certain collocations.
Finally, the NPRM seeks to address the issue of collocation on so-called “Twilight Towers” – towers built between 2001 and 2005 that were neither excluded from routine historic preservation review nor specifically required to follow the Section106 historic preservation review process (and thus documentation of any review is unavailable). The NPRM proposes to treat “Twilight Towers” in the same manner as towers built prior to March 16, 2001 that are generally excluded from Section 106 historic preservation review.
The draft NPRM and NOI are among several significant items proposed for adoption at the FCC’s April 20 open meeting. We will update this Advisory as needed once the item is adopted.