On June 9, the FCC took action to facilitate the deployment of 5G wireless communications networks across the United States by clarifying and seeking comment on the agency’s rules regarding state and local government review of modifications to existing wireless infrastructure. According to information released by the agency, the action will expedite equipment upgrades to deploy next-generation networks, which it says critical to expanding economic opportunities and supporting public health and safety in American communities.
Congress enacted Section 6409(a) of the Spectrum Act of 2012 to streamline state and local government review of certain requests to modify wireless transmission equipment on existing structures, and the FCC in 2014 adopted rules to implement Section 6409(a). Under this framework, a state or local government shall approve within 60 days any request for modification of an existing structure that does not substantially change the physical dimensions of that structure.
The declaratory ruling adopted on June 9 is intended to clarify the FCC’s 2014 rules with regard to when the 60-day shot clock for local review begins. According to the agency, the ruling also clarifies how certain aspects of proposed modifications — height increases, equipment cabinet additions and the effect on concealment elements and aesthetic conditions — affect eligibility for streamlined review under Section 6409(a). In addition, the action clarifies that, under the agency’s rules on environmental and historic preservation review, FCC applicants need not to submit environmental assessments based only on potential effects upon historic properties when parties have entered into a memorandum of agreement to mitigate effects on those properties.
The FCC also adopted a notice of proposed rulemaking (NPRM) that seeks comment on proposed rule changes regarding excavation or deployment outside the boundaries of an existing tower site and the effects of such activities on eligibility for streamlined review under Section 6409(a).
Promoting American leadership in 5G wireless technology has been one of my top priorities since becoming chairman.
— FCC Chairman Ajit Pai
The agency said it views the action taken on June 9 as a crucial next step in the FCC’s ongoing efforts to remove regulatory barriers that inhibit the deployment of infrastructure critical to building 5G networks.
Republican members of the FCC (Chairman Ajit Pai and Commissioners Michael O’Rielly and Brendan Carr approved the action, and Democratic Commissioners Jessica Rosenworcel and Geoffrey Starks dissented.
“Promoting American leadership in 5G wireless technology has been one of my top priorities since becoming chairman,” Pai said, in a written statement. “To that end, the FCC has been executing my 5G FAST plan, which includes three key components: pushing more spectrum into the marketplace, making it easier to deploy wireless infrastructure, and modernizing outdated regulations to expedite the deployment of fiber for wireless backhaul.
With respect to spectrum, Pai said, the FCC has left no stone unturned in its quest to make a mix of low-, mid-, and high-band spectrum available for 5G services. He said that over the past 18 months, the agency has concluded three auctions for high-band spectrum, making nearly 5,000 megahertz of spectrum available for next-generation wireless services. Referring to the most recent auction, Auction 103, Pai said the FCC offered licenses for 3,400 megahertz of spectrum, the largest offering in the agency’s history. He said carriers are acting quickly to put this spectrum to use for 5G service while the FCC continues to work on making additional low-band spectrum available. “We are nearing the end of the post-incentive auction repack, which is making available 600-MHz band spectrum for 5G on a nationwide basis, and we have reformed rules for the 800-MHz and 900-MHz bands,” he said.
According to Pai, perhaps the FCC’s most intense work over the course of the last couple of years has involved making additional mid-band spectrum available for 5G. “Specifically, we adopted rule changes last July to liberate the 2.5-GHz band and put more of this underused spectrum to work for mobile broadband, including adopting a priority filing window to make this spectrum available for service to rural native American tribes,” he said. “Thanks to Commissioner O’Rielly’s efforts, we’ve improved rules for operations in the 3.5-GHz band and have done the necessary coordination and technical work in the band. As a result, 150 megahertz of 3.5-GHz band spectrum is available today for the deployment of innovative services, and we will begin an auction of 70 megahertz of Priority Access Licenses on July 23, 2020. We have adopted service rules to make available 280 megahertz of spectrum in the C-band for 5G and are on track to auction that spectrum on Dec. 8. In addition, just recently, we announced that satellite incumbents have agreed to expedite the relocation process, so this 280 megahertz of spectrum will be available for 5G on an accelerated basis. None of this was easy. There were plenty of technical, political, and other challenges along the way. Nevertheless, the FCC majority persisted. And we’re getting major results.”
The chairman said that, in addition to pushing more spectrum into the marketplace, a key component of the FCC’s 5G FAST strategy has been updating its wireless infrastructure policies to encourage private-sector investment in the physical building blocks of 5G networks. He said that the June 9 declaratory ruling and NPRM do just that.
“Commissioner Carr has spearheaded the FCC’s efforts to update our wireless infrastructure policies,” Paid said. “This item, which was developed under his leadership, will clear up some of the confusion that has surrounded our rules implementing Section 6409(a) of the Spectrum Act of 2012. These regulations apply when wireless infrastructure companies want to upgrade the equipment on existing structures, such as replacing antennas on a macro tower or adding antennas to a building.”
Pai went on to say these clarifications will accelerate the build out of 5G infrastructure by avoiding misunderstandings and reducing the number of disputes between local governments and wireless infrastructure builders — disputes that he said lead to delays and lawsuits. “With today’s action, we continue to advance the same goal that underlay the Spectrum Act and inspired the Commission’s Section 6409(a) regulations in the first place — avoiding unnecessary ambiguities and roadblocks in order to advance wireless broadband service for all Americans,” he said.
Referring to those who argue that the FCC should have slowed down or stopped its work on the declaratory ruling because of the COVID-19 pandemic, Pai said he could not disagree more. He said the COVID-19 pandemic is no reason for the FCC to slow its efforts to expand wireless connectivity and, instead, it is a reason to speed them up. The chairman said that the pandemic has highlighted the need for all Americans to have broadband connectivity as soon as possible. He gave as examples telehealth, remote learning, telework and precision agriculture as activities requiring broadband wireless service. He said it is an iron law that broadband service cannot be delivered without broadband infrastructure.
The argument that local governments have not had a sufficient opportunity to weigh in on these issues has no merit, Pai said. He said the petitions on which the FCC acted on June 9 were filed in August and September 2019, well before the COVID-19 pandemic. He added that the entire period for public comment on those petitions took place last year — also well before the COVID-19 pandemic.
Meanwhile, he said, calls for delay are nothing new. “Earlier this year, for example, some insisted that we should do absolutely nothing to make C-band spectrum available unless and until Congress passed a law on the subject,” Pai said. “How’s that advice looking now? If we had followed that politically motivated counsel, we would still be stuck at square one, half a year later, with no prospect of movement. Instead, we are on track for a major C-band spectrum auction this year. The same old tactic is now applied to wireless infrastructure. Wait until whenever, we are told. But waiting to deploy more wireless infrastructure isn’t going to deliver advanced wireless services to American consumers, and it isn’t going to make the United States the global leader in 5G.”
The chairman said it is easy for someone to say he or she favors moving forward quickly on 5G, but what actually matters is to do it. “I appreciate Commissioners O’Rielly and Carr for not just saying, but doing what’s necessary to usher in the next generation of wireless technology for the American people,” Pai said.
Commissioner Brendan Carr expressed himself in a written statement issued after the June 9 vote. “Two years is about how long it takes to build a new macro tower,” he said. “The process typically includes zoning, construction and electrical permits; city council presentations and public town halls; environmental and historical preservation reviews; negotiation about aesthetics and design — and that’s all after a provider has studied demand, engineered the signal, and bought land.”
The commissioner said it is a lengthy, involved, expensive process. He said that in some ways, it is understandable, because building a couple-hundred-foot-tall structure does not happen every day, and once built, a tower can provide service for decades.
Local governments, industry and Congress have concluded that there is often a better way, Carr said. He explained that reusing macro towers through collocating multiple providers and updating equipment can provide the public the benefits it deserves — wide coverage and fast connections — while avoiding the cost and delays associated with building new towers from scratch. He said it is common sense that putting new equipment on old towers is less intrusive and requires less regulatory review than new tower construction.
Carr said he had the chance to see how straightforward a collocation can be, when, the week before the June 9 vote, he drove out to a farm in Maryland and joined a tower crew that was swapping out 2G antennas for 5G ones on a macro tower.
Referring to the video viewable in his Twitter feed, Carr named workers Aaron and Charlie among the 25,000 tower techs building broadband across the country with their hands. He said that although their jobs are far from easy, the project they completed in about an hour was among their easiest: taking off an old antenna and attaching a new one.
“Congress encouraged collocations like these by making them simpler through Section 6409 of the Spectrum Act,” Carr said. “That law says that local governments ‘may not deny, and shall approve’ any tower modification ‘that does not substantially change [its] physical dimensions.’ In 2014, the FCC wrote rules to implement the law, in particular defining what constitutes ‘substantial change.’”
In the last six years, the commissioner said those rules have been used to upgrade thousands of towers. He said that the upgrades enabled 4G LTE service, especially on macro towers in rural America. “They’re being used now to build America’s world-leading 5G networks,” Carr said. “And they’re benefiting communities by reducing the potential for redundant towers, creating less costly and disruptive infrastructure.”
There have been what Carr called some bumps along the way, which he said were partly caused by the agency’s 2014 rules. He said that in some instances, the FCC’s definition of “substantial change” was not as clear as it could have been, leading to some disagreements over how to interpret the 60-day shot clock for local government approval. Those disagreements — the lack of clarity in the FCC rules — can themselves slow down internet builds, according to Carr. He said the FCC intended to resolve the ambiguities in its declaratory ruling and notice.
Carr highlighted a few of the key actions the FCC took on June 9 as follows:
- We explain that the 60-day shot clock we adopted in 2014 begins when a provider takes the first procedural step that the locality specifies and shows in writing that the project qualifies for expedited consideration. The myriad processes that have grown outside of our shot clock should be brought back within it. Sixty days means 60 days.
- We clarify that when we use the term “concealment element,” we are referring to those elements that make a stealthed tower look like something else — a clock tower or a tree, for example. A change becomes substantial and so does not qualify for expedited approval if a reasonable person would think that the modified tower no longer looks like that clock tower or tree.
- In addition, we note that localities can place a number of conditions on new construction of a tower that cannot be circumvented through this expedited process. However, there has to be express evidence that a condition really was a condition of approval.
The commissioner said he is proud of the process the FCC took to create the declaratory ruling, a process he described as thorough and thoughtful. He gave credit to the Wireless Telecommunications Bureau and its infrastructure team, recalling that the two petitions that prompted the June 9 action came to the FCC more than nine months ago.
“We sought comment on the petitions, and at the request of local governments and utilities, we extended the comment period into November,” Carr said. “The record that developed was robust. We heard from infrastructure builders, broadband providers, local governments and everyday Americans alike.”
Localities were especially active, Carr said. “We heard from 70 local governments and their associations, and they provided us nearly 700 pages of detailed comments,” he said. “They made a substantial contribution to this order, and their positions carried the day on several issues we decide. For example, we require industry to make written submissions before they can claim that the shot clock starts, and we protect a broad swath of localities’ conditions of tower approval.”
By bringing greater clarity to the FCC rules, Carr said, the June 9 decision reduces disagreements between providers and governments. He said it separates the wheat from the chaff, meaning, the more difficult approval decisions, such as whether and how to construct a new tower, from the easier ones, such as whether to allow an existing tower to be upgraded.
Carr said it was important for the FCC to act now because providing more broadband for more Americans has never been so important. He said it is at the forefront during the COVID-19 pandemic as children learn at home, parents provide for their families away from the office, patients access critical care outside of hospitals and everyone connects with one another at a distance. Making upgrades easier is at the heart of 6409, the commissioner said, and this order comes at a time when users need as much capacity as possible. He said he is glad that the FCC took action with clarifications that will help tower crews connect even more communities.
We also streamlined the process for swapping out utility poles to add wireless equipment, among other reforms.
— FCC Commissioner Brendan Carr
According to Carr, the June 9 decision is the latest step in a series that the FCC has taken since 2017 to modernize its approach to 5G. Previously, he said, it cost too much and took too long to build internet infrastructure in the United States. He said in response, the FCC has updated environmental and historic preservation rules that slowed small cell builds. He said the agency built on common sense reforms adopted by states and reined in outlier conduct. “We also streamlined the process for swapping out utility poles to add wireless equipment, among other reforms,” he said.
With steps it has taken, Carr said, the FCC has unleashed private sector investment that already is delivering results for the American people, citing the first commercial 5G service launched in the United States in 2018. By the end 2018, he said, 14 communities had 5G service. Halfway through 2019, that figure expanded to more than 30, according to the commissioner, and one provider has committed to building 5G wireless communications service to reach 99 percent of the U.S. population.
“America’s momentum for 5G is now unmistakable,” Carr said. “You can see it not only in big cities like New York or San Francisco, but in places like Sioux Falls, South Dakota, where 5G small cells are live and in rural communities like the one I visited last week in Maryland where macro towers are beaming 5G through farms and forests. Our infrastructure work will continue until every community has a fair shot at next-generation connectivity.”
The FCC called its June 9 decision the 5G Upgrade Order, Carr said, “because it will accelerate wireless service upgrades for the benefit of so many Americans. It will be an upgrade for rural America, as families who never had a choice in wireless will get new service. It will be an upgrade for first responders, as dedicated networks and expanded capacity are built on existing towers. And it will be an upgrade for all of us, as our networks blow past previous technologies to world-leading 5G.”
Commissioner Michael O’Rielly said that the June 9 FCC action refocuses its infrastructure efforts on the foundation of wireless networks, the macro tower. He said the agency has taken several steps to reduce the regulatory burdens on siting small cells, but similar updates for macros have been lagging. A business plan centered on small cells and millimeter waves may work in the largest cities, the commissioner said, but traditional towers and mid bands will be needed throughout much of the United States, especially in rural areas, where small cells do not, generally-speaking, make the most sense, at least at the current time.
“I started pushing for a review of the barriers facing macro tower siting around five years ago, as industry started to consider what a 5G suburban and rural network build would look like,” O’Rielly said. “While it is unfortunate that we didn’t get to this sooner, I am grateful that Commissioner Carr has honored his word to me that we would address hurdles that some localities have placed in the way of large tower siting. With significant progress being made on mid-band frequencies, it is imperative that we facilitate the deployment of macro towers that will be used to deliver the myriad of offerings mid-band spectrum will enable. In addition, as I have said before, our actions are precipitated by the behavior of a few bad actors, and here we address some of the problems being experienced. I fully recognize that many, if not most, local and state governments see the great benefit that these networks will bring and are actively working to fulfill the needs and demands of their citizens.”
In O’Rielly’s view, although the FCC took steps in 2014 pursuant to Congress’s direction under Section 6409 of the Spectrum Act of 2012 to set localities straight on unacceptable activity when it came to collocating facilities, some entities are still slowing down progress or doing what they can to stop wireless innovation from reaching consumers. He said the declaratory ruling clarifies how some FCC rules implemented in response to Section 6409 should be interpreted, such as when the shot clock begins, how to measure height increases for towers when adding additional antennas, what is an equipment cabinet and the treatment of concealment elements, among others.
“I am pleased that, at my request, further details were provided about the documentation needed to start the shot clock and to evidence that concealment elements were envisioned when obtaining a locality’s approval,” O’Rielly said. “Such guidance is necessary so that all parties understand expectations and to avoid disputes down the road. While I understand some have asked that we delay today’s action due to some concerns, many of the clarifications are straightforward and should reduce the burdens on locality staff reviewing applications. And, these clarifications are needed to facilitate the expansion of 5G networks by wireless providers and help entities like FirstNet meet their public safety obligations.”
O’Rielly said that the notice portion of today’s item seeks comment on a proposal to allow minimal compound expansions under Section 6409 streamlined processing. He said he is pleased that his request was accepted to make this a proposal, as opposed to simply seeking comment. Over the years, the commissioner said, tower companies have repeatedly come to him with the challenges they face when compound expansions are needed to accommodate additional equipment for collocation purposes. He said there is a good foundation for such a change, as the construction of replacement towers that do not expand a compound by more than 30 feet are excluded from historic preservation review under a nationwide programmatic agreement. He said he expects that an order on this proposal will be presented before the FCC as quickly as possible.
Moreover, O’Rielly said, localities should note that the FCC is taking these matters seriously and will continue to issue such orders if its intent is being contravened or its rules implemented incorrectly. He said the agency would be ready to follow up on any issue, including those not covered in the June 9 action, such as the inappropriate use of other local permitting processes to hold up infrastructure siting or charging excessive fees.
“Now that we have clarified some areas where there were misunderstandings over the rules for streamlined collocations, it is time to conclude the ultimate collocation problem — twilight towers,” O’Rielly said. “The FCC needs to resolve this quagmire so that these towers can hold additional antennas that are needed to provide wireless services to the American people.”
Commissioner Jessica Rosenworcel expressed her dissent with the June 9 FCC decision with a written statement.
“Let’s start with the numbers,” she said. “More than 113,000 people have died in the cruel pandemic that is affecting communities across the country. Nearly 43 million Americans have filed for unemployment benefits as the economy reels from this public health catastrophe. The unemployment rate is now at its highest levels since the Great Depression. Protests have erupted in all 50 states as we face a nationwide reckoning over racial injustice. We cannot say with certainty where this overwhelming series of events takes us next. I pray it is toward a more just future. I hope it is one where the truths we hold to be self-evident are apparent not only in word but in deed. However, we can say with certainty that state and local governments are on the front line in all of these crises. That means they are dealing with an epic combination of illness, joblessness, food insecurity, social distancing, and public safety challenges — at the same time.”
Rosenworcel said that all of this work is being carried out with fewer resources than ever before. She said that is because social distancing has reduced consumer spending and wages, causing tax revenues to plummet. At the same time, she said, the demand for funding basic social services has gone up. In her view, this has created an unprecedented strain on state and local budgets.
As a result, Rosenworcel said it is understandable why mayors and governors across the country are ringing the alarm. She said they are wrestling with historic crises and struggling to find a new way forward in a period of profound civil unrest. They want to be heard by Washington, she said, but the FCC’s June 9 decision demonstrates that the agency is not listening.
In explaining why, the commissioner said the June 9 decision seeks to clarify how the agency interprets Section 6409 of the Middle Class Tax Relief and Job Creation Act, which she said sounds technocratic. Nevertheless, she said, it goes to the heart of what role cities and towns get to play in decisions about the communications infrastructure in their backyard. Rosenworcel said that is important for communities across the country and for our national wireless ambitions.
In adopting a declaratory ruling that requires every state and local government to immediately review and update their current ordinances, policies, and application systems involving wireless towers, Rosenworcel said the FCC is requiring them to rework the way they process new requests, how they measure tower height, what they do with requests to add more equipment and how they conceal structures to preserve the visual character of their communities. Although addressing these things is not unreasonable, according to the commissioner, these clarifications can be difficult to put into practice, and they were shared with state and local governments for the first time only three weeks prior to the June 9 FCC vote.
“It’s no wonder that we have heard from the National League of Cities, the United States Conference of Mayors, the National Association of Counties, the National Association of Telecommunications Officers and Advisors and the National Association of Towns and Townships,” Rosenworcel said. “Together they represent more than 19,000 cities, 3,069 counties, and 10,000 towns across the country.”
If local governments are forced to respond to this Declaratory Ruling instead of focusing on their public health and safety responses, it very well may put Americans’ health and safety at risk.
— FCC Commissioner Jessica Rosenworcel
They want more time to weigh in on the FCC’s decision, the commissioner said, so they can be in a better place to implement it. She said they want more time because their resources are strained by a deadly virus, economic calamity and civil unrest.
Rosenworcel cited from a letter sent to the FCC by 24 members of the U.S. House of Representatives Committee on Energy and Commerce: “If local governments are forced to respond to this Declaratory Ruling instead of focusing on their public health and safety responses, it very well may put Americans’ health and safety at risk.”
In Rosenworcel’s view, the FCC decided to ignore what she called a modest request for time to review. “I don’t get it,” she said. “Why can’t we acknowledge what is happening around us? The sad truth is that this is not the first time we have given short shrift to the pleas of local governments who are strained by these historic days. It was just a few weeks ago when city officials and local firefighters asked the FCC to give them more time to weigh in on the court remand of our misguided decision to roll back net neutrality. But we didn’t grant their request.”
In contrast, the commissioner said, when companies suggested they needed more time to clear the 3.5-GHz band because of the pandemic, the FCC was quick to oblige, pushing back the start of our next spectrum auction, citing business disruptions caused by the coronavirus. She said the FCC even granted an extension of time to a foreign company it is investigating as a national security threat to the United States.
“Why can’t we offer the same courtesy to state and local governments?” Rosenworcel asked. “The law demonstrates a clear congressional policy in favor of removing locally imposed and unreasonably discriminatory obstacles to modifying existing facilities in order to foster the rapid deployment of wireless infrastructure. I know. As congressional staff, I helped write it. But some of the decisions we make today seem to be less about speeding up routine approvals under this law and more about lowering the costs of non-routine approvals by retrofitting them into this process, too.”
In Rosenworcel’s view, seeing to it that infrastructure expands broadly and equitably across the country takes federal, state, and local authorities working together. “History proves this is true,” she said. “And in these historic times this agency should not be ramrodding this effort through without listening to cities and towns across the country. They called for a bit more time. But the FCC hung up.”
In his written statement, Commissioner Geoffrey Starks led with a reference to the pandemic.
“More than 106,000 people have died from COVID-19 so far, and unemployment has hit its highest levels since the Great Depression,” Starks said. “The school year is ending, and millions of children have missed months of in-classroom instruction. And in the last two weeks, the recent protests have brought millions of people into the streets of cities across the country to demonstrate for justice. This is a true moment in American history.”
State and local governments form the front line for all of these issues, Starks said. He said they run the public hospitals and emergency response units treating the sick, dispense benefits to the unemployed, operate the schools struggling to provide distance learning to our children, and oversee the police departments that are both the focus on the demonstrations and helping to keep us safe. According to the commissioner, even in good times, they operate on tight budgets and limited resources.
...I hope that any benefits from today’s item will result in improved service and more affordable offerings for all neighborhoods, not just those with the wealthiest Americans.
— FCC Commissioner Geoffrey Starks
For state and local governments, tax revenue is declining because of the economic fallout of COVID-19, even as they must increase their expenditures to respond to the pandemic and the demonstrations, the commissioner said. Replacing retiring employees is out of the question, he said, and layoffs and furloughs are under consideration, even as these governments prepare their budgets for the next year.
“That is the moment in time in which we place today’s item,” Starks said, referring to the June 9 FCC actions. “Let me be clear — I support the deployment of infrastructure to improve service and connect more Americans. Low-income and minority families in particular rely on wireless service, and I hope that any benefits from today’s item will result in improved service and more affordable offerings for all neighborhoods, not just those with the wealthiest Americans. Moreover, tower technician jobs offer a path to financial security for many Americans even in these uncertain times. Finally, streamlining the infrastructure approval process has had broad support. Congress intended to provide a quick path for approval of straightforward modifications when it adopted Section 6409, and a unanimous Commission adopted implementing rules back in 2014.”
Nevertheless, Starks said, the declaratory ruling and NPRM do not represent the right way to achieve those goals. He said that instead of reducing burdens, the declaratory ruling imposes new obligations on local governments at a time where they have the least amount of time and resources. Instead of providing clarity, it creates uncertainty, he said. Because of these issues, Starks said he is concerned that the FCC decision may actually slow the growth of advanced wireless service rather than accelerating it.
In Starks’ view, those who support the decision claim that it is necessary because local governments have unreasonably blocked straightforward modifications to existing wireless sites, insisting on burdensome and unnecessary meetings and documentation. According to the petitions, he said, these alleged practices have slowed or prevented upgrades that would provide advanced services and allow more Americans to realize the promise of 5G. He said that supporters claim that the FCC must act to encourage the growth of these services.
“This is starkly different from what these parties are publicly and commercially saying elsewhere,” the commissioner said. “Just recently, T-Mobile announced that it now offers 5G coverage in all 50 states. AT&T says it remains on track to offer nationwide 5G sometime this summer, and Verizon plans to offer 5G service in 60 cities by the end of 2020. Dish Network remains committed to building a standalone nationwide 5G network in the next few years, and the major tower companies have asserted that even COVID-19 hasn’t slowed down their buildout efforts.”
Despite the challenges local governments face these days, Starks said, they continue to take timely action on applications from these companies and their partners. Even industry has recognized the efforts of local governments to maintain operations while their offices must be closed, he said, including allowing electronic filing via online portals and email, creating drop boxes for hard copies of documents and waiving and modifying requirements regarding permits, filing fees and public meetings.
Given what he called the unusual circumstances and the extraordinary efforts by local governments to continue the timely processing of applications, Starks said he is deeply disappointed that the FCC rejected the reasonable request for more time to review the draft order submitted on behalf of local governments across the country and supported by 24 members of Congress. He said that although the petitions underlying this decision were filed last fall, the FCC action taken on June 9 does not adopt the recommendations proposed in those filings.
“It was only with the release of the draft declaratory ruling just three weeks ago that commenters learned that the commission was even considering certain issues, let alone specific outcomes,” Starks said. “Indeed, even the commissioners only saw the current version yesterday, which contains substantive differences from the original draft.”
Even under the best of circumstances, Starks said, three weeks would not be enough notice for such an important decision, which will affect communities around the nation. In his view, the FCC at a minimum should have deferred consideration of the declaratory ruling to allow interested parties more time to analyze and comment on the draft decision. Were it up to him, he said, he would have gone further and dealt with the issues through a rulemaking proceeding, with notice of the agency’s proposed approach and an opportunity for public comment.
Although Starks said he agrees that the FCC’s rules could use clarification, he said the declaratory ruling consistently misses the mark. As an example, he said the FCC should clearly define when the Section 6409 shot clock starts. However, although the declaratory ruling acknowledges the value of preliminary reviews and meetings, Starks said it nevertheless starts the shot clock before those events take place and provides no flexibility to adjust once an applicant submits its paperwork and requests that first meeting.
“Under today’s decision,” Starks said, “once an applicant has taken these actions, the local government must ensure that every other step in the process is completed before the shot clock expires. This approach not only places an unfair burden on the local governments, but also it could lead to disputes between governments and applicants about the reasonableness of any requirement and whether it can be accomplished within the 60-day shot clock period. We should have done a rulemaking to discuss these issues and how to avoid such outcomes.”
Other issues troubled Starks, too. He said that in many cases, local governments approved sites years ago, well before passage of the Spectrum Act. Particularly for smaller cities, it is unlikely that their decisions explain the intent behind a particular requirement affecting a site’s appearance, he said. Nevertheless, he said, the declaratory ruling states that, unless the regulator can provide express evidence in the record demonstrating that a requirement was intended to disguise the nature of the equipment as something other than a wireless facility, the local government must give streamlined treatment to any changes. Moreover, for changes in appearance that do not disguise the nature of the equipment but merely make it harder to notice, the declaratory ruling establishes a standard that effectively preempts any requirement that the applicant claims it cannot reasonably meet, the commissioner said.
“The confusion doesn’t stop there,” Starks said. “This decision explicitly states that the number of equipment cabinets that can be added to a site is measured for each eligible facilities request and rejects the interpretation that the relevant rule sets a cumulative limit. The local governments are justifiably confused about whether today’s decision effectively eliminates any limitation on the number of equipment cabinets that may be added over time. Today’s decision disagrees with the suggestion that there is no such limit but fails to explain exactly how a local government would derive it. A rulemaking could have clearly spelled out our expectations.
In Starks’ view, taken as a whole, rather than clarifying FCC policies and expediting approvals, the posture of the declaratory ruling is most likely to lead to time-consuming and costly disputes about intent and reasonableness between local governments and industry; and furthermore, it is most likely to lead to protracted litigation. Moreover, he said, because of the substantial burdens the FCC places on local governments’ review of modifications to existing sites, those governments may even give greater scrutiny to initial siting requests, leading to additional frustration and delays.
These problems would be serious in a proposed rulemaking, but the process in the June 9 FCC vote raises the stakes even higher, Starks said. “Because this is a declaratory ruling, it applies retroactively to decisions that may be decades old,” he said. “This decision will create uncertainty regarding existing sites across the country. Moreover, doing this via a declaratory ruling will place an undue burden on local governments that are unfamiliar with the FCC. A clerk in a small city may not realize that a proposed site modification will require her to review not only the Code of Federal Regulations, but also the language of this decision and our 2014 order.”
In concluding his statement, Starks said, “I wish that we had addressed these issues in a rulemaking proceeding, like the one we initiate today regarding proposed excavations and the meaning of the term ‘current site.’ While I have serious reservations about the approach proposed in the NPRM, I agree that we should receive input from the public before we act further in this area, although I would have provided more time for that input. I hope that we reconsider that timetable, given all the other demands currently faced by local governments.”