Securing sites for wireless infrastructure could become much easier if new rules proposed by the Federal Communications Commission take effect. In a notice of proposed rulemaking, the agency has listed several ways the federal government could force local and state governments to approve applications for new towers, small cells and distributed antenna systems, as well as for amendments to existing structures.
Shot clock simplification
A “shot clock” refers to a period of time during which a permitting authority must rule on an application. If the authority does not approve or deny the request before the end of the set time period, the request is deemed granted.
Right now there are several shot clocks in effect. For modifications to existing towers and base station sites, the shot clock is 60 days, provided those modifications do not significantly change the physical structure. But if the modification involves the collocation of a new carrier on the site, the shot clock is 90 days, and for brand new sites it is 150 days.
The FCC is seeking public comment on a proposal to shorten all the shot clocks to 60 days. The agency may also consider even shorter shot clocks for small cells and distributed antenna systems.
“We also request comment on whether to establish different time frames for (i) deployment of small cell or Distributed Antenna System (DAS) antennas or other small equipment versus more traditional, larger types of equipment or (ii) requests that include multiple proposed deployments or, equivalently, “batches” of requests submitted by a single provider to deploy multiple related facilities in different locations, versus proposals to deploy one facility,” the FCC wrote in the NPRM. “Should we align our definitions of categories of deployments for which we specify reasonable time frames for local siting review with our definitions of the categories of deployments that are categorically excluded from environmental or historic preservation review?”
The agency also wants to tighten the legal language that defines the consequences for cities and states that do not act during the period defined by the shot clock. The FCC’s goal is to ensure that an application not acted upon during the shot clock period is actually granted and not sent to court.
Finally, the FCC wants to stop municipalities from enacting temporary “moratoria” on considerations of applications to deploy wireless infrastructure. Several cities have done this because officials were overwhelmed by the volume and complexity of applications for small cell sites. The FCC is calling for an end to this practice.
“We ask commenters to submit specific information about whether some localities are continuing to impose moratoria or other restrictions on the filing or processing of wireless siting applications, including refusing to accept applications due to resource constraints or due to the pendency of state or local legislation on siting issues, or insisting that applicants agree to tolling arrangements,” the agency wrote. “Commenters should identify the specific entities engaging in such actions and describe the effect of such restrictions on parties’ ability to deploy or upgrade network facilities and provide service to consumers. We propose to take any additional actions necessary, such as issuing an order or declaratory ruling providing more specific clarifications of the moratorium ban or preempting specific State or local moratoria. Commenters should discuss the benefits and detriments of any such additional measures and our legal authority to adopt them.”
Underground utilities
Companies that want to deploy small cells on utility poles say they are running into a troubling trend: many municipalities are voting to move their utilities underground. In some cases, the decision to underground utility infrastructure may have even been precipitated by wireless siting applications that forced city councils to focus on utility poles and engage citizens about aesthetics in the public rights of way.
Can the federal government force cities with underground utility lines to make special accommodations for wireless infrastructure? The FCC is considering this. In its NPRM, the agency discussed underground utility conduit as part of a section entitled “Unreasonable Discrimination.”
“Could undergrounding plans “prohibit or have the effect of prohibiting” service by causing suitable sites for wireless antennas to become scarce?” the agency asked in its discussion. According to the Telecommunications Act of 1996, cities cannot prohibit companies from offering wireless service.
Requests for comments
In almost every section of the NPRM, the FCC requests public comment. The agency is seeking information on the experiences of wireless carriers, facility developers, city and state officials, and public citizens.
“We invite commenters to discuss what siting applicants can or should be required to do to help expedite or streamline the siting review process,” the FCC wrote. “Are there ways in which applicants are causing or contributing to unnecessary delay in the processing of their siting applications? If so, we seek comment on how we should address or incorporate this consideration in any action we take in this proceeding.”
Local government perspective
Most cities say they want the improved wireless service that new infrastructure can bring, but they also want some control over their street poles and rights of way. Gary Resnick, a Florida mayor who chaired the FCC’s Intergovernmental Advisory Committee, said 15 states and thousands of localities are “adopting laws and policies by working with the industry to allow these technologies to use the public rights of way in a way that balances important governmental interests.”
“The FCC should afford an opportunity for this to continue rather than look to preempt state and local laws in a manner that would not be in the long term interest of either the industry, governments, other users of rights of way, or ultimately consumers,” Resnick said.
Industry reaction
The Wireless Infrastructure Association applauded the FCC’s proposals, saying they will accelerate the industry’s ability to build infrastructure to support public safety and economic growth.
“The FCC must thoughtfully intervene when state, local, and tribal processes for siting applications for wireless facilities are harming the people and businesses that rely on robust mobile networks,” said WIA president Jonathan Adelstein in a statement. “Removing these barriers will help industry meet burgeoning demand today, and is key to the rollout of 5G mobile networks that will provide the foundation on which so much of our future will be built.”
Image source: Crown Castle
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