1238 Federal Register / Vol. 80, No. 5 / Thursday, January 8, 2015 / Rules and Regulations 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Parts 1 and 17 

[WT Docket Nos. 13–238, 13–32; WC Docket 

No. 11–59; FCC 14–153] 

Acceleration of Broadband 

Deployment by Improving Wireless 

Facilities Siting Policies 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: In this document, the Federal 

Communications Commission 

(Commission) adopts rules to update 

and tailor the manner in which it 

evaluates the impact of proposed 

deployments of wireless infrastructure 

on the environment and historic 

properties. The Commission also adopts 

rules to clarify and implement statutory 

requirements applicable to State and 

local governments in their review of 

wireless infrastructure siting 

applications, and it adopts an 

exemption from its environmental 

public notification process for towers 

that are in place for only short periods 

of time. Taken together, these steps will 

reduce the cost and delays associated 

with facility siting and construction, 

and thereby facilitate the delivery of 

more wireless capacity in more 

locations to consumers throughout the 

United States. 

DATES: Effective February 9, 2015, 

except for § 1.40001, which shall be 

effective April 8, 2015; however, 

§§ 1.40001(c)(3)(i), 1.40001(c)(3)(iii), 

1.140001(c)(4), and 17.4(c)(1)(vii), 

which have new information collection 

requirements, will not be effective until 

approved by the Office of Management 

and Budget (OMB). The Commission 

will publish a document in the Federal 

Register announcing OMB approval and 

the relevant effective date. 

FOR FURTHER INFORMATION CONTACT: 

Peter Trachtenberg, Spectrum and 

Competition Policy Division, Wireless 

Telecommunications Bureau, (202) 418– 

7369, email Peter.Trachtenberg@fcc.gov. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Report 

and Order (R&O), WT Docket Nos. 13– 

238, 13–32; WC Docket No. 11–59; FCC 

14–153, adopted October 17, 2014 and 

released October 21, 2014. The full text 

of this document is available for 

inspection and copying during business 

hours in the FCC Reference Information 

Center, Portals II, 445 12th Street SW., 

Room CY–A257, Washington, DC 20554. 

Also, it may be purchased from the 

Commission’s duplicating contractor at 

Portals II, 445 12th Street SW., Room 

CY–B402, Washington, DC 20554; the 

contractor’s Web site, http://

www.bcpiweb.com; or by calling (800) 

378–3160, facsimile (202) 488–5563, or 

email FCC@BCPIWEB.com. Copies of 

the R&O also may be obtained via the 

Commission’s Electronic Comment 

Filing System (ECFS) by entering the 

docket number WT Docket 13–238. 

Additionally, the complete item is 

available on the Federal 

Communications Commission’s Web 

site at http://www.fcc.gov. 

I. NEPA and NHPA Review of Small 

Wireless Facilities 

1. The Commission first adopts 

measures to update its review processes 

under the National Environmental 

Policy Act of 1969 (NEPA) and section 

106 of the National Historic 

Preservation Act of 1966 (NHPA or 

section 106), with a particular emphasis 

on accommodating new wireless 

technologies that use smaller antennas 

and compact radio equipment to 

provide mobile voice and broadband 

service. These technologies, including 

distributed antenna systems (DAS), 

small cells, and others, can be deployed 

on a variety of non-traditional structures 

such as utility poles, as well as on 

rooftops and inside buildings, to 

enhance capacity or fill in coverage 

gaps. Updating the Commission’s 

environmental and historic preservation 

rules will enable these innovations to 

flourish, delivering more broadband 

service to more communities, while 

reducing the need for potentially 

intrusive new construction and 

safeguarding the values the rules are 

designed to protect. 

2. The Commission’s environmental 

and historic preservation rules have 

traditionally been directed toward the 

deployment of macrocells on towers and 

other tall structures. Since 1974, these 

rules have excluded collocations of 

antennas from most of the requirements 

under the Commission’s NEPA review 

process, recognizing the benefits to the 

environment and historic properties 

from the use of existing support 

structures over the construction of new 

structures. These exclusions have 

limitations. The collocation exclusion 

under NEPA, which was first 

established in 1974, on its face 

encompasses only deployments on 

existing towers and buildings, as these 

were the only support structures widely 

used 40 years ago, and does not 

encompass collocations on existing 

utility poles, for example. The 

collocation exclusions in the 

Commission’s process for historic 

preservation review under section 106 

do not consider the scale of small 

wireless facility deployments. 

3. Thus, while small wireless 

technologies are increasingly deployed 

to meet the growing demand for high 

mobile data speeds and ubiquitous 

coverage, the Commission’s rules and 

processes under NEPA and section 106, 

even as modified over time, have not 

reflected those technical advances. 

Accordingly, the Commission concludes 

that it will serve the public interest to 

update its environmental and historic 

preservation rules in large measure to 

account for innovative small facilities, 

and the Commission takes substantial 

steps to advance the goal of widespread 

wireless deployment, including 

clarifying and amending its categorical 

exclusions. The Commission concludes 

that these categorical exclusions, as 

codified in Section 1.1306(c) and Note 

1 of its rules, do not have the potential 

for individually or cumulatively 

significant environmental impacts. The 

Commission finds that these 

clarifications and amendments will 

serve both the industry and the 

conservation values its review process 

was intended to protect. These steps 

will eliminate many unnecessary review 

processes and the sometimes 

cumbersome compliance measures that 

accompany them, relieving the industry 

of review process requirements in cases 

where they are not needed. These steps 

will advance the goal of spurring 

efficient wireless broadband 

deployment while also ensuring that the 

Commission continues to protect 

environmental and historic preservation 

values. 

A. NEPA Categorical Exclusions 

1. Regulatory Background 

4. Section 1.1306 (Note 1) clarifies 

that the requirement to file an 

Environmental Assessment (EA) under 

section 1.1307(a) generally does not 

apply to ‘‘the mounting of antenna(s) on 

an existing building or antenna tower’’ 

or to the installation of wire or cable in 

an existing underground or aerial 

corridor, even if an environmentally 

sensitive circumstance identified in 

section 1.1307(a) is present. Note 1 

reflects a preference first articulated by 

the Commission in 1974, and codified 

into Note 1 in 1986, that ‘‘[t]he use of 

existing buildings, towers or corridors is 

an environmentally desirable alternative 

to the construction of new facilities and 

is encouraged.’’ 

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Federal Register / Vol. 80, No. 5 / Thursday, January 8, 2015 / Rules and Regulations 1239 

2. Antennas Mounted on Existing 

Buildings and Towers 

a. Clarification of ‘‘Antenna’’ 

5. The Commission first clarifies that 

the term ‘‘antenna’’ as used in Note 1 

encompasses all on-site equipment 

associated with the antenna, including 

transceivers, cables, wiring, converters, 

power supplies, equipment cabinets and 

shelters, and other comparable 

equipment. The Commission concludes 

that this is the only logically consistent 

interpretation of the term, as associated 

equipment is a standard part of such 

collocations, and the antennas subject to 

NEPA review cannot operate without it. 

Thus, interpreting the term ‘‘antenna’’ 

as omitting associated equipment would 

eviscerate the categorical exclusion by 

requiring routine NEPA review for 

nearly every collocation. Such an 

interpretation would frustrate the 

categorical exclusion’s purpose. The 

Commission also notes that its 

interpretation of ‘‘antenna’’ in this 

context is consistent with how the 

Commission has defined the term 

‘‘antenna’’ in the comparable context of 

its process for reviewing effects of 

proposed deployments on historic 

properties. Specifically, the 

Commission’s section 106 historic 

preservation review is governed by two 

programmatic agreements, and in both, 

the term ‘‘antenna’’ encompasses all 

associated equipment. 

6. Further, if associated equipment 

presented significant concerns, the 

Commission would expect that 

otherwise excluded collocations that 

included such equipment would, at 

some point over the past 40 years, have 

been subject to environmental 

objections or petitions to deny. The 

Commission is unaware of any such 

objections or petitions directed at 

backup generators or any other 

associated equipment, or of any past 

EAs that found any significant 

environmental effect from such 

equipment. The Commission finds some 

commenters’ generalized assertions of a 

risk of environmental effects to be 

unpersuasive, and the Commission 

reaffirms that the collocations covered 

by Note 1, including the collocation of 

associated equipment addressed by its 

clarification, will not individually or 

cumulatively have a significant effect on 

the human environment. While 

Alexandria et al. submit a declaration 

from Joseph Monaco asserting that 

‘‘[m]inor additions to existing facilities 

could have significant effects even if 

only incremental to past disturbances,’’ 

the Commission finds this position is 

inconsistent with the Commission’s 

finding that the mounting of antennas 

on existing towers and buildings will 

not have significant effects, and with the 

Commission’s experience administering 

the NEPA process, in which a 

collocation has never been identified by 

the Commission or the public to have 

caused a significant environmental 

effect. The Commission further notes 

that the proffered examples appear to 

confuse consideration under the 

Commission’s NEPA process with 

review under local process, which the 

Commission does not address here. To 

the extent that rare circumstances exist 

where ‘‘even the smallest change could 

result in a significant effect, based on 

the intrinsic sensitivity of a particular 

resource,’’ the Commission concludes 

that such extraordinary circumstances 

are appropriately addressed through 

sections 1.1307(c) and (d), as necessary. 

7. The Commission finds 

unpersuasive Tempe’s argument that the 

NEPA categorical exclusion for 

collocation should not encompass 

backup generators in particular. Tempe 

argues that generators cause ‘‘fumes, 

noise, and the potential for exposure to 

hazardous substances if there is a leak 

or a spill’’ and ‘‘should not be allowed 

to be installed without the appropriate 

oversight.’’ The Wireless 

Telecommunications Bureau addressed 

all of these potential impacts in its Final 

Programmatic Environmental 

Assessment for the Antenna Structure 

Registration Program (PEA), and did not 

find any to be significant. Tempe’s own 

comments, moreover, confirm that 

backup generators are already subject to 

extensive local, State, and Federal 

regulation, suggesting that further 

oversight from the Commission would 

not meaningfully augment existing 

environmental safeguards. In assessing 

environmental effect, an agency may 

factor in an assumption that the action 

is performed in compliance with other 

applicable regulatory requirements in 

the absence of a basis in the record 

beyond mere speculation that the action 

threatens violations of such 

requirements. Tempe’s comments 

support the Commission’s conclusion 

that such regulations applicable to 

backup generators address Tempe’s 

concerns. The Commission finds that 

cell sites with such generators will 

rarely if ever be grouped in sufficient 

proximity to present a risk of 

cumulative effects. 

8. The Commission finds no reason to 

interpret ‘‘antenna’’ in the Note 1 NEPA 

collocation categorical exclusion to omit 

backup generators or other kinds of 

backup power equipment. The 

Commission finds that the term 

‘‘antenna’’ as used in the categorical 

exclusion should be interpreted to 

encompass the on-site equipment 

associated with the antenna, including 

backup power sources. Further, the 

need for such power sources at tower 

sites is largely undisputed, as backup 

power is critical for continued service in 

the event of natural disasters or other 

power disruptions—times when the 

need and demand for such service is 

often at its greatest. The Commission 

amends Note 1 to clarify that the 

categorical exclusion encompasses 

equipment associated with the antenna, 

including the critical component of 

backup power. 

9. Finally, the Commission notes that 

sections 1.1306(b)(1)–(3) and 1.1307(c) 

and (d) of its rules provide for situations 

where environmental concerns are 

presented and, as called for by the 

requirement that categorical exclusions 

include consideration of extraordinary 

circumstances, closer scrutiny and 

potential additional environmental 

review are appropriate. The 

Commission concludes that individual 

cases presenting extraordinary 

circumstances in which collocated 

generators or other associated 

equipment may have a significant effect 

on the environment, including cases in 

which closely spaced generators may 

have a significant cumulative effect or 

where the deployment of such 

generators would violate local codes in 

a manner that raises environmental 

concerns, will be adequately addressed 

through these provisions. 

b. Antennas Mounted in the Interior of 

Buildings 

10. The Commission clarifies that the 

existing NEPA categorical exclusion for 

mounting antennas ‘‘on’’ existing 

buildings applies to installations in the 

interior of existing buildings. An 

antenna mounted on a surface inside a 

building is as much ‘‘on’’ the building 

as an antenna mounted on a surface on 

the exterior, and the Commission finds 

nothing in the language of the 

categorical exclusion, in the adopting 

order, or in the current record 

supporting a distinction between 

collocations on the exterior or in the 

interior that would limit the scope of 

the categorical exclusion to exterior 

collocations. To the contrary, it is even 

more likely that indoor installations will 

have no significant environmental 

effects in the environmentally sensitive 

areas in which proposed deployments 

would generally trigger the need to 

prepare an EA, such as wilderness areas, 

wildlife preserves, and flood plains. The 

existing Note 1 collocation categorical 

exclusion reflects a finding that 

collocations do not individually or 

cumulatively have a significant effect on 

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1240 Federal Register / Vol. 80, No. 5 / Thursday, January 8, 2015 / Rules and Regulations 

the human environment, even if they 

would otherwise trigger the requirement 

of an EA under the criteria identified in 

sections 1.1307(a)(1)–(3) and (5)–(8). 

The Commission finds that this 

conclusion applies equally or even more 

strongly to an antenna deployed inside 

a building than to one on its exterior, 

since the building’s exterior structure 

would serve as a buffer against any 

effects. The Commission notes that the 

First Responder Network Authority 

(FirstNet), the National 

Telecommunications and Information 

Administration (NTIA), and other 

agencies have adopted categorical 

exclusions covering internal 

modifications and equipment additions 

inside buildings and structures. For 

example, in adopting categorical 

exclusions as part of its implementation 

of the Broadband Technology 

Opportunities Program, NTIA noted that 

excluding interior modifications and 

equipment additions reflects longstanding categorical exclusions and 

administrative records, including in 

particular ‘‘the legacy categorical 

exclusions from the U.S. Department of 

Agriculture, U.S. Department of 

Homeland Security, and the Federal 

Emergency Management Agency.’’ 

While a Federal agency cannot apply 

another agency’s categorical exclusion 

to a proposed Federal action, it may 

substantiate a categorical exclusion of 

its own based on another agency’s 

experience with a comparable 

categorical exclusion. This longstanding practice of numerous agencies 

that conduct comparable activities, 

reflecting experience that confirms the 

propriety of the categorical exclusion, 

provides further support for the 

conclusion that internal collocations 

will not individually or cumulatively 

have a significant effect on the human 

environment. With respect to Tempe’s 

concern about generators being placed 

inside buildings as the result of 

collocations, the Commission relies on 

local building, noise, and safety 

regulations to address these concerns, 

and the Commission anticipates that 

such regulations will almost always 

require generators to be outside of any 

residential buildings where their use 

would present health or safety concerns 

or else place very strict requirements on 

any placement in the interior. The 

Commission finds it appropriate to 

amend Note 1 to clarify that the Note 1 

collocation categorical exclusion applies 

to the mounting of antennas in the 

interior of buildings as well as the 

exterior. 

c. Antennas Mounted on Other 

Structures 

11. The Commission adopts its 

proposal to extend the categorical 

exclusion for collocations on towers and 

buildings to collocations on other 

existing man-made structures. The 

Commission concludes that 

deployments covered by this extension 

will not individually or cumulatively 

have a significant impact on the human 

environment. The Commission updates 

the categorical exclusion adopted as 

part of Note 1 in 1986 to reflect the 

modern development of wireless 

technologies that can be collocated on a 

much broader range of existing 

structures. This measure will facilitate 

collocations and speed deployment of 

wireless broadband to consumers 

without significantly affecting the 

environment. 

12. In finding that it is appropriate to 

broaden the categorical exclusion 

contained in section 1.1306 Note 1 to 

apply to other structures, the 

Commission relies in part on its prior 

findings regarding the environmental 

effects of collocations. In implementing 

NEPA requirements in 1974, for 

example, the Commission found that 

mounting an antenna on an existing 

building or tower ‘‘has no significant 

aesthetic effect and is environmentally 

preferable to the construction of a new 

tower, provided there is compliance 

with radiation safety standards.’’ In 

revising its NEPA rules in 1986, the 

Commission found that antennas 

mounted on towers and buildings are 

among those deployments that will 

normally have no significant impact on 

the environment. The Commission notes 

in particular that collocations will 

typically add only marginal if any extra 

height to a structure, and that in 2011, 

in a proceeding addressing the 

Commission’s NEPA requirements with 

respect to migratory birds, the 

Commission reaffirmed that collocations 

on towers and buildings are unlikely to 

have environmental effects and thus 

such collocations are categorically 

excluded from review for impact on 

birds. Further, given that towers and 

buildings are typically much taller than 

other man-made structures on which 

antennas will be collocated, the 

Commission expects that there will be 

even less potential for significant effects 

on birds from collocations on such other 

structures. 

13. In the Infrastructure NPRM, the 

Commission tentatively concluded that 

the same determination applies with 

regard to collocations on other 

structures such as utility poles and 

water towers. Numerous commenters 

support this determination, and 

opponents offer no persuasive basis to 

distinguish the environmental effects of 

collocations on antenna towers and 

buildings from the effects of 

collocations on other existing structures. 

Indeed, in this regard, the Commission 

notes that buildings and towers, which 

are already excluded under Note 1, are 

typically taller than structures such as 

utility poles and road signs. While some 

commenters raise concerns about 

possible water-tank contamination or 

driver distraction, these concerns do not 

present persuasive grounds to limit the 

categorical exclusion. Under sections 

1.1306(a) and (b), collocations on 

structures such as water tanks and road 

signs are already categorically excluded 

from the obligation to file an EA unless 

they occur in the environmentally 

sensitive circumstances identified in 

sections 1.1307(a) or (b) (such as in 

wildlife preserves or flood plains). 

Nothing in the record leads the 

Commission to find that collocations in 

such sensitive areas that currently 

require EAs present greater risks of 

water tank contamination or driver 

distraction than collocations outside 

such areas. For similar reasons, the 

Commission is also not persuaded by 

Springfield’s argument that extending 

the categorical exclusion to other 

structures without ‘‘qualifying 

delimitations for how DAS facilities are 

defined and where they may be 

installed may have unacceptable 

impacts on historic and other sensitive 

neighborhoods.’’ Springfield offers no 

argument to explain why the NEPA 

categorical exclusion for collocations on 

utility poles should be more restrictive 

than the exclusion for collocations on 

buildings. Moreover, the Commission 

notes that the NEPA categorical 

exclusion the Commission addresses 

here does not exclude the proposed 

collocation from NHPA review for 

effects on historic properties or historic 

districts. 

14. The Commission also notes that 

the exclusion from section 106 review 

in the Collocation Agreement is not 

limited to collocations on towers and 

buildings but also specifically includes 

collocations on other existing non-tower 

structures. Further, the U.S. Fish and 

Wildlife Service has found collocations 

on existing non-tower structures to be 

environmentally desirable with regard 

to impacts on birds, noting that they 

will in virtually every circumstance 

have less impact than would 

construction of a new tower. 

15. Considering that collocating on 

these structures is necessary for 

broadband deployment, and in light of 

the environmental benefits of 

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Federal Register / Vol. 80, No. 5 / Thursday, January 8, 2015 / Rules and Regulations 1241 

encouraging collocation rather than the 

construction of new structures, the 

Commission finds that extending the 

categorical exclusion to other structures 

advances the public interest and meets 

its obligations under NEPA. 

3. Categorical Exclusion of Deployments 

in Communications or Utilities Rightsof-Way 

16. The Commission adopts a 

categorical exclusion for certain 

wireless facilities deployed in aboveground utility and communications 

rights-of-way. The Commission finds 

that such deployments will not 

individually or cumulatively have a 

significant effect on the environment. 

Given that DAS and small-cell nodes are 

often deployed in communications and 

utilities rights-of-way, the Commission 

concludes that the categorical exclusion 

will significantly advance the 

deployment of such facilities in a 

manner that safeguards environmental 

values. 

17. Specifically, this categorical 

exclusion, which the Commission 

incorporates into its rules as section 

1.1306(c), covers construction of 

wireless facilities, including 

deployments on new or replacement 

poles, only if: (1) The facility will be 

located in a right-of-way that is 

designated by a Federal, State, local, or 

Tribal government for communications 

towers, above-ground utility 

transmission or distribution lines, or 

any associated structures and 

equipment; (2) the right-of-way is in 

active use for such designated purposes; 

and (3) the facility will not constitute a 

substantial increase in size over existing 

support structures that are located in the 

right-of-way within the vicinity of the 

proposed construction. 

18. Although the Commission sought 

comment, in the Infrastructure NPRM, 

on whether to adopt a categorical 

exclusion that covered facilities also 

located within fifty feet of a 

communications or utility right-of-way, 

similar to the exclusion from section 

106 review in section III.E. of the 

National Programmatic Agreement 

(NPA), the Commission limits its NEPA 

categorical exclusion to facilities 

deployed within existing 

communications and utility rights-ofway. Industry commenters that support 

applying the categorical exclusion to 

deployments within fifty feet of a rightof-way do not explain why the 

conclusion that deployments in the 

right-of-way will not have a significant 

effect on the human environment also 

apply outside of a right-of-way. Such 

ground would not necessarily be in 

active use for the designated purposes, 

and there could well be a greater 

potential outside the right-of-way for 

visual impact or new or significant 

ground disturbance that might have the 

potential for significant environmental 

effects. Finally, the record supports the 

conclusion that a categorical exclusion 

limited to deployments within the 

rights-of-way will address most of the 

deployments that would be covered by 

a categorical exclusion that also 

encompassed deployments nearby. 

Sprint, for example, emphasizes that 

‘‘many DAS and small cells will be 

attached to existing structures and 

installed within utility rights-of-way 

corridors.’’ 

19. For purposes of this categorical 

exclusion, the Commission defines a 

substantial increase in size in similar 

fashion to how it is defined in the 

Collocation Agreement. Thus, a 

deployment would result in a 

substantial increase in size if it would: 

(1) Exceed the height of existing support 

structures that are located in the rightof-way within the vicinity of the 

proposed construction by more than 

10% or twenty feet, whichever is 

greater; (2) involve the installation of 

more than four new equipment cabinets 

or more than one new equipment 

shelter; (3) add an appurtenance to the 

body of the structure that would 

protrude from the edge of the structure 

more than twenty feet, or more than the 

width of the structure at the level of the 

appurtenance, whichever is greater 

(except that the deployment may exceed 

this size limit if necessary to shelter the 

antenna from inclement weather or to 

connect the antenna to the tower via 

cable); or (4) involve excavation outside 

the current site, defined as the area that 

is within the boundaries of the leased or 

owned property surrounding the 

deployment or that is in proximity to 

the structure and within the boundaries 

of the utility easement on which the 

facility is to be deployed, whichever is 

more restrictive. 

20. The Commission notes that it has 

found a similar test appropriate in other 

contexts, including under its 

environmental rules. In particular, the 

first three criteria that the Commission 

specifies above to define the scope of 

the NEPA rights-of-way categorical 

exclusion also define the scope of the 

rights-of-way exclusion from historic 

preservation review under the NPA. 

Similarly, for purposes of Antenna 

Structure Registration, the Commission 

does not require environmental notice 

for a proposed tower replacement if, 

among other criteria, the deployment 

will not cause a substantial increase in 

size under the first three criteria of the 

Collocation Agreement, and there will 

be no construction or excavation more 

than 30 feet beyond the existing antenna 

structure property. Further, given that 

the industry now has almost a decade of 

experience applying this substantial 

increase test to construction in the 

rights-of-way under the NPA exclusion, 

and in light of the efficiencies to be 

gained from using a similar test here, 

the Commission finds the Collocation 

Agreement test, as modified here, to be 

appropriate in this context. 

21. The Commission concludes that 

facilities subject to this categorical 

exclusion will not have a significant 

effect on the environment either 

individually or cumulatively, and that 

the categorical exclusion is appropriate. 

In the NPA Report and Order, 70 FR 556 

Jan 4, 2005, the Commission found that 

excluding construction in utilities or 

communications rights-of-way from 

historic preservation review was 

warranted because, ‘‘[w]here such 

structures will be located near existing 

similar poles, . . . the likelihood of an 

incremental adverse impact on historic 

properties is minimal.’’ The 

Commission finds that the potential 

incremental impacts on the 

environment are similarly minimal. 

Indeed, deploying these facilities should 

rarely involve more than minimal new 

ground disturbance, given that 

constructing the existing facilities likely 

disturbed the ground already and given 

the limitations on the size of any new 

poles. Moreover, any new pole will also 

cause minimal visual effect because by 

definition comparable structures must 

already exist in the vicinity of the new 

deployment in that right-of-way, and 

new poles covered by this categorical 

exclusion will not be substantially 

larger. Further, because such corridors 

are already employed for utility or 

communications uses, and the new 

deployments will be comparable in size 

to such existing uses, these additional 

uses are unlikely to trigger new NEPA 

concerns. Any such concerns would 

have already been addressed when such 

corridors were established, and the size 

of the deployments the Commission 

categorically excludes will not be 

substantial enough to raise the prospect 

of cumulative effects. 

22. The Commission also finds 

support for these conclusions in the 

categorical exclusions adopted by other 

agencies, including FirstNet. In 

establishing its own categorical 

exclusions, FirstNet noted as part of its 

Administrative Record that its 

anticipated activities in constructing a 

nationwide public safety broadband 

network would primarily include ‘‘the 

installation of cables, cell towers, 

antenna collocations, buildings, and 

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1242 Federal Register / Vol. 80, No. 5 / Thursday, January 8, 2015 / Rules and Regulations 

power units,’’ for example in connection 

with ‘‘Aerial Plant/Facilities,’’ 

‘‘Towers,’’ ‘‘Collocations,’’ ‘‘Power 

Units,’’ and ‘‘Wireless 

Telecommunications Facilit[ies.]’’ It 

defined a ‘‘Wireless 

Telecommunications Facility’’ as ‘‘[a]n 

installation that sends and/or receives 

radio frequency signals, including 

directional, omni-directional, and 

parabolic antennas, structures, or towers 

(no more than 199 feet tall with no guy 

wires), to support receiving and/or 

transmitting devices, cabinets, 

equipment rooms, accessory equipment, 

and other structures, and the land or 

structure on which they are all 

situated.’’ To address its NEPA 

obligations in connection with these 

activities, FirstNet adopted a number of 

categorical exclusions, including a 

categorical exclusion for ‘‘[c]onstruction 

of wireless telecommunications 

facilities involving no more than five 

acres (2 hectares) of physical 

disturbance at any single site.’’ In 

adopting this categorical exclusion, 

FirstNet found that it was ‘‘supported by 

long-standing categorical exclusions and 

administrative records. In particular, 

these include categorical exclusions 

from the U.S. Department of Commerce, 

U.S. Department of Agriculture, and 

U.S. Department of Energy.’’ 

23. The Commission finds that 

FirstNet’s anticipated activities 

encompass the construction of wireless 

facilities and support structures in the 

rights-of-way, and are therefore 

comparable to the wireless facility 

deployments the Commission addresses 

here. Further, the Commission notes 

that the categorical exclusions adopted 

by FirstNet are broader in scope than 

the categorical exclusion the 

Commission adopts for facilities 

deployed within existing rights-of-way. 

The Commission further notes that 

several other agencies have found it 

appropriate to categorically exclude 

other activities in existing rights-of-way 

unrelated to telecommunications. 

24. The Commission finds that the 

categorical exclusion addresses some 

concerns raised by municipalities, and 

the Commission finds that other 

concerns they raise are not relevant to 

the environmental review process. First, 

the Commission notes that the 

categorical exclusion it adopts addresses 

Coconut Creek’s objection to aboveground deployments in areas with no 

above-ground infrastructure because the 

Commission limits it to rights-of-way in 

active use for above-ground utility 

structures or communications towers. 

Second, concerns about hazards to 

vehicular or pedestrian traffic are 

logically inapplicable. As the 

Commission noted in connection with 

deployments on structures other than 

communications towers and buildings, 

such concerns do not currently warrant 

the submission of an EA. Rather, EAs 

are routinely required for deployments 

in communications or utility rights-ofway only if they meet one of the criteria 

specified in section 1.1307(a) or (b). 

Deployments in the communications or 

utility rights-of-way have never been 

identified in the Commission’s rules as 

an environmentally sensitive category; 

indeed, the use of such rights-of-way for 

antenna deployments is 

environmentally desirable as compared 

to deployments in other areas. Finally, 

the Commission finds it unnecessary to 

adopt Tempe’s proposed limitation, 

whether it is properly understood as a 

proposal to categorically exclude only 

one non-substantial increase at a 

particular site or in the same general 

vicinity, as such limitation has proven 

unnecessary in the context of historic 

preservation review. Having concluded 

that wireless facility deployments in 

communications or utility rights-of-way 

have no potentially significant 

environmental effects individually or 

cumulatively, the Commission finds no 

basis to limit the number of times such 

a categorical exclusion is used either at 

a particular site or in the same general 

vicinity. Indeed, the categorical 

exclusion encourages an 

environmentally responsible approach 

to deployment given that, as Note 1 and 

section 1.1306(c) make clear, the use of 

existing corridors ‘‘is an 

environmentally desirable alternative to 

the construction of new facilities.’’ And, 

apart from environmental 

considerations, it would be contrary to 

the public interest to unnecessarily limit 

the application of this categorical 

exclusion. 

25. To the extent that commenters 

propose extending the Note 1 aerial and 

underground corridor categorical 

exclusion to include components of 

telecommunications systems other than 

wires and cables, the Commission 

declines to do so. The Commission finds 

that the new section 1.1306(c) 

categorical exclusion the Commission 

adopts for deployments in 

communications or utilities rights-ofway will provide substantial and 

appropriate relief, and that the record in 

this proceeding does not justify a further 

expansion of the Note 1 categorical 

exclusion. Further, the existing Note 1 

categorical exclusion for wires and 

cables in underground and aerial 

corridors is broader than the categorical 

exclusion for installations on existing 

buildings or antenna towers because it 

is not limited by section 1.1307(a)(4) 

(section 106 review) or 1.1307(b) (RF 

emissions), while collocations on 

existing buildings or towers are subject 

to these provisions. The Commission 

notes that even parties advocating an 

extension of the categorical exclusion 

for installation of wire and cable to 

additional telecommunications 

components concede that the extension 

should not apply to review of RF 

emissions exposure, as the existing 

categorical exclusion does. This 

distinction underscores that the existing 

categorical exclusion of cables and 

wires in aerial and underground 

corridors is based on an analysis that 

does not directly apply to other 

communications facilities. 

B. NHPA Exclusions 

1. Regulatory Background 

26. Section 1.1307(a)(4) of the 

Commission’s rules directs licensees 

and applicants, when determining 

whether a proposed action may affect 

historic properties, to follow the 

procedures in the rules of the Advisory 

Council on Historic Preservation 

(ACHP) as modified by the Collocation 

Agreement and the NPA, two 

programmatic agreements that took 

effect in 2001 and 2005, respectively. 

The Collocation Agreement excludes 

collocations on buildings or other nontower structures outside of historic 

districts from routine section 106 review 

unless: (1) The structure is inside the 

boundary of a historic district, or it is 

within 250 feet of the boundary of a 

historic district and the antenna is 

visible from ground level within the 

historic district; (2) the structure is a 

designated National Historic Landmark 

or is listed in or eligible for listing in the 

National Register of Historic Places 

(National Register); (3) the structure is 

over 45 years old; or (4) the proposed 

collocation is the subject of a pending 

complaint alleging adverse effect on 

historic properties. 

2. New Exclusions 

27. In addition to seeking comment on 

whether the Commission should add an 

exclusion from section 106 review for 

DAS and small cells generally, the 

Infrastructure NPRM sought comment 

on whether to expand the existing 

categorical exclusion for collocations to 

cover collocations on structures subject 

to review solely because of the 

structure’s age—that is, to deployments 

that are more than 45 years old but that 

are not (1) inside the boundary of a 

historic district, or within 250 feet of the 

boundary of a historic district; (2) 

located on a structure that is a 

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designated National Historic Landmark 

or is listed in or eligible for listing in the 

National Register; or (3) the subject of a 

pending complaint alleging adverse 

effect on historic properties. 

28. As an initial matter, the 

Commission finds no basis to hold 

categorically that small wireless 

facilities such as DAS and small cells 

are not Commission undertakings. 

While PCIA argues that small facilities 

could be distinguished, it does not 

identify any characteristic of such 

deployments that logically removes 

them from the analysis applicable to 

other facilities. Having determined that 

DAS and small cell deployments 

constitute Federal undertakings subject 

to section 106, the Commission 

considers its authority based on section 

800.3(a)(1) of ACHP’s rules to exclude 

such small facility deployments from 

section 106 review. It is clear under the 

terms of section 800.3(a)(1) that a 

Federal agency may determine that an 

undertaking is a type of activity that 

does not have the potential to cause 

effects to historic properties, assuming 

historic properties were present, in 

which case, ‘‘the agency has no further 

obligations under section 106 or this 

part [36 part 800, subpart B].’’ 

29. The commenters that propose a 

general exclusion for DAS and small 

cell deployments assert that under any 

circumstances, such deployments have 

the potential for at most minimal effects, 

but they do not provide evidence to 

support such a broad conclusion. 

Moreover, several commenters, 

including several SHPOs, express 

concerns that such deployments do 

have the potential for effects in some 

cases. The Commission cannot find on 

this record that DAS and small-cell 

facilities qualify for a general exclusion, 

and the Commission therefore 

concludes, after consideration of the 

record, that any broad exclusion of such 

facilities must be implemented at this 

time through the development of a 

‘‘program alternative’’ as defined under 

ACHP’s rules. The Commission is 

committed to making deployment 

processes as efficient as possible 

without undermining the values that 

section 106 protects. The Commission 

staff are working on a program 

alternative that, through consultation 

with stakeholders, will ensure thorough 

consideration of all applicable interests, 

and will culminate in a system that 

eliminates additional bureaucratic 

processes for small facilities to the 

greatest extent possible consistent with 

the purpose and requirements of section 

106. 

30. The Commission further 

concludes that it is in the public interest 

to immediately adopt targeted 

exclusions from its section 106 review 

process that will apply to small facilities 

(and in some instances larger antennas) 

in many circumstances and thereby 

substantially advance the goal of 

facilities deployment. The Commission 

may exclude activities from section 106 

review upon determining that they have 

no potential to cause effects to historic 

properties, assuming such properties are 

present. As discussed in detail below, 

the Commission finds two targeted 

circumstances that meet this test, one 

applicable to utility structures and the 

other to buildings and any other nontower structures. Pursuant to these 

findings the Commission establishes 

two exclusions. 

31. First, the Commission excludes 

collocations on existing utility 

structures, including utility poles and 

electric transmission towers, to the 

extent they are not already excluded in 

the Collocation Agreement, if: (1) The 

collocated antenna and associated 

equipment, when measured together 

with any other wireless deployment on 

the same structure, meet specified size 

limitations; and (2) the collocation will 

involve no new ground disturbance. 

Second, the Commission excludes 

collocations on a building or other nontower structure, to the extent they are 

not already excluded in the Collocation 

Agreement, if: (1) There is an existing 

antenna on the building or other 

structure; (2) certain requirements of 

proximity to the existing antenna are 

met, depending on the visibility and 

size of the new deployment; (3) the new 

antenna will comply with all zoning 

conditions and historic preservation 

conditions on existing antennas that 

directly mitigate or prevent effects, such 

as camouflage or concealment 

requirements; and (4) the deployment 

will involve no new ground 

disturbance. With respect to both of 

these categories—utility structures and 

other non-tower structures—the 

Commission extends the exclusion only 

to deployments that are not (1) inside 

the boundary of a historic district, or 

within 250 feet of the boundary of a 

historic district; (2) located on a 

structure that is a designated National 

Historic Landmark or is listed in or 

eligible for listing in the National 

Register; or (3) the subject of a pending 

complaint alleging adverse effect on 

historic properties. In other words, these 

exclusions address collocations on 

utility structures and other non-tower 

structures where historic preservation 

review would otherwise be required 

under existing rules only because the 

structures are more than 45 years old. 

The Commission’s action here is 

consistent with its determination in the 

NPA to apply a categorical exclusion 

based upon a structure’s proximity to a 

property listed in or eligible to be listed 

in the National Register rather than 

whether a structure is over 45 years old 

regardless of eligibility. Consistent with 

section 800.3(a)(1), the Commission 

finds collocations meeting the 

conditions stated above have no 

potential to affect historic properties 

even if such properties are present. The 

Commission nevertheless finds it 

appropriate to limit the adopted 

exclusions. Given the sensitivities 

articulated in the record, particularly 

those from the National Conference of 

State Historic Preservation Officers 

(NCSHPO) and other individual 

commenting SHPOs, regarding 

deployments in historic districts or on 

historic properties, the Commission 

concludes that any broader exclusions 

require additional consultation and 

consideration, and are more 

appropriately addressed and developed 

through the program alternative process 

that Commission staff have already 

begun. 

a. Collocations on Utility Structures 

32. Pursuant to section 800.3(a)(1) of 

ACHP’s rules, the Commission finds 

that antennas mounted on existing 

utility structures have no potential for 

effects on historic properties, assuming 

such properties are present, where the 

deployment meets the following 

conditions: (1) The antenna and any 

associated equipment, when measured 

together with any other wireless 

deployments on the same structure, 

meets specified size limitations; and (2) 

the deployment will involve no new 

ground disturbance. Notwithstanding 

this finding of no potential for effects 

even assuming historic properties are 

present, the Commission limits this 

exclusion (as described above) in light 

of the particular sensitivities related to 

historic properties and districts. 

Accordingly, this exclusion does not 

apply to deployments that are (1) inside 

the boundary of a historic district, or 

within 250 feet of the boundary of a 

historic district; (2) located on a 

structure that is a designated National 

Historic Landmark or is listed in or 

eligible for listing in the National 

Register; or (3) the subject of a pending 

complaint alleging adverse effect on 

historic properties. In other words, this 

new targeted exclusion addresses 

collocations on utility structures where 

historic preservation review would 

otherwise be required under existing 

rules only because the structures are 

more than 45 years old. 

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33. For purposes of this exclusion, the 

Commission defines utility structures as 

utility poles or electric transmission 

towers in active use by a ‘‘utility’’ as 

defined in section 224 of the 

Communications Act, but not including 

light poles, lamp posts, and other 

structures whose primary purpose is to 

provide public lighting. Utility 

structures are, by their nature, designed 

to hold a variety of electrical, 

communications, or other equipment, 

and they already hold such equipment. 

Their inherent characteristic thus 

incorporates the support of attachments, 

and their uses have continued to evolve 

with changes in technology since they 

were first used in the mid-19th century 

for distribution of telegraph services. 

Indeed, the Commission notes that 

other, often larger facilities are added to 

utility structures without review. For 

example, deployments of equipment 

supporting unlicensed wireless 

operations like Wi-Fi access occur 

without the Commission’s section 106 

review in any case, as do installations 

of non-communication facilities such as 

municipal traffic management 

equipment or power equipment such as 

electric distribution transformers. The 

addition of DAS or small cell facilities 

to these structures is therefore fully 

consistent with their existing use. 

34. While the potential for effects 

from any deployments on utility 

structures is remote at most, the 

Commission concludes that the 

additional conditions described above 

support a finding that there is no such 

potential at all, assuming the presence 

of historic properties. First, the 

Commission limits the size of 

equipment covered by this exclusion. In 

doing so, the Commission draws on a 

PCIA proposal, which includes separate 

specific volumetric limits for antennas 

and for enclosures of associated 

equipment, but the Commission 

modifies the definition in certain 

respects to meet the standard in ACHP’s 

rules that the undertaking must have no 

potential for effects. Specifically, the 

Commission provides that the 

deployment may include covered 

antenna enclosures no more than three 

cubic feet in volume per enclosure, or 

exposed antennas that fit within an 

imaginary enclosure of no more than 

three cubic feet in volume per imaginary 

enclosure, up to an aggregate maximum 

of six cubic feet. The Commission 

further provides that all equipment 

enclosures (or imaginary enclosures) 

associated with the collocation on any 

single structure, including all associated 

equipment but not including separate 

antennas or enclosures for antennas, 

must be limited cumulatively to 

seventeen cubic feet in volume. Further, 

collocations under this rule will be 

limited to collocations that cause no 

new ground disturbance. 

35. Because the Commission finds 

that multiple collocations on a utility 

structure could have a cumulative 

impact, the Commission further applies 

the size limits defined above on a 

cumulative basis taking into account all 

pre-existing collocations. Specifically, if 

there is a pre-existing wireless 

deployment on the structure, and any of 

this pre-existing equipment would 

remain after the collocation, then the 

volume limits apply to the cumulative 

volume of such pre-existing equipment 

and the new collocated equipment. 

Thus, for the new equipment to come 

under this exclusion, the sum of the 

volume of all pre-existing associated 

equipment that remains after the 

collocation and the new equipment 

must be no greater than seventeen cubic 

feet, and the sum of the volume of all 

collocated antennas, including preexisting antennas that remain after the 

collocation, must be no greater than six 

cubic feet. The Commission further 

provides that the cumulative limit of 

seventeen cubic feet for wireless 

equipment applies to all equipment on 

the ground associated with an antenna 

on the structure as well as associated 

equipment physically on the structure. 

Thus, application of the limit is the 

same regardless of whether equipment 

associated with a particular deployment 

is deployed on the ground next to a 

structure or on the structure itself. 

While some commenters oppose an 

exclusion based solely on PCIA’s 

volumetric definition, the Commission 

finds that the Commission’s exclusion 

addresses their concerns. For example, 

Tempe and the CA Local Governments 

express concern that PCIA’s definition 

would allow an unlimited number of 

ground-mounted cabinets. The 

Commission’s approach provides that 

associated ground equipment must also 

come within the volumetric limit for 

equipment enclosures, however, and 

therefore does not allow for unlimited 

ground-based equipment. Further, 

because the Commission applies the 

size limit on a cumulative basis, the 

Commission’s exclusion directly 

addresses concerns that the PCIA 

definition would allow multiple 

collocations that cumulatively exceed 

the volumetric limits. Consistent with a 

proposal by PCIA, the Commission finds 

that certain equipment should be 

omitted from the calculation of the 

equipment volume, including: (1) 

Vertical cable runs for the connection of 

power and other services, the volume of 

which may be impractical to calculate 

and which should in any case have no 

effect on historic properties, consistent 

with the established exclusion of cable 

in pre-existing aerial or underground 

corridors; (2) ancillary equipment 

installed by other entities that is outside 

of the applicant’s ownership or control, 

such as a power meter installed by the 

electric utility in connection with the 

wireless deployment, and (3) 

comparable equipment from preexisting wireless deployments on the 

structure. 

36. To meet the standard under 

section 800.3(a)(1), the Commission 

further imposes a requirement of no 

new ground disturbance, consistent for 

the most part with the NPA standard. 

Under the NPA standard, no new 

ground disturbance occurs so long as 

the depth of previous disturbance 

exceeds the proposed construction 

depth (excluding footings and other 

anchoring mechanisms) by at least two 

feet. The Commission finds that footings 

and anchorings should be included in 

this context to ensure no potential for 

effects. Therefore, the Commission’s 

finding is limited to cases where there 

is no ground disturbance or the depth 

and width of previous disturbance 

exceeds the proposed construction 

depth and width, including the depth 

and width of any proposed footings or 

other anchoring mechanisms, by at least 

two feet. Some Tribal Nations have 

indicated that exclusions of small 

facilities from section 106 review might 

be reasonable if there is no excavation 

but that any ground disturbance would 

be cause for concern. The Commission 

finds that the restrictions it places on 

both of the Commission’s new section 

106 exclusions are sufficient to address 

this concern and ensure that there is no 

potential for effects on historic 

properties of Tribal religious or cultural 

significance. These restrictions include 

a strict requirement for both exclusions 

of no new ground disturbance and 

restrictions on the size and placement of 

equipment. Furthermore, both 

exclusions are limited to collocations 

(and therefore do not include new or 

replacement support structures). 

37. Adoption of this exclusion will 

provide significant efficiencies in the 

section 106 process for DAS and smallcell deployments. Many DAS and smallcell installations involve collocations on 

utility structures. PCIA also estimates 

that excluding collocations on these 

wooden poles would increase the 

estimated number of excluded 

collocation structures by a factor of 10— 

which would dramatically advance 

wireless infrastructure deployment 

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without impacting historic preservation 

values. 

b. Collocations on Buildings and Other 

Non-Tower Structures 

38. Verizon proposes an exclusion for 

collocations on any building or other 

structure over 45 years old if: (1) The 

antenna will be added in the same 

location as other antennas previously 

deployed; (2) the height of the new 

antenna will not exceed the height of 

the existing antennas by more than three 

feet, or the new antenna will not be 

visible from the ground regardless of the 

height increase; and (3) the new antenna 

will comply with any requirements 

placed on the existing antennas by the 

State or local zoning authority or as a 

result of any previous historic 

preservation review process. 

39. Section 800.3(a)(1) of ACHP rules 

authorizes an exclusion only where the 

undertaking does not have the potential 

to cause effects on historic properties, 

assuming such historic properties are 

present. While the Commission 

concludes that this standard allows for 

an exclusion applicable to many 

collocations on buildings and other 

structures that already house 

collocations, the Commission finds 

insufficient support in the record to 

adopt Verizon’s proposed exclusion in 

its entirety. While Verizon states that 

adding an antenna to a building within 

the scope of its proposal would not have 

an effect that differs from those caused 

by existing antennas, the Commission 

must also consider the cumulative 

effects of additional deployments on the 

integrity of a historic property to the 

extent that they add incompatible visual 

elements. Further, while Verizon relies 

heavily on the requirement that any new 

deployment must meet the same 

conditions as the existing deployment, 

the Commission cannot assume that 

conditions placed on a previous 

deployment are always sufficient to 

prevent any effects, particularly in the 

event of multiple additional 

deployments. Indeed, it is often the case 

that mitigating conditions are designed 

to offset effects rather than eliminate or 

reduce them entirely. The Commission 

concludes that with certain 

modifications to Verizon’s proposal, 

deployments covered by the test would 

have no potential for effects. 

40. Specifically, the Commission 

finds that collocations on buildings or 

other non-tower structures over 45 years 

old will have no potential for effects on 

historic properties if: (1) There is an 

existing antenna on the building or 

structure; (2) one of the following 

criteria is met: (a) The new antenna will 

not be visible from any adjacent streets 

or surrounding public spaces and will 

be added in the same vicinity as a preexisting antenna; (b) the new antenna 

will be visible from adjacent streets or 

surrounding public spaces, provided 

that (i) it will replace a pre-existing 

antenna, (ii) the new antenna will be 

located in the same vicinity as the preexisting antenna, (iii) the new antenna 

will be visible only from adjacent streets 

and surrounding public spaces that also 

afford views of the pre-existing antenna, 

(iv) the new antenna will not be more 

than three feet larger in height or width 

(including all protuberances) than the 

pre-existing antenna, and (v) no new 

equipment cabinets will be visible from 

the adjacent streets or surrounding 

public spaces; or (c) the new antenna 

will be visible from adjacent streets or 

surrounding public spaces, provided 

that (i) it will be located in the same 

vicinity as a pre-existing antenna, (ii) 

the new antenna will be visible only 

from adjacent streets and surrounding 

public spaces that also afford views of 

the pre-existing antenna, (iii) the preexisting antenna was not deployed 

pursuant to the exclusion based on this 

finding, (iv) the new antenna will not be 

more than three feet larger in height or 

width (including all protuberances) than 

the pre-existing antenna, and (v) no new 

equipment cabinets will be visible from 

the adjacent streets or surrounding 

public spaces; (3) the new antenna will 

comply 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; and (4) the 

deployment of the new antenna will 

involve no new ground disturbance. 

Notwithstanding its finding of no 

potential for effects even assuming 

historic properties are present, the 

Commission limits this exclusion in 

light of many parties’ particular 

sensitivities related to historic 

properties and districts. As with the 

exclusion for collocations on utility 

poles, this exclusion does not apply to 

deployments that are (1) inside the 

boundary of a historic district, or within 

250 feet of the boundary of a historic 

district; (2) located on a structure that is 

a designated National Historic 

Landmark or is listed in or eligible for 

listing in the National Register; or (3) 

the subject of a pending complaint 

alleging adverse effect on historic 

properties. In other words, this new 

targeted exclusion addresses 

collocations on non-tower structures 

where historic preservation review 

would otherwise be required under 

existing rules only because the 

structures are more than 45 years old. 

41. Consistent with the Verizon 

proposal, the Commission requires that 

there must already be an antenna on the 

building or other structure and that the 

new antenna be in the same vicinity as 

the pre-existing antenna. For this 

purpose, a non-visible new antenna is in 

the ‘‘same vicinity’’ as a pre-existing 

antenna if it will be collocated on the 

same rooftop, fac ̧ade or other surface, 

and a visible new antenna is in the 

‘‘same vicinity’’ as a pre-existing 

antenna if it is on the same rooftop, 

fac ̧ade, or other surface and the 

centerpoint of the new antenna is 

within 10 feet of the centerpoint of the 

pre-existing antenna. Combined with 

the other criteria discussed below, this 

requirement is designed to assure that a 

new antenna will not have any 

incremental effect on historic 

properties, assuming they exist, as there 

will be no additional incompatible 

elements. 

42. In addition to Verizon’s proposed 

requirement that the deployment be in 

the same vicinity as an existing antenna, 

the Commission also adopts a condition 

of no-visibility from adjoining streets or 

any surrounding public spaces, with 

two narrow exceptions. For the general 

case, the Commission’s no-effects 

finding will apply only to a new 

antenna that is not visible from any 

adjacent streets or surrounding public 

spaces and is added in the same vicinity 

as a pre-existing antenna. In adopting 

this standard, the Commission is 

informed by the record and also in part 

by General Services Administration 

(GSA) Preservation Note 41, entitled 

‘‘Administrative Guide for Submitting 

Antenna Projects for External Review.’’ 

Preservation Note 41 recommends that 

an agency may recommend a finding of 

no effect where the antenna will not be 

visible from the surrounding public 

space or streets and the antenna will not 

harm original historic materials or their 

replacements-in-kind. The Commission 

notes that, in addition to the measures 

ensuring that there are no incremental 

visual effects from covered facilities, the 

Commission’s finding of no effects in 

this case is also implicitly based on a 

requirement, as the GSA Note 

recommends, that the deployment will 

not harm original historic materials. 

Even assuming a building is historic, 

however, as required by section 

800.3(a)(1), this ‘‘no harm’’ criterion 

would be satisfied by ensuring that any 

anchoring on the building was not 

performed on the historic materials of 

the property or their replacements-inkind. It is therefore unnecessary to 

expressly impose a ‘‘no harm’’ condition 

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1246 Federal Register / Vol. 80, No. 5 / Thursday, January 8, 2015 / Rules and Regulations 

in this case, as the exclusion the 

Commission adopts does not apply to 

historic properties. Necessarily, any 

anchoring of deployments subject to the 

exclusion will not be in any historic 

materials of the property. The 

Commission also notes that, under the 

criteria the Commission adopts, the 

deployment will occur only where 

another antenna has already been 

reviewed under section 106 and 

approved for deployment in the same 

vicinity, and any conditions imposed on 

that prior deployment to minimize or 

eliminate historic impact, including 

specifications of where, how, or under 

what conditions to construct, are part of 

the Commission’s ‘‘no effect’’ finding 

and would apply as a condition of the 

exclusion. 

43. The Commission makes a narrow 

exception to the no-visibility 

requirement where the new antenna 

would replace an existing antenna in 

the same vicinity and where the 

addition of the new antenna would not 

constitute a substantial increase in size 

over the replaced antenna. In this 

situation, no additional incompatible 

visual element is being added, as one 

antenna is a substitution for the other. 

The Commission permits an 

insubstantial increase in size in this 

situation. For purposes of this criterion, 

the replacement facility would represent 

a substantial increase in size if it is more 

than three feet larger in height or width 

(including all protuberances) than the 

existing facility, or if it involves any 

new equipment cabinets that are visible 

from the street or adjacent public 

spaces. The Commission declines to 

adopt the NPA definition of ‘‘substantial 

increase,’’ which allows greater 

increases in height or width in some 

cases, because it applies to towers, not 

to antenna deployments, and it is 

therefore overbroad with respect to the 

replacement of an existing antenna. The 

Commission further notes that no one 

has objected to Verizon’s proposed limit 

on increases of three feet in this context. 

Also, since the Commission is required 

to ensure no potential for effects on 

historic properties assuming such 

properties are present, the Commission 

finds it appropriate to adopt a more 

stringent test than in the context of a 

program alternative. For these reasons, 

any increase in the number of 

equipment cabinets that are visible from 

the street or adjacent public spaces in 

connection with a replacement antenna 

constitutes a substantial increase in size. 

In combination with the requirements 

that the new antenna be within 10 feet 

of the replaced antenna and that the preexisting antenna be visible from any 

ground perspective that would afford a 

view of the new antenna these 

requirements ensure that the 

replacement deployment will not have 

an additional visual effect. 

44. Under its second partial exception 

to the no-visibility requirement, the new 

antenna may be in addition to, rather 

than a replacement of, a pre-existing 

antenna, but must meet the other 

requirements applicable to replacement 

antennas. The Commission requires that 

the pre-existing antenna itself not have 

been deployed pursuant to this 

exception. While this exception will 

allow an additional visual element to be 

added, the element is again limited to a 

comparably-sized antenna in the same 

viewshed (and again does not include 

any new visible associated equipment). 

Further, because the pre-existing 

antenna may not itself have been 

deployed pursuant to this no-effects 

finding, deployments cannot be daisychained across the structure, which 

might present a potential for cumulative 

effects. 

45. Consistent with the Verizon 

proposal, the Commission requires that 

the new antenna comply with all zoning 

and historic preservation conditions 

applicable to existing antennas in the 

same vicinity that directly mitigate or 

prevent effects, such as camouflage, 

concealment, or painting requirements. 

The Commission does not extend that 

requirement to conditions that have no 

direct relationship to the facility’s effect 

or how the facility is deployed, such as 

a condition that requires the facility 

owner to pay for historic site 

information signs or other conditions 

intended to offset harms rather than 

prevent them. Its goal is to assure that 

any new deployments have no effects on 

historic properties. Payments or other 

forms of mitigation applied to antennas 

previously deployed on the building or 

structure that were intended to 

compensate for any adverse effect on 

historic properties caused by those 

antennas but were not intended to 

prevent that effect from occurring do not 

advance its goal of assuring no effects 

from such collocations. The 

Commission does not require that the 

new antenna comply with such 

conditions. 

46. As with the exclusion the 

Commission adopts for collocations on 

utility structures, the Commission 

imposes a strict requirement of no new 

ground disturbance. Thus, the exclusion 

will permit ground disturbance only 

where the depth and width of previous 

disturbance exceeds the proposed 

construction depth and width 

(including footings and other anchoring 

mechanisms) by at least two feet. 

3. Antennas Mounted in the Interior of 

Buildings 

47. The Collocation Agreement 

provides that ‘‘[a]n antenna may be 

mounted on a building’’ without section 

106 review except under certain 

circumstances, e.g., the building is a 

historic property or over 45 years of age. 

The Commission clarifies that section V 

of the Collocation Agreement covers 

collocations in buildings’ interiors. 

Given the limited scope of the exclusion 

of collocations on buildings under the 

Collocation Agreement (e.g., the 

building may not itself be listed in or 

eligible for listing in the National 

Register or in or near a historic district), 

there is no reason to distinguish interior 

collocations from exterior collocations 

for purposes of assessing impacts on 

historic properties. 

II. Environmental Notification 

Exemption for Registration of 

Temporary Towers 

48. If pre-construction notice of a 

tower to the FAA is required, the 

Commission’s rules also require the 

tower owner to register the antenna 

structure in the Commission’s Antenna 

Structure Registration (ASR) system, 

prior to construction or alteration. To 

fulfill responsibilities under NEPA, the 

Commission requires owners of 

proposed towers, including temporary 

towers that must be registered in the 

ASR system to provide local and 

national notice prior to submitting a 

completed ASR application. Typically, 

the ASR notice process takes 

approximately 40 days. 

49. On May 15, 2013, in the 

Environmental Notification Waiver 

Order (Waiver Order), the Commission 

granted an interim waiver of the ASR 

environmental notification requirements 

for temporary towers meeting certain 

criteria. The Commission provided that 

the interim waiver would remain in 

effect pending the completion of a 

rulemaking to address the issues raised 

in the petition. In the Infrastructure 

NPRM, the Commission proposed to 

adopt a permanent exemption from the 

ASR pre-construction environmental 

notification requirements consistent 

with the interim exemption granted in 

the Waiver Order. 

50. The Commission now adopts a 

permanent exemption from its ASR 

environmental notification requirements 

for temporary towers that (1) will be in 

place for no more than 60 days; (2) 

require notice of construction to the 

FAA; (3) do not require marking or 

lighting under FAA regulations; (4) will 

be less than 200 feet in height; and (5) 

will either involve no excavation or 

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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. The 

Commission finds that establishing the 

proposed exemption is consistent with 

its obligations under NEPA and the 

Council on Environmental Quality 

(CEQ) regulations, and will serve the 

public interest. 

51. As the Commission observed in 

the Infrastructure NPRM, the ASR 

notice process takes approximately 40 

days and can take as long as two 

months. The record confirms that absent 

the exemption, situations would arise 

where there is insufficient time to 

complete this process before a 

temporary tower must be deployed to 

meet near-term demand. The record, as 

well as the Commission’s own 

experience in administering the 

environmental notice rule, shows that a 

substantial number of temporary towers 

that would qualify for the exemption 

require registration. The Commission 

finds that absent an exemption, 

application of the ASR notice process to 

these temporary towers will interfere 

with the ability of service providers to 

meet important short term coverage and 

capacity needs. 

52. At the same time, the benefits of 

environmental notice are limited in the 

case of temporary towers meeting these 

criteria. The purpose of environmental 

notice is to facilitate public discourse 

regarding towers that may have a 

significant environmental impact. The 

Commission finds that towers meeting 

the specified criteria are highly unlikely 

to have significant environmental effects 

due to their short duration, limited 

height, absence of marking or lighting, 

and minimal to no excavation. As the 

Commission explained in the Waiver 

Order, its experience in administering 

the ASR public notice process confirms 

that antenna structures meeting the 

waiver criteria rarely if ever generate 

public comment regarding potentially 

significant environmental effects or are 

determined to require further 

environmental processing. In particular, 

since the Waiver Order has been in 

place, the Commission has seen no 

evidence that a temporary tower 

exempted from notification by the 

waiver has had or may have had a 

significant environmental effect. The 

Commission finds that the limited 

benefits of notice in these cases do not 

outweigh the potential detriment to the 

public interest of prohibiting the 

deployment of towers in circumstances 

in which the notification process cannot 

be completed quickly enough to address 

short-term deployment needs. Further, 

having concluded that pre-construction 

environmental notification is 

categorically unnecessary in the 

situations addressed here, the 

Commission finds it would be 

inefficient to require the filing and 

adjudication of individual waiver 

requests for these temporary towers. The 

Commission concludes that adoption of 

the exemption is warranted. 

53. The Commission also adopts the 

proposal to require no post-construction 

environmental notice for temporary 

towers that qualify for the exemption. 

Ordinarily, when pre-construction 

notice is waived due to an emergency 

situation, the Commission requires 

environmental notification shortly after 

construction because such a deployment 

may be for a lengthy or indefinite period 

of time. The Commission finds that 

requiring post-construction notification 

for towers intended to be in place for 

the limited duration covered by the 

exemption is not in the public interest 

as the exempted period is likely to be 

over or nearly over by the time the 

notice period ends. Additionally, the 

Commission notes again that it has 

rarely seen temporary antenna 

structures generate public comment 

regarding potentially significant 

environmental effects. The Commission 

further notes that of the many 

commenters supporting an exemption, 

none opposed its proposal to exempt 

qualifying temporary towers from postconstruction environmental notification. 

54. The Commission finds that the 

objections to the proposed exemption 

raised by Lee County, Tempe, and 

Orange County are misplaced. They 

express concerns that a temporary 

towers exemption would eliminate local 

review (including local environmental 

review) and antenna structure 

registration requirements. The 

exemption the Commission adopts does 

neither of these things. First, the 

temporary towers measure does not 

exempt any deployment from any 

otherwise applicable requirement under 

the Commission’s rules to provide 

notice to the FAA, to obtain an FAA 

‘‘no-hazard’’ determination, or to 

complete antenna structure registration. 

In raising its concern, Orange County 

notes that it ‘‘operates . . . a large 

regional airport that has recently 

expanded through construction of a 

third terminal.’’ The Commission finds 

the exemption poses no threat to air 

safety. As noted, deployments remains 

subject to all applicable requirements to 

notify the FAA and register the structure 

in the ASR system. If the Commission 

or the FAA requires either painting or 

lighting, i.e., because of a potential 

threat to aviation, the exemption does 

not apply. Nor does the exemption 

impact any local requirements. Further, 

the Commission provides, as proposed 

in the Infrastructure NPRM, that towers 

eligible for the notification exemption 

are still required to comply with the 

Commission’s other NEPA 

requirements, including filing an EA in 

any of the environmentally sensitive 

circumstances identified by the rules. 

The Commission further provides that if 

an applicant determines that it needs to 

complete an EA for a temporary tower 

otherwise eligible for the exemption, or 

if the relevant bureau makes this 

determination pursuant to section 

1.1307(c) or (d) of the Commission’s 

rules, the application will not be exempt 

from the environmental notice 

requirement. 

55. The Commission concludes that 

making the exemption available for 

towers less than 200 feet above ground 

level is appropriate and adequate to 

ensure that the exemption serves the 

public interest both by minimizing 

potential significant environmental 

effects and by enabling wireless 

providers to more effectively respond to 

large or unforeseen spikes in demand 

for service. CTIA indicates that carriers 

deploy temporary towers more than 150 

feet tall to replace damaged towers of 

similar height, and that having to use 

shorter towers to stand in for damaged 

towers may reduce coverage and thereby 

limit the availability of service during 

emergencies. The Commission agrees 

with CTIA that reducing the maximum 

tower height could undermine the 

intended purpose of the exemption. 

Further, the proposed limit of less than 

200 feet will allow appropriate 

flexibility for taller temporary models, 

as they become available. 

56. The Commission concludes that 

60 days is an appropriate time limit for 

the deployment of towers under this 

exemption. This time limit has 

substantial support in the record, and 

the Commission finds that 60 days 

strikes the proper balance between 

making this exemption a useful and 

effective tool for facilitating urgently 

needed short term communications 

deployments and facilitating public 

involvement in Commission decisions 

that may affect the environment. The 

brief duration of the covered 

deployments renders post-construction 

notification unnecessary in the public 

interest because the deployment will be 

removed by the time a post-construction 

notice period is complete or shortly 

thereafter. As the intended deployment 

period grows, however, the applicability 

of that reasoning erodes. For emergency 

deployments that may last up to six 

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construction notice will generally be 

warranted, as the Commission has 

indicated previously. Thus, the 

Commission finds that the existing 

procedure—i.e., site-specific waivers 

that are generally conditioned on postconstruction notice—remains 

appropriate for emergency towers that 

will be deployed for longer periods than 

those covered by the narrow exemption 

the Commission establishes in this 

proceeding. 

57. The Commission declines to 

define consequences or to adopt special 

enforcement mechanisms for misuse of 

the exemption, as proposed by some 

commenters. The Commission agrees 

with Springfield, however, that the 

Commission should adopt a measure to 

prevent the use of consecutive 

deployments under the exemption to 

effectively exceed the time limit. The 

Commission therefore requires that at 

least 30 days must pass following the 

removal of one exempted temporary 

tower before the same applicant may 

rely on the exemption for another 

temporary tower covering substantially 

the same service area. While AT&T 

argues that the Commission should not 

adopt measures to prevent ‘‘speculative 

abuses,’’ the Commission concludes that 

this narrow limitation on the 

consecutive use of the exemption will 

help to ensure that it applies only to 

deployments of brief duration, as 

intended. Further, the Commission is 

not persuaded by CTIA’s argument that 

such a restriction would interfere with 

a carrier’s flexibility to respond to 

unforeseen events. The restriction 

places no limit on the number of exempt 

towers that can be deployed at any one 

time to cover a larger combined service 

area. The Commission also notes that its 

rule provides for extensions of the 60- 

day period in appropriate cases, which 

should further ensure that applicants 

have sufficient flexibility to respond to 

unforeseen events. 

58. The Commission further clarifies 

that under appropriate conditions, such 

as natural disasters or national 

emergencies, the relevant bureau may 

grant waivers of this limitation 

applicable to defined geographic regions 

and periods. In addition, a party subject 

to this limitation at a particular site may 

still request a site-specific waiver of the 

notice requirements for a subsequent 

temporary deployment at that site. 

59. To implement the new temporary 

towers exemption, Commission staff 

will modify FCC Form 854. The 

Commission notes that the modification 

of the form is subject to approval by the 

Office of Management and Budget 

(OMB). To ensure clarity, the 

Commission provides that the 

exemption will take effect only when 

the Wireless Telecommunications 

Bureau issues a Public Notice 

announcing OMB’s approval. The 

Commission further provides that, until 

the new exemption is effective, the 

interim waiver of notification 

requirements for temporary towers 

remains available. 

III. Implementation of Section 6409(a) 

A. Background 

60. Congress adopted section 6409 in 

2012 as a provision of Title VI of the 

Middle Class Tax Relief and Job 

Creation Act of 2012, which is more 

commonly known as the Spectrum Act. 

Section 6409(a), entitled ‘‘Facility 

Modifications,’’ has three provisions. 

Subsection (a)(1) provides that 

‘‘[n]otwithstanding section 704 of the 

Telecommunications Act of 1996 

[codified as 47 U.S.C. 332(c)(7)] or any 

other provision of law, a State or local 

government may not deny, and shall 

approve, any eligible facilities request 

for a modification of an existing 

wireless tower or base station that does 

not substantially change the physical 

dimensions of such tower or base 

station.’’ Subsection (a)(2) defines the 

term ‘‘eligible facilities request’’ as any 

request for modification of an existing 

wireless tower or base station that 

involves (a) collocation of new 

transmission equipment; (b) removal of 

transmission equipment; or (c) 

replacement of transmission equipment. 

Subsection (a)(3) provides that 

‘‘[n]othing in paragraph (a) shall be 

construed to relieve the Commission 

from the requirements of the National 

Historic Preservation Act or the 

National Environmental Policy Act of 

1969.’’ Aside from the definition of 

‘‘eligible facilities request,’’ section 

6409(a) does not define any of its terms. 

Similarly, neither the definitional 

section of the Spectrum Act nor that of 

the Communications Act contains 

definitions of the section 6409(a) terms. 

In the Infrastructure NPRM, the 

Commission sought comment on 

whether to address the provision more 

conclusively and comprehensively. The 

Commission found that it would serve 

the public interest to seek comment on 

implementing rules to define terms that 

the provision left undefined, and to fill 

in other interstices that may serve to 

delay the intended benefits of section 

6409(a). 

B. Discussion 

61. After reviewing the voluminous 

record in this proceeding, the 

Commission decides to adopt rules 

clarifying the requirements of section 

6409(a), and implementing and 

enforcing these requirements, in order 

to prevent delay and confusion in such 

implementation. As the Commission 

noted in the Infrastructure NPRM, 

collocation on existing structures is 

often the most efficient and economical 

solution for mobile wireless service 

providers that need new cell sites to 

expand their existing coverage area, 

increase their capacity, or deploy new 

advanced services. The Commission 

agrees with industry commenters that 

clarifying the terms in section 6409 will 

eliminate ambiguities in interpretation 

and thus facilitate the zoning process for 

collocations and other modifications to 

existing towers and base stations. 

Although these issues could be 

addressed over time through judicial 

decisions, the Commission concludes 

that addressing them now in a 

comprehensive and uniform manner 

will ensure that the numerous and 

significant disagreements over the 

provision do not delay its intended 

benefits. 

62. The record demonstrates very 

substantial differences in the views 

advanced by local government and 

wireless industry commenters on a wide 

range of interpretive issues under the 

provision. While many localities 

recommend that the Commission defer 

to best practices to be developed on a 

collaborative basis, the Commission 

finds that there has been little progress 

in that effort since enactment of section 

6409(a) well over two years ago. While 

the Commission generally encourages 

the development of voluntary best 

practices, the Commission is also 

concerned that voluntary best practices, 

on their own, may not effectively 

resolve many of the interpretive 

disputes or ensure uniform application 

of the law in this instance. In light of 

these disputes, the Commission takes 

this opportunity to provide additional 

certainty to parties. 

63. Authority. The Commission finds 

that it has authority under section 6003 

of the Spectrum Act to adopt rules to 

clarify the terms in section 6409(a) and 

to establish procedures for effectuating 

its requirements. The Commission also 

has broad authority to ‘‘take any action 

necessary to assist [FirstNet] in 

effectuating its duties and 

responsibilities’’ to construct and 

operate a nationwide public safety 

broadband network. The rules the 

Commission adopts reflect the authority 

conferred by these provisions, as they 

will facilitate and expedite 

infrastructure deployment in qualifying 

cases and thus advance wireless 

broadband deployment by commercial 

entities as well as FirstNet. 

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Federal Register / Vol. 80, No. 5 / Thursday, January 8, 2015 / Rules and Regulations 1249 

1. Definition of Terms in Section 

6409(a) 

a. Scope of Covered Services 

64. The Commission first addresses 

the scope of wireless services to which 

the provision applies through the 

definitions of both ‘‘transmission 

equipment’’ and ‘‘wireless tower or base 

station.’’ After considering the 

arguments in the record, the 

Commission concludes that section 

6409(a) applies both to towers and base 

stations and to transmission equipment 

used in connection with any 

Commission-authorized wireless 

communications service. The 

Commission finds strong support in the 

record for this interpretation. With 

respect to towers and base stations, the 

Commission concludes that this 

interpretation is warranted given 

Congress’s selection of the broader term 

‘‘wireless’’ in section 6409(a) rather than 

the narrow term ‘‘personal wireless 

service’’ it previously used in section 

332(c)(7), as well as Congress’s express 

intent that the provisions of the 

Spectrum Act ‘‘advance wireless 

broadband service,’’ promoting ‘‘billions 

of dollars in private investment,’’ and 

further the deployment of FirstNet. The 

Commission finds that interpreting 

‘‘wireless’’ in the narrow manner that 

some municipal commenters suggest 

would substantially undermine the goal 

of advancing the deployment of 

broadband facilities and services, and 

that interpreting section 6409(a) to 

facilitate collocation opportunities on a 

broad range of suitable structures will 

far better contribute to meeting these 

goals, and is particularly important to 

further the deployment of FirstNet. The 

Spectrum Act directs the FirstNet 

authority, in carrying out its duty to 

deploy and operate a nationwide public 

safety broadband network, to ‘‘enter into 

agreements to utilize, to the maximum 

extent economically desirable, existing 

. . . commercial or other 

communications infrastructure; and 

. . . Federal, State, tribal, or local 

infrastructure.’’ For all of these reasons, 

the Commission finds it appropriate to 

interpret section 6409(a) as applying to 

collocations on infrastructure that 

supports equipment used for all 

Commission-licensed or authorized 

wireless transmissions. 

65. The Commission is not persuaded 

that Congress’s use of the term ‘‘base 

station’’ implies that the provision 

applies only to mobile service. As noted 

in the Infrastructure NPRM, the 

Commission’s rules define ‘‘base 

station’’ as a feature of a mobile 

communications network, and the term 

has commonly been used in that 

context. It is important, however, to 

interpret ‘‘base station’’ in the context of 

Congress’s intention to advance wireless 

broadband service generally, including 

both mobile and fixed broadband 

services. The Commission notes, for 

example, that the Spectrum Act directs 

the Commission to license the new 

commercial wireless services employing 

H Block, AWS–3, and repurposed 

television broadcast spectrum under 

‘‘flexible-use service rules’’—i.e., for 

fixed as well as mobile use. Moreover, 

in the context of wireless broadband 

service generally, the term ‘‘base 

station’’ describes fixed stations that 

provide fixed wireless service to users 

as well as those that provide mobile 

wireless service. Indeed, this is 

particularly true with regard to Long 

Term Evolution (LTE), in which base 

stations can support both fixed and 

mobile service. The Commission finds 

that, in the context of section 6409(a), 

the term ‘‘base station’’ encompasses 

both mobile and fixed services. 

66. The Commission is also not 

persuaded that it should exclude 

‘‘broadcast’’ from the scope of section 

6409(a), both with respect to ‘‘wireless’’ 

towers and base stations and with 

respect to transmission equipment. The 

Commission acknowledges that the term 

‘‘wireless providers’’ appears in other 

sections of the Spectrum Act that do not 

encompass broadcast services. The 

Commission does not agree, however, 

that use of the word ‘‘wireless’’ in 

section 6409’s reference to a ‘‘tower or 

base station’’ can be understood without 

reference to context. The Commission 

interprets the term ‘‘wireless’’ as used in 

section 6409(a) in light of the purpose 

of this provision in particular and the 

larger purposes of the Spectrum Act as 

a whole. The Commission finds that 

Congress intended the provision to 

facilitate collocation in order to advance 

the deployment of commercial and 

public safety broadband services, 

including the deployment of the 

FirstNet network. The Commission 

agrees with NAB that including 

broadcast towers significantly advances 

this purpose by ‘‘supporting the 

approximately 25,000 broadcast towers 

as collocation platforms.’’ The 

Commission notes that a variety of 

industry and municipal commenters 

likewise support the inclusion of 

broadcast towers for similar reasons. 

Finally, the Commission observes that 

this approach is consistent with the 

Collocation Agreement and the NPA, 

both of which define ‘‘tower’’ to include 

broadcast towers. These agreements 

address ‘‘wireless’’ communications 

facilities and collocation for any 

‘‘communications’’ purposes. They 

extend to any ‘‘tower’’ built for the sole 

or primary purpose of supporting any 

‘‘FCC-licensed’’ facilities. The 

Commission finds these references 

particularly persuasive in ascertaining 

congressional intent, since section 

6409(a) expressly references the 

Commission’s continuing obligations to 

comply with NEPA and NHPA, which 

form the basis for these agreements. 

67. The Commission further 

concludes that a broad interpretation of 

‘‘transmission equipment’’ is similarly 

appropriate in light of the purposes of 

section 6409(a) in particular and the 

Spectrum Act more generally. The 

statute’s Conference Report expresses 

Congress’s intention to advance wireless 

broadband service generally, and as 

PCIA states, a broad definition of this 

term will ensure coverage for all 

wireless broadband services, including 

future services not yet contemplated. 

Defining ‘‘transmission equipment’’ 

broadly will facilitate the deployment of 

wireless broadband networks and will 

‘‘minimize the need to continually 

redefine the term as technology and 

applications evolve.’’ The Commission 

also notes that a broad definition 

reflects Congress’s definition of a 

comparable term in the context of 

directly related provisions in the same 

statute; in section 6408, the immediately 

preceding provision addressing uses of 

adjacent spectrum, Congress defined the 

term ‘‘transmission system’’ broadly to 

include ‘‘any telecommunications, 

broadcast, satellite, commercial mobile 

service, or other communications 

system that employs radio spectrum.’’ 

68. The Commission disagrees with 

commenters who contend that including 

broadcast equipment within covered 

transmission equipment does not 

advance the goals of the Spectrum Act. 

While broadcast equipment does not 

itself transmit wireless broadband 

signals, its efficient collocation pursuant 

to section 6409(a) will expedite and 

minimize the costs of the relocation of 

broadcast television licensees that are 

reassigned to new channels in order to 

clear the spectrum that will be offered 

for broadband services through the 

incentive auction, as mandated by the 

Spectrum Act. The Commission 

concludes that inclusion of broadcast 

service equipment in the scope of 

transmission equipment covered by the 

provision furthers the goals of the 

legislation and will contribute in 

particular to the success of the postincentive auction transition of television 

broadcast stations to their new 

channels. The Commission notes that 

the language of section 6409(a) is 

broader than that used in section 

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332(c)(7), and it is reasonable to 

construe it in a manner that does not 

differentiate among various 

Commission-regulated services, 

particularly in the context of mandating 

approval of facilities that do not result 

in any substantial increase in physical 

dimensions. 

69. The Commission further rejects 

arguments that Congress intended these 

terms to be restricted to equipment used 

in connection with personal wireless 

services and public safety services. The 

Communications Act and the Spectrum 

Act already define those narrower 

terms, and Congress chose not to 

employ them in section 6409(a), 

determining instead to use the broader 

term, ‘‘wireless.’’ The legislative history 

supports the conclusion that Congress 

intended to employ broader language. In 

the Conference Report, Congress 

emphasized that a primary goal of the 

Spectrum Act was to ‘‘advance wireless 

broadband service,’’ which would 

‘‘promot[e] billions of dollars in private 

investment, and creat[e] tens of 

thousands of jobs.’’ In light of its clear 

intent to advance wireless broadband 

deployment through enactment of 

section 6409(a), the Commission finds it 

implausible that Congress meant to 

exclude facilities used for such services. 

b. Transmission Equipment 

70. The Commission adopts the 

proposal in the Infrastructure NPRM to 

define ‘‘transmission equipment’’ to 

encompass antennas and other 

equipment associated with and 

necessary to their operation, including 

power supply cables and backup power 

equipment. The Commission finds that 

this definition reflects Congress’s intent 

to facilitate the review of collocations 

and minor modifications, and it 

recognizes that Congress used the broad 

term ‘‘transmission equipment’’ without 

qualifications that would logically limit 

its scope. 

71. The Commission is further 

persuaded by wireless industry 

commenters that power supplies, 

including backup power, are a critical 

component of wireless broadband 

deployment and that they are necessary 

to ensure network resiliency. Indeed, 

including backup power equipment 

within the scope of ‘‘transmission 

equipment’’ under section 6409(a) is 

consistent with Congress’s directive to 

the FirstNet Authority to ‘‘ensure the 

. . . resiliency of the network.’’ Tempe’s 

assertion that backup power is not 

technically ‘‘necessary’’ because 

transmission equipment can operate 

without it is unpersuasive. Backup 

power is certainly necessary to 

operations during those periods when 

primary power is intermittent or 

unavailable. The Commission also 

concludes that ‘‘transmission 

equipment’’ should be interpreted 

consistent with the term ‘‘antenna’’ in 

the NPA and, given that the NPA term 

encompasses ‘‘power sources’’ without 

limitation, the Commission finds that 

‘‘transmission equipment’’ includes 

backup power sources. Finally, while 

the Commission recognizes the concerns 

raised by local government commenters 

regarding the potential hazards of 

backup power generators, the 

Commission finds that these concerns 

are fully addressed in the standards 

applicable to collocation applications 

discussed below. 

72. The Commission defines 

‘‘transmission equipment’’ under 

section 6409(a) as any equipment that 

facilitates transmission for any 

Commission-licensed or authorized 

wireless communication service, 

including, but not limited to, radio 

transceivers, antennas and other 

relevant equipment associated with and 

necessary to their operation, including 

coaxial or fiber-optic cable, and regular 

and backup power supply. This 

definition includes equipment used in 

any technological configuration 

associated with any Commissionauthorized wireless transmission, 

licensed or unlicensed, terrestrial or 

satellite, including commercial mobile, 

private mobile, broadcast, and public 

safety services, as well as fixed wireless 

services such as microwave backhaul or 

fixed broadband. 

c. Existing Wireless Tower or Base 

Station 

73. The Commission adopts the 

definitions of ‘‘tower’’ and ‘‘base 

station’’ proposed in the Infrastructure 

NPRM with certain modifications and 

clarifications, in order to give 

independent meaning to both of these 

statutory terms, and consistent with 

Congress’s intent to promote the 

deployment of wireless broadband 

services. First, the Commission 

concludes that the term ‘‘tower’’ is 

intended to reflect the meaning of that 

term as it is used in the Collocation 

Agreement. The Commission defines 

‘‘tower’’ to include any structure built 

for the sole or primary purpose of 

supporting any Commission-licensed or 

authorized antennas and their 

associated facilities. 

74. As proposed in the Infrastructure 

NPRM, the Commission interprets ‘‘base 

station’’ to extend the scope of the 

provision to certain support structures 

other than towers. Specifically, the 

Commission defines that term as the 

equipment and non-tower supporting 

structure at a fixed location that enable 

Commission-licensed or authorized 

wireless communications between user 

equipment and a communications 

network. The Commission finds that the 

term includes any equipment associated 

with wireless communications service 

including, but not limited to, radio 

transceivers, antennas, coaxial or fiberoptic cable, regular and backup power 

supply, and comparable equipment. The 

Commission notes that this definition 

reflects the types of equipment included 

in its definition of ‘‘transmission 

equipment,’’ and that the record 

generally supports this approach. For 

example, DC argues that the 

Commission should define a base 

station as ‘‘generally consist[ing] of 

radio transceivers, antennae, coaxial 

cable, a regular and backup power 

supply, and other associated 

electronics.’’ TIA concurs that the term 

‘‘base station’’ encompasses 

transmission equipment, including 

antennas, transceivers, and other 

equipment associated with and 

necessary to their operation, including 

coaxial cable and regular and backup 

power equipment. 

75. The Commission further finds, 

consistent with the Commission’s 

proposal, that the term ‘‘existing . . . 

base station’’ includes a structure that, 

at the time of the application, supports 

or houses an antenna, transceiver, or 

other associated equipment that 

constitutes part of a ‘‘base station’’ as 

defined above, even if the structure was 

not built for the sole or primary purpose 

of providing such support. As the 

Commission noted in the Infrastructure 

NPRM, while ‘‘tower’’ is defined in the 

Collocation Agreement and the NPA to 

include only those structures built for 

the sole or primary purpose of 

supporting wireless communications 

equipment, the term ‘‘base station’’ is 

not used in these agreements. The 

Commission rejects the proposal to 

define a ‘‘base station’’ to include any 

structure that is merely capable of 

supporting wireless transmission 

equipment, whether or not it is 

providing such support at the time of 

the application. The Commission agrees 

with municipalities’ comments that by 

using the term ‘‘existing,’’ section 

6409(a) preserves local government 

authority to initially determine what 

types of structures are appropriate for 

supporting wireless transmission 

equipment if the structures were not 

built (and thus were not previously 

approved) for the sole or primary 

purpose of supporting such equipment. 

Some wireless industry commenters 

also support its interpretation that, 

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while a tower that was built for the 

primary purpose of housing or 

supporting communications facilities 

should be considered ‘‘existing’’ even if 

it does not currently host wireless 

equipment, other structures should be 

considered ‘‘existing’’ only if they 

support or house wireless equipment at 

the time the application is filed. 

76. The Commission finds that the 

alternative definitions proposed by 

many municipalities are unpersuasive. 

First, the Commission rejects arguments 

that a ‘‘base station’’ includes only the 

transmission system equipment, not the 

structure that supports it. This reading 

conflicts with the full text of the 

provision, which plainly contemplates 

collocations on a base station as well as 

a tower. Section 6409(a) defines an 

‘‘eligible facilities request’’ as a request 

to modify an existing wireless tower or 

base station by collocating on it (among 

other modifications). This statutory 

structure precludes the Commission 

from limiting the term ‘‘base station’’ to 

transmission equipment; collocating on 

base stations, which the statute 

envisions, would be conceptually 

impossible unless the structure is part of 

the definition as well. The Commission 

further disagrees that defining ‘‘base 

station’’ to include supporting 

structures will deprive ‘‘tower’’ of all 

independent meaning. The Commission 

interprets ‘‘base station’’ not to include 

wireless deployments on towers. 

Further, the Commission interprets 

‘‘tower’’ to include all structures built 

for the sole or primary purpose of 

supporting Commission-licensed or 

authorized antennas, and their 

associated facilities, regardless of 

whether they currently support base 

station equipment at the time the 

application is filed. Thus, ‘‘tower’’ 

denotes a structure that is covered 

under section 6409(a) by virtue of its 

construction. In contrast, a ‘‘base 

station’’ includes a structure that is not 

a wireless tower only where it already 

supports or houses such equipment. 

77. The Commission is also not 

persuaded by arguments that ‘‘base 

station’’ refers only to the equipment 

compound associated with a tower and 

the equipment located upon it. First, no 

commenters presented evidence that 

‘‘base station’’ is more commonly 

understood to mean an equipment 

compound as opposed to the broader 

definition of all equipment associated 

with transmission and reception and its 

supporting structures. Furthermore, the 

Collocation Agreement’s definition of 

‘‘tower,’’ which the Commission adopts 

in the R&O, treats equipment 

compounds as part of the associated 

towers for purposes of collocations; if 

towers include their equipment 

compounds, then defining base stations 

as equipment compounds alone would 

render the term superfluous. The 

Commission also notes that none of the 

State statutes and regulations 

implementing section 6409(a) has 

limited its scope to equipment and 

structures associated with towers. In 

addition, the Commission agrees with 

commenters who argue that limiting the 

definition of ‘‘base station’’ (and thus 

the scope of section 6409(a)) to 

structures and equipment associated 

with towers would compromise the core 

policy goal of bringing greater efficiency 

to the process for collocations. Other 

structures are increasingly important to 

the deployment of wireless 

communications infrastructure; omitting 

them from the scope of section 6409(a) 

would mean the statute’s efficiencies 

would not extend to many if not most 

wireless collocations, and would 

counterproductively exclude virtually 

all of the small cell collocations that 

have the least impact on local land use. 

78. Some commenters arguing that 

section 6409(a) covers no structures 

other than those associated with towers 

point to the Conference Report, which, 

in describing the equivalent provision 

in the House bill, states that the 

provision ‘‘would require approval of 

requests for modification of cell 

towers.’’ The Commission does not find 

this ambiguous statement sufficient to 

overcome the language of the statute as 

enacted, which refers to ‘‘modification 

of an existing wireless tower or base 

station.’’ Moreover, this statement from 

the report does not expressly state a 

limitation on the provision, and thus 

may reasonably be read as a simplified 

reference to towers as an important 

application of its mandate. The 

Commission does not view this 

language as indicating Congress’s 

intention that the provision 

encompasses only modifications of 

structures that qualify as wireless 

towers. 

79. The Commission thus adopts the 

proposed definition of ‘‘base station’’ to 

include a structure that currently 

supports or houses an antenna, 

transceiver, or other associated 

equipment that constitutes part of a base 

station at the time the application is 

filed. The Commission also finds that 

‘‘base station’’ encompasses the relevant 

equipment in any technological 

configuration, including DAS and small 

cells. The Commission disagrees with 

municipalities that argue that ‘‘base 

station’’ should not include DAS or 

small cells. As the record supports, 

there is no statutory language limiting 

the term ‘‘base station’’ in this manner. 

The definition is sufficiently flexible to 

encompass, as appropriate to section 

6409(a)’s intent and purpose, future as 

well as current base station technologies 

and technological configurations, using 

either licensed or unlicensed spectrum. 

80. While the Commission does not 

accept municipal arguments to limit 

section 6409(a) to equipment or 

structures associated with towers, the 

Commission rejects industry arguments 

that section 6409(a) should apply more 

broadly to include certain structures 

that neither were built for the purpose 

of housing wireless equipment nor have 

base station equipment deployed upon 

them. The Commission finds no 

persuasive basis to interpret the 

statutory provision so broadly. The 

Commission agrees with Alexandria et 

al. that the scope of section 6409(a) is 

different from that of the Collocation 

Agreement, as the statutory provision 

clearly applies only to collocations on 

an existing ‘‘wireless tower or base 

station’’ rather than any existing ‘‘tower 

or structure.’’ Further, interpreting 

‘‘tower’’ to include structures ‘‘similar 

to a tower’’ would be contrary to the 

very Collocation Agreement to which 

these commenters point, which defines 

‘‘tower’’ in the narrower fashion that the 

Commission adopts. The Commission 

also agrees with municipalities as a 

policy matter that local governments 

should retain authority to make the 

initial determination (subject to the 

constraints of section 332(c)(7)) of 

which non-tower structures are 

appropriate for supporting wireless 

transmission equipment; its 

interpretations of ‘‘tower’’ and ‘‘base 

station’’ preserve that authority. 

81. Finally, the Commission agrees 

with Fairfax that the term ‘‘existing’’ 

requires that wireless towers or base 

stations have been reviewed and 

approved under the applicable local 

zoning or siting process or that the 

deployment of existing transmission 

equipment on the structure received 

another form of affirmative State or local 

regulatory approval (e.g., authorization 

from a State public utility commission). 

Thus, if a tower or base station was 

constructed or deployed without proper 

review, was not required to undergo 

siting review, or does not support 

transmission equipment that received 

another form of affirmative State or local 

regulatory approval; the governing 

authority is not obligated to grant a 

collocation application under section 

6409(a). The Commission further 

clarifies that a wireless tower that does 

not have a permit because it was not in 

a zoned area when it was built, but was 

lawfully constructed, is an ‘‘existing’’ 

tower. The Commission finds that its 

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interpretation of ‘‘existing’’ is consistent 

with the purposes of section 6409(a) to 

facilitate deployments that are unlikely 

to conflict with local land use policies 

and preserve State and local authority to 

review proposals that may have 

impacts. First, it ensures that a facility 

that was deployed unlawfully does not 

trigger a municipality’s obligation to 

approve modification requests under 

section 6409(a). Further, it guarantees 

that the structure has already been the 

subject of State or local review. This 

interpretation should also minimize 

incentives for governing authorities to 

increase zoning or other regulatory 

review in cases where minimally 

intrusive deployments are currently 

permitted without review. For example, 

under this interpretation, a 

homeowner’s deployment of a femtocell 

that is not subject to any zoning or other 

regulatory requirements will not 

constitute a base station deployment 

that triggers obligations to allow 

deployments of other types of facilities 

at that location under section 6409(a). 

By thus preserving State and local 

authority to review the first base station 

deployment that brings any non-tower 

structure within the scope of section 

6409(a), the Commission ensures that 

subsequent collocations of additional 

transmission equipment on that 

structure will be consistent with 

congressional intent that deployments 

subject to section 6409(a) will not pose 

a threat of harm to local land use values. 

82. On balance, the Commission finds 

that the foregoing definitions are 

consistent with congressional intent to 

foster collocation on various types of 

structures, while addressing 

municipalities’ valid interest in 

preserving their authority to determine 

which structures are suitable for 

wireless deployment, and under what 

conditions. 

d. Collocation, Replacement, Removal, 

Modification 

83. The Commission concludes again 

that it is appropriate to look to the 

Collocation Agreement for guidance on 

the meaning of analogous terms, 

particularly in light of section 

6409(a)(3)’s specific recognition of the 

Commission’s obligations under NHPA 

and NEPA. As proposed in the 

Infrastructure NPRM and supported by 

the record, the Commission concludes 

that the definition of ‘‘collocation’’ for 

purposes of section 6409(a) should be 

consistent with its definition in the 

Collocation Agreement. The 

Commission defines ‘‘collocation’’ 

under section 6409(a) as ‘‘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.’’ The 

term ‘‘eligible support structure’’ means 

any structure that falls within the 

definitions of ‘‘tower’’ or ‘‘base station.’’ 

Consistent with the language of section 

6409(a)(2)(A)–(C), the Commission also 

finds that a ‘‘modification’’ of a 

‘‘wireless tower or base station’’ 

includes collocation, removal, or 

replacement of an antenna or any other 

transmission equipment associated with 

the supporting structure. 

84. The Commission disagrees with 

municipal commenters who argue that 

collocations are limited to mounting 

equipment on structures that already 

have transmission equipment on them. 

That limitation is not consistent with 

the Collocation Agreement’s definition 

of ‘‘collocation,’’ and would not serve 

any reasonable purpose as applied to 

towers built for the purpose of 

supporting transmission equipment. 

Nevertheless, the Commission observes 

that the Commission’s approach leads to 

the same result in the case of ‘‘base 

stations;’’ since its definition of that 

term includes only structures that 

already support or house base station 

equipment, section 6409(a) will not 

apply to the first deployment of 

transmission equipment on such 

structures. Thus, the Commission 

disagrees with CA Local Governments 

that adopting the Commission’s 

proposed definition of collocation 

would require local governments to 

approve deployments on anything that 

could house or support a component of 

a base station. Rather, section 6409(a) 

will apply only where a State or local 

government has approved the 

construction of a structure with the sole 

or primary purpose of supporting 

covered transmission equipment (i.e., a 

wireless tower) or, with regard to other 

support structures, where the State or 

local government has previously 

approved the siting of transmission 

equipment that is part of a base station 

on that structure. In both cases, the State 

or local government must decide that 

the site is suitable for wireless facility 

deployment before section 6409(a) will 

apply. 

85. The Commission finds that the 

term ‘‘eligible facilities request’’ 

encompasses hardening through 

structural enhancement where such 

hardening is necessary for a covered 

collocation, replacement, or removal of 

transmission equipment, but does not 

include replacement of the underlying 

structure. The Commission notes that 

the term ‘‘eligible facilities request’’ 

encompasses any ‘‘modification of an 

existing wireless tower or base station 

that involves’’ collocation, removal, or 

replacement of transmission equipment. 

Given that structural enhancement of 

the support structure is a modification 

of the relevant tower or base station, the 

Commission notes that permitting 

structural enhancement as a part of a 

covered request may be particularly 

important to ensure that the relevant 

infrastructure will be available for use 

by FirstNet because of its obligation to 

‘‘ensure the safety, security, and 

resiliency of the [public safety 

broadband] network. . . .’’ In addition 

to hardening for Public Safety, 

commercial providers may seek 

structural enhancement for many 

reasons, for example, to increase load 

capacity or to repair defects due to 

corrosion or other damage. The 

Commission finds that such 

modification is part of an eligible 

facilities request so long as the 

modification of the underlying support 

structure is performed in connection 

with and is necessary to support a 

collocation, removal, or replacement of 

transmission equipment. The 

Commission further clarifies that, to be 

covered under section 6409(a), any such 

structural enhancement must not 

constitute a substantial change as 

defined below. 

86. The Commission agrees with 

Alexandria et al., that ‘‘replacement,’’ as 

used in section 6409(a)(2)(C), relates 

only to the replacement of 

‘‘transmission equipment,’’ and that 

such equipment does not include the 

structure on which the equipment is 

located. Even under the condition that 

it would not substantially change the 

physical dimensions of the structure, 

replacement of an entire structure may 

affect or implicate local land use values 

differently than the addition, removal, 

or replacement of transmission 

equipment, and the Commission finds 

no textual support for the conclusion 

that Congress intended to extend 

mandatory approval to new structures. 

Thus, the Commission declines to 

interpret ‘‘eligible facilities requests’’ to 

include replacement of the underlying 

structure. 

e. Substantial Change and Other 

Conditions and Limitations 

87. After careful review of the record, 

the Commission adopts an objective 

standard for determining when a 

proposed modification will 

‘‘substantially change the physical 

dimensions’’ of an existing tower or 

base station. The Commission provides 

that a modification substantially 

changes the physical dimensions of a 

tower or base station if it meets any of 

the following criteria: (1) for towers 

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outside of 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 those towers in 

the rights-of-way and for all base 

stations, it increases the height of the 

tower or base station by more than 10% 

or 10 feet, whichever is greater; (2) for 

towers outside of public rights-of-way, it 

protrudes 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 those towers in the rights-ofway and for all base stations, it 

protrudes from the edge of the structure 

more than six feet; (3) it involves 

installation of more than the standard 

number of new equipment cabinets for 

the technology involved, but not to 

exceed four cabinets; (4) it entails any 

excavation or deployment outside the 

current site of the tower or base station; 

(5) it would defeat the existing 

concealment elements of the tower or 

base station; or (6) it does not comply 

with conditions associated with the 

prior approval of construction or 

modification of the tower or base station 

unless the non-compliance is due to an 

increase in height, increase in width, 

addition of cabinets, or new excavation 

that does not exceed the corresponding 

‘‘substantial change’’ thresholds 

identified above. The Commission 

further provides that the changes in 

height resulting from a modification 

should be measured from the original 

support structure in cases where the 

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. 

Beyond these standards for what 

constitutes a substantial change in the 

physical dimensions of a tower or base 

station, the Commission further 

provides that for applications covered 

by section 6409(a), States and localities 

may continue to enforce and condition 

approval on compliance with generally 

applicable building, structural, 

electrical, and safety codes and with 

other laws codifying objective standards 

reasonably related to health and safety. 

88. The Commission initially 

concludes that it should adopt a test 

that is defined by specific, objective 

factors rather than the contextual and 

entirely subjective standard advocated 

by the Intergovernmental Advisory 

Committee (IAC) and municipalities. 

Congress took care to refer, in excluding 

certain modifications from mandatory 

approval requirements, to those that 

would substantially change the tower or 

base station’s ‘‘physical dimensions.’’ 

The Commission also finds that 

Congress intended approval of covered 

requests to occur in a timely fashion. 

While the Commission acknowledges 

that the IAC approach would provide 

municipalities with maximum 

flexibility to consider potential effects, 

the Commission is concerned that it 

would invite lengthy review processes 

that conflict with Congress’s intent. 

Indeed, some municipal commenters 

anticipate their review of covered 

requests under a subjective case-by-case 

approach could take even longer than 

their review of collocations absent 

section 6409(a). The Commission also 

anticipates that disputes arising from a 

subjective approach would tend to 

require longer and more costly litigation 

to resolve given the more fact-intensive 

nature of the IAC’s open-ended and 

context-specific approach. The 

Commission finds that an objective 

definition, by contrast, will provide an 

appropriate balance between municipal 

flexibility and the rapid deployment of 

covered facilities. The Commission 

finds further support for this approach 

in State statutes that have implemented 

section 6409(a), all of which establish 

objective standards. 

89. The Commission further finds that 

the objective test for ‘‘substantial 

increase in size’’ under the Collocation 

Agreement should inform its 

consideration of the factors to consider 

when assessing a ‘‘substantial change in 

physical dimensions.’’ This reflects its 

general determination that definitions in 

the Collocation Agreement and NPA 

should inform its interpretation of 

similar terms in section 6409(a). 

Further, as noted in the Infrastructure 

NPRM, the Commission has previously 

relied on the Collocation Agreement’s 

test in comparable circumstances, 

concluding in the 2009 Declaratory 

Ruling that collocation applications are 

subject to a shorter shot clock under 

section 332(c)(7) to the extent that they 

do not constitute a ‘‘substantial increase 

in size of the underlying structure.’’ The 

Commission has also applied a similar 

objective test to determine whether a 

modification of an existing registered 

tower requires public notice for 

purposes of environmental review. The 

Commission notes that some 

municipalities support this approach, 

and the Commission further observes 

that the overwhelming majority of State 

collocation statutes adopted since the 

passage of the Spectrum Act have 

adopted objective criteria similar to the 

Collocation Agreement test for 

identifying collocations subject to 

mandatory approval. The Commission 

notes as well that there is nothing in the 

record indicating that any of these 

objective State-law tests have resulted in 

objectionable collocations that might 

have been rejected under a more 

subjective approach. The Commission is 

persuaded that it is reasonable to look 

to the Collocation Agreement test as a 

starting point in interpreting the very 

similar ‘‘substantial change’’ standard 

under section 6409(a). The Commission 

further decides to modify and 

supplement the factors to establish an 

appropriate balance between promoting 

rapid wireless facility deployment and 

preserving States’ and localities’ ability 

to manage and protect local land-use 

interests. 

90. First, the Commission declines to 

adopt the Collocation Agreement’s 

exceptions that allow modifications to 

exceed the usual height and width 

limits when necessary to avoid 

interference or shelter the antennas from 

inclement weather. The Commission 

agrees with CA Local Governments that 

these issues pose technically complex 

and fact-intensive questions that many 

local governments cannot resolve 

without the aid of technical experts; 

modifications that would not fit within 

the Collocation Agreement’s height and 

width exceptions are thus not suitable 

for expedited review under section 

6409(a). 

91. Second, the Commission 

concludes that the limit on height and 

width increases should depend on the 

type and location of the underlying 

structure. Under the Collocation 

Agreement’s ‘‘substantial increase in 

size’’ test, which applies only to towers, 

a collocation constitutes a substantial 

increase in size if it would increase a 

tower’s height by 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. In addition, the 

Collocation Agreement authorizes 

collocations that would protrude by 

twenty feet, or by the width of the tower 

structure at the level of the 

appurtenance, whichever is greater. The 

Commission finds that the Collocation 

Agreement’s height and width criteria 

are generally suitable for towers, as was 

contemplated by the Agreement. 

92. These tests were not designed 

with non-tower structures in mind, and 

the Commission finds that they may 

often fail to identify substantial changes 

to non-tower structures such as 

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buildings or poles, particularly insofar 

as they would permit height and width 

increases of 20 feet under all 

circumstances. Instead, considering the 

proposals and arguments in the record 

and the purposes of the provision, the 

Commission concludes that a 

modification to a non-tower structure 

that would increase the structure’s 

height by more than 10% or 10 feet, 

whichever is greater, constitutes a 

substantial change under section 

6409(a). Permitting increases of up to 

10% has significant support in the 

record. Further, the Commission finds 

that the adoption of a fixed minimum 

best serves the intention of Congress to 

advance broadband service by 

expediting the deployment of minor 

modifications of towers and base 

stations. Without such a minimum, the 

Commission finds that the test will not 

properly identify insubstantial increases 

on small buildings and other short 

structures, and may undermine the 

facilitation of collocation, as vertically 

collocated antennas often need 10 feet 

of separation and rooftop collocations 

may need such height as well. Further, 

the fact that the 10-foot minimum is 

substantially less than the 20-foot 

minimum limit under the Collocation 

Agreement and many State statutes or 

the 15-foot limit proposed by some 

commenters provides additional 

assurance that the Commission’s 

interpretation of what is considered 

substantial under section 6409(a) is 

reasonable. 

93. The Commission also provides, as 

suggested by Verizon and PCIA, that a 

proposed modification of a non-tower 

structure constitutes a ‘‘substantial 

change’’ under section 6409(a) if it 

would protrude from the edge of the 

structure more than six feet. The 

Commission finds that allowing for 

width increases up to six feet will 

promote the deployment of small 

facility deployments by accommodating 

installation of the mounting brackets/

arms often used to deploy such facilities 

on non-tower structures, and that it is 

consistent with small facility 

deployments that municipalities have 

approved on such structures. The 

Commission further notes that it is 

significantly less than the limits in 

width established by most State 

collocation statutes adopted since the 

Spectrum Act. The Commission finds 

that six feet is the appropriate objective 

standard for substantial changes in 

width for non-tower structures, rather 

than the alternative proposals in the 

record. 

94. The Commission declines to apply 

the same substantial change criteria to 

utility structures as apply to towers. 

While Verizon argues in an ex parte that 

this approach is justified because of the 

‘‘significant similarities’’ between 

towers and utility structures, its own 

comments note that in contrast to 

‘‘macrocell towers,’’ utility structures 

are ‘‘smaller sites[.]’’ Because utility 

structures are typically much smaller 

than traditional towers, and because 

utility structures are often located in 

easements adjacent to vehicular and 

pedestrian rights-of-way where 

extensions are more likely to raise 

aesthetic, safety, and other issues, the 

Commission does not find it appropriate 

to apply to such structures the same 

substantial change criteria applicable to 

towers. The Commission further finds 

that towers in the public rights-of-way 

should be subject to the more restrictive 

height and width criteria applicable to 

non-tower structures rather than the 

criteria applicable to other towers. The 

Commission notes that, to deploy DAS 

and small-cell wireless facilities, 

carriers and infrastructure providers 

must often deploy new poles in the 

rights-of-way. Because these structures 

are constructed for the sole or primary 

purpose of supporting Commissionlicensed or authorized antennas, they 

fall under the definition of ‘‘tower.’’ 

They are often identical in size and 

appearance to utility poles in the area, 

which do not constitute towers. As a 

consequence, applying the tower height 

and width standards to these poles 

constructed for DAS and small-cell 

support would mean that two adjacent 

and nearly identical poles could be 

subject to very different standards. To 

ensure consistent treatment of structures 

in the public rights-of-way, and because 

of the heightened potential for impact 

from extensions in such locations, the 

Commission provides that structures 

qualifying as towers that are deployed 

in public rights-of-way will be subject to 

the same height and width criteria as 

non-tower structures. 

95. The Commission agrees with 

commenters that its substantial change 

criteria for changes in height should be 

applied as limits on cumulative 

changes; otherwise, a series of 

permissible small changes could result 

in an overall change that significantly 

exceeds the adopted standards. 

Specifically, the Commission finds that 

whether a modification constitutes a 

substantial change must be determined 

by measuring the change in height from 

the dimensions of the ‘‘tower or base 

station’’ as originally approved or as of 

the most recent modification that 

received local zoning or similar 

regulatory approval prior to the passage 

of the Spectrum Act, whichever is 

greater. 

96. The Commission declines to 

provide that changes in height should 

always be measured from the original 

tower or base station dimensions, as 

suggested by some municipalities. As 

with the original tower or base station, 

discretionary approval of subsequent 

modifications reflects a regulatory 

determination of the extent to which 

wireless facilities are appropriate, and 

under what conditions. At the same 

time, the Commission declines to adopt 

industry commenters’ proposal always 

to measure changes from the last 

approved change or the effective date of 

the rules. Measuring from the last 

approved change in all cases would 

provide no cumulative limit at all. In 

particular, since the Spectrum Act 

became law, approval of covered 

requests has been mandatory and 

approved changes after that time may 

not establish an appropriate baseline 

because they may not reflect a siting 

authority’s judgment that the modified 

structure is consistent with local land 

use values. Because it is impractical to 

require parties, in measuring cumulative 

impact, to determine whether each preexisting modification was or was not 

required by the Spectrum Act, the 

Commission provides that modifications 

of an existing tower or base station that 

occur after the passage of the Spectrum 

Act will not change the baseline for 

purposes of measuring substantial 

change. Consistent with the 

determination that a tower or base 

station is not covered by section 6409(a) 

unless it received such approval, this 

approach will in all cases limit 

modifications that are subject to 

mandatory approval to the same modest 

increments over what the relevant 

governing authority has previously 

deemed compatible with local land use 

values. The Commission further finds 

that, for structures where collocations 

are separated horizontally rather than 

vertically (such as building rooftops), 

substantial change is more appropriately 

measured from the height of the original 

structure, rather than the height of a 

previously approved antenna. Thus, for 

example, the deployment of a 10-foot 

antenna on a rooftop would not mean 

that a nearby deployment of a 20-foot 

antenna would be considered 

insubstantial. 

97. Again drawing on the Collocation 

Agreement’s test, the Commission 

further provides that a modification is a 

substantial change if it entails any 

excavation or deployment outside the 

current site of the tower or base station. 

As in the Collocation Agreement, the 

Commission defines the ‘‘site’’ for 

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towers outside of the public rights-ofway as the current boundaries of the 

leased or owned property surrounding 

the tower and any access or utility 

easements currently related to the site. 

For other towers and all base stations, 

the Commission further restricts the site 

to that area in proximity to the structure 

and to other transmission equipment 

already deployed on the ground. 

98. The Commission also rejects the 

PCIA and Sprint proposal to expand the 

Collocation Agreement’s fourth prong, 

as modified by the 2004 NPA, to allow 

applicants to excavate outside the 

leased or licensed premises. Under the 

NPA, certain undertakings are excluded 

from the section 106 review, including 

‘‘construction of a replacement for an 

existing communications tower and any 

associated excavation that . . . does not 

expand the boundaries of the leased or 

owned property surrounding the tower 

by more than 30 feet in any direction or 

involve excavation outside these 

expanded boundaries or outside any 

existing access or utility easement 

related to the site.’’ The NPA exclusion 

from section 106 review applies to 

replacement of ‘‘an existing 

communications tower.’’ In contrast, 

‘‘replacement,’’ as used in section 

6409(a)(2)(C), relates only to the 

replacement of ‘‘transmission 

equipment,’’ not the replacement of the 

supporting structures. Thus, the 

activities covered under section 6409(a) 

are more nearly analogous to those 

covered under the Collocation 

Agreement than under the replacement 

towers exclusion in the NPA. The 

Commission agrees with localities 

comments that any eligible facilities 

requests that involve excavation outside 

the premises should be considered a 

substantial change, as under the fourth 

prong of the Collocation Agreement’s 

test. 

99. Based on its review of the record 

and various state statutes, the 

Commission further finds that a 

modification constitutes a substantial 

change in physical dimensions under 

section 6409(a) if the change (1) would 

defeat the existing concealment 

elements of the tower or base station, or 

(2) does not comply with pre-existing 

conditions associated with the prior 

approval of construction or modification 

of the tower or base station. The first of 

these criteria is widely supported by 

both wireless industry and municipal 

commenters, who generally agree that a 

modification that undermines the 

concealment elements of a stealth 

wireless facility, such as painting to 

match the supporting fac ̧ade or artificial 

tree branches, should be considered 

substantial under section 6409(a). The 

Commission agrees with commenters 

that in the context of a modification 

request related to concealed or 

‘‘stealth’’-designed facilities—i.e., 

facilities designed to look like some 

feature other than a wireless tower or 

base station—any change that defeats 

the concealment elements of such 

facilities would be considered a 

‘‘substantial change’’ under section 

6409(a). Commenters differ on whether 

any other conditions previously placed 

on a wireless tower or base station 

should be considered in determining 

substantial change under section 

6409(a). After consideration, the 

Commission agrees with municipal 

commenters that a change is substantial 

if it violates any condition of approval 

of construction or modification imposed 

on the applicable wireless tower or base 

station, unless the non-compliance is 

due to an increase in height, increase in 

width, addition of cabinets, or new 

excavation that does not exceed the 

corresponding ‘‘substantial change’’ 

thresholds. In other words, 

modifications qualify for section 6409(a) 

only if they comply, for example, with 

conditions regarding fencing, access to 

the site, drainage, height or width 

increases that exceed the thresholds the 

Commission adopted and other 

conditions of approval placed on the 

underlying structure. This approach, the 

Commission finds, properly preserves 

municipal authority to determine which 

structures are appropriate for wireless 

use and under what conditions, and 

reflects one of the three key priorities 

identified by the IAC in assessing 

substantial change. 

100. The Commission agrees with 

PCIA that legal, non-conforming 

structures should be available for 

modification under section 6409(a), as 

long as the modification itself does not 

‘‘substantially change’’ the physical 

dimensions of the supporting structure 

as defined here. The Commission rejects 

municipal arguments that any 

modification of an existing wireless 

tower or base station that has ‘‘legal, 

non-conforming’’ status should be 

considered a ‘‘substantial change’’ to its 

‘‘physical dimensions.’’ As PCIA argues, 

the approach urged by municipalities 

could thwart the purpose of section 

6409(a) altogether, as simple changes to 

local zoning codes could immediately 

turn existing structures into legal, nonconforming uses unavailable for 

collocation under the statute. 

Considering Congress’s intent to 

promote wireless facilities deployment 

by encouraging collocation on existing 

structures, and considering the 

requirement in section 6409(a) that 

States and municipalities approve 

covered requests ‘‘[n]otwithstanding 

. . . any other provision of law,’’ the 

Commission finds the municipal 

commenters’ proposal to be 

unsupportably restrictive. 

101. The record also reflects general 

consensus that wireless facilities 

modification under section 6409(a) 

should remain subject to building codes 

and other non-discretionary structural 

and safety codes. As municipal 

commenters indicate, many local 

jurisdictions have promulgated code 

provisions that encourage and promote 

collocations and replacements through a 

streamlined approval process, while 

ensuring that any new facilities comply 

with building and safety codes and 

applicable Federal and State 

regulations. Consistent with that 

approach on the local level, the 

Commission finds that Congress did not 

intend to exempt covered modifications 

from compliance with generally 

applicable laws related to public health 

and safety. The Commission concludes 

that States and localities may require a 

covered request to comply with 

generally applicable building, 

structural, electrical, and safety codes or 

with other laws codifying objective 

standards reasonably related to health 

and safety, and that they may condition 

approval on such compliance. In 

particular, the Commission clarifies that 

section 6409(a) does not preclude States 

and localities from continuing to require 

compliance with generally applicable 

health and safety requirements on the 

placement and operation of backup 

power sources, including noise control 

ordinances if any. The Commission 

further clarifies that eligible facility 

requests covered by section 6409(a) 

must still comply with any relevant 

Federal requirement, including any 

applicable Commission, FAA, NEPA, or 

section 106 requirements. The 

Commission finds that this 

interpretation is supported in the 

record, addresses a concern raised by 

several municipal commenters and the 

IAC, and is consistent with the express 

direction in section 6409(a) that the 

provision is not intended to relieve the 

Commission from the requirements of 

NEPA and NHPA. 

102. In sum, the Commission finds 

that the definitions, criteria, and related 

clarifications it adopts for purposes of 

section 6409(a) will provide clarity and 

certainty, reducing delays and litigation, 

and thereby facilitate the rapid 

deployment of wireless infrastructure 

and promote advanced wireless 

broadband services. At the same time, 

the Commission concludes that its 

approach also addresses concerns 

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voiced by municipal commenters and 

reflects the priorities identified by the 

IAC. The Commission concludes that 

this approach reflects a reasonable 

interpretation of the language and 

purposes of section 6409(a) and will 

serve the public interest. 

2. Application Review Process, 

Including Timeframe for Review 

103. As an initial matter, the 

Commission finds that State or local 

governments may require parties 

asserting that proposed facilities 

modifications are covered under section 

6409(a) to file applications, and that 

these governments may review the 

applications to determine whether they 

constitute covered requests. As the 

Bureau observed in the Section 6409(a) 

PN, the statutory provision requiring a 

State or local government to approve an 

‘‘eligible facilities request’’ implies that 

the relevant government entity may 

require an applicant to file a request for 

approval. Further, nothing in the 

provision indicates that States or local 

governments must approve requests 

merely because applicants claim they 

are covered. Rather, under section 

6409(a), only requests that do in fact 

meet the provision’s requirements are 

entitled to mandatory approval. 

Therefore, States and local governments 

must have an opportunity to review 

applications to determine whether they 

are covered by section 6409(a), and if 

not, whether they should in any case be 

granted. 

104. The Commission further 

concludes that section 6409(a) warrants 

the imposition of certain requirements 

with regard to application processing, 

including a specific timeframe for State 

or local government review and a 

limitation on the documentation States 

and localities may require. While 

section 6409(a), unlike section 332(c)(7), 

does not expressly provide for a time 

limit or other procedural restrictions, 

the Commission concludes that certain 

limitations are implicit in the statutory 

requirement that a State or local 

government ‘‘may not deny, and shall 

approve’’ covered requests for wireless 

facility siting. In particular, the 

Commission concludes that the 

provision requires not merely approval 

of covered applications, but approval 

within a reasonable period of time 

commensurate with the limited nature 

of the review, whether or not a 

particular application is for ‘‘personal 

wireless service’’ facilities covered by 

section 332(c)(7). With no such 

limitation, a State or local government 

could evade its statutory obligation to 

approve covered applications by simply 

failing to act on them, or it could 

impose lengthy and onerous processes 

not justified by the limited scope of 

review contemplated by the provision. 

Such unreasonable delays not only 

would be inconsistent with the mandate 

to approve but also would undermine 

the important benefits that the provision 

is intended to provide to the economy, 

competitive wireless broadband 

deployment, and public safety. The 

Commission requires that States and 

localities grant covered requests within 

a specific time limit and pursuant to 

other procedures outlined below. 

105. The Commission finds 

substantial support in the record for 

adopting such requirements. It is clear 

from the record that there is significant 

dispute as to whether any time limit 

applies at all under section 6409(a) and, 

if so, what that limit is. The 

Commission also notes that there is 

already some evidence in the record, 

albeit anecdotal, of significant delays in 

the processing of covered requests 

under this new provision, which may be 

partly a consequence of the current 

uncertainty regarding the applicability 

of any time limit. Because the statutory 

language does not provide guidance on 

these requirements, the Commission is 

concerned that, without clarification, 

future disputes over the process could 

significantly delay the benefits 

associated with the statute’s 

implementation. Moreover, the 

Commission finds it important that all 

stakeholders have a clear understanding 

of when an applicant may seek relief 

from a State or municipal failure to act 

under section 6409(a). The Commission 

finds further support for establishing 

these process requirements in analogous 

State statutes, nearly all of which 

include a timeframe for review. 

106. Contrary to the suggestion of 

municipalities, the Commission 

disagrees that the Tenth Amendment 

prevents the Commission from 

exercising its authority under the 

Spectrum Act to implement and enforce 

the limitations imposed thereunder on 

State and local land use authority. 

These limitations do not require State or 

local authorities to review wireless 

facilities siting applications, but rather 

preempt them from choosing to exercise 

such authority under their laws other 

than in accordance with Federal law— 

i.e., to deny any covered requests. The 

Commission therefore adopts the 

following procedural requirements for 

processing applications under section 

6409(a). 

107. First, the Commission provides 

that in connection with requests 

asserted to be covered by section 

6409(a), State and local governments 

may only require applicants to provide 

documentation that is reasonably 

related to determining whether the 

request meets the requirements of the 

provision. The Commission finds that 

this restriction is appropriate in light of 

the limited scope of review applicable 

to such requests and that it will 

facilitate timely approval of covered 

requests. At the same time, under this 

standard, State or local governments 

have considerable flexibility in 

determining precisely what information 

or documentation to require. The 

Commission agrees with PCIA that 

States and localities may not require 

documentation proving the need for the 

proposed modification or presenting the 

business case for it. The Commission 

anticipates that over time, experience 

and the development of best practices 

will lead to broad standardization in the 

kinds of information required. As 

discussed above, even as to applications 

covered by section 6409(a), State and 

local governments may continue to 

enforce and condition approval on 

compliance with non-discretionary 

codes reasonably related to health and 

safety, including building and structural 

codes. The Commission finds that 

municipalities should have flexibility to 

decide when to require applicants to 

provide documentation of such 

compliance, as a single documentation 

submission may be more efficient than 

a series of submissions, and 

municipalities may also choose to 

integrate such compliance review into 

the zoning process. Accordingly, the 

Commission clarifies that this 

documentation restriction does not 

prohibit States and local governments 

from requiring documentation needed to 

demonstrate compliance with any such 

applicable codes. 

108. In addition to defining 

acceptable documentation requirements, 

the Commission establishes a specific 

and absolute timeframe for State and 

local processing of eligible facilities 

requests under section 6409(a). The 

Commission finds that a 60-day period 

for review, including review to 

determine whether an application is 

complete, is appropriate. In addressing 

this issue, it is appropriate to consider 

not only the record support for a time 

limit on review but also State statutes 

that facilitate collocation applications. 

Many of these statutes impose review 

time limits, thus providing valuable 

insight into States’ views on the 

appropriate amount of time. Missouri, 

New Hampshire, and Wisconsin, for 

example, have determined that 45 days 

is the maximum amount of time 

available to a municipality to review 

applications, while Georgia, North 

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Carolina, and Pennsylvania have 

adopted a 90-day review period, 

including review both for completeness 

and for approval. Michigan’s statute 

provides that after the application is 

filed, the locality has 14 days to deem 

the application complete and an 

additional 60 days to review. The 

Commission finds it appropriate to 

adopt a 60-day time period as the time 

limit for review of an application under 

section 6409(a). 

109. The Commission finds that a 

period shorter than the 90-day period 

applicable to review of collocations 

under section 332(c)(7) of the 

Communications Act is warranted to 

reflect the more restricted scope of 

review applicable to applications under 

section 6409(a). The Commission 

further finds that a 60-day period of 

review, rather than the 45-day period 

proposed by many industry 

commenters, is appropriate to provide 

municipalities with sufficient time to 

review applications for compliance with 

section 6409(a), because the timeframe 

sets an absolute limit that—in the event 

of a failure to act—results in a deemed 

grant. Thus, whereas a municipality 

may rebut a claim of failure to act under 

section 332(c)(7) if it can demonstrate 

that a longer review period was 

reasonable, that is not the case under 

section 6409(a). Rather, if an application 

covered by section 6409(a) has not been 

approved by a State or local government 

within 60 days from the date of filing, 

accounting for any tolling, as described 

below, the reviewing authority will have 

violated section 6409(a)’s mandate to 

approve and not deny the request, and 

the request will be deemed granted. 

110. The Commission further 

provides that the foregoing section 

6409(a) timeframe may be tolled by 

mutual agreement or in cases where the 

reviewing State or municipality informs 

the applicant in a timely manner that 

the application is incomplete. As with 

tolling for completeness under section 

332(c)(7) (as discussed in the R&O), an 

initial determination of incompleteness 

tolls the running of the period only if 

the State or local government provides 

notice to the applicant in writing within 

30 days of the application’s submission. 

The Commission also requires that any 

determination of incompleteness must 

clearly and specifically delineate the 

missing information in writing, similar 

to determinations of incompleteness 

under section 332(c)(7). Further, 

consistent with the documentation 

restriction established above, the State 

or municipality may only specify as 

missing information and supporting 

documents that are reasonably related to 

determining whether the request meets 

the requirements of section 6409(a). 

111. The timeframe for review will 

begin running again when the applicant 

makes a supplemental submission, but 

may be tolled again if the State or local 

government provides written notice to 

the applicant within 10 days that the 

application remains incomplete and 

specifically delineates which of the 

deficiencies specified in the original 

notice of incompleteness have not been 

addressed. The timeframe for review 

will be tolled in this circumstance until 

the applicant supplies the relevant 

authority with the information 

delineated. Consistent with 

determinations of incompleteness under 

section 332(c)(7) as described below, 

any second or subsequent determination 

that an application is incomplete may 

be based only on the applicant’s failure 

to provide the documentation or 

information the State or municipality 

required in its initial request for 

additional information. Further, if the 

10-day period passes without any 

further notices of incompleteness from 

the State or locality, the period for 

review of the application may not 

thereafter be tolled for incompleteness. 

112. The Commission further finds 

that the timeframe for review under 

section 6409(a) continues to run 

regardless of any local moratorium. This 

is once again consistent with its 

approach under section 332(c)(7), and is 

further warranted in light of section 

6409(a)’s direction that covered requests 

shall be approved ‘‘[n]otwithstanding 

. . . any other provision of law.’’ 

113. Some additional clarification of 

time periods and deadlines will assist in 

cases where both section 6409(a) and 

section 332(c)(7) apply. In particular, 

the Commission notes that States and 

municipalities reviewing an application 

under section 6409(a) will be limited to 

a restricted application record tailored 

to the requirements of that provision. As 

a result, the application may be 

complete for purposes of section 6409(a) 

review but may not include all of the 

information the State or municipality 

requires to assess applications not 

subject to section 6409(a). In such cases, 

if the reviewing State or municipality 

finds that section 6409(a) does not apply 

(because, for example, it proposes a 

substantial change), the Commission 

provides that the presumptively 

reasonable timeframe under section 

332(c)(7) will start to run from the 

issuance of the State’s or municipality’s 

decision that section 6409(a) does not 

apply. To the extent the State or 

municipality needs additional 

information at that point to assess the 

application under section 332(c)(7), it 

may seek additional information subject 

to the same limitations applicable to 

other section 332(c)(7) reviews. The 

Commission recognizes that, in such 

cases, there might be greater delay in the 

process than if the State or municipality 

had been permitted to request the 

broader documentation in the first 

place. The Commission finds that 

applicants are in a position to judge 

whether to seek approval under section 

6409(a), and the Commission expects 

they will have strong incentives to do so 

in a reasonable manner to avoid 

unnecessary delays. Finally, as the 

Commission proposed in the 

Infrastructure NPRM, the Commission 

finds that where both section 6409(a) 

and section 332(c)(7) apply, section 

6409(a) governs, consistent with the 

express language of section 6409(a) 

providing for approval 

‘‘[n]otwithstanding’’ section 332(c)(7) 

and with canons of statutory 

construction that a more recent statute 

takes precedence over an earlier one and 

that ‘‘normally the specific governs the 

general.’’ 

114. Beyond the guidance provided in 

the R&O, the Commission declines to 

adopt the other proposals put forth by 

commenters regarding procedures for 

the review of applications under section 

6409(a) or the collection of fees. The 

Commission concludes that its 

clarification and implementation of this 

statutory provision strikes the 

appropriate balance of ensuring the 

timely processing of these applications 

and preserving flexibility for State and 

local governments to exercise their 

rights and responsibilities. Given the 

limited record of problems 

implementing the provision, further 

action to specify procedures would be 

premature. 

3. Remedies 

115. After a careful assessment of the 

statutory provision and a review of the 

record, the Commission establishes a 

deemed granted remedy for cases in 

which the applicable State or municipal 

reviewing authority fails to issue a 

decision within 60 days (subject to any 

tolling, as described above) on an 

application submitted pursuant to 

section 6409(a). The Commission 

further concludes that a deemed grant 

does not become effective until the 

applicant notifies the reviewing 

jurisdiction in writing, after the time 

period for review by the State or 

municipal reviewing authority as 

prescribed in the Commission’s rules 

has expired, that the application has 

been deemed granted. 

116. The Commission’s reading of 

section 6409(a) supports this approach. 

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The provision states without 

equivocation that the reviewing 

authority ‘‘may not deny, and shall 

approve’’ any qualifying application. 

This directive leaves no room for a 

lengthy and discretionary approach to 

reviewing an application that meets the 

statutory criteria; once the application 

meets these criteria, the law forbids the 

State or local government from denying 

it. Moreover, while State and local 

governments retain full authority to 

approve or deny an application 

depending on whether it meets the 

provision’s requirements, the statute 

does not permit them to delay this 

obligatory and non-discretionary step 

indefinitely. In the R&O, the 

Commission defines objectively the 

statutory criteria for determining 

whether an application is entitled to a 

grant under this provision. Given the 

objective nature of this assessment, 

then, the Commission concludes that 

withholding a decision on an 

application indefinitely, even if an 

applicant can seek relief in court or in 

another tribunal, would be tantamount 

to denying it, in contravention of the 

statute’s pronouncement that reviewing 

authorities ‘‘may not deny’’ qualifying 

applications. The Commission finds that 

the text of section 6409(a) supports 

adoption of a deemed granted remedy, 

which will directly serve the broader 

goal of promoting the rapid deployment 

of wireless infrastructure. The 

Commission notes as well that its 

approach is consistent with other 

Federal agencies’ processes to address 

inaction by State and local authorities. 

117. Many municipalities oppose the 

adoption of a deemed granted remedy 

primarily on the ground that it arguably 

represents an intrusion into local 

decision-making authority. The 

Commission fully acknowledges and 

values the important role that local 

reviewing authorities play in the siting 

process, and, as the Commission stated 

in the Infrastructure NPRM, ‘‘[the 

Commission’s] goal is not to ‘operate as 

a national zoning board.’ ’’ At the same 

time, its authority and responsibility to 

implement and enforce section 6409(a) 

as if it were a provision of the 

Communications Act obligate the 

Commission to ensure effective 

enforcement of the congressional 

mandate reflected therein. To do so, 

given its ‘‘broad grant of rulemaking 

authority,’’ the importance of ensuring 

rapid deployment of commercial and 

public safety wireless broadband 

services as reflected in the adoption of 

the Spectrum Act, and in light of the 

record of disputes in this proceeding, as 

well as the prior experience of the 

Commission with delays in municipal 

action on wireless facility siting 

applications that led to the 2009 

Declaratory Ruling, the Commission 

concludes it is necessary to balance 

these federalism concerns against the 

need for ensuring prompt action on 

section 6409(a) applications. The 

Commission adopts this approach in 

tandem with several measures that 

safeguard the primacy of State and local 

government participation in local land 

use policy, to the extent consistent with 

the requirements of section 6409(a). 

First, the Commission has adopted a 60- 

day time period for States and localities 

to review applications submitted under 

section 6409(a). While many industry 

commenters proposed a 45-day review 

period based on the non-discretionary 

analysis that the provision requires, the 

Commission has provided more time in 

part to ensure that reviewing authorities 

have sufficient time to assess the 

applications. 

118. Second, the Commission is 

establishing a clear process for tolling 

the 60-day period when an applicant 

fails to submit a complete application, 

thus ensuring that the absence of 

necessary information does not prevent 

a State or local authority from 

completing its review before the time 

period expires. 

119. Third, even in the event of a 

deemed grant, the section 106 historic 

preservation review process—including 

coordination with State and Tribal 

historic preservation officers—will 

remain in place with respect to any 

proposed deployments in historic 

districts or on historic buildings (or 

districts and buildings eligible for such 

status). 

120. Fourth, a State or local authority 

may challenge an applicant’s written 

assertion of a deemed grant in any court 

of competent jurisdiction when it 

believes the underlying application did 

not meet the criteria in section 6409(a) 

for mandatory approval, would not 

comply with applicable building codes 

or other non-discretionary structural 

and safety codes, or for other reasons is 

not appropriately ‘‘deemed granted.’’ 

121. Finally, and perhaps most 

importantly, the deemed granted 

approach does not deprive States and 

localities of the opportunity to 

determine whether an application is 

covered; rather, it provides a remedy for 

a failure to act within the fixed but 

substantial time period within which 

they must determine, on a nondiscretionary and objective basis, 

whether an application fits within the 

parameters of section 6409(a). 

122. The Commission emphasizes as 

well that it expects deemed grants to be 

the exception rather than the rule. To 

the extent there have been any problems 

or delays due to ambiguity in the 

provision, the Commission anticipates 

that the framework it has established, 

including the specification of 

substantive and procedural rights and 

applicable remedies, will address many 

of these problems. The Commission 

anticipates as well that the prospect of 

a deemed grant will create significant 

incentives for States and municipalities 

to act in a timely fashion. 

123. With respect to the appropriate 

forum for redress or for resolving 

disputes, including disputes over the 

application of the deemed grant rule, 

the Commission finds that the most 

appropriate course for a party aggrieved 

by operation of section 6409(a) is to seek 

relief from a court of competent 

jurisdiction. Although the Commission 

finds that it has authority to resolve 

such disputes under its authority to 

implement and enforce that provision, 

the Commission also finds that 

requiring that these disputes be resolved 

in court, and not by the Commission, 

will better accommodate the role of the 

States and local authorities and serve 

the public interest for the reasons the 

municipal commenters identify and as 

discussed in the R&O. 

124. A number of factors persuade the 

Commission to require parties to 

adjudicate claims under section 6409(a) 

in court rather than before the 

Commission. First, Commission 

adjudication would impose significant 

burdens on localities, many of which 

are small entities with no representation 

in Washington, DC and no experience 

before the Commission. The possible 

need for testimony to resolve disputed 

factual issues, which may occur in these 

cases, would magnify the burden. The 

Commission is also concerned that it 

may simply lack the resources to 

adjudicate these matters in a timely 

fashion if the Commission enables 

parties to seek its review of local zoning 

disputes arising in as many as 38,000 

jurisdictions, thus thwarting Congress’s 

goal of speeding up the process. The 

Commission also agrees with 

municipalities that it does not have any 

particular expertise in resolving local 

zoning disputes, whereas courts have 

been adjudicating claims of failure to act 

on wireless facility siting applications 

since the adoption of section 332(c)(7). 

125. The Commission requires parties 

to bring claims related to section 6409(a) 

in a court of competent jurisdiction. 

Such claims would appear likely to fall 

into one of three categories. First, if the 

State or local authority has denied the 

application, an applicant might seek to 

challenge that denial. Second, if an 

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applicant invokes its deemed grant right 

after the requisite period of State or 

local authority inaction, that reviewing 

authority might seek to challenge the 

deemed grant. Third, an applicant 

whose application has been deemed 

granted might seek some form of 

judicial imprimatur for the grant by 

filing a request for declaratory judgment 

or other relief that a court may find 

appropriate. In light of the policy 

underlying section 6409(a) to ensure 

that covered requests are granted 

promptly, and in the self-interest of the 

affected parties, the Commission would 

expect that these parties would seek 

judicial review of any such claims 

relating to section 6409(a) 

expeditiously. The enforcement of such 

claims is a matter appropriately left to 

such courts of competent jurisdiction. 

Given the foregoing Federal interest 

reflected in section 6409(a), it would 

appear that the basis for equitable 

judicial remedies would diminish 

significantly absent prompt action by 

the aggrieved party. In its judgment, 

based on the record established in this 

proceeding, the Commission finds no 

reason why (absent a tolling agreement 

by parties seeking to resolve their 

differences) such claims cannot and 

should not be brought within 30 days of 

the date of the relevant event (i.e., the 

date of the denial of the application or 

the date of the notification by the 

applicant to the State or local authority 

of a deemed grant in accordance with 

the Commission’s rules). 

4. Non-application to States or 

Municipalities in Their Proprietary 

Capacities 

126. As proposed in the Infrastructure 

NPRM and supported by the record, the 

Commission concludes that section 

6409(a) applies only to State and local 

governments acting in their role as land 

use regulators and does not apply to 

such entities acting in their proprietary 

capacities. As discussed in the record, 

courts have consistently recognized that 

in ‘‘determining whether government 

contracts are subject to preemption, the 

case law distinguishes between actions 

a State entity takes in a proprietary 

capacity—actions similar to those a 

private entity might take—and its 

attempts to regulate.’’ As the Supreme 

Court has explained, ‘‘[i]n the absence 

of any express or implied implication by 

Congress that a State may not manage its 

own property when it pursues its purely 

proprietary interests, and when 

analogous private conduct would be 

permitted, this Court will not infer such 

a restriction.’’ Like private property 

owners, local governments enter into 

lease and license agreements to allow 

parties to place antennas and other 

wireless service facilities on localgovernment property, and the 

Commission finds no basis for applying 

section 6409(a) in those circumstances. 

The Commission finds that this 

conclusion is consistent with judicial 

decisions holding that sections 253 and 

332(c)(7) of the Communications Act do 

not preempt ‘‘non regulatory decisions 

of a state or locality acting in its 

proprietary capacity.’’ 

127. The Commission declines at this 

time to further elaborate as to how this 

principle should apply to any particular 

circumstance in connection with section 

6409(a). The Commission agrees with 

Alexandria et al. that the record does 

not demonstrate a present need to 

define what actions are and are not 

proprietary, and the Commission 

concludes in any case that such a task 

is best undertaken, to the extent 

necessary, in the context of a specific 

municipal action and associated record. 

5. Effective Date 

128. Based on its review of the record, 

the Commission is persuaded that a 

transition period is necessary and 

appropriate. The Commission agrees 

with certain municipal commenters that 

affected State and local governments 

may need time to make modifications to 

their laws and procedures to conform to 

and comply with the rules the 

Commission adopts in the R&O 

implementing and enforcing section 

6409(a), and that a transition period is 

warranted to give them time to do so. 

The Commission concludes as proposed 

by the IAC and other parties that the 

rules adopted to implement section 

6409(a) will take effect 90 days after 

Federal Register publication. 

IV. Section 332(c)(7) and the 2009 

Declaratory Ruling 

A. Background 

129. In 2009, the Commission adopted 

a Declaratory Ruling in response to a 

petition requesting clarification on two 

points: what constitutes a ‘‘reasonable 

period of time’’ after which an aggrieved 

applicant may file suit asserting a 

failure to act under section 332(c)(7), 

and whether a zoning authority may 

restrict competitive entry by multiple 

providers in a given area under section 

332(c)(7)(B)(i)(II). In the 2009 

Declaratory Ruling, the Commission 

interpreted a ‘‘reasonable period of 

time’’ under section 332(c)(7)(B)(ii) to be 

90 days for processing collocation 

applications, and 150 days for 

processing applications other than 

collocations. The Commission further 

determined that failure to meet the 

applicable timeframe presumptively 

constitutes a failure to act under section 

332(c)(7)(B)(v), enabling an applicant to 

pursue judicial relief within the next 30 

days. 

130. In the Infrastructure NPRM, 

while stating that it would not generally 

revisit the 2009 Declaratory Ruling, the 

Commission sought comment on six 

discrete issues arising under section 

332(c)(7) and the 2009 Declaratory 

Ruling: (1) Whether and how to clarify 

when a siting application is considered 

complete for the purpose of triggering 

the 2009 Declaratory Ruling’s shot 

clock; (2) whether to clarify that the 

presumptively reasonable period for 

State or local government action on an 

application runs regardless of any local 

moratorium; (3) whether the 2009 

Declaratory Ruling applies to DAS and 

small-cell facilities; (4) whether to 

clarify the types of actions that 

constitute ‘‘collocations’’ for purposes of 

triggering the shorter shot clock; (5) 

whether local ordinances establishing 

preferences for deployment on 

municipal property violate section 

332(c)(7)(B)(i)(I); and (6) whether to 

adopt an additional remedy for failures 

to act in violation of section 332(c)(7). 

B. Discussion 

1. Completeness of Applications 

131. The Commission finds that it 

should clarify under what conditions 

the presumptively reasonable 

timeframes may be tolled on grounds 

that an application is incomplete. As an 

initial matter, the Commission notes 

that under the 2009 Declaratory Ruling, 

the presumptively reasonable timeframe 

begins to run when an application is 

first submitted, not when it is deemed 

complete. Accordingly, to the extent 

municipalities have interpreted the 

clock to begin running only after a 

determination of completeness, that 

interpretation is incorrect. 

132. Further, consistent with 

proposals submitted by Crown Castle 

and PCIA, the Commission clarifies that, 

following a submission in response to a 

determination of incompleteness, any 

subsequent determination that an 

application remains incomplete must be 

based solely on the applicant’s failure to 

supply information that was requested 

within the first 30 days. The shot clock 

will begin running again after the 

applicant makes 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. 

In other words, a subsequent 

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determination of incompleteness can 

result in further tolling of the shot clock 

only if the local authority provides it to 

the applicant in writing within 10 days 

of the supplemental submission, 

specifically identifying the information 

the applicant failed to supply in 

response to the initial request. Once the 

10-day period passes, the period for 

review of the application may not 

thereafter be tolled for incompleteness. 

133. The Commission further 

provides that, in order to toll the 

timeframe for review on grounds of 

incompleteness, a municipality’s 

request for additional information must 

specify the code provision, ordinance, 

application instruction, or otherwise 

publically-stated procedures that 

require the information to be submitted. 

This requirement will avoid delays due 

to uncertainty or disputes over what 

documents or information are required 

for a complete application. Further, 

while some municipal commenters 

argue that ‘‘[n]ot all jurisdictions codify 

detailed application submittal 

requirements because doing so would 

require a code amendment for even the 

slightest change,’’ the Commission’s 

approach does not restrict them to 

reliance on codified documentation 

requirements. 

134. Beyond these procedural 

requirements, the Commission declines 

to enumerate what constitutes a 

‘‘complete’’ application. The 

Commission finds that State and local 

governments are best suited to decide 

what information they need to process 

an application. Differences between 

jurisdictions make it impractical for the 

Commission to specify what 

information should be included in an 

application. 

135. The Commission finds that these 

clarifications will provide greater 

certainty regarding the period during 

which the clock is tolled for 

incompleteness. This in turn provides 

clarity regarding the time at which the 

clock expires, at which point an 

applicant may bring suit based on a 

‘‘failure to act.’’ Further, the 

Commission expects that these 

clarifications will result in shared 

expectations among parties, thus 

limiting potential miscommunication 

and reducing the potential or need for 

serial requests for more information. 

These clarifications will facilitate faster 

application processing, reduce 

unreasonable delay, and accelerate 

wireless infrastructure deployment. 

2. Moratoria 

136. The Commission clarifies that 

the shot clock runs regardless of any 

moratorium. This is consistent with a 

plain reading of the 2009 Declaratory 

Ruling, which specifies the conditions 

for tolling and makes no provision for 

moratoria. Moreover, its conclusion that 

the clock runs regardless of any 

moratorium means that applicants can 

challenge moratoria in court when the 

shot clock expires without State or local 

government action, which is consistent 

with the case-by-case approach that 

courts have generally applied to 

moratoria under section 332(c)(7). This 

approach, which establishes clearly that 

an applicant can seek redress in court 

even when a jurisdiction has imposed a 

moratorium, will prevent indefinite and 

unreasonable delay of an applicant’s 

ability to bring suit. 

137. Some commenters contend that 

this approach would, in effect, 

improperly require municipal staff to 

simultaneously review and update their 

regulations to adapt to new technologies 

while also reviewing applications. The 

Commission recognizes that new 

technologies may in some cases warrant 

changes in procedures and codes, but 

finds no reason to conclude that the 

need for any such change should freeze 

all applications. The Commission is 

confident that industry and local 

governments can work together to 

resolve applications that may require 

more staff resources due to complexity, 

pending changes to the relevant siting 

regulations, or other special 

circumstances. Moreover, in those 

instances in which a moratorium may 

reasonably prevent a State or 

municipality from processing an 

application within the applicable 

timeframe, the State or municipality 

will, if the applicant seeks review, have 

an opportunity to justify the delay in 

court. The Commission clarifies that the 

shot clock continues to run regardless of 

any moratorium. 

138. The Commission declines at this 

time to determine that a moratorium 

that lasts longer than six months 

constitutes a per se violation of the 

obligation to take action in a reasonable 

period of time. Although some have 

argued that a six-month limit would 

‘‘discourage localities from 

circumventing the intent of the 

Commission’s shot clock rules,’’ others 

disagree, and the record provides 

insufficient evidence to support a per se 

determination at this juncture. Given its 

clarification that the presumptively 

reasonable timeframes apply regardless 

of moratoria, any moratorium that 

results in a delay of more than 90 days 

for a collocation application or 150 days 

for any other application will be 

presumptively unreasonable. 

3. Application to DAS and Small Cells 

139. The Commission clarifies that to 

the extent DAS or small-cell facilities, 

including third-party facilities such as 

neutral host DAS deployments, are or 

will be used for the provision of 

personal wireless services, their siting 

applications are subject to the same 

presumptively reasonable timeframes 

that apply to applications related to 

other personal wireless service facilities. 

The Commission notes that courts have 

addressed the issue and, consistent with 

its conclusion, have found that the 

timeframes apply to DAS and small-cell 

deployments. 

140. Some commenters argue that the 

shot clocks should not apply because 

some providers describe DAS and smallcell deployments as wireline, not 

wireless, facilities. Determining whether 

facilities are ‘‘personal wireless service 

facilities’’ subject to section 332(c)(7) 

does not rest on a provider’s 

characterization in another context; 

rather, the analysis turns simply on 

whether they are facilities used to 

provide personal wireless services. 

Based on its review of the record, the 

Commission finds no evidence 

sufficient to compel the conclusion that 

the characteristics of DAS and small-cell 

deployments somehow exclude them 

from section 332(c)(7) and the 2009 

Declaratory Ruling. For similar reasons, 

the Commission rejects Coconut Creek’s 

argument that the shot clocks should 

apply only to neutral host deployments. 

141. Some commenters suggest 

revising the Commission’s proposal on 

the grounds that the unique qualities of 

DAS and small-cell systems require 

longer timeframes for municipal review. 

The Commission declines to adjust the 

timelines as these commenters suggest. 

The Commission notes that the 

timeframes are presumptive, and the 

Commission expects applicants and 

State or local governments to agree to 

extensions in appropriate cases. 

Moreover, courts will be positioned to 

assess the facts of individual cases— 

including whether the applicable time 

period ‘‘t[ook] into account the nature 

and scope of [the] request’’—in 

instances where the shot clock expires 

and the applicant seeks review. The 

Commission also notes that DAS and 

small-cell deployments that involve 

installation of new poles will trigger the 

150-day time period for new 

construction that many municipal 

commenters view as reasonable for DAS 

and small-cell applications. The 

Commission finds it unnecessary to 

modify the presumptive timeframes as 

they apply to DAS applications. 

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4. Definition of Collocation 

142. After reviewing the record, the 

Commission declines to make any 

changes or clarifications to the existing 

standard established in the 2009 

Declaratory Ruling for applying the 90- 

day shot clock for collocations. In 

particular, the Commission declines to 

apply the ‘‘substantial change’’ test that 

the Commission establishes in the R&O 

for purposes of section 6409(a). The 

Commission observes that sections 

6409(a) and 332(c)(7) serve different 

purposes, and the Commission finds 

that the tests for ‘‘substantial change’’ 

and ‘‘substantial increase in size’’ are 

appropriately distinct. More 

specifically, the test for a ‘‘substantial 

increase in size’’ under section 332(c)(7) 

affects only the length of time for State 

or local review, while the test the 

Commission adopts under section 

6409(a) identifies when a State or 

municipality must grant an application. 

This is a meaningful distinction that 

merits a more demanding standard 

under section 6409(a). 

143. Considering that these provisions 

cover different (though overlapping) 

pools of applications, it is appropriate to 

apply them differently. Further, the 

Commission finds no compelling 

evidence in the record that using the 

same test for both provisions would 

provide significant administrative 

efficiencies or limit confusion, as some 

have argued. The Commission preserves 

distinct standards under the two 

provisions. 

5. Preferences for Deployments on 

Municipal Property 

144. The Commission finds 

insufficient evidence in the record to 

make a determination that municipal 

property preferences are per se 

unreasonably discriminatory or 

otherwise unlawful under section 

332(c)(7). To the contrary, most industry 

and municipal commenters support the 

conclusion that many such preferences 

are valid. Consistent with the majority 

of comments on this issue, the 

Commission declines at this time to find 

municipal property preferences per se 

unlawful under section 332(c)(7). 

6. Remedies 

145. After reviewing the record, the 

Commission declines to adopt an 

additional remedy for State or local 

government failures to act within the 

presumptively reasonable time limits. 

The Commission also notes that a party 

pursuing a ‘‘failure to act’’ claim may 

ask the reviewing court for an 

injunction granting the application. 

Moreover, in the case of a failure to act 

within the reasonable timeframes set 

forth in the Commission’s rules, and 

absent some compelling need for 

additional time to review the 

application, the Commission believes 

that it would also be appropriate for the 

courts to treat such circumstances as 

significant factors weighing in favor of 

such relief. 

V. Procedural Matters 

A. Final Regulatory Flexibility Analysis 

146. As required by section 603 of the 

Regulatory Flexibility Act (RFA), the 

Commission has prepared a Final 

Regulatory Flexibility Analysis (FRFA) 

of the expected impact on small entities 

of the requirements adopted in the R&O. 

To the extent that any statement 

contained in the FRFA is perceived as 

creating ambiguity with respect to the 

Commission’s rules, or statements made 

in the R&O, the rules and R&O 

statements shall be controlling. 

1. Need for, and Objectives of, the 

Report and Order 

147. In the R&O, the Commission 

takes important steps to promote the 

deployment of wireless infrastructure, 

recognizing that it is the physical 

foundation that supports all wireless 

communications. The R&O adopts and 

clarifies rules in four specific areas in an 

effort to reduce regulatory obstacles and 

bring efficiency to wireless facility 

siting and construction. The 

Commission does this by eliminating 

unnecessary reviews, thus reducing the 

burden on State and local jurisdictions 

and also on industry, including small 

businesses. In particular, the 

Commission updates and tailors the 

manner in which the Commission 

evaluates the impact of proposed 

deployments on the environment and 

historic properties. The Commission 

also adopts rules to clarify and 

implement statutory requirements 

related to State and local government 

review of infrastructure siting 

applications, and the Commission 

adopts an exemption from its 

environmental public notification 

process for towers that are in place for 

only short periods of time. Taken 

together, these steps will further 

facilitate the delivery of more wireless 

capacity in more locations to consumers 

throughout the United States. Its actions 

will expedite the deployment of 

equipment that does not harm the 

environment or historic properties, as 

well as recognize the limits on Federal, 

State, Tribal, and municipal resources 

available to review those cases that may 

adversely affect the environment or 

historic properties. 

148. First, the Commission adopts 

measures to refine its environmental 

and historic preservation review 

processes under NEPA and NHPA to 

account for new wireless technologies, 

including physically small facilities like 

those used in DAS networks and smallcell systems that are a fraction of the 

size of macrocell installations. Among 

these, the Commission expands an 

existing categorical exclusion from 

NEPA review so that it applies not only 

to collocations on buildings and towers, 

but also to collocations on other 

structures like utility poles. The 

Commission also adopts a new 

categorical exclusion from NEPA review 

for some kinds of deployments in 

utilities or communications rights-ofway. With respect to NHPA, the 

Commission creates new exclusions 

from section 106 review to address 

certain collocations that are currently 

subject to review only because of the age 

of the supporting structure. The 

Commission takes these steps to assure 

that, as the Commission continues to 

meet its responsibilities under NEPA 

and NHPA, the Commission also fulfills 

its obligation under the 

Communications Act to ensure that 

rapid, efficient, and affordable radio 

communications services are available 

to all Americans. 

149. Second, regarding temporary 

towers, the Commission adopts a 

narrow exemption from the 

Commission’s requirement that owners 

of proposed towers requiring ASR 

provide 30 days of national and local 

notice to give members of the public an 

opportunity to comment on the 

proposed tower’s potential 

environmental effects. The exemption 

from notification requirements applies 

only to proposed temporary towers 

meeting defined criteria, including 

limits on the size and duration of the 

installation, that greatly reduce the 

likelihood of any significant 

environmental effects. Allowing 

licensees to deploy temporary towers 

meeting these criteria without first 

having to complete the Commission’s 

environmental notification process will 

enable them to more effectively respond 

to emergencies, natural disasters, and 

other planned and unplanned shortterm spikes in demand without 

undermining the purposes of the 

notification process. This exemption 

will ‘‘remove an administrative obstacle 

to the availability of broadband and 

other wireless services during major 

events and unanticipated periods of 

localized high demand’’ where 

expanded or substitute service is needed 

quickly. 

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150. Third, the Commission adopts 

rules to implement and enforce section 

6409(a) of the Spectrum Act. Section 

6409(a) provides, in part, that ‘‘a State 

or local government may not deny, and 

shall approve, any eligible facilities 

request for a modification of an existing 

wireless tower or base station that does 

not substantially change the physical 

dimensions of such tower or base 

station.’’ By requiring timely approval of 

eligible requests, Congress intended to 

advance wireless broadband service for 

both public safety and commercial 

users. Section 6409(a) includes a 

number of undefined terms that bear 

directly on how the provision applies to 

infrastructure deployments, and the 

record confirms that there are 

substantial disputes on a wide range of 

interpretive issues under the provision. 

The Commission adopts rules that 

clarify many of these terms and enforce 

their requirements, thus advancing 

Congress’s goal of facilitating rapid 

deployment. These rules will serve the 

public interest by providing guidance to 

all stakeholders on their rights and 

responsibilities under the provision, 

reducing delays in the review process 

for wireless infrastructure 

modifications, and facilitating the rapid 

deployment of wireless infrastructure 

and promoting advanced wireless 

broadband services. 

151. Finally, the Commission clarifies 

issues related to section 332(c)(7) of the 

Communications Act and the 

Commission’s 2009 Declaratory Ruling. 

Among other things, the Commission 

explains when a siting application is 

complete so as to trigger the 

presumptively reasonable timeframes 

for local and State review of siting 

applications under the 2009 Declaratory 

Ruling, and how the shot clock 

timeframes apply to local moratoria and 

DAS or small-cell facilities. These 

clarifications will eliminate many 

disputes under section 332(c)(7), 

provide certainty about timing related to 

siting applications (including the time 

at which applicants may seek judicial 

relief), and preserve State and 

municipal governments’ critical role in 

the siting application process. 

152. Taken together, the actions the 

Commission takes in the R&O will 

enable more rapid deployment of vital 

wireless facilities, delivering broadband 

and wireless innovations to consumers 

across the country. At the same time, 

they will safeguard the environment, 

preserve historic properties, protect the 

interest of Tribal Nations in their 

ancestral lands and cultural legacies, 

and address municipalities’ concerns 

over impacts to aesthetics and other 

local values. 

2. Summary of Significant Issues Raised 

by Public Comments in Response to the 

IRFA 

153. No commenters directly 

responded to the IRFA. Some 

commenters raised issues of particular 

relevance to small entities, and the 

Commission addresses those issues in 

the FRFA. 

3. Response to Comments by the Chief 

Counsel for Advocacy of the Small 

Business Administration 

154. Pursuant to the Small Business 

Jobs Act of 2010, 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. The Chief Counsel did not 

file any comments in response to the 

proposed rules in this proceeding. 

4. Description and Estimate of the 

Number of Small Entities To Which 

Rules Will Apply 

155. The RFA directs the Commission 

to provide a description of and, where 

feasible, an estimate of the number of 

small entities that will be affected by the 

rules, if adopted. The RFA generally 

defines the term ‘‘small entity’’ as 

having the same meaning as the terms 

‘‘small business,’’ ‘‘small organization,’’ 

and ‘‘small government 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. 

156. The R&O adopts rule changes 

regarding local and Federal regulation of 

the siting and deployment of 

communications towers and other 

wireless facilities. Due to the number 

and diversity of owners of such 

infrastructure and other responsible 

parties, including small entities that are 

Commission licensees as well as nonlicensees, the Commission classifies and 

quantify them in the remainder of this 

section. 

157. Small Businesses, Small 

Organizations, and Small Governmental 

Jurisdictions. The Commission’s action 

may, over time, affect a variety of small 

entities. To assist in assessing the R&O’s 

effect on these entities, the Commission 

describes three comprehensive 

categories—small businesses, small 

organizations, and small governmental 

jurisdictions—that encompass entities 

that could be directly affected by the 

rules the Commission adopts. As of 

2010, there were 27.9 million small 

businesses in the United States, 

according to the SBA. A ‘‘small 

organization’’ is generally ‘‘any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field.’’ Nationwide, as of 

2007, there were approximately 

1,621,315 small organizations. Finally, 

the term ‘‘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.’’ Census 

Bureau data for 2007 indicate that there 

were 89,527 governmental jurisdictions 

in the United States. The Commission 

estimates that, of this total, as many as 

88,761 entities may qualify as ‘‘small 

governmental jurisdictions.’’ Thus, the 

Commission estimates that most 

governmental jurisdictions are small. 

158. Wireless Telecommunications 

Carriers (except satellite). The Census 

Bureau defines this category as follows: 

‘‘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 phone services, paging 

services, wireless Internet access, and 

wireless video services.’’ The 

appropriate size standard under SBA 

rules is for the category Wireless 

Telecommunications Carriers (except 

Satellite). In this category, a business is 

small if it has 1,500 or fewer employees. 

For this category, census data for 2007 

show that there were 1,383 firms that 

operated for the entire year. Of this 

total, 1,368 firms had employment of 

999 or fewer employees and 15 had 

employment of 1000 employees or 

more. According to Commission data, 

413 carriers reported that they were 

engaged in the provision of wireless 

telephony, including cellular service, 

PCS, and Specialized Mobile Radio 

(SMR) telephony services. Of these, an 

estimated 261 have 1,500 or fewer 

employees and 152 have more than 

1,500 employees. Consequently, the 

Commission estimates that 

approximately half or more of these 

firms can be considered small. Thus, 

using available data, the Commission 

estimates that the majority of wireless 

firms can be considered small. 

159. Personal Radio Services. 

Personal radio services provide shortrange, low-power radio for personal 

communications, radio signaling, and 

business communications not provided 

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for in other services. Personal radio 

services include services operating in 

spectrum licensed under part 95 of the 

Commission’s rules. These services 

include Citizen Band Radio Service, 

General Mobile Radio Service, Radio 

Control Radio Service, Family Radio 

Service, Wireless Medical Telemetry 

Service, Medical Implant 

Communications Service, Low Power 

Radio Service, and Multi-Use Radio 

Service. There are a variety of methods 

used to license the spectrum in these 

rule parts, from licensing by rule, to 

conditioning operation on successful 

completion of a required test, to sitebased licensing, to geographic area 

licensing. Under the RFA, the 

Commission is required to make a 

determination of which small entities 

are directly affected by the rules the 

Commission adopts. Since all such 

entities are wireless, the Commission 

applies the definition of Wireless 

Telecommunications Carriers (except 

Satellite), pursuant to which a small 

entity is defined as employing 1,500 or 

fewer persons. Many of the licensees in 

these services are individuals, and thus 

are not small entities. In addition, due 

to the mostly unlicensed and shared 

nature of the spectrum utilized in many 

of these services, the Commission lacks 

direct information upon which to base 

an estimation of the number of small 

entities under an SBA definition that 

might be directly affected by the R&O. 

160. Public Safety Radio Services. 

Public safety radio services include 

police, fire, local government, forestry 

conservation, highway maintenance, 

and emergency medical services. There 

are a total of approximately 127,540 

licensees within these services. 

Governmental entities as well as private 

businesses comprise the licensees for 

these services. All governmental entities 

in jurisdictions with populations of less 

than 50,000 fall within the definition of 

a small entity. 

161. Private Land Mobile Radio. 

Private Land Mobile Radio (PLMR) 

systems serve an essential role in a 

range of industrial, business, land 

transportation, and public safety 

activities. These radios are used by 

companies of all sizes operating in all 

U.S. business categories that operate 

and maintain 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 

phone services, paging services, 

wireless Internet access, and wireless 

video services. The SBA has not 

developed a definition of small entity 

specifically applicable to PLMR 

licensees due to the vast array of PLMR 

users. The Commission believes that the 

most appropriate classification for 

PLMR is Wireless Communications 

Carriers (except satellite). The size 

standard for that category is that a 

business is small if it has 1,500 or fewer 

employees. For this category, census 

data for 2007 show that there were 

11,163 establishments that operated for 

the entire year. Of this total, 10,791 

establishments had employment of 999 

or fewer employees and 372 had 

employment of 1000 employees or 

more. Thus under this category and the 

associated small business size standard, 

the Commission estimates that the 

majority of PLMR licensees are small 

entities that may be affected by its 

action. 

162. Similarly, according to 

Commission data, 413 carriers reported 

that they were engaged in the provision 

of wireless telephony, including cellular 

service, PCS, and SMR telephony 

services. Of these, an estimated 261 

have 1,500 or fewer employees and 152 

have more than 1,500 employees. 

Consequently, the Commission 

estimates that approximately half or 

more of these firms can be considered 

small. Thus, using available data, the 

Commission estimates that the majority 

of wireless firms can be considered 

small. 

163. The Commission’s 1994 Annual 

Report on PLMRs indicates that at the 

end of fiscal year 1994 there were 

1,087,267 licensees operating 

12,481,989 transmitters in the PLMR 

bands below 512 MHz. Because any 

entity engaged in a commercial activity 

is eligible to hold a PLMR license, the 

rules the Commission adopts could 

potentially impact every small business 

in the United States. 

164. Multiple Address Systems. 

Entities using Multiple Address Systems 

(MAS) spectrum, in general, fall into 

two categories: (1) Those using the 

spectrum for profit-based uses, and (2) 

those using the spectrum for private 

internal uses. With respect to the first 

category, the Commission defines 

‘‘small entity’’ for MAS licensees as an 

entity that has average annual gross 

revenues of less than $15 million over 

the three previous calendar years. ‘‘Very 

small business’’ is defined as an entity 

that, together with its affiliates, has 

average annual gross revenues of not 

more than $3 million over the preceding 

three calendar years. The SBA has 

approved these definitions. The 

majority of MAS operators are licensed 

in bands where the Commission has 

implemented a geographic area 

licensing approach that requires the use 

of competitive bidding procedures to 

resolve mutually exclusive applications. 

The Commission’s licensing database 

indicates that, as of April 16, 2010, there 

were a total of 11,653 site-based MAS 

station authorizations. Of these, 58 

authorizations were associated with 

common carrier service. In addition, the 

Commission’s licensing database 

indicates that, as of April 16, 2010, there 

were a total of 3,330 Economic Area 

market area MAS authorizations. The 

Commission’s licensing database 

indicates that, as of April 16, 2010, of 

the 11,653 total MAS station 

authorizations, 10,773 authorizations 

were for private radio service. In 

addition, an auction for 5,104 MAS 

licenses in 176 EAs was conducted in 

2001. Seven winning bidders claimed 

status as small or very small businesses 

and won 611 licenses. In 2005, the 

Commission completed an auction 

(Auction 59) of 4,226 MAS licenses in 

the Fixed Microwave Services from the 

928/959 and 932/941 MHz bands. 

Twenty-six winning bidders won a total 

of 2,323 licenses. Of the 26 winning 

bidders in this auction, five claimed 

small business status and won 1,891 

licenses. 

165. With respect to the second 

category, which consists of entities that 

use, or seek to use, MAS spectrum to 

accommodate their own internal 

communications needs, MAS serves an 

essential role in a range of industrial, 

safety, business, and land transportation 

activities. MAS radios are used by 

companies of all sizes, operating in 

virtually all U.S. business categories, 

and by all types of public safety entities. 

For the majority of private internal 

users, the definition developed by the 

SBA would be more appropriate than 

the Commission’s definition. The 

applicable definition of small entity in 

this instance appears to be the ‘‘Wireless 

Telecommunications Carriers (except 

satellite)’’ definition under the SBA 

rules. Under that SBA category, a 

business is small if it has 1,500 or fewer 

employees. For this category, census 

data for 2007 show that there were 

11,163 establishments that operated for 

the entire year. Of this total, 10,791 

establishments had employment of 99 or 

fewer employees and 372 had 

employment of 100 employees or more. 

Thus under this category and the 

associated small business size standard, 

the Commission estimates that the 

majority of wireless telecommunications 

carriers (except satellite) are small 

entities that may be affected by its 

action. 

166. Broadband Radio Service and 

Educational Broadband Service. 

Broadband Radio Service systems— 

previously referred to as Multipoint 

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Distribution Service (MDS) and 

Multichannel Multipoint Distribution 

Service systems, and ‘‘wireless cable’’— 

transmit video programming to 

subscribers and provide two-way high 

speed data operations using the 

microwave frequencies of the 

Broadband Radio Service (BRS) and 

Educational Broadband Service (EBS) 

(previously referred to as the 

Instructional Television Fixed Service). 

In connection with the 1996 BRS 

auction, the Commission established a 

small business size standard as an entity 

that had annual average annual gross 

revenues of no more than $40 million 

over the previous three calendar years. 

The BRS auctions resulted in 67 

successful bidders obtaining licensing 

opportunities for 493 Basic Trading 

Areas (BTAs). Of the 67 auction 

winners, 61 met the definition of a small 

business. BRS also includes licensees of 

stations authorized prior to the auction. 

The Commission previously estimated 

that of the 61 small business BRS 

auction winners, based on its review of 

licensing records, 48 remain small 

business licensees. In addition to the 48 

small businesses that hold BTA 

authorizations, there are approximately 

86 incumbent BRS licensees that are 

considered small entities; 18 incumbent 

BRS licensees do not meet the small 

business size standard. After adding the 

number of small business auction 

licensees to the number of incumbent 

licensees not already counted, there are 

currently approximately 133 BRS 

licensees that are defined as small 

businesses under either the SBA’s rules 

or the Commission’s rules. In 2009, the 

Commission conducted Auction 86, 

which involved the sale of 78 licenses 

in the BRS areas. The Commission 

established three small business size 

standards that were used in Auction 86: 

(i) An entity with attributed average 

annual gross revenues that exceeded 

$15 million and did not exceed $40 

million for the preceding three years 

was considered a small business; (ii) an 

entity with attributed average annual 

gross revenues that exceeded $3 million 

and did not exceed $15 million for the 

preceding three years was considered a 

very small business; and (iii) an entity 

with attributed average annual gross 

revenues that did not exceed $3 million 

for the preceding three years was 

considered an entrepreneur. Auction 86 

concluded in 2009 with the sale of 61 

licenses. Of the 10 winning bidders, two 

bidders that claimed small business 

status won four licenses; one bidder that 

claimed very small business status won 

three licenses; and two bidders that 

claimed entrepreneur status won six 

licenses. The Commission notes that, as 

a general matter, the number of winning 

bidders that qualify as small businesses 

at the close of an auction does not 

necessarily represent the number of 

small businesses currently in service. 

167. In addition, the SBA’s placement 

of Cable Television Distribution 

Services in the category of Wired 

Telecommunications Carriers is 

applicable to cable-based educational 

broadcasting services. Since 2007, 

Wired Telecommunications Carriers 

have been defined as follows: ‘‘This 

industry comprises establishments 

primarily engaged in operating and/or 

providing access to transmission 

facilities and infrastructure that they 

own and/or lease for the transmission of 

voice, data, text, sound, and video using 

wired telecommunications networks. 

Transmission facilities may be based on 

a single technology or a combination of 

technologies.’’ Establishments in this 

industry use the wired 

telecommunications network facilities 

that they operate to provide a variety of 

services, such as wired telephony 

services, including VoIP services; wired 

(cable) audio and video programming 

distribution; and wired broadband 

Internet services. Establishments 

providing satellite television 

distribution services using facilities and 

infrastructure that they operate are 

included in this industry. The SBA has 

determined that a business in this 

category is a small business if it has 

1,500 or fewer employees. Census data 

for 2007 shows that there were 3,188 

firms in this category that operated for 

the duration of that year. Of those, 3,144 

had fewer than 1000 employees, and 44 

firms had more than 1000 employees. 

Thus under this category and the 

associated small business size standard, 

the majority of such firms can be 

considered small. In addition to Census 

data, the Commission’s Universal 

Licensing System indicates that as of 

July 2013, there are 2,236 active EBS 

licenses. The Commission estimates that 

of these 2,236 licenses, the majority are 

held by non-profit educational 

institutions and school districts, which 

are by statute defined as small 

businesses. 

168. Location and Monitoring Service 

(LMS). LMS systems use non-voice 

radio techniques to determine the 

location and status of mobile radio 

units. For purposes of auctioning LMS 

licenses, the Commission has defined a 

‘‘small business’’ as an entity that, 

together with controlling interests and 

affiliates, has average annual gross 

revenues for the preceding three years 

not to exceed $15 million. A ‘‘very small 

business’’ is defined as an entity that, 

together with controlling interests and 

affiliates, has average annual gross 

revenues for the preceding three years 

not to exceed $3 million. These 

definitions have been approved by the 

SBA. An auction for LMS licenses 

commenced on February 23, 1999 and 

closed on March 5, 1999. Of the 528 

licenses auctioned, 289 licenses were 

sold to four small businesses. 

169. Television Broadcasting. This 

Economic Census category ‘‘comprises 

establishments primarily engaged in 

broadcasting images together with 

sound. These establishments operate 

television broadcasting studios and 

facilities for the programming and 

transmission of programs to the public.’’ 

The SBA has created the following 

small business size standard for such 

businesses: Those having $38.5 million 

or less in annual receipts. The 2007 U.S. 

Census indicates that 2,076 television 

stations operated in that year. Of that 

number, 1,515 had annual receipts of 

$10,000,000 dollars or less, and 561 had 

annual receipts of more than 

$10,000,000. Since the Census has no 

additional classifications on the basis of 

which to identify the number of stations 

whose receipts exceeded $38.5 million 

in that year, the Commission concludes 

that the majority of television stations 

were small under the applicable SBA 

size standard. 

170. Apart from the U.S. Census, the 

Commission has estimated the number 

of licensed commercial television 

stations to be 1,387. In addition, 

according to Commission staff review of 

the BIA Advisory Services, LLC’s Media 

Access Pro Television Database on 

March 28, 2012, about 950 of an 

estimated 1,300 commercial television 

stations (or approximately 73 percent) 

had revenues of $14 million or less. The 

Commission estimates that the majority 

of commercial television broadcasters 

are small entities. 

171. The Commission notes, that in 

assessing whether a business concern 

qualifies as small under the above 

definition, business (control) affiliations 

must be included. Its estimate likely 

overstates the number of small entities 

that might be affected by its action 

because the revenue figure on which it 

is based does not include or aggregate 

revenues from affiliated companies. In 

addition, an element of the definition of 

‘‘small business’’ is that the entity not 

be dominant in its field of operation. 

The Commission is unable at this time 

to define or quantify the criteria that 

would establish whether a specific 

television station is dominant in its field 

of operation. The estimate of small 

businesses to which rules may apply 

does not exclude any television station 

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from the definition of a small business 

on this basis and is possibly overinclusive to that extent. 

172. In addition, the Commission has 

estimated the number of licensed 

noncommercial educational (NCE) 

television stations to be 395. These 

stations are non-profit, and considered 

to be small entities. 

173. There are also 2,414 LPTV 

stations, including Class A stations, and 

4,046 TV translator stations. Given the 

nature of these services, the 

Commission will presume that all of 

these entities qualify as small entities 

under the above SBA small business 

size standard. 

174. Radio Broadcasting. The SBA 

defines a radio broadcast station as a 

small business if it has no more than 

$35.5 million in annual receipts. 

Business concerns included in this 

category are those ‘‘primarily engaged in 

broadcasting aural programs by radio to 

the public.’’ According to review of the 

BIA Publications, Inc. Master Access 

Radio Analyzer Database as of 

November 26, 2013, about 11,331 (or 

about 99.9 percent) of 11,341 

commercial radio stations have 

revenues of $38.5 million or less and 

thus qualify as small entities under the 

SBA definition. The Commission notes 

that in assessing whether a business 

concern qualifies as small under the 

above definition, revenues from 

business (control) affiliations must be 

included. This estimate likely overstates 

the number of small entities that might 

be affected, because the revenue figure 

on which it is based does not include or 

aggregate revenues from affiliated 

companies. 

175. In addition, an element of the 

definition of ‘‘small business’’ is that the 

entity not be dominant in its field of 

operation. The Commission is unable at 

this time to define or quantify the 

criteria that would establish whether a 

specific radio station is dominant in its 

field of operation. The estimate of small 

businesses to which rules may apply 

does not exclude any radio station from 

the definition of a small business on this 

basis and may be over-inclusive to that 

extent. Also, as noted, an additional 

element of the definition of ‘‘small 

business’’ is that the entity must be 

independently owned and operated. 

The Commission notes that it can be 

difficult to assess this criterion in the 

context of media entities and the 

estimates of small businesses to which 

they apply may be over-inclusive to this 

extent. 

176. FM translator stations and low 

power FM stations. The rules and 

clarifications the Commission adopts 

could affect licensees of FM translator 

and booster stations and low power FM 

(LPFM) stations, as well as potential 

licensees in these radio services. The 

same SBA definition that applies to 

radio broadcast licensees would apply 

to these stations. The SBA defines a 

radio broadcast station as a small 

business if such station has no more 

than $38.5 million in annual receipts. 

Currently, there are approximately 6,155 

licensed FM translator and booster 

stations and 864 licensed LPFM 

stations. Given the nature of these 

services, the Commission will presume 

that all of these licensees qualify as 

small entities under the SBA definition. 

177. Multichannel Video Distribution 

and Data Service (MVDDS). MVDDS is 

a terrestrial fixed microwave service 

operating in the 12.2–12.7 GHz band. 

The Commission adopted criteria for 

defining three groups of small 

businesses for purposes of determining 

their eligibility for special provisions 

such as bidding credits. It defined a very 

small business as an entity with average 

annual gross revenues not exceeding $3 

million for the preceding three years; a 

small business as an entity with average 

annual gross revenues not exceeding 

$15 million for the preceding three 

years; and an entrepreneur as an entity 

with average annual gross revenues not 

exceeding $40 million for the preceding 

three years. These definitions were 

approved by the SBA. On January 27, 

2004, the Commission completed an 

auction of 214 MVDDS licenses 

(Auction No. 53). In this auction, ten 

winning bidders won a total of 192 

MVDDS licenses. Eight of the ten 

winning bidders claimed small business 

status and won 144 of the licenses. The 

Commission also held an auction of 

MVDDS licenses on December 7, 2005 

(Auction 63). Of the three winning 

bidders who won 22 licenses, two 

winning bidders, winning 21 of the 

licenses, claimed small business status. 

178. Satellite Telecommunications. 

Two economic census categories 

address the satellite industry. Both 

establish a small business size standard 

of $32.54 million or less in annual 

receipts. 

179. The first category, ‘‘Satellite 

Telecommunications,’’ ‘‘comprises 

establishments primarily engaged in 

providing telecommunications services 

to other establishments in the 

telecommunications and broadcasting 

industries by forwarding and receiving 

communications signals via a system of 

satellites or reselling satellite 

telecommunications.’’ Census Bureau 

data for 2007 show that 607 Satellite 

Telecommunications establishments 

operated for that entire year. Of this 

total, 533 had annual receipts of under 

$10 million, and 74 establishments had 

receipts of $10 million or more. 

Consequently, the Commission 

estimates that the majority of Satellite 

Telecommunications firms are small 

entities that might be affected by its 

action. 

180. The second category, ‘‘All Other 

Telecommunications,’’ comprises 

‘‘establishments primarily engaged in 

providing specialized 

telecommunications services, such as 

satellite tracking, communications 

telemetry, and radar station operation. 

This industry also includes 

establishments primarily engaged in 

providing satellite terminal stations and 

associated facilities connected with one 

or more terrestrial systems and capable 

of transmitting telecommunications to, 

and receiving telecommunications from, 

satellite systems. Establishments 

providing Internet services or voice over 

Internet protocol (VoIP) services via 

client-supplied telecommunications 

connections are also included in this 

industry.’’ For this category, Census 

data for 2007 shows that there were a 

total of 2,639 establishments that 

operated for the entire year. Of those, 

2,333 operated with annual receipts of 

less than $10 million and 306 with 

annual receipts of $10 million or more. 

Consequently, the Commission 

estimates that a majority of All Other 

Telecommunications establishments are 

small entities that might be affected by 

its action. 

181. Non-Licensee Tower Owners. 

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 on FCC Form 854. 

Thus, non-licensee tower owners may 

be subject to the environmental 

notification requirements associated 

with ASR registration, and may benefit 

from the exemption for certain 

temporary antenna structures that the 

Commission adopts in the R&O. In 

addition, non-licensee tower owners 

may be affected by its interpretations of 

section 6409(a) of the Spectrum Act or 

by its revisions to its interpretation of 

section 332(c)(7) of the Communications 

Act. 

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182. As of September 5, 2014, the 

ASR database includes approximately 

116,643 registration records reflecting a 

’’Constructed’’ status and 13,972 

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 cannot 

estimate the number of tower owners 

that would be subject to the rules the 

Commission adopts. Moreover, the SBA 

has not developed a size standard for 

small businesses in the category ‘‘Tower 

Owners.’’ The Commission is unable to 

determine the number of non-licensee 

tower owners that are small entities. 

The Commission believes that when all 

entities owning 10 or fewer towers and 

leasing space for collocation are 

included, non-licensee tower owners 

number in the thousands, and that 

nearly all of these qualify as small 

businesses under the SBA’s definition 

for ‘‘All Other Telecommunications.’’ In 

addition, there may be other nonlicensee owners of other wireless 

infrastructure, including DAS and small 

cells that might be affected by the 

regulatory measures the Commission 

adopts. The Commission does not have 

any basis for estimating the number of 

such non-licensee owners that are small 

entities. 

5. Description of Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements for Small Entities 

183. The R&O adopts a narrow 

exemption from the Commission’s 

requirement that owners of proposed 

towers requiring ASR registration 

provide 30 days of national and local 

notice to give members of the public an 

opportunity to comment on the 

proposed tower’s potential 

environmental effects. The exemption 

from the notice requirements applies 

only to applicants seeking to register 

temporary antenna structures meeting 

certain criteria that greatly reduce the 

likelihood of any significant 

environmental effects. Specifically, 

proposed towers exempted from the 

Commission’s local and national 

environmental notification requirement 

are those that (i) will be in use for 60 

days or less, (ii) require notice of 

construction to the Federal Aviation 

Administration (FAA), (iii) do not 

require marking or lighting pursuant to 

FAA regulations, (iv) will be less than 

200 feet in height, and (v) will involve 

minimal or no excavation. 

184. The Commission’s rules require 

that any entity, including a nonlicensee, 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 on FCC 

Form 854. An applicant seeking to claim 

the temporary towers exemption from 

the environmental notification process 

must indicate on its FCC Form 854 that 

it is claiming the exemption for a new, 

proposed temporary tower and 

demonstrate that the proposed tower 

satisfies the applicable criteria. While 

small entities must comply with these 

requirements in order to take advantage 

of the exemption, on balance, the relief 

from compliance with local and 

national environmental notification 

requirements provided by the 

exemption greatly reduces burdens and 

economic impacts on small entities. 

185. The applicant may seek an 

extension of the exemption from the 

Commission’s local and national 

environmental notification requirement 

of up to sixty days through another 

filing of Form 854, if the applicant can 

demonstrate that the extension of the 

exemption period is warranted due to 

changed circumstances or information 

that emerged after the exempted tower 

was deployed. The exemption adopted 

in the R&O is intended specifically for 

proposed towers that are intended and 

expected to be deployed for no more 

than 60 days, and the option to apply 

for an extension is intended only for 

cases of unforeseen or changed 

circumstances or information. Small 

entities, like all applicants, are expected 

to seek extensions of the exemption 

period only rarely and any burdens or 

economic impacts incurred by applying 

for such extensions should be minimal. 

6. Steps Taken To Minimize the 

Significant Economic Impact on Small 

Entities, and Significant Alternatives 

Considered 

186. The RFA requires an agency to 

describe any significant alternatives that 

it has considered in developing 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 and 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.’’ The 

FRFA incorporates by reference all 

discussion in the R&O that considers the 

impact on small entities of the rules 

adopted by the Commission. In 

addition, the Commission’s 

consideration of those issues as to 

which the impact on small entities was 

specifically discussed in the record is 

summarized below. 

187. The actions taken in the R&O 

encourage and promote the deployment 

of advanced wireless broadband and 

other services by tailoring the regulatory 

review of new wireless network 

infrastructure consistent with the law 

and the public interest. The 

Commission anticipates that the steps 

taken in the R&O will not impose any 

significant economic impacts on small 

entities, and will in fact help reduce 

burdens on small entities by reducing 

the cost and delay associated with the 

deployment of such infrastructure. 

188. In the R&O, the Commission 

takes action in four major areas relating 

to the regulation of wireless facility 

siting and construction. In each area, the 

rules the Commission adopts and 

clarifications the Commission makes 

will not increase burdens or costs on 

small entities. To the contrary, its 

actions will reduce costs and burdens 

associated with deploying wireless 

infrastructure. 

189. First, the Commission adopts 

measures with regard to its NEPA 

process for review of environmental 

effects regarding wireless broadband 

deployment that should reduce existing 

regulatory costs for small entities that 

construct or deploy wireless 

infrastructure, and will not impose any 

additional costs on such entities. 

Specifically, the Commission clarifies 

that the existing NEPA categorical 

exclusion for antenna collocations on 

buildings and towers includes 

equipment associated with the antennas 

(such as wiring, cabling, cabinets, or 

backup-power), and that it also covers 

collocations in a building’s interior. The 

Commission also expands the NEPA 

collocation categorical exclusion to 

cover collocations on structures other 

than buildings and towers, and adopts 

a new NEPA categorical exclusion for 

deployments, including deployments of 

new poles, in utility or communications 

rights-of-way that are in active use for 

such purposes, where the deployment 

does not constitute a substantial 

increase in size over the existing utility 

or communications uses. The 

Commission also adopts measures 

concerning its section 106 process for 

review of impact on historic properties. 

First, the Commission adopts certain 

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exclusions from section 106 review, and 

the Commission clarifies that the 

existing exclusions for certain 

collocations on buildings under the 

Commission’s programmatic agreements 

extend to collocations inside buildings. 

These new exclusions and clarifications 

will reduce environmental compliance 

costs of small entities by providing that 

eligible proposed deployments of small 

wireless facilities do not require the 

preparation of an Environmental 

Assessment. 

190. Second, the Commission adopts 

an exemption from the Commission’s 

requirement that ASR applicants must 

provide local and national 

environmental notification prior to 

submitting a completed ASR application 

for certain temporary antenna structures 

meeting criteria that makes them 

unlikely to have significant 

environmental effects. Specifically, the 

Commission exempts antenna structures 

that (1) will be in place for 60 days or 

less; (2) require notice of construction to 

the FAA; (3) do not require marking or 

lighting under FAA regulations; (4) will 

be less than 200 feet above ground level; 

and (5) will involve minimal or no 

ground excavation. This exemption will 

reduce the burden on wireless 

broadband providers and other wireless 

service providers, including small 

entities. 

191. Third, the Commission adopts 

several rules to clarify and implement 

the requirements of section 6409(a) of 

the Spectrum Act. In interpreting the 

statutory terms of this provision, such as 

‘‘wireless tower or base station,’’ 

‘‘transmission equipment,’’ and 

‘‘substantially change the physical 

dimensions,’’ the Commission generally 

does not distinguish between large and 

small entities, as the statute provides no 

indication that such distinctions were 

intended, and such distinctions have 

been proposed. Further, these 

clarifications will help limit potential 

ambiguities within the rule and thus 

reduce the burden associated with 

complying with this statutory provision, 

including the burden on small entities. 

Generally, the Commission clarifies that 

section 6409(a) applies only to State and 

local governments acting in their 

regulatory role and does not apply to 

such entities acting in their proprietary 

capacities. 

192. With regard to the process for 

reviewing an application under section 

6409(a), the Commission provides that a 

State or local government may only 

require applicants to provide 

documentation that is reasonably 

related to determining whether the 

eligible facility request meets the 

requirements of section 6409(a) and 

that, within 60 days from the date of 

filing (accounting for tolling), a State or 

local government shall approve an 

application covered by section 6409(a). 

Where a State or local government fails 

to act on an application covered under 

section 6409(a) within the requisite time 

period, the application is deemed 

granted. Parties may bring claims under 

section 6409(a) to a court of competent 

jurisdiction. The Commission declines 

to entertain such disputes in a 

Commission adjudication, which would 

impose significant burdens on localities, 

many of which are small entities with 

no representation in Washington, DC or 

experience before the Commission. 

Limiting relief to court adjudication 

lessens the burden on applicants in 

general, and small entities specifically. 

193. Lastly, the Commission adopts 

clarifications of its 2009 Declaratory 

Ruling, which established the time 

periods after which a State or local 

government has presumptively failed to 

act on a facilities siting application 

‘‘within a reasonable period of time’’ 

under section 332(c)(7) of the Act. 

Specifically, the Commission clarifies 

that the timeframe begins to run when 

an application is first submitted, not 

when it is deemed complete by the 

reviewing government. Further, a 

determination of incompleteness tolls 

the shot clock only if the State or local 

government provides notice to the 

applicant in writing within 30 days of 

the application’s submission, 

specifically delineating all missing 

information. Following a submission in 

response to a determination of 

incompleteness, any subsequent 

determination that an application 

remains incomplete must be based 

solely on the applicant’s failure to 

supply missing information that was 

identified within the first 30 days. 

These clarifications will provide greater 

certainty in the application process and 

reduce the potential or need for serial 

requests for more information. These 

clarifications will facilitate faster 

application processing, reduce 

unreasonable delay, and reduce the 

burden on regulated entities, including 

small businesses. 

194. The Commission also clarifies 

that to the extent DAS or small-cell 

facilities, including third-party facilities 

such as neutral host DAS deployments, 

are or will be used for the provision of 

personal wireless services, their siting 

applications are subject to the same 

presumptively reasonable timeframes 

that apply to applications related to 

other personal wireless service facilities 

under section 332(c)(7). The 

Commission clarifies further that the 

presumptively reasonable timeframes 

run regardless of any applicable 

moratoria, and that municipal property 

preferences are not per se unreasonably 

discriminatory or otherwise unlawful 

under section 332(c)(7). Finally, the 

Commission concludes that the explicit 

remedies under section 332(c)(7) 

preclude adoption of a deemed granted 

remedy for failures to act. These 

clarifications reduce confusion and 

delay within the siting process which in 

turn reduces the burden on industry and 

State and local jurisdictions alike, 

which may include small entities. 

7. Federal Rules That Might Duplicate, 

Overlap, or Conflict With the Rules 

195. None. 

8. Report to Congress 

196. The Commission will send a 

copy of the R&O, including the FRFA, 

in a report to be sent to Congress and 

the Government Accountability Office 

pursuant to the Congressional Review 

Act. 

9. Report to Small Business 

Administration 

197. The Commission’s Consumer and 

Governmental Affairs Bureau, Reference 

Information Center, will send a copy of 

the R&O, including the FRFA, to the 

Chief Counsel for Advocacy of the SBA. 

B. Paperwork Reduction Act 

198. The R&O contains revised 

information collection requirements 

subject to the Paperwork Reduction Act 

of 1995 (PRA), Public Law 104–13. It 

will be submitted to the Office of 

Management and Budget (OMB) for 

review under section 3507(d) of the 

PRA. OMB, the general public, and 

other Federal agencies will be invited to 

comment on the modified information 

collection requirements contained in 

this proceeding in a separate Federal 

Register Notice. In addition, the 

Commission notes that pursuant to the 

Small Business Paperwork Relief Act of 

2002, Public Law 107–198, see 44 U.S.C. 

3506(c)(4), the Commission previously 

sought specific comment on how the 

Commission might further reduce the 

information collection burden for small 

business concerns with fewer than 25 

employees. In addition, the Commission 

has described impacts that might affect 

small businesses, which includes most 

businesses with fewer than 25 

employees, in the FRFA. 

C. Congressional Review Act 

199. The Commission will send a 

copy of the R&O in a report to be sent 

to Congress and the Government 

Accountability Office pursuant to the 

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1268 Federal Register / Vol. 80, No. 5 / Thursday, January 8, 2015 / Rules and Regulations 

Congressional Review Act (CRA), see 5 

U.S.C. 801(a)(1)(A). 

VI. Ordering Clauses 

200. 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, Public 

Law 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 

the R&O IS hereby adopted. If any 

section, subsection, paragraph, 

sentence, clause or phrase of the R&O or 

the rules adopted therein is declared 

invalid for any reason, the remaining 

portions of the R&O and the rules 

adopted therein shall be severable from 

the invalid part and shall remain in full 

force and effect. 

201. It is further ordered that parts 1 

and 17 of the Commission’s Rules ARE 

amended as set forth in Appendix B of 

the R&O (see the Final Rules contained 

in this summary), 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 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. 

202. 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 

47 CFR Part 1 

Administrative practice and 

procedure, Communications common 

carriers, Environmental impact 

statements, Federal buildings and 

facilities, Radio, Reporting and 

recordkeeping requirements, Satellites, 

Telecommunications. 

47 CFR Part 17 

Aviation safety, Communications 

equipment, Reporting and 

recordkeeping requirements. 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

Final Rules 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission amends 47 CFR 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 

adding paragraph (c) and revising the 

first sentence of Note 1 read as follows: 

§ 1.1306 Actions which are categorically 

excluded from environmental processing. 

* * * * * 

(c)(1) Unless § 1.1307(a)(4) is 

applicable, the provisions of § 1.1307(a) 

requiring the preparation of EAs do not 

encompass the construction of wireless 

facilities, including deployments on 

new or replacement poles, if: 

(i) The facilities will be located in a 

right-of-way that is designated by a 

Federal, State, local, or Tribal 

government for communications towers, 

above-ground utility transmission or 

distribution lines, or any associated 

structures and equipment; 

(ii) The right-of-way is in active use 

for such designated purposes; and 

(iii) The facilities would not 

(A) Increase the height of the tower or 

non-tower structure by more than 10% 

or twenty feet, whichever is greater, 

over existing support structures that are 

located in the right-of-way within the 

vicinity of the proposed construction; 

(B) Involve the installation of more 

than four new equipment cabinets or 

more than one new equipment shelter; 

(C) Add an appurtenance to the body 

of the structure that would protrude 

from the edge of the structure more than 

twenty feet, or more than the width of 

the structure at the level of the 

appurtenance, whichever is greater 

(except that the deployment may exceed 

this size limit if necessary to shelter the 

antenna from inclement weather or to 

connect the antenna to the tower via 

cable); or 

(D) Involve excavation outside the 

current site, defined as the area that is 

within the boundaries of the leased or 

owned property surrounding the 

deployment or that is in proximity to 

the structure and within the boundaries 

of the utility easement on which the 

facility is to be deployed, whichever is 

more restrictive. 

(2) Such wireless facilities 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). 

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. * * * 

* * * * * 

■ 3. Section 1.1307 is amended by 

redesignating paragraph (a)(4) as 

(a)(4)(i), and by adding new paragraph 

(a)(4)(ii) and a Note to paragraph 

(a)(4)(ii) to read as follows: 

§ 1.1307 Actions that may have a 

significant environmental effect, for which 

Environmental Assessments (EAs) must be 

prepared. 

(a) * * * 

(4) * * * 

(ii) The requirements in paragraph 

(a)(4)(i) of this section do not apply to: 

(A) The mounting of antennas 

(including associated equipment such as 

wiring, cabling, cabinets, or backuppower) 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 

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(iii) Comparable equipment from preexisting 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)(i) 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 backuppower) 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 preexisting 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 preexisting 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)(ii)(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. 

Note to paragraph (a)(4)(ii): A non-visible 

new antenna is in the ‘‘same vicinity’’ as a 

pre-existing antenna if it will be collocated 

on the same rooftop, fac ̧ade or other surface. 

A visible new antenna is in the ‘‘same 

vicinity’’ as a pre-existing antenna if it is on 

the same rooftop, fac ̧ade, or other surface and 

the centerpoint of the new antenna is within 

ten feet of the centerpoint of the pre-existing 

antenna. 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. 

* * * * * 

■ 4. Add Subpart CC to part 1 to read 

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 

section 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) through 

(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. 

(7) Substantial change. A 

modification substantially changes the 

physical dimensions of an eligible 

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1270 Federal Register / Vol. 80, No. 5 / Thursday, January 8, 2015 / Rules and Regulations 

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) through 

(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: Sections 4, 303, 48 Stat. 1066, 

1082, as amended; 47 U.S.C. 154, 303. 

Interpret or apply sections 301, 309, 48 Stat. 

1081, 1085 as amended; 47 U.S.C. 301, 309. 

■ 6. Amend § 17.4 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. 

* * * * * 

(c) * * * 

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(1) * * * 

(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. 

* * * * * 

[FR Doc. 2014–28897 Filed 1–7–15; 8:45 am] 

BILLING CODE 6712–01–P 

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