FCC to Consider Further Action Preempting Local Authority of Telecommunication Equipment Siting
This week the Federal Communications Commission announced that it would be considering at its June 9th open meeting, the “State/Local Approval of Wireless Equipment Modifications Under Section 6409(a)” Declaratory Ruling and Notice of Proposed Rulemaking. The League opposes the Declaratory Ruling (Ruling) and Notice of Proposed Rulemaking (NPRM).
The Ruling and the NPRM stem from petitions filed by the Wireless Industry Association (WIA) and the Communications Technology Industry Association (CTIA), in late 2019. These proposals aim to further limit local oversight of wireless towers and pole attachments. If enacted, the proposals would substantially limit current authority local governments have to manage changes made to large wireless towers in their communities, as well as further limiting the control pole owners, such as local governments or utilities, have over pole attachments.
The draft declaratory ruling and NPRM would have the following effects on site modification processes, if enacted as currently written:
- 60-day shot clocks for so-called "6409(a)" structures – that is, those subject to certain streamlined review conditions as an "eligible facilities request" to alter an existing structure – would begin when applicants take the first step in a locality's review process and submits written documentation addressing how the proposed modification would not cause a "substantial change" to the existing structure.
- This first step must be objectively verifiable, must be a single step and not a series, and within the applicant's control – i.e., not the date of a meeting with local government staff or a hearing, but the date that meeting was requested.
- All subsequent processes and steps must be completed within the 60-day shot clock window.
- Several definition changes regarding measuring the distance between existing towers and "equipment cabinets".
- Weakening of concealment oversight by local governments so that modifications may not be rejected on concealment grounds unless the modification would "cause a reasonable person to view the structure's intended stealth design as no longer effective after the modification" (several examples are provided in the text of the item).
- The FCC seeks comment on proposed changes to rules regarding excavation or deployment outside the boundaries of an existing tower site, including the definition of the boundaries of a tower site, which would affect whether certain modifications of existing structures qualify for streamlined section 6409(a) review.
- Proposes that the existing site be defined to include the applicant's leased or owned area at the time of the application, even if that area was not included in the original site.
- Proposes defining any excavation or deployment within 30 feet of the existing boundaries of a macro tower as not a significant change, and so eligible for streamlined review.
- Comments on the NPRM would be due 20 days after publication in the Federal Register and reply comments 30 days after publication.
The League has submitted a letter to FCC Commissioners, opposing the Ruling and NPRM and supporting the comments that the National League of Cities and other local government groups have submitted in regard to the WIA and CTIA Petitions.
We strongly urge all to write to the FCC expressing their opposition to this unnecessary and inappropriate preemption of local control. If you do submit a letter we kindly request that you please be sure to copy the League.
Contact: Frank Marshall, Esq., Associate General Counsel, FMarshall@njlm.org or 609-695-3481 x137.