On June 10th, 2020, the Commission approved a Declaratory Ruling and Notice of Proposed Rulemaking regarding state and local government approval of wireless equipment modifications under Section 6409(a) of the Spectrum Act of 2012. Under this section, state and local governments “may not deny and must 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.”

The Commission’s declaratory ruling clarifies the following issues:

• • The 60 day shot clock state and local governments have to review and approve modifications commences when the applicant takes the first procedural step that the local jurisdiction requires as part of its review process, and the applicant submits proof the modification qualifies for streamlined review.
  • “Substantial change” when adding a new antenna to an existing structure has been clarified. Under the new rules the separation from the nearest existing antenna may not exceed twenty feet measured from the top of an existing antenna to the bottom of a proposed new antenna.
  • “Concealment element” means part of a stealth-designed facility that has been approved in a prior review. To “defeat” concealment, a modification must cause a reasonable person to conclude that the structure’s intended stealth design is no longer effective.
  • “Conditions associated with the siting approval” includes conditions that require a feature to minimize the visual impact of a wireless facility, as long as, there is evidence that the feature was required as part of a prior siting approval, and as long as the conditions do not prevent otherwise permissible modifications to the physical dimensions of the structure.
  • An environmental assessment is not required when the FCC, applicant, and other affected pirates have agreed to mitigate effects on historic properties.

The Commission’s notice of proposed rulemaking (NPRM) seeks comment on changes to its rules regarding excavation or deployment outside the boundaries of an existing tower site. Commenters can also weigh-in on proposed definitions of the boundaries of a tower site.

These rule changes would impose new requirements on local governments to immediately review and update their current ordinances, policies, and applications systems involving wireless towers. In turn, localities would be forced to divert critical resources away from emergency response efforts. As Commissioner Rosenworcel noted in her dissenting statement:

If we want to see infrastructure expand broadly and equitably across this country it takes federal and state and local authorities working together to do so. History proves this is true. And in these historic times this agency should not be ramrodding this effort through without listening to cities and towns across the country.

It is imperative that state and local officials are consulted on how network infrastructure regulations are crafted. The deployment of infrastructure to connect more Americans is now more important than ever. Instead of reducing current burdens to deployment, the Commission has introduced even more uncertainty into an already uncertain policy landscape.

You can read more about the State and Local Approval of Wireless Equipment Modifications Under Section 6409(a) Fact Sheet, Declaratory Ruling and Notice of Proposed Rulemaking here.