Wireless Infrastructure Item Had Changes on Way to 3-2 FCC OK
The FCC wireless infrastructure declaratory ruling and NPRM had numerous changes between when it was circulated and Tuesday when commissioners OK'd it 3-2 (see 2006090060), based on our side-by-side analysis. As indicated by Commissioner Mike O’Rielly, the biggest changes were on the NPRM seeking comment on a Wireless Infrastructure Association request for amended rules that a modification doesn’t cause a “substantial change” if it entails excavation or deployments at up to 30 feet in any direction outside the boundaries of a macro tower compound. The item was in Thursday’s Daily Digest.
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The draft asked questions; the final notice proposed changes. “We propose to revise the definition of ‘site’ … to make clear that ‘site’ refers to the boundary of the leased or owned property surrounding the tower and any access or utility easements currently related to the site as of the date that the facility was last reviewed and approved by a locality,” the document said: “We further propose to amend section 1.6100(b)(7)(iv) [of the Spectrum Act] so that modification of an existing facility that entails ground excavation or deployment of up to 30 feet in any direction outside the facility’s site will be eligible for streamlined processing.”
The FCC sticks with a quick turnaround for comments. Initial comments are due 20 days after Federal Register publication, replies 10 days later.
In other areas, the NPRM remained more open-ended. Should the FCC change the definition of site “without making the proposed change to section 1.6100(b)(7)(iv) [of the Spectrum Act] for excavation or deployment of up to 30 feet outside the site,” it asked: Should the FCC define the site based on “the boundary of the leased or owned property surrounding the tower and any access or utility easements related to the site as of the date an applicant submits a modification request.”
The final ruling was tweaked to add language from Section 6409(a) of the Spectrum Act. It says 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.” The final version added a lengthy footnote elaborating on the support from local governments and industry for the ruling. The draft was changed to require “written documentation” rather than “information” showing that a facility is eligible. Another new footnote clarified: “We reject localities’ suggestions that the shot clock should not commence until an applicant submits documentation required for all necessary permits, as such an approach is inconsistent with federal law.”
A new paragraph dismissed an argument by “several localities” that the ruling “would permit an applicant to add an unlimited number of new equipment cabinets to a structure so long as the applicant proposes adding them in increments of four or less.” The order was tweaked to clarify requirements on tower aesthetics. “Our clarification does not mean that a concealment element must have been explicitly articulated by the locality as a condition or requirement of a prior approval,” the FCC said: “While specific words or formulations are not needed, there must be express evidence in the record to demonstrate that a locality considered in its approval that a stealth design for a telecommunications facility would look like something else, such as a pine tree, flag pole, or chimney.”
A new footnote responded to local concerns on notice. “Several localities argue that this clarification would place a requirement on a locality to show express evidence that a feature was required and that the locality conditioned approval on its continuing existence, in order for non-compliance with the condition to disqualify a modification from being an eligible facilities request,” the ruling said: “Our clarification is a restatement of the basic principle that applicants should have clear notice of what is required by a condition and how long the requirement lasts.”