Federal Communications Commission Provides Guidance to Expedite Deployment of 5G Infrastructure and Faces Challenge From Municipalities at the Ninth Circuit
On June 9, 2020, in response to petitions filed by the Wireless Infrastructure Association and the Cellular Telecommunications Industry Association, the Federal Communications Commission (FCC) voted on and approved its 5G Upgrade Order, which is comprised of two declaratory rulings and one Notice of Proposed Rulemaking (NPRM).1 The 5G Upgrade Order intends to promote collocation and accelerate wireless network deployment by clarifying rules under Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012 (“Spectrum Act”) for upgrading equipment on existing infrastructure. However, soon after its adoption by the FCC, the League of Oregon Cities; the League of California Cities; and the California city governments of Glendora, Rancho Palos Verdes and Torrance filed a petition for review in the United States Court of Appeals for the Ninth Circuit challenging the 5G Upgrade Order on procedural grounds under the Administrative Procedure Act (APA).
The 5G Upgrade Order Provisions
Section 6409 of the Spectrum Act and the regulations promulgated by the FCC thereunder (together, “Section 6409”) provide that applications within its scope must be reviewed within certain reasonable time frames known as the “shot clock.” The 5G Upgrade Order provides that, for Section 6409 applications, an applicant has effectively triggered the shot clock when:
- The applicant takes the first procedural step that the local jurisdiction requires as part of its applicable regulatory review process under Section 6409; and
- The applicant submits written documentation showing that a proposed modification is an eligible facilities request (to the extent it has not already done so as part of the first required procedural step).
While the 5G Upgrade Order requires both components to trigger the shot clock, it also prohibits municipalities from delaying the triggering of the shot clock by:
- Establishing a “first step” that is outside of the applicant’s control or is not objectively verifiable;
- Defining the “first step” as a combination or sequencing of steps, rather than a single step;
- Declining to accept an applicant’s submission of documentation intended to satisfy the second of the criteria for starting the shot clock; or
- Using conditional use permits, variances or other similar types of authorizations under the municipality’s standard zoning or siting rules – in connection with the consideration of an eligible facilities request – to delay the triggering of the shot clock, or using those requirements to toll the shot clock.
Below are examples of how an applicant can effectively trigger the shot clock for a Section 6409 application under the 5G Upgrade Order:
- If an applicant participates in a pre-application meeting required by the municipality, and then submits written documentation demonstrating that the proposed modification is an eligible facilities request, the shot clock is triggered upon that submission;
- If an applicant submits written documentation demonstrating that the proposed modification is an eligible facilities request, and in that documentation requests that the municipality schedule a required meeting with municipal representatives (the first procedural step under the municipality’s Section 6409 process), the shot clock is triggered upon submission; and
- Where a municipality does not have a Section 6409 process in place, under the 5G Upgrade Order, the applicant can consider the first procedural step to be submission of the type of filing that is typically required to initiate a standard zoning or siting review of a proposed deployment that is not subject to Section 6409, and that should include documentation demonstrating that the proposed modification is an eligible facilities request.
Substantial Change Analysis3
In order to qualify as an “eligible facilities request” under Section 6409, a proposed modification may not substantially change the physical dimensions of a tower or base station. The definition of a substantial change has been subject to differing interpretations. The 5G Upgrade Order aims to provide clarity with respect to a substantial change.
Height Increases for Towers Outside the Public Rights-of-Way
Section 6409 provides that a modification of a tower located outside of public rights-of-way is considered a substantial change if 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.”4 This rule has caused debate between municipalities and applicants as to how the 20 feet is measured. The 5G Upgrade Order clarifies that “separation from the nearest existing antenna” means the distance from the top of the highest existing antenna on the tower to the bottom of the proposed new antenna to be deployed above it.
Section 1.6100(b)(7) of the FCC’s rules provides that a proposed modification to a support structure constitutes a substantial change if “it involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed four cabinets.”6 Some municipalities have interpreted this Section to suggest that telecommunications transmission equipment manufactured with outer protective covers can be “equipment cabinets” under the rules. The FCC has clarified that small pieces of equipment such as remote radio heads/remote radio units, amplifiers, transceivers mounted behind antennas and similar devices are not “equipment cabinets” if they are not used as physical containers for smaller, distinct devices. Further, the FCC clarified that the maximum number of additional equipment cabinets that can be added under the rules is measured for each separate eligible facilities request, rather than the cumulative number of equipment cabinets on the site.
Section 6409 regulations state that a modification substantially changes the physical dimensions of an existing structure if “[i]t would defeat the concealment elements of the eligible support structure.”8 Two questions have developed from this rule:
- What constitutes a “concealment element” under Section 6409?
- What does it mean to “defeat” such a concealment element” under Section 6409?
Under the 5G Upgrade Order, concealment elements are elements of a stealth-designed facility intended to make the facility look like something other than a wireless tower or base station. In other words, typical stealth designs such as a monopine would be considered a concealment element, whereas hiding a monopole within a tree mass would not.
The FCC further explained that, in order to “defeat concealment,” the proposed modification must cause a “reasonable person” to view the structure’s intended stealth design as no longer effective after the modification.
Conditions Associated With the Siting Approval9
Section 6409 states that a modification is a substantial change if “[i]t 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 Section 1.6100(b)(7)(i) through (iv).”10 The FCC has clarified that such conditions of approval must be explicit in the siting approval, and that where there is a conflict between a locality’s general ability to impose conditions and modifications specifically deemed not substantial under Section 1.6100(b)(7)(i)-(iv), the conditions should be enforced only to the extent that they do not prevent the modification, resolving such conflicts in favor of permitting the modifications. Essentially, a municipality may not impose and enforce conditions on approvals for wireless facilities that then prevent future modifications or upgrades that are otherwise eligible facilities requests.
National Environmental Policy Act Environmental Assessments After Execution of Memorandum of Agreement11
The FCC’s rules implementing the National Environmental Policy Act (NEPA) categorically exclude all actions from environmental evaluations, including the preparation of an environmental assessment, except for certain defined actions. Pursuant to NEPA, applicants submit an environmental assessment for facilities that fall within specific categories, including facilities that may affect historic properties protected under the National Historic Preservation Act. Even if the applicant has executed a memorandum of agreement with affected parties to address adverse environmental effects, applicants were still required to submit an environmental assessment. The FCC has clarified that an environmental assessment is no longer required when the FCC and applicants have entered into a memorandum of agreement to mitigate effects of a proposed undertaking on historic properties, consistent with the Wireless Facilities Nationwide Programmatic Agreement, as long as the only basis for the preparation of an environmental assessment was the potential for significant effects on such properties.
What Is Next?
The FCC’s 5G Upgrade Order is in effect. Parties adverse to the FCC’s action can challenge it at the FCC or in federal court. At the regulatory level, any interested person can file a petition for reconsideration at the FCC for any final FCC action, such as the 5G Upgrade Order.12 Petitioners must file their petitions within 30 days from the time the 5G Upgrade Order was released, which occurred on June 10th, 2020.13 Those in opposition to those petitions for reconsideration, if any, are due 15 days after the date of the petitions’ public notice.14
Challenges to the Order
Filing a petition for reconsideration does not preclude any petitioner’s right to appeal the FCC’s decision in a federal court under Section 405 of the Communications Act of 1934. Also, filing a petition for reconsideration is not necessary to bring a litigation in federal court because the 5G Upgrade Order on its own is a final agency action that may be challenged under the law.15 The League of Oregon Cities; the League of California Cities; and the California city governments of Glendora, Rancho Palos Verdes and Torrance have filed a petition for review in the United States Court of Appeals for the Ninth Circuit asserting that the FCC, in promulgating its 5G Upgrade Order, acted arbitrarily and capriciously, and abused its power under Section 706(2)(A) of the APA. If a party wishes to intervene in the litigation, that party must file a motion for leave to intervene with the circuit clerk and serve a copy on all parties by July 22, 2020.16
The 5G Upgrade Order NPRM17
Section 6409 regulations provide that “[a] modification substantially changes the physical dimensions of an eligible support structure if … [i]t entails any excavation or deployment outside the current site[.]”18 A “site” for towers outside of the public rights-of-way is defined as “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.”19
The FCC has requested that interested parties provide comment on whether “site” refers to the boundaries 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, or instead whether it refers to the boundaries 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.
Further, the FCC has proposed to amend Section 6409 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 under Section 6409.
Filing a Comment to the FCC
The FCC, under its rules and to satisfy its obligations under the APA, must provide public notice by publishing its NPRM in the Federal Register. Once that occurs, the public can submit their initial comments during the 20 days (a time stipulation under its 5G Upgrade Order) from the date the FCC published the NPRM into the Federal Register. The FCC will accept reply comments during the 10 days after that 20-day period.
The NPRM was published on July 2, 2020, and initial comments from the public are due July 22, 2020.
- In re Implementation of State and Local Governments’ Obligation to Approve Certain Wireless Facility Modification Requests Under Section 6409(A) of the Spectrum Act of 2012, F.C.C. Declaratory Ruling and Notice of Proposed Rulemaking, WT Docket No. 19-250, 2020 WL 3166242 (June 9, 2020); see also Wireless Infrastructure Association (WIA) Petition for Rulemaking (filed Aug. 27, 2019), https://ecfsapi.fcc.gov/file/108273047516225/WIA Petition for Rulemaking (8-27-19).pdf (WIA Rulemaking Petition); WIA Petition for Declaratory Ruling (filed Aug. 27, 2019), https://ecfsapi.fcc.gov/file/10827091727851/WIA Petition for Declaratory Ruling (8-27-19).pdf (WIA Declaratory Ruling Petition); CTIA Petition for Declaratory Ruling (filed Sept. 6, 2019), https://ecfsapi.fcc.gov/file/10906760521179/190906 CTIA Infrastructure PDR Final.pdf (CTIA Petition); see also Wireless Telecommunications Bureau and Wireline Competition Bureau Seek Comment on WIA Petition for Rulemaking, WIA Petition for Declaratory Ruling and CTIA Petition for Declaratory Ruling, Public Notice, Docket Nos. 19-250, 17-84, RM-11849, 34 FCC Rcd. 8099 (2019). Available at https://www.fcc.gov/document/wtb-and-wcb-seek-comment-wia-and-ctia-petitions.
- WT Docket No. 19-250, 2020 WL 3166242, at *9-13.
- Id. at *14-15.
- 47 C.F.R. § 1.6100(b)(7)(i).
- WT Docket No. 19-250, 2020 WL 3166242, at *15-17.
- 47 C.F.R. § 1.6100(b)(7)(iii).
- WT Docket No. 19-250, 2020 WL 3166242, at *17-22.
- 47 C.F.R. § 1.6100(b)(7)(v).
- WT Docket No. 19-250, 2020 WL 3166242, at *22-24.
- 47 C.F.R. § 1.6100(b)(7)(vi).
- WT Docket No. 19-250, 2020 WL 3166242, at *17-22.
- 47 U.S.C. § 405(a); see also 47 C.F.R. § 1.429(d).
- Id. § 1.429(d).
- Id. § 1.429(f).
- 47 U.S.C. § 405(b).
- Fed. R. App. P. 15(d).
- WT Docket No. 19-250, 2020 WL 3166242, at *19 (June 9, 2020).
- 47 C.F.R. § 1.6100(b)(7),(7)(iv).
- Id. § 1.6100(b)(6).