By Eileen M. Keiffer
On Tuesday, the Federal Communications Commission (“FCC”) voted to adopt the proposed Declaratory Ruling and Notice of Proposed Rulemaking (Implementation of State and Local Governments’ Obligation to Approve Certain Wireless Facility Modification Requests Under Section 6409(a) of the Spectrum Act of 2012), WT Docket No. 19-250 and RM 11849 (“5G Upgrade Order”).
According to the FCC, the 5G Upgrade Order “clarifies” several aspects of the FCC’s rules adopted under Section 6409(a) of the Spectrum Act of 2012. The Spectrum Act and relevant FCC rules relate to certain additions and modifications to wireless facilities—specifically referred to as eligible facilities requests for modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station. You may recall that cities must approve and are prohibited from rejecting any such requests and that there are expedited review timelines (“Shot clocks”) associated with such requests. The 5G Upgrade Order:
Establishes that the 60-day shot clock to approve eligible facilities modification requests begins to run when an applicant “takes the first procedural step in a locality’s application process and submits written documentation showing that a proposed modification is an eligible facilities request.” Pre-application requirements such as meetings with staff or town hall style public meetings could trigger the beginning of the 60-day shot clock if the above criteria are met.
Establishes a technical interpretation for certain proposed changes to towers outside of the public rights-of-way. A proposal to increase the height of a tower of up to twenty (20) feet between antennas, measured from the top of an existing antenna to the bottom of a proposed new antenna, could qualify as an eligible facilities modification request.
Establishes a technical interpretation of the definition of “equipment cabinet” as a physical container for smaller, distinct devices.
Provides that up to four equipment cabinets may be added to an existing facility per separate request rather than cumulatively for certain facilities in the rights-of-way (and elsewhere) if such facilities are subject to multiple eligible facilities modification requests.
Establishes when proposals do or do not qualify as eligible facilities modification requests based on how the proposal would impact concealment elements of the existing support structure.
Finally, the FCC seeks comment on whether to revise its rules relating to how a current “site” is measured for purposes of eligible facilities requests. The FCC proposes one option to establish that “site” means to the current boundary of the leased or owned property surrounding a tower including any access or utility easements as of the date the facility was last reviewed and approved by a locality. Another option under consideration is that “site” is measured as of the date an applicant submits a modification request. The FCC also seeks comment on whether to amend its rules to provide that ground excavation or deployment of up to 30 feet in any direction outside of the facilities site qualifies as an eligible facilities modification request.
Cities should review their ordinances relating to wireless facilities siting and eligible facilities requests to determine whether the 5G Update Order will require commensurate edits to their municipal code. Please alert Eileen Keiffer if you have any questions or if we can be assistance in processing the impacts of the 5G Update Order on your city. Eileen can be reached at Eileen@madronalaw.com or at (425) 201-5111, ext. 1.
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