FCC Declaratory Ruling Impacts Process for Modifying Certain Existing Wireless Facilities

June 15, 2020

Expanded guidance for the modification of certain existing wireless facilities may require cities to review their wireless siting practices.

The Federal Communications Commission (FCC) adopted a Declaratory Ruling on June 9 to clarify provisions of its rules implementing Section 6409(a) of the 2012 Spectrum Act.

Section 6409 regulates the placement or modification of wireless facilities on an existing wireless tower or base station. It provides that cities must approve modifications to certain existing wireless facilities within 60 days or the permit is deemed granted.

The Declaratory Ruling interprets several provisions in FCC rulemaking that implement Section 6409(a). The new ruling may prompt local governments to revise wireless siting ordinances, regulations, processes, or permitting. A summary of the changes, which took effect on June 10, are below.

60-day ‘shot clock’

Existing rules require local governments to approve 6409(a) “eligible facilities requests” within 60 days from the date the application is filed. If a request to modify an existing facility is not acted upon within 60 days, it is deemed granted, unless the application is determined to not be an eligible facility under the act.

The ruling clarifies that the shot clock begins when an applicant “takes the first procedural step” as a part of the local government review process and “submits written documentation showing that a proposed modification is an eligible facilities request.”

The ruling also clarifies that:

  • The first procedural step cannot be outside of the applicant’s control and must be objectively verifiable.
  • Local governments cannot delay the commencement of the shot clock by defining the “first step” as a combination of steps, such as a series of meetings.
  • Local governments cannot delay the commencement of the shot clock by requesting documentation other than the documentation required under the FCC rules or requiring documentation to accompany a meeting before the shot clock starts.
  • If a local government does not have established procedures for 6409(a) applications, “the applicant can consider the first procedural step to be the submission of filing that is typical to initiative zoning or siting review such as wireless facilities outside of 6409(a), outdoor tower, or pole installation.”

Height increases

Existing FCC rules for eligible facilities requests deem that a modification to a tower outside the right of way is considered a “substantial change” and not an eligible facilities request 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 20 feet, whichever is greater.”

The ruling states that “separation” of existing antenna means the distance from the top of the antenna to the bottom of the proposed antenna. This means that the local government is barred from denying a 6409(a) application to add more than 20 feet to the height of a tower outside the right of way if there is not more than 20 feet between the top of the existing tower and the bottom of the new antenna array.

Other clarifications

The rule also:

  • Clarifies that an “equipment cabinet” includes small pieces of equipment such as remote radio heads and units, amplifiers, transceivers, and that the maximum number of added cabinets is for each separate request and not cumulative.
  • Limits concealment to “elements of a stealth-designed facility intended to make the facility look like something other than a wireless tower or base station,” and does not include location elements previously approved.
  • Points out that environmental assessments are not needed if applicants have entered into a memorandum of agreement to mitigate effects of impact to historic properties.

Notice of Proposed Rulemaking

Along with the Declaratory Ruling, the FCC also issued a new Notice of Proposed Rulemaking seeking comment on proposed rules that would allow providers to expand wireless facilities to areas not previously considered by a city. The League of Minnesota Cities, National Association of Telecommunications Officers and Advisors, National League of Cities, and other organizations will be filing comments and continue to advocate for the preservation of local authority when it comes to siting wireless facilities.

—Read the Declaratory Ruling and Notice of Proposed Rulemaking (pdf)