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george-w-lithco-smallNow that the partial shutdown of the federal government has ended, municipal officials should visit the Federal Communication Commission website and download “Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies”, a Notice of Proposed Rulemaking1 issued by the Commission on September 27, 2013.

The FCC is acutely aware that the growing demand for wireless broadband service requires extensive upgrading of the existing wireless infrastructure. In many cases, new services, such as LTE, require installing new or upgraded antennas on existing towers.

The Commission’s 2009 “Shot Clock” Ruling attempted to address the concern of providers that wireless network infrastructure was being held back by local regulatory delays. In 2012, Congress went further by adopting Section 6409(a), which mandated that local approvals shall be granted for eligible facilities, although still allowing municipalities to conduct administrative permit reviews. The Wireless Bureau issued implementing guidance for Section 6409(a) earlier this year.

The FCC obviously remains concerned about the pace of approvals. Its September Notice proposes to accelerate the pace by a variety of changes to the process: streamlining federal environmental review for distributed antenna systems and small cell installations; exempting temporary towers from federal environmental review notice requirements; clarifying the terms used to determine whether collocated antenna facilities are eligible Section 6409(a) facilities, and whether the failure of a local government to promptly act on an application for an eligible facility should entitle the applicant to petition the FCC for a ruling that the application be deemed approved.

As the Commission works to shape an appropriate policy, it is inviting comment on some issues likely to be of significant interest to municipalities:

  • Whether Section 6409(a) mandates that local governments approve all applications that do not substantially change the dimension of the wireless facility – an absolute requirement — or whether there are circumstances in which a local government may deny an application otherwise consist with the statutory requirements.
  • Whether that mandate allows local government to require modification of the proposed design, adherence to State or local building codes and land use laws, or impose other conditions.
  • Whether local laws that establish preferences for the placement of wireless facilities on municipal properly are unreasonably discriminatory under 47 USC § 332(c)(7)(B)(i)(I);
    What remedies should be available to enforce Section 6409(a) in cases of failure to act or decisions adverse to the applicant;
  • Whether an application for an eligible facility should be “deemed granted” by operation of law if the local government fails to act within a specified period of time; and
  • Whether the Commission should provide a transition period to allow local governments to incorporate new regulatory requirements into their laws and administrative procedures.

Comments are due 60 days after the Notice is published in the Federal Register. The Notice is available on the FCC website here: https://transition.fcc.gov/Daily_Releases/Daily_Business/2013/db0926/FCC-13-122A1.pdf

1 Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, Notice of Proposed Rulemaking, WT Docket No. 13-238, WC Docket No. 11-59, RM-11688 (terminated), and WT Docket No.13-32, FCC 13-122 (released Sept. 27, 2013).

George W. Lithco is a partner on the Land Use/Environmental and Municipal Law Teams. He can be reached by phone at 845-778-2121 toll free or 845-778-2121 and by email.

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