FCC OKs Compound Expansions Order, With Changes From Draft

The FCC approved an order making further changes to wireless infrastructure rules Tuesday, with dissents from Commissioners Jessica Rosenworcel and Geoffrey Starks as expected (see 2010220048). The order addresses equipment compound expansions as part of collocations, clarifying that an infrastructure modification doesn’t cause a “substantial change” if it entails excavation or deployments up to 30 feet outside macro tower compound boundaries (see 2010060060). Commissioner Brendan Carr indicated there were some changes from the draft. The FCC moved quickly, with a Further NPRM OK’d in June (see 2006090060).

The Democrats also dissented when commissioners approved that NPRM, seeking comment on rules implementing Section 6409(a) of 2012's Spectrum Act (see 2006120051). Industry wanted change, but state and local government groups raised concerns (see 2010200034).

Carr said on a call with reporters the changes include clarification that the gear being deployed is specifically “transmission equipment” and that city governments retain their usual easement power. “Not everybody gets everything they want in an FCC decision,” he said.

Based on Carr’s comments, “the order will more clearly address the types of deployments the rules will allow outside the tower site, and limit the 30-foot measurement to stem from the site, not associated easements,” NATOA General Counsel Nancy Werner told us. “NATOA and many local governments raised these issues, among others, with the draft order, and we appreciate that they may have been addressed.” Werner said that doesn’t change that Section 6409 “does not support the majority’s decision to allow excavation and deployments outside the tower site, which by definition is not part of the wireless tower and includes areas that have never been found suitable for wireless deployments.”

The order creates problems for local governments struggling under the COVID-19 pandemic, Starks said. It “adds to these already considerable challenges by requiring these governments to provide streamlined processing to requests for ground excavations or deployments of transmission equipment up to 30 feet in any direction outside a macro cell tower site,” he said. Starks said the order violates “the plain language” of Section 6409(a). “The provision does not extend its requirements beyond the wireless tower itself, yet this decision will allow applicants to obtain streamlined processing for work well outside the facility,” he said. “This decision could encourage applicants to evade local zoning regulations by seeking initial approval for less space than they actually need and then obtaining streamlined processing for [further] expansions."

“Thirty feet is five refrigerators laid out,” Rosenworcel said. “It’s half the size of a bowling lane,” she said: “It’s about one-fifth of the size of the Leaning Tower of Pisa. You can’t tell me that construction of this size does not substantially change the physical dimensions of a site.” The action exacerbates fights between industry and local officials, Rosenworcel said. It creates “genuinely unhelpful friction between state and local interests who have filed en masse in this proceeding to protest how this agency is diminishing their authority,” she said.

Carr, who has overseen FCC work on wireless infrastructure changes, said the order addresses a disconnect in agreements the FCC reached with the Advisory Council on Historic Preservation and the National Conference of State Historic Preservation Officers. A 2001 accord didn’t allow any excavation or deployment beyond the limits of a tower site during collocation, he said. The 2005 pact, covering tower replacements, allowed for an expansion, he said. The commission initially “picked the older agreement, although without much discussion or reasoning,” Carr said. “If evolving technology and circumstances by 2005 showed that an additional 30 feet were needed to revitalize tower sites and, on balance, were better for environmental and historic preservation interests than building new sites, then that reasoning would seem to apply with equal force to the 2001 agreement.”

Commissioner Mike O’Rielly said since he joined the FCC, he has met with industry companies and trade groups “about needed improvements to the regulatory structure that is ensnaring infrastructure siting.” Local and state prohibitions and delays “are even more egregious when they affect wireless providers’ ability to collocate on existing towers,” he said: It would make sense that tower opponents “would support efforts to use existing towers instead of building additional ones.”

“To classify the 30-foot radius around existing infrastructure as ‘inconsequential’ shows a gross misunderstanding of basic public planning and creates the potential for irreparable harm to the homes, schools and libraries in our communities,” emailed Arthur Scott, National Association of Counties associate legislative director.

“Streamlining rules for collocation is crucial for emergency communications to ensure public safety and for the U.S. to remain competitive in the race to 5G,” said Wireless Infrastructure Association President Jonathan Adelstein. Scott Bergmann, CTIA senior vice president-regulatory affairs, said that “the FCC is empowering providers to upgrade existing facilities with next-generation equipment." The order “provides the necessary clarity and guidance to enable carriers to quickly and efficiently modify existing cell towers as we expand broadband connectivity,” said Joan Marsh, AT&T executive vice president-federal regulatory relations.

The local governments that Best Best represents see the order as unnecessary and “inconsistent with the specific and limited preemption Congress made in enacting Section 6409,” said lawyer Gerard Lederer: Clients are “troubled that the commission continues to paint the false narrative that absent application of 6409 collocations would be prohibited.”