FCC draft ruling takes away more local control over wireless sites

by Steve Blum • , , , ,

Salinas windmill cell site

Pre-application requirements for some wireless facilities permits would be effectively banned by a draft ruling posted yesterday by the Federal Communications Commission. It would also expand limits on some antenna sizes and scale back concealment measures that some cities use to maintain aesthetic standards.

The draft declaratory ruling and notice of proposed rulemaking applies to some situations when mobile carriers and other wireless companies seek permission to add equipment to existing towers and the surrounding area. It’s sometimes referred to as the “6409” rule, after the section of federal law that it’s based on. I won’t try to explain it here. The flowchart below illustrates the complexity of federal and state restrictions on wireless permit processing. The box circled in blue is the particular FCC regulation involved. Click to get my white paper that tries to sort it all out.

In that set of circumstances, local governments have 60 days to approve a permit application or it’s “deemed granted”. Denying the permit application is not allowed. The FCC set those parameters in 2014 during the Obama administration, and since then wireless companies and local governments have been arguing about things like precise definitions of “separation from the nearest existing antenna” and what it takes to “defeat” concealment requirements. The FCC’s draft ruling addresses those issues, too.

When that 60-day shot clock begins is particularly contentious. For example, some cities require companies to consult with staff or neighborhood groups before permit applications can be filed. Others might require multiple permits from different city departments. Cities often take the position that the shot clock doesn’t begin until those preliminary steps are done and an actual (and complete) application is submitted.

Not so, says the FCC’s draft ruling: “an applicant has effectively submitted a request for approval that triggers the running of the shot clock when…the applicant takes the first procedural step that the local jurisdiction requires as part of its applicable regulatory review process” and documents that the facilities it proposes to install meet the 6409 rule’s criteria.

In other words, there’s no such thing as a pre-application period. Once a wireless company takes any required step, time starts running. And there’s only one shot clock per city. Once it’s triggered, every permit has to be approved in 60 days.

The FCC is scheduled to vote on the draft at its next meeting on 9 June 2020. There’s a window of opportunity to submit comments, but substantive changes are unlikely – although democrat and republican commissioners might quibble about details, there’s a long and strong history of bipartisan support for wireless permit streamlining at the FCC.