On a party line vote last week – republicans yes, democrats no – the Federal Communications Commission further preempted local government control over wireless facilities such as cell sites and towers. The ruling tightens enforcement of a 60-day shot clock for local permit approval of what it reckons to be minor modifications to a site. If time expires, the permit is "deemed granted. It also bans additional aesthetic requirements and widens a loophole that allows wireless companies to escape existing ones.
The first draft of the new rules was published last month, and despite a flood of objections from local governments, nothing much changed. The final version tweaks the definition of the trigger that starts the 60-day shot clock. It begins running when two things happen:
- An applicant “takes the first procedural step that the local jurisdiction requires”, which could be a meeting with staff to discuss the project, although the FCC considers the step taken when the company makes “a written request to schedule the meeting”. The same applies to things like community meetings or planning reviews – the 60 days starts ticking down as soon as the request for such is made.
- “The applicant submits written documentation showing that a proposed modification is an eligible facilities request” – in other words, is a minor collocation of transmission equipment on an existing structure, as defined by congress and the FCC. The local agency doesn’t have to buy off on the claim or consider the documentation complete. The company just has to file its arguments.
A tight limit on concealment requirements also got some minor editing, although it didn’t satisfy objections raised by local governments or commissioner Geoffrey Starks, a democrat. New concealment or stealthing measures can’t be imposed, and existing requirements can only be enforced if there is “express evidence in the record to demonstrate that a locality considered in its approval that a stealth design for a telecommunications facility would look like something else, such as a pine tree, flag pole, or chimney”. The new rules are not workable, Starks said in his dissent…
In many cases, local governments approved sites years ago, well before passage of the Spectrum Act. Particularly for smaller cities, it’s unlikely that their decisions explain the intent behind a particular requirement affecting a site’s appearance. Yet today’s Declaratory Ruling states that, unless the regulator can provide express evidence in the record demonstrating that a requirement was intended to disguise the nature of the equipment as something other than a wireless facility, the local government must give streamlined treatment to any changes. Moreover, for changes in appearance that don’t disguise the nature of the equipment but merely make it harder to notice, the Declaratory Ruling establishes a standard that effectively preempts any requirement that the applicant claims it cannot reasonably meet…
Doing this via a Declaratory Ruling will place an undue burden on local governments that are unfamiliar with the Commission. A clerk in a small city may not realize that a proposed site modification will require her to review not only the Code of Federal Regulations but the language of this decision and our 2014 order.
The FCC’s decision also begins the next phase of its campaign to end local discretion over cell sites and other wireless facilities. It’s considering allowing companies to expand the boundaries of “an existing facility…up to 30 feet in any direction”, under the same shall approve within 60 days rule. It’s asking for public comments, but not offering much time – 20 days after the notice is published in the federal register, with reply comments due 30 days after that.
Declaratory Ruling and Notice of Proposed Rulemaking, Implementation of State and Local Governments’ Obligation to Approve Certain Wireless Facility Modification Requests, 9 June 2020