HomeMy WebLinkAboutPlanning Commission 2024-03-12 Agenda Packet
Planning Commission
Regular Meeting
Tuesday, March 12, 2024, 7:00 P.M.
AGENDA
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CALL TO ORDER
RECORDING OF MEMBERS PRESENT AND ABSENT
APPROVAL OR REVISION OF ORDER OF AGENDA ITEMS
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ORAL COMMUNICATIONS FROM THE PUBLIC
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matter jurisdiction of the body. Remarks on non-agenda items will be heard first, remarks on
agenda items will be heard at the time the item is discussed.
CONSENT CALENDAR
The Consent Calendar allows the Commission to take action, without discussion, on Agenda
items for which there are no persons present who wish to speak, and no Commission
members who wish to discuss.
NONE
ACTION ITEMS
1. Appeal of Zoning Administrator Decision to Approve a Conditional Use Permit
and Minor Design Review to install a Freestanding Wireless Facility at 999 Old
Lucas Valley Road.
Address: 999 Old Lucas Valley Road
APNs: 165-010-03
General Plan: Parks Recreation and Open Space
Zoning: Parks/Open Space District
Owner/Applicant: Marin Municipal Water District
Appellant: Mont Marin/San Rafael Park Neighborhood Association
ENVIRONMENTAL REVIEW: The project is categorically exempt from the provisions
of the California Environmental Quality Act (CEQA, Public Resources Code §21000,
et seq. and California Code of Regulations, §15000, et seq.) pursuant to Section
15303 of the CEQA Guidelines (New Construction or Conversion of Small Structures).
Project Planner: Margaret Kavanaugh-Lynch margaret.kavanaugh-
lynch@cityofsanrafael.org
Recommended Action - It is recommended that the Planning Commission:
A. Convene a public hearing on the Appeal of the decision of the Acting
Zoning Administrator.
B. Discuss the Staff report, testimony and ask questions of the Staff,
Appellant and Applicant, as needed.
C. Approve the Resolution denying the appeal and affirming the decision
of the Acting Zoning Administrator to approve the project.
DIRECTOR’S REPORT
COMMISSION COMMUNICATION
ADJOURNMENT
Any records relating to an agenda item, received by a majority or more of the Commission less than 72
hours before the meeting, shall be available for inspection online. Sign Language interpreters may be
requested by calling (415) 485-3066 (voice), emailing city.clerk@cityofsanrafael.org or using the California
Telecommunications Relay Service by dialing “711”, at least 72 hours in advance of the meeting. Copies
of documents are available in accessible formats upon request.
The Planning Commission will take up no new business after 11:00 p.m. at regularly scheduled meetings.
This shall be interpreted to mean that no agenda item or other business will be discussed or acted upon
after the agenda item under consideration at 11:00 p.m. The Commission may suspend this rule to discuss
and/or act upon any additional agenda item(s) deemed appropriate by a unanimous vote of the members
present. Appeal rights: any person may file an appeal of the Planning Commission's action on agenda items
within five business days (normally 5:00 p.m. on the following Tuesday) and within 10 calendar days of an
action on a subdivision. An appeal letter shall be filed with the City Clerk, along with an appeal fee of $350
(for non-applicants) or a $4,476 deposit (for applicants) made payable to the City of San Rafael and shall
set forth the basis for appeal. There is a $50.00 additional charge for request for continuation of an appeal
by appellant.
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Community Development Department – Planning
Division
Meeting
Date:
March 12, 2024
Agenda Item:
1
Case Number:
PLAN24-0014
Project
Planner:
Margaret Kavanaugh-
Lynch, Planning Manager
REPORT TO PLANNING COMMISSION
SUBJECT: Public Hearing to consider the Appeal of an Acting Zoning Administrator
Decision to Approve a Conditional Use Permit and Minor Design Review to install a
Freestanding Wireless Facility at 999 Old Lucas Valley Road, Assessor Parcel Number:
165-010-03
EXECUTIVE SUMMARY
On January 17, 2024, The Acting Zoning Administrator held a hearing and considered an
application for a conditional use permit and minor design review to install a freestanding
wireless facility. Based on the findings and subject to the conditions included in the
minutes, the Acting Zoning Administrator approved the project. The Acting Zoning
Administrator Minutes are included as Exhibit B.
On January 23, 2024, The City of San Rafael received a timely appeal of the action of the
Acting Zoning Administrator, it is included as Exhibit C. The Appeal date was originally
set for February 27, 2024 however a representative for the Appellant asked to move the
hearing to the next Planning Commission date to allow for several neighbors to attend.
Staff was able to honor the request.
In San Rafael, appeals of land use projects are governed by Chapter 14.28 of the San
Rafael Municipal Code. Section 14.28.050 - Notice of decision states in part, “After the
hearing, the appellate body shall affirm, modify or reverse the original decision.” To
summarize, the Planning Commission should hold a public hearing and at its conclusion,
affirm, modify or reverse the original decision of the Acting Zoning Administrator, based
on their own findings of fact gathered from the staff report, written record, as well as the
oral and written testimony of the Appellant, Applicant and all other parties that provide
information to the Commission at the hearing.
RECOMMENDATION
It is recommended that the Planning Commission:
(1) Convene a public hearing on the Appeal of the decision of the Acting Zoning
Administrator.
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(2) Discuss the Staff report, testimony and ask questions of the Staff, Appellant and
Applicant, as needed.
(3) Approve the Resolution Denying the Appeal and Affirming the Decision of the Acting
Zoning Administrator to Approve the Project.
PROPERTY FACTS
Address/Location: 999 Old Lucas Valley
Road
Parcel Number(s): 165-010-03
Property Size: 1.05 acres Neighborhood: Mont Marin/San Rafael
Park
Site Characteristics
General Plan
Designation
Zoning District Existing Land-Use
Project Site: Parks Recreation and
Open Space
Parks/ Open
Space District
Jerry Russom
Memorial Park and
Water Tower
North: Parks Recreation and
Open Space
Parks/ Open
Space District
Open Space
South: Parks Recreation and
Open Space
Parks/ Open
Space District
Open Space
East: Parks Recreation and
Open Space
Parks/ Open
Space District
Open Space
West: Parks Recreation and
Open Space
Parks/ Open
Space District
Open Space
Site Description/Setting:
The subject site is located within Jerry Russom Memorial Park, south of Lucas Valley
Road and Miller Creek. The site is accessed from Water Tank Fire Road, which connects
Old Lucas Valley Road to the north and Springs Hill Rife Road at the south. The site has
an existing water tank operated by the Marin Municipal Water District, and an existing cell
tower. It is surrounded on all sides by a 145.39 acre open space area owned by Marin
County Open Space District.
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Figure 1 Vicinity Map
Figure 2 Project Site Plan
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DISCUSSION
Land Use Context
There is a land use context that the Planning Commission needs to consider when
reviewing this project. The first set of regulations is the Telecommunications Act of 1996
and the Spectrum Act of 2012. California cities are preempted from regulating various
aspects of wireless communications facility siting by both state and federal law. There are
both substantive and procedural limitations on reviewing and processing these types of
applications, which are discussed below.
Federal Telecommunication Regulations
The Federal Communications Commission (“FCC”), pursuant to regulations established
under the Telecommunications Act of 1996 (“Act”) and the Spectrum Act of 2012,
regulates the development of wireless communications infrastructure, limiting both the
scope and duration of local government review.
The Act, other laws enacted by Congress, and the implementing regulations adopted by
the FCC, have a significant effect on the City’s ability to regulate wireless communications
applications by preempting the City from regulating in certain areas.
One such area of preemption is Radio Frequency (“RF”) emissions. The City cannot
regulate on the basis of environmental impacts from RF emissions. Environmental
impacts from RF emissions include any potential or perceived health effects of the RF
emissions. The City may only seek confirmation that the WCF will comply with federal
regulations establishing permissible limits on RF emissions.
Additionally, federal regulations prohibit any State or local government from unreasonably
discriminating among providers of functionally equivalent services in the regulation of the
placement, construction, and modification of personal wireless service facilities. (47
U.S.C. § 332(c)(7)(B)(i)).
The federal and state laws also limit or prohibit local discretionary review over certain
other technical aspects of wireless facilities, including demonstration of need or
alternative siting requirements that are excessively burdensome to Applicants. This
application has demonstrated compliance with all applicable FCC standards for RF
emissions, as shown in the application packet included as Exhibit D. As part of the Staff
analysis, the Applicant also provided an Alternative Coverage Map to illustrate that if the
freestanding wireless facility was limited to the maximum allowable height of the zoning
district the minimum coverage would not be provided and the project objective would not
be met. This Map is included as Exhibit E.
Current FCC rules prohibit local governments from regulating in a manner that has the
effect of prohibiting the provision of personal wireless service by materially limiting or
inhibiting the ability of any competitor to compete in a regulatory environment. This
means that local regulations may not prohibit “densifying a wireless network, introducing
new services, or otherwise improving service capabilities.” The FCC’s Declaratory Ruling
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and Third Report and Order entitled Accelerating Wireless Broadband by Removing
Barriers to Infrastructure Investment, WT Docket No. 17-79 (FCC 18-133), Exhibit F,
provides in relevant part as follows, “a state or local legal requirement could materially
inhibit service in numerous ways, not only by rendering a service provider unable to
provide an existing service in a new geographic area or by restricting the entry of a new
provider in providing service in a particular area, but also by materially inhibiting the
introduction of new services or the improvement of existing services.” (FCC 18-133, ¶ 35-
37.)
However, the City retains the authority to regulate the placement and design of wireless
facilities based on objective criteria, so long as reasonable alternatives are available to
the carrier. Specifically, FCC Order No. 18-133 provides that, with regard to Small
Wireless Facilities, local jurisdictions may implement rules for aesthetic and locational
requirements that are “(1) reasonable, (2) no more burdensome than those applied to
other types of infrastructure deployments and are (3) objective and published in advance.”
(FCC 18-133, ¶ 86.) Although the application at issue here is not a Small Wireless
Facility, this guidance from the FCC can be applied to all types of wireless facilities.
Finally, Staff notes that local jurisdictions’ decisions on wireless applications have
permitting time limits as mandated by Federal regulations, commonly referred to as the
“shot clock,” which for this application will expire on March 24, 2024. Given the short
time periods allowed for review local jurisdictions that adopt regulations for wireless
facilities often provide processes that include administrative review, rather than
discretionary review in order to be able to meet these very narrow time-frames.
City of San Rafael Municipal Code
The second set of regulations is located in the City of San Rafael Municipal Code. As
noted in the Acting Zoning Administrator Minutes, the sections that pertain to this project
are:
SRMC 14.16.360 Wireless Communication Facilities
“The purpose of this chapter is to establish “standards to regulate the design and
placement of towers, antennas, and other wireless communication transmission and/or
reception facilities (hereinafter called wireless communication facilities) on public and
private property, including facilities within the public right-of-way to minimize the potential
safety and aesthetic impacts on neighboring property owners and the community, and to
comply with applicable state and federal laws, including the Federal Telecommunications
Act of 1996.”
SMRC Chapter 14.22 Use Permits
“The purpose of this chapter is to consider “uses which may be suitable only in specific
locations in a zoning district or which require special consideration in their design,
operation or layout to ensure compatibility with surrounding uses.”
SMRC Chapter 14.25 Environmental and Design Review
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“The purpose of this of this chapter is to implement “general plan policies concerning the
environment and design by guiding the location, functions and appearance of
development. The key environmental and design goal of the City is to respect and protect
the natural environment and assure that development is harmoniously integrated with the
existing qualities of the City.”
As included in the Acting Zoning Administrator Minutes, findings were made and
conditions were added to respond to each of these chapters before the action was taken.
APPEAL
Staff has summarized each of the issues identified in the appeal below. After each issue,
Staff has included their response. The full appeal is included in this Staff report as Exhibit
C.
Issue 1: No staff report or materials were provided to the public in advance of the hearing.
As you can see from the attached agenda, it would be difficult for the public to understand
the tower height and the number of towers being contemplated.
Staff Response: Staff concurs with this issue. While not legally required, staff reports
prepared in advance of the Acting Zoning Administrator hearings with attachments would
be very helpful to everyone and should be distributed in advance of the Acting Zoning
Administrator hearing. The past practice was to bring all of the information to the hearing
and then send out the minutes with the project description, findings and if appropriate,
conditions of approval after the completion of the hearing. After the Interim Community
Development Director and new Planning Manager discovered this practice, it has been
changed and now staff reports are published before the hearing date so that the public
as well as the applicants can have a clear understanding of the project description, as
well as the draft findings and conditions, if the Staff recommendation is to approve the
project.
Issue 2: San Rafael Municipal Code (SRMC) 14.10 Parks/Open Space provide specifics
about uses. SRMC 14.10.010G. provides that one of the purposes is to “discourage public
utility facilities in open space areas to minimize harm to the area’s visual quality.”
Staff Response: Table 14.10.020 notes that Public and Utility Facilities are permitted with
through a use permit process. Further, this site is already occupied with a water tower
and another wireless facility. In this instance, the visual quality of the open space had
already been disturbed by the other existing uses. Additionally, because another carrier
is located in this area, the City cannot unreasonably discriminate among providers of
functionally equivalent services in the regulation of the placement of the wireless facility.
Issue 3. SRMC 14.10.030 provides a maximum height of 36', with exceptions allowed
subject to the provisions of Chapter 14.24. SRMC 14.24E. provides for height increases,
where “necessary for health or safety purposes, and may only be approved where scenic
views are not adversely affected, and where exceptional design is provided, and if more
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than 5’, must be approved by the Planning Commission. Findings were not made
regarding these issues in the Notice of Decision.
Staff Response: While SRMC 14.10.030 applies generally to development in this zoning
district, Staff are required to use a more specific standard, SRMC 14.16.360, when
working with a wireless facility.
14.16.360 is the City’s Telecommunication Ordinance.
“This section establishes standards to regulate the design and placement of towers,
antennas, and other wireless communication transmission and/or reception facilities
(hereinafter called wireless communication facilities) on public and private property,
including facilities within the public right-of-way to minimize the potential safety and
aesthetic impacts on neighboring property owners and the community, and to comply with
applicable state and federal laws, including the Federal Telecommunications Act of 1996.”
SRMC Section 14.16.360 sets out different levels of review that is required for various
types of wireless facilities. Subsection B.2.a requires discretionary review “for new
ground-mounted facilities (towers and monopoles) or significant additions proposed to
existing facilities that would increase its visual height, overall dimensions and/or lease
area (e.g., more than ten-percent increase in the existing permitted height, overall
dimension, lease area,).” It also notes that, “A Acting Zoning Administrator level use
permit and an environmental and design review permit shall be required for the following
wireless communication facilities pursuant to the requirements of Chapter 14.22, Use
Permits, and Chapter 14.25, Environmental and Design Review Permits, consistent with
the provisions of this section.” Therefore, the Acting Zoning Administrator level of
discretionary review for this project was appropriate.
Finally, SRMC B.2.d. offers Staff some flexibility as to the body of decision. It states, “The
community development director may elevate the project for review and action by the
planning commission or refer a project to the design review board for its recommendation,
as determined necessary to assure that appropriate stealth designs are being proposed
to the maximum extent practicable, that the facility location is suitable, that development
appropriately responds to its setting, and that the requirements of this section are
substantially addressed.”
In this case, the determination was originally made by a previous Community
Development Director and the project was under review when the current Interim Director
and Planning Manager joined the City. However, when the question of proper purview
was raised at the hearing, the Acting Zoning Administrator and the Associate Planner
reviewed the municipal code and verified that it was appropriate to keep the project at the
Acting Zoning Administrator level of review in order to expedite review and meet the
applicable shot clocks.
As such, the Acting Zoning Administrator properly considered the requirements of SRMC
14.16.360 and determined that the height of the proposed facility was appropriate
because this additional height is necessary for the wireless provider to be able to provide
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services to its subscribers. In addition, she noted that some of the additional height
proposed will be created by faux “crown” of the “monopine”- or “monoak” - type facility,
which will partially hide from view the facility by mimicking a tapered tree silhouette. This
finding, along with Condition No. 12 listed below enabled the Acting Zoning Administrator
to be an acceptable aesthetic solution to the proposed overall height of the project.
Issue 4: SRMC 14.10.030 also refers to Chapter 14.16 for site development standards.
SRMC 14.16.360 addresses wireless communication facilities. 14.16.360A.3 encourages
“the joint use of new and existing ground mounted facility monopole/tower sites as a
primary option rather than construction of additional single-use towers.” The Applicant
stated that the existing Sprint pole won't support more equipment. We request the City
evaluate an alternative that requires replacement of the existing Sprint pole with a new
pole that will support all the equipment.
Staff Response: There is no legal basis to require an existing wireless facility (the Sprint
pole) to replace its equipment in order to support the equipment of another carrier. The
City must analyze the development application it currently has before it in a manner that
is consistent with the law. The Acting Zoning Administrator analyzed the application and
determined that it met the requirements of SRMC 14.16.030 and granted the application
with conditions of approval. These conditions of approval did add condition of approval
#26 to require the applicant to support future co-location. Please see list of conditions
included at the end of Exhibit B.
Issue 5: The application contains a request for a height of 56'. Why aren't iterations
provided to balance coverage versus visual impacts? For example, every 5': at 41'; 46';
and 51'? The design of additional antenna facilities should be as low, stealth, and
inconspicuous as possible. An Alternative Site Analysis per SRMC 14.16.360D.8 should
be prepared by the Applicant, and should be reviewed by Staff or a third party and both
the analysis and review should be included in a Staff report attached to the agenda. The
site analysis should include a narrative describing alternative sites that were considered
that would meet coverage objectives, a coverage map, alternative designs, heights, and
placements that would meet coverage objectives. This site is one of the least preferred
locations, therefore, the analysis will need to demonstrate that the site is critical to meet
coverage objectives, and there is no feasible alternative site that could be selected. The
analysis should provide supporting reasons why the alternate sites were infeasible and
rejected, why co-location is not being pursued, and why the proposed site is superior from
a technical or other standpoint to the others considered. When asked at the hearing by
the hearing officer how the proposed height was determined, the Applicant response was
“that’s what the engineers came up with.” We feel that is not an adequate basis to exceed
the height limit by 56%. Additional findings are needed in the Notice of Decision to support
whatever height is approved.
Staff Response: The application which is publicly available online, included the
information required by SRMC 14.16.360.D. The application also described the objective
of the project, which is to improve coverage and capacity along an area centered on Lucas
Valley Road and Las Galinas Avenue and a Coverage Map which illustrated the both the
need for the wireless facility and coverage provided once the wireless facility was
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completed. While completing the analysis, Staff asked the Applicant to provide a second
Coverage Map to model what the coverage would look like if the wireless facility was
limited to the maximum height of 36 ft. The second Coverage Map is included as Exhibit
E. It shows a far more limited coverage in the objective areas, supporting the need for the
proposed height included in the application.
In addition, the Acting Zoning Administrator questioned the Applicant at the hearing to
confirm how the Applicant identified the height of the wireless facility, and he confirmed
that the engineers set the height to meet the objective. That statement, along with the
application information, the supplemental submittal and Staff analysis confirmed to the
Acting Zoning Administrator that the height proposed is what is required to be allowed by
FCC regulations in order to not “materially inhibit” the ability of wireless providers to
provide services.
Item 6. SRMC 14.360.360G.3 provides required findings regarding the location, and that
the proposal will avoid or minimize adverse effects. These findings were not made in the
Notice of Decision. How was it determined that a mockup of the facility (e.g., story-poles)
is not required at the site?
Staff Response: The findings for SRMC 14.16.360.G.3 are as follows:
a. “The location of the proposed facility site is essential to meet the service demands
of the carrier and no other alternative co-location, existing development or utility
facility site, or type of antenna support structure is feasible. This shall be
documented by the Applicant providing a list of the locations of preferred
technically feasible sites, the good faith efforts and measures taken by the
Applicant to secure these preferred sites, and the specific reasons why these
efforts and measures were unsuccessful.”
b. “The use of a monopole for the proposed facility by itself or in combination with
other existing, approved, and proposed facilities will avoid or minimize adverse
effects related to land use compatibility, visual resources and public safety.”
The application does include an Alternative Site Analysis, noting the objective, the
areas in the vicinity that might work to meet the objective, including the other wireless
facility in the area, and why none of these sites would be successful.
Further, Acting Zoning Administrator did find at the hearing that the use of a new
monopole, using either a faux pine or oak finish, and at the height proposed, would
minimize adverse effects related to land use compatibility, visual resources and public
safety in that it is being located on a site that already contains an existing water tower
site that has another wireless facility, in an otherwise natural open space area. And
as conditioned, it will be constructed to meet all federal, state and local codes related
to public safety.
In lieu of requiring story poles in a wooded area, the Acting Zoning Administrator found
the photo simulations provided adequate visual representation of the proposed
project. SRMC 14.16.360.D.10 allows the Director to make that determination.
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Item 7. The easement connection to Old Lucas Valley Road, and the Old Lucas Valley
Road easement through the City’s Jerry Russom Park require ongoing maintenance. Old
Lucas Valley Road is deteriorating and the upslope and downslope shoulders are failing.
The Applicant and the other users of the road need to enter into a long-term maintenance
agreement now before additional construction traffic occurs. This is designated as a Class
1 bikeway in the City's Master Plan.
Staff Response: As noted in the Acting Zoning Administrator Minutes, the Acting Zoning
Administrator explained to the community member at the hearing that it was not legally
possible to require the Applicant to maintain the access road, owned by others, however any
damage caused by the construction or maintenance of the facility would be the responsibility
of the Applicant.
Item 8: We request that the Water Tank Fire Road trail remain open to the public during
construction and maintenance.
Staff Response: The Planning Commission may choose to request that the Applicant
and/or Property Owner volunteer to leave the Water Tank Fire Road Trail open during
construction and maintenance, although these parties may choose to limit the Trail for
public safety reasons. Staff has no way to require this access and finds it may at times
be unsafe to do so.
Item 8: SRMC 14.16.360F requires notice to all property owners within 1000’. We request
that notice be provided for the Planning Commission meeting.
Staff Response: The section noted in the Appellant’s letter references notice
requirements for the public meeting or hearing to consider the use permit and or
environmental and design review permit -not an appeal. The Appeal was noticed in
compliance with the SRMC Chapter 14.29 Public Notice. This is the chapter referenced
as the required process for public notice in Chapter 14.28 Appeals. The public notice for
the appeal was mailed to owners of the project site and Applicant, as well as the affected
Homeowner’s Association, and any nonowner occupants and tenants within a radius of
three hundred feet (300′) from the exterior boundaries of the property that is the subject
of the meeting or hearing. In addition, the public hearing notice was included in the Marin
Independent Journal dated February 24, 2024.
Item 9: General Plan Policy PROS-3.9 addresses Utilities in Open Space. We request a
consistency determination in the Notice of Decision.
Staff Response: In the Finding A of the Environmental and Design Review component of
the Acting Zoning Administrator Minutes, the Acting Zoning Administrator noted, “The
property is in the Parks, Rec., and Open Space General Plan land use designation. The new
equipment will be located at a site with previously approved telecommunication facilities. The
design of the new facility has been reviewed pursuant to SRMC § 14.16.120 as the pole will
extend above the established building height limit for the zoning district. The proposed new
facility will provide extended telecommunication services for the surrounding area per Policy
CSI-4.16 of the General Plan 2040.”
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The Appellant is requesting an additional consistency with the General Plan for Policy PROS-
3.9. PROS-3.9 states, “Discourage large-scale utility infrastructure such as electric
transmission lines, large wind turbines, and cellular phone towers in local open space
areas. Where such facilities already exist, or where there are no other siting options,
utilities should be located and designed to minimize harm to avian life and the area’s
environmental and visual quality.”
As noted in this Staff report, the application does include an Alternative Site Analysis,
noting the objective, the areas in the vicinity that might work to meet the objective,
including the other wireless facility in the area, and why none of these sites would be
successful. Staff continues to find that the use of a new monopole, using either a faux
pine or oak finish at the height proposed, would minimize adverse effects related to land
use compatibility, visual quality in that it is proposed to be located on a site that already
contains an existing water tower and has another wireless facility, in an otherwise natural
open space area. Staff therefore finds this project to be consistent with the General Plan
policy identified in the Appeal.
Item 10: Notice of Decision
The Site Description references “several existing cell towers.” We believe that is incorrect,
and it could be misleading in that someone may think this is a very industrialized area,
when in fact it is Open Space.
Staff Response: Staff agrees that the term “several existing cell towers” is stated in the
site description of the Acting Zoning Administrator Minutes. Staff apologizes if this left the
impression that this was an industrialized area. Other parts of the hearing did include the
discussion of the site and reviewing the photo simulations that illustrated the fact that the
project site is located in an area comprised of wooded open space. This point also
illustrates the need to have a staff report prepared and released before the Acting Zoning
Administrator hearing so a more comprehensive presentation can be made.
Item 11. Finding D. refers to “privately owned land.” The site is public land, owned by the
Marin Municipal Water District.
Staff Response. Staff agrees that the site is owned by the Marin Municipal Water District,
a type of special district. And, Staff continues to note that there will be with minimal access
from the public right-of-way. The facility itself will be surrounded by fencing and will not be
open to the public.
Item 12. Request for refund of appeal fee.
SRMC 14.24.020E. provides that height exceptions over 5' are referred to the Planning
Commission. SRMC 14.16.360G.3 provides for approval by the Planning Commission or
Acting Zoning Administrator. We concur that for a height of less than 41’, a case could be
made for Acting Zoning Administrator approval for this application. However, SRMC
14.02.020F provides that when there is a conflict in the Code, the more restrictive
controls. Therefore, we feel the appropriate body to have reviewed this application is the
Planning Commission, and we request our appeal fee be refunded.
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Staff Response: As noted in the Staff Response to Item #3, this application was correctly
reviewed under SRMC 14.16.360, the City’s Telecommunication Ordinance, which is
more specific to this application.
“This section establishes standards to regulate the design and placement of towers,
antennas, and other wireless communication transmission and/or reception facilities
(hereinafter called wireless communication facilities) on public and private property,
including facilities within the public right-of-way to minimize the potential safety and
aesthetic impacts on neighboring property owners and the community, and to comply with
applicable state and federal laws, including the Federal Telecommunications Act of 1996.”
SRMC Section 14.16.360 sets out different levels of review that is required for various
types of wireless facilities. Subsection B.2.a of SRMC 14.16.360 requires discretionary
review “for new ground-mounted facilities (towers and monopoles) or significant additions
proposed to existing facilities that would increase its visual height, overall dimensions
and/or lease area (e.g., more than ten-percent increase in the existing permitted height,
overall dimension, lease area,).” It also notes that, “A Acting Zoning Administrator level
use permit and an environmental and design review permit shall be required for the
following wireless communication facilities pursuant to the requirements of Chapter 14.22,
Use Permits, and Chapter 14.25, Environmental and Design Review Permits, consistent
with the provisions of this section.” Therefore, Staff was correct to use the Acting Zoning
Administrator level of discretionary review for this project.
The Appellant chose to file an appeal of the Zoning Administrator’s decision. Per the
Master Fee Sheet, an appeal fee of $300 is required for any appeal and therefore the
appeal fee was appropriate.
ENVIRONMENTAL REVIEW
The project is categorically exempt from the provisions of the California Environmental
Quality Act (CEQA, Public Resources Code §21000, et seq. and California Code of
Regulations, §15000, et seq.) pursuant to Section 15303 of the CEQA Guidelines (New
Construction or Conversion of Small Structures).
CORRESPONDENCE
No correspondence has been received by Staff as of the date of the creation of this Staff
report.
OPTIONS
The Planning Commission has the following options:
1. Adopt the Draft Resolution (Exhibit 1) Denying the Appeal and Affirming the
Decision of the Acting Zoning Administrator to Approve the Project; or
2. Modify the decision of the Acting Zoning Administrator and provide findings to Staff
to in order to Approve the Project with certain modifications, changes, or additional
conditions of approval; or
3. Reverse the decision of the Acting Zoning Administrator and provide findings to
Staff in order to Deny the project. Staff would then prepare a resolution with those
13
findings and return to the Planning Commission at a future date but prior to March
25, 2024.
EXHIBITS
A. Draft Resolution
B. Acting Zoning Administrator Minutes – January 17, 2024
C. Appeal – January 23, 2024
D. Application Packet – September 26, 2023
E. Alternative Coverage Map – December 20, 2023
F. FCC 18-133
Resolution for Appeal of 999 Old Lucas Road Plan24-0014
RESOLUTION ##
RESOLUTION OF THE SAN RAFAEL PLANNING COMMISSION AFFIRMING THE
DECISION OF THE ACTING ZONING ADMINISTRATOR AND APPROVING THE WIRELESS
FACILITY LOCATED AT 999 OLD LOCAS VALLEY ROAD, APN: 165-010-03
WHEREAS, on September 26, 2023, the City of San Rafael received Use Permit (UP23-
026) and Minor Environmental Design Review (ED23-059) to install a Freestanding Wireless
Facility at 999 Old Lucas Valley Road, Assessor Parcel Number: 165-010-03 in the (P/OS)
Parks/Open Space zoning district; and
WHEREAS, on October 26, 2023, the Project was determined to be complete by City
Staff: and
WHEREAS, on January 17, 2024, the Project was heard at a duly noticed public hearing
held by the Acting Zoning Administrator. Based on the testimony presented at the hearing and
the information contained in the Application, the Acting Zoning Administrator approved the
Project, subject to the findings and based on the conditions of approval included in Minutes of the
Acting Zoning Administrator Hearing; and
WHEREAS, on January 23, 2024, an Appeal (PLAN24-0014) was submitted to the City of
San Rafael, by Craig Tackabery, John Rojas, Paulette McDevitt, Will Hanamoto, Nicole Love and
Sarah McClendon, Board members of the Mont Marin/San Rafael Park Neighborhood
Association; and
WHEREAS, the San Rafael Planning Commission held a duly noticed public hearing on
the requested Appeal accepting all oral and written public testimony and the written report of the
Community Development Department staff; and
WHEREAS, upon review of the application, the Planning Commission finds that the project
is categorically exempt from the provisions of the California Environmental Quality Act (CEQA,
Public Resources Code Section 21000, et seq. and California Code of Regulations, Section
15000, et seq.) pursuant to Section 15303 of the CEQA Guidelines (New Construction or
Conversion of Small Structures):
NOW THEREFORE BE IT RESOLVED, the Planning Commission makes the following
findings relating Use Permit (UP23-026) and Minor Environmental Design Review
(ED23-059):
ENVIRONMENTAL AND DESIGN REVIEW FINDINGS
(ED23-059)
A. The project design is in accord with the general plan, the objectives of the zoning
ordinance and the purposes of this chapter:
Resolution for Appeal of 999 Old Lucas Road Plan24-0014
The project is located in the Parks, Recreation and Open Space General Plan land use
designation. It will provide extended telecommunication services for the surrounding area
per Policy CSI-4.16 of the General Plan 2040. It is also in line with Policy PROS-3.9 as
the new ground-mounted telecommunication facility, using either a faux pine or oak finish
at the height proposed, would minimize adverse effects related to land use compatibility,
visual quality in that it is proposed to be located together on a site that already contains
an existing water tower and another wireless facility, in an otherwise natural open space
area.
The project has also been reviewed as a new ground-mounted telecommunication facility
in accordance with SRMC Section 14.16.360. Projects of this type require review by the
Zoning Administrator, including facilities which exceed the general height requirement for
the zoning district. The project, based on the findings and subject to the conditions
included in this resolution, shall be in accord with the General Plan, the objectives of the
zoning ordinance and the purposes of this chapter.
B. That the project design is consistent with all applicable site, architecture and
landscaping design criteria and guidelines for the district in which the site is
located;
The project design conforms with all applicable site, architecture and landscaping design
criteria and guidelines for the district in which the site is located except for the maximum
height. It will exceed the surrounding height requirement for the Parks/Open Space Zoning
District. This additional height is found to be necessary for the wireless provider to be able
to provide services to its subscribers. Some of the additional height proposed will be
created by faux “crown” of the “monopine”- or “monoak” - type facility, which will partially
hide from view the facility by mimicking a tapered tree silhouette. With the conditions listed
below (Condition No. 12) this is found to be an acceptable aesthetic solution to the
proposed overall height of the project.
C. That the project design minimizes adverse environmental impacts; and
The project design minimizes environmental impacts in that the project has prepared an
Electromagnetic Energy (RF_EME) Compliance Report (RF Report) for the proposed
project which demonstrates that the proposed AT&T installation is in compliance with
Federal Communications Commission (FCC) regulations “upon proper installation of
recommended signage and/or barriers” (see Condition No. 14 below).
D. That the project design will not be detrimental to the public health, safety or welfare,
nor materially injurious to properties or improvements in the vicinity.
The design of the proposed project would not be detrimental to the public health, safety
or welfare, nor materially injurious to properties or improvements in the vicinity in that the
project given that an RF Report has been provided which concluded that the site would
operate below the maximum radio-frequency (RF) exposure limit set by the FCC; and it
will require the review and issuance of permits by the City of San Rafael Building Division
and Fire Department. Additionally, the site is located on land owned by the Marin Municipal
Water District with minimal access from the public right-of-way. The facility will be
surrounded by fencing and will not be open to the public.
Resolution for Appeal of 999 Old Lucas Road Plan24-0014
Use Permit Findings
(UP23-026)
A. That the proposed use is in accord with the general plan, the objectives of the
zoning ordinance, and the purposes of the district in which the site is located;
The project is located in the Parks, Recreation and Open Space General Plan land use
designation. It will provide extended telecommunication services for the surrounding area
per Policy CSI-4.16 of the General Plan 2040. It is also in line with Policy PROS-3.9 as
the new ground-mounted telecommunication facility, using either a faux pine or oak finish
at the height proposed, would minimize adverse effects related to land use compatibility,
visual quality in that it is proposed to be located together on a site that already contains
an existing water tower and another wireless facility, in an otherwise natural open space
area.
The project has also been reviewed as a new ground-mounted telecommunication facility
in accordance with SRMC Section 14.16.360. Projects of this type require review by the
Zoning Administrator, including facilities which exceed the general height requirement for
the zoning district. The project, based on the findings and subject to the conditions
included in this resolution, shall be in accord with the General Plan, the objectives of the
zoning ordinance and the purposes of this chapter.
B. That the proposed use together with the conditions will not be detrimental to the
public health, safety or welfare, or materially injurious to property or improvements
in the vicinity, or the general welfare of the city;
The proposed use, together with the conditions included in this resolution thereto, will not
be detrimental to the public health, safety or welfare, or materially injurious to properties
or improvements in the vicinity, or to the general welfare of the city given that an RF Report
has been provided which concluded that the site would operate below the maximum radio-
frequency (RF) exposure limit set by the FCC; and will require the review and issuance of
permits by the City of San Rafael Building Division and Fire Department. Additionally, the
site is located on land owned by the Marin Municipal Water District with minimal access
from the public right-of-way. The facility will be surrounded by fencing and will not be open
to the public.
C. That the proposed use complies with each of the applicable provisions of the zoning
ordinance.
The proposed project has been reviewed as a new ground-mounted telecommunication
facility in accordance with SRMC Section 14.16.360. Projects of this type require review
by the Zoning Administrator, including facilities which exceed the general height
requirement for the zoning district. The proposed use, together with the conditions
included in this resolution thereto, will comply with the applicable provision of the zoning
ordinance.
Resolution for Appeal of 999 Old Lucas Road Plan24-0014
CONDITIONS OF APPROVAL
Planning Division Standard Conditions of Approval
1. Approved Project. This Environmental and Design Review Permit (ED23-059) and Use
Permit (UP23-026) conditionally approves the installation of a new freestanding wireless
facility for AT&T at 999 Old Lucas Valley Road. Plans submitted for building permit shall
be in substantial conformance to the approved plans dated August 29, 2023, with regard
to building techniques, materials, elevations, and overall project appearance except as
modified by these conditions of approval. Minor modifications or revisions to the project
shall be subject to review and approval by the Community Development Department,
Planning Division. Modifications deemed greater than minor in nature by the Community
Development Director shall require review and approval by the Zoning Administrator.
2. Subject to All Applicable Laws and Regulations. The approved use and/or construction is
subject to, and shall comply with, all applicable City Ordinances and laws and regulations
of other governmental agencies. Prior to construction, the applicant shall identify and
secure all applicable permits from the Building Division, Public Works Department and
other affected City divisions and departments.
3. Permit Validity. This Permit shall become effective on March 12, 2024 and shall be valid
for a period of two (2) years from the date of final approval or March 12, 2026, and shall
become null and void if a building permit is not issued or a time extension granted by
March 12, 2026. A permit for the construction of a building or structure is deemed
exercised when a valid City building permit, if required, is issued, and construction has
lawfully commenced. A permit for the use of a building or a property is exercised when, if
required, a valid City business license has been issued, and the permitted use has
commenced on the property.
4. Building Permit. Prior to the commencement of work, a building permit shall be obtained
from the Building Division.
5. Construction Hours. Except as otherwise provided in subsection B of the San Rafael
Municipal Code Section 8.13.050, or by the planning commission or city council as part of
the development review for the project, on any construction project on property within the
city, construction, alteration, demolition, maintenance of construction equipment,
deliveries of materials or equipment, or repair activities otherwise allowed under applicable
law shall be allowed between the hours of seven a.m. (7:00 a.m.) and six p.m. (6:00 p.m.),
Monday through Friday, and nine a.m. (9:00 a.m.) and six p.m. (6:00 p.m.) on Saturdays,
provided that the noise level at any point outside of the property plane of the project shall
not exceed ninety (90) dBA. All such activities shall be precluded on Sundays and
holidays. Violation of the foregoing may subject the permittee to suspension of work by
the chief building official for up to two (2) days per violation.
6. Colors, Materials, and Lighting. Colors, materials and lighting shall be designed to avoid
creating undue off-site light and glare impacts. New or amended building or site colors,
materials and lighting shall comply with San Rafael Municipal Code Section 14.16.227,
Resolution for Appeal of 999 Old Lucas Road Plan24-0014
subject to review and recommendation by the police department, public works department,
and community development department.
7. Exterior Lightning. Any exterior lighting shall be subject to a 90-day post installation
inspection to allow for adjustment and assure compliance with San Rafael Municipal Code
Section 14.16.227 - Light and glare. The project proponent is responsible for hiring a
qualified lighting expert to conduct the inspection and to prepare a summary analysis
verifying the projects meets City standards to be submitted to the Planning Division.
8. Rooftop Equipment. Equipment placed on the rooftop of a building or in an exterior yard
area shall be adequately screened from public view. See Chapter 14.16 for exclusions to
maximum height requirements and Chapter 14.25 for design review requirements.
9. Temporary Fences. Temporary security fences may be erected around construction sites
during the time a valid building permit is in effect for construction on the premises.
Temporary security fences need not comply with San Rafael Municipal Section 14.16.140
and must be immediately removed upon completion of the construction authorized by the
building permit.
10. Landscape Maintenance. All landscaping shall be maintained in good condition and any
dead or dying plants, bushes, trees, or groundcover plantings shall be replaced with new
healthy stock of a size appropriate and compatible with the remainder of the growth at the
time of replacement.
11. Approved Materials and Colors. The approved materials and colors for the project shall
be indicated on project plans submitted for building permit and implemented in the field.
Any changes in materials or colors shall be subject to prior review and approval by the
City Planning Division, and a determination as to whether the change is major or minor.
Any changes to the approved materials or colors shall be clearly indicated on plans and
receive written verification that this change has been reviewed and approved by the
Planning Division.
ED23-059 Conditions of Approval
12. Screening Method. Prior to issuance of a building permit, the applicant shall submit a
revised faux tree-type design to better mimic a tree type native to the area (i.e. oak). The
Community Development Director shall review the faux pine and the faux oak design and
select the option most appropriate for the site. The applicant shall revise the building
permit to include that selection.
13. Equipment Revision. No future revision of wireless equipment (e.g. antenna, coax or
appurtenance) shall be changed out for a like piece of equipment without painting it to
match.
14. Signage. Proposed signage shall include the signage recommended in the Radio
Frequency – Electromagnetic Energy (RF_EME) Compliance Report (dated August 19,
2022) to conform with FCC regulations.
Resolution for Appeal of 999 Old Lucas Road Plan24-0014
15. All site improvements shall be maintained in good, undamaged conditions at all times. The
antenna shall be maintained, and any weathered portions shall be repaired in a timely
manner to ensure visual quality (refer to Condition No. 13).
UP23-026 Conditions of Approval
16. The Use Permit (UP23-026) approving a new AT&T site build of an unmanned
telecommunications facility consisting of a lease area with associated ground-mounted
equipment shelter and generator and utilities to the site location; and a “monopine”/
“monoak” type facility with associated antennas and antenna equipment. The size, colors,
and materials shall be as shown on the plan set dated August 29, 2023. This Use Permit
(UP23-026) shall run concurrently with the associated Environmental and Design Review
Permit (ED23-059). Should the Environmental and Design Review Permit (ED23-059)
expire, the Use Permit (UP23-026) shall also expire and become invalid.
17. Facility Maintenance. The service provider shall properly maintain this facility during the
life of the permit. In the event the wireless antennas become obsolete and abandoned, all
wireless antennas and associated accessory structures shall be removed from the subject
property within thirty (30) days of abandonment. The service provider shall notify the
Planning and Building Divisions within ten (10) days of abandonment. The removal of the
entire facility shall take place within twenty (20) days of the notification of the abandonment
and shall be restored to the design prior to the installation of the wireless antennas. Failure
to remove the equipment shall be subject to action by the City’s Code Enforcement
Division.
18. Notification of Abandonment of Use. The applicant, or its successor, shall remove any
abandoned facility or restore existing approved use of a facility within 90 days of
termination of use.
19. Validation of Proper Operation. AT&T (or its successors) shall submit the results of the
post-installation testing to the Community Development Department, Planning Division.
The testing shall be conducted once the antennas and equipment are installed and
operating at maximum capacity. The testing shall entail verification of compliance with the
FCC’s Radio Frequency (RF) emission standards. This testing shall be conducted during
normal business hours and on non-holiday weekdays with the facility operating at
maximum power. The telecommunication provider, or its successor, shall provide the
Community Development Director with a report of the tests results.
20. Five Year Review. Every five (5) years, the wireless telecommunications provider, or its
successor(s), shall measure the RFR of the facility approved by this Environmental and
Design Review Permit (ED23-059) and Use Permit (UP23-026). The City may contract to
perform the independent testing with a qualified expert and the current wireless
telecommunications provider, or its successor(s), shall bear the proportionate cost of
testing for the wireless telecommunications facility approved by this Environmental and
Design Review Permit and Use Permit.
a. Testing must be coordinated with and may be observed by the City or its
representative. The test measurement observations shall be recorded in a written
report prepared by AT&T or its contractor and shall specify the location of the
Resolution for Appeal of 999 Old Lucas Road Plan24-0014
measurement, the peak measured signal strength in units of mW/cm² and shall be
correlated to the plan view of the project plans on Sheet A-5. The report shall also
provide full measurement equipment identification, current calibration certificate(s)
for all equipment, and the qualifications of the person(s) conducting the test.
b. AT&T shall tender its written report documenting the testing and observations to
the City for review prior to unattended operations of its project. The City shall within
fourteen (14) business days notify AT&T by writing whether the testing
demonstrates compliance with FCC OET Bulletin 65 RF emissions safety
standards under the General Population/Uncontrolled standard, and such
notification shall not be unreasonably withheld. Upon the City’s notification, AT&T
may commence unattended operation of its project.
c. AT&T shall promptly reimburse the City for all of the City’s actual costs in observing
the testing and reviewing the report for compliance with the FCC OET Bulletin 65
RF safety requirements, and if necessary for verifying any subsequent remedial
measures required to secure areas on the roof as required in these conditions.
21. Changes Affecting RF. Any operational or technological changes to an approved wireless
communication facility affecting RFR exposures shall be reported promptly to the City,
including any change of ownership. The City may require new RFR testing within 45 days
of notification.
22. Changes to FCC Standards. In the event the FCC changes their standards, the owner or
operator of an approved wireless facility shall make necessary changes or upgrades to
their facilities in order to comply with any newly adopted FCC standards for RFR. The
upgrades to facilities shall be made no later than 90 days after notification of the changed
FCC standards and the owner or operator shall notify the city in writing that the upgrades
have been completed.
23. If technology improvements allow for the use of materially smaller or less visually obtrusive
antennas and screening equipment, or equipment that generates less RF emissions, the
current wireless telecommunication provider, or its successors, shall replace or upgrade
the antennas and screening design. In the event of replacement or upgrading, the owner
or operator of an approved wireless facility may be required to obtain a new Environmental
and Design Review Permit and/or Use Permit with associated fees.
24. After transmitter and antenna system optimization, but prior to unattended operations of
this project, AT&T or its representative must conduct on-site post-installation RF
emissions testing to demonstrate actual compliance with the FCC OET Bulletin 65 RF
emissions safety rules for General Population/Uncontrolled RF exposure in all sectors.
For this testing, the transmitter shall be operating at maximum operating power, and the
testing shall occur outwards to a distance where the RF emissions no longer exceed the
Uncontrolled/General Population limit.
25. Full initial and ongoing compliance with all FCC RF safety rules in OET Bulletin 65 (as
may be amended or superseded or replaced) is a continuing material requirement and
condition of this Permit.
Resolution for Appeal of 999 Old Lucas Road Plan24-0014
26. Future Co-Location. Per SRMC Section 14.16.360.D.9 all new ground-mounted towers or
monopoles, require a signed statement that the carrier, or its future successors, will
cooperate with the city to allow future co-location of antennas at the proposed site if it is
approved and that the carrier has reviewed and agrees to comply with all post-approval
requirements of this section. This agreement is required to be created an executed prior
to the final inspection of the building permit.
The foregoing Resolution was adopted at the regular City of San Rafael Planning Commission
meeting held on the 11th day of July, 2023. The Planning Commission’s Action is final unless it
is appealed to the City Council within five (5) working days pursuant to San Rafael Municipal
Code Section 14.28.030 - Filing and time limit of appeals
Moved by _______________ and seconded by _______________. The vote is as follows:
AYES:
NOES:
ABSENT:
ABSTAIN:
SAN RAFAEL PLANNING COMMISSION
ATTEST: _________________________
Margaret Kavanaugh-Lynch,
Secretary
BY: __________________________
Jon Haveman, Chair
SAN RAFAEL ZONING ADMINISTRATOR
REGULAR HEARING
January 17, 2024
Minutes and Notice of Decision
(Pursuant to San Rafael Municipal Code 14.28.050)
10:00 – 10:45 am 1. 999 Old Lucas Valley Road - Requests for a Conditional Use
Permit and Minor Environmental and Design Review Permit to
install a new freestanding wireless facility for AT&T at 999 Old
Lucas Valley Road; 165-010-03; Parks/Open Space Zoning District
(P/OS); MARIN MUNICIPAL WATER DISTRICT, Owner; Don
Shiveley, Applicant; File No: ED23-059/UP23-026/TEL23-003
(PLAN23-134)
Project Planner: Renee Nickenig, Associate Planner
PERMITS REQUIRED
• Environmental and Design Review Permit (ED23-059)/Conditional Use Permit
(UP23-026). Pursuant to San Rafael Municipal Code (SRMC) Section
14.16.360.B.2.a, a zoning administrator level use permit and a minor environmental
and design review permit are required for new ground-mounted facilities.
SITE DESCRIPTION
The subject site is located within Jerry Russom Memorial Park, south of Lucas Valley Road
and Miller Creek. The site is accessed from Water Tank Fire Road, which connects Old Lucas
Valley Road to the north and Springs Hill Rife Road at the south. The Site has an existing
water tank operated by the Marin Municipal Water District, and several existing cell towers.
PROJECT DESCRIPTION
The project proposes to install a new, freestanding wireless telecommunications facility north
of the existing water tank at 999 Old Lucas Valley Road. The proposed facility would be a
freestanding, “monopine” style stealth wireless facility with screening mimicking the
surrounding tree types extending a maximum of 56 feet above the existing grade. A total of
12 panel antennas are proposed to be mounted on the pole, a maximum 49 feet above
existing grade.
The “monopine” would be placed within a 25-foot by 25-foot concrete platform surrounded by
a 6’ tall chain link fence. The ground equipment would include an eight (8)-foot by eight (8)-
foot walk-in equipment cabinet and a 30 kW diesel emergency backup generator and 190
gallon fuel tank.
ZA Minutes and Notice of Decision
January 18, 2024
999 Old Lucas Valley Road
ED23-059/UP23-026 (PLAN23-134)
2
PUBLIC HEARING
On January 17, 2024, a Zoning Administrator hearing was convened for this Environmental
and Design Review Permit (ED23-059) and Conditional Use Permit (UP23-026). The Acting
Zoning Administrator for this meeting, Margaret Kavanaugh-Lynch, opened the hearing at
10:00 am.
A. Planner Presentation
The Project Planner, Renee Nickenig, provided an overview of the proposed project, the
project findings for approval, and the draft project conditions.
B. Applicant presentation
The applicant, Kevin Gallagher, was present at the meeting. The applicant presented the
project and addressed concerns and questions on the project, including feasibility of co-
location and the reasoning for proposing an over height facility.
C. Public Comments
Craig Tachabery was present at the meeting to represent the Mont Marin/San Rafael Park
Neighborhood Association. He shared a list of concerns, including:
1. The tower will be very visible above the existing vegetation. Can it be lower and
less conspicuous?
2. The project proposes to use Old Lucas Valley Road and a proposed easement for
construction and continuing maintenance. Old Lucas Valley is not being
adequately maintained and is continuing to deteriorate, both the surface and the
adjacent slopes below and above the road. Please provide a requirement that the
applicant and other easement holders enter into a long-term maintenance
agreement.
3. This level of review should be completed by the Planning Commission, not the
Zoning Administrator.
4. A pine tree is an inappropriate species to use in this location. An oak tree would
be more appropriate as the site is located in a group of oak trees.
D. Zoning Administrator Discussion
A discussion took place between the Zoning Administrator, the Associate Planner, the
member of the public and the Applicant:
1. The Applicant noted that the proposed height of the tower is the minimum height
possible to provide essential to meet the service demands of the carrier.
2. The Acting Zoning Administrator noted that it was not legally possible to require
the Applicant to maintain the access road, owned by others, however any damage
caused by the construction or maintenance of the facility would be the
responsibility of the Applicant.
3. The Associate Planner and the Acting Zoning Administrator reviewed and
discussed the sections of the municipal code that applied to the application. The
ZA Minutes and Notice of Decision
January 18, 2024
999 Old Lucas Valley Road
ED23-059/UP23-026 (PLAN23-134)
3
Associate Planner noted that this level of review had also been discussed with the
former Director of Community Development Department and the City’s legal
counsel. Staff confirmed that Zoning Administrator was an appropriate body of
decision.
4. The Applicant and staff discussed the issue regarding use of a pine versus oak
tree and the Applicant agreed that either type of installation would be acceptable
to his client.
The Acting Zoning Administrator closed the public hearing.
E. Action
The Zoning Administrator Approved the request for an Environmental and Design Review
Permit (ED23-059) and Conditional Use Permit (UP23-026) subject to the conditions listed
below.
These conditions of approval are listed below and included as part of the Zoning
Administrators decision.
The meeting was adjourned at approximately 10:45 am.
FINDINGS
CEQA Findings
The project is categorically exempt from the provisions of the California Environmental Quality
Act (CEQA, Public Resources Code §21000, et seq. and California Code of Regulations,
§15000, et seq.) pursuant to Section 15303 of the CEQA Guidelines (New Construction or
Conversion of Small Structures). Furthermore, none of the exceptions found in Government
Code §15300.2 apply.
Environmental and Design Review Permit (ED23-059) Findings (SRMC §14.25.090)
A. That the project design is in accord with the general plan, the objectives of the
zoning ordinance and the purposes of this chapter;
The property is in the Parks, Rec., and Open Space General Plan land use
designation. The new equipment will be located at a site with previously approved
telecommunication facilities. The design of the new facility has been reviewed
pursuant to SRMC § 14.16.120 as the pole will extend above the established building
height limit for the zoning district.
The proposed new facility will provide extended telecommunication services for the
surrounding area per Policy CSI-4.16 of the General Plan 2040.
B. That the project design is consistent with all applicable site, architecture and
landscaping design criteria and guidelines for the district in which the site is
located;
ZA Minutes and Notice of Decision
January 18, 2024
999 Old Lucas Valley Road
ED23-059/UP23-026 (PLAN23-134)
4
The project design will exceed the surrounding height requirement for the Parks/Open
Space Zoning District. Additional height is proposed to account for the faux “crown” of
the “monopine”- or “monoak” - type facility, which will lend to the facility mimicking a
tapered tree silhouette. With the conditions listed below (Condition No. 12) this is found
to be an acceptable aesthetic solution to the proposed overall height.
C. That the project design minimizes adverse environmental impacts; and
The project design minimizes environmental impacts in that the project has prepared
an Electromagnetic Energy (RF_EME) Compliance Report (RF Report) for the
proposed project which demonstrates that the proposed AT&T installation is in
compliance with Federal Communications Commission (FCC) regulations “upon
proper installation of recommended signage and/or barriers” (see Condition No. 14
below).
D. That the project design will not be detrimental to the public health, safety or
welfare, nor materially injurious to properties or improvements in the vicinity.
The design of the proposed project would not be detrimental to the public health, safety
or welfare, nor materially injurious to properties or improvements in the vicinity in that
the project will require City of San Rafael Building Division and Fire Department.
Additionally, the site is located on privately-owned land with minimal access from the
public right-of-way. The facility will be surrounded by fencing and will not be open to
the public.
Use Permit (UP23-026) Findings (SRMC §14.22.080)
A. That the proposed use is in accord with the general plan, the objectives of the
zoning ordinance, and the purposed of the district in which the site is located;
The proposed use is in accord with the San Rafael General Plan 2020, the objectives
of the zoning ordinance, and the purposes of the district the site is located in, as
discussed in ED23-059 Finding A, listed above.
B. That the proposed use together with the conditions will not be detrimental to
the public health, safety or welfare, or materially injurious to property or
improvements in the vicinity, or the general welfare of the city;
The proposed use, together with the conditions applicable thereto, will not be
detrimental to the public health, safety or welfare, or materially injurious to properties
or improvements in the vicinity, or to the general welfare of the city given that: 1) an
RF Report has been provided which concluded that the site would operate below the
maximum radio-frequency (RF) exposure limit set by the FCC; and 2) installation of
the proposed equipment will be subject to Building Department review and approval,
per ED23-059.
ZA Minutes and Notice of Decision
January 18, 2024
999 Old Lucas Valley Road
ED23-059/UP23-026 (PLAN23-134)
5
C. That the proposed use complies with each of the applicable provisions of the
zoning ordinance.
The proposed project has been reviewed as a new ground-mounted
telecommunication facility in accordance with SRMC § 14.16.360. Projects of this type
require review by the Zoning Administrator, including facilities which exceed the
general height requirement for the zoning district.
CONDITIONS OF APPROVAL
Planning Division Standard Conditions of Approval
1. Approved Project. This Environmental and Design Review Permit (ED23-059) and
Use Permit (UP23-026) conditionally approves the installation of a new
freestanding wireless facility for AT&T at 999 Old Lucas Valley Road. Plans
submitted for building permit shall be in substantial conformance to the approved
plans dated August 29, 2023, with regard to building techniques, materials,
elevations, and overall project appearance except as modified by these conditions
of approval. Minor modifications or revisions to the project shall be subject to
review and approval by the Community Development Department, Planning
Division. Modifications deemed greater than minor in nature by the Community
Development Director shall require review and approval by the Zoning
Administrator.
2. Subject to All Applicable Laws and Regulations. The approved use and/or
construction is subject to, and shall comply with, all applicable City Ordinances and
laws and regulations of other governmental agencies. Prior to construction, the
applicant shall identify and secure all applicable permits from the Building Division,
Public Works Department and other affected City divisions and departments.
3. Permit Validity. This Permit shall become effective on January 25, 2024 and shall
be valid for a period of two (2) years from the date of final approval or January 25,
2026, and shall become null and void if a building permit is not issued or a time
extension granted by January 25, 2026. A permit for the construction of a building
or structure is deemed exercised when a valid City building permit, if required, is
issued, and construction has lawfully commenced. A permit for the use of a
building or a property is exercised when, if required, a valid City business license
has been issued, and the permitted use has commenced on the property.
4. Building Permit. Prior to the commencement of work, a building permit shall be
obtained from the Building Division.
5. Construction Hours. Except as otherwise provided in subsection B of the San
Rafael Municipal Code Section 8.13.050, or by the planning commission or city
ZA Minutes and Notice of Decision
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999 Old Lucas Valley Road
ED23-059/UP23-026 (PLAN23-134)
6
council as part of the development review for the project, on any construction
project on property within the city, construction, alteration, demolition,
maintenance of construction equipment, deliveries of materials or equipment, or
repair activities otherwise allowed under applicable law shall be allowed between
the hours of seven a.m. (7:00 a.m.) and six p.m. (6:00 p.m.), Monday through
Friday, and nine a.m. (9:00 a.m.) and six p.m. (6:00 p.m.) on Saturdays, provided
that the noise level at any point outside of the property plane of the project shall
not exceed ninety (90) dBA. All such activities shall be precluded on Sundays and
holidays. Violation of the foregoing may subject the permittee to suspension of
work by the chief building official for up to two (2) days per violation.
6. Colors, Materials, and Lighting. Colors, materials and lighting shall be designed to
avoid creating undue off-site light and glare impacts. New or amended building or
site colors, materials and lighting shall comply with San Rafael Municipal Code
Section 14.16.227, subject to review and recommendation by the police
department, public works department, and community development department.
7. Exterior Lightning. Any exterior lighting shall be subject to a 90-day post installation
inspection to allow for adjustment and assure compliance with San Rafael
Municipal Code Section 14.16.227 - Light and glare. The project proponent is
responsible for hiring a qualified lighting expert to conduct the inspection and to
prepare a summary analysis verifying the projects meets City standards to be
submitted to the Planning Division.
8. Rooftop Equipment. Equipment placed on the rooftop of a building or in an exterior
yard area shall be adequately screened from public view. See Chapter 14.16 for
exclusions to maximum height requirements and Chapter 14.25 for design review
requirements.
9. Temporary Fences. Temporary security fences may be erected around
construction sites during the time a valid building permit is in effect for construction
on the premises. Temporary security fences need not comply with San Rafael
Municipal Section 14.16.140 and must be immediately removed upon completion
of the construction authorized by the building permit.
10. Landscape Maintenance. All landscaping shall be maintained in good condition
and any dead or dying plants, bushes, trees, or groundcover plantings shall be
replaced with new healthy stock of a size appropriate and compatible with the
remainder of the growth at the time of replacement.
11. Approved Materials and Colors. The approved materials and colors for the project
shall be indicated on project plans submitted for building permit and implemented
in the field. Any changes in materials or colors shall be subject to prior review and
approval by the City Planning Division, and a determination as to whether the
change is major or minor. Any changes to the approved materials or colors shall
ZA Minutes and Notice of Decision
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999 Old Lucas Valley Road
ED23-059/UP23-026 (PLAN23-134)
7
be clearly indicated on plans and receive written verification that this change has
been reviewed and approved by the Planning Division.
ED23-059 Conditions of Approval
12. Screening Method. Prior to issuance of a building permit, the applicant shall submit
a revised faux tree-type design to better mimic a tree type native to the area (i.e.
oak). The Community Development Director shall review the faux pine and the
faux oak design and select the option most appropriate for the site. The applicant
shall revise the building permit to include that selection.
13. Equipment Revision. No future revision of wireless equipment (e.g. antenna, coax
or appurtenance) shall be changed out for a like piece of equipment without
painting it to match.
14. Signage. Proposed signage shall include the signage recommended in the Radio
Frequency – Electromagnetic Energy (RF_EME) Compliance Report (dated
August 19, 2022) to conform with FCC regulations.
15. All site improvements shall be maintained in good, undamaged conditions at all
times. The antenna shall be maintained, and any weathered portions shall be
repaired in a timely manner to ensure visual quality (refer to Condition No. 13).
UP23-026 Conditions of Approval
16. The Use Permit (UP23-026) approving a new AT&T site build of an unmanned
telecommunications facility consisting of a lease area with associated ground-
mounted equipment shelter and generator and utilities to the site location; and a
“monopine”/ “monoak” type facility with associated antennas and antenna
equipment. The size, colors, and materials shall be as shown on the plan set dated
August 29, 2023. This Use Permit (UP23-026) shall run concurrently with the
associated Environmental and Design Review Permit (ED23-059). Should the
Environmental and Design Review Permit (ED23-059) expire, the Use Permit
(UP23-026) shall also expire and become invalid.
17. Facility Maintenance. The service provider shall properly maintain this facility
during the life of the permit. In the event the wireless antennas become obsolete
and abandoned, all wireless antennas and associated accessory structures shall
be removed from the subject property within thirty (30) days of abandonment. The
service provider shall notify the Planning and Building Divisions within ten (10)
days of abandonment. The removal of the entire facility shall take place within
twenty (20) days of the notification of the abandonment and shall be restored to
the design prior to the installation of the wireless antennas. Failure to remove the
equipment shall be subject to action by the City’s Code Enforcement Division.
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999 Old Lucas Valley Road
ED23-059/UP23-026 (PLAN23-134)
8
18. Notification of Abandonment of Use. The applicant, or its successor, shall remove
any abandoned facility or restore existing approved use of a facility within 90 days
of termination of use.
19. Validation of Proper Operation. AT&T (or its successors) shall submit the results
of the post-installation testing to the Community Development Department,
Planning Division. The testing shall be conducted once the antennas and
equipment are installed and operating at maximum capacity. The testing shall
entail verification of compliance with the FCC’s Radio Frequency (RF) emission
standards. This testing shall be conducted during normal business hours and on
non-holiday weekdays with the facility operating at maximum power. The
telecommunication provider, or its successor, shall provide the Community
Development Director with a report of the tests results.
20. Five Year Review. Every five (5) years, the wireless telecommunications provider,
or its successor(s), shall measure the RFR of the facility approved by this
Environmental and Design Review Permit (ED23-059) and Use Permit (UP23-
026). The City may contract to perform the independent testing with a qualified
expert and the current wireless telecommunications provider, or its successor(s),
shall bear the proportionate cost of testing for the wireless telecommunications
facility approved by this Environmental and Design Review Permit and Use Permit.
a. Testing must be coordinated with and may be observed by the City or its
representative. The test measurement observations shall be recorded in a
written report prepared by AT&T or its contractor and shall specify the
location of the measurement, the peak measured signal strength in units of
mW/cm² and shall be correlated to the plan view of the project plans on Sheet
A-5. The report shall also provide full measurement equipment identification,
current calibration certificate(s) for all equipment, and the qualifications of the
person(s) conducting the test.
b. AT&T shall tender its written report documenting the testing and observations
to the City for review prior to unattended operations of its project. The City
shall within fourteen (14) business days notify AT&T by writing whether the
testing demonstrates compliance with FCC OET Bulletin 65 RF emissions
safety standards under the General Population/Uncontrolled standard, and
such notification shall not be unreasonably withheld. Upon the City’s
notification, AT&T may commence unattended operation of its project.
c. AT&T shall promptly reimburse the City for all of the City’s actual costs in
observing the testing and reviewing the report for compliance with the FCC
OET Bulletin 65 RF safety requirements, and if necessary for verifying any
subsequent remedial measures required to secure areas on the roof as
required in these conditions.
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999 Old Lucas Valley Road
ED23-059/UP23-026 (PLAN23-134)
9
21. Changes Affecting RF. Any operational or technological changes to an approved
wireless communication facility affecting RFR exposures shall be reported
promptly to the City, including any change of ownership. The City may require new
RFR testing within 45 days of notification.
22. Changes to FCC Standards. In the event the FCC changes their standards, the
owner or operator of an approved wireless facility shall make necessary changes
or upgrades to their facilities in order to comply with any newly adopted FCC
standards for RFR. The upgrades to facilities shall be made no later than 90 days
after notification of the changed FCC standards and the owner or operator shall
notify the city in writing that the upgrades have been completed.
23. If technology improvements allow for the use of materially smaller or less visually
obtrusive antennas and screening equipment, or equipment that generates less
RF emissions, the current wireless telecommunication provider, or its successors,
shall replace or upgrade the antennas and screening design. In the event of
replacement or upgrading, the owner or operator of an approved wireless facility
may be required to obtain a new Environmental and Design Review Permit and/or
Use Permit with associated fees.
24. After transmitter and antenna system optimization, but prior to unattended
operations of this project, AT&T or its representative must conduct on-site post-
installation RF emissions testing to demonstrate actual compliance with the FCC
OET Bulletin 65 RF emissions safety rules for General Population/Uncontrolled
RF exposure in all sectors. For this testing, the transmitter shall be operating at
maximum operating power, and the testing shall occur outwards to a distance
where the RF emissions no longer exceed the Uncontrolled/General Population
limit.
25. Full initial and ongoing compliance with all FCC RF safety rules in OET Bulletin
65 (as may be amended or superseded or replaced) is a continuing material
requirement and condition of this Permit.
26. Future Co-Location. Per SRMC Section 14.16.360.D.9 all new ground-mounted
towers or monopoles, require a signed statement that the carrier, or its future
successors, will cooperate with the city to allow future co-location of antennas at
the proposed site if it is approved and that the carrier has reviewed and agrees
to comply with all post-approval requirements of this section. This agreement is
required to be created an executed prior to the final inspection of the building
permit.
ACTION TAKEN: On January 17, 2024, the Zoning Administrator Conditionally
Approved the requested Environmental and Design Review Permit (ED23-059) and
Conditional Use Permit (UP23-026) subject to the Findings and Conditions above.
ZA Minutes and Notice of Decision
January 18, 2024
999 Old Lucas Valley Road
ED23-059/UP23-026 (PLAN23-134)
10
This Notice of Zoning Administrator decision is provided in compliance with SRMC Section
14.28.050 - Notice of decision. Any aggrieved party may appeal this decision pursuant to
SRMC Section 14.28.030 - Filing and time limit of appeals, by submitting a letter of appeal
and the appropriate fees within five (5) working days of the date of approval, or by January
24, 2024 at 5:00 p.m. This approval shall become effective at the end of the appeal period.
Once a permit approval has been implemented/established in compliance with all City
requirements, it shall run with the land and be valid for the time period specified; e.g., duration
of the project/use.
Margaret Kavanaugh-Lynch, Acting Zoning Administrator Date
January 19,2024
GENERAL PLANNING APPLICATION
APPLICATION FOR
□ Certificate of Compliance □ Exception □ Sign Review
□ Pre-Application/Concept Design Review □ General Plan Amendment 0 Use Permit
□ Design Review □ Lot Line Adjustment □ Variance
□ Development Agreement □ Subdivision/Tent. Map □ Zone Change/Planned Dev
□ Environmental Review □ Sign Program/Amendment □ Other
REVIEW/HEARING BODIES
D Design Review Board
D Staff/Administration
D Zoning Administrator
D City Council
0 Planning Commission
APPLICATION FOR
STREET ADDRESS: 999 Old Lucas Valley Road ASSESSOR'S PARCEL NO(S): 165-010-03
EXISTING ZONING: Open Space/Parks GENERAL PLAN DESIGNATION:
PRESENT USE OF PROPERTY: Wireless Telecommunications Facility, Water Tank SIZE OF PROPERTY: 1.049 acres
APPLICANT INFORMATION
PROPERTYOWNERNAME: Marin Municipal Water District TELEPHONE/FAX: 415-945-1584
ADDRESS: 220 Nellen Avenue EMAIL: jeischens@marinwater.org
CITY/ZIP: Corte Madera, CA 94925
AUTHORIZED AGENT/ APPLICANT NAME: New Cingular Wireless, PCS,LLC c/o Complete Wireless Consulting TELEPHONE/FAX: 916- 764-2632
ADDRESS: 2009 V St EMAIL: kgallagher@completewireless.net
c1TYtz1P: Sacramento, CA 95818
CONTACT (if different from above): Kevin Gallagher TELEPHONE/EMAIL: 916-764-2632
DETAILED DESCRIPTION OF PROJECT
Wireless Telecommunications Facility. Please see project support statement for details.
DO NOT WRITE BELOW THIS LINE: See Conditions of Application on Reverse
FILL OUT UPON RECEIPT
APPLICATION DATE: _
RECEIVED BY: _
FEES:$ _
STAFF PERSON: _
COMPLETENESS DATE: _
CEQAASSMT: _
DATE: _
PLANNING Feb 2020 GENERAL APPLICATION FORM
ACTION BY:
STAFF: DATE:
ZA: DATE:
PC: DATE:
CC: DATE:
CDD: DATE:
Project No(s).
CONDITIONS OF APPLICATION
1) All materials submitted in conjunction with this form shall be considered a part of this application.
2) This application will not be considered filed and processing may not be initiated until the Planning Division determines that the
submittal is complete with all necessary information and is "accepted as complete." The City will notify the applicant of all application
deficiencies no later than 30 days following application submittal.
3) The property owner authorizes the listed authorized agent(s)/contact(s) to appear before the City Council, Planning Commission,
Design Review Board and Zoning Administrator and to file applications, plans, and other information on the owner's behalf.
4) The Owner shall inform the Planning Division in writing of any changes.
S) INDEMNIFICATION: As a condition of this application, applicant agrees to defend, indemnify, release and hold
harmless the City, its agents, officers, attorneys, employees, boards and commissions from any claim, action or proceeding brought
against any of the foregoing individuals or entities ("indemnities"), the purpose of which is to attack, set aside, void or annul the approval
of this application or the adoption of any environmental document which accompanies it. This indemnification shall include, but not be
limited to, damages, costs, expenses, attorney fees or expert witness fees that may be asserted or incurred by any person or entity,
including the applicant, third parties and the indemnities, arising out of or in connection with the approval of this application, whether
or not there is concurrent, passive or active negligence on the part of the indemnities.
In the event that any claim, action or proceeding as described above is brought, the City shall promptly notify the applicant of any
such claim, action or proceeding, and the City will cooperate fully in the defense of such claim, action, or proceeding. In the event the
applicant is required to defend the City in connection with any said claim, action or proceeding, the City shall retain the right to (1)
approve the counsel to so defend the City, (2) approve all significant decisions concerning the manner in which the defense is conducted,
and (3) approve any and all settlements, which approval shall not be unreasonably withheld. Nothing herein shall prohibit the City from
participating in the defense of any claim, action or proceeding, provided that if the City chooses to have counsel of its own to defend
any claim, action or proceeding where applicant already has retained counsel to defend the City in such matters, the fees and the
expenses of the counsel selected by the City shall be paid by the City.
6) ATTORNEY'S EXPENSES COST REIMBURSEMENT: As a condition of this application, applicant agrees to be responsible for the
payment of all City Attorney expenses and costs, both for City staff attorneys and outside attorney consultants retained by the City,
associated with the reviewing, process and implementing of the land use approval and related conditions of such approval. City
Attorney expenses shall be based on the rates established from time to time by the City Finance Director to cover staff attorney salaries,
benefits, and overhead, plus the actual fees and expenses of any attorney consultants retained by the City. Applicant shall reimburse
City for City Attorney expenses and costs within 30 days following billing or same by the City.
7) RECOVERY OF ATTORNEY'S FEES BY PREVAILING PARTY: In any action brought to enforce the applicant's obligations, including
the Indemnification and Attorneys' Expenses Cost Reimbursement conditions set forth above, the prevailing party shall be entitled to
an award of reasonable litigation costs, including attorneys' fees and costs.
8) COST BASED FEE SYSTEM (not applicable to flat fee applications): Applicant agrees to pay to the City all incurred costs, both direct
and indirect, including State-mandated costs, associated with review and processing of the accompanying application for land use
approval(s), even if the application is withdrawn or not approved.
Reimbursable costs include all staff and overhead costs as established in the City's adopted Cost Recovery Fee Program Master Fee
Schedule, as well as the cost of required professional consultants to assist in environmental, engineering or legal review.
If expenditures exceed 75% of the deposit amount required by the Cost Recovery Fee Program, additional deposits will be
requested. Applicant understands and agrees that nonpayment of deposit requests within the time period specified in the request shall
be deemed a withdrawal of the application. Any unexpended funds will be refunded by the City after completion of application
processing.
I have read and agree with all of the above. I declare under penalty of perjury that the information contained in this application is true and
correct to the best of my knowledge.
Authorized Agent/Applicant: _
Dated:.____._9_• 2/~'· ·~•_Z_3--='---_
Dated: _
PLANNING Feb 2020 GENERAL APPLICATION FORM Project No(s).
A T&T M O B ILI TY
PRO JECT SU PPO RT STA T EM EN T
Site Name:
Site Address:
APN:
CCL00656 - Lucas Valley Rd
999 Old Lucas Valley Road, San Rafael, CA
165-010 -03
INTRODUCT ION & FACILITY DESCRIPTION
The demand for wireless and data services continues to grow across California. Access to the
wireless network has become vital as individuals increasingly rely on hand held and mobile devices as their
primary method of communication. AT&T Mobility constantly seeks to improve its wireless network
through industry-leading techniques and innovative solutions to respond to high levels of wireless
network traffic and increased user demand. This proposal for a new wireless telecommunications facility
is an essential part of the effort to continuously improve the AT&T network for future and potential
customers. The facility proposal is designed to comply with all wireless communications guidelines set
forth by the City of San Rafael.
This is a proposal for a new, freestanding wireless telecommunications facility on the above
referenced parcel within the City of Rafael in order to fill a significant coverage along Lucas Valley Road
and Las Gallinas Avenue. The property is currently the site of a Marin Municipal Water District water tank
and an existing, non-colocatable wireless telecommunications facility. The proposed facility is the least
intrusive means for AT&T to close a significant gap in network coverage.
AT&T Mobility Site: CCL00656- Lucas Valley Road
APN 165-010-03
Location
The project is located on an approximately 1-acre parcel zoned Open Space/Parks. The subject parcel is
surrounded by a larger, County-owned parcel with the same zoning designation. The parcel is accessed
via an existing road, partly paved and partly gravel. As stated above, the property contains an existing
Marin Municipal Water District water tank and associated buildings, as well as an existing non-
colocatable wireless telecommunications facility. AT&T's proposed facility would be placed on an
existing, unused area near the water tank and the existing wireless facility, and is situated so as not to
interfere with existing operations on the property.
Proiect Location
Design and Aesthetic Impacts
The proposed facility is located within an open, hilly, and roughly triangular area containing a number of
public trails and surrounded by residential neighborhoods. To minimize the aesthetic impacts, a heavily
wooded hillside that already contains existing utility and wireless telecommunications equipment has
been chosen.
AT&T is proposing a new, freestanding, 56' tall "monopine" style stealth wireless facility to blend with
existing trees. A total of 12 panel antennas are proposed, mounted such that the top of the antennas
2
AT&T Mobility Site: CCL00656 - Lucas Valley Road
APN 165-010-03
will be at 49' above ground level. (The additional height is for the faux "crown" of the monopine, which
is necessary to present the tapered silhouette of a natural tree. The monopine would be placed within a
25' by 25' compound surrounded by a 6' tall chain link fence topped with barbed wire. Ground
equipment would include an 8' by 8' walk-in equipment cabinet and a 30 kW diesel emergency backup
generator and 190 gallon fuel tank. The facility would be accessed using the existing access road and
utilities will be run underground. A full description of the proposed facility can be found in the site plans
enclosed with this application.
The facility will be engineered to support the colocation of an additional carrier.
A full set of photo simulations has been enclosed with the application materials.
View from Lucas Valley Road, looking Southwest
i'101101,d/lr¼l
JJUtaJ/atkln
3
A T &T M o b ili ty S ite : C C L0 0 6 5 6 - Lu c a s V a lle y R o a d
A P N 16 5 -0 10 -0 3
DESCRIPTION OF COVERAGE AREA
The objective of the proposed facility is to improve coverage and capacity along an area centered
on Lucas Valley Road and Las Galinas Avenue. (see coverage maps on following pages) To achieve this
service objective, AT&T identified a potential candidate "Search Ring." A Search Ring is an area on a map
that is determined by AT& T's Radio Frequency Engineer (RF engineer). The area identifies the geographic
area within which the proposed telecommunications site must be located to satisfy the intended service
objective. In creating the Search Ring, the RF engineer considers many factors, such as topography,
proximity to existing structures, current coverage areas, existing obstructions, etc.
Despite the size of the search area, because of the hilly topography and existing pattern of
development, options were extremely limited. Existing and proposed coverage maps are shown on the
following page - higher resolution maps have also been included with the application materials.
Approximate Search Area
4
AT&T Mobility Site: CCL00656 - Lucas Valley Road
APN 165-010-03
Ex istin g L T E 70 0 Co ve rag e -- •
R.ti1bf• Sitf'Vlc• lrtdoo,1/~tdoon
Reli1bl•Cow ff •C1ln Tr1tttl t
li,door tove,-.• WI Jt.ilable
N • :I'
CC L0 06 5 6
milea
Scalo: I: 10,210
_.d'"' <..,.
" !?
lUCAS VALLE Y
I
Rel i1bl 1 $1rv ic1 lndoon /O utduo,..
Rel/1bl e Co v111 ce In Trantlt
Ind oo r Cov1rap Laat Rel l1bl1
mlloa
Scale: 1:1012&0
5
AT&T Mobility Site: CCL00656 - Lucas Valley Road
APN 165-010-03
ALTERNATIVE SITES ANALYSIS
In identifying the most preferred site location and design, AT&T begins its process by identifying a search
area and a required centerline height. AT&T then looks to local codes and general plans to identify the
values significant to the local community for the siting/locating of wireless facilities. In addition to the
abovementioned location and height attributes, each proposed site must meet certain minimum
requirements, such as the following:
• A willing landlord,
• Feasible construction,
• Road access,
• Available telephone and electrical utilities,
• Satisfaction of coverage objectives, and
• Compliance with local zoning requirements.
Methodology and Zoning Criteria
Wireless communication is a line-of-sight technology that requires facilities to be of sufficient height in
order to effectively "see" the existing facilities which comprise the network. Each proposed site is unique
and must be investigated and analyzed on its own terms.
San Rafael's municipal code requires all wireless facilities be set back from residential uses or zones 200'
or three times the facility's height, whichever is greater. (Marin County similarly discourages wireless
facilities in residential areas, as well as along scenic ridgelines.) Colocations are required where feasible,
and commercial and industrial zones are preferred. There are no Commercial or Industrial zones in the
area:
6
AT&T Mobility Site: CCL00656- Lucas Valley Road
APN 165-010 -03
There are also are no viable colocations. The only potential colocation in the area is the previously
mentioned Sprint-owned facility on this same property. The facility is a pole holding three antennas that
is too short to accommodate the centerline needed to fill AT&T's existing coverage gap and can support
neither weight of an extension nor AT& T's equipment loading.
Approximation Boundaries of Area not within Residential Setbacks
When residential setbacks are considered, this leaves only the broad hillside area depicted above as a
viable location for a wireless facility, with options further narrowed when topography is considered. Of
this area, most of it contains nature trails and consists of either bare hillsides that extremely visible to
nearby residential neighborhoods or heavily wooded hillsides with no access.
The proposed location is unique in that it is well situated in terms of topography to meet fill the coverage
gap, has existing access, and is fairly well hidden by terrain and existing trees. The stealthed, "monopine"
design will allow the facility, to the extent it is visible, to blend with the natural surroundings.
Alternative Analysis Conclusion
Because there no viable colocations and no commercial or industrial parcels in the area, and because the
facility has been designed and sited to minimize visual impacts, the proposed location is the least intrusive
means of filling the existing significant coverage gap.
7
AT&T Mobility Site: CCL00656- Lucas Valley Road
APN 165-010-03
ADDITIONAL INFORMATION
Safety Benefits of Improved Wireless Service
AT&T offers its customers multiple services such as voice calls, text messaging, mobile email, picture/video
messaging, mobile web, navigation, broadband access, V CAST, and E911 services. Mobile phone use has
become an extremely important tool for first responders and serves as a back-up system in the event of
a natural disaster. AT&T will install a standby generator at this facility to ensure quality communication
for the surrounding community in the event of a natural disaster or catastrophic event. This generator
will be fully contained within the equipment shelter and will provide power to the facility if local power
systems are offline.
Maintenance
AT&T installs standby generators and backup batteries at all its cell sites. The batteries play a vital role in
AT& T's emergency and disaster preparedness plan. In the event of a power outage, the back-up generator
will automatically start and continue to run the site for up to 24 hours. The standby generator will operate
for approximately 15 minutes per week for maintenance purposes and will only be tested during the
daytime. Back-up generators allow AT& T's sites to continue providing valuable communications services
in the event of a power outage, natural disaster or other emergency. Following construction, a small sign
indicating the facility owner and a 24-hour emergency telephone number will be provided on site.
Parking & Traffic
The facility is unmanned and will operate 24 hours a day, seven days a week. A technician will occasionally
visit the facility to service the equipment, approximately once a month. There will no other visitors or
guests associated with the facility.
Construction Schedule
The construction of the facility will follow all local rules and regulations. The crew size will range from
two to ten individuals. The construction phase of the project will last approximately two months and will
not exceed acceptable noise levels.
Compliance with FCC Standards
This project will not interfere with any TV , radio, telephone, satellite, or other signals. Any interference
would be against federal law and a violation of AT&T's FCC license. An RF report verifying compliance
with FCC guidelines is included with this submittal.
Enviro nmental Assessment
The project is categorically exempt under CEQA as a Class Ill small structure. A study verifying compliance
with FCC EME regulations has been included as part of this application.
Airports
There are no airports or airstrips within five miles of the proposed facility.
Water Usage
As the facility is unmanned and no landscaping is proposed, there will be no impact on water usage on
the property.
8
AT&T Mobility Site: CCL00656- Lucas Valley Road
APN 165-010-03
9
AT&T Mobility Site: CCL00656- Lucas Valley Road
APN 165-010-03
Notice of Actions Affecting Development Permit
In accordance with California Government Code Section 65945(a), AT&T requests notice of any proposal
to adopt or amend the: general plan, specific plan, zo ning ordinance, ordinance(s) affecting building or
grading permits that would in any manner affect this development permit. Any such notice may be sent
to 2009 V Street, Sacramento, CA 95818.
10
www.completewireless.net
2009 V Street
Sacramento, CA 95818
September 26, 2023
Via Online Submittal Portal
City of San Rafael
Community Development – Planning Division
1400 Fifth Avenue, Top Floor
San Rafael, CA 94901
Re: AT&T Use Permit Application, 999 Old Lucas Valley Rd, San Rafael 94903 (APN
165-010-03); Site Name: CCL00656
This package is intended as a formal application for a use permit for the above referenced New
Cingular Wireless PCS, LLC (d/b/a AT&T Mobility) telecommunications facility. Please find enclosed
the following materials:
1. General Planning Application
2. Project Support Statement
3. Photo Simulations – 4 Views
4. Coverage Maps
5. Radio Frequency (RF) Study
6. Noise Study
7. Site Plans & Elevations
As a freestanding wireless facility, AT&T believes the 150-day FCC shot clock applies.
I can be reached at 916-764-2632 or by email to process payment via credit card.
Sincerely,
Kevin Gallagher
KGallagher@completewireless.net
Enclosures
AT&T MOBILITY
PROJECT SUPPORT STATEMENT
Site Name: CCL00656 – Lucas Valley Rd
Site Address: 999 Old Lucas Valley Road, San Rafael, CA
APN: 165-010-03
INTRODUCTION & FACILITY DESCRIPTION
The demand for wireless and data services continues to grow across California. Access to the
wireless network has become vital as individuals increasingly rely on handheld and mobile devices as their
primary method of communication. AT&T Mobility constantly seeks to improve its wireless network
through industry-leading techniques and innovative solutions to respond to high levels of wireless
network traffic and increased user demand. This proposal for a new wireless telecommunications facility
is an essential part of the effort to continuously improve the AT&T network for future and potential
customers. The facility proposal is designed to comply with all wireless communications guidelines set
forth by the City of San Rafael.
This is a proposal for a new, freestanding wireless telecommunications facility on the above
referenced parcel within the City of Rafael in order to fill a significant coverage along Lucas Valley Road
and Las Gallinas Avenue. The property is currently the site of a Marin Municipal Water District water tank
and an existing, non-colocatable wireless telecommunications facility. The proposed facility is the least
intrusive means for AT&T to close a significant gap in network coverage.
AT&T Mobility Site: CCL00656 – Lucas Valley Road
APN 165-010-03
2
Location
The project is located on an approximately 1-acre parcel zoned Open Space/Parks. The subject parcel is
surrounded by a larger, County-owned parcel with the same zoning designation. The parcel is accessed
via an existing road, partly paved and partly gravel. As stated above, the property contains an existing
Marin Municipal Water District water tank and associated buildings, as well as an existing non-
colocatable wireless telecommunications facility. AT&T’s proposed facility would be placed on an
existing, unused area near the water tank and the existing wireless facility, and is situated so as not to
interfere with existing operations on the property.
Project Location
Design and Aesthetic Impacts
The proposed facility is located within an open, hilly, and roughly triangular area containing a number of
public trails and surrounded by residential neighborhoods. To minimize the aesthetic impacts, a heavily
wooded hillside that already contains existing utility and wireless telecommunications equipment has
been chosen.
AT&T is proposing a new, freestanding, 56’ tall “monopine” style stealth wireless facility to blend with
existing trees. A total of 12 panel antennas are proposed, mounted such that the top of the antennas
AT&T Mobility Site: CCL00656 – Lucas Valley Road
APN 165-010-03
3
will be at 49’ above ground level. (The additional height is for the faux “crown” of the monopine, which
is necessary to present the tapered silhouette of a natural tree. The monopine would be placed within a
25’ by 25’ compound surrounded by a 6’ tall chain link fence topped with barbed wire. Ground
equipment would include an 8’ by 8’ walk-in equipment cabinet and a 30 kW diesel emergency backup
generator and 190 gallon fuel tank. The facility would be accessed using the existing access road and
utilities will be run underground. A full description of the proposed facility can be found in the site plans
enclosed with this application.
The facility will be engineered to support the colocation of an additional carrier.
A full set of photo simulations has been enclosed with the application materials.
View from Lucas Valley Road, looking Southwest
AT&T Mobility Site: CCL00656 – Lucas Valley Road
APN 165-010-03
4
DESCRIPTION OF COVERAGE AREA
The objective of the proposed facility is to improve coverage and capacity along an area centered
on Lucas Valley Road and Las Galinas Avenue. (see coverage maps on following pages) To achieve this
service objective, AT&T identified a potential candidate "Search Ring.” A Search Ring is an area on a map
that is determined by AT&T’s Radio Frequency Engineer (RF engineer). The area identifies the geographic
area within which the proposed telecommunications site must be located to satisfy the intended service
objective. In creating the Search Ring, the RF engineer considers many factors, such as topography,
proximity to existing structures, current coverage areas, existing obstructions, etc.
Despite the size of the search area, because of the hilly topography and existing pattern of
development, options were extremely limited. Existing and proposed coverage maps are shown on the
following page – higher resolution maps have also been included with the application materials.
Approximate Search Area
AT&T Mobility Site: CCL00656 – Lucas Valley Road
APN 165-010-03
5
AT&T Mobility Site: CCL00656 – Lucas Valley Road
APN 165-010-03
6
ALTERNATIVE SITES ANALYSIS
In identifying the most preferred site location and design, AT&T begins its process by identifying a search
area and a required centerline height. AT&T then looks to local codes and general plans to identify the
values significant to the local community for the siting/locating of wireless facilities. In addition to the
abovementioned location and height attributes, each proposed site must meet certain minimum
requirements, such as the following:
• A willing landlord,
• Feasible construction,
• Road access,
• Available telephone and electrical utilities,
• Satisfaction of coverage objectives, and
• Compliance with local zoning requirements.
Methodology and Zoning Criteria
Wireless communication is a line-of-sight technology that requires facilities to be of sufficient height in
order to effectively “see” the existing facilities which comprise the network. Each proposed site is unique
and must be investigated and analyzed on its own terms.
San Rafael’s municipal code requires all wireless facilities be set back from residential uses or zones 200’
or three times the facility’s height, whichever is greater. (Marin County similarly discourages wireless
facilities in residential areas, as well as along scenic ridgelines.) Colocations are required where feasible,
and commercial and industrial zones are preferred. There are no Commercial or Industrial zones in the
area:
AT&T Mobility Site: CCL00656 – Lucas Valley Road
APN 165-010-03
7
There are also are no viable colocations. The only potential colocation in the area is the previously
mentioned Sprint-owned facility on this same property. The facility is a pole holding three antennas that
is too short to accommodate the centerline needed to fill AT&T’s existing coverage gap and can support
neither weight of an extension nor AT&T’s equipment loading.
Approximation Boundaries of Area not within Residential Setbacks
When residential setbacks are considered, this leaves only the broad hillside area depicted above as a
viable location for a wireless facility, with options further narrowed when topography is considered. Of
this area, most of it contains nature trails and consists of either bare hillsides that extremely visible to
nearby residential neighborhoods or heavily wooded hillsides with no access.
The proposed location is unique in that it is well situated in terms of topography to meet fill the coverage
gap, has existing access, and is fairly well hidden by terrain and existing trees. The stealthed, “monopine”
design will allow the facility, to the extent it is visible, to blend with the natural surroundings.
Alternative Analysis Conclusion
Because there no viable colocations and no commercial or industrial parcels in the area, and because the
facility has been designed and sited to minimize visual impacts, the proposed location is the least intrusive
means of filling the existing significant coverage gap.
AT&T Mobility Site: CCL00656 – Lucas Valley Road
APN 165-010-03
8
ADDITIONAL INFORMATION
Safety Benefits of Improved Wireless Service
AT&T offers its customers multiple services such as voice calls, text messaging, mobile email, picture/video
messaging, mobile web, navigation, broadband access, V CAST, and E911 services. Mobile phone use has
become an extremely important tool for first responders and serves as a back-up system in the event of
a natural disaster. AT&T will install a standby generator at this facility to ensure quality communication
for the surrounding community in the event of a natural disaster or catastrophic event. This generator
will be fully contained within the equipment shelter and will provide power to the facility if local power
systems are offline.
Maintenance
AT&T installs standby generators and backup batteries at all its cell sites. The batteries play a vital role in
AT&T’s emergency and disaster preparedness plan. In the event of a power outage, the back-up generator
will automatically start and continue to run the site for up to 24 hours. The standby generator will operate
for approximately 15 minutes per week for maintenance purposes and will only be tested during the
daytime. Back-up generators allow AT&T’s sites to continue providing valuable communications services
in the event of a power outage, natural disaster or other emergency. Following construction, a small sign
indicating the facility owner and a 24-hour emergency telephone number will be provided on site.
Parking & Traffic
The facility is unmanned and will operate 24 hours a day, seven days a week. A technician will occasionally
visit the facility to service the equipment, approximately once a month. There will no other visitors or
guests associated with the facility.
Construction Schedule
The construction of the facility will follow all local rules and regulations. The crew size will range from
two to ten individuals. The construction phase of the project will last approximately two months and will
not exceed acceptable noise levels.
Compliance with FCC Standards
This project will not interfere with any TV, radio, telephone, satellite, or other signals. Any interference
would be against federal law and a violation of AT&T’s FCC license. An RF report verifying compliance
with FCC guidelines is included with this submittal.
Environmental Assessment
The project is categorically exempt under CEQA as a Class III small structure. A study verifying compliance
with FCC EME regulations has been included as part of this application.
Airports
There are no airports or airstrips within five miles of the proposed facility.
Water Usage
As the facility is unmanned and no landscaping is proposed, there will be no impact on water usage on
the property.
AT&T Mobility Site: CCL00656 – Lucas Valley Road
APN 165-010-03
9
AT&T Mobility Site: CCL00656 – Lucas Valley Road
APN 165-010-03
10
Notice of Actions Affecting Development Permit
In accordance with California Government Code Section 65945(a), AT&T requests notice of any proposal
to adopt or amend the: general plan, specific plan, zoning ordinance, ordinance(s) affecting building or
grading permits that would in any manner affect this development permit. Any such notice may be sent
to 2009 V Street, Sacramento, CA 95818.
(c) 2007 AT&T Intellectual Property. All rights reserved. AT&T
and the AT&T logo are trademarks of AT&T Intellectual Property.
CCL00656 Service Maps
June 16, 2022
Existing LTE 700 Coverage
N
CCL00656
June 16, 2022
CCL00656
N
Proposed LTE 700 Coverage at 999 Old Lucas Valley Rd
June 16, 2022
Existing Surrounding Sites
N
Radio Frequency – Electromagnetic Energy
(RF-EME) Compliance Report
Site Number: CCL00656
RFDS ID: 4508079
Pace Number: MRSFR088452, MRSFR088463, MRSFR073871, MRSFR088464,
MRSFR088453, MRSFR088458
Lucas Valley Rd & Huckleberry Rd
999 Old Lucas Road
San Rafael, California 94903
Marin County
38.02361000; -122.56110700 NAD83
Monotree
The proposed AT&T installation will be in compliance with FCC regulations
upon proper installation of recommended signage.
EBI Project No. 6222005058
August 19, 2022
Prepared for:
AT&T Mobility, LLC
c/o Complete Wireless
2009 V Street
Sacramento, CA 95818
Prepared by:
RF-EME Compliance Report USID No. 300309 Site No. CCL00656
EBI Project No. 6222005058 999 Old Lucas Road, San Rafael, California
EBI Consulting · 21 B Street · Burlington, MA 01803 · 1.800.786.2346 i
TABLE OF CONTENTS
EXECUTIVE SUMMARY ..................................................................................................................... 1
1.0 FEDERAL COMMUNICATIONS COMMISSION (FCC) REQUIREMENTS ................................... 3
2.0 AT&T RF EXPOSURE POLICY REQUIREMENTS .................................................................... 5
3.0 WORST-CASE PREDICTIVE MODELING ................................................................................. 5
4.0 RECOMMENDED SIGNAGE/COMPLIANCE PLAN .................................................................... 7
5.0 SUMMARY AND CONCLUSIONS ............................................................................................. 8
6.0 LIMITATIONS ......................................................................................................................... 8
APPENDICES
Appendix A Personnel Certifications
Appendix B Compliance/Signage Plan
RF-EME Compliance Report USID No. 300309 Site No. CCL00656
EBI Project No. 6222005058 999 Old Lucas Road, San Rafael, California
EBI Consulting · 21 B Street · Burlington, MA 01803 · 1.800.786.2346 1
EXECUTIVE SUMMARY
Purpose of Report
EnviroBusiness Inc. (dba EBI Consulting) has been contracted by AT&T Mobility, LLC to conduct radio
frequency electromagnetic (RF-EME) modeling for AT&T Site CCL00656 located at 999 Old Lucas Road
in San Rafael, California to determine RF-EME exposure levels from proposed AT&T wireless
communications equipment at this site. As described in greater detail in Section 1.0 of this report, the
Federal Communications Commission (FCC) has developed Maximum Permissible Exposure (MPE) Limits
for general public exposures and occupational exposures. This report summarizes the results of RF-EME
modeling in relation to relevant FCC RF-EME compliance standards for limiting human exposure to RF-
EME fields.
This report contains the RF EME analysis for the site, including the following:
§ Site Plan with antenna locations
§ Graphical representation of theoretical MPE fields based on modeling
§ Graphical representation of recommended signage and/or barriers
This document addresses the compliance of AT&T’s transmitting facilities independently and in relation
to all collocated facilities at the site.
Statement of Compliance
A site is considered out of compliance with FCC regulations if there are areas that exceed the FCC
exposure limits and there are no RF hazard mitigation measures in place. Any carrier which has an
installation that contributes more than 5% of the applicable MPE must participate in mitigating these RF
hazards.
As presented in the sections below, based on worst-case predictive modeling, there are no modeled
exposures on any accessible rooftop or ground walking/working surface related to ATT’s proposed
antennas that exceed the FCC’s occupational and/or general public exposure limits at this site.
As such, the proposed AT&T installation is in compliance with FCC regulations upon proper installation
of recommended signage and/or barriers.
AT&T Recommended Signage/Compliance Plan
AT&T’s RF Exposure: Responsibilities, Procedures & Guidelines document, dated October 28, 2014,
requires that:
1. All sites must be analyzed for RF exposure compliance;
2. All sites must have that analysis documented; and
3. All sites must have any necessary signage and barriers installed.
Site compliance recommendations have been developed based upon protocols presented in AT&T’s RF
Exposure: Responsibilities, Procedures & Guidelines document, dated October 28, 2014, additional
guidance provided by AT&T, EBI’s understanding of FCC and OSHA requirements, and common industry
practice. Barrier locations have been identified (when required) based on guidance presented in AT&T’s
RF Exposure: Responsibilities, Procedures & Guidelines document, dated October 28, 2014.
RF-EME Compliance Report USID No. 300309 Site No. CCL00656
EBI Project No. 6222005058 999 Old Lucas Road, San Rafael, California
EBI Consulting · 21 B Street · Burlington, MA 01803 · 1.800.786.2346 2
The following signage is recommended at this site:
§ Yellow CAUTION 2B sign posted at the base of the monotree near the climbing ladder.
The signage proposed for installation at this site complies with AT&T’s RF Exposure: Responsibilities,
Procedures & Guidelines document and therefore complies with FCC and OSHA requirements. Barriers
are not recommended on this site. To reduce the risk of exposure and/or injury, EBI recommends that
access to the monotree or areas associated with the active antenna installation be restricted and secured
where possible. More detailed information concerning site compliance recommendations is presented in
Section 4.0 and Appendix B of this report.
RF-EME Compliance Report USID No. 300309 Site No. CCL00656
EBI Project No. 6222005058 999 Old Lucas Road, San Rafael, California
EBI Consulting · 21 B Street · Burlington, MA 01803 · 1.800.786.2346 3
1.0 FEDERAL COMMUNICATIONS COMMISSION (FCC) REQUIREMENTS
The FCC has established Maximum Permissible Exposure (MPE) limits for human exposure to
Radiofrequency Electromagnetic (RF-EME) energy fields, based on exposure limits recommended by the
National Council on Radiation Protection and Measurements (NCRP) and, over a wide range of
frequencies, the exposure limits developed by the Institute of Electrical and Electronics Engineers, Inc.
(IEEE) and adopted by the American National Standards Institute (ANSI) to replace the 1982 ANSI
guidelines. Limits for localized absorption are based on recommendations of both ANSI/IEEE and NCRP.
The FCC guidelines incorporate two separate tiers of exposure limits that are based upon
occupational/controlled exposure limits (for workers) and general public/uncontrolled exposure limits for
members of the general public.
Occupational/controlled exposure limits apply to situations in which persons are exposed as a
consequence of their employment and in which those persons who are exposed have been made fully
aware of the potential for exposure and can exercise control over their exposure. Occupational/
controlled exposure limits also apply where exposure is of a transient nature as a result of incidental
passage through a location where exposure levels may be above general public/uncontrolled limits (see
below), as long as the exposed person has been made fully aware of the potential for exposure and can
exercise control over his or her exposure by leaving the area or by some other appropriate means.
General public/uncontrolled exposure limits apply to situations in which the general public may be
exposed or in which persons who are exposed as a consequence of their employment may not be made
fully aware of the potential for exposure or cannot exercise control over their exposure. Therefore,
members of the general public would always be considered under this category when exposure is not
employment-related, for example, in the case of a telecommunications tower that exposes persons in a
nearby residential area.
Table 1 and Figure 1 (below), which are included within the FCC’s OET Bulletin 65, summarize the MPE
limits for RF emissions. These limits are designed to provide a substantial margin of safety. They vary by
frequency to take into account the different types of equipment that may be in operation at a particular
facility and are “time-averaged” limits to reflect different durations resulting from controlled and
uncontrolled exposures.
The FCC’s MPEs are measured in terms of power (mW) over a unit surface area (cm2). Known as the
power density, the FCC has established an occupational MPE of 5 milliwatts per square centimeter
(mW/cm2) and an uncontrolled MPE of 1 mW/cm2 for equipment operating in the 1900 MHz frequency
range. For the AT&T equipment operating at 850 MHz, the FCC’s occupational MPE is 2.83 mW/cm2 and
an uncontrolled MPE of 0.57 mW/cm2. For the AT&T equipment operating at 700 MHz, the FCC’s
occupational MPE is 2.33 mW/cm2 and an uncontrolled MPE of 0.47 mW/cm2. These limits are considered
protective of these populations.
Table 1: Limits for Maximum Permissible Exposure (MPE)
(A) Limits for Occupational/Controlled Exposure
Frequency Range
(MHz)
Electric Field
Strength (E)
(V/m)
Magnetic Field
Strength (H)
(A/m)
Power Density (S)
(mW/cm2)
Averaging Time
[E]2, [H]2, or S
(minutes)
0.3-3.0 614 1.63 (100)* 6
3.0-30 1842/f 4.89/f (900/f2)* 6
30-300 61.4 0.163 1.0 6
300-I,500 -- -- f/300 6
1,500-100,000 -- -- 5 6
RF-EME Compliance Report USID No. 300309 Site No. CCL00656
EBI Project No. 6222005058 999 Old Lucas Road, San Rafael, California
EBI Consulting · 21 B Street · Burlington, MA 01803 · 1.800.786.2346 4
Table 1: Limits for Maximum Permissible Exposure (MPE)
(A) Limits for Occupational/Controlled Exposure
Frequency Range
(MHz)
Electric Field
Strength (E)
(V/m)
Magnetic Field
Strength (H)
(A/m)
Power Density (S)
(mW/cm2)
Averaging Time
[E]2, [H]2, or S
(minutes)
(B) Limits for General Public/Uncontrolled Exposure
Frequency Range
(MHz)
Electric Field
Strength (E)
(V/m)
Magnetic Field
Strength (H)
(A/m)
Power Density (S)
(mW/cm2)
Averaging Time
[E]2, [H]2, or S
(minutes)
0.3-1.34 614 1.63 (100)* 30
1.34-30 824/f 2.19/f (180/f2)* 30
30-300 27.5 0.073 0.2 30
300-I,500 -- -- f/1,500 30
1,500-100,000 -- -- 1.0 30
f = Frequency in (MHz)
* Plane-wave equivalent power density
Based on the above, the most restrictive thresholds for exposures of unlimited duration to RF energy for
several personal wireless services are summarized below:
Personal Wireless Service Approximate
Frequency
Occupational
MPE Public MPE
Microwave (Point-to-Point) 5,000 - 80,000 MHz 5.00 mW/cm2 1.00 mW/cm2
Broadband Radio (BRS) 2,600 MHz 5.00 mW/cm2 1.00 mW/cm2
Wireless Communication (WCS) 2,300 MHz 5.00 mW/cm2 1.00 mW/cm2
Advanced Wireless (AWS) 2,100 MHz 5.00 mW/cm2 1.00 mW/cm2
Personal Communication (PCS) 1,950 MHz 5.00 mW/cm2 1.00 mW/cm2
Cellular Telephone 870 MHz 2.90 mW/cm2 0.58 mW/cm2
Specialized Mobile Radio (SMR) 855 MHz 2.85 mW/cm2 0.57 mW/cm2
Po
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D
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2)
RF-EME Compliance Report USID No. 300309 Site No. CCL00656
EBI Project No. 6222005058 999 Old Lucas Road, San Rafael, California
EBI Consulting · 21 B Street · Burlington, MA 01803 · 1.800.786.2346 5
Personal Wireless Service Approximate
Frequency
Occupational
MPE Public MPE
Long Term Evolution (LTE) 700 MHz 2.33 mW/cm2 0.47 mW/cm2
Most Restrictive Frequency Range 30-300 MHz 1.00 mW/cm2 0.20 mW/cm2
MPE limits are designed to provide a substantial margin of safety. These limits apply for continuous
exposures and are intended to provide a prudent margin of safety for all persons, regardless of age, gender,
size, or health.
Personal Communication (PCS) facilities used by AT&T in this area operate within a frequency range of
700-1900 MHz. Facilities typically consist of: 1) electronic transceivers (the radios or cabinets) connected
to wired telephone lines; and 2) antennas that send the wireless signals created by the transceivers to be
received by individual subscriber units (PCS telephones). Transceivers are typically connected to antennas
by coaxial cables.
Because of the short wavelength of PCS services, the antennas require line-of-site paths for good
propagation, and are typically installed above ground level. Antennas are constructed to concentrate
energy towards the horizon, with as little energy as possible scattered towards the ground or the sky.
This design, combined with the low power of PCS facilities, generally results in no possibility for exposure
to approach Maximum Permissible Exposure (MPE) levels, with the exception of areas directly in front of
the antennas.
2.0 AT&T RF EXPOSURE POLICY REQUIREMENTS
AT&T’s RF Exposure: Responsibilities, Procedures & Guidelines document, dated October 28, 2014,
requires that:
1. All sites must be analyzed for RF exposure compliance;
2. All sites must have that analysis documented; and
3. All sites must have any necessary signage and barriers installed.
Pursuant to this guidance, worst-case predictive modeling was performed for the site. This modeling is
described below in Section 3.0. Lastly, based on the modeling and survey data, EBI has produced a
Compliance Plan for this site that outlines the recommended signage and barriers. The recommended
Compliance Plan for this site is described in Section 4.0.
3.0 WORST-CASE PREDICTIVE MODELING
In accordance with AT&T’s RF Exposure policy, EBI performed theoretical modeling using RoofMaster™
software to estimate the worst-case power density at the site rooftop and ground-level and/or nearby
rooftops resulting from operation of the antennas. RoofMaster™ is a widely-used predictive modeling
program that has been developed to predict RF power density values for rooftop and tower
telecommunications sites produced by vertical collinear antennas that are typically used in the cellular,
PCS, paging and other communications services. Using the computational methods set forth in Federal
Communications (FCC) Office of Engineering & Technology (OET) Bulletin 65, “Evaluating Compliance
with FCC Guidelines for Human Exposure to Radiofrequency Electromagnetic Fields” (OET-65),
RoofMaster™ calculates predicted power density in a scalable grid based on the contributions of all RF
sources characterized in the study scenario. At each grid location, the cumulative power density is
expressed as a percentage of the FCC limits. Manufacturer antenna pattern data is utilized in these
calculations. RoofMaster™ models consist of the Far Field model as specified in OET-65 and an
implementation of the OET-65 Cylindrical Model (Sula9). The models utilize several operational
specifications for different types of antennas to produce a plot of spatially-averaged power densities that
can be expressed as a percentage of the applicable exposure limit. A statistical power factor may be applied
to the antenna system based on guidance from the carrier and system manufacturers.
RF-EME Compliance Report USID No. 300309 Site No. CCL00656
EBI Project No. 6222005058 999 Old Lucas Road, San Rafael, California
EBI Consulting · 21 B Street · Burlington, MA 01803 · 1.800.786.2346 6
For this report, EBI utilized antenna and power data provided by AT&T and compared the resultant worst-
case MPE levels to the FCC’s occupational/controlled exposure limits outlined in OET Bulletin 65.
The assumptions used in the modeling are based upon information provided by AT&T and information
gathered from other sources. An Unknown Carrier also has antennas on the monotree. Information
about these antennas was included in the modeling analysis.
Based on worst-case predictive modeling, there are no modeled exposures on any accessible rooftop or
ground walking/working surface related to ATT’s proposed antennas that exceed the FCC’s occupational
and/or general public exposure limits at this site.
At the nearest walking/working surfaces to the AT&T antennas on the adjacent roof level, the maximum
power density generated by the AT&T antennas is approximately 46.38 percent of the FCC’s general
public limit (9.28 percent of the FCC’s occupational limit). The composite exposure level from all carriers
on this site is approximately 52.05 percent of the FCC’s general public limit (10.41 percent of the FCC’s
occupational limit) at the nearest walking/working surface to each antenna. Based on worst-case predictive
modeling, there are no areas at ground/street level related to the proposed AT&T antennas that exceed
the FCC’s occupational or general public exposure limits at this site. At ground/street level, the maximum
power density generated by the antennas is approximately 24.26 percent of the FCC’s general public limit
(4.852 percent of the FCC’s occupational limit).
There were also worst-case predicted exposures above the general public MPE in front of the Sectors A
and B Unknown antennas. Modeling indicates that the AT&T contribution to these areas is 5% or less of
the general public MPE and, as such, under FCC regulations, AT&T is not responsible for these predicted
exceedances.
A graphical representation of the RoofMaster™ modeling results is presented in Appendix B.
Microwave dish antennas are designed for point-to-point operations at the elevations of the installed
equipment rather than ground-level coverage. Based on AT&T’s RF Exposure: Responsibilities, Procedures
& Guidelines document, dated October 28, 2014, microwave antennas are considered compliant if they
are higher than 20 feet above any accessible walking/working surface. There are no microwaves installed
at this site.
RF-EME Compliance Report USID No. 300309 Site No. CCL00656
EBI Project No. 6222005058 999 Old Lucas Road, San Rafael, California
EBI Consulting · 21 B Street · Burlington, MA 01803 · 1.800.786.2346 7
4.0 RECOMMENDED SIGNAGE/COMPLIANCE PLAN
Signs are the primary means for control of access to areas where RF exposure levels may potentially
exceed the MPE. As presented in the AT&T guidance document, the signs must:
§ Be posted at a conspicuous point;
§ Be posted at the appropriate locations;
§ Be readily visible; and
§ Make the reader aware of the potential risks prior to entering the affected area.
The table below presents the signs that may be used for AT&T installations.
CRAN / HETNET Small Cell Decals / Signs Alerting Signs
NOTICE
DECAL
TRILINGUAL
NOTICE NOTICE 2
NOTICE
SIGN
CAUTION 2 –
ROOFTOP CAUTION 2A
CAUTION
DECAL
CAUTION 2B -
TOWER
CAUTION 2C -
PARAPETS
CAUTION
SIGN
WARNING 1B WARNING 2A
RF-EME Compliance Report USID No. 300309 Site No. CCL00656
EBI Project No. 6222005058 999 Old Lucas Road, San Rafael, California
EBI Consulting · 21 B Street · Burlington, MA 01803 · 1.800.786.2346 8
Based upon protocols presented in AT&T’s RF Exposure: Responsibilities, Procedures & Guidelines
document, dated October 28, 2014, and additional guidance provided by AT&T, the following signage is
recommended on the site:
§ Yellow CAUTION 2B sign posted at the base of the monotree near the climbing ladder.
No barriers are required for this site. Barriers should be constructed of weather-resistant plastic or
wood fencing. Barriers may consist of railing, rope, chain, or weather-resistant plastic if no other types
are permitted or are feasible. Painted stripes should only be used as a last resort and only in regions where
there is little chance of snowfall. If painted stripes are selected as barriers, it is recommended that the
stripes and signage be illuminated. The signage and any barriers are graphically represented in the Signage
Plan presented in Appendix B.
5.0 SUMMARY AND CONCLUSIONS
EBI has prepared this Radiofrequency Emissions Compliance Report for the proposed AT&T
telecommunications equipment at the site located at 999 Old Lucas Road in San Rafael, California.
EBI has conducted theoretical modeling to estimate the worst-case power density from AT&T antennas
to document potential MPE levels at this location and ensure that site control measures are adequate to
meet FCC and OSHA requirements, as well as AT&T’s corporate RF safety policies. As presented in the
preceding sections, based on worst-case predictive modeling, there are no modeled exposures on any
accessible rooftop or ground walking/working surface related to ATT’s proposed antennas that exceed
the FCC’s occupational and/or general public exposure limits at this site. A power reduction was included
in this site per guidance from AT&T. This reduction was applied to the Sector C AIR6449 and AIR6419
antennas in the form of 3dB of loss.
To reduce the risk of exposure and/or injury, EBI recommends that access to the monotree or areas
associated with the active antenna installation be restricted and secured where possible. Signage is
recommended at the site as presented in Section 4.0 and Appendix B. Posting of the signage brings the
site into compliance with FCC rules and regulations and AT&T’s corporate RF safety policies.
6.0 LIMITATIONS
This report was prepared for the use of AT&T Mobility, LLC to meet requirements outlined in AT&T’s
corporate RF safety guidelines. It was performed in accordance with generally accepted practices of other
consultants undertaking similar studies at the same time and in the same locale under like circumstances.
The conclusions provided by EBI and its partners are based solely on information supplied by AT&T,
including modeling instructions, inputs, parameters and methods. Calculations, data, and modeling
methodologies for C Band equipment Include a statistical factor reducing the power to 32% of maximum
theoretical power to account for spatial distribution of users, network utilization, time division duplexing,
and scheduling time. AT&T recommends the use of this factor based on a combination of guidance from
its antenna system manufacturers, supporting international industry standards, industry publications, and
its extensive experience. The observations in this report are valid on the date of the investigation. Any
additional information that becomes available concerning the site should be provided to EBI so that our
conclusions may be revised and modified, if necessary. This report has been prepared in accordance with
Standard Conditions for Engagement and authorized proposal, both of which are integral parts of this
report. No other warranty, expressed or implied, is made.
RF-EME Compliance Report USID No. 300309 Site No. CCL00656
EBI Project No. 6222005058 999 Old Lucas Road, San Rafael, California
EBI Consulting · 21 B Street · Burlington, MA 01803 · 1.800.786.2346 9
Appendix A
Personnel Certifications
RF-EME Compliance Report USID No. 300309 Site No. CCL00656
EBI Project No. 6222005058 999 Old Lucas Road, San Rafael, California
EBI Consulting · 21 B Street · Burlington, MA 01803 · 1.800.786.2346 10
Preparer Certification
I, Rebecca Sinisgalli, state that:
§ I am an employee of EnviroBusiness Inc. (d/b/a EBI Consulting), which provides RF-EME safety and
compliance services to the wireless communications industry.
§ I have successfully completed RF-EME safety training, and I am aware of the potential hazards from
RF-EME and would be classified “occupational” under the FCC regulations.
§ I am fully aware of and familiar with the Rules and Regulations of both the Federal Communications
Commissions (FCC) and the Occupational Safety and Health Administration (OSHA) with regard
to Human Exposure to Radio Frequency Radiation.
§ I have been trained in on the procedures outlined in AT&T’s RF Exposure: Responsibilities,
Procedures & Guidelines document (dated October 28, 2014) and on RF-EME modeling using
RoofMaster™ modeling software.
§ I have reviewed the data provided by the client and incorporated it into this Site Compliance
Report such that the information contained in this report is true and accurate to the best of my
knowledge.
RF-EME Compliance Report USID No. 300309 Site No. CCL00656
EBI Project No. 6222005058 999 Old Lucas Road, San Rafael, California
EBI Consulting · 21 B Street · Burlington, MA 01803 · 1.800.786.2346 11
Reviewed and Approved by:
Michael McGuire
Electrical Engineer
mike@h2dc.com
Note that EBI’s scope of work is limited to an evaluation of the Radio Frequency – Electromagnetic Energy
(RF-EME) field generated by the antennas and broadcast equipment noted in this report. The engineering
and design of the building and related structures, as well as the impact of the antennas and broadcast
equipment on the structural integrity of the building, are specifically excluded from EBI’s scope of work.
sealed 23aug2022
RF-EME Compliance Report USID No. 300309 Site No. CCL00656
EBI Project No. 6222005058 999 Old Lucas Road, San Rafael, California
EBI Consulting · 21 B Street · Burlington, MA 01803 · 1.800.786.2346 12
Appendix B
Compliance/Signage Plan
RF-EME Compliance Report USID No. 300309 Site No. CCL00656
EBI Project No. 6222005058 999 Old Lucas Road, San Rafael, California
EBI Consulting · 21 B Street · Burlington, MA 01803 · 1.800.786.2346 13
Ground Level Simulation
Existing Sign
Proposed Sign
Installed Sign
RF-EME Compliance Report USID No. 300309 Site No. CCL00656
EBI Project No. 6222005058 999 Old Lucas Road, San Rafael, California
EBI Consulting · 21 B Street · Burlington, MA 01803 · 1.800.786.2346 14
Adjacent Water Tank Level Nearest Walking Surface Simulation
Existing Sign
Proposed Sign
Installed Sign
Proposed CAUTION 2B
Sign at Base of Monotree
climbing ladder
Environmental Noise Assessment
CCL00656 AT&T Cellular Facility
City of San Rafael, California
BAC Job # 2022-108
Prepared For:
Complete Wireless Consulting
Attn: Steve Proo
2009 V Street
Sacramento, CA 95818
Prepared By:
Bollard Acoustical Consultants, Inc.
Dario Gotchet, Principal Consultant
June 30, 2022
Bollard Acoustical Consultants, Inc. ● P.O. Box 7968, Auburn, CA. 95604 ● Phone: (530) 537-2328 ● bacnoise.com
Bollard Acoustical Consultants, Inc.
Environmental Noise Assessment
CCL00656 AT&T Cellular Facility – San Rafael, California
Page 1
Introduction
The CCL00656 AT&T Wireless Unmanned Telecommunications Facility (project) proposes the
installation of cellular equipment within a lease area located at 999 Old Lucas Valley Road in the
City of San Rafael, California (APN: 165-010-03). The externally mounted HVAC unit of a pre-
manufactured walk-in cabinet (WIC) shelter and an emergency diesel standby generator have
been identified as the primary noise sources associated with the project. The project site location
with aerial imagery is shown in Figure 1. The studied site drawings are dated June 7, 2022.
Bollard Acoustical Consultants, Inc. has been contracted by Complete Wireless Consulting, Inc.
to complete an environmental noise assessment regarding the proposed project cellular
equipment operations. Specifically, the following assessment addresses daily noise production
and exposure associated with operation of the project emergency generator and HVAC
equipment.
Please refer to Appendix A for definitions of acoustical terminology used in this report. Appendix
B illustrates common noise levels associated with various sources. Criteria for Acceptable Noise Exposure
San Rafael Municipal Code
Chapter 8.13 of the San Rafael Municipal Code provides noise level limits that would be applicable
to the proposed project equipment. The Municipal Code provides noise level limits that vary
depending on the zoning of the receiving land use and noise source type. According to MarinMap
Viewer (accessed June 22, 2022), the project parcel and adjacent parcel are zoned Parks/Open
Space District.
The nearest noise-sensitive uses have been identified as residential to the north and east of the
project, as shown on Figure 1. Section 8.13.040.A of the San Rafael Municipal Code establishes
daytime and nighttime noise level standards of 50 and 40 dB Leq (respectively) for constant noise
sources (such as the proposed equipment) affecting residential properties. The following analysis
of project equipment noise exposure focuses on compliance with the Municipal Code residential
noise level criteria at the property lines of the nearest residential uses to the north and east.
Satisfaction of the City’s noise level criteria at the closest residential uses would ensure
compliance with the City’s noise level limits at more distant residential uses.
Exemptions to the Municipal Code Noise Regulations
Section 8.13.070 of the San Rafael Municipal Code provides exemptions to the noise regulations
established in Section 8.13.040. Specifically, Section 8.13.070(B) provides an exemption to the
emission of sound for “all necessary equipment utilized for the purpose of responding to an
emergency, or necessary to restore, preserve, protect or save lives or property from imminent
danger or loss or harm”. Because the project cellular equipment would operate using City power,
the specific purpose of the generator proposed as part of this project is to provide power to the
system during an emergency power outage, thereby allowing the system to provide vital
communications during the power outage.
Legend
Figure 10150300
Scale (Feet)
Proposed AT&T Cellular Equipment Lease Area (Approximate)
CCL00656 AT&T Cellular Facility
San Rafael, California
Proposed Cellular Facility Lease Area
& Nearest Residential Uses
Residential Parcel Boundaries
Land Use: Residential
APN: 164-034-05
Jerry Russom
Memorial Park
Land Use: Residential
APN: 165-131-03
Bollard Acoustical Consultants, Inc.
Environmental Noise Assessment
CCL00656 AT&T Cellular Facility – San Rafael, California
Page 3
Noise Standards Applied to this Project
HVAC Equipment
Noise would be generated by this project in two ways. The first is the ongoing operation of the
cellular HVAC equipment cooling systems. These systems utilize fans to circulate cooling air
through the electric circuitry. During warmer periods, the cooling requirements will be greater,
and the fans will run continuously. During cooler periods, however, the heat transfer requirements
are diminished, and the fans will run intermittently as needed. Because the fan operation is a
normal aspect of the project, and because the fans could run continuously during warm nighttime
hours (i.e., more than 30 minutes per hour), the noise standards applied to the HVAC equipment
are as follows:
• 50 dB Leq during daytime hours
• 40 dB Leq during nighttime hours
Satisfaction with the City’s more restrictive nighttime noise level standard would ensure
compliance with the City’s less restrictive daytime noise level limit. As a result, this analysis of
project-generated HVAC equipment noise levels focuses on achieving compliance with the City’s
nighttime noise standard of 40 dB Leq at the nearest residential property lines.
Emergency Generator
The function of the emergency generator is to provide ongoing communications support during
emergencies resulting in power outages. As a result, the emergency generator would operate
only during routine testing and emergency power outages.
With respect to testing, the emergency generator would be tested during daytime hours only,
twice per month, for a duration not exceeding 15 minutes during each test. The purpose of this
routine testing is to ensure that the generator will be properly lubricated and in good working order
in the event of an emergency resulting in a power outage. Because this routine testing would
occur for a period of 15 minutes per hour, and only during daytime hours, the noise generation of
this aspect of the project should be evaluated relative to the City’s daytime 50 Leq noise standard.
Aside from routine daytime testing described above, the emergency generator would only operate
during emergencies resulting in power outages. Section 8.13.070 of the San Rafael Municipal
Code exempts the operation of the generator during emergencies. As a result, the analysis of
generator noise levels focuses on achieving compliance with the City’s daytime noise level
standard of 50 dB Leq, as operation of the generator during emergency conditions resulting in
power outages are identified as being exempt in the Municipal Code.
Project Noise Generation
HVAC Equipment Noise Source and Reference Noise Level
The project proposes the installation of a pre-manufactured walk-in cabinet equipped with one (1)
externally mounted HVAC unit within the equipment lease area illustrated on Figure 1. According
to the project site plans, the HVAC unit assumed for installation at this site is a Marvair Airxcel,
Inc. Model ECUA18ACA. Based on reference noise level data obtained from the manufacturer
Bollard Acoustical Consultants, Inc.
Environmental Noise Assessment
CCL00656 AT&T Cellular Facility – San Rafael, California
Page 4
(Marvair Airxcel, Inc.), this specific HVAC unit model has a reference noise level of 62 dB at 5
feet. The manufacturer’s noise level data specification sheet for the proposed HVAC equipment
is provided as Appendix C.
Generator Noise Source and Reference Noise Level
The project also proposes the installation of an emergency standby diesel generator within the
lease area to maintain cellular service during emergency power outages. Based on the project
site plans, a Generac Industrial Power Systems Model SD030 is assumed for installation at this
site. It is further assumed that the proposed generator will be equipped with a Level 2 Acoustic
Enclosure. According to the manufacturer’s noise level data specification sheet, provided as
Appendix D, the Level 2 Acoustic Enclosure attenuates generator noise exposure to 68 dB at 23
feet.
The generator which is proposed at this site would only operate during emergencies (power
outages) and brief daytime periods for periodic maintenance/lubrication. According to the project
applicant, testing of the generator would occur twice per month, during daytime hours, for a
duration of approximately 15 minutes. The emergency generator would not operate at night,
except during power outages.
Predicted Facility Noise Levels at Nearest Residential Property Lines
The nearest existing residential uses are located north and east of the project, identified as APN’s:
164-034-05 and 165-131-03 (respectively) on Figure 1. Assuming standard spherical spreading
loss (-6 dB per doubling of distance), project equipment noise exposure at the nearest residential
property lines was calculated and the results of those calculations are presented in Table 1.
Table 1
Project Equipment Noise Exposure at Nearest Residential Property Lines
APN1 Direction
Distance from
Lease Area (ft)2
Predicted Equipment Noise Level, Leq (dB)
HVAC Generator
164-034-05 North 750 <20 38
165-131-03 East 1,000 <20 35
1 Parcels shown in Figure 1.
2 Distances scaled using the provided site plans and the MarinMap Viewer.
Source: Bollard Acoustical Consultants, Inc. (2022)
Because the proposed HVAC equipment could potentially be in operation during nighttime hours,
the operation of the HVAC unit would be subject to the San Rafael Municipal Code 40 dB Leq
nighttime noise level standard. As shown in Table 1, the predicted HVAC equipment noise levels
of less than 20 dB Leq at the nearest residential property lines would satisfy the Municipal Code
40 dB Leq nighttime noise level standard by a wide margin. As a result, no additional noise
mitigation measures would be warranted for this aspect of the project.
Because the project generator would only operate during daytime hours for brief periods required
for testing and maintenance, and because generator noise is exempt during emergency
operations, project generator noise was assessed relative to the San Rafael Municipal Code 50
dB Leq daytime noise level standard. As indicated in Table 1, the predicted generator noise levels
Bollard Acoustical Consultants, Inc.
Environmental Noise Assessment
CCL00656 AT&T Cellular Facility – San Rafael, California
Page 5
of 35 to 38 dB Leq would satisfy the Municipal Code 50 dB Leq daytime noise level standard by a
wide margin. As a result, no additional noise mitigation measures would be warranted for this
aspect of the project.
Conclusions
Based on the equipment noise level data and analyses presented above, project related
equipment noise exposure is expected to satisfy the applicable City of San Rafael noise exposure
limits at the closest residential property lines. Satisfaction of the City’s noise level criteria at the
closest residential uses would ensure compliance with the City’s noise level limits at more distant
residential uses. As a result, no additional noise mitigation measures would be warranted for this
project.
This concludes our environmental noise assessment for the proposed CCL00656 AT&T Cellular
Facility in San Rafael, California. Please contact BAC at (530) 537-2328 or info@bacnoise.com
with any questions or requests for additional information.
Appendix A
Acoustical Terminology
Acoustics The science of sound.
Ambient Noise The distinctive acoustical characteristics of a given space consisting of all noise sources
audible at that location. In many cases, the term ambient is used to describe an existing
or pre-project condition such as the setting in an environmental noise study.
Attenuation The reduction of an acoustic signal.
A-Weighting A frequency-response adjustment of a sound level meter that conditions the output
signal to approximate human response.
Decibel or dB Fundamental unit of sound. A Bell is defined as the logarithm of the ratio of the sound
pressure squared over the reference pressure squared. A Decibel is one-tenth of a
Bell.
CNEL Community Noise Equivalent Level. Defined as the 24-hour average noise level with
noise occurring during evening hours (7 - 10 p.m.) weighted by a factor of three and
nighttime hours weighted by a factor of 10 prior to averaging.
Frequency The measure of the rapidity of alterations of a periodic signal, expressed in cycles per
second or hertz.
IIC Impact Insulation Class (IIC): A single-number representation of a floor/ceiling partition’s
impact generated noise insulation performance. The field-measured version of this
number is the FIIC.
Ldn Day/Night Average Sound Level. Similar to CNEL but with no evening weighting.
Leq Equivalent or energy-averaged sound level.
Lmax The highest root-mean-square (RMS) sound level measured over a given period of time.
Loudness A subjective term for the sensation of the magnitude of sound.
Masking The amount (or the process) by which the threshold of audibility is for one sound is
raised by the presence of another (masking) sound.
Noise Unwanted sound.
Peak Noise The level corresponding to the highest (not RMS) sound pressure measured over a
given period of time. This term is often confused with the “Maximum” level, which is the
highest RMS level.
RT60 The time it takes reverberant sound to decay by 60 dB once the source has been
removed.
STC Sound Transmission Class (STC): A single-number representation of a partition’s noise
insulation performance. This number is based on laboratory-measured, 16-band (1/3-
octave) transmission loss (TL) data of the subject partition. The field-measured version
of this number is the FSTC.
Appendix C
VICINITY MAP CODE COMPLIANCEPROJECT DESCRIPTION
T-1.1
TITLE SHEET
PREPARED FOR
REV DESCRIPTIONDATE
SHEET TITLE:
SHEET NUMBER:
CHECKED BY:
DRAWN BY:
PROJECT NO:
IT IS A VIOLATION OF LAW FOR ANY PERSON,
UNLESS THEY ARE ACTING UNDER THE
DIRECTION OF A LICENSED PROFESSIONAL
ENGINEER, TO ALTER THIS DOCUMENT.
Vendor:
Licensee:
ENGINEER:
AT&T SITE NO:
-
CCL00656
06/07/22 ZD 90%
5001 Executive Parkway
San Ramon, California 94583
Issued For:
CCL00656
LUCAS VALLEY RD.
& HUCKLEBERRY RD.
0
APPROVED BY:
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CAD
07/13/22 ZD 100%1 T.S.
04/06/23 CLIENT REV2 A.A.
08/29/23 CLIENT REV3 C.T.C
DRIVING DIRECTIONS
PROJECT INFORMATION
SHEET INDEX
SHEET DESCRIPTION REV SHEET DESCRIPTION REV
AT&T SITE NUMBER: CCL00656
AT&T SITE NAME: LUCAS VALLEY RD.
& HUCKLEBERRY RD.
999 OLD LUCAS VALLEY ROAD
SAN RAFAEL, CA 94903
JURISDICTION: CITY OF SAN RAFAEL
APN:165-010-03
SITE TYPE: SHELTER / MONOPINE
SCALE: N/A
TN
SITE LOCATION
INITIATIVE/PROJECT: NSB
USID: 300309
FA LOCATION CODE: 10070336
RFDS ID #: 4508079
RFDS VERSION: 2.00
RFDS DATE: 05/10/2022
PACE JOB#: MRSFR073871
PTN#: 3701A0WFMW
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REV DESCRIPTIONDATE
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SHEET NUMBER:
CHECKED BY:
DRAWN BY:
PROJECT NO:
IT IS A VIOLATION OF LAW FOR ANY PERSON,
UNLESS THEY ARE ACTING UNDER THE
DIRECTION OF A LICENSED PROFESSIONAL
ENGINEER, TO ALTER THIS DOCUMENT.
Vendor:
Licensee:
ENGINEER:
AT&T SITE NO:
-
CCL00656
06/07/22 ZD 90%
5001 Executive Parkway
San Ramon, California 94583
Issued For:
CCL00656
LUCAS VALLEY RD.
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0
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999 OLD LUCAS VALLEY RD.
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07/13/22 ZD 100%1 T.S.
04/06/23 CLIENT REV2 A.A.
08/29/23 CLIENT REV3 C.T.C
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PREPARED FOR
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SHEET TITLE:
SHEET NUMBER:
CHECKED BY:
DRAWN BY:
PROJECT NO:
IT IS A VIOLATION OF LAW FOR ANY PERSON,
UNLESS THEY ARE ACTING UNDER THE
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Vendor:
Licensee:
ENGINEER:
AT&T SITE NO:
-
CCL00656
06/07/22 ZD 90%
5001 Executive Parkway
San Ramon, California 94583
Issued For:
CCL00656
LUCAS VALLEY RD.
& HUCKLEBERRY RD.
0
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SAN RAFAEL, CA 94903
CAD
07/13/22 ZD 100%1 T.S.
04/06/23 CLIENT REV2 A.A.
08/29/23 CLIENT REV3 C.T.C
A-1.2
ENLARGED SITE
PLAN
TN
PREPARED FOR
REV DESCRIPTIONDATE
SHEET TITLE:
SHEET NUMBER:
CHECKED BY:
DRAWN BY:
PROJECT NO:
IT IS A VIOLATION OF LAW FOR ANY PERSON,
UNLESS THEY ARE ACTING UNDER THE
DIRECTION OF A LICENSED PROFESSIONAL
ENGINEER, TO ALTER THIS DOCUMENT.
Vendor:
Licensee:
ENGINEER:
AT&T SITE NO:
-
CCL00656
06/07/22 ZD 90%
5001 Executive Parkway
San Ramon, California 94583
Issued For:
CCL00656
LUCAS VALLEY RD.
& HUCKLEBERRY RD.
0
APPROVED BY:
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SAN RAFAEL, CA 94903
CAD
07/13/22 ZD 100%1 T.S.
04/06/23 CLIENT REV2 A.A.
08/29/23 CLIENT REV3 C.T.C
A-1.3
EQUIPMENT
PLANTN
PREPARED FOR
REV DESCRIPTIONDATE
SHEET TITLE:
SHEET NUMBER:
CHECKED BY:
DRAWN BY:
PROJECT NO:
IT IS A VIOLATION OF LAW FOR ANY PERSON,
UNLESS THEY ARE ACTING UNDER THE
DIRECTION OF A LICENSED PROFESSIONAL
ENGINEER, TO ALTER THIS DOCUMENT.
Vendor:
Licensee:
ENGINEER:
AT&T SITE NO:
-
CCL00656
06/07/22 ZD 90%
5001 Executive Parkway
San Ramon, California 94583
Issued For:
CCL00656
LUCAS VALLEY RD.
& HUCKLEBERRY RD.
0
APPROVED BY:
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CAD
07/13/22 ZD 100%1 T.S.
04/06/23 CLIENT REV2 A.A.
08/29/23 CLIENT REV3 C.T.C
A-2.1
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PREPARED FOR
REV DESCRIPTIONDATE
SHEET TITLE:
SHEET NUMBER:
CHECKED BY:
DRAWN BY:
PROJECT NO:
IT IS A VIOLATION OF LAW FOR ANY PERSON,
UNLESS THEY ARE ACTING UNDER THE
DIRECTION OF A LICENSED PROFESSIONAL
ENGINEER, TO ALTER THIS DOCUMENT.
Vendor:
Licensee:
ENGINEER:
AT&T SITE NO:
-
CCL00656
06/07/22 ZD 90%
5001 Executive Parkway
San Ramon, California 94583
Issued For:
CCL00656
LUCAS VALLEY RD.
& HUCKLEBERRY RD.
0
APPROVED BY:
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SAN RAFAEL, CA 94903
CAD
07/13/22 ZD 100%1 T.S.
04/06/23 CLIENT REV2 A.A.
08/29/23 CLIENT REV3 C.T.C
A-3.1
ELEVATIONS
PREPARED FOR
REV DESCRIPTIONDATE
SHEET TITLE:
SHEET NUMBER:
CHECKED BY:
DRAWN BY:
PROJECT NO:
IT IS A VIOLATION OF LAW FOR ANY PERSON,
UNLESS THEY ARE ACTING UNDER THE
DIRECTION OF A LICENSED PROFESSIONAL
ENGINEER, TO ALTER THIS DOCUMENT.
Vendor:
Licensee:
ENGINEER:
AT&T SITE NO:
-
CCL00656
06/07/22 ZD 90%
5001 Executive Parkway
San Ramon, California 94583
Issued For:
CCL00656
LUCAS VALLEY RD.
& HUCKLEBERRY RD.
0
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CCL00656 Service Maps
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Existing LTE 700 Coverage
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December 20, 2023
CCL00656
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Proposed LTE 700 Coverage
Federal Communications Commission FCC 18-133
1
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Accelerating Wireless Broadband Deployment by
Removing Barriers to Infrastructure Investment
Accelerating Wireline Broadband Deployment by
Removing Barriers to Infrastructure Investment
)
)
)
)
)
)
)
WT Docket No. 17-79
WC Docket No. 17-84
DECLARATORY RULING AND THIRD REPORT AND ORDER
Adopted: September 26, 2018 Released: September 27, 2018
By the Commission: Chairman Pai and Commissioners O’Rielly and Carr issuing separate statements;
Commissioner Rosenworcel approving in part, dissenting in part and issuing a statement.
TABLE OF CONTENTS
Heading Paragraph #
I.INTRODUCTION ...................................................................................................................................1
II.BACKGROUND ...................................................................................................................................14
A.Legal Background ...........................................................................................................................14
B.The Need for Commission Action ..................................................................................................23
III.DECLARATORY RULING .................................................................................................................30
A.Overview of the Section 253 and Section 332(c)(7) Framework Relevant to Small
Wireless Facilities Deployment ......................................................................................................34
B.State and Local Fees .......................................................................................................................43
C.Other State and Local Requirements that Govern Small Facilities Deployment ............................81
D.States and Localities Act in Their Regulatory Capacities When Authorizing and Setting
Terms for Wireless Infrastructure Deployment in Public Rights of Way.......................................92
E.Responses to Challenges to Our Interpretive Authority and Other Arguments ..............................98
IV.THIRD REPORT AND ORDER ........................................................................................................103
A.New Shot Clocks for Small Wireless Facility Deployments ........................................................104
1.Two New Section 332 Shot Clocks for Deployment of Small Wireless Facilities ................105
2.Batched Applications for Small Wireless Facilities ...............................................................113
B.New Remedy for Violations of the Small Wireless Facilities Shot Clocks ..................................116
C.Clarification of Issues Related to All Section 332 Shot Clocks ...................................................132
1.Authorizations Subject to the “Reasonable Period of Time” Provision of Section
332(c)(7)(B)(ii).......................................................................................................................132
2.Codification of Section 332 Shot Clocks ...............................................................................138
3.Collocations on Structures Not Previously Zoned for Wireless Use .....................................140
4.When Shot Clocks Start and Incomplete Applications ..........................................................141
V.PROCEDURAL MATTERS ...............................................................................................................148
VI.ORDERING CLAUSES ......................................................................................................................151
APPENDIX A -- Final Rules
APPENDIX B -- Comments and Reply Comments
APPENDIX C -- Final Regulatory Flexibility Analysis
Federal Communications Commission FCC 18-133
2
I.INTRODUCTION
1.America is in the midst of a transition to the next generation of wireless services, known
as 5G. These new services can unleash a new wave of entrepreneurship, innovation, and economic
opportunity for communities across the country. The FCC is committed to doing our part to help ensure
the United States wins the global race to 5G to the benefit of all Americans. Today’s action is the next
step in the FCC’s ongoing efforts to remove regulatory barriers that would unlawfully inhibit the
deployment of infrastructure necessary to support these new services. We proceed by drawing on the
balanced and commonsense ideas generated by many of our state and local partners in their own small
cell bills.
2.Supporting the deployment of 5G and other next-generation wireless services through
smart infrastructure policy is critical. Indeed, upgrading to these new services will, in many ways,
represent a more fundamental change than the transition to prior generations of wireless service. 5G can
enable increased competition for a range of services—including broadband—support new healthcare and
Internet of Things applications, speed the transition to life-saving connected car technologies, and create
jobs. It is estimated that wireless providers will invest $275 billion1 over the next decade in next-
generation wireless infrastructure deployments, which should generate an expected three million new jobs
and boost our nation’s GDP by half a trillion dollars.2 Moving quickly to enable this transition is
important, as a new report forecasts that speeding 5G infrastructure deployment by even one year would
unleash an additional $100 billion to the U.S. economy.3 Removing barriers can also ensure that every
community gets a fair shot at these deployments and the opportunities they enable.
3.The challenge for policymakers is that the deployment of these new networks will look
different than the 3G and 4G deployments of the past. Over the last few years, providers have been
increasingly looking to densify their networks with new small cell deployments that have antennas often
no larger than a small backpack. From a regulatory perspective, these raise different issues than the
construction of large, 200-foot towers that marked the 3G and 4G deployments of the past. Indeed,
estimates predict that upwards of 80 percent of all new deployments will be small cells going forward.4
To support advanced 4G or 5G offerings, providers must build out small cells at a faster pace and at a far
greater density of deployment than before.
4.To date, regulatory obstacles have threatened the widespread deployment of these new
services and, in turn, U.S. leadership in 5G. The FCC has lifted some of those barriers, including our
decision in March 2018, which excluded small cells from some of the federal review procedures designed
for those larger, 200-foot towers. But as the record here shows, the FCC must continue to act in
partnership with our state and local leaders that are adopting forward leaning policies.
5.Many states and localities have acted to update and modernize their approaches to small
cell deployments. They are working to promote deployment and balance the needs of their communities.
At the same time, the record shows that problems remain. In fact, many state and local officials have
urged the FCC to continue our efforts in this proceeding and adopt additional reforms. Indeed, we have
1 See Accenture Strategy, Accelerating Future Economic Value from the Wireless Industry at 2 (2018) (Accelerating
Future Economic Value Report), https://www.ctia.org/news/accelerating-future-economic-value-from-the-wireless-
industry, attached to Letter from Scott K. Bergmann, Senior Vice Pres., Reg. Affairs, CTIA to Marlene H. Dortch,
Secretary, FCC, WT Docket No. 17-79 (filed July 19, 2018).
2 See Accenture Strategy, Smart Cities: How 5G Can Help Municipalities Become Vibrant Smart Cities, (2017)
http://www.ctia.org/docs/default-source/default-document-library/how-5g-can-help-municipalities-become-
vibrantsmart-cities-accenture.pdf; attached to Letter from Scott Bergmann, Vice Pres. Reg. Affairs, CTIA to
Marlene H. Dortch, Secretary, FCC, WT Docket No. 16-421, (filed Jan. 13, 2017).
3 Accelerating Future Economic Value Report at 2.
4 Letter from John T. Scott, Counsel for Mobilitie, LLC, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-
79 at 2-3 (filed Sept. 12, 2018).
Federal Communications Commission FCC 18-133
3
heard from a number of local officials that the excessive fees or other costs associated with deploying
small scale wireless infrastructure in large or otherwise “must serve” cities are materially inhibiting the
buildout of wireless services in their own communities.
6.We thus find that now is the appropriate time to move forward with an approach geared
at the conduct that threatens to limit the deployment of 5G services. In reaching our decision today, we
have benefited from the input provided by a range of stakeholders, including state and local elected
officials.5 FCC leadership spent substantial time over the course of this proceeding meeting directly with
local elected officials in their jurisdictions. In light of those discussions and our consideration of the
record here, we reach a decision today that does not preempt nearly any of the provisions passed in recent
state-level small cell bills. We have reached a balanced, commonsense approach, rather than adopting a
one-size-fits-all regime. This ensures that state and local elected officials will continue to play a key role
in reviewing and promoting the deployment of wireless infrastructure in their communities.
7.Although many states and localities support our efforts, we acknowledge that there are
others who advocated for different approaches.6 We have carefully considered these views, but
nevertheless find our actions here necessary and fully supported. By building on state and local ideas,
today’s action boosts the United States’ standing in the race to 5G. According to a study submitted by
Corning, our action would eliminate around $2 billion in unnecessary costs, which would stimulate
around $2.4 billion of additional buildouts.7 And that study shows that such new service would be
5 See, e.g., Letter from Brian D. Hill, Ohio State Representative, to the Hon. Brendan Carr, Commissioner, FCC,
WT Docket No. 17-79 at 1-2 (filed Aug. 31, 2018) (“While the FCC and the Ohio Legislature have worked to
reduce the timeline for 5G deployment, the same cannot be said for all local and state governments. Regulations
written in a different era continue to dictate the regulatory process for 5G infrastructure”); Letter from Maureen
Davey, Commissioner, Stillwater County, to the Hon. Brendan Carr, Commissioner, FCC, WT Docket No. 17-79 at
1-2 (filed Sept. 18, 2018) (“[T]he Commission’s actions to lower regulatory barriers can enable more capital
spending to flow to areas like ours. Reducing fees and shortening review times in urban areas, thereby lowering the
cost of deployment in such areas, can promote speedier deployment across all of America.”); Letter from Board of
County Commissioners, Yellowstone County, to the Hon. Brendan Carr, Commissioner, FCC, WT Docket No. 17-
79 at 1-2 (filed Sept. 21, 2018) (“Reducing these regulatory barriers by setting guidelines on fees, siting
requirements and review timeframes, will promote investment including rural areas like ours.”); Letter from Board
of Commissioners, Harney County, Oregon, to the Hon. Brendan Carr, Commissioner, FCC, WT Docket No. 17-79
at 1-2 (filed Sept. 5, 2018) (“By taking action to speed and reduce the costs of deployment across the country, and
create a more uniform regulatory framework, the Commission will lower the cost of deployment, enabling more
investment in both urban and rural communities.”); Letter from Niraj J. Antani, Ohio State Representative, to the
Hon. Brendan Carr, Commissioner, FCC, WT Docket No. 17-79 at 1-2 (filed Sept. 4, 2018) (“[T]o truly expedite the
small cell deployment process, broader government action is needed on more than just the state level.”); Letter from
Michael C. Taylor, Mayor, City of Sterling Heights, to the Hon. Brendan Carr, Commissioner, FCC, WT Docket
No. 17-79 at 1-2 (filed Aug. 30, 2018) (“[T]here are significant, tangible benefits to having a nation-wide rule that
promotes the deployment of next-generation wireless access without concern that excessive regulation or small cell
siting fees slows down the process.”).
6 See, e.g., Letter from Linda Morse, Mayor, City of Manhattan, KS to Marlene H. Dortch, Secretary, FCC, WT
Docket No. 17-79 at 1-2 (filed Sept. 13, 2018) (City of Manhattan, KS Sept. 13, 2018 Ex Parte Letter); Letter from
Ronny Berdugo, Legislative Representative, League of California Cities to Marlene H. Dortch, Secretary, FCC, WT
Docket No. 17-79 at 1-2 (filed Sept. 18, 2018) (Ronny Berdugo Sept. 18, 2018 Ex Parte Letter); Letter from Damon
Connolly, Marin County Board of Supervisors to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79 at 1-2
(filed Sept. 17, 2018) (Damon Connolly Sept. 17, 2018 Ex Parte Letter).
7 See Letter from Thomas J. Navin, Counsel to Corning, Inc., to Marlene H. Dortch, Secretary, FCC, WT Docket
No. 17-79 at 1, Attach. A at 2-3 (filed Sept. 5, 2018) (Corning Sept. 5, 2018 Ex Parte Letter).
Federal Communications Commission FCC 18-133
4
deployed where it is needed most: 97 percent of new deployments would be in rural and suburban
communities that otherwise would be on the wrong side of the digital divide.8
8.The FCC will keep pressing ahead to ensure that every community in the country gets a
fair shot at the opportunity that next-generation wireless services can enable. As detailed in the sections
that follow, we do so by taking the following steps.
9.In the Declaratory Ruling, we note that a number of appellate courts have articulated
different and often conflicting views regarding the scope and nature of the limits Congress imposed on
state and local governments through Sections 253 and 332. We thus address and reconcile this split in
authorities by taking three main actions.
10.First, we express our agreement with the U.S. Courts of Appeals for the First, Second,
and Tenth Circuits that the “materially inhibit” standard articulated in 1997 by the Clinton-era FCC’s
California Payphone decision is the appropriate standard for determining whether a state or local law
operates as a prohibition or effective prohibition within the meaning of Sections 253 and 332.
11.Second, we note, as numerous courts and prior FCC cases have recognized, that state and
local fees and other charges associated with the deployment of wireless infrastructure can unlawfully
prohibit the provision of service. At the same time, courts have articulated various approaches to
determining the types of fees that run afoul of Congress’s limits in Sections 253 and 332. We thus clarify
the particular standard that governs the fees and charges that violate Sections 253 and 332 when it comes
to the Small Wireless Facilities at issue in this decision.9 Namely, fees are only permitted to the extent
that they are nondiscriminatory and represent a reasonable approximation of the locality’s reasonable
costs. In this section, we also identify specific fee levels for the deployment of Small Wireless Facilities
that presumptively comply with this standard. We do so to help avoid unnecessary litigation over fees.
12.Third, we focus on a subset of other, non-fee provisions of local law that could also
operate as prohibitions on service. We do so in particular by addressing state and local consideration of
aesthetic concerns in the deployment of Small Wireless Facilities, recognizing that certain reasonable
aesthetic considerations do not run afoul of Sections 253 and 332. This responds in particular to many
concerns we heard from state and local governments about deployments in historic districts.
8 Id.
9 “Small Wireless Facilities,” as used herein and consistent with section 1.1312(e)(2), encompasses facilities that
meet the following conditions:
(1) The facilities—
(i) are mounted on structures 50 feet or less in height including their antennas as defined in section
1.1320(d), or
(ii) are mounted on structures no more than 10 percent taller than other adjacent structures, or
(iii) do not extend existing structures on which they are located to a height of more than 50 feet or
by more than 10 percent, whichever is greater;
(2)Each antenna associated with the deployment, excluding associated antenna equipment (as defined
in the definition of antenna in section 1.1320(d)), is no more than three cubic feet in volume;
(3)All other wireless equipment associated with the structure, including the wireless equipment
associated with the antenna and any pre-existing associated equipment on the structure, is no more
than 28 cubic feet in volume;
(4)The facilities do not require antenna structure registration under part 17 of this chapter;
(5)The facilities are not located on Tribal lands, as defined under 36 CFR 800.16(x); and
(6)The facilities do not result in human exposure to radiofrequency radiation in excess of the
applicable safety standards specified in section 1.1307(b).
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13.Next, we issue a Report and Order that addresses the “shot clocks” governing the review
of wireless infrastructure deployments. We take three main steps in this regard. First, we create a new set
of shot clocks tailored to support the deployment of Small Wireless Facilities. In particular, we read
Sections 253 and 332 as allowing 60 days for reviewing the application for attachment of a Small
Wireless Facility using an existing structure and 90 days for the review of an application for attachment
of a small wireless facility using a new structure. Second, while we do not adopt a “deemed granted”
remedy for violations of our new shot clocks, we clarify that failing to issue a decision up or down during
this time period is not simply a “failure to act” within the meaning of applicable law. Rather, missing the
deadline also constitutes a presumptive prohibition. We would thus expect any locality that misses the
deadline to issue any necessary permits or authorizations without further delay. We also anticipate that a
provider would have a strong case for quickly obtaining an injunction from a court that compels the
issuance of all permits in these types of cases. Third, we clarify a number of issues that are relevant to all
of the FCC’s shot clocks, including the types of authorizations subject to these time periods.
II.BACKGROUND
A.Legal Background
14.In the Telecommunications Act of 1996 (the 1996 Act), Congress enacted sweeping new
provisions intended to facilitate the deployment of telecommunications infrastructure. As U.S. Courts of
Appeals have stated, “[t]he [1996] Act ‘represents a dramatic shift in the nature of telecommunications
regulation.’”10 The Senate floor manager, Senator Larry Pressler, stated that “[t]his is the most
comprehensive deregulation of the telecommunications industry in history.”11 Indeed, the purpose of the
1996 Act is to “provide for a pro-competitive, deregulatory national policy framework . . . by opening all
telecommunications markets to competition.”12 The conference report on the 1996 Act similarly indicates
that Congress “intended to remove all barriers to entry in the provision of telecommunications services.”13
The 1996 Act thus makes clear Congress’s commitment to a competitive telecommunications marketplace
unhindered by unnecessary regulations, explicitly directing the FCC to “promote competition and reduce
regulation in order to secure lower prices and higher quality services for American telecommunications
consumers and encourage the rapid deployment of new telecommunications technologies.”14
15.Several provisions of the 1996 Act speak directly to Congress’s determination that certain
state and local regulations are unlawful. Section 253(a) provides that “[n]o State or local statute or
regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the
ability of any entity to provide any interstate or intrastate telecommunications service.”15 Courts have
observed that Section 253 represents a “broad preemption of laws that inhibit competition.”16
16.The Commission has issued several rulings interpreting and providing guidance regarding
the language Congress used in Section 253. For instance, in the 1997 California Payphone decision, the
Commission, under the leadership of then Chairman William Kennard, stated that, in determining whether
a state or local law has the effect of prohibiting the provision of telecommunications services, it
10 Sprint Telephony PCS LP v. County of San Diego, 543 F.3d 571, 575 (9th Cir. 2008) (en banc) (County of San
Diego) (quoting Cablevision of Boston, Inc. v. Pub. Improvement Comm’n, 184 F.3d 88, 97 (1st Cir. 1999)).
11 141 Cong. Rec. S8197 (daily ed. June 12, 1995).
12 H.R. Conf. Rep. No. 104–458, at 113 (1996), reprinted in 1996 U.S.C.C.A.N. (100 Stat. 5) 124.
13 S. Rep. No. 104-230, at 126 (1996) (Conf. Rep.).
14 Preamble, Telecommunications Act of 1996, P.L. 104-104, 100 Stat. 56 (1996); see also AT&T Corp. v. Iowa
Utils. Bd., 525 U.S. 366, 371 (1999) (noting that the 1996 Act “fundamentally restructures local telephone markets”
to facilitate market entry); Reno v. American Civil Liberties Union, 521 U.S. 844, 857-58 (1997) (“The
Telecommunications Act was an unusually important legislative enactment . . . designed to promote competition.”).
15 47 U.S.C. § 253(a).
16 Puerto Rico Tel. Co. v. Telecomm. Reg. Bd. of Puerto Rico, 189 F.3d 1, 11 n.7 (1st Cir. 1999).
Federal Communications Commission FCC 18-133
6
“consider[s] whether the ordinance materially inhibits or limits the ability of any competitor or potential
competitor to compete in a fair and balanced legal and regulatory environment.”17
17.Similar to Section 253, Congress specified in Section 332(c)(7) that “[t]he regulation of
the placement, construction, and modification of personal wireless service facilities by any State or local
government or instrumentality thereof—(I) shall not unreasonably discriminate among providers of
functionally equivalent services; and (II) shall not prohibit or have the effect of prohibiting the provision
of personal wireless services.”18 Clause (B)(ii) of that section further provides that “[a] State or local
government or instrumentality thereof shall act on any request for authorization to place, construct, or
modify personal wireless service facilities within a reasonable period of time after the request is duly filed
with such government or instrumentality, taking into account the nature and scope of such request.”19
Section 332(c)(7) generally preserves state and local authority over the “placement, construction, and
modification of personal wireless service facilities” but with the important limitations described above.20
Section 332(c)(7) also sets forth a judicial remedy, stating that “[a]ny person adversely affected by any
final action or failure to act by a State or local government” that is inconsistent with the requirements of
Section 332(c)(7) “may, within 30 days after such action or failure to act, commence an action in any
court of competent jurisdiction.”21 The provision further directs the court to “decide such action on an
expedited basis.”22
18.The Commission has previously interpreted the language Congress used and the limits it
imposed on state and local authority in Section 332. For instance, in interpreting Section
332(c)(7)(B)(i)(II), the Commission has found that “a State or local government that denies an application
for personal wireless service facilities siting solely because ‘one or more carriers serve a given geographic
market’ has engaged in unlawful regulation that ‘prohibits or ha[s] the effect of prohibiting the provision
of personal wireless services,’ within the meaning of Section 332(c)(7)(B)(i)(II).”23 In adopting this
interpretation, the Commission explained that its “construction of the provision achieves a balance that is
most consistent with the relevant goals of the Communications Act” and its understanding that “[i]n
promoting the construction of nationwide wireless networks by multiple carriers, Congress sought
ultimately to improve service quality and lower prices for consumers.”24 The Commission also noted that
an alternative interpretation would “diminish the service provided to [a wireless provider’s] customers.”25
17 California Payphone Ass’n, 12 FCC Rcd 14191, 14206, para. 31 (1997) (California Payphone).
18 47 U.S.C. § 332(c)(7)(B)(i).
19 47 U.S.C § 332(c)(7)(B)(ii).
20 47 U.S.C. § 332(c)(7)(A) (stating that, “[e]xcept as provided in this paragraph, nothing in this chapter shall limit
or affect the authority of a State or local government or instrumentality thereof over decisions regarding the
placement, construction, and modification of personal wireless services facilities”). The statute defines “personal
wireless services” to include CMRS, unlicensed wireless services, and common carrier wireless exchange access
services. 47 U.S.C. § 332(c)(7)(C). In 2012, Congress expressly modified this preservation of local authority by
enacting Section 6409(a), which requires local governments to approve certain types of facilities siting applications
“[n]otwithstanding section 704 of the Telecommunications Act of 1996 [codified in substantial part as Section
332(c)(7)] . . . or any other provision of law.” Spectrum Act, 47 U.S.C. § 6409(a)(1).
21 47 U.S.C. § 332(c)(7)(B)(v).
22 47 U.S.C. § 332(c)(7)(B)(v).
23 Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7) to Ensure Timely Siting Review,
Declaratory Ruling, 24 FCC Rcd 13994, 14016, para. 56 (2009) (2009 Declaratory Ruling), aff’d, City of Arlington
v. FCC, 668 F.3d 229 (5th Cir. 2012) (City of Arlington), aff’d, 569 U.S. 290 (2013).
24 2009 Declaratory Ruling, 24 RCC Rcd at 14017-18, para. 61.
25 Id.
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19.In the 2009 Declaratory Ruling, the Commission acted to speed the deployment of then-
new 4G services and concluded that, “[g]iven the evidence of unreasonable delays [in siting decisions]
and the public interest in avoiding such delays,” it should offer guidance regarding the meaning of the
statutory phrases “reasonable period of time” and “failure to act” “in order to clarify when an adversely
affected service provider may take a dilatory State or local government to court.”26 The Commission
interpreted “reasonable period of time” under Section 332(c)(7)(B)(ii) to be 90 days for processing
collocation applications and 150 days for processing applications other than collocations. 27 The
Commission further determined that failure to meet the applicable time frame enables an applicant to
pursue judicial relief within the next 30 days.28 In litigation involving the 90-day and 150-day time
frames, the locality may attempt to “rebut the presumption that the established timeframes are
reasonable.”29 If the agency fails to make such a showing, it may face “issuance of an injunction granting
the application.”30 In its 2014 Wireless Infrastructure Order, 31 the Commission clarified that the time
frames under Section 332(c)(7) are presumptively reasonable and begin to run when the application is
submitted, not when it is found to be complete by a siting authority.32
20.In 2012, Congress adopted Section 6409 of the Middle Class Tax Relief and Job Creation
Act (the Spectrum Act), which provides further evidence of Congressional intent to limit state and local
laws that operate as barriers to infrastructure deployment. It states that, “[n]otwithstanding section 704 of
the Telecommunications Act of 1996 [codified as 47 U.S.C. § 332(c)(7)] or any other provision of law, a
State or local government may not deny, and shall approve, any eligible facilities request for a
modification of an existing wireless tower or base station that does not substantially change the physical
dimensions of such tower or base station.”33 Subsection (a)(2) defines the term “eligible facilities
request” as any request for modification of an existing wireless tower or base station that involves (a)
collocation of new transmission equipment; (b) removal of transmission equipment; or (c) replacement of
transmission equipment.34 In implementing Section 6409 and in an effort to “advance[e] Congress’s goal
26 Id. at 14008, para. 37; see also id. at 14029 (Statement of Chairman Julius Genachowski) (“[T]he rules we adopt
today . . . will have an important effect in speeding up wireless carriers’ ability to build new 4G networks--which
will in turn expand and improve the range of wireless choices available to American consumers.”).
27 Id. at 14012, para. 45.
28 Id. at 14005, 14012, paras. 32, 45.
29 Id. at 14008-10, 14013-14, paras. 37-42, 49-50.
30 Id. at 14009, para. 38; see also City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 115 (2005) (proper
remedies for Section 332(c)(7) violations include injunctions but not constitutional tort damages).
31 Specifically, the Commission determined that once a siting application is considered complete for purposes of
triggering the Section 332(c)(7) shot clocks, those shot clocks run regardless of any moratoria imposed by state or
local governments, and the shot clocks apply to DAS and small-cell deployments so long as they are or will be used
to provide “personal wireless services.” Acceleration of Broadband Deployment by Improving Wireless Facilities
Siting Policies, Report & Order, 29 FCC Rcd 12865, 12966, 12973, paras. 243, 270, (2014) (2014 Wireless
Infrastructure Order), aff’d, Montgomery County v. FCC, 811 F.3d 121 (4th Cir. 2015) (Montgomery County); see
also Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, Notice of
Proposed Rulemaking and Notice of Inquiry, 32 FCC Rcd 3330, 3339, para. 22 (2017) (Wireless Infrastructure
NPRM/NOI); Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment,
Third Report and Order and Declaratory Ruling, WC Docket No. 17-84 and WT Docket No. 17-79, FCC 18-111,
paras. 140-68 (rel. Aug. 3, 2018) (Moratoria Declaratory Ruling).
32 2014 Wireless Infrastructure Order, 29 FCC Rcd at 12970, para. 258. (“Accordingly, to the extent municipalities
have interpreted the clock to begin running only after a determination of completeness, that interpretation is
incorrect.”).
33 Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. No. 112-96 § 6409(a)(2), 126 Stat. 156 (2012).
34 Id.
Federal Communications Commission FCC 18-133
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of facilitating rapid deployment,”35 the Commission adopted rules to expedite the processing of eligible
facilities requests, including documentation requirements and a 60-day period for states and localities to
review such requests.36 The Commission further determined that a “deemed granted” remedy was
necessary for cases in which the reviewing authority fails to issue a decision within the 60-day period in
order to “ensur[e] rapid deployment of commercial and public safety wireless broadband services.”37 The
Fourth Circuit, affirming that remedy, explained that “[f]unctionally, what has occurred here is that the
FCC—pursuant to properly delegated Congressional authority—has preempted state regulation of
wireless towers.”38
21.Consistent with these broad federal mandates, courts have recognized that the
Commission has authority to interpret Sections 253 and 332 of the Act to further elucidate what types of
state and local legal requirements run afoul of the statutory parameters Congress established.39 For
instance, the Fifth Circuit affirmed the 2009 Declaratory Ruling in City of Arlington. The court
concluded that the Commission possessed the “authority to establish the 90– and 150–day time frames”
and that its decision was not arbitrary and capricious.40 More generally, as the agency charged with
administering the Communications Act, the Commission has the authority, responsibility, and expert
judgement to issue interpretations of the statutory language and to adopt implementing regulations that
clarify and specify the scope and effect of the Act. Such interpretations are particularly appropriate where
the statutory language is ambiguous, or the subject matter is “technical, complex, and dynamic,” as it is in
the Communications Act, as recognized by the Supreme Court.41 Here, the Commission has ample
experience monitoring and regulating the telecommunications sector. It is well-positioned, in light of this
experience and the record in this proceeding, to issue a clarifying interpretation of Sections 253 and
332(c)(7) that accounts both for the changing needs of a dynamic wireless sector that is increasingly
reliant on Small Wireless Facilities and for state and local oversight that does not materially inhibit
wireless deployment.
22.The congressional and FCC decisions described above point to consistent federal action,
particularly when faced with changes in technology, to ensure that our country’s approach to wireless
infrastructure deployment promotes buildout of the facilities needed to provide Americans with next-
generation services. Consistent with that long-standing approach, in the 2017 Wireless Infrastructure
NPRM/NOI, the Commission sought comment on whether the FCC should again update its approach to
infrastructure deployment to ensure that regulations are not operating as prohibitions in violation of
Congress’s decisions and federal policy.42 In August 2018, the Commission concluded that state and
local moratoria on telecommunications services and facilities deployment are barred by Section 253(a).43
35 2014 Wireless Infrastructure Order, 29 FCC Rcd at 12872, para. 15.
36 Id. at 12922, 12956-57, paras. 135, 214-15.
37 Id. at 12961-62, paras. 226, 228.
38 Montgomery County, 811 F.3d at 129.
39 See, e.g., City of Arlington, 668 F.3d at 253-54; County of San Diego, 543 F.3d at 578; RT Commc’ns., Inc. v.
FCC, 201 F.3d 1264, 1268 (10th Cir. 2000).
40 City of Arlington, 668 F.3d at 254, 260-61.
41 Nat’l Cable & Telecomm. Ass’n v. Gulf Power Co., 534 U.S. 327, 328 (2002); FDA v. Brown & Williamson
Tobacco Corp., 529 U.S. 120 (2000) (recognizing “agency’s greater familiarity with the ever-changing facts and
circumstances surrounding the subjects regulated”); see also, e.g., Nat’l Cable & Telecomm. Ass’n v. Brand X
Internet Servs., 545 U.S. 967, 983-986 (2005) (Commission’s interpretation of an ambiguous statutory provision
overrides earlier court decisions interpreting the same provision).
42 See generally Wireless Infrastructure NPRM/NOI, 32 FCC Rcd at 3332-39, paras. 4-22.
43 See generally Moratoria Declaratory Ruling, FCC 18-111, paras. 140-68.
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B.The Need for Commission Action
23.In response to the opportunities presented by offering new wireless services, and the
problems facing providers that seek to deploy networks to do so, we find it necessary and appropriate to
exercise our authority to interpret the Act and clarify the preemptive scope that Congress intended. The
introduction of advanced wireless services has already revolutionized the way Americans communicate
and transformed the U.S. economy. Indeed, the FCC’s most recent wireless competition report indicates
that American demand for wireless services continues to grow exponentially. It has been reported that
monthly data usage per smartphone subscriber rose to an average of 3.9 gigabytes per subscriber per
month, an increase of approximately 39 percent from year-end 2015 to year-end 2016.44 As more
Americans use more wireless services, demand for new technologies, coverage and capacity will
necessarily increase, making it critical that the deployment of wireless infrastructure, particularly Small
Wireless Facilities, not be stymied by unreasonable state and local requirements.
24.5G wireless services, in particular, will transform the U.S. economy through increased
use of high-bandwidth and low-latency applications and through the growth of the Internet of Things.45
While the existing wireless infrastructure in the U.S. was erected primarily using macro cells with
relatively large antennas and towers, wireless networks increasingly have required the deployment of
small cell systems to support increased usage and capacity. We expect this trend to increase with next-
generation networks, as demand continues to grow, and providers deploy 5G service across the nation.46
It is precisely “[b]ecause providers will need to deploy large numbers of wireless cell sites to meet the
country’s wireless broadband needs and implement next-generation technologies” that the Commission
has acknowledged “an urgent need to remove any unnecessary barriers to such deployment, whether
caused by Federal law, Commission processes, local and State reviews, or otherwise.”47 As explained
below, the need to site so many more 5G-capable nodes leaves providers’ deployment plans and the
underlying economics of those plans vulnerable to increased per site delays and costs.
25.Some states and local governments have acted to facilitate the deployment of 5G and
other next-gen infrastructure, looking to bring greater connectivity to their communities through forward-
looking policies. Leaders in these states are working hard to meet the needs of their communities and
balance often competing interests. At the same time, outlier conduct persists. The record here suggests
that the legal requirements in place in other state and local jurisdictions are materially impeding that
deployment in various ways.48 Crown Castle, for example, describes “excessive and unreasonable” “fees
44 See Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993 Annual Report and
Analysis of Competitive Market Conditions with Respect to Mobile Wireless, Including Commercial Mobile
Services, Twentieth Report, 32 FCC Rcd 8968, 8972, para. 20 (2017) (Twentieth Wireless Competition Report).
45 See Wireless Infrastructure NPRM/NOI, 32 FCC Rcd at 3331, para. 1.
46 See, e.g., Letter from Brett Haan, Principal, Deloitte Consulting, U.S., to Marlene H. Dortch, Secretary, FCC, WT
Docket No. 17-79 at 2 (filed Sept. 17, 2018) (“Significant investment in new network infrastructure is needed to
deploy 5G networks at-scale in the United States. 5G’s speed and coverage capabilities rely on network
densification, which requires the addition of towers and small cells to the network. . . . This requires carriers to add
3 to 10 times the number of existing sites to their networks. Most of this additional infrastructure will likely be built
with small cells that use lampposts, utility phones, or other structures of similar size able to host smaller, less
obtrusive radios required to build a densified network.” (citation omitted)); see also Deloitte LLP, 5G: The Chance
to Lead for a Decade (2018) (Deloitte 5G Paper), available at
https://www2.deloitte.com/content/dam/Deloitte/us/Documents/technology-media-telecommunications/us-tmt-
5gdeployment-imperative.pdf.
47 See Wireless Infrastructure NPRM/NOI, 32 FCC Rcd at 3331, para. 2.
48 See, e.g., Letter from Henry Hultquist, AT&T, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79, at 1
(filed Aug. 10, 2018) (“Unfortunately, many municipalities are unable, unwilling, or do not make it a priority to act
on applications within the shot clock period.” ); Letter from Keith Buell, Sprint, to Marlene H. Dortch, Secretary,
FCC, WT Docket No. 17-79, at 1-2 (filed Aug. 13, 2018) (Sprint Aug. 13, 2018 Ex Parte Letter); Letter from
Katherine R. Saunders, Verizon, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79, at 2 (filed June 21,
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to access the [rights-of-way] that are completely unrelated to their maintenance or management.” It also
points to barriers to market entry “for independent network and telecommunications service providers,”
including municipalities that “restric[t] access to the [right-of-way] only to providers of commercial
mobile services” or that impose “onerous zoning requirements on small cell installations when other
similar [right of way] utility installations are erected with simple building permits.”49 Crown Castle is not
alone in describing local regulations that slow deployment. AT&T states that localities in Maryland,
California, and Massachusetts have imposed fees so high that it has had to pause or decrease
deployments.50 Likewise, AT&T states that a Texas city has refused to allow small cell placement on any
structures in a right-of-way (ROW).51 T-Mobile states that the Town of Hempstead, New York requires
service providers who seek to collocate or upgrade equipment on existing towers that have been properly
constructed pursuant to Class II standards to upgrade and certify these facilities under Class III standards
that apply to civil and national defense and military facilities.52 Verizon states that a Minnesota town has
proposed barring construction of new poles in rights-of-way and that a Midwestern suburb where it has
been trying to get approval for small cells since 2014 has no established procedures for small cell
approvals.53 Verizon states that localities in New York and Washington have required special use permits
involving multiple layers of approval to locate small cells in some or all zoning districts.54 While some
localities dispute some of these characterizations, their submissions do not persuade us that there is no
basis or need for the actions we take here.
26.Further, the record in this proceeding demonstrates that many local siting authorities are
not complying with our existing Section 332 shot clock rules.55 WIA states that its members routinely
face lengthy delays and specifically cite localities in New Jersey, New Hampshire, and Maine as being
(Continued from previous page)
2018) (“[L]ocal permitting delays continue to stymie deployments.”); Letter from Kenneth J. Simon, Crown Castle,
to Marlene H. Dortch, FCC, WT Docket No. 17-79 (filed Aug. 10, 2018); Letter from Scott K. Bergmann, Senior
Vice President, Regulatory Affairs, CTIA, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79, at 1 (filed
Aug. 30, 2018) (CTIA Aug. 30, 2018 Ex Parte Letter).
49 Crown Castle Comments at 7; see also Letter from Kenneth J. Simon, Senior Vice President and General Counsel,
Crown Castle International Corp., to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79 at 1-2 (filed Sept.
19, 2018) (“In Hillsborough, California, Crown Castle submitted applications covering 16 nodes, and was assessed
$60,000 in application fees. Not only did Hillsborough go on to deny these applications, following that denial it also
then sent Crown Castle an invoice for an additional $351,773 (attached as Exhibit A), most of which appears to be
related to outside counsel fees—all for equipment that was not approved and has not yet been constructed.”).
50 Letter from Henry Hultquist, Vice President, Federal Regulatory, AT&T, to Marlene H. Dortch, Secretary, FCC,
WT Docket No. 17-79 at 2 (filed Aug. 6, 2018) (AT&T Aug. 6, 2018 Ex Parte Letter).
51 AT&T Comments at 6-7.
52 T-Mobile Reply Comments at 7-9; see also CCA Reply Comments at 12; CTIA Reply Comments at 18; WIA
Reply Comments at 22-23.
53 See Verizon Comments at 7.
54 See Verizon Comments at 35.
55 See, e.g., T-Mobile Comments at 8 (stating that “roughly 30% of all of its recently proposed sites (including small
cells) involve cases where the locality failed to act in violation of the shot clocks.”). According to WIA, one of its
members “reports that 70% of its applications to deploy Small Wireless Facilities in the public ROWs during a two-
year period exceeded the 90-day shot clock for installation of Small Wireless Facilities on an existing utility pole,
and 47% exceeded the 150-day shot clock for the construction of new towers.” WIA Comments at 7. A New Jersey
locality took almost five years to deny a Sprint application. See Sprint Spectrum L.P. v. Zoning Bd. of Adjustment of
the Borough of Paramus, N.J., 21 F. Supp. 3d 381, 383, 387 (D.N.J. 2014), aff’d, 606 Fed. Appx. 669 (3d Cir.
2015). Another locality took almost three years to deny a Crown Castle application to install a DAS system. See
Crown Castle NG East, Inc. v. Town of Greenburgh, 2013 WL 3357169, *6-8 (S.D.N.Y. 2013), aff’d, 552 Fed.
Appx. 47 (2d Cir. 2014).
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problematic.56 Similarly, AT&T identified an instance in which it took a locality in California 800 days
to process an application.57 GCI provides an example in which it took an Alaska locality nine months to
decide an application. 58 T-Mobile states that a community in Colorado and one in California have
lengthy pre-application processes for all small cell installations that include notification to all nearby
households, a public meeting, and the preparation of a report, none of which these jurisdictions view as
triggering a shot clock.59 Similarly, Lightower provides examples of long delays in processing siting
applications. 60 Finally, Crown Castle describes a case in which a “town took approximately two years
and nearly twenty meetings, with constantly shifting demands, before it would even ‘deem complete’
Crown Castle’s application.”61
27.Our Declaratory Ruling and Third Report and Order are intended to address these issues
and outlier conduct. Our conclusions are also informed by findings, reports, and recommendations from
the FCC Broadband Deployment Advisory Committee (BDAC), including the Model Code for
Municipalities, the Removal of State and Local Regulatory Barriers Working Group report, and the Rates
and Fees Ad Hoc Working Group report, which the Commission created in 2017 to identify barriers to
deployment of broadband infrastructure, many of which are addressed here.62 We also considered input
from numerous state and local officials about their concerns, and how they have approached wireless
deployment, much of which we took into account here. Our action is also consistent with congressional
efforts to hasten deployment, including bi-partisan legislation pending in Congress like the
STREAMLINE Small Cell Deployment Act and SPEED Act. The STREAMLINE Small Cell
Deployment Act proposes to streamline wireless infrastructure deployments by requiring siting agencies
to act on deployment requests within specified time frames and by limiting the imposition of onerous
56 WIA Comments at 8. WIA states that one of its “member reports that the wireless siting approval process exceeds
90 days in more than 33% of jurisdictions it surveyed and exceeds 150 days in 25% of surveyed jurisdictions.” WIA
Comments at 8. In some cases, WIA members have experienced delays ranging from one to three years in multiple
jurisdictions—significantly longer than the 90- and 150-day time frames that the Commission established in 2009.
57 See WIA Comments at 9 (citing and discussing AT&T’s Comments in the 2016 Streamlining Public Notice, WT
Docket No. 16-421).
58 GCI Comments at 5-6.
59 T-Mobile Comments at 21.
60 Lightower submits that average processing timeframes have increased from 300 days in 2016 to approximately
570 days in 2017, much longer than the Commission’s shot clocks. Lightower states that “forty-six separate
jurisdictions in the last two years had taken longer than 150 days to consider applications, with twelve of those
jurisdictions—representing 101 small wireless facilities—taking more than a year.” Lightower Comments at 5-6.
See also WIA Comments at 9 (citing and discussing Lightower’s Comments in the 2016 Streamlining Public Notice,
WT Docket No. 16-421).
61 WIA Comments at 8 (citing and discussing Crown Castle’s Comments in 2016 Streamlining Public Notice, WT
Docket No. 16-421).
62 BDAC Report of the Removal of State and Local Regulatory Barriers Working Group,
https://www.fcc.gov/sites/default/files/bdac-regulatorybarriers-01232018.pdf (approved by the BDAC on January
23, 2018) (BDAC Regulatory Barriers Report); Draft Final Report of the Ad Hoc Committee on Rates and Fees to
the BDAC, https://www.fcc.gov/sites/default/files/bdac-07-2627-2018-rates-fees-wg-report-07242018.pdf (July 26,
2018) (Draft BDAC Rates and Fees Report); BDAC Model Municipal Code (Harmonized),
https://www.fcc.gov/sites/default/files/bdac-07-2627-2018-harmonization-wg-model-code-muni.pdf (approved July
26, 2018) (BDAC Model Municipal Code). The Draft Final Report of the Ad Hoc Committee on Rates and Fees to
the BDAC was presented to the BDAC on July 26, 2018 but has not been voted by the BDAC as of the adoption of
this Declaratory Ruling. Certain members of the Removal of State and Local Barriers Working Group also
submitted a minority report disagreeing with certain findings in the BDAC Regulatory Barriers Report. See
Minority Report Submitted by McAllen, TX, San Jose, CA, and New York, NY, GN Docket No. 17-83 (Jan 23,
2018); Letter from Kevin Pagan, City Attorney of McAllen to Marlene Dortch, Secretary, FCC (filed September 14,
2018).
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conditions and fees.63 The SPEED Act would similarly streamline federal permitting processes.64 In the
same vein, the Model Code for Municipalities adopts streamlined infrastructure siting requirements while
other BDAC reports and recommendations emphasize the negative impact of high fees on infrastructure
deployments.65
28.As do members of both parties of Congress and experts on the BDAC, we recognize the
urgent need to streamline regulatory requirements to accelerate the deployment of wireless infrastructure
for current needs and for the next generation of wireless service in 5G.66 State government officials also
have urged us to act to expedite the deployment of 5G technology, in particular, by streamlining overly
burdensome regulatory processes to ensure that 5G technology will expand beyond just urban centers.
These officials have expressed their belief that reducing high regulatory costs and delays in urban areas
would leave more money and encourage development in rural areas.67 “[G]etting [5G] infrastructure out
in a timely manner can be a challenge that involves considerable time and financial resources. The
solution is to streamline relevant policies—allowing more modern rules for modern infrastructure.”68
State officials have acknowledged that current regulations are “outdated” and “could hinder the timely
arrival of 5G throughout the country,” and urged the FCC “to push for more reforms that will streamline
infrastructure rules from coast to coast.”69 Although many states and localities support our efforts, we
acknowledge that there are others who advocated for different approaches, arguing, among other points,
63 See, e.g., STREAMLINE Small Cell Deployment Act, S.3157, 115th Congress (2017-2018).
64 See, e.g., Streamlining Permitting to Enable Efficient Deployment of Broadband Infrastructure Act of 2017
(SPEED Act), S. 1988, 115th Cong. (2017).
65 See BDAC Model Municipal Code; Draft BDAC Rates and Fees Report; BDAC Regulatory Barriers Report.
66 See, e.g., Letter from Patricia Paoletta, Counsel to Deloitte Consulting LLP, to Marlene H. Dortch, Secretary,
FCC, WT Docket No. 17-79 at 1 (filed Sept. 20, 2018) (“Deloitte noted that, as with many technology standard
evolutions, the value of being a first-mover in 5G will be significant. Being first to LTE afforded the United States
macroeconomic benefits, as it became a test bed for innovative mobile, social, and streaming applications. Being
first to 5G can have even greater and more sustained benefits to our national economy given the network effects
associated with adding billions of devices to the 5G network, enabling machine-to-machine interactions that
generates data for further utilization by vertical industries”).
67 Letter from Montana State Senator Duane Ankney to Marlene H. Dortch, Secretary, FCC, WT Docket 17-79, at 1
(filed July 31, 2018) (Duane Ankney July 31, 2018 Ex Parte Letter); Letter from Fred A. Lamphere, Butte County
Sheriff, to the Hon. Brendan Carr, Commissioner, FCC, WT Docket No. 17-79 at 1 (filed Sept. 11, 2018) (Fred A.
Lamphere Sept. 11, 2018 Ex Parte Letter); Letter from Todd Nash, Susan Roberts, Paul Catstilleja, Wallowa County
Board of Commissioners, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79 at 2 (filed Aug. 20, 2018);
Letter from Lonnie Gilbert, First Responder, National Black Growers Council Member, to the Hon. Brendan Carr,
Commissioner, FCC, WT Docket No. 17-79 at 1 (filed Sept. 12, 2018); Letter from Jason R. Saine, North Caroline
House of Representatives, to the Hon. Brendan Carr, Commissioner, FCC, WT Docket No. 17-79, at 1(filed Sept.
14, 2018) (Jason R. Saine Sept. 14, 2018 Ex Parte Letter) (minimal regulatory standard across the United States is
critical to ensure that the United States wins the race to the 5G economy).
68 Letter from LaWana Mayfield, City Council Member, Charlotte, NC, to Marlene H. Dortch, Secretary, FCC, WT
Docket 17-79, at 1 (filed July 31, 2018) (LaWana Mayfield July 31, 2018 Ex Parte Letter); see also Letter from
South Carolina State Representative Terry Alexander to Marlene H. Dortch, Secretary, FCC, WT Docket 17-79, at 1
(filed August 7, 2018) (“[P]olicymakers at all levels of government must streamline complex siting stipulations that
will otherwise slow down 5G buildout for small cells in particular.”); Letter from Sal Pace, Pueblo County
Commissioner, District 3, CO, to Marlene H. Dortch, Secretary, FCC, WT Docket 17-79, at 1 (filed July 30, 2018)
(Sal Pace July 30, 2018 Ex Parte Letter) (“[T]he FCC should ensure that localities are fully compensated for their
costs . . . Such fees should be reasonable and non-discriminatory, and should ensure that localities are made whole.
Lastly, the FCC should set reasonable and enforceable deadlines for localities to act on wireless permit applications.
. . . The distinction between siting large macro-towers and small cells should be reflected in any rulemaking.”)
69 Letter from Dr. Carolyn A. Prince, Chairwoman, Marlboro County Council, SC, to Marlene H. Dortch, Secretary,
FCC, WT Docket 17-79, at 1 (filed July 31, 2018) (Dr. Carolyn Prince July 31, 2018 Ex Parte Letter)
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that the FCC lacks authority to take certain actions.70 We have carefully considered these views, but
nevertheless find our actions here necessary and fully supported.
29.Accordingly, in this Declaratory Ruling and Third Report and Order, we act to reduce
regulatory barriers to the deployment of wireless infrastructure and to ensure that our nation remains the
leader in advanced wireless services and wireless technology.
III.DECLARATORY RULING
30.In this Declaratory Ruling, we note that a number of appellate courts have articulated
different and often conflicting views regarding the scope and nature of the limits Congress imposed on
state and local governments through Sections 253 and 332. In light of these diverging views, Congress’s
vision for a consistent, national policy framework, and the need to ensure that our approach continues to
make sense in light of the relatively new trend towards the large-scale deployment of Small Wireless
Facilities, we take this opportunity to clarify and update the FCC’s reading of the limits Congress
imposed. We do so in three main respects.
31.First, in Part III.A, we express our agreement with the views already stated by the First,
Second, and Tenth Circuits that the “materially inhibit” standard articulated in 1997 by the Clinton-era
FCC’s California Payphone decision is the appropriate standard for determining whether a state or local
law operates as a prohibition or effective prohibition within the meaning of Sections 253 and 332.
32.Second, in Part III.B, we note, as numerous courts have recognized, that state and local
fees and other charges associated with the deployment of wireless infrastructure can effectively prohibit
the provision of service. At the same time, courts have articulated various approaches to determining the
types of fees that run afoul of Congress’s limits in Sections 253 and 332. We thus clarify the particular
standard that governs the fees and charges that violate Sections 253 and 332 when it comes to the Small
Wireless Facilities at issue in this decision. Namely, fees are only permitted to the extent that they
represent a reasonable approximation of the local government’s objectively reasonable costs, and are non-
discriminatory.71 In this section, we also identify specific fee levels for the deployment of Small Wireless
Facilities that presumptively comply with this standard. We do so to help avoid unnecessary litigation,
while recognizing that it is the standard itself, not the particular, presumptive fee levels we articulate, that
ultimately will govern whether a particular fee is allowed under Sections 253 and 332. So fees above
70 See, e.g., City of Manhattan, KS Sept. 13, 2018 Ex Parte Letter at 1-2; Ronny Berdugo Sept. 18, 2018 Ex Parte
Letter at 1-2; Damon Connolly Sept. 17, 2018 Ex Parte Letter at 1-2.
71 Fees charged by states or localities in connection with Small Wireless Facilities would be “compensation” for
purposes of Section 253(c). This Declaratory Ruling interprets Section 253 and 332(c)(7) in the context of three
categories of fees, one of which applies to all deployments of Small Wireless Facilities while the other two are
specific to Small Wireless Facilities deployments inside the ROW. (1) “Event” or “one-time” fees are charges that
providers pay on a non-recurring basis in connection with a one-time event, or series of events occurring within a
finite period. The one-time fees addressed in this Declaratory Ruling are not specific to the ROW. For example, a
provider may be required to pay fees during the application process to cover the costs related to processing an
application building or construction permits, street closures, or a permitting fee, whether or not the deployment is in
the ROW. (2) Recurring charges for a Small Wireless Facility’s use of or attachment to property inside the ROW
owned or controlled by a state or local government, such as a light pole or traffic light, is the second category of fees
addressed here, and is typically paid on a per structure/per year basis. (3) Finally, ROW access fees are recurring
charges that are assessed, in some instances, to compensate a state or locality for a Small Wireless Facility’s access
to the ROW, which includes the area on, below, or above a public roadway, highway, street, sidewalk, alley, utility
easement, or similar property (including when such property is government-owned). A ROW access fee may be
charged even if the Small Wireless Facility is not using government owned property within the ROW. AT&T
Comments at 18 (describing three categories of fees); Letter from Tamara Preiss, Vice President, Federal Regulatory
and Legal Affairs, Verizon, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79, Attach. at 11 (filed Aug.
10, 2018) (Verizon Aug. 10, 2018 Ex Parte Letter) (characterizing fees as recurring or non-recurring); see also Draft
BDAC Rates and Fees Report at p. 15-16. Unless otherwise specified, a reference to “fee” or “fees” herein refers to
any one of, or any combination of, these three categories of charges.
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those levels would be permissible under Sections 253 and 332 to the extent a locality’s actual, reasonable
costs (as measured by the standard above) are higher.
33.Finally, in Part III.C, we focus on a subset of other, non-fee provisions of state and local
law that could also operate as prohibitions on service. We do so in particular by addressing state and
local consideration of aesthetic concerns in the deployment of Small Wireless Facilities. We note that the
Small Wireless Facilities that are the subject of this Declaratory Ruling remain subject to the
Commission’s rules governing Radio Frequency (RF) emissions exposure.72
A.Overview of the Section 253 and Section 332(c)(7) Framework Relevant to Small
Wireless Facilities Deployment
34.In Sections 253(a) and 332(c)(7)(B) of the Act, Congress determined that state or local
requirements that prohibit or have the effect of prohibiting the provision of service are unlawful and thus
preempted.73 Section 253(a) addresses “any interstate or intrastate telecommunications service,” while
Section 332(c)(7)(B)(i)(II) addresses “personal wireless services.”74 Although the provisions contain
identical “effect of prohibiting” language, the Commission and different courts over the years have each
employed inconsistent approaches to deciding what it means for a state or local legal requirement to have
the “effect of prohibiting” services under these two sections of the Act. This has caused confusion among
both providers and local governments about what legal requirements are permitted under Sections 253
and 332(c)(7). For example, despite Commission decisions to the contrary construing such language
under Section 253, some courts have held that a denial of a wireless siting application will “prohibit or
have the effect of prohibiting” the provision of a personal wireless service under Section
332(c)(7)(B)(i)(II) only if the provider can establish that it has a significant gap in service coverage in the
72 See 47 CFR §§ 1.1307, 1.1310. We disagree with commenters who oppose the Declaratory Ruling on the basis of
concerns regarding RF emissions. See, e.g., Comments from Judy Aizuss, Comments from Jeffrey Arndt,
Comments from Jeanice Barcelo, Comments from Kristin Beatty, Comments from James M. Benster, Comments
from Terrie Burns, Comments from EMF Safety Network, Comments from Kate Reese Hurd, Comments from
Marilynne Martin, Comments from Lisa Mayock, Comments from Kristen Moriarty Termunde, Comments from
Sage Associates, Comments from Elizabeth Shapiro, Comments from Paul Silver, Comments from Natalie Ventrice.
The Commission has authority to adopt and enforce RF exposure limits, and nothing in this Declaratory Ruling
changes the applicability of the Commission’s existing RF emissions exposure rules. See, e.g., Section 704(b) of the
Telecommunications Act of 1996, Pub. L. No. 104-104 (directing Commission to “prescribe and make effective
rules regarding the environmental effects of radio frequency emissions” upon completing action in then-pending
rulemaking proceeding that included proposals for, inter alia, maximum exposure limits); 47 U.S.C. §
332(c)(7)(B)(iv) (recognizing legitimacy of FCC’s existing regulations on environmental effects of RF emissions of
personal wireless service facilities, by proscribing state and local regulation of such facilities on the basis of such
effects, to the extent such facilities comply with Commission regulations concerning such RF emissions); 47 U.S.C.
§ 151 (creating the FCC “[f]or the purpose of regulating interstate and foreign commerce in communication by wire
and radio so as to make available, so far as possible, to all the people of the United States, . . . a rapid, efficient,
Nation-wide, and world-wide wire and radio communication service, . . . for the purpose of [inter alia] promoting
safety of life and property through the use of wire and radio communications”). See also H.R. Rep. No. 204(I),
104th Cong., 1st Sess. 94 (1995), reprinted in 1996 U.S.C.C.A.N. 10, 61 (1996) (in legislative history of Section
704 of 1996 Telecommunications Act, identifying “adequate safeguards of the public health and safety” as part of a
framework of uniform, nationwide RF regulations); ; Reassessment of FCC Radiofrequency Exposure Limits and
Policies, First Report and Order, Further Notice of Proposed Rulemaking and Notice of Inquiry, 28 FCC Rcd 3498,
3530-31, para. 103, n.176 (2013).
73 47 U.S.C. §§ 253(a), 332(c)(7)(B)(i)(II).
74 Id. The actions in this proceeding update the FCC’s approach to Sections 253 and 332 by addressing effective
prohibitions that apply to the deployment of services covered by those provisions. Our interpretations in this
proceeding do not provide any basis for increasing the regulation of services deployed consistent with Section 621
of the Cable Communications Policy Act of 1984.
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area and a lack of feasible alternative locations for siting facilities.75 Other courts have held that evidence
of an already-occurring or complete inability to offer a telecommunications service is required to
demonstrate an effective prohibition under Section 253(a).76 Conversely, still other courts like the First,
Second, and Tenth Circuits have endorsed prior Commission interpretations of what constitutes an
effective prohibition under Section 253(a) and recognized that, under that analytical framework, a legal
requirement can constitute an effective prohibition of services even if it is not an insurmountable barrier.77
35.In this Declaratory Ruling, we first reaffirm, as our definitive interpretation of the
effective prohibition standard, the test we set forth in California Payphone, namely, that a state or local
legal requirement constitutes an effective prohibition if it “materially limits or inhibits the ability of any
competitor or potential competitor to compete in a fair and balanced legal and regulatory environment.”78
We then explain how this “material inhibition” standard applies in the context of state and local fees and
aesthetic requirements. In doing so, we confirm the First, Second, and Tenth Circuits’ understanding that
under this analytical framework, a legal requirement can “materially inhibit” the provision of services
even if it is not an insurmountable barrier.79 We also resolve the conflicting court interpretations of the
75 Courts vary widely regarding the type of showing needed to satisfy the second part of that standard. The First,
Fourth, and Seventh Circuits have imposed a “heavy burden” of proof on applicants to establish a lack of alternative
feasible sites, requiring them to show “not just that this application has been rejected but that further reasonable
efforts to find another solution are so likely to be fruitless that it is a waste of time even to try.” Green Mountain
Realty Corp. v. Leonard, 750 F.3d 30, 40 (1st Cir. 2014); accord New Cingular Wireless PCS, LLC v. Fairfax
County, 674 F.3d 270, 277 (4th Cir. 2012); T-Mobile Northeast LLC v. Fairfax County, 672 F.3d 259, 266-68 (4th
Cir. 2012) (en banc); Helcher v. Dearborn County, 595 F.3d 710, 723 (7th Cir. 2010) (Helcher). The Second,
Third, and Ninth Circuits have held that an applicant must show only that its proposed facilities are the “least
intrusive means” for filling a coverage gap in light of the aesthetic or other values that the local authority seeks to
serve. Sprint Spectrum, LP v. Willoth, 176 F.3d 630, 643 (2d Cir. 1999) (Willoth); APT Pittsburgh Ltd. P’ship v.
Penn Township, 196 F.3d 469, 480 (3d Cir. 1999) (APT); American Tower Corp. v. City of San Diego, 763 F.3d
1035, 1056-57 (9th Cir. 2014); T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987, 995-99 (9th Cir. 2009) (City
of Anacortes).
76 See, e.g., County of San Diego, 543 F.3d at 579-80; Level 3 Commc’ns, LLC v. City of St. Louis, 477 F.3d 528,
533-34 (8th Cir. 2007) (City of St. Louis).
77 See Puerto Rico Tel. Co. v. Municipality of Guayanilla, 450 F.3d 9, 18 (1st Cir. 2006) (Municipality of
Guayanilla); TCG New York, Inc. v. City of White Plains, 305 F.3d 67, 76 (2d Cir. 2002) (City of White Plains); RT
Communications v. FCC, 201 F.3d 1264, 1268 (10th Cir. 2000) (“[Section] 253(a) forbids any statute which
prohibits or has ‘the effect of prohibiting’ entry. Nowhere does the statute require that a bar to entry be
insurmountable before the FCC must preempt it.”) (RT Communications) (affirming Silver Star Tel. Co. Petition for
Preemption and Declaratory Ruling, 12 FCC Rcd 15639 (1997)).
78 California Payphone, 12 FCC Rcd at 14206, para. 31. A number of circuit courts have cited California Payphone
as the leading authority regarding the standard to be applied under Section 253(a). See, e.g., County of San Diego,
543 F.3d at 578; City of St. Louis, 477 F.3d at 533; Municipality of Guayanilla, 450 F.3d at 18; Qwest Corp. v. City
of Santa Fe, 380 F.3d 1258, 1270 (10th Cir. 2004) (City of Santa Fe); City of White Plains, 305 F.3d at 76. Crown
Castle argues that the Eighth and Ninth Circuit cited the FCC’s California Payphone decision,but read the standard
in an overly narrow fashion. See, e.g., Letter from Kenneth J. Simon, Senior Vice Pres. and Gen. Counsel, Crown
Castle, et al., to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79 at 12 (filed June 7, 2018) (Crown Castle
June 7, 2018 Ex Parte Letter); see also Smart Communities Comments at 60-61 (describing circuit split). Some
commenters cite selected dictionary definitions or otherwise argue for a narrow definition of “prohibit.” See, e.g.,
Smart Communities Reply at 53. But because they do not go on to dispute the validity of the California Payphone
standard that has been employed not only by the Commission but also many courts, those arguments do not persuade
us to depart from the California Payphone standard here.
79 See, e.g., City of White Plains, 305 F.3d at 76; Municipality of Guayanilla, 450 F.3d at 18; see also, e.g., Crown
Castle June 7, 2018 Ex Parte Letter at 12. Because the clarifications in this order should reduce uncertainty
regarding the application of these provisions for state and local governments as well as stakeholders, we are not
persuaded by some commenters’ arguments that an expedited complaint process is required. See, e.g., AT&T
Comments at 28; CTIA Reply at 21. We do not address, at this time, recently-filed petitions for reconsideration of
our August 2018 Moratoria Declaratory Ruling. See, e.g., Smart Communities Petition for Reconsideration, WC
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‘effective prohibition’ language so that continuing confusion on the meaning of Sections 253 and
332(c)(7) does not materially inhibit the critical deployments of Small Wireless Facilities and our nation’s
drive to deploy 5G.80
36.As an initial matter, we note that our Declaratory Ruling applies with equal measure to
the effective prohibition standard that appears in both Sections 253(a) and 332(c)(7).81 This ruling is
consistent with the basic canon of statutory interpretation that identical words appearing in neighboring
provisions of the same statute generally should be interpreted to have the same meaning.82 Moreover,
both of these provisions apply to wireless telecommunications services83 as well as to commingled
services and facilities.84
(Continued from previous page)
Docket No. 17-84 & WT Docket No. 17-79 (filed Sept. 4, 2018); New York City Petition for Reconsideration, WC
Docket No. 17-84 & WT Docket No. 17-79 (filed Sept. 4, 2018). Nor do we address requests for clarification and/or
action on other issues raised in the record beyond those expressly discussed in this order. These other issues include
arguments regarding other statutory interpretations that we do not address here. See, e.g., CTIA Reply at 23 (raising
broader questions about the precise interplay of Section 253 and Section 332(c)(7)); Crown Castle June 7, 2018 Ex
Parte Letter at 16-17 (raising broader questions about the scope of “legal requirements” under Section 253(a)).
Consequently, this order should not be read as impliedly taking a position on those issues.
80 See, e.g., Crown Castle June 7, 2018 Ex Parte Letter at 11-12 (arguing that “[d]espite the Commission’s efforts to
define the boundaries of federal preemption under Section 253, courts have issued a number of conflicting decisions
that have only served to confuse the preemption analysis sunder section 253” and that “the Commission should
clarify that the California Payphone standard as interpreted by the First and Second Circuits is the appropriate
standard going forward”); see also BDAC Regulatory Barriers Report at p. 9 (“The Commission should provide
clarity on what actually constitutes an “excessive” fee for right-of-way access and use. The FCC should provide
guidance on what constitutes a fee that is excessive and/or duplicative, and that therefore is not “fair and
reasonable.” The Commission should specifically clarify that “fair and reasonable” compensation for right-of way
access and use implies some relation to the burden of new equipment placed in the ROW or on the local asset, or
some other objective standard.”). Because our decision provides clarity by addressing conflicting court decisions
and reaffirming that the “materially inhibits” standard articulated in the Commission’s California Payphone decision
is the appropriate standard for determining whether a state or local law operates as an effective prohibition within
the meaning of Sections 253 and 332, we reject arguments that our action will increase conflicts and lead to more
litigation. See e.g., Letter from Michael Dylan Brennan, Mayor, City of University Heights, Ohio, to Marlene H.
Dortch, Secretary, FCC, WT Docket No. 17-79, at 2 (filed Sept. 19, 2018) (stating that “…this framing and
definition of effective prohibition opens local governments to the likelihood of more, not less, conflict and litigation
over requirements for aesthetics, spacing, and undergrounding”).
81 See infra Part III.A, B.
82 See County of San Diego, 543 F.3d at 579 (“We see nothing suggesting that Congress intended a different
meaning of the text ‘prohibit or have the effect of prohibiting’ in the two statutory provisions, enacted at the same
time, in the same statute. * * * * * As we now hold, the legal standard is the same under either [Section 253 or
332(c)(7)].”); see also, e.g., Puerto Rico v. Franklin Cal. Tax-Free Trust, 136 S. Ct. 1938, 1946 (citing Sullivan v.
Stroop, 496 U.S. 478, 484 (1990) (reading same term used in different parts of the same Act to have the same
meaning); Northcross v. Board of Ed. of Memphis City Schools, 412 U.S. 427, 428 (1973) (per curiam)
(“[S]imilarity of language . . . is . . . a strong indication that the two statutes should be interpreted pari passu”);
Verizon Comments at 9-10; AT&T Reply at 3-4; Crown Castle June 7, 2018 Ex Parte Letter at 15.
83 Common carrier wireless services meet the definition of “telecommunications services,” and thus are within the
scope of Section 253(a) of the Act. See, e.g., Moratoria Declaratory Ruling, FCC 18-111, para 142 n.523; see also,
e.g., League of Minnesota Cities Comments at 11; Verizon Reply at 9-10. While some commenters cite certain
distinguishing factual characteristics between wireline and wireless services, the record does not reveal why those
distinctions would be material to whether wireless telecommunications services are covered by Section 253 in the
first instance. See, e.g., City of San Antonio et al. Comments, Exh. A at 13; Virginia Joint Commenters Comments
at 5, Exh. A at 45-46. To the contrary, Section 253(e) expressly preserves “application of section 332(c)(3) of this
title to commercial mobile service providers” notwithstanding Section 253—a provision that would be meaningless
if wireless telecommunications services already fell outside the scope of Section 253. 47 U.S.C. § 253(e). For this
same reason, we also reject claims that the existence of certain protections for personal wireless services in Section
332(c)(7), or the phrase “nothing in this chapter” in Section 332(c)(7)(A), demonstrate that states’ or localities’
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37.As explained in California Payphone and reaffirmed here, a state or local legal
requirement will have the effect of prohibiting wireless telecommunications services if it materially
inhibits the provision of such services. We clarify that an effective prohibition occurs where a state or
local legal requirement materially inhibits a provider’s ability to engage in any of a variety of activities
related to its provision of a covered service.85 This test is met not only when filling a coverage gap but
also when densifying a wireless network, introducing new services or otherwise improving service
(Continued from previous page)
regulations affecting wireless telecommunications services must fall outside the scope of Section 253. See, e.g.,
Virginia Joint Commenters Comments, Exh. A at iii, 45-46; Smart Communities Comments at 56. Even if, as some
parties argue, the phrase “nothing in this chapter” could be construed as preserving state or local decisions on the
placement, construction, or modification of personal wireless service facilities from preemption by other sections of
the Communications Act, Section 332(c)(7)(A) goes on to make clear that such state or local decisions are not
immune from preemption if they violate any of the standards set forth in Section 332(c)(7)(B)--including Section
332(c)(7)(B)(i)(II)’s ban of requirements that “prohibit or have the effect of prohibiting” the provision of service,
which is identical to the preemption provision in Section 253(a). Thus, states and localities may charge fees and
dispose of applications relating to the matters subject to Section 332(c)(7) in any manner they deem appropriate, so
long as that conduct does not amount to a prohibition or effective prohibition, as interpreted in this Declaratory
Ruling or otherwise run afoul of federal or state law; but because Sections 332(c)(7)(B)(i)(II) and 253(a) use
identical ”effective prohibition” language, the standard for what is saved and what is preempted is the same under
both provisions.
84 See infra para. 40 (discussing use of small cells to close coverage gaps, including voice gaps); see also, e.g.,
Moratoria Declaratory Ruling, FCC 18-111, para 145 n.531; Restoring Internet Freedom, Declaratory Ruling,
Report and Order, and Order, 33 FCC Rcd 311, 425, para. 190 (2018); Letter from Andre J. Lachance, Associate
General Counsel, Verizon to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79 at 3 (filed Sept. 19, 2018)
(confirming that “telecommunications services can be provided over small cells and Verizon has deployed Small
Wireless Facilities in its network that provide telecommunications services.”); Letter from David M. Crawford,
Senior Corporate Counsel, Fed. Reg. Affairs, T-Mobile, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-
79 at 1 (filed Sept. 19, 2018) (stating that “small wireless facilities are a critical component of T-Mobile’s network
deployment plans to support both the 5G evolution of wireless services, as well as more traditional services such as
mobile broadband and even voice calls. T-Mobile, for example, uses small wireless facilities to densify our network
to provide better coverage and greater capacity, and to provide traditional services such as voice calls in areas where
our macro site coverage is insufficient to meet demand.”); Letter from Henry G. Hultquist, Vice President, Federal
Regulatory, AT&T, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79 at 1 (filed Sept. 20, 2018)
(“AT&T has operated and continues to operate commercial mobile radio services as well as information services
from small wireless facilities...”); see also, e.g., Coastal Communications Service v. City of New York, 658 F. Supp.
2d 425, 441-42 (E.D.N.Y. 2009) (finding that a restriction on advertising on newly-installed payphones was subject
to Section 253(a) where the advertising was a material factor in the provider’s ability to provide the payphone
service itself). The fact that facilities are sometimes deployed by third parties not themselves providing covered
services also does not place such deployment beyond the purview of Section 253(a) or Section 332(c)(7)(B)(i)
insofar as the facilities are used by wireless service providers on a wholesale basis to provide covered services
(among other things). See, e.g., T-Mobile Comments at 26. Given our conclusion that neither commingling of
services nor the identity of the entity engaged in the deployment activity changes the applicability of Section 253(a)
or Section 332(c)(7)(B)(i)(II) where the facilities are being used for the provisioning of services within the scope of
the relevant statutory provisions, we reject claims to the contrary. See, e.g., Colorado Communications and Utility
Alliance et al. Comments at 15-16; City of San Antonio et al. Comments, Exh. A at 12; id., Exh. C at 13-15.
Because local jurisdictions do not have the authority to regulate these interstate services, there is no basis for local
jurisdictions to conduct proceedings on the types of personal wireless services offered over particular wireless
service facilities or the licensee’s service area, which are matters within the Commission’s licensing authority.
Furthermore, local jurisdictions do not have the authority to require that providers offer certain types or levels of
service, or to dictate the design of a provider’s network. See 47 U.S.C. § 332(c)(3)(A); see also Bastien v. AT&T
Wireless Servs., Inc., 205 F.3d 983, 989 (7th Cir. 2000).
85 By “covered service” we mean a telecommunications service or a personal wireless service for purposes of
Section 253 and Section 332(c)(7), respectively.
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capabilities.86 Under the California Payphone standard, a state or local legal requirement could materially
inhibit service in numerous ways—not only by rendering a service provider unable to provide an existing
service in a new geographic area or by restricting the entry of a new provider in providing service in a
particular area, but also by materially inhibiting the introduction of new services or the improvement of
existing services. Thus, an effective prohibition includes materially inhibiting additional services or
improving existing services.87
38.Our reading of Section 253(a) and Section 332(c)(7)(B)(i)(II) reflects and supports a
marketplace in which services can be offered in a multitude of ways with varied capabilities and
performance characteristics consistent with the policy goals in the 1996 Act and the Communications Act.
To limit Sections 253(a) and 332(c)(7)(B)(i)(II) to protecting only against coverage gaps or the like would
be to ignore Congress’s contemporaneously-expressed goals of “promot[ing] competition[,] . . . secur[ing]
. . . higher quality services for American telecommunications consumers and encourage[ing] the rapid
deployment of new telecommunications technologies.”88 In addition, as the Commission recently
explained, the implementation of the Act “must factor in the fundamental objectives of the Act, including
the deployment of a ‘rapid, efficient . . . wire and radio communication service with adequate facilities at
reasonable charges’ and ‘the development and rapid deployment of new technologies, products and
services for the benefit of the public . . . without administrative or judicial delays[, and] efficient and
86 See, e.g., Crown Castle Comments at 54-55; Free State Foundation Comments at 12; T-Mobile Comments at 43-
45; CTIA Reply at 14; WIA Reply at 26; Crown Castle June 7, 2018 Ex Parte Letter at 13-14; Letter from Kara
Romagnino Graves, Director, Regulatory Affairs, CTIA, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-
79, at 8-9 (filed June 27, 2018) (CTIA June 27, 2018 Ex Parte Letter). As T-Mobile explains, for example, a
provider might need to improve “signal strength or system capacity to allow it to provide reliable service to
consumers in residential and commercial buildings.” T-Mobile Comments at 43; see also, e.g., Acceleration of
Broadband Deployment by Improving Wireless Facilities Siting Policies, WT Docket Nos. 13-238, et al., Notice of
Proposed Rulemaking, 28 FCC Rcd 14238, 14253, para. 38 (2013) (observing that “DAS and small cell facilities[ ]
are critical to satisfying demand for ubiquitous mobile voice and broadband services”). The growing prevalence of
smart phones has only accelerated the demand for wireless providers to take steps to improve their service offerings.
See, e.g., Twentieth Wireless Competition Report, 32 FCC Rcd at 9011-13, paras. 62-65.
87 Our conclusion finds further support in our broad understanding of the statutory term “service,” which, as we
explained in our recent Moratoria Declaratory Ruling, means “any covered service a provider wishes to provide,
incorporating the abilities and performance characteristics it wishes to employ, including to provide existing services
more robustly, or at a higher level of quality—such as through filling a coverage gap, densification, or otherwise
improving service capabilities.” Moratoria Declaratory Ruling, FCC 18-111, para. 162 n.594; see also Public
Utility Comm’n of Texas Petition for Declaratory Ruling and/or Preemption of Certain Provisions of the Texas
Public Utility Regulatory Act of 1995, Memorandum Opinion and Order, 13 FCC Rcd 3460, 3496, para. 74 (1997)
(Texas PUC Order) (interpreting the scope of ‘telecommunications services’ covered by Section 253(a) and
clarifying that it would be an unlawful prohibition for a state or locality to specify “the means or facilities” through
which a service provider must offer service); Crown Castle June 7, 2018 Ex Parte Letter at 10-11 (discussing this
precedent). We find this interpretation of “service” warranted not only under Section 253(a), but Section
332(c)(7)(B)(i)(II)’s reference to “services” as well.
88 Preamble to the Telecommunications Act of 1996, Pub. Law. No. 104-104, § 202, 110 Stat. 56 (1996).
Consequently, we reject arguments suggesting that the provision of some level of wireless service in the past
necessarily demonstrates that there is no effective prohibition of service under the state or local legal requirements
that applied during those periods or that an effective prohibition only is present if a provider can provide no covered
service whatsoever. See, e.g., City and County of San Francisco Comments at 25-26; Virginia Joint Commenters
Comments, Exh. A at 31-33. Nor, in light of these goals, do we find it reasonable to interpret the protections of
these provisions as doing nothing more than guarding against a monopoly as some suggest. See, e.g., Smart
Communities Comments, WC Docket No. 17-84, at 8-9 (filed June 15, 2017) cited in Smart Communities
Comments at 57 n.141.
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intensive use of the electromagnetic spectrum.’”89 These provisions demonstrate that our interpretation of
Section 253 and Section 332(c)(7)(B)(i)(II) is in accordance with the broader goals of the various statutes
that the Commission is entrusted to administer.
39.California Payphone further concluded that providers must be allowed to compete in a
“fair and balanced regulatory environment.”90 As reflected in decisions such as the Commission’s Texas
PUC Order, a state or local legal requirement can function as an effective prohibition either because of
the resulting “financial burden” in an absolute sense, or, independently, because of a resulting competitive
disparity.91 We clarify that “[a] regulatory structure that gives an advantage to particular services or
facilities has a prohibitory effect, even if there are no express barriers to entry in the state or local code;
the greater the discriminatory effect, the more certain it is that entities providing service using the
disfavored facilities will experience prohibition.”92 This conclusion is consistent with both Commission
and judicial precedent recognizing the prohibitory effect that results from a competitor being treated
materially differently than similarly-situated providers.93 We provide our authoritative interpretation
below of the circumstances in which a “financial burden,” as described in the Texas PUC Order,
constitutes an effective prohibition in the context of certain state and local fees.
40.As we explained above, we reject alternative readings of the effective prohibition
language that have been adopted by some courts and used to defend local requirements that have the
effect of prohibiting densification of networks. Decisions that have applied solely a “coverage gap”-
based approach under Section 332(c)(7)(B)(i)(II) reflect both an unduly narrow reading of the statute and
an outdated view of the marketplace.94 Those cases, including some that formed the foundation for
89 Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, Second Report
and Order, FCC 18-30, para. 62 (rel. Mar. 30, 2018) (Wireless Infrastructure Second R&O) (quoting 47 U.S.C. §§
151, 309(j)(3)(A), (D)).
90 California Payphone, 12 FCC Rcd at 14206, para. 31.
91 Texas PUC Order, 13 FCC Rcd at 3466, 3498-500, paras. 13, 78-81; see also, e.g., Crown Castle June 7, 2018 Ex
Parte at 10-11, 13.
92 Crown Castle June 7, 2018 Ex Parte Letter at 13.
93 See, e.g., Texas PUC Order, 13 FCC Rcd at 3466, 3498-500, paras. 13, 78-81; Federal-State Joint Board on
Universal Service; Western Wireless Corporation Petition for Preemption of an Order of the South Dakota Public
Utilities, Declaratory Ruling, 15 FCC Rcd 15168, 15173, paras. 12-13 (2000) (Western Wireless Order); Pittencrieff
Communications, Inc. Petition for Declaratory Ruling Regarding Preemption of the Texas Public Utility Regulatory
Act of 1995, Memorandum Opinion and Order, 13 FCC Rcd 1735, 1751-52, para. 32 (1997) (Pittencrieff), aff’d,
Cellular Telecomm. Indus. Ass‘n v. FCC, 168 F.3d 1332 (5th Cir. 1999); City of White Plains, 305 F.3d at 80.
94 Smart Communities seeks clarification of whether this Declaratory Ruling is meant to say that the “coverage gap”
standard followed by a number of courts should include consideration of capacity as well as coverage issues. Letter
from Gerard Lavery Lederer, Counsel, Smart Communities and Special Districts Coalition, to Marlene H. Dortch,
Secretary, FCC, WT Docket No. 17-79, Att. at 17 (Sept. 19, 2018) (Smart Communities Sept. 19 Ex Parte Letter).
We are not holding that prior “coverage gap” analyses are consistent with the standards we articulate here as long as
they also take into account “capacity gaps”; rather, we are articulating here the effective prohibition standard that
should apply while, at the same time, noting one way in which prior approaches erred by requiring coverage gaps.
Accordingly, we reject both the version of the “coverage gap” test followed by the First, Fourth, and Seventh
Circuits (requiring applicants to show “not just that this application has been rejected but that further reasonable
efforts to find another solution are so likely to be fruitless that it is a waste of time even to try”) and the version
endorsed by the Second, Third, and Ninth Circuits (requiring applicants to show that the proposed facilities are the
“least intrusive means” for filling a coverage gap) See supra n. 75. We also note that some courts have expressed
concern about alternative readings of the statute that would lead to extreme outcomes—either always requiring a
grant under some interpretations, or never preventing a denial under other interpretations. See, e.g., Willoth, 176
F.3d at 639-41; APT, 196 F.3d at 478-79; Town of Amherst v. Omnipoint Communications Enterprises, Inc., 173
F.3d 9, 14 (1st Cir. 1999); AT&T Wireless PCS v. City Council of Virginia Beach, 155 F.3d 423, 428 (4th Cir. 1998)
(City Council of Virginia Beach); see also, e.g., Greenling Comments at 2; City and County of San Francisco Reply
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“coverage gap”-based analytical approaches, appear to view wireless service as if it were a single,
monolithic offering provided only via traditional wireless towers. 95 By contrast, the current wireless
marketplace is characterized by a wide variety of offerings with differing service characteristics and
deployment strategies. 96 As Crown Castle explains, coverage gap-based approaches are “simply
(Continued from previous page)
at 16. Our interpretation avoids those concerns while better reflecting the text and policy goals of the
Communications Act and 1996 Act than coverage gap-based approaches ultimately adopted by those courts. Our
approach ensures meaningful constraints on state and local conduct that otherwise would prohibit or have the effect
of prohibiting the provision of personal wireless services. At the same time, our standard does not preclude all state
and local denials of requests for the placement, construction, or modification of personal wireless service facilities,
as explained below. See infra III.B, C.
95 See, e.g., Willoth, 176 F.3d at 641-44; 360 Degrees Commc’ns Co. v.Board of Supervisors of Albemarle County,
211 F.3d 79, 86-88 & n.1 (4th Cir. 2000) (Albemarle County); see also, e.g., ExteNet Comments at 29; T-Mobile
Comments at 42; Verizon Comments at 18; WIA Comments at 38-40. Even some cases that implicitly recognize the
limitations of a gap-based test fail to account for those limitations in practice when applying Section
332(c)(7)(B)(i)(II). See, e.g., Second Generation Properties v. Town of Pelham, 313 F.3d 620, 633 n.14 (4th Cir.
2002) (discussing scenarios where a carrier has coverage but insufficient capacity to adequately handle the volume
of calls or where new technology emerges and a carrier would like to use it in areas that already have coverage using
prior-generation technology). Courts that have sought to identify limited set of characteristics of personal wireless
services covered by the Act essentially allow actual or effective prohibition of many personal wireless services that
providers wish to offer with additional or more advanced characteristics. See, e.g., Willoth, 176 F.3d at 641-43
(drawing upon certain statutory definitions); Cellular Tel. Co. v. Zoning Bd. of Adjustment of the Borough of Ho-Ho-
Kus, 197 F.3d 64, 70 (3d Cir. 1999) (Borough of Ho-Ho-Kus) (concluding that it should be up to state or local
authorities to assess and weigh the benefits of differing service qualities); Albemarle County, 211 F.3d at 87 (citing
47 CFR §§ 22.99, 22.911(b) as noting the possibility of some ‘dead spots’); cf. USCOC of Greater Iowa, Inc. v.
Zoning Bd. of Adjustment of the City of Des Moines, 465 F.3d 817 (8th Cir. 2006) (describing as a “dubious
proposition” the argument that a denial of a request to construct a tower resulting in “less than optimal” service
quality could be an effective prohibition). An outcome that allows the actual or effective prohibition of some
covered services is contrary to the Act. Section 253(a) applies to any state or local legal requirement that prohibits
or has the effect of prohibiting any entity from providing “any” interstate or intrastate telecommunications service,
47 U.S.C. § 253(a). Similarly, Section 332(c)(7)(B)(i)(II) categorically precludes state or local regulation of the
placement, construction, or modification of personal wireless service facilities that prohibits or has the effect of
prohibiting the provision of personal wireless “services.” 47 U.S.C. § 332(c)(7)(B)(i)(II). We find the most natural
interpretation of these sections is that any service that meets the definition of “telecommunications service” or
“personal wireless service” is encompassed by the language of each provision, rather than only some subset of such
services or service generally. The notion that such state or local regulation permissibly could prohibit some personal
wireless services, so long as others are available, is at odds with that interpretation. In addition, as we explain
above, a contrary approach would fail to advance important statutory goals as well as the interpretation we adopt.
Further, the approach reflected in these court decisions could involve state or local authorities “inquir[ing] into and
regulat[ing] the services offered—an inquiry for which they are ill-qualified to pursue and which could only delay
infrastructure deployment.” Crown Castle June 7, 2018 Ex Parte Letter at 14. Instead, our effective prohibition
analysis focuses on the service the provider wishes to provide, incorporating the capabilities and performance
characteristics it wishes to employ, including facilities deployment to provide existing services more robustly, or at a
better level of quality, all to offer a more robust and competitive wireless service for the benefit of the public.
96 See generally, e.g., Twentieth Wireless Competition Report, 32 FCC Rcd at 8968; see also, e.g., T-Mobile
Comments at 42-43; AT&T Reply at 4-5; CTIA Reply at 13-14; WIA Reply at 23-24; Crown Castle June 7, 2018 Ex
Parte Letter at 15. We do not suggest that viewing wireless service as if it were a single, monolithic offering
provided only via traditional wireless towers would have reflected an accurate understanding of the marketplace in
the past, even if it might have been somewhat more understandable that courts held such a simplified view at that
time. Rather, the current marketplace conditions highlight even more starkly the shortcomings of coverage gap-
based approaches, which do not account for other characteristics and deployment strategies. See, e.g., Twentieth
Wireless Competition Report, 32 FCC Rcd at 8974-75, para. 12 (observing that “[p]roviders of mobile wireless
services typically offer an array of mobile voice and data services,” including “interconnected mobile voice
services”); id. at 8997-97, paras. 42-43 (discussing various types of wireless infrastructure deployment to, among
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incompatible with a world where the vast majority of new wireless builds are going to be designed to add
network capacity and take advantage of new technologies, rather than plug gaps in network coverage.”97
Moreover, a critical feature of these new wireless builds is to accommodate increased in-building use of
wireless services, necessitating deployment of small cells in order to ensure quality service to wireless
callers within such buildings.98
41.Likewise, we reject the suggestion of some courts like the Eighth and Ninth Circuits that
evidence of an existing or complete inability to offer a telecommunications service is required under
253(a).99 Such an approach is contrary to the material inhibition standard of California Payphone and the
correct recognition by courts “that a prohibition does not have to be complete or ‘insurmountable’” to
constitute an effective prohibition.100 Commission precedent beginning with California Payphone itself
makes clear that an insurmountable barrier is not required to find an effective prohibition under Section
253(a).101 The “effectively prohibit” language must have some meaning independent of the “prohibit”
(Continued from previous page)
other things, “improve spectrum efficiency for 4G and future 5G services,” “to fill local coverage gaps, to densify
networks and to increase local capacity”).
97 Crown Castle June 7, 2018 Ex Parte Letter at 15; see also id. at 13 (“Densification of networks will be key for
augmenting the capacity of existing networks and laying the groundwork for the deployment of 5G.”); id. at 15-16
(“When trying to maximize spectrum re-use and boost capacity, moving facilities by just a few hundred feet can
mean the difference between excellent service and poor service. The FCC’s rules, therefore, must account for the
effect siting decisions would have on every level of service, including increasing capacity and adding new spectrum
bands. Practices and decisions that prevent carriers from doing either materially prohibit the provision of
telecommunications service and thus should be considered impermissible under Section 332.”). Contrary
approaches appear to occur in part when courts’ policy balancing places more importance on broadly preserving
state and local authority than is justified. See, e.g., APT, 196 F.3d at 479; Albemarle County, 211 F.3d at 86; City
Council of Virginia Beach, 155 F.3d at 429; National Tower, LLC v. Plainville Zoning Bd. of Appeals, 297 F.3d 14
(1st Cir. 2002); see also, e.g., League of Arizona Cities et al. Joint Comments at 45; Smart Communities Reply at
33. As explained above, our interpretation that “telecommunications services” in Section 253(a) and “personal
wireless services” in Section 332(c)(7)(B)(i)(II) are focused on the covered services that providers seek to provide
—including the relevant service characteristics they seek to incorporate—not only is consistent with the text of those
provisions but better reflects the broader policy goals of the Communications Act and the 1996 Act.
98 See WIA Comments at 39; T-Mobile Comments at 43-44.
99 See, e.g., County of San Diego, 543 F.3d at 577, 579-80; City of St. Louis, 477 F.3d at 533-34; see also, e.g.,
Virginia Joint Commenters Comments, Exh. A at 39-41. Although the Ninth Circuit in County of San Diego found
that “the unambiguous text of §253(a)” precluded a prior Ninth Circuit approach that found an effective prohibition
based on broad governmental discretion and the “mere possibility of prohibition,” that holding is not implicated by
our interpretations here. County of San Diego, 543 F.3d at 578; cf. City of St. Louis, 477 F.3d at 532. Consequently,
those decisions do not preclude the Commission’s interpretations here, see, e.g., Verizon Reply at 7, and we reject
claims to the contrary. See, e.g., Smart Communities Comments at 60.
100 City of White Plains, 305 F.3d at 76 (citing RT Commc’ns, 201 F.3d at 1268); see also, e.g., Municipality of
Guayanilla, 450 F.3d at 18 (quoting City of White Plains, 305 F.3d at 76 and citing City of Santa Fe, 380 F.3d at
1269); Crown Castle June 7, 2018 Ex Parte Letter at 12; Verizon Aug. 10, 2018 Ex Parte Letter, Attach at 5.
Indeed, the Eighth Circuit’s City of St. Louis decision acknowledges that under Section 253 “[t]he plaintiff need not
show a complete or insurmountable prohibition,” even while other aspects of that decision suggest that an
insurmountable barrier effectively would be required. City of St. Louis, 477 F.3d at 533 (citing City of White Plains,
305 F.3d at 76).
101 In California Payphone, the Commission concluded that the ordinance at issue “does not ‘prohibit’ the ability of
any payphone service provider to provide payphone service in the Central Business District within the meaning of
section 253(a),” but went on to evaluate the possibility of an effective prohibition by considering “whether the
Ordinance materially inhibits or limits the ability of any competitor or potential competitor to compete in a fair and
balanced legal and regulatory environment.” California Payphone, 12 FCC Rcd at 14205, 14206, paras. 28, 31. In
the Texas PUC Order, the Commission found that state law build-out requirements would require “substantial
financial investment” and a “comparatively high cost per loop sold” in particular areas, interfering with the
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language, and we find that the interpretation of the First, Second, and Tenth Circuits reflects that
principle, while being more consistent with the California Payphone standard than the approach of the
Eighth and Ninth Circuits.102 The reasonableness of our interpretation that ‘effective prohibition’ does not
require a showing of an insurmountable barrier to entry is demonstrated not only by a number of circuit
courts’ acceptance of that view, but in the Supreme Court’s own characterization of Section 253(a) as
“prohibit[ing] state and local regulation that impedes the provision of ‘telecommunications service.’”103
42.The Eighth and Ninth Circuits’ suggestion that a provider must show an insurmountable
barrier to entry in the jurisdiction imposing the relevant regulation is at odds with relevant statutory
purposes and goals, as well. Section 253(a) is designed to protect “any entity” seeking to provide
telecommunications services from state and local barriers to entry, and Sections 253(b) and (c) emphasize
the importance of “competitively neutral” and “nondiscriminatory” treatment of providers.104 Yet
focusing on whether the carrier seeking relief faces an insurmountable barrier to entry would lead to
disparities in statutory protections among providers based merely on considerations such as their access to
capital and the breadth or narrowness of their entry strategies.105 In addition, the Commission has
observed in connection with Section 253: “Each local government may believe it is simply protecting the
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“statewide entry” plans that new entrants “may reasonable contemplate” in violation of Section 253(a)
notwithstanding claims that the specific new entrants at issue had “‘vast resources and access to capital’ sufficient
to meet those added costs. Texas PUC Order, 13 FCC Rcd at 3498, para. 78. The Commission also has expressed
“great concern” about an exclusive rights-of-way access agreement that “appear[ed] to have the potential to
adversely affect the provision of telecommunications services by facilities-based providers, in violation of the
provision of section 253(a).” Minnesota Order, 14 FCC Rcd at 21700, para. 3. As another example, in the Western
Wireless Order, the Commission stated that a “universal service fund mechanism that provides funding only to
ILECs” would likely violate Section 253(a) not because it was insurmountable but because it would “effectively
lower the price of ILEC-provided service relative to competitor-provided service” and thus “give customers a strong
incentive to choose service from ILECs rather than competitors.” Western Wireless Order, 15 FCC Rcd at 16231,
para. 8.
102 We discuss specific applications of the California Payphone standard in the context of certain fees and non-fee
regulations in the sections below; we leave others to be addressed case-by-case as they arise or otherwise are taken
up by the Commission or courts in the future.
103 Verizon Communications, Inc. v. FCC, 535 U.S. 467, 491 (2002) (emphasis added); see also, e.g., Level 3
Communications, Petition for a Writ of Certiorari, Level 3 Communications, LLC v. City of St. Louis, No. 08-626, at
13 (filed Nov. 7, 2008) (“[T]he term ‘[p]rohibit’ commonly has a less absolute meaning than that adopted below,
and properly refers to actions that ‘hold back,’ ‘hinder,’ or ‘obstruct.’” (quoting Random House Webster’s
Unabridged Dictionary 1546 (2d ed. 1998)). We thus are not compelled to interpret ‘effective prohibition’ to set the
high bar suggested by some commenters based on other dictionary definitions. Smart Communities Petition for
Reconsideration, WC Docket No. 17-84, WT Docket No. 17-79 at 7 (filed Sept. 4, 2018). Because we are
unpersuaded that the statutory terminology requires us to interpret an effective prohibition as satisfied only by an
insurmountable barrier to entry, we likewise reject commenters’ attempts to argue that “effective prohibition” must
be understood to set a higher bar by comparison to the “impairment” language in Section 251 of the Act and
associated regulatory interpretations of network unbundling requirements taken from that context. Id at 6. In
addition, commenters do not demonstrate why the statutory framework and regulatory context of network
unbundling under Section 251—and the specific concerns about access by non-facilities-based providers to
competitive networks underlying the court precedent they cite—is sufficiently analogous to that of Section 253 and
Section 332(c)(7)(B)(i)(II) that statements from that context should inform our interpretation here. See, e.g., AT&T
Corp. v. Iowa Utilities Bd., 525 U.S. at 392. In responding to these discrete arguments raised in a petition for
reconsideration of the Moratoria Declaratory Ruling that bear on actions we take in this order we do not thereby
resolve any of the petition’s arguments with respect to that order. The requests for relief raised in the petition
remain pending in full.
104 47 U.S.C. § 253(a), (b), (c).
105 See, e.g., Texas PUC Order, 13 FCC Rcd at 3498, para. 78 (rejecting claims that there should be a higher bar to
find an effective prohibition for providers with significant financial resources and recognizing that the effects of the
relevant state requirements on a given provider could differ depending on the planned geographic scope of entry).
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interests of its constituents. The telecommunications interests of constituents, however, are not only
local. They are statewide, national and international as well. We believe that Congress’ recognition of
this fact was the genesis of its grant of preemption authority to this Commission.”106 As illustrated by our
consideration of effective prohibitions flowing from state and local fees, there also can be cases where a
narrow focus on whether an insurmountable barrier can be shown within the jurisdiction imposing a
particular legal requirement would neglect the serious effects that flow through in other jurisdictions as a
result, including harms to regional or national deployment efforts.107
B.State and Local Fees
43.Federal courts have long recognized that the fees charged by local governments for the
deployment of communications infrastructure can run afoul of the limits Congress imposed in the
effective prohibition standard embodied in Sections 253 and 332.108 In Municipality of Guayanilla, for
example, the First Circuit addressed whether a city could lawfully charge a 5 percent gross revenue fee.
The court found that the “5% gross revenue fee would constitute a substantial increase in costs” for the
provider, and that the ordinance consequently “will negatively affect [the provider’s] profitability.”109
The fee, together with other requirements, thus “place a significant burden” on the provider.110 In light of
this analysis, the First Circuit agreed that the fee “‘materially inhibits or limits the ability’” of the provider
“‘to compete in a fair and balanced legal and regulatory environment.’”111 The court thus held that the fee
does not survive scrutiny under Section 253. In doing so, the First Circuit also noted that the inquiry is
not limited to the impact that a fee would have on deployment in the jurisdiction that imposes the fee.
Rather, the court noted the aggregate effect of fees when totaled across all relevant jurisdictions.112 At the
same time, the First Circuit did not decide whether the fair and reasonable compensation allowed under
Section 253 must be limited to cost recovery or, at the very least, related to the actual use of the ROW.113
44.In City of White Plains, the Second Circuit likewise faced a 5 percent gross revenue fee,
which it found to be “[t]he most significant provision” in a franchise agreement implementing an
ordinance that the court concluded effectively prohibited service in violation of Section 253.114 While the
court noted that “compensation is . . . sometimes used as a synonym for cost,”115 it ultimately did not
resolve whether fair and reasonable compensation “is limited to cost recovery, or whether it also extends
to a reasonable rent,” relying instead on the fact that “White Plains has not attempted to charge Verizon
106 TCI Cablevision of Oakland County, Inc. Petition for Declaratory Ruling, Preemption and Other Relief Pursuant
to 47 U.S.C. §§ 541, 544(e), and 253, Memorandum Opinion and Order, 12 FCC Rcd 21396, 21442, para. 106
(1997) (TCI Cablevision Order).
107 See infra Part III.B.
108 The Commission also has recognized the potential for fees to result in an effective prohibition. See, e.g.,
Pittencrieff, 13 FCC Rcd at 1751-52, para. 37 (observing that “even a neutral [universal service] contribution
requirement might under some circumstances effectively prohibit an entity from offering a service”).
109 Municipality of Guayanilla, 450 F.3d at 18-19.
110 Id. at 19.
111 Id. (quoting City of White Plains, 305 F.3d at 76).
112 Municipality of Guayanilla, 450 F.3d at 17 (looking at the aggregate cost of fees charged across jurisdictions
given the interconnected nature of the service).
113 Id. at 22 (“We need not decide whether fees imposed on telecommunications providers by state and local
governments must be limited to cost recovery. We agree with the district court’s reasoning that fees should be, at the
very least, related to the actual use of rights of way and that ‘the costs [of maintaining those rights of way] are an
essential part of the equation.’”).
114 City of White Plains, 305 F.3d at 77.
115 Id. In this context, the court stated that the term “compensation” is “flexible” and capable of different meanings
depending on the context in which it is used. Id.
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the fee that it seeks to charge TCG,” thus failing Section 253’s “competitively neutral and
nondiscriminatory” standard.116 But the court did observe that “Section 253(c) requires compensation to
be reasonable essentially to prevent monopolist pricing by towns.”117
45.In another example, the Tenth Circuit in City of Santa Fe addressed a $6,000 per foot fee
set for Qwest’s use of the ROW.118 The court held “that the rental provisions are prohibitive because they
create[d] a massive increase in cost” for Qwest.119 The court recognized that Section 253 allows the
recovery of cost-based fees, though it ultimately did not decide whether to “measure ‘fair and reasonable’
by the City’s costs or by a ‘totality of circumstances test’” applied in other courts because it determined
that the fees at issue were not cost-based and “fail[ed] even the totality of the circumstances test.”120
Consequently, the fee was preempted under Section 253.
46.At the same time, the courts have adopted different approaches to analyzing whether fees
run afoul of Section 253, at times failing even to articulate a particular test.121 Among other things, courts
have expressed different views on whether Section 253 limits states’ and localities’ fees to recovery of
their costs or allows fees set in excess of that level.122 We articulate below the Commission’s
interpretation of Section 253(a) and the standards we adopt for evaluating when a fee for Small Wireless
Facility deployment is preempted, regardless how the fee is challenged. We also clarify that the
Commission interprets Section 332(c)(7)(B)(i)(II) to have the same substantive meaning as Section
253(a).
47.Record Evidence on Costs Associated with Small Wireless Facilities. Keeping pace with
the demands on current 4G networks and upgrading our country’s wireless infrastructure to 5G require
116 City of White Plains, 305 F.3d at 79. In particular, the court concluded that “fees that exempt one competitor are
inherently not ‘competitively neutral,’ regardless of how that competitor uses its resulting market advantage,” id. at
80, and thus “[a]llowing White Plains to strengthen the competitive position of the incumbent service provider
would run directly contrary to the pro-competitive goals of the [1996 Act],” id. at 79.
117 Id.
118 City of Santa Fe, 380 F.3d at 1270-71.
119 Id. at 1271.
120 Id. at 1272 (observing that “[t]he City acknowledges . . . that the rent required by the Ordinance is not limited to
recovery of costs”).
121 Compare, e.g., Municipality of Guayanilla, 450 F.3d at 18-19 (finding that fees were significant and had the
effect of prohibiting service); City of Santa Fe, 380 F.3d at 1271 (similar); with, e.g., Qwest v. Elephant Butte
Irrigation Dist., 616 F. Supp. 2d 1110, 1123-24 (D.N.M. 2008) (rejecting Qwest’s reliance on preceding finding of
effective prohibition from quadrupled costs where the fee at issue was a penny per foot); Qwest v. City of Portland,
2006 WL 2679543, *15 (D. Or. 2006) (asserting with no explanation that “a registration fee of $35 and a refundable
deposit of $2,000 towards processing expenses . . . could not possibly have the effect of prohibiting Qwest from
providing telecommunications services”).
122 For example and as noted above, in Municipality of Guayanilla the First Circuit reserved judgment on whether
the fair and reasonable compensation allowed under Section 253 must be limited to cost recovery or if it was
sufficient if the compensation was related to the actual use of rights of way. Municipality of Guayanilla, 450 F.3d at
22. Other courts have found reasonable compensation to require cost-based fees. XO Missouri v. City of Maryland
Heights, 256 F. Supp. 2d 987, 993-95 (E.D. Mo. 2003) (City of Maryland Heights); Bell Atlantic–Maryland, Inc. v.
Prince George’s County, 49 F. Supp. 2d 805, 818 (D. Md. 1999) (Prince George’s County) vacated on other
grounds, 212 F.3d 863 (4th Cir. 2000). Still other courts have applied a test that weighs a number of considerations
when evaluating whether compensation is fair and reasonable. TCG Detroit v. City of Dearborn, 206 F.3d 618, 625
(6th Cir. 2000) (City of Dearborn) (considering “the amount of use contemplated . . . the amount that other providers
would be willing to pay . . . and the fact that TCG had agreed in earlier negotiations to a fee almost identical to what
it now was challenging as unfair”).
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the deployment of many more Small Wireless Facilities.123 For example, Verizon anticipates that
network densification and the upgrade to 5G will require 10 to 100 times more antenna locations than
currently exist. AT&T estimates that providers will deploy hundreds of thousands of wireless facilities in
the next few years alone—equal to or more than the number providers have deployed in total over the last
few decades.124 Sprint, in turn, has announced plans to build at least 40,000 new small sites over the next
few years.125 A report from Accenture estimates that, overall, during the next three or four years, 300,000
small cells will need to be deployed—a total that it notes is “roughly double the number of macro cells
built over the last 30 years.”126
48. The many-fold increase in Small Wireless Facilities will magnify per-facility fees
charged to providers. Per-facility fees that once may have been tolerable when providers built macro
towers several miles apart now act as effective prohibitions when multiplied by each of the many Small
Wireless Facilities to be deployed. Thus, a per-facility fee may affect a prohibition on 5G service or the
densification needed to continue 4G service even if that same per-facility fee did not effectively prohibit
previous generations of wireless service.
49.Cognizant of the changing technology and its interaction with regulations created for a
previous generation of service, the 2017 Wireline Infrastructure NPRM/NOI sought comment on whether
government-imposed fees could act as a prohibition within the meaning of Section 253, and if so, what
fees would qualify for 253(c)’s savings clause.127 The 2017 Wireless Infrastructure NPRM/NOI similarly
sought comment on the scope of Sections 253 and 332(c)(7) and on any new or updated guidance the
Commission should provide, potentially through a Declaratory Ruling.128 In particular, the Commission
sought comment on whether it should provide further guidance on how to interpret and apply the phrase
“prohibit or have the effect of prohibiting.”129
50.We conclude that ROW access fees, and fees for the use of government property in the
ROW,130 such as light poles, traffic lights, utility poles, and other similar property suitable for hosting
123 See CTIA June 27, 2018 Ex Parte Letter at 6 (“[s]mall cell technology is needed to support 4G densification and
5G connectivity.”); see also Accelerating Wireless Deployment by Removing Barriers to Infrastructure Investment,
Report and Order, 32 FCC Rcd 9760, 9765, para. 12 (2017) (2017 Pole Replacement Order) (recognizing that Small
Wireless Facilities will be increasingly necessary to support the rollout of next-generation services).
124 See Verizon Comments at 3; AT&T Comments at 1.
125 See Letter from Keith C. Buell, Senior Counsel, Sprint, to Marlene H. Dortch, Secretary, FCC, WT Docket No.
17-79 at 2 (filed Feb. 21, 2018).
126 Accelerating Future Economic Value Report at 6; see also Deloitte 5G Paper.
127 Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment, Notice of
Proposed Rulemaking and Notice of Inquiry, 32 FCC Rcd 3266, 3296-97, paras. 100 -101 and 3298-99, paras. 104-
105 (2017).
128 Wireless Infrastructure NPRM/NOI, 32 FCC Rcd at 3360, para. 87. In addition, in 2016, the Wireless
Telecommunications Bureau released a public notice seeking comment on ways to expedite the deployment of next
generation wireless infrastructure, including providing guidance on application processing fees and charges for use
of rights of way. See Streamlining Deployment of Small Cell Infrastructure by Improving Wireless Facilities Siting
Policies, Public Notice, 31 FCC Rcd 13360 (WTB 2016).
129 Wireless Infrastructure NPRM/NOI, 32 FCC Rcd at 3362, para. 90.
130 We do not find these fees to be taxes within the meaning of Section 601(c)(2) of the 1996 Act. See, e.g., Smart
Communities Reply at 36 (quoting the savings clause for “State or local law pertaining to taxation” in Section
601(c)(2) of the 1996 Act). It is ambiguous whether a fee charged for access to ROWs should be viewed as a tax for
purposes of Section 601(c)(2) of the 1996 Act. See, e.g., City of Dallas v. FCC, 118 F.3d 393, 397-98 (5th Cir.
1997) (distinguishing “the price paid to rent use of public right-of-ways” from a “tax” and citing similar precedent).
Given that Congress clearly contemplated in Section 253(c) that states’ and localities’ fees for access to ROWs
could be subject to preemption where they violate Section 253—or else the savings clause in that regard would be
superfluous—we find the better view is that such fees do not represent a tax encompassed by Section 601(c)(2) of
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Small Wireless Facilities, as well as application or review fees and similar fees imposed by a state or local
government as part of their regulation of the deployment of Small Wireless Facilities inside and outside
the ROW, violate Sections 253 or 332(c)(7) unless these conditions are met: (1) the fees are a reasonable
approximation of the state or local government’s costs,131 (2) only objectively reasonable costs are
factored into those fees, and (3) the fees are no higher than the fees charged to similarly-situated
competitors in similar situations.132
51.We base our interpretation on several considerations, including the text and structure of
the Act as informed by legislative history, the economics of capital expenditures in the context of Small
Wireless Facilities (including the manner in which capital budgets are fixed ex ante), and the extensive
record evidence that shows the actual effects that state and local fees have in deterring wireless providers
from adding to, improving, or densifying their networks and consequently the service offered over them
(including, but not limited to, introducing next-generation 5G wireless service). We address each of these
considerations in turn.
52.Text and Structure. We start our analysis with a consideration of the text and structure of
Section 253. That section contains several related provisions that operate in tandem to define the roles
that Congress intended the federal government, states, and localities to play in regulating the provision of
telecommunications services. Section 253(a) sets forth Congress’s intent to preempt state or local legal
requirements that “prohibit or have the effect of prohibiting the ability of any entity to provide any
interstate or intrastate telecommunications service.”133 Section 253(b), in turn, makes clear Congress’s
intent that state “requirements necessary to preserve and advance universal service, protect the public
safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights
(Continued from previous page)
the 1996 Act. We do not address whether particular fees could be considered taxes under other statutes not
administered by the FCC, but we reject the suggestion that tests courts use to determine what constitute “taxes” in
the context of such other statutes should apply to the Commission’s interpretation of Section 601(c)(2) here in light
of the statutory context for Section 601(c)(2) in the 1996 Act and the Communications Act discussed above. See,
e.g., Qwest Corp. v. City of Surprise, 434 F.3d 1176, 1183-84 & n.3 (9th Cir. 2006) (holding that particular fees at
issue there were taxes for purposes of the Tax Injunction Act and stating in dicta that had the Tax Injunction Act not
applied it would agree with the conclusion of the district court that it was covered by Section 601(c)(2) of the 1996
Act); MCI Communications Services, Inc. v. City of Eugene, 359 F. Appx. 692, 696 (9th Cir. 2009) (asserting
without analysis that the same test would apply to determine if a fee constitutes a tax under both the Tax Injunction
Act and Section 601(c)(2) of the 1996 Act).
131 By costs, we mean those costs specifically related to and caused by the deployment. These include, for instance,
the costs of processing applications or permits, maintaining the ROW, and maintaining a structure within the ROW.
See Puerto Rico Tel. Co. v. Municipality of Guayanilla, 354 F. Supp. 2d 107, 114 (D.P.R. 2005) (Guayanilla
District Ct. Opinion), aff'd, 450 F.3d 9 (1st Cir. 2006) (“fees charged by a municipality need to be related to the
degree of actual use of the public rights-of way” to constitute fair and reasonable compensation under Section
253(c)).
132 We explain above what we mean by “fees.” See supra note 71. Contrary to some claims, we are not asserting a
“general ratemaking authority.” Virginia Joint Commenters Comments at 6. Our interpretations in this order bear
on whether and when fees associated with Small Wireless Facility deployment have the effect of prohibiting
wireless telecommunications service and thus are subject to preemption under Section 253(a), informed by the
savings clause in Section 253(c). While that can implicate issues surrounding how those fees were established, it
does so only to the extent needed to vindicate Congress’s intent in Section 253. We do not interpret Section 253(a)
or (c) to authorize the regulation or establishment of state and local fees as an exercise in itself. We likewise are not
persuaded by undeveloped assertions that the Commission’s interpretation of Section 253 in the context of fees
would somehow violate constitutional separation of powers principles. See, e.g., Virginia Joint Commenters
Comments, Exh. A at 52.
133 47 U.S.C. § 253(a).
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of consumers” are not preempted.134 Of particular importance in the fee context, Section 253(c) reflects a
considered policy judgment that “[n]othing in this section” shall prevent states and localities from
recovering certain carefully delineated fees. Specifically, Section 253(c) makes clear that fees are not
preempted that are “fair and reasonable” and imposed on a “competitively neutral and nondiscriminatory
basis,” for “use of public rights-of-way on a “nondiscriminatory basis,” so long as they are “publicly
disclosed” by the government.135 Section 253(d), in turn, provides one non-exclusive mechanism by
which a party can obtain a determination from the Commission of whether a specific state or local
requirement is preempted under Section 253(a)—namely, by filing a petition with the Commission.136
53.In reviewing this statutory scheme, the Commission previously has construed Section
253(a) as “broadly limit[ing] the ability of state[s] to regulate,” while the remaining subsections set forth
“defined areas in which states may regulate.”137 We reaffirm this conclusion, consistent with the view of
most courts to have considered the issue—namely, that Sections 253(b) and (c) make clear that certain
state or local laws, regulations, and legal requirements are not preempted under the expansive scope of
Section 253(a).138 Our interpretation of Section 253(a) is informed by this statutory context,139 and the
observation of courts that when a preemption provision precedes a narrowly-tailored savings clause, it is
reasonable to infer that Congress intended a broad preemptive scope.140 We need not decide today
whether Section 253(a) preempts all fees not expressly saved by Section 253(c) with respect to all types
of deployments. Rather, we conclude, based on the record before us, that with respect to Small Wireless
Facilities, even fees that might seem small in isolation have material and prohibitive effects on
deployment,141 particularly when considered in the aggregate given the nature and volume of anticipated
Small Wireless Facility deployment.142 Against this backdrop, and in light of significant evidence, set
forth herein, that Congress intended Section 253 to preempt legal requirements that effectively prohibit
service, including wireless infrastructure deployment, we view the substantive standards for fees that
Congress sought to insulate from preemption in Section 253(c) as an appropriate ceiling for state and
local fees that apply to the deployment of Small Wireless Facilities in public ROWs.143
134 47 U.S.C. § 253(b).
135 47 U.S.C. § 253(c).
136 47 U.S.C. § 253(d).
137 Texas PUC Order, 13 FCC Rcd at 3481, para. 44.
138 See, e.g., Connect America Fund; Sandwich Isles Communications, Inc., Memorandum Opinion and Order, 32
FCC Rcd 5878, 5881, 5885-87, paras. 8, 19-25 (2017) (Sandwich Isles Section 253 Order); Texas PUC Order, 13
FCC Rcd at 3480-81, paras. 41-44; Global Network Commc’ns, Inc. v. City of New York, 562 F.3d 145, 150-51 (2d
Cir. 2009); Southwestern Bell Tel. Co. v. City of Houston, 529 F.3d 257, 262 (5th Cir. 2008); City of St. Louis, 477
F.3d at 531-32 (8th Cir. 2007); Municipality of Guayanilla, 450 F.3d at 15-16; City of Santa Fe, 380 F.3d at 1269;
BellSouth Telecomm’s, Inc. v. Town of Palm Beach, 252 F.3d 1169, 1187-89 (11th Cir. 2001). Some courts appear
to have viewed Section 253(c) as an independent basis for preemption. See, e.g., City of Dearborn, 206 F.3d at 624
(after concluding that a franchise fee did not violate Section 253(a), going on to evaluate whether it was “fair and
reasonable” under Section 253(c)). We find more persuasive the Commission and other court precedent to the
contrary, which we find better adheres to the statutory language.
139 See, e.g., Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427, 2442 (2014).
140 See, e.g., Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 44-45 (1987); City of New York v. Permanent Mission of
India to United Nations, 618 F.3d 172, 189-90 (2d Cir. 2010); Frank v. Delta Airlines, Inc., 314 F.3d 195, 199 (5th
Cir. 2002); cf. United States v. Kay, 359 F.3d 738 (5th Cir. 2004) (justifying a broad reading of a statute given that
Congress “narrowly defin[ed] exceptions and affirmative defenses against a backdrop of broad applicability”).
141 See infra paras. 62-63.
142 See, e.g., Wireless Infrastructure Second R&O, FCC 18-30, at para. 64.
143 See, e.g., Verizon Aug. 10, 2018 Ex Parte Letter, Attach. at 9-10. We therefore reject the view of those courts
that have concluded that Section 253(a) necessarily requires some additional showing beyond the fact that a
particular fee is not cost-based. See, e.g., Qwest v. City of Berkeley, 433 F.3d 1253, 1257 (9th Cir. 2006) (“we
Federal Communications Commission FCC 18-133
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54.In addition, notwithstanding that Section 253(c) only expressly governs ROW fees, we
find it appropriate to look to its substantive standards as a ceiling for other state and local fees addressed
by this Declaratory Ruling.144 For one, our evaluation of the material effects of fees on the deployment of
Small Wireless Facilities does not differ whether the fees are for ROW access, use of government
property within the ROW, or one-time application and review fees or the like—any of which drain limited
capital resources that otherwise could be used for deployment—and we see no reason why the Act would
tolerate a greater prohibitory effect in the case of application or review fees than for ROW fees.145 In
addition, elements of the substantive standards for ROW fees in Section 253(c) appear at least analogous
to elements of the California Payphone standard for evaluating an effective prohibition under Section
253(a). In pertinent part, both incorporate principles focused on the legal requirements to which a
provider may be fairly subject,146 and seek to guard against competitive disparities.147 Without resolving
the precise interplay of those concepts in Section 253(c) and the California Payphone standard, their
similarities support our use of the substantive standards of Section 253(c) to inform our evaluation of fees
at issue here that are not directly governed by that provision.
55.From the foregoing analysis, we can derive the three principles that we articulate in this
Declaratory Ruling about the types of fees that are preempted. As explained in more detail below, we
also interpret Section 253(c)’s “fair and reasonable compensation” provision to refer to fees that represent
a reasonable approximation of actual and direct costs incurred by the government, where the costs being
passed on are themselves objectively reasonable.148 Although there is precedent that “fair and
reasonable” compensation could mean not only cost-based charges but also market-based charges in
certain instances,149 the statutory context persuades us to adopt a cost-based interpretation here. In
particular, while the general purpose of Section 253(c) is to preserve certain state and local conduct from
preemption, it includes qualifications and limitations to cabin state and local action under that savings
clause in ways that ensure appropriate protections for service providers. The reasonableness of
interpreting the qualifications and limitations in the Section 253(c) savings clause as designed to protect
the interests of service providers is emphasized by the statutory language. The “competitively neutral and
(Continued from previous page)
decline to read” prior Ninth Circuit precedent “to mean that all non-cost based fees are automatically preempted, but
rather that courts must consider the substance of the particular regulation at issue”). At the same time, our
interpretation does not take the broader view of the preemptive scope of Section 253 adopted by the Sixth Circuit,
which interpreted Section 253(c) as an independent prohibition on conduct that is not itself prohibited by Section
253(a). City of Dearborn, 206 F.3d at 624.
144 See supra note 71.
145 Cf. Cheney R. Co. v. ICC, 902 F.2d 66, 69 (D.C. Cir. 1990) (observing that the expressio unius canon is a “feeble
helper in an administrative setting, where Congress is presumed to have left to reasonable agency discretion
questions that it has not directly resolved,” and concluding there that “Congress's mandate in one context with its
silence in another suggests not a prohibition but simply a decision not to mandate any solution in the second context,
i.e., to leave the question to agency discretion”).
146 For ROW compensation to be saved under Section 253(c) it must be “fair and reasonable,” while the California
Payphone standard looks to whether a legal requirement “materially limits or inhibits” the ability to compete in a
“fair” legal environment for a covered service. California Payphone, 12 FCC Rcd at 14206, para. 31.
147 For ROW compensation to be saved under Section 253(c) it also must be “competitively neutral and
nondiscriminatory,” while the California Payphone standard also looks to whether a legal requirement “materially
limits or inhibits” the ability to compete in a “balanced” legal environment for a covered service. California
Payphone, 12 FCC Rcd at 14206, para. 31.
148 See infra paras. 69-77; see also, e.g., City of Maryland Heights, 256 F. Supp. 2d at 993-95; Bell Atlantic–
Maryland, 49 F. Supp. 2d at 818.
149 See, e.g., NetCoalition v. SEC, 615 F.3d 525 (D.C. Cir. 2010) (statute did not unambiguously require the SEC to
interpret “fair and reasonable” to mean cost-based, and the SEC’s reliance on market-based rates as “fair and
reasonable” where there was competition was a reasonable interpretation).
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nondiscriminatory” and public disclosure qualifications in Section 253(c) appear most naturally
understood as protecting the interest of service providers from fees that otherwise would have been saved
from preemption under Section 253(c) absent those qualifiers. Under the noscitur a sociis canon of
statutory interpretation, that context persuades us that the “fair and reasonable” qualifier in Section 253(c)
similarly should be understood as focused on protecting the interest of providers.150 As discussed in
greater detail below, while it might well be fair for providers to bear basic, reasonable costs of entry,151
the record does not reveal why it would be fair or reasonable from the standpoint of protecting providers
to require them to bear costs beyond that level, particularly in the context of the deployment of Small
Wireless Facilities. In addition, the text of Section 253(c) provides that ROW access fees must be
imposed on a “competitively neutral and nondiscriminatory basis.” This means, for example, that fees
charged to one provider cannot be materially higher than those charged to a competitor for similar uses.152
56.Other considerations support our approach, as well. By its terms, Section 253(a)
preempts state or local legal requirements that “prohibit” or have the “effect of prohibiting” the provision
of services, and we agree with court precedent that “[m]erely allowing the [local government] to recoup
its processing costs . . . cannot in and of itself prohibit the provision of services.”153 The Commission has
long understood that Section 253(a) is focused on state or local barriers to entry for the provision of
service,154 and we conclude that states and localities do not impose an unreasonable barrier to entry when
they merely require providers to bear the direct and reasonable costs caused by their decision to enter the
market. 155 We decline to interpret a government’s recoupment of such fundamental costs of entry as
having the effect of prohibiting the provision of services, nor has any commenter argued that recovery of
cost by a government would prohibit service in a manner restricted by Section 253(a).156 Reasonable state
and local regulation of facilities deployment is an important predicate for a viable marketplace for
150 See, e.g., Life Technologies Corp. v. Promega Corp., 137 S. Ct. 734 (2017) (“A word is given more precise
content by the neighboring words with which it is associated.” (internal alteration and quotation marks omitted)).
151 See infra para. 56.
152 See, e.g., City of White Plains, 305 F.3d at 80.
153 City of Santa Fe, 380 F.3d at 1269; see also Verizon Comments at 17.
154 See, e.g., Sandwich Isles Section 253 Order, 32 FCC Rcd at 5878, 5882-83, paras. 1, 13; Western Wireless Order,
15 FCC Rcd at 16231, para. 8; Petition of the State of Minnesota for a Declaratory Ruling regarding the Effect of
Section 253 on an Agreement to Install Fiber Optic Wholesale Transport Capacity in State Freeway Rights of Way,
Memorandum Opinion and Order, 14 FCC Rcd 21697, 21707, para. 18 (Minnesota Order); Hyperion Order, 14
FCC Rcd at 11070, para. 13; Texas PUC Order, 13 FCC Rcd at 3480, para. 41; TCI Cablevision Order, 12 FCC Rcd
at 21399, para. 7; California Payphone, 12 FCC Rcd at 14209, para. 38; see also, e.g., AT&T Comm’ns of the Sw. v.
City of Dallas, 8 F. Supp. 2d 582, 593 (N.D. Tx. 1998) (AT&T v. City of Dallas) (“[A]ny fee that is not based on
AT&T’s use of City rights-of-way violates § 253(a) of the FTA as an economic barrier to entry.”); Verizon
Comments at 11-12; Verizon Aug. 10, 2018 Ex Parte Letter, Attach. at 7. Because we view the California
Payphone standard as reflecting a focus on barriers to entry, we decline requests to adopt a distinct, additional
standard with that as an explicit focus. See, e.g., T-Mobile Comments at 35.
155 See, e.g., Implementation of Section 224 of the Act, Report and Order and Order on Reconsideration, 26 FCC Rcd
5240, 5301-03, paras. 142-45 (2011) (rejecting an approach to defining a lower bound rate for pole attachments that
“would result in pole rental rates below incremental cost” as contrary to cost causation principles); Investigation of
Interstate Access Tariff Non-Recurring Charges, Memorandum Opinion and Order, 2 FCC Rcd 3498, 3502, para. 34
(1987) (observing in the rate regulation context that “the public interest is best served, and a competitive
marketplace is best encouraged, by policies that promote the recovery of costs from the cost-causer”). Our
interpretation limiting states and localities to the recovery of a reasonable approximation of objectively reasonable
cost also takes into account state and local governments’ exclusive control over access to the ROW.
156 For example, Verizon states that “[a]lthough any fee could be said to raise the cost of providing service,” Verizon
Aug. 10, 2018 Ex Parte Letter, Attach. at 9, “[t]he Commission should interpret . . . Section 253(a) to allow cost-
based fees for access to public rights-of-way and structures within them, but to prohibit above-cost fees that generate
revenue in excess of state and local governments’ actual costs.” Id., Attach. at 6.
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communications services by protecting property rights and guarding against conflicting deployments that
could harm or otherwise interfere with others’ use of property.157 By contrast, fees that recover more than
the state or local costs associated with facilities deployment—or that are based on unreasonable costs,
such as exorbitant consultant fees or the like—go beyond such governmental recovery of fundamental
costs of entry. In addition, interpreting Section 253(a) to prohibit states and localities from recovering a
reasonable approximation of reasonable costs could interfere with the ability of states to exercise the
police powers reserved to them under the Tenth Amendment.158 We therefore conclude that Section
253(a) is circumscribed to permit states and localities to recover a reasonable approximation of their costs
related to the deployment of Small Wireless Facilities.
57.Commission Precedent. We draw further confidence in our conclusions from the
Commission’s California Payphone decision, which we reaffirm here, finding that a state or local legal
requirement would violate Section 253(a) if it “materially limits or inhibits” an entity’s ability to compete
in a “balanced” legal environment for a covered service.159 As explained above, fees charged by a state or
locality that recover the reasonable approximation of reasonable costs do not “materially inhibit” a
provider’s ability to compete in a “balanced” legal environment. To the contrary, those costs enable
localities to recover their necessary expenditures to provide a stable and predictable framework in which
market participants can enter and compete. On the other hand, in the Texas PUC Order interpreting
California Payphone, the Commission concluded that state or local legal requirements such as fees that
impose a “financial burden” on providers can be effectively prohibitive.160 As the record shows,
excessive state and local governments’ fees assessed on the deployment of Small Wireless Facilities in
the ROW in fact materially inhibit the ability of many providers to compete in a balanced environment.161
58.California Payphone and Texas PUC separately support the conclusion that fees cannot
be discriminatory or introduce competitive disparities, as such fees would be inconsistent with a
“balanced” regulatory marketplace. Thus, fees that treat one competitor materially differently than other
competitors in similar situations are themselves grounds for finding an effective prohibition—even in the
case of fees that are a reasonable approximation of the actual and reasonable costs incurred by the state or
locality. Indeed, the Commission has previously recognized the potential for subsidies provided to one
157 See, e.g., TCI Cablevision Order, 12 FCC Rcd at 21441, para. 103; see also, e.g., Garrett Hardin, The Tragedy of
the Commons, 162 SCI. 1243 (1968). States’ or localities’ regulation premised on addressing effects of deployment
besides these costs caused by facilities deployment are distinct issues, which we discuss below. See infra Part III.C.
158 The Supreme Court has recognized that land use regulation can involve an exercise of police powers. See, e.g.,
Hodel v. Va. Surface Min. & Reclamation Ass’n, Inc., 452 U.S. 264, 289 (1981). As that Court observed, “[i]t
would . . . be a radical departure from long-established precedent for this Court to hold that the Tenth Amendment
prohibits Congress from displacing state police power laws regulating private activity.” Id. at 292. At the same
time, the Court also has held that “historic police powers of the States” are not to be preempted by federal law
“unless that was the clear and manifest purpose of Congress.” Wisconsin Public Intervenor v. Mortier, 501 U.S.
597, 605 (1991) (internal quotation marks omitted). As relevant here, we see no clear and manifest intent that
Congress intended to preempt publicly disclosed, objectively reasonable cost-based fees imposed on a
nondiscriminatory basis, particularly in light of Section 253(c).
159 We disagree with suggestions that the Commission applied an additional and more stringent “commercial
viability” test in California Payphone. See, e.g., Crown Castle June 7, 2018 Ex Parte Letter at 10. Instead, the
Commission was simply evaluating the Section 253 petition on its own terms, see, e.g., California Payphone, 12
FCC Rcd at 14204, 14210, paras. 27, 41, and, without purporting to define the bounds of Section 253(a), explaining
that the petitioner “ha[d] not sufficiently supported its allegation” that the provision of service at issue “would be
‘impractical and uneconomic.’” Id. at 14210, para. 41. Confirming that this language was simply the Commission’s
short-hand reference to arguments put forward by the petitioner itself, and not a Commission-announced standard
for applying Section 253, the Commission has not applied a “commercial viability” standard in other decisions, as
these same commenters recognize. See, e.g., Crown Castle June 7, 2018 Ex Parte Letter at 10.
160 Texas PUC Order, 13 FCC Rcd at 3466, 3498-500, paras. 13, 78-81.
161 See infra paras. 60-65.
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competitor to distort the marketplace and create a barrier to entry in violation of Section 253(a).162 We
reaffirm that conclusion here.
59.Legislative History. While our interpretation follows directly from the text and structure
of the Act, our conclusion finds further support in the legislative history, which reflects Congress’s focus
on the ability of states and localities to recover the reasonable costs they incur in maintaining the rights of
way.163 Significantly, Senator Dianne Feinstein, during the floor debate on Section 253(c), “offered
examples of the types of restrictions that Congress intended to permit under Section 253(c), including [to]
‘require a company to pay fees to recover an appropriate share of the increased street repair and paving
costs that result from repeated excavation.’”164 Representative Bart Stupak, a sponsor of the legislation,
similarly explained during the debate on Section 253 that “if a company plans to run 100 miles of
trenching in our streets and wires to all parts of the cities, it imposes a different burden on the right-of-
way than a company that just wants to string a wire across two streets to a couple of buildings,” making
clear that the compensation described in the statute is related to the burden, or cost, from a provider’s use
of the ROW.165 These statements buttress our interpretation of the text and structure of Section 253 and
confirm Congress’s apparent intent to craft specific safe harbors for states and localities, and to permit
recovery of reasonable costs related to the ROW as “fair and reasonable compensation,” while
preempting fees above a reasonable approximation of cost that improperly inhibit service.166
60.Capital Expenditures. Apart from the text, structure, and legislative history of the 1996
Act, an additional, independent justification for our interpretation follows from the simple, logical
premise, supported by the record, that state and local fees in one place of deployment necessarily have the
effect of reducing the amount of capital that providers can use to deploy infrastructure elsewhere, whether
the reduction takes place on a local, regional or national level.167 We are persuaded that providers and
infrastructure builders, like all economic actors, have a finite (though perhaps fluid)168 amount of
resources to use for the deployment of infrastructure. This does not mean that these resources are
limitless, however. We conclude that fees imposed by localities, above and beyond the recovery of
localities’ reasonable costs, materially and improperly inhibit deployment that could have occurred
elsewhere.169 This and regulatory uncertainty created by such effectively prohibitive conduct170 creates an
162 See, e.g., Western Wireless Order, 15 FCC Rcd at 16231, para. 8.
163 See, e.g., WIA Comments, Attach. 2 at 70.
164 WIA Comments, Attach. 2 at 70 (quoting 141 Cong. Rec. S8172 (daily ed. June 12, 1995) (statement of Sen.
Feinstein, quoting letter from Office of City Attorney, City and County of San Francisco)) (emphasis added)); see
also, e.g., Verizon Comments at 15 (similar); City of Maryland Heights, 256 F. Supp. 2d at 995-96.
165 141 Cong. Rec. H8460-01, H8460 (daily ed. Aug. 4, 1995).
166 We reject other comments downplaying the relevance of legislative statements by some commenters as
inconsistent with the text and structure of the Act. See, e.g., League of Arizona Cities et al. Joint Comments at 27-
28; NATOA Comments, Exh. A at 26-28; Smart Communities Reply at 57-58; Cities of San Antonio et al. Reply at
20-21; see also, e.g., City of Portland v. Electric Lightwave, Inc., 452 F. Supp. 2d 1049, 1071-72 (D. Or. 2005).
167 At a minimum, this analysis complements and reinforces the justifications for our interpretation provided above.
While the relevant language of Section 253(a) and Section 332(c)(7)(B)(i)(II) is not limited just to Small Wireless
Facilities, we proceed incrementally in our Declaratory Ruling here and address the record before us, which
indicates that our interpretation of the effective prohibition standard here is particularly reasonable in the context of
Small Wireless Facility deployment.
168 For example, the precise amount of these resources might shift as a service provider encounters unexpected costs,
recovers costs passed on to subscribers, or earns a profit above those costs.
169 As Verizon observes, “[a] number of states enacted infrastructure legislation because they determined that rate
relief was necessary to ensure wireless deployment,” and thus could be seen as having “acknowledged that excessive
fees impose a substantial barrier to the provision of service.” Verizon Aug. 10, 2018 Ex Parte Letter, Attach. at 7-8.
In view of the evidence in the record regarding the effect of state and local fees on capital expenditures, see, e.g.,
Corning Sept. 5, 2018 Ex Parte Letter (noting that cost savings from reduced small cell attachment and application
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appreciable impact on resources that materially limits plans to deploy service. This record evidence
emphasizes the importance of evaluating the effect of fees on Small Wireless Facility deployment on an
aggregate basis. Consistent with the First Circuit’s analysis in Municipality of Guayanilla, the record
persuades us that fees associated with Small Wireless Facility deployment lead to “a substantial increase
in costs”—particularly when considered in the aggregate—thereby “plac[ing] a significant burden” on
carriers and materially inhibiting their provision of service contrary to Section 253 of the Act.171
61.The record is replete with evidence that providers have limited capital budgets that are
constrained by state and local fees.172 As AT&T explains, “[a]ll providers have limited capital dollars to
invest, funds that are quickly depleted when drained by excessive ROW fees.”173 AT&T added that
“[c]ompetitive demands will force carriers to deploy small cells in the largest cities. But, when those
largest cities charge excessive fees to access ROWs and municipal ROW structures, carriers’ finite capital
dollars are prematurely depleted, leaving less for investment in mid-level cities and smaller communities.
Larger municipalities have little incentive to not overcharge, and mid-level cities and smaller
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fees could result in $2.4 billion in capital expenditure and that 97% of this capital expenditure would go toward
investments in rural and suburban areas), we disagree with arguments that fees do not affect the deployment of
wireless facilities in rural and underserved areas. See, e.g., Letter from Sam Liccardo, Mayor, City of San Jose, to
Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79 at 4 (filed Sept. 18, 2018) (City of San Jose Sept. 18,
2018 Ex Parte Letter) (stating that “whether or not a provider wishes to invest in a dense urban area, including
underserved urban areas, or a rural area is fundamentally based on the size of the customer base and the market
demand for service-not on the purported wiles of a ‘must-serve’ jurisdiction somehow forcing investment away from
rural areas because a right of way or attachment fee is charged.”); Letter from Joanne Hovis, Chief Executive
Officer, Coalition for Local Internet Choice, James Baller, President, Coalition for Local Internet Choice, to
Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79, Attach. at 3 (filed Sept. 18, 2018) (“in lucrative areas,
carriers will pay market fees for access to property just as they would any other cost of doing business. But they
will not, as rational economic actors, necessarily apply new profits (created by FCC preemption) to deploying in
otherwise unattractive areas.”).
170 See, e.g., CTIA Comments at 32 (identifying “disparate interpretations” regarding the fees that are preempted and
seeking FCC clarification to “dispel the resulting uncertainty”); Verizon Comments at 10 (similar); Letter from
Cathleen A. Massey, Vice Pres.-Fed. Regulatory Affairs, T-Mobile, to Marlene H. Dortch, Secretary, FCC, WT
Docket No. 17-79, Attach. at 7 (filed Sept. 21, 2017) (seeking clarification of Section 253); BDAC Regulatory
Barriers Report, p. 9 (“The FCC should provide guidance on what constitutes a fee that is excessive and/or
duplicative, and that therefore is not ‘fair and reasonable.’ The Commission should specifically clarify that ‘fair and
reasonable’ compensation for right-of way access and use implies some relation to the burden of new equipment
placed in the ROW or on the local asset, or some other objective standard.”).
171 Municipality of Guayanilla, 450 F.3d at 19.
172 See, e.g., AT&T Comments at 2; Conterra Broadband et al. Comments at 6; Mobilitie Comments at 3; Sprint
Comments at 17; Letter from Courtney Neville, Associate General Counsel, Competitive Carriers Association, to
Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79 at 2-3 (filed July 16, 2018) (CCA July 16, 2018 Ex Parte
Letter); Letter from Henry Hultquist, Vice President, Federal Regulatory, to Marlene H. Dortch, Secretary, FCC,
WT Docket No. 17-79 at 2 (filed June 8, 2018) (AT&T June 8, 2018 Ex Parte Letter); Crown Castle June 7, 2018
Ex Parte Letter at 2; Letter from Katharine R. Saunders, Managing Associate General Counsel, Federal Regulatory
and Legal Affairs, Verizon, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79 at 2 (filed June 21, 2018)
(Verizon June 21, 2018 Ex Parte Letter); Letter from Ronald W. Del Sesto, Jr., Counsel for Uniti Fiber, to Marlene
H. Dortch, Secretary, FCC, WT Docket No. 17-79 at 5 (filed Oct. 30, 2017); Verizon Aug. 10, 2018 Ex Parte Letter,
Attach. at 2-4. When developing capital budgets, companies rationally would account for anticipated revenues
associated with the services that can be provided by virtue of planned facilities deployment, and the record does not
reveal—nor do we see any basis to assume—that such revenues would be so great as to eliminate constraints on
providers’ capital budgets so as to enable full deployment notwithstanding the level of state and local fees.
173 AT&T Aug. 6, 2018 Ex Parte Letter at 2.
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municipalities have no ability to avoid this harm.”174 As to areas that might not be sufficiently crucial to
deployment to overcome high fees, AT&T identified jurisdictions in Maryland, California, and
Massachusetts where high fees have directly resulted in paused or decreased deployments.175 Limiting
localities to reasonable cost recovery will “allow[] AT&T and other providers to stretch finite capital
dollars to additional communities.”176 Verizon similarly explains that “[c]apital budgets are finite. When
providers are forced to spend more to deploy infrastructure in one locality, there is less money to spend in
others. The leverage that some cities have to extract high fees means that other localities will not enjoy
next generation wireless broadband services as quickly, if at all.”177 Sprint, too, affirms that, because “all
carriers face limited capital budgets, they are forced to limit the number and pace of their deployment
investments to areas where the delays and impediments are the least onerous, to the detriment of their
customers and, ultimately and ironically, to the very jurisdictions that imposed obstacles in the first
place.”178 Sprint gives a specific example of its deployments in two adjacent jurisdictions—the City of
Los Angeles and Los Angeles County—and describes how high fees in the county prevented Sprint from
activating any small cells there, while more than 500 deployments occurred in the city, which had
significantly lower fees.179 Similarly, Conterra Broadband states that “[w]hen time and capital are
diverted away from actual facility installation and instead devoted to clearing regulatory roadblocks,
consumers and enterprises, including local small businesses, schools and healthcare centers, suffer.”180
Based on the record, we find that fees charged by states and localities are causing actual delays and
restrictions on deployments of Small Wireless Facilities in a number of places across the country in
violation of Section 253(a).181
62.Our conclusion finds further support when one considers the aggregate effects of fees
imposed by individual localities, including, but not limited to, the potential limiting implications for a
nationwide wireless network that reaches all Americans, which is among the key objectives of the
statutory provisions in the 1996 Act that we interpret here.182 When evaluating whether fees result in an
effective prohibition of service due to financial burden, we must consider the marketplace regionally and
nationally and thus must consider the cumulative effects of state or local fees on service in multiple
geographic areas that providers serve or potentially would serve. Where providers seek to operate on a
regional or national basis, they have constrained resources for entering new markets or introducing,
expanding, or improving existing services, particularly given that a provider’s capital budget for a given
174 Id.
175 Id. (pausing or delaying deployments in Citrus Heights, CA, Oakland, CA and three Maryland counties;
decreasing deployments in Lowell, MA and decreasing deployments from 98 to 25 sites in Escondido, CA).
176 Id.
177 Verizon Aug. 10, 2018 Ex Parte Letter at 5, Attach. at 2-4.
178 Sprint Comments at 17.
179 Sprint Aug. 13, 2018 Ex Parte Letter at 1-2.
180 Conterra Broadband et al. Comments at 6; see also Letter from John Scott, Counsel for Mobilitie, LLC to
Marlene Dortch, Secretary, FCC, WT Docket No. 17-79, at 2 (“high fees imposed by some cities hurt other cities
that have reasonable fees, because they reduce capital resources that might have gone to those cities, and because
they pressure other financially strapped cities not to turn away what appears to be a revenue opportunity”).
181 Letter from Kenneth J. Simon, Senior Vice President and General Counsel, Crown Castle, to Marlene H. Dortch,
Secretary, FCC, WT Docket No. 17-79 at 4 (filed August 10, 2018) (Crown Castle Aug. 10, 2018 Ex Parte Letter).
182 New England Public Comms. Council Petition for Preemption Pursuant to Section 253, Memorandum Opinion
and Order, 11 FCC Rcd 19713, 19717, para. 9 (1996) (1996 Act intent of “accelerat[ing] deployment of advanced
telecommunications services to all Americans by opening all telecommunications markets to competition.”); see
also Crown Castle Aug. 10, 2018 Ex Parte Letter at 7.
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period of time is often set in advance.183 In such cases, the resources consumed in serving one geographic
area are likely to deplete the resources available for serving other areas.184 The text of Section 253(a) is
not limited by its terms only to effective prohibitions within the geographic area targeted by the state or
local fee. Where a fee in a geographic area affects service outside that geographic area, the statute is most
naturally read to encompass consideration of all affected areas.
63.A contrary, geographically-restrictive interpretation of Section 253(a) would exacerbate
the digital divide by giving dense or wealthy states and localities that might be most critical for a provider
to serve the ability to leverage their unique position to extract fees for their own benefit at the expense of
regional or national deployment by decreasing the deployment resources available for less wealthy or
dense jurisdictions.185 As a result, the areas likely to be hardest hit by excessive government fees are not
necessarily jurisdictions that charge those fees, but rather areas where the case for new, expanded, or
improved service was more marginal to start—and whose service may no longer be economically
justifiable in the near-term given the resources demanded by the “must-serve” areas. To cite some
examples of harmful aggregate effects, AT&T notes that high annual recurring fees are particularly
harmful because of their “continuing and compounding nature.”186 It also states that, “if, as S&P Global
Market Intelligence estimates, small-cell deployments reach nearly 800,000 by 2026, a ROW fee of
$1000 per year …would result in nearly $800 million annually in forgone investment.” 187 Yet another
commenter notes that, “[f]or a deployment that requires a vast number of small cell facilities across a
metropolitan area, these fees quickly mount up to hundreds of thousands of dollars, often making
deployment economically infeasible,” and “far exceed[ing] any costs the locality incurs by orders of
magnitude, while taking capital that would otherwise go to investment in new infrastructure.”188
Endorsing such a result would thwart the purposes underlying Section 253(a). As Crown Castle observes,
“[e]ven where the fees do not result in a direct lack of service in a high-demand area like a city or urban
core, the high cost of building and operating facilities in these jurisdictions consume [sic] capital and
revenue that could otherwise be used to expand wireless infrastructure in higher cost areas. This impact of
egregious fees is prohibitory and should be taken into account in any prohibition analysis.”189
64.Some municipal commenters endorse a cost-based approach to “ensure that localities are
fully compensated for their costs [and that] fees should be reasonable and non-discriminatory, and should
ensure that localities are made whole”190 in recognition that “getting [5G] infrastructure out in a timely
manner can be a challenge that involves considerable time and financial resources.”191 Commenters from
smaller municipalities recognize that “thousands and thousands of small cells are needed for 5G… [and]
183 See, e.g., AT&T June 8, 2018 Ex Parte Letter at 2; Crown Castle June 7, 2018 Ex Parte Letter at 2; Verizon June
21, 2018 Ex Parte Letter at 2.
184 See, e.g., Municipality of Guayanilla, 450 F.3d at 17 (“Given the interconnected nature of utility services across
communities and the strain that the enactment of gross revenue fees in multiple municipalities would have on
PRTC's provision of services, the Commonwealth-wide estimates are relevant to determining how the ordinance
affects PRTC’s ‘ability . . . to provide any interstate or intrastate telecommunications service’” under Section
253(a)).
185 See, e.g., Letter from Sam Liccardo, Mayor or San Jose, to the Hon. Brendan Carr, Commissioner, FCC, WT
Docket No. 17-79, Attachment at 1-2 (filed Aug. 2, 2018) (describing payment by providers of $24 million to a
Digital Inclusion Fund in order to deploy small cells in San Jose on city owned light poles).
186 AT&T Comments at 19.
187 AT&T Comments at 19-20.
188 Mobilitie Comments at 3.
189 Crown Castle Aug. 10, 2018 Ex Parte Letter at 2.
190 Sal Pace July 30, 2018 Ex Parte Letter at 1.
191 LaWana Mayfield July 31, 2018 Ex Parte Letter at 1
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old regulations could hinder the timely arrival of 5G throughout the country”192 and urge the Commission
to “establish some common-sense standards insofar as it relates to fees associated with the deployment of
small cells [due to] a cottage industry of consultants [] who have wrongly counseled communities to
adopt excessive and arbitrary fees.”193 Representatives from non-urban areas in particular caution that, “if
the investment that goes into deploying 5G on the front end is consumed by big, urban areas, it will take
longer for it to flow outwards in the direction of places like Florence, [SC].”194 “[R]educing the high
regulatory costs in urban areas would leave more dollars to development in rural areas [because] most of
investment capital is spent in the larger urban areas [since] the cost recovery can be made in those areas.
This leaves the rural areas out.”195 We agree with these commenters, and we further agree with courts that
have considered “the cumulative effect of future similar municipal [fees ordinances]” across a broad
geographic area when evaluating the effect of a particular fee in the context of Section 253(a).196 To the
extent that other municipal commenters argue that our interpretation gives wireless providers preferential
treatment compared to other users of the ROW, the record does not contain data about other users that
would support such a conclusion.197 In any event, Section 253 of the Communications Act expressly bars
legal requirements that effectively prohibit telecommunications service without regard to whether it might
result in preferential treatment for providers of that service.198
65.Applying this approach here, the record reveals that fees above a reasonable
approximation of cost, even when they may not be perceived as excessive or likely to prohibit service in
isolation, will have the effect of prohibiting wireless service when the aggregate effects are considered,
particularly given the nature and volume of anticipated Small Wireless Facility deployment.199 The
record reveals that these effects can take several forms. In some cases, the fees in a particular jurisdiction
will lead to reduced or entirely forgone deployment of Small Wireless Facilities in the near term for that
192 Dr. Carolyn Prince July 31, 2018 Ex Parte Letter at 2.
193 Letter from Ashton J. Hayward III, Mayor, Pensacola, FL to the Hon. Brendan Carr, Commissioner, WT Docket
No. 17-79 at 1 (filed June 8, 2018).
194 Representative Terry Alexander Aug. 7, 2018 Ex Parte Letter at 1.
195 Senator Duane Ankney July 31, 2018 Ex Parte Letter at 1; see also Letter from Elder Alexis D. Pipkins, Sr. to the
Hon. Brendan Carr, Commissioner, FCC at 1 (filed July 26, 2018) (“the race to 5G is global…instead of each city or
state for itself, we should be working towards aligned, streamlined frameworks that benefit us all.”); Letter from
Jeffrey Bohm, Chairman of the Board of Commissioners, County of St. Clair to Brendan Carr, Commissioner, FCC,
WT Docket 17-79 at 1-2 (filed August 22, 2018) (“Smaller communities, such as those located in St. Clair County
would benefit from having the Commissions reduce the costly and unnecessary fee’s that some larger communities
place on small cells as a condition of deployment. These fees, wholly disproportionate to any cost, put communities
like ours at an unfair disadvantage”); Letter from Scott Niesler, Mayor, City of Kings Mountain, to Brendan Carr,
Commissioner, FCC, WT Docket 17-79 at 1-2 (filed June 4, 2018) (“the North Carolina General Assembly has
enacted legislation to encourage the deployment of small cell technology to limit exorbitant fees which can siphon
off capital from further expansion projects. I was encouraged to see the FCC taking similar steps to enact policies
that help clear the way for the essential investment”).
196 Guayanilla District Ct. Opinion, 354 F. Supp. 2d at 111-12; but see, e.g., Letter from Nina Beety to Marlene
Dortch, Secretary, FCC, WT Docket No. 17-79 at 5 (filed Sept. 17, 2018) (Nina Beety Sept. 17, 2018 Ex Parte
Letter) (asserting that providers artificially under-capitalize their deployment budgets to build the case for poverty).
197 Letter from Larry Hanson, Executive Director, Georgia Municipal Association to Marlene Dortch, Secretary,
FCC, WT Docket No. 17-79, at 1-2 (filed Sept. 17, 2018) (Georgia Municipal Association Sept. 17, 2018 Ex Parte
Letter).
198 47 U.S.C. § 253(a).
199 See, e.g., Wireless Infrastructure Second R&O, FCC 18-30, at para. 64. In addition, although one could argue
that, in theory, a sufficiently small departure from actual and reasonable costs might not have the effect of
prohibiting service in a particular instance, the record does not reveal an alternative, administrable approach to
evaluating fees without a cost-based focus.
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jurisdiction.200 In other cases, where it is essential for a provider to deploy in a given area, the fees
charged in that geographic area can deprive providers of capital needed to deploy elsewhere, and lead to
reduced or forgone near-term deployment of Small Wireless Facilities in other geographic areas.201 In
both of those scenarios the bottom-line outcome on the national development of 5G networks is the
same—diminished deployment of Small Wireless Facilities critical for wireless service and building out
5G networks.202
66.Some have argued that our decision today regarding Sections 253 and 332 should not be
applied to preempt agreements (or provisions within agreements) entered into prior to this Declaratory
Ruling.203 We note that courts have upheld the Commission’s preemption of the enforcement of
provisions in private agreements that conflict with our decisions204 We therefore do not exempt existing
agreements (or particular provisions contained therein) from the statutory requirements that we interpret
here. That said, however, this Declaratory Ruling’s effect on any particular existing agreement will
depend upon all the facts and circumstances of that specific case.205 Without examining the particular
features of an agreement, including any exchanges of value that might not be reflected by looking at fee
provisions alone, we cannot state that today’s decision does or does not impact any particular agreement
entered into before this decision.
67.Relationship to Section 332. While the above analysis focuses on the text and structure
of the Act, legislative history, Commission orders, and case law interpreting Section 253(a), we reiterate
that in the fee context, as elsewhere, the statutory phrase “prohibit or have the effect of prohibiting” in
Section 332(c)(7)(B)(i)(II) has the same meaning as the phrase “prohibits or has the effect of prohibiting”
in Section 253(a). As noted in the prior section, there is no evidence to suggest that Congress intended
for virtually identical language to have different meanings in the two provisions.206 Instead, we find it
200 See, e.g., AT&T June 8, 2018 Ex Parte Letter at 1-2; Crown Castle June 7, 2018 Ex Parte Letter at 2.
201 AT&T June 8, 2018 Ex Parte Letter at 1-2; Crown Castle June 7, 2018 Ex Parte Letter at 2; Verizon June 21,
2018 Ex Parte Letter at 2; CCA July 16, 2018 Ex Parte Letter at 2-3.
202 See, e.g., Letter from Thomas J. Navin, Counsel to Corning, Inc. to Marlene Dortch, Secretary, FCC, WT Docket
No. 17-79 (filed Jan 25, 2018), Attach. at 6-7 (comparing different effects on deployment between a base case and a
high fee case, and estimating that pole attachment fees nationwide assuming high fees would result in 28.2M fewer
premises passed, or 31 percent of the 5G Base case results, and an associated $37.9B in forgone network
deployment).
203 City of San Jose Sept. 18, 2018 Ex Parte Letter at 1-2.
204 See, e.g., Building Owners and Managers Ass’n Int’l v. FCC, 254 F.3d 89 (D.C. Cir. 2001) (OTARD rules
barring exclusivity provisions in lease agreements). As the D.C. Circuit has recognized, “[w]here the Commission
has been instructed by Congress to prohibit restrictions on the provision of a regulated means of communication, it
may assert jurisdiction over a party that directly furnishes those restrictions, and, in so doing, the Commission may
alter property rights created under State law.” Id. at 96; see also Lansdowne on the Potomac Homeowners Ass’n v.
OpenBand at Lansdowne, LLC, 713 F.3d 187 (4th Cir. 2013).
205 For example, the City of Los Angeles asserts that fee provisions in its agreements with providers are not
prohibitory and must be examined in light of a broader exchange of value contemplated by the agreements in their
entirety. Letter from Eric Garcetti, Mayor, City of Los Angeles to the Hon. Ajit Pai, Chairman, FCC, WT Docket
No. 17-79 (filed Sept 18, 2018). We agree that agreements entered into before this decision will need to be
examined in light of their potentially unique circumstances before a decision can be reached about whether those
agreements or any particular provisions in those agreements are or are not impacted by today’s FCC decision.
206 We reject the claims of some commenters that Section 332(c)(7)(B)(i)(II) is limited exclusively to decisions on
individual requests and therefore must be interpreted differently than Section 253(a). See, e.g., San Francisco
Comments at 24-26. Section 332(c)(7)(B)(i) explicitly applies to “regulation of the placement, construction, and
modification,” and it would be irrational to interpret “regulation” in that paragraph to mean something different from
the term “regulation” as used in 253(a) or to find that it does not encompass generally applicable “regulations” as
well as decisions on individual applications. Moreover, even assuming arguendo that San Francisco’s position
reflects the appropriate interpretation of the scope of Section 332(c)(7)(B)(i)(II), the record does not reveal why a
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more reasonable to conclude that the language in both sections generally should be interpreted to have the
same meaning and to reflect the same standard, including with respect to preemption of fees that could
“prohibit” or have “the effect of prohibiting” the provision of covered service. Both sections were
enacted to address concerns about state and local government practices that undermined providers’ ability
to provide covered services, and both bar state or local conduct that prohibits or has the effect of
prohibiting service.
68.To be sure, Sections 253 and 332(c)(7) may relate to different categories of state and
local fees. Ultimately, we need not resolve here the precise interplay between Sections 253 and
332(c)(7). It is enough for us to conclude that, collectively, Congress intended for the two provisions to
cover the universe of fees charged by state and local governments in connection with the deployment of
telecommunications infrastructure. Given the analogous purposes of both sections and the consistent
language used by Congress, we find the phrase “prohibit or have the effect of prohibiting” in Section
332(c)(7)(B)(i)(II) should be construed as having the same meaning and governed by the same
preemption standard as the identical language in Section 253(a).207
69.Application of the Interpretations and Principles Established Here. Consistent with the
interpretations above, the requirement that compensation be limited to a reasonable approximation of
objectively reasonable costs and be non-discriminatory applies to all state and local government fees paid
in connection with a provider’s use of the ROW to deploy Small Wireless Facilities including, but not
limited to, fees for access to the ROW itself, and fees for the attachment to or use of property within the
ROW owned or controlled by the government (e.g., street lights, traffic lights, utility poles, and other
infrastructure within the ROW suitable for the placement of Small Wireless Facilities). This
interpretation applies with equal force to any fees reasonably related to the placement, construction,
maintenance, repair, movement, modification, upgrade, replacement, or removal of Small Wireless
Facilities within the ROW, including, but not limited to, application or permit fees such as siting
applications, zoning variance applications, building permits, electrical permits, parking permits, or
excavation permits.
70.Applying the principles established in this Declaratory Ruling, a variety of fees not
reasonably tethered to costs appear to violate Sections 253(a) or 332(c)(7) in the context of Small
Wireless Facility deployments.208 For example, we agree with courts that have recognized that gross
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distinction between broadly-applicable requirements and decisions on individual requests would call for a materially
different analytical approach, even if it arguably could be relevant when evaluating the application of that analytical
approach to a particular preemption claim. In addition, although some commenters assert that such an interpretation
“would make it virtually impossible for local governments to enforce their zoning laws with regard to wireless
facility siting,” they provide no meaningful explanation why that would be the case. See, e.g., San Francisco Reply
at 16. While some local commenters note that the savings clauses in Section 253(b) and (c) do not have express
counterparts in the text of Section 332(c)(7)(B)(i), see, e.g., San Francisco Comments at 26, we are not persuaded
that this compels a different interpretation of the virtually identical language restricting actual or effective
prohibitions of service in Section 253(a) and Section 332(c)(7)(B)(i)(II), particularly given our reliance on
considerations in addition to the savings clauses themselves when interpreting the “effective prohibition” language.
See supra paras. 57-65. We offer these interpretations both to respond to comments and in the event that some court
decision could be viewed as supporting a different result.
207 Section 253(a) expressly addresses state or local activities that prohibit or have the effect of prohibiting “any
entity” from providing a telecommunications service. 47 U.S.C. § 253(a). In the 2009 Declaratory Ruling, the
Commission likewise interpreted Section 332(c)(7)(B)(i)(II) as implicated where the state or local conduct prohibits
or has the effect of prohibiting the provision of personal wireless service by one entity even if another entity already
is providing such service. See 2009 Declaratory Ruling, 24 FCC Rcd at 14016-19, paras. 56-65.
208 We acknowledge that a fee not calculated by reference to costs might nonetheless happen to land at a level that is
a reasonable approximation of objectively reasonable costs, and otherwise constitute fair and reasonable
compensation as we describe herein. If all these criteria are met, the fee would not be preempted.
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revenue fees generally are not based on the costs associated with an entity’s use of the ROW,209 and
where that is the case, are preempted under Section 253(a). In addition, although we reject calls to
preclude a state or locality’s use of third party contractors or consultants, or to find all associated
compensation preempted,210 we make clear that the principles discussed herein regarding the
reasonableness of cost remain applicable. Thus, fees must not only be limited to a reasonable
approximation of costs, but in order to be reflected in fees, the costs themselves must also be reasonable.
Accordingly, any unreasonably high costs, such as excessive charges by third party contractors or
consultants, may not be passed on through fees even though they are an actual “cost” to the government.
If a locality opts to incur unreasonable costs, Sections 253 and 332(c)(7) do not permit it to pass those
costs on to providers. Fees that depart from these principles are not saved by Section 253(c), as we
discuss below.
71.Interpretation of Section 253(c) in the Context of Fees. In this section, we turn to the
interpretation of several provisions in Section 253(c), which provides that state or local action that
otherwise would be subject to preemption under Section 253(a) may be permissible if it meets specified
criteria. Section 253(c) expressly provides that state or local governments may require
telecommunications providers to pay “fair and reasonable compensation” for use of public ROWs but
requires that the amounts of any such compensation be “competitively neutral and nondiscriminatory”
and “publicly disclosed.”211
72.We interpret the ambiguous phrase “fair and reasonable compensation,” within the
statutory framework we outlined for Section 253, to allow state or local governments to charge fees that
recover a reasonable approximation of the state or local governments’ actual and reasonable costs. We
conclude that an appropriate yardstick for “fair and reasonable compensation,” and therefore an indicator
of whether a fee violates Section 253(c), is whether it recovers a reasonable approximation of a state or
local government’s objectively reasonable costs of, respectively, maintaining the ROW, maintaining a
structure within the ROW, or processing an application or permit.212
73.We disagree with arguments that “fair and reasonable compensation” in Section 253(c)
should somehow be interpreted to allow state and local governments to charge “any compensation,” and
we give weight to BDAC comments that, “[a]s a policy matter, the Commission should recognize that
local fees designed to maximize profit are barriers to deployment.”213 Several commenters argue, in
209 See, e.g., Municipality of Guayanilla, 450 F.3d at 21; City of Maryland Heights, 256 F. Supp. 2d at 993-96;
Prince George’s County, 49 F. Supp. 2d at 818; AT&T v. City of Dallas, 8 F. Supp. 2d at 593; see also, e.g., CTIA
Comments at 30, 45; id. Attach. at 17; ExteNet Comments, Exh. 1 at 41; T-Mobile Comments at 7; WIA Comments
at 52-53.
210 See, e.g., CCA Comments at 17-21 (asking the Commission to declare franchise fees or percentage of revenue
fees outside the scope of fair and reasonable compensation and to prohibit state and localities from requiring service
providers to obtain business licenses for individual cell sites). For example, although fees imposed by a state or
local government calculated as a percentage of a provider’s revenue are unlikely to be a reasonable approximation of
cost, if such a percentage-of-revenue fee were, in fact, ultimately shown to amount to a reasonable approximation of
costs, the fee would not be preempted.
211 47 U.S.C. § 253(c).
212 Guayanilla District Ct. Opinion, 354 F. Supp. 2d at 114 (“fees charged by a municipality need to be related to the
degree of actual use of the public rights-of way” to constitute fair and reasonable compensation under Section
253(c)); New Jersey Payphone Ass’n, Inc. v. Town of West New York, 130 F. Supp. 2d 631, 638 (D.N.J. 2001), aff’d
299 F. 3d 235 (3d Cir. 2002) (New Jersey Payphone) (“Plainly, a fee that does more than make a municipality whole
is not compensatory in the literal sense, and risks becoming an economic barrier to entry.”)
213 BDAC Regulatory Barriers Report, Appendix C, p. 3 (a “[ROW] burden-oriented [fee] standard is flexible
enough to suit varied localities and network architectures, would ensure that fees are not providing additional
Federal Communications Commission FCC 18-133
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particular, that Section 253(c)’s language must be read as permitting localities latitude to charge any fee
at all214 or a “market-based rent.”215 Many of these arguments seem to suggest that Section 253 or 332
have not previously been read to impose limits on fees, but as noted above courts have long read these
provisions as imposing such limits. Still others argue that limiting the fees state and local governments
may charge amounts to requiring taxpayers to subsidize private companies’ use of public resources.216
We find little support in the record, legislative history, or case law for that position.217 Indeed, our
(Continued from previous page)
revenues for other localities purposes unrelated to providing and maintaining the ROW, and would provide some
basis to challenge fees that, on their face, are so high as to suggest their sole intent is to maximize revenue.”)
214 See, e.g., Baltimore Comments at 15-16 (noting that local governments traditionally impose fees based on rent,
and other ROW users pay market-based fees and arguing that citizens should not have to “subsidize” wireless
deployments); Bellevue et al. Reply at 12-13 (stating that “the FCC should compensate municipalities at fair market
value because any physical invasion is a taking under the Fifth Amendment, and just compensation is “typically”
calculated using fair market value.”); NLC Comments at 5 (“local governments, like private landlords, are entitled to
collect rent for the use of their property and have a duty to their residents to assess appropriate compensation. This
does not necessarily translate to restricting this compensation to just the cost of managing the asset—just as private
property varies in value, so does municipal property.”); Smart Communities Reply at 7-10 (stating that “fair and
reasonable compensation (i.e., fair market value) is not, as some commenters contend, measured by the regulatory
cost for use of a ROW or other property; rather it is measured by what it would cost the user of the ROW to
purchase rights form a local property owner.”).
215 Draft BDAC Rates and Fees Report, p. 10 (listing “Local Government Perspectives”).
216 See, e.g., NLC Comments, Statement of the Hon. Gary Resnick, Mayor, Wilton Manors, FL Comments at 6-7
(“preemption of local fees or rent for use of government-owned light and traffic poles, or fees for use of the right-of-
way amounts to a taxpayer subsidy of wireless providers and wireless infrastructure companies. There is no
corresponding benefit for such taxpayers such as requiring the broadband industry to reduce consumer rates or offer
advanced services to all communities within a certain time frame.”); Letter from Rondella M. Hawkins, Officer,
City of Austin—Telecommunications & Regulatory Affairs, to Marlene Dortch, Secretary, FCC, WT Docket No.
17-79 (filed Aug. 7, 2018) at 1. These commenters do not explain why allowing recovery of a reasonable
approximation of the state or locality’s objectively reasonable costs would involve a taxpayer subsidy of service
providers, and we are not persuaded that our interpretation would create a subsidy.
217 As discussed more fully above, Congress intended through Section 253 to preempt state and local governments
from imposing barriers in the form of excessive fees, while also preserving state and local authority to protect
specified interests through competitively neutral regulation consistent with the Act. Our interpretation of Section
253(c) is consistent with Congress’s objectives. Our interpretation of “fair and reasonable compensation” in Section
253(c) is also consistent with prior Commission action limiting fees, and easing access, to other critical
communications infrastructure. For example, in implementing the requirement in the Pole Attachment Act that
utilities charge “just and reasonable” rates, the Commission adopted rules limiting the rates utilities can impose on
cable companies for pole attachments. Based on the costs associated with building and operation of poles, the rates
the Commission adopted were upheld by the Supreme Court, which found that the rates imposed were permissible
and not “confiscatory” because they “provid[ed] for the recovery of fully allocated cost, including the actual cost of
capital.” See FCC v. Florida Power Corp., 480 U.S. 245, 254 (1987). Here, based on the specific language in the
separate provision of Section 253, we interpret the “effective prohibition” language, as applied to small cells, to
permit state and local governments to recover only “fair and reasonable compensation” for their maintenance of
ROW and government-owned structures within ROW used to host Small Wireless Facilities. Relatedly, Smart
Communities errs in arguing that the Commission’s Order “provides localities 60 days to provide access and sets the
rate for access,” making it a “classic taking.” Smart Communities Sept. 19, 2018 Ex Parte Letter at 25. To the
contrary, the Commission has not given providers any right to compel access to any particular state or local
property. Cf. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). There may well be legitimate
reasons for states and localities to deny particular placement applications, and adjudication of whether such
decisions amount to an effective prohibition must be resolved on a case-by-case basis. In this regard, we note that
the record in this proceeding reflects that the vast majority of local jurisdictions voluntarily accept placement of
wireless, utility, and other facilities in their rights-of-way. And in any event, cost-based recovery of the type we
provide here has been approved as just compensation for takings purposes in the context of such facilities. See
Alabama Power Co. v. FCC, 311 F.3d 1357, 1368, 1370-71 (11th Cir. 2002). See also United States v. 564.54 Acres
Federal Communications Commission FCC 18-133
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approach to compensation ensures that cities are not going into the red to support or subsidize the
deployment of wireless infrastructure.
74.The existence of Section 253(c) makes clear that Congress anticipated that “effective
prohibitions” could result from state or local government fees, and intended through that clause to provide
protections in that respect, as discussed in greater detail herein.218 Against that backdrop, we find it
unlikely that Congress would have left providers entirely at the mercy of effectively unconstrained
requirements of state or local governments.219 Our interpretation of Section 253(c), in fact, is consistent
with the views of many municipal commenters, at least with respect to one-time permit or application
fees, and the members of the BDAC Ad Hoc Committee on Rates and Fees, who unanimously concurred
that one-time fees for municipal applications and permits, such as an electrical inspection or a building
permit, should be based on the cost to the government of processing that application.220 The Ad Hoc
Committee noted that “[the] cost-based fee structure [for one-time fees] unanimously approved by the
committee accommodates the different siting related costs that different localities may incur to review and
process permit applications, while precluding excessive fees that impede deployment.221 We find that the
same reasoning should apply to other state and local government fees such as ROW access fees or fees for
the use of government property within the ROW.222
75.We recognize that state and local governments incur a variety of direct and actual costs in
connection with Small Wireless Facilities, such as the cost for staff to review the provider’s siting
application, costs associated with a provider’s use of the ROW, and costs associated with maintaining the
ROW itself or structures within the ROW to which Small Wireless Facilities are attached.223 We also
recognize that direct and actual costs may vary by location, scope, and extent of providers’ planned
deployments, such that different localities will have different fees under the interpretation set forth in this
Declaratory Ruling.
(Continued from previous page)
of Land, 441 U.S. 506, 513 (1979) (recognizing that alternative measure of compensation might be appropriate
“with respect to public facilities such as roads or sewers”).
218 See supra Parts III.A, B.
219 See, e.g., City of White Plains, 305 F.3d at 78-79; Guayanilla District Ct. Opinion, 354 F. Supp. 2d at 114. We
disagree with arguments that competition between municipalities, or competition from adjacent private landowners,
would be sufficient to ensure reasonable pricing in the ROW. See e.g., Smart Communities Comments, Exh. 2, The
Economics of Government Right of Way Fees, Declaration of Kevin Cahill, Ph.D at para. 15. We find this
argument unpersuasive in view of the record evidence in this proceeding showing significant fees imposed on
providers in localities across the country. See, e.g., AT&T Comments at 18; Verizon Comments at 6-7; see also
BDAC Regulatory Barriers Report, Appendix. C, p. 2.
220 See, e.g., Smart Communities Comments Cahill 2A at 2-3 (noting that “…a common model is to charge a fee that
covers the costs that a municipality incurs in conducting the inspections and proceedings required to allow entry,
fees that cover ongoing costs associated with inspection or expansion of facilities ...”); Colorado Comm. and Utility
All. et al. Comments at 19 (noting that “application fees are based upon recovery of costs incurred by localities.”);
Draft BDAC Rates and Fees Report, p. 15-16.
221 See also Draft BDAC Rates and Fees Report, p. 15-16. Although the BDAC Ad Hoc Rates and Fees Committee
and municipal commenters only support a cost-based approach for one-time fees, we find no reason not to extend
the same reasoning to ROW access fees or fees for the use of government property within the ROW, when all three
types of fees are a legal requirement imposed by a government and pose an effective prohibition. The BDAC Rates
and Fees Report did not provide a recommendation on fees for ROW access or fees for the use of government
property within the ROW, and we disagree with suggestions that our ruling, which was consistent with the
committee’s recommendation for one-time fees, circumvents the efforts of the Ad Hoc Rates and Fees Committee.
See Georgia Municipal Association Sept. 17, 2018 Ex Parte Letter at 3.
222 See supra para. 50.
223 See, e.g., Colorado Comm. and Utility All. et al. Comments at 18-19 (discussing range of costs that application
fees cover).
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76.Because we interpret fair and reasonable compensation as a reasonable approximation of
costs, we do not suggest that localities must use any specific accounting method to document the costs
they may incur when determining the fees they charge for Small Wireless Facilities within the ROW.
Moreover, in order to simplify compliance, when a locality charges both types of recurring fees identified
above (i.e., for access to the ROW and for use of or attachment to property in the ROW), we see no
reason for concern with how it has allocated costs between those two types of fees. It is sufficient under
the statute that the total of the two recurring fees reflects the total costs involved.224 Fees that cannot
ultimately be shown by a state or locality to be a reasonable approximation of its costs, such as high fees
designed to subsidize local government costs in another geographic area or accomplish some public
policy objective beyond the providers’ use of the ROW, are not “fair and reasonable compensation…for
use of the public rights-of-way” under Section 253(c).225 Likewise, we agree with both industry and
municipal commenters that excessive and arbitrary consulting fees or other costs should not be
recoverable as “fair and reasonable compensation,”226 because they are not a function of the provider’s
“use” of the public ROW.
77.In addition to requiring that compensation be “fair and reasonable,” Section 253(c)
requires that it be “competitively neutral and nondiscriminatory.” The Commission has previously
interpreted this language to prohibit states and localities from charging fees on new entrants and not on
incumbents.227 Courts have similarly found that states and localities may not impose a range of fees on
one provider but not on another228 and even some municipal commenters acknowledge that governments
should not discriminate as to the fees charged to different providers.229 The record reflects continuing
concerns from providers, however, that they face discriminatory charges.230 We reiterate the
Commission’s previous determination that state and local governments may not impose fees on some
providers that they do not impose on others. We would also be concerned about fees, whether one-time
or recurring, related to Small Wireless Facilities, that exceed the fees for other wireless
telecommunications infrastructure in similar situations, and to the extent that different fees are charged
224 See supra note 71 (identifying three categories of fees charged by states and localities).
225 47 U.S.C. § 253(c) (emphasis added). Our interpretation is consistent with court decisions interpreting the “fair
and reasonable” compensation language as requiring fees charged by municipalities relate to the degree of actual use
of a public ROW. See, e.g, Puerto Rico Tel. Co. v. Municipality of Guayanilla, 283 F. Supp. 2d 534, 543-44 (D.P.R.
2003); see also Municipality of Guayanilla, 450 F.3d at 21-24; City of Maryland Heights, 256 F. Supp. 2d at 984.
226 See Letter from Ashton J. Hayward III, Mayor, Pensacola, FL to the Hon. Brendan Carr, Commissioner, WT
Docket No. 17-79 at 1 (filed June 8, 2018); see also, Illinois Municipal League Comments at 2 (noting that proposed
small cell legislation in Illinois allows municipalities to recover “reasonable costs incurred by the municipality in
reviewing the application.”).
227 TCI Cablevision of Oakland County, 12 FCC Rcd. at 21443, para. 108 (1997).
228 City of White Plains, 305 F.3d 80.
229 City of Baltimore Reply at 15 (“The City does agree that rates to access the right of way by similar entities must
be nondiscriminatory.”). Other commenters argue that nothing in Section 253 can apply to property in the ROW.
City of San Francisco Reply at 2-3, 19 (denying that San Francisco is discriminatory to different providers but also
asserting that “[l]ocal government fees for use of their poles are simply beyond the purview of section 253(c)”).
230 See, e.g., CFP Comments at 31-33 (noting that the City of Baltimore charges incumbent Verizon “less than $.07
per linear foot for the space that it leases in the public right-of-way” while it charges other providers “$3.33 per
linear foot to lease space in the City's conduit). Some municipal commenters argue that wireless infrastructure
occupies more space in the ROW. See Smart Communities Reply Comments at 82 (“wireless providers are placing
many of those permanent facilities in the public rights-of-way, in ways that require much larger deployments. It is
not discrimination to treat such different facilities differently, and to focus on their impacts”). We recognize that
different uses of the ROW may warrant charging different fees, and we only find fees to be discriminatory and not
competitively neutral when different amounts are charged for similar uses of the ROW.
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for similar use of the public ROW.231
78.Fee Levels Likely to Comply with Section 253. Our interpretation of Section 253(a) and
“fair and reasonable compensation” under Section 253(c) provides guidance for local and state fees
charged with respect to one-time fees generally, and recurring fees for deployments in the ROW.
Following suggestions for the Commission to “establish a presumptively reasonable ‘safe harbor’ for
certain ROW and use fees,”232 and to facilitate the deployment of specific types of infrastructure critical
to the rollout of 5G in coming years, we identify in this section three particular types of fee scenarios and
supply specific guidance on amounts that presumptively are not prohibited by Section 253. Informed by
our review of information from a range of sources, we conclude that fees at or below these amounts
presumptively do not constitute an effective prohibition under Section 253(a) or Section 332(c)(7), and
are presumed to be “fair and reasonable compensation” under Section 253(c).
79.Based on our review of the Commission’s pole attachment rate formula, which would
require fees below the levels described in this paragraph, as well as small cell legislation in twenty states,
local legislation from certain municipalities in states that have not passed small cell legislation, and
comments in the record, we presume that the following fees would not be prohibited by Section 253 or
Section 332(c)(7): (a) $500 for non-recurring fees, including a single up-front application that includes up
to five Small Wireless Facilities, with an additional $100 for each Small Wireless Facility beyond five, or
$1,000 for non-recurring fees for a new pole (i.e., not a collocation) intended to support one or more
Small Wireless Facilities; and (b) $270 per Small Wireless Facility per year for all recurring fees,
including any possible ROW access fee or fee for attachment to municipally-owned structures in the
ROW.233
80.By presuming that fees at or below the levels above comply with Section 253, we assume
231 Our interpretation is consistent with principles described by the BDAC’s Ad Hoc Committee on Rates and Fees.
Draft BDAC Rates and Fees Report at 5 (Jul. 24, 2018) (listing “neutral treatment and access of all technologies and
communication providers based upon extent/nature of ROW use” as principle to guide evaluation of rates and fees).
232 BDAC Regulatory Barriers Report, Appendix C, p. 3.
233 These presumptive fee limits are based on a number of different sources of data. Many different state small cell
bills, in particular, adopt similar fee limits despite their diversity of population densities and costs of living, and we
expect that these presumptive fee limits will allow for recovery in excess of costs in many cases. 47 CFR § 1.1409;
National Conference of State Legislatures, Mobile 5G and Small Cell Legislation, (May 7, 2018),
http://www.ncsl.org/research/telecommunications-and-information-technology/mobile-5g-and-small-cell-
legislation.aspx (providing description of state small cell legislation); Little Rock, Ark. Ordinance No. 21,423 (June
6, 2017); NCTA August 20, 2018 Ex Parte Letter, Attachment; see also H.R. 2365, 2018 Leg. 2d Reg. Sess. (Ariz.
2018) ($100 per facility for first 5 small cells in application; $50 annual utility attachment rate, $50 ROW access
fee); H.R. 189 149th Gen. Assemb. Reg. Sess. (Del. 2017) ($100 per small wireless facility on application; fees not
to exceed actual, direct and reasonable cost); S. 21320th Gen. Assemb. Reg. Sess. (Ind. 2017) ($100 per small
wireless facility); H.R. 1991, 99th Gen. Assemb. 2nd Reg. Sess. (Missouri, 2018) ($100 for each facility collocated on
authority pole; $150 annual fee per pole); H.R. 38 2018 Leg. Assemb. 2d Reg. Sess. (N.M. 2018) ($100 for each of
first 5 small facilities in an application; $20 per pole annually; $250 per facility annually for access to ROW); S.
189, 2018 Leg. Gen. Sess. (Utah 2018) ($100 per facility to collocate on existing or replacement utility pole; $250
annual ROW fee per facility for certain attachments). See also Letter from Kara R. Graves, Director, Regulatory
Affairs, CTIA, and D. Zachary Champ, Director, Government Affairs, WIA to Marlene Dortch, Secretary, FCC, WT
Docket No. 17-79 (filed Aug. 10, 2018) Attach. (listing fees in twenty state small cell legislations) (CTIA/WIA Aug.
10, 2018 Ex Parte Letter); Letter from Scott K. Bergmann, Sen. Vice President, Regulatory Affairs, CTIA to
Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79 (filed Sept. 4, 2018) at 3, Attach. (analyzing average and
median recurring fee levels permitted under state legislation). These examples suggest that the fee levels we discuss
above may be higher than what many states already allow and further support our finding that there should be only
very limited circumstances in which localities can charge higher fees consistent with the requirements of Section
253. We recognize that certain fees in a minority of state small cell bills are above the levels we presume to be
allowed under Section 253. Any party may still charge fees above the levels we identify by demonstrating that the
fee is a reasonable approximation of cost that itself is objectively reasonable.
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that there would be almost no litigation by providers over fees set at or below these levels. Likewise, our
review of the record, including the many state small cell bills passed to date, indicate that there should be
only very limited circumstances in which localities can charge higher fees consistent with the
requirements of Section 253. In those limited circumstances, a locality could prevail in charging fees that
are above this level by showing that such fees nonetheless comply with the limits imposed by Section
253—that is, that they are (1) a reasonable approximation of costs, (2) those costs themselves are
reasonable, and (3) are non-discriminatory.234 Allowing localities to charge fees above these levels upon
this showing recognizes local variances in costs.235
C.Other State and Local Requirements that Govern Small Facilities Deployment
81.There are also other types of state and local land-use or zoning requirements that may
restrict Small Wireless Facility deployments to the degree that they have the effect of prohibiting service
in violation of Sections 253 and 332. In this section, we discuss how those statutory provisions apply to
requirements outside the fee context, both generally and with a particular focus on aesthetic and
undergrounding requirements.
82.As discussed above, a state or local legal requirement constitutes an effective prohibition
if it “materially limits or inhibits the ability of any competitor or potential competitor to compete in a fair
and balanced legal and regulatory environment.”236 Our interpretation of that standard, as set forth above,
applies equally to fees and to non-fee legal requirements. And as with fees, Section 253 contains certain
safe harbors that permit some legal requirements that might otherwise be preempted by Section 253(a).
Section 253(b) saves state “requirements necessary to preserve and advance universal service, protect the
public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the
rights of consumers.237 And Section 253(c) preserves state and local authority to manage the public
rights-of-way.238
83.Given the wide variety of possible legal requirements, we do not attempt here to
determine which of every possible non-fee legal requirements are preempted for having the effect of
prohibiting service, although our discussion of fees above should prove instructive in evaluating specific
requirements. Instead, we focus on some specific types of requirements raised in the record and provide
guidance on when those particular types of requirements are preempted by the statute.
84.Aesthetics. The Wireless Infrastructure NPRM/NOI sought comment on whether
deployment restrictions based on aesthetic or similar factors are widespread and, if so, how Sections 253
and 332(c)(7) should be applied to them.239 Parties describe a wide range of such requirements that
allegedly restrict deployment of Small Wireless Facilities. For example, many providers criticize
234 Several state and local commenters express concern about the presumptively reasonable fee levels we establish,
including concerns about the effect of the fee levels on existing fee-related provisions included in state and local
legislation. See e.g., Letter from Kent Scarlett, Exec. Director, Ohio Municipal League to Marlene H. Dortch,
Secretary, FCC at 1 (filed Sept. 18, 2018); Letter from Liz Kniss, Mayor, City of Palo Alto to Marlene H. Dortch,
Secretary, FCC, WT Docket No. 17-79, WC Docket No. 17-84 at 1 (filed Sept. 17, 2018). As stated above, while
the fee levels we establish reflect our presumption regarding the level of fees that would be permissible under
Section 253 and 332(c)(7), state or local fees that exceed these levels may be permissible if the fees are based on a
reasonable approximation of costs and the costs themselves are objectively reasonable.
235 We emphasize that localities may charge fees to recover their objectively reasonable costs and thus reject
arguments that our approach requires localities to bear the costs of small cell deployment or applies a one-size-fits-
all standard. See, e,g., Letter from Mike Posey, Mayor, City of Huntington Beach, to Marlene Dortch, Secretary,
FCC, WT Docket No. 17-79, at 1-2 (filed Sept.11, 2018) (Mike Posey Sept. 11, 2018 Ex Parte Letter).
236 California Payphone, 12 FCC Rcd at 14206, para. 31; see supra paras. 34-42.
237 47 U.S.C. § 253(b).
238 47 U.S.C. § 253(c).
239 Wireless Infrastructure NPRM/NOI, 32 FCC Rcd at 3362-66, paras. 90-92, 95, 97-99.
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burdensome requirements to deploy facilities using “stealth” designs or other means of camouflage,240 as
well as unduly stringent mandates regarding the size of equipment, colors of paint, and other details.241
Providers also assert that the procedures some localities use to evaluate the appearance of proposed
facilities and to decide whether they comply with applicable land-use requirements are overly restrictive.
242 Many providers are particularly critical of the use of unduly vague or subjective criteria that may
apply inconsistently to different providers or are only fully revealed after application, making it
impossible for providers to take these requirements into account in their planning and adding to the time
necessary to deploy facilities.243 At the same time, we have heard concerns in the record about carriers
deploying unsightly facilities that are significantly out of step with similar, surrounding deployments.
85.State and local governments add that many of their aesthetic restrictions are justified by
factors that the providers fail to mention. They assert that their zoning requirements and their review and
enforcement procedures are properly designed to, among other things, (1) ensure that the design,
appearance, and other features of buildings and structures are compatible with nearby land uses; (2)
manage ROW so as to ensure traffic safety and coordinate various uses; and (3) protect the integrity of
240 See, e.g., CCIA Comments at 14-15 (discussing regulations enacted by Village of Skokie, Illinois); WIA Reply
Comments (WT Docket No. 16-421) at 9-10 (discussing restrictions imposed by Town of Hempstead, New York);
see also AT&T Comments at 14-17; PTA-FLA Comments at 19; Verizon Comments at 19-20; AT&T Aug. 6, 2018
ex parte at 3.
241 See, e.g., CCIA Comments at 13-14 (describing regulations established by Skokie, Illinois that prescribe in detail
the permissible colors of paint and their potential for reflecting light); AT&T Aug. 6, 2018 ex parte at 3 (“Some
municipalities require carriers to paint small cell cabinets a particular color when like requirements were not
imposed on similar equipment placed in the ROW by electric incumbents, competitive telephone companies, or
cable companies,” and asserts that it often “is highly burdensome to maintain non-factory paint schemes over years
or decades, including changes to the municipal paint scheme,” due to “technical constraints as well such as
manufacture warranty or operating parameters, such as heat dissipation, corrosion resistance, that are inconsistent
with changes in color, or finish.”); AT&T Comments at 16-17 (contending that some localities “allow for a single
size and configuration for small cell equipment while requiring case-by-case approval of any non-conforming
equipment, even if smaller and upgraded in design and performance,” and thus effectively compel “providers [to]
incur the added expense of conforming their equipment designs to the approved size and configuration, even if
newer equipment is smaller, to avoid the delays associated with the approval of an alternative equipment design and
the risk of rejection of that design.”); id. at 17 (some local governments “prohibit the placement of wireless facilities
in and around historic properties and districts, regardless of the size of the equipment or the presence of existing
more visually intrusive construction near the property or district”).
242 See, e.g., Crown Castle Comments at 14-15 (criticizing San Francisco’s aesthetic review procedures that
discriminate against providers and criteria and referring to extended litigation); CTIA Reply Comments at 17 (“San
Francisco imposes discretionary aesthetic review for wireless ROW facilities.”); T-Mobile Comments at 40; but see
San Francisco Comments at 3-7 (describing aesthetic review procedures). See also AT&T Comments at 13-17;
Extenet Comments at 37; CTIA Comments at 21-22; Sprint Comments at 38-40; T-Mobile Comments at 8-12;
Verizon Comments at 5-8.
243 See, e.g., AT&T Comments at 13-17; Sprint Comments at 38-40; T-Mobile Comments at 8-12; Verizon
Comments at 5-8. WIA cites allegations that an unnamed city in California recently declined to support approval of
a proposed small wireless installation, claiming that the installations do not meet “Planning and Zoning Protected
Location Compatibility Standards,” even though the same equipment has been deployed elsewhere in the city
dozens of times, and even though the “Protected Location” standards should not apply because the proposals are not
on “protected view” streets). WIA Reply Comments, WT Docket No. 16-421 at 9-10; id. at 8 (noting that one city
changed its aesthetic standards after a proposal was filed); AT&T Comments at 17 (noting that a design approval
took over a year); Virginia Joint Commenters, WT Docket No. 16-421 (state law providing discretion for zoning
authority to deny application because of “aesthetics” concerns without additional guidance); Extenet Reply
Comments at 13 (noting that some “local governments impose aesthetic requirements based entirely on subjective
considerations that effectively give local governments latitude to block a deployment for virtually any aesthetically-
based reason”)
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their historic, cultural, and scenic resources and their citizens’ quality of life.244
86.Given these differing perspectives and the significant impact of aesthetic requirements on
the ability to deploy infrastructure and provide service, we provide guidance on whether and in what
circumstances aesthetic requirements violate the Act. This will help localities develop and implement
lawful rules, enable providers to comply with these requirements, and facilitate the resolution of disputes.
We conclude that aesthetics requirements are not preempted if they are (1) reasonable, (2) no more
burdensome than those applied to other types of infrastructure deployments, and (3) objective and
published in advance.
87.Like fees, compliance with aesthetic requirements imposes costs on providers, and the
impact on their ability to provide service is just the same as the impact of fees. We therefore draw on our
analysis of fees to address aesthetic requirements. We have explained above that fees that merely require
providers to bear the direct and reasonable costs that their deployments impose on states and localities
should not be viewed as having the effect of prohibiting service and are permissible.245 Analogously,
aesthetic requirements that are reasonable in that they are technically feasible and reasonably directed to
avoiding or remedying the intangible public harm of unsightly or out-of-character deployments are also
permissible. In assessing whether this standard has been met, aesthetic requirements that are more
burdensome than those the state or locality applies to similar infrastructure deployments are not
permissible, because such discriminatory application evidences that the requirements are not, in fact,
reasonable and directed at remedying the impact of the wireless infrastructure deployment. For example,
a minimum spacing requirement that has the effect of materially inhibiting wireless service would be
considered an effective prohibition of service.
88.Finally, in order to establish that they are reasonable and reasonably directed to avoiding
aesthetic harms, aesthetic requirements must be objective—i.e., they must incorporate clearly-defined and
ascertainable standards, applied in a principled manner—and must be published in advance.246 “Secret”
rules that require applicants to guess at what types of deployments will pass aesthetic muster substantially
increase providers’ costs without providing any public benefit or addressing any public harm. Providers
cannot design or implement rational plans for deploying Small Wireless Facilities if they cannot predict in
advance what aesthetic requirements they will be obligated to satisfy to obtain permission to deploy a
facility at any given site.247
244 See, e.g., NLC Comments, WT Docket No. 16-421 at 8-10; Smart Communities Comments, WT Docket No. 16-
421 at 35-36; New York City Comments at 10-15; New Orleans Comments at 1-2, 5-8; San Francisco Comments at
3-12; CCUA Reply Comments at 5; Irvine (CA) Comments at 2; Oakland County (MI) Comments at 3-5; Florida
Coalition of Local Gov’ts Reply Comments at 6-12 (justifications for undergrounding requirements); id. at 16-421
(justifications for municipal historic-preservation requirements); id. at 22-16 (justifications for aesthetics and design
requirements).
245 See supra paras. 55-56.
246 Our decision to adopt this objective requirement is supported by the fact that many states have recently adopted
limits on their localities’ aesthetic requirements that employ the term “objective.” See, e.g., Letter from Scott
Bergmann, Senior Vice President, Regulatory Affairs, CTIA, to Marlene H. Dortch, Secretary, FCC, WT Docket
No. 17-79 at 8 (filed Sept. 19, 2018) (noting requirements enacted in the states of Arizona, Delaware, Missouri,
North Carolina, Ohio, and Oklahoma, that local siting requirements for small wireless facilities be “objective”); see
also Letter from Kara R. Graves, Director, Regulatory Affairs, CTIA, to Marlene H. Dortch, Secretary, FCC, WT
Docket No. 17-79 at 8 (filed Sept. 4, 2018)
247 Some local governments argue that, because different aesthetic concerns may apply to different neighborhoods,
particularly those considered historic districts, it is not feasible for them to publish local aesthetic requirements in
advance. See, e.g., Letter from Mark J. Schwartz, County Manager, Arlington County, VA, to Marlene H. Dortch,
Secretary, FCC, WT Docket No. 17-79, at 2 (Sept. 18, 2018) (Arlington County Sept. 18 Ex Parte Letter); Letter
from Allison Silberberg, Mayor, City of Alexandria, VA, to Marlene H. Dortch, Secretary, FCC, WT Docket No.
17-79, at 2 (Sept. 18, 2018). We believe this concern is unfounded. As noted above, the fact that our approach here
(including the publication requirement) is consistent with that already enacted in many state-level small cell bills
supports the feasibility of our decision. Moreover, the aesthetic requirements to be published in advance need not
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89.We appreciate that at least some localities will require some time to establish and publish
aesthetics standards that are consistent with this Declaratory Ruling. Based on our review and evaluation
of commenters’ concerns, we anticipate that such publication should take no longer than 180 days after
publication of this decision in the Federal Register.
90.Undergrounding Requirements. We understand that some local jurisdictions have
adopted undergrounding provisions that require infrastructure to be deployed below ground based, at least
in some circumstances, on the locality’s aesthetic concerns. A number of providers have complained that
these types of requirements amount to an effective prohibition. 248 In addressing this issue, we first
reiterate that, while undergrounding requirements may well be permissible under state law as a general
matter, any local authority to impose undergrounding requirements under state law does not remove such
requirements from the provisions of Section 253. In this regard, we believe that a requirement that all
wireless facilities be deployed underground would amount to an effective prohibition given the
propagation characteristics of wireless signals. In this sense, we agree with the U.S. Court of Appeals for
the Ninth Circuit when it observed that, “[i]f an ordinance required, for instance, that all facilities be
underground and the plaintiff introduced evidence that, to operate, wireless facilities must be above
ground, the ordinance would effectively prohibit it from providing services.”249 Further, a requirement
that materially inhibits wireless service, even if it does not go so far as requiring that all wireless facilities
be deployed underground, also would be considered an effective prohibition of service. Thus, the same
criteria discussed above in the context of aesthetics generally would apply to state or local
undergrounding requirements.
91.Minimum Spacing Requirements. Some parties complain of municipal requirements
regarding the spacing of wireless installations—i.e., mandating that facilities be sited at least 100, 500, or
1,000 feet, or some other minimum distance, away from other facilities, ostensibly to avoid excessive
overhead “clutter” that would be visible from public areas.250 We acknowledge that while some such
requirements may violate 253(a), others may be reasonable aesthetic requirements.251 For example, under
the principle that any such requirements be reasonable and publicly available in advance, it is difficult to
envision any circumstances in which a municipality could reasonably promulgate a new minimum
spacing requirement that, in effect, prevents a provider from replacing its preexisting facilities or
collocating new equipment on a structure already in use. Such a rule change with retroactive effect would
(Continued from previous page)
prescribe in detail every specification to be mandated for each type of structure in each individual neighborhood.
Localities need only set forth the objective standards and criteria that will be applied in a principled manner at a
sufficiently clear level of detail as to enable providers to design and propose their deployments in a manner that
complies with those standards.
248 See, e.g., AT&T Comments at 14-15; Crown Castle Comments at 54-56; T-Mobile Comments at 38; Verizon
Comments at 6-8; WIA Comments at 56; CTIA Reply at 16. But see Chicago Comments at 15; City of Claremont
(CA) Comments at 1; City of Kenmore (WA) Comments at 1; City of Mukilteo (WA) Comments at 2; Florida
Coalition of Local Gov’ts Comments at 6-12; Smart Communities Comments at 74.
249 County of San Diego, 543 F.3d at 580, accord, BDAC Model Municipal Code at 13, § 2.3.e (providing for
municipal zoning authority to allow providers to deploy small wireless facilities on existing vertical structures where
available in neighborhoods with undergrounding requirements, or if no technically feasible structures exist, to place
vertical structures commensurate with other structures in the area).
250 See, e.g., Verizon Comments at 8 (describing requirements imposed by Buffalo Grove, Illinois); CCIA
Comments at 14-15 (“These restrictions stifle technological innovation and unnecessarily burden the ability of a
provider to use the best available technological to serve a particular area. For example, 5G technology will require
higher band spectrum for greater network capacity, yet some millimeter wave spectrum simply cannot propagate
long distances over a few thousand feet—let alone a few hundred. Therefore, a local requirement of, for example, a
thousand-foot minimum separation distance between small cells would unnecessarily forestall any network provider
seeking to use higher band spectrum with greater capacity when that provider needs to boost coverage in a specific
area of a few hundred feet.”). See also AT&T Comments at 15; CTIA Reply at 17.
251 47 U.S.C. § 253(a).
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almost certainly have the effect of prohibiting service under the standards we articulate here. Therefore,
such requirements should be evaluated under the same standards for aesthetic requirements as those
discussed above.252
D.States and Localities Act in Their Regulatory Capacities When Authorizing and
Setting Terms for Wireless Infrastructure Deployment in Public Rights of Way
92.We confirm that our interpretations today extend to state and local governments’ terms
for access to public ROW that they own or control, including areas on, below, or above public roadways,
highways, streets, sidewalks, or similar property, as well as their terms for use of or attachment to
government-owned property within such ROW, such as new, existing and replacement light poles, traffic
lights, utility poles, and similar property suitable for hosting Small Wireless Facilities.253 As explained
below, for two alternative and independent reasons, we disagree with state and local government
commenters who assert that, in providing or denying access to government-owned structures, these
governmental entities function solely as “market participants” whose rights cannot be subject to federal
preemption under Section 253(a) or Section 332(c)(7).254
93.First, this effort to differentiate between such governmental entities’ “regulatory” and
“proprietary” capacities in order to insulate the latter from preemption ignores a fundamental feature of
the market participant doctrine.255 As the Ninth Circuit has observed, at its core, this doctrine is “a
252 Another type of restriction that imposes substantial burdens on providers, but does not meaningfully advance any
recognized public-interest objective, is an explicit or implicit quid pro quo in which a municipality makes clear that
it will approve a proposed deployment only on condition that the provider supply an “in-kind” service or benefit to
the municipality, such as installing a communications network dedicated to the municipality’s exclusive use. See,
e.g., Comcast Comments at 9-10 Verizon Comments at 7, Crown Castle Comments at 55-56. Such requirements
impose costs, but rarely, if ever, yield benefits directly related to the deployment. Additionally, where such
restrictions are not cost-based, they inherently have “the effect of prohibiting” service, and thus are preempted by
Section 253(a). See also BDAC Regulatory Barriers Report, Appendix E at 1 (describing “conditions imposed that
are unrelated to the project for which they were seeking ROW access” as “inordinately burdensome”); BDAC
Model Municipal Code at 19, § 2.5a.(v)(F) (providing that municipal zoning authority “may not require an
Applicant to perform services . . . or in-kind contributions [unrelated] to the Communications Facility or Support
Structure for which approval is sought”).
253 See supra paras. 50-91. Some have argued that Section 224 of the Communications Act’s exception of state-
owned and cooperative-owned utilities from the definition of “utility,” “[a]s used in this section,” suggests that
Congress did not intend for any other portion of the Act to apply to poles or other facilities owned by such entities.
City of Mukilteo, et. al. Ex Parte Comments on the Draft Declaratory Ruling and Third Report and Order, WT
Docket No. 17-79, at 1 (filed Sept. 18, 2018); Letter from James Bradford Ramsay, General Counsel, NARUC to
Marlene H. Dortch, Secretary, FCC, WT Docket 17-79 at 7 (filed Sept. 19, 2018). We see no basis for such a
reading. Nothing in Section 253 suggests such a limited reading, nor does Section 224 indicate that other provisions
of the Act do not apply. We conclude that our interpretation of effective prohibition extends to fees for all
government-owned property in the ROW, including utility poles. Compare 47 U.S.C. § 224 with 47 U.S.C. § 253.
We are not addressing here how our interpretations apply to access or attachments to government-owned property
located outside the public ROW.
254 See, e.g., AASHTO Comments, Att. 1 (Del. DOT Comments) at 3-5; New York City Comments at 2-8; San
Antonio et al. Comments at 14-15; Smart Communities Comments at 62-66; San Francisco Comments at 28-30;
League of Arizona Cities et al. Comments, WT Docket No. 16-421 at 3-9; San Antonio et al. Comments, WT
Docket No. 16-421 at 14-15. See also Wireless Infrastructure NPRM/NOI, 32 FCC Rcd at 3364-65, para. 96
(seeking comment on this issue).
255 The market participant doctrine establishes that, unless otherwise specified by Congress, federal statutory
provisions may be interpreted as preempting or superseding state and local governments’ activities involving
regulatory or public policy functions, but not their activities as “market participants” to serve their “purely
proprietary interests,” analogous to similar transactions of private parties. Building & Construction Trades Council
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presumption about congressional intent,” which “may have a different scope under different federal
statutes.”256 The Supreme Court has likewise made clear that the doctrine is applicable only “[i]n the
absence of any express or implied indication by Congress.”257 In contrast, where state action conflicts
with express or implied federal preemption, the market participant doctrine does not apply, whether or not
the state or local government attempts to impose its authority over use of public rights-of-way by permit
or by lease or contract.258 Here, both Sections 253(a) and Section 332(c)(7)(B)(i)(II) expressly address
preemption, and neither carves out an exception for proprietary conduct.259
94.Specifically, Section 253(a) expressly preempts certain state and local “legal
requirements” and makes no distinction between a state or locality’s regulatory and proprietary conduct.
Indeed, as the Commission has long recognized, Section 253(a)’s sweeping reference to “State [and] local
statute[s] [and] regulation[s]” and “other State [and] local legal requirement[s]” demonstrates Congress’s
intent “to capture a broad range of state and local actions that prohibit or have the effect of prohibiting
entities from providing telecommunications services.”260 Section 253(b) mentions “requirement[s],” a
phrase that is even broader than that used in Section 253(a) but covers “universal service,” “public safety
and welfare,” “continued quality of telecommunications,” and “safeguard[s for the] rights of consumers.”
The subsection does not recognize a distinction between regulatory and proprietary. Section 253(c),
which expressly insulates from preemption certain state and local government activities, refers in relevant
part to “manag[ing] the public rights-of-way” and “requir[ing] fair and reasonable compensation,” while
eliding any distinction between regulatory and proprietary action in either context. The Commission has
previously observed that Section 253(c) “makes explicit a local government’s continuing authority to
issue construction permits regulating how and when construction is conducted on roads and other public
(Continued from previous page)
v. Associated Builders & Contractors, 507 U.S. 218, 229, 231 (1993) (Boston Harbor); see also Wisconsin Dept. of
Industry, Labor, and Human Relations v. Gould, Inc., 475 U.S. 282, 289 (1986) (Gould).
256 See, e.g., Engine Mfrs. Ass’n v. South Coast Air Quality Mgmt. Distr., 498 F.3d 1031, 1042 (9th Cir. 2007);
Johnson v. Rancho Santiago Comm. College, 623 F.3d 1011, 1022 (9th Cir. 2010).
257 See Boston Harbor, 507 U.S. at 231.
258 See American Trucking Ass’n v. City of Los Angeles, 569 U.S. 641, 650 (2013) (American Trucking).
259 At a minimum, we conclude that Congress’s language has not unambiguously pointed to such a distinction. See
Letter from Tamara Preiss, Vice President, Federal Regulatory and Legal Affairs, Verizon, to Marlene H. Dortch,
Secretary, FCC, WT Docket No. 17-79, at 2 (filed Aug. 23, 2018) (Verizon Aug. 23, 2018 Ex Parte Letter).
Furthermore, we contrast these statutes with those that do not expressly or impliedly preempt proprietary conduct.
Compare, e.g., American Trucking, 569 U.S. 641 (finding that FAA Authorization Act of 1994’s provision that
“State [or local government] may not enact or enforce a law, regulation, or other provision having the force and
effect of law related to a price, route, or service of any motor carrier . . . with respect to the transportation of
property” expressly preempted the terms of a standard-form concession agreement drafted to govern the relationship
between the Port of Los Angeles and any trucking company seeking to operate on the premises), and Gould,
475 U.S. at 289 (finding that NLRA preempted a state law barring state contracts with companies with disfavored
labor practices because the state scheme was inconsistent with the federal scheme), with Boston Harbor, 507 U.S. at
224-32. In Boston Harbor, the Supreme Court observed that the NLRA contained no express preemption provision
or implied preemption scheme and consequently held:
In the absence of any express or implied indication by Congress that a State may not manage its own
property when it pursues its purely proprietary interests, and where analogous private conduct would be
permitted, this Court will not infer such a restriction.
Id. (internal citations omitted).
260 See Minnesota Order, 14 FCC Rcd at 21707, para. 18. We find these principles to be equally applicable to our
interpretation of the meaning of “regulation[s]” referred to under Section 332(c)(7)(B) insofar as such actions
impermissibly “prohibit or have the effect of prohibiting the provision of personal wireless services.” Supra paras.
34-42.
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rights-of-way.”261 We conclude here that, as a general matter, “manage[ment]” of the ROW includes any
conduct that bears on access to and use of those ROW, notwithstanding any attempts to characterize such
conduct as proprietary.262 This reading, coupled with Section 253(c)’s narrow scope, suggests that
Congress’s omission of a blanket proprietary exception to preemption was intentional, and thus, that such
conduct can be preempted under Section 253(a). We therefore construe Section 253(c)’s requirements,
including the requirement that compensation be “fair and reasonable,” as applying equally to charges
imposed via contracts and other arrangements between a state or local government and a party engaged in
wireless facility deployment.263 This interpretation is consistent with Section 253(a)’s reference to “State
or local legal requirement[s],” which the Commission has consistently construed to include such
agreements.264 In light of the foregoing, whatever the force of the market participant doctrine in other
contexts,265 we believe the language, legislative history, and purpose of Sections 253(a) and (c) are
incompatible with the application of this doctrine in this context. We observe once more that “[o]ur
conclusion that Congress intended this language to be interpreted broadly is reinforced by the scope of
section 253(d),” which “directs the Commission to preempt any statute, regulation, or legal
requirement permitted or imposed by a state or local government if it contravenes sections 253(a) or (b).
A more restrictive interpretation of the term ‘other legal requirements’ easily could permit state and local
restrictions on competition to escape preemption based solely on the way in which [state] action was
structured. We do not believe that Congress intended this result.”266
95.Similarly, and as discussed elsewhere,267 we interpret Section 332(c)(7)(B)(ii)’s
references to “any request[s] for authorization to place, construct, or modify personal wireless service
facilities” broadly, consistent with Congressional intent. As described below, we find that “any” is
unqualifiedly broad, and that “request” encompasses anything required to secure all authorizations
necessary for the deployment of personal wireless services infrastructure. In particular, we find that
Section 332(c)(7) includes authorizations relating to access to a ROW, including but not limited to the
261 See Minnesota Order, 14 FCC Rcd at 21728-29, para. 60, quoting H. R. Rep. No. 104-204, U.S. Congressional &
Administrative News, March 1996, vol.1, Legislative History section at 41 (1996).
262 Indeed, to permit otherwise could limit the utility of ROW access for telecommunications service providers and
thus conflict with the overarching preemption scheme set up by Section 253(a), for which 253(b) and 253(c) are
exceptions. By construing “manage[ment]” of a ROW to include some proprietary behaviors, we mean to suggest
that conduct taken in a proprietary capacity is likewise subject to 253(c)’s general limitations, including the
requirement that any compensation charged in such capacity be “fair and reasonable.”
263 Cf. Minnesota Order, 14 FCC Rcd at 21729-30, para. 61-62 (internal citations omitted) (“Moreover, Minnesota
has not shown that the compensation required for access to the right-of-way is ‘fair and reasonable.’ The
compensation appears to reflect the value of the exclusivity inherent in the Agreement [which provides the
developer with exclusive physical access, for at least ten years, to longitudinal rights-of-way along Minnesota's
interstate freeway system] rather than fair and reasonable charges for access to the right-of-way. Nor has Minnesota
shown that the Agreement provides for ‘use of public rights-of-way on a nondiscriminatory basis.’”)
264 Cf. Crown Castle June 7, 2018 Ex Parte Letter at 17 n.83 (“Section 253(c), which carves out ROW management,
would hardly be necessary if all ROW decisions were proprietary and shielded from the statute’s sweep.”).
265 We acknowledge that the Commission previously concluded that “Section 6409(a) applies only to State and local
governments acting in their role as land use regulators” and found that “this conclusion is consistent with judicial
decisions holding that Sections 253 and 332(c)(7) of the Communications Act do not preempt ‘non regulatory
decisions[.]’” See 2014 Wireless Infrastructure Order, 29 FCC Rcd at 12964-65, paras. 237-240. To the extent
necessary, we clarify here that the actions and analysis there were limited in scope given the different statutory
scheme and record in that proceeding, which did not, at the time, suggest a need to “further elaborate as to how this
principle should apply to any particular circumstance” (there, in connection with application of Section 6409(a)).
Here, in contrast, as described herein, we find that further elucidation by the Commission is needed.
266 Minnesota Order, 14 FCC Rcd at 21707, para. 18 (internal citations omitted) (emphasis omitted).
267 See infra Part IV.C.1 (Authorizations Subject to the “Reasonable Period of Time” Provision of Section
332(c)(7)(B)(ii)).
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“place[ment], construct[ion], or modif[ication]” of facilities on government-owned property, for the
purpose of providing “personal wireless service.” We observe that this result, too, is consistent with
Commission precedent such as the Minnesota Order, which involved a contract that provided exclusive
access to a ROW. As but one example, to have limited that holding to exclude government-owned
property within the ROW even if the carrier needed access to that property would have the effect of
diluting or completely defeating the purpose of Section 332(c)(7).268
96.Second, and in the alternative, even if Section 253(a) and Section 332(c)(7) were to
permit leeway for states and localities acting in their proprietary role, the examples in the record would be
excepted because they involve states and localities fulfilling regulatory objectives.269 In the proprietary
context, “a State acts as a ‘market participant with no interest in setting policy.’”270 We contrast state and
local governments’ purely proprietary actions with states and localities acting with respect to managing or
controlling access to property within public ROW, or to decisions about where facilities that will provide
personal wireless service to the public may be sited. As several commenters point out, courts have
recognized that states and localities “hold the public streets and sidewalks in trust for the public” and
“manage public ROW in their regulatory capacities.”271 These decisions could be based on a number of
regulatory objectives, such as aesthetics or public safety and welfare, some of which, as we note
elsewhere, would fall within the preemption scheme envisioned by Congress. In these situations, the state
or locality’s role seems to us to be indistinguishable from its function and objectives as a regulator.272 To
268 See also infra para. 134-36 and cases cited therein. Precedent that may appear to reach a different result can be
distinguished in that it resolves disputes arising under Section 332 and/or 253(a) without analyzing the scope of
Section 253(c). Furthermore, those situations did not involve government-owned property or structures within a
public ROW. See, e.g., Sprint Spectrum L.P. v. Mills, 283 F.3d 404, 420-21 (2d Cir. 2002) (declining to find
preemption under Section 332 applicable to terms of a school rooftop lease); Omnipoint Commc’ns, Inc. v. City of
Huntington Beach, 738 F.3d 192, 195-96, 200-01 (9th Cir. 2013) (declining to find preemption under Section 332
applicable to restrictions on lease of parkland).
269 In this regard, also relevant to our interpretations here is courts’ admonition that government activities that are
characterized as transactions but in reality are “tantamount to regulation” are subject to preemption, Gould, 475 U.S.
at 289, and that government action disguised as private action may not be relied on as a pretext to advance
regulatory objectives. See, e.g., Coastal Communications Service v. City of New York, 658 F. Supp. 2d 425, 441-42
(E.D.N.Y. 2009) (finding that a restriction on advertising on newly-installed payphones was subject to section
253(a) where the advertising was a material factor in the provider’s ability to provide the payphone service itself).
270 See, e.g., Chamber of Commerce of U.S. v. Brown, 554 U.S. 60, 70 (2008).
271 See Verizon Comments at 26-28 & n.85; T-Mobile Comments at 50 & n.210 and cases cited therein.
272 Indeed, the Commission has long recognized that, in enacting Sections 253(c) and 332(c)(7), Congress
affirmatively protected the ability of state and local governments to carry out their responsibilities for maintaining,
managing, and regulating the use of ROW and structures therein for the benefit of the public. TCI Cablevision
Order, 12 FCC Rcd at 21441, para. 103 (1997) (“We recognize that section 253(c) preserves the authority of state
and local governments to manage public rights-of-way. Local governments must be allowed to perform the range of
vital tasks necessary to preserve the physical integrity of streets and highways, to control the orderly flow of
vehicles and pedestrians, to manage gas, water, cable (both electric and cable television), and telephone facilities
that crisscross the streets and public rights-of-way.”); Moratoria Declaratory Ruling, FCC 18-111, para. 142 (same);
Classic Telephone, Inc. Petition for Preemption, Declaratory Ruling, and Injunctive Relief, Memorandum Opinion
and Order, 11 FCC Rcd 13082, 13103, para. 39 (1996) (same). We find these situations to be distinguishable from
those where a state or locality might be engaged in a discrete, bona fide transaction involving sales or purchases of
services that do not otherwise violate the law or interfere with a preemption scheme. Compare, e.g., Cardinal
Towing & Auto Repair, Inc., v. City of Bedford, 180 F.3d 686, 691, 693-94 (5th Cir. 1999) (declining to find that the
FAA Authorization Act of 1994, as amended by the ICC Termination Act of 1995, preempted an ordinance and
contract specifications that were designed only to procure services that a municipality itself needed, not to regulate
the conduct of others), with NextG Networks of N.Y., Inc. v. City of New York, 2004 WL 2884308 (N.D.N.Y., Dec.
10, 2004) (crediting allegations that a city’s actions, such as issuing a request for proposal and implementing a
general franchising scheme, were not of a purely proprietary nature, but rather, were taken in pursuit of a regulatory
objective or policy). This action could include, for example, procurement of services for the state or locality, or a
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the extent that there is some distinction, the temptation to blend the two roles for purposes of insulating
conduct from federal preemption cannot be underestimated in light of the overarching statutory objective
that telecommunications service and personal wireless services be deployed without material
impediments.
97.Our interpretation of both provisions finds ample support in the record of this proceeding.
Specifically, commenters explain that public ROW and government-owned structures within such ROW
are frequently relied upon to supply services for the benefit of the public, and are often the best-situated
locations for the deployment of wireless facilities.273 However, the record is also replete with examples of
states and localities refusing to allow access to such ROW or structures, or imposing onerous terms and
conditions for such access.274 These examples extend far beyond governments’ treatment of single
structures;275 indeed, in some cases it has been suggested that states or localities are using their
proprietary roles to effectuate a general municipal policy disfavoring wireless deployment in public
ROW.276 We believe that Section 253(c) is properly construed to suggest that Congress did not intend to
permit states and localities to rely on their ownership of property within the ROW as a pretext to advance
regulatory objectives that prohibit or have the effect of prohibiting the provision of covered services, and
thus that such conduct is preempted.277 Our interpretations here are intended to facilitate the
implementation of the scheme Congress intended and to provide greater regulatory certainty to states,
municipalities, and regulated parties about what conduct is preempted under Section 253(a). Should
factual questions arise about whether a state or locality is engaged in such behavior, Section 253(d)
affords state and local governments and private parties an avenue for specific preemption challenges.
(Continued from previous page)
contract for employment services between a state or locality and one of its employees. We do not intend to reach
these scenarios with our interpretations today.
273 See, e.g., Verizon Aug. 23, 2018 Ex Parte Letter at 4-5.
274 See supra para. 25.
275 Cf. Sprint Spectrum L.P. v. Mills, 283 F.3d 404.
276 See NextG Networks of N.Y., Inc. v. City of New York, 2004 WL 2884308; Coastal Communications Service v.
City of New York, 658 F. Supp. 2d at 441-42.
277 We contrast this instance to others in which we either declined to act or responded to requests for action with
respect to specific disputes. See, e.g., 2014 Wireless Infrastructure Order, 29 FCC Rcd at 12964-65, paras. 237-
240; Continental Airlines Petition for Declaratory Ruling Regarding the Over-the-Air Reception Devices (OTARD)
Rules, Memorandum Opinion and Order, 21 FCC Rcd 13201, 13220, para. 43 (2006) (observing, in the context of a
different statutory and regulatory scheme, that “[g]iven that the Commission intended to preempt restrictions
[regarding restrictions on Continental's use of its Wi-Fi antenna] in private lease agreements, however, Massport
would be preempted even if it is acting in a private capacity with regard to its lease agreement with Continental.”);
Sandwich Isles Section 253 Order, 32 FCC Rcd at 5883, para. 14 (rejecting argument that argument that Section
253(a) is inapplicable where it would affect the state’s ability to “deal[] with its real estate interests . . . as it sees fit,”
such as by granting access to “rights-of-way over land that it owns); Minnesota Order, 14 FCC Rcd at 21706-08,
paras. 17-19; cf. Amigo.Net Petition for Declaratory Ruling, Memorandum Opinion and Order, 17 FCC Rcd 10964,
10967 (WCB 2002) (Section 253 did not apply to carrier’s provision of network capacity to government entities
exclusively for such entities’ internal use); T-Mobile West Corp. v. Crow, 2009 WL 5128562 (D. Ariz., Dec. 17,
2009) (Section 332(c)(7) did not apply to contract for deployment of wireless facilities and services for use on state
university campus). We clarify here that such prior instances are not to be construed as a concession that Congress
did not make preemption available, or that the Commission lacked the authority to support parties’ attempts to avail
themselves of relief offered under preemption schemes, when confronted with instances in which a state or locality
is relying on its proprietary role to skirt federal regulatory reach. Indeed, these instances demonstrate the opposite—
that preemption is available to effectuate Congressional intent—and merely illustrate application of this principle.
Also, we do not find it necessary to await specific disputes in the form of Section 253(d) petitions to offer these
interpretations. In the alternative and as an independent means to support the interpretations here, we clarify that we
intend for our views to guide how preemption should apply in fact-specific scenarios.
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E.Responses to Challenges to Our Interpretive Authority and Other Arguments
98.We reject claims that we lack authority to issue authoritative interpretations of Sections
253 and 332(c)(7) in this Declaratory Ruling. As explained above, we act here pursuant to our broad
authority to interpret key provisions of the Communications Act, consistent with our exercise of that
interpretive authority in the past.278 In this instance, we find that issuing a Declaratory Ruling is
necessary to remove what the record reveals is substantial uncertainty and to reduce the number and
complexity of legal controversies regarding certain fee and non-fee state and local legal requirements in
connection with Small Wireless Facility infrastructure. We thus exercise our authority in this Declaratory
Ruling to interpret Section 253 and Section 332(c)(7) and explain how those provisions apply in the
specific scenarios at issue here.279
99.Nothing in Sections 253 or 332(c)(7) purports to limit the exercise of our general
interpretive authority.280 Congress’s inclusion of preemption provisions in Section 253(d) and Section
332(c)(7)(B)(v) does not limit the Commission’s ability pursuant to other sections of the Act to construe
and provide its authoritative interpretation as to the meaning of those provisions.281 Any preemption
under Section 253 and/or Section 332(c)(7)(B) that subsequently occurs will proceed in accordance with
the enforcement mechanisms available in each context. But whatever enforcement mechanisms may be
available to preempt specific state and local requirements, nothing in Section 253 or Section 332(c)(7)
prevents the Commission from declaring that a category of state or local laws is inconsistent with Section
253(a) or Section 332(c)(7)(B)(i)(II) because it prohibits or has the effect of prohibiting the relevant
covered service.282
278 See, e.g., Moratoria Declaratory Ruling, FCC 18-111, paras. 161-68; 2009 Declaratory Ruling, 24 FCC Rcd at
14001, para. 23.
279 Targeted interpretations of the statute like those we adopt here fall far short of a “federal regulatory program
dictating the scope and policies involved in local land use” that some commenters fear. League of Minnesota Cities
Comments at 9.
280 We also reject claims that Section 601(c)(1) of the 1996 Act constrains our interpretation of these provisions.
See, e.g., NARUC Reply at 3; Smart Communities Reply at 33, 35-36. That provision guards against implied
preemption, while Section 253 and Section 332(c)(7)(B) both expressly restrict state and local activities. See, e.g.,
Texas PUC Order, 13 FCC Rcd at 3485-86, para. 51. Courts also have read that provision narrowly. See, e.g., In re
FCC 11-161, 753 F.3d 1015, 1120 (10th Cir. 2014); Qwest Corp. v. Minnesota Pub. Utilities Comm’n, 684 F.3d
721, 730-31 (8th Cir. 2012); Farina v. Nokia Inc., 625 F.3d 97, 131 (3d Cir. 2010). Although the Ninth Circuit in
County of San Diego asserted that there is a presumption that express preemption provisions should be read
narrowly, and that the presumption would apply to the interpretation of Section 253(a), County of San Diego, 543
F.3d at 548, the cited precedent applies that presumption where “the State regulates in an area where there is no
history of significant federal presence.” Air Conditioning & Refrigeration Inst. v. Energy Res. Conservation & Dev.
Comm’n, 410 F.3d 492, 496 (9th Cir. 2005). Whatever the applicability of such a presumption more generally, there
is a substantial history of federal involvement here, particularly insofar as interstate telecommunications services
and wireless services are implicated. See, e.g., Ting v. AT&T, 319 F.3d 1126, 1136 (9th Cir. 2003); Ivy
Broadcasting Co. v. Am. Tel. & Tel. Co., 391 F.2d 486, 490–92 (2d Cir. 1968); 47 U.S.C., Title III.
281 See, e.g., California PUC Comments at 11; Verizon Comments at 31-33; CTIA Reply at 22-23; WIA Reply at 16-
18. We thus reject claims to the contrary. See, e.g., City of New York Comments at 8; Virginia Joint Commenters
Comments, Exh. A at 41-44; City of New York Reply at 1-2; NATOA Reply at 9-10; Smart Communities Reply at
34. Indeed, the Fifth Circuit upheld just such an exercise of authority with respect to the interpretation of Section
332(c)(7) in the past. See generally City of Arlington, 668 F.3d at 249-54. While some commenters assert that the
questions addressed by the Commission in the order underlying the Fifth Circuit’s City of Arlington decision are
somehow more straightforward than our interpretations here, they do not meaningfully explain why that is the case,
instead seemingly contemplating that the Commission would address a wider, more general range of circumstances
than we actually do here. See, e.g., Virginia Joint Commenters Comments, Exh. A at 44-45.
282 Consequently, we reject claims that relying on our general interpretative authority to interpret Section 253 and
Section 332(c)(7) would render any provisions of the Act mere surplusage, see, e.g., Smart Communities Reply at
34-35, or would somehow “usurp the role of the judiciary.” Washington State Cities Reply at 14. We likewise
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100.Although some commenters contend in general terms that differences in judicial
approaches to Section 253 are limited and thus there is little need for Commission guidance,283 the
interpretations we offer in this Declaratory Ruling are intended to help address certain specific scenarios
that have caused significant uncertainty and legal controversy, irrespective of the degree to which this
uncertainty has been reflected in court decisions. We also reject claims that a Supreme Court brief joined
by the Commission demonstrates that there is no need for the interpretations in this Declaratory Ruling.284
To the contrary, that brief observed that some potential interpretations of certain court decisions “would
create a serious conflict with the Commission’s understanding of Section 253(a), and [] would undermine
the federal competition policies that the provision seeks to advance.”285 The brief also noted that, if
warranted, “the Commission can restore uniformity by issuing authoritative rulings on the application of
Section 253(a) to particular types of state and local requirements.”286 Rather than cutting against the need
for, or desirability of, the interpretations we offer in this Declaratory Ruling, the brief instead presaged
them.287
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reject other arguments insofar as they purport to treat Section 253(d)’s provision for preemption as more specific
than, or otherwise controlling over, other Communications Act provisions enabling the Commission to
authoritatively interpret the Act. See, e.g., Virginia Joint Commenters Comments, Exh. A at 43. To the contrary,
“[t]he specific controls but only within its self-described scope.” Nat’l Cable & Telecomm. Ass’n v. Gulf Power,
534 U.S. 327, 336 (2002). In addition, concerns that the Commission might interpret Section 253(c) in a manner
that would render it a nullity or in a manner divorced from relevant context—things we do not do here—bear on the
reasonableness of a given interpretation and not on the existence of interpretive authority in the first instance, as
some contend. See, e.g., Virginia Joint Commenters Comments, Exh. A at 43-44.
283 See, e.g., City of San Antonio et al. Comments, Exh. B at 26-27; Fairfax County Comments at 20; Smart
Communities Comments at 61. Some commenters assert that there are reasonable, material reliance interests arising
from past court interpretations that would counsel against our interpretations in this order because “localities and
providers have adjusted to the tests within their circuits” and “reflected those standards in local law.” Smart
Communities Comments, WT Docket No. 16-141 at 67 (filed Mar. 8, 2017) cited in City of Austin Comments at 2
n.3. Arguments such as these, however, merely underscore the regulatory patchwork that inhibits the development
of a robust nationwide telecommunications and private wireless service as envisioned by Congress. By offering
interpretations of the relevant statutes here, we intend, thereby, to eliminate potential regional regulatory disparities
flowing from differing interpretations of those provisions. See, e.g., WIA Reply at 19-20.
284 See City of San Antonio et al. Comments, Exh. B at 27 (citing Brief for the United States as Amicus Curiae,
Level 3 Commc’ns v. City of St. Louis, Nos. 08-626, 08-759 at 9, 11 (filed May 28, 2009) (Amicus Brief)).
285 Amicus Brief at 12-13. The brief also identified other specific areas of concern with those cases. See, e.g., id. at
13 (“The court appears to have accorded inordinate significance to Level 3’s inability to ‘state with specificity what
additional services it might have provided’ if it were not required to pay St. Louis’s license fee. That specific failure
of proof—which the court of appeals seems to have regarded as emblematic of broader evidentiary deficiencies in
Level 3’s case—is not central to a proper Section 253(a) inquiry.” (citation omitted)); id. at 14 (“Portions of the
Ninth Circuit’s decision, moreover, could be read to suggest that a Section 253 plaintiff must show effective
preclusion—rather than simply material interference—in order to prevail. As discussed above, limiting the
preemptive reach of Section 253(a) to legal requirements that completely preclude entry would frustrate the policy
of open competition that Section 253 was intended to promote.” (citation omitted)).
286 Id. at 18.
287 Contrary to some claims, the need for these clarifications also is not undercut by prior determinations that
advanced telecommunications capability is being deployed in a reasonable and timely fashion to all Americans. See,
e.g., Letter from Nancy Werner, General Counsel, NATOA, to Marlene H. Dortch, Secretary, FCC, WT Docket No.
17-79, at 2 (filed June 21, 2018) (NATOA June 21, 2018 Ex Parte Letter) (citing Inquiry Concerning Deployment of
Advanced Telecommunications Capability to All Americans in a Reasonable and Timely Fashion, 33 FCC Rcd
1660, 1707-08, para. 94 (2018) (2018 Broadband Deployment Report)). These commenters do not explain why the
distinct standard for evaluating deployment of advanced telecommunications capability, see 2018 Broadband
Deployment Report, 33 FCC Rcd at 1663-76, paras. 9-39, should bear on the application of Section 253 or Section
332(c)(7). Further, as the Commission itself observed, “[a] finding that deployment of advanced
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101.Our interpretations of Sections 253 and Section 332(c)(7) are likewise not at odds with
the Tenth Amendment and constitutional precedent, as some commenters contend.288 In particular, our
interpretations do not directly “compel the states to administer federal regulatory programs or pass
legislation.”289 The outcome of violations of Section 253(a) or Section 332(c)(7)(B) of the Act are no
more than a consequence of “the limits Congress already imposed on State and local governments”
through its enactment of Section 332(c)(7).290
102.We also reject the suggestion that the limits Section 253 places on state and local ROW
fees and management will unconstitutionally interfere with the relationship between a state and its
political subdivisions.291 As relevant to our interpretations here, it is not clear, at first blush, that such
concerns would be implicated.292 Because state and local legal requirements can be written and structured
in myriad ways, and challenges to such state or local activities could be framed in broad or narrow terms,
we decline to resolve such questions here, divorced from any specific context.
IV.THIRD REPORT AND ORDER
103.In this Third Report and Order, we address the application of shot clocks to state and
local review of wireless infrastructure deployments. We do so by taking action in three main areas. First,
we adopt a new set of shot clocks tailored to support the deployment Small Wireless Facilities. Second,
we adopt a specific remedy that applies to violations of these new Small Wireless Facility shot clocks,
which we expect will operate to significantly reduce the need for litigation over missed shot clocks.
Third, we clarify a number of issues that are relevant to all of the FCC’s shot clocks, including the types
of authorizations subject to these time periods.
(Continued from previous page)
telecommunications capability is reasonable and timely in no way suggests that we should let up in our efforts to
foster greater deployment.” Id. at 1664, para. 13.
288 See, e.g., City of San Antonio et al. Comments, Exh. A at 28; Smart Communities Comments at 77-78; Smart
Communities Reply at 48-50; NATOA June 21, 2018 Ex Parte Letter at 3.
289 Montgomery County, 811 F.3d at 128; see Printz v. United States, 521 U.S. 898 (1997) (Printz); New York v.
United States, 505 U.S. 144 (1992) (New York). These provisions preempting state law thus do not “compel the
States to enact or administer a federal regulatory program,” Printz, 521 U.S. at 900, or “dictate what a state . . . may
or may not do.” Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1478 (2018) (Murphy).
290 2009 Declaratory Ruling, 24 FCC Rcd at 14002, para. 25. The Communications Act establishes its own
framework for oversight of wireless facility deployment—one that is largely deregulatory, see, e.g., Wireless
Infrastructure Second R&O, FCC 18-30, at para. 63; Implementation of Sections 3(n) and 332 of the
Communications Act, GN Docket No. 93-252, Second Report and Order, 9 FCC Rcd 1411, 1480-81, para. 182
(1994)—and it is reasonable to expect state and local governments electing to act in that area to do so only in a
manner consistent with the Act’s framework. See, e.g., Murphy, 138 S. Ct. at 1470-71, 1480. Thus, the application
of Section 253 and Section 332(c)(7)(B) is clearly distinguishable from the statute the Supreme Court struck down
in Murphy, which did not involve a preemption scheme but nonetheless prohibited state authorization of sports
gambling. Id. at 1481. The application here is also clearly distinguishable from the statute in Printz, which
mandated states to run background checks on handgun purchases, Printz, 521 U.S. at 904–05, and the statute in New
York, which required states to enact state laws that provide for the disposal of radioactive waste or else take title to
such waste. New York, 505 U.S. at 151–52.
291 See, e.g., City of New York Comments at 9-10; Smart Communities Comments at 78.; see also, e.g., Nixon v.
Mo. Mun. League, 541 U.S. 125, 134 (2004) (identifying Tenth Amendment issues with the application of Section
253 where that application would implicate “state or local governmental self-regulation (or regulation of political
inferiors)”).
292 For example, where a state or local law or other legal requirement simply sets forth particular fees to be paid, or
where the legal requirement at issue is simply an exercise of discretion that governing law grants the state or local
government, it is not clear that preemption would unconstitutionally interfere with the relationship between a state
and its political subdivisions.
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A.New Shot Clocks for Small Wireless Facility Deployments
104.In 2009, the Commission concluded that we should use shot clocks to define a
presumptive “reasonable period of time” beyond which state or local inaction on wireless infrastructure
siting applications would constitute a “failure to act” within the meaning of Section 332.293 We adopted a
90-day clock for reviewing collocation applications and a 150-day clock for reviewing siting applications
other than collocations. The record here suggests that our two existing Section 332 shot clocks have
increased the efficiency of deploying wireless infrastructure. Many localities already process wireless
siting applications in less time than required by those shot clocks, and a number of states have enacted
laws requiring that collocation applications be processed in 60 days or less.294 Some siting agencies
acknowledge that they have worked to gain efficiencies in processing siting applications and welcome the
addition of new shot clocks tailored to the deployment of small scale facilities.295 Given siting agencies’
increased experience with existing shot clocks, the greater need for rapid siting of Small Wireless
Facilities nationwide, and the lower burden siting of these facilities places on siting agencies in many
cases, we take this opportunity to update our approach to speed the deployment of Small Wireless
Facilities.296
1.Two New Section 332 Shot Clocks for Deployment of Small Wireless
Facilities
105.In this section, using authority confirmed in City of Arlington, we adopt two new Section
332 shot clocks for Small Wireless Facilities—60 days for review of an application for collocation of
Small Wireless Facilities using a preexisting structure and 90 days for review of an application for
attachment of Small Wireless Facilities using a new structure. These new Section 332 shot clocks
carefully balance the well-established authority that states and local authorities have over review of
wireless siting applications with the requirements of Section 332(c)(7)(ii) to exercise that authority
“within a reasonable period of time… taking into account the nature and scope of the request.”297 Further,
our decision is consistent with the BDAC’s Model Code for Municipalities’ recommended timeframes,
which utilize this same 60-day and 90-day framework for collocation of Small Wireless Facilities and
new structures298 and are similar to shot clocks enacted in state level small cell bills and the real world
293 2009 Declaratory Ruling, 24 FCC Rcd at 13994.
294 See infra para. 106.
295 Chicago Comments at 7 (“[T]he City has worked to achieve efficient processing times even for applications
where no federal deadline exists.”); New Orleans Comments at 3 (“City supports the concept proposed by the
Commission . . . to establish . . . more narrowly defined classes of deployments, with distinct reasonable times
frames for action within each class.”).
296 See LaWana Mayfield July 31, 2018 Ex Parte Letter at 2 (“However, getting this infrastructure out in a timely
manner can be a challenge that involves considerable time and financial resources. The solution is to streamline
relevant policies—allowing more modern rules for modern infrastructure.”); Letter from John Richard C. King,
House of Representatives, South Carolina, to the Hon. Brendan Carr, Commissioner, FCC, WT Docket No. 17-79,
at 1 (filed Aug. 27, 2018) (“A patchwork system of town-to-town, state-to-state rules slows the approval of small
cell installations and delays the deployment of 5G. We need a national framework with guardrails to streamline the
path forward to our wireless future”); Letter from Andy Thompson, State Representative, Ohio House District 95, to
Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79, at 1 (filed Aug. 24, 2018) (“In order for 5G to arrive as
quickly and as effectively as possible, relevant infrastructure regulations must be streamlined. It makes very little
sense for rules designed for 100-foot cell towers to govern the path to deployment for modern equipment called
small cells that can fit into a pizza box.”); Letter from Todd Nash, Wallowa County Board of Commissioners,
Oregon, to the Hon. Brendan Carr, Commissioner, FCC, WT Docket No. 17-79, at 2 (filed Sept. 10, 2018) (FCC
should streamline regulatory processes by, for example, tightening the deadlines for states and localities to approve
new network facilities).
297 47 U.S.C. § 332(c)(7)(ii).
298 The BDAC Model Municipal Code recommended, for certain types of facilities, shot clocks of 60 days for
collocations and 90 days for new constructions on applications for siting Small Wireless Facilities. BDAC Model
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experience of many municipalities which further supports the reasonableness of our approach.299 Our
actions will modernize the framework for wireless facility siting by taking into consideration that states
and localities should be able to address the siting of Small Wireless Facilities in a more expedited review
period than needed for larger facilities.300
106.We find compelling reasons to establish a new presumptively reasonable Section 332
shot clock of 60 days for collocations of Small Wireless Facilities on existing structures. The record
demonstrates the need for, and reasonableness of, expediting the siting review of these collocations.301
Notwithstanding the implementation of the current shot clocks, more streamlined procedures are both
reasonable and necessary to provide greater predictability for siting applications nationwide for the
deployment of Small Wireless Facilities. The two current Section 332 shot clocks do not reflect the
evolution of the application review process and evidence that localities can complete reviews more
quickly than was the case when the existing Section 332 shot clocks were adopted nine years ago. Since
2009, localities have gained significant experience processing wireless siting applications.302 Indeed,
many localities already process wireless siting applications in less than the required time303 and several
(Continued from previous page)
Municipal Code at §§ 2.2, 2.3, 3.2a(i)(B). Our approach utilizes the same timeframes set forth in the Model
Municipal Code, and we disagree with comments that it is inconsistent with or ignores the work of the BDAC.
GMA September 17 Ex Parte Letter at 4-5.
299 For instance, while the City of Chicago opposes the shot clocks adopted here, we note that the City has also
stated that, “[d]espite th[e] complex review process, involving many utilities and other entities, CDOT on average
processed small cell applications last year in 55 days.” Letter from Edward N. Siskel, Corp. Counsel, Dept. of Law,
City of Chicago, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79 et al., at 2 (filed Sept. 19, 2018).
300 Just like the shot clocks originally established in 2009—later affirmed by the Fifth Circuit and the Supreme
Court—the shot clocks framework in this Third Report and Order are no more than an interpretation of “the limits
Congress already imposed on State and local governments” through its enactment of Section 332(c)(7). 2009
Declaratory Ruling, 24 FCC Rcd at 14002, para. 25. See also City of Arlington, 668 F.3d at 259. As explained in
the 2009 Declaratory Ruling, the shot clocks derived from Section 332(c)(7) “will not preempt State or local
governments from reviewing applications for personal wireless service facilities placement, construction, or
modification,” and they “will continue to decide the outcome of personal wireless service facility siting applications
pursuant to the authority Congress reserved to them in Section 332(c)(7)(A).” 2009 Declaratory Ruling, 24 FCC
Rcd at 14002, para. 25.
301 CTIA Comments, WT Docket No. 16-421, at 33 (filed Mar. 8, 2017); Letter from Juan Huizar, City Manager of
the City of Pleasanton, TX, to the Hon. Brendan Carr, Commissioner, FCC, WT Docket No. 17-79, at 1 (filed June
4, 2018) (describing the firsthand benefit of small cells and noting that communications infrastructure is a critical
component of local growth); Letter from Sara Blackhurst, President, Action 22, to the Hon. Brendan Carr,
Commissioner, FCC, WT Docket No. 17-79, at 2 (filed May 18, 2018) (Action 22 Ex Parte )(“While we understand
the need for relevant federal rules and protections appropriate for larger wireless infrastructure, we feel these same
rules are not well-suited for smaller wireless facilities and risk slowing deployment in communities that need
connectivity now.”); Letter from Maurita Coley Flippin, President and CEO, MMTC, to the Hon. Ajit Pai,
Chairman, FCC, WT Docket No. 17-79 at 2 (filed Sept. 5, 2018) (encourages the Commission to remove
unnecessary barriers such as unreasonable delays so deployment can proceed expeditiously); Fred A. Lamphere
Sept. 11, 2018 Ex Parte Letter at 1 (It is critical that the Commission continue to remove barriers to building new
wireless infrastructure such as by setting reasonable timelines to review applications).
302 T-Mobile Comments at 20; Crown Castle Reply at 5 (noting that the adoption of similar time frames by several
states for small cell siting review confirms their reasonableness, and the Commission should apply these deadlines
on a nationwide basis).
303 Alaska Dep’t of Natural Resources Comments at 2 (“[W]e are currently meeting or exceeding the proposed
timeframe of the ‘Shot Clock.’”); see also CTIA Aug. 30, 2018 Ex Parte Letter at 5 (“Eleven states—Delaware,
Florida, Indiana, Kansas, Missouri, North Carolina, Rhode Island, Tennessee, Texas, Utah, and Virginia—recently
adopted small cell legislation that includes 45-day or 60-day shot clocks for small cell collocations.”); Jason R.
Saine Sept. 14, 2018 Ex Parte Letter.
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jurisdictions require by law that collocation applications be processed in 60 days or less.304 With the
passage of time, siting agencies have become more efficient in processing siting applications.305 These
facts demonstrate that a shorter, 60-day shot clock for processing collocation applications for Small
Wireless Facilities is reasonable.306
107.As we found in 2009, collocation applications are generally easier to process than new
construction because the community impact is likely to be smaller.307 In particular, the addition of an
antenna to an existing tower or other structure is unlikely to have a significant visual impact on the
community. 308 The size of Small Wireless Facilities poses little or no risk of adverse effects on the
environment or historic preservation.309 Indeed, many jurisdictions do not require public hearings for
approval of such attachments, underscoring their belief that such attachments do not implicate complex
issues requiring a more searching review.310
108.Further, we find no reason to believe that applying a 60-day time frame for Small
Wireless Facility collocations under Section 332 creates confusion with collocations that fall within the
scope of “eligible facilities requests” under Section 6409 of the Spectrum Act, which are also subject to a
60-day review.311 The type of facilities at issue here are distinctly different and the definition of a Small
Wireless Facility is clear. Further, siting authorities are required to process Section 6409 applications
involving the swap out of certain equipment in 60 days, and we see no meaningful difference in
processing these applications than processing Section 332 collocation applications in 60 days. There is
304 North Carolina requires its local governments to decide collocation applications within 45 days of submission of
a complete application. N.C. Gen. Stat. Ann. § 153A-349.53(a2). The same 45-day shot clock applies to certain
collocations in Florida. Fla. Stat. Ann. § 365.172(13)(a)(1), (d)(1). In New Hampshire, applications for collocation
or modification of wireless facilities generally have to be decided within 45 days (subject to some exceptions under
certain circumstances) or the application is deemed approved. N.H. Rev. Stat. Ann. § 12-K:10. Wisconsin requires
local governments to decide within 45 days of receiving complete applications for collocation on existing support
structure that does not involve substantial modification, or the application will be deemed approved, unless the local
government and applicant agree to an extension. Wis. Stat. Ann. § 66.0404(3)(c). Local governments in Indiana
have 45 days to decide complete collocation applications, unless an extension is allowed under the statute. Ind.
Code Ann. § 8-1-32.3-22. Minnesota requires any zoning application, including both collocation and non-
collocation applications, to be processed in 60 days. Minn. Stat. § 15.99, subd. 2(a). By not requiring hearings,
collocation applications in these states can be processed in a timely manner.
305 Chicago Comments at 7 (“[T]he City has worked to achieve efficient processing times even for applications
where no federal deadline exists.”); New Orleans Comments at 3 (“City supports the concept proposed by the
Commission . . . to establish . . . more narrowly defined classes of deployments, with distinct reasonable times
frames for action within each class.”); Action 22 Ex Parte at 2 (“While we understand the need for relevant federal
rules and protections appropriate for larger wireless infrastructure, we feel these same rules are not well-suited for
smaller wireless facilities and risk slowing deployment in communities that need connectivity now.”).
306 CCA Comments at 11-14; T-Mobile Comments at 20; Incompas Reply at 9; Sprint Comments at 45-47 (noting
that Florida, Indiana, Kansas, Texas and Virginia all have passed small cell legislation that requires small cell
application attachments to be acted upon in 60 days); T-Mobile Comments at 18 (arguing that the Commission
should accelerate the Section 332 shot clocks for all sites to 60 days for collocations, including small cells).
307 2009 Declaratory Ruling, 24 FCC Rcd at 14012, para. 40.
308 TIA Comments at 4.
309 Wireless Infrastructure Second R&O, FCC 18-30 at para. 42 (citing Nationwide Programmatic Agreement for the
Collocation of Wireless Antennas, 47 CFR Part 1, Appx. B, § VI (Collocation NPA)); see also 47 CFR §
1.1306(c)(1) (excluding certain wireless facilities from NEPA review).
310 2009 Declaratory Ruling, 24 FCC Rcd at 14012, para. 46.
311 DESHPO Comments at 2 (“opposes the application of separate time limits for review of facility deployments not
covered by the Spectrum Act, as it would lead to confusion within the process for all parties involved
(Applicants/Carrier, Consultants, SHPO)”).
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no reason to apply different time periods (60 vs. 90 days) to what is essentially the same review:
modification of an existing structure to accommodate new equipment. 312 Finally, adopting a 60-day
shot clock will encourage service providers to collocate rather than opting to build new siting structures
which has numerous advantages.313
109.Some municipalities argue that smaller facilities are neither objectively “small” nor less
obtrusive than larger facilities.314 Others contend that shorter shot clocks for a broad category of
“smaller” facilities are too restrictive, 315 and would fail to take into account the varied and unique climate,
historic architecture, infrastructure, and volume of siting applications that municipalities face.316 We take
those considerations into account by clearly defining the category of “Small Wireless Facility” in our
rules and allowing siting agencies to rebut the presumptive reasonableness of the shot clocks based upon
the actual circumstances they face. For similar reasons, we disagree that establishing shorter shot clocks
for smaller facilities would impair states’ and localities’ authority to regulate local rights of way.317
110.While some commenters argue that additional shot clock classifications would make the
siting process needlessly more complex without any proven benefits,318 any additional administrative
burden from increasing the number of Section 332 shot clocks from two to four is outweighed by the
likely significant benefit of regulatory certainty and the resulting streamlined deployment process.319 We
312 CTIA Aug. 30, 2018 Ex Parte Letter at 6.
313 Letter from Richard Rossi, Senior Vice President, General Counsel, American Tower, to Marlene Dortch,
Secretary, FCC, WT Docket No. 17-79, at 3 (filed Aug. 10, 2018) (“The reason to encourage collocation is
straightforward, it is faster, cheaper, more environmentally sound, and less disruptive than building new
structures.”).
314 League of Az Cities and Towns Comments at 13, 29 (arguing that many small cells or micro cells can be taller
and more visually intrusive than macro cells).
315 See, e.g., Letter from Geoffrey C. Beckwith, Executive Director & CEO, Mass. Municipal. Assoc., Boston, MA,
to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79, (filed Sept. 11, 2018) (Geoffrey C. Beckwith Sept.
11, 2018 Ex Parte Letter); Mike Posey Sept. 11, 2018 Ex Parte Letter; Letter from John A. Barbish, Mayor, City of
Wickliffe, OH, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79 (filed Sept. 13, 2018); Letter from
Pauline Russo Cutter, Mayor, City of San Leandro, CA, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-
79 (filed Sept. 12, 2018); Letter from Ed Waage, Mayor, City of Pismo Beach, CA, to Marlene H. Dortch, Secretary,
FCC, WT Docket No. 17-79, at 1 (filed Sept. 18, 2018); Letter from Scott A. Hancock, Executive Director, MML,
to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79, at 2 (filed Sept. 18, 2018); Letter from Leon
Towarnicki, City Manager, Martinsville, VA, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79, at 1
(filed Sept. 18, 2018); Letter from Thomas Aujero Small, Mayor, City of Culver City, CA, to Marlene H. Dortch,
Secretary, FCC, WT Docket No. 17-79, at 1 (filed Sept. 18, 2018).
316 Philadelphia Comments at 4-5 (arguing that shorter shot clocks should not be implemented because “cities are
already resource constrained and any further attempt to further limit the current time periods for review of
applications will seriously and adversely affect public safety as well as diminish the proper role, under our federalist
system, of state and local governments in regulating local rights of way”); Smart Communities Comments, Docket
16-421, at 13 (filed Mar. 8, 2017) (included by reference by Austin’s Comments); Alaska Dept. of Trans. Comments
at 2. See, e.g., TX Hist. Comm. Comments at 2 (current shot clocks are appropriate and that further shortening these
shot clocks is not warranted); Arlington, TX Comments at 2; Letter from William Tomko, Mayor of Chagrin Falls,
OH, to Marlene Dortch, Secretary, FCC, WT Docket No. 17-79 et al., at 1-2 (filed Sept. 17, 2018); Nina Beety Sept.
17, 2018 Ex Parte Letter; Georgia Municipal Association Sept. 17, 2018 Ex Parte Letter at 4.
317 League of Az Cities and Towns et al. Comments at 26-27, 29-35; Cities of San Antonio et. al Comments at 8;
Philadelphia Comments at 4.
318 T-Mobile Comments at 22; Florida Coalition Comments at 9 (creating new shot clocks would result in “too many
‘shot clocks’ and both the industry and local governments would be confused as to which shot clock applied to what
application”).
319 While several parties proposed additional shot clock categories, we believe that the any benefit from a closer
tailoring of categories to circumstances is not outweighed by the administrative burden on siting authorities and
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also reject the assertion that revising the period of time to review siting decisions would amount to a
nationwide land use code for wireless siting.320 Our approach is consistent with the Model Code for
Municipalities that recognizes that the shot clocks that we are adopting for the review of Small Wireless
Facility deployment applications correctly balance the needs of local siting agencies and wireless service
providers.321 Our balance of the relevant considerations is informed by our experience with the
previously adopted shot clocks, the record in this proceeding, and our predictive judgment about the
effectiveness of actions taken here to promote the provision of personal wireless services.
111.For similar reasons as set forth above, we also find it reasonable to establish a new 90 day
Section 332 shot clock for new construction of Small Wireless Facilities. Ninety days is a presumptively
reasonable period of time for localities to review such siting applications. Small Wireless Facilities have
far less visual and other impact than the facilities we considered in 2009, and should accordingly require
less time to review.322 Indeed, some state and local governments have already adopted 60-day maximum
reasonable periods of time for review of all small cell siting applications, and, even in the absence of such
maximum requirements, several are already reviewing and approving small-cell siting applications within
60 days or less after filing.323 Numerous industry commenters advocated a 90-day shot clock for all non-
collocation deployments. 324 Based on this record, we find it reasonable to conclude that review of an
application to deploy a Small Wireless Facility using a new structure warrants more review time than a
mere collocation, but less than the construction of a macro tower.325 For the reasons explained below, we
(Continued from previous page)
providers to manage these categories. See TX Hist. Comm. Comments at 2 (stating that it “could support a shorter
review period for new structures less than fifty (50) feet tall, or where structures are located within or adjacent to
existing utility rights-of-way (but not transportation rights-of-way) with existing utility structures taller than the
proposed telecommunications structure”); Georgia Dept. of Trans. Comments at 2 (stating that time frames based on
the zoning area are reasonable).
320 Cities of San Antonio et. al Comments, Exh. A at 17-18. In the same vein, the Florida Department of
Transportation contends that “[p]ermit review times should comply with state statutes,” especially if the industry
insists on being treated similarly as other utilities. AASHTO Comments, Attach. at 13 (Florida Dept. of Trans.
Comments); see also Alaska Dept. of Trans. Comments at 2; TX Dept. of Trans. Comments at 2 (explaining that
variations in topography, weather, government interests, and state and local political structure counsel against
standardized nationwide shot clocks). The Maryland Department of Transportation is concerned about the shortened
shot clocks proposed because they would conflict with a Maryland law that requires a 90-day comment period in
considering wireless siting applications and because certain applications can be complex and necessitate longer
review periods. AASHTO Comments, Attach. at 40 (MD Dept. of Trans. Comments).
321 BDAC Model Municipal Code at § 3.2a(i)(B).
322 CTIA Comments, Attach. 1 at 38.
323 T-Mobile Comments at 19-20 (stating that some states already have adopted more expedited time frames to lower
siting barriers and speed deployment, which demonstrates the reasonableness of the proposed 60-day and 90-day
revised shot clocks); Incompas Reply at 9 (stating that there is no basis for differing time-periods for similarly-
situated small cell installation requests, and the lack of harmonization could discourage the use of a more efficient
infrastructure); CCA Comments at 14 n.52 (citing CCA Streamlining Reply at 7-8 that in Houston, Texas, the
review process for small cell deployments “usually takes 2 weeks, but no more than 30 days to process and complete
the site review. In Kenton County, Kentucky, the maximum time permitted to act upon new facility siting requests
is 60 days. Louisville, Kentucky generally processes small cell siting requests within 30 days, and Matthews, North
Carolina generally processes wireless siting applications within 10 days”).
324 CTIA Reply at 3 (stating that the Commission should shorten the shot clocks to 90 days for new facilities); CTIA
Comments at 11-12 (asserting that the existing 150-day review period for new wireless sites should be shortened to
90 days); Crown Castle Comments at 29 (stating that a 90-day shot clock for new facilities is appropriate for macro
cells and small cells alike, to the extent such applications require review under Section 332 at all); ExteNet
Comments at 8 (asserting that the Commission should accelerate the shot clock for all other non-collocation
applications, including those for new DNS poles, from 150 days to 90 days); WIA Reply at 2.
325 CCUA argues that the new shot clocks would force siting authorities to deny applications when they find that
applications are incomplete. Letter from Kenneth S. Fellman, Counsel, CCUA, to Marlene H. Dortch, Secretary,
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also specify today a provision that will initially reset these two new shot clocks in the event that a locality
receives a materially incomplete application.
112.Finally, we note that our 60- and 90-day approach is similar to that in pending legislation
that has bipartisan congressional support, and is consistent with the Model Code for Municipalities.
Specifically, the draft STREAMLINE Small Cell Deployment Act, would apply a 60-day shot clock to
collocation of small personal wireless service facilities and a 90-day shot clock to any other action
relating to small personal wireless service facilities.326 Further, the Model Code for Municipalities
recommended by the FCC’s Broadband Deployment Advisory Committee also utilizes this same 60-day
and 90-day framework for collocation of Small Wireless Facilities and new structures.327
2.Batched Applications for Small Wireless Facilities
113.Given the way in which Small Wireless Facilities are likely to be deployed, in large
numbers as part of a system meant to cover a particular area, we anticipate that some applicants will
submit “batched” applications: multiple separate applications filed at the same time, each for one or more
sites or a single application covering multiple sites.328 In the Wireless Infrastructure NPRM/NOI, the
Commission asked whether batched applications should be subject to either longer or shorter shot clocks
than would apply if each component of the batch were submitted separately.329 Industry commenters
contend that the shot clock applicable to a batch or a class of applications should be no longer than that
applicable to an individual application of the same class.330 On the other hand, several commenters,
contend that batched applications have often been proposed in historic districts and historic buildings
(areas that require a more complex review process), and given the complexities associated with reviews of
that type, they urge the Commission not to apply shorter shot clocks to batched applications.331 Some
localities also argue that a single, national shot clock for batched applications would fail to account for
unique local circumstances.332
114.We see no reason why the shot clocks for batched applications to deploy Small Wireless
Facilities should be longer than those that apply to individual applications because, in many cases, the
batching of such applications has advantages in terms of administrative efficiency that could actually
(Continued from previous page)
FCC, WT Docket No. 17-79 et al., at 3 (filed Sept. 18, 2018) (Kenneth S. Fellman Sept. 18, 2018 Ex Parte Letter).
We disagree that this would be the outcome in such an instance because, as explained below, siting authorities can toll
the shot clocks upon a finding of incompleteness.
326 STREAMLINE Small Cell Deployment Act, S. 3157, 115th Cong. (2018).
327 BDAC Model Municipal Code at § 3.2a(i)(B),
328 We define either scenario as “batching” for the purpose of our discussion here.
329 Wireless Infrastructure NPRM/NOI, 32 FCC Rcd at 3338, para. 18; see also Mobilitie PN, 31 FCC Rcd at 13371.
330 See, e.g., Extenet Comments at 10-11 (“The Commission should not adopt a longer shot clock for batches of
multiple DNS applications.”); Sprint Comments, Docket No. 16-421, at 43-44 (filed Mar. 8, 2017); CCA Comments
at 16 (“The FCC also should ensure that batch applications are not saddled with a longer shot clock than those
afforded to individual siting applications . . . .”); Verizon Comments at 42 (“The same 60-day shot clock should
apply to applications proposing multiple facilities—so called ‘batch applications.’”); Crown Castle Comments at 30
(“Crown Castle also does not support altering the deadline for ‘batches’ of requests.”); T-Mobile Comments at 22-
23 (“[A]n application that batches together similar numbers of small cells of like character and in proximity to one
another should also be able to be reviewed within the same time frame . . . .”); CTIA Comments at 17 (“There is,
however, no need for the Commission to establish different shot clocks for batch processing of similar facilities . . .
.”).
331 San Antonio Comments, Exh. A at 17, 19-20; see also Smart Communities Comments, Docket No. 16-421, at 47
(filed Mar. 8, 2017) (referenced by Austin’s Comments).
332 Cities of San Antonio et al. Comments, Exh. A at 17, 19-20; see also Smart Communities Comments, Docket 16-
421, at 47 (filed Mar. 8, 2017) (referenced by Austin’s Comments).
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make review easier.333 Our decision flows from our current Section 332 shot clock policy. Under our
two existing Section 332 shot clocks, if an applicant files multiple siting applications on the same day for
the same type of facilities, each application is subject to the same number of review days by the siting
agency.334 These multiple siting applications are equivalent to a batched application and therefore the
shot clocks for batching should follow the same rules as if the applications were filed separately.
Accordingly, when applications to deploy Small Wireless Facilities are filed in batches, the shot clock
that applies to the batch is the same one that would apply had the applicant submitted individual
applications. Should an applicant file a single application for a batch that includes both collocated and
new construction of Small Wireless Facilities, the longer 90-day shot clock will apply, to ensure that the
siting authority has adequate time to review the new construction sites.
115.We recognize the concerns raised by parties arguing for a longer time period for at least
some batched applications, but conclude that a separate rule is not necessary to address these concerns.
Under our approach, in extraordinary cases, a siting authority, as discussed below, can rebut the
presumption of reasonableness of the applicable shot clock period where a batch application causes
legitimate overload on the siting authority’s resources. 335 Thus, contrary to some localities’ arguments,336
our approach provides for a certain degree of flexibility to account for exceptional circumstances. In
addition, consistent with, and for the same reasons as our conclusion below that Section 332 does not
permit states and localities to prohibit applicants from requesting multiple types of approvals
simultaneously,337 we find that Section 332(c)(7)(B)(ii) similarly does not allow states and localities to
refuse to accept batches of applications to deploy Small Wireless Facilities.
B.New Remedy for Violations of the Small Wireless Facilities Shot Clocks
116.In adopting these new shot clocks for Small Wireless Facility applications, we also
provide an additional remedy that we expect will substantially reduce the likelihood that applicants will
need to pursue additional and costly relief in court at the expiration of those time periods.
117.At the outset, and for the reasons the Commission articulated when it adopted the 2009
shot clocks, we determine that the failure of a state or local government to issue a decision on a Small
Wireless Facility siting application within the presumptively reasonable time periods above will
constitute a “failure to act” within the meaning of Section 332(c)(7)(B)(v). Therefore, a provider is, at a
minimum, entitled to the same process and remedies available for a failure to act within the new Small
Wireless Facility shot clocks as they have been under the FCC’s 2009 shot clocks. But we also add an
additional remedy for our new Small Wireless Facility shot clocks.
118.State or local inaction by the end of the Small Wireless Facility shot clock will function
not only as a Section 332(c)(7)(B)(v) failure to act but also amount to a presumptive prohibition on the
provision of personal wireless services within the meaning of Section 332(c)(7)(B)(i)(II). Accordingly,
we would expect the state or local government to issue all necessary permits without further delay. In
cases where such action is not taken, we assume, for the reasons discussed below, that the applicant
333 See, e.g., Sprint Comments, Docket No. 16-421, at 43-44 (filed Mar. 8, 2017); Verizon Comments at 42; CTIA
Comments at 17.
334 WIA Comments at 27 (“Merely bundling similar sites into a single batched application should not provide a
locality with more time to review a single batched application than to process the same applications if submitted
individually.”).
335 See infra paras. 117, 119. See Letter from Nina Beety, to Marlene Dortch, Secretary, FCC, WT Docket No. 17-
79 (filed Sept. 17, 2018); Letter from Dave Ruller, City Manager, City of Kent, OH, to Marlene H. Dortch,
Secretary, FCC, WT Docket No. 17-79 at 2 (filed Sept. 18, 2018).
336 Cities of San Antonio et al. Comments, Exh. A at 17, 19-20; see also Smart Communities Comments, Docket 16-
421, at 47 (filed Mar. 8, 2017) (referenced by Austin’s Comments).
337 See infra para. 144.
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would have a straightforward case for obtaining expedited relief in court.338
119.As discussed in the Declaratory Ruling, a regulation under Section 332(c)(7)(B)(i)(II)
constitutes an effective prohibition if it materially limits or inhibits the ability of any competitor or
potential competitor to compete in a fair and balanced legal and regulatory environment.339 Missing shot
clock deadlines would thus presumptively have the effect of unlawfully prohibiting service in that such
failure to act can be expected to materially limit or inhibit the introduction of new services or the
improvement of existing services.340 Thus, when a siting authority misses the applicable shot clock
deadline, the applicant may commence suit in a court of competent jurisdiction alleging a violation of
Section 332(c)(7)(B)(i)(II), in addition to a violation of Section 332(c)(7)(B)(ii), as discussed above. The
siting authority then will have an opportunity to rebut the presumption of effective prohibition by
demonstrating that the failure to act was reasonable under the circumstances and, therefore, did not
materially limit or inhibit the applicant from introducing new services or improving existing services.
120.Given the seriousness of failure to act within a reasonable period of time, we expect, as
noted above, siting authorities to issue without any further delay all necessary authorizations when
notified by the applicant that they have missed the shot clock deadline, absent extraordinary
circumstances. Where the siting authority nevertheless fails to issue all necessary authorizations and
litigation is commenced based on violations of Sections 332(c)(7)(B)(i)(II) and/or 332(c)(7)(B)(ii), we
expect that applicants and other aggrieved parties will likely pursue equitable judicial remedies.341 Given
the relatively low burden on state and local authorities of simply acting—one way or the other—within
the Small Wireless Facility shot clocks, we think that applicants would have a relatively low hurdle to
clear in establishing a right to expedited judicial relief. Indeed, for violations of Section 332(c)(7)(B),
courts commonly have based the decision whether to award preliminary and permanent injunctive relief
on several factors. As courts have concluded, preliminary and permanent injunctions fulfill
Congressional intent that action on applications be timely and that courts consider violations of Section
332(c)(7)(B) on an expedited basis.342 In addition, courts have observed that “[a]lthough Congress in the
Telecommunications Act left intact some of local zoning boards’ authority under state law,” they should
not be owed deference on issues relating to Section 332(c)(7)(B)(ii), meaning that “in the majority of
cases the proper remedy for a zoning board decision that violates the Act will be an order. . . instructing
the board to authorize construction.”343 Such relief also is supported where few or no issues remain to be
decided, and those that remain can be addressed by a court.344
121.Consistent with those sensible considerations reflected in prior precedent, we expect that
338 Where we discuss litigation here, we refer, for convenience, to “the applicant” or the like, since that is normally
the party that pursues such litigation. But we reiterate that under the Act, “[a]ny person adversely affected by” the
siting authority’s failure to act could pursue such litigation. 47 U.S.C. § 332(c)(7)(B)(v).
339 See supra paras. 34-42.
340 Id.
341 See, e.g., 2014 Wireless Infrastructure Order, 29 FCC Rcd at 12978, para. 284.
342 See, e.g., Green Mountain Realty Corp. v. Leonard, 750 F.3d 30, 41 (1st Cir. 2014) (addressing claimed violation
of Section 332(c)(7)(B)(i)(II) of the Act); Nat’l Tower, LLC v. Plainville Zoning Bd. of Appeals, 297 F.3d 14, 21-22
(1st Cir. 2002) (Nat’l Tower) (same); Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 497 (2d Cir. 1999)
(addressing violation of Section 332(c)(7)(B)(v) of the Act); AT&T Mobility Servs., LLC v. Vill. of Corrales, 127 F.
Supp. 3d 1169, 1175-76 (D.N.M. 2015) (addressing violation of Section 332(c)(7)(B)(i)(II)); Bell Atl. Mobile of
Rochester v. Town of Irondequoit, 848 F. Supp. 2d 391, 403 (W.D.N.Y. 2012) (addressing violation of Section
332(c)(7)(B)(ii)); New Cingular Wireless PCS, LLC v. City of Manchester, 2014 WL 79932, *8 (D.N.H. Feb. 28,
2014) (addressing violation of Section 332(c)(7)(B)(i)(II)).
343 See, e.g., Nat’l Tower, 297 F.3d at 21-22; AT&T Mobility, 127 F. Supp. 3d at 1176.
344 See, e.g., Green Mountain Realty, 750 F.3d at 41-42; Nat’l Tower, 297 F.3d at 24-25; Cellular Tel. Co., 166 F.3d
at 497; Bell Atl. Mobile, 848 F. Supp. 2d at 403; New Cingular Wireless PCS, 2014 WL 79932, *8.
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courts will typically find expedited and preliminary and permanent injunctive relief warranted for
violations of Sections 332(c)(7)(B)(i)(II) and 332(c)(7)(B)(ii) of the Act when addressing the
circumstances discussed in this Order. Prior findings that preliminary and permanent injunctive relief
best advances Congress’s intent in assuring speedy resolution of issues encompassed by Section
332(c)(7)(B) appear equally true in the case of deployments of Small Wireless Facilities covered by our
interpretation of Section 332(c)(7)(B)(ii) in this Third Report and Order.345 Although some courts, in
deciding whether an injunction is the appropriate form of relief, have considered whether a siting
authority’s delay resulted from bad faith or involved other abusive conduct,346 we do not read the trend in
court precedent overall to treat such considerations as more than relevant (as opposed to indispensable) to
an injunction. We believe that this approach is sensible because guarding against barriers to the
deployment of personal wireless facilities not only advances the goal of Section 332(c)(7)(B) but also
policies set out elsewhere in the Communications Act and 1996 Act, as the Commission recently has
recognized in the case of Small Wireless Facilities.347 This is so whether or not these barriers stem from
bad faith. Nor do we anticipate that there would be unresolved issues implicating the siting authority’s
expertise and therefore requiring remand in most instances.
122.In light of the more detailed interpretations that we adopt here regarding reasonable time
frames for siting authority action on specific categories of requests—including guidance regarding
circumstances in which longer time frames nonetheless can be reasonable—we expect that litigation
generally will involve issues that can be resolved entirely by the relevant court. Thus, as the Commission
has stated in the past, “in the case of a failure to act within the reasonable time frames set forth in our
rules, and absent some compelling need for additional time to review the application, we believe that it
would also be appropriate for the courts to treat such circumstances as significant factors weighing in
favor of [injunctive] relief.”348 We therefore caution those involved in potential future disputes in this
area against placing too much weight on the Commission’s recognition that a siting authority’s failure to
act within the associated timeline might not always result in a preliminary or permanent injunction under
the Section 332(c)(7)(B) framework while placing too little weight on the Commission’s recognition that
policies established by federal communications laws are advanced by streamlining the process for
deploying wireless facilities.
123.We anticipate that the traditional requirements for awarding preliminary or permanent
injunctive relief would likely be satisfied in most cases and in most jurisdictions where a violation of
332(c)(7)(B)(i)(II) and/or 332(c)(7)(B)(ii) is found. Typically, courts require movants to establish the
following elements of preliminary or permanent injunctive relief: (1) actual success on the merits for
permanent injunctive relief and likelihood of success on the merits for preliminary injunctive relief, (2)
continuing irreparable injury, (3) the absence of an adequate remedy at law, (4) the injury to the movant
outweighs whatever damage the proposed injunction may cause the opposing party, and (5) award of
injunctive relief would not be adverse to the public interest. 349 Actual success on the merits would be
345 See Green Mountain Realty Corp., 750 F.3d at 41 (reasoning that remand to the siting authority “would not be in
accordance with the text or spirit of the Telecommunications Act); Cellular Tel. Co, 166 F.3d at 497 (noting “that
injunctive relief best serves the TCA’s stated goal of expediting resolution” of cases brought under 47 U.S.C. §
332(c)(7)(B)(v)).
346 See, e.g., Nat’l Tower, 297 F.3d at 23; Up State Tower Co. v. Town of Kiantone, 718 Fed. Appx. 29, 32 (2d Cir.
2017) (Summary Order).
347 See, e.g., Wireless Infrastructure Second R&O, FCC 18-30 at para. 62; Wireless Infrastructure NPRM/NOI, 32
FCC Rcd at 3332, para. 5.
348 2014 Wireless Infrastructure Order, 29 FCC Rcd at 12978, para, 284.
349 Pub. Serv. Tel. Co. v. Georgia Pub. Serv. Comm’n, 755 F. Supp. 2d 1263, 1273 (N.D. Ga.), aff’d, 404 F. App’x
439 (11th Cir. 2010); Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1097 (11th Cir. 2004); Nat. Res. Def.
Council v. Texaco Ref. & Mktg., Inc., 906 F.2d 934, 941 (3d Cir. 1990); Randolph v. Rodgers, 170 F.3d 850, 857
(8th Cir. 1999); Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818, 822 (10th Cir. 2007); Walters v. Reno,
145 F.3d 1032, 1048 (9th Cir. 1998); K-Mart Corp. v. Oriental Plaza, Inc., 875 F.2d 907, 914–15 (1st Cir. 1989).
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demonstrated when an applicant prevails in its failure-to-act or effective prohibition case; likelihood of
success would be demonstrated because, as discussed, missing the shot clocks, depending on the type of
deployment, presumptively prohibits the provision of personal wireless services and/or violates Section
332(c)(7)(B)(ii)’s requirement to act within a reasonable period of time.350 Continuing irreparable injury
likely would be found because remand to the siting authority “would serve no useful purpose” and would
further delay the applicant’s ability to provide personal wireless service to the public in the area where
deployment is proposed, as some courts have previously determined.351 There also would be no adequate
remedy at law because applicants “have a federal statutory right to participate in a local [personal wireless
services] market free from municipally-imposed barriers to entry,” and money damages cannot directly
substitute for this right.352 The public interest and the balance of harms also would likely favor the award
of a preliminary or permanent injunction because the purpose of Section 332(c)(7) is to encourage the
rapid deployment of personal wireless facilities while preserving, within bounds, the authority of states
and localities to regulate the deployment of such facilities, and the public would benefit if further delays
in the deployment of such facilities—which a remand would certainly cause—are prevented.353 We also
expect that the harm to the siting authority would be minimal because the only right of which it would be
deprived by a preliminary or permanent injunction is the right to act on the siting application beyond a
reasonable time period,354 a right that “is not legally cognizable, because under [Sections
332(c)(7)(B)(i)(II) and 332(c)(7)(B)(ii)], the [siting authority] has no right to exercise this power.”355
Thus, in the context of Small Wireless Facilities, we expect that the most appropriate remedy in typical
cases involving a violation of Sections 332(c)(7)(B)(i)(II) and/or 332(c)(7)(B)(ii) is the award of
injunctive relief in the form of an order to issue all necessary authorizations.356
124.Our approach advances Section 332(c)(7)(B)(v)’s provision that certain siting disputes,
including those involving a siting authority’s failure to act, shall be heard and decided by a court of
competent jurisdiction on an expedited basis. The framework reflected in this Order will provide the
courts with substantive guiding principles in adjudicating Section 332(c)(7)(B)(v) cases, but it will not
dictate the result or the remedy appropriate for any particular case; the determination of those issues will
remain within the courts’ domain.357 This accords with the Fifth Circuit’s recognition in City of Arlington
(Continued from previous page)
Note that the standards for permanent injunctive relief differ in some respects among the circuits and the states. For
example, “most courts do not consider the public interest element in deciding whether to issue a permanent
injunction, though the Third Circuit has held otherwise.” Klay, 376 F.3d at 1097. Courts in the Second Circuit
consider only irreparable harm and success on the merits. Omnipoint Commc’ns, Inc. v. Vill. of Tarrytown Planning
Bd., 302 F. Supp. 2d 205, 225 (S.D.N.Y. 2004). The Third and Fifth Circuits have precedents holding that
irreparable harm is not an essential element of a permanent injunction. See Roe v. Operation Rescue, 919 F.2d 857,
873 n. 8 (3d Cir. 1990); Lewis v. S. S. Baune, 534 F.2d 1115, 1123–24 (5th Cir. 1976). For the sake of
completeness, our analysis discusses all of the elements that have been used in decided cases.
350 See New Jersey Payphone, 130 F. Supp. 2d at 640.
351 See Vill. of Tarrytown Planning Bd., 302 F. Supp. 2d at 225–26 (quoting Nextel Partners, Inc. v. Town of
Amherst, N.Y., 251 F. Supp. 2d 1187, 1201 (W.D.N.Y. 2003)); see Upstate Cellular Network v. City of Auburn, 257
F. Supp. 3d 309, 318 (N.D.N.Y. 2017).
352 New Jersey Payphone, 130 F. Supp. 2d at 641.
353 City of Arlington, 668 F.3d at 234.
354 Contra 47 U.S.C. 332(c)(7)(B)(ii).
355 New Jersey Payphone, 130 F. Supp. 2d at 641.
356 See Cellular Tel. Co, 166 F.3d at 496. While our discussion here focused on cases that apply the permanent
injunction standard, we have the same view regarding relief under the preliminary injunction standard when a
locality fails to act within the applicable shot clock periods. See, e.g., Winter v. Natural Res. Def. Council, Inc., 555
U.S. 7, 22 (2008) (discussing the standard for preliminary injunctive relief).
357 Several commenters support this position, urging the Commission to reaffirm that adversely affected applicants
must seek redress from the courts. See, e.g., League of Ar Cities and Towns et al. Comments at 14-21; Philadelphia
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that the Act could be read “as establishing a framework in which a wireless service provider must seek a
remedy for a state or local government’s unreasonable delay in ruling on a wireless siting application in a
court of competent jurisdiction while simultaneously allowing the FCC to issue an interpretation of
§ 332(c)(7)(B)(ii) that would guide courts’ determinations of disputes under that provision.”358
125.The guidance provided here should reduce the need for, and complexity of, case-by-case
litigation and reduce the likelihood of vastly different timing across various jurisdictions for the same
type of deployment.359 This clarification, along with the other actions we take in this Third Report and
Order, should streamline the courts’ decision-making process and reduce the possibility of inconsistent
rulings. Consequently, we believe that our approach helps facilitate courts’ ability to “hear and decide
such [lawsuits] on an expedited basis,” as the statute requires.360
126.Reducing the likelihood of litigation and expediting litigation where it cannot be avoided
should significantly reduce the costs associated with wireless infrastructure deployment. For instance,
WIA states that if one of its members were to challenge every shot clock violation it has encountered, it
would be mired in lawsuits with forty-six localities.361 And this issue is likely to be compounded given
the expected densification of wireless networks. Estimates indicate that deployments of small cells could
reach up to 150,000 in 2018 and nearly 800,000 by 2026.362 If, for example, 30 percent (based on T-
Mobile’s experience363) of these expected deployments are not acted upon within the applicable shot clock
(Continued from previous page)
Comments at 2; Philadelphia Reply at 4-6; City of San Antonio et al. Comments, Exh. B at 14-15; San Francisco
Comments at 16-17; Colorado Munis Comments at 7; CWA Reply at 5; Fairfax County Comments at 12-15;
AASHTO Comments at 20-21, 23 (ID Dept. of Trans. Comments); NATOA Comments, Attach. 3 at 53-55; NLC
Comments at 3-4; Smart Communities Comments at 39-43. Our interpretation thus preserves a meaningful role for
courts under Section 332(c)(7)(B)(v), contrary to the concern some commenters expressed with particular focus on
alternative proposals we do not adopt, such as a deemed granted remedy. See, e.g., Colorado Comm. and Utility All.
et al. Comments at 6-7; League of Az Cities and Towns et al. Comments at 14-23; Philadelphia Comments at 2;
Baltimore Reply at 11; City of San Antonio et al. Reply at 2; San Francisco Reply at 6; League of Az Cities and
Towns et al. Reply at 2-3. In addition, our interpretation of Section 332(c)(7)(B)(ii) does not result in a regime in
which the Commission could be seen as implicitly issuing local land use permits, a concern that states and localities
raised regarding an absolute deemed granted remedy, because applicants are still required to petition a court for
relief, which may include an injunction directing siting authorities to grant the application. See Alexandria
Comments at 2; Baltimore Reply at 10; Philadelphia Reply at 8; Smart Cities Coal Comments at ii, 4, 39.
358 City of Arlington, 668 F.3d at 250.
359 The likelihood of non-uniform or inconsistent rulings on what time frames are reasonable or what circumstances
could rebut the presumptive reasonableness of the shot clock periods stems from the intrinsic ambiguity of the
phrase “reasonable period of time,” which makes it susceptible of varying constructions. See City of Arlington, 668
F.3d at 255 (noting “that the phrase ‘a reasonable period of time,’ as it is used in § 332(c)(7)(B)(ii), is inherently
ambiguous”); Capital Network System, Inc. v. FCC, 28 F.3d 201, 204 (D.C. Cir. 1994) (“Because ‘just,’ ‘unjust,’
‘reasonable,’ and ‘unreasonable’ are ambiguous statutory terms, this court owes substantial deference to the
interpretation the Commission accords them.”). See also Lightower Comments at 3 (“The lack of consistent
guidance regarding statutory interpretation is creating uncertainty at the state and local level, with many local
jurisdictions seeming to simply make it up as they go. Differences in the federal courts are only exacerbating the
patchwork of interpretations at the state and local level.”).
360 47 U.S.C. § 332(c)(7)(B)(v).
361 WIA Comments at 16.
362 Comment Sought on Streamlining Deployment of Small Cell Infrastructure by Improving Wireless Facilities
Siting Policies; Mobilitie, LLC Petition for Declaratory Ruling, Public Notice, 31 FCC Rcd 13360, 13363-64 (2016)
(citing S&P Global Market Intelligence, John Fletcher, Small Cell and Tower Projections through 2026, SNL Kagan
Wireless Investor (Sept. 27, 2016)).
363 T-Mobile Comments at 8.
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period, that would translate to 45,000 violations in 2018 and 240,000 violations in 2026.364 These sheer
numbers would render it practically impossible to commence Section 332(c)(7)(B)(v) cases for all
violations, and litigation costs for such cases likely would be prohibitive and could virtually bar providers
from deploying wireless facilities.365
127.Our updated interpretation of Section 332(c)(7) for Small Wireless Facilities effectively
balances the interest of wireless service providers to have siting applications granted in a timely and
streamlined manner366 and the interest of localities to protect public safety and welfare and preserve their
authority over the permitting process.367 Our specialized deployment categories, in conjunction with the
acknowledgement that in rare instances, it may legitimately take longer to act, recognize that the siting
process is complex and handled in many different ways under various states’ and localities’ long-
established codes. Further, our approach tempers localities’ concerns about the inflexibility of the
Wireless Infrastructure NPRM/NOI’s deemed granted proposal because the new remedy we adopt here
accounts for the breadth of potentially unforeseen circumstances that individual localities may face and
the possibility that additional review time may be needed in truly exceptional circumstances.368 We
further find that our interpretive framework will not be unduly burdensome on localities because a
number of states have already adopted even more stringent deemed granted remedies.369
128.At the same time, there may be merit in the argument made by some commenters that the
FCC has the authority to adopt a deemed granted remedy.370 Nonetheless, we do not find it necessary to
decide that issue today, as we are confident that the rules and interpretations adopted here will provide
substantial relief, effectively avert unnecessary litigation, allow for expeditious resolution of siting
applications, and strike the appropriate balance between relevant policy considerations and statutory
364 These numbers would escalate under WIA’s estimate that 70 percent of small cell deployment applications
exceed the applicable shot clock. WIA Comments at 7.
365 See CTIA Comments at 9 (explaining that, “[p]articularly for small cells, the expense of litigation can rarely be
justified); WIA Comments at 16 (quoting and discussing Lightower’s Comments in 2016 Streamlining Public
Notice); T-Mobile Comment, Attach. A at 8.
366 See, e.g., AT&T Comments at 26; CCA Comments at 7, 9, 11-12; CCA Reply at 5-6, 8; Cityscape Consultants
Comments at 1; CompTIA Comments at 3; CIC Comments at 17-18; Crown Castle Comments at 23-28; Crown
Castle Reply at 3; CTIA Comments at 7-9, Attach. 1 at 5, 39-43, Attach. 2 at 3, 23-24; GCI Comments at 5-9;
Lightower Comments at 7, 18-19; Samsung Comments at 6; T-Mobile Comments at 13, 16, Attach. A at 25; WIA
Comments at 15-17.
367 See, e.g., Arizona Munis Comments at 23; Arizona Munis Reply at 8-9; Baltimore Reply at 10; Lansing
Comments at 2; Philadelphia Reply at 9-12; Torrance Comments at 1-2; CPUC Comments at 14; CWA Reply at 5;
Minnesota Munis Comments at 9; but see CTIA Reply at 9.
368 See, e.g., Chicago Comments at 2 (contending that wireless facilities siting entails fact-specific scenarios);
AASHTO Comments, Attach. at 40 (MD Dept. of Trans. SHA Comments) (describing the complexity of reviewing
proposed deployments on rights-of-way); AASHTO Comments, Attach. at 51 (Wyoming DOT Comments);
Baltimore Reply at 11; Philadelphia Comments at 4; Alexandria Comments at 6; Mukilteo Comments at 1; Alaska
Dept. of Trans. Comments at 2; Alaska SHPO Reply at 1.
369 See Fla. Stat. Ann. § 365.172(13)(d)(3.b); Ariz. Rev. Stat. Ann. § 9-594(C) (3); 53 Pa. Stat. Ann. § 11702.4; Cal.
Gov't Code § 65964.1; Va. Code Ann. § 15.2-2232; Va. Code Ann. § 15.2-2316.4; Va. Code Ann. § 56-484.29; Va.
Code Ann. § 56-484.28; Ky. Rev. Stat. Ann. § 100.987; N.H. Rev. Stat. Ann. § 12-K:10; Wis. Stat. Ann. § 66.0404;
Kan. Stat. Ann. § 66-2019(h)(3); Del. Code Ann. tit. 17, § 1609; Iowa Code Ann. § 8C.7A(3)(c)(2); Iowa Code Ann.
§ 8C.4(4)(5); Iowa Code Ann. § 8C.5; Mich. Comp. Laws Ann. § 125.3514. See also CCA Reply at 9.
370 See, e.g., CTIA Comments at 10-11; T-Mobile Comments at 15-18, Verizon Comments at 37, 39-41, WIA
Comments at 17-20.
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objectives371 guiding our analysis.372
129.We expect that our decision here will result in localities addressing applications within
the applicable shot clocks in a far greater number of cases. Moreover, we expect that the limited
instances in which a locality does not issue a decision within that time period will result in an increase in
cases where the locality then issues all needed permits. In what we expect would then be only a few cases
where litigation commences, our decision makes clear the burden that localities would need to clear in
those circumstances. 373 Our updated interpretation of Section 332 for Small Wireless Facilities will help
courts to decide failure-to-act cases expeditiously and avoid delays in reaching final dispositions.374
Placing this burden on the siting authority should address the concerns raised by supporters of a deemed
granted remedy—that filing suit in court to resolve a siting dispute is burdensome and expensive on
applicants, the judicial system, and citizens—because our interpretations should expedite the courts’
371 City of Arlington, 668 F.3d at 234 (noting that the purpose of Section 332(c)(7) is to balance the competing
interests to preserve the traditional role of state and local governments in land use and zoning regulation and the
rapid development of new telecommunications technologies).
372 See supra paras. 119-20 (explaining how the remedy strikes the proper balance between competing interests).
Because our approach to shot clocks involves our interpretation of Section 332(c)(7)(B)(ii) and the consequences
that flow from that—and does not rely on Section 253 of the Act—we need not, and thus do not, resolve disputes
about the potential use of Section 253 in this specific context, such as whether it could serve as authority for a
deemed granted or similar remedy. See, e.g., San Francisco Comments at 9-10; CPUC Comments at 10; Smart
Communities Comments at 4-11, 21; Smart Communities Reply at 78-79; League of Az Cities and Towns et al.
Reply at 4; Alexandria Comments at 5; Irvine Comments at 5; Minnesota Cities Comments at 11-13; Philadelphia
Reply at 2, 7; Fairfax County Comments at 17; Greenlining Reply at 4; NRUC Reply at 3-5; NATOA June 21, 2018
Ex Parte Letter. To the extent that commenters raise arguments regarding the proper interpretation of “prohibit or
have the effect of prohibiting” under Section 253 or the scope of Section 253, these issues are discussed in the
Declaratory Ruling, see supra paras. 34-42.
373 See App Association Comments at 9; CCI Comments at 6-8; Conterra Comments at 14-17; ExteNet Comments at
13; T-Mobile Comments at 17; Quintillion Reply at 6; Verizon Comments at 8-18; WIA Comments at 9-10. WIA
contends that adoption of a deemed granted remedy is needed because various courts faced with shot clock claims
have failed to provide meaningful remedies, citing as an example a case in which the court held that the town failed
to act within the shot clock period but then declined to issue an injunction directing the siting agency to grant the
application. WIA Comments at 16-17. However, a number of cases involving violations of the “reasonable period
of time” requirement of Section 332(c)(7)(B)(ii)—decided either before or after the promulgation of the
Commission’s Section 332(c)(7)(B)(ii) shot clocks—have concluded with an award of injunctive relief. See, e.g.,
Upstate Cellular Network, 257 F. Supp. 3d at 318 (concluding that the siting authority’s failure to act within the
150-day shot clock was unreasonable and awarding a permanent injunction in favor of the applicant); Am. Towers,
Inc. v. Wilson County, No. 3:10-CV-1196, 2014 WL 28953, at *13–14 (M.D. Tenn. Jan. 2, 2014) (finding that the
county failed to act within a reasonable period of time, as required under Section 332(c)(7)(B)(ii), and granting an
injunction directing the county to approve the applications and issue all necessary authorizations for the applicant to
build and operate the proposed tower); Cincinnati Bell Wireless, LLC v. Brown County, Ohio, No. 1:04-CV-733,
2005 WL 1629824, at *4–5 (S.D. Ohio July 6, 2005) (finding that the county failed to act within a reasonable period
of time under Section 332(c)(7)(B)(ii) and awarding injunctive relief). But see Up State Tower Co. v. Town of
Kiantone, 718 Fed. Appx. 29 (2d Cir. 2017) (declining to reverse district court’s refusal to issue injunction
compelling immediate grant of application). Courts have also held “that injunctive relief best serves the TCA’s
stated goal of expediting resolution of” cases brought under Section 332(c)(7)(B)(v). Cellular Tel. Co., 166 F.3d at
497; Brehmer v. Planning Bd. of Town of Wellfleet, 238 F.3d 117, 121 (1st Cir. 2001). Under these circumstances,
we do not agree with WIA that courts have failed to provide meaningful remedies to such an extent as would require
the adoption of a deemed granted remedy.
374 Zoning Bd. of Adjustment of the Borough of Paramus, N.J., 21 F. Supp. 3d at 383, 387 (more than four-and-a-half
years for Sprint to prevail in court), aff'd, 606 F. App’x 669 (3d Cir. 2015); Vill. of Corrales, 127 F. Supp. 3d 1169
(nineteen months from complaint to grant of summary judgment); Orange County–Poughkeepsie Ltd. P’ship v.
Town of E. Fishkill, 84 F. Supp. 3d 274, 293 (S.D.N.Y.), aff’d sub nom., Orange County–County Poughkeepsie Ltd.
P’ship v. Town of E. Fishkill, 632 F. App’x 1 (2d Cir. 2015) (seventeen months from complaint to grant of summary
judgment).
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decision-making process.
130.We find that the more specific deployment categories and shot clocks, which
presumptively represent the reasonable period within which to act, will prevent the outcome proponents
of a deemed granted remedy seek to avoid: that siting agencies would be forced to reject applications
because they would be unable to review the applications within the prescribed shot clock period.375
Because the more specific deployment categories and shot clocks inherently account for the nature and
scope of a variety of deployment applications, our new approach should ensure that siting agencies have
adequate time to process and decide applications and will minimize the risk that localities will fail to act
within the established shot clock periods. Further, in cases where a siting authority misses the deadline,
the opportunity to demonstrate exceptional circumstances provides an effective and flexible way for siting
agencies to justify their inaction if genuinely warranted. Our overall framework, therefore, should
prevent situations in which a siting authority would feel compelled to summarily deny an application
instead of evaluating its merits within the applicable shot clock period.376 We also note that if the
approach we take in this Order proves insufficient in addressing the issues it is intended to resolve, we
may again consider adopting a deemed granted remedy in the future.
131.Some commenters also recommend that the Commission issue a list of “Best Practices”
or “Recommended Practices.”377 The joint comments filed by NATOA and other government
associations suggest the “development of an informal dispute resolution process to remove parties from
an adversarial relationship to a partnership process designed to bring about the best result for all
involved” and the development of “a mediation program which could help facilitate negotiations for
deployments for parties who seem to have reached a point of intractability.”378 Although we do not at this
time adopt these proposals, we note that the steps taken in this order are intended to facilitate cooperation
between parties to reach mutually agreed upon solutions. For example, as explained below, mutual
agreement between the parties will toll the running of the shot clock period, thereby allowing parties to
resolve disagreements in a collaborative, instead of an adversarial, setting.379
C.Clarification of Issues Related to All Section 332 Shot Clocks
1.Authorizations Subject to the “Reasonable Period of Time” Provision of
Section 332(c)(7)(B)(ii)
132.As indicated above, Section 332(c)(7)(B)(ii) requires state and local governments to act
“within a reasonable period of time” on “any request for authorization to place, construct, or modify
personal wireless service facilities.”380 Neither the 2009 Declaratory Ruling nor the 2014 Wireless
Infrastructure Order addressed the specific types of authorizations subject to this requirement. Industry
commenters contend that the shot clocks should apply to all authorizations a locality may require, and to
all aspects of and steps in the siting process, including license or franchise agreements to access ROW,
building permits, public notices and meetings, lease negotiations, electric permits, road closure permits,
aesthetic approvals, and other authorizations needed for deployment.381 Local siting authorities, on the
other hand, argue that a broad application of Section 332 will harm public safety and welfare by not
375 Baltimore Reply at 12; Mukilteo Comments at 1; Cities of San Antonio et al. Reply at 10; Washington Munis
Comments, Attach. 1 at 8-9; but see CTIA Reply at 9.
376 We also note that a summary denial of a deployment application is not permitted under Section 332(c)(7)(B)(iii),
which requires the siting authority to base denials on “substantial evidence contained in a written record.”
377 KS Rep. Sloan Comments at 2; Nokia Comments at 10.
378 NATOA et al. Comments at 16-17.
379 See infra paras. 145-46.
380 See 47 U.S.C. § 332(c)(7)(B)(ii).
381 See, e.g., CTIA Comments at 15; CTIA Reply at 10; Mobilitie Comments at 6-7; WIA Comments at 24; WIA
Reply at 13; T-Mobile Comments at 21-22; CCA Reply at 9; Sprint June 18 Ex Parte at 3.
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giving them enough time to evaluate whether a proposed deployment endangers the public.382 They assert
that building and encroachment permits should not be subsumed within the shot clocks because these
permits incorporate essential health and safety reviews.383 After carefully considering these arguments,
we find that “any request for authorization to place, construct, or modify personal wireless service
facilities” under Section 332(c)(7)(B)(ii) means all authorizations necessary for the deployment of
personal wireless services infrastructure. This interpretation finds support in the record and is consistent
with the courts’ interpretation of this provision and the text and purpose of the Act.
133.The starting point for statutory interpretation is the text of the statute,384 and here, the
statute is written broadly, applying to “any” request for authorization to place, construct, or modify
personal wireless service facilities. The expansive modifier “any” typically has been interpreted to mean
“one or some indiscriminately of whatever kind,” unless Congress “add[ed] any language limiting the
breadth of that word.”385 The title of Section 332(c)(7) (“Preservation of local zoning authority”) does not
restrict the applicability of this section to zoning permits in light of the clear text of Section
332(c)(7)(B)(ii).386 The text encompasses not only requests for authorization to place personal wireless
service facilities, e.g., zoning requests, but also requests for authorization to construct or modify personal
wireless service facilities. These activities typically require more than just zoning permits. For example,
in many instances, localities require building permits, road closure permits, and the like to make
construction or modification possible.387 Accordingly, the fact that the title standing alone could be read
382 League of Az Cities and Towns et al. Reply at 21-22. See also Arlington County, Sept. 18 Ex Parte Letter at 1-2
(asserting that it is infeasible to have the shot clock encompass all steps related the small cell siting process because
there is no single application to get ROW access, public notice, lease negotiations, road closures, etc.; because these
are separate processes involving different departments; and because the timeline in some instances will depend on the
applicant, or the required information may interrelate in a manner that makes doing them all at once infeasible); Letter
from Robert McBain, Mayor, Piedmont, CA, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79 et al., at 3
(filed Sept. 18, 2018).
383 League of Az Cities and Towns et al. Reply at 21-22.
384 Implementation of Section 402(b)(1)(a) of the Telecommunications Act of 1996, Notice of Proposed Rulemaking,
11 FCC Rcd 11233 (1996); 2002 Biennial Regulatory Review, Report, 18 FCC Rcd 4726, 4731–32 (2003); Perrin v.
United States, 444 U.S. 37, 42 (1979) (“A fundamental canon of statutory construction is that, unless otherwise
defined, words will be interpreted as taking their ordinary, contemporary, common meaning.”); Communications
Assistance for Law Enf’t Act & Broadband Access & Servs., First Report and Order and Further Notice of Proposed
Rulemaking, 20 FCC Rcd. 14989, 14992–93, para. 9 (2005) (interpreting an ambiguous statute by considering the
“structure and history of the relevant provisions, including Congress’s stated purposes” in order to “faithfully
implement[] Congress’s intent”); Cohen v. JP Morgan Chase & Co., 498 F.3d 111, 116 (2d Cir. 2007) (using
legislative history “to identify Congress’s clear intent”); Arnold v. United Parcel Serv., Inc., 136 F.3d 854, 858 (1st
Cir. 1998) (same).
385 United States v. Gonzales, 520 U.S. 1, 5 (1997) (quoting Webster’s Third New International Dictionary 97
(1976)); HUD v. Rucker, 535 U.S. 125, 131 (2002).
386 See Bhd. of R. R. Trainmen v. Baltimore & O. R. Co., 331 U.S. 519, 528–29 (1947) (“[H]eadings and titles are
not meant to take the place of the detailed provisions of the text.” ). Our conclusion is also consistent with our
interpretation that Sections 253 and 332(c)(7) apply to fees for all applications related to a Small Wireless Facility.
See supra para. 50.
387 See, e.g., Virginia Joint Commenters Comments at 21-22 (stating that deployment of personal wireless facilities
generally requires excavation and building permits); San Francisco Comments at 4-7, 12, 20-22 (describing the
permitting process in San Francisco, the layers of multi-departmental review involved, and the required
authorizations before certain personal wireless facilities can be constructed); Smart Cities Coal. Comments at 33-34
(describing several authorizations necessary to deploy personal wireless facilities depending on the location, e.g.,
public rights-of-way and other public properties, of the proposed site and the size of the proposed facility).
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to limit Section 332(c)(7) to zoning decisions does not overcome the specific language of Section
332(c)(7)(B)(ii), which explicitly applies to a variety of authorizations.388
134.The purpose of the statute also supports a broad interpretation. As noted above, the
Supreme Court has stated that the 1996 Act was enacted “to promote competition and higher quality in
American telecommunications services and to encourage the rapid deployment of new
telecommunications technologies” by, inter alia, reducing “the impediments imposed by local
governments upon the installation of facilities for wireless communications, such as antenna towers.”389
A narrow reading of the scope of Section 332 would frustrate that purpose by allowing local governments
to erect impediments to the deployment of personal wireless services facilities by using or creating other
forms of authorizations outside of the scope of Section 332(c)(7)(B)(ii).390 This is especially true in
jurisdictions requiring multi-departmental siting review or multiple authorizations. 391
135.In addition, our interpretation remains faithful to the purpose of Section 332(c)(7) to
balance Congress’s competing desires to preserve the traditional role of state and local governments in
regulating land use and zoning, while encouraging the rapid development of new telecommunications
technologies.392 Under our interpretation, states and localities retain their authority over personal wireless
facilities deployment. At the same time, deployment will be kept on track by ensuring that the entire
approval process necessary for deployment is completed within a reasonable period of time, as defined by
the shot clocks addressed in this Third Report and Order.
136.A number of courts have either explicitly or implicitly adopted the same view, that all
necessary permits are subject to Section 332. For example, in Cox Communications PCS, L.P. v. San
Marcos, the court considered an excavation permit application as falling within the parameters of Section
332.393 In USCOC of Greater Missouri, LLC v. County of Franklin, the Eighth Circuit reasoned that
“[t]he issuance of the requisite building permits” for the construction of a personal wireless services
facility arises under Section 332(c)(7).394 In Ogden Fire Co. No. 1 v. Upper Chichester Township, the
Third Circuit affirmed the district court’s order compelling the township to issue a building permit for the
388 See Bhd. of R. R. Trainmen v. Baltimore & O. R. Co., 331 U.S. 519, 528-29 (1947). If the title of Section
332(c)(7) were to control the interpretation of the text, it would render superfluous the provision of Section
332(c)(7)(B)(ii) that applies to “authorization to . . . construct, or modify personal wireless service facilities” and
give effect only to the provision that applies to “authorization to place . . . personal wireless service facilities.” This
result would “flout[] the rule that ‘a statute should be construed so that effect is given to all its provisions, so that no
part will be inoperative or superfluous.’” Clark v. Rameker, 134 S. Ct. 2242, 2248 (2014) (quoting Corley v. United
States, 556 U.S. 303, 314 (2009)).
389 City of Rancho Palos Verdes v. Abrams, 544 U.S. at 115 (internal quotation marks and citations omitted).
390 For example, if we were to interpret Section 332(c)(7)(B)(ii) to cover only zoning permits, states and localities
could delay their consideration of other permits (e.g., building, electrical, road closure or other permits) to thwart the
proposed deployment.
391 See, e.g., Virginia Joint Commenters Comments at 21-22; San Francisco Comments at 4-7, 12, 20-22; Smart
Communities Comments at 33-34; CTIA Comments at 15 (stating that some jurisdictions “impose multiple,
sequential stages of review”); WIA Comments at 24 (noting that “[m]any jurisdictions grant the application within
the shot clock period only to stall on issuing the building permit”); Verizon Comments at 6 (stating that “[a] large
Southwestern city requires applicants to obtain separate and sequential approvals from three different governmental
bodies before it will consider issuing a temporary license agreement to access city rights-of-way”); Sprint June 18
Ex Parte at 3 (noting that “after a land-use permit or attachment permit is received, many localities still require
electric permits, road closure permits, aesthetic approval, and other types of reviews that can extend the time
required for final permission well beyond just the initial approval.”).
392 City of Arlington, 668 F.3d at 234.
393 Cox Commc’ns PCS, L.P. v. San Marcos, 204 F. Supp. 2d 1272 (S.D. Cal. 2002).
394 USCOC of Greater Mo., LLC v. County of Franklin, 636 F.3d 927, 931-32 (8th Cir. 2011).
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construction of a wireless facility after finding that the township had violated Section 332(c)(7).395 In
Upstate Cellular Network v. Auburn, the court directed the city to approve the application, including site
plan approval by the planning board, granting a variance by the zoning authority, and “any other
municipal approval or permission required by the City of Auburn and its boards or officers, including but
not limited to, a building permit.”396 And in PI Telecom Infrastructure V, LLC v. Georgetown–Scott
County Planning Commission, the court ordered that the locality grant “any and all permits necessary for
the construction of the proposed wireless facility.”397 Our interpretation is also consistent with judicial
precedents involving challenges under Section 332(c)(7)(B) to denials by a wide variety of governmental
entities, many of which involved variances,398 special use/conditional use permits,399 land disturbing
activity and excavation permits,400 building permits,401 and a state department of education permit to
install an antenna at a high school.402 Notably, a lot of cases have involved local agencies that are
separate and distinct from the local zoning authority,403 confirming that Section 332(c)(7)(B) is not
limited in application to decisions of zoning authorities. Our interpretation also reflects the examples in
the record where providers are required to obtain other types of authorizations besides zoning permits
before they can “place, construct, or modify personal wireless service facilities.”404
137.We reject the argument that this interpretation of Section 332 will harm the public
because it would “mean that building and safety officials would have potentially only a few days to
395 Ogden Fire Co. No. 1 v. Upper Chichester TP., 504 F.3d 370, 395-96 (3d Cir. 2007).
396 Upstate Cellular Network, 257 F. Supp. 3d at 319.
397 PI Telecom Infrastructure V, LLC v. Georgetown–Scott County Planning Commission, 234 F. Supp. 3d 856, 872
(E.D. Ky. 2017). Accord T-Mobile Ne. LLC v. Lowell, Civil Action No. 11–11551–NMG, 2012 WL 6681890, *6-7,
*11 (D. Mass. Nov. 27, 2012) (directing the zoning board “to issue all permits and approvals necessary for the
construction of the plaintiffs’ proposed telecommunications facility”); New Par v. Franklin County Bd. of Zoning
Appeals, No. 2:09–cv–1048, 2010 WL 3603645, *4 (S.D. Ohio Sept. 10, 2010) (enjoining the zoning board to “grant
the application and issue all permits required for the construction of the” proposed wireless facility).
398 See, e.g., New Par v. City of Saginaw, 161 F. Supp. 2d 759, 760 (E.D. Mich. 2001), aff’d, 301 F.3d 390 (6th Cir.
2002)
399 See, e.g., Virginia Metronet, Inc. v. Bd. of Sup’rs of James City County, 984 F. Supp. 966, 968 (E.D. Va. 1998);
Cellular Tel. Co., 166 F.3d at 491; T-Mobile Cent., LLC v. Unified Gov’t of Wyandotte County, 546 F.3d 1299, 1303
(10th Cir. 2008); City of Anacortes, 572 F.3d at 989; Helcher, 595 F.3d at 713-14; AT&T Wireless Servs. of
California LLC v. City of Carlsbad, 308 F. Supp. 2d 1148, 1152 (S.D. Cal. 2003); PrimeCo Pers. Commc’ns L.P. v.
City of Mequon, 242 F. Supp. 2d 567, 570 (E.D. Wis.), aff’d, 352 F.3d 1147 (7th Cir. 2003); Preferred Sites, LLC v.
Troup County, 296 F.3d 1210, 1212 (11th Cir. 2002).
400 See, e.g., Tennessee ex rel. Wireless Income Properties, LLC v. City of Chattanooga, 403 F.3d 392, 394 (6th Cir.
2005); Cox Commc’ns PCS, L.P. v. San Marcos, 204 F. Supp. 2d 1272 (S.D. Cal. 2002).
401 See, e.g., Upstate Cellular Network, 257 F. Supp. 3d at 319; Ogden Fire Co. No. 1 v. Upper Chichester Twp., 504
F.3d 370, 395-96 (3rd Cir. 2007).
402 Sprint Spectrum, L.P. v. Mills, 65 F. Supp. 2d 148, 150 (S.D.N.Y. 1999), aff’d, 283 F.3d 404 (2d Cir. 2002).
403 See, e.g., Tennessee ex rel. Wireless Income Props., LLC v. City of Chattanooga, 403 F.3d 392, 394 (6th Cir.
2005) (city public works department); Sprint PCS Assets, L.L.C. v. City of Palos Verdes Estates, 583 F.3d 716, 720
(9th Cir. 2009) (city public works director, city planning commission, and city council); Sprint Spectrum, L.P. v.
Mills, 65 F. Supp. 2d at 150 (New York State Department of Education).
404 See, e.g., Virginia Joint Commenters Comments at 21-22 (stating that deployment of personal wireless facilities
generally requires excavation and building permits); San Francisco Comments at 4-7, 12, 20-22 (describing the
permitting process in San Francisco, the layers of multi-departmental review involved, and the required
authorizations before certain personal wireless facilities can be constructed); Smart Communities Comments at 33-
34 (describing several authorizations necessary to deploy personal wireless facilities depending on the location, e.g.,
public rights-of-way and other public properties, of the proposed site and the size of the proposed facility).
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evaluate whether a proposed deployment endangers the public.”405 Building and safety officials will be
subject to the same applicable shot clock as all other siting authorities involved in processing the siting
application, with the amount of time allowed varying in the rare case where officials are unable to meet
the shot clock because of exceptional circumstances.
2.Codification of Section 332 Shot Clocks
138.In addition to establishing two new Section 332 shot clocks for Small Wireless Facilities,
we take this opportunity to codify our two existing Section 332 shot clocks for siting applications that do
not involve Small Wireless Facilities. In the 2009 Declaratory Ruling, the Commission found that 90 days
is a reasonable time frame for processing collocation applications and 150 days is a reasonable time frame to
process applications other than collocations.406 Since these Section 332 shot clocks were adopted as part of a
declaratory ruling, they were not codified in our rules. In the Wireless Infrastructure NPRM/NOI, the
Commission sought comment on whether to modify these shot clocks.407 We find no need to modify
them here and will continue to use these shot clocks for processing Section 332 siting applications that do
not involve Small Wireless Facilities. 408 We do, though, codify these two existing shot clocks in our rules
alongside the two newly-adopted shot clocks so that all interested parties can readily find the shot clock
requirements in one place.409
139.While some commenters argue for a 60-day shot clock for all collocation categories,410
we conclude that we should retain the existing 90-day shot clock for collocations not involving Small
Wireless Facilities. Collocations that do not involve Small Wireless Facilities include deployments of
405 League of Az Cities and Towns et al. Reply at 21-22.
406 2009 Declaratory Ruling, 24 FCC Rcd at 14012-013, paras. 45, 48.
407 Wireless Infrastructure NPRM/NOI, 32 FCC Rcd at 3332-33, 3334, 3337-38, paras. 6, 9, 17-19.
408 Chicago Comments at 2 (supporting maintaining existing shot clocks); Bellevue et al. Comments at 13-14
(supporting maintaining existing shot clocks).
409 We also adopt a non-substantive modification to our existing rules. We redesignate the rule adopted in 2014 to
codify the Commission’s implementation of the 2012 Spectrum Act, formerly designated as section 1.40001, as
section 1.6100, and we move the text of that rule from Part 1, Subpart CC, to the same Subpart as the new rules
promulgated in this Third Report and Order (Part 1, Subpart U). This recognizes that both sets of requirements
pertain to “State and local government regulation of the placement, construction, and modification of personal
wireless service facilities” (the caption of new Subpart U). The reference in paragraph (a) of that preexisting rule to
47 U.S.C. § 1455 has been consolidated with new rule section 1.6001 to reflect that all rules in Subpart U,
collectively, implement both § 332(c)(7) and § 1455. With those non-substantive exceptions, the text of the 2014
rule has not been changed in any way. Contrary to the suggestion submitted by the Washington Joint Counties, see
Letter from W. Scott Snyder et al., Counsel for the Washington Cities of Bremerton, Mountlake Terrace, Kirkland,
Redmond, Issaquah, Lake Stevens, Richland, and Mukilteo, to Marlene H. Dortch, Secretary, FCC, WT Docket No.
17-79 et al., at 6-7 (filed June 19, 2018), this change is not substantive and does not require advance notice. We find
that “we have good cause to reorganize and renumber our rules in this fashion without expressly seeking comment
on this change, and we conclude that public comment is unnecessary because no substantive changes are being
made. Moreover, the delay engendered by a round of comment would be contrary to the public interest.” See 2017
Pole Replacement Order, 32 FCC Rcd at 9770, para. 26; see also 5 U.S.C. §553(b)(B) (notice not required “when
the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules
issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest”).
410 CCIA Comments at 10; CCA Comments at 13-14; CCA Reply at 6 (arguing for 30-day shot clock for
collocations and a 60-to-75-day shot clock for all other siting applications); WIA Reply at 21. See also Letter from
Jill Canfield, NTCA Vice President Legal & Industry and Assistant General Counsel, to Marlene H. Dortch,
Secretary, FCC, WT Docket No. 17-79, at 2 (filed June 19, 2018) (stating that NTCA supports a revised
interpretation of the phrase “reasonable period of time” as found in Section 332(c) (7)(B)(ii) of the Communications
Act as applicable to small cell facilities and that sixty days for collocations and 90 days for all other small cell siting
applications should provide local officials sufficient time for review of requests to install small cell facilities in
public rights-of-way).
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larger antennas and other equipment that may require additional time for localities to review and
process.411 For similar reasons, we maintain the existing 150-day shot clock for new construction
applications that are not for Small Wireless Facilities. While some industry commenters such as WIA,
Samsung, and Crown Castle argue for a 90-day shot clock for macro cells and small cells alike, we agree
with commenters such as the City of New Orleans that there is a significant difference between the review
of applications for a single 175-foot tower versus the review of a Small Wireless Facility with much
smaller dimensions.412
3.Collocations on Structures Not Previously Zoned for Wireless Use
140.Wireless industry commenters assert that they should be able to take advantage of the
Section 332 collocation shot clock even when collocating on structures that have not previously been
approved for wireless use.413 Siting agencies respond that the wireless industry is effectively seeking to
have both the collocation definition and a reduced shot clock apply to sites that have never been approved
by the local government as suitable for wireless facility deployment.414 We take this opportunity to
clarify that for purposes of the Section 332 shot clocks, attachment of facilities to existing structures
constitutes collocation, regardless whether the structure or the location has previously been zoned for
wireless facilities. As the Commission stated in the 2009 Declaratory Ruling, “an application is a request
for collocation if it does not involve a ‘substantial increase in the size of a tower’ as defined in the
Nationwide Programmatic Agreement (NPA) for the Collocation of Wireless Antennas.”415 The
definition of “[c]ollocation” in the NPA provides for the “mounting or installation of an antenna on an
existing tower, building or structure for the purpose of transmitting and/or receiving radio frequency
signals for communications purposes, whether or not there is an existing antenna on the structure.” 416
The NPA’s definition of collocation explicitly encompasses collocations on structures and buildings that
have not yet been zoned for wireless use. To interpret the NPA any other way would be unduly narrow
and there is no persuasive reason to accept a narrower interpretation. This is particularly true given that
the NPA definition of collocation stands in direct contrast with the definition of collocation in the
411 Wireless Infrastructure Second R&O, FCC 18-30 at paras. 74-76.
412 New Orleans Comments at 2-3; Samsung Comments at 4-5 (arguing that the Commission should reduce the shot
clock applicable to new construction from 150 days to 90 days); Crown Castle Comments at 29 (stating that a 90-
day shot clock for new facilities is appropriate for macro cells and small cells alike, to the extent such applications
require review under Section 332 at all); TX Hist. Comm. Comments at 2 (arguing that the reasonable periods of
time that the FCC proposed in 2009, 90 days for collocation applications and 150 days for other applications appear
to be appropriate); WIA Comments at 20-23; WIA Reply at 11 (arguing for a 90-day shot clock for applications
involving substantial modifications, including tower extensions; and a 120-day shot clock for applications for all
other facilities, including new macro sites); CTIA Reply at 3 (stating that the Commission should shorten the shot
clocks to 90 days for new facilities).
413 AT&T Comments at 10; AT&T Reply at 9; Verizon Reply at 32; WIA Comments at 22; ExteNet Comments at 9.
414 Bellevue et al. Reply at 6-7 (arguing that the Commission has rejected this argument twice and instead
determined that a collocation occurs when a wireless facility is attached to an existing infrastructure that houses
wireless communications facilities; San Francisco Reply at 7-8 (arguing that under Commission definitions, a utility
pole is neither an existing base station nor a tower; thus, the Commission simply cannot find that adding wireless
facilities to utility pole that has not previously been used for wireless facilities is an eligible facilities request). See,
e.g., Letter from Bonnie Michael, City Council President, Worthington, OH, to Marlene H. Dortch, Secretary, FCC,
WT Docket No. 17-79 et al., at 2 (filed Sept. 18, 2018); Letter from Jill Boudreau, Mayor, Mount Vernon, WA, to
Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79 et al., at 2 (filed Sept. 18, 2018).
415 2009 Declaratory Ruling, 24 FCC Rcd at 14012, para 46.
416 47 CFR Part 1, App. B, NPA, Subsection C, Definitions.
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Spectrum Act, pursuant to which facilities only fall within the scope of an “eligible facilities request” if
they are attached to towers or base stations that have already been zoned for wireless use.417
4.When Shot Clocks Start and Incomplete Applications
141.In the 2014 Wireless Infrastructure Order, the Commission clarified, among other things,
that a shot clock begins to run when an application is first submitted, not when the application is deemed
complete.418 The clock can be paused, however, if the locality notifies the applicant within 30 days that
the application is incomplete. 419 The locality may pause the clock again if it provides written notice
within 10 days that the supplemental submission did not provide the information identified in the original
notice delineating missing information. 420 In the Wireless Infrastructure NPRM/NOI, the Commission
sought comment on these determinations.421 Localities contend that the shot clock period should not
begin until the application is deemed complete.422 Industry commenters argue that the review period for
incompleteness should be decreased from 30 days to 15 days.423
142.With the limited exception described in the next paragraph, we find no cause or basis in
the record to alter the Commission’s prior determinations, and we now codify them in our rules. Codified
rules, easily accessible to applicants and localities alike, should provide helpful clarity. The complaints
by states and localities about the sufficiency of some of the applications they receive are adequately
addressed by our current policy, particularly as amended below, which preserves the states’ and localities’
ability to pause review when they find an application to be incomplete.424 We do not find it necessary at
this point to shorten our 30-day initial review period for completeness because, as was the case when this
review period was adopted in the 2009 Declaratory Ruling, it remains consistent with review periods for
completeness under existing state wireless infrastructure deployment statutes425 and still “gives State and
local governments sufficient time for reviewing applications for completeness, while protecting applicants
417 See 47 CFR § 1.40001(b)(3), (4), (5) (definitions of eligible facilities request, eligible support structure, and
existing). Each of these definitions refers to facilities that have already been approved under local zoning or siting
processes.
418 2014 Wireless Infrastructure Order, 29 FCC Rcd at 12970, at para. 258.
419 2009 Declaratory Ruling, 24 FCC Rcd at 14014, paras. 52-53 (providing that the “timeframes do not include the
time that applicants take to respond to State and local governments’ requests for additional information”).
420 2014 Wireless Infrastructure Order, 29 FCC Rcd at 12970, para. 259.
421 Wireless Infrastructure NPRM/NOI, 32 FCC Rcd at 3338, para. 20.
422 See, e.g., Maine DOT Comments at 2-3; Philadelphia Comments at 6; League of Az Cities and Towns et al. at 4,
8-9; Letter from Barbara Coler, Chair, Marin Telecommunications Agency, to Marlene H. Dortch, Secretary, FCC,
WT Docket No. 17-79 et al., at 2 (filed Sept. 4, 2018) (Barbara Coler Sept. 4, 2018 Ex Parte Letter); Letter from Sam
Liccardo, Mayor, San Jose, CA, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79 et al., at 5 (filed Sept.
18, 2018).
423 Verizon Comments at 43. See Sprint June 18 Ex Parte at 2 (asserting that the shot clocks should begin to run
when the application is complete and that a siting authority should review the application for completeness within
the first 15 days of receipt or it would waive the right to object on that basis).
424 See, e.g., Barbara Coler Sept. 4, 2018 Ex Parte Letter at 2 (the pace of installation may be affected by incomplete
applications); Kenneth S. Fellman Sept. 18, 2018 Ex Parte Letter at 3 (not uncommon to find documents not
properly prepared and not in compliance with relevant regulations).
425 Most states have a 30-day review period for incompleteness. See, e.g., Colo. Rev. Stat. Ann. § 29-27-403; Ga.
Code Ann. § 36-66B-5; Iowa Code Ann. § 8C.4; Kan. Stat. Ann. § 66-2019; Minn. Stat. Ann. § 237.163(3c)(b); 53
Pa. Stat. Ann. § 11702.4(b)(1); Cal. Gov’t Code § 65943. A minority of states have adopted either a longer or
shorter review period for incompleteness, ranging from 5 days to 45 days. See N.C. Gen. Stat. Ann. § 153A-349.53
(45 days); Wash. Rev. Code Ann. § 36.70B.070 (28 days); N.H. Rev. Stat. Ann. § 12-K:10 (15 days); Del. Code
Ann. tit. 17, § 1609 (14 days); Va. Code Ann. §§ 15.2-2316.4; 56-484.28; 56-484.29 (10 days); Wis. Stat. Ann. §
66.0404(3) (5 days).
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from a last minute decision that an application should be denied as incomplete.”426
143.However, for applications to deploy Small Wireless Facilities, we implement a modified
tolling system designed to help ensure that providers are submitting complete applications on day one.
This step accounts for the fact that the shot clocks applicable to such applications are shorter than those
established in the 2009 Declaratory Ruling and, because of which, there may instances where the
prevailing tolling rules would further shorten the shot clocks to such an extent that it might be impossible
for siting authorities to act on the application.427 For Small Wireless Facilities applications, the siting
authority has 10 days from the submission of the application to determine whether the application is
incomplete. The shot clock then resets once the applicant submits the supplemental information
requested by the siting authority. Thus, for example, for an application to collocate Small Wireless
Facilities, once the applicant submits the supplemental information in response to a siting authority’s
timely request, the shot clock resets, effectively giving the siting authority an additional 60 days to act on
the Small Wireless Facilities collocation application. For subsequent determinations of incompleteness,
the tolling rules that apply to non-Small Wireless Facilities would apply—that is, the shot clock would
toll if the siting authority provides written notice within 10 days that the supplemental submission did not
provide the information identified in the original notice delineating missing information.
144.As noted above, multiple authorizations may be required before a deployment is allowed
to move forward. For instance, a locality may require a zoning permit, a building permit, an electrical
permit, a road closure permit, and an architectural or engineering permit for an applicant to place,
construct, or modify its proposed personal wireless service facilities. 428 All of these permits are subject to
Section 332’s requirement to act within a reasonable period of time, and thus all are subject to the shot
clocks we adopt or codify here.
145.We also find that mandatory pre-application procedures and requirements do not toll the
shot clocks. 429 Industry commenters claim that some localities impose burdensome pre-application
requirements before they will start the shot clock.430 Localities counter that in many instances, applicants
submit applications that are incomplete in material respects, that pre-application interactions smooth the
application process, and that many of their pre-application requirements go to important health and safety
matters.431 We conclude that the ability to toll a shot clock when an application is found incomplete or by
426 2009 Declaratory Ruling, 24 FCC Rcd at 14014-15, para. 53.
427 See, e.g., Geoffrey C. Beckwith Sept. 11, 2018 Ex Parte Letter at 1; Letter from Brad Cole, Executive Director,
Illinois Municipal League, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79 et al. at 1 (filed Sept. 14,
2018); Ronny Berdugo Sept. 18, 2018 Ex Parte Letter at 2.
428 See Sprint June 18 Ex Parte at 3; cf. Virginia Joint Commenters Comments at 21-22; San Francisco Comments at
4-7, 12, 20-22; CTIA Comments at 15 (“The Commission should declare that the shot clocks apply to the entire
local review process.”).
429 Wireless Infrastructure NPRM/NOI, 32 FCC Rcd at 3338, para. 20.
430 See, e.g., CCA Reply at 7 (noting also that some localities unreasonably request additional information after
submission that is either already provided or of unreasonable scope); GCI Comments at 8-9; WIA Comments at 24;
Crown Castle Comments at 21-22; CTIA Reply at 21; CIC Comments at 18; WIA Reply at 14; Conterra Comments
at 2-3; Crown Castle Comments at 30-31; CTIA Comments at 15; ExteNet Comments at 4, 15-16; Mobilitie
Comments at 6; T-Mobile Comments at 21-22; Verizon Comment at 42-43; AT&T Comments at 26.
431 See, e.g., Philadelphia Reply at 9 (arguing that shot clocks should not run until a complete application with a full
set of engineering drawings showing the placement, size and weight of the equipment, and a fully detailed structural
analysis is submitted, to assess the safety of proposed installations); Philadelphia Comments at 6; League of Az Cities
and Towns et al. Comments at 4 (arguing that the shot clock should not begin until after an application has been “duly
filed,” because “some applicants believe the shot clock commences to run no matter how they submit their request, or
how inadequate their submittal may be”); Colorado Comm. and Utility All. et al. Comments at 14 (explaining that the
pre-application meetings are intended “to give prospective applicants an opportunity to discuss code and regulatory
provisions with local government staff, and gain a better understanding of the process that will be followed, in order
to increase the probability that once an application is filed, it can proceed smoothly to final decision”); Smart
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mutual agreement by the applicant and the siting authority should be adequate to address these concerns.
Much like a requirement to file applications one after another, requiring pre-application review would
allow for a complete circumvention of the shot clocks by significantly delaying their start date. An
application is not ruled on within “a reasonable period of time after the request is duly filed” if the state or
locality takes the full ordinary review period after having delayed the filing in the first instance due to
required pre-application review. Indeed, requiring a pre-application review before an application may be
filed is similar to imposing a moratorium, which the Commission has made clear does not stop the shot
clocks from running.432 Therefore, we conclude that if an applicant proffers an application, but a state or
locality refuses to accept it until a pre-application review has been completed,433 the shot clock begins to
run when the application is proffered. In other words, the request is “duly filed” at that time,434
notwithstanding the locality’s refusal to accept it.
146.That said, we encourage voluntary pre-application discussions, which may well be useful
to both parties. The record indicates that such meetings can clarify key aspects of the application review
process, especially with respect to large submissions or applicants new to a particular locality’s processes,
and may speed the pace of review.435 To the extent that an applicant voluntarily engages in a pre-
application review to smooth the way for its filing, the shot clock will begin when an application is filed,
presumably after the pre-application review has concluded.
147.We also reiterate, consistent with the 2009 Declaratory Ruling, that the remedies granted
under Section 332(c)(7)(B)(v) are independent of, and in addition to, any remedies that may be available
under state or local law.436 Thus, where a state or locality has established its own shot clocks, an applicant
may pursue any remedies granted under state or local law in cases where the siting authority fails to act
within those shot clocks.437 However, the applicant must wait until the Commission shot clock period has
expired to bring suit for a “failure to act” under Section 332(c)(7)(B)(v).438
V.PROCEDURAL MATTERS
148.Final Regulatory Flexibility Analysis. With respect to this Third Report and Order, a
Final Regulatory Flexibility Analysis (FRFA) is contained in Appendix C. As required by Section 603 of
(Continued from previous page)
Communities Comments at 15, 35 (pre-application procedures “may translate into faster consideration of individual
applications over the longer term, as providers and communities alike, gain a better understanding of what is required
of them, and providers submit applications that are tailored to community requirements”); UT Dept. of Trans.
Comments at 5 (“The purpose of the pre-application access meeting is to help the entity or person with the application
and provide information concerning the requirements contained in the rule.”); CCUA at al. Reply at 6 (“[Pre-
application meetings] provide an opportunity for informal discussion between prospective applicants and the local
jurisdiction. Pre-application meetings serve to educate, answer questions, clarify process issues, and ultimately result
in a more efficient process from application filing to final action.”); AASHTO Comments, Attach. at 3 (GA Dept. of
Trans. contending that pre-application procedures “should be encouraged and separated from an ‘official’ “application
submittal”); League of Az Cities and Towns et al. Comments at 5-7 (providing examples of incomplete applications).
432 2014 Wireless Infrastructure Order, 29 FCC Rcd at 12971, at para. 265.
433 See, e.g., CCA Reply at 7; GCI Comments at 8-9; WIA Comments at 24; Crown Castle Comments at 21-22;
CTIA Reply at 21; CIC Comments at 18; WIA Reply at 14; Conterra Comments at 2-3; Crown Castle Comments at
30-31; CTIA Comments at 15; ExteNet Comments at 4, 15-16; Mobilitie Comments at 6; T-Mobile Comments at
21-22; Verizon Comment at 42-43; AT&T Comments at 26.
434 47 U.S.C. § 332(c)(7)(B)(ii).
435 See CCUA et al. Comments at 14; Smart Communities Comments at 15, 35; UT Dept. of Trans. Comments at 5;
CCUA et al. Reply at 6; Mukilteo Reply, Docket No. WC 17-84, at 1 (filed July 10, 2017).
436 2009 Declaratory Ruling, 24 FCC Rcd at 14013-14, para. 50.
437 2009 Declaratory Ruling, 24 FCC Rcd at 14013-14, para. 50.
438 47 U.S.C. § 332(c)(7)(B)(v).
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the Regulatory Flexibility Act, the Commission has prepared a FRFA of the expected impact on small
entities of the requirements adopted in this Third Report and Order. The Commission will send a copy of
the Third Report and Order, including the FRFA, to the Chief Counsel for Advocacy of the Small
Business Administration.
149.Paperwork Reduction Act. This Third Report and Order does not contain new or revised
information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law
104-13.
150.Congressional Review Act. The Commission will send a copy of this Declaratory Ruling
and Third Report and Order in a report to be sent to Congress and the Government Accountability Office
pursuant to the Congressional Review Act (CRA), see 5 U.S.C. § 801(a)(1)(A).
VI.ORDERING CLAUSES
151.Accordingly, IT IS ORDERED, pursuant to Sections 1, 4(i)-(j), 7, 201, 253, 301, 303,
309, 319, and 332 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 154(i)-(j), 157,
201, 253, 301, 303, 309, 319, 332, that this Declaratory Ruling and Third Report and Order in WT Docket
No. 17-79 IS hereby ADOPTED.
152.IT IS FURTHER ORDERED that Part 1 of the Commission’s Rules is AMENDED as set
forth in Appendix A, and that these changes SHALL BE EFFECTIVE 90 days after publication in the
Federal Register.
153.IT IS FURTHER ORDERED that this Third Report and Order SHALL BE effective 90
days after its publication in the Federal Register. The Declaratory Ruling and the obligations set forth
therein ARE EFFECTIVE on the same day that this Third Report and Order becomes effective. It is our
intention in adopting the foregoing Declaratory Ruling and these rule changes that, if any provision of the
Declaratory Ruling or the rules, or the application thereof to any person or circumstance, is held to be
unlawful, the remaining portions of such Declaratory Ruling and the rules not deemed unlawful, and the
application of such Declaratory Ruling and the rules to other person or circumstances, shall remain in
effect to the fullest extent permitted by law.
154.IT IS FURTHER ORDERED that, pursuant to 47 CFR § 1.4(b)(1), the period for filing
petitions for reconsideration or petitions for judicial review of this Declaratory Ruling and Third Report
and Order will commence on the date that a summary of this Declaratory Ruling and Third Report and
Order is published in the Federal Register.
155.IT IS FURTHER ORDERED that the Commission’s Consumer & Governmental Affairs
Bureau, Reference Information Center, SHALL SEND a copy of this Declaratory Ruling and Third
Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy
of the Small Business Administration.
156.IT IS FURTHER ORDERED that this Declaratory Ruling and Third Report and Order
SHALL BE sent to Congress and the Government Accountability Office pursuant to the Congressional
Review Act, see 5 U.S.C. 801(a)(1)(A).
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
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APPENDIX A
Final Rules
Streamlining State and Local Review of Wireless Facility Siting Applications
Part 1—Practice and Procedure
1. Add subpart U to Part 1 of Title 47 to read as follows:
Subpart U—State and Local Government Regulation of the Placement,
Construction, and Modification of Personal Wireless Service Facilities
§ 1.6001 Purpose.
This subpart implements 47 U.S.C. 332(c)(7) and 1455.
§ 1.6002 Definitions.
Terms used in this subpart have the following meanings:
(a) Action or to act on a siting application means a siting authority’s grant of a siting application or
issuance of a written decision denying a siting application.
(b) Antenna, consistent with section 1.1320(d), means an apparatus designed for the purpose of emitting
radiofrequency (RF) radiation, to be operated or operating from a fixed location pursuant to Commission
authorization, for the provision of personal wireless service and any commingled information services.
For purposes of this definition, the term antenna does not include an unintentional radiator, mobile
station, or device authorized under part 15 of this title.
(c) Antenna equipment, consistent with section 1.1320(d), means equipment, switches, wiring, cabling,
power sources, shelters or cabinets associated with an antenna, located at the same fixed location as the
antenna, and, when collocated on a structure, is mounted or installed at the same time as such antenna.
(d) Antenna facility means an antenna and associated antenna equipment.
(e) Applicant means a person or entity that submits a siting application and the agents, employees, and
contractors of such person or entity.
(f) Authorization means any approval that a siting authority must issue under applicable law prior to the
deployment of personal wireless service facilities, including, but not limited to, zoning approval and
building permit.
(g) Collocation, consistent with section 1.1320(d) and the Nationwide Programmatic Agreement (NPA)
for the Collocation of Wireless Antennas, Appendix B of this part, section I.B, means—
(1) Mounting or installing an antenna facility on a pre-existing structure, and/or
(2) Modifying a structure for the purpose of mounting or installing an antenna facility on that
structure.
(3) The definition of “collocation” in paragraph (b)(2) of section 1.6100 applies to the term as
used in that section.
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(h) Deployment means placement, construction, or modification of a personal wireless service facility.
(i) Facility or personal wireless service facility means an antenna facility or a structure that is used for the
provision of personal wireless service, whether such service is provided on a stand-alone basis or
commingled with other wireless communications services.
(j) Siting application or application means a written submission to a siting authority requesting
authorization for the deployment of a personal wireless service facility at a specified location.
(k) Siting authority means a State government, local government, or instrumentality of a State
government or local government, including any official or organizational unit thereof, whose
authorization is necessary prior to the deployment of personal wireless service facilities.
(l) Small wireless facilities, consistent with section 1.1312(e)(2), are facilities that meet each of the
following conditions:
(1) The facilities—
(i) are mounted on structures 50 feet or less in height including their antennas as defined in
section 1.1320(d), or
(ii) are mounted on structures no more than 10 percent taller than other adjacent structures, or
(iii) do not extend existing structures on which they are located to a height of more than 50 feet or
by more than 10 percent, whichever is greater;
(2)Each antenna associated with the deployment, excluding associated antenna equipment (as
defined in the definition of antenna in section 1.1320(d)), is no more than three cubic feet in volume;
(3)All other wireless equipment associated with the structure, including the wireless equipment
associated with the antenna and any pre-existing associated equipment on the structure, is no more
than 28 cubic feet in volume;
(4)The facilities do not require antenna structure registration under part 17 of this chapter;
(5)The facilities are not located on Tribal lands, as defined under 36 CFR 800.16(x); and
(6) The facilities do not result in human exposure to radiofrequency radiation in excess of the
applicable safety standards specified in section 1.1307(b).
(m) Structure means a pole, tower, base station, or other building, whether or not it has an existing
antenna facility, that is used or to be used for the provision of personal wireless service (whether on its
own or comingled with other types of services).
Terms not specifically defined in this section or elsewhere in this subpart have the meanings defined in
Part 1 of Title 47 and the Communications Act of 1934, 47 U.S.C. 151 et seq.
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§ 1.6003 Reasonable periods of time to act on siting applications
(a) Timely action required. A siting authority that fails to act on a siting application on or before the shot
clock date for the application, as defined in paragraph (e) of this section, is presumed not to have acted
within a reasonable period of time.
(b) Shot clock period. The shot clock period for a siting application is the sum of—
(1)the number of days of the presumptively reasonable period of time for the pertinent type of
application, pursuant to paragraph (c) of this section, plus
(2)the number of days of the tolling period, if any, pursuant to paragraph (d) of this section.
(c) Presumptively reasonable periods of time.
(1)The following are the presumptively reasonable periods of time for action on applications seeking
authorization for deployments in the categories set forth below:
(i) Review of an application to collocate a Small Wireless Facility using an existing structure: 60
days.
(ii) Review of an application to collocate a facility other than a Small Wireless Facility using an
existing structure: 90 days.
(iii) Review of an application to deploy a Small Wireless Facility using a new structure: 90 days.
(iv) Review of an application to deploy a facility other than a Small Wireless Facility using a
new structure: 150 days.
(2)Batching.
(i) If a single application seeks authorization for multiple deployments, all of which fall within a
category set forth in either paragraph (c)(1)(i) or paragraph (c)(1)(iii) of this section, then the
presumptively reasonable period of time for the application as a whole is equal to that for a single
deployment within that category.
(ii) If a single application seeks authorization for multiple deployments, the components of
which are a mix of deployments that fall within paragraph (c)(1)(i) and deployments that fall
within paragraph (c)(1)(iii) of this section, then the presumptively reasonable period of time for
the application as a whole is 90 days.
(iii) Siting authorities may not refuse to accept applications under paragraphs (c)(2)(i) and
(c)(2)(ii).
(d) Tolling period. Unless a written agreement between the applicant and the siting authority provides
otherwise, the tolling period for an application (if any) is as set forth below.
(1) For an initial application to deploy Small Wireless Facilities, if the siting authority notifies the
applicant on or before the 10th day after submission that the application is materially incomplete,
and clearly and specifically identifies the missing documents or information and the specific rule or
regulation creating the obligation to submit such documents or information, the shot clock date
calculation shall restart at zero on the date on which the applicant submits all the documents and
information identified by the siting authority to render the application complete.
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(2) For all other initial applications, the tolling period shall be the number of days from –
(i) The day after the date when the siting authority notifies the applicant in writing that the
application is materially incomplete and clearly and specifically identifies the missing documents
or information that the applicant must submit to render the application complete and the specific
rule or regulation creating this obligation, until
(ii) The date when the applicant submits all the documents and information identified by the
siting authority to render the application complete,
(iii) But only if the notice pursuant to paragraph (d)(2)(i) is effectuated on or before the 30th day
after the date when the application was submitted; or
(3) For resubmitted applications following a notice of deficiency, the tolling period shall be the
number of days from—
(i) The day after the date when the siting authority notifies the applicant in writing that the
applicant’s supplemental submission was not sufficient to render the application complete and
clearly and specifically identifies the missing documents or information that need to be submitted
based on the siting authority’s original request under paragraph (d)(1) or paragraph (d)(2) of this
section, until
(ii) The date when the applicant submits all the documents and information identified by the
siting authority to render the application complete,
(iii) But only if the notice pursuant to paragraph (d)(3)(i) is effectuated on or before the 10th day
after the date when the applicant makes a supplemental submission in response to the siting
authority’s request under paragraph (d)(1) or paragraph (d)(2) of this section.
(e) Shot clock date. The shot clock date for a siting application is determined by counting forward,
beginning on the day after the date when the application was submitted, by the number of calendar days
of the shot clock period identified pursuant to paragraph (b) of this section and including any pre-
application period asserted by the siting authority; provided, that if the date calculated in this manner is a
“holiday” as defined in section 1.4(e)(1) or a legal holiday within the relevant State or local jurisdiction,
the shot clock date is the next business day after such date. The term “business day” means any day as
defined in section 1.4(e)(2) and any day that is not a legal holiday as defined by the State or local
jurisdiction.
3.Redesignate § 1.40001 as § 1.6100, remove and reserve paragraph (a) of newly redesignated
§ 1.6100, and revise paragraph (b)(7)(vi) of newly redesignated § 1.6100 by changing
“1.40001(b)(7)(i)(iv)” to “1.6100(b)(7)(i)-(iv).”
4.Remove subpart CC.
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APPENDIX B
Comments and Reply Comments
Comments
5G Americas
Aaron Rosenzweig
ACT | The App Association
Advisory Council on Historic Preservation
Advisors to the International EMF Scientist Appeal
African American Mayors Association
Agua Caliente Band of Cahuilla Indians Tribal Historic Preservation Office
Alaska Department of Transportation & Public Facilities
Alaska Native Health Board
Alaska Office of History and Archaeology
Alexandra Ansell
American Association of State Highway and Transportation Officials
American Bird Conservancy
American Cable Association
American Petroleum Institute
American Public Power Association
Angela Fox
Arctic Slope Regional Corporation
Arizona State Parks & Trails, State Historic Preservation Office
Arkansas SHPO
Arnold A. McMahon
Association of American Railroads
AT&T
B. Golomb
Bad River Band of Lake Superior Tribe of Chippewa Indians
Benjamin L. Yousef
BioInitiative Working Group
Blue Lake Rancheria
Board of County Road Commissioners of the County of Oakland
Bristol Bay Area Health Corporation
Cahuilla Band of Indians
California Office of Historic Preservation, Department of Parks and Recreation
California Public Utilities Commission
Cape Cod Bird Club, Inc.
Catawba Indian Nation Tribal Historic Preservation Office
Charter Communications, Inc.
Cheyenne River Sioux Tribe Cultural Preservation Office
Chickasaw Nation
Chippewa Cree Tribe
Choctaw Nation of Oklahoma
Chuck Matzker
Cindy Li
Cindy Russell
Cities of San Antonio, Texas; Eugene, Oregon; Bowie, Maryland; Huntsville, Alabama; and Knoxville,
Tennessee
Citizen Potawatomi Nation
Citizens Against Government Waste
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City and County of San Francisco
City of Alexandria, Virginia; Arlington County, Virginia; and Henrico County, Virginia
City of Arlington, Texas
City of Austin, Texas
City of Bellevue, City of Bothell, City of Burien, City of Ellensburg, City of Gig Harbor, City of
Kirkland, City of Mountlake Terrace, City of Mukilteo, City of Normandy Park, City of Puyallup,
City of Redmond, and City of Walla Walla
City of Chicago
City of Claremont (Tony Ramos, City Manager)
City of Eden Prairie, MN
City of Houston
City of Irvine, California
City of Kenmore, Washington, and David Baker, Vice-Chair, National League of Cities Information
Technology and Communications Committee
City of Lansing, Michigan
City of Mukilteo
City of New Orleans, Louisiana
City of New York
City of Philadelphia
City of Springfield, Oregon
Cityscape Consultants, Inc.
Coalition for American Heritage, Society for American Archaeology, American Cultural Resources
Association, Society for Historical Archaeology, and American Anthropological Association
Colorado Communications and Utility Alliance (CCUA), Rainier Communications Commission (RCC),
City of Seattle, Washington, City of Tacoma, Washington, King County, Washington, Jersey
Access Group (JAG), and Colorado Municipal League (CML)
Colorado River Indian Tribes
Colorado State Historic Preservation Office
Comcast Corporation
Commissioner Sal Pace, Pueblo Board of County Commissioners
Community Associations Institute
Competitive Carriers Association
CompTIA (The Computing Technology Industry Association)
Computer & Communications Industry Association (CCIA)
Confederated Tribes of the Colville Reservation
Confederated Tribes of the Umatilla Indian Reservation Cultural Resources Protection Program
Consumer Technology Association
Conterra Broadband Services, Southern Light, LLC, and Uniti Group, Inc.
Critical Infrastructure Coalition
Crow Creek Sioux Tribe
Crown Castle
CTIA
CTIA and Wireless Infrastructure Association
David Roetman, Minnehaha County GOP Chairman
Defenders of Wildlife
Department of Arkansas Heritage (Arkansas Historic Preservation Program)
DuPage Mayors and Managers Conference
East Bay Municipal Utility District
Eastern Shawnee Tribe of Oklahoma
Edward Czelada
Elijah Mondy
Elizabeth Doonan
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Ellen Marks
EMF Safety Network, Ecological Options Network
Environmental Health Trust
ExteNet Systems, Inc.
Fairfax County, Virginia
FibAire Communications, LLC d/b/a AireBeam
Florida Coalition of Local Governments
Fond du Lac Band of Lake Superior Chippewa
Forest County Potawatomi Community of Wisconsin
Fort Belknap Indian Community
Free State Foundation
General Communication, Inc.
Georgia Department of Transportation
Georgia Historic Preservation Division
Georgia Municipal Association, Inc.
Gila River Indian Community
Greywale Advisors
History Colorado (Colorado State Historic Preservation Office)
Hongwei Dong
Hualapai Department of Cultural Resources
Illinois Department of Transportation
Illinois Municipal League
INCOMPAS
Information Technology and Innovation Foundation
International Telecommunications Users Group
Jack Li
Jackie Cale
Jerry Day
Joel M. Moskowitz, Ph.D.
Jonathan Mirin
Joyce Barrett
Karen Li
Karen Spencer
Karon Gubbrud
Kate Kheel
Kaw Nation
Kevin Mottus
Keweenaw Bay Indian Community
Kialegee Tribal Town
League of Arizona Cities and Towns, League of California Cities, and League of Oregon Cities
League of Minnesota Cities
Leo Cashman
Lower Brule Sioux Tribe
Li Sun
Lightower Fiber Networks
Lisbeth Britt
Lower Brule Sioux Tribe
Maine Department of Transportation
Marty Feffer
Mary Whisenand, Iowa Governor’s Commission on Community Action Agencies
Mashantucket (Western) Pequot Tribe
Mashpee Wampanoag Tribe
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Matthew Goulet
Mayor Patrick Furey, City of Torrance, California
McLean Citizens Association
Miami Tribe of Oklahoma
Missouri State Historic Preservation Office
Mobile Future
Mobilitie, LLC
Mohegan Tribe of Indians of Connecticut
Montana State Historic Preservation Office
Monte R. Lee and Company
Muckleshoot Indian Tribe
Muscogee (Creek) Nation
National Association of Tower Erectors (NATE)
National Association of Tribal Historic Preservation Officers
National Black Caucus of State Legislators
National Conference of State Historic Preservation Officers
National Congress of American Indians
National Congress of American Indians, National Association of Tribal Historic Preservation Officers,
and United South and Eastern Tribes Sovereignty Protection Fund
National Congress of American Indians and United South and Eastern Tribes Sovereignty Protection
Fund
National League of Cities
National League of Cities, United States Conference of Mayors, International Municipal Lawyers
Association, Government Finance Officers Association, National Association of Counties,
National Association of Regional Councils, National Association of Towns and Townships, and
National Association of Telecommunications Officers and Advisors
National Tribal Telecommunications Association
National Trust for Historic Preservation
Native Public Media
NATOA
Natural Resources Defense Council
Navajo Nation and the Navajo Nation Telecommunications Regulatory Commission
Naveen Albert
NCTA—The Internet & Television Association
nepsa solutions LLC
New Mexico Department of Cultural Affairs, Historic Preservation Division
Nez Perce Tribe
Nina Beety
Nokia
North Carolina State Historic Preservation Office
Northern Cheyenne Tribal Historic Preservation Office
NTCA—The Rural Broadband Association
Office of Historic Preservation for the Mashantucket Pequot Tribal Nation of Connecticut
Ohio State Historic Preservation Office
Oklahoma History Center State Historic Preservation Office
Olemara Peters
Omaha Tribe of Nebraska
ONE Media, LLC
Oregon State Historic Preservation Office
Osage Nation
Otoe-Missouria Tribe
Pala Band of Mission Indians
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Patrick Wronkiewicz
Pechanga Band of Luiseno Indians
Pennsylvania State Historic Preservation Office
Prairie Island Indian Community
PTA-FLA, Inc .
Pueblo of Laguna
Pueblo of Pojoaque
Pueblo of Tesuque
Puerto Rico State Historic Preservation Office
Quad Cities Cable Communications Commission
Quapaw Tribe of Oklahoma
R Street Institute
Rebecca Carol Smith
Red Cliff Band of Lake Superior Chippewa
Representative Tom Sloan, State of Kansas House of Representatives
Representatives Anna G. Eshoo, Frank Pallone, Jr., and Raul Ruiz, U.S. House of Representatives
Rhode Island Historical Preservation and Heritage Commission
Rosebud Sioux Tribe Tribal Historic Preservation Cultural Resource Management Office
Ronald M. Powell, Ph.D.
S. Quick
Sacred Wind Communications, Inc.
Samsung Electronics America, Inc.
Santa Clara Pueblo
Sault Ste. Marie Tribe of Chippewa Indians
SCAN NATOA, Inc.
Seminole Nation of Oklahoma
Seminole Tribe of Florida
Senator Duane Ankney, Montana State Senate
Shawnee Tribe
Sisseton Wahpeton Oyate
Skokomish Indian Tribe Tribal Historic Preservation Office
Skull Valley Band of Goshute
Smart Communities and Special Districts Coalition
Soula Culver
Sprint
Standing Rock Sioux Tribe
Starry, Inc.
State of Washington Department of Archaeology & Historic Preservation
Sue Present
Swinomish Indian Tribal Community
Table Mountain Rancheria Tribal Government Office
Tanana Chiefs Conference
Telecommunications Industry Association
Texas Department of Transportation
Texas Historical Commission
Thlopthlocco Tribal Town
T-Mobile USA, Inc.
Tonkawa Tribe of Oklahoma
Triangle Communication System, Inc.
Twenty-Nine Palms Band of Mission Indians
United Keetoowah Band of Cherokee Indians In Oklahoma
Utah Department of Transportation
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Ute Mountain Ute Tribe
Utilities Technology Council
Verizon
Wampanoag Tribe of Gay Head (Aquinnah)
WEC Energy Group, Inc.
Wei Shen
Wei-Ching Lee, MD, California Medical Association Delegate of Los Angeles County
Winnebago Tribe of Nebraska
Wireless Infrastructure Association
Wireless Internet Service Providers Association
Xcel Energy Services Inc.
Reply Comments
Alaska State Historic Preservation Office
American Cable Association
American Public Power Association
Association of American Railroads
California Public Utilities Commission
Catherine Kleiber
Chippewa Cree Tribe
Cities of San Antonio, Texas; Eugene, Oregon; Bowie, Maryland; Huntsville, Alabama; and Knoxville,
Tennessee
City of Baltimore, Maryland
City of New York
City of Philadelphia
Colorado Communications and Utility Alliance (CCUA), Rainier Communications Commission (RCC),
City of Seattle, Washington, City of Tacoma, Washington, King County, Washington, Jersey
Access Group (JAG), and Colorado Municipal League (CML)
Comcast Corporation
Communications Workers of America
Competitive Carriers Association
Consumer Technology Association
Conterra Broadband Services, Southern Light, LLC, and Uniti Group Inc.
Critical Infrastructure Coalition
CTIA
Dan Kleiber
Enterprise Wireless Alliance
Environmental Health Trust
ExteNet Systems, Inc.
Florida Coalition of Local Governments
Confederated Tribes of Grand Ronde Community of Oregon Historic Preservation Department
INCOMPAS
Irregulators
League of Arizona Cities and Towns, League of California Cities, and League of Oregon Cities
National Association of Regulatory Utility Commissioners
National Association of Telecommunications Officers and Advisors, National League of Cities, National
Association of Towns and Townships, National Association of Regional Councils, United States
Conference of Mayors, and Government Finance Officers Association
National Congress of American Indians, United South and Eastern Tribes Sovereignty Protection Fund,
and National Association of Tribal Historic Preservation Officers
National Organization of Black Elected Legislative (NOBEL) Women
National Rural Electric Cooperative Association
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Navajo Nation and the Navajo Nation Telecommunications Regulatory Commission
NCTA—The Internet & Television Association
Pueblo of Acoma
Puerto Rico Telephone Company, Inc., d/b/a Claro
Quintillion Networks, LLC, and Quintillion Subsea Operations, LLC
Rebecca Carol Smith
SDN Communications
Skyway Towers, LLC
SmallCellSite.Com
Smart Communities and Special Districts Coalition
Sue Present
The Greenlining Institute
T-Mobile USA, Inc.
Triangle Communication System, Inc.
United States Conference of Mayors
Verizon
Washington, D.C. Office of the Chief Technology Officer
Wireless Internet Service Providers Association
Xcel Energy Services Inc.
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APPENDIX C
Final Regulatory Flexibility Analysis
1.As required by the Regulatory Flexibility Act of 1980, as amended (RFA)1 an Initial
Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rulemaking (NPRM),
released in April 2017.2 The Commission sought written public comment on the proposals in the NPRM,
including comment on the IRFA. The comments received are addressed below in Section B. This present
Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.3
A.Need for and Objectives of the Rules
2.In the Third Report and Order, the Commission continues its efforts to promote the
timely buildout of wireless infrastructure across the country by eliminating regulatory impediments that
unnecessarily delay bringing personal wireless services to consumers. The record shows that lengthy
delays in approving siting applications by siting agencies has been a persistent problem.4 With this in
mind, the Third Report and Order establishes and codifies specific rules concerning the amount of time
siting agencies may take to review and approve certain categories of wireless infrastructure siting
applications. More specifically, the Commission addresses its Section 332 shot clock rules for
infrastructure applications which will be presumed reasonable under the Communications Act. As an
initial matter, the Commission establishes two new shot clocks for Small Wireless Facilities applications.
For collocation of Small Wireless Facilities on preexisting structures, the Commission adopts a 60-day
shot clock which applies to both individual and batched applications. For applications associated with
Small Wireless Facilities new construction we adopt a 90-day shot clock for both individual and batched
applications.5 The Commission also codifies two existing Section 332 shot clocks for all other Non-Small
Wireless Facilities that were established in the 2009 Declaratory Ruling without codification.6These
existing shot clocks require 90-days for processing of all other Non-Small Wireless Facilities collocation
applications, and 150-days for processing of all other Non-Small Wireless Facilities applications other
than collocations.
3.The Third Report and Order addresses other issues related to both the existing and new
shot clocks. In particular we address the specific types of authorizations subject to the “Reasonable
Period of Time” provisions of Section 332(c)(7)(B)(ii), finding that “any request for authorization to
place, construct, or modify personal wireless service facilities” under Section 332(c)(7)(B)(ii) means all
authorizations a locality may require, and to all aspects of and steps in the siting process, including
license or franchise agreements to access ROW, building permits, public notices and meetings, lease
negotiations, electric permits, road closure permits, aesthetic approvals, and other authorizations needed
for deployment of personal wireless services infrastructure. 7 The Commission also addresses collocation
on structures not previously zoned for wireless use,8 when the four Section 332 shot clocks begin to run, 9
1 See 5 U.S.C. § 603. The RFA, see 5 U.S.C. §§ 601—612, has been amended by the Small Business Regulatory
Enforcement Fairness Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996).
2 See Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Deployment, Notice of
Proposed Rulemaking, 32 FCC Rcd 3330 (2017).
3 See 5 U.S.C. § 604.
4 See supra paras. 23-9.
5 See supra paras. 111-12.
6 See supra paras. 138-39; 2009 Declaratory Ruling.
7 See supra paras. 132-37.
8 See supra para. 140.
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the impact of incomplete applications on our Section 332 shot clocks,10 and how state imposed shot
clocks remedies effect the Commission’s Section 332 shot clocks remedies.11
4.The Commission discusses the appropriate judicial remedy that applicants may pursue in
cases where a siting authority fails to act within the applicable shot clock period.12 In those situations,
applicants may commence an action in a court of competent jurisdiction alleging a violation of Section
332(c)(7)(B)(i)(II) and seek injunctive relief granting the application. Notwithstanding the availability of
a judicial remedy if a shot clock deadline is missed, the Commission recognizes that the Section 332 time
frames might not be met in exceptional circumstances and has refined its interpretation of the
circumstances when a period of time longer than the relevant shot clock would nonetheless be a
reasonable period of time for action by a siting agency.13 In addition, a siting authority that is subject to a
court action for missing an applicable shot clock deadline has the opportunity to demonstrate that the
failure to act was reasonable under the circumstances and, therefore, did not materially limit or inhibit the
applicant from introducing new services or improving existing services thereby rebutting the effective
prohibition presumption.
5.The rules adopted in the Third Report and Order will accelerate the deployment of
wireless infrastructure needed for the mobile wireless services of the future, while preserving the
fundamental role of localities in this process. Under the Commission’s new rules, localities will maintain
control over the placement, construction and modification of personal wireless facilities, while at the
same time the Commission’s new process will streamline the review of wireless siting applications.
B.Summary of Significant Issues Raised by Public Comments in Response to the IRFA
6.Only one party—the Smart Communities and Special Districts Coalition—filed
comments specifically addressing the rules and policies proposed in the IRFA. They argue that any
shortening or alteration of the Commission’s existing shot clocks or the adoption of a deemed granted
remedy will adversely affect small local governments, special districts, property owners, small
developers, and others by placing their siting applications behind wireless provider siting applications.14
Subsequently, NATOA filed comments concerning the draft FRFA.15 NATOA argues that the new shot
clocks impose burdens on local governments and particularly those with limited resources. NATOA
asserts that the new shot clocks will spur more deployment applications than localities currently process.
7.These arguments, however, fail to acknowledge that Section 332 shot clocks have been in
place for years and reflect Congressional intent as seen in the statutory language of Section 332. The
record in this proceeding demonstrates the need for, and reasonableness of, expediting the siting review of
certain facility deployments.16 More streamlined procedures are both reasonable and necessary to provide
greater predictability. The current shot clocks do not reflect the evolution of the application review
process and evidence that localities can complete reviews more quickly than was the case when the
original shot clocks were adopted nine years ago. Localities have gained significant experience
processing wireless siting applications and several jurisdictions already have in place laws that require
(Continued from previous page)
9 See supra paras. 141-46.
10 Id.
11 See supra para. 147.
12 See supra paras. Error! Reference source not found.-131.
13 See supra para. 127.
14 Smart Communities Comments at 81; see also Letter from Gerard Lavery Lederer, Counsel, Smart Communities,
to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79, Ex Parte Submission at 33 (filed Sept. 19, 2018).
15 Letter from Nancy Werner, NATOA, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79, at 4-5 (filed
Sept. 19, 2018).
16 See supra para. 106.
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applications to be processed in less time than the Commission’s new shot clocks. With the passage of
time, sitting agencies have become more efficient in processing siting applications and this, in turn,
should reduce any economic burden the Commission’s new shot clock provisions have on them.
8.The Commission has carefully considered the impact of its new shot clocks on siting
authorities and has established shot clocks that take into consideration the nature and scope of siting
requests by establishing shot clocks of different lengths of time that depend on the nature of the siting
request at issue. 17 The length of these shot clocks is based in part on the need to ensure that local
governments have ample time to take any steps needed to protect public safety and welfare and to process
other pending utility applications.18 Since local siting authorities have gained experience in processing
siting requests in an expedited fashion, they should be able to comply with the Commission’s new shot
clocks.
9.The Commission has taken into consideration the concerns of the Smart Communities
and Special Districts Coalition and NATOA. It has established shot clocks that will not favor wireless
providers over other applicants with pending siting applications. Further, instead of adopting a deemed
granted remedy that would grant a siting application when a shot clock lapses without a decision on the
merits, the Commission provides guidance as to the appropriate judicial remedy that applicants may
pursue and examples of exceptional circumstance where a siting authority may be justified in needing
additional time to review a siting application then the applicable shot clock allows. 19 Under this
approach, the applicant may seek injunctive relief as long as several minimum requirements are met. The
siting authority, however, can rebut the presumptive reasonableness of the applicable shot clock under
certain circumstances. The circumstances under which a sitting authority might have to do this will be
rare. Under this carefully crafted approach, the interests of siting applicants, siting authorities, and
citizens are protected.
C.Response to Comments by the Chief Counsel for Advocacy of the Small Business
Administration
10.Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the
Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the
Small Business Administration (SBA), and to provide a detailed statement of any change made to the
proposed rules as a result of those comments.20
11.The Chief Counsel did not file any comments in response to the proposed rules in this
proceeding.
D.Description and Estimate of the Number of Small Entities to Which the Rules Will
Apply
12.The RFA directs agencies to provide a description of, and where feasible, an estimate of
the number of small entities that may be affected by the rules adopted herein.21 The RFA generally
defines the term “small entity” as having the same meaning as the terms “small business,” “small
organization,” and “small governmental jurisdiction.”22 In addition, the term “small business” has the
same meaning as the term “small business concern” under the Small Business Act.23 A “small business
17 See supra paras. 105-112.
18 Id.
19 See supra paras. 116-131.
20 5 U.S.C. § 604(a)(3).
21 See 5 U.S.C. § 604(a)(3).
22 5 U.S.C. § 601(6).
23 5 U.S.C. § 601(3) (incorporating by reference the definition of “small-business concern” in the Small Business
Act, 15 U.S.C. § 632). Pursuant to 5 U.S.C. § 601(3), the statutory definition of a small business applies “unless an
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concern” is one which: (1) is independently owned and operated; (2) is not dominant in its field of
operation; and (3) satisfies any additional criteria established by the SBA.24
13.Small Businesses, Small Organizations, Small Governmental Jurisdictions. Our actions,
over time, may affect small entities that are not easily categorized at present. We therefore describe here,
at the outset, three broad groups of small entities that could be directly affected herein.25 First, while
there are industry specific size standards for small businesses that are used in the regulatory flexibility
analysis, according to data from the SBA’s Office of Advocacy, in general a small business is an
independent business having fewer than 500 employees.26 These types of small businesses represent 99.9
percent of all businesses in the United States which translates to 28.8 million businesses.27
14.Next, the type of small entity described as a “small organization” is generally “any not-
for-profit enterprise which is independently owned and operated and is not dominant in its field.”28
Nationwide, as of August 2016, there were approximately 356,494 small organizations based on
registration and tax data filed by nonprofits with the Internal Revenue Service (IRS).29
15.Finally, the small entity described as a “small governmental jurisdiction” is defined
generally as “governments of cities, counties, towns, townships, villages, school districts, or special
districts, with a population of less than fifty thousand.”30 U.S. Census Bureau data from the 2012 Census
of Governments31 indicate that there were 90,056 local governmental jurisdictions consisting of general
purpose governments and special purpose governments in the United States.32 Of this number there were
(Continued from previous page)
agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity
for public comment, establishes one or more definitions of such term which are appropriate to the activities of the
agency and publishes such definition(s) in the Federal Register.”
24 15 U.S.C. § 632.
25 See 5 U.S.C. § 601(3)-(6).
26 See SBA, Office of Advocacy, “Frequently Asked Questions, Question 1—What is a small business?”
https://www.sba.gov/sites/default/files/advocacy/SB-FAQ-2016_WEB.pdf (June 2016).
27 See SBA, Office of Advocacy, “Frequently Asked Questions, Question 2- How many small businesses are there in
the U.S.?” https://www.sba.gov/sites/default/files/advocacy/SB-FAQ-2016_WEB.pdf (June 2016).
28 5 U.S.C. § 601(4).
29 Data from the Urban Institute, National Center for Charitable Statistics (NCCS) reporting on nonprofit
organizations registered with the IRS was used to estimate the number of small organizations. Reports generated
using the NCCS online database indicated that as of August 2016 there were 356,494 registered nonprofits with total
revenues of less than $100,000. Of this number 326,897 entities filed tax returns with 65,113 registered nonprofits
reporting total revenues of $50,000 or less on the IRS Form 990-N for Small Exempt Organizations and 261,784
nonprofits reporting total revenues of $100,000 or less on some other version of the IRS Form 990 within 24 months
of the August 2016 data release date. See http://nccs.urban.org/sites/all/nccs-archive/html//tablewiz/tw.php where
the report showing this data can be generated by selecting the following data fields: Report: “The Number and
Finances of All Registered 501(c) Nonprofits”; Show: “Registered Nonprofits”; By: “Total Revenue Level (years
1995, Aug to 2016, Aug)”; and For: “2016, Aug” then selecting “Show Results”.
30 5 U.S.C. § 601(5).
31 See 13 U.S.C. § 161. The Census of Government is conducted every five (5) years compiling data for years
ending with “2” and “7”. See also Program Description Census of Government
https://factfinder.census.gov/faces/affhelp/jsf/pages/metadata.xhtml?lang=en&type=program&id=program.en.CO
G#.
32 See U.S. Census Bureau, 2012 Census of Governments, Local Governments by Type and State: 2012 - United
States-States. https://factfinder.census.gov/bkmk/table/1.0/en/COG/2012/ORG02.US01. Local governmental
jurisdictions are classified in two categories - General purpose governments (county, municipal and town or
township) and Special purpose governments (special districts and independent school districts).
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37, 132 General purpose governments (county33, municipal and town or township34) with populations of
less than 50,000 and 12,184 Special purpose governments (independent school districts35 and special
districts36) with populations of less than 50,000. The 2012 U.S. Census Bureau data for most types of
governments in the local government category show that the majority of these governments have
populations of less than 50,000.37 Based on this data we estimate that at least 49,316 local government
jurisdictions fall in the category of “small governmental jurisdictions.”38.
16.Wireless Telecommunications Carriers (except Satellite). This industry comprises
establishments engaged in operating and maintaining switching and transmission facilities to provide
communications via the airwaves. Establishments in this industry have spectrum licenses and provide
services using that spectrum, such as cellular services, paging services, wireless Internet access, and
wireless video services.39 The appropriate size standard under SBA rules is that such a business is small
if it has 1,500 or fewer employees.40 For this industry, U.S. Census data for 2012 show that there were
967 firms that operated for the entire year.41 Of this total, 955 firms had employment of 999 or fewer
employees and 12 had employment of 1000 employees or more.42 Thus under this category and the
associated size standard, the Commission estimates that the majority of wireless telecommunications
33 See U.S. Census Bureau, 2012 Census of Governments, County Governments by Population-Size Group and
State: 2012 - United States-States. https://factfinder.census.gov/bkmk/table/1.0/en/COG/2012/ORG06.US01. There
were 2,114 county governments with populations less than 50,000.
34 See U.S. Census Bureau, 2012 Census of Governments, Subcounty General-Purpose Governments by Population-
Size Group and State: 2012 - United States—States.
https://factfinder.census.gov/bkmk/table/1.0/en/COG/2012/ORG07.US01. There were 18,811 municipal and 16,207
town and township governments with populations less than 50,000.
35 See U.S. Census Bureau, 2012 Census of Governments, Elementary and Secondary School Systems by
Enrollment-Size Group and State: 2012 - United States-States.
https://factfinder.census.gov/bkmk/table/1.0/en/COG/2012/ORG11.US01. There were 12,184 independent school
districts with enrollment populations less than 50,000.
36 See U.S. Census Bureau, 2012 Census of Governments, Special District Governments by Function and State:
2012 - United States-States. https://factfinder.census.gov/bkmk/table/1.0/en/COG/2012/ORG09.US01. The U.S.
Census Bureau data did not provide a population breakout for special district governments.
37 See U.S. Census Bureau, 2012 Census of Governments, County Governments by Population-Size Group and
State: 2012 - United States-States - https://factfinder.census.gov/bkmk/table/1.0/en/COG/2012/ORG06.US01;
Subcounty General-Purpose Governments by Population-Size Group and State: 2012 - United States–States -
https://factfinder.census.gov/bkmk/table/1.0/en/COG/2012/ORG07.US01; and Elementary and Secondary School
Systems by Enrollment-Size Group and State: 2012 - United States-States.
https://factfinder.census.gov/bkmk/table/1.0/en/COG/2012/ORG11.US01. While U.S. Census Bureau data did not
provide a population breakout for special district governments, if the population of less than 50,000 for this category
of local government is consistent with the other types of local governments the majority of the 38, 266 special
district governments have populations of less than 50,000.
38 Id.
39 U.S. Census Bureau, 2012 NAICS Definitions, “517210 Wireless Telecommunications Carriers (Except
Satellite),” See
https://factfinder.census.gov/faces/affhelp/jsf/pages/metadata.xhtml?lang=en&typib&id=ib.en./ECN.NAICS2012.51
7210.
40 13 CFR § 121.201, NAICS Code 517210.
41 U.S. Census Bureau, 2012 Economic Census of the United States, Table EC1251SSSZ5, Information: Subject
Series: Estab and Firm Size: Employment Size of Firms for the U.S.: 2012 NAICS Code 517210,
https://factfinder.census.gov/bkmk/table/1.0/en/ECN/2012_US/51SSSZ5//naics~517210.
42 Id. Available census data do not provide a more precise estimate of the number of firms that have employment of
1,500 or fewer employees; the largest category provided is for firms with “1000 employees or more.”
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carriers (except satellite) are small entities.
17.The Commission’s own data—available in its Universal Licensing System—indicate that,
as of May 17, 2018, there are 264 Cellular licensees that will be affected by our actions.43 The
Commission does not know how many of these licensees are small, as the Commission does not collect
that information for these types of entities. Similarly, according to Commission data, 413 carriers
reported that they were engaged in the provision of wireless telephony, including cellular service,
Personal Communications Service (PCS), and Specialized Mobile Radio (SMR) Telephony services.44 Of
this total, an estimated 261 have 1,500 or fewer employees and 152 have more than 1,500 employees.45
Thus, using available data, we estimate that the majority of wireless firms can be considered small.
18.Personal Radio Services. Personal radio services provide short-range, low-power radio
for personal communications, radio signaling, and business communications not provided for in other
services. Personal radio services include services operating in spectrum licensed under Part 95 of our
rules.46 These services include Citizen Band Radio Service, General Mobile Radio Service, Radio
Control Radio Service, Family Radio Service, Wireless Medical Telemetry Service, Medical Implant
Communications Service, Low Power Radio Service, and Multi-Use Radio Service.47 There are a variety
of methods used to license the spectrum in these rule parts, from licensing by rule, to conditioning
operation on successful completion of a required test, to site-based licensing, to geographic area licensing.
All such entities in this category are wireless, therefore we apply the definition of Wireless
Telecommunications Carriers (except Satellite), pursuant to which the SBA’s small entity size standard is
defined as those entities employing 1,500 or fewer persons.48 For this industry, U.S. Census data for 2012
show that there were 967 firms that operated for the entire year.49 Of this total, 955 firms had
employment of 999 or fewer employees and 12 had employment of 1000 employees or more.50 Thus
under this category and the associated size standard, the Commission estimates that the majority of firms
can be considered small. We note however that many of the licensees in this category are individuals and
not small entities. In addition, due to the mostly unlicensed and shared nature of the spectrum utilized in
many of these services, the Commission lacks direct information upon which to base an estimation of the
number of small entities that may be affected by our actions in this proceeding.
19.Public Safety Radio Licensees. Public Safety Radio Pool licensees as a general matter,
include police, fire, local government, forestry conservation, highway maintenance, and emergency
43 See http://wireless.fcc.gov/uls. For the purposes of this FRFA, consistent with Commission practice for wireless
services, the Commission estimates the number of licensees based on the number of unique FCC Registration
Numbers.
44 See Federal Communications Commission, Wireline Competition Bureau, Industry Analysis and Technology
Division, Trends in Telephone Service at Table 5.3 (Sept. 2010) (Trends in Telephone Service),
https://apps.fcc.gov/edocs_public/attachmatch/DOC-301823A1.pdf.
45 See id.
46 47 CFR Part 90.
47 The Citizens Band Radio Service, General Mobile Radio Service, Radio Control Radio Service, Family Radio
Service, Wireless Medical Telemetry Service, Medical Implant Communications Service, Low Power Radio
Service, and Multi-Use Radio Service are governed by subpart D, subpart A, subpart C, subpart B, subpart H,
subpart I, subpart G, and subpart J, respectively, of Part 95 of the Commission’s rules. See generally 47 CFR Part
95.
48 13 CFR § 121.201, NAICS Code 517312.
49 U.S. Census Bureau, 2012 Economic Census of the United States, Table EC1251SSSZ5, Information: Subject
Series: Estab and Firm Size: Employment Size of Firms for the U.S.: 2012 NAICS Code 517210,
https://factfinder.census.gov/bkmk/table/1.0/en/ECN/2012_US/51SSSZ5//naics~517210.
50 Id. Available census data do not provide a more precise estimate of the number of firms that have employment of
1,500 or fewer employees; the largest category provided is for firms with “1000 employees or more.”
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medical services.51 Because of the vast array of public safety licensees, the Commission has not
developed a small business size standard specifically applicable to public safety licensees. The closest
applicable SBA category is Wireless Telecommunications Carriers (except Satellite) which encompasses
business entities engaged in radiotelephone communications. The appropriate size standard for this
category under SBA rules is that such a business is small if it has 1,500 or fewer employees. 52 For this
industry, U.S. Census data for 2012 show that there were 967 firms that operated for the entire year.53 Of
this total, 955 firms had employment of 999 or fewer employees and 12 had employment of 1000
employees or more.54 Thus under this category and the associated size standard, the Commission
estimates that the majority of firms can be considered small. With respect to local governments, in
particular, since many governmental entities comprise the licensees for these services, we include under
public safety services the number of government entities affected. According to Commission records,
there are a total of approximately 133,870 licenses within these services.55 There are 3,121 licenses in the
4.9 GHz band, based on an FCC Universal Licensing System search of March 29, 2017.56 We estimate
that fewer than 2,442 public safety radio licensees hold these licenses because certain entities may have
multiple licenses.
20.Private Land Mobile Radio Licensees. Private land mobile radio (PLMR) systems serve
an essential role in a vast range of industrial, business, land transportation, and public safety activities.
These radios are used by companies of all sizes operating in all U.S. business categories. Because of the
vast array of PLMR users, the Commission has not developed a small business size standard specifically
applicable to PLMR users. The closest applicable SBA category is Wireless Telecommunications
Carriers (except Satellite) which encompasses business entities engaged in radiotelephone
communications.57 The appropriate size standard for this category under SBA rules is that such a business
51 See subparts A and B of Part 90 of the Commission’s Rules, 47 CFR §§ 90.1-90.22. Police licensees serve state,
county, and municipal enforcement through telephony (voice), telegraphy (code), and teletype and facsimile (printed
material). Fire licensees are comprised of private volunteer or professional fire companies, as well as units under
governmental control. Public Safety Radio Pool licensees also include state, county, or municipal entities that use
radio for official purposes. State departments of conservation and private forest organizations comprise forestry
service licensees that set up communications networks among fire lookout towers and ground crews. State and local
governments are highway maintenance licensees that provide emergency and routine communications to aid other
public safety services to keep main roads safe for vehicular traffic. Emergency medical licensees use these channels
for emergency medical service communications related to the delivery of emergency medical treatment. Additional
licensees include medical services, rescue organizations, veterinarians, persons with disabilities, disaster relief
organizations, school buses, beach patrols, establishments in isolated areas, communications standby facilities, and
emergency repair of public communications facilities.
52 See 13 CFR § 121.201, NAICS Code 517210.
53 U.S. Census Bureau, 2012 Economic Census of the United States, Table EC1251SSSZ5, Information: Subject
Series: Estab and Firm Size: Employment Size of Firms for the U.S.: 2012 NAICS Code 517210.
https://factfinder.census.gov/bkmk/table/1.0/en/ECN/2012_US/51SSSZ5//naics~517210.
54 Id. Available census data do not provide a more precise estimate of the number of firms that have employment of
1,500 or fewer employees; the largest category provided is for firms with “1000 employees or more.”
55 This figure was derived from Commission licensing records as of June 27, 2008. Licensing numbers change
daily. We do not expect this number to be significantly smaller as of the date of this order. This does not indicate
the number of licensees, as licensees may hold multiple licenses. There is no information currently available about
the number of public safety licensees that have less than 1,500 employees.
56 Based on an FCC Universal Licensing System search of March 29, 2017. Search parameters: Radio Service =
PA—Public Safety 4940-4990 MHz Band; Authorization Type = Regular; Status = Active.
57 U.S. Census Bureau, 2012 NAICS Definitions, “517210 Wireless Telecommunications Carriers (Except
Satellite),” See https://factfinder.census.gov/faces/affhelp/jsf/pages/metadata.xhtml?lang=en&type=
ib&id=ib.en./ECN.NAICS2012.517210 (last visited Mar. 6, 2018).
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is small if it has 1,500 or fewer employees.58 For this industry, U.S. Census data for 2012 show that there
were 967 firms that operated for the entire year.59 Of this total, 955 firms had employment of 999 or
fewer employees and 12 had employment of 1000 employees or more.60 Thus under this category and the
associated size standard, the Commission estimates that the majority of PLMR Licensees are small
entities.
21.According to the Commission’s records, a total of approximately 400,622 licenses
comprise PLMR users.61 Of this number there are a total of 3,374 licenses in the frequencies range
173.225 MHz to 173.375 MHz, which is the range affected by the Third Report and Order.62 The
Commission does not require PLMR licensees to disclose information about number of employees, and
does not have information that could be used to determine how many PLMR licensees constitute small
entities under this definition. The Commission however believes that a substantial number of PLMR
licensees may be small entities despite the lack of specific information.
22.Multiple Address Systems. Entities using Multiple Address Systems (MAS) spectrum, in
general, fall into two categories: (1) those using the spectrum for profit-based uses, and (2) those using
the spectrum for private internal uses. With respect to the first category, Profit-based Spectrum use, the
size standards established by the Commission define “small entity” for MAS licensees as an entity that
has average annual gross revenues of less than $15 million over the three previous calendar years.63 A
“Very small business” is defined as an entity that, together with its affiliates, has average annual gross
revenues of not more than $3 million over the preceding three calendar years.64 The SBA has approved
these definitions.65 The majority of MAS operators are licensed in bands where the Commission has
implemented a geographic area licensing approach that requires the use of competitive bidding
procedures to resolve mutually exclusive applications.
23.The Commission’s licensing database indicates that, as of April 16, 2010, there were a
total of 11,653 site-based MAS station authorizations. Of these, 58 authorizations were associated with
common carrier service. In addition, the Commission’s licensing database indicates that, as of April 16,
2010, there were a total of 3,330 Economic Area market area MAS authorizations. The Commission’s
licensing database also indicates that, as of April 16, 2010, of the 11,653 total MAS station
authorizations, 10,773 authorizations were for private radio service. In 2001, an auction for 5,104 MAS
58 See 13 CFR § 121.201, NAICS Code 517210.
59 U.S. Census Bureau, 2012 Economic Census of the United States, Table EC1251SSSZ5, Information: Subject
Series: Estab and Firm Size: Employment Size of Firms for the U.S.: 2012 NAICS Code 517210.
https://factfinder.census.gov/bkmk/table/1.0/en/ECN/2012_US/51SSSZ5//naics~517210.
60 Id. Available census data do not provide a more precise estimate of the number of firms that have employment of
1,500 or fewer employees; the largest category provided is for firms with “1000 employees or more.”
61 This figure was derived from Commission licensing records as of September 19, 2016. Licensing numbers
change on a daily basis. This does not indicate the number of licensees, as licensees may hold multiple licenses.
There is no information currently available about the number of PLMR licensees that have fewer than 1,500
employees.
62 This figure was derived from Commission licensing records as of August 16, 2013. Licensing numbers change
daily. We do not expect this number to be significantly smaller as of the date of this order. This does not indicate
the number of licensees, as licensees may hold multiple licenses. There is no information currently available about
the number of licensees that have fewer than 1,500 employees.
63 See Amendment of the Commission’s Rules Regarding Multiple Address Systems, Report and Order, 15 FCC Rcd
11956, 12008 para. 123 (2000).
64 Id.
65 See Letter from Aida Alvarez, Administrator, Small Business Administration, to Thomas Sugrue, Chief, Wireless
Telecommunications Bureau, FCC (June 4, 1999).
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licenses in 176 EAs was conducted.66 Seven winning bidders claimed status as small or very small
businesses and won 611 licenses. In 2005, the Commission completed an auction (Auction 59) of 4,226
MAS licenses in the Fixed Microwave Services from the 928/959 and 932/941 MHz bands. Twenty-six
winning bidders won a total of 2,323 licenses. Of the 26 winning bidders in this auction, five claimed
small business status and won 1,891 licenses.
24.With respect to the second category, Internal Private Spectrum use consists of entities
that use, or seek to use, MAS spectrum to accommodate their own internal communications needs, MAS
serves an essential role in a range of industrial, safety, business, and land transportation activities. MAS
radios are used by companies of all sizes, operating in virtually all U.S. business categories, and by all
types of public safety entities. For the majority of private internal users, the definition developed by the
SBA would be more appropriate than the Commission’s definition. The closest applicable definition of a
small entity is the “Wireless Telecommunications Carriers (except Satellite)” definition under the SBA
rules.67 The appropriate size standard under SBA rules is that such a business is small if it has 1,500 or
fewer employees.68 For this category, U.S. Census data for 2012 show that there were 967 firms that
operated for the entire year.69 Of this total, 955 firms had employment of 999 or fewer employees and 12
had employment of 1000 employees or more.70 Thus under this category and the associated small
business size standard, the Commission estimates that the majority of firms that may be affected by our
action can be considered small.
25.Broadband Radio Service and Educational Broadband Service. Broadband Radio
Service systems, previously referred to as Multipoint Distribution Service (MDS) and Multichannel
Multipoint Distribution Service (MMDS) systems, and “wireless cable,” transmit video programming to
subscribers and provide two-way high-speed data operations using the microwave frequencies of the
Broadband Radio Service (BRS) and Educational Broadband Service (EBS) (previously referred to as the
Instructional Television Fixed Service (ITFS)).71
26.BRS - In connection with the 1996 BRS auction, the Commission established a small
business size standard as an entity that had annual average gross revenues of no more than $40 million in
the previous three calendar years.72 The BRS auctions resulted in 67 successful bidders obtaining
licensing opportunities for 493 Basic Trading Areas (BTAs). Of the 67 auction winners, 61 met the
definition of a small business. BRS also includes licensees of stations authorized prior to the auction. At
this time, we estimate that of the 61 small business BRS auction winners, 48 remain small business
licensees. In addition to the 48 small businesses that hold BTA authorizations, there are approximately
there are approximately 86 incumbent BRS licensees that are considered small entities (18 incumbent
66 See Multiple Address Systems Spectrum Auction Closes, Public Notice, 16 FCC Rcd 21011 (2001).
67 13 CFR § 121.201, NAICS Code 517210.
68 Id.
69 U.S. Census Bureau, 2012 Economic Census of the United States, Table EC1251SSSZ5, Information: Subject
Series: Estab and Firm Size: Employment Size of Firms for the U.S.: 2012 NAICS Code 517210,
https://factfinder.census.gov/bkmk/table/1.0/en/ECN/2012_US/51SSSZ5//naics~517210.
70 Id. Available census data do not provide a more precise estimate of the number of firms that have employment of
1,500 or fewer employees; the largest category provided is for firms with “1000 employees or more.”
71 Amendment of Parts 21 and 74 of the Commission’s Rules with Regard to Filing Procedures in the Multipoint
Distribution Service and in the Instructional Television Fixed Service and Implementation of Section 309(j) of the
Communications Act—Competitive Bidding, Report and Order, 10 FCC Rcd 9589, 9593, para. 7 (1995).
72 47 CFR § 21.961(b)(1).
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BRS licensees do not meet the small business size standard).73 After adding the number of small business
auction licensees to the number of incumbent licensees not already counted, we find that there are
currently approximately 133 BRS licensees that are defined as small businesses under either the SBA or
the Commission’s rules.
27.In 2009, the Commission conducted Auction 86, the sale of 78 licenses in the BRS areas.
74 The Commission offered three levels of bidding credits: (i) a bidder with attributed average annual
gross revenues that exceed $15 million and do not exceed $40 million for the preceding three years (small
business) received a 15 percent discount on its winning bid; (ii) a bidder with attributed average annual
gross revenues that exceed $3 million and do not exceed $15 million for the preceding three years (very
small business) received a 25 percent discount on its winning bid; and (iii) a bidder with attributed
average annual gross revenues that do not exceed $3 million for the preceding three years (entrepreneur)
received a 35 percent discount on its winning bid.75 Auction 86 concluded in 2009 with the sale of 61
licenses.76 Of the ten winning bidders, two bidders that claimed small business status won 4 licenses; one
bidder that claimed very small business status won three licenses; and two bidders that claimed
entrepreneur status won six licenses.
28.EBS - The Educational Broadband Service has been included within the broad economic
census category and SBA size standard for Wired Telecommunications Carriers since 2007. Wired
Telecommunications Carriers are comprised of establishments primarily engaged in operating and/or
providing access to transmission facilities and infrastructure that they own and/or lease for the
transmission of voice, data, text, sound, and video using wired telecommunications networks.
Transmission facilities may be based on a single technology or a combination of technologies.77 The
SBA’s small business size standard for this category is all such firms having 1,500 or fewer employees.78
U.S. Census Bureau data for 2012 show that there were 3,117 firms that operated that year.79 Of this
total, 3,083 operated with fewer than 1,000 employees.80 Thus, under this size standard, the majority of
firms in this industry can be considered small. In addition to Census Bureau data, the Commission’s
Universal Licensing System indicates that as of October 2014, there are 2,206 active EBS licenses. The
Commission estimates that of these 2,206 licenses, the majority are held by non-profit educational
73 47 U.S.C. § 309(j). Hundreds of stations were licensed to incumbent MDS licensees prior to implementation of
Section 309(j) of the Communications Act of 1934, 47 U.S.C. § 309(j). For these pre-auction licenses, the
applicable standard is SBA’s small business size standard of 1500 or fewer employees.
74 Auction of Broadband Radio Service (BRS) Licenses, Scheduled for October 27, 2009, Notice and Filing
Requirements, Minimum Opening Bids, Upfront Payments, and Other Procedures for Auction 86, Public Notice, 24
FCC Rcd 8277 (2009).
75 Id. at 8296 para. 73.
76 Auction of Broadband Radio Service Licenses Closes, Winning Bidders Announced for Auction 86, Down
Payments Due November 23, 2009, Final Payments Due December 8, 2009, Ten-Day Petition to Deny Period,
Public Notice, 24 FCC Rcd 13572 (2009).
77 U.S. Census Bureau, 2017 NAICS Definitions, “517311 Wired Telecommunications Carriers,”,
https://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517110&search=2017.
78 See 13 CFR § 121.201. The Wired Telecommunications Carrier category formerly used the NAICS code of
517110. As of 2017 the U.S. Census Bureau definition shows the NAICs code as 517311 for Wired
Telecommunications Carriers. See, https://www.census.gov/cgi-
bin/sssd/naics/naicsrch?code=517311&search=2017.
79 See U.S. Census Bureau, 2012 Economic Census of the United States, Table No. EC1251SSSZ5, Information:
Subject Series - Estab & Firm Size: Employment Size of Firms: 2012 (517110 Wired Telecommunications Carriers).
https://factfinder.census.gov/bkmk/table/1.0/en/ECN/2012_US/51SSSZ5//naics~517110.
80 Id.
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institutions and school districts, which are by statute defined as small businesses.81
29.Location and Monitoring Service (LMS). LMS systems use non-voice radio techniques
to determine the location and status of mobile radio units. For purposes of auctioning LMS licenses, the
Commission has defined a “small business” as an entity that, together with controlling interests and
affiliates, has average annual gross revenues for the preceding three years not to exceed $15 million.82 A
“very small business” is defined as an entity that, together with controlling interests and affiliates, has
average annual gross revenues for the preceding three years not to exceed $3 million.83 These definitions
have been approved by the SBA.84 An auction for LMS licenses commenced on February 23, 1999 and
closed on March 5, 1999. Of the 528 licenses auctioned, 289 licenses were sold to four small businesses.
30.Television Broadcasting. This Economic Census category “comprises establishments
primarily engaged in broadcasting images together with sound.”85 These establishments operate
television broadcast studios and facilities for the programming and transmission of programs to the
public.86 These establishments also produce or transmit visual programming to affiliated broadcast
television stations, which in turn broadcast the programs to the public on a predetermined schedule.
Programming may originate in their own studio, from an affiliated network, or from external sources.
The SBA has created the following small business size standard for such businesses: those having $38.5
million or less in annual receipts.87 The 2012 Economic Census reports that 751 firms in this category
operated in that year.88 Of that number, 656 had annual receipts of $25,000,000 or less, 25 had annual
receipts between $25,000,000 and $49,999,999 and 70 had annual receipts of $50,000,000 or more.89
Based on this data we therefore estimate that the majority of commercial television broadcasters are small
entities under the applicable SBA size standard.
31.The Commission has estimated the number of licensed commercial television stations to
be 1,377.90 Of this total, 1,258 stations (or about 91 percent) had revenues of $38.5 million or less,
according to Commission staff review of the BIA Kelsey Inc. Media Access Pro Television Database
(BIA) on November 16, 2017, and therefore these licensees qualify as small entities under the SBA
definition. In addition, the Commission has estimated the number of licensed noncommercial educational
(NCE) television stations to be 384.91 Notwithstanding, the Commission does not compile and otherwise
does not have access to information on the revenue of NCE stations that would permit it to determine how
81 The term “small entity” within SBREFA applies to small organizations (non-profits) and to small governmental
jurisdictions (cities, counties, towns, townships, villages, school districts, and special districts with populations of
less than 50,000). 5 U.S.C. §§ 601(4)-(6).
82 Amendment of Part 90 of the Commission’s Rules to Adopt Regulations for Automatic Vehicle Monitoring
Systems, Second Report and Order, 13 FCC Rcd 15182, 15192 para. 20 (1998); see also 47 CFR § 90.1103.
83 Id.
84 See Letter from Aida Alvarez, Administrator, Small Business Administration to Thomas J. Sugrue, Chief,
Wireless Telecommunications Bureau, FCC (Feb. 22, 1999).
85 U.S. Census Bureau, 2017 NAICS Definitions, “515120 Television Broadcasting,” https://www.census.gov/cgi-
bin/sssd/naics/naicsrch?input=515120&search=2017+NAICS+Search&search=2017.
86 Id.
87 13 CFR § 121.201; 2012 NAICS Code 515120.
88 U.S. Census Bureau, Table No. EC1251SSSZ4, Information: Subject Series - Establishment and Firm Size:
Receipts Size of Firms for the United States: 2012 (515120 Television Broadcasting).
https://factfinder.census.gov/bkmk/table/1.0/en/ECN/2012_US/51SSSZ4//naics~515120.
89 Id.
90 Broadcast Station Totals as of June 30, 2018, Press Release (MB, rel. Jul. 3, 2018) (June 30, 2018 Broadcast
Station Totals Press Release), https://docs.fcc.gov/public/attachments/DOC-352168A1.pdf.
91 Id.
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many such stations would qualify as small entities. There are also 2,300 low power television stations,
including Class A stations (LPTV) and 3,681 TV translator stations.92 Given the nature of these services,
we will presume that all of these entities qualify as small entities under the above SBA small business
size standard.
32.We note, however, that in assessing whether a business concern qualifies as “small”
under the above definition, business (control) affiliations must be included.93 Our estimate, therefore
likely overstates the number of small entities that might be affected by our action, because the revenue
figure on which it is based does not include or aggregate revenues from affiliated companies. In addition,
another element of the definition of “small business” requires that an entity not be dominant in its field of
operation. We are unable at this time to define or quantify the criteria that would establish whether a
specific television broadcast station is dominant in its field of operation. Accordingly, the estimate of
small businesses to which rules may apply does not exclude any television station from the definition of a
small business on this basis and is therefore possibly over-inclusive. Also, as noted above, an additional
element of the definition of “small business” is that the entity must be independently owned and operated.
The Commission notes that it is difficult at times to assess these criteria in the context of media entities
and its estimates of small businesses to which they apply may be over-inclusive to this extent.
33.Radio Stations. This Economic Census category “comprises establishments primarily
engaged in broadcasting aural programs by radio to the public. Programming may originate in their own
studio, from an affiliated network, or from external sources.”94 The SBA has established a small business
size standard for this category as firms having $38.5 million or less in annual receipts.95 Economic
Census data for 2012 show that 2,849 radio station firms operated during that year.96 Of that number,
2,806 operated with annual receipts of less than $25 million per year, 17 with annual receipts between
$25 million and $49,999,999 million and 26 with annual receipts of $50 million or more.97 Therefore,
based on the SBA’s size standard the majority of such entities are small entities.
34.According to Commission staff review of the BIA/Kelsey, LLC’s Publications, Inc.
Media Access Pro Radio Database (BIA) as of January 2018, about 11,261 (or about 99.92 percent) of
11,270 commercial radio stations had revenues of $38.5 million or less and thus qualify as small entities
under the SBA definition.98 The Commission has estimated the number of licensed commercial AM radio
stations to be 4,633 stations and the number of commercial FM radio stations to be 6,738, for a total
number of 11,371.99 We note, that the Commission has also estimated the number of licensed NCE radio
stations to be 4,128.100 Nevertheless, the Commission does not compile and otherwise does not have
access to information on the revenue of NCE stations that would permit it to determine how many such
stations would qualify as small entities.
92 Id.
93 See 13 CFR § 21.103(a)(1) “[Business concerns] are affiliates of each other when one concern controls or has the
power to control the other or a third party or parties controls or has the power to control both.”
94 U.S. Census Bureau, 2017 NAICS Definitions, “515112 Radio Stations,” https://www.census.gov/cgi-
bin/sssd/naics/naicsrch?input=515112&search=2017+NAICS+Search&search=2017.
95 13 CFR § 121.201, NAICS Code 515112.
96 U.S. Census Bureau, 2012 Economic Census of the United States, Table No. EC1251SSSZ4, Information: Subject
Series - Establishment and Firm Size: Receipts Size of Firms for the United States: 2012 NAICS Code 515112,
https://factfinder.census.gov/bkmk/table/1.0/en/ECN/2012_US/51SSSZ4//naics~515112.
97 Id.
98 BIA/Kelsey, MEDIA Access Pro Database (viewed Jan. 26, 2018).
99 Broadcast Station Totals as of June 30, 2018, Press Release (MB Jul. 3, 2018) (June 30, 2018 Broadcast Station
Totals), https://docs.fcc.gov/public/attachments/DOC-352168A1.pdf.
100 Id.
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35.We also note, that in assessing whether a business entity qualifies as small under the
above definition, business control affiliations must be included.101 The Commission’s estimate therefore
likely overstates the number of small entities that might be affected by its action, because the revenue
figure on which it is based does not include or aggregate revenues from affiliated companies. In addition,
to be determined a “small business,” an entity may not be dominant in its field of operation.102 We further
note, that it is difficult at times to assess these criteria in the context of media entities, and the estimate of
small businesses to which these rules may apply does not exclude any radio station from the definition of
a small business on these basis, thus our estimate of small businesses may therefore be over-inclusive.
Also, as noted above, an additional element of the definition of “small business” is that the entity must be
independently owned and operated. The Commission notes that it is difficult at times to assess these
criteria in the context of media entities and the estimates of small businesses to which they apply may be
over-inclusive to this extent.
36.FM Translator Stations and Low Power FM Stations. FM translators and Low Power
FM Stations are classified in the category of Radio Stations and are assigned the same NAICS Code as
licensees of radio stations.103 This U.S. industry, Radio Stations, comprises establishments primarily
engaged in broadcasting aural programs by radio to the public.104 Programming may originate in their
own studio, from an affiliated network, or from external sources.105 The SBA has established a small
business size standard which consists of all radio stations whose annual receipts are $38.5 million dollars
or less.106 U.S. Census Bureau data for 2012 indicate that 2,849 radio station firms operated during that
year.107 Of that number, 2,806 operated with annual receipts of less than $25 million per year, 17 with
annual receipts between $25 million and $49,999,999 million and 26 with annual receipts of $50 million
or more.108 Therefore, based on the SBA’s size standard, we conclude that the majority of FM Translator
Stations and Low Power FM Stations are small.
37.Multichannel Video Distribution and Data Service (MVDDS). MVDDS is a terrestrial
fixed microwave service operating in the 12.2-12.7 GHz band. The Commission adopted criteria for
defining three groups of small businesses for purposes of determining their eligibility for special
provisions such as bidding credits. It defined a very small business as an entity with average annual gross
revenues not exceeding $3 million for the preceding three years; a small business as an entity with
average annual gross revenues not exceeding $15 million for the preceding three years; and an
entrepreneur as an entity with average annual gross revenues not exceeding $40 million for the preceding
three years.109 These definitions were approved by the SBA.110 On January 27, 2004, the Commission
101 13 CFR § 121.103(a)(1). “[Business concerns] are affiliates of each other when one concern controls or has the
power to control the other, or a third party or parties controls or has power to control both.”
102 13 CFR § 121.102(b).
103 See, U.S. Census Bureau, 2017 NAICS Definitions, “515112 Radio Stations,” https://www.census.gov/cgi-
bin/sssd/naics/naicsrch?input=515112&search=2017+NAICS+Search&search=2017.
104 Id.
105 Id.
106 13 CFR § 121.201, NAICS code 515112.
107 U.S. Census Bureau, 2012 Economic Census of the United States, Table No. EC1251SSSZ4, Information:
Subject Series - Establishment and Firm Size: Receipts Size of Firms for the United States: 2012 NAICS Code
515112, https://factfinder.census.gov/bkmk/table/1.0/en/ECN/2012_US/51SSSZ4//naics~515112.
108 Id.
109 Amendment of Parts 2 and 25 of the Commission’s Rules to Permit Operation of NGSO FSS Systems Co-
Frequency with GSO and Terrestrial Systems in the Ku-Band Frequency Range; Amendment of the Commission’s
Rules to Authorize Subsidiary Terrestrial Use of the 12.2–12.7 GHz Band by Direct Broadcast Satellite Licensees
and their Affiliates; and Applications of Broadwave USA, PDC Broadband Corporation, and Satellite Receivers,
Federal Communications Commission FCC 18-133
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completed an auction of 214 MVDDS licenses (Auction No. 53). In this auction, ten winning bidders
won a total of 192 MVDDS licenses.111 Eight of the ten winning bidders claimed small business status
and won 144 of the licenses. The Commission also held an auction of MVDDS licenses on December 7,
2005 (Auction 63). Of the three winning bidders who won 22 licenses, two winning bidders, winning 21
of the licenses, claimed small business status.112
38.Satellite Telecommunications. This category comprises firms “primarily engaged in
providing telecommunications services to other establishments in the telecommunications and
broadcasting industries by forwarding and receiving communications signals via a system of satellites or
reselling satellite telecommunications.”113 Satellite telecommunications service providers include satellite
and earth station operators. The category has a small business size standard of $32.5 million or less in
average annual receipts, under SBA rules.114 For this category, U.S. Census Bureau data for 2012 show
that there were a total of 333 firms that operated for the entire year.115 Of this total, 299 firms had annual
receipts of less than $25 million.116 Consequently, we estimate that the majority of satellite
telecommunications providers are small entities.
39.All Other Telecommunications. The “All Other Telecommunications” category is
comprised of establishments that are primarily engaged in providing specialized telecommunications
services, such as satellite tracking, communications telemetry, and radar station operation.117 This
industry also includes establishments primarily engaged in providing satellite terminal stations and
associated facilities connected with one or more terrestrial systems and capable of transmitting
telecommunications to, and receiving telecommunications from, satellite systems.118 Establishments
providing Internet services or voice over Internet protocol (VoIP) services via client-supplied
telecommunications connections are also included in this industry.119 The SBA has developed a small
business size standard for “All Other Telecommunications,” which consists of all such firms with gross
annual receipts of $32.5 million or less.120 For this category, U.S. Census data for 2012 show that there
(Continued from previous page)
Ltd. to Provide A Fixed Service in the 12.2–12.7 GHz Band, Memorandum Opinion and Order and Second Report
and Order, 17 FCC Rcd 9614, 9711, para. 252 (2002).
110 See Letter from Hector V. Barreto, Administrator, U.S. Small Business Administration, to Margaret W. Wiener,
Chief, Auctions and Industry Analysis Division, Wireless Telecommunications Bureau, FCC (Feb. 13, 2002).
111 See “Multichannel Video Distribution and Data Service Spectrum Auction Closes; Winning Bidders Announced,”
Public Notice, 19 FCC Rcd 1834 (2004).
112 See “Auction of Multichannel Video Distribution and Data Service Licenses Closes; Winning Bidders Announced
for Auction No. 63,” Public Notice, 20 FCC Rcd 19807 (2005).
113 U.S. Census Bureau, 2017 NAICS Definitions, “517410 Satellite Telecommunications,”
https://www.census.gov/cgi-bin/sssd/naics/naicsrch?input=517410&search=2017+NAICS+Search&search=2017.
114 13 CFR § 121.201, NAICS Code 517410.
115 U.S. Census Bureau, 2012 Economic Census of the United States, Table EC1251SSSZ4, Information: Subject
Series - Estab and Firm Size: Receipts Size of Firms for the United States: 2012, NAICS Code 517410,
https://factfinder.census.gov/bkmk/table/1.0/en/ECN/2012_US/51SSSZ4//naics~517410.
116 Id.
117 See U.S. Census Bureau, 2017 NAICS Definitions, NAICS Code “517919 All Other Telecommunications”,
https://www.census.gov/cgi-bin/sssd/naics/naicsrch?input=517919&search=2017+NAICS+Search&search=2017.
118 Id.
119 Id.
120 13 CFR § 121.201, NAICS Code 517919.
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were 1,442 firms that operated for the entire year.121 Of these firms, a total of 1,400 had gross annual
receipts of less than $25 million and 42 firms had annual receipts of $25 million to $49, 999,999.122 Thus,
a majority of “All Other Telecommunications” firms potentially affected by our action can be considered
small.
40.Fixed Microwave Services. Microwave services include common carrier,123 private-
operational fixed,124 and broadcast auxiliary radio services.125 They also include the Local Multipoint
Distribution Service (LMDS),126 the Digital Electronic Message Service (DEMS),127 the 39 GHz Service
(39 GHz),128 the 24 GHz Service,129 and the Millimeter Wave Service130 where licensees can choose
between common carrier and non-common carrier status.131 At present, there are approximately 66,680
common carrier fixed licensees, 69,360 private and public safety operational-fixed licensees, 20,150
broadcast auxiliary radio licensees, 411 LMDS licenses, 33 24 GHz DEMS licenses, 777 39 GHz
licenses, and five 24 GHz licenses, and 467 Millimeter Wave licenses in the microwave services.132 The
Commission has not yet defined a small business size standard for microwave services. The closest
applicable SBA category is Wireless Telecommunications Carriers (except Satellite) and the appropriate
size standard for this category under SBA rules is that such a business is small if it has 1,500 or fewer
employees.133 U.S. Census Bureau data for 2012, show that there were 967 firms in this category that
operated for the entire year.134 Of this total, 955 had employment of 999 or fewer, and 12 firms had
employment of 1,000 employees or more. Thus, under this category and the associated small business
size standard, the Commission estimates that a majority of fixed microwave service licensees can be
considered small.
41.The Commission notes that the number of firms does not necessarily track the number of
121 U.S. Census Bureau, 2012 Economic Census of the United States, Table EC1251SSSZ4, Information: Subject
Series - Estab and Firm Size: Receipts Size of Firms for the United States: 2012, NAICS code 517919,
https://factfinder.census.gov/bkmk/table/1.0/en/ECN/2012_US/51SSSZ4//naics~517919.
122 Id.
123 See 47 CFR Part 101, Subpart I.
124 Persons eligible under parts 80 and 90 of the Commission’s rules can use Private-Operational Fixed Microwave
services. See 47 CFR Parts 80 and 90. Stations in this service are called operational-fixed to distinguish them from
common carrier and public fixed stations. Only the licensee may use the operational-fixed station, and only for
communications related to the licensee’s commercial, industrial, or safety operations.
125 See 47 CFR Parts 74, 78 (governing Auxiliary Microwave Service) Available to licensees of broadcast stations,
cable operators, and to broadcast and cable network entities. Auxiliary microwave stations are used for relaying
broadcast television signals from the studio to the transmitter, or between two points such as a main studio and an
auxiliary studio. The service also includes TV pickup and CARS pickup, which relay signals from a remote location
back to the studio.
126 See 47 CFR §§ 101, 1001-101, 1017.
127 See 47 CFR §§ 101, 101.501-101.538.
128 See 47 CFR Part 101, Subpart N (reserved for Competitive bidding procedures for the 38.6-40 GHz Band).
129 See id.
130 See 47 CFR §§ 101, 101.1501-101.1527.
131 See 47 CFR §§ 101.533, 101.1017.
132 These statistics are based on a review of the Universal Licensing System on September 22, 2015.
133 13 CFR § 121.201.
134 U.S. Census Bureau, 2012 Economic Census of the United States, Table EC1251SSSZ5, Information: Subject
Series, “Estab and Firm Size: Employment Size of Firms for the U.S.: 2012 NAICS Code 517210,
https://factfinder.census.gov/bkmk/table/1.0/en/ECN/2012_US/51SSSZ5//naics~517210.
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licensees. The Commission also notes that it does not have data specifying the number of these licensees
that have more than 1,500 employees, and thus is unable at this time to estimate with greater precision the
number of fixed microwave service licensees that would qualify as small business concerns under the
SBA’s small business size standard. The Commission estimates however, that virtually all of the Fixed
Microwave licensees (excluding broadcast auxiliary licensees) would qualify as small entities under the
SBA definition.
42.Non-Licensee Owners of Towers and Other Infrastructure. Although at one time most
communications towers were owned by the licensee using the tower to provide communications service,
many towers are now owned by third-party businesses that do not provide communications services
themselves but lease space on their towers to other companies that provide communications services. The
Commission’s rules require that any entity, including a non-licensee, proposing to construct a tower over
200 feet in height or within the glide slope of an airport must register the tower with the Commission’s
Antenna Structure Registration (“ASR”) system and comply with applicable rules regarding review for
impact on the environment and historic properties.
43.As of March 1, 2017, the ASR database includes approximately 122,157 registration
records reflecting a “Constructed” status and 13,987 registration records reflecting a “Granted, Not
Constructed” status. These figures include both towers registered to licensees and towers registered to
non-licensee tower owners. The Commission does not keep information from which we can easily
determine how many of these towers are registered to non-licensees or how many non-licensees have
registered towers.135 Regarding towers that do not require ASR registration, we do not collect
information as to the number of such towers in use and therefore cannot estimate the number of tower
owners that would be subject to the rules on which we seek comment. Moreover, the SBA has not
developed a size standard for small businesses in the category “Tower Owners.” Therefore, we are
unable to determine the number of non-licensee tower owners that are small entities. We believe,
however, that when all entities owning 10 or fewer towers and leasing space for collocation are included,
non-licensee tower owners number in the thousands. In addition, there may be other non-licensee owners
of other wireless infrastructure, including Distributed Antenna Systems (DAS) and small cells that might
be affected by the measures on which we seek comment. We do not have any basis for estimating the
number of such non-licensee owners that are small entities.
44.The closest applicable SBA category is All Other Telecommunications, and the
appropriate size standard consists of all such firms with gross annual receipts of $32.5 million or less.136
For this category, U.S. Census data for 2012 show that there were 1,442 firms that operated for the entire
year.137 Of these firms, a total of 1,400 had gross annual receipts of less than $25 million and 15 firms
had annual receipts of $25 million to $49, 999,999.138 Thus, under this SBA size standard a majority of
the firms potentially affected by our action can be considered small.
E.Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements for Small Entities
45.The Third Report and Order does not establish any reporting, recordkeeping, or other
135 We note, however, that approximately 13,000 towers are registered to 10 cellular carriers with 1,000 or more
employees.
136 13 CFR § 121.201, NAICS Code 517919.
137 U.S. Census Bureau, 2012 Economic Census of the United States, Table EC1251SSSZ4, Information: Subject
Series - Estab and Firm Size: Receipts Size of Firms for the United States: 2012, NAICS code 517919,
https://factfinder.census.gov/bkmk/table/1.0/en/ECN/2012_US/51SSSZ4//naics~517919.
138 Id.
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compliance requirements for companies involved in wireless infrastructure deployment.139 In addition to
not adopting any reporting, recordkeeping or other compliance requirements, the Commission takes
significant steps to reduce regulatory impediments to infrastructure deployment and, therefore, to spur the
growth of personal wireless services. Under the Commission’s approach, small entities as well as large
companies will be assured that their deployment requests will be acted upon within a reasonable period of
time and, if their applications are not addressed within the established time frames, applicants may seek
injunctive relief granting their siting applications. The Commission, therefore, has taken concrete steps to
relieve companies of all sizes of uncertainly and has eliminated unnecessary delays.
46.The Third Report and Order also does not impose any reporting or recordkeeping
requirements on state and local governments. While some commenters argue that additional shot clock
classifications would make the siting process needlessly complex without any proven benefits, the
Commission concludes that any additional administrative burden from increasing the number of Section
332 shot clocks from two to four is outweighed by the likely significant benefit of regulatory certainty
and the resulting streamlined deployment process.140 The Commission’s actions are consistent with the
statutory language of Section 332 and therefore reflect Congressional intent. Further, siting agencies have
become more efficient in processing siting applications and will be able to take advantage of these
efficiencies in meeting the new shot clocks. As a result, the additional shot clocks that the Commission
adopts will foster the deployment of the latest wireless technology and serve consumer interests.
F.Steps Taken to Minimize the Significant Economic Impact on Small Entities, and
Significant Alternatives Considered
47.The RFA requires an agency to describe any significant alternatives that it has considered
in reaching its approach, which may include the following four alternatives (among others): “(1) the
establishment of differing compliance or reporting requirements or timetables that take into account the
resources available to small entities; (2) the clarification, consolidation, or simplification of compliance
and reporting requirements under the rule for such small entities; (3) the use of performance rather than
design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small
entities.”141
48.The steps taken by the Commission in the Third Report and Order eliminate regulatory
burdens for small entities as well as large companies that are involved with the deployment of person
wireless services infrastructure. By establishing shot clocks and guidance on injunctive relief for personal
wireless services infrastructure deployments, the Commission has standardized and streamlined the
permitting process. These changes will significantly minimize the economic burden of the siting process
on all entities, including small entities, involved in deploying personal wireless services infrastructure.
The record shows that permitting delays imposes significant economic and financial burdens on
companies with pending wireless infrastructure permits. Eliminating permitting delays will remove the
associated cost burdens and enabling significant public interest benefits by speeding up the deployment of
personal wireless services and infrastructure. In addition, siting agencies will be able to utilize the
efficiencies that they have gained over the years processing siting applications to minimize financial
impacts.
49.The Commission considered but did not adopt proposals by commenters to issue “Best
Practices” or “Recommended Practices,”142 and to develop an informal dispute resolution process and
139 See supra para. 144.
140 See supra para. 110.
141 5 U.S.C. § 603(c)(1)-(4).
142 KS Rep. Sloan Comments at 2; Nokia Comments at 10.
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mediation program, 143 noting that the steps taken in the Third Report and Order address the concerns
underlying these proposals to facilitate cooperation between parties to reach mutually agreed upon
solutions.144 The Commission anticipates that the changes it has made to the permitting process will
provide significant efficiencies in the deployment of personal wireless services facilities and this in turn
will benefit all companies, but particularly small entities, that may not have the resources and economies
of scale of larger entities to navigate the permitting process. By adopting these changes, the Commission
will continue to fulfill its statutory responsibilities, while reducing the burden on small entities by
removing unnecessary impediments to the rapid deployment of personal wireless services facilities and
infrastructure across the country.
Report to Congress
50.The Commission will send a copy of the Third Report and Order, including this FRFA,
in a report to Congress pursuant to the Congressional Review Act.145 In addition, the Commission will
send a copy of the Third Report and Order, including this FRFA, to the Chief Counsel for Advocacy of
the SBA. A copy of the Third Report and Order and FRFA (or summaries thereof) also will be published
in the Federal Register. 146
143 NATOA et al. Comments at 16-17.
144 See supra para. 131.
145 5 U.S.C. § 801(a)(1)(A).
146 5 U.S.C. § 604(b).
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STATEMENT OF
CHAIRMAN AJIT PAI
Re:Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure
Investment, WT Docket No. 17-79; Accelerating Wireline Broadband Deployment by Removing
Barriers to Infrastructure Investment, WC Docket No. 17-84
Perhaps the defining characteristic of the communications sector over the past decade is that the
world is going wireless. The smartphone’s introduction in 2007 may have seemed an interesting novelty
to some at the time, but it was a precursor of a transformative change in how consumers access and use
the Internet. 4G LTE was a key driver in that change.
Today, a new transition is at hand as we enter the era of 5G. At the FCC, we’re working hard to
ensure that the United States leads the world in developing this next generation of wireless connectivity
so that American consumers and our nation’s economy enjoy the immense benefits that 5G will bring.
Spectrum policy of course features prominently in our 5G strategy. We’re pushing a lot more
spectrum into the commercial marketplace. On November 14, for example, our 28 GHz band spectrum
auction will begin, and after it ends, our 24 GHz band spectrum auction will start. And in 2019, we plan
to auction off three additional spectrum bands.
But all the spectrum in the world won’t matter if we don’t have the infrastructure needed to carry
5G traffic. New physical infrastructure is vital for success here. That’s because 5G networks will depend
less on a few large towers and more on numerous small cell deployments—deployments that for the most
part don’t exist today.
But installing small cells isn’t easy, too often because of regulations. There are layers of
(sometimes unnecessary and unreasonable) rules that can prevent widespread deployment. At the federal
level, we acted earlier this year to modernize our regulations and make our own review process for
wireless infrastructure 5G fast. And many states and localities have similarly taken positive steps to
reform their own laws and increase the likelihood that their citizens will be able to benefit from 5G
networks.
But as this Order makes clear, there are outliers that are unreasonably standing in the way of
wireless infrastructure deployment. So today, we address regulatory barriers at the local level that are
inconsistent with federal law. For instance, big-city taxes on 5G slow down deployment there and also
jeopardize the construction of 5G networks in suburbs and rural America. So today, we find that all fees
must be non-discriminatory and cost-based. And when a municipality fails to act promptly on
applications, it can slow down deployment in many other localities. So we mandate shot clocks for local
government review of small wireless infrastructure deployments.
I commend Commissioner Carr for his leadership in developing this Order. He worked closely
with many state and local officials to understand their needs and to study the policies that have worked at
the state and local level. It should therefore come as no surprise that this Order has won significant
support from mayors, local officials, and state legislators.
To be sure, there are some local governments that don’t like this Order. They would like to
continue extracting as much money as possible in fees from the private sector and forcing companies to
navigate a maze of regulatory hurdles in order to deploy wireless infrastructure. But these actions are not
only unlawful, they’re also short-sighted. They slow the construction of 5G networks and will delay if
not prevent the benefits of 5G from reaching American consumers. And let’s also be clear about one
thing: When you raise the cost of deploying wireless infrastructure, it is those who live in areas where the
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investment case is the most marginal—rural areas or lower-income urban areas—who are most at risk of
losing out. And I don’t want 5G to widen the digital divide; I want 5G to help close that divide.
In conclusion, I’d like to again thank Commissioner Carr for leading this effort and his staff for their
diligent work. And I’m grateful to the hardworking staff across the agency who have put many hours into
this Order. In particular, thanks to Jonathan Campbell, Stacy Ferraro, Garnet Hanly, Leon Jackler, Eli
Johnson, Jonathan Lechter, Kate Matraves, Betsy McIntyre, Darrel Pae, Jennifer Salhus, Dana Shaffer,
Jiaming Shang, David Sieradzki, Michael Smith, Don Stockdale, Cecilia Sulhoff, Patrick Sun, Suzanne
Tetreault, and Joseph Wyer from the Wireless Telecommunications Bureau; Matt Collins, Adam
Copeland, Dan Kahn, Deborah Salons, and John Visclosky from the Wireline Competition Bureau; Chana
Wilkerson from the Office of Communications Business Opportunities; and Ashley Boizelle, David
Horowitz, Tom Johnson, Marcus Maher, Bill Richardson, and Anjali Singh from the Office of General
Counsel.
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STATEMENT OF
COMMISSIONER MICHAEL O’RIELLY
Re:Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure
Investment, WT Docket No. 17-79; Accelerating Wireline Broadband Deployment by Removing Barriers
to Infrastructure Investment, WC Docket No. 17-84
I enthusiastically support the intent of today’s item and the vast majority of its content, as it will
lower the barriers that some localities place to infrastructure siting. By tackling exorbitant fees,
ridiculous practices, and prolonged delays, we are taking the necessary steps to expedite deployment and
make it more cost efficient. Collectively, these provisions will help facilitate the deployment of 5G and
enable providers to expand services throughout our nation, with ultimate beneficiaries being the American
people.
While this is a tremendous step in the right direction, there are some things that could have been
done to improve the situation further. For instance, the agreement reached by all parties in the 1996
Telecommunications Act was that states and localities would have no role over radio frequency emission
issues, could not regulate based on the aesthetics of towers and antennas, and were prohibited from
imposing any moratoriums on processing wireless siting applications. State and localities did not honor
this agreement and the courts have sadly enabled their efforts via harmful and wrongly decided cases.
Accordingly, I would have preferred that the aesthetics related provisions in the item be deleted, but I will
have to swallow it recognizing that I can’t get the rest without it. At the very least, I do appreciate that, at
my request, it was clarified that the aesthetic requirements, which must be published in advance, must be
objective.
I am also concerned that by setting application and recurring fees that are presumed to be
reasonable, the Commission is inviting localities to adopt these rates, even if they are not cost based.
Providers should be explicitly provided the right to challenge these rates if they believe they are not cost
based. Even if not stated, I hope that providers will challenge unreasonable rates. I thank my colleagues
for agreeing to my edits that the application fee presumption applies to all non-recurring costs, not just the
application fee.
Further, I think there should be a process and standards in place if a locality decides that it needs
more time to review batched applications. Objective criteria are needed regarding what are considered
“exceptional circumstances” or “exceptional cases” warranting a longer review period for batch
processing, when localities need to inform the applicant that they need more time, how this notification
will occur, and how much time they will get. For instance, the item appears to excuse a locality that does
not act within the shot clocks for any application if there are “extraordinary circumstances,” but there are
no parameters on what circumstances we are envisioning. Is a lack of adequate staff or having processing
rules or policies in place a sufficient excuse? Such things should be determined upfront, as opposed to
allowing courts to decide such matters. Without further clarity, I fear that we may be creating
unnecessary loopholes, resulting in further delay.
Finally, I would have liked today’s item to be broader and cover the remaining infrastructure
issues in the record. First, the Commission’s new interpretation of sections 253 and 332 applies beyond
small cells. While our focus has been on these newer technologies, there needs to be a recognition that
macro towers will continue to play a crucial role in wireless networks. One tower provider states that
“[m]acro cell sites will continue to be a central component of wireless infrastructure . . . ,” because 80
[percent] of the population lives in suburban or rural areas where “macro sites are the most efficient way
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to transmit wireless signals.”1 Further, many of the interpretations in today’s item apply not only to these
macro towers, but also to other telecommunications services, including those provided by traditional
wireline carriers and potentially cable companies.
Second, the Commission needs to close loopholes in section 6409 that some localities have been
exploiting. While these rules pertaining to the modification of existing structures are clear, some
localities are trying to undermine Congress’s intent and our actions. For instance, localities are refusing
ancillary permissions, such as building or highway permits, to slow down or prevent siting; using the
localities’ concealment and aesthetic additions to increase the size of the facility or requiring that poles be
replaced with stealth infrastructure for the purpose of excluding facilities from section 6409; placing
improper conditions on permits; and forcing providers to sign agreements that waive their rights under
section 6409. And, I have been told that some are claiming that section 6409 does not apply to their
siting processes. This must stop. I appreciate the Chairman’s firm commitment to my request for an
additional item to address such matters, and I expect that it will be coming in the very near future.
Third, there is a need to harmonize our rules regarding compound expansion. Currently, an entity
seeking to replace a structure is allowed to expand the facility’s footprint by 30 feet, but if the same entity
seeks to expand the tower area to hold new equipment associated with a collocation, a new review is
needed. It doesn’t make sense that these situations are treated differently. And while we are at it, the
Commission should also harmonize its shot clocks and remedies. These issues should also be added to
any future item.
Lastly, the Commission also must finish its review of the comments filed in response to the
twilight towers notice, make the revisions to the program comment, and submit it to Advisory Council on
Historic Preservation for their review and vote. These towers are eligible, yet not permitted, to hold an
estimated 6,500 collocations that will be needed for next-generation services and FirstNet. It is time to
bring this embarrassment, which started in 2001, to an end.
Not only do I thank the Chairman for agreeing to additional infrastructure items, but I also thank
the Chairman and Commissioner Carr for implementing several of my edits to the item today. Besides
those already mentioned, they include applying the aesthetic criteria, including that any requirements
must be reasonable, objective, and published in advance, to undergrounding; stating that undergrounding
requirements that apply to some, but not all facilities, will be considered an effective prohibition if they
materially inhibit wireless service; and adding similar language to the minimum spacing section of the
item. Further, the minimum spacing requirements will not apply to replacement facilities or prevent
collocations on existing structures. Additionally, localities claiming that an application is incomplete will
need to specifically state what rule requires the submission of the missing information.
With this, I approve.
1 American Tower Ex Parte Letter, WT Docket No. 17-79, n.6 (Aug. 10, 2018).
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STATEMENT OF
COMMISSIONER BRENDAN CARR
Re:Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure
Investment, WT Docket No. 17-79; Accelerating Wireline Broadband Deployment by Removing
Barriers to Infrastructure Investment, WC Docket No. 17-84
The United States is on the cusp of a major upgrade in wireless technology to 5G. The WALL
STREET JOURNAL has called it transformative from a technological and economic perspective. And
they’re right. Winning the global race to 5G—seeing this new platform deployed in the U.S. first—is
about economic leadership for the next decade. Those are the stakes, and here’s how we know it.
Think back ten years ago when we were on the cusp of upgrading from 3G to 4G. Think about
the largest stocks and some of the biggest drivers of our economy. It was big banks and big oil. Fast
forward to today: U.S.-based technology companies, from FAANG (Facebook, Apple, Amazon, Netflix,
and Google) down to the latest startup, have transformed our economy and our lives.
Think about your own life. A decade ago, catching a ride across town involved calling a phone
number, waiting 20 minutes for a cab to arrive, and paying rates that were inaccessible to many people.
Today, we have Lyft, Uber, Via, and other options.
A decade ago, sending money meant going to a brick-and-mortar bank, standing in that rope line,
getting frustrated when that pen leashed to the table was out of ink (again!), and ultimately conducting
your transaction with a teller. Now, with Square, Venmo, and other apps you can send money or deposit
checks from anywhere, 24 hours a day.
A decade ago, taking a road trip across the country meant walking into your local AAA office,
telling them the stops along your way, and waiting for them to print out a TripTik booklet filled with
maps that you would unfold as you drove down the highway. Now, with Google Maps and other apps
you get real-time updates and directions right on your smartphone.
American companies led the way in developing these 4G innovations. But it’s not by chance or
luck that the United States is the world’s tech and innovation hub. We have the strongest wireless
economy in the world because we won the race to 4G. No country had faster 4G deployment and more
intense investment than we did. Winning the race to 4G added $100 billion to our GDP. It led to $125
billion in revenue for U.S. companies that could have gone abroad. It grew wireless jobs in the U.S. by
84 percent. And our world-leading 4G networks now support today’s $950 billion app economy. That
history should remind policymakers at all levels of government exactly what is at stake. 5G is about our
leadership for the next decade.
And being first matters. It determines whether capital will flow here, whether innovators will
start their new businesses here, and whether the economy that benefits is the one here. Or as Deloitte put
it: “First-adopter countries . . . could sustain more than a decade of competitive advantage.”
We’re not the only country that wants to be first to 5G. One of our biggest competitors is China.
They view 5G as a chance to flip the script. They want to lead the tech sector for the next decade. And
they are moving aggressively to deploy the infrastructure needed for 5G.
Since 2015, China has deployed 350,000 cell sites. We’ve built fewer than 30,000. Right now,
China is deploying 460 cell sites a day. That is twelve times our pace. We have to be honest about this
infrastructure challenge. The time for empty statements about carrots and sticks is over. We need a
concrete plan to close the gap with China and win the race to 5G.
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We take this challenge seriously at the FCC. And we are getting the government out of the way,
so that the private sector can invest and compete.
In March, we held that small cells should be treated differently than large, 200-foot towers. And
we’re already seeing results. That decision cut $1.5 billion in red tape, and one provider reports that it is
now clearing small cells for construction at six times the pace as before.
So we’re making progress in closing the infrastructure gap with China. But hurdles remain.
We’ve heard from dozens of mayors, local officials, and state lawmakers who get what 5G means—they
understand the economic opportunity that comes with it. But they worry that the billions in investment
needed to deploy these networks will be consumed by the high fees and long delays imposed by big,
“must-serve” cities. They worry that, without federal action, they may not see 5G. I’d like to read from a
few of the many comments I’ve received over the last few months.
Duane Ankney is a retired coal miner from Montana with a handlebar mustache that would be the
envy of nearly any hipster today. But more relevantly, he’s a Member of the Montana State Legislature
and chairs its Energy and Telecommunications Committee. He writes: “Where I see the problem is, that
most of investment capital is spent in the larger urban areas. This is primarily due to the high regulatory
cost and the cost recovery [that] can be made in those areas. This leaves the rural areas out.”
Mary Whisenand, an Iowa commissioner, writes: “With 99 counties in Iowa, we understand the
need to streamline the network buildout process so it’s not just the big cities that get 5G but also our small
towns. If companies are tied up with delays and high fees, it’s going to take that much longer for each
and every Iowan to see the next generation of connectivity.”
Ashton Hayward, the Mayor of Pensacola, Florida, writes: “[E]xcessive and arbitrary fees . . .
result[] in nothing more than telecom providers being required to spend limited investment dollars on fees
as opposed to spending those limited resources on the type of high-speed infrastructure that is so
important in our community.”
And the entire board of commissioners from a more rural area in Michigan writes: “Smaller
communities such as those located in St. Clair County would benefit by having the [FCC] reduce the
costly and unnecessary fees that some larger communities place on small cells as a condition of
deployment. These fees, wholly disproportionate to any cost, put communities like ours at an unfair
disadvantage. By making small cell deployment less expensive, the FCC will send a clear message that
all communities, regardless of size, should share in the benefits of this crucial new technology.”
They’re right. When I think about success—when I think about winning the race to 5G—the
finish line is not the moment we see next-gen deployments in New York or San Francisco. Success can
only be achieved when all Americans, no matter where they live, have a fair shot at fast, affordable
broadband.
So today, we build on the smart infrastructure policies championed by state and local leaders. We
ensure that no city is subsidizing 5G. We prevent excessive fees that would threaten 5G deployment.
And we update our shot clocks to account for new small cell deployments. I want to thank Commissioner
Rosenworcel for improving the new shot clocks with edits that protect municipalities from providers that
submit incomplete applications and provide localities with more time to adjust their operations. Her ideas
improved this portion of the order.
More broadly, our decision today has benefited from the diverse views expressed by a range of
stakeholders. On the local government side, I met with mayors, city planners, and other officials in their
home communities and learned from their perspectives. They pushed back on the proposed “deemed
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granted” remedy, on regulating rents on their property outside of rights-of-way, and on limits to
reasonable aesthetic reviews. They reminded me that they’re the ones that get pulled aside at the grocery
store when an unsightly small cell goes up. Their views carried the day on all of those points. And our
approach respects the compromises reached in state legislatures around the country by not preempting
nearly any of the provisions in the 20 state level small cells bills.
This is a balanced approach that will help speed the deployment of 5G. Right now, there is a
cottage industry of consultants spurring lawsuits and disputes in courtrooms and city halls around the
country over the scope of Sections 253 and 332. With this decision, we provide clear and updated
guidance, which will eliminate the uncertainty inspiring much of that litigation.
Some have also argued that we unduly limit local aesthetic reviews. But allowing reasonable
aesthetic reviews—and thus only preventing unreasonable ones—does not strike me as a claim worth
lodging.
And some have asked whether this reform will make a real difference in speeding 5G deployment
and closing the digital divide. The answer is yes. It will cut $2 billion in red tape. That’s about $8,000 in
savings per small cell. Cutting these costs changes the prospects for communities that might otherwise
get left behind. It will stimulate $2.4 billion in new small cell deployments. That will cover 1.8 million
more homes and businesses—97% of which are in rural and suburban communities. That is more
broadband for more Americans.
***
In closing, I want to thank my colleagues for working to put these ideas in place. I want
to thank Chairman Pai for his leadership in removing these regulatory barriers. And I want to recognize
the exceptionally hard-working team at the FCC that helped lead this effort, including, in the Wireless
Telecommunications Bureau, Donald Stockdale, Suzanne Tetrault, Garnet Hanly, Jonathan Campbell,
Stacy Ferraro, Leon Jackler, Eli Johnson, Jonathan Lechter, Marcus Maher, Betsy McIntyre, Darrel Pae,
Jennifer Salhus, Jiaming Shang, and David Sieradzki. I also want to thank the team in the Office of
General Counsel, including Tom Johnson, Ashley Boizelle, Bill Richardson, and Anjali Singh.
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STATEMENT OF
COMMISSIONER JESSICA ROSENWORCEL
APPROVING IN PART, DISSENTING IN PART
Re:Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure
Investment, WT Docket No. 17-79; Accelerating Wireline Broadband Deployment by Removing
Barriers to Infrastructure Investment, WC Docket No. 17-84
A few years ago, in a speech at a University of Colorado event, I called on the Federal
Communications Commission to start a proceeding on wireless infrastructure reform. I suggested that if
we want broad economic growth and widespread mobile opportunity, we need to avoid unnecessary
delays in the state and local approval process. That’s because they can slow deployment.
I believed that then. I still believe it now.
So when the FCC kicked off a rulemaking on wireless infrastructure last year, I had hopes. I
hoped we could provide a way to encourage streamlined service deployment nationwide. I hoped we
could acknowledge that we have a long tradition of local control in this country but also recognize more
uniform policies across the country will help us in the global race to build the next generation of wireless
service, known as 5G. Above all, I hoped we could speed infrastructure deployment by recognizing the
best way to do so is to treat cities and states as our partners.
In one respect, today’s order is consistent with that vision. We shorten the time frames permitted
under the law for state and local review of the deployment of small cells—an essential part of 5G
networks. I think this is the right thing to do because the shot clocks we have now were designed in an
earlier era for much bigger wireless facilities. At the same time, we retain the right of state and local
authorities to pursue court remedies under Section 332 of the Communications Act. This strikes an
appropriate balance. I appreciate that my colleagues were willing to work with me to ensure that
localities have time to update their processes to accommodate these new deadlines and that they are not
unfairly prejudiced by incomplete applications. I support this aspect of today’s order.
But in the remainder of this decision, my hopes did not pan out. Instead of working with our state
and local partners to speed the way to 5G deployment, we cut them out. We tell them that going forward
Washington will make choices for them—about which fees are permissible and which are not, about what
aesthetic choices are viable and which are not, with complete disregard for the fact that these
infrastructure decisions do not work the same in New York, New York and New York, Iowa. So it comes
down to this: three unelected officials on this dais are telling state and local leaders all across the country
what they can and cannot do in their own backyards. This is extraordinary federal overreach.
I do not believe the law permits Washington to run roughshod over state and local authority like
this and I worry the litigation that follows will only slow our 5G future. For starters, the Tenth
Amendment reserves powers to the states that are not expressly granted to the federal government. In
other words, the constitution sets up a system of dual sovereignty that informs all of our laws. To this
end, Section 253 balances the interests of state and local authorities with this agency’s responsibility to
expand the reach of communications service. While Section 253(a) is concerned with state and local
requirements that may prohibit or effectively prohibit service, Section 253(d) permits preemption only on
a case-by-case basis after notice and comment. We do not do that here. Moreover, the assertion that fees
above cost or local aesthetic requirements in a single city are tantamount to a service prohibition
elsewhere stretches the statute beyond what Congress intended and legal precedent affords.
In addition, this decision irresponsibly interferes with existing agreements and ongoing
deployment across the country. There are thousands of cities and towns with agreements for
infrastructure deployment—including 5G wireless facilities—that were negotiated in good faith. So
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many of them could be torn apart by our actions here. If we want to encourage investment, upending
commitments made in binding contracts is a curious way to go.
Take San Jose, California. Earlier this year it entered into agreements with three providers for the
largest small cell-driven broadband deployment of any city in the United States. These partnerships
would lead to 4,000 small cells on city-owned light poles and more than $500 million of private sector
investment. Or take Little Rock, Arkansas, where local reforms to the permitting process have put it on
course to become one of the first cities to benefit from 5G service. Or take Troy, Ohio. This town of
under 26,000 spent time and energy to develop streamlined procedures to govern the placement,
installation, and maintenance of small cell facilities in the community. Or take Austin, Texas. It has been
experimenting with smart city initiatives to improve transportation and housing availability. As part of
this broader effort, it started a pilot project to deploy small cells and has secured agreements with multiple
providers.
This declaratory ruling has the power to undermine these agreements—and countless more just
like them. In fact, too many municipalities to count—from Omaha to Overland Park, Cincinnati to
Chicago and Los Angeles to Louisville—have called on the FCC to halt this federal invasion of local
authority. The National Governors Association and National Conference of State Legislatures have asked
us to stop before doing this damage. This sentiment is shared by the United States Conference of Mayors,
National League of Cities, National Association of Counties, and Government Finance Officers
Association. In other words, every major state and municipal organization has expressed concern about
how Washington is seeking to assert national control over local infrastructure choices and stripping local
elected officials and the citizens they represent of a voice in the process.
Yet cities and states are told to not worry because with these national policies wireless providers
will save as much as $2 billion in costs which will spur deployment in rural areas. But comb through the
text of this decision. You will not find a single commitment made to providing more service in remote
communities. Look for any statements made to Wall Street. Not one wireless carrier has said that this
action will result in a change in its capital expenditures in rural areas. As Ronald Reagan famously said,
“trust but verify.” You can try to find it here, but there is no verification. That’s because the hard
economics of rural deployment do not change with this decision. Moreover, the asserted $2 billion in cost
savings represents no more than 1 percent of investment needed for next-generation networks.
It didn’t have to be this way. So let me offer three ideas to consider going forward.
First, we need to acknowledge we have a history of local control in this country but also
recognize that more uniform policies can help us be first to the future. Here’s an idea: Let’s flip the
script and build a new framework. We can start with developing model codes for small cell and 5G
deployment—but we need to make sure they are supported by a wide range of industry and state and local
officials. Then we need to review every policy and program—from universal service to grants and low-
cost loans at the Department of Commerce, Department of Agriculture, and Department of Transportation
and build in incentives to use these models. In the process, we can create a more common set of practices
nationwide. But to do so, we would use carrots instead of sticks.
Second, this agency needs to own up to the impact of our trade policies on 5G deployment. In
this decision we go on at length about the cost of local review but are eerily silent when it comes to the
consequences of new national tariffs on network deployment. As a result of our escalating trade war with
China, by the end of this year we will have a 25 percent duty on antennas, switches, and routers—the
essential network facilities needed for 5G deployment. That’s a real cost and there is no doubt it will
diminish our ability to lead the world in the deployment of 5G.
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Finally, in this decision the FCC treats the challenge of small cell deployment with a bias toward
more regulation from Washington rather than more creative marketplace solutions. But what if instead
we focused our efforts on correcting the market failure at issue? What if instead of micromanaging costs
we fostered competition? One innovative way to do this involves dusting off our 20-year old over-the-
air-reception-device rules, or OTARD rules.
Let me explain. The FCC’s OTARD rules were designed to protect homeowners and renters
from laws that restricted their ability to set up television and broadcast antennas on private property. In
most cases they accomplished this by providing a right to install equipment on property you control—and
this equipment for video reception was roughly the size of a pizza box.
Today OTARD rules do not contemplate 5G deployment and small cells. But we could change
that by clarifying our rules. If we did, a lot of benefits would follow. By creating more siting options for
small cells, we would put competitive pressure on public rights-of-way, which could bring down fees
through competition instead of the government ratemaking my colleagues offer here. Moreover, this
approach would create more opportunities for rural deployment by giving providers more siting and
backhaul options and creating new use cases for signal boosters. Add this up and you get more
competitive, more ubiquitous, and less costly 5G deployment.
We don’t explore these market-based alternatives in today’s decision. We don’t say a thing about
the real costs that tariffs impose on our efforts at 5G leadership. And we don’t consider creative
incentive-based systems to foster deployment, especially in rural areas.
But above all we neglect the opportunity to recognize what is fundamental: if we want to speed
the way for 5G service we need to work with cities and states across the country because they are our
partners. For this reason, in critical part, I dissent.