Legal Alerts Jun 22, 2020

FCC Adopts Rules that Could Impact Concealment of Wireless Infrastructure

How Communities Can Respond

The FCC adopted a Declaratory Ruling and Notice of Proposed Rulemaking ("Order" and "NPRM," respectively) related to Section 6409 modification requests (eligible facilities requests) on June 9. As adopted, the Order has the potential to undermine communities’ enforcement of aesthetic standards, including concealment, applicable to wireless facilities, including small cells in the public rights-of-way. This Legal Alert offers a summary of major changes imposed by the Order, what the NPRM seeks to do and Best Best & Krieger LLP’s plans to help clients respond to each.
The Order
Limits to Concealment Elements
Existing FCC rules state that a facility modification does not qualify as an eligible facilities request if it defeats the “concealment elements” of the existing wireless facility. A carrier will almost always seek to claim a co-location is an EFR due to the expedited timeline and limited review available to local authorities of an EFR. The Order narrows the definition of “concealment elements” to constitute “elements of a stealth-designed facility intended to make the facility look like something other than a wireless tower or base station.” The Order includes examples of changes that are now unlikely to defeat concealment elements and are  not disqualified from being eligible facilities requests. These include, for example, placement of coaxial cable on the outside of a stealth facility, modest changes to the color of a stealth tower or structure or increasing the height of a faux tree so that it is taller than surrounding trees (at least to the point a reasonable person would continue to view the intended stealth design as effective).
Limits to Enforcement of Aesthetic Conditions
Concealment elements, no matter how narrowly defined, can be enforced by local regulation. That may not be the case for aesthetic conditions, to the extent that they limit height, width, cabinets and excavation more than the permissible thresholds for each. In other words, an original aesthetic condition limiting the height of a non-stealth wireless facility to 50 feet would not be an enforceable condition for an EFR as long as the proposed modification was within the permissible thresholds for size set by the EFR rules. Height limits or the limits on the size of antennas added to street lights may also be unenforceable.
Height Increases for Towers Outside of the Public Rights of Way
FCC rules allow EFRs that increase tower height by 10 percent or the height of one additional antenna array with separation from the nearest existing antenna not to exceed 20 feet, whichever is greater. The Order allows 20 feet plus the height of the new antenna, and the height of the new antennas is unlimited.
Equipment Cabinets
Existing FCC rules allow carriers to add no more than four ground-mounted cabinets to a site where there is an existing cabinet. The four-cabinet limit was understood to be a cumulative cap. The Order upends that understanding to rule that the cap of four cabinets applies to each eligible facilities request individually. In other words, there is no cumulative cap.
Shot Clock Start Date
EFRs are subject to a 60-day shot clock for decision. The Order makes it easier to trigger the shot clock earlier in the regulatory process, effectively reducing a community’s time to review an application.
Environmental Assessments
To “further streamline the environmental review process,” the Order declares that “…an environmental assessment is not needed when the FCC and applicants have entered into a memorandum of agreement to mitigate effects of a proposed undertaking on historic properties,…if the only basis for the preparation of an environmental assessment was the potential for significant effects on such properties.”
Notice of Proposed Rulemaking
The FCC tentatively concludes that it should change its rules to provide that excavations or deployment of up to 30 feet in any direction outside the boundaries of an existing tower site may still qualify as an EFR. The industry claims such expansions are needed for generators and additional cabinets.
BB&K Recommendations
BB&K believes that these changes in the law would dramatically impact a local government’s ability to maintain the design of its community and warrants appeal of the Order. Participation in the NPRM is imperative, given the industry’s expansion plans.
The Order is in effect. Communities should review their ordinances accordingly. The rule may, for example, lead communities to require use of stealth facilities where previously they had permitted concealed facilities. This may be particularly true for building-mounted facilities, where the rule may permit facilities that were concealed to become visible.
If your community is interested in joining a BB&K-led coalition of local governments responding to the Order and NPRM, or have any questions about these, please contact the authors of this Legal Alert listed at the right in the firm’s Telecommunications practice group, or your BB&K attorney.
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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts, facts specific to your situation or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information herein. 

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