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6409 General

FCC Amends Small Cell Rules per DC Circuit Court

Some commenters have described the DC Circuit’s decision in United Keetoowah Band of Cherokee Indians v. FCC, No. 18–1129, 2019 WL 3756373 (D.C. Cir Aug. 9, 2019) as being some sort of a magic bullet 5G/small cell killer.  They also claim that the decision nullifies much of the FCC’s small cell rules, citing primarily to the personal observations of a FCC Commissioner.

I wish all that were true.

In fact, however, those commenters are only expressing their wishful, non-lawyer’s reading of the limited scope of the United Keetoowah decision.  That’s why the ten local government cases now being litigated in the 9th Circuit remain the most important fights citizens have to truly set aside the FCC’s misguided, unjustified, industry-loving rules.

Lets take a look at what the FCC actually did to respond to the D.C. Circuit’s United Keetoowah decision:

First, the FCC amended 47 C.R.R. § 1.1312 to reduce the scope of the rule.  Here’s a before and after comparison of the existing rule followed by the replacement rule that becomes effective on 12/5/2019:

Original
Text
Text Effective
12/5/2019
Text
Difference
§ 1.1312 Facilities for which no preconstruction authorization is required. § 1.1312 Facilities for which no preconstruction authorization is required. None
(a) In the case of facilities for which no Commission authorization prior to construction is required by the Commission‘s rules and regulations the licensee or applicant shall initially ascertain whether the proposed facility may have a significant environmental impact as defined in § 1.1307 of this part or is categorically excluded from environmental processing under § 1.1306 of this part. (a) In the case of facilities for which no Commission authorization prior to construction is required by the Commission‘s rules and regulations the licensee or applicant shall initially ascertain whether the proposed facility may have a significant environmental impact as defined in § 1.1307 of this part or is categorically excluded from environmental processing under § 1.1306 of this part. None
(b) If a facility covered by paragraph (a) of this section may have a significant environmental impact, the information required by § 1.1311 of this part shall be submitted by the licensee or applicant and ruled on by the Commission, and environmental processing (if invoked) shall be completed, see § 1.1308 of this part, prior to the initiation of construction of the facility. (b) If a facility covered by paragraph (a) of this section may have a significant environmental impact, the information required by § 1.1311 of this part shall be submitted by the licensee or applicant and ruled on by the Commission, and environmental processing (if invoked) shall be completed, see § 1.1308 of this part, prior to the initiation of construction of the facility. None
(c) If a facility covered by paragraph (a) of this section is categorically excluded from environmental processing, the licensee or applicant may proceed with construction and operation of the facility in accordance with the applicable licensing rules and procedures. (c) If a facility covered by paragraph (a) of this section is categorically excluded from environmental processing, the licensee or applicant may proceed with construction and operation of the facility in accordance with the applicable licensing rules and procedures. None
(d) If, following the initiation of construction under this section, the licensee or applicant discovers that the proposed facility may have a significant environmental effect, it shall immediately cease construction which may have that effect, and submit the information required by § 1.1311 of this part. The Commission shall rule on that submission and complete further environmental processing (if invoked), see § 1.1308 of this part, before such construction is resumed. (d) If, following the initiation of construction under this section, the licensee or applicant discovers that the proposed facility may have a significant environmental effect, it shall immediately cease construction which may have that effect, and submit the information required by § 1.1311 of this part. The Commission shall rule on that submission and complete further environmental processing (if invoked), see § 1.1308 of this part, before such construction is resumed. None
(e) Paragraphs (a) through (d) of this section shall not apply: e) Paragraphs (a) through (d) of this section shall not apply to the construction of mobile stations. Rule changed to limit the scope of (a) through (d) to not apply to the construction of mobile stations.
(1) To the construction of mobile stations; or

(2) Where the deployment of facilities meets the following conditions:

(i) The facilities are mounted on structures 50 feet or less in height including their antennas as defined in § 1.1320(d), or the facilities are mounted on structures no more than 10 percent taller than other adjacent structures, or the facilities 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;

(ii) Each antenna associated with the deployment, excluding the associated equipment (as defined in the definition of antenna in § 1.1320(d)), is no more than three cubic feet in volume;

(iii) 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; and

(iv) The facilities do not require antenna structure registration under part 17 of this chapter; and

(v) The facilities are not located on tribal lands, as defined under 36 CFR 800.16(x); and

(vi) The facilities do not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in § 1.1307(b).

Text deleted

Then the Commission changed one small element of 47 C.F.R. § 1.6002 to delete the cross reference back to § 1.1312(e)(2).  Here’s a before and after comparison of the existing rule followed by the replacement rule that becomes effective on 12/5/2019:

Original
Text

Text Effective
12/5/2019

Text
Difference

(l) Small wireless facilities, consistent with § 1.1312(e)(2), are facilities that meet each of the following conditions: (l) Small wireless facilities are facilities that meet each of the following conditions: Deleted: “, consistent with § 1.1312(e)(2),”
(1) The facilities –

(i) Are mounted on structures 50 feet or less in height including their antennas as defined in § 1.1320(d); or

(1) The facilities –

(i) Are mounted on structures 50 feet or less in height including their antennas as defined in § 1.1320(d); or

None
(ii) Are mounted on structures no more than 10 percent taller than other adjacent structures; or

 

(ii) Are mounted on structures no more than 10 percent taller than other adjacent structures; or

 

None

 

(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;

 

(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;

 

None

 

(2) Each antenna associated with the deployment, excluding associated antenna equipment (as defined in the definition of “antenna” in § 1.1320(d)), is no more than three cubic feet in volume;

 

(2) Each antenna associated with the deployment, excluding associated antenna equipment (as defined in the definition of antenna in § 1.1320(d)), is no more than three cubic feet in volume;

 

None

 

(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;

 

(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;

 

None

 

(4) The facilities do not require antenna structure registration under part 17 of this chapter;

 

(4) The facilities do not require antenna structure registration under part 17 of this chapter;

 

None

 

(5) The facilities are not located on Tribal lands, as defined under 36 CFR 800.16(x); and

 

(5) The facilities are not located on Tribal lands, as defined under 36 CFR 800.16(x); and

 

None

 

(6) The facilities do not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in § 1.1307(b).

 

(6) The facilities do not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in § 1.1307(b).

 

None

 

don’t believe me? Take a look at a PDF copy of the official FCC rule changes published in the Federal Register on November 5, 2019, and effective on December 5, 2019: Small Cell Rules Changes Effective 12-5-2019 – FCC2019-24071.

Are the new rule changes a small cell killer? Sorry…No.

…a 5G killer? Not even close.

…wishful thinking? Yup.

Let’s keep our eyes on the right Small Cell rules fight, being fought in the right venue…the 9th Circuit Court of Appeals.

If you’re a member of the public really interested in changing fundamental concepts of wireless rules to be set and/or enforced by the FCC, then you should also fight your fight in the right venue, which is not before a local government that is obligated to follow state and federal laws, regardless of how little some may think about following the laws that exist.  Consider visiting your Member of Congress and your U.S. Senators. Only they have the power to accomplish the fundamental changes that some members of the public wish to see happen.

Jonathan

 

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6409 General

Coalition of Concerned Utilities Reply Comments in 6409(a) Petition

Here’s a choice quote from the Coalition of Concerned Utilities who oppose the wireless industry’s attempt to get the FCC to change the 6409(a) rules:

Careless requests by Crown Castle and others to relax utility construction and design standards and to experiment downward is like asking the National Highway Traffic Safety Administration to order bumpers, airbags, head restraints and other safety gear to be removed to see whether cars can be built for less money without an increase in injuries.

If you’d like to read the entire reply comments from the CCU, please  CLICK HERE.

 

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6409 General

We take the 6409(a) fight to the FCC

I am very proud to announce that last night, a broad coalition of local governments and government agencies that we represent filed nearly 600 pages of comments to oppose the wireless industry’s latest attempts to gut wireless siting controls from citizens and their local governments.

The name of the coalition is “The Western Communities Coalition”.

The coalition opposition by Telecom Law Firm P.C. (Los Angeles and San Diego) and Kissinger and Fellman (Denver) represent the positions and views of local governments with millions of residents. In combination with other municipal law firms also filing in the same proceedings, we’re all speaking with the overwhelming voice of many millions of concerned residents.

Our coalition members are:

CITY OF SAN DIEGO, CAL.; CITY OF BEAVERTON, OR.; CITY OF BOULDER, COLO.; TOWN OF BRECKENRIDGE, COLO.; CITY OF CARLSBAD, CAL.; CITY OF CERRITOS, CAL.; COLORADO COMMUNICATIONS AND UTILITY ALLIANCE; CITY OF CORONADO, CAL.; TOWN OF DANVILLE, CAL.; CITY OF ENCINITAS, CAL.; KING COUNTY, WASH.; CITY OF LACEY, WASH.; CITY OF LA MESA, CAL.; CITY OF LAWNDALE, CAL.; LEAGUE OF OREGON CITIES; LEAGUE OF CALIFORNIA CITIES; CITY OF NAPA, CAL.; CITY OF OLYMPIA, WASH.; CITY OF OXNARD, CAL.; CITY OF PLEASANTON, CAL.; CITY OF RANCHO PALOS VERDES, CAL.; CITY OF RICHMOND, CAL.; TOWN OF SAN ANSELMO, CAL.; CITY OF SAN MARCOS, CAL.; CITY OF SAN RAMON, CAL.; CITY OF SANTA CRUZ, CAL.; CITY OF SANTA MONICA, CAL.; CITY OF SOLANA BEACH CAL.; CITY OF SOUTH LAKE TAHOE, CAL.; CITY OF TACOMA, WASH.; CITY OF THOUSAND OAKS, CAL.; THURSTON COUNTY, WASH.; CITY OF TUMWATER, WASH.

Taking this fight in this way to the FCC is the legally and policy correct manner to proceed at this time. Now that the initial comments have been filed by local governments and the wireless industry, we are preparing to write reply comments on behalf of our coalition members.

You’ll notice in our comments that we are very specific about rebutting and destroying the wireless industry misstatements, innuendos, and outright misepresentations that cannot substitute for facts the FCC may or should rely on. The light we shine on the wireless industry is startling and instructive.

Here is a link to the Western Communities Coalition comments:

JOINT COMMENTS (19-250) (FINAL) reduced size

I can assure you that the Western Communities Coalition reply comments will be even more powerful and impactful. I will post them here when they are filed.

Jonathan

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6409 FCC Legal

6409(a): Montgomery County v. FCC

The first lawsuit against the FCC challenging the constitutionality of Section 6409(a) has been filed in the 4th Circuit Court of Appeals.  Montgomery County is suing the FCC.

Let the litigation begin.  You can right click on the link below to download the entire compliant, but you can pretty much stop reading after the second page.

mont.county.v.fcc

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6409 FCC FCC Shot Clock Legal

New FCC Wireless Rules Appear in Federal Register

fcc.logo

As expected, the new FCC rules for wireless siting appeared in today’s Federal Register. I have attached them here as a PDF.

 

2014-28897

 

According to the Federal Register, not all of the rules may become effective on the dates published in the notice. Some of the rules are still pending Office of Management and Budget approval.

Tripp May, my partner is in the process of updating our ‘Clients and Friends Memo’ on the new rules. If you are a Client or government attorney and would like a complimentary copy of our memo, please email Tripp or give him a call on 310-405-7340.

Jonathan

 

 

 

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6409 FCC

New FCC Rules To Appear in Federal Register 1/8/15

Tomorrow’s Federal Register will contain the long-awaited FCC Rules for Acceleration of Deployment of Broadband (the 6409(a) and Shot Clock rules, of most interest).  Below is a link to the pre-publication PDF of what should be published tomorrow.  Consider this linked document to be UNOFFICIAL.

Jonathan

 

fr.prepub.2014-28897

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6409 FCC Legal

FCC Issues Erratum to its Wireless Siting Order

fcc.logoToday, January 5 the FCC issued an “Erratum” to its Report and Order, FCC 14-153 (the wireless siting order released on October 21, 2014).

The Erratum spans six (6) pages.

Here is the document, in PDF format:

erratum.DOC-331345A1

Tripp and I are in the process of reviewing the changes, and we’ll be issuing a revision to our memorandum to clients and friends of Telecom Law Firm, P.C.

 

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6409 FCC FCC Shot Clock Legal

Kramer on the New FCC 6409(a) Rules: City of Calabasas Video

Last night I presented at the City of Calabasas, California’s Communications and Technology Commission on the new FCC rules implementing Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012.  I also talked about a bunch of other stuff the FCC added in to the mix.   If you’re in to such things you may find the video (below) of my presentation and the Q&A that followed to be useful, or at least entertaining. Maybe even both.

To better understand some elements in my lecture, please understand that it followed immediately after planning item where Verizon Wireless came to the City to permit-in-arrears a site they modified without first securing City permits.  This was the sixth time they had modified their cell sites in the City without benefit of first securing City permits.

Thanks to the City of Calabasas for putting the video up on their YOUTUBE channel.

My discussion is based on my own opinions and does not reflect the position of any government, but it might.

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6409 FCC FCC Shot Clock Legal Moratorium PCIA

First Thoughts on Today’s FCC 6409(a) Report and Order

Today, October 17, 2014, the Federal Communications Commission (“Commission”) voted to adopt new federal rules that significantly undermine local police powers to regulate wireless infrastructure. The rules will become effective 90 days after the Commission publishes the Report and Order (“Order”) in the Federal Register.

Although as of this writing the Commission has not yet released its Order to the pubic, each Commissioner previewed portions of the Order in their comments before the vote.

State and local governments can expect new special exceptions and exclusions from environmental and historic preservation reviews for DAS and small cells, even when the project involves a diesel generator or hydrogen fuel cells.

Section 6409(a)

Perhaps the most dramatic changes will deal with Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 (“Section 6409(a)” which is codified at 47 U.S.C. § 1455(a)) and the Commission’s time limits on local wireless site application reviews (colloquially known as the “Shot Clock”) for projects that qualify for treatment under Section 6409(a).

Section 6409(a) mandates that State and local governments “may not deny, and shall approve” an “eligible facilities request” so long as that eligible facilities request does not “substantially change the physical dimensions of the existing wireless tower or base station.” The Commissioners explained that the Order would define ambiguous statutory terms, impose a 60-day deadline for State and local governments to act on a collocation application, and inflict a “deemed granted” remedy for failures to act before the deadline.

Commissioner Ajit Pai emphasized that, under the rules adopted today, an applicant can begin construction on day 61 after the State or local government fails to act on day 60. Whether this preempts building permit requirements is unclear, and could lead to serious public safety hazards from tower/facility construction like the ones that caused the 2007 Malibu Canyon fire.

One big question the Order will answer is how the Commission defined a “substantial change in the physical dimensions of a wireless tower or base station.” This issue is crucial because Section 6409(a)—and the truncated time for review under a deemed-granted threat—applies only when the applicant submits a request to collocate or modify a site that does not result in a substantial change. None of the Commissioners offered specifics, but the Commission hinted that it leaned towards a one-size-fits-all approach.

The FCC Shot Clock

The Commission also indicated that the Order will revise its Shot Clock rules. Prior to today’s Order, local governments had to review and grant or deny applications for new sites within 150 days or 90 days for collocations. Now, for at least collocations, the Shot Clock is reduced to 60 days. The Order will likely extend the Shot Clock to DAS and small cells.

The Commissioner’s hinted that the Order would preempt or sharply local moratoria.

One potential bright spot came from Commissioner Pai, who suggested that the “deemed granted” remedy imposed under Section 6409(a) does not extend to Shot Clock violations for new sites or eligible facilities requests that cause a substantial change. However, Commissioner Pai hopes the Commission will revisit that issue within 18 to 24 months.

So What Now?

In the near-term, the administrative process at the Commission is not yet finished. Municipalities and other interested parties can file a “Petition to Reconsider,” which asks for specific changes to a published order. Petitions must be received within 30 days after the Commission publishes a public notice of the Order (expected in the Federal Register). Such petitions do not necessarily stop the rules from becoming effective or during the time the Commission considers the petition.

Court Challenges to the Order

It seems very likely that the Order will be challenged in federal court. State and local governments will likely argue that the Constitution and settled case law prohibit the federal government from enacting a statute that forces State and local governments to administer a federal program. Lawyers will likely argue that Section 6409(a) unconstitutionally forces municipalities to administer a federal wireless infrastructure deployment program because it requires them to process applications under federal standards within a federal timeline or face federal penalties. Further, Section 6409(a), now presumably exacerbated by the rules in the Order, isolate the federal government from the political accountability of the law and rules, shifting that accountability to the states and local governments that have no option but to administer the program. Any such challenge might not occur for many months, and the machinery of the judicial system turns slowly.

New Local Wireless Ordinances

In the meantime, the wireless industry seems intent on rewriting local ordinances, too. For example, Commissioner Mignon Clyburn commended CTIA and PCIA (lobbyists for the wireless industry) for their offer to teach local governments “best practices” and to provide “model ordinances and applications” for streamlined application reviews. If this sounds like the fox guarding the hen house, it is. Local governments should look to advocates unaligned with the industry to be regulated for help rewriting their local laws and ordinances to comply with the Order.

Blame the Local Governments?

Commissioner Michael O’Rielly said that the new rules will streamline wireless deployment because “the gig is up” for recalcitrant municipalities. Unfortunately for all involved, one more likely result is that wireless ordinances and review processes will become more detailed, more rigorous, and more contentious. More to the point, however, is that the public will likely be far from happy with Congress Members who have passed a law that makes their local community officials mere functionaries forced to carry out this federal government program at the expense of local community aesthetics and interests.

We will offer commentary on the specifics in the Order once the Commission makes the Order available to the public.

Telecom Law Firm, P.C.

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6409 FCC General Legal PCIA

FCC Adopts Rules to Define 6409(a) and Modify the Shot Clock

In 2012, at the behest of the wireless industry (and specifically the PCIA), Congress passed and the President signed the Middle Class Tax Relief and Job Creation Act.  Buried within the hundreds of thousands of words in the Act are 149 word comprising Section 6409(a) dealing with wireless site collocations.

Here are those 149 words:

SEC. 6409. WIRELESS FACILITIES DEPLOYMENT.

(a) FACILITY MODIFICATIONS.

(1) IN GENERAL. Notwithstanding section 704 of the Telecommunications Act of 1996 (Public Law 104–104) 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.

(2) ELIGIBLE FACILITIES REQUEST. For purposes of this subsection, the term ‘‘eligible facilities request’’ means 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.

(3) APPLICABILITY OF ENVIRONMENTAL LAWS. Nothing in paragraph (1) shall be construed to relieve the Commission from the requirements of the National Historic Preservation Act or the National Environmental Policy Act of 1969.

As you can imagine reading the plain words of this portion of the Act, it doesn’t make a lot of sense.  Most of the key terms are undefined.  Terms like, “wireless tower”, “base station”, “transmission equipment”, and my personal favorite, “substantially change the physical dimensions.”

More important, this Act is Congress commanding that “a State or local government may not deny, and shall approve, any eligible facilities request…”    Lawyers know that these types of words implicate the Tenth Amendment to the Constitution, and are designed and intended to “blur the lines of political accountability” by isolating those who intend the result (here, Congress) from those who have to produce the result (the State and local governments commanded with carrying out the law).  For more on the unconstitutionally of Section 6409(a), see John Pestle’s expansive review linked via his blog.

Notwithstanding the constitutional issues of the law, until struck by a court, state and local governments are bound to follow it.  After the law became effective, those state and local governments started amending their local laws and ordinances to create the gap-filling definitions necessary to make rational sense of the law.

It turns out that those state and local governments had their own ideas how to fill in the missing definitions in a way that made sense in the local setting.  The wireless industry was not amused.

As the expert agency for telecommunications, in January 2013 the FCC’s wireless bureau stepped in offering a non-binding guidance on what it thought Section 6409(a) meant and how it should be made operational in practice.  The state and local governments were not amused.

In September, 2013 the FCC released a Notice of Proposed Rulemaking (“NPRM”) to pave the path to formal rules that would have to be followed by states and local governments.

Today the FCC Commissioners adopted rules flowing out of the NPRM process to explain what Congress intended through 47 U.S.C. § 1455(a), and what it really means.  Congressional intent is an interesting subject all by itself because in connection with Section 6409(a), Congress was mute.  There were no speeches or floor debates during the adoption phase, and the only record comment came after the law was adopted.  That one comment actually misstated the law that was adopted.  Oh well.

As of the initial posting of this blog item, the Report and Order are not yet out.  I’ll post the R&O when it’s available.

Here is the audio of the item.  The running time is 27 minutes, 23 seconds.

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