United States: FCC Explores Opportunities To Expedite Deployment Of Wireless Broadband Facilities

Last Updated: December 10 2013
Article by Russell H. Fox and Megan L. Capasso

On September 27, 2013, the Federal Communications Commission ("FCC") issued a Notice of Proposed Rulemaking ("Notice") directed at expediting the deployment of wireless broadband facilities. 1 Currently, parties seeking to deploy wireless infrastructure must obtain different types of federal, state and local approvals prior to construction and the Notice examines ways to streamline those processes. The Notice is prompted by the FCC's recognition that America's increasing demand for bandwidth and reliance on advanced wireless services are driving a need for additional infrastructure deployment that may be unnecessarily slowed or prevented by current requirements. To promote and ensure increased deployment of wireless broadband facilities, the FCC proposed changes in four areas, summarized below. Comments are due 60 days, and reply comments are due 90 days, after publication of the Notice in the Federal Register, which has not yet occurred.

Expediting the FCC's Environmental Review Process for Distributed Antenna Systems ("DAS") and Small Cells

The bulk of the FCC's environmental review rules 2 were written prior to the advent of DAS and small cell technologies and treat all antennas the same, regardless of size and placement. The FCC observes that because deployments on poles and rooftops are less visible than macrocells on tower structures, DAS and small cell technologies — which can be deployed on top of shorter structures like rooftops and utility poles — "may be particularly desirable for addressing capacity or coverage needs in areas with stringent siting regulations, such as historic districts." Therefore, the FCC seeks comment on ways to expedite or tailor its environmental review process, including its review of effects on historic properties, for proposed deployments of small cells, DAS, and other small-scale wireless technologies that may have minimal effects on the environment.

In particular, the FCC seeks comment on updating the NEPA exclusion for collocations and adopting a new categorical exclusion from NEPA review for DAS/small cell deployments. The FCC also invites commenters to discuss the potential effects of DAS and small cell systems on historic properties, in order to assist the Commission in assessing whether to depart from the ordinary historical preservation review under Section 106 of the NHPA for those technologies.

Environmental Notification Exemption for Temporary Towers

In response to a petition filed by CTIA-The Wireless Association, the FCC proposes to adopt a narrow exemption from its pre-construction environmental notification requirements for certain temporary towers used for special events such as races and concerts. Under the current notification requirements, before a party can register a proposed communications tower with the FCC (and therefore begin construction of the tower in question) it must complete a process of local and national notice. Temporary towers are often needed with very little advance warning, making the notification process impracticable.

The FCC's proposed exemption requires eligible towers to meet specified criteria, including (1) very short duration; (2) height limits; (3) minimal or no associated excavation; and (4) absence of need for warning lighting. The FCC believes these requirements should minimize the potential for significant environmental effects, and findsthat the proposed exemption would enable providers to timely deploy temporary towers in response to unanticipated short-term needs without undermining the purpose of the environmental notification process.

Implementation of Section 6409(a) of the Spectrum Act

The FCC solicits comment on rules to clarify and implement the requirements of Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 ("Spectrum Act") which specifies that "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." 3 Eligible facilities requests include collocation requests, as well as requests for removal or replacement of existing equipment. The FCC notes that collocation — which involves placing wireless equipment on pre-existing structures rather than constructing new support structures — is often the most efficient, rapid, and economical means of expanding wireless coverage and capacity, and also reduces the environmental and other impacts of new wireless facilities deployment.

The FCC proposes clarifications of key terms in Section 6409(a) (i.e., "transmission equipment," "wireless," "existing wireless tower or base station," "collocation," "removal," "replacement," and "substantially change the physical dimensions") that could affect local oversight and authority over the deployment of wireless equipment on existing facilities and structures.

The FCC also seeks comment on the remedies that should be available to enforce Section 6409(a) in cases where state or local governments fail to act on, or reach decisions adverse to, an applicant's request to deploy wireless facilities. The FCC suggests that a "deemed granted" remedy could be imposed where a local government fails to act within a specified period of time. In instances where a local government has failed to act on, or impermissibly denied, a covered request, the FCC proposes to permit the filing of declaratory ruling petitions with it.

Implementation of Section 332(c)(7) of the Communications Act

The FCC seeks comment on whether to address certain disputes or questions that have arisen about how to apply the Commission's 2009 Declaratory Ruling implementing Section 332(c)(7) of the Communications Act. 4 The FCC specifically seeks to resolve whether the terms "collocation" and "substantial increase in size" should be construed under Section 332(c)(7) 5 in a manner similar to Section 6409(a) and seeks comment on whether to clarify when a siting application is considered complete for the purpose of triggering the 2009 Declaratory Ruling time frame 6 and, if so, how completeness should be determined.

The FCC observes that neither Section 332(c)(7) nor any Commission decision interpreting Section 332(c)(7) makes any distinction among personal wireless service facilities based on technology, and proposes to clarify that to the extent DAS or small cell facilities will be used for the provision of personal wireless services, they are subject to the same presumptively reasonable time frames and requirements as other personal wireless service facilities. The FCC further notes that applicants and municipalities can agree to extensions of time in appropriate cases and seeks comment on whether there is any reason DAS or small cell facilities should be subject to different time frames or other requirements. The FCC also seeks comment on whether ordinances establishing preferences for the placement of wireless facilities on municipal property are unreasonably discriminatory under Section 332(c)(7).


1 Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, Notice of Proposed Rulemaking, WT Docket No. 13-238, WC Docket No. 11-59, RM-11688 (terminated), and WT Docket No.13-32, FCC 13-122 (rel. Sept. 27, 2013).

2 The National Environmental Policy Act of 1969 ("NEPA") requires agencies of the Federal government, like the FCC, to identify and evaluate environmental effects of proposed "major Federal actions significantly affecting the quality of the human environment." The FCC has generally found that its grant or approval of an application that will result in construction of a significant wireless communications facility qualifies as a major federal action, thereby subjecting the constructed facility to NEPA procedures. Similarly, Section 106 of the National Historic Preservation Act ("NHPA") requires federal agencies to take into account the effects of their "undertakings" on historic properties listed or eligible for listing in the National Register. To fulfill its responsibilities under Section 106, the FCC has incorporated the requirements of the NHPA into its environmental rules.

3 See 47 U.S.C. § 1455(a).

4 Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review and to Preempt under Section 253 State and Local Ordinances that Classify All Wireless Siting Proposals as Requiring a Variance, Declaratory Ruling, 24 FCC Rcd 13994 (2009) ("2009 Declaratory Ruling"). Section 332(c)(7)(A) of the Communications Act expressly preserves "the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities." See 47 U.S.C. § 332(c)(7)(A). Section 332(c)(7)(B) of the Communications Act imposes certain limitations on this authority, including that siting decisions may not "unreasonably discriminate among providers of functionally equivalent services" and may not "prohibit or have the effect of prohibiting the provision of personal wireless services." See 47 U.S.C. § 332(c)(7)(B).

5 See 47 U.S.C. § 332(c)(7). In the 2009 Declaratory Ruling, the Commission held that the addition of an antenna to an existing tower or other structure constitutes a collocation for purposes of Section 332(c)(7) if it does not involve a "substantial increase in the size of a tower" as defined in the Collocation Agreement.

6 In implementing Section 332, the FCC established time limitations of 90 days to process siting applications requesting collocations and 150 days for all other applications. The 2009 Declaratory Ruling held that a state or local government's period for acting on an application is tolled until the applicant completes its application in response to a request for additional information made within the first 30 days, but did not attempt to define when a siting application should be considered "complete" for this purpose. Wireless entities assert that some jurisdictions delay processing by repeatedly requesting additional information.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Russell H. Fox
Megan L. Capasso
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions