In the Matter of Implementation of State and Local Governments' Obligation to Approve Certain Wireless Facility Modification Requests Under Section 6409(a) of the Spectrum Act of 2012

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FCC Declaratory Rulings › In the Matter of Implementation of State and Local Governments' Obligation to Approve Certain Wireless Facility Modification Requests Under Section 6409(a) of the Spectrum Act of 2012

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Federal Communications Commission FCC 20-75

Before the

FEDERAL COMMUNICATIONS COMMISSION

WASHINGTON, D.C. 20554

In the Matter of

Implementation of State and Local Governments’ Obligation to Approve Certain Wireless Facility Modification Requests Under Section 6409(a) of the Spectrum Act of 2012

)

WT Docket No. 19-250

RM-11849

DECLARATORY RULING AND NOTICE OF PROPOSED RULEMAKING

Adopted: June 9, 2020 Released: June 10, 2020

Comment Date: 20 days after publication in the Federal Register

Reply Date: 30 days after publication in the Federal Register

By the Commission: Chairman Pai and Commissioners O’Rielly and Carr issuing separate statements; Commissioners Rosenworcel and Starks dissenting and issuing separate statements.

TABLE OF CONTENTS

Heading Paragraph #

I. INTRODUCTION 1

II. BACKGROUND 6

III. DECLARATORY RULING 11

A. Commencement of Shot Clock 14

B. Height Increase for Towers Outside the Public Rights-of-Way 24

C. Equipment Cabinets 29

D. Concealment Elements 32

E. Conditions Associated with the Siting Approval 41

F. Environmental Assessments After Execution of Memorandum of Agreement 45

IV. NOTICE OF PROPOSED RULEMAKING 51

V. PROCEDURAL MATTERS 57

VI. ORDERING CLAUSES 63

Appendix A—Comments and Reply Comments

Appendix B—Initial Regulatory Flexibility Analysis

I. INTRODUCTION

1. Today, we continue our efforts to facilitate the deployment of 5G networks—and the economic opportunity that they enable—in every community. To reach all corners of our nation, 5G networks must use a range of spectrum bands, from low to high frequencies, and a variety of physical infrastructure, from small cells to macro towers. To meet these needs, the Commission’s spectrum policy has focused on making available a wide range of low-, mid-, and high-band spectrum. Review of the Commission’s Rules Governing the 896-901/935-940 MHz Band, WT Docket No

orners of our nation, 5G networks must use a range of spectrum bands, from low to high frequencies, and a variety of physical infrastructure, from small cells to macro towers. To meet these needs, the Commission’s spectrum policy has focused on making available a wide range of low-, mid-, and high-band spectrum. Review of the Commission’s Rules Governing the 896-901/935-940 MHz Band, WT Docket No. 17-200, Report and Order, Order of Proposed Modification, and Orders, FCC 20-67 (May 14, 2020); Transforming the 2.5 GHz Band, WT Docket No. 18-120, Report and Order, 34 FCC Rcd 5446 (2019); Auction of Priority Access Licenses for the 3550-3650 MHz Band, Comment Sought on Competitive Bidding Procedures for Auction 105, AU Docket No. 19-244, Public Notice, 34 FCC Rcd 9215 (OEA/AU 2019); Expanding Flexible Use of the 3.7 to 4.2 GHz Band, GN Docket No. 18-122, Report and Order and Order of Proposed Modification, 35 FCC Rcd 2343 (2020); Wireless Telecommunications Bureau Announces that Applications for Auction 103 Licenses are Accepted for Filing, Public Notice, DA 20-461, 2020 WL 2097298 (WTB Apr. 30, 2020).

Similarly, the Commission’s infrastructure policy has focused on updating our regulations to reflect new technology like small cells. Most notably, the Commission has modernized its approach to federal historic preservation and environmental review governing wireless infrastructure to accommodate small cell technology See, e.g., Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, WT Docket No. 17-79, Second Report and Order, 33 FCC Rcd 3102 (2018) (2018 NEPA/NHPA Order) (streamlining environmental and historic preservation review procedures and clarifying cases in which fees are required for Tribal review), aff’d in part, rev’d in part, United Keetoowah Band of Cherokee Indians, v. FCC, 933 F.3d 728 (D.C. Cir

nd Deployment by Removing Barriers to Infrastructure Investment, WT Docket No. 17-79, Second Report and Order, 33 FCC Rcd 3102 (2018) (2018 NEPA/NHPA Order) (streamlining environmental and historic preservation review procedures and clarifying cases in which fees are required for Tribal review), aff’d in part, rev’d in part, United Keetoowah Band of Cherokee Indians, v. FCC, 933 F.3d 728 (D.C. Cir. 2019) (affirming the FCC’s changes in the 2018 NEPA/NHPA Order to tribal involvement in Section 106 review and denying request to vacate the Order in its entirety while granting petitioners’ request to vacate the portion of the decision that exempted small cells from review under the National Environmental Policy Act and the National Historic Preservation Act).

and has addressed outlier conduct at the State and local government level that needlessly slowed down and increased the costs of deploying new small cells and modified wireless facilities. See, e.g., Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, WT Docket No. 17-79, WC Docket No. 17-84, Declaratory Ruling and Third Report & Order, 33 FCC Rcd 9088, 9096-100, paras. 23-28, 32 (2018) (2018 Small Cell Order) (clarifying state and local legal requirements that may have the effect of prohibiting service under 47 U.S.C. §§ 253, 332(c)(7)), pets. for review pending, Sprint Corp. v. FCC, et al. (9th Cir).

We have seen a significant acceleration of wireless builds in the wake of those decisions. At the same time, there remain additional barriers to wireless infrastructure deployment that merit our consideration.

2. These barriers affect not just small cell deployment. Indeed, we know that providers of 5G networks will not reach all Americans solely by deploying small cell technology

th Cir).

2. These barriers affect not just small cell deployment. Indeed, we know that providers of 5G networks will not reach all Americans solely by deploying small cell technology. We therefore also must focus on ensuring that our infrastructure regulations governing macro towers align with the critical need to upgrade existing sites for 5G networks, particularly in rural areas, where small cell deployment may be less concentrated. Certain residents and representatives of rural areas have expressed support in the record for our efforts to accelerate deployment of wireless infrastructure. See, e.g., Letter from Denis Pitman, Chairman, Donald W. Jones, Member, and John Ostlund, Member, Board of County Commissioners for Yellowstone County, MT, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 19-250 and RM-11849 (filed May 28, 2020); Letter from Travis W. Jones, Chief, Broadview Rural Fire District, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 19-250 and RM-11849 (filed June 1, 2020); Letter from John Prinkki to Marlene H. Dortch, Secretary, FCC, WT Docket No. 19-250 and RM-11849 (filed June 2, 2020); Letter from Paul Anderes, Commissioner, Union County, OR, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 19-250 and RM-11849 (filed May 27, 2020); Letter from Michelle Erickson-Jones to Marlene H. Dortch, Secretary, FCC, WT Docket No. 19-250 and RM-11849 (filed June 1, 2020); Letter from Clinton Loss, President, Montana Emergency Medical Services Association, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 19-250 and RM-11849 (filed June 4, 2020); Letter from Marian J. Orr, Mayor, City of Cheyenne, WY, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 19-250 and RM 11849 (filed Apr

H. Dortch, Secretary, FCC, WT Docket No. 19-250 and RM-11849 (filed June 1, 2020); Letter from Clinton Loss, President, Montana Emergency Medical Services Association, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 19-250 and RM-11849 (filed June 4, 2020); Letter from Marian J. Orr, Mayor, City of Cheyenne, WY, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 19-250 and RM 11849 (filed Apr. 23, 2020); Rocky Mountain Farmers Union (@RMFUnion), Twitter (May 19, 2020, 8:13 PM), https://twitter.com/RMFUnion/status/1262899253229256705; Billings, MT Chamber of Commerce (@ChamberBillings), Twitter (May 19, 2020, 7:16 PM), https://twitter.com/ChamberBillings/status/1262884844129812483.

As the record in this proceeding shows, ongoing uncertainty regarding the application of existing federal law to aspects of State and local government review of modifications to existing wireless equipment remains a deterrent to the rapid deployment of 5G wireless infrastructure. We are committed to working with State and local governments to facilitate the deployment of advanced wireless networks in all communities consistent with the decisions already made by Congress, which we expect will usher in a new era of American entrepreneurship, productivity, economic opportunity, and innovation for years to come.

3. Therefore, in this Declaratory Ruling and Notice of Proposed Rulemaking, we clarify the meaning of our rules implementing Congress’ decisions in section 6409(a) of the Spectrum Act of 2012, Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. No. 112-96, title VI (Spectrum Act of 2012), § 6409(a), 126 Stat. 156 (Feb. 22, 2012) (codified as 47 U.S.C. § 1455(a)).

um Act of 2012), § 6409(a), 126 Stat. 156 (Feb. 22, 2012) (codified as 47 U.S.C. § 1455(a)).

which recognized the efficiency of using existing infrastructure for the expansion of advanced wireless networks. Those rules set forth a streamlined process for State and local government review of applications to deploy wireless telecommunications equipment on existing infrastructure. See 47 U.S.C. § 1455(a); 47 CFR § 1.6100; Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, WT Docket No. 13-238 and 13-32, WC Docket No. 11-59, Report and Order, 29 FCC Rcd 12865, 12922-66, paras. 135-241 (2014) (2014 Infrastructure Order), aff’d, Montgomery Cty. v. FCC, 811 F.3d 121 (4th Cir. 2015).

Under this framework, a State or local government shall approve within 60 days any request for modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station. 47 U.S.C. § 1455(a)(1); see 47 CFR § 1.6100 (b)(7), (c); 2014 Infrastructure Order, 29 FCC Rcd at 12940-58, paras. 182-204, 205-21.

4. Our clarifications are necessary to ensure fidelity to the language of those rules and the decisions Congress made in section 6409(a) 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.” 47 U.S.C. § 1455(a)(1).

Specifically, our Declaratory Ruling clarifies our rules regarding when the 60-day shot clock for State or local government review of modifications of existing structures commences. 47 CFR § 1.6100(c)(2)-(4); 2014 Infrastructure Order, 29 FCC Rcd at 12955-58, paras. 211-221

station that does not substantially change the physical dimensions of such tower or base station.” 47 U.S.C. § 1455(a)(1).

We also clarify what constitutes a “substantial change” in the physical dimensions of wireless infrastructure under our rules, and the extent to which certain elements of a proposed modification to existing infrastructure affect the eligibility of that proposed modification for streamlined State or local government review under section 6409(a). 47 CFR § 1.6100(b)(7)(i), (iii), (v), (vi); 2014 Infrastructure Order, 29 FCC Rcd at 12944-47, 12949-51, paras. 188-94, 200, 204.

Finally, we further streamline our historic preservation and environmental review process to eliminate a redundant and unnecessary element by clarifying that when the FCC and applicants have entered into a memorandum of agreement to mitigate effects on historic properties a subsequent environmental assessment addressing such effects is not required. See 47 CFR §§ 1.1307(a), 1.1308, 1.1311; Nationwide Programmatic Agreement for Review of Effects on Historic Properties for Certain Undertakings Approved by the Federal Communications Commission (Wireless Facilities Nationwide Programmatic Agreement), 47 CFR pt. 1, Appx. C.

5. In the Notice of Proposed Rulemaking, we seek comment on whether changes to our rules regarding excavation outside the boundaries of an existing tower site, including the definition of the boundaries of a tower “site,” would advance the objectives of section 6409(a). 47 CFR § 1.6100(b)(7)(iv); 47 CFR § 1.6100(b)(6).

II. BACKGROUND

Programmatic Agreement), 47 CFR pt. 1, Appx. C.

II. BACKGROUND

6. Under Section 6409(a) of the Spectrum Act, Congress determined 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.” 47 U.S.C. § 1455(a).

Congress intended this provision of the Spectrum Act to advance wireless service by expediting the deployment of the network facilities needed to provide wireless services. See H.R. Rep. No. 112-399, at 136 (2012). A section-by-section analysis of the JOBS Act, a precursor to the Spectrum Act of 2012, was submitted in the Congressional Record during floor debate of the Middle Class Tax Relief and Job Creation Act of 2012. The analysis explains that the precursor section to section 6409(a) was intended to “streamline[] the process for siting of wireless facilities by preempting the ability of State and local authorities to delay collocation of, removal of, and replacement of wireless transmission equipment.” 157 Cong. Rec. 2055 (2012) (statement of Rep. Fred Upton).

7. In 2014, the Commission adopted the 2014 Infrastructure Order, which, among other things, codified rules to implement section 6409(a). 47 CFR § 1.6100; 2014 Infrastructure Order, 29 FCC Rcd at 12922-65, paras. 135-241.

Commission rules provide that a State or local government must approve an eligible facilities request within 60 days of the date on which an applicant submits the request. 47 CFR § 1.6100(c); 2014 Infrastructure Order, 29 FCC Rcd at 12952, 12955-57, paras. 206, 211, 212, 215

d rules to implement section 6409(a). 47 CFR § 1.6100; 2014 Infrastructure Order, 29 FCC Rcd at 12922-65, paras. 135-241.

The Commission defined the term “eligible facilities request” as “[a]ny request for modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station, involving: (i) Collocation of new transmission equipment; (ii) Removal of transmission equipment; or (iii) Replacement of transmission equipment.” 47 CFR § 1.6100(b)(3). The statutory definition of “eligible facilities request” is slightly different. See 47 U.S.C. § 1455(a). Our use of the term eligible facilities request in this order relies on the definition set forth in the rule. See also 2014 Infrastructure Order, 29 FCC Rcd at 12944-45, 12955, paras. 188, 211.

The Commission’s rules provide that changes are “substantial” if they: exceed defined limits on increases in the height or girth of the structure or the number of associated equipment cabinets, involve excavation or deployment on ground outside a structure’s current site, defeat the concealment elements of the preexisting structure, or violate conditions previously imposed by the local zoning authority. 47 CFR § 1.6100(b)(7)(i)-(vi).

The Commission also established procedures for when the 60-day shot clock for review may be tolled, as well as a “deemed granted” remedy in the event that states and localities fail to act on an eligible facilities request within the 60-day window. Id. § 1.6100(c)(2)-(4).

In recent years, the Commission has taken additional actions to streamline review by State and local governments of wireless infrastructure. See 2018 Small Cell Order, 33 FCC Rcd at 9096-100, paras

for review may be tolled, as well as a “deemed granted” remedy in the event that states and localities fail to act on an eligible facilities request within the 60-day window. Id. § 1.6100(c)(2)-(4).

In recent years, the Commission has taken additional actions to streamline review by State and local governments of wireless infrastructure. See 2018 Small Cell Order, 33 FCC Rcd at 9096-100, paras. 23-28, 32; Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment, WT Docket No. 17-79, WC Docket No. 17-84, Third Report & Order and Declaratory Ruling, 33 FCC Rcd 7705, 7775, 7777-79, paras. 140, 145-46 (2018) (2018 Moratorium Order) pets. for review pending, American Elec. Power v. FCC, et al. (9th Cir.).

8. In August and September of 2019, WIA and CTIA filed separate Petitions for Declaratory Ruling asking, among other things, for the Commission to make certain clarifications to streamline the section 6409(a) process, Petition of Wireless Infrastructure Association for Declaratory Ruling, WT Docket No. 19-250, at 2-4 (filed Aug. 27, 2019), https://ecfsapi.fcc.gov/file/109180312204232/19-250%20WIA%20Ex%20Parte%20(9-18-19).pdf (WIA Petition for Decl. Ruling); Petition of CTIA for Declaratory Ruling, WT Docket No. 19-250, WC Docket No. 17-84 at 2 (filed Sept. 6, 2019), https://ecfsapi.fcc.gov/file/1091954184161/190906%20CTIA%20Infrastructure%20PDR%20Final.pdf (CTIA Petition for Decl. Ruling). Although WIA and CTIA filed their Petitions for Declaratory Ruling in WT Docket No. 17-79, that proceeding does not address issues arising under section 6409(a) of the Spectrum Act. Rather, that proceeding focuses on wireless infrastructure deployment issues under sections 253 and 332(c)(7) of the Communications Act, the National Environmental Policy Act, and the National Historic Preservation Act. Thus, the Public Notice opening this proceeding directed parties to use new WT Docket No. 19-250 for filings addressing the section 6409(a) issues raised in WIA’s and CTIA’s petitions

er, that proceeding focuses on wireless infrastructure deployment issues under sections 253 and 332(c)(7) of the Communications Act, the National Environmental Policy Act, and the National Historic Preservation Act. Thus, the Public Notice opening this proceeding directed parties to use new WT Docket No. 19-250 for filings addressing the section 6409(a) issues raised in WIA’s and CTIA’s petitions. See Wireless Telecommunications Bureau and Wireline Competition Bureau Seek Comment on WIA Petition For Rulemaking, WIA Petition For Declaratory Ruling and CTIA Petition For Declaratory Ruling, WT Docket No. 19-250, Public Notice, 34 FCC Rcd 8099, 8099 & n.4 (WTB/WCB 2019) (WIA/CTIA Petitions Public Notice).

and WIA filed a Petition for Rulemaking seeking changes to section 1.6100 of the Commission’s rules. Petition of Wireless Infrastructure Association for Rulemaking, File No. RM-11849, https://ecfsapi.fcc.gov/file/108273047516225/WIA%20Petition%20for%20Rulemaking%20(8-27-19).pdf, (filed Aug. 27, 2019) (WIA Petition for Rulemaking). WIA’s Petition for Rulemaking asks the FCC to amend section 1.6100 of the rules to determine that a compound expansion (i.e., excavation outside the current boundaries of leased or owned properties surrounding a tower site) is a “substantial change” under section 6409(a) only if excavation occurs more than 30 feet from a tower site boundary. The Petition for Rulemaking also asks the FCC to adopt rules requiring that (1) any fees charged for processing eligible facilities requests represent no more than a reasonable approximation of actual and direct costs incurred; and (2) an applicant’s failure to pay disputed fees is not a valid basis for denial or refusal to process an eligible facilities request. WIA Petition for Rulemaking at 9-13.

’s failure to pay disputed fees is not a valid basis for denial or refusal to process an eligible facilities request. WIA Petition for Rulemaking at 9-13.

The petitioners and individual wireless service providers assert that localities are misinterpreting the requirements of section 6409(a) and our implementing rules. See, e.g., WIA Petition for Decl. Ruling at 2; CTIA Petition for Decl. Ruling, at 3-4, 7-9; AT&T Comments at 2, 5; Competitive Carriers Association (CCA) Comments at 2; Crown Castle Comments at 4-6; CTIA Comments at 2-3, 6; CTIA Reply at 5-6; Extenet Comments at 21; Free State Comments at 2; TMobile Comments at 3, 6-7; WIA Comments at 3.

They contend that these misinterpretations are delaying 5G deployment and other needed infrastructure upgrades, and they urge us to clarify aspects of the Commission’s rules implementing section 6409(a). WIA Petition for Decl. Ruling at 5-7; CTIA Petition for Decl. Ruling at 4-5. See, e.g., CTIA Petition for Decl. Ruling at i-ii (“While the Commission’s rules implementing Sections 6409 and 224 have played a vital role in promoting wireless infrastructure deployment, experience with these rules in the years since their adoption has identified areas of uncertainty and inconsistent application that slow down deployment and undermine Congressional and Commission intent.”).

9. Specifically, WIA’s Petition for Declaratory Ruling asks the Commission to clarify: (1) when the section 6409(a) shot clock begins to run; and (2) whether the shot clock and “deemed granted remedy” apply to all authorizations necessary to deploy wireless infrastructure. WIA Petition for Decl. Ruling at 5-8

ion that slow down deployment and undermine Congressional and Commission intent.”).

It also asks the Commission to clarify: (1) the definitions of “concealment elements,” “equipment cabinets,” and “current site;” (2) when a change to the size or height of an antenna is a “substantial change; (3) the interpretation of the separation clause in section 1.6100(b)(7)(i); (4) what are the “conditions associated with the siting approval” under section 1.6100(b)(7)(vi); and (5) that legal, non-conforming structures do not per se constitute substantial changes. Id. at 9-10, 13, 16-20.

Additionally, WIA asks the Commission to clarify that localities may not issue conditional approvals under section 6409(a), nor may they needlessly impose processes to delay section 6409(a) approval. Id. at 20, 21.

CTIA’s Petition requests clarification of the terms “concealment elements,” “equipment cabinets,” and “base station,” under section 1.6100(b)(7), and it asks the Commission to find that applicants may lawfully construct facilities or make modifications if a locality has not issued all permits within the 60-day section 6409(a) shot clock and an application is deemed granted. CTIA Petition for Decl. Ruling at 9-16. CTIA also asks the Commission to clarify provisions of section 224 of the Communications Act related to accessing light poles, accessing space on poles, and pole attachment agreements. CTIA Petition for Decl. Ruling at 20-28. The portion of CTIA’s Petition for Declaratory Ruling concerning pole attachments under section 224 of the Communications Act is being considered in WC Docket No. 17-84 and is not a subject of this Declaratory Ruling.

section 224 of the Communications Act related to accessing light poles, accessing space on poles, and pole attachment agreements. CTIA Petition for Decl. Ruling at 20-28. The portion of CTIA’s Petition for Declaratory Ruling concerning pole attachments under section 224 of the Communications Act is being considered in WC Docket No. 17-84 and is not a subject of this Declaratory Ruling.

10. Local governments allege that the current rules and processes are working well and that they are making efforts to comply with section 6409(a) and to process applications expeditiously. See, e.g., City of Huntington Beach Comments at 1; NATOA Comments at 7; NATOA Reply at 3; City of Newport News Comments at 2; New York City Comments at 2; National League of Cities (NLC) Comments at 7; NLC Reply at 6-7; San Francisco Reply at 2-3; Seattle Comments at 1.

They maintain that they have no interest in thwarting wireless network upgrades or delaying the deployment of appropriate facilities. They further claim that, to the extent their reviews are delayed at all, most of the delays are caused by applicants’ errors See, e.g., San Diego Comments at 4-5 (summarizing survey finding that more than 70% of eligible facilities requests processed by 8 jurisdictions since 2014 required at least two incomplete notices before the applicant provided all needed information, adding an average of 29 days to the process; about 20% required a third notice, adding an average of 31 days; and 5% required a fourth notice, adding an average of 40 days); id. at 10-11 (examples of applicant misconduct include a provider’s leaving small cell applications on the counter at town hall and later sending a letter asserting that the shot clock had commenced)

ed all needed information, adding an average of 29 days to the process; about 20% required a third notice, adding an average of 31 days; and 5% required a fourth notice, adding an average of 40 days); id. at 10-11 (examples of applicant misconduct include a provider’s leaving small cell applications on the counter at town hall and later sending a letter asserting that the shot clock had commenced). The City of San Diego filed comments and reply comments jointly with 33 other municipal and county governments, referring to themselves collectively as the “Western Communities Coalition.” For purposes of simplicity and easy identification, we refer to this group of commenters as “San Diego” throughout. See also NLC Comments at 27 (stating that Montgomery County, MD completes section 6409(a) review, on average, within 60 days, but about 24 of those days are spent waiting for applicants to correct errors, and more than half of eligible facilities requests require at least one request for submission of missing information).

or their contractors’ delays, NLC Comments at 4-5 (asserting that from January through October 2019, the City of Portland, Oregon received 82 small wireless facilities permit applications, including 72 subject to section 6409(a), and that 17 of the 50 applications that the city had finished reviewing were not picked up by a contractor for a least a month after the city approved them); San Diego Comments at 5 (reporting that, based on the 650 eligible facilities requests that the City of San Diego reviewed pursuant to section 6409(a), applicants’ contractors picked up building permits about 129 days after the city issued them, on average—approximately three times the length of time that the city took to process and approve them). See also Seattle Comments at 4-6 (asking the Commission to examine the problematic practices and processes employed by wireless companies and their contractors).

rather than by any improper local government review practices

icked up building permits about 129 days after the city issued them, on average—approximately three times the length of time that the city took to process and approve them). See also Seattle Comments at 4-6 (asking the Commission to examine the problematic practices and processes employed by wireless companies and their contractors).

rather than by any improper local government review practices. They contend that the industry parties’ arguments and proposals are premised on vague, unsubstantiated, and often false allegations that fail to identify specific localities or provide sufficiently concrete descriptions of their alleged violations. See, e.g., San Diego Comments at 1-3, 9; NLC Comments at 2-3; NLC Reply at 2-3 (industry parties fail to respond to documented information submitted by localities).

III. DECLARATORY RULING

11. In this Declaratory Ruling, we clarify several key elements that determine whether a modification request qualifies as an eligible facilities request that a State or local government must approve within 60 days, and we clarify when the 60-day shot clock for review of an eligible facilities request commences. These interpretations provide greater certainty to applicants for State and local government approval of wireless facility modifications, as well as to the reviewing government agencies, We expect that the industry will work cooperatively with localities who wish to further streamline or adjust their policies to comport with our clarifications to the Commission’s rules. See, e.g., Letter from Nancy Werner, General Counsel, NATOA et al., to Marlene H. Dortch, Secretary, FCC, WT Docket No. 19-250 and RM-11849, at 2 (filed May 22, 2020) (NATOA May 22, 2020 Ex Parte Letter) (asking the Commission to delay consideration of the item to later in the year and stating that the Declaratory Ruling would “dramatically impact the way that local governments across the nation manage their eligible facilities request applications”); Letter from Robert C. May, Michael D. Johnston, Dr

WT Docket No. 19-250 and RM-11849, at 2 (filed May 22, 2020) (NATOA May 22, 2020 Ex Parte Letter) (asking the Commission to delay consideration of the item to later in the year and stating that the Declaratory Ruling would “dramatically impact the way that local governments across the nation manage their eligible facilities request applications”); Letter from Robert C. May, Michael D. Johnston, Dr. Jonathan L. Kramer, Counsel for Beaverton, Oregon et al., Telecom Law Firm PC, and Kenneth Fellman, Gabrielle A. Daley, Counsel for Boulder, CO et al., Kissinger & Fellman, P.C., to Marlene H. Dortch, Secretary, FCC, WT Docket No. 19-250 and RM-11849, at 2 (filed June 2, 2020) (asking the Commission to delay consideration of the current item and explaining that localities would need to adapt local practices, policies, and regulations to implement to adjust to the Commission’s actions); Letter from Stephen Isler, Mayor, Town of Berwyn Heights, MD, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 19-250 and RM-11849, at 1 (filed June 2, 2020) (stating that a delay in adopting the Declaratory Ruling will “prevent the unnecessary diversion of scarce resources to adapt to the Commission’s new rule clarifications”).

and these interpretations should accelerate the deployment of advanced wireless networks. See Letter from John A. Howes, Jr., Government Affairs Counsel, WIA, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 19-250 and RM-11849, at 3 (filed June 1, 2020) (WIA June 2020 Ex Parte Letter) (noting importance of Commission action “because, now more than ever, Americans are demanding better coverage and using more bandwidth. Over the past few months, network usage has surged as most Americans have been confined to their homes during the COVID-19 coronavirus pandemic.”); Letter from Sarah K. Leggin, Director, Regulatory Affairs, CTIA, to Marlene H. Dortch, Secretary, FCC, WT Docket No

(noting importance of Commission action “because, now more than ever, Americans are demanding better coverage and using more bandwidth. Over the past few months, network usage has surged as most Americans have been confined to their homes during the COVID-19 coronavirus pandemic.”); Letter from Sarah K. Leggin, Director, Regulatory Affairs, CTIA, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 19-250 and RM-11849, at 2 (filed June 1, 2020) (CTIA June 2020 Ex Parte Letter) (explaining that the Commission’s clarifications “will have a meaningful impact on the speed of deployment and the ability of localities, states, and industry to work together in a cooperative manner”); Letter from Steven O. Vondran, Executive Vice President and President, U.S. Tower, American Tower, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 19-250 and RM-11849, at 1-2 (filed May 19, 2020) (noting that the Commission’s clarifications “will help speed the deployment of advanced wireless communication technologies throughout America at a time when American families are relying on wireless networks more than ever” during “the COVID-19 pandemic.”). In light of these significant benefits to wireless infrastructure deployment, we decline to delay these clarifications. See, e.g., NATOA May 22, 2020 Ex Parte Letter; Letter from Kit Kuhn, Mayor, City of Gig Harbor, WA, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 19-250 and RM-11849, at 1 (filed June 1, 2020). WIA’s and CTIA’s petitions seeking clarifications of the section 6409(a) rules have been pending for more than nine months. The petitions were filed in August and September of 2019; WTB sought comment on the petitions on September 13, 2019. WIA/CTIA Petitions Public Notice, 34 FCC Rcd 8099; Federal Communications Commission, Comment Sought on WIA Petitions for Declaratory Ruling and Rulemaking and CTIA Petition for Declaratory Ruling, Advance Notice of Proposed Rulemaking, 84 Fed. Reg. 50810 (Sept. 26, 2019)

e months. The petitions were filed in August and September of 2019; WTB sought comment on the petitions on September 13, 2019. WIA/CTIA Petitions Public Notice, 34 FCC Rcd 8099; Federal Communications Commission, Comment Sought on WIA Petitions for Declaratory Ruling and Rulemaking and CTIA Petition for Declaratory Ruling, Advance Notice of Proposed Rulemaking, 84 Fed. Reg. 50810 (Sept. 26, 2019). Over 70 localities, states, or organizations representing their interests have filed more than 650 pages of comments or letters. See WT Docket No. 19-250. The Declaratory Ruling addresses long-standing issues that have frustrated wireless deployments for years, and commenters in this proceeding have previously filed in this and other dockets about the issues addressed in this Declaratory Ruling. See, e.g., San Diego Comments at 41-44 (raising concerns that granting petitioners’ request could allow an unlimited number of equipment cabinets to be added to a structure); NLC Comments at 25-30 (arguing that no changes should be made to the 6409(a) shot clock rules and discussing petitioners request that a “good faith effort” should start the 60-day shot clock); NLC Comments at 18 (arguing that concealment elements should not be only those identified as such at the time of approval); San Diego Comments at 37-39 (arguing against “retroactive limitations on concealment” and in favor of “local authority to continue to regulate aesthetics of deployment”); NLC Comments at 16-18 (arguing against a “narrow” definition of “concealment”); San Diego Comments at 30-36 (same); San Diego Comments at 47-48 (arguing that petitioners’ requested changes would not solve the ambiguity regarding allowable height increases); NLC Comment at 2 (stating that the petitioners’ seek rule changes, not mere clarifications). See also Letter from Stephen Traylor, Executive Director, NATOA, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79, Attach

n Diego Comments at 30-36 (same); San Diego Comments at 47-48 (arguing that petitioners’ requested changes would not solve the ambiguity regarding allowable height increases); NLC Comment at 2 (stating that the petitioners’ seek rule changes, not mere clarifications). See also Letter from Stephen Traylor, Executive Director, NATOA, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79, Attach. at 13-15 (filed June 15, 2017) (attaching a 2014 filing discussing section 6409(a) that argued for giving localities authority to impose more conditions on wireless infrastructure and arguing against changes to the shot clock rules); Bellevue, Bothell, Burien, Ellensburg, Gig Harbor, Kirkland, Mountlake Terrace, Mukilteo, Normandy Park, Puyallup, Redmond and Walla Walla, WA Comments, WT Docket No. 17-79 (June 14, 2017) (describing ambiguity regarding concealment in the context of small cells and section 6409(a) and asking “that the Commission explicitly acknowledge that a small cell facility by very definition is a concealment element under 6409(a) regulations.”).

12. Specifically, we clarify that:

· The 60-day shot clock in section 1.6100(c)(2) begins to run when an applicant takes the first procedural step in a locality’s application process and submits written documentation showing that a proposed modification is an eligible facilities request;

· The phrase “with separation from the nearest existing antenna not to exceed twenty feet” in section 1.6100(b)(7)(i) allows an increase in the height of the tower of up to twenty (20) feet between antennas, as measured from the top of an existing antenna to the bottom of a proposed new antenna on the top of a tower;

· The term “equipment cabinets” in section 1.6100(b)(7)(iii) does not include relatively small electronic components, such as remote radio units, radio transceivers, amplifiers, or other devices mounted on the structure, and up to four such cabinets may be added to an existing facility per separate eligible facilities request;

· The term “concealment

roposed new antenna on the top of a tower;

· The term “concealment element” in section 1.6100(b)(7)(v) means an element that is part of a stealth-designed facility intended to make a structure look like something other than a wireless facility, and that was part of a prior approval;

· To “defeat” a concealment element under section 1.6100(b)(7)(v), a proposed modification must cause a reasonable person to view a structure’s intended stealth design as no longer effective; and

· The phrase “conditions associated with the siting approval” may include aesthetic conditions to minimize the visual impact of a wireless facility as long as the condition does not prevent modifications explicitly allowed under section 1.6100(b)(7)(i)-(iv) (antenna height, antenna width, equipment cabinets, and excavations or deployments outside the current site) and so long as there is express evidence that at the time of approval the locality required the feature and conditioned approval upon its continuing existence.

13. Certain parties contend that we lack legal authority to adopt the rulings requested in the petitions, which they contend do not just clarify or interpret the rules established in 2014 but also change them, requiring that we issue a Notice of Proposed Rulemaking followed by a Report and Order. See, e.g., NLC Comments at ii, 2 (stating that the interpretations requested by WIA and CTIA “are not ‘clarifications’ – these are, in fact, substantial changes to the Section 6409(a) regime, and inconsistent with . .

contend do not just clarify or interpret the rules established in 2014 but also change them, requiring that we issue a Notice of Proposed Rulemaking followed by a Report and Order. See, e.g., NLC Comments at ii, 2 (stating that the interpretations requested by WIA and CTIA “are not ‘clarifications’ – these are, in fact, substantial changes to the Section 6409(a) regime, and inconsistent with . . . the Commission’s prior rulings” – and consequently, the Commission “cannot proceed purely on the basis of these petitions [by Declaratory Ruling], and should instead advance a clear proposal of its own, consistent with the APA”) (citing Perez v. Mortg. Bankers Ass’n, 575 U.S. 92 (2015)); San Diego Comments at 1, 3 (same).

As an initial matter, we note that we are not adopting all of the rulings requested in WIA’s and CTIA’s petitions for declaratory ruling because we find incremental action to be an appropriate step at this juncture, particularly given, as mentioned above, that the Commission has continued to take steps to ease barriers to deployment of wireless infrastructure since adopting rules to implement section 6409(a). For example, we do not address WIA’s and CTIA’s requests for clarification that the shot clock and deemed granted rules apply to all permits relating to a proposed modification, including authorizations relating to compliance with health and safety rules. WIA Petition for Decl. Ruling at 2; CTIA Petition for Decl. Ruling at 3-4, 7-9. Nor do we address CTIA’s request for clarification of the permissible increases in the height of base stations. CTIA Petition for Decl. Ruling at 15-16. We do, however, clarify some of the limitations raised by WIA that apply to “conditions of approval” under section 1.6100(b)(7)(vi). WIA Petition for Decl. Ruling at 14-16, 19-24. Additionally, as noted herein, we offer other clarifications and seek comment on rule changes

st for clarification of the permissible increases in the height of base stations. CTIA Petition for Decl. Ruling at 15-16. We do, however, clarify some of the limitations raised by WIA that apply to “conditions of approval” under section 1.6100(b)(7)(vi). WIA Petition for Decl. Ruling at 14-16, 19-24. Additionally, as noted herein, we offer other clarifications and seek comment on rule changes.

Our determinations in this Declaratory Ruling are intended solely to interpret and clarify the meaning and scope of the existing rules set forth in the 2014 Infrastructure Order, in order to remove uncertainty and in light of the differing positions of the parties on these questions. In a few instances, we also provide further guidance on the interpretation of the underlying statute with regard to issues that the rules and the 2014 Infrastructure Order do not directly address.

In addition, we find it appropriate to initiate a Notice of Proposed Rulemaking regarding tower site boundaries and excavation or deployment outside the boundaries of an existing tower site, in order to consider whether modifications of our rules are needed to resolve current disputes. We intend, with these steps, to continue to advance the same goals that led the Commission to adopt regulations implementing section 6409(a) in the first instance—to avoid ambiguities leading to disputes that could undermine the goals of the Spectrum Act, i.e., to advance wireless broadband service. See 2014 Infrastructure Order, 29 FCC Rcd at 12922-26, paras. 135-44.

A. Commencement of Shot Clock

14. Section 1.6100(c)(2) provides that the 60-day review period for eligible facilities requests begins “on the date on which an applicant submits a request seeking approval.” 47 CFR § 1.6100(c)(2); see also id. § 1.6100(c)(3) (“The 60-day [shot clock] period begins to run when the application is filed. . . .”); 2014 Infrastructure Order, 29 FCC Rcd at 12957, para. 216 (“[I]f an application covered by Section 6409(a) has not been approved by a State or local government within 60 days from the date of filing, accounting for any tolling, . . . the reviewing authority will have violated Section 6409(a)’s mandate to approve and not deny the request, and the request will be deemed granted”) (emphasis added).

If the local jurisdiction “fails to approve or deny a request seeking approval under this section within the timeframe for review (accounting for any tolling), the request shall be deemed granted.” 47 CFR § 1.6100(c)(4); see also 2014 Infrastructure Order, 29 FCC Rcd at 12957, para. 216 (noting that the 60-day “timeframe sets an absolute limit that—in the event of a failure to act— results in a deemed grant.”).

The 2014 Infrastructure Order discusses the procedures that local governments need to implement in order to carry out their obligations to approve eligible facilities requests within 60 days; 2014 Infrastructure Order, 29 FCC Rcd at 12955-58, paras. 212-13, 215-21.

it does not, however, define the date on which an applicant is deemed to have submitted an eligible facilities request for purposes of triggering the 60-day shot clock.

ligible facilities request for purposes of triggering the 60-day shot clock.

15. There is evidence in the record that some local jurisdictions effectively postpone the date on which they consider eligible facilities requests to be duly filed (thereby delaying the commencement of the shot clock) by treating applications as incomplete unless applicants have complied with time-consuming requirements. Such requirements include meeting with city or county staff, consulting with neighborhood councils, obtaining various certifications, or making presentations at public hearings. See, e.g., Crown Castle Comments at 21 & n.51; AT&T Comments at 13, n.35 (citing Douglas Cty. v. Crown Castle USA, Inc., 411 F. Supp. 3d 1176, 1182 (D. Colo. 2019) (noting county’s characterization of carrier’s filing as a “‘Presubmittal Review Request,’ not a formal EFR application”), amended and superseded on other grounds, No. 18-cv-03171-DDD-NRN, 2020 WL 109208 (D. Colo. Jan. 9, 2020)).

While some stakeholders may have assumed that, after the 2014 Infrastructure Order, local governments would develop procedures designed to review and approve covered requests within a 60-day shot clock period, 2014 Infrastructure Order, 29 FCC Rcd at 12956, para. 214.

many have not done so and instead continue to require applicants to apply for forms of authorizations that entail more “lengthy and onerous processes” of review. See, e.g., WIA Petition for Decl. Ruling at 8-9; T-Mobile Comments at 17 & n.64 (citing T-Mobile Reply Comments, WT Docket No. 13-238 (filed Mar. 5, 2014), Attach. A (Declaration of John L. Zembrusky) (identifying municipalities that lack section 6409(a) procedures and that insist on full-scale zoning review)).

cket No. 13-238 (filed Mar. 5, 2014), Attach. A (Declaration of John L. Zembrusky) (identifying municipalities that lack section 6409(a) procedures and that insist on full-scale zoning review)).

In such jurisdictions, applicants may need to obtain clearance from numerous, separate municipal departments, which could make it difficult to ascertain whether or when the shot clock has started to run. See, e.g., T-Mobile Reply at 4-5 (describing municipal ordinances or informal processes in Richmond, CA, Torrance, CA, and Chapel Hill, NC, that require applicants to obtain building permits either before or after the eligible facilities request shot clock runs); Crown Castle Comments at 5-6 (describing the processes of a township in New York, a county in California, and town in Massachusetts that each require review by multiple municipal departments before a building permit will be approved); CTIA Petition for Decl. Ruling at 18 & n.41 (discussing several localities that require “sequential” approvals, in which a locality will issue a conditional use permit or other document that approves the eligible facilities request, and then also require an applicant to obtain a building permit or other authorization, which the locality claims is not subject to the section 6409(a) shot clock).

16. To address uncertainty regarding the commencement of the shot clock, we clarify that, for purposes of our shot clock and deemed granted rules, an applicant has effectively submitted a request for approval that triggers the running of the shot clock when it satisfies both of the following criteria: (1) the applicant takes the first procedural step that the local jurisdiction requires as part of its applicable regulatory review process under section 6409(a), and, to the extent it has not done so as part of the first required procedural step, (2) the applicant submits written documentation showing that a proposed modification is an eligible facilities request

es both of the following criteria: (1) the applicant takes the first procedural step that the local jurisdiction requires as part of its applicable regulatory review process under section 6409(a), and, to the extent it has not done so as part of the first required procedural step, (2) the applicant submits written documentation showing that a proposed modification is an eligible facilities request. We provide this limited guidance in order to resolve uncertainty about what the Commission intended by its reference to when an applicant “submits a request seeking approval under this section.” Although as noted above interested parties have received notice and extended opportunity to comment on these proposals, this guidance does not constitute a legislative rule, and we disagree with commenters that a further rulemaking would be required. See, e.g., NATOA Reply at 5 (arguing that a “good faith” standard would be “a change to—not a clarification of—the current rule”); Letter from Nancy Werner, General Counsel, NATOA, et. al. to Marlene H. Dortch, Secretary, FCC, WT Docket No. 19-250 et al., at 2 (filed Jun. 2, 2020) (NATOA June 2, 2020 Ex Parte Letter) (asserting that that clarification of what certain terms means should be preceded with notice and comment and codified in the Commission’s rules); San Diego Comments at 6-8. The localities’ comments are either directed at relief not granted in this Declaratory Ruling and are therefore outside its scope, or critical of interpretations that are exempt from the Administrative Procedures Act’s notice-and-comment requirements as “a declaratory order to terminate a controversy or remove uncertainty.” See 5 U.S.C. § 554(e). See also, e.g., American Mining Congress v. Mine Safety and Health Org., 995 F.2d 1106, 1112 (D.C. Cir

f not granted in this Declaratory Ruling and are therefore outside its scope, or critical of interpretations that are exempt from the Administrative Procedures Act’s notice-and-comment requirements as “a declaratory order to terminate a controversy or remove uncertainty.” See 5 U.S.C. § 554(e). See also, e.g., American Mining Congress v. Mine Safety and Health Org., 995 F.2d 1106, 1112 (D.C. Cir. 1993) (upholding agency interpretive rules finding that certain X-ray readings qualify as “diagnoses” of lung disease within the meaning of agency’s regulations and observing that “[a] rule does not, in this inquiry, become an amendment [to an existing legislative rule] merely because it supplies crisper and more detailed lines than the authority being interpreted”).

17. By requiring that an applicant take the first procedural step required by the locality, our goal is to give localities “considerable flexibility” to structure their procedures for review of eligible facilities requests, 2014 Infrastructure Order, 29 FCC Rcd at 12956, para. 214 & n.595.

but prevent localities from “impos[ing] lengthy and onerous processes not justified by the limited scope of review contemplated” by section 6409(a). Id. at 12955, para. 212.

In taking the first procedural step that the local jurisdiction requires as part of its applicable regulatory review process, applicants demonstrate that they are complying with a local government’s procedures. The second criterion—requiring applicants to submit written documentation showing that the proposed modification is an eligible facilities request—is necessary because localities must have the opportunity to review this documentation to determine whether the proposed modification is an eligible facilities request that must be approved within 60 days. Id. at 12956-57, paras. 215-16 (60 days is sufficient for eligible facilities request review)

ubmit written documentation showing that the proposed modification is an eligible facilities request—is necessary because localities must have the opportunity to review this documentation to determine whether the proposed modification is an eligible facilities request that must be approved within 60 days. Id. at 12956-57, paras. 215-16 (60 days is sufficient for eligible facilities request review).

We anticipate that the documentation sufficient to start the shot clock under our criteria might include elements like a description of the proposed modification and an explanation of how the proposed modification is an eligible facilities request. Commenters have provided examples of the type of documentation that they submit with their applications, including a checklist showing that the proposed modifications do not meet any of the criteria for a substantial change in the physical dimensions of the structure. See Letter from Thomas S. Anderson, Senior Attorney, Crown Castle, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 19-250 and RM-11849, at 2-3, Attach., Appx B at 9 (filed June 2, 2020) (Crown Castle June 2020 Ex Parte Letter); Letter from John A. Howes, Jr., Government Affairs Counsel, WIA, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 19-250 and RM-11849, at 3 (filed June 1, 2020) (WIA June 2020 Ex Parte Letter).

We find that these criteria strike a reasonable balance between local government flexibility and the streamlined review envisioned by section 6409(a). Cf. WIA Petition for Decl. Ruling at 8-9 (seeking ruling that “the Section 6409(a) shot clock begins to run once an applicant” makes “a good faith attempt to seek the necessary government approvals” by “submitting an EFR under any reasonable process,” i.e., “upon initial written submission in the case where a state or local government requires any type of pre-application submission or meetings.”)

Cf. WIA Petition for Decl. Ruling at 8-9 (seeking ruling that “the Section 6409(a) shot clock begins to run once an applicant” makes “a good faith attempt to seek the necessary government approvals” by “submitting an EFR under any reasonable process,” i.e., “upon initial written submission in the case where a state or local government requires any type of pre-application submission or meetings.”). Similarly, a number of providers request a ruling that the shot clock is not tolled by mandatory pre-application meetings or public hearings. See, e.g., CTIA Comments at 12-13; Crown Castle Comments at 21-22; T-Mobile Comments at 4, 17; WISPA Comments at 6. Numerous providers support these proposals. See, e.g., CTIA Comments at 13; AT&T Comments at 12-14; Crown Castle Comments at 22-23; Nokia Comments at 5-6; T-Mobile Comments at 16; Verizon Comments at 8-9; WISPA Comments at 6. By specifying concrete steps that are more specific and verifiable than the “good faith” standard that WIA proposed, we believe we will facilitate compliance by both localities and applicants. See, e.g., NATOA Comments at 6 (criticizing WIA’s proposed “good faith” standard); San Diego Comments at 6-8 (same).

18. In addition, we find that further clarifications are needed to achieve our goal of balancing local government flexibility with the streamlined review envisioned by section 6409(a). First, we clarify that a local government may not delay the triggering of the shot clock by establishing a “first step” that is outside of the applicant’s control or is not objectively verifiable. For example, if the first step required by a local government is that applicants meet with municipal staff before making any filing, the applicant should be able to satisfy that first step by making a written request to schedule the meeting—a step within the applicant’s control

e shot clock by establishing a “first step” that is outside of the applicant’s control or is not objectively verifiable. For example, if the first step required by a local government is that applicants meet with municipal staff before making any filing, the applicant should be able to satisfy that first step by making a written request to schedule the meeting—a step within the applicant’s control. In this example, the 60-day shot clock would start once the applicant has made a written request for the meeting and the applicant also has satisfied the second of our criteria (documentation). While we do not wish to discourage meetings between applicants and the local governments, as we recognize that such consultations may help avoid errors that localities have identified as leading to delays, See, e.g., NLC Comments at 25-26; San Diego Comments at 29-30; Seattle Comments at 2 (asserting that applicants’ errors account for far more delays in the review process for eligible facilities requests than improper review processes and arguing that pre-application meetings help applicants avoid errors and thus expedite review).

such meetings themselves should not be allowed to cause delays or prevent these requests from being timely approved. As an additional example, a local government could not establish as its first step a requirement that an applicant demonstrate that it has addressed all concerns raised by the public, as such a step would not be objectively verifiable.

19. Second, we clarify that a local government may not delay the triggering of the shot clock by defining the “first step” as a combination or sequencing of steps, rather than a single step. For example, if a local government defines the first step of its process as separate consultations with a citizens’ association, a historic preservation review board, and the local government staff, an applicant will trigger the shot clock by taking any one of those actions, along with satisfying the second of our criteria (documentation)

ination or sequencing of steps, rather than a single step. For example, if a local government defines the first step of its process as separate consultations with a citizens’ association, a historic preservation review board, and the local government staff, an applicant will trigger the shot clock by taking any one of those actions, along with satisfying the second of our criteria (documentation). 47 CFR § 1.6100(c)(1).

Once the shot clock has begun, it would not be tolled if the local government were to deny, delay review of, or require refiling of the application on the grounds that the local government’s separate consultation requirements were not completed. See 2014 Infrastructure Order, 29 FCC Rcd at 12957, para. 217 (“[A]n initial determination of incompleteness tolls the running of the [shot clock] period only if the State or local government provides notice to the applicant in writing within 30 days of the application’s submission [and]. . . clearly and specifically delineate[s] the missing information in writing. . . . Further, consistent with the documentation restriction established above, the State or municipality may only specify as missing [such]information and supporting documents that are reasonably related to determining whether the request meets the requirements of Section 6409(a).”) (emphasis added). See also 47 CFR § 1.6100(c)(1) (setting forth the documentation required to be submitted by the eligible facilities request applicant); 47 CFR § 1.6100(c)(3) (setting forth criteria for tolling of the shot clock).

While we expect applicants to act in good faith to fulfill reasonable steps set forth by a local government that can be completed within the 60 day period, See, e.g., NATOA Ex Parte Letter at 3 (raising concerns that an applicant could delay a meeting set by the locality to thwart the locality’s process); see also Letter from Colin Byrd, Mayor, City of Greenbelt, to Marlene H. Dortch, Secretary, FCC, WT Docket No

applicants to act in good faith to fulfill reasonable steps set forth by a local government that can be completed within the 60 day period, See, e.g., NATOA Ex Parte Letter at 3 (raising concerns that an applicant could delay a meeting set by the locality to thwart the locality’s process); see also Letter from Colin Byrd, Mayor, City of Greenbelt, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 19-250 and RM-11849, at 2 (filed June 1, 2020) (Greenbelt Ex Parte Letter) (same).

the local government would bear responsibility for ensuring that any steps in its process, as well as the substantive review of the proposed facility modification, are all completed within 60 days. If not, the eligible facilities request would be deemed granted under our rules.

20. Third, we clarify that a local government may not delay the start of the shot clock by declining to accept an applicant’s submission of documentation intended to satisfy the second of our criteria for starting the shot clock. In addition, a local government may not delay the start of the shot clock by requiring an applicant to submit documentation that is not reasonably related to determining whether the proposed modification is an eligible facilities request. See 47 CFR § 1.6100(c)(1). This rule provides that “[w]hen an applicant asserts in writing that a request for modification is covered by this section, a State or local government may require the applicant to provide documentation or information only to the extent reasonably related to determining whether the request meets the requirements of this section. A State or local government may not require an applicant to submit any other documentation, including but not limited to documentation intended to illustrate the need for such wireless facilities or to justify the business decision to modify such wireless facilities.” See also 2014 Infrastructure Order, 29 FCC Rcd at 12956, para. 214 & n.595 (clarifying documentation requirements)

f this section. A State or local government may not require an applicant to submit any other documentation, including but not limited to documentation intended to illustrate the need for such wireless facilities or to justify the business decision to modify such wireless facilities.” See also 2014 Infrastructure Order, 29 FCC Rcd at 12956, para. 214 & n.595 (clarifying documentation requirements).

We clarify how our documentation rules apply in the context of the shot clock to provide certainty that unnecessary documentation requests do not effectively delay the shot clock as part of the local government’s “first step,” even if providing that documentation would be within the applicant’s control and could be objectively verified. For example, if a locality requires as the first step in its section 6409(a) process that an applicant meet with a local zoning board, that applicant would not need to submit local zoning documentation as well in order to trigger the shot clock.

21. Fourth, we note that a local government may use conditional use permits, variances, or other similar types of authorizations under the local government’s standard zoning or siting rules, in connection with the consideration of an eligible facilities request. We clarify, however, that requirements to obtain such authorizations may not be used by the local government to delay the start of or to toll the shot clock under the section 6409(a) process. The shot clock would begin once the applicant takes the first step in whatever process the local government uses in connection with reviewing applications subject to section 6409(a) and satisfies the second of our criteria (documentation). We reject localities’ suggestions that the shot clock should not commence until an applicant submits documentation required for all necessary permits, as such an approach is inconsistent with federal law

nt takes the first step in whatever process the local government uses in connection with reviewing applications subject to section 6409(a) and satisfies the second of our criteria (documentation). We reject localities’ suggestions that the shot clock should not commence until an applicant submits documentation required for all necessary permits, as such an approach is inconsistent with federal law. See 47 CFR § 1.6100(c)(1)-(2); see also Letter from Gerard Lederer, Joseph Van Eaton, Gail Karish, Andrew McCardle, Counsel for the City of Wilmington, DE et al., Best & Krieger LLP, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 19-250 and RM-11849, at 21-22 (filed Jun. 2, 2020) (Wilmington Ex Parte Letter) (suggesting that applicants should be required to submit documentation for all necessary permits before the shot clock starts). To the extent localities point to the 2018 Small Cell Order as a reason that localities should be able to require documentation for all permits before the shot clock commences, we note that the applicable statutes provide different regimes for eligible facilities requests under section 6409 as compared to siting requests for small cells under section 332. See Wilmington Ex Parte Letter at 21-22 (arguing that the 2018 Small Cell Order “suggests that on submission of an application, shot clocks begin running on all permits required to deploy; it follows that all materials relevant to an application must be submitted with the application”).

ubmitted with the application”).

Subsequently, if the locality rejects the applicant’s request to modify wireless facilities as incomplete based on requirements relating to such permits, variances, or similar authorizations, the shot clock would not be tolled and the application would be deemed granted after 60 days if the application constitutes an eligible facilities request under our rules. Localities may only toll the shot clock “by mutual agreement” or if the locality “determines that the application is incomplete.” See 47 CFR § 1.6100(c)(3) (implementing section 6409(a) and setting forth the process for a locality to toll the timeframe for incompleteness); see also Wilmington Ex Parte Letter at 22 (filed Jun. 2, 2020) (arguing that the Commission should clarify the continued applicability of the “notice of incompleteness procedure” in section 1.6100(c)(3)(i)).

22. Fifth, we note that some jurisdictions have not established specific procedures for the review and approval of eligible facilities requests under section 6409(a). In those cases, we clarify that, for purposes of triggering the shot clock under section 6409(a), the applicant can consider the first procedural step to be submission of the type of filing that is typically required to initiate a standard zoning or siting review of a proposed deployment that is not subject to section 6409(a). Comparable modification requests might include applications to install, modify, repair, or replace wireless transmission equipment on a structure that is outside the scope of section 6409(a), or to mount cable television, wireline telephone, or electric distribution cables or equipment on outdoor towers or poles. Where the first step in the process is submission of the type of filing that is typically required for comparable modification requests, we note that applicants are not required to file any documentation that is inconsistent with the Commission’s rules for eligible facilities requests under section 6409(a). See 47 CFR § 1.6100(c)(1)

ic distribution cables or equipment on outdoor towers or poles. Where the first step in the process is submission of the type of filing that is typically required for comparable modification requests, we note that applicants are not required to file any documentation that is inconsistent with the Commission’s rules for eligible facilities requests under section 6409(a). See 47 CFR § 1.6100(c)(1).

23. We find that these clarifications serve to remove uncertainty about the scope and meaning of various provisions of section 1.6100 consistent with the text, history, and purpose of the 2014 Infrastructure Order. We note that sections 253 and 332(c)(7) generally prohibit local governments from making regulatory decisions that “prohibit or have the effect of prohibiting” the provision of personal wireless service or other forms of telecommunications service by any provider. See 47 U.S.C. §§ 253(a) and 332(c)(7)(B)(i)(I). Accordingly, localities’ regulatory decisions affecting eligible facilities requests are subject to sections 253 and 332(c)(7) as well as section 6409(a). Unless one of the narrow statutory safe harbors applies, localities may not use procedural mechanisms to deny covered requests and may not deny individual eligible facilities requests in a manner that “materially inhibits the provision of such [telecommunications] services,” including by materially inhibiting providers’ ability to “densify[] a wireless network, introduce[e] new services or otherwise improv[e] service capabilities.” 2018 Small Cell Order, 33 FCC Rcd at 9104-05, para. 37. Nor may localities regulate in a manner that creates de facto moratoria in the context of eligible facilities requests, such as “frequent and lengthy delays in. . . issuing permits and processing applications” or imposing “onerous conditions.” 2018 Moratorium Order, 33 FCC Rcd at 7779-80, paras. 149-150

ise improv[e] service capabilities.” 2018 Small Cell Order, 33 FCC Rcd at 9104-05, para. 37. Nor may localities regulate in a manner that creates de facto moratoria in the context of eligible facilities requests, such as “frequent and lengthy delays in. . . issuing permits and processing applications” or imposing “onerous conditions.” 2018 Moratorium Order, 33 FCC Rcd at 7779-80, paras. 149-150. While some delay in deployment does not constitute a de facto moratorium, “[s]ituations cross the line into de facto moratoria where the delay continues for an unreasonably long or indefinite amount of time such that providers are discouraged from filing applications, or the action or inaction has the effect of preventing carriers from deploying certain types of facilities or technologies.” Id. at 7781, para. 150.

We also note that the commencement of the shot clock does not excuse the applicant from continuing to follow the locality’s procedural and substantive requirements (to the extent those requirements are consistent with the Commission’s rules), including obligations “to comply with generally applicable building, structural, electrical, and safety codes or with other laws codifying objective standards reasonably related to health and safety.” 2014 Infrastructure Order, 29 FCC Rcd at 12951, para. 202.

B. Height Increase for Towers Outside the Public Rights-of-Way

24. Adding new collocated equipment near or at the top of an existing tower can be an efficient means of expanding the capacity or coverage of a wireless network without the disturbances associated with building an entirely new structure. Adding this equipment to an existing tower would change the tower’s physical dimensions, but if such a change is not “substantial,” then a request to implement it would qualify as an eligible facilities request, and a locality would be required to approve it

ans of expanding the capacity or coverage of a wireless network without the disturbances associated with building an entirely new structure. Adding this equipment to an existing tower would change the tower’s physical dimensions, but if such a change is not “substantial,” then a request to implement it would qualify as an eligible facilities request, and a locality would be required to approve it. Section 1.6100(b)(7)(i) provides that a modification on a tower outside of the public rights-of-way would cause a substantial change if it “increases the height of the tower by more than 10% or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater.” 47 CFR § 1.6100(b)(7)(i) (emphasis added). Section 1.6100(b)(7)(i) establishes different standards governing whether a “substantial change” would result from an increase in the height of a tower located outside of the public rights-of-way versus an increase in the height of a base station (i.e., a structure other than a tower that supports collocated transmission equipment) or a tower located within the rights-of-way. Our focus here is on the definition of height increases for towers outside of the rights-of-way.

25. Commenters assert that they have two different interpretations of the meaning of this language in section 1.6100(b)(7)(i). Industry commenters read section 1.6100(b)(7)(i) as allowing a new antenna to be added without being a substantial change if there is no more than twenty feet in “separation” between the existing and new antennas, and that the size/height of the new antenna itself is irrelevant to the concept of “separation.” See CTIA Comments at 10-11; Crown Castle Comments at 15-16; CTIA and Crown Castle urge the Commission to clarify that, in the case of a tower, section 1.6100(b)(7)(i) allows a new antenna to be added without constituting a substantial change if there is up to 20 feet in “separation” between the existing and new antennas

eight of the new antenna itself is irrelevant to the concept of “separation.” See CTIA Comments at 10-11; Crown Castle Comments at 15-16; CTIA and Crown Castle urge the Commission to clarify that, in the case of a tower, section 1.6100(b)(7)(i) allows a new antenna to be added without constituting a substantial change if there is up to 20 feet in “separation” between the existing and new antennas. They assert that the size/height of the new antenna itself is irrelevant to the concept of “separation.” Both commenters argue that this interpretation is consistent with the Collocation NPA and is needed to counter locality attempts to include the dimensions of the new antenna itself into the 20 feet limit.

Localities appear to be of the view, however, that such an interpretation strains what the statute and regulations would permit—creating different standards for antenna height depending on where it is located and leading to indefinite increases in antenna height under a streamlined process not designed for that purpose. See San Diego Comments at 47-48; see also San Diego Reply at 80-82 (arguing that the requested clarification would eliminate any maximum height limit for towers).

Adding an antenna array to a tower out of the public right-of-way that increases the height of the tower would not be considered a substantial change, by itself, if there is no more than twenty feet of separation between the nearest existing antenna. The phrase “separation from the nearest existing antenna” means the distance from the top of the highest existing antenna on the tower to the bottom of the proposed new antenna to be deployed above it. Thus, when determining whether an application satisfies the criteria for an eligible facilities request, localities should not measure this separation from the top of the existing antenna to the top of the new antenna, because the height of the new antenna itself should not be included when calculating the allowable height increase

o the bottom of the proposed new antenna to be deployed above it. Thus, when determining whether an application satisfies the criteria for an eligible facilities request, localities should not measure this separation from the top of the existing antenna to the top of the new antenna, because the height of the new antenna itself should not be included when calculating the allowable height increase. Rather, under our interpretation, the word “separation” refers to the distance from the top of the existing antenna to the bottom of the proposed antenna. Interpreting “separation” otherwise to include the height of the new antenna could limit the number of proposed height increases that would qualify for section 6409(a) treatment, given typical antenna sizes and separation distances between antennas, which would undermine the statute’s objective to facilitate streamlined review of modifications of existing wireless structures. Contra Letter from Jud Ashman, Mayor, City of Gaithersburg, MD, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 19-250 and RM-11849, at 2 (stating that Gaithersburg has generally interpreted the 10% or 20 feet height increase to include the new antenna).

26. Specifically, and in response to commenters’ arguments regarding the language in section 1.6100(b)(7)(i), we find that our resolution today is consistent with the long-established interpretation of the comparable standard set forth in the 2001 Collocation Agreement for determining the maximum size of a proposed collocation that is categorically excluded from historic preservation review. See National Programmatic Agreement for the Collocation of Wireless Antennas, 47 CFR pt. 1, Appx

n 1.6100(b)(7)(i), we find that our resolution today is consistent with the long-established interpretation of the comparable standard set forth in the 2001 Collocation Agreement for determining the maximum size of a proposed collocation that is categorically excluded from historic preservation review. See National Programmatic Agreement for the Collocation of Wireless Antennas, 47 CFR pt. 1, Appx. B (Collocation Agreement), § I.E (a collocation on an existing tower causes a “substantial increase in the size of the tower” if it would increase the tower’s existing height by an amount more than “10%, or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater, except that the mounting of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to avoid interference with existing antennas.”).

Commission staff explained, in a fact sheet released in 2002, that under this provision of the Collocation Agreement, if a “150-foot tower… already [has] an antenna at the top of the tower, the tower height could increase by up to 20 feet [i.e., the “separation” distance] plus the height of a new antenna to be located at the top of the tower” without constituting a substantial increase in size. Wireless Telecommunications Bureau and Mass Media Bureau Announce the Release of a Fact Sheet Regarding the March 16, 2001 Antenna Collocation Programmatic Agreement, Public Notice, 17 FCC Rcd 508 (2002).

That standard was the source of the standard for the allowable height increases for towers outside the rights-of-way that the Commission adopted in the 2014 Infrastructure Order. 2014 Infrastructure Order, 29 FCC Rcd at 12946, para. 192.

27. Our interpretation also aligns with the clarification sought by WIA and other industry parties. WIA Petition for Decl. Ruling at 17-18; CTIA Comments at 10-11; Crown Castle Comments at 15-16

standard for the allowable height increases for towers outside the rights-of-way that the Commission adopted in the 2014 Infrastructure Order. 2014 Infrastructure Order, 29 FCC Rcd at 12946, para. 192.

27. Our interpretation also aligns with the clarification sought by WIA and other industry parties. WIA Petition for Decl. Ruling at 17-18; CTIA Comments at 10-11; Crown Castle Comments at 15-16.

We reject the argument that this interpretation creates irrational inconsistences among height increase standards depending on the type of structure and whether a tower is inside or outside the rights-of-way. Cf. San Diego Comments at 47-48 (arguing that WIA’s interpretation would create an inconsistency between the height increase standard for towers outside public rights-of-way and the standard for other structures).

As we discussed in the 2014 Infrastructure Order, limits on height and width increases should depend on the type and location of the underlying structure. 2014 Infrastructure Order, 29 FCC Rcd at 12946, para. 192.

We therefore adopted the Collocation Agreement’s “substantial increase in size” test for towers outside the rights-of-way, 47 CFR § 1.6100(b)(7)(i); 2014 Infrastructure Order, 29 FCC Rcd at 12946, para. 192; Collocation Agreement § I.C(1).

and we adopted a different standard for non-tower structures. 2014 Infrastructure Order, 29 FCC Rcd at 12946-47, para. 193; see 47 CFR § 1.6100(b)(7)(i) (stating a substantial change would occur for other eligible support structures when, “it increases the height of the structure by more than 10% or more than ten feet, whichever is greater”).

Localities are rearguing an issue already settled in the 2014 Infrastructure Order when they urge that the same height increase standard should apply to different types of structures. 47 CFR § 1.6100(b)(7)(i). See 2014 Infrastructure Order, 29 FCC Rcd at 12946-48, paras. 193-95 (explaining reasons for different standards)

ructure by more than 10% or more than ten feet, whichever is greater”).

We also reject the argument that this interpretation would lead to virtually unconstrained increases in the height of such towers. San Diego Reply at 80-82 (quoting 2014 Infrastructure Order, 29 FCC Rcd at 12949, para. 197).

These concerns are unwarranted because the2014 Infrastructure Order already limits the cumulative increases in height from eligible modifications and nothing in this Declaratory Ruling changes those limits. 47 CFR § 1.6100(b)(7)(i)(A); 2014 Infrastructure Order, 29 FCC Rcd at 12948-49, paras. 196-97 (stating that “our substantial change criteria for changes in height should be applied as limits on cumulative changes; otherwise, a series of permissible small changes could result in an overall change that significantly exceeds our adopted standards.”).

28. Our clarification is limited to section 1.6100(b)(7)(i) and the maximum increase in the height of a tower outside the rights-of-way allowed pursuant to an eligible facilities request under section 6409(a). We remind applicants that “eligible facility requests covered by section 6409(a) must comply with any relevant Federal requirement, including any applicable Commission, FAA, NEPA, or section 106 [historic review] requirements.” 2014 Infrastructure Order, 29 FCC Rcd at 12951, para. 203.

C. Equipment Cabinets

29. To upgrade to 5G and for other technological and capacity improvements, providers often add equipment cabinets to existing wireless sites

vered by section 6409(a) must comply with any relevant Federal requirement, including any applicable Commission, FAA, NEPA, or section 106 [historic review] requirements.” 2014 Infrastructure Order, 29 FCC Rcd at 12951, para. 203.

C. Equipment Cabinets

29. To upgrade to 5G and for other technological and capacity improvements, providers often add equipment cabinets to existing wireless sites. Section 1.6100(b)(7)(iii) provides that a proposed modification to a support structure constitutes a substantial change if “it involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed four cabinets.” See 47 CFR § 1.6100(b)(7)(iii). Section 1.6100(b)(7)(iii) imposes additional restrictions on equipment cabinet installations that constitute a substantial change in the context of towers in the public rights-of-way and base stations either within or outside the public rights-of-way. Petitioners do not raise issues regarding these additional provisions.

Some localities suggest that telecommunications transmission equipment manufactured with outer protective covers can be “equipment cabinets” under section 1.6100(b)(7)(iii) of the rules. San Diego Comments at 41-42, 44.

We conclude that localities are interpreting “equipment cabinet” under section 1.6100(b)(7)(iii) too broadly to the extent they are treating equipment itself as a cabinet simply because transmission equipment may have protective housing. Nor does a small piece of transmission equipment mounted on a structure become an “equipment cabinet” simply because it is more visible when mounted above ground. Contra id. at 44 (stating, “CTIA suggests that the difference is the size and location of the equipment enclosure, not its function. To adopt the industry’s definition is nonsensical given that it is the function that controls, and locational visibility matters

f transmission equipment mounted on a structure become an “equipment cabinet” simply because it is more visible when mounted above ground. Contra id. at 44 (stating, “CTIA suggests that the difference is the size and location of the equipment enclosure, not its function. To adopt the industry’s definition is nonsensical given that it is the function that controls, and locational visibility matters. The industry omits the fact that RRUs located near the antennas creates substantial visible bulk, as do RRUs and associated equipment above ground, and that bulk is more visible than ground mounted cabinets or for new cabinets installed existing enclosures.”).

Consistent with common usage of the term “equipment cabinet” in the telecommunications industry, small pieces of equipment such as remote radio heads/remote radio units, amplifiers, transceivers mounted behind antennas, and similar devices are not “equipment cabinets” under section 1.6100(b)(7)(iii) if they are not used as physical containers for smaller, distinct devices. Accord CTIA Petition for Decl. Ruling at 13; WIA Petition for Decl. Ruling at 13; Crown Castle Comments at 11. Cf. San Diego Comments at 42 & n.114 (citing technical documents referring to equipment cabinets as containers for smaller devices).

Moreover, we note that section 1.6100(b)(3) defines an “eligible facilities request” (i.e., a request entitled to streamlined treatment under section 6409(a)) as any request for modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station and that involves the collocation, removal or replacement of “transmission equipment.” 47 CFR § 1.6100(b)(3)

tion 1.6100(b)(3) defines an “eligible facilities request” (i.e., a request entitled to streamlined treatment under section 6409(a)) as any request for modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station and that involves the collocation, removal or replacement of “transmission equipment.” 47 CFR § 1.6100(b)(3).

Interpreting “transmission equipment,” an element required in order for a modification to qualify for streamlined treatment, to be “equipment cabinets,” an element that is subject to numerical limits that can cause the modification not to qualify for streamlined treatment, would strain the intended purposes of sections 1.6100(b)(3) and 1.6100(b)(7)(iii). We do not address here other aspects of the definition of equipment cabinets on which industry commenters seek clarification. We find this relief to suffice at this stage and thus do not address the industry parties’ contention that, in the portion of section 1.6100(b)(7)(iii) applicable to any eligible support structure, the term “equipment cabinets” applies only to cabinets installed on the ground and not to those mounted above ground level on the side of structures. See CTIA Petition for Decl. Ruling at 5, 13-14; WIA Petition for Decl. Ruling at 13-14; AT&T Comments at 8-10; Crown Castle Comments at 10-11; T-Mobile Comments at 4-5, 19-20; Verizon Comments at 9; contra San Diego Comments at 41-44; NLC Comments at 20-21.

30. In addition, we clarify that the maximum number of additional equipment cabinets that can be added under the rule is measured for each separate eligible facilities request. According to WIA, one unidentified city in Tennessee interprets the term “not to exceed four cabinets” in section 1.6100(b)(7)(iii) as “setting a cumulative limit, rather than a limit on the number of cabinets associated with a particular eligible facilities request.” WIA Petition for Decl. Ruling at 13

ts that can be added under the rule is measured for each separate eligible facilities request. According to WIA, one unidentified city in Tennessee interprets the term “not to exceed four cabinets” in section 1.6100(b)(7)(iii) as “setting a cumulative limit, rather than a limit on the number of cabinets associated with a particular eligible facilities request.” WIA Petition for Decl. Ruling at 13.

We find that such an interpretation runs counter to the text of section 1.6100(b)(7)(iii), which restricts the number of “new” cabinets per eligible facilities request. The city’s interpretation ignores the fact that the word “it” in the rule refers to a “modification” and supports the conclusion that the limit on equipment cabinet installations applies separately to each eligible facilities request. This conclusion is also supported by the context of the rule as a whole. The number and size of preexisting cabinets are irrelevant to the limitation on equipment cabinets on eligible support structures, in contrast to the rest of the rule, which takes into account whether there are preexisting ground cabinets at the site and whether proposed new cabinets’ volume exceeds the volume of preexisting cabinets by more than 10%. 47 CFR § 1.6100(b)(7)(iii). Wilmington’s reliance on the cumulative height limit in section 1.6100(b)(7)(i)(A) undercuts its argument for a similar limit on equipment cabinets. Wilmington Ex Parte Letter at 15-17. The rule and 2014 Infrastructure Order explicitly establish a cumulative limit on height increases but notably omits such a limit on equipment cabinets. 47 CFR § 1.6100(b)(7)(i)(A); 2014 Infrastructure Order, 29 FCC Rcd at 12948-49, paras. 196-97.

0(b)(7)(i)(A); 2014 Infrastructure Order, 29 FCC Rcd at 12948-49, paras. 196-97.

31. Several localities argue that this clarification would permit an applicant to add an unlimited number of new equipment cabinets to a structure so long as the applicant proposes adding them in increments of four or less. See, e.g., Letter from John Caulfield, City Manager, City of Lakewood, WA, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 19-250 and RM-11849, at 1 (filed May 29, 2020) (Lakewood Ex Parte Letter); Greenbelt Ex Parte Letter at 2; NATOA June 2, 2020 Ex Parte Letter at 3.

We disagree that this clarification permits an unlimited number of cabinets on a structure. The text of section 1.6100(b)(7)(iii) limits the number of equipment cabinets per modification to no more than “the standard number of new equipment cabinets for the technology involved.”

D. Concealment Elements

32. Section 1.6100(b)(7)(v) states that a modification “substantially changes” the physical dimensions of an existing structure if “[i]t would defeat the concealment elements of the eligible support structure.” 47 CFR § 1.6100(b)(7)(v).

The 2014 Infrastructure Order provides that, “in the context of a modification request related to concealed or ‘stealth’-designed facilities —i.e., facilities designed to look like some feature other than a wireless tower or base station—any change that defeats the concealment elements of such facilities would be considered a ‘substantial change’ under Section 6409(a).” 2014 Infrastructure Order, 29 FCC Rcd at 12949-50, para. 200.

The 2014 Infrastructure Order notes that both locality and industry commenters generally agreed that “a modification that undermines the concealment elements of a stealth wireless facility, such as painting to match the supporting façade or artificial tree branches, should be considered substantial under Section 6409(a).” Id. at 12949-50, para. 200.

r, 29 FCC Rcd at 12949-50, para. 200.

33. Stakeholders subsequently have interpreted the definition of “concealment element” and the types of modifications that would “defeat” concealment in different ways. Petitioners and industry commenters urge the Commission to clarify that the term “concealment element” only refers to “a stealth facility or those aspects of a design that were specifically intended to disguise the appearance of a facility, such as faux tree branches or paint color.” CTIA Petition for Decl. Ruling at 12; see also WIA Reply at 24; T-Mobile Comments at 4, 8; AT&T Comments at 7; ATC Comments at 9-10; Crown Castle Comments at 9-10.

T-Mobile states that some localities are “proffering ‘creative or inappropriate’ regulatory interpretations of what a concealment element is.” T-Mobile Comments at 7-8; see also AT&T Comments at 6-7; ATC Comments at 9-10; Crown Castle Comments at 8.

Locality commenters counter that there is more to concealment than “fully stealthed facilities and semi-stealthed monopines.” NLC Comments at 17.

They argue that the proposed changes would undermine the ability of local jurisdictions to enforce regulations designed to conceal equipment. Gwen Kennedy Comments at 1 (rec. Nov. 13, 2019) (filed on behalf of Loudoun County, Virginia) (Loudoun County Comments).

NLC asserts that many attributes of a site contribute to concealment, such as the “specific location of a rooftop site, or the inclusion of equipment in a particular architectural feature.” NLC Comments at 17, 19

sdictions to enforce regulations designed to conceal equipment. Gwen Kennedy Comments at 1 (rec. Nov. 13, 2019) (filed on behalf of Loudoun County, Virginia) (Loudoun County Comments).

Locality commenters contend that limiting concealment elements to features identified in the original approval would negate land use requirements that were a factor in the original deployment but not specified as such. NATOA Comments at 9; see also Chino Hills Comments at 2; NLC Comments at 18; NLC Reply at 6; Loudoun County Comments at 1. NATOA notes that many towers and collocations were approved “long before the enactment of Section 6409 and the Commission’s Rules [and there] was no way for municipalities to know that the conditions of approval would be ignored if they did not use magic words adopted years later.” NATOA Comments at 9; see also NLC Comments at 18; San Diego Comments at 38.

34. Clarification of “Concealment Element.” We clarify that concealment elements are elements of a stealth-designed facility intended to make the facility look like something other than a wireless tower or base station. Contra NATOA Comments at 8 (contending that Petitioners’ requests for clarification are a “substantial change to the Rules that would unreasonably narrow the common meaning of ‘concealment elements.’”); San Diego Comments at 31 (“The Petitioners’ arguments attempt to expand the scope of eligible facilities requests by narrowing the definition of concealment elements.”). The rules and 2014 Infrastructure Order do not provide detailed guidance on when modifications “defeat the concealment elements” under section 1.6100(b)(7)(v), and we disagree that providing clarity on existing language constitutes a rule change

ts at 31 (“The Petitioners’ arguments attempt to expand the scope of eligible facilities requests by narrowing the definition of concealment elements.”). The rules and 2014 Infrastructure Order do not provide detailed guidance on when modifications “defeat the concealment elements” under section 1.6100(b)(7)(v), and we disagree that providing clarity on existing language constitutes a rule change. Contra Letter from Scott Hugill, City Manager, City of Mountainlake Terrace, to Marlene Dortch, Secretary, FCC, WT Docket No. 19-250 and RM-11849, at 2 (filed June 1, 2020).

The 2014 Infrastructure Order defines “concealed or ‘stealth’”-designed facilities as “facilities designed to look like some feature other than a wireless tower or base station,” and further provides that any change that defeats the concealment elements of such facilities would be considered a substantial change under section 6409(a). 2014 Infrastructure Order, 29 FCC Rcd at 12950, para. 200.

Significantly, the 2014 Infrastructure Order identified parts of a stealth wireless facility such as “painting to match the supporting façade or artificial tree branches” as examples of concealment elements. Id. at 12949-50, para. 200; see also WIA Petition for Decl. Ruling at 11 (“Faux tree branches serve no other purpose than to create the appearance that a tower is a tree. Painting a rooftop antenna to match the building serves no purpose other than to enhance the appearance of the building.”).

We agree with industry commenters that concealment elements are those elements of a wireless facility installed for the purpose of rendering the “appearance of the wireless facility as something fundamentally different than a wireless facility,” WIA Petition for Decl. Ruling at 11; see also AT&T Reply at 6 (“[T]he Commission should clarify [] that (1) ‘concealment elements’ refer only to the ‘stealth’ elements of a structure that disguise the structure as something other than a wireless site . .

installed for the purpose of rendering the “appearance of the wireless facility as something fundamentally different than a wireless facility,” WIA Petition for Decl. Ruling at 11; see also AT&T Reply at 6 (“[T]he Commission should clarify [] that (1) ‘concealment elements’ refer only to the ‘stealth’ elements of a structure that disguise the structure as something other than a wireless site . . . .”); CCA Comments at 7-8 (“In the 2014 Order, the Commission described concealment elements as those tailored to make wireless facilities ‘look like some feature other than a wireless tower or base station,’ and specifically identified ‘painting to match the supporting façade’ and ‘artificial tree branches’ as examples.”); Letter from Cathleen Massey, Vice President of Regulatory Affairs, T-Mobile, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 19-250 et. al., at 2 & n.6 (filed May 13, 2020) (“the Commission should clarify that ‘concealment elements’ means ‘a stealth facility or those aspects of a deployment’s design that were specifically intended to disguise the appearance of a facility’”).

and that concealment elements are “confined to those used in stealth facilities.” CTIA Petition for Decl. Ruling at 10.

35. We disagree with localities who argue that any attribute that minimizes the visual impact of a facility, such as a specific location on a rooftop site or placement behind a tree line or fence, can be a concealment element. See National League of Cities Comments at 16-17; see also NATOA Comments at 8-9. To the extent that municipalities argue that they have interpreted “concealment element” in the past differently from our clarification, this Declaratory Ruling should reduce the number of disputes between localities and applicants and help localities bring their procedures in compliance with section 6409(a). See, e.g., Letter from Carol Helland, Director of Planning and Community Development, City of Redmond, CA, to Marlene H. Dortch, Secretary, FCC, WT Docket No

oncealment element” in the past differently from our clarification, this Declaratory Ruling should reduce the number of disputes between localities and applicants and help localities bring their procedures in compliance with section 6409(a). See, e.g., Letter from Carol Helland, Director of Planning and Community Development, City of Redmond, CA, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 19-250 and RM-11849, at 1 (filed June 2, 2020); NATOA Ex Parte at 3.

As localities acknowledged in comments they submitted in response to the 2013 Infrastructure NPRM, “local governments often address visual effects and concerns in historic districts not through specific stealth conditions, but through careful placement” conditions. See City of Alexandria, Virginia; City of Arlington, Texas; City of Bellevue Washington; City of Boston, Massachusetts; City of Davis, California; City of Los Angeles, California; Los Angeles County, California; City of McAllen, Texas; Montgomery County, Maryland; City of Ontario, California; Town of Palm Beach, Florida; City of Portland, Oregon; City of Redwood City, California; City of San Jose, California; Village of Scarsdale, New York; City of Tallahassee, Florida; Texas Coalition of Cities for Utility Issues; Georgia Municipal Association; International Municipal Lawyers Association; and American Planning Association (Alexandria et al.) Reply to 2013 Infrastructure NPRM at 18-19; see also Alexandria et al. Comments to 2013 Infrastructure NPRM at 19.

Our rules separately address conditions to minimize the visual impact of non-stealth facilities under section 1.6100(b)(7)(vi) governing “conditions associated with the siting approval.” 47 CFR § 1.6100(b)(7)(vi).

The Commission narrowly defined concealment elements to mean the elements of a stealth facility, and no other conditions fall within the scope of section 1.6100(b)(7)(v).

36. We also clarify that, in order to be a concealment element under section 1.6100(b)(7)(v), the element must have been part of the facility that the locality approved in its prior review. See 2014 Infrastructure Order, 29 FCC Rcd at 12945, 12949, paras. 188, 200.

Our clarification that concealment elements must be related to the locality’s prior approval is informed by the 2014 Infrastructure Order and its underlying record, which assumed that “stealth” designed facilities in most cases would be installed at the request of an approving local government. Id. at 12949-50, para. 200.

Further, in the 2014 Infrastructure Order, the Commission stated that a modification would be considered a substantial increase if “it would defeat the existing concealment elements of the tower or base station.” See id. at 12945, para. 188 (emphasis added).

We clarify that the term “existing” means that the concealment element existed on the facility that was subject to a prior approval by the locality. In addition, the record in the 2014 Infrastructure Order, as relied upon by the Commission, characterized stealth requirements as identifiable, pre-existing elements in place before an eligible facilities request is submitted. See 2013 Infrastructure NPRM, 28 FCC Rcd at 14284, para. 127.

e concealment element existed on the facility that was subject to a prior approval by the locality. In addition, the record in the 2014 Infrastructure Order, as relied upon by the Commission, characterized stealth requirements as identifiable, pre-existing elements in place before an eligible facilities request is submitted. See 2013 Infrastructure NPRM, 28 FCC Rcd at 14284, para. 127.

37. Regarding the meaning of a prior approval in the context of an “existing” concealment element, we note that section 1.6100(b)(7)(i) provides that permissible increases in the height of a tower (other than a tower in the public rights-of-way) should be measured relative to a locality’s original approval of the tower or the locality’s approval of any modifications that were approved prior to the passage of the Spectrum Act. 47 CFR § 1.6100(b)(7)(i)(A).

We find it reasonable to interpret an “existing” concealment element relative to the same temporal reference points, which are intended to allow localities to adopt legitimate requirements for approval of an original tower at any time but not to allow localities to adopt these same requirements for a modification to the original tower (except for a modification prior to the Spectrum Act when localities would not have been on notice of the limitations in section 6409(a)). By permitting localities to rely on concealment elements required when approving modifications of towers prior to the Spectrum Act, we address in part locality concerns about concealment conditions imposed on older structures after an original approval. See, e.g., San Diego Comments at 38 (stating that WIA’s request for clarification that concealment elements must have been named in the initial approval “would unfairly and retroactively punish both communities and providers who had no notice, and therefore no reason to expect that regulation would be premised upon such a requirement”)

tions imposed on older structures after an original approval. See, e.g., San Diego Comments at 38 (stating that WIA’s request for clarification that concealment elements must have been named in the initial approval “would unfairly and retroactively punish both communities and providers who had no notice, and therefore no reason to expect that regulation would be premised upon such a requirement”).

In other words, the purpose of section 1.6100(b)(7)(v) is to identify and preserve prior local recognition of the need for such concealment, but not to invite new restrictions that the locality did not previously identify as necessary. Accordingly, we clarify that under section 1.6100(b)(7)(v), a concealment element must have been part of the facility that was considered by the locality at the original approval of the tower or at the modification to the original tower, if the approval of the modification occurred prior to the Spectrum Act or lawfully outside of the section 6409(a) process (for instance, an approval for a modification that did not qualify for streamlined section 6409(a) treatment).

38. We are not persuaded by localities’ arguments that our clarification would negate land use requirements that were a factor in the approval of the original deployment even if those requirements were not specified as a condition. NATOA Comments at 9.

Our clarification does not mean that a concealment element must have been explicitly articulated by the locality as a condition or requirement of a prior approval. While specific words or formulations are not needed, there must be express evidence in the record to demonstrate that a locality considered in its approval that a stealth design for a telecommunications facility would look like something else, such as a pine tree, flag pole, or chimney

element must have been explicitly articulated by the locality as a condition or requirement of a prior approval. While specific words or formulations are not needed, there must be express evidence in the record to demonstrate that a locality considered in its approval that a stealth design for a telecommunications facility would look like something else, such as a pine tree, flag pole, or chimney. However, it would be inconsistent with the purpose of section 6409(a)—facilitating wireless infrastructure deployment—to give local governments discretion to require new concealment elements that were not part of the facility that was subject to the locality’s prior approval. Id.; see also Chino Hills Comments at 2; NLC Comments at 18; NLC Reply at 6; Gwen Kennedy Comments at 1 (rec. Nov. 13, 2019) (filed on behalf of Loudoun County, Virginia) (Loudoun County Comments) (stating that the proposed clarifications would undermine the ability of local jurisdictions to enforce regulations designed to conceal equipment). NATOA insists that many towers and collocations were approved “long before the enactment of Section 6409 and the Commission’s Rules [and there] was no way for municipalities to know that the conditions of approval would be ignored if they did not use magic words adopted years later.” NATOA Comments at 9; see also NLC Comments at 18; San Diego Comments at 38 (stating that WIA’s request for clarification that concealment elements must have been named in the initial approval “would unfairly and retroactively punish both communities and providers who had no notice, and therefore no reason to expect that regulation would be premised upon such a requirement”).

We expect that this clarification will also promote the purpose of the rules to provide greater certainty to localities and applicants as to whether a concealment element exists.

ed in the initial approval “would unfairly and retroactively punish both communities and providers who had no notice, and therefore no reason to expect that regulation would be premised upon such a requirement”).

We expect that this clarification will also promote the purpose of the rules to provide greater certainty to localities and applicants as to whether a concealment element exists.

39. Clarification of “Defeat Concealment.” Next, we clarify that, to “defeat concealment,” the proposed modification must cause a reasonable person to view the structure’s intended stealth design as no longer effective after the modification. In other words, if the stealth design features would continue effectively to make the structure appear not to be a wireless facility, then the modification would not defeat concealment. Our definition is consistent with dictionary definitions and common usage See Defeat, Black’s Law Dictionary (11th ed. 2019) (Defeat means “2. To annul or render (something) void. 3. To vanquish; to conquer (someone or something). 4. To frustrate (someone or something).”).

of the term “defeat” and is supported by the record. See Crown Castle Comments at 9-10 (suggesting that, in order to defeat a concealment element, a modification “must entirely render the concealment void or useless”); AT&T Comments at 8 (stating that a modification must “materially change” the appearance of a concealment element for there to be “substantial change”).

on must “materially change” the appearance of a concealment element for there to be “substantial change”).

Our clarification is necessary because, as industry commenters point out, some localities construe even small changes to “defeat” concealment, which delays deployment, extends the review processes for modifications to existing facilities, and frustrates the intent behind section 6409(a). T-Mobile Comments at 7-8; Crown Castle Comments at 9-10; CCA Comments at 5; see also ATC Reply at 6, n.13 (arguing that adoption of Petitioners’ clarifications regarding “defeat” will “allow for appropriate, real world, case-by-case analysis of those elements which actually contribute to concealment”); AT&T Comments at 6-7; CTIA Comments at 8 (“localities are broadly treating the entire structure as a concealment element, or otherwise improperly invoking the rule to deem a modification to be substantial”); Crown Castle Comments at 8, n.20 (stating that there are “myriads” of ways that localities claim concealment is defeated, “even when not included in siting approval: increasing the height of a monopine; increasing the height of a light pole; failure to add screens to antenna; any change to branches on a stealth tree; addition of opaque fencing; enclosing of equipment within shelters; increasing the width of a canister on a flagpole or utility pole; and external cabling on a non-camouflaged monopole”).

40. Examples of Whether Modifications Defeat Concealment Elements. We offer the following examples to provide guidance on concealment elements and whether or not they have been defeated to help inform resolution of disputes should they arise:

· In some cases, localities take the position that the placement of coaxial cable on the outside of a stealth facility constitutes a substantial change based on the visual impact of the cable

Defeat Concealment Elements. We offer the following examples to provide guidance on concealment elements and whether or not they have been defeated to help inform resolution of disputes should they arise:

· In some cases, localities take the position that the placement of coaxial cable on the outside of a stealth facility constitutes a substantial change based on the visual impact of the cable. Coaxial cables typically range from 0.2 inches to slightly over a half-inch in diameter, RS Components, Ltd., Everything You Need to Know About Coaxial Cable, https://uk.rs-online.com/web/generalDisplay.html?id=ideas-and-advice/coaxial-cable-guide.

and it is unlikely that such cabling would render the intended stealth design ineffective at the distances where individuals would view a facility. See, e.g. Letter from Jim Ferrell, Mayor, City of Federal Way, WA, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 19-250 and RM-11849, at 2 (filed June 1, 2020) (presenting hypotheticals involving the visibility of coaxial cables).

· In other cases, localities have interpreted any change to the color of a stealth tower or structure as defeating concealment. WIA Petition for Decl. Ruling at 3 (“In many cases, these requirements are not mandated by local codes but are imposed on an ad hoc basis by local jurisdictions.”); T-Mobile Reply at 14; AT&T Reply at 6-7; NLC Reply at 17-18; see also Letter from Alexi Maltas, Senior Vice President and General Counsel, Competitive Carriers Association, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79, at 2 (filed July 12, 2019) (CCA 2019 Letter).

r Vice President and General Counsel, Competitive Carriers Association, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79, at 2 (filed July 12, 2019) (CCA 2019 Letter).

Such interpretations are overly broad and can frustrate Congress’s intent to expedite the section 6409(a) process. A change in color must make a reasonable person believe that the intended stealth is no longer effective. The 2014 Infrastructure Order noted that “a replacement of exactly the same dimensions could still violate concealment elements if it does not have the same camouflaging paint as the replaced facility.” 29 FCC Rcd at 12949, para. 200, n.543. For such a change in paint color to defeat concealment, however, the color of the stealth tower must make a reasonable person believe that the modified facility will no longer resemble the stealth designed facility.

Changes to the color of a stealth structure can occur for many reasons, including for example, the discontinuance of the previous color. An otherwise compliant eligible facilities request will not defeat concealment in this case merely because the modification uses a slightly different paint color. Further, if the new equipment is shielded by an existing shroud that is not being modified, then the color of the equipment is irrelevant because it is not visible to the public and would not render an intended concealment ineffective. Therefore, such a change would not defeat concealment. In a further example, according to Crown Castle, two cities in California— San Diego and Cerritos—take the position that additions or modifications of antennas on faux trees defeat concealment even if the appearance of the faux tree remains the same. See, e.g., Letter from Kenneth Simon, Senior Vice President and General Counsel, Crown Castle, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79, at 1 (filed Aug. 10, 2018) (Crown Castle August 2018 Ex Parte Letter); see also T-Mobile Reply at 13

position that additions or modifications of antennas on faux trees defeat concealment even if the appearance of the faux tree remains the same. See, e.g., Letter from Kenneth Simon, Senior Vice President and General Counsel, Crown Castle, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79, at 1 (filed Aug. 10, 2018) (Crown Castle August 2018 Ex Parte Letter); see also T-Mobile Reply at 13. Additional faux branches would need to render the intended disguise (resembling a tree, in this example) ineffective in order to defeat concealment.

· WIA reports that a locality in Colorado claims that a small increase in height on a stealth monopine, which is less than the size thresholds of section 1.6100(b)(7)(i)-(iv), defeats concealment and therefore constitutes a substantial change. WIA Petition for Decl. Ruling at 10.

We clarify that such a change would not defeat concealment if the change in size does not cause a reasonable person to view the structure’s intended stealth design (i.e., the design of the wireless facility to resemble a pine tree) as no longer effective after the modification.

· If a prior approval included a stealth-designed monopine that must remain hidden behind a tree line, a proposed modification within the thresholds of section 1.6100(b)(7)(i)-(iv) that makes the monopine visible above the tree line would be permitted under section 1.6100(b)(7)(v). First, the concealment element would not be defeated if the monopine retains its stealth design in a manner that a reasonable person would continue to view the intended stealth design as effective. Second, a requirement that the facility remain hidden behind a tree line is not a feature of a stealth-designed facility; rather it is an aesthetic condition that falls under section 1.6100(b)(7)(vi)

First, the concealment element would not be defeated if the monopine retains its stealth design in a manner that a reasonable person would continue to view the intended stealth design as effective. Second, a requirement that the facility remain hidden behind a tree line is not a feature of a stealth-designed facility; rather it is an aesthetic condition that falls under section 1.6100(b)(7)(vi). Under that analysis, as explained in greater detail below, a proposed modification within the thresholds of section 1.6100(b)(7)(i)-(iv) that makes the monopine visible above the tree line likely would be permitted under section 1.6100(b)(7)(vi).

E. Conditions Associated with the Siting Approval

41. Section 1.6100(b)(7)(vi) states that a modification is a substantial increase if “[i]t does not comply with conditions associated with the siting approval of the construction or modification of the eligible support structure or base station equipment, provided however that this limitation does not apply to any modification that is non-compliant only in a manner that would not exceed the thresholds identified in § 1.61001(b)(7)(i) through (iv).” Industry commenters argue that changes specifically allowed under section 1.6100(b)(7)(i)-(iv) should not constitute a substantial change under section 1.6100(b)(7)(vi). T-Mobile Comments at 18-19; see also WIA Reply at 24-25.

For example, the record shows that some localities claim that small increases in the size of a structure, such as increasing its height or increasing the width of its cannister, are a substantial change because they wrongly characterize any increase to a structure’s visual profile or negative aesthetic impact as defeating a concealment element—even if the size changes would be within the allowances under our rules

record shows that some localities claim that small increases in the size of a structure, such as increasing its height or increasing the width of its cannister, are a substantial change because they wrongly characterize any increase to a structure’s visual profile or negative aesthetic impact as defeating a concealment element—even if the size changes would be within the allowances under our rules. T-Mobile Comments at 9-10; see also Nokia Comments at 6-7; Crown Castle August 2018 Ex Parte Letter at 16 (claiming that a California locality treats the dimensions of “every aspect” of a project as a concealment element); WIA Petition for Decl. Ruling at 11 (stating that a city in California does not allow weatherproof enclosure expansions greater than 36 inches). Additionally, WIA offers examples of localities that take the position that any increase in height on a monopine, even if below the substantial change threshold of section 1.16100(b)(7)(i)-(iv), defeats concealment and therefore constitutes a substantial change. WIA Petition for Decl. Ruling at 10.

42. Conditions associated with the siting approval under section 1.6100(b)(7)(vi) may relate to improving the aesthetics, or minimizing the visual impact, of non-stealth facilities (facilities not addressed under section 1.6100(b)(7)(v)). However, localities cannot merely assert that a detail or feature of the facility was a condition of the siting approval; there must be express evidence that at the time of approval the locality required the feature and conditioned approval upon its continuing existence in order for non-compliance with the condition to disqualify a modification from being an eligible facilities request. Several localities argue that this clarification would place a requirement on a locality to show express evidence that a feature was required and that the locality conditioned approval on its continuing existence, in order for non-compliance with the condition to disqualify a modification from being an eligible facilities request

disqualify a modification from being an eligible facilities request. Several localities argue that this clarification would place a requirement on a locality to show express evidence that a feature was required and that the locality conditioned approval on its continuing existence, in order for non-compliance with the condition to disqualify a modification from being an eligible facilities request. See, e.g., Lakewood Ex Parte Letter at 2; Greenbelt Ex Parte Letter at 2; NATOA June 2, 2020 Ex Parte Letter at 4. Our clarification is a restatement of the basic principle that applicants should have clear notice of what is required by a condition and how long the requirement lasts. We clarify that in order for a locality to disqualify a modification as an eligible facilities request based on an applicant’s noncompliance with a condition of the original approval, the locality must show that the condition existed at the time of the original approval. Such showing would demonstrate that the applicant was on notice that noncompliance with the condition could result in disqualification .

Even so, like any other condition under section 1.6100(b)(7)(vi), such an aesthetics-related condition still cannot be used to prevent modifications specifically allowed under section 1.6100(b)(7)(i)-(iv) of our rules. See, e.g., Crown Castle August 2018 Ex Parte Letter at 13 (“Imposing size-based ‘concealment elements’ is nothing more than an attempt to evade the specific, objective size criteria that the Commission adopted in the 2014 Infrastructure Order.”); see also AT&T Comments at 6-7 (“If such generic features as height, width, or equipment could be construed as concealment elements, the concealment exception would swallow the rule, nullifying the Section 6409(a) protections adopted by Congress.”); T-Mobile Comments at 9; WIA Petition for Decl. Ruling at 10 (“[T]he record in this proceeding reflects that some jurisdictions are interpreting this language so broadly that the exception swallows the rule.”); ATC Comments at 9

r equipment could be construed as concealment elements, the concealment exception would swallow the rule, nullifying the Section 6409(a) protections adopted by Congress.”); T-Mobile Comments at 9; WIA Petition for Decl. Ruling at 10 (“[T]he record in this proceeding reflects that some jurisdictions are interpreting this language so broadly that the exception swallows the rule.”); ATC Comments at 9.

Consistent with “commonplace [] statutory construction that the specific governs the general,” we clarify that where there is a conflict between a locality’s general ability to impose conditions under (vi) and modifications specifically deemed not substantial under (i)-(iv), the conditions under (vi) should be enforced only to the extent that they do not prevent the modification in (i)-(iv). Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992).

In other words, when a proposed modification otherwise permissible under section 1.6100(b)(7)(i)-(iv) cannot reasonably comply with conditions under section 1.6100(b)(7)(vi), the conflict should be resolved in favor of permitting the modifications. For example, a local government’s condition of approval that requires a specifically sized shroud around an antenna could limit an increase in antenna size that is otherwise permissible under section 1.6100(b)(7)(i). Under section 1.6100(b)(7)(vi), however, the size limit of the shroud would not be enforceable if it purported to prevent a modification to add a larger antenna, but a local government could enforce its shrouding condition if the provider reasonably could install a larger shroud to cover the larger antenna and thus meet the purpose of the condition.

permissible under section 1.6100(b)(7)(i). Under section 1.6100(b)(7)(vi), however, the size limit of the shroud would not be enforceable if it purported to prevent a modification to add a larger antenna, but a local government could enforce its shrouding condition if the provider reasonably could install a larger shroud to cover the larger antenna and thus meet the purpose of the condition.

43. By providing guidance on the relationship between section 1.6100(b)(7)(i)-(iv) and 1.6100(b)(7)(vi), including the limitations on conditions that a locality may impose, we expect there to be fewer cases where conditions, especially aesthetic conditions, are improperly used to prevent modifications otherwise expressly allowed under section 1.6100(b)(7)(i)-(iv). See, e.g., Douglas Cty. v. Crown Castle USA, Inc., 2020 WL 109208, Case No. 18-cv-03171 (D. Colo., Jan. 9, 2020).

We reaffirm that beyond the specific conditions that localities may impose through section 1.6100(b)(7)(vi), localities can enforce “generally applicable building, structural, electrical, and safety codes” and “other laws codifying objective standards reasonably related to health and safety.” 2014 Infrastructure Order, 29 FCC Rcd at 12951, para. 202.

44. Examples of Aesthetics Related Conditions. Petitioners and both industry and locality commenters have provided numerous examples of disputes involving modifications to wireless facilities. Using examples from the record, See San Diego Reply at 44-60 (pictures of multiple structures that commenters consider to be concealed)

ety.” 2014 Infrastructure Order, 29 FCC Rcd at 12951, para. 202.

and assuming that the locality has previously imposed an aesthetic-related condition under section 1.6100(b)(7)(vi), we offer examples to provide guidance on the validity of the condition to decrease future disputes and to help inform resolution of disputes should they arise:

· If a city has an aesthetic-related condition that specified a three-foot shroud cover for a three-foot antenna, the city could not prevent the replacement of the original antenna with a four-foot antenna otherwise permissible under section 1.6100(b)(7)(i) because the new antenna cannot fit in the shroud. As described above, if there was express evidence that the shroud was a condition of approval, the city could enforce its shrouding condition if the provider reasonably could install a four-foot shroud to cover the new four-foot antenna. The city also could enforce a shrouding requirement that is not size-specific and that does not limit modifications allowed under section 1.6100(b)(7)(i)-(iv).

· T-Mobile claims that some localities consider existing walls and fences around non-camouflaged towers to be concealment elements that have been defeated if new equipment is visible over those walls or fences. Letter from Cathleen Massey, Vice-President of Regulatory Affairs, T-Mobile USA, Inc., to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79, at 3-4 (filed Aug. 30, 2019) (T-Mobile 2019 Letter).

resident of Regulatory Affairs, T-Mobile USA, Inc., to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79, at 3-4 (filed Aug. 30, 2019) (T-Mobile 2019 Letter).

First, such conditions are not concealment elements; rather, they are considered aesthetic conditions under section 1.6100(b)(7)(vi). Such conditions may not prevent modifications specifically allowed by section 1.6100(b)(7)(i)-(iv). However, if there were express evidence that the wall or fence were conditions of approval to fully obscure the original equipment from view, the locality may require a provider to make reasonable efforts to extend the wall or fence to maintain the covering of the equipment.

· If an original siting approval specified that a tower must remain hidden behind a tree line, a proposed modification within the thresholds of section 1.6100(b)(7)(i)-(iv) that makes the tower visible above the tree line would be permitted under section 1.6100(b)(7)(vi), because the provider cannot reasonably replace a grove of mature trees with a grove of taller mature trees to maintain the absolute hiding of the tower. We disagree with the argument of local authorities that this interpretation conflicts with how the Commission explained the 2014 Infrastructure Order in a brief to the Fourth Circuit almost five years ago. Wilmington Ex Parte Letter at 2. In that brief, the Commission addressed the general question of whether previous reliance on a tree for concealment could be defeated by later installing an additional facility that rose above the tree line. See Brief for Respondents, Montgomery County v. FCC, Nos. 15-1240 et al. (4th Cir. filed July 20, 2015). The Commission’s argument in that brief cannot be interpreted to make any de minimis increase above the tree line a substantial increase under the Commission’s rule. Nor did it distinguish between the application of the concealment provisions of the rule to a “stealth” structure and the limitations in the rule applicable to aesthetic conditions

Nos. 15-1240 et al. (4th Cir. filed July 20, 2015). The Commission’s argument in that brief cannot be interpreted to make any de minimis increase above the tree line a substantial increase under the Commission’s rule. Nor did it distinguish between the application of the concealment provisions of the rule to a “stealth” structure and the limitations in the rule applicable to aesthetic conditions. In any event, in light of extensive subsequent experience as documented in the record of this proceeding, we believe that the rule applicable to stealth facilities should be construed in each individual case to depend upon whether the design would be viewed as no longer effective in view of the modified facilities. See also, e.g., SNR Wireless LicenseCo, LLC v. FCC, 868 F.3d 1021, 1037 (D.C. Cir. 2017) (staff level actions do not bind the agency as a whole); Appalachian Power Co. v. Train, 620 F.2d 1040, 1045-46 (4th Cir. 1980) (similar); Malkan FM Associates v. FCC, 935 F.2d 1313, 1319 (D.C. Cir. 1992) (similar).

· In a similar vein, San Francisco has conditions to reduce the visual impact of a wireless facility, including that it must be set back from the roof at the front building wall. San Francisco Reply at 3.

San Francisco states that it will not approve a modification if the new equipment to be installed does not meet the set back requirement. Even if a proposed modification within the thresholds of section 1.6100(b)(7)(i)-(iv) exceeds the required set back, San Francisco could enforce its set back condition if the provider reasonably could take other steps to reduce the visual impact of the facility to meet the purpose of its condition.

F. Environmental Assessments After Execution of Memorandum of Agreement

back requirement. Even if a proposed modification within the thresholds of section 1.6100(b)(7)(i)-(iv) exceeds the required set back, San Francisco could enforce its set back condition if the provider reasonably could take other steps to reduce the visual impact of the facility to meet the purpose of its condition.

F. Environmental Assessments After Execution of Memorandum of Agreement

45. The Commission’s environmental rules implementing the National Environmental Policy Act categorically exclude all actions from environmental evaluations, including the preparation of an environmental assessment, except for defined actions associated with the construction of facilities that may significantly affect the environment. 47 CFR §§ 1.1306, 1.1307; see also 42 U.S.C. § 4321 et seq.

Pursuant to section 1.1307(a) of the Commission’s rules, applicants currently submit an environmental assessment for those facilities that fall within specific categories, including facilities that may affect historic properties protected under the National Historic Preservation Act. 47 CFR § 1.1307(a).

Under our current process, an applicant submits an environmental assessment for facilities that may affect historic properties, even if the applicant has executed a memorandum of agreement A memorandum of agreement is a mechanism to address adverse effects on historic properties or Indian religious sites. See Wireless Facilities Nationwide Programmatic Agreement at § VII.D.

with affected parties to address those adverse effects. FCC, Tower and Antenna Siting, National Historic Preservation Act, The Nationwide Programmatic Agreements, https://www.fcc.gov/wireless/bureau-divisions/competition-infrastructure-policy-division/tower-and-antenna-siting.

oric properties or Indian religious sites. See Wireless Facilities Nationwide Programmatic Agreement at § VII.D.

46. We clarify on our own motion 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, consistent with section VII.D of the Wireless Facilities Nationwide Programmatic Agreement, Wireless Facilities Nationwide Programmatic Agreement, 47 CFR pt. 1, Appx. C. The Wireless Facilities Nationwide Programmatic Agreement was executed by the Advisory Council on Historic Preservation (ACHP), the National Conference on State Historic Preservation Officers, and the FCC.

if the only basis for the preparation of an environmental assessment was the potential for significant effects on such properties. We expect this clarification should further streamline the environmental review process.

47. Section 1.1307(a)(4) of the Commission’s rules requires an environmental assessment if a proposed communications facility may have a significant effect on a historic property. 47 CFR § 1.1307(a)(4).

The Commission adopted a process to identify potential effects on historic properties by codifying the Wireless Facilities Nationwide Programmatic Agreement as the means to comply with section 106 of the National Historic Preservation Act. See Wireless Facilities Nationwide Programmatic Agreement, 47 CFR pt. 1, Appx. C

may have a significant effect on a historic property. 47 CFR § 1.1307(a)(4).

If adverse effects on historic properties are identified during this process, the Wireless Facilities Nationwide Programmatic Agreement requires that the applicant consult with the State Historic Preservation Officer and/or Tribal Historic Preservation Officer, and other interested parties to avoid, minimize, or mitigate the adverse effects. Wireless Facilities Nationwide Programmatic Agreement at § VII.D.1.

48. When such effects cannot be avoided, under the terms of the Wireless Facilities Nationwide Programmatic Agreement, the applicant, the State Historic Preservation Officer and/or Tribal Historic Preservation Officer, and other interested parties may proceed to negotiate a memorandum of agreement that the signatories agree fully mitigates all adverse effects. The agreement is then sent to Commission staff for review and signature. Id. at § VII.D.4.

Under current practice, even after a memorandum of agreement is executed, an applicant is still required to prepare an environmental assessment and file it with the Commission. FCC, Tower and Antenna Siting, National Historic Preservation Act, The Nationwide Programmatic Agreements, https://www.fcc.gov/wireless/bureau-divisions/competition-infrastructure-policy-division/tower-and-antenna-siting.

The Commission subsequently places the environmental assessment on public notice, and the public has 30 days to file comments/oppositions. FCC, Tower and Antenna Siting, The National Environmental Policy Act, FCC’s NEPA Process, https://www.fcc.gov/wireless/bureau-divisions/competition-infrastructure-policy-division/tower-and-antenna-siting

frastructure-policy-division/tower-and-antenna-siting.

If the environmental assessment is determined to be sufficient and no comments or oppositions are filed, the Commission issues a Finding of No Significant Impact and allows an applicant to proceed with the project. Id.

49. In this Declaratory Ruling we clarify that an environmental assessment is unnecessary after an adverse effect on a historic property is mitigated by a memorandum of agreement. See Council on Environmental Quality, Executive Office of the President, and Advisory Council on Historic Preservation, NEPA and NHPA: A Handbook for Integrating NEPA and Section 106 at 11, 21 (2013) https://ceq.doe.gov/docs/ceq-publications/NEPA_NHPA_Section_106_Handbook_Mar2013.pdf (2013 NHPA/NEPA Handbook).

Applicants already are required to consider alternatives to avoid adverse effects prior to executing a memorandum of agreement. Standard language in the template of the FCC’s memoranda of agreement provides that the applicant, “consistent with the FCC’s environmental rules has considered and evaluated a number of alternatives for the project and concluded that these options are either unavailable . . . or do not meet the technical requirements necessary to satisfy the coverage needs of the telecommunications system to be supported by the antennas.” FCC, Tower and Antenna Siting, The Nationwide Programmatic Agreements, https://www.fcc.gov/wireless/bureau-divisions/competition-infrastructure-policy-division/tower-and-antenna-siting

ect and concluded that these options are either unavailable . . . or do not meet the technical requirements necessary to satisfy the coverage needs of the telecommunications system to be supported by the antennas.” FCC, Tower and Antenna Siting, The Nationwide Programmatic Agreements, https://www.fcc.gov/wireless/bureau-divisions/competition-infrastructure-policy-division/tower-and-antenna-siting.

The executed agreement demonstrates that the applicant: has notified the public of the proposed undertaking; has consulted with the State Historic Preservation Officer and/or Tribal Historic Preservation Officers, and other interested parties to identify potentially affected historic properties; and has worked with such parties to agree on a plan to mitigate adverse effects. Wireless Facilities Nationwide Programmatic Agreement at §§ IV, V, VI, VII.

This mitigation eliminates any significant adverse effects on a historic property, and each memorandum of agreement must include as a standard provision that the memorandum of agreement “shall constitute full, complete, and adequate mitigation under the NHPA . . . and the FCC’s rules.” This provision is standard language in the FCC’s memoranda of agreement, and it is included in the template located on the Commission’s website. See FCC, Tower and Antenna Siting, National Historic Preservation Act, The Nationwide Programmatic Agreements, https://www.fcc.gov/wireless/bureau-divisions/competition-infrastructure-policy-division/tower-and-antenna-siting.

50. We note that section 1.1307(a) requires an applicant to submit an environmental assessment if a facility “may significantly affect the environment,” which includes facilities that may affect historic properties, endangered species, or critical habitats. 47 CFR § 1.1307(a)

ts, https://www.fcc.gov/wireless/bureau-divisions/competition-infrastructure-policy-division/tower-and-antenna-siting.

As a result of the mitigation required by a memorandum of agreement, we conclude that any effects on historic properties remaining after the agreement is executed would be below the threshold of “significance” to trigger an environmental assessment. Id.

After the memorandum of agreement is executed, a proposed facility should no longer “have adverse effects on identified historic properties” within the meaning of section 1.1307(a)(4) Id. § 1.1307(a)(4).

and, therefore, should no longer be within the “types of facilities that may significantly affect the environment.” Id. § 1.1307(a) (introductory paragraph).

If none of the other criteria for requiring an environmental assessment in section 1.1307(a) exist, then such facilities automatically fall into the broad category of actions that the Commission has already found to “have no significant effect on the quality of the human environment and are categorically excluded from environmental processing.” Id. § 1.1306(a); 2013 NHPA/NEPA Handbook at 21 (“New facilities and collocations that do not affect historic properties may be categorically excluded from NEPA.”). We note that nothing in this Declaratory Ruling changes the scope or application of section 1.1307(c), which allows any person to submit a petition seeking an environmental assessment for any communications facility deployment otherwise categorically excluded, and (d), which allows a Bureau to require an applicant to submit an environmental assessment even if a proposed deployment would be otherwise categorically excluded. 47 CFR § 1.1307(c) and (d)

s the scope or application of section 1.1307(c), which allows any person to submit a petition seeking an environmental assessment for any communications facility deployment otherwise categorically excluded, and (d), which allows a Bureau to require an applicant to submit an environmental assessment even if a proposed deployment would be otherwise categorically excluded. 47 CFR § 1.1307(c) and (d).

The Commission’s rules should be read in light of the scope of our obligation under section 106 and the ACHP’s rules, which explicitly state that such a memorandum of agreement “evidences the agency official’s compliance with section 106.” 36 CFR § 800.6(b)-(c); see also 54 U.S.C. § 300101 et seq.

We remind applicants that an environmental assessment is still required if the proposed project may significantly affect the environment in ways unrelated to historic properties. 47 CFR § 1.1307(a)(1)-(3), (6)-(8); see also note to section 1.1307(d) (requiring environmental assessment filings for certain proposed facilities that may affect migratory birds); Wilmington Ex Parte Letter at 23-24 (stating that if the Commission is going to eliminate the requirement for an environmental assessment addressing effects on historic properties when a memorandum of agreement is executed, it should clarify that it must still fully consider the potential for other environmental effects).

IV. NOTICE OF PROPOSED RULEMAKING

51. Section 1.6100(b)(7)(iv) provides that “[a] modification substantially changes the physical dimensions of an eligible support structure if . . . [i]t entails any excavation or deployment outside the current site[.]” 47 CFR § 1.6100(b)(7)(iv).

In other words, a proposed modification that entails any excavation or deployment outside the current site of a tower or base station is not eligible for section 6409(a)’s streamlined procedures

[a] modification substantially changes the physical dimensions of an eligible support structure if . . . [i]t entails any excavation or deployment outside the current site[.]” 47 CFR § 1.6100(b)(7)(iv).

In other words, a proposed modification that entails any excavation or deployment outside the current site of a tower or base station is not eligible for section 6409(a)’s streamlined procedures. Section 1.6100(b)(6) defines “site” for towers outside of the public rights-of-way as “the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site, and, for other eligible support structures, further restricted to that area in proximity to the structure and to other transmission equipment already deployed on the ground.” Id. § 1.6100(b)(6).

52. In its Petition for Declaratory Ruling, WIA requests that the Commission clarify that “current site,” for purposes of section 1.6100(b)(7)(iv), is the currently leased or owned compound area. WIA Petition for Decl. Ruling at 9-11.

Industry commenters argue that current “site” means the property leased or owned by the applicant at the time it submits an application to make a qualifying modification under section 6409(a). See, e.g., id. at 18; CTIA Comments at 11; AT&T Comments at 9; Crown Castle Comments at 18.

Industry commenters state that their proposed clarification merely affirms the plain meaning of the rule. AT&T Comments at 19; Crown Castle at 18; CTIA Comments at 11; WIA Comments at 11.

They assert that such clarification is needed because many local governments interpret section 1.6100(b)(6) as referring to the original site and wrongly claim that a modification is not entitled to section 6409(a) if it entails any deployment outside of those original boundaries. See AT&T Comments at 19; American Tower Comments at 19; Crown Castle Comments at 28.

1; WIA Comments at 11.

53. WIA’s Petition for Rulemaking also requests that the Commission amend its rules to establish that a modification would not cause a “substantial change” if it entails excavation or facility deployments at locations of up to 30 feet in any direction outside the boundaries of a macro tower compound. WIA Petition for Rulemaking at 3-11.

Industry commenters contend that it is often difficult to collocate transmission equipment on existing macro towers without expanding the compounds surrounding those towers in order to deploy additional equipment sheds or cabinets on the ground. ATC Comments at 5-8; Crown Castle Comments at 31-32; CTIA Comments at 15-16; WIA Comments at 7.

They argue that such deployments are becoming increasingly necessary to house multiple carriers’ facilities on towers built in the past to support the needs of a single carrier and to facilitate the extensive network densification needed for rapid 5G deployment. WIA Petition for Rulemaking at 7; ATC Comments at 7-8; AT&T Comments at 29; Crown Castle Comments at 31; CTIA Comments at 15-16; WIA Comments at 6-7; WISPA Comments at 8.

WIA states that this proposal is consistent with the Wireless Facilities Nationwide Programmatic Agreement, WIA Petition for Decl. Ruling at 10

to facilitate the extensive network densification needed for rapid 5G deployment. WIA Petition for Rulemaking at 7; ATC Comments at 7-8; AT&T Comments at 29; Crown Castle Comments at 31; CTIA Comments at 15-16; WIA Comments at 6-7; WISPA Comments at 8.

WIA states that this proposal is consistent with the Wireless Facilities Nationwide Programmatic Agreement, WIA Petition for Decl. Ruling at 10.

which excludes from section 106 historic preservation review “the construction of a replacement for any existing communications tower” that, inter alia, “does not expand the boundaries of the leased or owned property surrounding the tower by more than 30 feet in any direction or involve excavation outside these expanded boundaries or outside any existing access or utility easement related to the site.” Wireless Facilities Nationwide Programmatic Agreement at § III.B.

54. Local governments argue that the definition of “site” should not be interpreted to mean the applicant’s leased or owned property on the date it submits its eligible facilities request. NLC Comments at 10-12; NATOA Comments at 11-12.

They assert that this interpretation would permit providers to expand the boundaries of a site without review and approval by a local government by entering into leases that increase the area of a site after the locality’s initial review. NLC Comments at 10-12; NATOA Comments at 11-12.

NLC argues that it would lead to “extensive bypassing of local review for property uses not previously reviewed and approved to support wireless equipment.” NLC Comments at 10-12; see also NATOA Comments at 11.

Localities also generally oppose the compound expansion proposal because they argue that excavation of up to 30 feet beyond a tower’s current site cannot be considered insubstantial. San Diego Comments at 53; NLC Comments at 4-5, 10-12; NATOA Comments at 14-15

property uses not previously reviewed and approved to support wireless equipment.” NLC Comments at 10-12; see also NATOA Comments at 11.

Moreover, several cities argue that the Commission considered and rejected this proposal in the 2014 Infrastructure Order and that circumstances have not changed that would warrant a policy reversal. San Diego Comments at 49-53.

55. In light of the different approaches recommended by the industry and localities, we seek comment on whether we should revise our rules to resolve these issues and, if so, in what manner. In particular, we propose to revise the definition of “site” in section 1.6100(b)(6) to make clear that “site” refers to the boundary of the leased or owned property surrounding the tower and any access or utility easements currently related to the site as of the date that the facility was last reviewed and approved by a locality. We further propose to amend section 1.6100(b)(7)(iv) so that modification of an existing facility that entails ground excavation or deployment of up to 30 feet in any direction outside the facility’s site will be eligible for streamlined processing under section 6409(a).

56. Alternatively, we seek comment on whether we should revise the definition of site in section 1.6100(b)(6), as proposed above, without making the proposed change to section 1.6100(b)(7)(iv) for excavation or deployment of up to 30 feet outside the site. As another option, we seek comment on whether to define site in section 1.6100(b)(6) as the boundary of the leased or owned property surrounding the tower and any access or utility easements related to the site as of the date an applicant submits a modification request

e, without making the proposed change to section 1.6100(b)(7)(iv) for excavation or deployment of up to 30 feet outside the site. As another option, we seek comment on whether to define site in section 1.6100(b)(6) as the boundary of the leased or owned property surrounding the tower and any access or utility easements related to the site as of the date an applicant submits a modification request. Commenters should describe the costs and benefits of these approaches, as well as any other alternatives that they discuss in comments, and provide quantitative estimates as appropriate.

V. PROCEDURAL MATTERS

57. Comment Filing Procedures. Pursuant to sections 1.415 and 1.419 of the Commission’s rules, 47 CFR §§ 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission’s Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

· Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://apps.fcc.gov/ecfs/.

· Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing.

· Filings can be sent by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission’s Secretary, Office of the Secretary, Federal Communications Commission.

· Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701. U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW, Washington DC 20554.

· Effective March 19, 2020, and until further notice, the Commission no longer accepts any hand or messenger delivered filings

l overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701. U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW, Washington DC 20554.

· Effective March 19, 2020, and until further notice, the Commission no longer accepts any hand or messenger delivered filings. This is a temporary measure taken to help protect the health and safety of individuals, and to mitigate the transmission of COVID-19. See FCC Announces Closure of FCC Headquarters Open Window and Change in Hand-Delivery Policy, Public Notice, DA 20-304 (March 19, 2020). https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy.

· During the time the Commission’s building is closed to the general public and until further notice, if more than one docket or rulemaking number appears in the caption of a proceeding, paper filers need not submit two additional copies for each additional docket or rulemaking number; an original and one copy are sufficient.

58. People with Disabilities. To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

59. Ex Parte Rules—Permit-But-Disclose. This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission’s ex parte rules. 47 CFR § 1.1200 et seq.

Persons making ex parte presentations must file a copy of any writ

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