As stated in the Final Rule published in the Federal
Register on January 8, 2015, the “Federal Communications Commission
(Commission) adopts rules to update and tailor the manner in which it evaluates
the impact of proposed deployments of wireless infrastructure on the
environment and historic properties. The Commission also adopts rules to
clarify and implement statutory requirements applicable to State and local
governments in their review of wireless infrastructure siting applications, and
it adopts an exemption from its environmental public notification process for
towers that are in place for only short periods of time. Taken together, these
steps will reduce the cost and delays associated with facility siting and
construction, and thereby facilitate the delivery of more wireless capacity in
more locations to consumers throughout the United States.”
In regard to siting, the rules implement section 6409 of the Spectrum Act (codified at 47 U.S.C. 1455), which “requires a State or local government to approve any eligible facilities request for a modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station.” The rules define “base station” to include a structure or equipment at a fixed location that enables Commission-licensed or authorized wireless communications between user equipment and a communications network, and the term includes any structure other than a tower that, at the time the relevant application is filed with the State or local government, supports or houses wireless communications equipment that has been reviewed and approved under the applicable zoning or siting process, or under another State or local regulatory review process, even if the structure was not built for the sole or primary purpose of providing such support.
The rules define “substantially change” and reiterate that a State or local government may not deny and shall approve any eligible facilities request for modification of an eligible support structure that does not substantially change the physical dimensions of such structure. When an applicant asserts in writing that a request for modification is covered by the rule, 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 rule. 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.
Within 60 days of the date on which an applicant submits a request seeking approval under the rule, the State or local government shall approve the application unless it determines that the application is not covered by the rule. In the event the reviewing State or local government fails to approve or deny a request seeking approval under the rule within the timeframe for review (accounting for any tolling), the request shall be deemed granted. The deemed grant does not become effective until the applicant notifies the applicable reviewing authority in writing after the review period has expired (accounting for any tolling) that the application has been deemed granted.
Anthony A. Dorland
Moss & Barnett