At its June 9 meeting, the FCC adopted a declaratory ruling that clarified: 1) the rules for modifications of wireless facilities that are not located on public rights of way and; 2) issued an NPRM seeking comment on how to treat modifications that would expand the boundaries of existing facilities.
The Declaratory Ruling. The Ruling clarified a number of issues that have generated controversy between wireless service providers and local governments.
A. The Shot Clock. Under the current rules, a local government must approve, within 60 days, requests for modifications of existing wireless facilities that do not substantially change the physical dimensions of such facilities. See, 47 CFR Sec 1.6100. Some localities have allegedly sought to delay the start of the 60 day period by, inter alia, treating the applications as incomplete until the applicants had met with staff of the relevant agencies, made presentations at hearings, and consulted neighborhood councils. The Ruling clarifies that the shot clock commences when: 1) the applicant takes the first procedural step required by the relevant jurisdiction, and 2) certifies that the proposed modification would not cause a substantial change to the existing structure. Should the required first step be outside the control of the applicant, for example if the applicant is required to meet with municipal or county staff, the FCC clarifies that a written request for such a meeting starts the shot clock. Should the required first step consist of multiple actions, for example, by requiring consultation with a historical preservation board as well as a citizens group, the filing of a request for a meeting with any of those groups will trigger the start of the shot clock, and the local government will be responsible for arranging the other required consultations.
B. Tower Height. The Ruling also clarifies how much the height of a tower may be increased without being deemed a “substantial change” within the meaning of the Sec. 6100. Under the new rule, an applicant can add a facility to the top of a tower with expedited review if it increases the height of the tower by no more than 10% or by the height of one additional array with separation from the nearest existing antenna not in excess of 20’. The Ruling would also clarify that the 20’ distance is to be measured from the top of the existing antenna to the bottom of the proposed antenna.
C. Equipment Cabinets. The Ruling also clarifies what is to be considered an “equipment cabinet.” Under 47 CFR Sec. 6100(b)(7)(iii), additions of up to 4 cabinets will not be considered a substantial change. Questions have come up as to whether small pieces of equipment are considered cabinets. The FCC clarifies that equipment such as remote radio heads, radio units, amplifiers, etc. are not to be treated as equipment cabinets. In addition, the maximum number of cabinets is to be measured by each modification request rather than as applied to the pole as a whole. In other words, more than 4 cabinets may be added to a pole provided they are backed up by separate requests.
D. Concealment Elements. A number of controversies have arisen as to how much concealment elements of a facility may be modified without being considered a substantial modification. Concealment elements are those that attempt to make the structure look like something other than a tower – such as making it look like a tree. Sec. 6100(b)(7)(v) of the Rules states that a modification request should be treated as substantial if “it would defeat the concealment elements of the eligible support structure.” The Commission clarifies that to be considered substantial, the concealment element must have been a part of the initial site approval and must “cause a reasonable person to view the structure’s intended stealth design as no longer effective after the modification.” Declaratory Ruling/NPRM at para.39. In other words, to be considered substantial, the modification would make it obvious that the facility was a wireless tower.
E. De Minimis Changes. The Ruling also clarifies that de minimis changes are not to be treated a substantial unless the elements sought to be changed were a part of the original siting approval.
The NPRM. Questions have arisen as to whether an applicant can excavate or construct a facility slightly outside the boundaries of an existing site – for instance to deploy additional equipment that cannot be contained within the footprint of the site as originally approved. 47 CFR Sec. 1.67100(b)(7)(iv) provides that a modification is to be considered substantial if “it entails any excavation or deployment outside the current site.” In view of the number of facilities that are currently being added to towers that were approved a long time ago, the Commission asks whether it would make sense to allow deployments of up to 30’ outside the existing site and whether the site should be considered that which exists on the date of the submission of the modification application or the date when the site was initially approved.
 Declaratory Ruling and Notice of Proposed Rulemaking, WT Docket No. 129, RM-11849 adopted June 9, 2020.