Local, State Governments Get Concessions in Infrastructure Order
Local and state governments concerned about FCC compound expansion rules, approved 3-2 last week (see 2010270043), got concessions in the final version that was posted Tuesday. That's based on our comparison with the draft. The agency didn’t change the order to address concerns about the expansion's size relative to the tower site or about how big was the added 5G gear.
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The final order makes clear it covers deployment of “transmission equipment,” a term missing in the draft. Parts of the order, covering the arguments for the rules and what they will do, were rewritten after circulation and got significant change. It clarified rules implementing Section 6409(a) of the 2012 Spectrum Act.
The order improved because of changes pushed by Commissioner Brendan Carr, said telecom lawyer Gerard Lederer of Best Best. The FCC “clearly took” concerns raised “seriously,” he said. “We are troubled that where they chose not to address our concerns, the failure to do so could result in significant unrest by the neighbors of these wireless sites.”
“To imply that a 30-foot radius around an existing infrastructure is inconsequential shows a wild misunderstanding of the role that local governments play in infrastructure planning,” said National Association of Counties Associate Legislative Director Arthur Scott. “That radius could encompass infrastructure such as a house, a library, personal access points to private property or other critical infrastructure,” he said. “The FCC is giving the industry a 30-foot blank check.”
The Wireless Infrastructure Association is “proud to have taken the lead petitioning the FCC to streamline wireless infrastructure deployment and is very satisfied with how the FCC has improved the process in this important order,” emailed President Jonathan Adelstein. “These streamlined rules for collocation will enable more robust emergency communications to ensure public safety and will allow the U.S. to remain competitive in the race to 5G.”
The final order addresses complaints raised after the draft circulated. “NATOA and Local Governments express concern that the rule change with respect to compound expansion could be interpreted to permit the deployment of new towers within the expanded area, and they request that the Commission limit the permissible deployment within the expanded area to transmission equipment,” the order said: “We agree that the deployments referenced … are deployments of transmission equipment.”
NATOA and local governments proposed “the site boundary from which a compound expansion will be measured should exclude easements related to that site,” the order recalled. “We agree. The definition of ‘site’ in our current rules, for towers other than towers in the public rights-of-way, is ‘the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related.’” Locality groups asked the FCC to restrict the size of the transmission equipment deployed. “Given the limited types of transmission equipment deployed for collocations, such a restriction is not necessary,” the order said. In an August filing in docket 19-250, the Western Communities Coalition showed new edge equipment used for 5G can be the size of a shipping container.
The FCC turned down a request by NATOA and local governments to account for a tower site's size in considering boundaries rather than just measuring 30 feet. Lawyers active in the proceeding said that means a 10-foot-wide cellsite could be expanded 30 feet. “We decline to adopt this proposal because, on balance, the potential problems it could create outweigh the potential benefits it could achieve,” the order said. The draft said the order streamlines “the use of existing infrastructure to expedite wireless connectivity efforts nationwide,” changed in the final version to the “approval process for using existing infrastructure.”
The clarification that only “transmission equipment” will be allowed outside the tower site “is helpful, as is the exclusion of easements from the site from which the 30-feet zone can be measured,” said Nancy Werner, NATOA general counsel. “These changes will narrow the scope of work that can take place outside of approved tower sites without local review and approval,” she emailed: “We appreciate these improvements, but the order still reflects an unreasonable interpretation of Section 6409(a).” NATOA understands “the benefits of collocation on existing towers, which local governments have readily approved outside the Section 6409(a) process, but the FCC is in no position to declare that in all instances these off-site deployments are safe, appropriate and not substantial changes,” OK, she said.
Local government officials are considering whether to challenge the order, industry officials said. Petitions for reconsideration would be due within 30 days of publication, appeals within 60 days.