83 FR 51867 - Accelerating Wireless and Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment
FEDERAL COMMUNICATIONS COMMISSION Federal Register Volume 83, Issue 199 (October 15, 2018)
Federal Register Volume 83, Issue 199 (October 15, 2018)
| Page Range | 51867-51886 | |
| FR Document | 2018-22234 |
[Federal Register Volume 83, Number 199 (Monday, October 15, 2018)] [Rules and Regulations] [Pages 51867-51886] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-22234] ======================================================================= ----------------------------------------------------------------------- FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 1 [WT Docket No. 17-79, WC Docket No. 17-84; FCC 18-133] Accelerating Wireless and Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment AGENCY: Federal Communications Commission. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: In this document, the Federal Communications Commission (``Commission'' or ``FCC'') issues guidance and adopts rules to streamline the wireless infrastructure siting review process to facilitate the deployment of next-generation wireless facilities. Specifically, in the Declaratory Ruling, the Commission identifies specific fee levels for the deployment of Small Wireless Facilities, and it addresses state and local consideration of aesthetic concerns that effect the deployment of Small Wireless Facilities. In the Order, the Commission addresses the ``shot clocks'' governing the review of wireless infrastructure deployments and establishes two new shot clocks for Small Wireless Facilities. DATES: Effective January 14, 2019. FOR FURTHER INFORMATION CONTACT: Jiaming Shang, Deputy Chief (Acting) Competition and Infrastructure Policy Division, Wireless Telecommunications Bureau, (202) 418-1303, email Jiaming.shang@fcc.gov. SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Declaratory Ruling and Third Report and Order (Declaratory Ruling and Order), WT Docket No. 17-79 and WC Docket No. 17-84; FCC 18-133, adopted September 26, 2018 and released September 27, 2018. The full text of this document is available for inspection and copying during business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW, Room CY-A257, Washington, DC 20554. Also, it may be purchased from the Commission's duplicating contractor at [[Page 51868]] Portals II, 445 12th Street SW, Room CY-B402, Washington, DC 20554; the contractor's website, http://www.bcpiweb.com; or by calling (800) 378- 3160, facsimile (202) 488-5563, or email FCC@BCPIWEB.com. Copies of the Declaratory Ruling and Order also may be obtained via the Commission's Electronic Comment Filing System (ECFS) by entering the docket number WT Docket 17-79 and WC Docket No. 17-84. Additionally, the complete item is available on the Federal Communications Commission's website at http://www.fcc.gov. Synopsis I. Declaratory Ruling 1. In the Declaratory Ruling, the Commission notes that a number of appellate courts have articulated different and often conflicting views regarding the scope and nature of the limits Congress imposed on state and local governments through Sections 253 and 332. In light of these diverging views, Congress's vision for a consistent, national policy framework, and the need to ensure that the Commission's approach continues to make sense in light of the relatively new trend towards the large-scale deployment of Small Wireless Facilities, the Commission takes the opportunity to clarify and update the FCC's reading of the limits Congress imposed. The Commission does so in three main respects. 2. First, the Commission expresses its agreement with the views already stated by the First, Second, and Tenth Circuits that the ``materially inhibit'' standard articulated in 1997 by the Clinton-era FCC's California Payphone decision is the appropriate standard for determining whether a state or local law operates as a prohibition or effective prohibition within the meaning of Sections 253 and 332. 3. Second, the Commission notes, as numerous courts have recognized, that state and local fees and other charges associated with the deployment of wireless infrastructure can effectively prohibit the provision of service. At the same time, courts have articulated various approaches to determining the types of fees that run afoul of Congress's limits in Sections 253 and 332. The Commission thus clarifies the particular standard that governs the fees and charges that violate Sections 253 and 332 when it comes to the Small Wireless Facilities at issue in this decision. Namely, fees are only permitted to the extent that they represent a reasonable approximation of the local government's objectively reasonable costs and are non- discriminatory. In this section, the Commission also identifies specific fee levels for the deployment of Small Wireless Facilities that presumptively comply with this standard. The Commission does so to help avoid unnecessary litigation, while recognizing that it is the standard itself, not the particular, presumptive fee levels the Commission articulates, that ultimately will govern whether a particular fee is allowed under Sections 253 and 332. So, fees above those levels would be permissible under Sections 253 and 332 to the extent a locality's actual, reasonable costs (as measured by the standard above) are higher. 4. Finally, the Commission focuses on a subset of other, non-fee provisions of state and local law that could also operate as prohibitions on service. The Commission does so in particular by addressing state and local consideration of aesthetic concerns in the deployment of Small Wireless Facilities. The Commission notes that the Small Wireless Facilities that are the subject of this Declaratory Ruling remain subject to the Commission's rules governing Radio Frequency (RF) emissions exposure. A. Overview of the Section 253 and Section 332(c)(7) Framework Relevant to Small Wireless Facilities Deployment 5. As an initial matter, the Commission notes that its Declaratory Ruling applies with equal measure to the effective prohibition standard that appears in both Sections 253(a) and 332(c)(7). This ruling is consistent with the basic canon of statutory interpretation that identical words appearing in neighboring provisions of the same statute should be interpreted to have the same meaning. Moreover, both of these provisions apply to wireless telecommunications services as well as to commingled services and facilities. 6. As explained in California Payphone and reaffirmed here, a state or local legal requirement will have the effect of prohibiting wireless telecommunications services if it materially inhibits the provision of such services. California Payphone Ass'n, 12 FCC Rcd 14191 (1997). The Commission clarifies that an effective prohibition occurs where a state or local legal requirement materially inhibits a provider's ability to engage in any of a variety of activities related to its provision of a covered service. This test is met not only when filling a coverage gap but also when densifying a wireless network, introducing new services or otherwise improving service capabilities. Under the California Payphone standard, a state or local legal requirement could materially inhibit service in numerous ways--not only by rendering a service provider unable to provide an existing service in a new geographic area or by restricting the entry of a new provider in providing service in a particular area, but also by materially inhibiting the introduction of new services or the improvement of existing services. Thus, an effective prohibition includes materially inhibiting additional services or improving existing services. 7. The Commission's reading of Section 253(a) and Section 332(c)(7)(B)(i)(II) reflects and supports a marketplace in which services can be offered in a multitude of ways with varied capabilities and performance characteristics consistent with the policy goals in the 1996 Act and the Communications Act. To limit Sections 253(a) and 332(c)(7)(B)(i)(II) to protecting only against coverage gaps or the like would be to ignore Congress's contemporaneously-expressed goals of ``promot[ing] competition[,] . . . secur[ing] . . . higher quality services for American telecommunications consumers and encourage[ing] the rapid deployment of new telecommunications technologies.'' In addition, as the Commission recently explained, the implementation of the Act ``must factor in the fundamental objectives of the Act, including the deployment of a ``rapid, efficient . . . wire and radio communication service with adequate facilities at reasonable charges' and `the development and rapid deployment of new technologies, products and services for the benefit of the public . . . without administrative or judicial delays[, and] efficient and intensive use of the electromagnetic spectrum.' '' These provisions demonstrate that the Commission's interpretation of Section 253 and Section 332(c)(7)(B)(i)(II) is in accordance with the broader goals of the various statutes that the Commission is entrusted to administer. 8. California Payphone further concluded that providers must be allowed to compete in a ``fair and balanced regulatory environment.'' As reflected in decisions such as the Commission's Texas PUC Order, a state or local legal requirement can function as an effective prohibition either because of the resulting ``financial burden'' in an absolute sense, or, independently, because of a resulting competitive disparity. Public Utility Comm'n of Texas, et al., Pet. for Decl. Ruling and/or Preemption of Certain Provisions of the Texas Pub. Util. Reg. Act of 1995, 13 FCC Rcd 3460 (1997). The Commission clarifies that ``[a] [[Page 51869]] regulatory structure that gives an advantage to particular services or facilities has a prohibitory effect, even if there are no express barriers to entry in the state or local code; the greater the discriminatory effect, the more certain it is that entities providing service using the disfavored facilities will experience prohibition.'' This conclusion is consistent with both Commission and judicial precedent recognizing the prohibitory effect that results from a competitor being treated materially differently than similarly-situated providers. The Commission provides its authoritative interpretation below of the circumstances in which a ``financial burden,'' as described in the Texas PUC Order, constitutes an effective prohibition in the context of certain state and local fees. B. State and Local Fees 9. Cognizant of the changing technology and its interaction with regulations created for a previous generation of service, the Commission sought comment on the scope of Sections 253 and 332(c)(7) and on any new or updated guidance the Commission should provide, potentially through a Declaratory Ruling. In particular, the Commission sought comment on whether it should provide further guidance on how to interpret and apply the phrase ``prohibit or have the effect of prohibiting.'' 10. The Commission concludes that ROW access fees, and fees for the use of government property in the ROW, such as light poles, traffic lights, utility poles, and other similar property suitable for hosting Small Wireless Facilities, as well as application or review fees and similar fees imposed by a state or local government as part of their regulation of the deployment of Small Wireless Facilities inside and outside the ROW, violate Sections 253 or 332(c)(7) unless these conditions are met: (1) The fees are a reasonable approximation of the state or local government's costs, (2) only objectively reasonable costs are factored into those fees, and (3) the fees are no higher than the fees charged to similarly-situated competitors in similar situations. 11. Capital Expenditures. Apart from the text, structure, and legislative history of the 1996 Act, an additional, independent justification for the Commission's interpretation follows from the simple, logical premise, supported by the record, that state and local fees in one place of deployment necessarily have the effect of reducing the amount of capital that providers can use to deploy infrastructure elsewhere, whether the reduction takes place on a local, regional or national level. The Commission is persuaded that providers and infrastructure builders, like all economic actors, have a finite (though perhaps fluid) amount of resources to use for the deployment of infrastructure. This does not mean that these resources are limitless, however. The Commission concludes that fees imposed by localities, above and beyond the recovery of localities' reasonable costs, materially and improperly inhibit deployment that could have occurred elsewhere. This and regulatory uncertainty created by such effectively prohibitive conduct creates an appreciable impact on resources that materially limits plans to deploy service. This record evidence emphasizes the importance of evaluating the effect of fees on Small Wireless Facility deployment on an aggregate basis. The record persuades the Commission that fees associated with Small Wireless Facility deployment lead to ``a substantial increase in costs''-- particularly when considered in the aggregate--thereby ``plac[ing] a significant burden'' on carriers and materially inhibiting their provision of service contrary to Section 253 of the Act. 12. The record reveals that fees above a reasonable approximation of cost, even when they may not be perceived as excessive or likely to prohibit service in isolation, will have the effect of prohibiting wireless service when the aggregate effects are considered, particularly given the nature and volume of anticipated Small Wireless Facility deployment. The record reveals that these effects can take several forms. In some cases, the fees in a particular jurisdiction will lead to reduced or entirely forgone deployment of Small Wireless Facilities in the near term for that jurisdiction. In other cases, where it is essential for a provider to deploy in a given area, the fees charged in that geographic area can deprive providers of capital needed to deploy elsewhere, and lead to reduced or forgone near-term deployment of Small Wireless Facilities in other geographic areas. In both of those scenarios the bottom-line outcome on the national development of 5G networks is the same--diminished deployment of Small Wireless Facilities critical for wireless service and building out 5G networks. 13. Relationship to Section 332. The Commission clarifies that the statutory phrase ``prohibit or have the effect of prohibiting'' in Section 332(c)(7)(B)(i)(II) has the same meaning as the phrase ``prohibits or has the effect of prohibiting'' in Section 253(a). There is no evidence to suggest that Congress intended for virtually identical language to have different meanings in the two provisions. Instead, the Commission finds it more reasonable to conclude that the language in both sections should be interpreted to have the same meaning and to reflect the same standard, including with respect to preemption of fees that could ``prohibit'' or have ``the effect of prohibiting'' the provision of covered service. Both sections were enacted to address concerns about state and local government practices that undermined providers' ability to provide covered services, and both bar state or local conduct that prohibits or has the effect of prohibiting service. 14. To be sure, Sections 253 and 332(c)(7) may relate to different categories of state and local fees. Ultimately, the Commission needs not resolve here the precise interplay between Sections 253 and 332(c)(7). It is enough for it to conclude that, collectively, Congress intended for the two provisions to cover the universe of fees charged by state and local governments in connection with the deployment of telecommunications infrastructure. Given the analogous purposes of both sections and the consistent language used by Congress, the Commission finds the phrase ``prohibit or have the effect of prohibiting'' in Section 332(c)(7)(B)(i)(II) should be construed as having the same meaning and governed by the same preemption standard as the nearly identical language in Section 253(a). 15. Application of the Interpretations and Principles Established Here. Consistent with the interpretations above, the requirement that compensation be limited to a reasonable approximation of objectively reasonable costs and be non-discriminatory applies to all state and local government fees paid in connection with a provider's use of the ROW to deploy Small Wireless Facilities including, but not limited to, fees for access to the ROW itself, and fees for the attachment to or use of property within the ROW owned or controlled by the government (e.g., street lights, traffic lights, utility poles, and other infrastructure within the ROW suitable for the placement of Small Wireless Facilities). This interpretation applies with equal force to any fees reasonably related to the placement, construction, maintenance, repair, movement, modification, upgrade, replacement, or removal of Small Wireless Facilities within the ROW, including, but not limited to, application or permit fees such as siting applications, zoning variance applications, building permits, electrical [[Page 51870]] permits, parking permits, or excavation permits. 16. Applying the principles established in this Declaratory Ruling, a variety of fees not reasonably tethered to costs appear to violate Sections 253(a) or 332(c)(7) in the context of Small Wireless Facility deployments. For example, the Commission agrees with courts that have recognized that gross revenue fees generally are not based on the costs associated with an entity's use of the ROW, and where that is the case, are preempted under Section 253(a). In addition, although the Commission rejects calls to preclude a state or locality's use of third party contractors or consultants, or to find all associated compensation preempted, the Commission makes clear that the principles discussed herein regarding the reasonableness of cost remain applicable. Thus, fees must not only be limited to a reasonable approximation of costs, but in order to be reflected in fees the costs themselves must also be reasonable. Accordingly, any unreasonably high costs, such as excessive charges by third party contractors or consultants, may not be passed on through fees even though they are an actual ``cost'' to the government. If a locality opts to incur unreasonable costs, Sections 253 and 332(c)(7) do not permit it to pass those costs on to providers. Fees that depart from these principles are not saved by Section 253(c), as the Commission discusses below. 17. Interpretation of Section 253(c) in the Context of Fees. In this section, the Commission turns to the interpretation of several provisions in Section 253(c), which provides that state or local action that otherwise would be subject to preemption under Section 253(a) may be permissible if it meets specified criteria. Section 253(c) expressly provides that state or local governments may require telecommunications providers to pay ``fair and reasonable compensation'' for use of public ROWs but requires that the amounts of any such compensation be ``competitively neutral and nondiscriminatory'' and ``publicly disclosed.'' 18. The Commission interprets the ambiguous phrase ``fair and reasonable compensation,'' within the statutory framework it outlined for Section 253, to allow state or local governments to charge fees that recover a reasonable approximation of the state or local governments' actual and reasonable costs. The Commission concludes that an appropriate yardstick for ``fair and reasonable compensation,'' and therefore an indicator of whether a fee violates Section 253(c), is whether it recovers a reasonable approximation of a state or local government's objectively reasonable costs of, respectively, maintaining the ROW, maintaining a structure within the ROW, or processing an application or permit. 19. The existence of Section 253(c) makes clear that Congress anticipated that ``effective prohibitions'' could result from state or local government fees, and intended through that clause to provide protections in that respect, as discussed in greater detail herein. Against that backdrop, the Commission finds it unlikely that Congress would have left providers entirely at the mercy of effectively unconstrained requirements of state or local governments. The Commission's interpretation of Section 253(c), in fact, is consistent with the views of many municipal commenters, at least with respect to one-time permit or application fees, and the members of the BDAC Ad Hoc Committee on Rates and Fees who unanimously concurred that one-time fees for municipal applications and permits, such as an electrical inspection or a building permit, should be based on the cost to the government of processing that application. The Ad Hoc Committee noted that ``[the] cost-based fee structure [for one-time fees] unanimously approved by the committee accommodates the different siting related costs that different localities may incur to review, and process permit applications, while precluding excessive fees that impede deployment.'' The Commission finds that the same reasoning should apply to other state and local government fees such as ROW access fees or fees for the use of government property within the ROW. 20. The Commission recognizes that state and local governments incur a variety of direct and actual costs in connection with Small Wireless Facilities, such as the cost for staff to review the provider's siting application, costs associated with a provider's use of the ROW, and costs associated with maintaining the ROW itself or structures within the ROW to which Small Wireless Facilities are attached. The Commission also recognizes that direct and actual costs may vary by location, scope, and extent of providers' planned deployments, such that different localities will have different fees under the interpretation set forth in this Declaratory Ruling. 21. Because the Commission interprets fair and reasonable compensation as a reasonable approximation of costs, it does not suggest that localities must use any specific accounting method to document the costs they may incur when determining the fees they charge for Small Wireless Facilities within the ROW. Moreover, in order to simplify compliance, when a locality charges both types of recurring fees identified above (i.e., for access to the ROW and for use of or attachment to property in the ROW), the Commission sees no reason for concern with how it has allocated costs between those two types of fees. It is sufficient under the statute that the total of the two recurring fees reflects the total costs involved. Fees that cannot ultimately be shown by a state or locality to be a reasonable approximation of their costs, such as high fees designed to subsidize local government costs in another geographic area or accomplish some public policy objective beyond the providers' use of the ROW, are not ``fair and reasonable compensation . . . for use of the public rights- of-way'' under Section 253(c). Likewise, the Commission agrees with both industry and municipal commenters that excessive and arbitrary consulting fees or other costs should not be recoverable as ``fair and reasonable compensation,'' because they are not a function of the provider's ``use'' of the public ROW. 22. In addition to requiring that compensation be ``fair and reasonable,'' Section 253(c) requires that it be ``competitively neutral and nondiscriminatory.'' The Commission has previously interpreted this language to prohibit states and localities from charging fees on new entrants and not on incumbents. Courts have similarly found that states and localities may not impose a range of fees on one provider but not on another and even some municipal commenters acknowledge that governments should not discriminate on the fees charged to different providers. The record reflects continuing concerns from providers, however, that they face discriminatory charges. The Commission reiterates its previous determination that state and local governments may not impose fees on some providers that they do not impose on others. The Commission would also be concerned about fees, whether one-time or recurring, related to Small Wireless Facilities, that exceed the fees for other wireless telecommunications infrastructure in similar situations, and to the extent that different fees are charged for similar use of the public ROW. 23. Fee Levels Likely to Comply with Section 253. The Commission's interpretations of Section 253(a) and ``fair and reasonable compensation'' under Section 253(c) provides guidance for local and state fees charged with [[Page 51871]] respect to one-time fees generally, and recurring fees for deployments in the ROW. Following suggestions for the Commission to ``establish a presumptively reasonable `safe harbor' for certain ROW and use fees,'' and to facilitate the deployment of specific types of infrastructure critical to the rollout of 5G in coming years, the Commission identifies in this section three particular types of fee scenarios and supply specific guidance on amounts that are presumptively not prohibited by Section 253. Informed by the its review of information from a range of sources, the Commission concludes that fees at or below these amounts presumptively do not constitute an effective prohibition under Section 253(a) or Section 332(c)(7) and are presumed to be ``fair and reasonable compensation'' under Section 253(c). 24. Based on its review of the Commission's pole attachment rate formula, which would require fees below the levels described in this paragraph, as well as small cell legislation in twenty states, local legislation from certain municipalities in states that have not passed small cell legislation, and comments in the record, the Commission presumes that the following fees would not be prohibited by Section 253 or Section 332(c)(7): (a) $500 for non-recurring fees, including a single up-front application that includes up to five Small Wireless Facilities, with an additional $100 for each Small Wireless Facility beyond five, or $1,000 for non-recurring fees for a new pole (i.e., not a collocation) intended to support one or more Small Wireless Facilities, and (b) $270 per Small Wireless Facility per year for all recurring fees, including any possible ROW access fee or fee for attachment to municipally-owned structures in the ROW. 25. By presuming that fees at or below the levels above comply with Section 253, the Commission assumes that there would be almost no litigation by providers over fees set at or below these levels. Likewise, the Commission's review of the record, including the many state small cell bills passed to date, indicate that there should be only very limited circumstances in which localities can charge higher fees consistent with the requirements of Section 253. In those limited circumstances, a locality could prevail in charging fees that are above this level by showing that such fees nonetheless comply with the limits imposed by Section 253--that is, that they are (1) a reasonable approximation of costs, (2) those costs themselves are reasonable, and (3) are non-discriminatory. Allowing localities to charge fees above these levels upon this showing recognizes local variances in costs. C. Other State and Local Requirements That Govern Small Facilities Deployment 26. There are also other types of state and local land-use or zoning requirements that may restrict Small Wireless Facility deployments to the degree that they have the effect of prohibiting service in violation of Sections 253 and 332. In this section, the Commission discusses how those statutory provisions apply to requirements outside the fee context both generally, and with particular focus on aesthetic and undergrounding requirements. 27. As discussed above, a state or local legal requirement constitutes an effective prohibition if it ``materially limits or inhibits the ability of any competitor or potential competitor to compete in a fair and balanced legal and regulatory environment.'' The Commission's interpretation of that standard, as set forth above, applies equally to fees and to non-fee legal requirements. And as with fees, Section 253 contains certain safe harbors that permit some legal requirements that might otherwise be preempted by Section 253(a). Section 253(b) saves ``requirements necessary to preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers. And Section 253(c) preserves state and local authority to manage the public rights-of-way. 28. Given the wide variety of possible legal requirements, the Commission does not attempt here to determine which of every possible non-fee legal requirements are preempted for having the effect of prohibiting service, although the Commission's discussion of fees above should prove instructive in evaluating specific requirements. Instead, the Commission focuses on some specific types of requirements raised in the record and provide guidance on when those particular types of requirements are preempted by the statute. 29. Aesthetics. The Commission sought comment on whether deployment restrictions based on aesthetic or similar factors are widespread and, if so, how Sections 253 and 332(c)(7) should be applied to them. The Commission provides guidance on whether and in what circumstances aesthetic requirements violate the Act. This will help localities develop and implement lawful rules, enable providers to comply with these requirements, and facilitate the resolution of disputes. The Commission concludes that aesthetics requirements are not preempted if they are (1) reasonable, (2) no more burdensome than those applied to other types of infrastructure deployments, and (3) objective and published in advance. 30. Like fees, compliance with aesthetic requirements imposes costs on providers, and the impact on their ability to provide service is just the same as the impact of fees. The Commission therefore draws on its analysis of fees to address aesthetic requirements. The Commission explained above that fees that merely require providers to bear the direct and reasonable costs that their deployments impose on states and localities should not be viewed as having the effect of prohibiting service and are permissible. Analogously, aesthetic requirements that are reasonable in that they are technically feasible and reasonably directed to avoiding or remedying the intangible public harm of unsightly or out-of-character deployments are also permissible. In assessing whether this standard has been met, aesthetic requirements that are more burdensome than those the state or locality applies to similar infrastructure deployments are not permissible, because such discriminatory application evidences that the requirements are not, in fact, reasonable and directed at remedying the impact of the wireless infrastructure deployment. For example, a minimum spacing requirement that has the effect of materially inhibiting wireless service would be considered an effective prohibition of service. 31. Finally, in order to establish that they are reasonable and reasonably directed to avoiding aesthetic harms, aesthetic requirements must be objective--i.e., they must incorporate clearly-defined and ascertainable standards, applied in a principled manner--and must be published in advance. ``Secret'' rules that require applicants to guess at what types of deployments will pass aesthetic muster substantially increase providers' costs without providing any public benefit or addressing any public harm. Providers cannot design or implement rational plans for deploying Small Wireless Facilities if they cannot predict in advance what aesthetic requirements they will be obligated to satisfy to obtain permission to deploy a facility at any given site. 32. The Commission appreciates that at least some localities will require some time to establish and publish aesthetics [[Page 51872]] standards that are consistent with this Declaratory Ruling. Based on its review and evaluation of commenters' concerns, the Commission anticipates that such publication should take no longer than 180 days after publication of this decision in the Federal Register. 33. Undergrounding requirements. The Commission understands that some local jurisdictions have adopted undergrounding provisions that require infrastructure to be deployed below ground based, at least in some circumstances, on the locality's aesthetic concerns. A number of providers have complained that these types of requirements amount to an effective prohibition. In addressing this issue, the Commission first reiterates that while undergrounding requirements may well be permissible under state law as a general matter, any local authority to impose undergrounding requirements under state law does not remove the imposition of such undergrounding requirements from the provisions of Section 253. In this sense, the Commission notes that a requirement that all wireless facilities be deployed underground would amount to an effective prohibition given the propagation characteristics of wireless signals. Thus, undergrounding requirements can amount to effective prohibitions by materially inhibiting the deployment of wireless service. 34. Minimum spacing requirements. Some parties complain of municipal requirements regarding the spacing of wireless installations--i.e., mandating that facilities be sited at least 100, 500, or 1,000 feet, or some other minimum distance, away from other facilities, ostensibly to avoid excessive overhead ``clutter'' that would be visible from public areas. The Commission acknowledges that while some such requirements may violate 253(a), others may be reasonable aesthetic requirements. For example, under the principle that any such requirements be reasonable and publicly available in advance, it is difficult to envision any circumstances in which a municipality could reasonably promulgate a new minimum spacing requirement that, in effect, prevents a provider from replacing its preexisting facilities or collocating new equipment on a structure already in use. Such a rule change with retroactive effect would almost certainly have the effect of prohibiting service under the standards the Commission articulate here. Therefore, such requirements should be evaluated under the same standards as other aesthetic requirements. D. States and Localities Act in Their Regulatory Capacities When Authorizing and Setting Terms for Wireless Infrastructure Deployment in Public Rights of Way 35. The Commission confirms that it interpretations today extend to state and local governments' terms for access to public ROW that they own or control, including areas on, below, or above public roadways, highways, streets, sidewalks, or similar property, as well as their terms for use of or attachment to government-owned property within such ROW, such as light poles, traffic lights, and similar property suitable for hosting Small Wireless Facilities. As explained below, for two alternative and independent reasons, the Commission disagrees with state and local government commenters who assert that, in providing or denying access to government-owned structures, these governmental entities function solely as ``market participants'' whose rights cannot be subject to federal preemption under Section 253(a) or Section 332(c)(7). 36. First, this effort to differentiate between such governmental entities' ``regulatory'' and ``proprietary'' capacities in order to insulate the latter from preemption ignores a fundamental feature of the market participant doctrine. Specifically, Section 253(a) expressly preempts certain state and local ``legal requirements'' and makes no distinction between a state or locality's regulatory and proprietary conduct. Indeed, as the Commission has long recognized, Section 253(a)'s sweeping reference to ``state [and] local statute[s] [and] regulation[s]'' and ``other State [and] local legal requirement[s]'' demonstrates Congress's intent ``to capture a broad range of state and local actions that prohibit or have the effect of prohibiting entities from providing telecommunications services.'' Section 253(b) mentions ``requirement[s],'' a phrase that is even broader than that used in Section 253(a) but covers ``universal service,'' ``public safety and welfare,'' ``continued quality of telecommunications,'' and ``safeguard[s for the] rights of consumers.'' The subsection does not recognize a distinction between regulatory and proprietary. Section 253(c), which expressly insulates from preemption certain state and local government activities, refers in relevant part to ``manag[ing] the public rights-of-way'' and ``requir[ing] fair and reasonable compensation,'' while eliding any distinction between regulatory and proprietary action in either context. The Commission has previously observed that Section 253(c) ``makes explicit a local government's continuing authority to issue construction permits regulating how and when construction is conducted on roads and other public rights-of- way;'' the Commission concludes here that, as a general matter, ``manage[ment]'' of the ROW includes any conduct that bears on access to and use of those ROW, notwithstanding any attempts to characterize such conduct as proprietary. This reading, coupled with Section 253(c)'s narrow scope, suggests that Congress's omission of a blanket proprietary exception to preemption was intentional and thus that such conduct can be preempted under Section 253(a). The Commission therefore construes Section 253(c)'s requirements, including the requirement that compensation be ``fair and reasonable,'' as applying equally to charges imposed via contracts and other arrangements between a state or local government and a party engaged in wireless facility deployment. This interpretation is consistent with Section 253(a)'s reference to ``State or local legal requirement[s],'' which the Commission has consistently construed to include such agreements. In light of the foregoing, whatever the force of the market participant doctrine in other contexts, the Commission believes the language, legislative history, and purpose of Sections 253(a) and (c) are incompatible with the application of this doctrine in this context. The Commission observes once more that ``[o]ur conclusion that Congress intended this language to be interpreted broadly is reinforced by the scope of section 253(d),'' which ``directs the Commission to preempt any statute, regulation, or legal requirement permitted or imposed by a state or local government if it contravenes sections 253(a) or (b). A more restrictive interpretation of the term `other legal requirements' easily could permit state and local restrictions on competition to escape preemption based solely on the way in which [State] action [is] structured. The Commission does not believe that Congress intended this result.'' 37. Similarly, the Commission interprets Section 332(c)(7)(B)(ii)'s references to ``any request[s] for authorization to place, construct, or modify personal wireless service facilities'' broadly, consistent with Congressional intent. As described below, the Commission finds that ``any'' is unqualifiedly broad, and that ``request'' encompasses anything required to secure all authorizations necessary for the deployment of [[Page 51873]] personal wireless services infrastructure. In particular, the Commission finds that Section 332(c)(7) includes authorizations relating to access to a ROW, including but not limited to the ``place[ment], construct[ion], or modif[ication]'' of facilities on government-owned property, for the purpose of providing ``personal wireless service.'' The Commission observes that this result, too, is consistent with Commission precedent, which involved a contract that provided exclusive access to a ROW. As but one example, to have limited that holding to exclude government-owned property within the ROW even if the carrier needed access to that property would have the effect of diluting or completely defeating the purpose of Section 332(c)(7). 38. Second, and in the alternative, even if Section 253(a) and Section 332(c)(7) were to permit leeway for states and localities acting in their proprietary role, the examples in the record would be excepted because they involve states and localities fulfilling regulatory objectives. In the proprietary context, ``a State acts as a `market participant with no interest in setting policy.' '' The Commission contrasts state and local governments' purely proprietary actions with states and localities acting with respect to managing or controlling access to property within public ROW, or to decisions about where facilities that will provide personal wireless service to the public may be sited. As several commenters point out, courts have recognized that states and localities ``hold the public streets and sidewalks in trust for the public'' and ``manage public ROW in their regulatory capacities.'' These decisions could be based on a number of regulatory objectives, such as aesthetics or public safety and welfare, some of which, as the Commission notes elsewhere, would fall within the preemption scheme envisioned by Congress. In these situations, the State or locality's role seems to be indistinguishable from its function and objectives as a regulator. To the extent that there is some distinction, the temptation to blend the two roles for purposes of insulating conduct from federal preemption cannot be underestimated in light of the overarching statutory objective that telecommunications service and personal wireless services be deployed without material impediments. 39. The Commission believes that Section 253(c) is properly construed to suggest that Congress did not intend to permit states and localities to rely on their ownership of property within a ROW as a pretext to advance regulatory objectives that prohibit or have the effect of prohibiting the provision of covered services, and thus that such conduct is preempted. The Commission's interpretations here are intended to facilitate the implementation of the scheme Congress intended and to provide greater regulatory certainty to states, municipalities, and regulated parties about what conduct is preempted under Section 253(a). Should factual questions arise about whether a state or locality is engaged in such behavior, Section 253(d) affords state and local governments and private parties an avenue for specific preemption challenges. E. Responses to Challenges to the Commission's Interpretive Authority and Other Arguments 40. The Commission rejects claims that it lacks authority to issue authoritative interpretations of Sections 253 and 332(c)(7) in this Declaratory Ruling. The Commission acts here pursuant to its broad authority to interpret key provisions of the Communications Act, consistent with the Commission's exercise of that interpretive authority in the past. In this instance, the Commission finds that issuing a Declaratory Ruling is necessary to remove what the record reveals is substantial uncertainty and to reduce the number and complexity of legal controversies regarding certain fee and non-fee state and local legal requirements in connection with Small Wireless Facility infrastructure. The Commission thus exercise its authority in this Declaratory Ruling to interpret Section 253 and Section 332(c)(7) and explain how those provisions apply in the specific scenarios at issue here. 41. Nothing in Sections 253 or 332(c)(7) purports to limit the exercise of the Commission's general interpretive authority. Congress's inclusion of preemption provisions in Section 253(d) and Section 332(c)(7)(B)(v) does not limit the Commission's ability pursuant to other sections of the Act to construe and provide its authoritative interpretation as to the meaning of those provisions. Any preemption under Section 253 and/or Section 332(c)(7)(B) that subsequently occurs will proceed in accordance with the enforcement mechanisms available in each context. But whatever enforcement mechanisms may be available to preempt specific state and local requirements, nothing in Section 253 or Section 332(c)(7) prevents the Commission from declaring that a category of state or local laws is inconsistent with Section 253(a) or Section 332(c)(7)(B)(i)(II) because it prohibits or has the effect of prohibiting the relevant covered service. 42. The Commission's interpretations of Sections 253 and Section 332(c)(7) are likewise not at odds with the Tenth Amendment and constitutional precedent, as some commenters contend. In particular, the Commission's interpretations do not directly ``compel the states to administer federal regulatory programs or pass legislation.'' The outcome of violations of Section 253(a) or Section 332(c)(7)(B) of the Act are no more than a consequence of ``the limits Congress already imposed on State and local governments'' through its enactment of Section 332(c)(7). 43. The Commission also reject the suggestion that the limits Section 253 places on state and local rights-of-way fees and management will unconstitutionally interfere with the relationship between a state and its political subdivisions. As relevant to its interpretations here, it is not clear, at first blush, that such concerns would be implicated. Because state and local legal requirements can be written and structured in myriad ways, and challenges to such state or local activities could be framed in broad or narrow terms, the Commission declines to resolve such questions here, divorced from any specific context. II. Third Report and Order 44. In this Third Report and Order, the Commission addresses the application of shot clocks to state and local review of wireless infrastructure deployments. The Commission does so by taking action in three main areas. First, the Commission adopts a new set of shot clocks tailored to support the deployment Small Wireless Facilities. Second, the Commission adopts a specific remedy that applies to violations of these new Small Wireless Facility shot clocks, which the Commission expects will operate to significantly reduce the need for litigation over missed shot clocks. Third, the Commission clarifies a number of issues that are relevant to all of the FCC's shot clocks, including the types of authorizations subject to these time periods. A. New Shot Clocks for Small Wireless Facility Deployments 45. In 2009, the Commission concluded that it should use shot clocks to define a presumptive ``reasonable period of time'' beyond which state or local inaction on wireless infrastructure siting applications would constitute a ``failure to act'' within the meaning of [[Page 51874]] Section 332. The Commission adopted a 90-day clock for reviewing collocation applications and a 150-day clock for reviewing siting applications other than collocations. The record here suggests that the two existing Section 332 shot clocks have increased the efficiency of deploying wireless infrastructure. Many localities already process wireless siting applications in less time than required by those shot clocks and a number of states have enacted laws requiring that collocation applications be processed in 60 days or less. Some siting agencies acknowledge that they have worked to gain efficiencies in processing siting applications and welcome the addition of new shot clocks tailored to the deployment of small scale facilities. Given siting agencies' increased experience with existing shot clocks, the greater need for rapid siting of Small Wireless Facilities nationwide, and the lower burden siting of these facilities places on siting agencies in many cases, the Commission takes this opportunity to update its approach to speed the deployment of Small Wireless Facilities. 1. Two New Section 332 Shot Clocks for Deployment of Small Wireless Facilities 46. In this section, the Commission adopts two new Section 332 shot clocks for Small Wireless Facilities--60 days for review of an application for collocation of Small Wireless Facilities using a preexisting structure and 90 days for review of an application for attachment of Small Wireless Facilities using a new structure. These new Section 332 shot clocks carefully balance the well-established authority that states and local authorities have over review of wireless siting applications with the requirements of Section 332(c)(7)(ii) to exercise that authority ``within a reasonable period of time . . . taking into account the nature and scope of the request.'' Further, the Commission's decision is consistent with the BDAC's Model Code for Municipalities' recommended timeframes, which utilize this same 60-day and 90-day framework for collocation of Small Wireless Facilities and new structures and are similar to shot clocks enacted in state level small cell bills and the real world experience of many municipalities which further supports the reasonableness of its approach. The Commission's actions will modernize the framework for wireless facility siting by taking into consideration that states and localities should be able to address the siting of Small Wireless Facilities in a more expedited review period than needed for larger facilities. 47. The Commission finds compelling reasons to establish a new presumptively reasonable Section 332 shot clock of 60 days for collocations of Small Wireless Facilities on existing structures. The record demonstrates the need for, and reasonableness of, expediting the siting review of these collocations. Notwithstanding the implementation of the current shot clocks, more streamlined procedures are both reasonable and necessary to provide greater predictability for siting applications nationwide for the deployment of Small Wireless Facilities. The two current Section 332 shot clocks do not reflect the evolution of the application review process and evidence that localities can complete reviews more quickly than was the case when the existing Section 332 shot clocks were adopted nine years ago. Since 2009, localities have gained significant experience processing wireless siting applications. Indeed, many localities already process wireless siting applications in less than the required time and several jurisdictions require by law that collocation applications be processed in 60 days or less. With the passage of time, siting agencies have become more efficient in processing siting applications. These facts demonstrate that a shorter, 60-day shot clock for processing collocation applications for Small Wireless Facilities is reasonable. 48. As the Commission found in 2009, collocation applications are generally easier to process than new construction because the community impact is likely to be smaller. In particular, the addition of an antenna to an existing tower or other structure is unlikely to have a significant visual impact on the community. The size of Small Wireless Facilities poses little or no risk of adverse effects on the environment or historic preservation. Indeed, many jurisdictions do not require public hearings for approval of such attachments, underscoring their belief that such attachments do not implicate complex issues requiring a more searching review. 49. Further, the Commission finds no reason to believe that applying a 60-day time frame for Small Wireless Facility collocations under Section 332 creates confusion with collocations that fall within the scope of ``eligible facilities requests'' under Section 6409 of the Spectrum Act, which are also subject to a 60-day review. The type of facilities at issue here are distinctly different and the definition of a Small Wireless Facility is clear. Further, siting authorities are required to process Section 6409 applications involving the swap out of certain equipment in 60 days, and the Commission sees no meaningful difference in processing these applications than processing Section 332 collocation applications in 60 days. There is no reason to apply different time periods (60 vs. 90 days) to what is essentially the same review: Modification of an existing structure to accommodate new equipment. Finally, adopting a 60-day shot clock will encourage service providers to collocate rather than opting to build new siting structures which has numerous advantages. 50. For similar reasons, the Commission also finds it reasonable to establish a new 90-day Section 332 shot clock for new construction of Small Wireless Facilities. Ninety days is a presumptively reasonable period of time for localities to review such siting applications. Small Wireless Facilities have far less visual and other impact than the facilities the Commission considered in 2009 and should accordingly require less time to review. Indeed, some state and local governments have already adopted 60-day maximum reasonable periods of time for review of all small cell siting applications, and, even in the absence of such maximum requirements, several are already reviewing and approving small-cell siting applications within 60 days or less after filing. Numerous industry commenters advocated a 90-day shot clock for all non-collocation deployments. Based on this record, the Commission finds review of an application to deploy a Small Wireless Facility using a new structure warrants more review time than a mere collocation, but less than the construction of a macro tower. For the reasons explained below, the Commission also specifies today a provision that will initially reset these two new shot clocks in the event that a locality receives a materially incomplete application. 2. Batched Applications for Small Wireless Facilities 51. Given the way in which Small Wireless Facilities are likely to be deployed, in large numbers as part of a system meant to cover a particular area, the Commission anticipates that some applicants will submit ``batched'' applications: Multiple separate applications filed at the same time, each for one or more sites or a single application covering multiple sites. The Commission sought comment on whether batched applications should be subject to either longer or shorter shot clocks than would apply if each component of the batch were submitted [[Page 51875]] separately. The Commission sees no reason why the shot clocks for batched applications to deploy Small Wireless Facilities should be longer than those that apply to individual applications because, in many cases, the batching of such applications has advantages in terms of administrative efficiency that could actually make review easier. The Commission's decision flows from its current Section 332 shot clock policy. Under the two existing Section 332 shot clocks, if an applicant files multiple siting applications on the same day for the same type of facilities, each application is subject to the same number of review days by the siting agency. These multiple siting applications are equivalent to a batched application and therefore the shot clocks for batching should follow the same rules as if the applications were filed separately. Accordingly, when applications to deploy Small Wireless Facilities are filed in batches, the shot clock that applies to the batch is the same one that would apply had the applicant submitted individual applications. Should an applicant file a single application for a batch that includes both collocated and new construction of Small Wireless Facilities, the longer 90-day shot clock will apply, to ensure that the siting authority has adequate time to review the new construction sites. 52. The Commission recognizes the concerns raised by parties arguing for a longer time period for at least some batched applications but concludes that a separate rule is not necessary to address these concerns. Under the Commission's approach, in extraordinary cases, a siting authority, as discussed below, can rebut the presumption of reasonableness of the applicable shot clock period where a batch application causes legitimate overload on the siting authority's resources. Thus, contrary to some localities' arguments, the Commission's approach provides for a certain degree of flexibility to account for exceptional circumstances. In addition, consistent with, and for the same reasons as the Commission's conclusion below that Section 332 does not permit states and localities to prohibit applicants from requesting multiple types of approvals simultaneously, the Commission finds that Section 332(c)(7)(B)(ii) similarly does not allow states and localities to refuse to accept batches of applications to deploy Small Wireless Facilities. B. New Remedy for Violations of the Small Wireless Facilities Shot Clocks 53. In adopting these new shot clocks for Small Wireless Facility applications, the Commission also provides an additional remedy that it expects will substantially reduce the likelihood that applicants will need to pursue additional and costly relief in court at the expiration of those time periods. 54. The Commission determines that the failure of a state or local government to issue a decision on a Small Wireless Facility siting application within the presumptively reasonable time periods above will constitute a ``failure to act'' within the meaning of Section 332(c)(7)(B)(v). Therefore, a provider is, at a minimum, entitled to the same process and remedies available for a failure to act within the new Small Wireless Facility shot clocks as they have been under the FCC's 2009 shot clocks. But the Commission also adds an additional remedy for the new Small Wireless Facility shot clocks. 55. State or local inaction by the end of the Small Wireless Facility shot clock will function not only as a Section 332(c)(7)(B)(v) failure to act but also amount to a presumptive prohibition on the provision of personal wireless services within the meaning of Section 332(c)(7)(B)(i)(II). Accordingly, the Commission would expect the state or local government to issue all necessary permits without further delay. In cases where such action is not taken, the Commission assumes, for the reasons discussed below, that the applicant would have a straightforward case for obtaining expedited relief in court. 56. As discussed in the Declaratory Ruling, a regulation under Section 332(c)(7)(B)(i)(II) constitutes an effective prohibition if it materially limits or inhibits the ability of any competitor or potential competitor to compete in a fair and balanced legal and regulatory environment. Missing shot clock deadlines would thus presumptively have the effect of unlawfully prohibiting service in that such failure to act can be expected to materially limit or inhibit the introduction of new services or the improvement of existing services. Thus, when a siting authority misses the applicable shot clock deadline, the applicant may commence suit in a court of competent jurisdiction alleging a violation of Section 332(c)(7)(B)(i)(II), in addition to a violation of Section 332(c)(7)(B)(ii), as discussed above. The siting authority then will have an opportunity to rebut the presumption of effective prohibition by demonstrating that the failure to act was reasonable under the circumstances and, therefore, did not materially limit or inhibit the applicant from introducing new services or improving existing services. 57. Given the seriousness of failure to act within a reasonable period of time, the Commission expects, as noted above, siting authorities to issue without any further delay all necessary authorizations when notified by the applicant that they have missed the shot clock deadline, absent extraordinary circumstances. Where the siting authority nevertheless fails to issue all necessary authorizations and litigation is commenced based on violations of Sections 332(c)(7)(B)(i)(II) and/or 332(c)(7)(B)(ii), the Commission expects that applicants and other aggrieved parties will likely pursue equitable judicial remedies. Given the relatively low burden on state and local authorities of simply acting--one way or the other--within the Small Wireless Facility shot clocks, the Commission thinks that applicants would have a relatively low hurdle to clear in establishing a right to expedited judicial relief. 58. The Commission expects that courts will typically find expedited and permanent injunctive relief warranted for violations of Sections 332(c)(7)(B)(i)(II) and 332(c)(7)(B)(ii) of the Act when addressing the circumstances discussed in this Order. The Commission believes that this approach is sensible because guarding against barriers to the deployment of personal wireless facilities not only advances the goal of Section 332(c)(7)(B) but also policies set out elsewhere in the Communications Act and 1996 Act, as the Commission recently has recognized in the case of Small Wireless Facilities. This is so whether or not these barriers stem from bad faith. Nor does the Commission anticipate that there would be unresolved issues implicating the siting authority's expertise and therefore requiring remand in most instances. 59. The guidance provided here should reduce the need for, and complexity of, case-by-case litigation and reduce the likelihood of vastly different timing across various jurisdictions for the same type of deployment. This clarification, along with the other actions the Commission takes in this Third Report and Order, should streamline the courts' decision-making process and reduce the possibility of inconsistent rulings. Consequently, the Commission believes that its approach helps facilitate courts' ability to ``hear and decide such [lawsuits] on an expedited basis,'' as the statute requires. 60. The Commission's updated interpretation of Section 332(c)(7) for Small Wireless Facilities effectively balances the interest of wireless service providers to have siting applications granted in a timely and streamlined manner and the interest of localities to [[Page 51876]] protect public safety and welfare and preserve their authority over the permitting process. The Commission's specialized deployment categories, in conjunction with the acknowledgement that in rare instances, it may legitimately take longer to act, recognize that the siting process is complex and handled in many different ways under various states' and localities' long-established codes. Further, the Commission's approach tempers localities' concerns about the inflexibility of a deemed granted proposal because the new remedy the Commission adopts here accounts for the breadth of potentially unforeseen circumstances that individual localities may face and the possibility that additional review time may be needed in truly exceptional circumstances. The Commission further finds that its interpretive framework will not be unduly burdensome on localities because a number of states have already adopted even more stringent deemed granted remedies C. Clarification of Issues Related to All Section 332 Shot Clocks 1. Authorizations Subject to the ``Reasonable Period of Time'' Provision of Section 332(c)(7)(B)(ii) 61. Section 332(c)(7)(B)(ii) requires state and local governments to act ``within a reasonable period of time'' on ``any request for authorization to place, construct, or modify personal wireless service facilities.'' The Commission has not addressed the specific types of authorizations subject to this requirement. After carefully considering these arguments, the Commission finds that ``any request for authorization to place, construct, or modify personal wireless service facilities'' under Section 332(c)(7)(B)(ii) means all authorizations necessary for the deployment of personal wireless services infrastructure. This interpretation finds support in the record and is consistent with the courts' interpretation of this provision and the text and purpose of the Act. 62. The Commission's interpretation remains faithful to the purpose of Section 332(c)(7) to balance Congress's competing desires to preserve the traditional role of state and local governments in regulating land use and zoning, while encouraging the rapid development of new telecommunications technologies. Under the Commission's interpretation, states and localities retain their authority over personal wireless facilities deployment. At the same time, deployment will be kept on track by ensuring that the entire approval process necessary for deployment is completed within a reasonable period of time, as defined by the shot clocks addressed in this Third Report and Order. 2. Codification of Section 332 Shot Clocks 63. In addition to establishing two new Section 332 shot clocks for Small Wireless Facilities, the Commission takes this opportunity to codify its two existing Section 332 shot clocks for siting applications that do not involve Small Wireless Facilities. In 2009 the Commission found that 90 days is a reasonable time frame for processing collocation applications and 150 days is a reasonable time frame to process applications other than collocations. Since these Section 332 shot clocks were adopted as part of a declaratory ruling, they were not codified in the Commission's rules. The Commission sought comment on whether to modify these shot clocks. The Commission finds no need to modify them here and will continue to use these shot clocks for processing Section 332 siting applications that do not involve Small Wireless Facilities. The Commission does, though, codify these two existing shot clocks in its rules alongside the two newly-adopted shot clocks so that all interested parties can readily find the shot clock requirements in one place. 3. Collocations on Structures Not Previously Zoned for Wireless Use 64. The Commission takes this opportunity to clarify that for purposes of the Section 332 shot clocks, attachment of facilities to existing structures constitutes collocation, regardless of whether the structure or the location has previously been zoned for wireless facilities. As the Commission stated in 2009, ``an application is a request for collocation if it does not involve a `substantial increase in the size of a tower' as defined in the Nationwide Programmatic Agreement (NPA) for the Collocation of Wireless Antennas.'' The definition of ``[c]ollocation'' in the NPA provides for the ``mounting or installation of an antenna on an existing tower, building or structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes, whether or not there is an existing antenna on the structure.'' The NPA's definition of collocation explicitly encompasses collocations on structures and buildings that have not yet been zoned for wireless use. To interpret the NPA any other way would be unduly narrow and there is no persuasive reason to accept a narrower interpretation. This is particularly true given that the NPA definition of collocation stands in direct contrast with the definition of collocation in the Spectrum Act, pursuant to which facilities only fall within the scope of an ``eligible facilities request'' if they are attached to towers or base stations that have already been zoned for wireless use. 4. When Shot Clocks Start and Incomplete Applications 65. In 2014 the Commission clarified that a shot clock begins to run when an application is first submitted, not when the application is deemed complete. The clock can be paused, however, if the locality notifies the applicant within 30 days that the application is incomplete. The locality may pause the clock again if it provides written notice within 10 days that the supplemental submission did not provide the information identified in the original notice delineating missing information. The Commission sought comment on these determinations. 66. Based on the record, the Commission finds no cause to alter the Commission's prior determinations and now codifies them in its rules. Codified rules, easily accessible to applicants and localities alike, should provide helpful clarity. The complaints by states and localities about the sufficiency of some of the applications they receive are adequately addressed by the Commission's current policy, which preserves the states' and localities' ability to pause review when they find an application to be incomplete. The Commission does not find it necessary at this point to shorten the 30-day initial review period for completeness because, as was the case when this review period was adopted in the 2009, it remains consistent with review periods for completeness under existing state wireless infrastructure deployment statutes and still ``gives State and local governments sufficient time for reviewing applications for completeness, while protecting applicants from a last minute decision that an application should be denied as incomplete.'' 67. However, for applications to deploy Small Wireless Facilities, the Commission implements a modified tolling system designed to help ensure that providers are submitting complete applications on day one. This step accounts for the fact that the shot clocks applicable to such applications are shorter than those established in 2009 and, because of which, there may instances where the prevailing tolling [[Page 51877]] rules would further shorten the shot clocks to such an extent that it might be impossible for siting authorities to act on the application. For Small Wireless Facilities applications, the siting authority has 10 days from the submission of the application to determine whether the application is incomplete. The shot clock then resets once the applicant submits the supplemental information requested by the siting authority. Thus, for example, for an application to collocate Small Wireless Facilities, once the applicant submits the supplemental information in response to a siting authority's timely request, the shot clock resets, effectively giving the siting authority an additional 60 days to act on the Small Wireless Facilities collocation application. For subsequent determinations of incompleteness, the tolling rules that apply to non-Small Wireless Facilities would apply-- that is, the shot clock would toll if the siting authority provides written notice within 10 days that the supplemental submission did not provide the information identified in the original notice delineating missing information. 68. As noted above, multiple authorizations may be required before a deployment is allowed to move forward. For instance, a locality may require a zoning permit, a building permit, an electrical permit, a road closure permit, and an architectural or engineering permit for an applicant to place, construct, or modify its proposed personal wireless service facilities. All of these permits are subject to Section 332's requirement to act within a reasonable period of time, and thus all are subject to the shot clocks the Commission adopts or codifies here. 69. The Commission also finds that mandatory pre-application procedures and requirements do not toll the shot clocks. The Commission concludes that the ability to toll a shot clock when an application is found incomplete or by mutual agreement by the applicant and the siting authority should be adequate to address these concerns. Much like a requirement to file applications one after another, requiring pre- application review would allow for a complete circumvention of the shot clocks by significantly delaying their start date. An application is not ruled on within ``a reasonable period of time after the request is duly filed'' if the state or locality takes the full ordinary review period after having delayed the filing in the first instance due to required pre-application review. Indeed, requiring a pre-application review before an application may be filed is similar to imposing a moratorium, which the Commission has made clear does not stop the shot clocks from running. Therefore, the Commission concludes that if an applicant proffers an application, but a state or locality refuses to accept it until a pre-application review has been completed, the shot clock begins to run when the application is proffered. 70. That said, the Commission encourages voluntary pre-application discussions, which may well be useful to both parties. The record indicates that such meetings can clarify key aspects of the application review process, especially with respect to large submissions or applicants new to a particular locality's processes and may speed the pace of review. To the extent that an applicant voluntarily engages in a pre-application review to smooth the way for its filing, the shot clock will begin when an application is filed, presumably after the pre-application review has concluded. 71. The Commission also reiterates that the remedies granted under Section 332(c)(7)(B)(v) are independent of, and in addition to, any remedies that may be available under state or local law. Thus, where a state or locality has established its own shot clocks, an applicant may pursue any remedies granted under state or local law in cases where the siting authority fails to act within those shot clocks. However, the applicant must wait until the Commission shot clock period has expired to bring suit for a ``failure to act'' under Section 332(c)(7)(B)(v). III. Procedural Matters A. Final Regulatory Flexibility Analysis 72. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rulemaking (NPRM), released in April 2017 (82 FR 22453, May 16, 2017). The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. The comments received are addressed below in Section 2. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA. 1. Need for and Objectives of the Rules 73. In the Third Report and Order, the Commission continues its efforts to promote the timely buildout of wireless infrastructure across the country by eliminating regulatory impediments that unnecessarily delay bringing personal wireless services to consumers. The record shows that lengthy delays in approving siting applications by siting agencies has been a persistent problem. With this in mind, the Third Report and Order establishes and codifies specific rules concerning the amount of time siting agencies may take to review and approve certain categories of wireless infrastructure siting applications. More specifically, the Commission addresses its Section 332 shot clock rules for infrastructure applications which will be presumed reasonable under the Communications Act. As an initial matter, the Commission establishes two new shot clocks for Small Wireless Facilities applications. For collocation of Small Wireless Facilities on preexisting structures, the Commission adopts a 60-day shot clock which applies to both individual and batched applications. For applications associated with Small Wireless Facilities new construction the Commission adopts a 90-day shot clock for both individual and batched applications. The Commission also codifies two existing Section 332 shot clocks for all other Non-Small Wireless Facilities that were established in 2009 without codification. These existing shot clocks require 90-days for processing of all other Non-Small Wireless Facilities collocation applications, and 150-days for processing of all other Non-Small Wireless Facilities applications other than collocations. 74. The Third Report and Order addresses other issues related to both the existing and new shot clocks. In particular the Commission addresses the specific types of authorizations subject to the ``Reasonable Period of Time'' provisions of Section 332(c)(7)(B)(ii), finding that ``any request for authorization to place, construct, or modify personal wireless service facilities'' under Section 332(c)(7)(B)(ii) means all authorizations a locality may require, and to all aspects of and steps in the siting process, including license or franchise agreements to access ROW, building permits, public notices and meetings, lease negotiations, electric permits, road closure permits, aesthetic approvals, and other authorizations needed for deployment of personal wireless services infrastructure. The Commission also addresses collocation on structures not previously zoned for wireless use, when the four Section 332 shot clocks begin to run, the impact of incomplete applications on the Commission's Section 332 shot clocks, and how state imposed shot clocks remedies effect the Commission's Section 332 shot clocks remedies. 75. The Commission discusses the appropriate judicial remedy that applicants may pursue in cases where a [[Page 51878]] siting authority fails to act within the applicable shot clock period. In those situations, applicants may commence an action in a court of competent jurisdiction alleging a violation of Section 332(c)(7)(B)(i)(II) and seek injunctive relief granting the application. Notwithstanding the availability of a judicial remedy if a shot clock deadline is missed, the Commission recognizes that the Section 332 time frames might not be met in exceptional circumstances and has refined its interpretation of the circumstances when a period of time longer than the relevant shot clock would nonetheless be a reasonable period of time for action by a siting agency. In addition, a siting authority that is subject to a court action for missing an applicable shot clock deadline has the opportunity to demonstrate that the failure to act was reasonable under the circumstances and, therefore, did not materially limit or inhibit the applicant from introducing new services or improving existing services thereby rebutting the effective prohibition presumption. 76. The rules adopted in the Third Report and Order will accelerate the deployment of wireless infrastructure needed for the mobile wireless services of the future, while preserving the fundamental role of localities in this process. Under the Commission's new rules, localities will maintain control over the placement, construction and modification of personal wireless facilities, while at the same time the Commission's new process will streamline the review of wireless siting applications. 2. Summary of Significant Issues Raised by Public Comments in Response to the IRFA 77. Only one party--the Smart Cities and Special Districts Coalition--filed comments specifically addressing the rules and policies proposed in the IRFA. They argue that any shortening or alteration of the Commission's existing shot clocks or the adoption of a deemed granted remedy will adversely affect small local governments, special districts, property owners, small developers, and others by placing their siting applications behind wireless provider siting applications. Subsequently, NATOA filed comments concerning the draft FRFA. NATOA argues that the new shot clocks impose burdens on local governments and particularly those with limited resources. NATOA asserts that the new shot clocks will spur more deployment applications than localities currently process. 78. These arguments, however, fail to acknowledge that Section 332 shot clocks have been in place for years and reflect Congressional intent as seen in the statutory language of Section 332. The record in this proceeding demonstrates the need for, and reasonableness of, expediting the siting review of certain facility deployments. More streamlined procedures are both reasonable and necessary to provide greater predictability. The current shot clocks do not reflect the evolution of the application review process and evidence that localities can complete reviews more quickly than was the case when the original shot clocks were adopted nine years ago. Localities have gained significant experience processing wireless siting applications and several jurisdictions already have in place laws that require applications to be processed in less time than the Commission's new shot clocks. With the passage of time, sitting agencies have become more efficient in processing siting applications and this, in turn, should reduce any economic burden the Commission's new shot clock provisions have on them. 79. The Commission has carefully considered the impact of its new shot clocks on siting authorities and has established shot clocks that take into consideration the nature and scope of siting requests by establishing shot clocks of different lengths of time that depend on the nature of the siting request at issue. The length of these shot clocks is based in part on the need to ensure that local governments have ample time to take any steps needed to protect public safety and welfare and to process other pending utility applications. Since local siting authorities have gained experience in processing siting requests in an expedited fashion, they should be able to comply with the Commission's new shot clocks. 80. The Commission has taken into consideration the concerns of the Smart Cities and Special Districts Coalition and NATOA. It has established shot clocks that will not favor wireless providers over other applicants with pending siting applications. Further, instead of adopting a deemed granted remedy that would grant a siting application when a shot clock lapses without a decision on the merits, the Commission provides guidance as to the appropriate judicial remedy that applicants may pursue and examples of exceptional circumstance where a siting authority may be justified in needing additional time to review a siting application then the applicable shot clock allows. Under this approach, the applicant may seek injunctive relief as long as several minimum requirements are met. The siting authority, however, can rebut the presumptive reasonableness of the applicable shot clock under certain circumstances. The circumstances under which a sitting authority might have to do this will be rare. Under this carefully crafted approach, the interests of siting applicants, siting authorities, and citizens are protected. 3. Response to Comments by the Chief Counsel for Advocacy of the Small Business Administration 81. Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rules as a result of those comments. 82. The Chief Counsel did not file any comments in response to the proposed rules in this proceeding. 4. Description and Estimate of the Number of Small Entities to Which the Rules Will Apply 83. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the rules adopted herein. The RFA generally defines the term ``small entity'' as having the same meaning as the terms ``small business,'' ``small organization,'' and ``small governmental jurisdiction.'' In addition, the term ``small business'' has the same meaning as the term ``small business concern'' under the Small Business Act. A ``small business concern'' is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. 84. Small Businesses, Small Organizations, Small Governmental Jurisdictions. The Commission's actions, over time, may affect small entities that are not easily categorized at present. The Commission therefore describe here, at the outset, three broad groups of small entities that could be directly affected herein. First, while there are industry specific size standards for small businesses that are used in the regulatory flexibility analysis, according to data from the SBA's Office of Advocacy, in general a small business is an independent business having fewer than 500 employees. These types of small businesses represent 99.9 percent of all businesses in the United States [[Page 51879]] which translates to 28.8 million businesses. 85. Next, the type of small entity described as a ``small organization'' is generally ``any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.'' Nationwide, as of August 2016, there were approximately 356,494 small organizations based on registration and tax data filed by nonprofits with the Internal Revenue Service (IRS). 86. Finally, the small entity described as a ``small governmental jurisdiction'' is defined generally as ``governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.'' U.S. Census Bureau data from the 2012 Census of Governments indicate that there were 90,056 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. Of this number there were 37,132 General purpose governments (county, municipal and town or township) with populations of less than 50,000 and 12,184 Special purpose governments (independent school districts and special districts) with populations of less than 50,000. The 2012 U.S. Census Bureau data for most types of governments in the local government category show that the majority of these governments have populations of less than 50,000. Based on this data the Commission estimates that at least 49,316 local government jurisdictions fall in the category of ``small governmental jurisdictions.'' 87. Wireless Telecommunications Carriers (except Satellite). This industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular services, paging services, wireless internet access, and wireless video services. The appropriate size standard under SBA rules is that such a business is small if it has 1,500 or fewer employees. For this industry, U.S. Census data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had employment of 999 or fewer employees and 12 had employment of 1,000 employees or more. Thus under this category and the associated size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small entities. 88. The Commission's own data--available in its Universal Licensing System--indicate that, as of May 17, 2018, there are 264 Cellular licensees that will be affected by the Commission's actions. The Commission does not know how many of these licensees are small, as the Commission does not collect that information for these types of entities. Similarly, according to Commission data, 413 carriers reported that they were engaged in the provision of wireless telephony, including cellular service, Personal Communications Service (PCS), and Specialized Mobile Radio (SMR) Telephony services. Of this total, an estimated 261 have 1,500 or fewer employees and 152 have more than 1,500 employees. Thus, using available data, the Commission estimates that the majority of wireless firms can be considered small. 89. Personal Radio Services. Personal radio services provide short- range, low-power radio for personal communications, radio signaling, and business communications not provided for in other services. Personal radio services include services operating in spectrum licensed under part 95 of the Commission's rules. These services include Citizen Band Radio Service, General Mobile Radio Service, Radio Control Radio Service, Family Radio Service, Wireless Medical Telemetry Service, Medical Implant Communications Service, Low Power Radio Service, and Multi-Use Radio Service. There are a variety of methods used to license the spectrum in these rule parts, from licensing by rule, to conditioning operation on successful completion of a required test, to site-based licensing, to geographic area licensing. All such entities in this category are wireless, therefore the Commission applies the definition of Wireless Telecommunications Carriers (except Satellite), pursuant to which the SBA's small entity size standard is defined as those entities employing 1,500 or fewer persons. For this industry, U.S. Census data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had employment of 999 or fewer employees and 12 had employment of 1,000 employees or more. Thus, under this category and the associated size standard, the Commission estimates that the majority of firms can be considered small. The Commission notes however that many of the licensees in this category are individuals and not small entities. In addition, due to the mostly unlicensed and shared nature of the spectrum utilized in many of these services, the Commission lacks direct information upon which to base an estimation of the number of small entities that may be affected by the Commission's actions in this proceeding. 90. Public Safety Radio Licensees. Public Safety Radio Pool licensees as a general matter, include police, fire, local government, forestry conservation, highway maintenance, and emergency medical services. Because of the vast array of public safety licensees, the Commission has not developed a small business size standard specifically applicable to public safety licensees. The closest applicable SBA category is Wireless Telecommunications Carriers (except Satellite) which encompasses business entities engaged in radiotelephone communications. The appropriate size standard for this category under SBA rules is that such a business is small if it has 1,500 or fewer employees. For this industry, U.S. Census data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had employment of 999 or fewer employees and 12 had employment of 1,000 employees or more. Thus under this category and the associated size standard, the Commission estimates that the majority of firms can be considered small. With respect to local governments, in particular, since many governmental entities comprise the licensees for these services, the Commission includes under public safety services the number of government entities affected. According to Commission records, there are a total of approximately 133,870 licenses within these services. There are 3,121 licenses in the 4.9 GHz band, based on an FCC Universal Licensing System search of March 29, 2017. The Commission estimates that fewer than 2,442 public safety radio licensees hold these licenses because certain entities may have multiple licenses. 91. Private Land Mobile Radio Licensees. Private land mobile radio (PLMR) systems serve an essential role in a vast range of industrial, business, land transportation, and public safety activities. These radios are used by companies of all sizes operating in all U.S. business categories. Because of the vast array of PLMR users, the Commission has not developed a small business size standard specifically applicable to PLMR users. The closest applicable SBA category is Wireless Telecommunications Carriers (except Satellite) which encompasses business entities engaged in radiotelephone communications. The appropriate size standard for this category under SBA [[Page 51880]] rules is that such a business is small if it has 1,500 or fewer employees. For this industry, U.S. Census data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had employment of 999 or fewer employees and 12 had employment of 1,000 employees or more. Thus, under this category and the associated size standard, the Commission estimates that the majority of PLMR Licensees are small entities. 92. According to the Commission's records, a total of approximately 400,622 licenses comprise PLMR users. Of this number there are a total of 3,374 licenses in the frequencies range 173.225 MHz to 173.375 MHz, which is the range affected by the Third Report and Order. The Commission does not require PLMR licensees to disclose information about number of employees and does not have information that could be used to determine how many PLMR licensees constitute small entities under this definition. The Commission however believes that a substantial number of PLMR licensees may be small entities despite the lack of specific information. 93. Multiple Address Systems. Entities using Multiple Address Systems (MAS) spectrum, in general, fall into two categories: (1) Those using the spectrum for profit-based uses, and (2) those using the spectrum for private internal uses. With respect to the first category, Profit-based Spectrum use, the size standards established by the Commission define ``small entity'' for MAS licensees as an entity that has average annual gross revenues of less than $15 million over the three previous calendar years. A ``Very small business'' is defined as an entity that, together with its affiliates, has average annual gross revenues of not more than $3 million over the preceding three calendar years. The SBA has approved these definitions. The majority of MAS operators are licensed in bands where the Commission has implemented a geographic area licensing approach that requires the use of competitive bidding procedures to resolve mutually exclusive applications. 94. The Commission's licensing database indicates that, as of April 16, 2010, there were a total of 11,653 site-based MAS station authorizations. Of these, 58 authorizations were associated with common carrier service. In addition, the Commission's licensing database indicates that, as of April 16, 2010, there were a total of 3,330 Economic Area market area MAS authorizations. The Commission's licensing database also indicates that, as of April 16, 2010, of the 11,653 total MAS station authorizations, 10,773 authorizations were for private radio service. In 2001, an auction for 5,104 MAS licenses in 176 EAs was conducted. Seven winning bidders claimed status as small or very small businesses and won 611 licenses. In 2005, the Commission completed an auction (Auction 59) of 4,226 MAS licenses in the Fixed Microwave Services from the 928/959 and 932/941 MHz bands. Twenty-six winning bidders won a total of 2,323 licenses. Of the 26 winning bidders in this auction, five claimed small business status and won 1,891 licenses. 95. With respect to the second category, Internal Private Spectrum use consists of entities that use, or seek to use, MAS spectrum to accommodate their own internal communications needs, MAS serves an essential role in a range of industrial, safety, business, and land transportation activities. MAS radios are used by companies of all sizes, operating in virtually all U.S. business categories, and by all types of public safety entities. For the majority of private internal users, the definition developed by the SBA would be more appropriate than the Commission's definition. The closest applicable definition of a small entity is the ``Wireless Telecommunications Carriers (except Satellite)'' definition under the SBA rules. The appropriate size standard under SBA rules is that such a business is small if it has 1,500 or fewer employees. For this category, U.S. Census data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had employment of 999 or fewer employees and 12 had employment of 1,000 employees or more. Thus, under this category and the associated small business size standard, the Commission estimates that the majority of firms that may be affected by the Commission's action can be considered small. 96. Broadband Radio Service and Educational Broadband Service. Broadband Radio Service systems, previously referred to as Multipoint Distribution Service (MDS) and Multichannel Multipoint Distribution Service (MMDS) systems, and ``wireless cable,'' transmit video programming to subscribers and provide two-way high-speed data operations using the microwave frequencies of the Broadband Radio Service (BRS) and Educational Broadband Service (EBS) (previously referred to as the Instructional Television Fixed Service (ITFS)). 97. BRS--In connection with the 1996 BRS auction, the Commission established a small business size standard as an entity that had annual average gross revenues of no more than $40 million in the previous three calendar years. The BRS auctions resulted in 67 successful bidders obtaining licensing opportunities for 493 Basic Trading Areas (BTAs). Of the 67 auction winners, 61 met the definition of a small business. BRS also includes licensees of stations authorized prior to the auction. At this time, the Commission estimates that of the 61 small business BRS auction winners, 48 remain small business licensees. In addition to the 48 small businesses that hold BTA authorizations, there are approximately there are approximately 86 incumbent BRS licensees that are considered small entities (18 incumbent BRS licensees do not meet the small business size standard). After adding the number of small business auction licensees to the number of incumbent licensees not already counted, the Commission finds that there are currently approximately 133 BRS licensees that are defined as small businesses under either the SBA or the Commission's rules. 98. In 2009, the Commission conducted Auction 86, the sale of 78 licenses in the BRS areas. The Commission offered three levels of bidding credits: (i) A bidder with attributed average annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three years (small business) received a 15 percent discount on its winning bid; (ii) a bidder with attributed average annual gross revenues that exceed $3 million and do not exceed $15 million for the preceding three years (very small business) received a 25 percent discount on its winning bid; and (iii) a bidder with attributed average annual gross revenues that do not exceed $3 million for the preceding three years (entrepreneur) received a 35 percent discount on its winning bid. Auction 86 concluded in 2009 with the sale of 61 licenses. Of the ten winning bidders, two bidders that claimed small business status won 4 licenses; one bidder that claimed very small business status won three licenses; and two bidders that claimed entrepreneur status won six licenses. 99. EBS--The Educational Broadband Service has been included within the broad economic census category and SBA size standard for Wired Telecommunications Carriers since 2007. Wired Telecommunications Carriers are comprised of establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using [[Page 51881]] wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies. The SBA's small business size standard for this category is all such firms having 1,500 or fewer employees. U.S. Census Bureau data for 2012 show that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. Thus, under this size standard, the majority of firms in this industry can be considered small. In addition to Census Bureau data, the Commission's Universal Licensing System indicates that as of October 2014, there are 2,206 active EBS licenses. The Commission estimates that of these 2,206 licenses, the majority are held by non-profit educational institutions and school districts, which are by statute defined as small businesses. 100. Location and Monitoring Service (LMS). LMS systems use non- voice radio techniques to determine the location and status of mobile radio units. For purposes of auctioning LMS licenses, the Commission has defined a ``small business'' as an entity that, together with controlling interests and affiliates, has average annual gross revenues for the preceding three years not to exceed $15 million. A ``very small business'' is defined as an entity that, together with controlling interests and affiliates, has average annual gross revenues for the preceding three years not to exceed $3 million. These definitions have been approved by the SBA. An auction for LMS licenses commenced on February 23, 1999 and closed on March 5, 1999. Of the 528 licenses auctioned, 289 licenses were sold to four small businesses. 101. Television Broadcasting. This Economic Census category ``comprises establishments primarily engaged in broadcasting images together with sound.'' These establishments operate television broadcast studios and facilities for the programming and transmission of programs to the public. These establishments also produce or transmit visual programming to affiliated broadcast television stations, which in turn broadcast the programs to the public on a predetermined schedule. Programming may originate in their own studio, from an affiliated network, or from external sources. The SBA has created the following small business size standard for such businesses: Those having $38.5 million or less in annual receipts. The 2012 Economic Census reports that 751 firms in this category operated in that year. Of that number, 656 had annual receipts of $25,000,000 or less, 25 had annual receipts between $25,000,000 and $49,999,999 and 70 had annual receipts of $50,000,000 or more. Based on this data the Commission therefore estimates that the majority of commercial television broadcasters are small entities under the applicable SBA size standard. 102. The Commission has estimated the number of licensed commercial television stations to be 1,377. Of this total, 1,258 stations (or about 91 percent) had revenues of $38.5 million or less, according to Commission staff review of the BIA Kelsey Inc. Media Access Pro Television Database (BIA) on November 16, 2017, and therefore these licensees qualify as small entities under the SBA definition. In addition, the Commission has estimated the number of licensed noncommercial educational (NCE) television stations to be 384. Notwithstanding, the Commission does not compile and otherwise does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities. There are also 2,300 low power television stations, including Class A stations (LPTV) and 3,681 TV translator stations. Given the nature of these services, the Commission will presume that all of these entities qualify as small entities under the above SBA small business size standard. 103. The Commission notes, however, that in assessing whether a business concern qualifies as ``small'' under the above definition, business (control) affiliations must be included. The Commission estimates, therefore likely overstates the number of small entities that might be affected by its action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, another element of the definition of ``small business'' requires that an entity not be dominant in its field of operation. The Commission is unable at this time to define or quantify the criteria that would establish whether a specific television broadcast station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply does not exclude any television station from the definition of a small business on this basis and is therefore possibly over-inclusive. Also, as noted above, an additional element of the definition of ``small business'' is that the entity must be independently owned and operated. The Commission notes that it is difficult at times to assess these criteria in the context of media entities and its estimates of small businesses to which they apply may be over-inclusive to this extent. 104. Radio Stations. This Economic Census category ``comprises establishments primarily engaged in broadcasting aural programs by radio to the public. Programming may originate in their own studio, from an affiliated network, or from external sources.'' The SBA has established a small business size standard for this category as firms having $38.5 million or less in annual receipts. Economic Census data for 2012 show that 2,849 radio station firms operated during that year. Of that number, 2,806 operated with annual receipts of less than $25 million per year, 17 with annual receipts between $25 million and $49,999,999 million and 26 with annual receipts of $50 million or more. Therefore, based on the SBA's size standard the majority of such entities are small entities. 105. According to Commission staff review of the BIA/Kelsey, LLC's Publications, Inc. Media Access Pro Radio Database (BIA) as of January 2018, about 11,261 (or about 99.92 percent) of 11,270 commercial radio stations had revenues of $38.5 million or less and thus qualify as small entities under the SBA definition. The Commission has estimated the number of licensed commercial AM radio stations to be 4,633 stations and the number of commercial FM radio stations to be 6,738, for a total number of 11,371. The Commission notes, that the Commission has also estimated the number of licensed NCE radio stations to be 4,128. Nevertheless, the Commission does not compile and otherwise does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities. 106. The Commission also notes, that in assessing whether a business entity qualifies as small under the above definition, business control affiliations must be included. The Commission's estimate therefore likely overstates the number of small entities that might be affected by its action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, to be determined a ``small business,'' an entity may not be dominant in its field of operation. The Commission further notes, that it is difficult at times to assess these criteria in the context of media entities, and the estimate of small businesses to which these rules may apply does not exclude any radio station from the definition of a small business on these basis, thus the Commission's estimate of small businesses may therefore be over-inclusive. Also, as noted above, an additional element of the definition of ``small business'' is that [[Page 51882]] the entity must be independently owned and operated. The Commission notes that it is difficult at times to assess these criteria in the context of media entities and the estimates of small businesses to which they apply may be over-inclusive to this extent. 107. FM Translator Stations and Low Power FM Stations. FM translators and Low Power FM Stations are classified in the category of Radio Stations and are assigned the same NAICS Code as licensees of radio stations. This U.S. industry, Radio Stations, comprises establishments primarily engaged in broadcasting aural programs by radio to the public. Programming may originate in their own studio, from an affiliated network, or from external sources. The SBA has established a small business size standard which consists of all radio stations whose annual receipts are $38.5 million dollars or less. U.S. Census Bureau data for 2012 indicate that 2,849 radio station firms operated during that year. Of that number, 2,806 operated with annual receipts of less than $25 million per year, 17 with annual receipts between $25 million and $49,999,999 million and 26 with annual receipts of $50 million or more. Therefore, based on the SBA's size standard, the Commission concludes that the majority of FM Translator Stations and Low Power FM Stations are small. 108. Multichannel Video Distribution and Data Service (MVDDS). MVDDS is a terrestrial fixed microwave service operating in the 12.2- 12.7 GHz band. The Commission adopted criteria for defining three groups of small businesses for purposes of determining their eligibility for special provisions such as bidding credits. It defined a very small business as an entity with average annual gross revenues not exceeding $3 million for the preceding three years; a small business as an entity with average annual gross revenues not exceeding $15 million for the preceding three years; and an entrepreneur as an entity with average annual gross revenues not exceeding $40 million for the preceding three years. These definitions were approved by the SBA. On January 27, 2004, the Commission completed an auction of 214 MVDDS licenses (Auction No. 53). In this auction, ten winning bidders won a total of 192 MVDDS licenses. Eight of the ten winning bidders claimed small business status and won 144 of the licenses. The Commission also held an auction of MVDDS licenses on December 7, 2005 (Auction 63). Of the three winning bidders who won 22 licenses, two winning bidders, winning 21 of the licenses, claimed small business status. 109. Satellite Telecommunications. This category comprises firms ``primarily engaged in providing telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.'' Satellite telecommunications service providers include satellite and earth station operators. The category has a small business size standard of $32.5 million or less in average annual receipts, under SBA rules. For this category, U.S. Census Bureau data for 2012 show that there were a total of 333 firms that operated for the entire year. Of this total, 299 firms had annual receipts of less than $25 million. Consequently, the Commission estimates that the majority of satellite telecommunications providers are small entities. 110. All Other Telecommunications. The ``All Other Telecommunications'' category is comprised of establishments that are primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Establishments providing internet services or voice over internet protocol (VoIP) services via client-supplied telecommunications connections are also included in this industry. The SBA has developed a small business size standard for ``All Other Telecommunications,'' which consists of all such firms with gross annual receipts of $32.5 million or less. For this category, U.S. Census data for 2012 show that there were 1,442 firms that operated for the entire year. Of these firms, a total of 1,400 had gross annual receipts of less than $25 million and 42 firms had annual receipts of $25 million to $49,999,999. Thus, a majority of ``All Other Telecommunications'' firms potentially affected by the Commission's action can be considered small. 111. Fixed Microwave Services. Microwave services include common carrier, private-operational fixed, and broadcast auxiliary radio services. They also include the Local Multipoint Distribution Service (LMDS), the Digital Electronic Message Service (DEMS), the 39 GHz Service (39 GHz), the 24 GHz Service, and the Millimeter Wave Service where licensees can choose between common carrier and non-common carrier status. At present, there are approximately 66,680 common carrier fixed licensees, 69,360 private and public safety operational- fixed licensees, 20,150 broadcast auxiliary radio licensees, 411 LMDS licenses, 33 24 GHz DEMS licenses, 777 39 GHz licenses, and five 24 GHz licenses, and 467 Millimeter Wave licenses in the microwave services. The Commission has not yet defined a small business size standard for microwave services. The closest applicable SBA category is Wireless Telecommunications Carriers (except Satellite) and the appropriate size standard for this category under SBA rules is that such a business is small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2012, show that there were 967 firms in this category that operated for the entire year. Of this total, 955 had employment of 999 or fewer, and 12 firms had employment of 1,000 employees or more. Thus, under this category and the associated small business size standard, the Commission estimates that a majority of fixed microwave service licensees can be considered small. 112. The Commission notes that the number of firms does not necessarily track the number of licensees. The Commission also notes that it does not have data specifying the number of these licensees that have more than 1,500 employees, and thus is unable at this time to estimate with greater precision the number of fixed microwave service licensees that would qualify as small business concerns under the SBA's small business size standard. The Commission estimates however, that virtually all of the Fixed Microwave licensees (excluding broadcast auxiliary licensees) would qualify as small entities under the SBA definition. 113. Non-Licensee Owners of Towers and Other Infrastructure. Although at one time most communications towers were owned by the licensee using the tower to provide communications service, many towers are now owned by third-party businesses that do not provide communications services themselves but lease space on their towers to other companies that provide communications services. The Commission's rules require that any entity, including a non-licensee, proposing to construct a tower over 200 feet in height or within the glide slope of an airport must register the tower with the Commission's Antenna Structure Registration (``ASR'') system and comply with applicable rules [[Page 51883]] regarding review for impact on the environment and historic properties. 114. As of March 1, 2017, the ASR database includes approximately 122,157 registration records reflecting a ``Constructed'' status and 13,987 registration records reflecting a ``Granted, Not Constructed'' status. These figures include both towers registered to licensees and towers registered to non-licensee tower owners. The Commission does not keep information from which we can easily determine how many of these towers are registered to non-licensees or how many non-licensees have registered towers. Regarding towers that do not require ASR registration, we do not collect information as to the number of such towers in use and therefore cannot estimate the number of tower owners that would be subject to the rules on which the Commission seeks comment. Moreover, the SBA has not developed a size standard for small businesses in the category ``Tower Owners.'' Therefore, the Commission is unable to determine the number of non-licensee tower owners that are small entities. The Commission believes, however, that when all entities owning 10 or fewer towers and leasing space for collocation are included, non-licensee tower owners number in the thousands. In addition, there may be other non-licensee owners of other wireless infrastructure, including Distributed Antenna Systems (DAS) and small cells that might be affected by the measures on which the Commission seeks comment. The Commission does not have any basis for estimating the number of such non-licensee owners that are small entities. 115. The closest applicable SBA category is All Other Telecommunications, and the appropriate size standard consists of all such firms with gross annual receipts of $32.5 million or less. For this category, U.S. Census data for 2012 show that there were 1,442 firms that operated for the entire year. Of these firms, a total of 1,400 had gross annual receipts of less than $25 million and 15 firms had annual receipts of $25 million to $49,999,999. Thus, under this SBA size standard a majority of the firms potentially affected by the Commission's action can be considered small. 5. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities 116. The Third Report and Order does not establish any reporting, recordkeeping, or other compliance requirements for companies involved in wireless infrastructure deployment. In addition to not adopting any reporting, recordkeeping or other compliance requirements, the Commission takes significant steps to reduce regulatory impediments to infrastructure deployment and, therefore, to spur the growth of personal wireless services. Under the Commission's approach, small entities as well as large companies will be assured that their deployment requests will be acted upon within a reasonable period of time and, if their applications are not addressed within the established time frames, applicants may seek injunctive relief granting their siting applications. The Commission, therefore, has taken concrete steps to relieve companies of all sizes of uncertainly and has eliminated unnecessary delays. 117. The Third Report and Order also does not impose any reporting or recordkeeping requirements on state and local governments. While some commenters argue that additional shot clock classifications would make the siting process needlessly complex without any proven benefits, the Commission concludes that any additional administrative burden from increasing the number of Section 332 shot clocks from two to four is outweighed by the likely significant benefit of regulatory certainty and the resulting streamlined deployment process. The Commission's actions are consistent with the statutory language of Section 332 and therefore reflect Congressional intent. Further, siting agencies have become more efficient in processing siting applications and will be able to take advantage of these efficiencies in meeting the new shot clocks. As a result, the additional shot clocks that the Commission adopts will foster the deployment of the latest wireless technology and serve consumer interests. 6. Steps Taken To Minimize the Significant Economic Impact on Small Entities, and Significant Alternatives Considered 118. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its approach, which may include the following four alternatives (among others): ``(1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.'' 119. The steps taken by the Commission in the Third Report and Order eliminate regulatory burdens for small entities as well as large companies that are involved with the deployment of person wireless services infrastructure. By establishing shot clocks and guidance on injunctive relief for personal wireless services infrastructure deployments, the Commission has standardized and streamlined the permitting process. These changes will significantly minimize the economic burden of the siting process on all entities, including small entities, involved in deploying personal wireless services infrastructure. The record shows that permitting delays imposes significant economic and financial burdens on companies with pending wireless infrastructure permits. Eliminating permitting delays will remove the associated cost burdens and enabling significant public interest benefits by speeding up the deployment of personal wireless services and infrastructure. In addition, siting agencies will be able to utilize the efficiencies that they have gained over the years processing siting applications to minimize financial impacts. 120. The Commission considered but did not adopt proposals by commenters to issue ``Best Practices'' or ``Recommended Practices,'' and to develop an informal dispute resolution process and mediation program, noting that the steps taken in the Third Report and Order address the concerns underlying these proposals to facilitate cooperation between parties to reach mutually agreed upon solutions. The Commission anticipates that the changes it has made to the permitting process will provide significant efficiencies in the deployment of personal wireless services facilities and this in turn will benefit all companies, but particularly small entities, that may not have the resources and economies of scale of larger entities to navigate the permitting process. By adopting these changes, the Commission will continue to fulfill its statutory responsibilities, while reducing the burden on small entities by removing unnecessary impediments to the rapid deployment of personal wireless services facilities and infrastructure across the country. 7. Report to Congress 121. The Commission will send a copy of the Third Report and Order, including this FRFA, in a report to Congress pursuant to the Congressional Review Act. In addition, the [[Page 51884]] Commission will send a copy of the Third Report and Order, including this FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the Third Report and Order and FRFA (or summaries thereof) also will be published in the Federal Register. B. Paperwork Reduction Act 122. This Third Report and Order does not contain new or revised information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. C. Congressional Review Act 123. The Commission will send a copy of this Declaratory Ruling and Third Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act (CRA), see 5 U.S.C. 801(a)(1)(A). IV. Ordering Clauses 124. Accordingly, it is ordered, pursuant to sections 1, 4(i)-(j), 7, 201, 253, 301, 303, 309, 319, and 332 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i)-(j), 157, 201, 253, 301, 303, 309, 319, 332, that this Declaratory Ruling and Third Report and Order in WT Docket No. 17-79 is hereby adopted. 125. It is further ordered that part 1 of the Commission's rules is amended as set forth in the final rules of this Declaratory Ruling and Third Report and Order, and that these changes shall be effective January 14, 2019. 126. It is further ordered that this Third Report and Order shall be effective January 14, 2019. The Declaratory Ruling and the obligations set forth therein are effective on the same day that this Third Report and Order becomes effective. It is our intention in adopting the foregoing Declaratory Ruling and these rule changes that, if any provision of the Declaratory Ruling or the rules, or the application thereof to any person or circumstance, is held to be unlawful, the remaining portions of such Declaratory Ruling and the rules not deemed unlawful, and the application of such Declaratory Ruling and the rules to other person or circumstances, shall remain in effect to the fullest extent permitted by law. 127. It is further ordered that, pursuant to 47 CFR 1.4(b)(1), the period for filing petitions for reconsideration or petitions for judicial review of this Declaratory Ruling and Third Report and Order will commence on the date that a summary of this Declaratory Ruling and Third Report and Order is published in the Federal Register. 128. It is further ordered that the Commission's Consumer & Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Declaratory Ruling and Third Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. 129. It is further ordered that this Declaratory Ruling and Third Report and Order shall be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A). List of Subjects in 47 CFR Part 1 Communications common carriers, Communications equipment, Environmental protection, Historic preservation, Radio, Telecommunications. Federal Communications Commission. Cecilia Sigmund, Federal Register Liaison Officer, Office of the Secretary. Final Rules For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 1 as follows: PART 1--PRACTICE AND PROCEDURE 0 1. The authority citation for part 1 continues to read as follows: Authority: 47 U.S.C. chs. 2, 5, 9, 13; Sec. 102(c), Div. P, Public Law 115-141, 132 Stat. 1084; 28 U.S.C. 2461, unless otherwise noted. 0 2. Add subpart U, consisting of Sec. Sec. 1.6001 through 1.6003, to read as follows: Subpart U--State and Local Government Regulation of the Placement, Construction, and Modification of Personal Wireless Service Facilities Sec. 1.6001 Purpose. 1.6002 Definitions. 1.6003 Reasonable periods of time to act on siting applications. Sec. 1.6001 Purpose. This subpart implements 47 U.S.C. 332(c)(7) and 1455. Sec. 1.6002 Definitions. Terms not specifically defined in this section or elsewhere in this subpart have the meanings defined in this part and the Communications Act of 1934, 47 U.S.C. 151 et seq. Terms used in this subpart have the following meanings: (a) Action or to act on a siting application means a siting authority's grant of a siting application or issuance of a written decision denying a siting application. (b) Antenna, consistent with Sec. 1.1320(d), means an apparatus designed for the purpose of emitting radiofrequency (RF) radiation, to be operated or operating from a fixed location pursuant to Commission authorization, for the provision of personal wireless service and any commingled information services. For purposes of this definition, the term antenna does not include an unintentional radiator, mobile station, or device authorized under part 15 of this chapter. (c) Antenna equipment, consistent with Sec. 1.1320(d), means equipment, switches, wiring, cabling, power sources, shelters or cabinets associated with an antenna, located at the same fixed location as the antenna, and, when collocated on a structure, is mounted or installed at the same time as such antenna. (d) Antenna facility means an antenna and associated antenna equipment. (e) Applicant means a person or entity that submits a siting application and the agents, employees, and contractors of such person or entity. (f) Authorization means any approval that a siting authority must issue under applicable law prior to the deployment of personal wireless service facilities, including, but not limited to, zoning approval and building permit. (g) Collocation, consistent with Sec. 1.1320(d) and the Nationwide Programmatic Agreement (NPA) for the Collocation of Wireless Antennas, appendix B of this part, section I.B, means-- (1) Mounting or installing an antenna facility on a pre-existing structure; and/or (2) Modifying a structure for the purpose of mounting or installing an antenna facility on that structure. (3) The definition of ``collocation'' in Sec. 1.6100(b)(2) applies to the term as used in that section. (h) Deployment means placement, construction, or modification of a personal wireless service facility. (i) Facility or personal wireless service facility means an antenna facility or a structure that is used for the provision of personal wireless service, whether such service is provided on a stand-alone basis or commingled with other wireless communications services. (j) Siting application or application means a written submission to a siting authority requesting authorization for the deployment of a personal wireless service facility at a specified location. [[Page 51885]] (k) Siting authority means a State government, local government, or instrumentality of a State government or local government, including any official or organizational unit thereof, whose authorization is necessary prior to the deployment of personal wireless service facilities. (l) Small wireless facilities, consistent with Sec. 1.1312(e)(2), are facilities that meet each of the following conditions: (1) The facilities-- (i) Are mounted on structures 50 feet or less in height including their antennas as defined in Sec. 1.1320(d); or (ii) Are mounted on structures no more than 10 percent taller than other adjacent structures; or (iii) Do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater; (2) Each antenna associated with the deployment, excluding associated antenna equipment (as defined in the definition of ``antenna'' in Sec. 1.1320(d)), is no more than three cubic feet in volume; (3) All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume; (4) The facilities do not require antenna structure registration under part 17 of this chapter; (5) The facilities are not located on Tribal lands, as defined under 36 CFR 800.16(x); and (6) The facilities do not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in Sec. 1.1307(b). (m) Structure means a pole, tower, base station, or other building, whether or not it has an existing antenna facility, that is used or to be used for the provision of personal wireless service (whether on its own or comingled with other types of services). Sec. 1.6003 Reasonable periods of time to act on siting applications. (a) Timely action required. A siting authority that fails to act on a siting application on or before the shot clock date for the application, as defined in paragraph (e) of this section, is presumed not to have acted within a reasonable period of time. (b) Shot clock period. The shot clock period for a siting application is the sum of-- (1) The number of days of the presumptively reasonable period of time for the pertinent type of application, pursuant to paragraph (c) of this section; plus (2) The number of days of the tolling period, if any, pursuant to paragraph (d) of this section. (c) Presumptively reasonable periods of time--(1) Review periods for individual applications. The following are the presumptively reasonable periods of time for action on applications seeking authorization for deployments in the categories set forth in paragraphs (c)(1)(i) through (iv) of this section: (i) Review of an application to collocate a Small Wireless Facility using an existing structure: 60 days. (ii) Review of an application to collocate a facility other than a Small Wireless Facility using an existing structure: 90 days. (iii) Review of an application to deploy a Small Wireless Facility using a new structure: 90 days. (iv) Review of an application to deploy a facility other than a Small Wireless Facility using a new structure: 150 days. (2) Batching. (i) If a single application seeks authorization for multiple deployments, all of which fall within a category set forth in either paragraph (c)(1)(i) or (iii) of this section, then the presumptively reasonable period of time for the application as a whole is equal to that for a single deployment within that category. (ii) If a single application seeks authorization for multiple deployments, the components of which are a mix of deployments that fall within paragraph (c)(1)(i) of this section and deployments that fall within paragraph (c)(1)(iii) of this section, then the presumptively reasonable period of time for the application as a whole is 90 days. (iii) Siting authorities may not refuse to accept applications under paragraphs (c)(2)(i) and (ii) of this section. (d) Tolling period. Unless a written agreement between the applicant and the siting authority provides otherwise, the tolling period for an application (if any) is as set forth in paragraphs (d)(1) through (3) of this section. (1) For an initial application to deploy Small Wireless Facilities, if the siting authority notifies the applicant on or before the 10th day after submission that the application is materially incomplete, and clearly and specifically identifies the missing documents or information and the specific rule or regulation creating the obligation to submit such documents or information, the shot clock date calculation shall restart at zero on the date on which the applicant submits all the documents and information identified by the siting authority to render the application complete. (2) For all other initial applications, the tolling period shall be the number of days from-- (i) The day after the date when the siting authority notifies the applicant in writing that the application is materially incomplete and clearly and specifically identifies the missing documents or information that the applicant must submit to render the application complete and the specific rule or regulation creating this obligation; until (ii) The date when the applicant submits all the documents and information identified by the siting authority to render the application complete; (iii) But only if the notice pursuant to paragraph (d)(2)(i) of this section is effectuated on or before the 30th day after the date when the application was submitted; or (3) For resubmitted applications following a notice of deficiency, the tolling period shall be the number of days from-- (i) The day after the date when the siting authority notifies the applicant in writing that the applicant's supplemental submission was not sufficient to render the application complete and clearly and specifically identifies the missing documents or information that need to be submitted based on the siting authority's original request under paragraph (d)(1) or (2) of this section; until (ii) The date when the applicant submits all the documents and information identified by the siting authority to render the application complete; (iii) But only if the notice pursuant to paragraph (d)(3)(i) of this section is effectuated on or before the 10th day after the date when the applicant makes a supplemental submission in response to the siting authority's request under paragraph (d)(1) or (2) of this section. (e) Shot clock date. The shot clock date for a siting application is determined by counting forward, beginning on the day after the date when the application was submitted, by the number of calendar days of the shot clock period identified pursuant to paragraph (b) of this section and including any pre-application period asserted by the siting authority; provided, that if the date calculated in this manner is a ``holiday'' as defined in Sec. 1.4(e)(1) or a legal holiday within the relevant State or local jurisdiction, the shot clock date is the next business day after such date. The term ``business day'' means any day as defined in Sec. 1.4(e)(2) and any day that is not a legal holiday as defined by the State or local jurisdiction. [[Page 51886]] Sec. 1.40001 [Redesignated as Sec. 1.6100 and Amended] 0 3. Redesignate Sec. 1.40001 as Sec. 1.6100 and, in newly redesignated Sec. 1.6100, remove and reserve paragraph (a). Subpart CC--[Removed] 0 4. Remove subpart CC. [FR Doc. 2018-22234 Filed 10-12-18; 8:45 am] BILLING CODE 6712-01-P
![Federal Register / Vol. 83, No. 199 / Monday, October 15, 2018 / Rules and Regulations 51867
Energy Supply, Distribution, or Use’’ (66 submit a report containing this rule and Parts per
Commodity
FR 28355, May 22, 2001) or Executive other required information to the U.S. million
Order 13045, entitled ‘‘Protection of Senate, the U.S. House of
Children from Environmental Health Representatives, and the Comptroller * * * * *
Risks and Safety Risks’’ (62 FR 19885, General of the United States prior to Plum subgroup 12–12C .............. 0.15
April 23, 1997); or Executive Order publication of the rule in the Federal * * * * *
13771, entitled ‘‘Reducing Regulations Register. This action is not a ‘‘major
and Controlling Regulatory Costs’’ (82 rule’’ as defined by 5 U.S.C. 804(2). * * * * *
FR 9339, February 3, 2017). This action [FR Doc. 2018–22279 Filed 10–12–18; 8:45 am]
does not contain any information List of Subjects in 40 CFR Part 180
BILLING CODE 6560–50–P
collections subject to OMB approval Environmental protection,
under the Paperwork Reduction Act Administrative practice and procedure,
(PRA) (44 U.S.C. 3501 et seq.), nor does Agricultural commodities, Pesticides
it require any special considerations and pests, Reporting and recordkeeping FEDERAL COMMUNICATIONS
under Executive Order 12898, entitled requirements. COMMISSION
‘‘Federal Actions to Address Dated: October 2, 2018. 47 CFR Part 1
Environmental Justice in Minority Michael L. Goodis,
Populations and Low-Income [WT Docket No. 17–79, WC Docket No. 17–
Director, Registration Division, Office of 84; FCC 18–133]
Populations’’ (59 FR 7629, February 16, Pesticide Programs.
1994). Therefore, 40 CFR chapter I is
Since tolerances and exemptions that Accelerating Wireless and Wireline
amended as follows: Broadband Deployment by Removing
are established on the basis of a petition
under FFDCA section 408(d), such as Barriers to Infrastructure Investment
PART 180—[AMENDED]
the tolerance in this final rule, do not AGENCY: Federal Communications
require the issuance of a proposed rule, ■ 1. The authority citation for part 180 Commission.
the requirements of the Regulatory continues to read as follows: ACTION: Final rule.
Flexibility Act (RFA) (5 U.S.C. 601 et Authority: 21 U.S.C. 321(q), 346a and 371.
seq.), do not apply. SUMMARY: In this document, the Federal
This action directly regulates growers, ■ 2. Amend the table in § 180.593(a) as
follows: Communications Commission
food processors, food handlers, and food (‘‘Commission’’ or ‘‘FCC’’) issues
■ a. Add alphabetically the entries for
retailers, not States or tribes, nor does guidance and adopts rules to streamline
this action alter the relationships or ‘‘Cherry subgroup 12–12A’’; ‘‘Corn,
sweet, forage’’; ‘‘Corn, sweet, kernel the wireless infrastructure siting review
distribution of power and process to facilitate the deployment of
responsibilities established by Congress plus cob with husks removed’’; ‘‘Corn,
sweet, stover’’; ‘‘Cottonseed subgroup next-generation wireless facilities.
in the preemption provisions of FFDCA Specifically, in the Declaratory Ruling,
section 408(n)(4). As such, the Agency 20C’’; ‘‘Fruit, pome, group 11–10’’;
‘‘Nut, tree group 14–12’’; Peach the Commission identifies specific fee
has determined that this action will not levels for the deployment of Small
have a substantial direct effect on States subgroup 12–12B’’; and ‘‘Plum subgroup
12–12C’’. Wireless Facilities, and it addresses
or tribal governments, on the state and local consideration of aesthetic
■ b. Remove the entries for ‘‘Cotton,
relationship between the national concerns that effect the deployment of
undelinted seed’’; ‘‘Fruit, pome, group
government and the States or tribal Small Wireless Facilities. In the Order,
11’’; ‘‘Fruit, stone, group 12, except
governments, or on the distribution of the Commission addresses the ‘‘shot
plum’’; ‘‘Nut, tree, group 14’’;
power and responsibilities among the clocks’’ governing the review of wireless
‘‘Pistachio’’; and ‘‘Plum.’’
various levels of government or between infrastructure deployments and
the Federal Government and Indian § 180.593 Etoxazole; tolerances for establishes two new shot clocks for
tribes. Thus, the Agency has determined residues. Small Wireless Facilities.
that Executive Order 13132, entitled (a) * * * DATES: Effective January 14, 2019.
‘‘Federalism’’ (64 FR 43255, August 10,
FOR FURTHER INFORMATION CONTACT:
1999) and Executive Order 13175, Commodity Parts per
million Jiaming Shang, Deputy Chief (Acting)
entitled ‘‘Consultation and Coordination
Competition and Infrastructure Policy
with Indian Tribal Governments’’ (65 FR
Division, Wireless Telecommunications
67249, November 9, 2000) do not apply
* * * * * Bureau, (202) 418–1303, email
to this action. In addition, this action Cherry subgroup 12–12A ........... 1.0 Jiaming.shang@fcc.gov.
does not impose any enforceable duty or
contain any unfunded mandate as SUPPLEMENTARY INFORMATION: This is a
* * * * *
described under Title II of the Unfunded Corn, sweet, forage .................... 1.5
summary of the Commission’s
Mandates Reform Act (UMRA) (2 U.S.C. Corn, sweet, kernel plus cob Declaratory Ruling and Third Report
1501 et seq.). with husks removed ................ 0.01 and Order (Declaratory Ruling and
This action does not involve any Corn, sweet, stover ..................... 5.0 Order), WT Docket No. 17–79 and WC
technical standards that would require Docket No. 17–84; FCC 18–133, adopted
Agency consideration of voluntary * * * * * September 26, 2018 and released
Cottonseed subgroup 20C ......... 0.05 September 27, 2018. The full text of this
consensus standards pursuant to section
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Fruit, pome, group 11–10 ........... 0.20 document is available for inspection
12(d) of the National Technology
Transfer and Advancement Act and copying during business hours in
* * * * *
(NTTAA) (15 U.S.C. 272 note). Nut, tree group 14–12 ................ 0.01
the FCC Reference Information Center,
Portals II, 445 12th Street SW, Room
VII. Congressional Review Act CY–A257, Washington, DC 20554. Also,
* * * * *
Pursuant to the Congressional Review Peach subgroup 12–12B ............ 1.0 it may be purchased from the
Act (5 U.S.C. 801 et seq.), EPA will Commission’s duplicating contractor at
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Portals II, 445 12th Street SW, Room non-discriminatory. In this section, the Payphone standard, a state or local legal
CY–B402, Washington, DC 20554; the Commission also identifies specific fee requirement could materially inhibit
contractor’s website, http:// levels for the deployment of Small service in numerous ways—not only by
www.bcpiweb.com; or by calling (800) Wireless Facilities that presumptively rendering a service provider unable to
378–3160, facsimile (202) 488–5563, or comply with this standard. The provide an existing service in a new
email FCC@BCPIWEB.com. Copies of Commission does so to help avoid geographic area or by restricting the
the Declaratory Ruling and Order also unnecessary litigation, while entry of a new provider in providing
may be obtained via the Commission’s recognizing that it is the standard itself, service in a particular area, but also by
Electronic Comment Filing System not the particular, presumptive fee materially inhibiting the introduction of
(ECFS) by entering the docket number levels the Commission articulates, that new services or the improvement of
WT Docket 17–79 and WC Docket No. ultimately will govern whether a existing services. Thus, an effective
17–84. Additionally, the complete item particular fee is allowed under Sections prohibition includes materially
is available on the Federal 253 and 332. So, fees above those levels inhibiting additional services or
Communications Commission’s website would be permissible under Sections improving existing services.
at http://www.fcc.gov. 253 and 332 to the extent a locality’s 7. The Commission’s reading of
actual, reasonable costs (as measured by Section 253(a) and Section
Synopsis the standard above) are higher. 332(c)(7)(B)(i)(II) reflects and supports a
I. Declaratory Ruling 4. Finally, the Commission focuses on marketplace in which services can be
a subset of other, non-fee provisions of offered in a multitude of ways with
1. In the Declaratory Ruling, the
state and local law that could also varied capabilities and performance
Commission notes that a number of
operate as prohibitions on service. The characteristics consistent with the
appellate courts have articulated
Commission does so in particular by policy goals in the 1996 Act and the
different and often conflicting views addressing state and local consideration Communications Act. To limit Sections
regarding the scope and nature of the of aesthetic concerns in the deployment 253(a) and 332(c)(7)(B)(i)(II) to
limits Congress imposed on state and of Small Wireless Facilities. The protecting only against coverage gaps or
local governments through Sections 253 Commission notes that the Small the like would be to ignore Congress’s
and 332. In light of these diverging Wireless Facilities that are the subject of contemporaneously-expressed goals of
views, Congress’s vision for a this Declaratory Ruling remain subject ‘‘promot[ing] competition[,] . . .
consistent, national policy framework, to the Commission’s rules governing secur[ing] . . . higher quality services
and the need to ensure that the Radio Frequency (RF) emissions for American telecommunications
Commission’s approach continues to exposure. consumers and encourage[ing] the rapid
make sense in light of the relatively new deployment of new telecommunications
trend towards the large-scale A. Overview of the Section 253 and
technologies.’’ In addition, as the
deployment of Small Wireless Facilities, Section 332(c)(7) Framework Relevant to
Commission recently explained, the
the Commission takes the opportunity Small Wireless Facilities Deployment
implementation of the Act ‘‘must factor
to clarify and update the FCC’s reading 5. As an initial matter, the in the fundamental objectives of the Act,
of the limits Congress imposed. The Commission notes that its Declaratory including the deployment of a ‘‘rapid,
Commission does so in three main Ruling applies with equal measure to efficient . . . wire and radio
respects. the effective prohibition standard that communication service with adequate
2. First, the Commission expresses its appears in both Sections 253(a) and facilities at reasonable charges’ and ‘the
agreement with the views already stated 332(c)(7). This ruling is consistent with development and rapid deployment of
by the First, Second, and Tenth Circuits the basic canon of statutory new technologies, products and services
that the ‘‘materially inhibit’’ standard interpretation that identical words for the benefit of the public . . . without
articulated in 1997 by the Clinton-era appearing in neighboring provisions of administrative or judicial delays[, and]
FCC’s California Payphone decision is the same statute should be interpreted efficient and intensive use of the
the appropriate standard for to have the same meaning. Moreover, electromagnetic spectrum.’ ’’ These
determining whether a state or local law both of these provisions apply to provisions demonstrate that the
operates as a prohibition or effective wireless telecommunications services as Commission’s interpretation of Section
prohibition within the meaning of well as to commingled services and 253 and Section 332(c)(7)(B)(i)(II) is in
Sections 253 and 332. facilities. accordance with the broader goals of the
3. Second, the Commission notes, as 6. As explained in California various statutes that the Commission is
numerous courts have recognized, that Payphone and reaffirmed here, a state or entrusted to administer.
state and local fees and other charges local legal requirement will have the 8. California Payphone further
associated with the deployment of effect of prohibiting wireless concluded that providers must be
wireless infrastructure can effectively telecommunications services if it allowed to compete in a ‘‘fair and
prohibit the provision of service. At the materially inhibits the provision of such balanced regulatory environment.’’ As
same time, courts have articulated services. California Payphone Ass’n, 12 reflected in decisions such as the
various approaches to determining the FCC Rcd 14191 (1997). The Commission Commission’s Texas PUC Order, a state
types of fees that run afoul of Congress’s clarifies that an effective prohibition or local legal requirement can function
limits in Sections 253 and 332. The occurs where a state or local legal as an effective prohibition either
Commission thus clarifies the particular requirement materially inhibits a because of the resulting ‘‘financial
standard that governs the fees and provider’s ability to engage in any of a burden’’ in an absolute sense, or,
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charges that violate Sections 253 and variety of activities related to its independently, because of a resulting
332 when it comes to the Small Wireless provision of a covered service. This test competitive disparity. Public Utility
Facilities at issue in this decision. is met not only when filling a coverage Comm’n of Texas, et al., Pet. for Decl.
Namely, fees are only permitted to the gap but also when densifying a wireless Ruling and/or Preemption of Certain
extent that they represent a reasonable network, introducing new services or Provisions of the Texas Pub. Util. Reg.
approximation of the local government’s otherwise improving service Act of 1995, 13 FCC Rcd 3460 (1997).
objectively reasonable costs and are capabilities. Under the California The Commission clarifies that ‘‘[a]
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![Federal Register / Vol. 83, No. 199 / Monday, October 15, 2018 / Rules and Regulations 51869
regulatory structure that gives an local, regional or national level. The intended for virtually identical language
advantage to particular services or Commission is persuaded that providers to have different meanings in the two
facilities has a prohibitory effect, even if and infrastructure builders, like all provisions. Instead, the Commission
there are no express barriers to entry in economic actors, have a finite (though finds it more reasonable to conclude
the state or local code; the greater the perhaps fluid) amount of resources to that the language in both sections
discriminatory effect, the more certain it use for the deployment of infrastructure. should be interpreted to have the same
is that entities providing service using This does not mean that these resources meaning and to reflect the same
the disfavored facilities will experience are limitless, however. The Commission standard, including with respect to
prohibition.’’ This conclusion is concludes that fees imposed by preemption of fees that could ‘‘prohibit’’
consistent with both Commission and localities, above and beyond the or have ‘‘the effect of prohibiting’’ the
judicial precedent recognizing the recovery of localities’ reasonable costs, provision of covered service. Both
prohibitory effect that results from a materially and improperly inhibit sections were enacted to address
competitor being treated materially deployment that could have occurred concerns about state and local
differently than similarly-situated elsewhere. This and regulatory government practices that undermined
providers. The Commission provides its uncertainty created by such effectively providers’ ability to provide covered
authoritative interpretation below of the prohibitive conduct creates an services, and both bar state or local
circumstances in which a ‘‘financial appreciable impact on resources that conduct that prohibits or has the effect
burden,’’ as described in the Texas PUC materially limits plans to deploy of prohibiting service.
Order, constitutes an effective service. This record evidence 14. To be sure, Sections 253 and
prohibition in the context of certain emphasizes the importance of 332(c)(7) may relate to different
state and local fees. evaluating the effect of fees on Small categories of state and local fees.
Wireless Facility deployment on an Ultimately, the Commission needs not
B. State and Local Fees resolve here the precise interplay
aggregate basis. The record persuades
9. Cognizant of the changing the Commission that fees associated between Sections 253 and 332(c)(7). It is
technology and its interaction with with Small Wireless Facility enough for it to conclude that,
regulations created for a previous deployment lead to ‘‘a substantial collectively, Congress intended for the
generation of service, the Commission increase in costs’’—particularly when two provisions to cover the universe of
sought comment on the scope of considered in the aggregate—thereby fees charged by state and local
Sections 253 and 332(c)(7) and on any ‘‘plac[ing] a significant burden’’ on governments in connection with the
new or updated guidance the carriers and materially inhibiting their deployment of telecommunications
Commission should provide, potentially provision of service contrary to Section infrastructure. Given the analogous
through a Declaratory Ruling. In 253 of the Act. purposes of both sections and the
particular, the Commission sought 12. The record reveals that fees above consistent language used by Congress,
comment on whether it should provide a reasonable approximation of cost, the Commission finds the phrase
further guidance on how to interpret even when they may not be perceived ‘‘prohibit or have the effect of
and apply the phrase ‘‘prohibit or have as excessive or likely to prohibit service prohibiting’’ in Section 332(c)(7)(B)(i)(II)
the effect of prohibiting.’’ in isolation, will have the effect of should be construed as having the same
10. The Commission concludes that prohibiting wireless service when the meaning and governed by the same
ROW access fees, and fees for the use of aggregate effects are considered, preemption standard as the nearly
government property in the ROW, such particularly given the nature and identical language in Section 253(a).
as light poles, traffic lights, utility poles, volume of anticipated Small Wireless 15. Application of the Interpretations
and other similar property suitable for Facility deployment. The record reveals and Principles Established Here.
hosting Small Wireless Facilities, as that these effects can take several forms. Consistent with the interpretations
well as application or review fees and In some cases, the fees in a particular above, the requirement that
similar fees imposed by a state or local jurisdiction will lead to reduced or compensation be limited to a reasonable
government as part of their regulation of entirely forgone deployment of Small approximation of objectively reasonable
the deployment of Small Wireless Wireless Facilities in the near term for costs and be non-discriminatory applies
Facilities inside and outside the ROW, that jurisdiction. In other cases, where to all state and local government fees
violate Sections 253 or 332(c)(7) unless it is essential for a provider to deploy paid in connection with a provider’s use
these conditions are met: (1) The fees in a given area, the fees charged in that of the ROW to deploy Small Wireless
are a reasonable approximation of the geographic area can deprive providers of Facilities including, but not limited to,
state or local government’s costs, (2) capital needed to deploy elsewhere, and fees for access to the ROW itself, and
only objectively reasonable costs are lead to reduced or forgone near-term fees for the attachment to or use of
factored into those fees, and (3) the fees deployment of Small Wireless Facilities property within the ROW owned or
are no higher than the fees charged to in other geographic areas. In both of controlled by the government (e.g.,
similarly-situated competitors in similar those scenarios the bottom-line outcome street lights, traffic lights, utility poles,
situations. on the national development of 5G and other infrastructure within the
11. Capital Expenditures. Apart from networks is the same—diminished ROW suitable for the placement of
the text, structure, and legislative deployment of Small Wireless Facilities Small Wireless Facilities). This
history of the 1996 Act, an additional, critical for wireless service and building interpretation applies with equal force
independent justification for the out 5G networks. to any fees reasonably related to the
Commission’s interpretation follows 13. Relationship to Section 332. The placement, construction, maintenance,
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from the simple, logical premise, Commission clarifies that the statutory repair, movement, modification,
supported by the record, that state and phrase ‘‘prohibit or have the effect of upgrade, replacement, or removal of
local fees in one place of deployment prohibiting’’ in Section 332(c)(7)(B)(i)(II) Small Wireless Facilities within the
necessarily have the effect of reducing has the same meaning as the phrase ROW, including, but not limited to,
the amount of capital that providers can ‘‘prohibits or has the effect of application or permit fees such as siting
use to deploy infrastructure elsewhere, prohibiting’’ in Section 253(a). There is applications, zoning variance
whether the reduction takes place on a no evidence to suggest that Congress applications, building permits, electrical
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permits, parking permits, or excavation recovers a reasonable approximation of document the costs they may incur
permits. a state or local government’s objectively when determining the fees they charge
16. Applying the principles reasonable costs of, respectively, for Small Wireless Facilities within the
established in this Declaratory Ruling, a maintaining the ROW, maintaining a ROW. Moreover, in order to simplify
variety of fees not reasonably tethered to structure within the ROW, or processing compliance, when a locality charges
costs appear to violate Sections 253(a) an application or permit. both types of recurring fees identified
or 332(c)(7) in the context of Small 19. The existence of Section 253(c) above (i.e., for access to the ROW and
Wireless Facility deployments. For makes clear that Congress anticipated for use of or attachment to property in
example, the Commission agrees with that ‘‘effective prohibitions’’ could the ROW), the Commission sees no
courts that have recognized that gross result from state or local government reason for concern with how it has
revenue fees generally are not based on fees, and intended through that clause allocated costs between those two types
the costs associated with an entity’s use to provide protections in that respect, as of fees. It is sufficient under the statute
of the ROW, and where that is the case, discussed in greater detail herein. that the total of the two recurring fees
are preempted under Section 253(a). In Against that backdrop, the Commission reflects the total costs involved. Fees
addition, although the Commission finds it unlikely that Congress would that cannot ultimately be shown by a
rejects calls to preclude a state or have left providers entirely at the mercy state or locality to be a reasonable
locality’s use of third party contractors of effectively unconstrained approximation of their costs, such as
or consultants, or to find all associated requirements of state or local high fees designed to subsidize local
compensation preempted, the governments. The Commission’s government costs in another geographic
Commission makes clear that the interpretation of Section 253(c), in fact, area or accomplish some public policy
principles discussed herein regarding is consistent with the views of many objective beyond the providers’ use of
the reasonableness of cost remain municipal commenters, at least with the ROW, are not ‘‘fair and reasonable
applicable. Thus, fees must not only be respect to one-time permit or compensation . . . for use of the public
limited to a reasonable approximation of application fees, and the members of the rights-of-way’’ under Section 253(c).
costs, but in order to be reflected in fees BDAC Ad Hoc Committee on Rates and Likewise, the Commission agrees with
the costs themselves must also be Fees who unanimously concurred that both industry and municipal
reasonable. Accordingly, any one-time fees for municipal applications commenters that excessive and arbitrary
unreasonably high costs, such as and permits, such as an electrical consulting fees or other costs should not
excessive charges by third party inspection or a building permit, should be recoverable as ‘‘fair and reasonable
contractors or consultants, may not be be based on the cost to the government compensation,’’ because they are not a
passed on through fees even though of processing that application. The Ad function of the provider’s ‘‘use’’ of the
they are an actual ‘‘cost’’ to the Hoc Committee noted that ‘‘[the] cost- public ROW.
government. If a locality opts to incur based fee structure [for one-time fees] 22. In addition to requiring that
unreasonable costs, Sections 253 and unanimously approved by the compensation be ‘‘fair and reasonable,’’
332(c)(7) do not permit it to pass those committee accommodates the different Section 253(c) requires that it be
costs on to providers. Fees that depart siting related costs that different ‘‘competitively neutral and
from these principles are not saved by localities may incur to review, and nondiscriminatory.’’ The Commission
Section 253(c), as the Commission process permit applications, while has previously interpreted this language
discusses below. precluding excessive fees that impede to prohibit states and localities from
17. Interpretation of Section 253(c) in deployment.’’ The Commission finds charging fees on new entrants and not
the Context of Fees. In this section, the that the same reasoning should apply to on incumbents. Courts have similarly
Commission turns to the interpretation other state and local government fees found that states and localities may not
of several provisions in Section 253(c), such as ROW access fees or fees for the impose a range of fees on one provider
which provides that state or local action use of government property within the but not on another and even some
that otherwise would be subject to ROW. municipal commenters acknowledge
preemption under Section 253(a) may 20. The Commission recognizes that that governments should not
be permissible if it meets specified state and local governments incur a discriminate on the fees charged to
criteria. Section 253(c) expressly variety of direct and actual costs in different providers. The record reflects
provides that state or local governments connection with Small Wireless continuing concerns from providers,
may require telecommunications Facilities, such as the cost for staff to however, that they face discriminatory
providers to pay ‘‘fair and reasonable review the provider’s siting application, charges. The Commission reiterates its
compensation’’ for use of public ROWs costs associated with a provider’s use of previous determination that state and
but requires that the amounts of any the ROW, and costs associated with local governments may not impose fees
such compensation be ‘‘competitively maintaining the ROW itself or structures on some providers that they do not
neutral and nondiscriminatory’’ and within the ROW to which Small impose on others. The Commission
‘‘publicly disclosed.’’ Wireless Facilities are attached. The would also be concerned about fees,
18. The Commission interprets the Commission also recognizes that direct whether one-time or recurring, related
ambiguous phrase ‘‘fair and reasonable and actual costs may vary by location, to Small Wireless Facilities, that exceed
compensation,’’ within the statutory scope, and extent of providers’ planned the fees for other wireless
framework it outlined for Section 253, deployments, such that different telecommunications infrastructure in
to allow state or local governments to localities will have different fees under similar situations, and to the extent that
charge fees that recover a reasonable the interpretation set forth in this different fees are charged for similar use
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approximation of the state or local Declaratory Ruling. of the public ROW.
governments’ actual and reasonable 21. Because the Commission 23. Fee Levels Likely to Comply with
costs. The Commission concludes that interprets fair and reasonable Section 253. The Commission’s
an appropriate yardstick for ‘‘fair and compensation as a reasonable interpretations of Section 253(a) and
reasonable compensation,’’ and approximation of costs, it does not ‘‘fair and reasonable compensation’’
therefore an indicator of whether a fee suggest that localities must use any under Section 253(c) provides guidance
violates Section 253(c), is whether it specific accounting method to for local and state fees charged with
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standards that are consistent with this D. States and Localities Act in Their that Section 253(c) ‘‘makes explicit a
Declaratory Ruling. Based on its review Regulatory Capacities When local government’s continuing authority
and evaluation of commenters’ Authorizing and Setting Terms for to issue construction permits regulating
concerns, the Commission anticipates Wireless Infrastructure Deployment in how and when construction is
that such publication should take no Public Rights of Way conducted on roads and other public
longer than 180 days after publication of 35. The Commission confirms that it rights-of-way;’’ the Commission
this decision in the Federal Register. interpretations today extend to state and concludes here that, as a general matter,
33. Undergrounding requirements. local governments’ terms for access to ‘‘manage[ment]’’ of the ROW includes
The Commission understands that some public ROW that they own or control, any conduct that bears on access to and
local jurisdictions have adopted including areas on, below, or above use of those ROW, notwithstanding any
undergrounding provisions that require public roadways, highways, streets, attempts to characterize such conduct as
infrastructure to be deployed below sidewalks, or similar property, as well proprietary. This reading, coupled with
ground based, at least in some as their terms for use of or attachment Section 253(c)’s narrow scope, suggests
circumstances, on the locality’s to government-owned property within that Congress’s omission of a blanket
aesthetic concerns. A number of such ROW, such as light poles, traffic proprietary exception to preemption
providers have complained that these lights, and similar property suitable for was intentional and thus that such
types of requirements amount to an hosting Small Wireless Facilities. As conduct can be preempted under
effective prohibition. In addressing this explained below, for two alternative and Section 253(a). The Commission
issue, the Commission first reiterates independent reasons, the Commission therefore construes Section 253(c)’s
that while undergrounding disagrees with state and local requirements, including the requirement
requirements may well be permissible government commenters who assert that compensation be ‘‘fair and
under state law as a general matter, any that, in providing or denying access to reasonable,’’ as applying equally to
local authority to impose government-owned structures, these charges imposed via contracts and other
undergrounding requirements under governmental entities function solely as arrangements between a state or local
state law does not remove the ‘‘market participants’’ whose rights government and a party engaged in
imposition of such undergrounding cannot be subject to federal preemption wireless facility deployment. This
requirements from the provisions of under Section 253(a) or Section interpretation is consistent with Section
Section 253. In this sense, the 332(c)(7). 253(a)’s reference to ‘‘State or local legal
Commission notes that a requirement 36. First, this effort to differentiate requirement[s],’’ which the Commission
that all wireless facilities be deployed between such governmental entities’ has consistently construed to include
underground would amount to an ‘‘regulatory’’ and ‘‘proprietary’’ such agreements. In light of the
effective prohibition given the capacities in order to insulate the latter foregoing, whatever the force of the
propagation characteristics of wireless from preemption ignores a fundamental market participant doctrine in other
signals. Thus, undergrounding feature of the market participant contexts, the Commission believes the
requirements can amount to effective doctrine. Specifically, Section 253(a) language, legislative history, and
prohibitions by materially inhibiting the expressly preempts certain state and purpose of Sections 253(a) and (c) are
deployment of wireless service. local ‘‘legal requirements’’ and makes incompatible with the application of
34. Minimum spacing requirements. no distinction between a state or this doctrine in this context. The
Some parties complain of municipal locality’s regulatory and proprietary Commission observes once more that
requirements regarding the spacing of conduct. Indeed, as the Commission has ‘‘[o]ur conclusion that Congress
wireless installations—i.e., mandating long recognized, Section 253(a)’s intended this language to be interpreted
that facilities be sited at least 100, 500, sweeping reference to ‘‘state [and] local broadly is reinforced by the scope of
or 1,000 feet, or some other minimum statute[s] [and] regulation[s]’’ and ‘‘other section 253(d),’’ which ‘‘directs the
distance, away from other facilities, State [and] local legal requirement[s]’’ Commission to preempt any statute,
ostensibly to avoid excessive overhead demonstrates Congress’s intent ‘‘to regulation, or legal requirement
‘‘clutter’’ that would be visible from capture a broad range of state and local permitted or imposed by a state or local
public areas. The Commission actions that prohibit or have the effect government if it contravenes sections
acknowledges that while some such of prohibiting entities from providing 253(a) or (b). A more restrictive
requirements may violate 253(a), others telecommunications services.’’ Section interpretation of the term ‘other legal
may be reasonable aesthetic 253(b) mentions ‘‘requirement[s],’’ a requirements’ easily could permit state
requirements. For example, under the phrase that is even broader than that and local restrictions on competition to
principle that any such requirements be used in Section 253(a) but covers escape preemption based solely on the
reasonable and publicly available in ‘‘universal service,’’ ‘‘public safety and way in which [State] action [is]
advance, it is difficult to envision any welfare,’’ ‘‘continued quality of structured. The Commission does not
circumstances in which a municipality telecommunications,’’ and ‘‘safeguard[s believe that Congress intended this
could reasonably promulgate a new for the] rights of consumers.’’ The result.’’
minimum spacing requirement that, in subsection does not recognize a 37. Similarly, the Commission
effect, prevents a provider from distinction between regulatory and interprets Section 332(c)(7)(B)(ii)’s
replacing its preexisting facilities or proprietary. Section 253(c), which references to ‘‘any request[s] for
collocating new equipment on a expressly insulates from preemption authorization to place, construct, or
structure already in use. Such a rule certain state and local government modify personal wireless service
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change with retroactive effect would activities, refers in relevant part to facilities’’ broadly, consistent with
almost certainly have the effect of ‘‘manag[ing] the public rights-of-way’’ Congressional intent. As described
prohibiting service under the standards and ‘‘requir[ing] fair and reasonable below, the Commission finds that ‘‘any’’
the Commission articulate here. compensation,’’ while eliding any is unqualifiedly broad, and that
Therefore, such requirements should be distinction between regulatory and ‘‘request’’ encompasses anything
evaluated under the same standards as proprietary action in either context. The required to secure all authorizations
other aesthetic requirements. Commission has previously observed necessary for the deployment of
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personal wireless services ROW as a pretext to advance regulatory Section 332(c)(7)(B)(i)(II) because it
infrastructure. In particular, the objectives that prohibit or have the prohibits or has the effect of prohibiting
Commission finds that Section 332(c)(7) effect of prohibiting the provision of the relevant covered service.
includes authorizations relating to covered services, and thus that such 42. The Commission’s interpretations
access to a ROW, including but not conduct is preempted. The of Sections 253 and Section 332(c)(7)
limited to the ‘‘place[ment], Commission’s interpretations here are are likewise not at odds with the Tenth
construct[ion], or modif[ication]’’ of intended to facilitate the Amendment and constitutional
facilities on government-owned implementation of the scheme Congress precedent, as some commenters
property, for the purpose of providing intended and to provide greater contend. In particular, the
‘‘personal wireless service.’’ The regulatory certainty to states, Commission’s interpretations do not
Commission observes that this result, municipalities, and regulated parties directly ‘‘compel the states to
too, is consistent with Commission about what conduct is preempted under administer federal regulatory programs
precedent, which involved a contract Section 253(a). Should factual questions or pass legislation.’’ The outcome of
that provided exclusive access to a arise about whether a state or locality is violations of Section 253(a) or Section
ROW. As but one example, to have engaged in such behavior, Section 332(c)(7)(B) of the Act are no more than
limited that holding to exclude 253(d) affords state and local a consequence of ‘‘the limits Congress
government-owned property within the governments and private parties an already imposed on State and local
ROW even if the carrier needed access avenue for specific preemption governments’’ through its enactment of
to that property would have the effect of challenges. Section 332(c)(7).
diluting or completely defeating the 43. The Commission also reject the
E. Responses to Challenges to the suggestion that the limits Section 253
purpose of Section 332(c)(7).
38. Second, and in the alternative, Commission’s Interpretive Authority places on state and local rights-of-way
even if Section 253(a) and Section and Other Arguments fees and management will
332(c)(7) were to permit leeway for 40. The Commission rejects claims unconstitutionally interfere with the
states and localities acting in their that it lacks authority to issue relationship between a state and its
proprietary role, the examples in the authoritative interpretations of Sections political subdivisions. As relevant to its
record would be excepted because they 253 and 332(c)(7) in this Declaratory interpretations here, it is not clear, at
involve states and localities fulfilling Ruling. The Commission acts here first blush, that such concerns would be
regulatory objectives. In the proprietary pursuant to its broad authority to implicated. Because state and local legal
context, ‘‘a State acts as a ‘market interpret key provisions of the requirements can be written and
participant with no interest in setting Communications Act, consistent with structured in myriad ways, and
policy.’ ’’ The Commission contrasts the Commission’s exercise of that challenges to such state or local
state and local governments’ purely interpretive authority in the past. In this activities could be framed in broad or
proprietary actions with states and instance, the Commission finds that narrow terms, the Commission declines
localities acting with respect to issuing a Declaratory Ruling is to resolve such questions here, divorced
managing or controlling access to necessary to remove what the record from any specific context.
property within public ROW, or to reveals is substantial uncertainty and to
reduce the number and complexity of II. Third Report and Order
decisions about where facilities that will
provide personal wireless service to the legal controversies regarding certain fee 44. In this Third Report and Order,
public may be sited. As several and non-fee state and local legal the Commission addresses the
commenters point out, courts have requirements in connection with Small application of shot clocks to state and
recognized that states and localities Wireless Facility infrastructure. The local review of wireless infrastructure
‘‘hold the public streets and sidewalks Commission thus exercise its authority deployments. The Commission does so
in trust for the public’’ and ‘‘manage in this Declaratory Ruling to interpret by taking action in three main areas.
public ROW in their regulatory Section 253 and Section 332(c)(7) and First, the Commission adopts a new set
capacities.’’ These decisions could be explain how those provisions apply in of shot clocks tailored to support the
based on a number of regulatory the specific scenarios at issue here. deployment Small Wireless Facilities.
objectives, such as aesthetics or public 41. Nothing in Sections 253 or Second, the Commission adopts a
safety and welfare, some of which, as 332(c)(7) purports to limit the exercise specific remedy that applies to
the Commission notes elsewhere, would of the Commission’s general interpretive violations of these new Small Wireless
fall within the preemption scheme authority. Congress’s inclusion of Facility shot clocks, which the
envisioned by Congress. In these preemption provisions in Section 253(d) Commission expects will operate to
situations, the State or locality’s role and Section 332(c)(7)(B)(v) does not significantly reduce the need for
seems to be indistinguishable from its limit the Commission’s ability pursuant litigation over missed shot clocks.
function and objectives as a regulator. to other sections of the Act to construe Third, the Commission clarifies a
To the extent that there is some and provide its authoritative number of issues that are relevant to all
distinction, the temptation to blend the interpretation as to the meaning of those of the FCC’s shot clocks, including the
two roles for purposes of insulating provisions. Any preemption under types of authorizations subject to these
conduct from federal preemption cannot Section 253 and/or Section 332(c)(7)(B) time periods.
be underestimated in light of the that subsequently occurs will proceed in
accordance with the enforcement A. New Shot Clocks for Small Wireless
overarching statutory objective that
telecommunications service and mechanisms available in each context. Facility Deployments
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personal wireless services be deployed But whatever enforcement mechanisms 45. In 2009, the Commission
without material impediments. may be available to preempt specific concluded that it should use shot clocks
39. The Commission believes that state and local requirements, nothing in to define a presumptive ‘‘reasonable
Section 253(c) is properly construed to Section 253 or Section 332(c)(7) period of time’’ beyond which state or
suggest that Congress did not intend to prevents the Commission from declaring local inaction on wireless infrastructure
permit states and localities to rely on that a category of state or local laws is siting applications would constitute a
their ownership of property within a inconsistent with Section 253(a) or ‘‘failure to act’’ within the meaning of
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separately. The Commission sees no the Commission also provides an the Commission expects, as noted
reason why the shot clocks for batched additional remedy that it expects will above, siting authorities to issue without
applications to deploy Small Wireless substantially reduce the likelihood that any further delay all necessary
Facilities should be longer than those applicants will need to pursue authorizations when notified by the
that apply to individual applications additional and costly relief in court at applicant that they have missed the shot
because, in many cases, the batching of the expiration of those time periods. clock deadline, absent extraordinary
such applications has advantages in 54. The Commission determines that circumstances. Where the siting
terms of administrative efficiency that the failure of a state or local government authority nevertheless fails to issue all
could actually make review easier. The to issue a decision on a Small Wireless necessary authorizations and litigation
Commission’s decision flows from its Facility siting application within the is commenced based on violations of
current Section 332 shot clock policy. presumptively reasonable time periods Sections 332(c)(7)(B)(i)(II) and/or
Under the two existing Section 332 shot above will constitute a ‘‘failure to act’’ 332(c)(7)(B)(ii), the Commission expects
clocks, if an applicant files multiple within the meaning of Section that applicants and other aggrieved
siting applications on the same day for 332(c)(7)(B)(v). Therefore, a provider is, parties will likely pursue equitable
the same type of facilities, each at a minimum, entitled to the same judicial remedies. Given the relatively
application is subject to the same process and remedies available for a low burden on state and local
number of review days by the siting failure to act within the new Small authorities of simply acting—one way or
agency. These multiple siting Wireless Facility shot clocks as they the other—within the Small Wireless
applications are equivalent to a batched have been under the FCC’s 2009 shot Facility shot clocks, the Commission
application and therefore the shot clocks. But the Commission also adds thinks that applicants would have a
clocks for batching should follow the an additional remedy for the new Small relatively low hurdle to clear in
same rules as if the applications were Wireless Facility shot clocks. establishing a right to expedited judicial
filed separately. Accordingly, when 55. State or local inaction by the end relief.
applications to deploy Small Wireless of the Small Wireless Facility shot clock 58. The Commission expects that
Facilities are filed in batches, the shot will function not only as a Section courts will typically find expedited and
clock that applies to the batch is the 332(c)(7)(B)(v) failure to act but also permanent injunctive relief warranted
same one that would apply had the amount to a presumptive prohibition on for violations of Sections
applicant submitted individual the provision of personal wireless 332(c)(7)(B)(i)(II) and 332(c)(7)(B)(ii) of
applications. Should an applicant file a services within the meaning of Section the Act when addressing the
single application for a batch that 332(c)(7)(B)(i)(II). Accordingly, the circumstances discussed in this Order.
includes both collocated and new Commission would expect the state or The Commission believes that this
construction of Small Wireless local government to issue all necessary approach is sensible because guarding
Facilities, the longer 90-day shot clock permits without further delay. In cases against barriers to the deployment of
will apply, to ensure that the siting where such action is not taken, the personal wireless facilities not only
authority has adequate time to review Commission assumes, for the reasons advances the goal of Section 332(c)(7)(B)
the new construction sites. discussed below, that the applicant but also policies set out elsewhere in the
52. The Commission recognizes the would have a straightforward case for Communications Act and 1996 Act, as
concerns raised by parties arguing for a obtaining expedited relief in court. the Commission recently has recognized
longer time period for at least some 56. As discussed in the Declaratory in the case of Small Wireless Facilities.
batched applications but concludes that Ruling, a regulation under Section This is so whether or not these barriers
a separate rule is not necessary to 332(c)(7)(B)(i)(II) constitutes an effective stem from bad faith. Nor does the
address these concerns. Under the prohibition if it materially limits or Commission anticipate that there would
Commission’s approach, in inhibits the ability of any competitor or be unresolved issues implicating the
extraordinary cases, a siting authority, potential competitor to compete in a fair siting authority’s expertise and therefore
as discussed below, can rebut the and balanced legal and regulatory requiring remand in most instances.
presumption of reasonableness of the environment. Missing shot clock 59. The guidance provided here
applicable shot clock period where a deadlines would thus presumptively should reduce the need for, and
batch application causes legitimate have the effect of unlawfully prohibiting complexity of, case-by-case litigation
overload on the siting authority’s service in that such failure to act can be and reduce the likelihood of vastly
resources. Thus, contrary to some expected to materially limit or inhibit different timing across various
localities’ arguments, the Commission’s the introduction of new services or the jurisdictions for the same type of
approach provides for a certain degree improvement of existing services. Thus, deployment. This clarification, along
of flexibility to account for exceptional when a siting authority misses the with the other actions the Commission
circumstances. In addition, consistent applicable shot clock deadline, the takes in this Third Report and Order,
with, and for the same reasons as the applicant may commence suit in a court should streamline the courts’ decision-
Commission’s conclusion below that of competent jurisdiction alleging a making process and reduce the
Section 332 does not permit states and violation of Section 332(c)(7)(B)(i)(II), in possibility of inconsistent rulings.
localities to prohibit applicants from addition to a violation of Section Consequently, the Commission believes
requesting multiple types of approvals 332(c)(7)(B)(ii), as discussed above. The that its approach helps facilitate courts’
simultaneously, the Commission finds siting authority then will have an ability to ‘‘hear and decide such
that Section 332(c)(7)(B)(ii) similarly opportunity to rebut the presumption of [lawsuits] on an expedited basis,’’ as the
does not allow states and localities to effective prohibition by demonstrating statute requires.
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refuse to accept batches of applications that the failure to act was reasonable 60. The Commission’s updated
to deploy Small Wireless Facilities. under the circumstances and, therefore, interpretation of Section 332(c)(7) for
did not materially limit or inhibit the Small Wireless Facilities effectively
B. New Remedy for Violations of the applicant from introducing new services balances the interest of wireless service
Small Wireless Facilities Shot Clocks or improving existing services. providers to have siting applications
53. In adopting these new shot clocks 57. Given the seriousness of failure to granted in a timely and streamlined
for Small Wireless Facility applications, act within a reasonable period of time, manner and the interest of localities to
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protect public safety and welfare and ensuring that the entire approval there is no persuasive reason to accept
preserve their authority over the process necessary for deployment is a narrower interpretation. This is
permitting process. The Commission’s completed within a reasonable period of particularly true given that the NPA
specialized deployment categories, in time, as defined by the shot clocks definition of collocation stands in direct
conjunction with the acknowledgement addressed in this Third Report and contrast with the definition of
that in rare instances, it may Order. collocation in the Spectrum Act,
legitimately take longer to act, recognize pursuant to which facilities only fall
2. Codification of Section 332 Shot
that the siting process is complex and within the scope of an ‘‘eligible facilities
Clocks
handled in many different ways under request’’ if they are attached to towers
various states’ and localities’ long- 63. In addition to establishing two or base stations that have already been
established codes. Further, the new Section 332 shot clocks for Small zoned for wireless use.
Commission’s approach tempers Wireless Facilities, the Commission
takes this opportunity to codify its two 4. When Shot Clocks Start and
localities’ concerns about the Incomplete Applications
inflexibility of a deemed granted existing Section 332 shot clocks for
proposal because the new remedy the siting applications that do not involve 65. In 2014 the Commission clarified
Commission adopts here accounts for Small Wireless Facilities. In 2009 the that a shot clock begins to run when an
the breadth of potentially unforeseen Commission found that 90 days is a application is first submitted, not when
circumstances that individual localities reasonable time frame for processing the application is deemed complete.
may face and the possibility that collocation applications and 150 days is The clock can be paused, however, if
additional review time may be needed a reasonable time frame to process the locality notifies the applicant within
in truly exceptional circumstances. The applications other than collocations. 30 days that the application is
Commission further finds that its Since these Section 332 shot clocks incomplete. The locality may pause the
interpretive framework will not be were adopted as part of a declaratory clock again if it provides written notice
unduly burdensome on localities ruling, they were not codified in the within 10 days that the supplemental
because a number of states have already Commission’s rules. The Commission submission did not provide the
adopted even more stringent deemed sought comment on whether to modify information identified in the original
granted remedies these shot clocks. The Commission notice delineating missing information.
finds no need to modify them here and The Commission sought comment on
C. Clarification of Issues Related to All will continue to use these shot clocks these determinations.
Section 332 Shot Clocks for processing Section 332 siting 66. Based on the record, the
applications that do not involve Small Commission finds no cause to alter the
1. Authorizations Subject to the
Wireless Facilities. The Commission Commission’s prior determinations and
‘‘Reasonable Period of Time’’ Provision
does, though, codify these two existing now codifies them in its rules. Codified
of Section 332(c)(7)(B)(ii)
shot clocks in its rules alongside the two rules, easily accessible to applicants and
61. Section 332(c)(7)(B)(ii) requires newly-adopted shot clocks so that all localities alike, should provide helpful
state and local governments to act interested parties can readily find the clarity. The complaints by states and
‘‘within a reasonable period of time’’ on shot clock requirements in one place. localities about the sufficiency of some
‘‘any request for authorization to place, of the applications they receive are
construct, or modify personal wireless 3. Collocations on Structures Not adequately addressed by the
service facilities.’’ The Commission has Previously Zoned for Wireless Use Commission’s current policy, which
not addressed the specific types of 64. The Commission takes this preserves the states’ and localities’
authorizations subject to this opportunity to clarify that for purposes ability to pause review when they find
requirement. After carefully considering of the Section 332 shot clocks, an application to be incomplete. The
these arguments, the Commission finds attachment of facilities to existing Commission does not find it necessary
that ‘‘any request for authorization to structures constitutes collocation, at this point to shorten the 30-day initial
place, construct, or modify personal regardless of whether the structure or review period for completeness because,
wireless service facilities’’ under the location has previously been zoned as was the case when this review period
Section 332(c)(7)(B)(ii) means all for wireless facilities. As the was adopted in the 2009, it remains
authorizations necessary for the Commission stated in 2009, ‘‘an consistent with review periods for
deployment of personal wireless application is a request for collocation completeness under existing state
services infrastructure. This if it does not involve a ‘substantial wireless infrastructure deployment
interpretation finds support in the increase in the size of a tower’ as statutes and still ‘‘gives State and local
record and is consistent with the courts’ defined in the Nationwide governments sufficient time for
interpretation of this provision and the Programmatic Agreement (NPA) for the reviewing applications for
text and purpose of the Act. Collocation of Wireless Antennas.’’ The completeness, while protecting
62. The Commission’s interpretation definition of ‘‘[c]ollocation’’ in the NPA applicants from a last minute decision
remains faithful to the purpose of provides for the ‘‘mounting or that an application should be denied as
Section 332(c)(7) to balance Congress’s installation of an antenna on an existing incomplete.’’
competing desires to preserve the tower, building or structure for the 67. However, for applications to
traditional role of state and local purpose of transmitting and/or receiving deploy Small Wireless Facilities, the
governments in regulating land use and radio frequency signals for Commission implements a modified
zoning, while encouraging the rapid communications purposes, whether or tolling system designed to help ensure
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development of new not there is an existing antenna on the that providers are submitting complete
telecommunications technologies. structure.’’ The NPA’s definition of applications on day one. This step
Under the Commission’s interpretation, collocation explicitly encompasses accounts for the fact that the shot clocks
states and localities retain their collocations on structures and buildings applicable to such applications are
authority over personal wireless that have not yet been zoned for shorter than those established in 2009
facilities deployment. At the same time, wireless use. To interpret the NPA any and, because of which, there may
deployment will be kept on track by other way would be unduly narrow and instances where the prevailing tolling
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![51886 Federal Register / Vol. 83, No. 199 / Monday, October 15, 2018 / Rules and Regulations
§ 1.40001 [Redesignated as § 1.6100 and Subpart CC—[Removed]
Amended]
■ 3. Redesignate § 1.40001 as § 1.6100 ■ 4. Remove subpart CC.
and, in newly redesignated § 1.6100, [FR Doc. 2018–22234 Filed 10–12–18; 8:45 am]
remove and reserve paragraph (a). BILLING CODE 6712–01–P
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VerDate Sep<11>2014 16:29 Oct 12, 2018 Jkt 247001 PO 00000 Frm 00072 Fmt 4700 Sfmt 9990 E:\FR\FM\15OCR1.SGM 15OCR1](https://thefederalregister.org/doc/83_FR_52066/page/20.svg)
Document Created: 2018-10-13 10:03:59
Document Modified: 2018-10-13 10:03:59
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | Effective January 14, 2019. | |
| Contact | Jiaming Shang, Deputy Chief (Acting) Competition and Infrastructure Policy Division, Wireless Telecommunications Bureau, (202) 418-1303, email [email protected] | |
| FR Citation | 83 FR 51867 | |
| CFR Associated | Communications Common Carriers; Communications Equipment; Environmental Protection; Historic Preservation; Radio and Telecommunications |
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