FCC Approves 5G Upgrade Ruling in Heated Session

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By a quarrelsome 3-to-2 vote, the FCC yesterday approved an order to modernize wireless infrastructure. Specifically, the Declaratory Ruling specifies when a 60-day shot clock for local approval begins and clarifies Section 6409 of the Spectrum Act to enable upgrades on existing macro towers.

The ruling also clarifies how certain aspects of proposed modifications – height increases, equipment cabinet additions, and impact on concealment elements and aesthetic conditions – affect eligibility for streamlined review under Section 6409(a).  In addition, the action clarifies that, under the Commission’s rules on environmental and historic preservation review, FCC applicants do not need to submit environmental assessments based only on potential impacts to historic properties when parties have entered into a memorandum of agreement to mitigate effects on those properties. 

The so-called “5G Upgrade Order” also says which new equipment qualifies for streamlined approval. It ensures localities can’t misuse concealment and aesthetic conditions to limit the ability to quickly upgrade concealed infrastructure, according to the agency.  

FCC Commissioner Brendan Carr spearheaded the work on the item. He said during the vote that upgrading existing wireless infrastructure is faster and less expensive than building new towers. Co-location, “is less intensive and requires less regulatory review than new tower construction.”

The 3-2 vote was combative. Democratic Commissioners Jessica Rosenworcel and Geoffrey Starks criticized the Commission for not giving localities more time to comment, considering local government budgets are stretched by the pandemic and protests. FCC Chairman Ajit Pai said the petitions from WIA and CTIA that promoted the change were filed in 2019, and the comment period was extended to November, “well before the pandemic,” he emphasized. 

The ruling continues a multi-year effort by Congress, WIA, CTIA and the FCC to eliminate tower upgrade delays. In 2012, Congress required local governments to approve wireless infrastructure modifications that don’t substantially change the size of the towers or base stations. These upgrades—such as swapping out old antennas for new ones—were crucial to enhancing wireless capacity and improving service. In 2014, the FCC wrote rules to implement the law. 

But some of the rules created disagreements between parties. Indeed, many members of Congress and localities, including the National League of Cities and the National Association of Counties, asked the agency to delay the vote. 

Asked about the immediate effect of Tuesday’s vote, Wireless Infrastructure Association President/CEO Jonathan Adelstein told Inside Towers in an interview: “Now we know when the shot clock begins. Now we know which equipment qualifies for approval.” Local governments cannot say equipment is considered concealment if they didn’t note that originally, he explained. “It makes it easier to site without the ability of local governments to game Section 6409.” He also emphasized many communities are following the spirit of the law and not throwing up roadblocks to infrastructure siting.

The Commission also adopted a Notice of Proposed Rulemaking that seeks comment on proposed rule changes regarding excavation or deployment outside the boundaries of an existing tower site and the effects of such activities on eligibility for streamlined review under section 6409(a). FCC Commissioner Michael O’Rielly said, “The Commission has taken several steps to reduce the burdens on siting small cells but similar updates for macros have been lacking.” O’Rielly said towercos have “repeatedly” come to him with challenges they face when compound expansions are needed to accommodate equipment.

Adelstein said the proposed compound expansion NPRM would open the way for a 30-foot expansion for each tower a company owns to co-locate equipment. “This is like giving real estate owners additional revenue without zoning. It’s important whether you own one tower or tens of thousands. Each tower becomes more available for additional lease-up.”

During the meeting, Carr displayed a video of himself and a crew climbing a cell tower in Maryland last week. It took about one hour for the crew to swap out older antennas for newer ones, he said. After the meeting yesterday, FCC Chairman Ajit Pai told Inside Towers: “I firmly associate myself with Commissioner Carr in terms of his willingness to climb a tower.” But it does not appear Pai will climb any more towers. He said he’s now content to “simply watch [Carr’s] YouTube clips from afar.”

NATE: The Communications Infrastructure Contractors Association, too praised the vote. “NATE member companies perform tower co-location equipment and network upgrades on a daily basis and today’s affirmative vote by the FCC will provide much needed clarity and flexibility needed to streamline these deployment activities, make additional existing tower infrastructure eligible for these upgrades and ultimately bring more 5G services to communities and consumers across the country,” said Director of Legislative & Regulatory Affairs Jim Goldwater. He said the change will also accommodate backup generators and advanced equipment like edge data centers for tower sites, making the process of tower co-locating faster and simpler.

CTIA SVP Regulatory Affairs Scott Bergmann stated: “By clarifying the rules allowing wireless providers to upgrade existing facilities with next-generation equipment, the FCC is helping ensure America will maintain its leadership in the emerging 5G economy.”

By Leslie Stimson, Inside Towers Washington Bureau Chief

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