Last Pieces of Wireless Infrastructure Order Take Effect

On Monday, May 18, 2015, the Federal Communications Commission published a notice in the Federal Register announcing the effectiveness as of that same date of the remaining wireless infrastructure rules the agency adopted in October 2014. In an earlier blog post, we explained that the rules adopted by the FCC in its Wireless Infrastructure Report and Order were taking effect in phases. The newly effective rules were held up pending review by the Office of Management and Budget.

The principal rules taking effect May 18 fully implement the new 60-day ​“deemed granted” remedy for companies when the State or local reviewing body fails to act in a timely fashion on eligible facilities modification requests that do not substantially change the physical dimensions of the antennas structure. This rule was adopted to implement Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, which provides, in part, that ​“a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.” This means that companies no longer need wait for actual approval for qualifying deployments in the event the State or local government does not act within sixty days. However, the 60-day review timeframe is tolled when an application is incomplete, provided the reviewing governmental body notifies the applicant within 30 days of application receipt clearly and specifically delineating all missing documents or information. Once that information is provided, the 60-day clock resumes (but can be tolled again if further notice is provided within 10-days after supplementation of the application that the information remains incomplete). In addition, the ​“deemed granted” status pursuant to the 60-day rule is not effective until the applicant notifies in writing the reviewing body that the application has been deemed granted given the expiration of the 60-day period (accounting for any tolling).

The FCC’s goal in the Report and Order is to streamline the review process and reduces the regulatory burdens associated with wireless deployments, such as distributed antenna system (DAS) networks and small-cell systems. The new rules clarify the statutory requirements related to State and local government review of new infrastructure requests. With this recent notice, all of the pieces of the new order are in place that support expedited deployment of wireless facilities on existing wireless towers and base stations.