Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, DC 20554

In the Matter of
Accelerating Wireless Broadband Deployment by
Removing Barriers to Infrastructure Investment
Accelerating Wireline Broadband Deployment by
Removing Barriers to Infrastructure Investment

)
)
)
)
)
)
)

WT Docket No. 17-79

WC Docket No. 17-84

COMMENTS OF VERIZON

William H. Johnson
Of Counsel

Tamara L. Preiss
Andre J. Lachance
1300 I Street, N.W.
Suite 500-East
Washington, D.C. 20005
(202) 515-2540
Henry Weissmann
Munger, Tolles & Olson LLP
350 Grand Avenue
Suite 5000
Los Angeles, CA 90071
(213) 683-9150
Celia Choy
Jonathan Meltzer
Munger, Tolles & Olson LLP
1155 F Street N.W.
Washington, DC 20004
(202) 220-1105

Dated: June 15, 2017

 TABLE OF CONTENTS

I.

INTRODUCTION AND SUMMARY................................................................................. 1

II. SMALL WIRELESS FACILITIES ARE CRITICAL TO MEET GROWING
DEMAND FOR BROADBAND SERVICES, ADD JOBS, AND IMPROVE THE
ECONOMY. .................................................................................................................................. 3
III. THE COMMISSION SHOULD CLARIFY THAT THE COMMUNICATIONS
ACT BARS STATE AND LOCAL ACTION THAT ERECT SUBSTANTIAL BARRIERS
TO WIRELESS FACILITIES DEPLOYMENT. ...................................................................... 5
A.
State and Local Requirements and Fees Effectively Prohibit Providing Advanced
Broadband Service to Customers. ........................................................................................... 5
B.
The Commission Should Find that “Prohibit or Have the Effect of Prohibiting”
Has the Same Meaning in Sections 253 and 332. ................................................................... 8
1.
An Action “Prohibits or Ha[s] the Effect of Prohibiting” the Provision of Service
Where It Erects a “Substantial Barrier” to Service ........................................................ 11
2.
Denying Applications for Aesthetic Reasons Is Proper Only Where the Record
Contains Specific and Detailed Evidence of the Aesthetic Impact of the Proposed
Facility .................................................................................................................................. 19
C.
The Commission Should Find that Sections 253 and 332 Apply Broadly to State
and Local Actions.................................................................................................................... 21
D.
State and Local Actions Pertaining to Access to Rights-of-Way, Other Public
Lands, and Structures Within Them Are Subject to Sections 253 and 332. ..................... 25
IV. THE COMMISSION SHOULD ADOPT RULES BARRING STATE AND LOCAL
ACTIONS THAT PROHIBIT THE PROVISION OF TELECOMMUNICATIONS
SERVICES................................................................................................................................... 29
A.

The Commission Has Authority to Adopt Rules Under Section 253....................... 29

B.
The Commission Should Adopt Rules Preempting Requirements and Fees that
Effectively Prohibit Providing Broadband Services to Customers. ................................... 33
C.
The Commission Should Use Its Section 253 Authority to Regulate Access to
Municipally-Owned Poles and to Require Baseline Standards in States that Regulate
Pole Attachments. ................................................................................................................... 34
V. THE COMMISSION SHOULD ADOPT RULES UNDER SECTION 332(C) TO
PROMOTE WIRELESS INFRASTRUCTURE DEPLOYMENT. ....................................... 35
A.
The Commission Should Adopt a Deemed Granted Remedy for the Section 332(c)
Shot Clocks. ............................................................................................................................. 35

B.

1.

Carriers Continue to Experience Delays Getting Approvals for Small Cells. .... 35

2.

The Commission Has Authority to Adopt a Deemed Granted Remedy. ............. 36
The Commission Should Adopt a 60-day Shot Clock for Certain Small Cells....... 41
ii

 VI. THE COMMISSION SHOULD STREAMLINE HISTORIC PRESERVATION
AND ENVIRONMENTAL REVIEWS..................................................................................... 44
A.

The Commission Should Modernize the Tribal Consultation and Review Process.
44
1.
The Commission Should Exclude Tribal Reviews for Certain Small Cell Facility
Types. ................................................................................................................................... 46
2.

The Commission Should Preclude Tribal Fees for Initial Consultations. ........... 47

3.
The Commission Should Take Steps to Curb the Unreasonable Expansion of
Tribal Areas of Interest. ..................................................................................................... 49
4.

The Commission Should Require Tribal Responses in 30 Days. ......................... 50

B.
The commission should adopt reasonable exclusions from historic preservation
review. ...................................................................................................................................... 53
1.
The Commission Should Exclude Pole Replacements that Meet Certain
Conditions. ........................................................................................................................... 54
2.
The Commission Should Exclude Construction in Rights-of-Way and Industrial
Zones that Meets Certain Conditions. .............................................................................. 56
3.
The Commission Should Exclude Collocations Not Closer than 50 Feet to a
Historic District. .................................................................................................................. 57
C.
The Commission Should find that mounting small cells on existing structures is
not a federal undertaking. ...................................................................................................... 58
D.
The Commission should exclude twilight towers from historic preservation
reviews...................................................................................................................................... 62
E.
The Commission should Eliminate Redundant Environmental Reviews for Certain
New Towers in Flood Plains. .................................................................................................. 63
VII.

CONCLUSION ................................................................................................................ 64

iii

 Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, DC 20554

In the Matter of
Accelerating Wireless Broadband Deployment by
Removing Barriers to Infrastructure Investment
Accelerating Wireline Broadband Deployment by
Removing Barriers to Infrastructure Investment

)
)
)
)
)
)
)

WT Docket No. 17-79

WC Docket No. 17-84

COMMENTS OF VERIZON 1
I.

INTRODUCTION AND SUMMARY.
Americans’ access to broadband services depends on smart infrastructure policy.

Removing barriers to wireless broadband infrastructure – small cells in particular – is essential to
maintain U.S. leadership in advanced wireless broadband services and to realize the numerous
benefits that 4G densification and 5G offer. 2 In many locations, outdated local requirements
effectively prohibit carriers from placing small cells in state and local rights-of-way and on state
or municipally owned utility, light, and traffic signal poles. 3 Zoning ordinances designed for
much larger, traditional “macro” towers often require carriers to seek local zoning approval for
small cells even after negotiating agreements with localities to access rights-of-way. And
historic preservation and environmental requirements adopted more than a decade ago impose
unnecessary delays and costs on carrier efforts to deploy small cells.
1

The Verizon companies participating in this filing are the regulated, wholly owned subsidiaries
of Verizon Communications Inc.
2

The term “small cells,” as used herein, encompasses small wireless facilities including small
cells, distributed antenna system nodes, and small 5G base station equipment.
3

For ease of reference, the term municipally owned poles refers to poles within a state or local
right-of-way that are owned by a state or local government.

 Broadband is the critical infrastructure of the 21st Century. Government action to speed
deployment will unlock transformative economic and social benefits – from smart cities and
access to education and healthcare to gains in productivity, sustainability, and public safety. 4 To
remove barriers to wireless broadband facility deployment and pave the way for enhanced 4G
and 5G networks, the Commission should take several actions consistent with the proposals and
requests for comment in the Wireless Infrastructure Notice 5 and Wireline Infrastructure Notice. 6
The Commission should:
•
•
•
•
•
•
•

Clarify that Sections 253 and 332(c)(7) of the Communications Act 7 bar state or
local actions that erect substantial barriers to wireless facilities deployment;
Adopt rules under Section 253 barring certain state or local actions as per se
unlawful;
Deem applications granted when the applicable Section 332(c)(7) shot clock
expires without action;
Adopt a 60-day shot clock for certain small cell applications;
Exclude certain small cells from tribal reviews, provide guidance on when tribal
fees are appropriate, and adopt a 30-day shot clock for tribal reviews;
Modify existing exclusions from historic preservation reviews and adopt a new
exclusion for “twilight towers”; and
Exclude certain facilities constructed in flood plains from redundant
environmental reviews.

4

See, e.g., Deloitte, Wireless Connectivity Fuels Industry Growth and Innovation in Energy,
Health, Public Safety, and Transportation (Jan., 2017), https://www.ctia.org/docs/defaultsource/default-document-library/deloitte_20170119.pdf (concluding that governments must
streamline the deployment of wireless infrastructure or communities will miss out on energy,
health, transportation, and public safety benefits of 5G).
5

Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure
Investment, Notice of Proposed Rulemaking and Notice of Inquiry, WT Docket No. 17-79 (Apr.
21, 2017) (“Wireless Infrastructure Notice”).
6

Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure
Investment, Notice of Proposed Rulemaking and Notice of Inquiry, WC Docket No. 17-84 (Apr.
21, 2017) (“Wireline Infrastructure Notice”). In these comments, Verizon addresses issues in the
Wireline Infrastructure Notice pertaining to prohibiting state and local laws inhibiting broadband
deployment. Wireline Infrastructure Notice at ¶¶ 100-112. Verizon is filing separate comments
addressing the other issues raised in the Wireline Infrastructure Notice.
7

47 U.S.C. §§ 253, 332(c)(7).
2

 Each of these actions is well within the Commission’s authority under Sections 253 and
332(c)(7) of the Act and applicable historic preservation and environmental law. Each action
also strikes the appropriate balance between preserving state, local, and tribal authority to review
and act upon applications and eliminating requirements that impose unnecessary and costly
burdens on wireless small cell deployment. 8 And collectively, these steps would remove many
of the regulatory impediments to broadband investment and encourage more robust deployment
of and investment in broadband, including 5G.
II.

SMALL WIRELESS FACILITIES ARE CRITICAL TO MEET GROWING
DEMAND FOR BROADBAND SERVICES, ADD JOBS, AND IMPROVE THE
ECONOMY.
Providers must deploy small cells to meet the exploding demand for wireless data

services. New data intensive capabilities like smart communities, connected cars, smart farming,
and the Internet of Things, all made possible by advanced 4G and 5G networks, are driving this
demand. Cisco reports that global mobile data traffic will increase sevenfold between 2016 and
2021. 9 The total traffic in mobile networks increased by 70 percent between the end of the first

8

Many of the issues raised in these proceedings were raised in the December 2016 Public Notice
issued by the Wireless Telecommunications Bureau. Comment Sought on Streamlining
Deployment of Small Cell Infrastructure by Improving Wireless Facilities Siting Policies;
Mobilitie, LLC Petition for Declaratory Ruling, Public Notice, 31 FCC Rcd 13360, 13371 (WTB
2016) (“WTB Infrastructure Notice”). Verizon addressed many of these same issues in its
comments and reply comments in that proceeding and incorporates each filing by reference into
this proceeding. See Comments of Verizon, WT Docket No. 16-421 (Mar. 8, 2017) (“Verizon
Small Facility Comments”); Reply Comments of Verizon, WT Docket No. 16-421 (Apr. 7,
2017) (“Verizon Small Facility Reply Comments”).
9

See Cisco, The Zettabyte Era: Trends and Analysis (updated Jun. 7, 2017),
http://www.cisco.com/c/en/us/solutions/collateral/service-provider/visual-networking-indexvni/vni-hyperconnectivity-wp.html (“Cisco Trends and Analysis”).
3

 quarter in 2016 and the end of the first quarter in 2017. 10 Wireless smartphone data consumption
in North America is expected to reach 6.9 gigabytes per device per month by the end of 2017 and
26 gigabytes per month by 2022. 11 Video is the largest contributor to mobile traffic volumes. 12
Globally, video traffic will be 82 percent of all IP traffic by 2021, and it would take more than
five million years to watch the amount of video that will cross IP networks each month in
2021. 13 Accenture estimates that United States telecommunications operators will invest
approximately $275 billion in the next seven years to deploy next-generation technology. That
investment will enable new wireless capabilities, create about three million new jobs, and grow
the gross domestic product (“GDP”) by $500 billion. 14
To meet this demand and unlock the economic promise of more advanced 4G and 5G,
carriers’ networks will require an estimated 10 to 100 times more antenna locations than today’s
3G or 4G networks. 15 Many 5G networks also are likely to incorporate millimeter wave
spectrum that the Commission recently made available. 16 Millimeter wave spectrum, unlike
lower band spectrum traditionally used for wireless service, generally supports service over

10

Ericsson Mobility Report, (Jun., 2017), https://www.ericsson.com/assets/local/mobilityreport/documents/2017/ericsson-mobility-report-june-2017.pdf, at 2 (“Ericsson Mobility
Report”).
11

Id. at 14.

12

Id. at 13.

13

Cisco Trends and Analysis at 2.

14

See Majed Al Amine et al., Accenture Strategy, Smart Cities: How 5G Can Help
Municipalities Become Vibrant Smart Cities 3 (2017), http://www.ctia.org/docs/defaultsource/default-document-library/how-5g-can-help-municipalities-become-vibrant-smart-citiesaccenture.pdf (“Accenture Smart Cities Paper”).
15

Id. at 1.

16

See Use of Spectrum Bands Above 24 GHz For Mobile Radio Services, Report and Order and
Further Notice of Proposed Rulemaking, 31 FCC Rcd 8014 (2016) (“Above 24 GHz Order”).
4

 shorter distances and with direct lines-of-sight. 17 Thus carriers using millimeter wave bands will
need to deploy small facilities in many more locations that are both closer to the ground (30-50
feet in height) and closer to the customer than traditional wireless cell sites. Existing poles
(including utility poles, light poles, traffic control poles, and street signs) in rights-of-way are
ideal locations for 5G antennas. These facilities are significantly smaller than traditional
“macro” antennas and blend more easily into the environment. Yet, as discussed below, many
local ordinances and officials (or their consultants) do not take into account these significant
differences, and instead burden the small cell siting process with requirements at least if not
more cumbersome than those that apply to much larger facilities.
III.

THE COMMISSION SHOULD CLARIFY THAT THE COMMUNICATIONS
ACT BARS STATE AND LOCAL ACTION THAT ERECT SUBSTANTIAL
BARRIERS TO WIRELESS FACILITIES DEPLOYMENT.
A.

State and Local Requirements and Fees Effectively Prohibit Providing
Advanced Broadband Service to Customers.

Even in the early stages of small cell deployment, Verizon has encountered a variety of
practices that have the effect of delaying or preventing small cell deployment. These include
barriers in gaining access to state and local rights-of-way, and municipally owned poles within
them, and outdated local zoning requirements. These practices are already slowing the
deployment of 4G small cells, and costs and delays will only grow as providers transition to
more advanced 5G networks. Federal law, most notably Sections 253 and 332 of the Act, exists
to block local actions and requirements that threaten important federal interests such as
broadband and 5G deployment. 18 The Commission has authority to address these local obstacles
to deployment, and it should do so expeditiously.
17

Id. at 8020, ¶ 6.

18

47 U.S.C. §§ 253, 332(c)(7).
5

 One of the most significant challenges carriers face in deploying small cells is gaining
access to state or local rights-of-way and municipally owned poles within them. 19 Barriers to
right-of-way and municipal pole access include refusal to negotiate right-of-way access
agreements, substantial delays in negotiating such agreements, excessive and often
discriminatory fees for access to rights-of-way and municipal poles, and unreasonable conditions
for such access. 20
Verizon continues to face substantial barriers to deploying small cells. For example, the
towns of Tonawanda, New York, and Amherst, New York, recently adopted moratoria on
processing and approving small cell applications. A Minnesota town has proposed barring
construction of new poles in rights-of-way. A large Southwestern city requires applicants to
obtain separate and sequential approvals from three different governmental bodies before it will
consider issuing a temporary license agreement to access city rights-of-way. Other jurisdictions,
like a Midwestern suburb, where Verizon has been trying unsuccessfully to get approval for
small cells since 2014, have no established procedures for small cell approvals and are extremely
slow to respond.
Excessive fees are another substantial barrier to small cell deployment. Carriers
encounter fees at multiple steps of the application and approval process. Fees are assessed for
permission to access rights-of-way, for renting space on municipal poles, for application
processing, for consultants hired by localities to review wireless applications, and to renew
existing facility permits. In many cases, the fees assessed are not related to costs incurred. For
example, a Midwestern city which requires, with few exceptions, small cells in the rights-of-way

19

See Verizon Small Facility Comments at 6-10 & App’x A (Mar. 8, 2017).

20

Id.
6

 to be placed on city owned structures, is currently demanding $6,000 per pole per year to attach
small cells to city owned light poles. This city also requires applicants to obtain a special use
permit for each proposed small cell facility and charges $11,000 per application – a charge that
includes an escrow fee to cover the expected cost of the city’s consultant to review wireless
applications. Many other localities, like East Greenbush, New York, and Santa Clara, Utah,
require $8,500 escrow fees for consultant reviews. 21 And many jurisdictions, like Rochester and
Buffalo, New York, have proposed or require a five percent gross revenue fee, again unrelated to
the cost of wireless attachments, for accessing local rights-of-way. The New York State
Department of Transportation (“NYDOT”) and Onondaga County (New York) require carriers to
obtain rights-of-way permits for small cells on utility poles through their agent. The agent
requires wireless providers to enter into an agreement that includes a $750/month pole rental
fee. 22
Even where carriers can gain approval to access rights-of-way and agree on fees, many
localities place unreasonable conditions on right-of-way or pole access that make it extremely
difficult, if not impossible, to deploy small cells. For example, Washington, D.C., recently
released a supplemental agreement for installing wireless facilities in the right-of-way. That
agreement would give the city the ability to require applicants to install, for free, WiFi access
points (provided by the city) on the poles used by the applicant and to run fiber to each access
point. Many localities require all utilities to be located underground – thus dramatically
increasing the costs of deployment – and one Midwestern town compounds the problem by
21

Many jurisdictions have adopted wireless ordinances proposed and written by wireless
engineering consultants. These ordinances impose charges from $5,000 to over $10,000 for
those consultants to review applications to determine, among other things, if the facility is
needed.
22

NYDOT’s agent assesses the rental fee even for utility poles not owned by NYDOT.
7

 proposing to prohibit small cells on existing above-ground infrastructure. Many jurisdictions
also impose unreasonable set-back requirements, minimum separation distances, and height and
equipment size limitations for small facilities in the rights-of-way. For example, Buffalo Grove,
Illinois, requires small cells to be at least 100 feet away from any residential building and no
closer than 1,000 feet to any other small cell (even if owned by another provider); it also requires
equipment to be mounted at least eight feet above ground, and limits antenna height to 35 feet
above ground level.
The Commission should exercise its authority under Sections 253 and 332(c)(7) of the
Act to remove these barriers to small cell deployment by clarifying the applicable legal standards
and adopting rules prohibiting actions that impose substantial barriers to providing service or
deploying small cells.
B.

The Commission Should Find that “Prohibit or Have the Effect of
Prohibiting” Has the Same Meaning in Sections 253 and 332.

As the Commission noted in the Wireless Infrastructure Notice, Section 253 and Section
332(c)(7) contain nearly identical operative language limiting the ability of state and local
governments to prevent the provision of personal wireless telecommunications service. 23 While
both statutes preserve limited state and local government authority, 24 both also bar state or local
governments from passing laws or taking actions that “prohibit or have the effect of prohibiting”
23

Wireless Infrastructure Notice at ¶ 88.

24

See 47 U.S.C. §253(b) (permitting states to impose “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 § 253(c) (permitting
state and local governments to “require fair and reasonable compensation from
telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of
public rights-of-way on a nondiscriminatory basis”); id. § 332(c)(7)(A) (preserving state and
local “authority . . . over decisions regarding the placement, construction, and modification of
personal wireless service facilities”).
8

 service. 25 But as the Commission has noted, courts have construed this identical language to
create different standards under Sections 253 and 332(c)(7). 26 The Commission has interpreted
“prohibit or have the effect of prohibiting” service in Section 253(a) as barring any local
government action that “materially inhibits or limits the ability of any competitor or potential
competitor to compete in a fair and balanced legal and regulatory environment.” 27 Meanwhile,
absent any guidance from the Commission, most courts of appeals have held that a local action
will “prohibit or have the effect of prohibiting” the provision of wireless service under Section
332(c)(7) if and only if a carrier has a “significant gap” in wireless service and it lacks other
feasible siting options to close that gap. 28
The Commission should rectify this discrepancy in the interpretation of the identical term
in two provisions of the same statute. “[T]he normal rule of statutory construction [is] that
identical words used in different parts of the same act are intended to have the same meaning.” 29
This presumption of consistent usage yields only where surrounding text or context suggests that
25

See 47 U.S.C. § 253(a) (“No State or local statute or regulation, or other State or local legal
requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide
any interstate or intrastate telecommunications service.”); id. § 332(c)(7)(B)(i) (“The regulation
of the placement, construction, and modification of personal wireless service facilities by any
State or local government or instrumentality thereof … shall not prohibit or have the effect of
prohibiting the provision of personal wireless services.”).
26

Wireless Infrastructure Notice at ¶¶ 89-91.

27

California Payphone Ass’n Petition for Preemption, Memorandum Opinion & Order, 12 FCC
Rcd 14191, 14206 at ¶ 31 (1997) (“California Payphone”).
28

See, e.g., MetroPCS, Inc. v. City of S.F., 400 F.3d 715, 731-34 (9th Cir. 2005), abrogated on
other grounds by T-Mobile S., LLC v. City of Roswell, 135 S. Ct. 808 (2015); Sprint Spectrum,
L.P. v. Willoth, 176 F.3d 630, 643 (2d Cir. 1999).
29

Gustafson v. Alloyd Co., 513 U.S. 561, 570 (1995) (internal quotation marks omitted); see also
Atl. Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932) (“Undoubtedly, there is a
natural presumption that identical words used in different parts of the same act are intended to
have the same meaning.”).
9

 identical language should bear different meaning. 30 Nothing in the text or context of Sections
253(a) and 332(c)(7) suggests that those terms should be given different meanings. Indeed, the
opposite is true: These sections of the Communications Act both limit state and local
governments’ abilities to restrict the provision of wireless telecommunications service. As one
court of appeals noted, this identical language should lead to “the same” legal standard, as there
is “nothing suggesting that Congress intended a different meaning of the text … in the two
statutory provisions, enacted at the same time, in the same statute.” 31
The Commission should harmonize the interpretations of “prohibit or have the effect of
prohibiting” in Sections 253(a) and 332(c)(7) by applying its current interpretation of Section
253 to both statutory provisions. For 20 years, the Commission has held that a local action
prohibits or has the effect of prohibiting the provision of telecommunications service where it
“materially inhibits or limits the ability of any competitor or potential competitor to compete in a
fair and balanced legal and regulatory environment.” 32 Because that standard is open to differing
interpretations, and has engendered disagreement in the courts of appeals as to its proper
interpretation, 33 the Commission should provide additional guidance on its meaning to ensure
30

See Antonin Scalia & Brian A. Garner, Reading Law: The Interpretation of Legal Texts 17073 (2012) (“Scalia and Garner”).
31

Sprint Telephony PCS, L.P. v. Cnty. of San Diego, 543 F.3d 571, 579 (9th Cir. 2008) (en
banc); see also T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987, 991-93 (9th Cir. 2009);
Scalia & Garner at 173 (noting that where parallel language is enacted at the same time and deals
with the same subject, the presumption of consistent usage is particularly strong).
32

California Payphone, 12 FCC Rcd 14206 at ¶ 31.

33

Compare, e.g., Level 3 Commc’ns, L.L.C. v. City of St. Louis, 477 F.3d 528, 534 (8th Cir.
2007) (finding that a right-of-way fee, in connection with other restrictions, does not materially
inhibit the provision of service), with Puerto Rico Tel. Co. v. Municipality of Guayanilla, 450
F.3d 9, 19 (1st Cir. 2006) (“Puerto Rico Tel. Co.”) (holding that a right-of-way fee, in connection
with other restrictions, does “materially inhibit[] or limit[]” the provision of service) (citation and
internal quotation marks omitted).
10

 that the types of local actions described above do not frustrate national goals for broadband and
5G deployment.
1.

An Action “Prohibits or Ha[s] the Effect of Prohibiting” the Provision
of Service Where It Erects a “Substantial Barrier” to Service.

The Commission should declare that a local regulation or siting decision “materially
inhibits or limits the ability of any competitor or potential competitor to compete in a fair and
balanced legal and regulatory environment” where it erects a “substantial barrier” to the
provision of telecommunications service. 34 A substantial barrier exists where the regulation or
action either (1) significantly increases a carrier’s costs; 35 or (2) otherwise meaningfully strains
the ability of a carrier to provide telecommunications service. 36 This interpretation finds support
in a decision of the First Circuit, which rejected a locality’s five percent franchise fee to use a
right-of-way, finding that it constituted an effective prohibition because it would “negatively
affect [the provider’s] profitability”; give rise to “a substantial increase in costs for [the
provider]”; and “place a significant burden on [the provider],” thereby “strain[ing the provider’s]
ability to provide telecommunications services.” 37
This standard provides a sensible framework for evaluating both state and local statutes,
regulations, and legal requirements under Section 253(a) and individual “decisions regarding the
placement, construction, and modification of personal wireless service facilities” under Section
34

See Verizon Small Facility Comments at 11-14 (internal quotation marks omitted).

35

See Puerto Rico Tel. Co., 450 F.3d at 19 (noting that the regulations at issue would lead to “a
substantial increase in costs” to the carrier); Qwest Corp. v. City of Santa Fe, 380 F.3d 1258,
1270-71 (10th Cir. 2004) (“City of Santa Fe”) (noting that where a requirement will lead to a
“massive increase in cost,” it acts as an effective prohibition under 253(a)).
36

See Puerto Rico Tel. Co., 450 F.3d at 19 (noting that the requirements at issue would “strain
[the carrier’s] ability to provide telecommunications services”).
37

Id. at 18-19.
11

 332(c)(7). 38 When applied to a locality’s siting scheme as a whole under Section 253(a)
(including any statutes, ordinances, regulations, or policies, or other “legal requirements”), the
“substantial barrier” framework would consider all aspects of that scheme together, in order to
determine whether a municipality’s disparate requirements together erect a substantial barrier. 39
And because of the cumulative effect of ordinances and actions of multiple localities that limit
carrier access to rights-of-way, the Commission should make clear that carriers can demonstrate
that local requirements significantly increase costs, or otherwise meaningfully strain their ability
to provide service, by showing the effect of numerous municipalities employing similar
restrictions. 40
a.

The Commission Should Clarify the Meaning of “Prohibits or
Ha[s] the Effect of Prohibiting” in Section 253(a).

This articulation of the substantial barrier standard provides a workable test under Section
253(a) to address the types of state and municipal requirements and actions described above. A
state or locality’s refusal to negotiate or unreasonable delays in negotiating access to public
rights-of-way would constitute a substantial barrier. Likewise, actions or conditions that prevent
or substantially inhibit a carrier from making necessary upgrades (such as deploying small cells
to densify networks or to deploy 5G) to its network in those localities would constitute a
38

47 U.S.C. § 332(c)(7)(A). For a discussion of the different situations to which Sections 253
and 332 apply, see Section II.C, infra.
39

See Puerto Rico Tel. Co., 450 F.3d at 19; City of Santa Fe, 380 F.3d at 1270-71.

40

See Puerto Rico Tel. Co., 450 F.3d at 17-18 (taking into account that a carrier could face not
just the restriction at issue from a single municipality, but also from other localities in which it
operates). See Wireless Infrastructure Notice at ¶ 91; compare Puerto Rico Tel. Co., 450 F.3d at
18; TCG N.Y., Inc. v. City of White Plains, 305 F.3d 67, 76 (2d Cir. 2002); City of Santa Fe, 380
F.3d at 1270 & n.9 (all stating that preemption under Section 253(a) is proper if a requirement
may have the effect of prohibiting a carrier from providing telecommunications service), with
Sprint Telephony PCS, 543 F.3d at 578 and Level 3 Commc’ns, 477 F.3d at 532-33 (both
requiring that there be actual or effective prohibition).
12

 substantial barrier. And other unreasonable conditions on the provision of wireless service –
such as excessive separation requirements between facilities, overly restrictive equipment size
limits, and unreasonable set-back requirements from residential properties – would similarly
strain a carrier’s ability to provide service.
Many right-of-way fees charged by states or municipalities also impose substantial
burdens on carriers. States and localities charge carriers a wide variety of fees for the use of
rights-of-way and access to municipally owned poles, and those fees often are unrelated to the
actual cost to municipalities. 41 Under the “substantial barrier” standard, fees that significantly
increase a carrier’s costs operate as a substantial burden and run afoul of Section 253(a), unless
the locality can demonstrate that such fees recover its actual costs and thus constitute fair and
reasonable compensation for use of public rights-of-way under Section 253(c). 42 This is
especially true when considering the cumulative impact of fees imposed on a carrier by
thousands of localities across the county.
To prevent excessive fees from inhibiting deployment, the Commission should conclude
any fees imposed by states or localities should be cost-based. Applying the substantial barrier
test to limit states and localities to the recovery of cost-based charges is fully consistent with the
statute. Under Section 253(c), a state or municipality must show that any compensation for use
of public rights-of-way is “fair and reasonable” and charged on a “competitively neutral and
nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory basis, if the
compensation required is publicly disclosed by such government.” 43 To give proper meaning to

41

See Section III.A, supra; Verizon Small Facility Comments at 8-10.

42

See 47 U.S.C. § 253(c).

43

Id.
13

 this provision, while also fulfilling the goals of Section 253(a), the Commission should interpret
Section 253 to permit localities to impose fees that cover their reasonable costs for managing the
rights-of-way, but not fees that raise additional revenues above and beyond those costs. 44 The
phrase “fair and reasonable compensation” as used in Section 253(c) is ambiguous, empowering
the Commission to interpret it. 45 Compensation is defined as “[r]emuneration … in return for
services rendered” or a payment that “makes the injured person whole,” 46 which suggests the
recoupment of costs or recovery of what was lost. In numerous contexts, the Commission and
other agencies have found that cost-based fees are “reasonable.” 47 This interpretation often is
adopted in situations where the provider does not operate in a competitive market – which is
directly analogous to localities’ monopoly control of public rights-of-way and municipally
owned structures. In many other cases, market forces are sufficient to ensure reasonable rates. 48
But those competitive options do not exist for access to rights-of-way.

44

For a more detailed discussion of the interplay between Section 253(a) and (c) relative to state
and local fees, see Verizon Small Facility Comments at 14-18.

45

See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005)
(“Brand X”).
46

Compensation, Black’s Law Dictionary (10th ed. 2014).

47

See, e.g., Unbundled Access to Network Elements, Order on Remand, 20 FCC Rcd 2533, 2537
at ¶ 6 (2005), aff’d, Talk Am., Inc. v. Michigan Bell Tel. Co., 564 U.S. 50 (2011) (requiring that a
local exchange carrier provide access to entrance facilities at cost-based rates where the statute
states that rates must be “just, reasonable, and nondiscriminatory”); Fed. Power Comm’n v. Hope
Nat. Gas Co., 320 U.S. 591 (1944) (upholding a Federal Power Commission order setting “just
and reasonable” rates as a method of cost recovery); Missouri ex rel. Sw. Bell Tel. Co. v. Pub.
Serv. Comm’n of Mo., 262 U.S. 276, 291 (1923) (espousing that a utility obliged to provide
service to the public ought to be able to recover “the reasonable cost of conducting the
business”).
48

See Orloff v. FCC, 352 F.3d 415 (D.C. Cir. 2003).
14

 The legislative history of the Telecommunications Act supports a cost-based limitation
under Section 253. Senator Feinstein made clear in a floor statement that Section 253(c) would
permit a municipality to “[r]equire a company to pay fees to recover an appropriate share of the
increased street repair and paving costs that result from repeated excavation.” 49 And in contexts
like this one, the Commission has expressed skepticism of fees not tied to costs, stating that there
“is a serious question whether a gross revenues based fee is ‘fair and reasonable compensation
… for use of [a public right-of-way]’ within the meaning of section 253(c).” 50 Consequently, in
order for a locality to claim that it is charging only “fair and reasonable compensation,” those
charges must be cost-based.
Clarifying that the substantial barrier test applies to municipal actions and requirements
such as unreasonable delays, zoning restrictions, and right-of-way fees would ensure that where
states or municipalities charge fees for access to rights-of-way, they justify those fees as fair,
cost-based compensation for a carrier’s use of local resources. 51 This limit achieves the balance
that Congress struck in Section 253 between the deployment of fast and reliable
telecommunications service, and protecting the reasonable exercise of local authority. 52

49

141 Cong. Rec. S8134, S8172 (daily ed. June 12, 1995) (statement of Sen. Feinstein).

50

Brief of FCC and United States as Amici Curiae at 14 n.7, TCG N.Y., Inc .v. City of White
Plains, Nos. 01-7213, 01-7255, (2d Cir. Jun. 13, 2001).
51

See 47 U.S.C. § 253(c) (allowing municipalities to “require fair and reasonable compensation
from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for
use of public rights-of-way”); see Verizon Small Facility Comments at 14-17 (describing the
proper application of Section 253(c)).
52

One court of appeals rejected its own previous use of a “substantial burden” test under Section
253(a). See Sprint Telephony, 543 F.3d at 577-78 (overruling City of Auburn v. Qwest Corp., 260
F.3d 1160 (9th Cir. 2001)). But this decision does not preclude the Commission from adopting
the “substantial burden” standard. As the Commission noted before the Supreme Court, the
Ninth Circuit accepted that California Payphone provides the relevant standard for effective
prohibition under Section 253(a), though it applied that standard in a way that was arguably
15

 b.

The Commission Should Clarify the Meaning of “Prohibits or
Ha[s] the Effect of Prohibiting” in Section 332(c)(7).

In addition to the obligation to craft local permitting ordinances to conform with Section
253, localities must also process individual siting applications for wireless services in a way that
does not erect a substantial barrier to the provision of service under Section 332(c)(7).
Consistent with the same provision in Section 253, a siting decision would create a substantial
barrier if it significantly increases a carrier’s costs or meaningfully strains the carrier’s ability to
provide service. Because the Act balances local zoning authority against the need to remove
barriers to the deployment of wireless service, not every action or decision by a permitting
authority adverse to a siting applicant will create a “substantial barrier” to the provision of
service. For example, where a local authority denies an application for bona fide and specific
aesthetic reasons, 53 that decision does not erect a substantial barrier so long as other sites are
available that do not present such concerns. But where a permitting decision prevents a carrier
from densifying its existing network in order to provide or enhance broadband-speed service and
no equivalent site is feasible and available, that act meaningfully strains that carrier’s ability to
provide wireless service.
In some circumstances, the up-front application fees that localities charge may also act as
a substantial barrier under Section 332(c)(7). Where those fees significantly increase a carrier’s

unduly narrow. See Brief of United States as Amicus Curiae on Petitions for Writs of Certiorari
at 14-15, Level 3 Commc’ns, LLC v. City of St. Louis, No. 08-626 (U.S. Jun. 26, 2008) (cert.
denied, 557 U.S. 935 (2009)). If the Commission now explains the proper application of that
standard – that it requires a substantial burden test – the Ninth Circuit should continue to apply
the California Payphone standard, but with the added benefit of the Commission’s additional
interpretation. The Commission’s interpretation would be entitled to deference under Brand X,
545 U.S. at 984-85 (2005).
53

See Section III.B.2, infra, for a discussion of the appropriate consideration by zoning
authorities of aesthetic considerations.
16

 costs, they would “have the effect of prohibiting” service. As under Section 253, localities
would be free to argue that those fees are justified by their underlying costs of processing and
reviewing the application, and where those fees are cost-based, they do not run afoul of Section
332(c)(7). But where those fees both significantly raise carriers’ costs and do not simply recoup
the locality’s costs, they effectively prohibit service and violate Section 332(c)(7).
Harmonizing the interpretations of Sections 253 and 332(c)(7) so that both prevent state
and local governments from erecting substantial barriers to the provision of service also acts to
correct the unduly narrow, textually untethered interpretation of Section 332(c)(7) adopted by the
courts of appeals. Section 332(c)(7) was meant to remove barriers to wireless facilities siting by
preempting local siting decisions that have the effect of prohibiting wireless service. But judicial
interpretation of the statute has not kept pace with the evolution of wireless networks. Several
courts of appeals have held that a local action will have the effect of prohibiting the provision of
wireless service under Section 332(c)(7) if and only if a carrier has a “significant gap” in
wireless service, and where it lacks other feasible siting options to close that gap. 54 The courts
reached this conclusion, however, without any guidance from the Commission and when
considering earlier wireless technology. The courts also did not find that the text of the statute
mandates this conclusion or that this is the only permissible construction of the statute.
54

See, e.g., City of S.F., 400 F.3d at 731-34; Willoth, 176 F.3d at 643. Courts have agreed that
the significant gap analysis is highly fact-specific, but have generally found that in order for such
a gap to exist, there must be a substantial area – larger than a mere “dead spot” – where a
provider does not have any coverage. See, e.g., Second Generation Props., L.P. v. Town of
Pelham, 313 F.3d 620, 631 (1st Cir. 2002); Willoth, 176 F.3d at 643. Meanwhile, courts are split
on what kind of showing is necessary for the second prong of the analysis. Some require the
carrier to show not only that its application has been rejected, but also that efforts to find another
solution will be fruitless, see, e.g., Green Mountain Realty Corp. v. Leonard, 750 F.3d 30, 40
(1st Cir. 2014), while others require only that the applicant show that its proposed siting is the
least intrusive means of filling the gap, see, e.g., Am. Tower Corp. v. City of San Diego, 763 F.3d
1035, 1057 (9th Cir. 2014).
17

 The current standard is doubly problematic. First, it is out of step with technological
developments: It makes little sense to define a gap as the absence of any coverage whatsoever.
The Commission has made clear that wireless broadband technology, and the required
investment to improve coverage, speed, and capacity beyond the capability of 3G networks, is
vital to the nation’s economic growth, to civic life, and to individual consumers. 55 But the
current test would allow localities to refuse applications simply because a carrier already
supplies 3G service. Second, by demanding that carriers (at minimum) show that their site is the
least intrusive means of closing any gap in coverage, the “significant gap” standard places a
heavy burden on carriers to show that no other site could fulfill their purposes. Adhering to this
standard undercuts the Commission’s stated goal of supporting rapid deployment of the next
generation of wireless technology. Conversely, aligning the interpretations of Section 332(c)(7)
and Section 253, and doing so through the “substantial burden” framework, is both more faithful
to the text and structure of the Act and better addresses the balance between respecting local
authority and encouraging the development of the next generation of cellular technology. 56

55

Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies,
Report and Order, 29 FCC Rcd 12865, 12869-70 at ¶¶ 6-7 (2014) (“2014 Infrastructure Order”),
erratum, 30 FCC Rcd 31 (2015), aff’d Montgomery Cnty. v. FCC, 811 F.3d 121 (4th Cir. 2015).
56

As discussed above, Verizon believes that the Commission should make clear that the
“significant gap” standard is improper under Section 332(c)(7). Should the Commission
determine that this standard is proper, however, it should alter the standard by not requiring the
absence of any wireless coverage. The inability of a carrier to provide broadband-level speed
ought to be enough to create a “significant gap.” Nor should the Commission adopt the position
of those courts that have required carriers to show that “further reasonable efforts [to find
another solution] are so likely to be fruitless that it is a waste of time to even try.” Green
Mountain Realty Corp., 750 F.3d at 40 (citation and internal quotation marks omitted). This
standard places such a heavy burden on providers that it renders Section 332(c)(7) all but
powerless as a check on local government action.
18

 2.

Denying Applications for Aesthetic Reasons Is Proper Only Where
the Record Contains Specific and Detailed Evidence of the Aesthetic
Impact of the Proposed Facility.

As the Commission notes in its Wireless Infrastructure Notice, courts have routinely held
aesthetic considerations may be relevant to the local approval process, so long as the denial of an
application for aesthetic reasons is supported by “substantial evidence in a written record.” 57
Courts have also held that “substantial evidence” does not mean merely “generalized concerns,”
but instead local zoning authorities must rely on evidence of the specific impact of the particular
proposed facility at issue. 58 Even where a locality produces the necessary evidence of aesthetic
impact, “its decision is nevertheless invalid if it operates as a prohibition on the provision of
wireless service in violation of 47 U.S.C. § 332(c)(7)(B)(i)(II).” 59
The Commission should provide guidance, in line with the case law, that denial of an
application based on aesthetic concerns is valid only where it is based on specific and detailed
evidence of the aesthetic effect of a particular facility in that particular location. The
Commission should clarify that references to issues like the flatness of the terrain, the presence
of nearby residential neighborhoods, and general concerns by neighbors that a facility will have a
negative visual impact are not specific enough to qualify as substantial evidence. 60 Moreover,
reliance on a photo simulation of a facility alone is not sufficient to serve as substantial

57

47 U.S.C. 332(c)(7)(iii); see, e.g., City of Anacortes, 572 F.3d at 994-95; U.S. Cellular Corp.
v. City of Wichita Falls, 364 F.3d 250, 256 (5th Cir. 2004).
58

See, e.g., T-Mobile Cent., LLC v. Unified Gov't of Wyandotte Cnty., 546 F.3d 1299, 1312 (10th
Cir. 2008); Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 496 (2d Cir. 1999).
59

Sprint PCS Assets, L.L.C. v. City of Palos Verdes Estates, 583 F.3d 716, 725-26 (9th Cir.
2009).
60

See Unified Gov't of Wyandotte Cnty., 546 F.3d at 1312; Preferred Sites, LLC v. Troup Cnty.,
296 F.3d 1210, 1219-20 (11th Cir. 2002).
19

 evidence. 61 Instead, only where a local authority provides a detailed justification “grounded in
the specifics of the case” regarding the aesthetic impact of a particular facility at a particular
location can such explanations serve as substantial evidence. 62 And as noted above, even then,
where such a decision would create a “substantial barrier” to providing wireless service, the
denial of that application would “effectively prohibit” the provision of wireless service. 63
Finally, the Commission should issue a rule excepting certain small cell facilities from
review by local authorities for aesthetic concerns. Where a small cell meets size limits
previously adopted by the Commission for small cells 64 and is mounted on an existing structure
or a similar replacement structure designed to accommodate small cells, it will never present an
aesthetic concern that will justify denial of a siting application. The Commission should rule that
denial of applications for these small facilities, which do not require new construction that alters
the visual appearance of a neighborhood in a meaningful way, will never be supported by the
kind of detailed, specific findings necessary to serve as substantial evidence. Instead, a denial on
aesthetic grounds of such small facilities, which are incapable of meaningfully altering the
appearance of an existing structure, would appeal only to “generalized concerns.” For that
reason, the Commission should adopt a general rule that precludes consideration of aesthetic
concerns for small cells mounted on existing and replacement structures.
61

See Unified Gov't of Wyandotte Cnty., 546 F.3d at 1312.

62

Id.

63

See City of Palos Verdes Estates, 583 F.3d at 725-26; 47 U.S.C. § 332(c)(7)(B)(i)(II).

64

The Commission should apply the size limits applicable to small facility exclusions from
historic preservation reviews – three cubic feet per antenna, no more than six cubic feet for all
antennas, and 28 cubic feet for associated equipment. See Wireless Telecommunications Bureau
Announces Execution of First Amendment to the Nationwide Programmatic Agreement for the
Collocation of Wireless Antennas, Public Notice, 31 FCC Rcd 8824 (WTB 2016), codified at 47
C.F.R. Pt. 1, App’x B, § VI.A.5 (a) and (b)(i) (“Collocation Agreement Amendment”).
20

 C.

The Commission Should Find that Sections 253 and 332 Apply Broadly to
State and Local Actions.

Sections 253 and 332(c)(7) use broad language to describe the types of local actions that
are subject to preemption under those statutes, and the Commission should in turn interpret those
terms broadly to apply to all manner of local actions that prohibit or effectively prohibit the
provision of wireless service. Section 253(a) provides that “[n]o State or local statute or
regulation, or other State or local legal requirement, may prohibit or have the effect of
prohibiting the ability of any entity to provide interstate or intrastate telecommunications
service.” 65 As the Commission has noted previously, this statute “recognizes that State and local
barriers to entry could come from sources other than statutes and regulations,” and,
consequently, “was meant to capture a broad range of state and local actions.” 66 Thus, where a
state made an agreement with a single provider of telecommunications service that deprived
other providers of access to its rights-of-way, the Commission found that this agreement was a
“legal requirement” under Section 253(a) because it acted to “legally bind[]” the state’s action
with regard to providers of telecommunications services. 67
For purposes of Section 253(a), the Commission should interpret the term “statute” to
encompass any law passed by a state or local legislative body. 68 The context of the provision –
in particular, the proximity of “regulation” to “statute” and “other … legal requirement” – makes
65

47 U.S.C. § 253(a) (emphasis added).

66

See Petition of the State of Minnesota for a Declaratory Ruling Regarding the Effect of Section
253 on an Agreement to Install Fiber Optic Wholesale Transport Capacity in State Freeway
Rights-of-Way, Memorandum Opinion and Order, 14 FCC Rcd 21697, 21707 at ¶ 18 (1999)
(“Minnesota Preemption Order”).
67

See id. at 21706-07, ¶ 17 (internal quotation marks omitted).

68

See Statute, Black’s Law Dictionary (10th ed. 2014) (defining a statute as “[a] law passed by a
legislative body”).
21

 clear that the term “regulation” should be defined as an official rule or order issued by a state or
local government that carries the force of law. 69 And “other State or local legal requirement”
should, in keeping with the Commission’s previous rulings, be defined as any state or local
policy, practice, or legally binding action that could pose a barrier to entry to a
telecommunications provider. 70 This interpretation comports with general principles of statutory
interpretation, in which two specific terms followed by a more general term widens the scope of
the group to include a broader set of items in the same general category. 71
The Commission should likewise apply a broad interpretation of the terms “decisions”
and “regulation” in Section 332(c)(7). The term “decisions” in Section 332(c)(7)(B)(iii) is best
understood to refer to particular actions taken by a state or locality regarding a pending
application or request for a personal wireless siting facility. 72 Similarly, “regulation” in Section
332(c)(7)(B)(i) refers to state or local control over the process of making a particular siting
decision. 73 The Commission should make clear that these terms encompass any action taken by
a state or locality that applies any statute, regulation, or other legal requirement in a particular
case.

69

See Regulation, Black’s Law Dictionary (10th ed. 2014) (defining regulation as “[a]n official
rule or order, having legal force”).
70

See Minnesota Preemption Order, 14 FCC Rcd 21707 at ¶ 18.

71

See Scalia & Garner, at 199-200.

72

Cox Commc’ns PCS, L.P. v. City of San Marcos, 204 F. Supp. 2d 1272, 1277 (S.D. Cal. 2002)
(“Where 47 U.S.C. § 253 provides a cause of action against local regulations, section 332 gives
a cause of action against local decisions.”) (emphasis in original).
73

See Regulation, Black’s Law Dictionary (10th ed. 2014) (defining regulation as “[c]ontrol over
something by rule or restriction”).
22

 This interpretation makes sense of both Sections 253(a) and 332(c)(7). Section 332
applies to “decisions regarding the placement, construction, and modification of personal
wireless service facilities” 74 – that is, to individual siting decisions rendered by state or local
governments. Section 332 offers an avenue of relief for these individualized decisions that apply
general rules. Section 253, on the other hand, targets for preemption “State or local statute[s] or
regulation[s], or other State or local legal requirement[s].” 75 As courts have consistently
recognized, Section 253 applies to a state or local government’s statute, regulation, or other
legally binding action or policy that governs wireless providers’ attempts to provide
telecommunications service – such as ordinances that require large separation distances between
facilities, impose right-of-way fees, or adopt restrictive equipment size limits. 76 Where a local
government applies such a statute, regulation, or policy to take adverse action – or simply avoids
taking any action at all – against a carrier, Section 332 applies. 77
The Commission has sought guidance on how Sections 253 and 332 apply in particular
cases. 78 As noted above, as a general matter, Section 253 applies when a carrier challenges a
state or local ordinance, regulation, or policy, while Section 332 bars individual siting decisions

74

Verizon Small Facility Reply Comments at 3-4 (Apr. 7, 2017); 47 U.S.C. § 332(c)(7)(A).

75

47 U.S.C. § 253(a).

76

See Verizon Wireless (VAW) LLC v. City of Rio Rancho, 476 F. Supp. 2d 1325, 1336 (D.N.M.
2007) (“Section[] 253 … proscribe[s] ordinances that have the effect of prohibiting the ability to
provide telecommunications services …. Section 332(c)(7) provides similar proscriptions on
individual zoning decisions. The statutes thus provide parallel proscriptions for ordinances and
individual zoning decisions.”); City of San Marcos, 204 F. Supp. 2d at 1277 (“Where 47 U.S.C.
§ 253 provides a cause of action against local regulations, section 332 gives a cause of action
against local decisions.”) (emphasis in original).
77

See City of Rio Rancho, 476 F. Supp. 2d at 1336; City of San Marcos, 204 F. Supp. 2d at 1277.

78

See Wireless Infrastructure Notice at ¶ 89.
23

 that prohibit or effectively prohibit the provision of wireless service. These categories are not
entirely distinct, meaning that some local actions can be challenged under both Section 253 and
332. To take the Commission’s examples, 79 where a locality has a policy that leads it to deny a
wireless facility siting application in a manner that effectively prohibits the provision of wireless
service, that locality would violate both Sections 253 and 332. Under Section 253, a carrier
would need to show that the town had a policy (that is, a “legal requirement”) that effectively
prohibits the provision of service. Alternatively, the carrier could challenge the denial (or failure
to act) itself under Section 332, as the denial is a “regulation” of the placement, construction, or
modification of a wireless siting facility. But where a locality fails to act within a reasonable
time on a siting application in violation of Section 332, that action would also violate Section
253 only if the carrier could show that this failure to act was pursuant to a policy, practice, or
other legally binding requirement.

79

See id.
24

 D.

State and Local Actions Pertaining to Access to Rights-of-Way, Other Public
Lands, and Structures Within Them Are Subject to Sections 253 and 332.

Contrary to claims of some localities, Sections 253 and 332 apply to state and local
actions that deny wireless providers access to state or municipally owned or managed rights-ofway and poles in those rights-of-way. Sections 253 and 332, as well as Section 6409 of the
Spectrum Act, 80 make no distinction between states and localities acting in their proprietary 81
versus regulatory capacities. Congress was well aware that state and local governments act in
both capacities but did not create any exception in the statutes for governments acting in their
proprietary capacities. This implies that Congress intended for the Act to apply to actions taken
by state and local governments, even where they operate in a proprietary capacity. 82 At
minimum, Congress did not unambiguously indicate that the Communications Act applies only
to state and local governments acting in their regulatory capacity, and the Commission could
reasonably interpret Sections 253 and 332 as applying to state and local governments regardless
of whether they act in a proprietary or regulatory capacity.
Should the Commission determine, however, that Sections 253 and 332 do not apply to
state and local governments when they act in their proprietary roles, the Commission should
make clear that public rights-of-way and other property held by governments for public purposes
are subject to the Communications Act. Under this interpretation, Sections 253 and 332 would

80

Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. No. 112-96, § 6409(a), 126
Stat. 156 (2012) (codified at 47 U.S.C. § 1455(a)) (“Section 6409”).

81

For example, a proprietary action might be when a local government is a property owner and
acts in the same way as would a private actor that owned the same property.
82

See Bldg. & Constr. Trades Council of Metro. Dist. v. Associated Builders & Contractors of
Mass./R.I., Inc., 507 U.S. 218, 231-32 (1993) (where Congress provides an “implied indication
… that a State may not manage its own property when it pursues its purely proprietary interests,”
such a restriction is proper).
25

 not apply only where a local government acts in the same way as would a private actor that
owned the same property. Courts have applied this stringent test to determine whether an action
is proprietary under the Communications Act. They have looked to whether the municipality’s
“interactions with the market [are] so narrowly focused, and so in keeping with the ordinary
behavior of private parties, that a regulatory impulse can be safely ruled out.” 83 In making this
determination, courts consider “(1) whether ‘the challenged action essentially reflect[s] the
entity’s own interest in its efficient procurement of needed goods and services, as measured by
comparison with the typical behavior of private parties in similar circumstances,’ and (2)
whether ‘the narrow scope of the challenged action defeat[s] an inference that its primary goal
was to encourage a general policy rather than address a specific proprietary problem.’” 84
Consequently, the burden rests on state and local governments to show that their interactions are
“so narrowly focused” on the “efficient procurement of needed goods and services” – and not
instead to “encourage a general policy” – that their interest is “purely proprietary” in nature.
Under this framework, states and localities manage public rights-of-way in their
regulatory capacities. As the Commission has noted, “[c]ourts have held that municipalities
generally do not have compensable ‘ownership’ interests in public rights-of-way, but rather hold
the public streets and sidewalks in trust for the public.” 85 “It is a widely accepted principle of

83

Sprint Spectrum L.P. v. Mills, 283 F.3d 404, 420 (2d Cir. 2002) (quoting Cardinal Towing &
Auto Repair, Inc. v. City of Bedford, 180 F.3d 686, 693 (5th Cir. 1999)) (internal quotation marks
omitted).
84

Id. (alteration in original) (quoting Cardinal Towing, 180 F.3d at 693).

85

See Implementation of Section 621(a)(1) of the Cable Communications Policy Act of 1984 as
Amended by the Cable Television Consumer Protection and Competition Act of 1992, Report and
Order and Further Notice of Proposed Rulemaking, 22 FCC Rcd 5101, 5160 at ¶ 134 (2007)
(“Cable Franchising Report and Order”), petition for review denied, Alliance for Cmty. Media v.
FCC, 529 F.3d 763 (6th Cir. 2008).
26

 long standing that ‘[t]he interest [of a city in its streets] is exclusively publici juris, and is, in any
aspect, totally unlike property of a private corporation, which is held for its own benefit and used
for its private gain or advantage.’” 86 Because they manage public rights-of-way for the public
good, and not solely their own interest, state and local governments do not possess a proprietary
interest in rights-of-way. For this reason, many courts “have recognized that the ownership
interest municipalities hold in their streets is ‘governmental,’ and not ‘proprietary.’” 87 Thus,
even though a state or municipality can “own” the land beneath a public street, it holds that land
in trust for public use, making its decisions regarding that land governmental or regulatory, as
opposed to proprietary, in nature. No such analogous responsibility applies to private actors in
most circumstances.
This framework makes clear that state and local governments act in a regulatory or
governmental capacity when they take actions that deny wireless providers access to state or
municipally owned or managed rights-of-way and poles in those rights-of-way, thus bringing
these actions within the ambit of Sections 253 and 332(c)(7). When a state or locality imposes
requirements that a wireless carrier must follow in order to site its equipment or renders an
adverse siting decision, its actions do not resemble those of a private party acting in its own
narrow interest, but those of a regulatory body that manages land use decisions on land held in
public trust. Consequently, where a city’s franchising and permitting decisions denied a
86

Gardner F. Gillespie, Rights-of-Way Redux: Municipal Fees on Telecommunications
Companies and Cable Operators, 107 Dick. L. Rev. 209, 213 (2002) (alterations in original)
(quoting People v. Kerr, 27 N.Y. 188, 200 (1863)).
87

Liberty Cablevision of P.R., Inc. v. Municipality of Caguas, 417 F.3d 216, 221-22 (1st Cir.
2005) (citing City of Denver v. Qwest Corp., 18 P.3d 748, 761 (Colo. 2001) (en banc)); Am. Tel.
& Tel. Co. v. Vill. of Arlington Heights, 620 N.E.2d 1040, 1044 (Ill. 1993); City of N.Y. v. Bee
Line, Inc., 284 N.Y.S. 452, 457 (App. Div. 1935), aff’d, 3 N.E.2d 202 (N.Y. 1936)); see also City
of Zanesville v. Zanesville Tel. & Tel. Co., 59 N.E. 781, 785 (Ohio 1901); Hodges v. W. Union
Tel. Co., 18 So. 84, 85 (Miss. 1895).
27

 payphone company access to the city’s rights-of-way, that decision was regulatory in nature and
subject to preemption under Section 253. 88 The same is true of the placement of wireless
facilities. Moreover, states and localities negotiating with wireless providers generally act not on
a case-by-case basis, but instead pursuant to master lease or license agreements and local zoning
ordinances. 89 These requirements put in place for all wireless providers indicate that the
“primary goal [i]s to encourage a general policy rather than address a specific proprietary
problem.” 90 Because state or local government rules or actions regarding rights-of-way or poles
within those rights-of-way are regulatory in nature, preemption is proper under Sections 253 and
332(c)(7).
Applying the same standard, states and localities also own and manage lampposts, water
towers, and utility conduits in their regulatory capacities. States and municipalities do not own
and operate such structures purely for their own benefit. As with rights-of-way, they oversee
these structures as a way of managing public resources – whether it be the water held in city
owned towers or the fiber optic cable threaded through city utility conduits. And states and
localities own and operate lampposts in order to manage rights-of-way and enhance public safety
– a classic regulatory role. States and localities do not construct and operate these lampposts to
advance their economic agendas. They therefore do not act solely in their own economic

88

Coastal Commc’ns Serv., Inc. v. City of N.Y., 658 F. Supp. 2d 425, 443 (E.D.N.Y. 2009).

89

See Verizon Small Facility Comments at 7-8, 18-19 (noting Verizon’s experience that
negotiating with local governments generally involves master lease agreements and zoning
ordinances).
90

Sprint Spectrum L.P., 283 F.3d at 420 (quoting Cardinal Towing, 180 F.3d at 693) (internal
quotation marks omitted).
28

 interest, as would a private party, in operating these structures. 91 Instead, they act primarily “to
encourage a general policy rather than address a specific proprietary problem.” 92 Thus, for these
structures, which states and localities operate not as market participants in their own spheres of
economic activity, but instead as managers of public goods, the governmental interests are
regulatory and the restrictions of Sections 253 and 332 apply in full.
IV.

THE COMMISSION SHOULD ADOPT RULES BARRING STATE AND LOCAL
ACTIONS THAT PROHIBIT THE PROVISION OF TELECOMMUNICATIONS
SERVICES.
A.

The Commission Has Authority to Adopt Rules Under Section 253.

Text and precedent make clear that the Commission has authority to adopt rules that
preempt local laws that violate Section 253. Earlier in the same chapter of the statute, the
Communications Act provides: “The Commission may prescribe such rules and regulations as
may be necessary in the public interest to carry out the provisions of this chapter.” 93 The

91

See Minnesota Preemption Order, 14 FCC Rcd at 21707-08 at ¶ 19 (noting that preemption
under Section 253 was appropriate because “Minnesota is not merely acquiring fiber optic
capacity for its own use”). Where a governmental entity could show that the water in its tower
or the light from its light pole was being used solely for government purposes, and not for the
public at large, then a governmental entity would be able to argue that it was operating the water
tower or lamppost in its proprietary capacity. But so long as it is engaging in the provision of
public services, the state’s or locality’s interest would fall squarely on the regulatory side of the
divide. This analysis is consistent with the approach taken by the Commission in 2014 with
regard to the Spectrum Act. There, the Commission distinguished between a local government
acting similarly to a private property owner and pursuing its “purely proprietary interests,” and
its actions as a regulator of public lands or other resources. 2014 Infrastructure Order, 29 FCC
Rcd at 12964 at ¶ 239.
92

Sprint Spectrum L.P., 283 F.3d at 420 (quoting Cardinal Towing, 180 F.3d at 693) (internal
quotation marks omitted).
93

47 U.S.C. § 201(b).
29

 Commission has expressed its view that this grant of authority provides it with “broad general
rulemaking authority that would allow it to issue rules interpreting section[] 253.” 94
Likewise, the United States Supreme Court has repeatedly confirmed the Commission’s
authority to issue rules that interpret and implement the Communications Act. “We think that
the grant in § 201(b) means what it says: The FCC has rulemaking authority to carry out the
provisions of [the Communications] Act, which include[s provisions] . . . added by the
Telecommunications Act of 1996.” 95 As it has done with other provisions of the
Communications Act, the Commission can use its authority pursuant to Section 201(b) to issue
rules that explain which practices “prohibit or have the effect of prohibiting” the provision of
telecommunications service.
Nothing in Section 253(b) or (c) undermines the Commission’s authority to promulgate
rules interpreting Section 253(a). 96 These sections merely prescribe specific limits on the reach

94

Acceleration of Broadband Deployment: Expanding the Reach and Cost of Broadband
Deployment by Improving Policies Regarding Public Rights of Way and Wireless Facilities
Siting, Notice of Inquiry, 26 FCC Rcd 5384, 5400 at ¶ 57 (2011).
95

AT & T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 378 (1999) (internal quotation marks omitted);
see also Brand X, 545 U.S. at 980-81 (where the Communications Act is ambiguous, Section
201(b) “give[s] the Commission the authority to promulgate binding legal rules” that “fill the
statutory gap in reasonable fashion”); City of Arlington v. F.C.C., 133 S. Ct. 1863, 1866, 1871-73
(2013) (upholding FCC authority, pursuant to Section 201(b), to issue rules interpreting Section
332).
96

See Wireline Infrastructure Notice at ¶ 109; 47 U.S.C. § 253(b) (“Nothing in this section shall
affect the ability of a State to impose, on a competitively neutral basis and consistent with
section 254 of this title, 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.”); id. § 253(c) (“Nothing in this section affects
the authority of a State or local government to manage the public rights-of-way or to require fair
and reasonable compensation from telecommunications providers, on a competitively neutral and
nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory basis, if the
compensation required is publicly disclosed by such government.”).
30

 of any rule the Commission may adopt. 97 Section 253(b) and (c) offer localities a safe harbor: if
they can show their actions fall within the purview of these provisions, Section 253(a)’s
limitations do not apply. 98 Thus, where a state or local authority can show that it has put in place
competitively neutral “requirements necessary to preserve and advance universal service, protect
the public safety and welfare, ensure the continued quality of telecommunications services, [or]
safeguard the rights of consumers,” it may in those limited circumstances enact policies that
effectively prohibit the provision of service. 99 The term “necessary,” however, establishes a high
bar. States and localities must show that the requirement at issue is essential to one of the goals
enumerated in Section 253(b). 100 And, as discussed above, Section 253(c) limits states and
localities to cost-based compensation for the use of public rights-of way. 101
Nor does Section 253(d) limit the Commission’s authority to adopt rules interpreting
Section 253(a). Section 253(d) provides:
If, after notice and an opportunity for public comment, the Commission
determines that a State or local government has permitted or imposed any
statute, regulation, or legal requirement that violates subsection (a) or (b)
of this section, the Commission shall preempt the enforcement of such
statute, regulation, or legal requirement to the extent necessary to correct
such violation or inconsistency. 102

97

See Section III. B.1.a, supra.

98

See 47 U.S.C. § 253(b), (c) (exempting from the limitations of Section 253 certain listed state
and local duties and powers).
99

47 U.S.C. § 253(b) (emphasis added).

100

See Necessary, Black’s Law Dictionary (10th ed. 2014) (defining necessary as “essential”).

101

See Section III.B.1.a, supra.

102

47 U.S.C. § 253(d).
31

 Section 253(d) thus imposes an affirmative obligation on the Commission: If, after notice and
comment, the Commission finds a violation of Section 253(a) or (b), it must take action. But that
mandate does not suggest that the Commission can act only in this manner, or otherwise deprive
the Commission of its authority to interpret Section 253.103

On the contrary, Section 253(d)

constrains the Commission’s discretion in one respect only (requiring it to preempt violations of
Section 253(a) or (b) presented to it), thereby leaving unaffected its discretion in all other
respects, including its discretion to interpret Section 253. Absent any such restraint, the
Commission is free, under black letter administrative law, to proceed via either rulemaking or
adjudication in interpreting a statute within its jurisdiction. 104
For this reason, the Commission is correct to propose that it interpret Section 253(d)’s
adjudicatory process as one non-mandatory approach for determining violations of Section 253,
but one that does not prevent the Commission from adopting binding rules interpreting the other
provisions of Section 253. 105 The authority – and indeed the obligation – to correct violations of
a statute via an adjudication after notice and comment in no way precludes the Commission from
defining such violations through adoption of general rules. In any event, at minimum, the effect
of Section 253(d) on the Commission’s authority to adopt rules implementing the other
103

C.f. N. Cnty. Commc'ns Corp. v. Cal. Catalog & Tech., 594 F.3d 1149, 1158 (9th Cir. 2010)
(holding that even where the plain language of Section 201(b) of the Communications Act
arguably indicated that no Commission guidance was necessary, because the statute possesses
broad language, “it is within the Commission’s purview to determine whether a particular
practice constitutes a violation for which there is a private right to compensation”).
104

See City of Arlington v. FCC, 668 F.3d 229, 240 (5th Cir. 2012), aff’d, 133 S. Ct. 1863 (2013)
(“Agencies typically enjoy ‘very broad discretion [in deciding] whether to proceed by way of
adjudication or rulemaking.’”) (quoting Time Warner Entm’t Co. v. FCC, 240 F.3d 1126, 1141
(D.C. Cir. 2001)); see SEC v. Chenery Corp., 332 U.S. 194, 203 (1947) (“[T]he choice made
between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in
the informed discretion of the administrative agency.”).

105

See Wireline Infrastructure Notice at ¶ 110.
32

 provisions of Section 253 is ambiguous. Under Chevron and City of Arlington, the Commission
has the latitude to construe the extent of its statutory authority so long as that interpretation is
reasonable. 106 Construing Section 253 to allow the Commission to adopt general rules meets this
standard.
B.

The Commission Should Adopt Rules Preempting Requirements and Fees
that Effectively Prohibit Providing Broadband Services to Customers.

To overcome the documented barriers to broadband deployment, the Commission should
adopt rules prohibiting certain requirements or actions as per se unlawful under Section 253. 107
Based on the challenges Verizon has experienced in deploying small facilities in rights-of-way,
discussed above, the Commission should prohibit:
•

Moratoria, either explicit or de facto, that result in a state or locality refusing to negotiate
or consider agreements to access public rights-of-way or access to municipally owned
structures in rights-of-way;

•

Failure to negotiate rights-of-way or pole access agreements in good faith;

•

Fees, including application fees, right-of-way access fees, pole rental fees, escrow fees,
consultant review fees, and permit renewal fees that are either not cost-based or not
charged for similar facilities in the right-of-way;

•

Undergrounding requirements that effectively prohibit locating small cells above ground
in public rights-of-way;

•

Requirements that applicants demonstrate a gap in coverage, need for service, or the need
for a particular technology or facility type to place facilities in public rights-of-way;

•

Excessive minimum separation and set-back requirements for facilities in public rightsof-way;

•

Failure to provide applicants a finite list of requirements for accessing rights-of-way and
municipally owned poles;

106

See Chevron, U.S.A., Inc. v. Nat. Res. Defense Council, Inc., 467 U.S. 837, 844 (1984); City
of Arlington, 133 S. Ct. at 1868-69.

107

See Wireline Infrastructure Notice at ¶¶ 100-12. Although the request for comment about
rules the Commission should adopt under Section 253 appears in the Wireline Infrastructure
Notice, any rules adopted would promote both wireless and wireline infrastructure deployment.
In this section, we address rules needed from the wireline and wireless perspective.
33

 •

Subjective or vague aesthetic requirements – reasonable aesthetic concerns should be
addressed in the list of requirements and not adjudicated on an ad hoc basis;

•

Requirements to install additional facilities not planned by the applicant or to provide
services at a discount or free of charge as a condition of approval to access rights-of-way
or municipally owned poles;

•

Requirements that favor or require placement of facilities on state or municipally owned
structures within rights-of-way; and

•

Requirements that impose conditions that conflict with the Commission’s copper
retirement rules or impose unreasonable conditions beyond what the Commission’s rules
require.
Rules prohibiting these impediments to broadband deployment would strike an

appropriate balance between preserving state and local authority over public rights-of-way and
speeding deployment by clearly proscribing actions or requirements that unreasonably prohibit
applicants from providing service.
C.

The Commission Should Use Its Section 253 Authority to Regulate Access to
Municipally-Owned Poles and to Require Baseline Standards in States that
Regulate Pole Attachments.

The Commission should use its Section 253 authority to ensure access to poles owned by
railroads, states, municipalities, and cooperatives in situations where actions by these entities
prohibit or effectively prohibit the provision of telecommunications service. 108 Section 224(a)’s
definition of “utility” excludes, among other things, “any railroad, any person who is
cooperatively organized . . . or any person owned by . . . any State.” The definition of “State”
includes “any political subdivision, agency, or instrumentality” of a state. 109 Thus, poles owned
by railroads, cooperatives, and states (including municipalities) generally are not subject to the
Commission’s pole attachment jurisdiction. But in some instances these entities’ actions could
amount to a prohibition of service under Section 253(a). The Commission should find that
108

See Wireline Infrastructure Notice ¶ 108.

109

See 47 U.S.C. § 224(a)(3).
34

 Section 253 applies and allows it to assert jurisdiction over access to poles owned by railroads,
cooperatives, and states (including municipalities) in those instances.
More generally, the Commission should use its Section 253 authority to ensure that
reverse-preemption states are effectively regulating the rates, terms, and conditions of pole
attachments. Under Section 224(c)(1), the Commission does not have jurisdiction over pole
attachments in the states that have certified that they regulate pole attachments. But if a state’s
pole attachment regulations allow utilities or others to set rates, terms, and conditions that
prohibit or effectively prohibit the provision of telecommunications service, then the
Commission should stand ready to act on a case-by-case basis.
V.

THE COMMISSION SHOULD ADOPT RULES UNDER SECTION 332(c) TO
PROMOTE WIRELESS INFRASTRUCTURE DEPLOYMENT.
A.

The Commission Should Adopt a Deemed Granted Remedy for the Section
332(c) Shot Clocks.
1.

Carriers Continue to Experience Delays Getting Approvals for Small
Cells.

Wireless carriers continue to experience delays in deploying small cells primarily
because local zoning processes developed for larger, “macro” towers have not been updated to
account for the smaller profile and limited effects of small cells. For example, many localities,
such as Duluth, Minnesota, Amherst, New York, and Pasco, Washington, require special use
permits involving multiple layers of approval to locate small cells in some or all zoning districts.
Many others require site-by-site approval for small facilities, even after reaching agreement to
place facilities in public rights-of-way. 110 The ordinances in many localities impose
requirements that are either not suited for small cells or are overly restrictive. These include
multiple layers of review for each site, overly broad property owner notification requirements,
110

See Verizon Small Facility Comments at 18-19.
35

 fall protection requirements, landscaping and fencing requirements, proof of need and the lack of
suitable alternative structures, engineering consultant review requirements, property value
impact analyses, overly restrictive height and equipment size limits, and minimum separation
and set back requirements. As a result of these outdated and burdensome requirements, many
zoning authorities fail to review and act on zoning applications within the shot clock time
periods. 111 And carriers are generally reluctant to initiate court action to enforce the shot
clock. 112
The existing shot clocks, if appropriately modified, can be effective in reducing delays.
In some locations, where ordinances are tailored to small facilities and skilled staff monitor the
Commission shot clock periods, the shot clocks have reduced delays and eliminated contentious
processes. For example, the town attorneys in Draper, Utah, and Jackson, Wyoming understand
the Commission shot clocks and how they apply. Applicants are generally able to work with
these jurisdictions to gain approval of small cells in a timely manner. Commission action to
modify the existing Section 332(c)(7) shot clock by adopting a deemed granted remedy and to
shorten the shot clock for small cells should encourage more localities to streamline processes to
facilitate timely reviews. And shorter shot clocks for small cells will likewise encourage
localities to adopt appropriately tailored zoning ordinances to address small cells.
2.

The Commission Has Authority to Adopt a Deemed Granted Remedy.

The Commission has authority to deem applications granted if not acted upon in a
reasonable period of time. Section 332(c)(7) requires that state and local governments act on
siting requests “within a reasonable period of time” and states that applicants are “adversely

111

Id.

112

See id., at 23.
36

 affected” by a “failure to act.” 113 Pursuant to this authority, the Commission adopted shot clocks
of “presumptively, 90 days to process personal wireless service facility siting applications
requesting collocations, and, also presumptively, 150 days to process all other applications.” 114
But these shot clocks currently lack teeth, making them largely ineffective. The Commission
should reconsider its decision not to adopt a deemed granted remedy for state or local
government failures to act within the presumptively legal time limits under Section 332(c)(7). 115
The Supreme Court confirmed the Commission’s authority to adopt rules implementing
Section 332(c)(7) in City of Arlington v. FCC, rejecting claims from state and local governments
that the adoption of shot clocks for siting decisions impinged upon state and local authority. 116
Adopting a deemed granted remedy when there is a “failure to act” by localities fits squarely
within this Commission authority.
Verizon agrees that the Commission has sufficient authority to convert the rebuttable
presumption adopted in the 332 Shot Clock Ruling into an irrebuttable presumption. 117 Although
the 332 Shot Clock Ruling stated that Section 332(c)(7)(B)(v) indicated congressional intent that
courts fashion “case-specific” remedies in “individual” cases, the Fifth Circuit in City of

113

47 U.S.C. § 332(c)(7)(B)(ii), (v).

114

See Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7) to Ensure
Timely Siting Review, Declaratory Ruling, 24 FCC Rcd 13994, 14005 at ¶ 32 (2009) (“332 Shot
Clock Ruling”), aff’d City of Arlington v. FCC, 668 F.3d 229 (5th Cir. 2012), aff’d City of
Arlington v. FCC, 133 S.Ct. 1863 (2013).

115

See id. at 14009 at ¶ 39; 2014 Infrastructure Order, 29 FCC Rcd at 12978 at ¶ 284.

116

City of Arlington v. FCC, 133 S. Ct. 1863, 1871-73 (2013).

117

See Wireless Infrastructure Notice at ¶¶ 10-13.
37

 Arlington v. FCC did not adopt this view. 118 Instead, it found that the statute provides no
indication of Congressional intent as to whether the Commission could promulgate rules
regarding the proper interpretation of Section 332(c)(7)(B)(ii). 119 “Accordingly, one could read
§ 332(c)(7) as a whole as establishing a framework in which a wireless service provider must
seek a remedy for a state or local government's unreasonable delay in ruling on a wireless siting
application in a court of competent jurisdiction while simultaneously allowing the FCC to issue
an interpretation of § 332(c)(7)(B)(ii) that would guide courts' determinations of disputes under
that provision.” 120 The court then affirmed the Commission’s authority to interpret ambiguous
provisions of the statute, such as what constitutes a “reasonable period of time” for local
action. 121
Establishing a deemed granted remedy in the form of an irrebuttable presumption would
be consistent with the text of the statute and this judicial precedent. Although Section
332(c)(7)(B)(ii) requires that a locality act on each application “within a reasonable period of
time… taking into account the nature and scope of such request,” 122 the requirement to examine
the individual scope of each request is directed at the local government, not to a reviewing court.
It is consequently entirely consistent with the text of Section 332(c)(7) for the Commission to
provide guidance regarding the maximum amount of time that may be deemed “reasonable” for

118

City of Arlington v. F.C.C., 668 F.3d 229, 250-51 (5th Cir. 2012), aff'd, 133 S. Ct. 1863
(2013).

119

See Id. at 251.

120

Id. at 255.

121

Id.

122

47 U.S.C. 332(c)(7)(B)(ii).
38

 localities to review different categories of applications. 123 The Commission should make clear in
establishing an irrebuttable presumption that it is setting only a maximum period of time, beyond
which a failure to rule on an application is unreasonable in all circumstances. The Commission
should preserve courts’ ability to determine, on a case-by-case basis, that periods less than the 90
and 150 days to process applications may in fact be reasonable under the circumstances.
Adoption of a shot clock is fully consistent with the Commission’s approach under
analogous statutes, and those remedies have been affirmed by the courts. For example, Section
621(a)(1) of the Communications Act prevents local cable franchising authorities from
“unreasonably refus[ing] to award an additional competitive franchise.” 124 The Commission
adopted a shot clock under this section and provided that if a franchising authority did not render
a decision on an application within the applicable time period, the franchising authority would be
deemed to have granted the application. 125 The Sixth Circuit denied a challenge to the order,
rejecting the argument that the deemed granted remedy exceeded the Commission’s authority
and “den[ied] community needs and interests.” 126 The court upheld the Commission’s
determination that the chosen shot clock was reasonable and that enforcing it through the deemed
granted remedy was proper in order to prevent potential market entrants from abandoning the

123

See City of Arlington, 668 F.3d at 255 (noting that “reasonable period of time” is inherently
ambiguous and that the Commission has authority to provide guidance regarding its meaning).

124

47 U.S.C. § 541(a)(1).

125

See Cable Franchising Report and Order, 22 FCC Rcd 5103 at ¶ 4, 5127-28 at ¶ 54, 5132 at ¶
62, 5134-35 at ¶ 68, 5139-40 at ¶¶ 77-78.

126

Alliance for Cmty. Media v. FCC, 529 F.3d 763, 778 (6th Cir. 2008), cert. denied, 557 U.S.

904 (2009).
39

 market altogether due to “excessive delays” and “unreasonable refusals.” 127 Similarly, in the
2014 Infrastructure Order, the Commission adopted a deemed granted remedy for the shot clock
under Section 6409 of the Spectrum Act, 128 which the Fourth Circuit upheld as a valid exercise
of agency authority consistent with the statute’s purpose of preventing a “protracted approval
process.” 129 Establishing an irrebuttable presumption for the shot clock under Section 332(c)(7)
is not only supported by the Commission’s authority to interpret that provision, but also by its
construction of similar statutes and the decisions upholding those interpretations.
Alternatively, Verizon agrees that the Commission could interpret Section 332(c)(7) as
depriving state and local governments of authority to act on applications after a reasonable
period for review has expired. Section 332(c)(7)(A) preserves state and local authority over
siting applications “[e]xcept as provided in this paragraph,” and section 332(c)(7)(B)(ii) states
that those authorities “shall act on any request … within a reasonable time.” The statute does not
state the consequences of failure to act in a reasonable period of time, and the agency has
authority to fill this gap by shifting approval authority away from localities that fail to act.
Because states and localities would consequently lack the authority that is otherwise preserved
by Section 332(c)(7)(A), they would not be able to approve or deny any application. The
Commission could make clear that in such circumstances, the applicant would be free of the need
to secure local approval.
Finally, the Commission has authority to implement Section 332(c)(7) by promulgating a
rule that establishes a “deemed granted” remedy. “The FCC has rulemaking authority to carry

127

Id., 529 F.3d at 780 (citation and internal quotation marks omitted).

128

See 47 U.S.C. § 1455.

129

See Montgomery Cty. v. F.C.C., 811 F.3d 121, 128 (4th Cir. 2015).
40

 out the provisions of [the Communications] Act, which include[s provisions] … added by the
Telecommunications Act of 1996.” 130 The Fifth Circuit and the Supreme Court confirmed this
authority with respect to Section 332 in City of Arlington v. FCC, locating the Commission’s
broad rulemaking authority in Section 201(b) to “prescribe such rules and regulations as may be
necessary in the public interest to carry out the provisions of this chapter.” 131 The Supreme
Court has thus confirmed that the Commission’s general rulemaking authority applies with full
force to Section 332(c)(7). Given that the Commission possesses such authority, it can
permissibly promulgate a deemed granted remedy to account for situations where localities fail
to act within the prescribed time period.
B.

The Commission Should Adopt a 60-day Shot Clock for Certain Small Cells.

The Commission should adopt a 60-day shot clock for action on applications to place
small cells on existing structures, provided that the facility meets reasonable size limits
established by the Commission. 132 The 60-day shot clock should also apply to small cells placed
on new or replacement poles, provided the poles are no more than 50 feet tall and are located in
public rights-of-way with existing above-ground utility (including light and traffic) poles. In
2009, when the Commission adopted the 90-day shot clock for placements and modifications on
existing structures, it did not specifically contemplate small cells, which have less potential for

130

AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 378 (1999) (internal quotation marks omitted).

131

47 U.S.C. § 201(b); see 133 S. Ct. at 1866, 1871–73 (finding that the Commission has the
authority to interpret Section 332); 668 F. 3d at 249.

132

The Commission should apply the size limits applicable to small facility exclusions from
historic preservation reviews – three cubic feet per antenna, no more than six cubic feet for all
antennas, and 28 cubic feet for associated equipment. See Collocation Agreement Amendment, §
VI.A.5 (a) and (b)(i).
41

 aesthetic and other impacts than macrocells. 133 A 60-day shot clock is consistent with the shot
clock the Commission adopted under Section 6409 and with recent state legislation adopting shot
clocks of not more than 60 days for covered small wireless facilities. 134
The same 60-day shot clock should apply to applications proposing multiple facilities –
so called “batch applications.” 135 Batch applications generally are used when several similar
facilities are proposed in the same area and have similar (if any) effects on the surrounding area.
They benefit applicants, by streamlining application processes, and reviewing authorities, by
enabling the review of many applications simultaneously. The Commission should follow the
lead of states that have recently adopted small facility statutes that apply the same shot clock to
batch applications and single applications. 136
The Commission should also make clear that the Section 332(c)(7) shot clocks apply to
all local government decisions related to the placement of covered wireless facilities. Local
governments apply a variety of requirements to small facility deployments in rights-of-way. In
some cases, local requirements for gaining access to rights-of-way and municipal poles either
supplant or exist in addition to the local zoning process. 137 Allowing localities to exempt parts
of the approval process from the applicable deadlines frustrates the purpose of the shot clocks.

133

See WTB Infrastructure Notice 31 FCC Rcd. at 13371 (asking “whether the presumptive
deadlines adopted in the 2009 Declaratory Ruling reflect an approach more appropriate for
traditional macrocells than for the types of cells discussed here, which are much smaller and can
be placed on light poles, utility poles, buildings, and other structures either on private property or
in the public rights of way”).

134

Id. at 13370.

135

See Wireless Infrastructure Notice at ¶ 18.

136

See Verizon Small Facility Comments at 27.

137

Id., at 18-19.
42

 Clarifying that the shot clocks apply to all aspects of the approval process, including accessing
the rights-of-way and placing small facilities on municipally owned poles, is necessary to speed
local siting decisions. This clarification will also encourage local authorities to adopt
streamlined approval processes. Clarifying the shot clocks in this manner is consistent with the
statute. Section 332(c)(7) applies to decisions that regulate the placement of wireless facilities,
and it does not limit the terms of the statute to (or even mention) the local zoning process. 138
The Commission should rule that the shot clock starts to run once an application is filed
pursuant to a published state or local application process. 139 The clock would begin to run
whether the application is for access to rights-of-way, a permit or permits to place facilities on
municipally owned poles, or a zoning application. In localities that have not yet adopted formal,
published application processes (particularly to place facilities in rights-of-way or on municipal
poles), the clock should begin to run once an entity submits a written request for approval. To
ensure that applications are complete and that localities have all of the information that they need
to review, the rules should allow localities that have published their application procedures and
forms to have 15 days to review applications for completeness and toll the clock for incomplete
applications. Limiting the ability to toll the clock in this manner would prevent localities from
employing “floating” application requirements and encourage them to adopt and publish formal
requirements.
The Commission should treat moratoria under the Section 332(c)(7) shot clocks
consistent with the treatment of moratoria under the Section 6409 shot clock. 140 There, in the
138

See 47 U.S.C. § 332(c)(7)(B)(i) and (ii).

139

See Wireless Infrastructure Notice at ¶ 20 (seeking comment on when the shot clock should
start for processes where there might be a lack of clarity).

140

2014 Infrastructure Order, 29 FCC Rcd at 12865 at ¶ 265.
43

 context of adopting rules to implement a shot clock under Section 6409, the Commission
clarified “that the shot clock runs regardless of any moratorium.” 141 There is no reason to
deviate from that position here.
VI.

THE COMMISSION SHOULD STREAMLINE HISTORIC PRESERVATION
AND ENVIRONMENTAL REVIEWS.
A.

The Commission Should Modernize the Tribal Consultation and Review
Process.

The need for many thousands of small cell and 5G antenna locations to densify wireless
networks requires significant changes to the conduct of historic preservation reviews, including
tribal reviews. The changes proposed below target only facilities not located on tribal lands and
preserve tribal authority to review facility types most likely to affect tribal historic properties. 142
Under the current framework, tribal reviews place a heavy burden on wireless facility
deployment without corresponding benefits because the vast majority of tribal reviews are
unnecessary. Of 8,100 requests for tribal review Verizon submitted between 2012 and 2015,
only 29 (.3 percent) resulted in findings of an adverse effect to tribal historic properties. 143 To
speed wireless facility deployment, the Commission should adopt targeted reforms aimed at
eliminating unnecessary reviews while preserving a reasonable role for tribal review where
legitimate interests are implicated.
Both the number of tribal reviews and cost of each review are growing. Tribes’ selfdesignated “areas of interest” subject to review are expanding rapidly – meaning more tribes
involved in nearly every project. Tribal fees associated with these reviews also are
141

Id.

142

Neither Verizon nor the Commission is proposing changes to the process for reviewing
facilities to be constructed on tribal lands.

143

Verizon Small Facility Comments at 36.
44

 increasing. 144 Tribal reviews impose delays of 75 days on average, with many taking much
longer to complete. And the average cost is now almost $2,500 per site. 145 Unless the
Commission acts to reform the review process, the trend toward more costly and cumbersome
tribal reviews at the same time the wireless industry is planning to deploy hundreds of thousands
of new small cells and 5G facilities will greatly exacerbate the cost and delays associated with
wireless broadband infrastructure deployment.
Fortunately, there is a path forward that respects tribal interests in reviewing new
facilities that pose a legitimate threat to tribal historic properties, while relieving wireless carriers
of the need to conduct reviews where no such threat exists. Certain facility types – such as
facilities that disturb new ground and tall towers – are far more likely to affect tribal properties
than small cells. The Commission should exclude from tribal reviews facility types that lack the
potential to affect tribal properties, and, where reviews are necessary, place firm time limits on
tribal reviews. The Commission should also reform the current tribal review process by: (1)
limiting when tribes can assess fees for tribal reviews and limiting the amount of those fees; (2)
adopting a 30-day shot clock for tribal historic preservation reviews; (3) clarifying that the
information on FCC Forms 620 (for new towers) and 621 (for collocations) is sufficient
information for tribal reviews; and (4) establishing a process for reviewing tribal areas of
interest.

144

Wireless Infrastructure Notice at ¶ 35 (providing data from the Commission’s Tribal
Construction Notification System (“TCNS”) indicating a dramatic increase in the areas where
tribes express an interest in reviewing wireless facilities, in the number of tribes assessing upfront fees for tribal reviews, and in the amount of such fees).
145

See Verizon Small Facility Comments at 34-35.
45

 1.

The Commission Should Exclude Tribal Reviews for Certain Small
Cell Facility Types.

As a starting point, the Commission should recognize that some types of small cell
facilities do not affect tribal historic properties and should be excluded altogether from tribal
reviews. Generally, the risks posed by wireless facilities to tribal properties of cultural or
religious significance come in one of two ways: by physically harming properties – such as
tribal artifacts and human remains – when excavating, or by placing a structure in a location that
impedes a sacred tribal viewshed. Neither outcome is possible when locating a small cell on an
existing structure, or when erecting a new pole (subject to certain size limits) that involves no
new ground disturbance. Verizon’s experience with tribal reviews confirms the absence of harm
to tribal historic properties in these contexts. Of 8,100 requests for tribal review submitted
between 2012 and 2015, there were no adverse effects from projects with no new ground
disturbance. 146
Excluding these small cell facility types from tribal reviews would remove a substantial
barrier to small cell deployment while still preserving tribal interests in protecting tribal historic
properties. 147 The Commission should exclude small cells that are either mounted on existing
structures or mounted on new structures, provided that the small cells involve no new ground
disturbance 148 and meet existing Commission size limits for small cells. 149 New poles should be
146

See Verizon Small Facility Comments at 35-37.

147

See Wireless Infrastructure Notice at ¶ 74 (seeking comment on whether to exclude certain
collocations from tribal reviews).

148

See Collocation Agreement Amendment, § VI.A.6.

149

The Commission should apply the size limits applicable to small facility exclusions from
historic preservation reviews – three cubic feet per antenna, no more than six cubic feet for all
antennas, and 28 cubic feet for associated equipment. Collocation Agreement Amendment, §
VI.A.4 (a) and (b)(i).
46

 limited to 50 feet in height or not greater than ten percent taller than other structures in the area
of the pole, whichever is greater. 150 This narrowly-tailored exclusion will benefit the public
interest by eliminating tribal reviews for small cell facility types that do not affect tribal
properties, while allowing tribes to focus their limited resources on reviewing those wireless
facility types that are more likely to harm tribal properties.
The Commission has authority to adopt this exclusion. The Advisory Council on Historic
Preservation (“ACHP”) – the federal agency responsible for implementing the Historic
Preservation Act – rules provide that federal agencies have no further obligations to conduct
historic preservation reviews if they conclude that the agency undertaking “is a type of activity
that does not have the potential to cause effects on historic properties, assuming such historic
properties [are] present.” 151 The proposed tribal exclusion easily satisfies this rule. The
parameters of the exclusion ensure that no tribal historic properties will be affected. Verizon’s
experience conducting actual reviews between 2012 and 2015 further demonstrates that facilities
meeting these parameters do not affect tribal properties. Even if tribal historic properties are
present, the proposed parameters (in particular the requirement that there be no new ground
disturbance) ensure that such properties will remain unharmed.
2.

The Commission Should Preclude Tribal Fees for Initial
Consultations.

The Commission could likewise curb abuses of the tribal review process by declaring that
carriers are not required to pay fees to tribes for performing initial reviews of proposed projects
submitted by carriers for tribal review. As noted by the Commission, the ACHP has advised that

150

See Collocation Agreement Amendment, §I.E.1 (defining what constitutes a substantial
increase in height).

151

36 C.F.R. § 800.3(a)(1).
47

 applicants are under no obligation to pay tribal fees to review applications, but fees might be
appropriate when a tribe is performing professional services such as those performed by hired
consultants or contractors. 152
When tribes indicate through the Commission’s Tower Construction Notification System
(“TCNS”) that they have an interest in reviewing a proposed facility not located on tribal lands,
they are treated as “consulting parties” in the historic preservation review process, not as hired
consultants or contractors. They have the right to receive notices, copies of submission packets,
correspondence and other documents provided to the State Historic Preservation Officer
(“SHPO”), and have the right to have their views taken into account by the applicant. Although
there are special rules for conducting tribal reviews due to tribes’ sovereign status, the work they
perform is the same as that of any other consulting party, such as a local historic preservation
society, that expresses a legal or economic interest in a proposed project. 153 Applicants do not
hire tribes as consultants, enter into contractual agreement with tribes, or ask for specific
information from the tribe(s) during the consultation process. Rather, tribes are given the
opportunity, like any other consulting party, to concur or disagree with the applicant’s proposed
finding of effect. Those findings are prepared by expert environmental consultants hired by the
applicant and are based on information compiled from site history review, observations, and
publicly available documentation of the area’s historical land use and relevance.
Because tribes are not performing the work of consultants or contractors for projects not
located on tribal lands, the Commission should declare that tribal fees are neither necessary nor

152

See Wireless Infrastructure Notice at ¶ 43.

153

See Nationwide Programmatic Agreement Regarding the Section 106 National Historic
Preservation Act Review Process, Report and Order, 20 FCC Rcd 1073 (2004) (codified at 47
C.F.R. Part 1, App’x C (“NPA”)) at §§ V.F and G.
48

 appropriate for the tribe’s initial review of an application. If a tribe refuses to review a project
based on nonpayment of a requested fee, the Commission should deem the tribe to have no
further interest in the project and that the applicant has completed the tribal consultation with
respect to that tribe.
In other cases, tribes may perform work similar to that of a hired consultant and fees
might be appropriate for specific sites. For example, if during the initial consulting party review,
a tribe finds evidence of an intact historic property within the footprint of the project, then it may
be necessary for the tribe to perform professional services to investigate whether that property
would be affected. In that case, any tribal fees should be negotiated by the tribe and the
applicant. To assist in these negotiations and avoid prolonged fee disputes, the Commission
should declare that fees commensurate with those paid to other cultural resource contractors of
similar education and experience are presumptively reasonable, and that travel and related
expenses commensurate with such fees paid to other contractors are likewise presumptively
reasonable.
3.

The Commission Should Take Steps to Curb the Unreasonable
Expansion of Tribal Areas of Interest.

The Commission should conduct oversight into tribes’ self-designation of their areas of
interest and modify TCNS to require tribes to identify areas of interest at the county level.
Historically, tribes have had unfettered discretion to designate the areas where each tribe wants
to review projects. Many tribes designate entire states as areas of interest, and the areas of
interest designated by tribes has dramatically expanded in recent years. 154 To curb the
unchecked expansion of tribal areas of interest, and reduce the number of unnecessary tribal
reviews required for each project, the Commission should work with tribes to review both
154

See Wireless Infrastructure Notice at ¶ 35.
49

 existing areas of interest and requests to expand areas of interest. This review should require
tribes to demonstrate the likelihood that tribal historic properties are located in existing areas of
interest and proposed expansion areas. If the Commission and the tribe agree upon the
expansion, applicants should be notified of the expansion and provided a six-month transition
period before the changes take effect.
The Commission should also modify TCNS to improve how areas of interest are
designated and to provide information about these areas to applicants. The Commission should
require tribes to designate areas of interest at the county level rather than designating entire
states. It should encourage tribes to designate certain facility types (such as collocations) within
their areas of interest that do not require tribal review, and modify the TCNS to accommodate
those designations. Finally, applicants should be given visibility into TCNS to determine early
in the planning stage whether and to what extent tribal reviews will be necessary for a proposed
project in any particular area. Currently, applicants do not learn that a proposed site is within a
tribe’s designated area of interest until after they have submitted the required documentation into
TCNS, making it difficult if not impossible for applicants to select sites outside those areas and
to plan their network deployment in the most efficient manner.
4.

The Commission Should Require Tribal Responses in 30 Days.

The Commission should require completion of tribal historic preservation reviews within
30 days of submission of the required documentation through TCNS. Delays in obtaining tribal
responses constitute a significant barrier to facilities siting, and those delays will likely get worse
as carriers submit many thousands of applications for small cells for tribal reviews. In a July
2016 examination of 2,450 Verizon requests for tribal review that were pending at the time, more
than half had been pending for more than 90 days, almost a third had been pending for more than

50

 six months, and 20 had been pending for more than a year. For projects Verizon submitted
between 2014 and 2016, the average time for tribes to complete reviews was 75 days. 155
The Commission has authority to adopt a shot clock for tribal responses. The
Commission previously determined that it has authority to interpret and clarify the application of
the provisions in the Nationwide Programmatic Agreement (“NPA”). 156 In the Tribal
Declaratory Ruling, the Commission adopted a 60-day shot clock for tribes that fail to respond to
a request submitted through TCNS to indicate whether the tribe wants to be a consulting party on
a wireless facility request. 157 The Commission found that adopting a tribal shot clock in that
context “satisfies the Commission’s obligation to make reasonable and good faith efforts to
identify Indian tribes and [Native Hawaiian Organizations] that may attach religious and cultural
significance to historic properties that may be affected by an undertaking, as specified under the
Nationwide Agreement and as required under the NHPA and the rules of the Advisory Council
on Historic Preservation.” 158 Just as it had authority to adopt a shot clock in 2005, the
Commission has authority to place a shot clock on all tribal responses in this proceeding.
The current lack of any firm deadline for tribal review contributes to delays in the review
process, and to speedy deployment. The shot clock adopted in 2005 only applies when tribes fail
to respond to the initial inquiry made to tribes through TCNS. But that process does not apply
when the tribe responds that it wants to be a consulting party, but then fails to render an opinion

155

See Verizon Small Facility Comments at 34-35.

156

See Clarification of Procedures for Participation of Federally Recognized Indian Tribes and
Native Hawaiian Organizations Under the Nationwide Programmatic Agreement, Declaratory
Ruling, 20 FCC Rcd 16092 (2005) (“Tribal Declaratory Ruling”) at 16092, 16096 at ¶¶ 1, 9.

157

Id. at 16095 at ¶ 9.

158

Id.
51

 about whether the proposed facility affects tribal historic properties. The Commission now has
an informal “Good Faith Protocol” to attempt to obtain tribal responses within 60 days, 159 but
that process still requires applicants to wait until Commission staff authorizes the applicant to
proceed and has been only marginally effective in curbing tribal delays.
Thirty days is an appropriate amount of time for tribes to review projects for effects to
tribal historic properties. The NPA provides that 30 days is the appropriate amount of time for
SHPOs to respond to requests to review projects for effects on historic properties, and likewise
states, “[o]rdinarily, 30 days from the time the relevant tribal [] representative may reasonably be
expected to have received an inquiry shall be considered a reasonable time.” 160 While the Tribal
Declaratory Ruling and Good Faith Protocol (which is based on the Tribal Declaratory Ruling)
allow 60 days, the Tribal Declaratory Ruling was adopted more than 10 years ago at a time when
TCNS was new and tribes were not yet accustomed to the process for reviewing wireless
facilities. Advances in electronic communication since that time together with the need for
applicants to build new facilities and bring them online quickly to address capacity needs warrant
a shorter time period. 161 And, as discussed below, the Commission could extend that time period
when necessary and appropriate.
In conjunction with a 30-day shot clock for tribal reviews, the Commission should also
adopt a uniform documentation requirement for tribal reviews. Absent a standard, the start of the
shot clock may be delayed by disputes over whether the applicant submitted the appropriate level
of information for the tribe to review the project. Existing FCC Forms 620 and 621, which are

159

See Wireless Infrastructure Notice at ¶ 31.

160

NPA at § IV.F.4.

161

See Wireless Infrastructure Notice at ¶ 60.
52

 the documentation required for SHPO historic preservation reviews, contain the “information
reasonably necessary for the [] tribe [] to evaluate whether Historic Properties of religious and
cultural significance may be affected.” 162 These forms contain information including contact
information for the applicant, the location of the proposed facility, the facility type (including
pictures), and an evaluation by a qualified consultant as to the potential effect on historic
properties in the vicinity of the project. Absent a showing by a tribe demonstrating the need for
more information based on the specifics of the proposed facility, the Form 620 and 621
information should be deemed to satisfy the NPA information standard.
The Commission should establish a process for implementing the 30-day shot clock
similar to that developed in the Tribal Declaratory Ruling. The shot clock should start running
on the date the applicant uploads the Form 620 or 621 information into TCNS. Tribes
expressing an interest in reviewing projects in the area of the proposed facility would then have
15 days to request more information based on a demonstration of need. If any tribe fails to
respond by day 30, the tribe would be deemed to have no interest in the project and the applicant
will have concluded its responsibility as to that tribe. If the tribe responds to the applicant before
the end of the 30-day period that more time is needed, the applicant and the tribe would be
permitted to mutually agree to an extension of not more than 15 additional days. Any disputes
arising during the process would be resolved by the Commission.
B.

The commission should adopt reasonable exclusions from historic
preservation review.

To speed deployment and investment, the Commission should adopt appropriate
exclusions to avoid unnecessary or redundant historic preservation reviews. 163 For each of the
162

NPA at § IV.F.3.

163

See Wireless Infrastructure Notice at ¶¶ 66-75.
53

 exclusions discussed below, the costs and delays that result from requiring historic preservation
reviews far outweigh any benefits that derive from such reviews. Verizon has analyzed its
historic preservation reviews between 2012 and 2015 and estimates that each historic
preservation review on average takes 100 days to complete and adds almost $4,000 to the cost of
each facility, although the timelines and costs for each project vary greatly depending on the
circumstances. 164 And those costs have likely increased since 2015 given the increase in tribal
fees noted by the Commission. 165 Because, as explained below, the reviews currently required
under Commission rules do not result in findings that historic or tribal properties are adversely
affected, the costs and delays far exceed the benefits.
1.

The Commission Should Exclude Pole Replacements that Meet
Certain Conditions.

The current historic preservation process excludes pole replacements; the Commission
should extended that exclusion to the replacement non-tower structures such as utility, light, and
traffic poles, provided that conditions designed to protect historic properties are met. 166 There is
no valid reason to exclude replacing “towers,” which are defined as structures built primarily for
supporting Commission-licensed antenna, 167 and not exclude other poles that meet similar
conditions.

164

These costs include the costs for consultants to review the site and prepare the relevant FCC
forms for submission, tribal review and monitoring fees, and fees associated with preparing and
submitting environmental assessments and memoranda of agreement to resolve adverse effects.

165

See Wireless Infrastructure Notice at ¶ 35.

166

See id. at ¶¶ 67-68.

167

See NPA at § II.A.14.
54

 The Commission should adopt conditions similar, but not identical, to the conditions
required for the exclusion of tower replacements from historic preservation review. 168 Nontower poles should be excluded if:
1. The pole being replaced is an existing structure and is being replaced in the same
location, meaning no more than 30 feet from the original location;
2. The project does not involve excavation more than 30 feet from the original pole
location, or, if the project is located within an existing right-of-way, the project footprint
remains within the boundaries of the right-of-way;
3. The new pole does not increase the height by more than 10 percent or 10 feet above the
height of the original pole, whichever is greater;
4. No existing historic preservation complaints are open against the pole being replaced; 169
and
5. The replaced pole is not listed on the National Register of Historic Places or located
within a National Historic Landmark District.
These conditions place reasonable limits on pole replacements designed to ensure that no historic
properties are affected. And Verizon’s review of 332 pole replacement projects between 2014
and 2017 revealed that none of its pole replacements meeting these parameters had an adverse
effect on any historic property.
The Commission has authority to adopt this reasonable expansion. The new exclusion “is
a type of activity that does not have the potential to cause effects on historic properties, assuming
such historic properties [are] present.” 170 If historic properties are present in the vicinity of the
pole being replaced, the existing pole is already part of the landscape surrounding that historic
property. Replacing the existing pole with another pole of a similar size and footprint will not

168

See id. at § III.B. For example, it does not make sense to require that the pole being replaced
was subject to an historic preservation review. Such a requirement would obviate the exclusion
since utility, light, and traffic poles typically do not undergo such reviews.

169

See Collocation Agreement Amendment, § IV.A.4.

170

See 36 C.F.R. § 800.3(a)(1).
55

 change that landscape. And the proposed limitation on excavation will ensure than any historic
properties in the ground are not affected.
2.

The Commission Should Exclude Construction in Rights-of-Way and
Industrial Zones that Meets Certain Conditions.

The Commission likewise should expand its rules excluding from review new
construction in rights-of-way and industrial zones that are unlikely to affect legitimate historic
preservation interests. 171 Today, both exclusions, where applicable, only relieve applicants from
consulting with SHPOs; tribal consultation is still required. Also, the rights-of-way exclusion
applies only to construction in utility and communications rights-of-way, but not to construction
in transportation rights-of-way. 172 These requirements severely limit the benefit of each
exclusion because tribal consultations are the most costly aspect of historic preservation reviews
and impose the most delays. These limitations should be removed.
Amending the industrial zone and rights-of-way exclusions by eliminating the need for
tribal consultation and including construction in transportation rights-of-way is warranted
because these changes, subject to certain conditions, will not increase the likelihood of effects to
historic properties. To ensure that tribal historic properties are not affected, the Commission
should exclude applicants from the requirement to consult with tribes only if the project involves
no new ground disturbance. And to address the concern that some transportation rights-of-way
run through historic districts, the Commission should limit the height of new poles in historic
districts to 50 feet or no more than ten percent taller than other structures in the area of the pole,

171

See Wireless Infrastructure Notice at ¶¶ 69-71. The Commission seeks comment on
expanding the rights-of-way exclusion, but not on the industrial zone exclusion.

172

See NPA at §§ III.D (industrial zone exclusion) and III.E (rights-of-way exclusion).
56

 whichever is greater. 173 The size of facilities in historic districts should likewise be limited,
consistent with other Commission rules that apply to small cells. 174 Verizon’s review of a
random sample of 58 sites that meet these proposed criteria between 2014 and 2016 produced no
sites that resulted in adverse effect findings.
3.

The Commission Should Exclude Collocations Not Closer than 50
Feet to a Historic District.

The Commission should amend the exclusion for small cells located outside historic
districts to exclude from the historic preservation review process small cells located at least 50
feet from a historic district. 175 The current 250-foot “buffer zone” between facilities and historic
districts has its origins in the original Collocation Agreement adopted in 2001 in the context of
much larger, macro cells. 176 Applying the 250-foot buffer zone to small wireless facilities does
not account for the reduced visibility and impact of these facilities. Even if the small facilities
are visible from ground level within an historic district, they are not likely to have an effect on
historic properties because of their small size. Therefore, the Commission should reduce the size
of the buffer zone to 50 feet to reflect the minimal impact of smaller wireless facilities.

173

See Collocation Agreement Amendment, § I.E.1 (defining what constitutes a substantial
increase in height).

174

The Commission should apply the size limits applicable to small facility exclusions from
historic preservation reviews – three cubic feet per antenna, no more than six cubic feet for all
antennas, and 28 cubic feet for associated equipment. Collocation Agreement Amendment,
§VI.A.5 (a) and (b)(i).
175

See Wireless Infrastructure Notice at ¶¶ 72-75. The current small facility collocation
exclusion is located at § VI of the Collocation Agreement Amendment.

176

Collocation Agreement Amendment, §V.A.2.
57

 C.

The Commission Should find that mounting small cells on existing structures
is not a federal undertaking.

The Commission should remove the requirement that applicants seeking to mount small
cells on existing structures undergo the burdensome historic preservation review procedures
mandated by the National Historic Preservation Act (“NHPA”). 177 As explained below, it is well
within the Commission’s authority and would advance the goals of this proceeding by removing
barriers to the deployment of small cell infrastructure. And it would promote historic
preservation efforts by allowing state and tribal historic preservation authorities, as well as this
Commission, to focus their limited resources on activities that pose an actual threat of damage to
historic properties.
The NHPA defines federal undertakings as activities that are financed, authorized, or
licensed by a federal agency. 178 Once the agency determines that an activity constitutes a federal
undertaking, the activity is subject to a costly and time-consuming historic review process. 179
Courts have explained that the NHPA, “by its terms, has a narrower reach and is triggered only if
a federal agency has the authority to license a project or approve expenditures for it.” 180 The
NHPA’s applicability depends on the degree of federal involvement in the project. Where the
federal agency’s role in private activity is de minimis, that activity does not constitute a federal

177

See 54 U.S.C. §§ 306108, 300320. Doing so would obviate the need for additional
exclusions, or to amend existing exclusions, applicable to such facilities.

178

54 U.S.C. § 300320 (defining undertaking to include a project or activity under the
jurisdiction of a Federal agency “requiring a Federal permit, license, or approval”); see also
Sheridan Kalorama Historical Ass’n v. Christopher, 49 F.3d 750, 755 (D.C. Cir. 1995)
(“Congress intended to expand the definition of an ‘undertaking’ – formerly limited to federally
funded or licensed projects – to include projects requiring a federal ‘permit’ or merely federal
‘approval.’”).
179

See 36 C.F.R. § 800 et seq.

180

Lee v. Thornburgh, 877 F.2d 1053, 1055 (D.C. Cir. 1989).
58

 undertaking. 181 Courts review an agency’s determination that an action is or is not a federal
undertaking for “reasonableness under the circumstances.” 182
The Commission’s blanket determination that construction of cellular facilities
constitutes a federal undertaking is outdated. That determination was made in reference to a
previous generation of cellular technology, which relied on macro cells mounted on large
purpose-built towers. The Commission found that construction of those towers is a federal
undertaking because, although no preconstruction authorization was required, the Commission
retained authority to “rule on” the environmental assessments submitted by applicants. 183
Since then, the Commission has recognized that small cells do not pose a comparable risk
of damage to historic properties. Small cells “are a fraction of the size of macrocell
deployments, and can be installed – with little or no impact – on utility poles, buildings, and

181

See, e.g., Sac and Fox Nation of Missouri v. Norton, 240 F.3d 1250, 1262 (10th Cir. 2001)
(holding that agency action that involves little or no discretion is not a federal undertaking);
Yerger v. Robertson, 981 F.2d 460, 465 (9th Cir. 1992) (holding that agency action that “does
not affect the historic character of the site” is not a federal undertaking); Vieux Carre Prop.
Owners, Residents & Assocs., Inc. v. Brown, 875 F.2d 453, 465 (5th Cir. 1989) (holding that
federal permit authorizing “inconsequential activities” did not create federal undertaking); Lee,
877 F.2d at 1057-58 (holding that “negligible” involvement of Department of Justice in decision
where to site prison project did not render it a federal undertaking); Ringsred v. City of Duluth, a
Minnesota Home-Rule Charter City, 828 F.2d 1305, 1308 (8th Cir. 1987) (holding that agency’s
authority to approve contracts for construction of a parking ramp was not a federal undertaking
because agency’s involvement was minimal); see also McMillan Park Comm. v. Nat’l Capital
Planning Comm’n, 968 F.2d 1283, 1290 (D.C. Cir. 1992) (Randolph, J., concurring) (stating that
agency’s review of amendments to project plan was “simply too tangential to make those
amendments ‘federal undertakings’ under section 106”).
182

Sugarloaf Citizens Ass’n v. F.E.R.C., 959 F.2d 508, 512 (4th Cir. 1992).

183

See In the Matter of Nationwide Programmatic Agreement Regarding the Section 106 Nat’l
Historic Pres. Act Review Process, 20 FCC Rcd 1073, 1082-83 at ¶¶ 24-26 (2004); see also
CTIA-Wireless Ass’n v. F.C.C., 466 F.3d 105, 114-15 (D.C. Cir. 2006) (affirming FCC
determination).
59

 other existing structures.” 184 They are often installed on structures within or near utility rightsof-way, causing minimal ground disturbance and almost no additional visual effect. These
deployments have “limited or no potential to cause adverse effects on historic properties.” 185
Indeed, the Commission has recognized that small cells “are … particularly useful to address
capacity or coverage needs in areas with stringent siting regulations, such as historic districts.” 186
In view of these differences, the Commission has put in place various exclusions and
agreements to reduce the regulatory burden on small cell deployments. 187 Although helpful,
these efforts fall short of eliminating unnecessary barriers to deployment in all instances. Rather
than add to the existing patchwork of exemptions and agreements, the Commission should
categorically exclude the mounting of small cells on existing structures from environmental
processing. 188 Given the minimal potential for this activity to create substantial environmental
impacts or damage to historic properties, submission of environmental assessments and
completion of environmental processing are unnecessary. Once this federal approval
184

See 2014 Infrastructure Order, 29 FCC Rcd at 12867 at ¶ 3.

185

Collocation Agreement Amendment at 2.

186

2014 Infrastructure Order, 29 FCC Rcd at 12880 at ¶ 33. The Commission recognized
numerous other benefits of small cell technologies over macro cells, including increasing
connectivity in areas where it is not feasible to install traditional towers, improving coverage
inside buildings, and meeting increased demand for wireless broadband services in a costeffective way. Id. at ¶¶ 32-34.
187

See Collocation Agreement Amendment (revising agreement between FCC and various
federal conservation bodies to exempt small cells from the Section 106 review collocations on
buildings more than 45 years old in most circumstances); 2014 Infrastructure Order, 29 FCC
Rcd at 12906 at ¶ 88 (exempting from Section 106 review small facilities mounted on utility
structures and buildings in certain circumstances).
188

See 47 C.F.R. § 1.1306. The Council on Environmental Quality regulations promulgated
under Section 204 of NEPA authorize the Commission to create categorical exclusions for
“actions which do not individually or cumulatively have a significant effect on the human
environment.” 40 C.F.R. § 1508.4; 42 U.S.C. § 4344.
60

 requirement is removed, there will be no basis to treat installation of small cells on existing
structures as a federal undertaking. 189
In the alternative, the Commission should exercise its authority to determine that
mounting small cells on existing structures is not a federal undertaking, and therefore is not
subject to NHPA review. 190 This determination is entirely consistent with the language of the
NHPA and judicial precedent. Even without a categorical exclusion from environmental
processing, the Commission’s involvement in the deployment of small cell infrastructure is de
minimis. It does not finance or otherwise assist with small cell deployments, does not require
preconstruction authorization, does not license or approve individual facilities, and has no
involvement in siting decisions. The Commission’s only role is its retained authority to “rule
on” environmental assessments. 191 Because the Commission has already determined that small
cells can be mounted on existing structures with “little or no impact,” 192 its duty to “rule on”
environmental assessments is peripheral, at best, to small cell infrastructure projects. Such
negligible federal involvement does not transform private activities into a federal undertaking,
and should not trigger the onerous federal historic review process.
For the foregoing reasons, the Commission should determine that mounting small cells
on existing infrastructure is not a federal undertaking triggering NHPA review. Doing so would
189

See 47 C.F.R. § 1.1312(c) (“If a facility covered by paragraph (a) of this section is
categorically excluded from environmental processing, the licensee or applicant may proceed
with construction and operation of the facility in accordance with the applicable licensing rules
and procedures.”).

190

In the NPA, the Commission reserved authority to make this determination: “The Commission
has sole authority to determine what activities undertaken by the Commission or its Applicants
constitute Undertakings within the meaning of the NHPA.” NPA § I (B).

191

See 47 C.F.R. §§ 1.1311, 1.1312.

192

2014 Infrastructure Order, 29 FCC Rcd at 12867 at ¶ 3.
61

 advance the public interest in ubiquitous and reliable cellular connectivity by removing
unnecessary and burdensome federal historic review procedures.
D.

The Commission should exclude twilight towers from historic preservation
reviews.

The Commission should exclude from historic preservation review wireless facilities
mounted on towers built between March 16, 2001 and March 7, 2005 (“twilight towers”). 193
This period is significant because March 16, 2001 is the date the Collocation Agreement was
adopted. 194 That agreement, which was negotiated among the Commission, the ACHP, and the
National Conference of State Historic Preservation Officers, adopted a number of exclusions for
wireless facilities. One such exclusion applies to wireless facilities mounted on previously built
towers. The idea was that towers built after that date would require documentation of a
completed historic preservation review. 195 But those formal historic preservation reviews were
not possible until the NPA, which adopted the rules and process for these reviews, took effect on
March 7, 2005. So while many (if not most) facilities built during this four-year period were
subject to some form of historic preservation review, those towers generally lack the type of
documentation that is generated by reviews under today’s rules. And carriers are unable to place
additional wireless facilities on these towers without working with Commission staff, state
historic preservation officers, and tribes to approve each proposed facility. Given that twilight
towers have been standing for more than 12 years, the likelihood of there being any previously
undetected adverse effects is very small. To free these long-standing towers for collocations, the
193

See Wireless Infrastructure Notice at ¶¶ 78-85.

194

See Public Notice, Wireless Telecommunications Bureau Announces Execution of
Programmatic Agreement with Respect to Collocating Wireless Antennas on Existing Structures,
16 FCC Rcd 5574 (WTB 2001).
195

See Collocation Agreement Amendment §§III, IV.
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 Commission should rule that, like towers built before March 16, 2001, collocations on towers
built before 2005 are excluded from historic preservation reviews.
E.

The Commission should Eliminate Redundant Environmental Reviews for
Certain New Towers in Flood Plains.

The requirement to prepare and submit environmental assessments for every new facility
constructed in a flood plain imposes unnecessary delays and should be amended. 196 Commission
rules implementing the National Environmental Policy Act (“NEPA”) 197 require applicants to
prepare an environmental assessment (“EA”) when a proposed facility may significantly affect
the environment. 198 For most categories of environmental concern, the Commission defers to the
expertise of other federal agencies to determine if there may be a significant effect. So, for
example, if the United States Fish and Wildlife Service reviews a project and determines that it
will not affect endangered species, the Commission does not require the applicant to submit an
EA. 199 But the Commission’s interpretation of its rule concerning flood plains differs. 200 There,
even if the applicant obtains a finding from the expert agency – the Federal Emergency
Management Agency (“FEMA”), the Army Corps of Engineers, or a local authority that
participates in the FEMA National Flood Insurance Program – that the project will not
significantly affect the environment, the Commission nonetheless requires the applicant to
separately prepare and file an EA. As a result, more than 80 percent of Verizon’s EA filings
over the last three years have been for facilities in flood plains.
196

See Wireless Infrastructure Notice at ¶ 65.

197

42 U.S.C. §§ 4321 et seq.

198

See 47 C.F.R. § 1.1307(a).

199

See https://www.fcc.gov/general/tower-and-antenna-siting.

200

47 C.F.R. § 1.1307(a)(6).
63

 Flood plain EAs are unnecessary and redundant and should be eliminated. When an EA
is required, the applicant must hire expert consultants to prepare the EA, then file the EA with
the Commission and wait at least 30 days to allow interested parties to comment. For the threeyear period Verizon reviewed, however, we have not received a single negative comment for
facilities receiving approval from any of the expert agencies on flood plains, and the
Commission approved every site without change. That is little surprise, given that other agencies
with environmental expertise had previously signed off on these projects. So the Commission
should eliminate the EA filing requirement for facilities to be located in flood plains either by
changing its interpretation of the existing rule, or amending the rule to make clear that EAs are
required only when an expert agency finds that a flood plain may be significantly affected.
VII.

CONCLUSION.
As discussed above, the Commission should act quickly to exercise its statutory authority

to eliminate barriers to wireless small facility deployment and pave the way for continued
leadership in wireless broadband.
Respectfully submitted,
VERIZON

_____________________________
William H. Johnson
Of Counsel

Tamara L. Preiss
Andre J. Lachance
1300 I Street, N.W.
Suite 500-East
Washington, D.C. 20005
(202) 515-2540
Henry Weissmann
Munger, Tolles & Olson LLP
350 Grand Avenue
Suite 5000
64

 Los Angeles, CA 90071
(213) 683-9150
Celia Choy
Jonathan Meltzer
Munger, Tolles & Olson LLP
1155 F Street N.W.
Washington, DC 20004
(202) 220-1105
Dated: June 15, 2017

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