March 30, 2017 
 
FCC FACT SHEET* 
Wireless Infrastructure NPRM 
 
Notice of Proposed Rulemaking and Notice of Inquiry – WT Docket Nos. 17-79 and 15-180 
 
Background:  The Commission would open a comprehensive review of the legal framework for infrastructure 
deployment reviews, to identify regulatory barriers and examine how the Commission could act to remove or 
reduce these barriers.   
Providers will need to install or upgrade a substantial amount of wireless infrastructure to support growing 
demand for broadband and to support next-generation technologies (e.g., 5G, IoT).  Right now, parties seeking to 
deploy even one small wireless facility must potentially go through multiple approvals from different regulators 
and navigate the Commission’s processes for environmental and historic preservation review, among other 
hurdles.  There is evidence that despite Commission action to reduce delays and costs of infrastructure review, 
providers continue to face significant costs and delays and reform may be needed.  The goal of the item is to 
promote the rapid deployment of advanced wireless broadband service to all Americans. 
 
What the NPRM Would Do: 
? The NPRM would seek comment on: 
o How current local, State, and Commission rules and processes affect the speed and cost of 
infrastructure deployment, and ideas for improving State and local infrastructure reviews. 
o What time limits should apply to local review, and a proposal to “deem granted” applications 
where there has been unreasonable delay. 
o The use and impact of State and local moratoria. 
? The NPRM would also open a review of FCC rules and procedures for historic preservation (NHPA) and 
environmental (NEPA) review, including asking for input on: 
o The NHPA process, including measures to address costs and delays attributable to Tribal Nations’ 
and State Historic Preservation Officers’ participation in that process. 
o The NEPA process, including the costs and benefits of the Commission’s NEPA rules. 
o Options to exclude deployments from historic preservation review.  
o The scope of the Commission’s responsibility to review wireless facility construction under the 
NHPA and NEPA. 
o Options to address the issue of “Twilight Towers,” certain towers that cannot readily be used for 
siting small deployments because they may not have completed historic preservation review. 
 
What the NOI Would Do: 
 
? The NOI asks for comment on how Sections 253 and 332(c)(7) of the Communications Act apply to 
wireless facilities, including how the Commission could update our policies under these provisions. 
 
 
 
 
 
 
 
 
 
*This document is being released as part of a “permit-but-disclose” proceeding. Any presentations or views on the 
subject expressed to the Commission or staff, including by email, must be filed in WT Docket No. 17-79, which 
may be accessed via the Electronic Comment Filing System (https://www.fcc.gov/ecfs/). 
 Federal Communications Commission FCC-CIRC1704-03  
*This document has been circulated for tentative consideration by the Commission at its April open meeting. The 
issues referenced in this document and the Commission’s ultimate resolution of those issues remain under 
consideration and subject to change. This document does not constitute any official action by the Commission. 
However, the Chairman has determined that, in the interest of promoting the public’s ability to understand the nature 
and scope of issues under consideration by the Commission, the public interest would be served by making this 
document publicly available.  The FCC’s ex parte  rules apply and presentations are subject to “permit-but-disclose” 
ex parte  rules.  See, e.g.,  47 C.F.R. §§ 1.1206, 1. 1200(a).  Participants in this proceeding should familiarize themselves 
with the Commission’s ex parte rules. 
Before the 
Federal Communications Commission 
Washington, D.C. 20554 
 
 
In the Matter of 
 
Accelerating Wireless Br oadband Deployment by 
Removing Barriers to Infr astructure Investment 
 
Revising the Historic Preservation Review Process 
for Wireless Facility Deployments 
) 
) 
) 
) 
) 
) 
) 
 
 
WT Docket No. 17-79 
 
 
WT Docket No. 15-180 
 
NOTICE OF PROPOSED RULEMAKING AND NOTICE OF INQUIRY* 
 
Adopted:  [] Released:  []  
 
Comment Date:  (30 days after date of publication in the Federal Register) 
Reply Comment Date:  (60 days after date  of publication in the Federal Register) 
 
By the Commission: 
TABLE OF CONTENTS 
Heading Paragraph # 
I.  INTRODUCTION .................................................................................................................. ................ 1 
II.  NOTICE OF PROPOSED RULEMAKING .......................................................................................... 4  
A.  Streamlining State and Local Review ........................................................................................... ... 4  
1.  “Deemed Granted” Remedy for Missing Shot Clock Deadlines ............................................... 7 
2.  Reasonable Period of Time to Act on Applications ................................................................ 16  
3.  Moratoria ................................................................................................................................. 20 
B.   Reexamining NHPA and NEPA Review ....................................................................................... 21 
1.  Background .................................................................................................................... ......... 23 
2.  Updating Our Approach to the NHPA and NEPA .................................................................. 30  
a.  Need for Action ................................................................................................................ 30 
b.  Process Reforms ............................................................................................................... 39 
(i)  Tribal Fees .................................................................................................................. 39 
(ii) Other NHPA Process Issues ....................................................................................... 56  
(iii) NEPA Process ............................................................................................................ 61  
c.  NHPA Exclusions for Small Facilities ............................................................................. 62  
(i)  Pole Replacements ..................................................................................................... 63  
(ii) Rights of Way ............................................................................................................. 65  
(iii) Collocations ................................................................................................................ 6 8 
d.  Scope of Undertaking and Action ..................................................................................... 72  
3.  Collocations on Twilight Towers ............................................................................................ 74  
 Federal Communications Commission FCC-CIRC1704-03    
 2
III. NOTICE OF INQUIRY ............................................................................................................. .......... 83 
A.  Intersection of Sections 253(a) and 332(c)(7) ................................................................................ 85 
B.   “Prohibit or Have the Effect of Prohibiting” ................................................................................. 86  
C.  “Regulations” and “Other Legal Requirements” ........................................................................... 89  
D.  Unreasonable Discrimination ................................................................................................... ...... 92 
IV.  PROCEDURAL MATTERS ............................................................................................................ .... 95 
A.  Initial Regulatory Flexibility Analysis ........................................................................................... 95 
B.   Initial Paperwork Reduction Act Analysis..................................................................................... 96  
C.  Other Procedural Matters ............................................................................................................... 97 
1.  Ex Parte Rules – Permit-but-Disclose ..................................................................................... 97 
2.  Comment Filing Procedures .................................................................................................... 98 
V.   ORDERING CLAUSES .............................................................................................................. ....... 103 
APPENDIX – Initial Regulatory Flexibility Analysis 
 
I.  INTRODUCTION 
1. The deployment of next-generation wireless broadband has the potential to bring 
enormous benefits to the Nation’s communities.  By one assessment, the next generation of wireless 
broadband is expected to directly involve $275 billion in new investment, and could help create 3 million 
new jobs and boost annual GDP by $500 billion. 1  Reflecting these benefits, use of wireless broadband 
service and capacity has been growing dramatically, and such growth is widely expected to continue due 
to the increasing use of high-bandwidth applications like mobile streaming, the greater expected capacity 
of 5G connections, and the deployment of the Internet of Things (IoT).2  Continuing to meet this demand 
and realizing the potential benefits of next-gener ation broadband will depend, however, on having an 
updated regulatory framework that promotes and facilitates next generation network infrastructure facility 
deployment.  
2. This Notice of Proposed Rulemaking and Notice of Inquiry (NPRM and NOI, 
respectively) commences an examination of the regulatory impediments to wireless network 
infrastructure investment and deployment, and how we may remove or reduce such impediments 
consistent with the law and the public interest, in order to promote the rapid deployment of advanced 
wireless broadband service to all Americans.  Because  providers will need to deploy large numbers of 
wireless cell sites to meet the country’s wireless broadband needs and implement next generation 
technologies, there is an urgent need to remove any unnecessary barriers to such deployment, whether 
caused by Federal law, Commission processes, local and State reviews, or otherwise.   
3. We expect the measures on which we seek comment to be only a part of our efforts to 
expedite wireless infrastructure deployment.  We invite commenters to propose other innovative 
                                                     
1 See accenturestrategy, “Smart Cities: How 5G Can Help Municipalities Become Vibrant Smart Cities,”  
http://www.ctia.org/docs/default-source/default-document-library/how-5g-can-help-municipalities-become-vibrant-
smart-cities-accenture.pdf (“Smart Cities Paper”).  
2 See Cisco Visual Networking In dex: Global Mobile Data Traffic Forecast Update, 2016-2021, at 15 (100 Mbps 5G 
connections are expected to drive high traffic volumes).  Cisco estimates that a 5G connection will generate 4.7 
times more traffic than the average 4G connection.  See id. at 3.  Another estimate projects that peak period 
bandwidth demand will increase at a compounded annual rate of 52 percent.  See Information Technology & 
Innovation Foundation, “5G and Next Generation Wireless: Implications for Policy and Competition,” June 2016, at 
1, http://www2.itif.org/2016- 5g-next-generation.pdf.  Overall, it is estimated that, by 2019, mobile data traffic in the 
United States will have grown by nearly six times over the traffic level that existed in 2014, when the Commission 
last addressed wireless facility siting issues in a rulemaking.  See CTIA-The Wireless Association®, “Mobile Data 
Demand: Growth Forecasts Met,” Thomas K. Sawano bori, Dr. Robert Roche, June 22, 2015, at 1, 
http://www.ctia.org/docs/default-source/default-document-library/062 115mobile-data-demands-white-paper-
new.pdf. 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
 3
approaches to expediting deployment.  Further, our Section 106 process is governed by certain 
Nationwide Programmatic Agreements and affects States as well as federally recognized Tribal Nations.  
We look forward to working with these partners on proposals involving the Section 106 review process 
that require amendments or supplements to these agreements.3 
II.  NOTICE OF PROPOSED RULEMAKING 
A.  Streamlining State and Local Review 
4.  This NPRM examines regulatory impediments to wireless infrastructure investment and 
deployment and proposes measures to help remove or reduce such impediments.  In this section, we 
address the process for reviewing and deciding on wireless facility deployment applications conducted by 
State and local regulatory agencies.  We propose several potential measures or clarifications intended to 
expedite such review pursuant to our authority under Sections 332 of the Communications Act. 
5. Congress enacted the Telecommunications Act of 1996 as a “pro-competitive, 
de-regulatory national policy framework designed to accelerate rapidly private sector deployment of 
advanced telecommunications and information technologies and services to all Americans . . . .”4   One 
provision of that enactment, Section 332(c)(7), strikes a balance between “preserv[ing] the traditional 
authority of state and local governments to regulate the location, construction, and modification of 
wireless communications facilities like cell phone towers” and “reduc[ing] . . . the impediments imposed 
by local governments upon the installation of facilities for wireless communications.”5  Thus, Section 
332(c)(7)(A) preserves “the authority of a State or local government . . . over decisions regarding the 
placement, construction, and modification of personal wireless service facilities,” subject to significant 
limitations – including Section 332(c)(7)(B)(ii), which requires States and local governments to “act on 
any request for authorization to place, construct, or modify personal wireless service facilities within a 
reasonable period of time after the request is duly filed with [the relevant] government or instrumentality, 
taking into account the nature and scope of such request.”6   The purpose of the latter provision is to 
counteract delays in State and local governments’ consideration of wireless facility siting applications, 
which thwart timely rollout and deployment of wireless service.  Congress took further action to 
streamline this process in 2012 by enacting Section 64 09(a) of the Spectrum Act, which provides that “a 
State or local government may not deny, and shall approve,” applications to deploy or modify certain 
types of wireless facilities.7   
6.  The Commission has taken a number of important actions to date implementing Section 
332(c)(7) of the Communications Act (Act) and Section 6409(a) of the Spectrum Act, each of which has 
been upheld by federal courts.8  We seek to assess the impact of the Commission’s actions to date, in 
                                                     
3 See Nationwide Programmatic Agreement for the Collocation of Wireless Antennas, 47 CFR Part 1, App’x B 
(Collocation NPA); Nationwide Programmatic Agreement Rega rding the Section 106 National Historic Preservation 
Act Review Process, 47 CFR Part 1, App’x C (NPA).  See  also Wireless Telecommunica tions Bu reau Announces 
Execution of First Amendment to the Nationwide Progr ammatic Agreement for th e Collocation of Wireless 
An tennas , Public Notice, 31 FCC Rcd 8824 (WTB 2016).   
4  Telecommunications Act of 1996, S. Rep. 104-230, at 1 (Feb. 1, 1996) (conf. report). 
5 T - Mob ile South ,  L L C v. City o f Ro s well , 135 S. Ct. 808, 814 (2015); City o f Ran cho  Pa lo s  Verdes v. Ab ram s , 544 
U.S. 113, 115 (2005). 
6  See 47 U.S.C. § 332(c)(7)(B)(ii). Such decisions must be “in writing and supported by substantial evidence 
contained in a written record.”  Id. § 332(c)(7)(B)(iii). 
7 See Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. No. 112-96, 126 Stat. 156, § 6409(a) (2012) 
(Spectrum Act), cod ified at 47 U.S.C. § 1455(a). 
8 See , e.g., Petitio n  fo r Declara to ry Ru ling to Cla rify Pro visio n s o f Section  3 32 (c)(7 ) to  En sure Timely Siting 
Review , Declaratory Ruling, 24 FCC Rcd 13994 (2009) ( 2 00 9 Declara to r y R u ling ), a ff’d , City o f A r lington v. FCC , 
668 F.3d 229 (5th Cir. 2012), a ff’d , 133 S. Ct. 1863 (2013); Acceleration of Broadband Deployment by Improving 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
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order to evaluate the measures we propose in the Notice, as well as other possible actions, and to 
determine whether those measures are likely to be effective in further reducing unnecessary and 
potentially impermissible delays and burdens on wireless infrastructure deployment associated with State 
and local siting review processes.  Thus, we ask parties to submit facts and evidence on the issues 
discussed below and on any other matters relevant to the policy proposals set forth here.  We seek 
information on the prevalence of barriers, costs thereof, and impacts on investment in and deployment of 
wireless services, including how such costs compare to the overall costs of deployment.  We seek 
information on the specific steps that various regulatory authorities employ at each stage in the process of 
reviewing applications, and which steps have been most effective in efficiently resolving tensions among 
competing priorities of network deployment and other public interest goals.  In addition, parties should 
detail the extent to which the Commission’s existing rules and policies have or have not been successful 
in addressing local siting review challenges, including effects or developments since the 2 0 1 4  
I n f r a s t r u c t u re Order , the Commission’s most recent major decision addressing these issues.9  
1 .   “Deemed Granted” Remedy for Missing Shot Clock Deadlines 
7. The Commission has previously considered, but not adopted, proposals to establish a 
“deemed granted” remedy for violations of Section 332(c)(7)(B)(ii) in the context of applications outside 
the scope of the Spectrum Act.10  That is, the Commission has declined to establish that a non-Spectrum 
Act siting application would be “deemed granted” if a State or local agency responsible for land-use 
decisions fails to act on it by the applicable shot clock deadline.  The Commission’s existing policy for 
non-Spectrum Act siting applications provides that State or local agencies are obligated to act within a 
presumptively “reasonable period of time” – i.e. , the 90-day shot clock for collocation applications and 
the 150-day shot clock for other applications – and, upon the agency’s “failure to act” by the pertinent 
deadline, the applicant may sue the agency pursuant to Section 332(c)(7)(B)(v) within 30 days after the 
date of that deadline.11  In such litigation, the agency may attempt to “rebut the presumption that the 
established timeframes are reasonable” – for example, by demonstrating that slower review in a particular 
case was reasonable in light of the “nature and scope of the request,” or for other reasons.12  If the agency 
fails to make such a showing, it may face “issuance of an injunction granting the application.13  By 
contrast, for applications subject to Section 6409(a) of the Spectrum Act, the Commission adopted a 
“deemed granted” remedy:  if a State or local agency fails to act on such an application by the 60-day 
                                                     
Wireless Fa cilities Siting Policies , Report and Order, 29 FCC Rcd 12865 (2014) ( 2 014  I nfr a s tr u c tu re Order ), 
erratum, 30 FCC Rcd 31 (2015), a ff’d , Mo n tgomery Cou n ty  v. FCC , 811 F.3d 121 (4th Cir. 2015).  
9 To the extent that parties have submitted information in response to the Wireless Telecommunications Bureau’s 
S treamlin ing PN  that is relevant to these questions, we invite them to submit such data in the present docket.  See 
Streamlin ing Deployment o f Sma ll Cell In frastru ctu re by Imp roving Wireless Facilities Siting Policies; Mob ilitie, 
LLC Petitio n  Fo r Declara tory Ru ling , Public Notice, 31 FCC Rcd 13360, 13368 (WTB 2016) ( S treamlin ing PN ); 
comment period extended by S treamlin ing Deployment o f Sma ll Cell In fr astru ctu re by Imp roving Wireless Facilities 
Siting Policies; Mob ilitie, LLC Petitio n  Fo r Declara to ry Ru ling , Order, 32 FCC Rcd 335 (WTB Jan. 12, 2017).  In 
addition, to the extent parties discuss the conduct or practices of government bodies or wireless facility siting 
applicants, we strongly urge them to identify the particular entities that they assert engaged in such conduct or 
practices. 
10 20 09  Sh o t Clock Declara to ry Ru ling , 24 FCC Rcd at 14009, para. 39.  The Commission reaffirmed this ruling as 
to applications not subject to the Spectrum Act in the 201 4 In fra s tru ctu re Order .  See 29 FCC Rcd at 12961, para. 
226. 
11 20 09  Sh o t Clock Declara to ry Ru ling , 24 FCC Rcd at 14008-10, 14013-14, paras. 37-42, 49-50.   
12 Id.  at 14010-11, paras. 42, 44.   
13 Id.  at 14009, para. 38; see also  City o f Ran ch o Pa lo s  Verdes , 504 U.S. 116 (proper remedies for Section 332(c)(7) 
violations include injunctions but not constitutional-tort damages).   
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
 5
deadline, the application will be “deemed granted.”14    
8. We now take a fresh look and propose to adopt a “deemed granted” remedy for State and 
local agencies’ failure to satisfy their obligations under Section 332(c)(7)(B)(ii) to act on applications 
outside the context of the Spectrum Act.  We propose to adopt one or more of the three options discussed 
below regarding the mechanism for implementing a “deemed granted” remedy.  We describe each of 
these options below and explain our analysis of the Commission’s legal authority to adopt each of them.  
We seek comment on the benefits and detriments of each option and invite parties to discuss our legal 
analysis.  We also seek comment on whether there are other options for implementing a “deemed 
granted” remedy. 
9. I r rebuttab le Presumpti o n .  In the 20 0 9 S h o t  C l o c k  Declarat o r y  R u l i ng , the Commission 
created a “rebuttable presumption” that the shot clock deadlines established by the Commission were 
reasonable.  The Commission anticipated that this would give State and local regulatory agencies “a 
strong incentive to resolve each application within the time frame defined as reasonable.”15  Thus, when 
an applicant sues pursuant to Section 332(c)(7)(B)(v) to challenge an agency’s failure to act on an 
application by the applicable deadline, the agency would face the burden of “rebut[ting] the presumption 
that the established timeframes are reasonable,”16  and if it fails to satisfy this burden, the court could 
“issu[e] . . . an injunction granting the application. 17  We believe one option for establishing a “deemed 
granted” remedy for a State or local agency’s failure to act by the applicable deadline would be to convert 
this rebuttable presumptio n  into an i r rebuttable presumption.  Thus, our determination of the reasonable 
time frame for action (i.e. , the applicable shot clock deadline) would “set an absolute limit that – in the 
event of a failure to act – results in a deemed grant.”18    
10. We believe we have legal authority to adopt this approach, for the following reasons.  
First, we see no reason to continue adhering to the cautious approach articulated in the 2 00 9  S ho t  C l o c k  
Declarat o r y  R u l i ng  – i.e. ,  that Section 332(c)(7) “indicates Congressional intent that courts should have 
the [sole] responsibility to fashion . . . remedies” on a “case-specific” basis.19  The Commission advanced 
that theory without citing any legislative history or other sources, and the Fifth Circuit, in its decision 
upholding the 2 0 09  S ho t  C lo c k  Declara t o r y  R u l i ng , apparently declined to rely on it.  Instead, the Fifth 
Circuit found n o  indication in the statute and its legislative history of any clear Congressional intent on 
whether the Commission could “issue an interpretation of § 332(c)(7)(B)(v) that would guide courts’ 
determinations of disputes under that section,” and went on to affirm that the Commission has broad 
                                                     
14  20 14  In fra s tructu re Order , 29 FCC Rcd at 12957, para. 216.  In su ch cases, applicants may sue and seek a 
declaratory judgment confirming that an application was “deemed granted” due to the State or local agency’s failure 
to act within the 60-day shot clock deadline status, while an  agency could sue to challenge an applicant’s claim that 
an application was “deemed granted.”  Id.  at 12963-64, paras. 234-36.  See also id.  at 12961, para. 226 (“deemed 
grant” status takes effect only after applicant notifies the reviewing jurisdiction in writing); id.  at 12962, para. 231 
(listing issues a locality could raise in litigation to challenge an applicant’s claimed “deemed grant”).  The 
Commission clarified that, prior to the 60-day deadline, State and local agen cies may review applications to 
determine whether they constitute covered requests” and may “continue to enforce and condition approval [of such 
applications] on compliance with non-discretionary codes r easonably related to health and safety, including building 
and structural codes.”  Id.  at 12955, para. 211; see also id.  at 12951, 12956, paras. 202, 214 n.595.   
15 20 09  Sh o t Clock Declara to ry Ru ling , 24 FCC Rcd at 14009, para. 38. 
16  For example, the locality could rebut the presumption that the established deadlines are reasonable” by showing 
that, in light of the “nature and scope of the request” in a particular case, it “reasonably require[d] additional time” 
to negotiate a settlement or to prepare a written explanation of its decision.  Id.  at 14011, para. 44.    
17 Id.  at 14008-09, para. 38. 
18 20 14  In fra s tructu re Order , at 12991, para. 226 (describing impact of irrebuttable presumption in context of 
applications subject to the Spectrum Act). 
19 20 09  Sh o t Clock Declara to ry Ru ling , 24 FCC Rcd at 14009, para. 39. 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
 6
authority to render definitive interpretations of ambiguous provisions such as this one in Section 
332(c)(7).20  The Fifth Circuit further found – and the Supreme Court affirmed – that courts must follow 
such Commission interpretations.21   
11. We thus believe we have authority to adopt irrebuttable presumptions establishing as a 
matter of rule the maximum reasonable amount of time available to review a wireless facilities 
application, and seek comment on this conclusion.  As the Fifth Circuit found, the inherent ambiguity in 
“the phrase ‘reasonable period of time,’ as it is used in § 332(c)(7)(B)(ii),” leaves ample “room for 
agency guidance on the amount of time state and local governments have to act on wireless facility 
zoning applications.” 22  We see nothing in the statute that explicitly compels a case-by-case assessment of 
the relevant circumstances for each individual application, nor any provision specifically requiring that 
that those time frames be indefinitely adjustable on an individualized basis, rather than subject to 
dispositive maximums that may be deemed reasonable as applied to specified categories of applications.23  
While Section 332(c)(7)(B)(ii) provides that a locality  must act on each application “within a reasonable 
time, t a k i ng into  a c c o un t  the natu re and scope of such request ,”24  this does not necessarily mean that a 
reviewing court “must consider the specific facts of individual applications”25 to determine whether the 
locality acted within a reasonable time frame; the Co mmission is well-positioned to take into account the 
“nature and scope” of particular categories of applications in determining the maximum reasonable 
amount of time for localities to address each type.   
12. Moreover, the Fourth Circuit, in affirming the 20 1 4 In f r a s t r u c t u re Order , held that the 
“deemed granted” remedy adopted in the context of the Spectrum Act was permissible under the Tenth 
Amendment, was consistent with the statutory purpose (i.e. , ensuring that deployment “applications are 
not mired in the type of protracted approval processes that the Spectrum Act was designed to avoid”),26  
and was well within the Commission’s authority.  We do not view Sections 332(c)(7)(B)(ii) and (v) as 
materially different from the Spectrum Act in this regard, and we therefore believe that the same “deemed 
granted” remedy is within the Commission’s authority under those statutory provisions as well, where the 
Commission exercises its statutory authority in accordance with C i t y  o f  A r l i ngton to establish standards, 
in specific contexts, for what constitutes “a reasonable period of time after the request is duly filed.”27  
We seek comment on this analysis. 
13. L a p se of St a te and L o c a l G o vernments’ A u t h o r i t y .  In the alternative (or in addition) to 
the irrebuttable presumption approach discussed above, we believe we may implement a “deemed 
granted” remedy for State and local agencies’ failure to act within a reasonable time based on the 
following interpretation of ambiguous provisions in the statute.  Section 332(c)(7)(A) assures these 
agencies that their “authority over decisions concerning the placement, construction, and modification of 
personal wireless service facilities” is preserved—but significantly, qualifies that assurance with the 
                                                     
20 City o f Arlington v. FCC , 668 F.3d at 251.  See also  id.  at 250-51 (“Had Congress intended to insulate § 
332(c)(7)(B)’s limitations from the FCC’s jurisdiction, one would expect it to have done so explicitly[.] * * * Here, 
however, Congress did not clearly remove the FCC’s ability to implement the limitations set forth in § 332(c)(7)(B) 
. . . .”).   
21 City o f Arlington v. FCC , 668 F.3d at 249-50; 133 S. Ct. at 1871-73.  See also Na tion a l Ca b le & Telecomm. Ass’ n 
v. Brand  X  In ternet Servs. , 545 U.S. 967, 985 (2005) (Commission’s interpretation of an ambiguous statutory 
provision overrides earlier court decisions interpreting the same provision). 
22 City o f Arlington , 668 F.3d at 255.   
23 20 09  Sh o t Clock Declara to ry Ru ling , 24 FCC Rcd at 14009, para. 39. 
24  47 U.S.C. § 332(c)(7)(B)(ii). 
25 20 09  Sh o t Clock Declara to ry Ru ling , 24 FCC Rcd at 14009, para. 39. 
26  Montgomery County , 811 F.3d 121, 128. 
27 See City o f A r lington , 133 S. Ct. at 1868; 47 U.S.C. § 332(c)(7)(B)(ii). 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
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provision “except as p r o v i ded ” elsewhere in Section 332(c)(7).  We seek comment on whether we should 
interpret this phrase as meaning that if a locality fails to meet its obligation under Section 332(c)(7)(B)(ii) 
to “act on [a] request for authorization to place, cons truct, or modify personal wireless facilities within a 
reasonable period of time,” then its “authority over decisions concerning” that request lapses and is no 
longer preserved.  Under this interpre tation, by failing to act on an application within a reasonable period 
of time, the agency would have defaulted its authority over such applications (i.e. , lost the protection of 
Section 332(c)(7)(A), which otherwise would have preserved such authority), and at that point no local 
land-use regulator would have authority to approve or deny an application.  Arguably, we could establish 
that in those circumstances, there is no need for an applicant to seek such approval.  We seek comment on 
this interpretation and on the desirability of taking this approach.   
14.  P reemption  R u le .  A third approach by which we believe we could establish a “deemed 
granted” remedy—standing alone or in tandem w ith one or both of the approaches outlined above—
would be to promulgate a rule to implement the policies set forth in Section 332(c)(7).  A State or local 
government that fails to act on a wireless facility siting application within a reasonable period of time 
breaches its obligation under the explicit requirement of Section 332(c)(7)(B)(ii), and such non-
compliance with the Communications Act arguably creates a need for the Commission to take action.28  
Sections 201(b) and 303(r), as well as other statutory provisions, generally authorize the Commission to 
adopt rules or issue other orders to carry out the substantive provisions of the Communications Act.29  
Section 332(c)(7) is a provision of the Communications Act.  Accordingly, Sections 201(b) and 303(r) 
would appear to authorize us to adopt rules impl ementing Section 332(c)(7).  To be sure, Section 
332(c)(7)(B)(v) contains specific enforcement provisions – judicial enforcement to address violations of 
Sections 332(c)(7)(B)(i), (ii), and (iii), and Comm ission enforcement to address violations of the 
radiofrequency emissions requirement in Section 332(c)(7)(B)(iv) – but does not explicitly state that those 
enforcement mechanisms are exclusive , or that they strip the Commission of its authority to act under 
Sections 201(b) or 303(r).  Indeed, the Commission specifically rejected this latter proposition in the 2 00 9  
S h o t  C l o c k  Declarat o r y  R u l i ng , holding that “the fact that Congress provided for judicial review to 
remedy a violation of Section 332(c)(7) does not divest the Commission of its authority to interpret the 
provision or to adopt and enforce rules implementing Section 332(c)(7).”30  The Fifth Circuit specifically 
                                                     
28 In addition, State or local governments’ failures to act within reasonable time frames arguably could violate 
Section 253(a) if they have the “effect of prohibiting” wireless carriers’ provision of service; and this might justify 
our addressing this problem by adopting a rule to implement the policies of Section 253(a) as well as Section 
332(c)(7).  See infra  part III.A and C (discussing implications of the overlapping provisions in Sections 253(a) and 
253(c)(7)(B)(i)(II) banning State or local legal requirements  that “prohibit or have the effect of prohibiting” the 
provision of wireless telecommunications service). 
29  See  47 U.S.C. §§ 201(b) (“Th e Commission may prescribe such rules and regulations as may be necessary in the 
public interest to carry out the provisions of this Act.”), 303(r) (directing the Commission to “[m]ake such rules and 
regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry 
out the provisions of this Act”).  See also  47 U.S.C. § 154(i); AT &T  Co rp. v. Io wa  Utilities Boa rd , 525 U.S. 366, 
380 (1999) (Ҥ 201(b) explicitly gives the FCC jurisdiction to make rules governing matters to which the 1996 Act 
applies.”) (emphasis in original); City o f Arlington , 133 S. Ct. at 1866 (in specific context of Section 332(c)(7), 
stating: “Section 201(b) . . . empowers the . . . Commission to ‘prescribe such rules and regulations as may be 
necessary in the public interest to carry out [its] provisi ons.’  Of course, that rulemaking authority extends to the 
subsequently added portions of the Act.”) (quoting § 201(b) and citing B ra nd  X ). 
30 20 09  Sh o t Clock Declara to ry Ru ling , 24 FCC Rcd at 14003, para. 26.  See also  Imp lementation  o f Sectio n 
6 21 (a )(1 ) o f the Cable Commu n ica tio ns  Po lic y  A c t o f 19 84 , a s  A mended by the Cable Television  Co ns umer 
Pro tectio n a nd Co mpetitio n Act o f 199 2 , 22 FCC Rcd 5101, para. 54 (2007) (“The mere existence of a judicial 
review provision in the Communications Act does not, by itself, strip the Commission of its otherwise undeniable 
rulemaking authority.”), a ff’d , Alliance for Co mmunity Media v. FCC , 529 F.3d 763, 775 (6th Cir. 2008) 
(specifically affirming this conclusion). 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
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affirmed this conclusion.31  Accordingly, we believe—and seek comment on whether—we could 
promulgate a “deemed granted” rule to implement Section 332(c)(7). 
15. In considering adoption of rules implementing Section 332(c)(7)(B)(i), (ii), and (iii), we 
are aware of a statement in the Conference Report issued in connection with the Telecommunications Act 
of 1996 that “[i]t is the intent of the conferees th at other than under Section 332(c)(7)(B)(iv) . . . the 
courts shall have exclusive jurisdiction over all . . . disputes arising under this section.”32  Does this 
statement, standing alone, affect our authority to adopt rules governing disputes about localities’ failure to 
comply with their obligations under Section 332(c)(7)(B)(ii) to act on siting applications within a 
reasonable time?  Or is a generic rule distinguish able from a proceeding addressing a dispute between a 
particular applicant and a particular State or local regulator?  Can a statement in legislative history 
foreclose us from complying with an explicit mandate elsewhere in the Communications Act?  Does it 
prevent us from exercising the rulemaking authority explicitly granted by Sections 201(b) and 303(r)? 33  
We are mindful of the D.C. Circuit’s admonition that “a plain reading of an unambiguous statute cannot 
be eschewed in favor of a contrary reading, suggested only by the legislative history and not by the text 
itself,” and that “[w]e will not permit a committee report to trump clear and unambiguous statutory 
language.”34   We invite commenters to address these issues. 
2 .  Reasonable Period of Time to Act on Applications 
16.  In 2009, the Commission determined that, for purposes of determining what is a 
“reasonable period of time” under Section 332(c)(7)(B )(ii), 90 days should be sufficient for localities to 
review and act on (either by approving or denying) complete collocation applications, and that 150 days is 
a reasonable time frame for them to review and act on other types of complete applications to place, 
construct, or modify wireless facilities.35  In its 2 01 4  In f r a s t r u c t u re Order , the Commission implemented 
Section 6409(a) of the Spectrum Act (enacted by Congress in 2012) 36  by, among other things, creating a 
new 60-day shot clock within which localities must act on complete applications subject to the definitions 
in the Spectrum Act.37  We ask commenters to discuss whether the Commission should consider adopting 
different time frames for review of facility deployments not covered by Section 6409, by identifying more 
narrowly defined classes of deployments and distinct reasonable time frames to govern such classes.  For 
example, should we adopt different presumptively reasonable time frames for resolving applications for 
categories such as (a) construction of new structures of varying heights (e.g., 50 feet tall or less, versus 50 
to 200 feet tall, versus taller than 200 feet); (b) c onstruction of new structures in or near major utility or 
transportation rights of way, or that are in or near established clusters of similar structures, versus those 
                                                     
31 City o f Arlington , 668 F.3d at 250-51.  
32 S. Rep. No. 104-230, at 207-08 (1996) (Conf. Rep.). 
33 See supra  n.29. 
34  ACLU v. FCC , 823 F.2d 1554, 1568 (D.C. Cir. 1987).  See also  U n ited Sta tes v. Gon za les , 520 U.S. 1, 6 (1997) 
(rejecting “resort to legislative history” to interpret a “straightforward statutory command,” where “the legislative 
history only muddies the waters.”); Ra tzla f v. Un ited Sta tes , 510 U.S. 135, 147-48 (1994) (even where there are 
“contrary indications in the statute’s legislative history[,] . . . we do not resort to legislative history to cloud a 
statutory text that is clear.”). 
35 Petitio n  for Declara to ry Ru ling to Cla rify Pro vision s  o f Sectio n  3 32 (c)(7 ) to  En su re Timely S iting Review , 
Declaratory Ruling, 24 FCC Rcd 13994, 14004, 14012-13, paras. 32, 45-48 (2009) ( 200 9 Sh o t Clo c k  Declara to r y  
Ru ling ), a ff’d , City o f A r lington v. FCC , 668 F.3d 229 (5th Cir. 2012), a ff’d , 133 S. Ct. 1863 (2013). 
36  Section 6409(a) of the Spectrum Act, 47 U.S.C. § 1455 (a), mandates that State and local land-use regulators 
“must approve, and may not deny” applications to deploy wireless facilities within a specified, narrow category. 
37 20 14  In fra s tructu re Order , 29 FCC Rcd at 12956-57, para. 215.  The Commission also defined each of the terms 
used in the Spectrum Act to specify the types of facilities subject to mandatory approval.  See id.  at 12926-51, paras. 
145-204; 47 CFR § 1.40001(b). 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
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that are not; (c) deployments in areas that are zoned for residential, commercial, or industrial use, or in 
areas where zoning or planning ordinances cont emplate little or no additional development; or 
(d) collocations, replacements, or removals that do not fall within the scope of Section 6409(a) of the 
Spectrum Act (for example, applications to collocate wireless facilities that exceed the dimensional limits 
for requests covered by that provision)?  We also request comment on whether to establish different time 
frames for (i) deployment of small cell or DAS antennas or other small equipment versus more 
traditional, larger types of equipment or (ii) requests that include multiple proposed deployments or, 
equivalently, “batches” of requests submitted by a single provider to deploy multiple related facilities in 
different locations, versus proposals to deploy one facility.38  Should we align our definitions of 
categories of deployments for which we specify reasonable time frames for local siting review with our 
definitions of the categories of deployments that are categorically excluded from environmental or 
historic preservation review? 39   
17. We seek comment on what time periods would be reasonable (outside the Spectrum Act 
context) for any new categories of applications, and on what factors we should consider in making such a 
decision.  For what types or categories of wireless siting applications may shorter time periods be 
reasonable than those established in the 2 0 09  S ho t  C lo c k  Declara t o r y  R u l i ng ?  We invite commenters to 
submit information to help guide our development of appropriate time frames for various categories of 
deployment.   We ask commenters to submit any available data on whether localities already recognize 
different categories of deployment in their processes, and on the actual amounts of time that localities 
have taken under particular circumstances. 
18. We also seek comment on whether the Commission should provide further guidance to 
address situations in which it is not clear when the shot clock should start running, or in which States and 
localities on one hand, and industry on the other, disagree on when the time for processing an application 
begins.  For instance, we have heard anecdotally that some jurisdictions impose a “pre-application” 
review process, during which they do not consider that a request for authorization has been filed.  We 
seek comment on how the shot clocks should apply when there are such pre-application procedures; at 
what point should the clock begin to run?  Are there ot her instances in which there is a lack of clarity or 
disagreement about when the clock begins to run?   We ask parties to address whether and how the 
Commission should provide clarification of how our rules apply in those circumstances.  
19. Finally, we seek comment on whether there are additional steps that should be considered 
to ensure that a deemed granted remedy achieves its purpose of expediting review.  For example, to what 
extent can the attachment of conditions to approvals of local zoning applications slow the deployment of 
infrastructure?  Are applicants encountering requireme nts to comply with codes that are not reasonably 
related to health and safety? 40   To the extent these conditions present challenges to deployment, are there 
steps the Commission can and should take to address such challenges? 
3 .  Moratoria 
20. Another concern relating to the “reasonable periods of time” for State and local agencies 
to act on siting applications is that some agencies may be continuing to impose “moratoria” on processing 
such applications, which inhibit the deployment of the infrastructure needed to provide robust wireless 
services.  If so, such moratoria might contravene the 2 0 1 4 I n f r a s t r u c t u re Order , which clearly stated that 
                                                     
38 The Wireless Telecommunications Bureau al so sought comment on these issues in the S treamlin ing PN .   See 
31 FCC Rcd at 13370-71.   
39 See 47 CFR §§ 1.1306, 1.1307. 
40  In the context of the deemed granted remedy under the Spectrum Act, the Commission clarified that localities 
could “continue to enforce and condition approval [of such applications] on compliance with non-discretionary 
codes reasonably related to health and safety, including building and structural codes.”  See  20 14  In fra s tr u ctu re 
Order , 29 FCC Rcd at 12955, para. 211.   
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
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the shot clock deadlines for applications continue to “run[] regardless of any moratorium.” 41   The 
Commission explained that this conclusion was “consistent with a plain reading of the 2 00 9  Declarat o r y  
R u l i ng , which specifies the conditions for tolling and makes no provision for moratoria,” and concluded 
that this means that “applicants can challenge moratoria in court when the shot clock expires without 
State or local government action.”42   We see no reason to depart from this conclusion.  We ask 
commenters to submit specific information about whether some localities are continuing to impose 
moratoria or other restrictions on the filing or processing of wireless siting applications, including 
identification of the specific entities engaging in such actions and description of the effect of such 
restrictions on parties’ ability to deploy network facilities and provide service to consumers.  We propose 
to take any additional actions necessary, such as issuing an order or declaratory ruling providing more 
specific clarifications of the moratorium ban or preempting specific State or local moratoria.  
Commenters should discuss the benefits and detriments of any such additional measures and our legal 
authority to adopt them. 
B.  Reexamining NHPA and NEPA Review 
21. In the following sections, we undertake a comprehensive fresh look at our rules and 
procedures implementing the National Environmental Policy Act (NEPA)43  and the National Historic 
Preservation Act (NHPA)44  as they relate to our implementation of Title III of the Act in the context of 
wireless infrastructure deployment, given the ongoing evolution in wireless infrastructure deployment 
towards smaller antennas and supporting structures as well as more frequent collocation on existing 
structures.   
22. We note that any revisions to our rules or procedures implementing NEPA require 
consultation with the Council for Environmental Quality (CEQ). 45   In addition, any changes to the 
programmatic agreements governing our review under the NHPA would require the agreement of the 
Advisory Council on Historic Preservation (ACHP) and the National Conference of State Historic 
Preservation Officers (NCSHPO), and other revisions to our rules governing NHPA review may benefit 
from their perspectives.46   Furthermore, some of the changes discussed below might significantly or 
uniquely affect Tribal governments, their land and resources.  We direct the Wireless 
Telecommunications Bureau (WTB), in coordinatio n with the Consumer and Governmental Affairs 
Bureau, Office of Intergovernmental Affairs, and other Bureaus and Offices as appropriate, to consult 
with other agencies and organizations, including th e CEQ, ACHP, and NCSHPO, as warranted to develop 
the record and obtain their perspectives on the issues herein.  We further direct the Office of Native 
Affairs and Policy (ONAP), in coordination with WTB and other Bureaus and Offices as appropriate, to 
conduct government-to-government consultation as appropriate with Tribal Nations. 
1 .  Background 
23. N E P A  a n d  the NHPA.  NEPA requires agencies of the Federal Government to identify 
and evaluate the environmental effects of proposed “major Federal actions significantly affecting the 
                                                     
41  20 14  In fra s tructu re Order , 29 FCC Rcd at 12971, para. 265; see generally id. at 12971-72, paras. 263-67. 
42  Id. at 12971, para. 265. 
43  42 U.S.C. § 4321 et seq. 
44  54 U.S.C. § 300101 et seq. 
45  40 CFR § 1507.3(a) (“Each agency shall consult with [CEQ] while developing its procedures and before 
publishing them in the Federal Register for comment. … The procedures shall be adopted only after an opportunity 
for public review and after review by [CEQ] for conformity with [NEPA] and [CEQ’s] regulations.”). 
46  Agency implementation of Section 106 of the NHPA is governed by the rules of the ACHP, which specify the 
process under which Federal agencies shall perform their historic preservation reviews.  36 CFR § 800.2(a). 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
 11
quality of the human environment. . . .”47   In turn, Section 106 of the NHPA states that “prior to the 
issuance of any license,” the head of a Federal agency “shall take into account the effect of the 
undertaking on any historic property” and ”shall afford the [ACHP] a reasonable opportunity to comment 
with regard to the undertaking.”48   Similar to a “major Federal action,” an “undertaking” includes, among 
other things, projects, activities, or programs that “requir[e] a Federal permit, license, or approval[.]” 49   
Courts have generally treated Federal actions under NEPA as closely analogous to undertakings under the 
NHPA.50 
24.  C o m m i s s i o n  P recedent: Sc o pe of Ob l igations.  The Commission has assumed 
responsibility for NEPA and NHPA review of wireless communications facilities construction based on 
the Commission’s actions in two areas: licensing and antenna structure registration (ASR).  As a 
historical matter, the Commission’s initial focus on antenna sites made sense, reflecting the relatively 
more involved role the FCC played in the space.  For instance, in 1974, when the Commission first 
promulgated rules implementing NEPA,51 all licenses conferred authority to operate from a specific site, 
and the Commission was required to issue a construction permit for that site before granting the license.52  
In 1982, however, Congress amended the Communications Act to eliminate construction permits by 
default in some services and to authorize the Commis sion to waive the construction permit requirement in 
the public interest in other services.53  Currently, the Commission requires construction permits only in 
the broadcast services.  Furthermore, licenses in many services, including most licenses in the commercial 
wireless services, now authorize transmissions over a particular band of spectrum within a wide 
geographic area without further limitation as to transmitter locations.  In 1990, the Commission amended 
Section 1.1312 of the rules to specify that where construction of a Commission-regulated radio 
communications facility is permitted without prior Commission authorization ( i.e. , without a construction 
permit), the licensee or applicant determines prior to construction whether the facility may have a 
significant environmental effect.54   The D.C. Circuit subsequently found that the Commission’s retention 
                                                     
47  42 U.S.C. § 4332(2)(C). 
48  54 U.S.C. § 306108. 
49  54 U.S.C. § 300320(3). 
50 See , e.g., Ka rst E n v ’ tl Edu c. and  P r o t., In c. v. EPA , 475 F.3d 1291, 1295-96 (D.C. Cir. 2007); Sac & F o x Na tion 
o f M is so u r i v. No rton , 240 F.3d 1250, 1263 (10th Cir. 2001).   B u t see India na  Coa l Cou nc il,  I n c. v. Lu jan ,  774 F. 
Supp. 1385, 1401 (D.D.C. 1991) (“Congress appears to have established different thresholds in the NHPA and in 
NEPA for determining whether an activity triggers the obligation….”).  
51 In  the Matter of the Imp lementation  o f the Natio na l En viro nmental Po licy Act , Report and Order, 49 FCC 2d 
1313, 1333, para.46 (1974). 
52 See  47 U.S.C. § 319 (a) (“[n]o license shall be issued . . . for the operation of any station unless a permit for its 
construction has been granted . . .”). 
53 47 U.S.C. § 319(d); see Pub.L. 97-259, 96 Stat. 1087, § 119 (1982). 
54  47 CFR § 1.1312(a); see In the Matter of Amendm ent o f Enviro nmental Ru les,  Report and Order, 5 FCC Rcd 2942 
(1990)  ( P re-Constru c tion  Review Order ). 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
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of limited approval authority over tower construction in Section 1.1312 to the extent necessary to ensure 
this review was not arbitrary and capricious.55   
25. T he Commis s i o n ’ s  R u les.  The Commission’s rules require an applicant to prepare and 
file an environmental assessment (EA)56  if its proposed construction meets any of several environmentally 
sensitive conditions specified in the rules.57  If an EA is required, the application will not be processed 
and the applicant may not proceed with construction until environmental processing is completed.58  All 
other constructions are categorically excluded from environmental processing unless the processing 
bureau determines, in response to a petition or on its own motion, that the action may nonetheless have a 
significant environmental impact.59 
26.  The Commission fulfills its obligations under the NHPA with respect to radio spectrum 
licensees through Section 1.1307(a)(4) of the rules, which requires an EA if the proposed construction 
may affect historic properties.60   In particular, Section 1.1307(a)(4) directs licensees and applicants, when 
determining whether a proposed action may affect historic properties, to follow the procedures in the 
ACHP’s rules as modified by the Collocation NPA61  and the NPA62 , two programmatic agreements that 
                                                     
55 CTIA – The Wireless Ass’n v. FCC , 466 F.3d 105, 114 (D.C. Cir. 2006). In the underlying Report and Order, the 
Commission had declined to revisit whether it should treat tower construction as an undertaking under the NHPA, 
while noting its belief that under Section 319 and Federal environmental statutes, it “has sufficient approval 
authority to trigger the requirements of section 106.”  Na tio n wide Programma tic Agreement Regarding the Sectio n 
1 06  Na tion a l H is to r ic P reservation  A c t Review Process , Report and Order, 20 FCC Rcd 1073, 1093 para. 24 (2004) 
( N P A  O rder ).  Two Commissioners dissented in part, expressing the view that in the absence of a construction 
permit or a site-by-site license, the Commission’s retention of jurisdiction to require historic preservation review 
exceeded its statutory authority.  See id. at 1230 (Statement of Commissioner Kathleen Q. Abernathy), 1233 
(Statement of Commissioner Kevin J. Martin). 
56  Under CEQ rules, an EA is to be prepared for actions that ordinarily may have a significant environmental impact.  
See  40 CFR §§ 1501.4(b), 1507.3(b)(2)(iii).  If an EA shows that a proposed action will have no significant 
environmental impact, then the agency issues a Finding Of No Significant Impact, 40 CFR § 1508.13, and the 
proposed action can proceed.  However, if an EA indicates that the action will have a significant environmental 
impact, the action cannot proceed unless the agency prepares an environmental impact statement (EIS).  See  40 CFR 
§ 1501.4 (requiring an EIS for actions that normally have a significant environmental impact). 
57 See 47 CFR §§ 1.1307(a), 1.1308(a), 1.1312(b).  These incl ude facilities that are to be located in an officially 
designated wilderness area, an officially designated wildlife preserve, or a flood plain; that may affect listed 
threatened or endangered species or their critical habitats, or are likely to jeopardize proposed threatened or 
endangered species or destroy or adversely modify proposed critical habitats; that may affect districts, sites, 
buildings, structures or objects that are listed, or eligible for listing, in the National Register of Historic Places; that 
may affect Native American religious sites; that w ill involve significant change in surface features (e.g., wetland fill 
or deforestation); that will be located in residential nei ghborhoods and equipped with high intensity white lights; that 
will cause human exposure to radiofrequency emissions that exceed specified levels; or that will exceed 450 feet in 
height.  See 47 CFR § 1.1307(a), (b), (d) Note. 
58 47 CFR §§ 1.1308(d), 1.1312(b). 
59 See  47 CFR § 1.1307 (c), (d).  An agency may establish categorical exclusions to cover actions “which do not 
individually or cumulatively have a significant effect on the human environment” and thus require no EA or EIS.  
See  40 CFR §§ 1508.4, 1507.3(b)(2)(ii).  CEQ regulations require that an agency that chooses to establish 
categorical exclusions must also provide for “extraordinary circumstances.” 40 CFR § 1508.4, under which a 
normally excluded action may have a significant effect. 
60  47 CFR § 1.1307(a)(4). 
61  Nationwide Programmatic Agreement for the Collocation of Wireless Antennas, 47 CFR Pt 1, App. B 
(Collocation NPA). 
62  Nationwide Programmatic Agreement for Review of Effects on Historic Properties for Certain Undertakings 
Approved by the Federal Communications Commission, 47 CFR Pt 1, App. C (NPA). 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
 13
took effect in 2001 and 2005, respectively.63   These programmatic agreements, which were executed 
pursuant to Section 800.14(b) of the ACHP’s rules, substitute for the procedures that Federal agencies 
must ordinarily follow in performing their historic preservation reviews.64  
27. Under the Collocation NPA, most antenna  collocations on existing structures are 
excluded from Section 106 historic preservation re view, with a few exceptions to address potentially 
problematic situations.  The NPA establishes detailed processes for reviewing new towers and those 
collocations that remain subject to review.  Among other efficiencies, in cases where the applicant has not 
found that the proposed construction will have an adverse effect, the NPA permits the applicant’s 
determination to become final if the State Historic Preservation Officer (SHPO) does not respond to the 
applicant’s submission within 30 days without any affirmative action by the Commission.65  
28. In addition, the NPA requires applicants to use reasonable and good faith efforts to 
identify and contact any Tribal Nation or Native Hawaiian Organization (NHO) that may attach religious 
and cultural significance to historic properties that may be affected by an undertaking.66   To facilitate this 
process, the Commission developed the Tower Construction Notification System (TCNS), which 
automatically notifies Tribal Nations and NHOs of proposed constructions within geographic areas that 
they have confidentially identified as potentially containing historic properties of religious and cultural 
significance to them.  The NPA provides that use of the TCNS constitutes a reasonable and good faith 
effort to identify potentially interested Tribal Nations and NHOs.67  
29. While Tribal Nations and NHOs, like SHPOs, are subject to a 30-day guideline for 
responses,68 applicants are required to seek guidance from the Commission if a Tribal Nation or NHO 
does not respond to the applicant’s inquiries.69   In 2005, the Commission issued a Declaratory Ruling 
establishing a process that enables an applicant to proceed toward construction when a Tribal Nation or 
NHO does not timely respond to a TCNS notification.70  The Commission staff, in collaboration with 
industry, has subsequently developed a similar process (the “Good Faith Protocol”) to address situations 
                                                     
63  The Collocation NPA was amended in 2016 to establish further exclusions from review for small antennas.  See 
Wireless Telecommunica tions Bureau An n oun ces Execution o f First Amendment to the Natio n wide Programma tic 
Agreement fo r the Collo ca tion  o f Wireless An tennas, Public Notice, 31 FCC Rcd 4617 (WTB 2016).  
64  36 CFR § 800.14(b)(2).  See generally 36 CFR Part 800, Subpart B (historic preservation review procedures that 
Federal agencies must follow in the absence of an approved program alternative under Section 800.14(b)). 
65  NPA, §§ VII.B.2, VII.C.2 (providing that if the applican t determines that no historic properties exist within the 
Area of Potential Effect (APE) or that the undertaking will have no effect on historic properties, that determination 
is deemed final unless the SHPO objects within 30 days; if  the applicant determines that the project will have no 
adverse effect, after 30 days it may provide a copy of its submission to the Commission, which has 15 days to notify 
the applicant of any concerns or else the process is complete).  Another efficiency is that within the APE for visual 
effects, and with the exception of resources significant to Tribal Nations and Native Hawaiian Organizations, 
applicants are only required to consider effects on resources that are listed on the National Register of Historic 
Places or that have been previously identified as eligible for listing, rather than making affirmative efforts to identify 
unidentified eligible resources.  I d., § VI.D.1.a. 
66  Id. , §§ IV.B, IV.C. 
67  Id. , § IV.B. 
68  Id. , § IV.F.4 (“[o]rdinarily, 30 days from the time the rele vant tribal or NHO representative may reasonably be 
expected to have received an inquiry shall be considered a reasonable time”). 
69  Id. , § IV.G; see also  id., § IV.H (providing that TCNS contact is only an initial effort to contact the Tribal Nation 
or NHO, and does not in itself fully satisfy the applicant’s obligations or substitute for government-to-government 
consultation unless the Tribal Nation or NHO affirmatively disclaims further interest). 
70 See Clarifica tio n o f Pro cedures fo r Pa rticipa tio n o f Fe derally Recognized Ind ian  Tribes an d Na tive Hawa iian  
Organiza tion s Under the Natio n wide Programma tic Agreement , Declaratory Ruling, 20 FCC Rcd 16092 (2005). 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
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where a Tribal Nation or NHO expresses initial interest in a project, but then fails to communicate further 
with the Applicant after having been provided any additional information or fees that it has requested. 
2 .  U pdating Our Approach to the NHPA and NEPA 
a.  Need for Action 
30. Improving spectrum efficiency for future 4G a nd 5G services by providing end users with 
higher quality connections, more bandwidth and lower latency will require significant densification of 
DAS and small cell facilities.71  To achieve this anticipated level of service, wireless providers will need 
flexibility to strategically place thousands of DAS and small cell facilities throughout the country within 
the next few years.  Yet, they face challenges in thei r efforts to obtain authorizations for deploying this 
necessary infrastructure, not only from local governments but also in completing the Commission’s 
environmental and historic preservation review processes under NEPA and Section 106 of the NHPA.   
31. Many wireless providers have raised concerns about the Commission’s environmental 
and historic preservation review processes because, they say, these reviews increase the costs of 
deployment and pose lengthy and often unnecessary delays, particularly for small facility deployments.72  
32. The historic preservation review process under Section 106 of the NHPA has raised 
particular concerns among wireless providers.  This process not only requires that providers make their 
own determinations as to whether a project will have effects on historic properties, but also requires 
obtaining input from SHPOs and Tribal Nations, and wireless providers argue that this process results in 
significant delays in the execution of their deployment plans.73   
33. A large number of wireless providers complain that the Tribal component of the Section 
106 review process is particularly cumbersome and costly. 74   Providers have argued that Tribal Nation 
review has caused substantial delays75 that significantly exceed those attributable to the SHPO review 
process,76  and Tribal compensation in connection with the review of submissions to TCNS has become a 
highly contentious subject.  We observe that TCNS data reveals that, in recent years, the areas of interest 
claimed by Tribal Nations have increased.  TCNS data reveals that the average number of Tribal Nations 
notified per tower project increased from eight in 2008 to 13 in August 2016 and 14 in March 2017.  Six 
of the 19 Tribal Nations claiming ten or more full States within their geographic area of interest in March 
2017 had increased that number since August 2016, with  three Tribal Nations claiming 20 or more full 
States in addition to select counties.  In 2015, 50 Tribal Nations noted fees associated with their review 
process in TCNS; by March 2017, FCC staff was aware of at least 95 Tribal Nations routinely charging 
                                                     
71 Bridging the Gap Report at 14-15; Ixia, Small Cells, Big Challenge: A Definitive Guide to Designing and 
Deploying HetNets at 41 (Nov. 2013), https://www.ixiacom.com/resources/small-cells-big-challenge.  
72 See e.g. , Sprint Comments, WT Docket No. 16-421, at 44-48; Verizon Comments, WT Docket No. 16-421, at 34-
39. 
73 See e.g. , Competitive Carrier Association Comments, WT Docket No. 16-421, at 35-36; Crown Castle Comments, 
WT Docket No. 15-180, at 3-4;  Verizon Comments, WT Docket No. 16-421, at 37; Verizon Comments, WT 
Docket No. 15-180, at 4-5. 
74  See e.g.,  Competitive Carrier Association Comments, WT Docket No. 16-421, at 35-36; Crown Castle Comments, 
WT Docket No. 15-180, at 3-4;  CTIA Comments, WT Docket No. 16-421, at 5; NTCH, WT Docket No. 16-421, 
Comments at 7-9; Sprint Comments, WT Docket No. 16-421, at 45.  Verizon Comments, WT Docket No. 16-421, at 
37; Verizon Comments, WT Docket No. 15-180, at 4-5. 
75 See e.g., Crown Castle Comments, WT Docket No. 15-180, at 3-4; Verizo n Comments, WT Docket No. 15-180, 
at 4-5. 
76  Verizon Comments, WT Docket No. 16-421, at 36-40.  Verizon states that in July 2016 it had 2,450 pending 
requests for Tribal review, and that “more than half had been pending for more than 90 days, almost a third had been 
pending for more than six months, and 20 had been pending for more than a year.” 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
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fees, including 85 with fees noted in TCNS and 10 we were aware of from other sources.  This data 
further suggests that the average cost per Tribal Nation charging fees increased by 30% and the average 
fee for collocations increased by almost 50% between 2015 and August 2016. 
34.  Many wireless providers argue that, as a result, the cumulative Tribal fees that they pay 
both per site and for their overall deployment programs have increased precipitously.  According to 
Sprint, its costs associated with Tribal participation “have become prohibitive and are unnecessarily 
diverting capital from deployment” as its per site costs have “increased 14-fold in the last six years, from 
less than $500 per site in 2 011 to more than $6,300 today.” 77  Furthermore, the progression toward 
smaller and more numerous cell sites is likely increasing the number of submissions that are subject to fee 
requests.  Moreover, Verizon notes that the total fees it pays for Tribal participation “increased from just 
over $300,000 in 2012 to almost $4 million in 2015.   And the average spend per site is now $2,344.” 78  
Further, Competitive Carriers Association (CCA) contends that one of its members “reports that rooftop 
macrocell collocations in Chicago have generated between $11,000 -12,0 00 per site in Tribal fees, and 
that does not even account for the necessary expenses to collocate on a site,” though CCA recognizes “a 
duty to protect Tribal ancestral lands and properties,” and states a desire to “work collaboratively with 
Tribes to more clearly define the pre-consultation process and cost.”79 
35. Wireless providers and facility owners argue that these developments have combined to 
increase the urgency of reexamining the Commission’s rules and policies to ensure that they are clear on 
licensees’ and applicants’ obligations, and that these rules and polices at present are effectively requiring 
that applicants pay fees that are not legally required by law.  We seek concrete information on the amount 
of time it takes for Tribal Nations to complete the Section 106 review process and on the costs that Tribal 
participation imposes on facilities deployment and on the provision of service.  We also seek comment 
and specific information on the extent of benefits attributable to Tribal participation under the FCC’s 
Section 106 procedures, particularly in terms of prev enting damage to historic and culturally significant 
properties.80  
36.  In addition, in May 2016, PTA -FLA’s filed a Petition for Declaratory Ruling arguing that 
“Tribal fees have become so exorbitant in some cases to approach or even exceed  the cost of actually 
erecting the tower.”81  PTA-FLA states that the Commission should “prohibit the payment of fees to 
Tribal Nations,” because the payment of fees to Tribal Nations “has demonstrably contributed to the 
expansion of required reviews and attendant delays.”82  In the alternative, PTA-FLA states that “the 
reviewing fees should be limited to no more than $50” unless a Tribal Nation “demonstrates that the 
review is exceptionally complex,” and that the total fee should never exceed $200. 83  In addition, PTA-
FLA argues that Tribal Nations “should be required to  identify under objective, independently verifiable 
criteria the areas where construction could reasonably be deemed to have an impact” on an area in which 
Tribal Nations “actually resided or habituated” so that tower constructors can have a better idea of what 
                                                     
77 Sprint Comments, WT Docket No. 16-421, at 45. 
78 Verizon Comments, WT Do cket No. 16-421, at 35. 
79 Tim Donovan, SVP of Legislativ e Affairs, CCA, and Rebecca Murphy Thompson, EVP & General Counsel, 
CCA, A Game of Monopoly: Mobility Fund II & Infrastructure (Feb. 24, 2017), 
http://ccablog.tumblr.com/post/157659003646/a-game-o f-monopoly-mobility-fund-ii. 
80 See, e.g., Letter from Gary D. Batton, Chief, Choctaw Nation of Oklahoma, to Ajit Pai, Chairman, FCC at 1-2 
(Feb. 28, 2017). 
81 Petition for Declaratory Ruling, PTA-FLA, Inc., WT Do cket No. 15-180, at 8 (filed May 3, 2016) (PTA-FLA 
Petition for Declaratory Ruling). 
82 Id.  at 14. 
83 Id. 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
 16
sites to avoid before tower planning even begins.”84   In cases where Tribal Nations “need to preserve 
secrecy of particular sacred sites to avoid unwanted intrusions,” PTA-FLA states that “such sites should 
be identified to the Commission in confidence” so that the Commission can “advise prospective 
constructors in the area that a site” will require consultation with a Tribal Nation.85  Finally, PTA-FLA 
argues that the NPA and Collocation Agreement “should be amended to exempt from review sites that 
will obviously have no effects” on a Tribal Nation’s sacred burial grounds.86   We incorporate PTA-FLA’s 
petition into this proceeding, and we seek comment below on its proposals.  
37. Some wireless providers contend that the SHPO review process also results in significant 
delays in deployment.  They note that facilities requiring Section 106 review must also undergo pre-
construction review by local governmental authorities, and the dual reviews can add significant time to 
the process.  Verizon states, for example that local  siting and Federal historic preservation “reviews 
cannot and do not run concurrently, because the local reviews may result in changes to the location or 
parameters (height, width, and size) of the facility  which must be established before the historic 
preservation review process can begin.”87  Moreover, providers cannot commence construction of their 
facilities until after completion of the historic preservation review process, which they state typically 
takes several months.88  We seek comment on the costs associated with SHPO review under the 
Commission’s historic preservation review process, including direct financial costs; costs that delay 
imposes on carriers, tower owners, and the public; and an y other costs.  What are the costs associated 
with SHPO review of typical small facility deployments, and how do these compare with the costs for 
tower construction projects?  Does the SHPO review process duplicate historic preservation review at the 
local level, particularly when local review is conducted by a Certified Local Government or a 
governmental authority that issues a Certificate of Appropriateness?  In addition, we seek comment on 
how often SHPO review results in changes to a construction project due to a SHPO’s identification of 
potential harm to historic properties or confers other public benefits.  
38. Finally, some argue that NEPA compliance imposes extraordinarily high costs on 
wireless providers and results in significant delays.89  Sprint notes that it has spent “tens of millions of 
dollars” to investigate pursuant to NEPA requirements deployments which, it alleges, present “minimal 
likelihood of harm.”90  It states that the Commission’s NEPA rules impose huge network costs with little 
or nothing in the way of corresponding benefits to the environment.91  More specifically, some 
commenters complain about delays associated with EAs – which T-Mobile states may “languish for an 
extended period of time—sometimes years”, 92 partly because when EAs are required, the Commission is 
not subject to any processing timelines or dispute resolution procedures.93  T-Mobile also complains that 
in cases where an EA is not filed, parties may file environmental objections under the FCC’s rules with 
respect to a planned facility, and such cases are not subject to timelines for resolution.94    A number of 
                                                     
84  Id.  at 14-15. 
85 Id.  at 15. 
86  Id.  at 16. 
87 Verizon Comments, WT Do cket No. 15-180, at 4-5. 
88 Id . 
89 See e.g ., Verizon Comments, WT Docket 16-421, at 34-39; Sprint Comments, WT Docket 16-421, at 44-48. 
90 Sprint Comments, WT Docket No. 16-421, at 47-48. 
91 See e.g., T-Mobile Comments, WT Docket No. 16-421, at 39.  
92 Id . 
93 Id. 
94  Id. 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
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commenters propose that EAs for deployments on flood plains should be eliminated if a site will be built 
at least one foot above the base flood elevation and a local building permit has been obtained.95  We seek 
comment on the costs and relative benefits of the Commission’s NEPA rules.  What are the costs 
associated with NEPA compliance, other than costs associated with historic preservation review, how do 
the costs of NEPA compliance for tower construction compare to such costs for small facilities, and what 
specific benefits does the review confer? 
b .  Process Reforms 
(i)  Tribal Fees 
39. In this section, we identify and seek comment on several issues relevant to fees paid to 
Tribal Nations in the Section 106 process.  In a ddition to commenting on the legal framework and on 
potential resolutions to the issues, we encourage commenters to provide specific factual information on 
current Tribal and industry practices and on the impacts of those practices on licensees/tower owners, 
Tribal Nations, and timely deployment of advanced broadband services to all Americans.  We further 
welcome information on the practices of other Federal agencies for our consideration.   
40.  Neither the NHPA nor the ACHP’s implementing regulations address whether and under 
what circumstances Tribal Nations and NHOs may seek compensation in connection with their 
participation in the Section 106 process.  The ACHP has, however, issued guidance on the subject in the 
form of a memorandum in 2001 and as part of a handbook last issued in 2012.  The ACHP 2001 Fee 
Guidance explains that “the agency or applicant is not required to pay the tribe for providing its views.”96   
Further, “[i]f the agency or app licant has made a reasonable and good faith effort to consult with an 
Indian tribe and the tribe refuses to respond without receiving payment, the agency has met its obligation 
to consult and is free to move to the next step in the Section 106 process.” 97  The guidance also states, 
however, that when a Tribal Nation “fulfills the role of a consultant or contractor” when conducting 
reviews, “the tribe would seem to be justified in requiring payment for its services, just as any other 
contractor,” and the company or agency “should expect to pay for the work product.”98  As we explain 
below, we seek comment on how the ACHP’s guidance can be applied in the context of our existing 
procedures and the proposals in this proceeding.  Moreover, we seek comment on practices or procedures 
of other Federal agencies with respect to addressing the various roles a Tribal Nation may play in the 
                                                     
95 See e.g. , Verizon Comments, WT Dock et No. 16-241, at 38-39. 
96  See  ACHP, Fees in the Section 106 Review Process (2001), http://www.achp.gov/regs-fees.html (ACHP 2001 Fee 
Guidance).   
97 Id .  
98 Id .  See also  ACHP, Consultation with Indian Tribes in the Section 106 Review Process: A Handbook, at 13 
(2012), http://www.achp.gov/pdfs/consultation-with-indian-tribes-handbook-june-2012.pdf (ACHP 2012 Handbook) 
(“[No] portion of the NHPA or the ACHP’s regulations require[s] an agency or an applicant to pay for any form of 
tribal involvement.  However, during the identification and evaluation phase of the Section 106 process when the 
agency or applicant is carrying out its duty to identify historic properties that may be significant to an Indian tribe, it 
may ask a tribe for specific information and documentation regarding the location, nature, and condition of 
individual sites, or even request that a survey be conducted by the tribe.  In doing so, the agency or applicant is 
essentially asking the tribe to fulfill the duties of the agency in a role similar to that of a consultant or contractor.  In 
such cases, the tribe would be justified in requesting payment for its services, just as is appropriate for any other 
contractor.  Since Indian tribes are a recognized source of information regarding historic properties of religious and 
cultural significance to them, federal agencies should reasonably expect to pay for work carried out by tribes.  The 
agency or applicant is free to refuse just as it may refuse to pay for an archaeological consultant, but the agency still 
retains the duties of obtaining the necessary information for the identification of historic properties, the evaluation of 
their National Register eligibility, and the assessment of effects on those historic properties, through reasonable 
methods.”).  The ACHP 2012 Handbook also indicates that with respect to properties where the agency concludes 
that no historic properties are affected, Tribal concurrence in that decision is not required, though Tribal Nations and 
NHOs can state any objections to the ACHP, which if it agrees may provide its opinion to the agency.  See id . at 23. 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
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Section 106 process and how to identify those services for which a Tribal Nation would be justified in 
seeking fees. 
41.  C i r c u m s t a n ces When Fees Are Requested .  The NPA requires applicants to make a 
reasonable and good faith effort to identify Tribal Nations and NHOs that may attach religious and 
cultural significance to historic properties affected by an undertaking, and this effort is commonly 
accomplished through the TCNS.  Some Tribal Nations require the payment of a fee prior to performing 
even preliminary review of all or nearly all projects submitted to them via the TCNS.   
42.  The ACHP Handbook clearly states that no “portion of the NHPA or the ACHP’s 
regulations require[s] an agency or an applican t to pay for any form of tribal involvement.”99  We note 
that ACHP guidance permits payments to a Tribal Nation when it fulfills a role similar to any other 
consultant or contractor.  At what point in the TCNS process, if any, might a Tribal Nation act as a 
contractor or consultant? 100  We seek comment on any facts that might affect the answer to that question.  
Does the particular request of the applicant determine whether a Tribal Nation is acting as a contractor or 
consultant?  For example, the ACHP Handbook notes th at if an applicant asks for “specific information 
and documentation” from a Tribal Nation, then the Tribal Nation is being treated as a contractor or 
consultant.101  Should we infer if the applicant does not ask explicitly for such information and 
documentation, then no payment is necessary?  We al so seek comment on whether Tribal review for some 
types of deployment is less in the nature of a contractor or consultant.  For example, would collocations or 
applications to site poles in rights of way be less likely to require services outside of the Tribal Nation’s 
statutory role?  In reviewing TCNS submissions for co llocations or for siting poles in rights of way, under 
what circumstances might a Tribal Nation incur research costs for which it or another contractor might 
reasonably expect compensation? 
43.  Once a Tribal Nation or NHO has been notified of a project, an applicant must provide 
“all information reasonably necessary for the Indian tribe or NHO to evaluate whether Historic Properties 
of religious and cultural significance may be affected” and provide the Tribal Nation or NHO with a 
reasonable opportunity to respond.102  We seek comment on this requirement and on any modifications the 
FCC can and should make.  In particular, we seek comment on whether a Tribal Nation’s or NHO’s 
review of the materials an applicant provides under NPA Section VII is ever, and if so under what 
circumstances, the equivalent of asking the Tribal Nation or NHO to provide “specific information and 
documentation” like a contractor or consultant would, thereby entitling the Tribal Nation to seek 
compensation under ACHP guidance and the NPA.  If a Tribal Nation chooses to conduct research, 
surveying, site visits or monitoring absent a request of the applicant, would such efforts require payment 
from the applicant?  If an archaeological consultant  conducted research, surveying, site visits, or 
monitoring absent a request of the applicant, would the applicant normally be required to pay that 
contractor or consultant?  We seek comment on how the ACHP Handbook’s statement that an “applicant 
is free to refuse [payment] just as it may refuse to pay for an archaeological consultant,” as well as its 
statement that “the agency still retains the duties of obtaining the necessary information [to fulfill its 
Section 106 obligations] through reasonable methods,” impacts our analysis of payments for Tribal 
participation.103   
44.  We note that some Tribal Nations have indicated that they assess a flat upfront fee for all 
applications as a way to recover costs for their review of all TCNS applications, thereby eliminating the 
administrative burden of calculating actual costs for each case.  We seek comment on this manner of cost 
                                                     
99 ACHP 2012 Handbook at 13. 
100 See  PTA-FLA Petition at 14 (asserting that the payment of fees for Tribal review should be prohibited). 
101 ACHP 2012 Handbook at 13. 
102 NPA, § IV.F. 
103 ACHP 2012 Handbook at 13. 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
 19
recovery and whether such cost recovery is consistent with ACHP’s fee guidance in its 2012 Handbook.104   
Tribal Nations have also indicated that they have experienced difficulties in collecting compensation after 
providing service as a reason for upfront fee requests.  We seek comment on whether this concern could 
be alleviated if we clarify when a Tribal Nation is acting under its statutory role and when it is being hired 
as a contractor or consultant under our process.  We also seek comment on whether there might be a more 
appropriate way to address this concern.   
45.  What steps, if any, can the Commission take to issue our own guidance on the 
circumstances in our process when the Tribal Nation is expressing its views and no compensation by the 
agency or the applicant is required under ACHP guidance, and the circumstances where the Tribal Nation 
is acting in the role of a consultant or contractor and would be entitled to seek compensation?  We seek 
comment on what bright-line test, if any, could be used.  How does the reasonable and good faith standard 
for identification factor, if at all, into when a Tribal request for fees must be fulfilled in order to meet the 
standard?  We seek comment on how disputes between the parties might be resolved when a Tribal 
Nation asserts that compensable effort is required to initiate or conclude Section 106 review.  We seek 
comment on whether there are other mechanisms to reduce the need for case-by-case analysis of fee 
disputes.  While we seek comment generally on our process, we also seek comment particularly in the 
context of deployment of infrastructure for advanced communications networks. 
46.  To the extent that supplementing current ACHP guidance would help clarify when Tribal 
fees may be appropriate while both facilitating efficient deployment and recognizing Tribal interests, 
what input, if any, should the Commission provide to the ACHP on potential modifications to ACHP 
guidance?   
47.  A m o u n t  o f  Fees Requested .  One factor that appears to be driving tower owners and 
licensees to seek Commission guidance in the fee area is not the mere existence of fees, but instead the 
amount of compensation sought by some Tribal Nations.  How, if at all, does the “reasonable and good 
faith” standard for identification factor into or temper the amount of fees a Tribal Nation may seek in 
compensation?  Are there any extant fee rates or sched ules that might be of particular use to applicants 
and Tribal Nations in avoiding or resolving disputes regarding the amount of fees?   
48.  We seek comment on the legal framework applicable to applicants’ requests that the 
Commission establish a fee schedule or otherwise resolve fee disputes.105  How might the impact of fee 
disputes on the deployment of infrastructure for advanced communications networks provide a basis for 
establishing a fee schedule in this context using the Communications Act as authority?  Do the NHPA or 
other statutes limit our ability to establish such a fee schedule, and if so, how?  How might the 
Miscellaneous Receipts Act (MRA)106  and General Accountability Office (GAO) precedent on improper 
augmentation temper the parameters of our actions in the area? 107  We seek comment on whether other 
Federal agencies have established fee schedules or addressed the matter in any way, e.g., either formally 
or informally or with respect to particular projects.  How does due regard for Tribal sovereignty and the 
                                                     
104  See id . 
105 See, e.g., PTA-FLA Petition at 14 (contending th at “reviewing fees should be no more than $50 unless the tribe 
demonstrates that the review is exceptionally complex.  In no event should the fee exceed $200”). 
106  31 U.S.C. § 3302(b).     
107 While a fee schedule or direction to make certain payments to a Tribal Nation would not directly involve money 
being received by the Commission, the GAO has explained both in the MRA context and in the context of improper 
augmentation that control over funds (who receives, who pays) is a significant part of its analysis.  For example, 
directing a party to pay a fee that an agency might itself properly pay out of its appropriation can raise questions 
relating to both the MRA and improper augmentation of the agency’s appropriation.  See  B-300248 (January 15, 
2004) (Small Business Administration both violated the MRA and improperly augmented its appropriation by 
having parties pay fees to a third party instead of using its appropriation to fund the activity). 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
 20
Government’s treaty obligations affect our latitude for action in this area?   
49.  If we were to establish a fee schedule, we seek comment on what weight or impact it 
might have on our process.  For example, to what extent would fees at or below the level established by a 
fee schedule be considered presumptively reasonable?  We further seek comment on what legal 
framework would be relevant to resolution of disputes concerning an upward or downward departure 
from the fee schedule.108  Should the fees specified in such a schedule serve as the presumptive maximum 
an applicant would be expected to pay, and under what circumstances might an upward departure from 
the fee schedule be appropriate?   In addition to the concepts cited in the prior paragraph, are there other 
legal principles at play in the resolution of a dispute over a fee that might not arise in the context of 
merely setting a fee schedule?  Have any other Fede ral agencies formally or informally resolved fee 
disputes between applicants and Tribal Nations, and if so, under what legal parameters?  We also seek 
comment on what categories of services should be included, and whether the categories should be general 
or more specific.  How would we establish the appropriate level for fees?  How could a fee schedule take 
into account both regional differences and changes in costs over time, i.e. , inflation? 109  We also seek 
comment on whether the Commission should only establish a model fee schedule and whether that would 
be consistent with the Tribal engagement requirements contemplated by Section 106.   
50. Geographic A reas of I n terest .  Tribal Nations have increased their areas of interest within 
the TCNS as they have improved their understanding of their history and cultural heritage.  As a result, 
applicants must sometimes contact upwards of 30 different Tribal Nations and complete the Section 106 
process with each of them before being able to build their project.  We seek comment on whether there 
are actions the Commission can and should take to mitigate this burden while complying with our 
obligation under Section 101(d)(6) of the NHPA and pr omoting the interests of all stakeholders.  For 
example, the TCNS allows Tribal Nations and NHOs to select areas of interest at either a State or county 
level, but many Tribal Nations have asked to be notified of any project within entire States, and in a few 
instances, at least 20 different States.  We seek comment on whether we could and should encourage, or 
require, the specification of areas of interest by county.  We also seek comment on whether we should 
require some form of certification for areas of interest, and if so, what would be the default if a Tribal 
Nation fails to provide such certification.110   
51. In addition, applicants routinely receive similar requests for compensation or 
compensable services from multiple Tribal Nations.  While we recognize that each Tribal Nation is 
sovereign and may have different concerns, we seek comment on when it is necessary for an applicant to 
compensate multiple Tribal Nations for the same project or for the same activity related to that project, in 
particular site monitoring during construction.  We also seek comment on whether, when multiple Tribal 
Nations request compensation to participate in the identification of Tribal historic properties of religious 
                                                     
108  We observe that around the time the NPA was completed, the Commission and the United South and Eastern 
Tribes (USET) agreed to Voluntary Be st Practices to promote cooperation between the Commission’s applicants and 
USET’s members.  USET appended to the Best Practices a m odel cost recovery schedule that it stated was intended 
solely to cover Tribal costs.  Voluntary Best Practi ces for Expediting the Process of Communications Tower and 
Antenna Siting Review Pursuant to Section 106 of the Nati onal Historic Preservation Act (Oct. 25, 2004).  The cost 
recovery schedule indicated that there should be no charge for identification of potentially interested Tribal Nations 
and for the initial contact, but that charges for review of survey material and site visitation would range between 
$300 and $500, as appropriate to recover the Tribal Nation’s costs and accounting for regional differences.  See id . 
at Attachment, “USET Model Explanat ory Cost Recovery Schedule.”  We are unaware that any USET Member 
Tribe (or other Tribal Nation) ever formally adopted the model cost recovery schedule. 
109 We note that the fee ranges found in the Cost Recovery Schedule associated with the USET Voluntary Best 
Practices are now 13 years old.    
110 See, e.g., PTA-FLA Petition at 14-15 (proposing a requirement for Tribal Nations to “identify under objective, 
independently verifiable criteria the areas where construction could reasonably be deemed to have an impact on 
tribal grounds”). 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
 21
and cultural significance, whether there are mechanisms to gain efficiencies to ensure that duplicative 
review is not conducted by each Tribal Nation.  For example, might one Tribal Nation when functioning 
in the role of a contractor perform certain services and share the work product with other Tribal Nations, 
e.g., site monitoring?  Could an applicant hire a qua lified independent site monitor and share its work 
product with all Tribal Nations that are interested?  Or is it always necessary to obtain such services from 
all responding Tribal Nations that request to provide the service, and if so, why?   
52. Remedies and D i s p u te Resoluti o n .  While the ACHP has indicated that Tribal 
concurrence is not necessary to find that no historic properties of religious and cultural significance to 
Tribal Nations or NHOs would be affected by an undertaking,111 the agency is responsible for getting the 
information necessary to make that determination.112  We seek comment on how these two directives 
interact.  The ACHP 2001 Fee Guidance states that “if an agency or applicant attempts to consult with an 
Indian tribe and the tribe demands payment, the agency or applicant may refuse and move forward.”113  
We seek comment on whether and under what circumstances the Commission should authorize a project 
to proceed when a Tribal Nation refuses to respond to a Section 106 submittal without payment.   
53. Under the NPA, when a Tribal Nation or  NHO refuses to comment on the presence or 
absence of effects to historic properties without compensation, the applicant can refer the procedural 
disagreement to the Commission.114   We seek comment on whether the Commission can adjudicate these 
referrals by evaluating whether the threshold of “reasonable and good faith effort” to identify historic 
properties has been met, given that the Tribal Nation can always request government-to-government 
consultation in the event of disagreement.   
54.  We seek comment on when the Commission must engage in government-to-government 
consultation to resolve fee disputes, including when the compensation level for an identification activity 
has been established by a Tribal government.   
55. Negotiated Alternative .  We note that since September 2016, the Commission has been 
facilitating meetings among Tribal and industry stakeholders with the goal of resolving challenges to 
Tribal requirements in the Section 106 review pr ocess, including disagreements over Tribal fees.115  We 
seek comment on whether the Commission should continue seeking to develop consensus principles and, 
if so, how those principles should be reflected in practice.  For example, we seek comment on whether we 
should seek to enter into agreements regarding best practices with Tribal Nations and their 
representatives. 
(ii)  Other NHPA Process Issues 
56.  L a c k  o f  Response .  As discussed above, while both SHPOs and Tribal Nations/NHOs are 
expected ordinarily to respond to contacts within 30 days, the NPA and the Commission’s practice 
establish different processes to be followed when responses are not timely.116   We seek comment on what 
measures, if any, we should take to further speed either of these review processes, either by amending the 
NPA or otherwise, while assuring that potential effects on historic preservation are fully evaluated.  What 
effect would such proposals have on addressing Section 106-associated delays to deployment?  Should 
different time limits apply to different categories of construction, such as new towers, DAS and small 
cells, and collocations?  Have advances in communica tions during the past decade, particularly with 
                                                     
111 See  ACHP 2012 Handbook at 23.  See also  36 CFR § 800.4. 
112 See  36 CFR § 800.4 (imposing the requirement to identify historic properties on “the agency”). 
113 See  ACHP 2001 Fee Guidance.   
114  See  NPA, § IV.G. 
115 See  id . at § IV.J (“the Commission will use its best efforts to  arrive at agreements regarding best practices with 
Indian tribes and NHOs and their representatives”). 
116  See  Section II.B.1, s up ra. 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
 22
respect to communications via the Internet, changed reasonable expectations as to timeliness of responses 
and reasonable efforts to follow up? 
57. With respect to Tribal Nations and NHOs, we seek comment on whether the process can 
be revised in a manner that would permit applicants to self-certify their compliance with our Section 106 
process and therefore proceed once they meet our notification requirements, without requiring 
Commission involvement, in a manner analogous to the “deemed granted” remedy for local 
governments.117  Would such an approach be consistent with the NPA and with the Commission’s legal 
obligations?  We note that Commission staff has disc overed on numerous occasions that applicants have 
failed to perform their Tribal notifications as our processes require.  If we were to permit applicants to 
self-certify that they have completed their Tribal notification obligations, we seek comment on how we 
could ensure that the certifications are truthful and well-founded. 
58. B a t c h i ng .  In the PTC Program Comment,118 the ACHP established a streamlined process 
for certain facilities associated with building out the Positive Train Control (PTC) railroad safety system.  
Among other aspects of the PTC Program Comment, eligible facilities may be submitted to SHPOs and 
through TCNS in batches.119   
59. We seek comment on whether we should adopt either a voluntary or mandatory batched 
submission process for non-PTC facilities.  What benefits could be realized through the use of batching?  
What lessons can be learned from the experience with PTC batching?  What guidelines should we 
provide, if any, regarding the number of facilities to be included in a batch, their geographic proximity, or 
the size of eligible facilities?  Should there be othe r conditions on eligibility, such as the nature of the 
location or the extent of ground disturbance?  Shou ld different time limits or fee guidelines, if any are 
adopted, apply to batched submissions?  What ch anges to our current TCNS and E-106 forms and 
processes might facilitate batching?  We seek co mment on these and any other policy or operational 
issues associated with batching of proposed constructions.   
60.  Other NHPA Process Reforms .  We seek comment on whether there are additional 
procedural changes that we should consider to improve the Section 106 review process in a manner that 
does not compromise its integrity. 
(iii)  NEPA Process 
61.  We seek comment on ways to improve and further streamline our environmental 
compliance regulations while ensuring we meet our NEPA obligations.  For example, should we consider 
new categorical exclusions for small cells and DAS facilities?  If so, under what conditions and on what 
basis? Should we revise the Commissi on’s rules so that an EA is not required for siting in a floodplain120 
when appropriate engineering or mitigation requirements have been met? 121  Are there other measures we 
could take to reduce unnecessary processing burdens consistent with NEPA? 
                                                     
117 See  Section II.A.1, sup ra . 
118 See  W ireless Telecommun ica tio n s B ureau An nou n ces Ad optio n  o f P rogram Comment to  G o vern Review of 
Po sitive Tra in  Co n tro l Wa yside Facilities , WT Docket 13-240, Public Notice, 29 FCC Rcd 5340, Attachment (WTB 
2014) (PTC Program Comment). 
119 See id.  at § VII.A.  See also  Batching Guidance for TCNS and E106 Submissions Under the Positive Train 
Control Program Comment (rev. Dec. 19, 2014), http://wireless.fcc.gov/ptc/Batching_Guidance_121914.pdf .  
120 For more information on floodplain definitions and management, see Executive Order 11988 as amended by 
Executive Order13690 and accompan ying guidance, Guidelines for Implementing Executive Order 11988, 
Floodplain Management, and Executive Order 13690, Establishing a Federal Flood Risk Management Standard and 
a Process for Further Soliciting and Considering Stakeholder Input. (October 8, 2015). 
121 See, e.g., Verizon Comments, WT Docket  No. 16-241, at 38-39. 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
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c.  NHPA Exclusions for Small Facilities 
62.  As part of our effort to expedite further the process for deployment of wireless facilities, 
including small facility deployments in particular, we seek comment below on whether we should expand 
the categories of undertakings that are excluded from Section 106 review.  With respect to each of the 
potential exclusions discussed below, we seek comment on the alternatives of adopting additional 
exclusions directly in our rules, or incorporating into our rules a program alternative pursuant to the 
ACHP rules.  The Commission may exclude activities from Section 106 review through rulemaking upon 
determining that they have no potential to cause effects to historic properties, assuming such properties 
are present.122  Where potential effects are foreseeable and likely to be minimal or not adverse, a program 
alternative under the ACHP’s rules may be used to exclude activities from Section 106 review. 123  We 
seek comment about whether the exclusions discussed below meet the test for an exclusion in 36 CFR § 
800.3(a)(1) or whether they would require a program alternative.  To the extent that a program alternative 
would be necessary, we seek comment on which of the program alternatives authorized under the 
ACHP’s rules would be appropriate.124   Particularly, for those potential exclusions where a program 
alternative would be required, commenters should discuss whether a new program alternative is necessary 
or whether an amendment to the NPA or a second amendment to the Collocation NPA would be the 
appropriate procedural mechanism. 
(i)  Pole Replacements 
63.  We seek comment on whether the Commission should take further measures to tailor 
Section 106 review for pole replacements.  As noted above, wireless companies are increasingly 
deploying new infrastructure using smaller antennas and supporting structures, including poles.  Under 
the existing NPA, pole replacements are excluded from Section 106 review if the pole being replaced 
meets the definition of a “tower” under the NPA (constructed for the sole or primary purpose of 
supporting FCC-authorized antennas) , provided that the pole being replaced went through Section 106 
review.125  The NPA also more generally excludes construction in or near communications or utility rights 
of way, including pole replacements, with certain limitations.  In particular, the construction is excluded if 
the facility does not constitute a substantial increase in size over nearby structures and it is not within the 
boundaries of a historic property.  However, proposed facilities subject to this exclusion must complete 
the process of Tribal and NHO participation pursuant to the NPA.126  
64.  We seek comment on whether additional steps to tailor Section 106 review for pole 
replacements would help serve our objective of facilitating wireless facility siting, while creating no or 
foreseeably minimal potential for adverse impacts to historic properties.  For example, should the 
replacement of poles be excluded from Section 106 revi ew, regardless of whether a pole is located in a 
historic district, provided that the replacement pole is not “substantially larger” than the pole it is 
replacing (as defined in the NPA)?  We envision that  this proposed exclusion could address replacements 
for poles that were constructed for a purpose other than supporting antennas, and thus are not “towers” 
within the NPA definition, but that also have (or will have) an antenna attached to them.  This exclusion 
would also apply to pole replacements within rights of way, regardless of whether such replacements are 
in historic districts.  We seek comment on this proposal and on whether any additional conditions would 
                                                     
122 36 CFR § 800.3(a)(1).  Based on its authority under Section 800.3(a)(1), the Commission has established targeted 
unilateral exclusions from historic preservation review requirements for certain small facility collocations on utility 
structures and on buildings and other non-tower structures, provided they meet certain specified criteria.  2 014  
I n fra s tr u c tu re Order , 29 FCC Rcd at 12901-12, paras. 76-103. 
123 36 CFR § 800.14(c). 
124  36 CFR § 800.14. 
125 NPA, § III.B; see also  § II.A.14 (definition of “Tower”). 
126  NPA § III.E.  “Substantial increase in size” is defined by reference to Section I.E of the Collocation NPA.  
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
 24
be appropriate.  For example, consistent with the existing exclusion for replacement towers, commenters 
should discuss whether the exclusion should be limited to projects for which construction and excavation 
do not expand the boundaries of the leased or owned property surrounding the tower by more than 30 feet 
in any direction.  How would the “leased or owned property” be defined within a utility right of way that 
may extend in a linear manner for miles? 
(ii)  Rights of Way 
65.  We seek comment on whether to expand the NPA exemption from Section 106 review 
for construction of wireless facilities in rights of way.  First, as noted above, current provisions of the 
NPA exclude from Section 106 review construction in  utility and communications rights of way subject 
to certain limitations.127  We seek comment on whether to adopt a similar exclusion from Section 106 
review for construction or collocation of communications infrastructure in transportation rights of way 
and whether such an exclusion would be warranted under 36 CFR § 800.3(a)(1).  We recognize the 
Commission’s previous determination in the N P A  O r der  that, given the concentration of historic 
properties near many highways and railroads, it was not feasible to draft an exclusion for transportation 
corridors that would both significantly ease the burdens of the Section 106 process and sufficiently 
protect historic properties.128  The Commission also recognized, however, that transportation corridors are 
among the areas where customer demand for wireless service is highest, and thus where the need for new 
facilities is greatest.129   
66.  In addition, since the N P A  O r der , wireless technologies have evolved and many wireless 
providers now deploy networks that use smaller antennas and compact radio equipment, including DAS 
and small cell systems.  In view of the changed circumstances that are present today, we find that it is 
appropriate to reconsider whether we can exclude construction of wireless facilities in transportation 
rights of way in a manner that guards against potential effects on historic properties.  We seek comment 
on whether such an exclusion should be adopted, subject to certain conditions that would protect historic 
properties, and, if so, what those conditions should be.  For example, should we require that poles be 
installed by auguring or that cable or fiber be installed by plow or by directional drilling?  What 
stipulations are needed if a deployment may be adjacent to or on National Register-eligible or listed 
buildings or structures, or in or near a historic district? Would it be appropriate  to have any limitation on 
height, in addition to the requirement in the current rights of way exclusion that the structures not 
constitute a substantial increase in size over existing nearby structures?  How should any new exclusion 
address Tribal and NHO participation, especially for historic properties with archaeological 
components? 130  We also seek comment on how to define the boundaries of a transportation right of way 
for these purposes. 
67.  In addition to considering whether to adopt an exclusion for construction in transportation 
rights of way, we also seek comment on whether to amend the current right of way exclusion to apply 
regardless of whether the right of way is located on a historic property.  As noted above, the current right 
of way exclusion applies only if (1) the construction does not involve a substantial increase in size over 
nearby structures and (2) the deployment would not be located within the boundaries of a historic 
property.131  We seek comment on whether this provision should be amended to exclude from Section 106 
review construction of a wireless facility in a utility or communications right of way located on a historic 
property, provided that the facility would not constitute a substantial increase in size over existing 
                                                     
127 NPA, § III.E. 
128 N P A  O r der , 20 FCC Rcd at 1097, para. 62. 
129 N P A  O r der , 20 FCC Rcd at 1097, para. 62. 
130 In its Petition for Declaratory Ruling, PTA-FLA argues that sites falling within designated utility or highway 
rights of way should be excluded from Tribal review.  See  PTA-FLA Petition at 16. 
131 NPA, § III.E. 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
 25
structures.  To the extent that utility and communications rights of way on historic properties already are 
lined with utility poles and other infrastructure, would allowing additional infrastructure have the 
potential to create effects?  Commenters should discuss wh ether, if the exclusion is extended to historic 
properties, any additional conditions would be appropriate to address concerns about potential effects, for 
example any further limitation on ground disturbance.132  If so, how should ground disturbance be 
defined? 133  We also seek comment about whether Tribal and NHO participation should continue to be 
required if an exclusion is adopted for facilities constructed in utility or communications rights of way on 
historic properties. 
(iii)  Collocations 
68.  Next, we seek comment on options to further tailor our review of collocations of wireless 
antennas and associated equipment.  The Commission’s rules have long excluded most collocations of 
antennas from Section 106 review, recognizing the bene fits to historic properties that accrue from using 
existing support structures rather than building new structures.  The Commission has also recently 
expanded these exclusions in the First Amendment to the Collocation NPA to account for the smaller 
infrastructure associated with new technologies.  We seek comment now on whether additional measures 
to further streamline review of collocations are appropriate, whether as a matter of 36 CFR § 800.3(a)(1) 
or under program alternatives, including those discussed below and any other alternatives.       
69.  First, we seek comment on whether some or all collocations located between 50 and 250 
feet from historic districts should be excluded from Section 106 review.  Under current provisions in the 
Collocation NPA, Section 106 review continues to be  required for collocations on buildings and other 
non-tower structures located within 250 feet of the boundary of a historic district to the extent those 
collocations do not meet the criteria established for small wireless antennas.134   We seek comment on 
whether this provision should be revised to exclude from Section 106 review collocations located up to 50 
feet from the boundary of a historic district.  We seek comment on this proposal and on whether any 
additional criteria should apply to an exclusion under these circumstances. 
70. Next, we seek comment on the participation of Tribal Nations and NHOs in the review of 
collocations on historic properties or in or near historic districts.  Although, as stated above, the 
Collocation NPA excludes most antenna collocations from routine historic preservation review under 
Section 106, collocations on historic properties or in or near historic districts are generally not 
excluded,135 and in these cases, the NPA provisions for Tribal and NHO participation continue to apply.  
Consistent with our effort in this NPRM to take a fresh look at ways to improve and facilitate the review 
process for wireless facility deployments, we seek comment on whether to exclude from the NPA 
procedures for Tribal and NHO participation collocations that are subject to Section 106 review solely 
because they are on historic properties or in or near historic districts, other than properties or districts 
identified in the National Register listing or determination of eligibility as having Tribal significance.  
Commenters should discuss whether collocations in these circumstances have the potential to cause 
effects on properties significant to Tribal history or culture.  If so, are any effects likely to be minimal or 
                                                     
132 The existing definition of “substantial increase in size” prevents excavation outside the current tower site.  
Collocation NPA, § I.E. 
133 See, e.g., Collocation NPA, § VI.A.6  (limiting application of small antenna exclusion to where the “depth and 
width of any proposed collocation does not exceeds the depth and width of any previous ground disturbance 
(including footings and other anchoring mechanisms),” with an exception for up to four lightning rods). 
134  Collocation NPA, § V.A.2. 
135 Collocations on structures located on historic properties or in historic districts are excluded from Section 106 
review in certain circumstances.  The 2016 Amendments  to the Collocation Agreement created exclusions from 
Section 106 review for small or minimally visible wirele ss antennas and associated equipment on structures in 
historic districts or on historic properties and replacements of small wireless antennas and associated equipment.  
Collocation NPA, §§ VII.A, B, C, VIII. 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
 26
not adverse?  Does the likelihood of adverse effects depend on the circumstances of the collocation, for 
example whether it will cause new ground disturbance? 136   We also seek comment on alternatives to 
streamline procedures for Tribal and NHO participation in these cases, for example different guidance on 
fees or deeming a Tribal Nation or NHO to have no interest if it does not respond to a notification within 
a specified period of time.   
71. Finally, we seek comment on whether we can or should exclude from routine historic 
preservation review certain collocations that have received local approval.  In particular, one possibility 
would be to exclude a collocation from Section 106 review, regardless of whether it is located on a 
historic property or in or near a historic district, provided that: (1) the proposed collocation has been 
reviewed and approved by a Certified Local Government 137 that has jurisdiction over the project; or (2) 
the collocation has received approval, in the form of a Certificate of Appropriateness138 or other similar 
formal approval, from a local historic preservation review body that has reviewed the project pursuant to 
the standards set forth in a local preservation ordinance and has found that the proposed work is 
appropriate for the historic structure or district.  By eliminating the need to go through historic 
preservation review at both local and Federal levels, creating an exclusion for collocations under these 
circumstances might create significant efficiencies in the historic preservation review process.  We seek 
comment on this option and on any alternatives, including whether any additional conditions should apply 
and whether the process for engaging Tribal Nations and NHOs for these collocations should continue to 
be required. 
d.  Scope of Undertaking and Action 
72. We also invite comment on whether we should revisit the Commission’s interpretation of 
the scope of our responsibility to review the effects of wireless facility construction under the NHPA and 
NEPA.  In the P re-Const r u c t i o n  Review Order , the Commission retained a limited approval authority 
over facilities construction to ensure environmental compliance in services that no longer generally 
require construction permits.139  In light of the evolution of technology in the last 27 years and the 
corresponding changes in the nature and extent of wireless infrastructure deployment, we seek comment 
on whether this retention of authority is required and, if not, whether and how it should be adjusted.  
Commenters should address the costs of NEPA and NHPA compliance and its utility for environmental 
protection and historic preservation for different classes of facilities, as well as the extent of the 
Commission’s responsibility to consider the effects of construction associated with the provision of 
licensed services under governing regulations and judicial precedent.140   For example, should facilities 
constructed under site-specific licenses be distinguished from those constructed under geographic area 
licenses?  Can we distinguish DAS and small cell fac ilities from larger structures for purposes of defining 
                                                     
136  For example, in its Petition for Declaratory Ruling, PTA-FL A contends that constructions on sites that will have 
no effect on Tribal burial grounds, including sites which have been previously disturbed, should be exempted from 
Tribal review.  See  PTA-FLA Petition at 16. 
137 A “Certified Local Government” is a local government whose local historic preservation program is certified 
under Chapter 3025 of the National Historic Preservation Act.  See  54 U.S.C. §§ 300302, 302501 et seq . 
138 A “Certificate of Appropriateness” is an authorization from a local government allowing construction or 
modification of buildings or structures in a historic district. 
139 P re-Constr u c tio n  Review Order , 5 FCC Rcd at 2943, paras. 9-11; see also CTI A  –  T he Wireless Asso cia tio n  v. 
FCC , 446 F.3d at 115 (holding that this interp retation was not arbitrary and capricious). 
140  See, e.g., 40 CFR § 1508.8 (providing that “significant effect s” under NEPA include indirect effects that are 
“caused by the action and are later in time or [more distan t but] still reasonably foreseea ble”); 36 CFR § 800.5(a)(1) 
(providing that under NHPA, effects to be considered include “reasonably foreseeable effects caused by the 
undertaking that may occur later in time, be farther removed in distance or be cumulative”); 40 CFR § 1502.4(a) 
(forbidding segmentation of an action into its component parts to obviate NEPA review). 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
 27
what constitutes the Commission’s action or undertaking, and on what basis? 141   Should review be 
required only when an EA triggering condition is met, as PTA-FLA sugg ests, and if so how would the 
licensee or applicant determine whether an EA is required in the absence of mandatory review? 142   To the 
extent there is a policy basis for distinguishing among different types of facilities, would exclusions from 
or modifications to the NEPA and/or NHPA review processes be a more appropriate tool to reflect these 
differences?  Are the standards for defining the scope of our undertaking or major Federal action different 
under the NHPA than under NEPA?  We also invite comment on whether to revisit the Commission’s 
determination that registration of antenna structures constitutes the FCC’s Federal action and undertaking 
so as to require environmental and historic preservation review of the registered towers’ construction.143  
73. In addition, since our environmental rules were adopted, an industry has grown of non-
licensees that are in the business of owning and managing communications sites, so that most commercial 
wireless towers and even smaller communications support structures are now owned from the time of 
their construction by non-licensees.  We seek comment on how this business model affects our 
environmental and historic preservation compliance regime.  For example, how does the requirement to 
perform environmental and historic preservation review prior to construction apply when the licensee is 
not the tower owner?  If the tower is built pursuant to a contract or other understanding with a collocator, 
what marketplace or other effects would result from interpreting the environmental obligation to apply to 
the licensee?  What about cases where there is no such agreement or understanding?  Does the 
requirement in the Collocation NPA to perform review for collocations on towers that did not themselves 
complete Section 106 review create problems in admini stration or market distortions where the owner of 
the underlying tower may not have been subject to our rules at the time of construction? 144   We invite 
comment on these and any related questions. 
3 .  Collocations on Twilight Towers 
74.  Section 1.1307(a)(4) of the Commission’s ru les directs licensees and applicants, when 
determining whether a proposed action may affect historic properties, to follow the procedures in the 
ACHP’s rules as modified by the Collocation NPA and the NPA, two programmatic agreements that took 
effect in 2001 and 2005 respectively.145   Under the Collocation NPA, co llocations on towers constructed 
on or before March 16, 2001 are generally excluded fr om routine historic preservation review regardless 
of whether the underlying tower has undergone Section 106 review. 146   The Collocation NPA provides 
                                                     
141  See CTIA Comments, WT Docket No. 16-421, at 47; bu t see 2014  In frastru ctu re Order , 29 FCC Rcd at 12903-4, 
para. 83 (finding no basis to draw this distinction with respect to NHPA undertakings). 
142  See  PTA-FLA Petition at 13 (requesting ruling “that site co nstruction by non-licensees and/or licensees where 
neither FCC registration nor a Section 1.1308 environmental assessment by the Commission is required do not 
constitute a federal undertaking and therefore are not subject to the Section 106 process”); id. at 9-13 (argument 
supporting this interpretation). 
143  S treamlin ing the Comm is s ion’ s  An tenna Str u c tu re Clearance Procedure; Revision  o f Par t 17  o f the 
Comm is s ion ’ s R u les Con cerning Cons tru c tio n,  Ma r k ing, an d L ighting of A n tenna S tr u c tu res , Report and Order, 11 
FCC Rcd 4272, 4289, para. 41 (1995); see, e.g., Sugarloa f Citizens Ass’n  v.  Federal Energy Regulatory Co mm’n , 
959 F.2d 508 (4 th Cir. 1992) (finding that FERC’s certification of an incinerator was a ministerial action and not a 
major Federal action or undertaking where FERC had no discretion to deny certification or to consider 
environmental values). 
144  Collocation NPA, § IV.A.1. 
145  See 47 CFR § 1.1307(a)(4). 
146  Collocation NPA, § III.  Collocations on towers constructed on or before March 16, 2001 are excluded from 
Section 106 review unless (1) the mounting of the antenna will result in a substantial increase in size of the tower; or 
(2) the tower has been determined by the FCC to have an adverse effect on one or more historic properties; or (3) the 
tower is the subject of a pending environmental review or related proceeding before the FCC involving compliance 
with Section 106 of the National Historic Preservation Act; or (4) the collocation licensee or the owner of the tower 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
 28
that collocations on towers constructed after March 16, 2001, by contrast, are excluded from historic 
preservation review only if the Section 106 review process for the underlying tower and any associated 
environmental reviews has been completed.147   The NPA, which became effective on March 7, 2005, 
establishes detailed procedures for reviewing the effects of communications towers on historic properties.   
75. There are a large number of towers that were built between the adoption of the 
Collocation NPA in 2001 and when the NPA became effective in 2005 that either did not complete 
Section 106 review or for which documentation of Sec tion 106 review is unavailable.  These towers are 
often referred to as “Twilight Towers.”  Although during this time the Commission’s environmental rules 
required licensees and applicants to evaluate whether proposed facilities may affect historic properties,148  
the text of the rule did not at that time require parties to perform this evaluation by following the ACHP’s 
rules or any other particular process.  Thus, some in the industry have argued that, prior to the NPA, it 
was unclear whether the Commission’s rules required consultation with the relevant SHPO and/or THPO, 
Tribal engagement, or any other procedures, and that this uncertainty was the reason why many towers 
built during this period did not go through the clearance process.149   Because the successful completion of 
the Section 106 process is a predicate to the exclus ion from review of collocations on towers completed 
after March 16, 2001, licensees cannot collocate on th ese Twilight Towers unless either each collocation 
completes Section 106 review or the underlying tower goes through an individual post-construction 
review process.  
76.  The Commission has worked with stakeholders in an effort to develop a programmatic 
solution that would allow Twilight Towers more readily to be used for collocations.150  Most recently, in 
August 2016, WTB circulated for discussion a draft te rm sheet (2016 Twilight Towers Draft Term Sheet) 
outlining a potential streamlined process for Twilight Towers to complete individual review.151 
77. We seek comment on steps the Commission should take to develop a definitive solution 
for the Twilight Towers issue.  As we undertake this process, our goal remains to develop a solution that 
will allow Twilight Towers to be used for collocations while respecting the integrity of the Section 106 
process.  Facilitating collocations on these towers will serve the public interest by making additional 
infrastructure available for wireless broadband services and the FirstNet public safety broadband 
                                                     
has received written or electronic notification that the FCC is in receipt of a complaint from a member of the public, 
a Tribal Nation, a SHPO or the ACHP, that the collocation has an adverse effect on one or more historic properties. 
147  Collocation NPA, § IV. 
148  See  47 CFR 1.1307(a)(4) (2004) (requiring EA if facility ma y affect property listed or eligible for listing in the 
National Register of Historic Places). 
149  See, e.g. , Letter from Brian M. Josef, Ass’t Vice Pres. Reg. Af fairs, CTIA and D. Zachary Champ, Dir. Gov’t. 
Affairs, PCIA-The Wireless Infrastructure Assoc. to Chad Breckinridge, Assoc. Chief, Wireless 
Telecommunications Bureau (filed Feb. 19, 2016) at 3-4 (CTIA/PCIA Feb. 19 th Letter); bu t see  “Fact Sheet, 
Antenna Collocation Programmatic Agreement,” Public Notice, 17 FCC Rcd 508, 511 (2002) (“this evaluation 
process includes consultation with the relevant [SHPO] and/ or [THPO], as well as compliance with other procedures 
set out in the ACHP rules, 36 C.F.R. Part 800, Subpart B”). 
150 See, e.g., CTIA/PCIA Feb. 19th Letter; Email from Jennifer Sigler, Trib al Archaeologist, Eastern Shawnee Tribe 
of Oklahoma, to January2016TowerMtg@fcc.gov  (Feb. 12, 2016); Email from Jan Biella, Pilar Cannizzaro, and 
Andy Wakefield, New Mexico Historic Preservation Division, to January2016TowerMtg@fcc.gov  (Feb. 18, 2016).   
151 See  National Association of Tribal Historic Preservation Officers, http://nathpo.org/wp/wp-
content/uploads/2016/08/Twilight-Towers-Discussion-Draft-Term-Sheet-081916.pdf , (last visited Mar. 17, 2017).  
The term sheet proposed for discussion a process that would include identification of Twilight Towers by their 
owners, limits on the number of towers each owner may submit for review per month, deadlines for submission to 
be set by the FCC, review fees consistent with customary practices subject to adjustment to reflect the circumstances 
of Twilight Tower review, a 60-day review d eadline, and a dispute resolution process.  
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
 29
network.152  Moreover, facilitating collocations on existing towers will reduce the need for new towers, 
lessening the impact of new construction on the environment and on locations with historical and cultural 
significance.   
78. In particular, we seek comment on whether to treat collocations on towers built between 
March 16, 2001 and March 7, 2005 that  did not go through Section 106 historic preservation review in the 
same manner as collocations on towers built prior to March 16, 2001 that did not go through review.  
Under this approach, collocations on such towers wo uld generally be excluded from Section 106 historic 
preservation review, subject to the same exceptions that currently apply for collocations on towers built 
on or prior to March 16, 2001, i.e. , collocations would be excluded from Section 106 review unless (1) 
the mounting of the antenna will result in a substantial increase in size of the tower; (2) the tower has 
been determined by the FCC to have an adverse effect on one or more historic properties; (3) the tower is 
the subject of a pending environmental review or related proceeding before the FCC involving 
compliance with Section 106 of the National Histor ic Preservation Act; or (4) the collocation licensee or 
the owner of the tower has received written or electronic notification that the FCC is in receipt of a 
complaint from a member of the public, a Tribal Nation, a SHPO or the ACHP that the collocation has an 
adverse effect on one or more historic properties.153  We seek comment on whether allowing collocations 
without individual Section 106 review in these circum stances would rapidly make available a significant 
amount of additional infrastructure to support wireless broadband deployment without adverse impacts.  
In particular, we note that the vast majority of towers that have been reviewed under the NPA have had no 
adverse effects on historic properties, and we are aware of no reason to believe that Twilight Towers are 
any different in that regard.  Moreover, these towers have been standing for 12 years or more and, in the 
vast majority of cases, no adverse effects have been brought to our attention.   
79. Although we seek comment on such an approach, we are mindful of the concerns that 
have been expressed by Tribal Nations and SHPOs throughout the discussions on this matter that simply 
allowing collocations to proceed would not permit review in those cases where an underlying tower may 
have undetermined adverse effects.  In particular, Tribal Nations have expressed concern that some of the 
towers that were constructed between 2001 and 2005 may have effects on properties of religious and 
cultural significance that have not been noticed because their people are far removed from their traditional 
homelands.  We seek comment on these concerns.  As an initial matter, we seek comment on our 
underlying assumption regarding the likelihood that Twilight Towers had in their construction or continue 
to have adverse effects that have not been noted.  To the extent such effects exist, what is the likelihood 
that they could be mitigated, and what is the likelihood that a new collocation would exacerbate those 
effects? 154    
80. We further seek comment on any alternative approaches.  For example, should we 
consider a process under which proposed collocations on Twilight Towers would trigger a streamlined, 
time-limited review, along the lines of the process discussed in the 2016 Twilight Towers Draft Term 
Sheet?  Should towers be categori zed, such that, for example, public safety towers receive priority for 
streamlined review?  Alternatively, to what extent are there existing processes that function efficiently to 
allow collocations on Twilight Towers?   
81. We also seek comment on the procedural vehicle through which any solution should be 
                                                     
152 See  47 U.S.C. § 1426(c)(3) (providing that “the First Re sponder Network Authority shall enter into agreements to 
utilize, to the maximum extent economically desirable, existing (A) commercial or other communications 
infrastructure; and (B) Federal, state,  tribal, or local infrastructure”). 
153 Collocation NPA, § III. 
154  The premise of the Collocation NPA is that collocations falling within its terms are unlikely to adversely affect 
historic properties.  See  Collocation NPA, para. 8 (“Whereas, the parties hereto agree that the effects on historic 
properties of collocations of antennas on towers, buildings and structures are likely to be minimal and not 
adverse…”). 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
 30
implemented.  Would permitting collocation on Twilight Towers require either an amendment to the 
Collocation NPA or another program alternative under 36 CFR § 800.14(b)?  Is one form of program 
alternative preferable to another, and if so, why?  If we were to pursue a streamlined or other alternative 
review procedure, would that require an amendment to the Collocation NPA or other program 
alternative? 155   
82. Finally, we invite comment on whether we should take any measures, and if so what, to 
facilitate collocations on non-compliant towers constructed after March 7, 2005.  We note that unlike in 
the case of the Twilight Towers, the rules in effect when these towers were constructed explicitly required 
compliance with the review procedures set forth in the NPA.  We invite commenters to propose 
procedures, including review processes, time frames, criteria for eligibility, and other measures, to 
address any or all of these towers. 
III.  NOTICE OF INQUIRY 
83. In Sections 253 and 332(c)(7) of the Act, Congress codified its intent to streamline 
regulations that might otherwise slow down the deployment of broadband facilities, while balancing this 
goal against the long-standing and important role that State and local authorities play with respect to land-
use decisions.  In this section, we examine and seek comment on the scope of these statutory provisions 
and any new or updated guidance or determinations the Commission should provide pursuant to its 
authority under those provisions.  
84.  We start our examination with the relevant statutory terms.  Sections 253 and 332(c)(7) 
of the Act contain very similar language addressing State and local regulations.  Section 253(a) says 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 any interstate or intrastate telecommunications 
service.”156   Section 332(c)(7) generally preserves State and local governments’ “authority . . . over 
decisions regarding the placement, construction, and modification of personal wireless service 
facilities,”157 except that their “regulation of [such activities] . . . shall not prohibit or have the effect of 
prohibiting the provision of personal wireless services.”158  Section 332(c)(7) imposes additional 
limitations as well, stating that State or local regulation of facility siting “shall not unreasonably 
discriminate among providers of functionally equivalent services”; 159 that State and local governments 
must act on siting requests “within a reasonable period of time”; 160  that any decision to deny a siting 
request “shall be in writing and supported by substantial evidence contained in a written record”; 161  and 
that State and local governments may not regulate wireless facility siting based on the environmental 
effects of radiofrequency emissions.162  
A.  Intersection of Sections 253(a) and 332(c)(7)  
85. Both Section 253(a) and Section 332(c)(7) ban St ate or local regulations that “prohibit or 
                                                     
155 See 36 CFR § 800.2(a) (requiring Federal agencies to perform Section 106 review pursuant to either Subpart B of 
the ACHP’s rules or a valid program alternative). 
156  47 U.S.C. § 332(c)(7)(B)(i)(II). 
157 § 332(c)(7)(A). 
158 § 332(c)(7)(B)(i)(II). 
159 § 332(c)(7)(B)(i)(I). 
160  § 332(c)(7)(B)(ii). 
161  § 332(c)(7)(B)(iii). 
162  § 332(c)(7)(B)(iv). 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
 31
have the effect of prohibiting” service.163   Both sections also proscribe State and local restrictions that 
unreasonably discriminate among service providers.164   These sections thus appear to impose the same 
substantive obligations on State and local governments, though the remedies provided under each are 
different.  There are court decisions holding that “the legal standard is the same under either [Section 253 
or 332(c)(7)],” and that there is “nothing sugges ting that Congress intended a different meaning of the 
text ‘prohibit or have the effect of prohibiting’ in the two statutory provisions, enacted at the same time, 
in the same statute.”165   We seek comment on whether there is any reason to conclude that the substantive 
obligations of these two provisions differ, and if so in what way.  Do they apply the same standards in the 
same or similar situations?  Do they impose differe nt standards in different situations?  We invite 
commenters to explain how and why.  We also seek comment on the interaction between Sections 253 
and 332(c)(7).  For instance, if a locality exceeds its authority over access to rights of way by denying (or 
failing to act on) a wireless facility siting application in a manner that effectively prohibits the provision 
of wireless telecommunications service, does the locality violate not only Sections 253(a) and (c), but also 
Section 332(c)(7)?  Similarly, does a locality that violates Section 332(c)(7) by failing to act within a 
reasonable time also violate Section 253(a) if its failure to act effectively prohibits the provision of 
telecommunications service? 
B.  “Prohibit or Have the Effect of Prohibiting”   
86.  In interpreting the phrase “prohibit or have the effect of prohibiting,” the Commission has 
made clear that Sections 253(a) and 332(c)(7) “proscribe[ ] State and local legal requirements that 
prohibit all but one entity from providing telecommunications services in a particular State or locality” 
and that State or local government decisions to deny a siting application on the basis that one or more 
carriers other than the applicant already provides wireless service in the geographic area should be 
construed to “prohibit or have the effect of prohibiting” the provision of service.166   The Commission has 
also indicated that the relevant question in interpreting the phrase “prohibit or have the effect of 
prohibiting” is whether an action “materially inhibits or limits the ability of any competitor or potential 
competitor to compete in a fair and balanced legal and regulatory environment.”167   We seek comment on 
whether the Commission should provide further guidance on how to interpret and apply this statutory 
language, and on what interpretations it should consider.   
87. A number of courts have interpreted the phrase “prohibit or have the effect of 
prohibiting,” as it appears in both Sections 253(a) and 332(c)(7), but they have not been consistent in their 
views.  Under Section 253(a), the First, Second, and Te nth Circuits have held that a State or local legal 
requirement would be subject to preemption if it m ight have the effect of prohibiting the ability of an 
entity to provide telecommunications services,168  while the Eighth and Ninth Circuits have erected a 
higher burden and insisted that “a plaintiff suing a municipality under Section 253(a) must show actual or 
                                                     
163  §§ 253(a), 332(c)(7)(B)(i)(II). 
164  Co mpa re § 332(c)(7)(B)(i)(I) with  § 253(b) & (c) (specifying categories of State and local legal requirements that 
may be preempted unless they are “competitively neutral” and “nondiscriminatory”). 
165  Sp rin t Telephon y PCS, L.P. v. Coun ty o f San  D iego , 543 F.3d 571, 579 (9th Cir. 2008) (en banc); see also T-
M ob ile USA,  In c. v. City o f An a co r tes , 572 F.3d 987, 991-93 (9th Cir. 2009). 
166  See, e.g., Classic Telephone, Inc. , Memorandum Opinion and Order, 11 FCC Rcd 13082, 13095, para. 25 (1996); 
2 009  Declara to r y  Ru ling , 24 FCC Rcd at 14016-19, paras. 56-65. 
167  Ca lifo rn ia  Payp hone Asso cia tio n Petitio n  fo r Preemption  o f Ord in an ce No. 57 6 NS  o f the City o f Hu n tington 
Pa rk, Ca lif. , 12 FCC Rcd 14191, 14206, para. 31 (1997). 
168  Puerto Rico  Tel. Co. v. Mu n icip a lity o f Gu aya n illa , 450 F.3d 9, 18 (1st Cir. 2006); TCG New York, In c. v. City o f 
W h ite Plain s , 305 F.3d 67, 76 (2d Cir. 2002); Qwest Co rp. v. City o f S an ta Fe , 380 F.3d 1258, 1270 & n.9 (10th Cir. 
2004). 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
 32
effective prohibition, rather than the mere possibility of prohibition.”169   By the same token, different 
courts have imposed inconsistent burdens of proof to establish that localities violated Section 332(c)(7) 
by improperly denying siting application.  The First, Fourth, and Seventh Circuits have imposed a “heavy 
burden” of proof on applicants to establish a lack of alternative feasible sites, requiring them to show “not 
just that t h i s  application has been rejected but that further reasonable efforts to find another solution are 
so likely to be fruitless that it is a waste of time even to try.”170  By contrast, the Second, Third, and Ninth 
Circuits have held that an applicant must show only that its proposed facilities are the “least intrusive 
means” for filling a coverage gap in light of the aesthetic or other values that the local authority seeks to 
serve.171  We seek comment on whether we should make clear that some of these statutory interpretations 
are correct and others are not.172  We also invite parties to address whether there is some new theory 
altogether that we should consider. 
88. We also seek comment on the proper role of aesthetic considerations in the local approval 
process.  The use of aesthetic considerations is not inherently improper; many courts have held that 
municipalities may, without necessarily violating Section 332(c)(7), deny siting applications on the 
grounds that the proposed facilities would adversely affect an area’s aesthetic qualities, p r o v i ded  that such 
decisions are not founded merely on “generalized  concerns” about aesthetics but are supported by 
“substantial evidence contained in a written record”173 about the impact of specific facilities on particular 
geographic areas or communities.174   We seek comment on whether we should provide more specific 
                                                     
169  Sp rin t Telephon y PCS, L.P. v. Coun ty o f San  D iego , 543 F.3d 571, 578 (9th Cir. 2008) (en banc); Level 3 
Co mm c ’n s , L.L.C. v. City o f S t. Lou is , 477 F.3d 528, 532–33 (8th Cir. 2007). 
170 G reen Moun tain  Realty Co rp. v. Leonard , 750 F.3d 30, 40 (1st Cir. 2014); accord  New Cingular Wireless PCS, 
LLC v. Fairfa x County , 674 F.3d 270, 277 (4th Cir. 2012); T-Mo b ile Northeast LLC v. Fa irfa x Co un ty , 672 F.3d 
259, 266-68 (4th Cir. 2012) ( en ban c ); Helcher v. Dearbo rn  Co un t y , 595 F.3d 710, 723 (7th Cir. 2010). 
171 Sp rin t Spectrum, LP v. Willo th , 176 F.3d 630, 643 (2d Cir. 1999); APT  P i tts b u rgh Ltd. P’ship  v. Penn To wnsh i p , 
196 F.3d 469, 480 (3d Cir. 1999); American  To wer Co rp. v. City o f San  Diego , 763 F.3d 1035, 1056-57 (9th Cir. 
2014); T-Mob ile USA, In c. v. City o f Ana co rtes , 572 F.3d 987, 995-99 (9th Cir. 2009). 
172 Na tion a l Ca b le Telecomm’s  A s s ’n  v. Brand X  In ternet Servs. , 545 U.S. 967, 982-83 (2005) (when “Congress has 
delegated to an agency the authority to interpret a statute,” any “ambiguity [is to] be resolved . . . by the agency,” 
and a contrary “judicial precedent [doe s not] foreclose the agen cy from an interpreting an ambiguous statute.”). 
173 47 U.S.C. § 332(c)(7)(B)(iii) (“Any decision . . . to deny a request to place, construct, or modify personal 
wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.”).  
“In a number of cases, courts have overturned denials of permits [for lack of ‘substantial evidence’], finding (for 
example) that safety concerns and aesthetic objections rested upon hollow generalities and empty records.”  To wn  o f 
A mherst v. Omn ipo in t Co mmu n ic’ n s En terprises, In c. , 173 F.3d 9, 16 (1st Cir. 1999) (dictum).   
174  See, e.g., Sp rin t PCS Assets LLC v. City o f Pa lo s Verdes Esta tes , 583 F.3d 716, 725-26 (9th Cir. 2009); T-Mob ile 
USA,  I n c. v. City o f An a co r tes , 572 F.3d 987, 994-95 (9th Cir. 2009); T-Mob ile Centra l,  LLC v. Un ified Go v’t o f 
W y an do tte Coun ty , 546 F.3d 1299, 1312 (10th Cir. 2008); Cellula r Tel. Co. v. To wn  o f Oyster Ba y , 166 F.3d 490, 
494 (2d Cir. 1999); AT&T  Wireless PCS , In c. v. City o f Virginia  Beach , 155 F.3d 423, 427, 430-31 (4th Cir. 1998).  
It is also indicative – although not dispositive – that the legislative history of the Telecommunications Act of 1996 
refers to giving “localities the flexibility to treat facilities that create different v is ua l,  aesthetic , or safety concerns 
differently to the extent permitted under generally applicable zoning requirements . . . .”  S. Rep. No. 104-230, at 
208 (1996) (Conf. Rep.).  Notably, NEPA requires Federal agencies to consider the aesthetic effects of Federal 
actions, and in some cases may warrant an agency’s requiring an applicant to modify a proposed project so as to 
avoid or mitigate adverse aesthetic impacts, see 42 U.S.C. § 4331(b) (“it is the continuing responsibility of the 
Federal Government to use all practicable means… [to] assure for all Americans safe, healthful, productive and 
esthetically and culturally pleasing surroundings”); 40 CFR § 1508.8(b); Ma ryland -Na tio na l Ca p ita l Pa rk an d 
P la nn ing Comm is s ion  v. U.S. Posta l Service , 487 F.2d 1029 (D.C. Cir. 1973); and the Commission itself has applied 
aesthetic considerations in some cases involving NEPA review.  See, e.g., SBA To wers III, LLC Petitio n s to  Deny 
and Requests fo r En viro nmental Review, Copper Harbor, Mich. , 31 FCC Rcd 1755, 1765-67, paras. 38-42 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
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guidance on how to distinguish legitimate denials based on evidence of specific aesthetic impacts of 
proposed facilities, on the one hand, from mere “generalized concerns,” on the other. 
C.  “Regulations” and “Other Legal Requirements”   
89. The terms of Section 253(a) specify that a “statute,” “regulation,” or “other legal 
requirement” may be preempted,175 while the terms of Section 332(c)(7) refer to “decisions” concerning 
wireless facility siting and the “regulation” of siting.176   We seek comment on how those terms should be 
interpreted.  For instance, do the terms “statute,” “regulation,” and “legal requirement” in Section 253(a) 
have essentially the same meaning as the parallel terms “regulation” and “decisions” in Section 
332(c)(7)?  The Commission has held in the past th at the terminology in Section 253(a) quoted above 
“recognizes that State and local barriers to entry could come from sources other than statutes and 
regulations” and “was meant to capture a broad range of state and local actions” that could pose barriers 
to entry—including agreements with a single party that result in depriving other parties of access to rights 
of way.177  We believe there is a reasonable basis for concluding that the same broad interpretation should 
apply to the language of Section 332, and we seek comment on this analysis.  
90. We also seek comment on the extent to which these statutory provisions apply to States 
and localities acting in a proprietary versus regulatory capacity, and on what constitutes a proprietary 
capacity.  In the 2 0 1 4 I n f r ast r u c t u re Order , the Commission opined that the Spectrum Act and the rules 
and policies implementing it apply to localities’ actions on siting applications when acting in their 
capacities as land-use regulator s , but not when acting as managers of land or property that they own and 
operate primarily in their p r o p r ietary  roles.178  The Order cited cases indicating that Sections 253 and 
332(c)(7) do not preempt non-regulatory decisions of a State or locality acting in its proprietary 
capacity.”179  We seek comment on whether we should reaffirm or modify the 2 0 14  I n f r a s t r u c t ure 
Order ’s characterization of the distinction  between State and local governments’ regulatory roles versus 
their proprietary roles as “owners” of public resources?  How should the line be drawn in the context of 
properties such as public rights of way (e.g., highways and city streets), municipally-owned lampposts or 
water towers, or utility conduits?  Should a distinction between regulatory and proprietary be drawn on 
the basis of whether State or local actions advance those government entities’ interests as participants in a 
particular sphere of economic activity (proprietary),180 by contrast with their interests in overseeing the 
                                                     
(WTB/CIPD 2016); A T &T  M o b ile Services, In c. Con s tru c tio n o f T o wer at F o r t Ran s om , N.D. , 30 FCC Rcd 11023, 
11032, para. 28 (WTB/CIPD 2015). 
175 See 47 U.S.C. § 253(a) (“No State or local sta tu te  or regulatio n , or o ther  State or local legal requirement , may 
prohibit or have the effect of prohibiting the ability of any entity to provide any . . . telecommunications service”) 
(emphases added). 
176  See § 332(c)(7)(A) (“Except as provided in this paragrap h, nothing in this chapter shall limit or affect the 
authority of a State or local government or instrumentality thereof over decisio n s  regarding the placement, 
construction, and modification of personal wireless service facilities.”) (emphasis added); § 332(c)(7)(B)(i)(II) 
(“The regulatio n  of the placement, construction, and modification of personal wireless service facilities . . . shall not 
prohibit or have the effect of prohibiting the provision of personal wireless services”) (emphasis added). 
177 See Petitio n  o f the Sta te of Min nesota  fo r a Declara to ry Ru ling Regarding the Effect o f Sectio n 253  o n an  
Agreement to  In s ta ll F iber Op tic W ho lesale Tran sm is s ion  Ca pa c ity in  S ta te Freeway Rights-of- W a y , Memorandum 
Opinion and Order, 14 FCC Rcd 21697, 21704, para. 11 (1999) ( M in nesota  P reemption  O r der ). 
178 20 14  In fra s tructu re Order , 29 FCC Rcd at 12964-65, paras. 239-40. 
179 Id.  at 12965, para. 239 & n.646 (citations omitted). 
180 See Build ing & Co n s tr u c tion  T rades Co uncil v. Asso c ia ted Bu ilders & C o n tra c to rs  o f M a s sa c hu setts/Rho de 
Islan d,  I n c. , 507 U.S. 218 (1993) (finding Stat e agency acted in proprietary capacity, and not as a regulator, when 
establishing requirements for prospective subcontractors in context of procuring services for construction of a 
wastewater treatment project, because the actions under review were “analogous [to] private conduct” of non-
governmental parties overseeing large construction projects).   
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
 34
use of public resources (regulatory)? 181  What about requests for proposals (RFPs) or contracts involving 
state or local entities.   
91. WTB’s S t reamlini ng PN  sought comment on application processing fees and charges for 
the use of rights of way,182 but we are also interested in a broader set of concerns that parties may have – 
whether fee-related or otherwise – relating to access to State or locality-owned or managed properties 
beyond rights of way.  For instance, do parties have concerns with the process for getting access to 
municipally-owned buildings to site antennas?  We ask that parties identify any areas of concern, and 
make specific suggestions as to how the Commission could and should address them.    
D.  Unreasonable Discrimination 
92. We seek comment on whether certain types of facially neutral criteria that some localities 
may be applying when reviewing and evaluating wireless siting applications could run afoul or Section 
253 or 332 or another provision.183  For instance, are there State or local regulations that single out 
telecom-related deployment for more burdensome treatment than non-telecom deployments that have the 
same or similar impacts on land use?  If so, whether a nd how this type of asymmetric treatment in and of 
itself violate Federal law?  
93. We also seek comment on the extent to which localities may be seeking to restrict the 
deployment of utility or communications facilities above ground and attempt to relocate electric, wireline 
telephone, and other utility lines in that area to underground conduits.  Obviously, it is impossible to 
operate wireless network facilities underground.184   Undergrounding of utility lines seems to place a 
premium on access to those facilities that remain above ground, such as municipally-owned street lights.  
Is there a particular way that Section 253 or 332(c)(7) should apply in that circumstance?  More generally, 
we seek comment on parties’ experience with undergrounding requirements, including how wireless 
facilities have been treated in communities that require undergrounding of utilities.  We also seek 
comment on whether and how the Communications Act applies in such instances.  For instance, may 
localities deny applications to construct new above-ground wireless structures in such areas, or deny 
applications to install collocated equipment on structures that may eventually be dismantled?  Could 
“undergrounding” plans “prohibit or have the effect of prohibiting” service by causing suitable sites for 
wireless antennas to become scarce?  We seek co mment on parties’ experiences with undergrounding 
generally. 
94.  Section 332(c)(7)(B)(i)(I) prohibits States and localities from unreasonably 
                                                     
181 Petitio n  o f the Sta te of Min nesota fo r a  Declara to ry Ru ling Regarding the Effect o f Sectio n 253  o n an  Agreement 
to  In s ta ll F iber Op tic W ho lesale Tran s m is s io n Capa c ity in  S ta te Freeway Rights-of-Wa y , Memorandum Opinion 
and Order, 14 FCC Rcd 21697, 21707-08, para. 18 (1999) ( M innesota Preemption  O rder ) (finding preemption 
appropriate because, “[i]n this case, Minnesota is not mere ly acquiring fiber optic capacity for its own use; it is 
providing a private party with exclusive physical access to the freeway rights-of-way[,] . . . [which] has the potential 
to adversely affect competitors that do not have similar access. Th is situa tio n is very d ifferent from a  trad itio na l 
government p ro curement o f telecomm un ica tio n s fa cilities or services .”) (emphasis added). 
182 See Streamlin ing PN.  
183 See, e.g. , 47 U.S.C. § 253(a), (c); 47 U.S.C. § 332(c)(7)(B)(i)(I). 
184  Cf. Sp r in t Telephon y P CS ,  L.P. v. Coun ty  o f Sa n D iego , 543 F.3d at 580 (“If an ordinance required, for instance, 
that all facilities be  underground and the plaintiff introduced evidence that, to operate, wireless facilities must be 
above ground, the ordinance would effectively prohibit it from providing services.”); Cox Com mu n ic’ ns PCS, L.P. v. 
City o f Sa n Marco s , 204 F. Supp. 2d 1260, 1269 (S.D. Cal. 2002) (holding that alleged discrimination caused by city 
ordinance that treated gas utility more favorably than wireless carrier was not un reasonab le , because “the gas 
company installs most of its facilities underground, which impacts the City’s zo ning and visual concerns differently 
than above-ground facilities”). 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
 35
discriminating among providers of “functionally equivalent services.”185  We seek comment on whether 
parties have encountered such discrimination, and ask that they provide specific examples.  We also seek 
comment on what constitutes “functionally equivalent services” for this purpose.  For instance, should 
entities that are considered to be utilities be viewed as an appropriate comparison?  For the limited 
purpose of applying Section 332(c)(7)(B)(i)(I), can  wireless and wireline services be considered 
“functionally equivalent” in some circumstances?  Which types of discrimination are reasonable and 
which are unreasonable? 
IV.  PROCEDURAL MATTERS 
A.  Initial Regulatory Flexibility Analysis 
95. Pursuant to the Regulatory Flexibility Act (RFA),186  the Commission has prepared an 
Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small 
entities of the policies and actions considered in this NPRM.  The IRFA is set forth in the Appendix.  
Written public comments are requested on this IRFA.  Comments must be identified as responses to the 
IRFA and must be filed by the deadlines for comments on the NPRM.  The Commission’s Consumer and 
Governmental Affairs Bureau, Reference In formation Center, will send a copy of the NPRM, including 
the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). 187 
B.  Initial Paperwork Reduction Act Analysis 
96.  This document contains proposed modified information collection requirements. The 
Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and 
the Office of Management and Budget (“OMB”) to comment on the information collection requirements 
contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13.  In 
addition, pursuant to the Small Business Pape rwork Relief Act of 2002, Public Law 107-198, see 44 
U.S.C. § 3506(c)(4), we seek specific comment on how we might further reduce the information 
collection burden for small business concerns with fewer than 25 employees. 
C.  Other Procedural Matters 
1.  Ex Parte Rules – Permit-but-Disclose 
97. This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with 
the Commission’s ex parte rules.188  Persons making ex parte presentations must file a copy of any written 
presentation or a memorandum summarizing any oral presentation within two business days after the 
presentation (unless a different deadline applicable to the Sunshine period applies).  Persons making oral 
ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all 
persons attending or otherwise participating in the meeting at which the ex parte presentation was made, 
and (2) summarize all data presented and arguments made during the presentation.  If the presentation 
consisted in whole or in part of the presentation of data or arguments already reflected in the presenter’s 
written comments, memoranda or other filings in the proceeding, the presenter may provide citations to 
such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant 
page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them 
in the memorandum.  Documents shown or given to Commission staff during ex parte meetings are 
deemed to be written ex parte  presentations and must be filed consistent with Rule 1.1206(b).  In 
proceedings governed by Rule 1.49(f) or for whic h the Commission has made available a method of 
electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, 
and all attachments thereto, must be filed through the electronic comment filing system available for that 
                                                     
185 See 47 U.S.C. § 332(c)(7)(B)(i)(I). 
186  See  5 U.S.C. § 603. 
187 See 5 U.S.C. § 603(a). 
188 47 CFR § 1.1200 et seq. 
 Federal Communications Commission FCC-CIRC1704-03    
 36
proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf).  Participants in 
this proceeding should familiarize themselves with the Commission’s ex parte rules. 
2 .  Comment Filing Procedures 
98. Pursuant to sections 1.415 and 1.419 of the Commission’s rules, 47 CFR §§ 1.415, 1.419, 
interested parties may file comments and reply comments on or before the dates indicated on the first 
page of this document.  Comments may be filed using the Commission’s Electronic Comment Filing 
System (“ECFS”).  See Electroni c  F i l i ng of Do c u ments in  R u lemaking Proceedings , 63 FR 24121 (1998). 
? Electronic Filers:  Comments may be filed electronically using the Internet by accessing 
the ECFS:  http://fjallfoss.fcc.gov/ecfs2/.   
? Paper Filers:  Parties who choose to file by paper must file an original and one copy of 
each filing.  If more than one docket or rulemaking number appears in the caption of this 
proceeding, filers must submit two additional copies for each additional docket or 
rulemaking number. 
99. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or 
by first-class or overnight U.S. Postal Service mail.   All filings must be addressed to the Commission’s 
Secretary, Office of the Secretary, Federal Communications Commission. 
? All hand-delivered or messenger-delivered paper filings for the Commission’s Secretary 
must be delivered to FCC Headquarters at 445 12 th St., SW, Room TW-A325, 
Washington, DC 20554.  The filing hours are 8:00 a.m. to 7:00 p.m.  All hand deliveries 
must be held together with rubber bands or fasteners.  Any envelopes and boxes must be 
disposed of before entering the building.   
? Commercial overnight mail (other than U.S.  Postal Service Express Mail and Priority 
Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD  20743. 
? U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12 th 
Street, SW, Washington DC  20554. 
100. A v a i l a b i l i t y  o f  D o c u ments .  Comments, reply comments, and ex parte submissions will be 
publically available online via ECFS.189  These documents will also be available for public inspection 
during regular business hours in the FCC Reference Information Center, which is located in Room CY-
A257 at FCC Headquarters, 445 12th Street, SW, Wa shington, DC 20554.  The Reference Information 
Center is open to the public Monday through Thursday from 8:00 a.m. to 4:30 p.m. and Friday from 8:00 
a.m. to 11:30 a.m.  
101. People with D i s a b i l i t ies .  To request materials in accessible formats for people with 
disabilities (braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call 
the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty). 
102. A d d i t i o n a l  I n f o r m a t i o n .  For additional information on this proceeding, contact Aaron 
Goldschmidt, Aaron.Goldschmidt@fcc.gov , of the Wireless Telecommunications Bureau, Competition & 
Infrastructure Policy Division, (202) 418-7146, or David Sieradzki, David.Sieradzk@fcc.gov, of the 
Wireless Telecommunications Bureau, Competition & Infrastructure Policy Division, (202) 418-1368. 
V.  ORDERING CLAUSES 
103. Accordingly, IT IS ORDERED, pursuant to sections 1, 2, 4(i), 7, 201, 253, 301, 303, 309, 
and 332 of the Communications Act of 1934,  as amended 47 U.S.C. §§ 151, 152, 154(i), 157, 201, 253, 
301, 303, 309, and 332, Section 102(C) of the National Environmental Policy Act of 1969, as amended, 
42 U.S.C. § 4332(C), and Section 106 of the National Historic Preservation Act of 1966, as amended, 54 
                                                     
189 Documents will generally be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat. 
 Federal Communications Commission FCC-CIRC1704-03    
 37
U.S.C. § 306108, that this Notice of Proposed Ru lemaking and Notice of Inquiry IS hereby ADOPTED. 
104.  IT IS FURTHER ORDERED that the Commission’s Consumer & Governmental Affairs 
Bureau, Reference Information Center, SHALL SEND a copy of this Notice of Proposed Rulemaking, 
including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small 
Business Administration. 
FEDERAL COMMUNICATIONS COMMISSION 
 
 
 
Marlene H. Dortch 
Secretary 
 Federal Communications Commission FCC-CIRC1704-03  
*This document has been circulated for tentative consideration by the Commission at its April open meeting. The 
issues referenced in this document and the Commission’s ultimate resolution of those issues remain under 
consideration and subject to change. This document does not constitute any official action by the Commission. 
However, the Chairman has determined that, in the interest of promoting the public’s ability to understand the nature 
and scope of issues under consideration by the Commission, the public interest would be served by making this 
document publicly available.  The FCC’s ex parte  rules apply and presentations are subject to “permit-but-disclose” 
ex parte  rules.  See, e.g.,  47 C.F.R. §§ 1.1206, 1. 1200(a).  Participants in this proceeding should familiarize themselves 
with the Commission’s ex parte rules. 
APPENDIX 
Initial Regulatory Flexibility Analysis 
1. As required by the Regulatory Flexibility Act of 1980, as amended (“RFA”),1 the 
Commission has prepared an Initial Regulatory Flexibility Analysis (“IRFA”) concerning the possible 
significant economic impact on small entities of the policies and rules proposed in this Notice of 
Proposed Rulemaking (“Notice”).  Written public comments are requested on this IRFA.  Comments 
must be identified as responses to the IRFA and must be filed by the deadlines for comments provided on 
the first page of the Notice.  The Commission will send a copy of the Notice, including this IRFA, to the 
Chief Counsel for Advocacy of the Small Business Administration (“SBA”). 2  In addition, the Notice and 
IRFA (or summaries thereof) will be published in the Federal Register .3   
A. Need for, and Objectives of, the Proposed Rules 
2. In this Notice, we examine how we may further remove or reduce regulatory 
impediments to wireless infrastructure investment and deployment in order to promote the rapid 
deployment of advanced mobile broadband service to all Americans.  First, the Notice seeks comment on 
certain measures or clarifications to expedite State and local processing of wireless facility siting 
applications pursuant to our authority under 332 of the Communications Act, including a “deemed 
granted” remedy in cases of unreasonable delay.  Next, we undertake a comprehensive fresh look at our 
rules and procedures implementing the National Environmental Policy Act (“NEPA”) and Section 106 of 
the National Historic Preservation Act (“Section 106”) .  As part of this review, we seek comment on 
potential measures to improve or clarify the Commission’s Section 106 process, including in the area of 
fees paid to Tribal Nations in connection with their participation in the process, cases involving lack of 
response by relevant parties including affected Tribal Nations, and batched processing.  We also seek 
comment on possible additional exclusions from Section 106 review, and we reexamine the scope of our 
responsibility to review the effects of wireless facility construction under the NHPA and NEPA.  Finally, 
the Notice seeks comment on so-called “Twilight Towers,” wireless towers that were constructed during a 
time when the process for Section 106 review was unclear, that may not have completed Section 106 
review as a result, and that are therefore not currently available for collocation without first undergoing 
review.  We seek comment on various options addressing Twilight Towers, including whether to exclude 
collocations on such towers from Section 106 historic  preservation review, subject to certain exceptions, 
or alternatively subjecting collocations on Twilight Towers to a streamlined, time-limited review.  We 
expect the measures on which we seek comment in this NPRM to be only a part of our efforts to expedite 
wireless infrastructure deployment and we invite commenters to propose other innovative approaches to 
expediting deployment.   
B. Legal Basis 
3. The authority for the actions taken in this Notice is contained in Sections 1, 2, 4(i), 7, 
201, 253, 301, 303, 309, and 332 of the Communications Act of 1934, as amended 47 U.S.C. §§ 151, 152, 
                                                     
1 See 5 U.S.C. § 603.  The RFA, see  5 U.S.C. §§ 601 – 612, has been amended by the Small Business Regulatory 
Enforcement Fairness Act of 1996 (“SBREFA”), Pub.  L. No. 104-121, Title II, 110 Stat. 857 (1996). 
2 See  5 U.S.C. § 603(a). 
3 See  id.  
 Federal Communications Commission FCC-CIRC1704-03    
 39
154(i), 157, 201, 253, 301, 303, 309, and 332, Secti on 102(C) of the National Environmental Policy Act 
of 1969, as amended, 42 U.S.C. § 4332(C), and Sec tion 106 of the National Hi storic Preservation Act of 
1966, as amended, 54 U.S.C. § 306108. 
C. Description and Estimate of the Number of Small Entities to Which the Proposed 
Rules Will Apply 
4.  The RFA directs agencies to provide a description of, and where feasible, an estimate of the 
number of small entities that may be affected by the proposed rules and policies, if adopted.4   The RFA 
generally defines the term “small entity” as having the same meaning as the terms “small business,” “small 
organization,” and “small g overnmental jurisdiction.”5  In addition, the term “small business” has the same 
meaning as the term “small business concern” under the Small Business Act. 6   A “small business concern” 
is one which: (1) is independently owned and operated; (2 ) is not dominant in its field of operation; and (3) 
satisfies any additional criteria established by the SBA. 7  Below, we provide a description of such small 
entities, as well as an estimate of the number of such small entities, where feasible.   
5. The Notice seeks comment on potential rule changes regarding State, local, and Federal 
regulation of the siting and deployment of communications towers and other wireless facilities.  Due to 
the number and diversity of owners of such infrastructure and other responsible parties, particularly small 
entities that are Commission licensees as well as non-licensees, we classify and quantify them in the 
remainder of this section.  The Notice seeks comment on our description and estimate of the number of 
small entities that may be affected by our actions in this proceeding. 
6.  S m a l l  B u s i nesses, Sma l l  O rganizat i o n s ,  S m a l l  G o vernmental J u r i s d i c t i o n s .  Our actions, 
over time, may affect small entities that are not easily categorized at present.  We therefore describe here, 
at the outset, three comprehensive small entity size st andards that could be directly affected herein.8  First, 
while there are industry specific size standards for small businesses that are used in the regulatory 
flexibility analysis, according to data from the SBA’ s Office of Advocacy, in general a small business is 
an independent business having fewer than 500 employees.9  These types of small businesses represent 
99.9% of all businesses in the United Stat es which translates to 28.8 million businesses.10  Next, the type 
of small entity described as a “small organization” is generally “any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.”11  Nationwide, as of 2007, there were 
approximately 1,621,215 small organizations. 12  Finally, the small entity described as a “small 
                                                     
4  5 U.S.C. § 603(b)(3). 
5 5 U.S.C. § 601(6). 
6  5 U.S.C. § 601(3) (incorporating by reference the definition of “small-business concern” in the Small Business 
Act, 15 U.S.C. § 632).  Pursuant to 5 U.S.C. § 601(3), the statutory definition of a small business applies “unless an 
agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity 
for public comment, establishes one or more definitions of such term which are appropriate to the activities of the 
agency and publishes such definition(s) in the Federal Register.” 
7 15 U.S.C. § 632. Application of the statutory criteria of dominance in its field of operation and independence are 
sometimes difficult to apply in the context of broadcast television.  Accordingly, the Commission’s statistical 
account of television stations may be over-inclusive. 
8 See  5 U.S.C. § 601(3)-(6). 
9 See  SBA, Office of Advocacy, “Fre quently Asked Questions, Question 1 – What is a small business?” 
https://www.sba.gov/sites/default/files/advocacy/SB-FA Q-2016_WEB.pdf  (June 2016) 
10 See  SBA, Office of Advocacy, “Frequen tly Asked Questions, Question 2- How many small business are there in 
the U.S.?” https://www.sba.gov/sites/default/files/advocacy/SB-FAQ-2016_WEB.pdf  (June 2016). 
11 5 U.S.C. § 601(4). 
12 Independent Sector, The New Nonprofit Almanac & Desk Reference (2010). 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
 40
governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, 
school districts, or special districts, with a population of less than fifty thousand.”13  U.S. Census Bureau 
data published in 2012 indicate that there were 89,476 local governmental jurisdictions in the United 
States.14   We estimate that, of this total, as many as 88,761 entities may qualify as “small governmental 
jurisdictions.”15  Thus, we estimate that most governmental jurisdictions are small.     
7. W i reless Telecommunica t i o n s  C a r r iers (except Satellite).   This industry comprises 
establishments engaged in operating and maintaining switching and transmission facilities to provide 
communications via the airwaves.  Establishments in this industry have spectrum licenses and provide 
services using that spectrum, such as cellular services, paging services, wireless internet access, and 
wireless video services.16   The appropriate size standard under SBA rules is that such a business is small 
if it has 1,500 or fewer employees.17  For this industry, U.S. Census data for 2012 show that there were 
967 firms that operated for the entire year. 18  Of this total, 955 firms had employment of 999 or fewer 
employees and 12 had employment of 1000 employees or more.19  Thus under this category and the 
associated size standard, the Commission estimates that the majority of wireless telecommunications 
carriers (except satellite) are small entities.   
8. The Commission’s own data—available in its Universal Licensing System—indicate that, 
as of October 25, 2016, there are 280 Cellular licensee s that will be affected by our actions today.20  The 
Commission does not know how many of these licensees are small, as the Commission does not collect 
that information for these types of entities.  Similarly, according to Commission data, 413 carriers 
reported that they were engaged in the provision of wireless telephony, including cellular service, 
Personal Communications Service (PCS), and Specialized Mobile Radio (SMR) Telephony services. 21  Of 
this total, an estimated 261 have 1,500 or fewe r employees and 152 have more than 1,500 employees.22  
Thus, using available data, we estimate that the majority of wireless firms can be considered small. 
                                                     
13 5 U.S.C. § 601(5). 
14  U.S. Census Bureau, Statistical Abstract of the United States: 2012 at 267, Table 429 (2011), 
http://www2.census.gov/library/publications/2011/compendia/statab/131ed/2012-statab.pdf(citing data from 2007).  
15 The 2012 U.S. Census data for small governmental organizations are not presented based on the size of the 
population in each organization.  There were 89,476 local governmental organizations in the Census Bureau data for 
2012, which is based on 2007 data.  As a basis of estimating how many of these 89,476 local government 
organizations were small, we note th at there were a total of 715 cities and towns (incorporated places and minor 
civil divisions) with populations over 50,000 in 2011.  See U.S. Census Bureau, City and Town Totals Vintage: 
2011, http://www.census.gov/popest/data/cities/totals/2011/index.html (last visited Oct. 20, 2016).  If we subtract 
the 715 cities and towns that meet or exceed the 50,000 population threshold, we conclude that approximately 
88,761 are small.   
16  NAICS Code 517210.  See  https://factfinder.census.gov/faces/affhelp/jsf/pages/metadata.xhtml?lang=en&type= 
ib&id=ib.en./ECN.NAICS2012.517210 .   
17 13 CFR § 121.201, NAICS Code 517210. 
18 U.S. Census Bureau, Subject Series: Information, tb l. 5, “Establishment and Firm Size: Employment Size of 
Firms for the U.S.: 2012 NAICS Code 517210”. 
19 Id .  Available census data do not provide a more precise estimate of the number of firms that have employment of 
1,500 or fewer employees; the largest category provided is for firms with “100 employees or more.” 
20 See http://wireless.fcc.gov/uls.  For the purposes of this IRFA, consistent with Commission practice for wireless 
services, the Commission estimates the number of licensees based on the number of unique FCC Registration 
Numbers.   
21 See Trends in  Telephone Service  at tbl. 5.3.   
22 See id . 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
 41
9. Personal R a d i o  Services.   Personal radio services provide short-range, low-power radio 
for personal communications, radio signaling, and business communications not provided for in other 
services.  Personal radio services include services operating in spectrum licensed under Part 95 of our 
rules.23  These services include Citizen Band Radio Serv ice, General Mobile Radio Service, Radio 
Control Radio Service, Family Radio Service, Wireless Medical Telemetry Service, Medical Implant 
Communications Service, Low Power Radio Service, and Multi-Use Radio Service. 24   There are a variety 
of methods used to license the spectrum in these rule parts, from licensing by rule, to conditioning 
operation on successful completion of a required test, to site-based licensing, to geographic area licensing.  
All such entities in this category are wireless, therefore we apply the definition of Wireless 
Telecommunications Carriers (except Satellite), pursuant to which the SBA’s small entity size standard is 
defined as those entities employing 1,500 or fewer persons.25  For this industry, U.S. Census data for 2012 
show that there were 967 firms that operated for the entire year. 26   Of this total, 955 firms had 
employment of 999 or fewer employees and 12 had employment of 1000 employees or more.27  Thus 
under this category and the associated size standard , the Commission estimates that the majority of 
wireless telecommunications carriers (except satellite) are small entities.  We note that many of the 
licensees in this category are individuals and not small entities.  In addition, due to the mostly unlicensed 
and shared nature of the spectrum utilized in ma ny of these services, the Commission lacks direct 
information upon which to base an estimation of the number of small entities that may be affected by our 
actions in this proceeding. 
10. P u b l i c  S a fety Rad i o  L i censees.   Public Safety Radio Pool licensees as a general matter, 
include police, fire, local government, forestry conservation, highway maintenance, and emergency 
medical services.28  Because of the vast array of pub lic safety licensees, the Commission has not 
developed a small business size standard specifically applicable to public safety licensees.  For this 
category we apply the SBA’s definition for Wire less Telecommunications Carriers (except Satellite) 
                                                     
23 47 CFR Part 90. 
24 The Citizens Band Radio Service, General Mobile Radio Service, Radio Control Radio Service, Family Radio 
Service, Wireless Medical Telemetry Service, Medical Implant Communications Service, Low Power Radio 
Service, and Multi-Use Radio Service are governed by subpa rt D, subpart A, subpart C, subpart B, subpart H, 
subpart I, subpart G, and subpart J, respectivel y, of Part 95 of the Commission’s rules.  See generally  47 CFR Part 
95. 
25 13 CFR § 121.201, NAICS Code 517210. 
26  U.S. Census Bureau, Subject Series: Information, Ta ble 5, “Establishment and Firm Size: Employment Size of 
Firms for the U.S.: 2012 NAICS Code 517210” - 
http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2012_US_51SSSZ2&prodT
ype=table . 
27 Id .  Available census data do not provide a more precise estimate of the number of firms that have employment of 
1,500 or fewer employees; the largest category provided is for firms with “1000 employees or more.” 
28 See  subparts A and B of Part 90 of the Commission’s Rule s, 47 CFR §§ 90.1-90.22.  Po lice licensees serve state, 
county, and municipal enforcement through telephony (voice), telegraphy (code), and teletype and facsimile (printed 
material).  Fire licensees are comprised of private volunteer or professional fire companies, as well as units under 
governmental control.  Public Safety Radio Pool licensees also include state, county, or municipal entities that use 
radio for official purposes.  State departments of conservation and private forest organizations comprise forestry 
service licensees that set up communications networks among fire lookout towers and ground crews.  State and local 
governments are highway maintenance licensees that provide emergency and routine communications to aid other 
public safety services to keep main roads safe for vehicular traffic.  Emergency medical licensees use these channels 
for emergency medical service communications related to the delivery of emergency medical treatment.  Additional 
licensees include medical services, rescue organizations, veterinarians, persons with disabilities, disaster relief 
organizations, school bu ses, beach patrols, establishments in isolated areas, communications standby facilities, and 
emergency repair of public communications facilities. 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
 42
which encompasses business entities engaged in radiotelephone communications and for which the small 
entity size standard is defined as those entities employing 1,500 or fewer persons.29  For this industry, 
U.S. Census data for 2012 show that there we re 967 firms that operated for the entire year. 30  Of this total, 
955 firms had employment of 999 or fewer employees and 12 had employment of 1000 employees or 
more.31  Thus under this category and the associated size standard, the Commission estimates that the 
majority of wireless telecommunications carriers (except satellite) are small entities.  With respect to local 
governments, in particular, since many governmental entities comprise the licensees for these services, we 
include under public safety services the number of government entities affected.  According to 
Commission records, there are a total of approximately 133,870 licenses within these services.32  There 
are 2,442 licenses in the 4.9 GHz band, based on an F CC Universal Licensing System search of May 23, 
2012.33  We estimate that fewer than 2,442 public  safety radio licensees hold these licenses because 
certain entities may have multiple licenses.  
11. P r i v a te Land Mo b i le Radio L i censees .  Private land mobile radio (PLMR) systems serve 
an essential role in a vast range of industrial, business, land transportation, and public safety activities.  
These radios are used by companies of all sizes opera ting in all U.S. business categories.  Because of the 
vast array of PLMR users, the Commission has not developed a small business size standard specifically 
applicable to PLMR users.  The SBA’s definiti on for Wireless Telecommunications Carriers (except 
Satellite) which encompasses business entities engaged in radiotelephone communications and for which 
the small entity size standard is defined as those entities employing 1,500 or fewer persons.34   For this 
industry, U.S. Census data for 2012 show that ther e were 967 firms that operated for the entire year. 35  Of 
this total, 955 firms had employment of 999 or fewer employees and 12 had employment of 1000 
employees or more.36   Thus under this category and the associated size standard, the Commission 
estimates that the majority of wireless telecommunications carriers (except satellite) are small entities.  
According to the Commission’s records, there are a total of 3,374 licenses in the frequencies range 
173.225 MHz to 173.375 MHz, which is the range affected by this NPRM. 37  The Commission does not 
                                                     
29 See  13 CFR § 121.201, NAICS code 517210. 
30 U.S. Census Bureau, Subject Series: Information, Ta ble 5, “Establishment and Firm Size: Employment Size of 
Firms for the U.S.: 2012 NAICS Code 517210” - 
http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2012_US_51SSSZ2&prodT
ype=table . 
31 Id .  Available census data do not provide a more precise estimate of the number of firms that have employment of 
1,500 or fewer employees; the largest category provided is for firms with “1000 employees or more.” 
32 This figure was derived from Commission licensing records as of June 27, 2008.  Licensing numbers change on a 
daily basis.  We do not expect this number to be significantly smaller today.  This does not indicate the number of 
licensees, as licensees may hold multiple licenses.  There is no information currently available about the number of 
public safety licensees that have less than 1,500 employees. 
33 Based on an FCC Universal Licensing Sy stem search of May 23, 2012.  Search parameters: Radio Service = PA – 
Public Safety 4940-4990 MHz Band; Authorization Type = Regular; Status = Active. 
34  See  13 CFR § 121.201, NAICS code 517210. 
35 U.S. Census Bureau, Subject Series: Information, Ta ble 5, “Establishment and Firm Size: Employment Size of 
Firms for the U.S.: 2012 NAICS Code 517210” - 
http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2012_US_51SSSZ2&prodT
ype=table . 
36  Id .  Available census data do not provide a more precise estimate of the number of firms that have employment of 
1,500 or fewer employees; the largest category provided is for firms with “1000 employees or more.” 
37 This figure was derived from Commission licensing records as of August 16, 2013.  Licensing numbers change on 
a daily basis.  We do not expect this number to be significantly smaller today.  This does not indicate the number of 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
 43
require PLMR licensees to disclose information about number of employees, and does not have 
information that could be used to determine how many PLMR licensees constitute small entities under 
this definition. The Commission however believes that a substantial number of PLMR licensees may be 
small entities despite the lack of specific information. 
12. M u l t i p le Address Systems .   Entities using Multiple Address Systems (MAS) spectrum, in 
general, fall into two categories:  (1) those using the spectrum for profit-based uses, and (2) those using 
the spectrum for private internal uses.   
13. With respect to the first category, Profit-based Spectrum use, the size standards 
established by the Commission define “small entity” for MAS licensees as an entity that has average 
annual gross revenues of less than $15 million over the three previous calendar years. 38  A “Very small 
business” is defined as an entity that, together with its affiliates, has average annual gross revenues of not 
more than $3 million over the preceding three calendar years. 39  The SBA has approved these 
definitions.40   The majority of MAS operators are licensed in bands where the Commission has 
implemented a geographic area licensing approach that requires the use of competitive bidding 
procedures to resolve mutually exclusive applications.  The Commission’s licensing database indicates 
that, as of April 16, 2010, there were a total of 11 ,653 site-based MAS station authorizations.  Of these, 
58 authorizations were associated with common carri er service.  In addition, the Commission’s licensing 
database indicates that, as of April 16, 2010, there we re a total of 3,330 Economic Area market area MAS 
authorizations. The Commission’s licensing database also indicates that, as of April 16, 2010, of the 
11,653 total MAS station authorizations, 10,773 authoriza tions were for private radio service.  In 2001, an 
auction for 5,104 MAS licenses in 176 EAs was conducted. 41   Seven winning bidders claimed status as 
small or very small businesses and won 611 licenses.  In 2005, the Commission completed an auction 
(Auction 59) of 4,226 MAS licenses in the Fixe d Microwave Services from the 928/959 and 932/941 
MHz bands.  Twenty-six winning bidders won a total of  2,323 licenses.  Of the 26 winning bidders in this 
auction, five claimed small business status and won 1,891 licenses.  
14.  With respect to the second category, Internal Private Spectrum use consists of entities that 
use, or seek to use, MAS spectrum to accommodate their own internal communications needs, MAS 
serves an essential role in a range of industrial, safety, business, and land transportation activities.  MAS 
radios are used by companies of all sizes, operating in virtually all U.S. business categories, and by all 
types of public safety entities.  For the majority of private internal users, the definition developed by the 
SBA would be more appropriate than the Commission’s  definition.  The applicable definition of small 
entity is the “Wireless Telecommunications Carriers (except satellite)” definition under the SBA rules. 42   
Under that SBA category, a business is small if it has 1,500 or fewer employees. 43   For this category, U.S. 
Census data for 2012 show that there were 967 firms that operated for the entire year. 44   Of this total, 955 
                                                     
licensees, as licensees may hold multiple licenses.  There is no information currently available about the number of 
licensees that have fewer than 1,500 employees. 
38 See  Amendment of the Commission’s Rules Regarding Multiple Address Systems, WT Docket No. 97-81, Report 
a nd  O rder , 15 FCC Rcd 11956, 12008 para. 123 (2000). 
39 Id . 
40  See  Letter from Aida Alvarez, Administrator, Small Business Administration, to Thomas Sugrue, Chief, Wireless 
Telecommunications Bureau, Federal Communications Commission, (June 4, 1999).  
41  See  “Multiple Address Systems Spectrum Auction Closes,” Public Notice , 16 FCC Rcd 21011 (2001). 
42  13 CFR § 121.201, NAICS Code 517210. 
43  Id . 
44  U.S. Census Bureau, Subject Series: Information, Ta ble 5, “Establishment and Firm Size: Employment Size of 
Firms for the United States: 2007 NAICS Code 517210” - 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
 44
firms had employment of 999 or fewer employees and 12 had employment of 1000 employees or more.45   
Thus under this category and the associated small business size standard, the Commission estimates that 
the majority of wireless telecommunications carriers (except satellite) are small entities that may be 
affected by our action.46    
15. B r o a d b a n d  Ra d i o  Service and Ed u c a t i o n a l  B r o a d b a n d  Service.   Broadband Radio 
Service systems, previously referred to as Multipoint Distribution Service (MDS) and Multichannel 
Multipoint Distribution Service (MMDS) systems, and “wireless cable,” transmit video programming to 
subscribers and provide two-way high speed data operations using the microwave frequencies of the 
Broadband Radio Service (BRS) and Educational Broa dband Service (EBS) (previously referred to as the 
Instructional Television Fixed Service (ITFS)).47  
 
16.    B R S  - In connection with the 1996 BRS auction, the Commission established a small 
business size standard as an entity that had annual aver age gross revenues of no more than $40 million in 
the previous three calendar years.48   The BRS auctions resulted in 67 successful bidders obtaining 
licensing opportunities for 493 Basic Trading Areas (BTAs).  Of the 67 auction winners, 61 met the 
definition of a small business.  BRS also includes licensees of stations authorized prior to the auction.  At 
this time, we estimate that of the 61 small business BRS auction winners, 48 remain small business 
licensees.  In addition to the 48 small businesses that  hold BTA authorizations, there are approximately 
392 incumbent BRS licensees that are considered small entities. 49   After adding the number of small 
business auction licensees to the number of incumbent licensees not already counted, we find that there 
are currently approximately 440 BRS licensees that are defined as small businesses under either the SBA 
or the Commission’s rules. 
17. In 2009, the Commission conducted Auction 86, the sale of 78 licenses in the BRS 
areas.50  The Commission offered three levels of bidding credits: (i) a bidder with attributed average 
annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three 
years (small business) received a 15 percent discount on its winning bid; (ii) a bidder with attributed 
average annual gross revenues that exceed $3 m illion and do not exceed $15 million for the preceding 
three years (very small business) received a 25 percent discount on its winning bid; and (iii) a bidder with 
attributed average annual gross revenues that do not exceed $3 million for the preceding three years 
(entrepreneur) received a 35 percent discount on its winning bid.51  Auction 86 concluded in 2009 with 
                                                     
https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2 012_US_51SSSZ5&prod
Type=table. 
45  See   Available census data do not provide a more precise estimate of the number of firms that have employment of 
1,500 or fewer employees; the largest category provided is for firms with “1000 employees or more.” 
46  See  id.   
47  Amendment o f Pa rts 21  an d 7 4 o f the Commission ’s Ru les with  Regard to  Filing Pro cedures in the Multip o in t 
D is tr ib u tion  Service and in  the Instr u c tiona l Television  F ixed Service and Im p lementatio n o f Sectio n 3 09(j ) o f the 
Commun ica tion s  Act—Competitive Bid d ing , Report and Order, 10 FCC Rcd 9589, 9593, para. 7 (1995). 
48  47 CFR § 21.961(b)(1). 
49  47 U.S.C. § 309(j).  Hundreds of stations were licen sed to incumbent MDS licensees prior to implementation of 
Section 309(j) of the Communications Act of 1934, 47 U.S.C. § 309(j).  For these pre-auction licenses, the 
applicable standard is SBA’s small business size standard of 1500 or fewer employees. 
50 Au ction  o f Broa dba nd  Rad io Service (BRS ) Licenses, S cheduled for October 27 , 20 09 , No tice and Filing 
Requirements, M in imu m Opening Bids ,  Up fr o n t P a yments, an d O ther Procedures for  Auc tio n  8 6 , Public Notice, 24 
FCC Rcd 8277 (2009). 
51 Id.  at 8296 para. 73. 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
 45
the sale of 61 licenses. 52  Of the ten winning bidders, two bidders that claimed small business status won 
4 licenses; one bidder that claimed very small busines s status won three licenses; and two bidders that 
claimed entrepreneur status won six licenses.  
18.   E B S  - The SBA’s Cable Television Distributio n Services small business size standard is 
applicable to EBS.  There are presently 2,436 EBS li censees.  All but 100 of these licenses are held by 
educational institutions.  Educational institutions are included in this analysis as small entities.53  Thus, 
we estimate that at least 2,336 licensees are small businesses.  Since 2007,  Cable Television Distribution 
Services have been defined within the broad economic census category of Wired Telecommunications 
Carriers.  Wired Telecommunications Carriers are comprised of establishments primarily engaged in 
operating and/or providing access to transmission facilities and infrastructure that they own and/or lease 
for the transmission of voice, data, text, sound, and video using wired telecommunications networks.  
Transmission facilities may be based on a single technology or a combination of technologies.54   The 
SBA’s small business size standard for this category is   all such firms having 1,500 or fewer employees.  
U.S. Census data for 2012 shows that there were 3,117 fi rms that operated that year.  Of this total, 3,083 
operated with fewer than 1,000 employees.  Thus, under this size standard, the majority of firms in this 
industry can be considered small.  To gauge small business prevalence for these cable services we must, 
however, use the most current census data for the previous category of Cable and Other Program 
Distribution and its associated size standard which was all such firms having $13.5 million or less in 
annual receipts.55  According to U.S. Census Bureau data for 2007, there were a total of 996 firms in this 
category that operated for the entire year.56   Of this total, 948 firms had annual receipts of under $10 
million, and 48 firms had receipts of $10 million or more but less than $25 million. 57  Thus, the majority 
of these firms can be considered small. 
19. L o c a t i o n  a n d  M o n i t o r i ng Service (LMS).  LMS systems use non-voice radio techniques 
to determine the location and status of mobile radio units.  For purposes of auctioning LMS licenses, the 
Commission has defined a “small business” as an entity that, together with controlling interests and 
affiliates, has average annual gross revenues for the preceding three years not to exceed $15 million. 58  A 
“very small business” is defined as an entity that, together with controlling interests and affiliates, has 
average annual gross revenues for the preceding three years not to exceed $3 million. 59  These definitions 
have been approved by the SBA. 60   An auction for LMS licenses commenced on February 23, 1999 and 
                                                     
52 A u c tion  o f B roa dba nd  R ad io Service Licenses Clo ses, Winn ing Bidders An nou n ced fo r  A u c tion  8 6,  D own  
Pa yments Due November 23 , 2 009 , Fina l Payments Du e December 8, 20 09 , Ten-Da y Petitio n  to  Deny Period , 
Public Notice, 24 FCC Rcd 13572 (2009). 
53 The term “small entity” within SBREFA  applies to small organizations (n onprofits) and to small governmental 
jurisdictions (cities, counties, towns, townships, villages, school districts, and special districts with populations of 
less than 50,000).  5 U.S.C. §§ 601(4)-(6).  We do not collect annual revenue data on EBS licensees. 
54  U.S. Census Bureau, 2012 NAICS Definitions, “517 110 Wired Telecommunications Carriers,” (partial 
definition), https://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517110&search=2012 .  
55 13 CFR § 121.201, NAICS code 517110. 
56  U.S. Census Bureau, 2007 Economic Census, Subject Se ries: Information, Receipts by Enterprise Employment 
Size for the United States:  2007, NAICS code 517510 (rel. Nov. 19, 2010). 
57 Id .   
58  Amendment of Part 90 of the Commission’s Rules to Adopt Regulations for Automatic Vehicle Monitoring 
Systems, PR Docket No. 93-61, Second  Report a nd  O rder , 13 FCC Rcd 15182, 15192 para. 20 (1998); see also  47 
CFR § 90.1103.  
59  Id . 
60   See  Letter from Aida Alvarez, Administrator, Small Business Administration to Thomas J. Sugrue, Chief, 
Wireless Telecommunications Bureau, Federal Communications Commission (Feb. 22, 1999).   
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
 46
closed on March 5, 1999.  Of the 528 licenses auctioned, 289 licenses were sold to four small businesses.   
20. Television  B r o a d c a s t i ng . This Economic Census category “comprises establishments 
primarily engaged in broadcasting images together with sound.”61   These establishments operate 
television broadcast studios and facilities for the programming and transmission of programs to the 
public.62  These establishments also produce or transmit visual programming to affiliated broadcast 
television stations, which in turn broadcast the programs to the public on a predetermined schedule.  
Programming may originate in their own studio, from an affiliated network, or from external sources.  
The SBA has created the following small business size standard for such businesses: those having $38.5 
million or less in annual receipts.63  The 2012 Economic Census reports that 751 firms in this category 
operated in that year.  Of that number, 656 had an nual receipts of $25,000,000 or less, 25 had annual 
receipts between $25,000,000 and $49,999,999 and 70 had annual receipts of $50,000,000 or more. 64   
Based on this data we therefore estimate that the majo rity of commercial television broadcasters are small 
entities under the applicable SBA size standard.  
21. The Commission has estimated the number of licensed commercial television stations to 
be 1,384. 65   Of this total, 1,264 stati ons (or about 91 percent) had revenues of $38.5 million or less, 
according to Commission staff review of the BIA Kelsey Inc. Media Access Pro Television Database 
(BIA) on February 24, 2017, and therefore these licensees qualify as small entities under the SBA 
definition.  In addition, the Commission has estimated the number of licensed noncommercial educational 
(NCE) television stations to be 394. 66  Notwithstanding, the Commission does not compile and otherwise 
does not have access to information on the revenue of NCE stations that would permit it to determine how 
many such stations would qualify as small entities. 
22. We note, however, that in assessing whether a business concern qualifies as “small” 
under the above definition, business (control) affiliations67  must be included. Our estimate, therefore 
likely overstates the number of small entities that might be affected by our action, because the revenue 
figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, 
another element of the definition of “small business” requires that an entity not be dominant in its field of 
operation. We are unable at this time to define or quantify the criteria that would establish whether a 
specific television broadcast station is dominant in its field of operation. Accordingly, the estimate of 
small businesses to which rules may apply does not exclude any television station from the definition of a 
                                                     
61  U.S. Census Bureau, 2012 NAICS Defin itions, “515120 Television Broadcasting,” https://www.census.gov/cgi-
bin/sssd/naics/naicsrch?input=515120&search=2017+NAICS+Search&search=2017 . 
62  U.S. Census Bureau, 2012 NAICS Defin itions, “515120 Television Broadcasting,” https://www.census.gov/cgi-
bin/sssd/naics/naicsrch?input=515120&search=2017+NAICS+Search&search=2017 .  
63  13 CFR § 121.201;  2012 NAICS code 515120.  
64  U.S. Census Bureau, Table No. EC1251SSSZ4, In fo rma tion : Sub ject Series - Estab lishment and  Firm Size: 
Receipts Size of Firms fo r the United States: 2012  (515120 Television Broadcasting). 
https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2 012_US_51SSSZ4&prod
Type=table . 
65  Broad cast S tatio n  To ta ls a s o f December 31 , 20 16 , Press Release (MB, rel. January 5, 2017) ( Jan ua r y 5 ,  20 17  
B r oa d ca s t S ta tio n  T o ta ls  P ress Release ), https://www.fcc.gov/document/broadcast-station-totals-december-31-2016 .    
66  J an ua r y 5,  2 01 7  B ro ad ca s t Sta tio n  T o ta ls  Press Release . 
67  “[Business concerns] are affiliates of  each other when one concern controls or has the power to control the other 
or a third party or parties controls or has the power to control both.” 13 CFR § 21.103(a)(1). 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
 47
small business on this basis and is therefore possibly over-inclusive.68   
23. R a d i o  S t a t i ons. This Economic Census category “comprises establishments primarily 
engaged in broadcasting aural programs by radio to the public.  Programming may originate in their own 
studio, from an affiliated network, or from external sources.”69   The SBA has established a small business 
size standard for this category as firms ha ving $38.5 million or less in annual receipts. 70  Economic 
Census data for 2012 shows that 2,849 radi o station firms operated during that year.71  Of that number, 
2,806 operated with annual receipts of less than $25 million per year, 17 with annual receipts between 
$25 million and $49,999, 999 million and 26 with annual receipts of $50 million or more. 72 Therefore, 
based on the SBA’s size standard the major ity of such entities are small entities.  
24.  According to Commission staff review of the BIA Publications, Inc. Master Access 
Radio Analyzer Database as of June 2, 2016, about  11,386 (or about 99.9 percent) of 11,395 commercial 
radio stations had revenues of $38.5 million or less and thus qualify as small entities under the SBA 
definition. The Commission has estimated the number of licensed commercial radio stations to be 
11,415. 73   We note, that the Commission has also estimated the number of licensed NCE radio stations to 
be 4,101. 74   Nevertheless, the Commission does not compile and otherwise does not have access to 
information on the revenue of NCE stations that would permit it to determine how many such stations 
would qualify as small entities.   
25. We also note, that in assessing whether a business entity qualifies as small under the 
above definition, business control affiliations must be included.75  The Commission’s estimate therefore 
likely overstates the number of small entities that might be affected by its action, because the revenue 
figure on which it is based does not include or aggregate revenues from affiliated companies.  In addition, 
to be determined a “small business,” an entity may not be dominant in its field of operation.76  We further 
note, that it is difficult at times to assess these criteria in the context of media entities, and the estimate of 
small businesses to which these rules may apply does not exclude any radio station from the definition of 
a small business on these basis, thus our estimate of small businesses may therefore be over-inclusive. 
26.  F M T r a n s l a t o r  S t a t i on s  an d  L o w  P o wer FM S t a t i o n s.   FM translators and Low Power FM 
Stations are classified in the category of Radio Stations and are assigned the same NAICs Code as 
licensees of radio stations.77 This U.S. industry, Radio Stati ons, comprises establishments primarily 
engaged in broadcasting aural programs by radio to the public. Programming may originate in their own 
                                                     
68  There are also 2,344 LPTV stations, including Class A stations, and 3689 TV translator stations. 68   Given the 
nature of these services, we will presume that all of these entities qualify as small entities under the above SBA 
small business size standard. 
69  https://www.census.gov/cgi-bin/sssd/naics/naicsrch?i nput=515112&search=2017+NAICS+Search&search=2017.  
70 13 CFR § 121.201, NAICS code 515112 Radio Stations. 
71  U.S. Census Bureau, Table No. EC1251SSSZ4, In forma tio n: Su b ject Series - Esta b lishment an d Firm S ize: 
Receipts Size of Firms fo r the United States: 2012  (515112 Radio Stations) 
https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2 012_US_51SSSZ4&prod
Type=table . 
72 Id.  
73 J an ua r y 5,  2 01 7  B ro ad ca s t Sta tio n  T o ta ls  Press Release .  
74  J an ua r y 5,  2 01 7  B ro ad ca s t Sta tio n  T o ta ls  Press Release .  
75 “[Business concerns] are affiliates of each other when one concern controls or has the power to control the other, 
or a third party or parties controls or has power to control both.”  13 CFR § 121.103(a)(1). 
76  13 CFR § 121.102(b). 
77  NAICS Code 515112 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
 48
studio, from an affiliated network, or from external sources. 78The SBA has established a small business 
size standard which consists of all radio stations  whose annual receipts are $38.5 million dollars or less. 79 
U.S. Census data for 2012 indicate that 2,849 radio station firms operated during that year. 80  Of that 
number, 2,806 operated with annual receipts of less than $25 million per year, 17 with annual receipts 
between $25 million and $49,999,9 99 million and 26 with annual receipts of $50 million or more. 81  
Based on U.S. Census data, we conclude that the majo rity of FM Translator Stations and Low Power FM 
Stations are small. 
27. M u l t i c h a n nel Video Dist r i b u t i o n  a n d  D a ta  Service (MVDD S ) .  MVDDS is a terrestrial 
fixed microwave service operating in the 12.2-12.7 GHz band.  The Commission adopted criteria for 
defining three groups of small businesses for purposes of determining their eligibility for special 
provisions such as bidding credits.  It defined a very small business as an entity with average annual gross 
revenues not exceeding $3 million for the preceding th ree years; a small business as an entity with 
average annual gross revenues not exceeding $15 million for the preceding three years; and an 
entrepreneur as an entity with average annual gross revenues not exceeding $40 million for the preceding 
three years.82  These definitions were approved by the SBA. 83  On January 27, 2004, the Commission 
completed an auction of 214 MVDDS licenses (Auction No . 53).  In this auction, ten winning bidders 
won a total of 192 MVDDS licenses. 84   Eight of the ten winning bidders claimed small business status 
and won 144 of the licenses.  The Commission also he ld an auction of MVDDS licenses on December 7, 
2005 (Auction 63).  Of the three winning bidders who won 22 licenses, two winning bidders, winning 21 
of the licenses, claimed small business status.85  
28. S a tellite Telecommun i c a t i o n s.  This category comprises firms “primarily engaged in 
providing telecommunications services to other establishments in the telecommunications and 
broadcasting industries by forwarding and receiving communications signals via a system of satellites or 
reselling satellite telecommunications.”86   The category has a small business size standard of $32.5 
million or less in average annual receipts, under SBA rules. 87  For this category, U.S. Census Bureau data 
                                                     
78 http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=515112&search=2007 NAICS Search 
79 13 CFR 121.201 
80  U.S. Census Bureau, Table No. EC1251SSSZ4, In forma tio n: Su b ject Series - Esta b lishment an d Firm S ize: 
Receipts Size of Firms fo r the United States: 2012  (515112 Radio Stations) 
https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2 012_US_51SSSZ4&prod
Type=table . 
81 Id.  
82 Amendment of Parts 2 and 25 of the Commission’s Rules to Permit Operation of NGSO FSS Systems Co-
Frequency with GSO and Terrestrial Systems in the Ku -Band Frequency Range; Amendment of the Commission’s 
Rules to Authorize Subsidiary Terrestrial Use of the 12 .2–12.7 GHz Band by Direct Broadcast Satellite Licensees 
and their Affiliates; and Ap plications of Broadwave US A, PDC Broadband Corporation, and Satellite Receivers, 
Ltd. to Provide A Fixed Service in the 12.2–12.7 GHz Band, ET Docket No. 98-206, Memoran dum  Op in ion  an d 
O r der and  Second  Report a nd  O r der , 17 FCC Rcd 9614, 9711 para. 252 (2002).   
83 See Letter from Hector V. Barreto, Administrator, U.S. Sm all Business Administration, to Margaret W. Wiener, 
Chief, Auctions and Industry Analysis Division, WTB, FCC (Feb. 13, 2002). 
84  See  “Multichannel Video Distribution and Data Service Spectrum Auction Closes,” Public No tice , 19 FCC Rcd 
1834 (2004).   
85 See  “Auction of Multichannel Video Distribution and Data Service Licenses Closes; Winning Bidders Announced 
for Auction No. 63,” Pu b lic No tice , 20 FCC Rcd 19807 (2005). 
86  U.S. Census Bureau, 2012 NAICS Definitio ns, “517410 Satellite Telecommunications”; 
http://www.census.gov/naics/2012/def/ND517410.HTM .  
87 13 CFR § 121.201, NAICS Code 517410. 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
 49
for 2012 show that there were a total of 333 firms that operated for the entire year.88  Of this total, 299 
firms had annual receipts of less than $25 million. 89  Consequently, we estimate that the majority of 
satellite telecommunications providers are small entities. 
29. A l l  O t her Telecommuni c a t i o n s.  The “ All Other Telecommunications” category is 
comprised of establishments that are primarily engaged in providing specialized telecommunications 
services, such as satellite tracking, communications telemetry, and radar station operation.  This industry 
also includes establishments primarily engaged in providing satellite terminal stations and associated 
facilities connected with one or more terrestrial systems and capable of transmitting telecommunications 
to, and receiving telecommunications from, satellite systems.  Establishments providing Internet services 
or voice over Internet protocol (VoIP) services vi a client-supplied telecommunications connections are 
also included in this industry.90  The SBA has developed a small business size standard for “All Other 
Telecommunications,” which consists of all such firms with gross annual receipts of $32.5 million or 
less.91  For this category, U.S. Census data for 2012 sh ow that there were 1,442 firms that operated for the 
entire year.  Of these firms, a total of 1,400 had gross annual receipts of less than $25 million. 92  Thus, a 
majority of “All Other Telecommunications” firms potentially affected by our action can be considered 
small.  
30. Fixed Mic rowave Servi ces .  Microwave services include common carrier,93 private-
operational fixed,94  and broadcast auxiliary radio services.95  They also include the Local Multipoint 
Distribution Service (LMDS), 96  the Digital Electronic Message Service (DEMS),97 the 39 GHz Service 
(39 GHz), 98 the 24 GHz Service, 99 and the Millimeter Wave Service100 where licensees can choose 
                                                     
88  U.S. Census Bureau, 20 12  Econ om ic Census o f the United Sta tes , Table EC1251SSSZ4, Information: Subject 
Series - Estab and Firm Size: R eceipts Size of Firms for the United States: 2012, NAICS Code 517410 
https://factfinder.census.gov/faces/affhelp/jsf/pages/metadata.xhtml?lan g=en&type=ib&id=ib.e n./ECN.NAICS2012.
517410 .   
89 Id.  
90 https://factfinder.census.gov/faces/affhelp/jsf/pages/metadata.xhtml?l ang=en&type=ib&id=ib.en./ECN.NAICS 
2012.517919. 
91 13 CFR § 121.201, NAICS Code 517919 
92 https://factfinder.census.gov/faces/affhelp/jsf/pages/metadata.xhtml?l ang=en&type=ib&id=ib.en./ECN.NAICS 
2012.517919. 
93 See  47 CFR Part 10, Subpart I. 
94  Persons eligible under Parts 80 and 90 of the Commission’s rules can use Private-Operational Fixed Microwave 
services.  See  47 CFR Parts 80 and 90.  Stations in this service are called operational-fixed to distinguish them from 
common carrier and public fixed stations.  Only the licensee may use the operational-fixed station, and only for 
communications related to the licensee’s commercial, industrial, or safety operations. 
95 Auxiliary Microwave Service is governed by Part 74 and Part  78 of Title 47 of the Commission’s rules.  Available 
to licensees of broadcast stations, cable operators, and to broadcast and cable network entities. Auxiliary microwave 
stations are used for relaying broadcast television signals from the studio to the transmitter, or between two points 
such as a main studio and an auxiliary studio.  The service also includes TV pickup and CARS pickup, which relay 
signals from a remote location back to the studio. 
96  See  47 CFR Part 101, Subpart L. 
97 See  47 CFR Part 101, Subpart G. 
98 See  47 CFR Part 101, Subpart N. 
99 See  id.  
100 See  47 CFR Part 101, Subpart Q. 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
 50
between common carrier and non-common carrier status.101   The SBA nor the Commission has defined a 
small business size standard for mi crowave services.  For purposes of this IRFA, the Commission will use 
the SBA’s definition applicable to Wireless Tele communications Carriers (except satellite)—i.e., an 
entity with no more than 1,500 persons is considered small.102  Under that size standard, such a business is 
small if it has 1,500 or fewer employees.103  U. S. Census Bureau data for 2012, show that there were 967 
firms in this category that operated for the entire year.  Of this total, 955 had employment of 999 or fewer, 
and 12 firms had employment of 1,000 employees or more.  Thus under this category and the associated 
small business size standard, the Commission estimates that the majority of wireless telecommunications 
carriers (except satellite) are small entities that may be affected by our proposed action.104    
31. According to Commission data in the Universal Licensing System (ULS) as of September 
22, 2015 there were approximately 61,970  common carrier fixed licensees, 62,909 private and public 
safety operational-fixed licensees, 20,349 broadcast auxiliary radio licensees, 412 LMDS licenses, 35 
DEMS licenses, 870 39 GHz licenses, and five 24 GHz  licenses, and 408 Millimeter Wave licenses in the 
microwave services.  The Commission notes that the number of firms does not necessarily track the 
number of licensees.  The Commission estimates that virtually all of the Fixed Microwave licensees 
(excluding broadcast auxiliary licensees) would qualify as small entities under the SBA definition. 
32. N o n - L i censee Owners of T o wers and O t her Infra s t r u c t u re .  Although at one time most 
communications towers were owned by the licensee using the tower to provide communications service, 
many towers are now owned by third-party businesses that do not provide communications services 
themselves but lease space on their towers to other companies that provide communications services.  The 
Commission’s rules require that any entity, including a non-licensee, proposing to construct a tower over 
200 feet in height or within the glide slope of an airport must register the tower with the Commission’s 
Antenna Structure Registration (“ASR”) system and comply with applicable rules regarding review for 
impact on the environment and historic properties. 
33. As of March 1, 2017, the ASR database includes approximately 122,157 registration 
records reflecting a ”Constructed” status and 13,987 registration records reflecting a “Granted, Not 
Constructed” status.  These figures include both towers registered to licensees and towers registered to 
non-licensee tower owners.  The Commission does not keep information from which we can easily 
determine how many of these towers are registered to non-licensees or how many non-licensees have 
registered towers.105  Regarding towers that do not require ASR registration, we do not collect 
information as to the number of such towers in use and therefore cannot estimate the number of tower 
owners that would be subject to the rules on which we seek comment.  Moreover, the SBA has not 
developed a size standard for small businesses in th e category “Tower Owners.”  Therefore, we are 
unable to determine the number of non-licensee tower owners that are small entities.  We believe, 
however, that when all entities owning 10 or fewer towers and leasing space for collocation are included, 
non-licensee tower owners number in the thousands, and that nearly all of these qualify as small 
                                                     
101 See  47 CFR §§ 101.533, 101.1017. 
102 13 CFR § 121.201, NAICS code 517210. 
103 13 CFR § 121.201, NAICS code 517210. 
104 See  U.S. Census Bureau, Subject Series: Information, Table 5, “Establishment and Firm Size: Employment Size 
of Firms for the U.S.: 2012 NAICS Code 517210” ,  
http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2012_US_51SSSZ2&prodT
ype=table .  
105 We note, however, that approximately 13,000 towers are registered to 10 cellular carriers with 1,000 or more 
employees. 
(continued….) 
 Federal Communications Commission FCC-CIRC1704-03    
 51
businesses under the SBA’s definition for “All Other Telecommunications.” 106  The SBA has developed a 
small business size standard for “All Other Telecommuni cations,” which consists of all such firms with 
gross annual receipts of $32.5 million or less. 107  For this category, U.S. Census data for 2012 show that 
there were 1,442 firms that operated for the entire year .  Of these firms, a total of 1,400 had gross annual 
receipts of less than $25 million. 108  Thus, a majority of “All Other Telecommunications” firms 
potentially affected by our action can be considered small.  In addition, there may be other non-licensee 
owners of other wireless infrastructure, including DAS and small cells, that might be affected by the 
measures on which we seek comment.  We do not have any basis for estimating the number of such non-
licensee owners that are small entities. 
D. Description of Projected Reporting,  Recordkeeping, and other Compliance 
Requirements for Small Entities  
34.  The Notice seeks comment on potential rule changes that may affect reporting, 
recordkeeping and other compliance requirements.   Specifically the Notice seeks comment on a specific 
NHPA submission process known as batching.  Currently, a streamlined process for certain facilities 
associated with building out the Positive Train Control (PTC) railroad safety system is in effect whereby 
eligible facilities may be submitted to State Historic Preservation Officers (SHPOs) and through the 
Tower Construction Notification System (TCNS) in batches instead of individually.  The Notice seeks 
comment on whether we should require SHPOs and Tribal Historic Preservation Officers (THPOs) to 
review non-PTC facilities in batched submissions as well.  If adopted, this may require modifications to 
reporting or other compliance requirements for small entities and or jurisdictions to enable such 
submissions.  We anticipate that batch rather than individual submissions will add no additional burden to 
small entities, but rather reduce the cost and delay associated with the deployment of wireless 
infrastructure.   In addition, the Notice seeks comment on whether the current Section 106 process can be 
revised in a manner that would permit applicants to self-certify their compliance with our Section 106 
process and therefore proceed once they meet our notification requirements, without requiring 
Commission involvement.  This self-certifying process may also require additional reporting or other 
compliance requirements for small entities.   Similarly, we anticipate that a self-certification process will 
reduce the cost and delay associated with the deployment of wireless infrastructure for small entities by 
expediting the current Section 106 process.   
E. Steps Taken to Minimize Significant Economic Impact on Small Entities and 
Significant Alternatives Considered 
35. The RFA requires an agency to describe any significant alternatives that it has considered 
in developing its approach, which may include the following four alternatives (among others):  (1) the 
establishment of differing compliance or reporting requirements or timetables that take into account the 
resources available to small entities; (2) the clarificati on, consolidation, or simplification of compliance or 
reporting requirements under the rule for small entities;  (3) the use of performance, rather than design, 
standards; and (4) an exemption from coverage of  the rule, or any part thereof, for small entities.109 
36.  In this proceeding, the Commission seeks to examine regulatory impediments to wireless 
infrastructure investment and deployment, and how we may remove or reduce such impediments 
consistent with the law and the public interest.  We anticipate that the steps on which the Notice seeks 
comment will help reduce burdens on small entities that may need to deploy wireless infrastructure by 
                                                     
106  13 CFR § 121.201, NAICS Code 517919.  Under this category, a business is small if it has $32.5 million or less 
in annual receipts.  
107 13 CFR § 121.201, NAICS Code 517919 
108 https://factfinder.census.gov/faces/affhelp/jsf/pages/metadata.xhtml?l ang=en&type=ib&id=ib.en./ECN.NAICS 
2012.517919. 
109 See  5 U.S.C. § 603(c). 
 Federal Communications Commission FCC-CIRC1704-03    
 52
reducing the cost and delay associated with the deployment of such infrastructure.  As discussed below, 
however, certain proposals may impose regulatory compliance costs on small jurisdictions. 
37. The Notice seeks comment on potential ways to expedite wireless facility deployment.  
First, it seeks comment on certain measures or clarifications to expedite State and local processing of 
wireless facility siting applications pursuant to our authority under Section 332 of the Communications 
Act.  Specifically, the Notice proposes to adopt one or more of three mechanisms for implementing a 
“deemed granted” remedy for State and local agencies’ failure to satisfy their obligations under Section 
332(c)(7)(B)(ii) to act on applications outside the context of the Spectrum Act, including irrebuttable 
presumption, lapse of State and local governments’ authority, and a preemption rule.  The Notice also 
seeks comment on how to quantify a “reasonable period of time” within which to act on siting 
applications. Specifically, the Notice asks commenters to discuss whether the Commission should 
consider adopting different time frames for review of facility deployments not covered by Section 6409 of 
the Spectrum Act, by identifying more narrowly defined classes of deployments and distinct reasonable 
time frames to govern such classes.  The Notice also seeks comment on what time periods would be 
reasonable (outside the Spectrum Act context) for any new categories of applications, and on what factors 
the Commission should consider in making such a decision. The Notice also seeks comment on whether 
the Commission should provide further guidance to address situations in which it is not clear when the 
shot clock should start running, or in which States and localities on one hand, and industry on the other, 
disagree on when the time for processing an application begins, and on whether there are additional steps 
that should be considered to ensure that a deemed granted remedy achieves its purpose of expediting 
review.   
38. In addition, the Notice seeks comment on Moratoria.  The Commission clarified in the 
2014 Infrastructure Order that the shot clock deadline applicable to each application “runs regardless of 
any moratorium.”110  The Notice asks commenters to submit specific information about whether some 
localities are continuing to impose moratoria or other restrictions on the filing or processing of wireless 
siting applications, including identification of the specific entities engaging in such actions and 
description of the effect of such restrictions on parties’ ability to deploy network facilities and provide 
service to consumers.  The Notices also proposes to take any additional actions necessary, such as issuing 
an order or declaratory ruling providing more specific clarifications of the moratorium ban or preempting 
specific State or local moratoria.  The proposed measures should reduce existing regulatory costs for 
small entities that construct or deploy wireless infrastructure. We invite commenters to discuss the 
economic impact of any of these proposed measures on small entities, including small jurisdictions, and 
on any alternatives that would reduce the economic impact on such entities. 
39. Second, the Notice undertakes a fresh look at our rules and procedures implementing 
NEPA and the NHPA as they relate to our implementation of Title III of the Act in the context of wireless 
infrastructure deployment.  The Notice seeks comment on potential measures in several areas that could 
improve the efficiency of our review under the NHPA and NEPA, including in the areas of fees, 
addressing delays, and batched processing. Specifically, the Notice seeks comment on the costs, benefits, 
and time requirements associated with the historic preservation review process under Section 106 of the 
NHPA, including SHPO and Tribal Nation review, as well as on the costs and relative benefits of the 
Commission’s NEPA rules.  The Notice also seeks comment on potential process reforms regarding 
Tribal Fees, including fee amounts, when fees are requested, the legal framework of potential fee 
schedules, the delineation of Tribal Nation’s geographic area of interest, and on potential remedies, 
dispute resolution, and possible negotiated alternatives.  
40.  The Notice then seeks comment on other possible reforms to our NHPA process that may 
make it faster, including time limits and self-certification when no response to a Section 106 submission 
is provided, on whether we should require SHPOs and THPOs to review non-PTC facilities in batched 
submissions, and if so, how such a process should work and what sort of facilities would be eligible, and 
                                                     
110 20 14  In fra s tructu re Order , 29 FCC Rcd at 12971, para. 265. 
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finally, whether there are additional procedural changes that we should consider to improve the Section 
106 review process in a manner that does not compromise its integrity. 
41.  Further, the Notice seeks comment on ways to improve and further streamline our 
environmental compliance regulations while ensuring we meet our NEPA obligations.  Toward that end, 
the Notice seeks comment on whether to revise the Commission’s rules so that an EA is not required for 
siting in a floodplain when appropriate engineering or mitigation requirements have been met and on 
whether to expand the categories of undertakings that are excluded from Section 106 review, to include 
pole replacements, deployments in rights-of-way, and collocations based on their minimal potential to 
adversely affect historic properties.  The Notice also seeks comment on whether we should revisit the 
Commission’s interpretation of the scope of our responsibility to review the effects of wireless facility 
construction under the NHPA and NEPA.  These potential changes to our rules and procedures 
implementing NEPA and the NHPA would reduce environmental compliance costs on entities that 
construct or deploy wireless infrastructure.  These potential revisions are likely to provide an even greater 
benefit for small entities that may not have the compliance resources and economies of scale of larger 
entities. We invite comment on ways in which the Commission can achieve its goals, but at the same time 
further reduce the burdens on small entities.  
42.  Third, the Notice seeks comment on steps the Commission should take to develop a 
definitive solution for the Twilight Towers issue that will allow Twilight Towers to be used for 
collocations while respecting the integrity of the Section 106 process.  Fac ilitating collocations on these 
towers will serve the public interest by making additional infrastructure available for wireless broadband 
services and the FirstNet public safety broadband network111, as well as reduce the need for new towers, 
lessening the impact of new construction on the environment and on locations with historical and cultural 
significance, thereby reducing the associated regulatory burden, particularly the burden on small entities. 
43.  In particular, the Notice seeks comment on whether to treat collocations on towers built 
between March 16, 2001 a nd March 7, 2005 that did not go through Section 106 historic preservation 
review in the same manner as collocations on towers built prior to March 16, 2001 that did not go through 
review.  Under this approach, collocations on such towers would generally be excluded from Section 106 
historic preservation review, subject to the same exceptions that currently apply for collocations on 
towers built on or prior to March 16, 2001.  We seek comment on whether allowing collocations without 
individual Section 106 review in these circumstances would rapidly make available a significant amount 
of additional infrastructure to support wireless broadband deployment without adverse impacts.  The 
Notice also seeks comment on any alternative approaches and on the procedural vehicle through which 
any solution should be implemented.  Finally, the Notice invites comment on what measures, if any, 
should be taken to facilitate collocations on non-compliant towers constructed after March 7, 2005, 
including whether we should pursue an alternative review process, or any other alternative approach, for 
any or all of these towers.  These proposals would reduce the environmental compliance costs associated 
with collocations, especially for small entities that have limited financial resources.  We invite 
commenters to discuss the economic impact of any of the proposals for the solution to the Twilight 
Towers issue on small entities, including small jurisdictions, and on any alternatives that would reduce 
the economic impact on such entities.   
44.  For the options discussed in this Notice, we seek comment on the effect or burden of the 
prospective regulation on small entities, including small jurisdictions, the extent to which the regulation 
would relieve burdens on small entities, and whether there are any alternatives the Commission could 
implement that could achieve the Commission’s goals while at the same time minimizing or further 
reducing the burdens on small entities.   
                                                     
111 See  Middle Class Tax Relief and Job Creation Act of 2012 (Spectrum Act), 47 U.S.C. § 1426 (c)(3) providing 
that “the First Responder Network Authority shall enter into agreements to utilize, to the maximum extent 
economically desirable, existing (A) commercial or other communications infrastructure; and (B) Federal, state, 
tribal, or local infrastructure.” 
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F. Federal Rules that May Duplicate, Overlap, or Conflict with the Proposed Rules 
45.  None.