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Eligible Facilities Requests Policy (City of Pleasanton) page 2 / 26 Section 1. INTRODUCTION AND BACKGROUND On February 22, 2012, Congress adopted Section 6409 of the Middle Class Tax Relief and Job Creation Act. This statute generally requires that state and local governments “may not deny, and shall approve” certain additions and modifications to existing wireless facilities that do not substantially change existing facility’s physical dimensions.1 Applications covered by this statute are deemed “eligible facilities requests.”2 On October 21, 2014, the Federal Communications Commission adopted detailed regulations to interpret and implement Section 6409.3 The FCC regulations define statutory terms, prohibit certain application requirements, limit application review periods and deem applications automatically granted when the state or local government fails to act within the applicable timeframe. In 2015, the United States Court of Appeals for the Fourth Circuit upheld the FCC’s regulations against a legal challenge by local governments.4 On June 10, 2020, the FCC adopted additional regulations purporting to clarify its rules to interpret and implement Section 6409.5 These additional regulations specified what steps an applicant must take for the shot clock to commence, modified what constitutes a substantial change to a wireless facility and clarified the circumstances under which an environmental assessment is not required. On November 3, 2020, the FCC adopted further regulations that defined wireless facility site boundaries and allowed certain additional excavation and deployment of transmission equipment beyond existing site boundaries.6 In 2024, the United States Court of Appeals for the Ninth Circuit overturned the FCC's interpretation of the term "conceal" and limited the FCC's attempt to restrict enforcement of pre-existing permitting conditions, but otherwise upheld the FCC’s interpretations that required express evidence to enforce a pre-existing permitting conditions within the Section 6409 process, gave localities less discretion as to when the Section 6409 shot clock begins, imposed no total cumulative limit on the number of additional cabinets attached to poles, and permitted greater height increases than FCC rules previously allowed.7 1 See Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. No. 112 -96, 126 Stat. 156, codified as 47 U.S.C. § 1455(a). 2 47 U.S.C. § 1455(a)(2). 3 See In re Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies , WT Docket No. 13-238, Report and Order, 30 FCC Rcd. 31 (Oct. 21, 2014); 47 C.F.R. §§ 1.6100 et seq. 4 See Montgomery Cty. v. FCC, 811 F.3d 121 (4th Cir, 2015). 5 See In re Implementation of State and Local Governments’ Obligation to Approve Certain Wireless Facility Modification Requests Under Section 6409(a) of the Spectrum Act of 2012, WT Docket No. 19-250, RM- 11849, Declaratory Ruling and Notice of Proposed Rulemaking, 35 FCC Rcd. 5977 (Jun. 10, 2020). 6 See In re Implementation of State and Local Governments’ Obligation to Approve Certain Wireless Facility Modification Requests Under Section 6409(a) of the Spectrum Act of 2012, WT Docket No. 19-250, RM- 11849 (Nov. 3, 2020); 47 C.F.R. §§ 1.6100 et seq. 7 League of California Cities v. FCC, 118 F.4th 995 (9th Cir. 2024). Docusign Envelope ID: 51CE5BDE-55F1-4B3D-8865-17E5814CF0C5