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Federal Register / Vol. 86, No. 36 / Thursday, February 25, 2021 / Rules and Regulations
not treat service providers as antenna users, and their agreements with building owners therefore would be subject to OTARD protection only if the building owner is itself a customer.
Further, in that case, OTARD would serve to protect the antenna placement from third-party restrictions and would not limit the right of a provider and building owner customer to freely negotiate the terms of antenna placement in an area within the building owners exclusive use or control. If the provider wishes to place a device within the leasehold premises of a rooftop tenant, the placement would not intrude on the building owners property rights since the placement would be located within an area the building owner has already provided the tenant with a contractual right to occupy. In addition, fixed wireless hub and relay antenna manufacturers and service providers that use this equipment must continue to comply with other applicable Commission regulations, such as RF
emissions requirements.6
20. The Commission finds that potential economic costs of its rule change raised by commenters are both speculative and negligible. LMC claims that the installation of the new antennas contemplated in the Notice would dramatically change the aesthetic of a neighborhood and be in contrast with their established character. First, although there is no aesthetics exception under the OTARD rule, commenters have not provided factual support explaining how the Commissions update to the rule would cause these harms. Further, the Commission maintains the existing restrictions in the OTARD rule that impose limits on the dimensions and location of equipment, so the visual appearance of the hub and relay the proposed amendments would grant wireless carriers and any other entity that leases rooftop space the right to install fixed wireless equipment without paying any more in rent or amending any other lease terms. NMHC Dec. 3, 2020 Ex Parte Letter at 2. The Report and Order continues to recognize property owners rights under the OTARD
rule, and rooftop deployments remain unaffected in most circumstances.
6 Fixed wireless providers are subject to equipment authorization rules that require radio frequency RF devices to operate effectively without causing harmful interference. RF devices must be properly authorized under 47 CFR part 2
prior to being marketed or imported in the United States. Fixed wireless providers that use unlicensed spectrum are subject to Part 15 rules governing unlicensed operation. Part 15 of the Rules allows devices employing low-level RF signals to operate without individual licenses, provided that their operation causes no harmful interference to licensed services and the devices do not generate emissions or field strength levels greater than a specified limit.

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equipment and antennas are the same as those deployments already covered under the OTARD rule. Relatedly, NATOA claims that, freed from the current obligation that the antenna be used for the owner or tenant to receive services, a property owner or tenant could affix an unlimited number of antennas anywhere on its property.
That claim is misplaced, as the Commissions rule revision requires that an antenna must be deployed in a location where the customer has exclusive use or control. Moreover, the customer fixed wireless devices, including the antennas, are small, and a provider may only need a few additional units to relay the signals in different directions, if and where applicable. In addition, the Commissions revision leaves unchanged the OTARD rules exemption and waiver frameworks, which permit limiting antenna installations for specific reasons. Finally, the Commission maintains the historical preservation exception in the OTARD
rule, which limits installations of fixed wireless hubs and relays antennas under certain circumstances. In these circumstances, the Commission determines that the limited adjustment adopted here is appropriate.
21. The Commission also finds that other arguments raised by commenters are unfounded. MBC argues that any revision to the OTARD rule would cast uncertainty on tens of thousands of existing rooftop antenna leases. The Commissions revision is narrowly focused on hub and relay antennas that presently are not covered by OTARD
and, therefore, rather than disrupting commercial and residential lease transactions, it should encourage parties to negotiate more lease transactions in the future. The rule will not affect existing rooftop leases unless the antenna placement is located in an area within the exclusive use and control of a customer, in which case the parties to the placement agreement would be the provider and the customer. The OTARD
rule does not affect the providercustomer relationship; rather, it prohibits certain public and third-party restrictions on placements located at the customers premises. If a property owner is the customer, then the terms of the placement will be freely negotiable without limitation by the OTARD rule.
Similarly, contrary to Oklahoma Cities claims, it is implausible that the Commissions changes will spur such a large increase in exploitative contracts between service providers and homeowners and renters that new consumer protections are necessary,
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especially because providers might be enticed to offer consumers discounts to meet the new wording of the OTARD
rule. Local jurisdictions, however, can rely on the provisions of sections 1.4000a3 and 4 and the safety provisions of subsection b1 to protect the public as long as their rules meet the standards of these sections. Taking into consideration all of the above, the Commission finds that the clear economic benefits of the rule change outweigh the negligible, and in some cases unfounded, economic costs.
22. Legal Authority. In the Notice, the Commission proposed to rely on the legal authority the Commission originally relied on in the 2000
Competitive Networks First Report and Order in extending the application of the OTARD rule to antennas used in connection with fixed wireless services.
The Commission noted that it in 2000
assumed all hub sites were personal wireless service facilities covered by section 332c7 of the Actdefined by the Act to include only facilities that provide telecommunications servicesand therefore beyond the scope of the Commissions OTARD
provisions. The Commission indicated that this assumption no longer appeared accurate. The Commission therefore sought comment on extending relief to those relay antennas and hub sites that are not telecommunications services and/or personal wireless service facilitiesi.e., those that fall into the gap between the Commissions current OTARD provisions and the protections of sections 253 and/or 332c7 of the Act, and those that WISPA claims are needed for modern high-speed broadband wireless networks.
23. The Commission finds that modifying the OTARD rule is necessary for the effective exercise of its spectrum management authority under Title III of the Communications Act. Specifically, the Commission finds that section 303
of the Act provides authority for the Commission to modify the OTARD rule as it applies to fixed wireless devices.
24. Congress has specifically recognized that section 303 provides authority to the Commission to adopt OTARD rules. While the directive in section 207 of the 1996 Act mandated the exercise of the Commissions Title III authority only to certain kinds of video programming, section 207
directed the Commission to address such video programming using its existing authority under section 303.
Specifically, section 207 states that within 180 days after the date of enactment of this Act, the Commission shall, pursuant to section 303 of the Communications Act of 1934,
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