Highlighting the need for rapid infrastructure deployment to meet growing consumer data demands and support future 5G services, the Federal Communications Commission (“FCC”) unanimously adopted a Report and Order at its November 16, 2017, meeting to eliminate historic preservation review of replacement utility poles under certain conditions. The FCC’s limited action marks the first decision to come out of the much broader FCC rulemaking proceeding initiated earlier this year to foster wireless infrastructure investment and deployment. The item also consolidates the FCC’s historic preservation review requirements into a single rule to aid compliance.
The National Historic Preservation Act (“NHPA”) requires the FCC to account for the effect of any proposed “undertakings” on historic properties, including the siting of poles, including replacement poles, for communications facilities. Where undertakings are not exempt, parties must comply with detailed NHPA procedures, including consultation, information collection, and review requirements. The FCC previously exempted some pole replacements from these obligations, but it limited the exception to “towers” originally constructed for the sole or primary purpose of supporting communications antennas. By contrast, replacements for poles constructed for other purposes, such as for electric utility lines, required full NHPA review. Carriers and pole owners criticized the distinction between towers and other poles, noting that no such distinction exists for pole replacements on federal lands. However, some state historic preservation officers and Tribal authorities warned that unchecked pole construction could disturb archeological resources and other protected sites.
The new rule exempts additional pole replacements from NHPA review if they meet certain criteria:
- Not a Tower: The pole being replaced can hold utility, communications, or related transmission lines but was not originally constructed for the sole or primary purpose of supporting communications antenna.
- Proximity to Original Pole: The replacement pole must be located no more than ten feet away from the original pole. This represents a relaxation of the FCC’s original proposal, which would have required the replacement pole to be inserted in the same hole as the original pole. However, Commissioner O’Rielly explained that a replacement pole often must be constructed near the original pole while it still stands so that electric wires and other attachments can be transferred safely.
- Prohibiting New Disturbances: The replacement pole must not cause any new “ground disturbance,” although the item recognizes that most rights-of-way will have been disturbed previously by the construction of the original pole or other infrastructure.
- Restricting Extensions: The replacement pole may exceed the height of the original pole by no more than five feet or ten percent of the original pole’s height, whichever is greater.
- Preserving Aesthetics: The replacement pole must be “consistent” with the quality and appearance of the original pole. The FCC initially indicated that the replacement pole must use the same material as the original pole, but it now will allow a change in material (e.g., replacing a wooden pole with a metal pole) so long as the replacement does not result in a significant aesthetic change. The exemption also does not apply when the original pole is itself a historic property.
While exempting qualifying replacement poles from NHPA reveiw, the FCC added language requiring parties to immediately halt construction if they uncover any burial remains or other historic sites during the replacement, even if they uncover such sites on previously disturbed land.
The FCC anticipates that the additional exemption will not affect historical properties but will spur network densification with small cell facilities to meet rising consumer demand for wireless data and support next-generation 5G services. However, the FCC also recognized that significant reforms to pole siting requirements and coordination with affected stakeholders like Tribal authorities is still necessary to accelerate deployment. As a result, it remains to be seen whether the bipartisan front shown by the FCC here will hold in the face of future, more controversial, wireless infrastructure reforms to come out of the Commission’s infrastructure proceedings.
The new pole replacement exemption will take effect within 30 days of the Report and Order’s publication in the Federal Register.