On March 30, the Federal Communications Commission (“Commission” or “FCC”) released a Second Report and Order (“Order”) that further clarifies and streamlines the environmental and historical review processes related to deployment of certain wireless infrastructure. The Commission intends by these actions to facilitate faster deployment of antennas for next-generation wireless networks.
The National Environmental Policy Act (“NEPA”) and the National Historic Preservation Act (“NHPA”) require reviews of the impact on the environment or historic properties, respectively, of proposed construction of wireless communications facilities. By the Order, the Commission facilitates easier deployment of certain kinds of wireless infrastructure and eliminates delays that arose from the prior NEPA/NHPA review processes. The changes to the NEPA/NHPA rules adopted by the Order:
- Clarify that deployment of small wireless facilities by non-Federal entities does not constitute a “federal undertaking” under NHPA or a “major federal action” under NEPA. As a result, neither historic preservation nor environmental review are required for small wireless facilities, meaning those that (1) are on new structures that are either no taller than 50 feet (including their antennas) or no more than 10 percent taller than other structures in the area, whichever is greater; (2) are on existing structures where the deployment does not cause that structure to extend to a height of more than 50 feet or by more than 10 percent, whichever is greater; (3) have antennas with no more than three cubic feet in volume; and (4) use wireless equipment associated with the antenna that is no larger than 28 cubic feet. Larger wireless facilities, including those regulated by the antenna structure registration system or subject to site-by-site licensing, will continue to be subject to the existing rules governing historic preservation and environmental review, with certain modifications summarized below.
- Amend the review processes under NHPA and NEPA for non-exempted, larger wireless facilities, including changes
- Requiring applicants that provide a proposed tower (Form 620) or collocation (Form 621) facility submission packet to State historic preservation offices (“SHPOs”) to also give the detailed information in the packets to all affected Tribal Nations. Applicants are not required to provide Tribal Nations information beyond what is required for the Form 620 or 621 submission packet even if a Tribal Nation tries to condition its response on the provision of additional content.
- Requiring applicants with undertakings exempted from SHPO review – meaning those deemed to have minimal to no potential to affect historic properties – to identify and contact Tribal Nations to determine whether properties of significance to them may be affected. In such communications, Applicants should also fully explain the project and its location, and include contact information, a map of the proposed facility location, facility coordinates, and a description of the facility and proposed site.
- Providing that the 30-day Tribal Nation response window begins to run once the Tribal Nation receives (or may reasonably be expected to have received) a complete submission packet. The FCC will not consider the time period for Tribal Nation response to start if the packet information is incomplete or inaccurate.
- Establishing a new procedure to address situations where Tribal Nations fail to respond to the proposed facility submission packet.
- Clarifying that applicants are not required to pay fees required by Tribal Nations as a part of the Section 106 process.
- Remove the requirement that applicants file environmental assessments (“EAs”) for a proposed facility that is in a floodplain as long as the proposed facility is at least one foot above the base flood elevation of the floodplain.
- Require FCC staff, in cases where the EA is complete when submitted (which is most cases), to review an EA and issue a finding of no significant impact (“FONSI”) within 60 days of the EA being placed on notice, either by publication of a public notice or a post on the Commission website. Staff should conduct initial review for adequacy and completeness for FONSI within 20 days from the date it is placed on notice.
This Commission action is a victory for those commercial mobile and other interests looking for rules that more swiftly allow antennas to be deployed both to densify existing networks for next generation applications, but also to facilitate build out in less densely populated areas. Proponents of 5G roll-out have regularly emphasized the need for modified regulatory frameworks that minimize the obstacles potentially standing in the way of deployment. The Order will be received as a welcome and important step in that direction.
The Order was approved on a 3-2 vote with both Democratic Commissioners, Clyburn and Rosenworcel, dissenting. These Commissioners, while generally supportive of the goal of the Order, expressed concern that the changes did not sufficiently consider the interests of local and Tribal communities and improperly interprets the coordination provisions required by NEPA and NHPA. Commissioner Clyburn stated that “the potential adverse impact of these proposed rules on Tribal Nations, historic sites, and the natural environment were severe.” Some Tribal organizations also raised objections regarding the Order. Chairman Pai, however, maintained this assessment was incorrect and that the FCC consulted “extensively with Tribal Nations, intertribal organizations, and state and local historic preservation officers” in developing the final rules. The mixed reactions suggest that some Tribal organizations may seek further Commission or judicial review.
The Order takes effect sixty (60) days after publication in the Federal Register except for those provisions which contain non-substantive modifications to existing information collection requirements which will become effective when the Commission publishes a notice in the Federal Register announcing approval by the Office of Management and Budget.