FCC Sets March 22 Vote on Wireless Infrastructure Streamlining Order Revising Historic Preservation & Environmental Review Procedures

In early March, the Federal Communications Commission (FCC) released a Wireless Infrastructure Streamlining Report and Order (Order) that seeks to streamline federal historic and environmental review procedures that apply to wireless infrastructure deployment. The Order has three key aims:

• Amending FCC rules to clarify that the deployment of small wireless facilities by private parties is neither a “federal undertaking” within the meaning of the National Historic Preservation Act (NHPA) nor a “major federal action” under the National Environmental Policy Act (NEPA), thereby eliminating review under both statutes for such deployments. The FCC estimates this step will reduce the regulatory costs of small cell deployment by 80 percent, cut deployment times in half, and expand 5G deployments.
• For larger wireless deployments located off of tribal lands and outside reservation boundaries, updating the NHPA Section 106 tribal consultation process to address up-front fees, clarify the consultation process, and adopt a timeline within which deployments can proceed when a tribe does not respond.

• Revising the FCC’s approach on environmental reviews to impose time limits on the agency’s processing of Environmental Assessments (EAs), and clarifying that for deployments in floodplains, EAs need not be filed for deployments one foot above the base flood elevation.

The Order follows the FCC’s publication of a notice of proposed rulemaking, Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Deployment, 32 FCC Rcd 3330 (2017). The FCC will vote on the Order at its upcoming March 22 Open Meeting.

NHPA and NEPA Review Changes for Small Wireless Facilities

The Order proposes amendment of Section 1.1312 of the FCC rules to clarify that the deployment of small wireless facilities by non-Federal entities is neither an “undertaking” under the NHPA nor a “major Federal action” under NEPA. The rule change will exclude from NEPA and NHPA review requirements only facilities that are limited in both size and height. Regarding height, the revised rule will exclude wireless facilities deployed on new or existing structures that are either no taller than the greater of 50 feet (including their antennas) or no more than 10 percent taller than other structures in the area, or where the existing structure to which the small wireless facility is affixed is not extended in height by more than 10 percent as a result of the deployment. As to volumetric limitations, the Order further instructs that to qualify as a “small wireless facility,” the antenna associated with the deployment – excluding the associated equipment – must fit in an enclosure (or if the antenna is exposed, within a hypothetical enclosure) that is no more than three cubic feet in volume. In carving out this exception to FCC’s NHPA and NEPA review requirements, the Order leaves undisturbed FCC’s existing requirement that the construction and deployment of larger wireless facilities, including deployments regulated with the FCC’s antenna structure registration (ASR) system or subject to site-by-site licensing must continue to comply with environmental and historic preservation review obligations.

In support of the rule change, the Order explains that small wireless facilities meeting the definition provided in the Order are not subject to ASR requirements under Section 303(q) of the Communications Act. Further, the Order indicates that consistent with the DC Circuit’s decision in CTIA-Wireless Association v. FCC, 466 F.3d 105 (DC Cir. 2006) and prior FCC orders, the FCC has decided to amend its rules to clarify that deployments of small wireless facilities by private parties do not fall within the scope of Section 1.1312(b) of the FCC rules. Accordingly, there is no longer any cognizable federal control over such deployments for NHPA or NEPA purposes.

In supporting the conclusion that the public interest is served by clarifying that small wireless facility deployments are not subject to the requirements of Section 1.1312(b), the Order makes several findings:

(1) FCC’s rule clarification facilitates deployment of advanced wireless services and removes regulatory burdens that raise costs and slow deployment of modern infrastructure used for those services;

(2) The decision is consistent with the history of Section 1.1312;

(3) The decision is consistent with the FCC’s treatment of small wireless facility deployments in other contexts;

(4) FCC currently does not subject many types of wireless facilities to environmental and historic preservation compliance procedures; and

(5) The costs of conducting NHPA and NEPA review in the context of small wireless facilities outweigh any attendant benefits given the significant burden that such review imposes on small facility deployment and little environmental and historic preservation benefits.

Changes for the Tribal Consultation Process

I. Timeline for Tribal Responses

The Order also takes aim at streamlining NHPA and NEPA review processes for larger wireless facilities. This effort includes several changes to tribal government and Native Hawaiian Organization (NHO) (generally referred to as “tribe” below) participation in the NHPA Section 106 review process:

• To address concerns with receiving insufficient information to identify potentially affected historic properties, the Order clarifies that applicants must provide all potentially affected tribes with a Form 620 (new towers) or Form 621 (collocations) submission packet in cases where the form is prepared for a State Historic Preservation Office (SHPO) following the requirements established under the National Programmatic Agreement (NPA). While applicants retain the option of sending an initial notification of a proposed project to tribes through the FCC’s Tower Construction Notification System (TCNS) without a Form 620/621, the time period for a tribal response will now not begin to run until an applicant submits to the tribe the Form 620/621 packet (or the alternative submission required by the Order when no Form 620/621 is required).
  • The Order emphasizes the need to accurately and fully complete the Form 620/621 submission packet. If the packet is not complete, the FCC will not consider the time period for a tribal response to have started.

• The Order concludes that providing a Form 620/621 submission packet with complete information constitutes a reasonable and good faith effort to provide the information reasonably necessary for tribes to determine whether historic properties of religious and cultural significance could be affected by the applicant’s undertaking. To the extent information needed to make that determination exceeds what is required under the Wireless Facilities NPA to be included in a Form 620/621 submission, the FCC will now require the applicant to provide it only after a tribe has become a consulting party and indicates that a historic property may be affected. 

• To the extent a tribe conditions its response to an application on the receipt of information beyond what is required by Form 620/621, the Order instructs that an applicant inform the tribe that the FCC does not require the applicant to provide such information. A tribe’s subsequent failure to indicate concerns about impacts of proposed construction on a historic property of cultural or religious significance will be subject to the process set out by the Order for addressing those instances when a tribe does not initially respond to an application (described below).
• In situations when a Form 620/621 packet is not required because the construction does not require SHPO review, the Order instructs applicants to provide tribes with information adequate to fully explain the project and location. In expressly declining to require applicants in these circumstances to provide tribes with all information contained in a Form 620/621, the Order indicates that at a minimum, the applicant must include its contact information, a map of the proposed location of the facility, coordinates of the proposed facility, and a description of the proposed site, including photographs.
• On applicable timeframes to raise concerns about potentially affected historic properties, the Order clarifies that the 30-day period for a tribal response provided in the Wireless Facilities NPA does not begin to run until the date that the tribe can be shown to have received (or reasonably expected to have received) the Form 620/621 submission (or alternative submission where no Form 620/621 is required). 
• The Order replaces procedures outlined in the 2005 FCC Declaratory Ruling, Clarification of Procedures for Participating of Federally Recognized Indian Tribes and Native Hawaiian Organizations Under the Nationwide Programmatic Agreement, to establish a 45-day process for moving forward with construction when tribes do not respond after having been given the opportunity to review a Form 620/621 submission (or alternative submission when Form 620/621 is not required). When an applicant does not receive a response within 30 calendar days of the date the tribe is shown to have received (or may reasonably be expected have received) notice that a Form 620/621 submission is available for review, the applicant can refer the matter to the FCC for follow up. Upon referral, the FCC will contact the tribe’s designated cultural resource representative to request that the tribe inform the FCC and applicant within 15 calendar days of whether the tribe is interested in participating in Section 106 review. If the tribe does not respond within 15 calendar days, the applicant’s pre-construction obligations are discharged with respect to the non-responsive tribe.
  • This process replaces a 60-day process set out in the 2005 Declaratory Ruling for resolving cases where a tribe fails to provide a timely response to an initial notification.

II. Tribal Fees

The Order also clarifies that applicants are not required to pay fees requested by tribes that have been invited to participate in the Section 106 process, as well as the circumstances under which an applicant may be required to retain a qualified expert to perform consultant services for which the expert can reasonably expect to be compensated.

• The Order provides guidance on “up-front fees” after hearing concerns that some tribes may be requiring such payments before they will respond to an applicant’s contact about a proposed undertaking’s potential impacts on an area that may have religious or cultural significance to the tribe. The Order instructs that consistent with guidance from the Advisory Council on Historic Preservation (ACHP), applicants are not required to pay tribes fees simply for initiating the Section 106 consultative process. 
• Relying on ACHP guidance, the Order makes a distinction between fees sought for merely initiating the Section 106 process versus circumstances in which payment is reasonably expected when a tribe, much like a consultant or contractor, is asked for specific information or documentation regarding the location, nature, and condition of individual sites, or to conduct a survey. The Order notes that if a tribe conditions its response to an applicant’s contact on the receipt of up-front fees, the FCC will treat that position as a failure to respond to the applicant, and the applicant can avail itself of the 45-day process provided by the Order when a tribe fails to make a timely response.
  • In rejecting tribal comments justifying the need for up-front fees to cover actual costs associated with reviewing and commenting on commercial projects, the Order concludes that nothing in the law or applicable guidance requires the FCC or its applicants to compensate tribes for providing comments in the Section 106 process. The Order concludes that in most instances, tribes should have sufficient information to provide comment on an undertaking and its potential to affect a historic property of significance, and that the FCC finds it reasonable to expect a tribe to rely on information already in its possession.

• In the event an applicant asks a tribe to perform work like that of a consultant or contractor such as providing specific information or documentation, or conducting surveys, the Order instructs that the applicant should expect to negotiate a fee for that work. Still, the Order makes clear that an applicant is not required to hire any particular person or entity to perform paid consultant services.

Other Reforms to the FCC’s Environmental Review Process

Other provisions in the Order make additional tweaks in efforts to streamline the FCC’s environmental compliance regulations.

• Section 1.1307(a)(6) of the FCC rules, which governs environmental assessments (EAs) of proposed facilities located in floodplains, has been modified to eliminate the need for an EA if a proposed facility meets certain engineering requirements intended to mitigate environmental effects. The Order no longer requires that applicants file an EA solely due to the location of a proposed facility in a floodplain so long as the proposed facility, including all associated equipment, is at least one foot above the base flood elevation of the floodplain. The Order reasons that by modifying this requirement, providers can increase their capacity to invest in deploying more facilities and significantly accelerate deployments.
• The Order also commits the FCC to revised timeframes for reviewing and processing EAs in order to provide greater certainty and transparency to applicants, and facilitate broadband deployment.
  • For the vast majority of cases in which an EA is complete as submitted and will support a Finding of No Significant Impact (FONSI), the FCC directs its staff to complete review and issue the FONSI within 60 days from placement on notice, either by publication of a public notice or posting on the website. In support of this change, the Order states that FCC staff currently completes review and processing of roughly 75 percent of EAs within 60 days, and that there appears to be no reason why that period for review and processing cannot be extended to all EAs that are complete as submitted, in the absence of public objections or substantive concerns.
  • In support of the 60-day FONSI issuance policy, the Order directs FCC staff to review an EA for completion and adequacy to support a FONSI within 20 days from the date it is placed on notice. If the EA is complete and would substantively support a FONSI without requiring additional information, FCC staff is to notify the applicant that barring the filing of a complaint or petition to deny, the agency will issue a FONSI within 60 days from placement on notice.
  • If an EA is missing necessary information or if FCC staff determines that it needs to consider additional information to make an informed determination, the agency will notify the applicant of the additional information needed within 30 days after the EA is placed on notice. The Order directs FCC staff to issue a FONSI, if warranted within 30 days after the missing information is provided or 60 days after the initial notice, whichever is later.
  • If the EA is missing information that could affect the public’s ability to comment on significant environmental impacts, or FCC staff identifies reasons that a proposal may have a significant environmental impact outside those the applicant is affirmatively required to consider under FCC rules, a new 60-day period for review and processing will begin upon publication of additional notice. 
  • When informal complaints or petitions to deny an application are filed against applications containing an EA, current FCC rules provide the applicant an opportunity to respond and the petitioner/objector an opportunity to reply. The Order instructs FCC staff to attempt to resolve the contested proceeding within 90 days after all pleadings have been filed or FCC receives all information requested from the applicant.