Update: the FCC decision described in these two articles was reversed by the U.S. Court of Appeals for the D.C. Circuit in August 2019. The Court summarized its conclusion as:
We grant in part the petitions for review because the Order does not justify the Commission’s determination that it was not in the public interest to require review of small cell deployments. In particular, the Commission failed to justify its confidence that small cell deployments pose little to no cognizable religious, cultural, or environmental risk, particularly given the vast number of proposed deployments and the reality that the Order will principally affect small cells that require new construction. The Commission accordingly did not, pursuant to its public interest authority, 47 U.S.C. § 319(d), adequately address possible harms of deregulation and benefits of environmental and historic-preservation review. The Order’s deregulation of small cells is thus arbitrary and capricious.
Accordingly, the changes to the FCC Rules described in these articles have not gone into effect.
FCC Exempts Wireless Small Cells from Environmental Review Requirements
A high FCC priority is to streamline broadband deployment including the wireless infrastructure necessary to provide service to the public. One FCC proceeding directed to that objective was initiated in April 2017 with a Notice of Proposed Rulemaking (NPRM), Notice of Inquiry (NOI), and Request for Comment (RFC) regarding Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment.
The NPRM addressed Pole Attachments, Expediting Copper Retirement, and Streamlining the Section 214(a) Discontinuation of Service process. The NOI addressed possible prohibition of state and local laws inhibiting broadband deployment and pre-emption of state laws governing copper retirement. The RFC addressed common carrier discontinuation of service issues unrelated to wireless infrastructure and the environmental review process.
In November 2017 the FCC adopted a (first) Report and Order (R&O). It concluded that in specified circumstances “replacement of a pole that was constructed with a sole or primary purpose other than supporting communications antennas with a pole that will support such antennas would have no potential to affect historic properties.” Accordingly, it excluded replacement utility poles from required review under Section 206 of the National Historic Preservation Act (NHPA) if specified conditions are met. Please see my December 5, 2017 blog entry “Is the Road to 5G Paved with Federal and State Pre-emptions of Local Authority?” for a summary of those conditions.
In March 2018, the FCC adopted a Second R&O. In it, the FCC excluded small wireless facilities from National Historic Preservation Act (NPHA) and National Environmental Policy Act (NEPA) review under specified circumstances and also streamlined NHPA and NEPA review for larger wireless facilities. The FCC stated that these actions will make a real difference in promoting U.S. leadership in 5G and can cut the costs of deployment by 80%, trim months off deployment timelines, and incentivize thousands of new wireless deployments thus expanding the reach of 5G and other advanced wireless technologies in the U.S.
The FCC concluded that deployment of small wireless facilities by non-Federal entities do not require historic preservation review under NHPA nor environmental review under NEPA because such deployments are neither an “undertaking” (NHPA) nor a “major Federal action” (NEPA). The Second R&O noted that the FCC last considered whether some wireless facilities could be exempt from these requirements in 2004 when virtually all wireless sites were “macro” sites, but that new small cell sites are materially different in size and in their likelihood of impact on surrounding areas. The FCC concluded that conducting such reviews for small wireless sites would result in costs far exceeding benefits and that the burden would grow exponentially as ever-increasing numbers of small wireless facilities are deployed.
Here is the newly amended FCC rule that specifies the conditions for exclusion from NHPA and NEPA review for small wireless facilities:
Section 1.1312(e): Paragraphs (a) through (d) of this section shall not apply:
- to the construction of mobile stations; or
- where the deployment of facilities meets the following conditions:
(i) The facilities are mounted on structures 50 feet or less in height including their antennas as defined in § 1.1320(d), or the facilities are mounted on structures no more than 10 percent taller than other adjacent structures, or the facilities do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater;
(ii) Each antenna associated with the deployment, excluding the associated equipment (as defined in the definition of antenna in § 1.1320(d)), is no more than three cubic feet in volume;
(iii) All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume;
(iv) The facilities do not require antenna structure registration under Part 17 of this chapter;
(v) The facilities are not located on Tribal lands, as defined under 36 CFR § 800.16(x); and
(vi) The facilities do not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in § 1.1307(b).
These changes were adopted by the FCC on a 3-2 vote. The changes go into effect on July 2, 2018.
Part 2 will address the actions of the FCC to streamline its environmental review process for larger wireless facilities.