FCC Says “Nope” to NEPA and “See Ya” to SHPO

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The FCC vote yesterday to exempt most small cell infrastructure siting from National Historic Preservation Act (NHPA) and National Environmental Policy Act (NEPA) review was contentious. The vote was 3-2 and security removed two protesters from the Commission meeting room during the discussion.

The changes are for small cells not located on Tribal lands. They clarify and improve the process for Tribal participation in the historic preservation process for large wireless facilities where NHPA and NEPA review is still required. The order removes the requirement that applicants file Environmental Assessments solely due to the location of a proposed facility in a floodplain, as long as certain conditions are met. It establishes a timeframe for the FCC to act on environmental assessments.

FCC Chairman Ajit Pai, and Commissioners Michael O’Rielly and Brendan Carr said the changes will save the wireless industry time and money and help the U.S. lead in 5G. O’Rielly said they would eliminate “unnecessary delays and outrageous” siting fees. Some Tribes are using tower and antenna siting “as a cash cow” while others receive payments, but then don’t respond to the providers that are submitting applications, he said. 

Sprint paid $23 million in wireless infrastructure siting review fees last year. “This is not sustainable if we want to get broadband to all Americans, including on tribal lands,” said O’Rielly. He also wanted to provide more relief for siting macro towers, and hopes “to do that as soon as possible.”

Carr said providers spent $36 million on NHPA reviews last year, which will spike this year. “Our decision will not greenlight any particular deployment,” Carr noted, adding that siting will continue to go through state and local reviews.

Commissioner Mignon Clyburn stressed that she supports 5G, but wanted to delay the vote until the agency could further assess how the proposal might hurt tribal lands and the environment. Commissioner Jessica Rosenworcel said the changes cut out tribes from reviewing wireless facilities and the changes “do not honor” the FCC’s longstanding duties to consult with Tribes. Further, “not a single Tribe has expressed support for today’s action.” She believes the action won’t address the race to lead in 5G and will open up the agency to legal challenges.

Carr and O’Rielly said the agency spent three years on consultations with Tribes and other entities. O’Rielly emphasized the Commission “tried collaboration and cooperation” until it was “blue in the face. It’s time to move past the talking stage.”

Pai agreed, saying all of the FCC’s efforts will be “pointless” if wireless infrastructure can’t be deployed. “If siting for a small cell takes as long and costs as much as the siting for a cell tower, few communities will ever have the benefits of 5G.” He noted that the FCC’s siting rules were developed for tall towers, not the hundreds of thousands of small cells that will be needed for 5G. “You can stick with the regulatory status quo or you can have 5G. You cannot have both,” said the Chairman.

Asked by reporters after the meeting if delaying the vote until there was more consensus among the commissioners would have made a difference, Carr called the level of travel, meetings and phone calls for the item “unprecedented.”

“I don’t think waiting another couple of months would have produced a better outcome. As soon as this goes into effect, it will free up capital,” enabling carriers to deploy small cells in areas where they could not before, Carr said.

By Leslie Stimson, Washington Bureau Chief, Inside Towers

March 23, 2018      

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