By a party line vote of 3-2 undertaken yesterday at its March open meeting, the FCC adopted a Report and Order which streamlines wireless infrastructure siting review processes in an effort to “enable the rapid and efficient deployment of next-generation wireless networks—or 5G—throughout the United States.”
Spurred to action by wireless industry officials who have long complained of high costs and cumbersome review processes associated with the installation of wireless transmission facilities on historic, tribal and protected lands, the FCC announced that its decision “will reduce regulatory impediments to deploying small cells needed for 5G and help to expand the reach of 5G for faster, more reliable wireless service.” Confirming that the FCC has conferred with officials of tribal nations and with state and local government representatives in developing the order, FCC Chairman Ajit Pai welcomed the decision as a major step forward in updating rules that had been designed “with 200-foot towers in mind [and] not the highly-densified network of small cells that will be common in the 5G world.”
Specifically, the Report and Order concludes that small wireless facilities to be deployed on non-tribal lands do not qualify as “major federal actions” or “undertakings” under the National Historic Preservation Act (NHPA) and National Environmental Policy Act (NEPA) and thus exempts such facilities from NHPA and NEPA review. Small cell deployments will continue to be subject to state and local government approval. With respect to traditional, large-cell deployments where NHPA/NEPA review is still required, the order clarifies and shortens the process for tribal-industry engagement under NHPA and specifies that carriers are not required to pay upfront fees to tribes to initiate project review. Subject to certain conditions, the order also eliminates the requirement that applicants file an Environmental Assessment (EA) for the sole purpose of locating a facility in a flood plain. For projects that would otherwise involve an EA, the order prescribes shot clocks for FCC action.
Characterizing the FCC’s current wireless infrastructure rules as “a poor fit for the 5G networks of the future,” Pai proclaimed that, “by cutting unnecessary red tape, we’ll make it substantially easier for carriers to build next-generation wireless networks.” In casting his vote for the item, FCC Commissioner Brendan Carr highlighted the ballooning costs of NHPA and NEPA review which the order aims to reduce as he lamented that “one provider spent over $23 million on NHPA review over the last two years” that “could have been used to deploy 657 new cell sites to expand service or add capacity.” FCC Commissioner Michael O’Rielly voiced “wholehearted” support for the item which, according to him, “finally [completes] an issue initiated by former Chairman Wheeler in a bipartisan fashion during the previous Commission.” Commissioner Mignon Clyburn countered in a dissenting statement that concerns raised by tribal nations, local governments and environmental protection advocates had not been fully addressed and that recommendations by these parties and by certain members of Congress to delay the FCC’s vote had been rejected. Arguing that the decision to remove small cells from NHPA and NEPA review “has both policy and legal frailties,” Commissioner Jessica Rosenworcel emphasized in her dissent: “our work deserves a delay so we can fix these deficiencies.”