FCC Streamlines Deployment of Small Cells, Clarifies Payment of Tribal Fees, in “Infrastructure Order”

By amending and clarifying the review processes under Section 106 of the National Historic Preservation Act (“NHPA”) and the National Environmental Policy Act (“NEPA”), the Federal Communications Commission (“FCC” or the “Commission”) continues its efforts to remove barriers to wireless infrastructure investment.  In a Second Report and Order (“Order”) released on March 30, 2018, the Commission clarified that the deployment of small wireless facilities (“Small Cells”) by non-Federal entities does not constitute a “federal undertaking” or a “major federal action” and therefore is not subject to Section 106 NHPA or NEPA review.  The Commission also removed regulatory impediments to practices associated with the Tribal Nation review process.  Specifically, the Commission modified the response timeline and clarified that applicants have no legal obligation to pay upfront fees to Tribal Nations.  Finally, the Commission amended its rules related to NEPA by committing to specific timelines for Commission review and excluding certain projects located in a floodplain from the Environmental Assessment (“EA”) requirement.

Small Cells. Section 106 of the NHPA requires historic preservation review of “federal undertakings” and NEPA mandates environmental review for “major federal actions.”  When the deployment of a wireless facility requires Commission approval it is considered a federal undertaking or major federal action. Currently, the Commission has two bases for which it considers the deployment of geographic service area licensed wireless facilities as federal undertakings and major federal actions: (1) facilities that are subject to the FCC’s antenna structure registration (“ASR”) obligations because they are over 200′ in height or are close to airports, and (2) facilities that require Commission approval under its public interest authority codified in Section 1.1312[1]of the Commission’s rules, which requires the submission of an EA prior to construction of any facility that may have a “significant environmental impact.”

Since Small Cells would not be subject to ASR obligations, Section 1.1312 of the Commission’s rules is the only possible hook for requiring Small Cells to be subject to Section 106 and NEPA review.  However, in this Order, the FCC amended Section 1.1312 to specifically exclude Small Cells.  To be excluded from Section 1.1312 review, and thus Section 106 and NEPA review, Small Cells must meet the following antenna volume, associated equipment volume and height limitations:

  • The Small Cell antenna must be no more than three (3) cubic feet in volume.
  • The wireless equipment associated with the Small Cell must be no larger than 28 cubic feet.
  • The height must either be no more than 50 feet or no more than 10 percent taller than other structures in the area.  If affixed to an existing structure, the Small Cell deployment cannot cause that structure’s height to be extended to a height of more than 50 feet or by more than 10 percent, whichever is greater.

 

Tribal Consultation Process.  Macro, or non-Small Cell, licensed wireless facilities will continue to be subject to Section 106 and NEPA review.  Section 106 requires applicants for new wireless sites to engage and consult with Tribal Nations.  Applicants may notify Tribal Nations, National Historic Officers (“NHOs”) and State Historic Preservation Officers (“SHPO”) through the FCC’s established Tower Construction Notification System (“TCNS”).  In this Order, the Commission amended the timeline for initial Tribal response and addressed the costs of Tribal review and whether upfront Tribal fees are legally required.

The Nationwide Programmatic Agreement (“NPA”) states that ordinarily Tribal Nations and NHOs should be able to respond to applicants within 30 days, but that applicants should seek guidance from the Commission if a Tribal Nation or NHO is unresponsive.  In this Order, the Commission established a 45-day process for moving forward with construction in cases where the Tribal Nation or NHO does not respond.  The Tribal response timeline will not begin to run until the applicant sends the Form 620/621 submission packet, or when the Form 620/621 is not required, when the applicant sends an alternative submission of information adequate to fully explain the project and its location.[2] If the applicant does not receive a response from the Tribal Nation or NHO within 30 calendar days of submitting the Form 620/621 or alternative submission, the applicant can refer the matter to the Commission via TCNS for follow-up.  The Commission will then promptly notify the Tribal Nation or NHO, by letter or email, and request a response within 15 calendar days.  If the Tribal Nation or NHO does not respond within 15 calendar days, the applicant may move forward with construction.  Applicants must engage Commission involvement and cannot move forward with the project unilaterally.

In its Order, the Commission clarified that applicants are not required to pay fees requested by Tribal Nations or NHOs participating in the Section 106 process.  Specifically, the Commission stated that applicants are not required to pay upfront fees to Tribal Nations or NHOs simply for initiating the Section 106 consulting process through the TCNS.  If a Tribal Nation or NHO nevertheless conditions its response to a TCNS contact on the receipt of an upfront payment, the Commission will consider that Tribal Nation’s or NHO’s request as nonresponsive and subject to the 45-day process discussed above.[3]

When expert services are required for identifying historic properties, assessing effects or mitigation, the applicant may hire any qualified consultant or contractor.  In such circumstances, the applicant may, but is not required to, hire a Tribal Nation or NHO.  The Commission emphasized that applicants are not required to hire any particular person or entity to perform paid consulting work, especially when the fees are not agreed upon.  To the contrary, the Commission stated that it “expect[s] that competition among experts qualified to perform the services that are needed will generally ensure that the fees charged are commensurate with the work performed.”[4]

Environmental Review Process.  NEPA compliance requires applicants to prepare and submit EAs if its proposed facility is located in an environmentally sensitive area or has a potentially significant environmental impact.  The Commission’s rules identify several circumstances in which a proposed facility is subject to NEPA’s EA requirement, including, but not limited to, when the facility is to be located in a designated wilderness area, wildlife preserve or a floodplain.[5]  In this Order, the Commission amended its rules to remove the EA requirement for a proposed facility that is to be located in a floodplain when the proposed facility meets certain engineering and mitigation requirements.  Specifically, the proposed facilities to be constructed on a floodplain will not require an EA if the facility and all associated equipment are constructed at least one foot above the base flood elevation.

For proposed facilities that remain subject to the EA requirement, the Commission committed to timeframes for reviewing and processing EAs.  If the EA is complete, would substantively support a Finding of No Significant Impact (“FONSI”) and receives no informal complaint or petition to deny, Commission staff will issue a FONSI within 60 days from the date that the EA is placed on public notice.  If the EA is missing information or staff determines that it needs additional information to make an informed decision, staff will notify the applicant of the additional information needed within 30 days after the EA is placed on notice. If the missing information is unlikely to affect the public’s ability to comment on the environmental impact, then the EA will not be placed on notice again and staff will complete the review and issue a FONSI, if warranted, within 30 days of receiving the missing information or 60 days after the initial notice, whichever is later.  If, however, the missing information may affect the public’s ability to comment, then the EA will again be placed on notice and a new 60-day period for Commission review and processing will begin upon the additional notice.

If you would like additional information regarding this Order or regarding current rules for tower siting and construction, please contact Greg Whiteaker (greg@hermanwhiteaker.com)  or Clare Liedquist (cliedquist@hermanwhiteaker.com).


[1]See 47 CFR § 1.1312.
[2]When a Form 620/621 is not required, the applicant must submit, at minimum, the applicant’s contact information, a map of the proposed location of the facility, coordinates of the proposed facility, a description of the proposed facility, site and all its elements (including access roads), and aerial and site photographs.
[3]A Tribal Nation or NHO may request an upfront fee and an applicant may voluntarily pay such fee.  An applicant shall not be required to pay such a fee.
[4]Order at ¶ 128.
[5]See 47 CFR §§ 1.1308, 1.1308, 1.1312.