FCC Approves Wireless Infrastructure Order That Excludes Small Wireless Facilities From NHPA and NEPA Review

Davis Wright Tremaine LLP

On March 30, 2018, the Federal Communications Commission (FCC) released an order designed to eliminate regulatory barriers for small cell deployments and modernize the regulatory reviews under the National Historic Preservation Act (NHPA) and the National Environmental Policy Act of 1969 (NEPA). Specifically, the commission found that the deployment of small wireless facilities does not constitute either a “federal undertaking” within the meaning of the NHPA or a “major federal action” under NEPA, and accordingly certain federal historic preservation and environmental reviews are not required.

The exclusion is limited to those facilities that meet the commission’s definition of small wireless facilities, which includes size limits on the deployment’s height and volumetric limits on the antenna and associated equipment. In order to be considered a small wireless facility under the commission’s definition, facilities deployed on new structures must be no taller than 50 feet or no more than 10 percent taller than surrounding structures. The volumetric limits for small wireless facilities are 3 cubic feet for the antenna and 28 cubic feet for wireless equipment associated with the antenna.

In the order, the commission underscored the need to clarify and modernize its outlook on small cell deployments and stressed the important role these deployments play in the development of 5G networks. The commission found that the large macrocell facilities historically reviewed for environmental and historic preservation compliance are materially different in size and potential impact than small wireless facilities. The commission highlighted that there were only marginal benefits to subjecting small cell facilities to NHPA and NEPA review and determined that the costs of the review and compliance created a significant barrier that did not justify the attendant delay in efficient and timely deployment of small wireless infrastructure. Large macrocell facilities continue to be subject to NHPA and NEPA review.

Additionally, the order addressed potential delays in NHPA and NEPA review with respect to macrocell reviews conducted by Tribal Nations. Industry commenters noted that there are often substantial delays and increasing fees associated with Tribal review that can significantly affect service providers’ ability to complete the review and move forward with deployment. The FCC adopted timelines for the tribal review process. The commission also further clarified that while Tribal Nations retain the right to request fees from applicants, applicants have no legal obligation to pay up-front fees when providing an opportunity for Tribal Nations and National Historic Organizations to comment on proposed facilities deployments. The applicants need only make a good faith effort to propose the deployment, which is established through the comprehensive information provided in the Form 620/621 submission packet for the NHPA and NEPA review. The order also noted that commission staff will assist with this process upon request.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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