FCC Sets Comment Deadlines for Notice of Proposed Rulemaking on Environmental and Historic Review Processes for Small Cell and Distributed Antenna Systems

by Dorsey & Whitney LLP

The Federal Communications Commission (“FCC” or “Commission”) recently released a Public Notice1 setting comment deadlines for its September 26, 2013 Notice of Proposed Rulemaking (“NPRM”) on improving wireless facilities siting policies.2 Entities seeking to deploy wireless infrastructure must comply with the Commission’s rules for environmental and historic review, which include the National Environmental Policy Act of 1969 (“NEPA”) and the National Historic Preservation Act of 1966 (“NHPA”).3 In addition, these entities typically must obtain siting approval from the governing local municipality with jurisdiction over the applicable area.4

Under NEPA, the FCC must identify and evaluate the environmental effects of proposed major federal actions significantly affecting the quality of the human environment.5 The most common major federal action under NEPA is federal approval of specific projects, including actions approved by permit or other regulatory decision as well as federally-assisted activities.6 NEPA Section 204 and its implementing regulations require the FCC to identify the Commission’s major federal actions as falling into one of three categories: (1) actions with a significant environmental impact that require an Environmental Impact Statement (“EIS”); (2) actions that may have a significant environmental impact that require an Environmental Assessment (“EA”); and (3) actions that do not have a significant effect on the environment for which a “categorical exclusion” (“CA”) is appropriate.7 The FCC has generally found that grant or approval of an application for the construction of a wireless communications facility qualifies as a major federal action, thereby subjecting the constructed facility to NEPA procedures.8

Under NHPA, the FCC is required to take into account the effects of its undertakings on historic properties included or eligible for inclusion on the National Register of Historic Places.9 NHPRA Section 106 requires the FCC to consult with the State Historic Preservation Officer or Tribal Historic Preservation Officer and the Advisory Council on Historic Preservation to consider the impacts on historic properties of its proposed undertakings.10 As a general matter, the Commission treats the scope of its federal undertakings under NHPA as coextensive with its major federal actions under NEPA.11

At the time the Commission’s current policies and rules for environmental and historic review of proposed communications facilities were established, wireless service was typically provided using 100 to 200 foot antennas mounted on communications towers.12 Small cell technology and Distributed Antenna Systems (“DAS”) expand wireless capacity or coverage through small, low-mounted antennas that may require the deployment of dozens or hundreds of small cells or antennas in a local area to achieve the same wireless coverage previously provided by a single large cell site.13 As a result, the FCC’s current environmental and historic reviews are not well suited to the small cell systems and DAS that are the subject of the FCC’s NPRM.14 The NPRM seeks to balance the deployment of small cell and DAS infrastructure necessary to provide the public with advanced wireless broadband services with the protection of the Nation’s environmental and historic resources. Specifically, the NPRM seeks comments on reducing the regulatory barriers for small cell technology and DAS and proposes a narrow exemption from the Commission’s pre-construction environmental notification requirements for certain temporary towers.15 In addition, the NPRM seeks comment on rules to clarify and implement the requirements of Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, and on certain issues regarding a 2009 Commission declaratory ruling, which established presumptively reasonable time periods for local review of wireless facility siting applications under Section 332(c)(7) of the Communications Act.16

Broadly speaking, the NPRM seeks comments regarding:

  • Expediting environmental and historic review for proposed deployment of small cells, DAS and other small-scale wireless technologies that may have minimal effects on the environment because they typically are deployed at much lower heights than traditional antennas and can be placed on already-existing infrastructure (“collocation”) such as utility poles, street lamps, water towers, rooftops and inside buildings. Specifically, the NPRM seeks comment on whether it should extend a current environmental review exclusion (excepting RF emission and historic review) for collocations on existing buildings or antenna towers to small cell technologies and whether to expand the exemption to structures other than existing buildings and antenna towers. The NPRM also seeks comment regarding whether small cell technologies are unlikely to have significant environmental effects such that they should be subject to a categorical exclusion from NEPA review (excepting compliance with RF exposure limits) for some or all of their components.17
  • Updating the FCC’s environmental and historic review processes to account for the fact that the processes were developed prior to the prevalence of small cell technologies and, for the most part, reflect the scale and level of environmental concern presented by traditional deployments on tall structures. Specifically, the NPRM seeks comment regarding whether the FCC can and should adopt a categorical exemption from NHPA and Advisory Council on Historic Preservation (“ACHP”) Section 106 review for small cell facilities or, in the alternative, adopt an ACHP program alternative or find that small cell technologies are not Section 106 federal undertakings under NHPA.18
  • Adoption of a narrow environmental notification exemption for registration of certain temporary towers that: (1) will be in use for no more than 60 days; (2) require notice of construction to the Federal Aviation Administration (“FAA”); (3) do not require marking or lighting under FAA regulations; (4) will be less than 200 feet in height; and (5) will involve certain limited excavation. With respect to temporary towers, the FCC is particularly concerned about the ability of wireless providers to meet service demands during major events and unanticipated periods of localized high demand.19
  • Adoption of terms to clarify the requirements and scope of Section 6409(a) of the Middle Class Tax Relief and Job Creation Act. This section of the Act states that a State or local government may not deny, and shall approve, any eligible facilities request for modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station. However, aside from the definition of “eligible facilities request,” Section 6409(a) does not define any of its terms. In addition, the NPRM seeks comments regarding timing and remedies for the review and processing of applications.20
  • Six issues related to an FCC 2009 Declaratory Ruling regarding Section 332(c)(7) of the Communications Act: (1) whether to provide additional clarification regarding the term collocation; (2) when a citing application is complete in the event of a request for additional information; (3) reasonableness periods related to local moratoria; (4) applicability to DAS of the timeframes set out in the declaratory ruling; (5) whether ordinances establishing preferences for the placement of wireless facilities on municipal property are unreasonable discriminatory under Section 332(c)(7) of the Communications Act; and (6) potential adoption of a “deemed granted” remedy.21

Small cell technology and DAS providers, as well as facilities owners (e.g., owners of utility poles, street lamps, water towers, etc.) are among the entities that will be impacted by the outcome of the comment cycle. Comments on NPRM must be filed on or before February 3, 2014, and reply comments must be filed on or before March 5, 2014.22 Thus, entities seeking an opportunity impact the FCC’s environmental and historic review processes for small cell and DAS technologies should begin preparing their comments immediately. 

1    See Comment Deadlines Announced for Notice of Proposed Rulemaking on Improving Wireless Facilities Siting Policies, WT Docket Nos. 13-32, WT Docket No. 13-238, WC Docket No. 11-59, Public Notice, DA 13-2324 (rel. Dec. 5, 2013) (Public Notice).
2    In the Matter of Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies; Acceleration of Broadband Deployment: Expanding the Reach and Reducing the Cost of Broadband Deployment by Improving Policies Regarding Public Rights of Way and Wireless Facilities Siting; 2012 Biennial Review of Telecommunications Regulations, WT Docket No. 13-32, WT Docket No. 13-238, WC Docket No. 11-59, Notice of Proposed Rulemaking, FCC 13-122 (rel. Sept. 26, 2013) (NPRM).
3    NPRM at 3, ¶ 3. 
4    Id
5    Id. at 9, ¶18 (citing 42 U.S.C. § 4332(2)(C) and National Environmental Policy Act Compliance for Proposed Tower Registrations, Effects of Communications Towers on Migratory Birds, WT Docket Nos. 08-61, 13-187, Order on Remand, 26 FCC Rcd 16700, 16702-03 (2011)). 
6    40 C.F.R. § 1508.18. 
7    NPRM at 9-10, ¶¶ 19-20 (citing 40 C.F.R. §§ 1501.4, 1507.3(b)(2), 1508.4, 1508.9, 1508.11, 1508.13). 
8    Id. at 10, ¶ 21. 
9    Id. at 11, ¶ 25 (citing 16 U.S.C. § 470f). 
10  Id. (citing Davis v. Latschar, 202 F.3d 359, 370 (D.C. Cir. 2000)).
11  Id. (citing Nationwide Programmatic Agreement Regarding the Section 106 National Historic Preservation Act Review Process, WT Docket No. 03-128, Report and Order, 20 FCC Rcd 1073, 1803-84, ¶¶ 25-28 (2004)).
12  Id. at 6, ¶ 11.
13  Id. at 2-3, 6, 7-9, ¶¶ 2, 11, 14-17.
14  Id. at 4, 6, ¶¶ 7, 11-12.
15  Id. at 2, 3-5, ¶¶ 1, 3, 6-8.
16  Id. at 5, ¶¶ 9-10.
17  See generally NPRM at 16-26.
18  Id.
19  Id. at 26-35.
20  Id. at 35-53.
21  Id. at 53-59.
22  Public Notice at 1. 

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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