Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, 19440-19459 [2018-08886]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 83, Number 86 (Thursday, May 3, 2018)]
[Rules and Regulations]
[Pages 19440-19459]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-08886]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[WT Docket No. 17-79; FCC 18-30]


Accelerating Wireless Broadband Deployment by Removing Barriers 
to Infrastructure Investment

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document (Order), the Federal Communications 
Commission (The Commission or FCC) adopts rules to streamline the 
wireless infrastructure siting review process to facilitate the 
deployment of next-generation wireless facilities. As part of the FCC's 
efforts, the agency consulted with a wide range of communities to 
determine the appropriate steps needed to enable the rapid and 
efficient deployment of next-generation wireless networks--or 5G--
throughout the United States. The Order focuses on ensuring the 
Commission's rules properly address the differences between large and 
small wireless facilities, and clarifies the treatment of small cell 
deployments. Specifically, the Order: Excludes small wireless 
facilities deployed on non-Tribal lands from National Historic 
Preservation Act

[[Page 19441]]

(NHPA) and National Environmental Policy Act (NEPA) review, concluding 
that these facilities are not ``undertakings'' or ``major Federal 
actions.'' Small wireless facilities deployments continue to be subject 
to currently applicable state and local government approval 
requirements. The Order also clarifies and makes improvements to the 
process for Tribal participation in section 106 historic preservation 
reviews for large wireless facilities where NHPA/NEPA review is still 
required; 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; and establishes 
timeframes for the Commission to act on Environmental Assessments. 
These actions 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 and other advanced wireless technologies to 
more Americans.

DATES: Effective July 2, 2018.

FOR FURTHER INFORMATION CONTACT: Aaron Goldschmidt, Competition and 
Infrastructure Policy Division, Wireless Telecommunications Bureau, 
(202) 418-7146, email [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second 
Report and Order (R&O), WT Docket No. 17-79 adopted March 22, 2018 and 
released March 30, 2018. The full text of this document is available 
for inspection and copying during business hours in the FCC Reference 
Information Center, Portals II, 445 12th Street SW, Room CY-A257, 
Washington, DC 20554. Also, it may be purchased from the Commission's 
duplicating contractor at Portals II, 445 12th Street SW, Room CY-B402, 
Washington, DC 20554; the contractor's website, https://www.bcpiweb.com; 
or by calling (800) 378-3160, facsimile (202) 488-5563, or email 
[email protected]. Copies of the R&O also may be obtained via the 
Commission's Electronic Comment Filing System (ECFS) by entering the 
docket number WT Docket 17-79. Additionally, the complete item is 
available on the Federal Communications Commission's website at https://www.fcc.gov.

I. Excluding Small Wireless Facilities From NHPA and NEPA Review

    1. In this Order, the FCC makes a threshold legal determination, 
and amends Sec.  1.1312 of its rules to clarify, that the deployment of 
small wireless facilities by non-Federal entities is neither an 
``undertaking'' within the meaning of the National Historic 
Preservation Act (NHPA) nor a ``major Federal action'' under the 
National Environmental Protection Act (NEPA). Although the FCC 
clarifies in the Order that the deployment of small wireless facilities 
on non-Tribal lands therefore will not be subject to certain Federal 
historic preservation and environmental review obligations, the FCC 
leaves undisturbed its existing requirement that the construction and 
deployment of larger wireless facilities, including those deployments 
that are regulated in accordance with the FCC's antenna structure 
registration (ASR) system or subject to site-by-site licensing, must 
continue to comply with those environmental and historic preservation 
review obligations.
    2. Section 106 of the NHPA mandates historic preservation review 
for ``undertakings,'' while NEPA mandates environmental review for 
``major Federal actions.'' Courts have treated these two categories as 
largely coextensive, and have recognized that the question of what 
constitutes an ``undertaking'' or a ``major Federal action'' is an 
objective inquiry that focuses on the degree of Federal control over a 
particular deployment. The FCC has previously determined, and the DC 
Circuit has affirmed, that wireless facility deployments associated 
with geographic area licenses may constitute ``undertakings'' in two 
limited contexts: (1) Where facilities are subject to the FCC's tower 
registration and approval process pursuant to section 303(q) of the 
Communications Act because they are over 200 feet or are near airports, 
and (2) where facilities not otherwise subject to pre-construction 
authorization are subject to Sec.  1.1312(b) of the FCC's rules and 
thus must obtain FCC approval of an environmental assessment prior to 
construction. The FCC has referred to the rule governing this latter 
category of deployments as the its retention of a ``limited approval 
authority.'' While the DC Circuit held that the FCC acted within its 
discretion in classifying these two categories of actions as Federal 
undertakings, it noted that the FCC had not engaged in extended 
analysis of the issue and did not foreclose the FCC from revisiting the 
scope of these categories at a later time.
    3. The FCC clarifies, through amendment of its rules, that the 
deployment of small wireless facilities by non-Federal entities does 
not constitute an ``undertaking'' or ``major Federal action,'' and thus 
does not require Federal historic preservation or environmental review 
under the NHPA or NEPA. Small wireless facilities that meet its 
definition here are not subject to ASR requirements under section 
303(q) of the Act. Accordingly, the only remaining basis on which they 
could be considered an ``undertaking'' or ``major Federal action'' is 
if they are subject to the ``limited approval authority'' under Sec.  
1.1312(b) of the FCC's rules. Through this Order, the FCC clarifies 
that deployments of small wireless facilities do not fall within the 
scope of Sec.  1.1312(b). Having made that threshold determination, 
there is no longer any cognizable Federal control over such deployments 
for purposes of the NHPA or NEPA, and hence, those deployments are 
neither ``undertakings'' nor ``major Federal actions'' subject to those 
Federal historic preservation or environmental review obligations.
    4. The FCC bases this public interest analysis on a variety of 
considerations. Removing Sec.  1.1312(b)'s trigger of environmental and 
historic preservation review for small wireless facilities will help 
further Congress's and the FCC's goals of facilitating the deployment 
of advanced wireless services (such as 5G) and removing regulatory 
burdens that unnecessarily raise the cost and slow the deployment of 
the modern infrastructure used for those services. To be able to meet 
current and future needs, including deployment of advanced 4G and 5G 
networks, providers will need to deploy tens of thousands of small 
wireless facilities across the country over the coming years. It would 
be impractical and extremely costly to subject each individual small 
facility deployment to the same requirements that the Commission 
imposes on macro towers. A report prepared by Accenture Strategy for 
CTIA found that 29 percent of wireless deployment costs are related to 
NHPA/NEPA regulations when reviews are required. There is also no 
legitimate reason why next-generation technology should be subjected to 
many times the regulatory burdens of its 3G and 4G predecessors.
    5. This decision is consistent with the history of Sec.  1.1312. 
When the FCC adopted that section, its focus was primarily on the 
deployment of macrocells and the relatively large towers that marked 
the deployment of prior generations of wireless service for which site-
specific preconstruction review was common even in the absence of a 
Section 319 construction permit. Those macrocells and large towers 
supported legacy technology and because of their size were more likely 
to have an appreciable environmental impact. The world of small 
wireless facility deployment is materially different from the 
deployment of

[[Page 19442]]

macrocells in terms of the size of the facility, the importance of 
densification, and the lower likelihood of impact on surrounding areas. 
The Commission simply could not have anticipated that advanced wireless 
services would require the densification of small deployments over 
large geographic areas that leave little to no environmental footprint. 
Amending Sec.  1.1312 to make clear that it does not apply to small 
wireless facility deployment accounts for this reality.
    6. This decision is consistent with the FCC's treatment of small 
wireless facility deployments in other contexts. For example, under the 
Collocation Nationwide Programmatic Agreement (NPA), it already 
excludes many facilities that meet size limits similar to those defined 
below from historic preservation review. This decision builds upon the 
insight underlying these existing rules that small wireless facilities 
pose little or no risk of adverse environmental or historic 
preservation effects.
    7. Under existing practice, the FCC currently does not subject many 
types of wireless facilities to environmental and historic preservation 
compliance procedures. For example, the FCC has not applied these 
review requirements to consumer signal boosters, Wi-Fi routers, and 
unlicensed equipment used by wireless internet service providers. Thus, 
the FCC has already, in effect, made a public interest determination 
that, even if it had the legal authority to do so, the cost of 
requiring NEPA and NHPA compliance for certain types of facilities 
outweighs the benefits. This action simply applies that existing 
paradigm to current circumstances.
    8. Fifth, while its amendment of Sec.  1.1312 to exclude small 
wireless facility deployments eliminates the only basis under CTIA and 
Commission precedent for treating such deployments as undertakings or 
major Federal actions subject to NHPA and NEPA review, the FCC 
concludes that the costs of conducting such review in the context of 
small wireless facilities outweigh any attendant benefits. The record 
in this proceeding demonstrates significant burdens on small facility 
deployment emanating from these requirements. The FCC expects these 
burdens to grow exponentially, as an ever-increasing number of small 
wireless facilities are deployed. The FCC also finds little 
environmental and historic preservation benefit associated with 
requiring environmental or historic preservation assessments for small 
wireless facility deployment. While ``wireless providers will need 
flexibility to strategically place thousands of [distributed antenna 
system] and small cell facilities throughout the country in the next 
few years,'' Commission requirements to conduct environmental and 
historic preservation review pose significant obstacles to that 
deployment. The FCC concludes that any marginal benefit that NHPA and 
NEPA review might provide in this context would be outweighed by the 
benefits of more efficient deployment of small wireless facilities and 
the countervailing costs associated with such review. Accordingly, the 
public interest is not served by requiring small wireless facilities to 
continue to adhere to this costly review process.
    9. This decision is limited to small wireless facilities that are 
deployed to provide service under geographic area licenses and are not 
subject to ASR. Thus, the FCC does not address whether, or the extent 
to which, site-by-site licensing or ASR render construction of the 
licensed or registered facilities a major Federal action or 
undertaking. The FCC also does not revisit the Commission's previous 
analyses as applied to facilities falling outside the scope of small 
wireless facilities covered by this Order. To the extent the Wireless 
Infrastructure NPRM (82 FR 21761 (May 10, 2017)) sought comment on 
these questions, they remain pending and may be considered in future 
items. In addition, transmissions from all facilities that operate 
pursuant to geographic area licenses remain subject to its rules 
governing radio frequency (RF) emissions exposure.

A. Statutory Background and Commission Precedent

    10. Section 106 of the NHPA requires Federal agencies to ``take 
into account'' the effects of their ``federal or federally assisted 
undertaking[s]'' on historic properties. An undertaking is defined by 
the statute as ``a project, activity, or program funded in whole or in 
part under the direct or indirect jurisdiction of a Federal agency, 
including . . . those requiring a Federal permit, license, or 
approval[.]'' Court precedent and Advisory Council on Historic 
Preservation (ACHP) guidance make clear that there must be some degree 
of Federal involvement for something to constitute an ``undertaking'' 
under the NHPA. By rule and the Commission's 2004 Order (70 FR 556 
(Jan. 4, 2005)), the FCC has authority to determine what activities 
constitute Federal undertakings.
    11. NEPA requires Federal agencies to identify and evaluate the 
environmental effects of proposed ``major Federal actions.'' Similar to 
an ``undertaking,'' a ``major Federal action'' under NEPA includes, 
among other things, ``projects and programs entirely or partly . . . 
approved by federal agencies.'' Courts consider ``major Federal 
actions'' under NEPA to be largely equivalent to ``undertakings'' under 
the NHPA. Accordingly, like the NHPA's requirements, ``[t]he 
requirements of NEPA apply only when the federal government's 
involvement in a project is sufficient to constitute `major federal 
action.' ''
    12. As relevant here, the Commission has historically identified 
undertakings and major Federal actions, and thus imposed corresponding 
NHPA and NEPA obligations, based on the Commission's activities in two 
areas: ASR and facilities subject to the approval requirement in Sec.  
1.1312 of its rules. Specifically, the Commission has required 
environmental and historic preservation review via two regulatory 
approval processes. The first applies only to the subset of towers that 
exceed 200 feet or are in the vicinity of an airport and thus are 
required to ``be `registered' '' with the Commission pursuant to 
section 303(q) of the Communications Act. The second applies where 
facilities that are not otherwise subject to pre-construction 
Commission authorization are nonetheless required to obtain Commission 
approval of an environmental assessment prior to construction pursuant 
to Sec.  1.1312(b) of the Commission's rules. The Commission has 
treated its approvals in each of these contexts as rising to the level 
of ``undertakings'' or ``major Federal actions'' that trigger NHPA and 
NEPA. And the Commission's approach has been affirmed by the U.S. Court 
of Appeals for the DC Circuit, which held that the Commission acted 
within its discretion in identifying its pre-construction antenna 
structure registration requirements under section 303(q) of the Act and 
its Sec.  1.1312 limited-approval authority as undertakings for 
purposes of NHPA.
    13. The history of the FCC's involvement in this area begins in 
1974, when it first promulgated rules implementing NEPA. At that time, 
FCC licenses provided carriers with authority to operate from a 
specific site or physical location, and Federal law generally required 
the FCC to issue the provider a construction permit for that site 
before the agency granted a license to operate. The Commission thus had 
a significant, Federal role in approving construction of specific 
wireless communications facilities in a given location, and it treated 
these activities as undertakings under the NHPA and major Federal 
actions under NEPA.

[[Page 19443]]

    14. In 1982, Congress altered this framework. In particular, it 
eliminated the construction permit requirement for certain wireless 
licenses, while permitting the Commission to retain the requirement if 
it determined that the ``public interest, convenience, and necessity'' 
required it. As a result of this and associated regulatory changes, the 
FCC now licenses many services, including most licensees operating in 
commercial wireless services, to transmit over a particular band of 
spectrum within a wide geographic area without further limitation as to 
transmitter locations.
    15. Nonetheless, the FCC has continued by rule to require certain 
wireless providers previously subject to construction permit 
requirements to comply with environmental and historic preservation 
review procedures without regard to the particular type of deployment 
at issue. In 1990, the Commission amended Sec.  1.1312 of its rules, so 
that that where construction of a Commission-regulated radio 
communications facility is permitted without prior Commission 
authorization (i.e., without a construction permit), the licensee must 
nonetheless comply with historic preservation and environmental review 
procedures. As the DC Circuit observed, the Commission's 1990 decision 
``never explicitly addresse[d] whether tower construction is a Federal 
undertaking under section 106 of the NHPA.'' Nor did it expressly 
address whether such construction was a major Federal action under 
NEPA. Instead, the Commission's adoption of Sec.  1.1312 was grounded 
in the `` `public interest benefits of ensuring, in compliance with 
Federal environmental statutes, that no potentially irreversible harm 
to the environment occurs.' '' The Commission apparently concluded that 
this public interest consideration sufficed for the agency to use the 
Sec.  1.1312 process to trigger NEPA and NHPA review.
    16. In 1995, the Commission expressly concluded that ``registering 
a structure,'' that is, its tower registration process, ``constitutes a 
`federal action' or `federal undertaking' '' under the relevant Federal 
environmental and historic preservation review statutes. However, as 
the DC Circuit observed, that 1995 decision ``contains no analysis of 
relevant statutes and regulations in support of that conclusion.''
    17. In 2004, the Commission addressed the NHPA again in the context 
of establishing a programmatic agreement. In that decision, the 
Commission offered two bases for determining that the construction of 
communications towers and deployment of antennas require compliance 
with NHPA. First, the Commission relied on the agency's tower 
registration process and authority. It indicated that this process 
``may be viewed as effectively constituting an approval process within 
the Commission's section 303(q) authority.'' Under section 303(q), the 
Commission has chosen to implement rules requiring that towers meeting 
certain height and location criteria be registered with the Commission 
prior to construction. Second, as described above, the Commission 
relied on what it has described as a ``limited approval authority.'' 
Specifically, while section 319(d) states that a construction permit 
shall not be required for the deployment of certain facilities, the 
Commission read what it described as ``section 319(d)'s public interest 
standard'' as allowing the Commission to require covered entities to 
nonetheless comply with environmental and historic preservation 
processing requirements. The Commission pointed in particular to Sec.  
1.1312 of the its rules, which states that ``[i]f a facility'' for 
which no Commission authorization prior to construction is required 
``may have a significant environmental impact'' then the licensee must 
submit an environmental assessment to the Commission and the Commission 
must then rule on that assessment prior to initiation of construction 
of the facility.
    18. At the same time, the Commission stated that the agency ``did 
not seek comment on the question whether the Commission should, 
assuming that it possesses statutory authority to do so, continue its 
current treatment of tower construction as an `undertaking' for 
purposes of the NHPA.'' Therefore, the Commission ``decline[d] to 
revisit'' that question. Continuing, the Commission observed that 
``[u]nless and until we undertake the reexamination and determine that 
it is appropriate to amend its rules . . . we believe its existing 
policies treating tower construction as an undertaking under the NHPA 
reflect a permissible interpretation of the Commission's authority 
under section 319(d) of the Act to issue construction permits for radio 
towers, as well as its authority under section 303(q) governing 
painting and/or illumination of towers for purposes of air navigation 
safety.''
    19. Two Commissioners dissented in part from the agency's 2004 
decision, expressing the view that, in the absence of a construction 
permit or a site-by-site license, the Commission's retention of 
jurisdiction to require historic preservation review exceeded its 
statutory authority. On appeal, the U.S. Court of Appeals for the DC 
Circuit upheld the Commission's decision against a challenge that it 
was arbitrary and capricious.
    20. Most recently, in 2014, the FCC found ``no basis to hold 
categorically that small wireless facilities such as DAS and small 
cells are not Commission undertakings.'' But the Commission there was 
only evaluating the operation of the rule, by its terms, against the 
backdrop of the specific evidence in the record on that item. The 
Commission did not consider whether, in the first instance, it could 
amend its rules to clarify that small wireless facilities are not 
Commission undertakings or whether the public interest would be served 
by doing so.
    21. In the Wireless Infrastructure NPRM, the Commission sought 
comment on updating its approach to environmental and historic 
preservation review. Among other things, the Commission ``invite[d] 
comment on whether we should revisit the Commission's interpretation of 
the scope of its responsibility to review the effects of wireless 
facility construction under the NHPA and NEPA.'' The NPRM invited input 
on ``the costs of NEPA and NHPA compliance and its utility for 
environmental protection and historic preservation for different 
classes of facilities, as well as the extent of the Commission's 
responsibility to consider the effects of construction associated with 
the provision of licensed services under governing regulations and 
judicial precedent,'' seeking particular comment regarding the 
treatment of geographic area service license and small wireless 
facility deployment.

B. Legal Analysis

1. By Amending Its Rules, the FCC Clarifies That Small Wireless 
Facility Deployment Is Neither an Undertaking Nor a Major Federal 
Action
    22. Consistent with the DC Circuit's decision in CTIA, the FCC 
exercises its discretion to amend its rules to clarify that the 
deployment of small wireless facilities does not qualify as a Federal 
undertaking or major Federal action. As explained above, a Federal 
undertaking or major Federal action requires a sufficient degree of 
Federal involvement, and the Commission has only ever identified two 
potential bases by which such involvement exists with respect to the 
deployment of wireless facilities that do not require site-by-site 
licensing or construction permits. The first is the ASR obligations 
that flow from section 303(q) and apply to facilities that are over 200 
feet in height or are close to airports. The second is

[[Page 19444]]

the ``limited approval authority'' that is codified in Sec.  1.1312 of 
the Commission's rules. Since the deployment of small wireless 
facilities, as defined herein, is not subject to antenna structure 
registration requirements under section 303(q) of the Act, that avenue 
cannot provide a basis for treating small wireless facilities as an 
undertaking. Thus, the only possible basis by which small wireless 
facility deployments could be Federal undertakings would be if they 
were subject to the Commission's ``limited approval authority.''
    23. In this Order, the FCC amends its rules to remove small 
wireless facilities deployment from Sec.  1.1312 of the rules, 
eliminating the remaining basis for treating small wireless facility 
deployment as an undertaking and major Federal action. Neither the DC 
Circuit's CTIA decision nor Commission precedent precludes us from 
amending that rule, as long as its amendments are otherwise consistent 
with the Communications Act. As explained below, the Commission has 
multiple sound reasons for making this amendment, including that 
limiting Sec.  1.1312 to larger wireless facilities is more consistent 
with the original purpose of the rule and Commission practice with 
respect to other small deployments. By clarifying that Sec.  1.1312 
does not apply to small wireless facility deployment, the FCC 
eliminates the predicate Federal involvement required for undertakings 
and major Federal actions. Accordingly, such deployments are no longer 
subject to those historic preservation and environmental review 
obligations.
2. Its Amendment of Section 1.1312 of the Rules Is Consistent With the 
Public Interest
    24. The FCC concludes that its actions are consistent with the 
Commission's statutory mandates under the Communications Act, including 
its mandate to regulate in the public interest.
    25. Although the Commission appeared to ground the adoption of 
Sec.  1.1312 in its public interest authority, the Commission has never 
squarely addressed whether the public interest is served by exercising 
this authority in the context of small wireless facility deployment. 
Nor did the Commission have at its disposal in 1990 the wealth of 
evidence now available in the wake of small cell deployment replacing 
macro deployment as the means by which many providers are choosing to 
deploy new wireless technology, such as 5G. In amending the 
Commission's rules, and after review of the record, the FCC determines 
that the public interest would not be served by continuing to subject 
small wireless facility deployment to Sec.  1.1312's review 
requirements. As part of the public interest analysis, the FCC 
recognizes that the approval requirement in Sec.  1.1312 has the effect 
of subjecting covered deployments to environmental and historic 
preservation review under NEPA and the NHPA. The FCC deems the costs of 
that resulting review to be unduly burdensome in light of the nature of 
small wireless facility deployment, the benefits of efficient and 
effective deployment, and the minimal anticipated benefits of NHPA and 
NEPA review in this context, as explained in greater detail below.
    26. When exercising its public interest authority to effectuate the 
purposes of the Communications Act, the FCC must factor in the 
fundamental objectives of the Act, including the deployment of a 
``rapid, efficient . . . wire and radio communication service with 
adequate facilities at reasonable charges'' and ``the development and 
rapid deployment of new technologies, products and services for the 
benefit of the public . . . without administrative or judicial delays[, 
and] efficient and intensive use of the electromagnetic spectrum.'' 
Relatedly, section 706 of the 1996 Act exhorts the Commission to 
``encourage the deployment on a reasonable and timely basis of advanced 
telecommunications capability to all Americans . . . by utilizing, in a 
manner consistent with the public interest, convenience, and necessity. 
. . . regulating methods that remove barriers to infrastructure 
investment.'' These statutory provisions do not confer authority but 
are consistent with the goals of the Communications Act.
    27. Furthermore, a close analysis of section 319(d) of the Act 
supports the conclusion that Congress does not want the Commission to 
place unnecessary regulatory barriers in the way of wireless facilities 
deployment. section 319(d) states, in relevant part, that ``[a] permit 
for construction shall not be required for . . . stations licensed to 
common carriers, unless the Commission determines that the public 
interest, convenience and necessity would be served by requiring such 
permits for any such stations.'' By its terms, section 319(d) 
eliminates Commission approval requirements for wireless communications 
facilities and precludes construction permits for those classes of 
providers unless the FCC makes affirmative public interest findings 
that such requirements are necessary and expressly imposes them. That 
language in section 319(d) was added in 1982 based on Congress's belief 
that in many cases the required preapproval ``may delay market entry 
and place an unnecessary administrative and financial burden on both 
the potential licensee and the Commission.'' It appears contrary to the 
intent of section 319(d) to replace the eliminated construction permit 
requirement with a different approval process that, at least in the 
small wireless facility context, risks replicating the harmful effects 
that Congress expressly sought to eliminate absent strong evidence of 
the public interest benefits of doing so.
    28. The FCC finds on the record in this proceeding that the public 
interest does not support applying the Sec.  1.1312 approval process to 
small wireless facilities. To the contrary, encouraging small wireless 
facility deployment directly advances all of the statutory objectives 
described above. The FCC has recognized that small wireless facilities 
will be increasingly necessary to support the rollout of next-
generation services, with far more of them needed to accomplish the 
network densification that providers require, both to satisfy the 
exploding consumer demand for wireless data for existing services and 
to implement advanced technologies like 5G. The record here also 
supports its prior conclusions regarding the volume and pace of needed 
small wireless facility deployments to support the future of advanced 
wireless services. The FCC notes, for example, that Verizon anticipates 
that 5G networks will require 10 to 100 times more antenna locations 
than previous technologies, while AT&T estimates that carriers will 
deploy hundreds of thousands of wireless facilities--equal to or more 
than they have deployed over the last few decades. Sprint, in turn, has 
announced plans to build at least 40,000 new small sites over the next 
few years.
    29. In light of these statistics, the Commission cannot simply turn 
a blind eye to the reality that the mechanical application of Sec.  
1.1312's requirements to each of these small deployments would increase 
the burden of review both to regulated entities and the Commission by 
multiples of tens or hundreds. Nor can the FCC ignore the record 
evidence cited above showing the negative impact and high costs 
associated with subjecting small wireless facility deployments to NHPA 
and NEPA review. It would be impractical, extremely costly, and 
contrary to the purposes of the Communications Act to subject the 
deployments required for 5G technology to many times the regulatory 
burdens that the Commission previously imposed on 3G and 4G 
infrastructure.

[[Page 19445]]

    30. The historical and present application of Sec.  1.1312 supports 
the distinction the FCC makes between macrocell and large towers on the 
one hand and small wireless facilities on the other. When the 
Commission amended Sec.  1.1312 in 1990 to require historic 
preservation and environmental review procedures for radio 
communications facilities that did not require pre-authorization 
permits, it was primarily focused on macrocells and large tower 
deployments, and it could not have anticipated that many small-cell 
antennas today would fit inside a space the size of a pizza box or that 
densification of many hundreds of these antennas would be necessary for 
deployment of more advanced wireless technologies. The Commission has 
nevertheless made common-sense accommodations for types of deployments 
that have limited potential for environmental and historic preservation 
effects and for which compliance would be impractical. For example, the 
Commission does not subject consumer signal boosters, Wi-Fi routers, or 
unlicensed equipment used by wireless internet service providers to 
Sec.  1.1312 review. Through this Order, the FCC applies similar 
considerations in determining that it is consistent with the public 
interest to eliminate NEPA and NHPA compliance requirements for all 
small wireless facility deployments as defined herein.
    31. The FCC further finds, on balance, that the costs of requiring 
Sec.  1.1312 review for small wireless facilities outweigh the marginal 
benefits, if any, of environmental and historic preservation review.
    32. Although commenters assess the magnitude of time and resources 
required for NEPA and NHPA compliance differently, the record clearly 
indicates that there are substantial, rising, and unnecessary costs for 
deployment that stem from compliance with NEPA and the NHPA. Over the 
last several decades, for example, Sprint estimates that it has done 
preliminary NEPA checklists for thousands of sites at a cost of tens of 
millions of dollars. Of those sites, approximately 250 triggered the 
requirement that Sprint prepare an environmental assessment that costs 
approximately $1,300. Most of those environmental assessments were for 
historic preservation concerns by state historic preservation officers 
under Sec.  1.1307(a)(4) of the Commission's rules because the site was 
in or near a Historic District or Historic Property, but every one of 
those assessments resulted in a finding of no significant impact. In 
other words, the Commission's rules have required Sprint to spend tens 
of millions of dollars to investigate a minimal likelihood of harm.
    33. Verizon and AT&T reported similar burdens. Verizon examined its 
small wireless facility deployments in 2017 in five urban markets 
across the United States and found that completing NEPA and NHPA 
reviews comprised, on average, 26 percent of the total cost for these 
deployments. In the five markets Verizon examined, the costs of 
completing NEPA and NHPA (including Tribal) reviews comprised, on 
average, 26 percent of the total cost of deployment of small cells, 
including equipment. AT&T offered similar figures, stating that 17 
percent of its costs to deploy each small wireless facility is directed 
to NEPA and NHPA compliance. AT&T further represented that it expects 
to spend $45 million on NEPA and NHPA compliance for thousands of small 
wireless facilities in 2018 and that its current NEPA and NHPA costs 
have direct effects on its broadband deployment initiatives by 
funneling money away from new small wireless facility projects or the 
expansion of existing projects. By contrast, AT&T estimates that a 
Commission decision that such deployments are not major Federal actions 
or undertakings would reduce small cell NEPA/NHPA compliance costs by 
up to 80 percent, which would fund over 1,000 additional small cell 
nodes annually, and reduce the small cell deployment timeline by 60-90 
days. CTIA submitted a report indicating that overall, in 2017, 
providers spent nearly $36 million on NEPA and NHPA compliance. The 
report estimated that, based on providers' plans to accelerate small 
facility deployment, NEPA and NHPA costs would increase to $241 million 
in 2018.
    34. The record also reveals more generally that, even setting aside 
payments to Tribal Nations, which the FCC addresses below, review 
requirements can easily cost well over a thousand dollars per review--
and potentially much more. Even if the time and resource expenditure 
associated with this review process may not appear substantial in the 
context of a single facility's deployment, given its prior conclusions 
based on the record regarding the volume and pace of needed small 
wireless facility deployments, the FCC expects the aggregate effect of 
exercising its limited reservation of authority to require 
environmental and historic preservation review for small wireless 
facilities to be substantially greater. For example, the FCC estimates 
that in the last several years thousands of small wireless facility 
deployments annually have been subject to Tribal review under its 
rules, representing approximately 80 percent of the total of such 
reviews. Given trends in small wireless facility deployment, the number 
of such reviews is likely to increase further over time. In addition, 
although aggregate annual review costs for smaller providers might well 
be less than that of entities with a large number of annual 
deployments, such small businesses also are likely less able to bear 
those costs. Although batch processing can have some benefits in 
reducing the burdens of review, even advocates of batchings observe 
that its benefits may be limited based on characteristics such as batch 
size, specific type of facility, environmental and/or historic 
preservation effect, and geographic area. The FCC thus is not persuaded 
that batch processing will reduce the burdens of the review process to 
such a degree that those burdens no longer would be significant.
    35. The potential delay in deployment associated with the review 
process also appears likely to be substantial. The record reveals that, 
given their time and expense, environmental and historic preservation 
review processes ``are generally not started until the municipality has 
provided its approvals in case the municipality does not approve the 
initial location.'' Thus, environmental and historic preservation 
review requirements necessarily impose delays above and beyond the time 
when facilities otherwise could begin deployment. Although the 
Commission takes steps to reduce such process delays, even delays of 30 
days (let alone more) are substantial enough to weigh in its public 
interest calculus, particularly when aggregated across all the small 
wireless facility deployments that will be required in the coming 
years.
    36. At the same time, the record does not support sufficiently 
appreciable countervailing environmental and historic preservation 
benefits associated with subjecting small wireless facility deployments 
off of Tribal lands to historic preservation and environmental reviews. 
Consistent with its precedent, the FCC considers the possible benefits 
to the environment and historic preservation flowing from a Commission-
imposed compliance requirement for small wireless facility deployments. 
The FCC concludes on the record here, however, that the specific, 
limited types of small wireless facility deployments described below do 
not warrant the imposition of these requirements off of Tribal lands. 
On

[[Page 19446]]

Tribal lands, the FCC leaves undisturbed the historic preservation and 
environmental review processes that the FCC presently has in place for 
deployments of wireless facilities. Based on its review of the record, 
including concerns raised by Tribal Nations regarding the unique nature 
of Tribal land and the Commission's ongoing recognition of Tribal 
sovereignty, the FCC clarifies that it continues to exercise its 
limited approval authority for the deployment of small wireless 
facilities on Tribal land is consistent with our focus in the Wireless 
Infrastructure NPRM on areas of Tribal interest, and supported by our 
review of the record, which establishes that wireless providers have 
not experienced the same challenges arising from the historic 
preservation review process on Tribal lands.\1\ The Commission's public 
interest determination is also rooted in our ongoing commitment to 
fulfilling principles of Tribal sovereignty and to our Federal trust 
responsibility.
---------------------------------------------------------------------------

    \1\ See, e.g., CTIA/WIA Comments at 7-8 (distinguishing between 
projects proposed on Tribal lands versus those proposed on non-
Tribal lands and addressing its comments to the latter); Verizon 
Comments at 44 n. 142 (emphasizing that Verizon was not proposing 
changes to the process for reviewing facilities to be constructed on 
Tribal lands).
---------------------------------------------------------------------------

    37. As an initial matter, the FCC defines the types of facilities 
excluded from the scope of Sec.  1.1312 in such a way as to minimize 
the impact that these facilities, as a class, could have on the 
environment and historic properties. The FCC also adopts a definition 
that ensures that larger facilities continue to be subject to its NHPA 
and NEPA processes. The FCC believes that this represents a better 
allocation of scarce resources. The FCC thus excludes from its review 
requirement only facilities that are limited in antenna volume, 
associated equipment volume, and height.
    38. As to height, its revised rule excludes small wireless 
facilities if they are deployed on new structures that are either no 
taller than the greater of 50 feet (including their antennas) or no 
more than 10 percent taller than other structures in the area. The rule 
also excludes any small wireless facility that is affixed to an 
existing structure, where as a result of the deployment that structure 
is not extended to a height of more than 50 feet or by more than 10 
percent, whichever is greater. The Commission has previously used 
similar size specifications to delineate circumstances in which 
environmental and historic preservation review was unwarranted. In 
particular, the Commission has excluded from review those pole 
replacements that, among other things, ``are no more than 10 percent or 
five feet taller than the original pole, whichever is greater'' to 
guard against the risk of ``excluding replacement poles that are 
substantially larger than or that differ in other material ways from 
the poles being replaced might compromise the integrity of historic 
properties and districts.'' The Commission's exclusion for pole 
replacements was further limited in a manner designed to ensure ``that 
the replacement will not substantially alter the setting of any 
historic properties that may be nearby.'' The FCC seeks to advance 
similar ends here through the limits on overall size relative to other 
structures in the area. As AT&T observes, for example, ``the vast 
majority of small cell antennas are placed at a height of less than 60 
feet on structures located near similarly sized structures in 
previously disturbed rights-of-way, greatly reducing the likelihood of 
adversely impacting the surrounding environment.'' The 50-foot height 
threshold the FCC adopts falls within the 60-foot parameter cited by 
AT&T and others, but the FCC also allows higher deployment in cases 
where such deployment is only a modest (10 percent) departure from the 
height of the preexisting facility or surrounding structures.
    39. Its public interest finding here also applies only when certain 
volumetric limits are met. To qualify as a small wireless facility, the 
antenna associated with the deployment, excluding the associated 
equipment, must be no more than three cubic feet in volume. The FCC 
agrees with commenters that, at this size, small wireless facilities 
``are unobtrusive and in harmony with the poles, street furniture, and 
other structures on which they are typically deployed.'' This size is 
analogous to that of facilities the Commission previously has excluded 
from review under the Collocation NPA. The Commission has found in 
other contexts that the size of those facilities fully eliminated the 
possibility of what already was only a remote potential for historic 
preservation effects. This size also is similar to--or smaller than--
the antenna volume specified in definitions of small wireless 
facilities under a number of state laws seeking to facilitate small 
wireless facility deployment. The FCC agrees with Verizon that at 
``three cubic feet or less per antenna'' small wireless facilities 
``bear little resemblance to the macro facilities that represented most 
wireless siting'' when the Commission conducted its public interest 
evaluations in the past.
    40. Additionally, the wireless equipment associated with the 
antenna must be no larger than 28 cubic feet. The FCC derives this 
limit from analogous limits on associated equipment in the Collocation 
NPA and the small wireless facility definitions in many state laws. The 
record persuades us that this definition appropriately balances its 
policy goal of promoting advanced wireless service and its recognition 
of the importance of environmental and historic preservation concerns 
where they might meaningfully be implicated. In particular, the FCC 
agrees with commenters that urge us to build on the small wireless 
facility definitions in the Collocation NPA and state laws, ``while 
retaining flexibility to account for changes in technologies.''Advanced 
wireless services are migrating from 4G to 5G, and the FCC wants to 
foster that migration. As T-Mobile observes, ``5G systems are still in 
the early stages of development,'' and ``any small wireless facility 
definition should accommodate this new, critical phase of broadband 
deployment.'' Commenters identify 28 cubic feet as a workable 
definition for associated equipment, which will help encourage small 
wireless facility deployment to a greater extent than relying on some 
prior, smaller definitions of associated equipment size that would 
provide more limited relief. At the same time, just as the Collocation 
NPA and state laws commonly have adopted a numerical limit on 
associated equipment, the FCC finds a numerical limit warranted here, 
consistent with its goal of defining these facilities in a way that 
constrains the potential for environmental and historic preservation 
effects. The FCC is not persuaded that limits larger than 28 cubic 
feet--or forgoing any numeric limit on associated equipment at all--
would balance that interest as effectively. The FCC also notes, as a 
practical matter, the general trend toward increasingly smaller 
equipment deployments, which will make it less likely that associated 
equipment will need to exceed the 28 cubic feet limit, and also less 
likely that deployment of associated equipment will have environmental 
or historic preservation effects.
    41. The FCC is not persuaded to further restrict the definition of 
small wireless facility by placing an aggregation limit on the number 
of such facilities on a given structure or pole, as some propose. The 
FCC is skeptical that even in scenarios involving multiple small 
wireless facilities deployed on a single structure or pole, the 
resulting aggregate deployment would resemble

[[Page 19447]]

macrocells or towers of the sort the Commission generally envisioned in 
its past public interest analysis. Indeed, there are practical 
limitations on how many small wireless facilities can fit on a single 
pole. However, even if there are deployments where two or more small 
cells have a larger antenna volume in the aggregate than a single 
macrocell deployment, the FCC still finds its approach reasonable given 
the economic, technical, and public interest benefits of promoting 
small wireless facility deployments discussed above. Finally, nothing 
the FCC does in this order precludes any review conducted by other 
authorities--such as state and local authorities--insofar as they have 
review processes encompassing small wireless facility deployments. The 
existence of state and local review procedures, adopted and implemented 
by regulators with more intimate knowledge of local geography and 
history, reduces the likelihood that small wireless facilities will be 
deployed in ways that will have adverse environmental and historical 
preservation effects.
    42. While a number of commenters argue that review confers 
environmental and historic preservation benefits, to the extent they 
provide factual support, they provide no more than generalized claims 
of effects of small wireless facility deployment that have been 
addressed in isolated cases. While other commenters identify specific 
factual scenarios of concern to them regarding small wireless facility 
deployment, there is substantial record evidence that actual instances 
of concern identified by review are few.
    43. For example, Crown Castle states that it has never received a 
report or a negative response from a Tribal Nation regarding a proposed 
small cell deployment. Other commenters echo this experience. Sprint, 
for instance, remarks that in the thousands of tower and antenna 
projects it has undertaken since 2004, which included numerous small 
cell deployments, it has never had a substantive consultation with 
Tribal Nations that revealed possible adverse impacts on historic 
properties. Verizon, likewise, represents that between 2012 and 2015, 
only 0.3% of Verizon's requests for Tribal review resulted in findings 
of an adverse effect to Tribal historic properties, while AAR states 
that ``more than 99.6 percent of deployments pose no risk to historic, 
tribal, and environmental interests.'' Based on these apparently 
minimal effects of small wireless facility deployment on environmental 
and historic preservation interests, the FCC believes that the benefits 
associated with requiring such review are de minimis both individually 
and in the aggregate. And even if, as some contend, the aggregate 
effects of small wireless facility deployment rendered the benefits of 
review more than de minimis, the FCC nonetheless determines that those 
benefits would be outweighed by the detrimental effects on the roll-out 
of advanced wireless service.
    44. As further support for this conclusion, Sprint points in its 
comment to the Super Bowl as an example of the way that historic 
preservation review can impede broadband deployment with minimal to no 
benefit. In particular, Sprint deployed 23 small cells in Houston to 
upgrade its network in preparation for the crowds descending on Super 
Bowl LI. Even though the stadium construction itself did not involve 
any historic preservation consultation with Tribal Nations under 
Section 106 of the NHPA (because the stadium construction was not a 
Federal undertaking), carriers building an antenna in the parking lot 
were obligated by FCC rules to engage in the Section 106 process. And 
as with Sprint's other reviews since 2004, those reviews did not lead 
to any substantive consultation with Tribal Nations that revealed 
adverse impacts. That nonsensical result was purely a consequence of 
the Commission's discretionary decision to apply Sec.  1.1312 to such 
small deployments. That the Commission's rule would lead to such an 
anomalous outcome--requiring environmental and historic preservation 
review of small wireless facilities deployed in the parking lot of an 
NFL stadium that did not itself require such review--highlights what 
the FCC sees as the misdirected public interest consequences that would 
result if the FCC applied Sec.  1.1312's approval requirement to small 
wireless facility deployment.
    45. In short, the record evidence persuades us that the costs to 
small wireless facility deployment attributable to Sec.  1.1312's 
approval requirement far outweigh any incremental benefits of such 
environmental or historic preservation review.
3. Other Considerations Raised by Its Prior Rules and Comments in the 
Record
    46. 1990 Order. As explained above, the Commission's 1990 Order (55 
FR 20396 (May 16, 1990)) did not specifically address whether the 
public interest was served by subjecting small wireless facility 
deployments to Sec.  1.1312's requirements. The FCC now does so and 
finds that it is not.
    47. To the extent the 1990 Order made a public interest 
determination with respect to large facilities, the FCC notes that it 
is not bound by that determination because its public interest analysis 
for small wireless facilities presents materially different 
considerations than the Commission confronted in the past. Although the 
Commission anticipated that Sec.  1.1312 would ``establish[] an 
appropriate balance between section 319(d)'s purpose of expediting the 
delivery of communications services to the public'' and potentially 
countervailing environmental considerations, the reasoning in the 1990 
Order turns on materially different facts and assumptions than apply in 
the case of small wireless facility deployment. In particular, the 
Commission anticipated that its requirement would not ``significantly 
affect construction or . . . have any effect on the vast majority of 
facilities covered by the rule.'' In a world in which a relatively 
small number of large structures were being built, such predictions 
might have made sense. But with the high volume of small wireless 
facility deployments that the FCC anticipates being necessary to 
facilitate the provision of advanced wireless services, the FCC 
anticipates that absent Commission action significant numbers of 
deployments--in fact, the vast majority of them--will be significantly 
delayed and detrimentally affected without any actual historic 
preservation or environmental benefit.
    48. Geographic Area Licenses. In determining that small wireless 
facilities are not subject to historic preservation or environmental 
review obligations, the FCC rejects the position offered by some 
commenters that mere issuance of a broad geographic area service 
license constitutes sufficient Federal action to convert small wireless 
facility deployments into undertakings and major Federal actions, 
triggering NHPA and NEPA review. Indeed, the Commission has never taken 
the position that every form of license or authorization demonstrates a 
sufficient Federal nexus to convert the separate deployment of 
facilities into a Federal undertaking or major Federal action. 
Nonetheless, certain commenters make general assertions that a 
geographic area service license could be sufficient to implicate NHPA 
and NEPA. The FCC disagrees and find the Commission's role regarding 
such deployment too limited to render the deployments ``undertakings'' 
under the NHPA or ``major Federal actions'' under NEPA.

[[Page 19448]]

    49. As discussed above, the key consideration in determining 
whether a particular deployment is a Federal undertaking is the degree 
of Federal involvement, and the Commission has discretion to make the 
threshold determination as to whether that involvement exists. The FCC 
concludes that the Commission's issuance of a license that authorizes 
provision of wireless service in a geographic area does not create 
sufficient Commission involvement in the deployment of particular 
wireless facilities in connection with that license for the deployment 
to constitute an undertaking for purposes of the NHPA. Applying the 
relevant statutory text, the geographic area service license does not 
result in wireless facility deployment being ``carried out by or on 
behalf of a Federal agency.'' To the contrary, geographic area service 
licensing does not provide for Commission involvement in wireless 
facility deployment decisions. Geographic area service licenses also do 
not provide ``Federal financial assistance'' for wireless facility 
deployment. Nor is the geographic area service license ``a Federal 
permit, license or approval'' that must be obtained before wireless 
facility deployment can proceed. In particular, although geographic 
area service licenses are a legal prerequisite to the provision of 
licensed wireless service, and can affect entities' economic incentives 
to deploy small wireless facilities--insofar as the facilities can be 
used to offer the licensed service--neither the geographic area service 
license nor any other Commission approval is a legal prerequisite to 
the deployment of those particular facilities. In addition, viewing the 
deployment of small wireless facilities as an undertaking on the basis 
of geographic area service licenses is inconsistent with the manner in 
which Commission licensing occurs. In particular, although NHPA 
requires agencies to evaluate the effects of their undertakings before 
those undertakings occur, the FCC does not require any such 
determinations to take place prior to issuance of these licenses--thus, 
confirming that the issuance of the geographic area license itself is 
not the Federal undertaking. Indeed, the conduct at issue here--the 
physical deployment of particular infrastructure--occurs in a manner 
and at locations that the Commission cannot foresee at the time of 
licensing, as discussed in greater detail below. Under the geographic 
area service license, it is generally state and local zoning 
authorities that exercise their lawful authority regarding the 
placement of wireless facilities by private parties. The FCC thus does 
not find the issuance of a geographic area service license, in itself, 
to provide the requisite level of Commission involvement in wireless 
facility deployment to render that deployment an undertaking under 
relevant court precedent and ACHP guidance.
    50. For the same basic reasons, the FCC concludes that the 
geographic area service license is insufficient to render deployment of 
wireless facilities in connection with that license a ``major Federal 
action'' under NEPA. As explained above, the geographic licensing does 
not cause associated wireless facility deployment to be ``carried out 
by or on behalf of'' the Commission, the licensing does not involve the 
provision of Federal funding for such deployments, nor is the license 
technically required before wireless facility deployment can proceed 
(in other words, while carriers generally obtain a geographic area 
service license before they deploy the facilities through which they 
will eventually provide that service, they are not legally required to 
obtain the license until they want to provide service). As noted above, 
courts treat ``major Federal actions'' under NEPA similarly to 
``undertakings'' under the NHPA. Indeed, the ACHP points out ``major 
Federal actions'' are arguably narrower than ``undertakings'' in 
various ways. Insofar as ``major Federal actions'' under NEPA are 
narrower than the universe of ``undertakings'' under the NHPA, its 
conclusion regarding NEPA necessarily will be the same as that for 
NHPA. Court precedent directly applying NEPA in the first instance 
likewise supports its view that the virtually nonexistent Commission 
involvement in the deployment of wireless facilities under a geographic 
area service license takes wireless facility deployment outside the 
scope of ``major Federal action.'' The FCC thus finds the geographic 
area license itself insufficient to render wireless facility deployment 
in connection with that license ``major Federal action'' under NEPA.
    51. The FCC distinguishes precedent cited by American Bird 
Conservancy, in which the Commission found that ``[t]he fact that a 
carrier's construction of facilities is authorized by rule rather than 
by action on an individual application does not eliminate the existence 
of federal action or affect its obligation to comply with NEPA and 
other federal environmental statutes.'' In that case, however, the 
Commission rule at issue directly authorized the construction of 
particular facilities. Here, by contrast, the geographic area license 
itself only authorizes transmissions. The FCC finds this is an 
insufficient connection to in itself cause the construction to 
constitute an undertaking under the NHPA or major Federal action under 
NEPA.
    52. In addition, the FCC emphasizes that issuance of geographic 
service licenses is remote in both time and regulatory reach from the 
deployment of small wireless facilities. Any wireless facility 
deployment will happen after the Commission has issued the geographic 
service licenses, and will occur in a manner and at locations that the 
Commission cannot reasonably foresee at the time of licensing. As to 
geographic service licenses issued in the past, at the time the 
licenses were issued, it is unlikely that significant small wireless 
facility deployment itself would have been reasonably foreseeable. The 
deployment of small wireless facilities today is a function of 
marketplace decisions by private actors in light of applicable 
regulatory regimes, such as any state or local zoning requirements.
    53. These characteristics of the Commission's regulatory approach 
to geographic service licensing support the view that NHPA and NEPA do 
not require Commission evaluation of any effects of small wireless 
facility deployment based on the issuance of such licenses. NHPA and 
NEPA require agencies to evaluate the effects of their undertakings or 
major Federal actions in advance of those undertakings or actions. 
Under the rules implementing NEPA and the NHPA and relevant court 
precedent, agencies need not consider effects of agency actions if they 
are not reasonably foreseeable. Because there is no plausible way for 
the Commission to meaningfully assess environmental and historic 
preservation effects associated with the deployment of small wireless 
facilities at the time geographic service licenses issue, the FCC 
concludes that there are no reasonably foreseeable effects that ``a 
person of ordinary prudence would take into account'' prior to issuing 
such licenses.
    54. The Commission also does not possess authority it could 
exercise to regulate small wireless facility deployment to address 
environmental and historic preservation concerns given the public 
interest findings the FCC makes in this order. Agencies have no 
obligation to consider potential effects under NEPA or the NHPA if they 
cannot exercise authority to address them under their organic statutes. 
As relevant here, addressing environmental and/or historic preservation 
effects of small wireless facility deployment would

[[Page 19449]]

necessitate a review process to identify such concerns--but the FCC has 
found such a review process unwarranted under its public interest 
determination above. Because the FCC finds that such a requirement is 
not in the public interest for the deployment of small wireless 
facilities, the FCC cannot exercise the public interest authority to 
impose such duties. A contrary interpretation of its public interest 
authority under the Communications Act would require us to treat 
concerns under the NHPA and NEPA as dispositive. The FCC finds no 
grounds to believe that Congress intended the Commission, when 
exercising its Title III public interest authority, to summarily cast 
aside policy objectives of the Communications Act itself when interests 
implicated by NHPA or NEPA might be present. Instead, the FCC concludes 
that its approach of giving due consideration to the policy goals under 
Federal communications law along with those of the NHPA and NEPA better 
enables all relevant interests to be weighed in the public interest 
analysis. As clarified by its modification of Sec.  1.1312 of the 
rules, its geographic service licensing regime thus reflects neither 
any intent or ability to regulate the deployment of small wireless 
facilities after this order.
    55. The FCC also does not interpret language in the 1990 Order to 
suggest that the Commission believed that Federal environmental 
statutes required it to adopt a condition that triggered those statutes 
for construction not otherwise subject to Commission approval. The 1990 
Order does not include an analysis of the degree of Federal control 
required to trigger Federal environmental and historic preservation 
statutes. Rather, the 1990 Order addressed whether changes to an 
already-existing review requirement were warranted. To the extent that 
the Commission weighed historic preservation and environmental 
considerations in determining whether to amend its rules, the FCC reads 
those statements as part of its broader public-interest evaluation, not 
as an analysis of whether the rule's requirements constituted 
sufficient Federal involvement to rise to the level of a ``federal 
undertaking'' or ``major Federal action.''
    56. Other Comments. Its public interest balancing also is not 
materially altered by claims that the potential for Commission-imposed 
review can alter decisions about how and where to deploy small wireless 
facilities by causing providers to tailor the manner or location of 
such deployments to avoid implicating environmental and historic 
preservation concerns. Commenters' arguments in this regard are 
generalized, and undercut by its conclusion that, as a class, the 
nature of small wireless facility deployments appears to render them 
inherently unlikely to trigger environmental and historic preservation 
concerns. For example, deployment of small wireless facilities commonly 
(although not always) involves previously disturbed ground, where fewer 
concerns generally arise than on undisturbed ground. In addition, as 
the Commission recently observed, ``[i]n implementing large-scale 
network densification projects that require deployment of large numbers 
of facilities within a relatively brief period of time, use of existing 
structures, where feasible, can both promote efficiency and avoid 
adverse impacts on the human environment.'' Based on the entire record 
before us, the FCC is not persuaded that requiring Federal 
environmental and historic preservation review for small wireless 
facility deployments will have a meaningful amount of benefits, 
particularly when this consideration is balanced against the other 
public interest considerations associated with promoting the deployment 
of small wireless facilities.
    57. Because the FCC finds the record of claimed potential benefits 
to be limited and otherwise fundamentally speculative, the FCC also is 
not persuaded that some more streamlined review process or other 
alternative to the action the FCC takes is warranted in the public 
interest. For example, proposals to reduce the length of review would 
not eliminate the financial burdens of the review process, which would 
continue to delay deployment, whether required individually or on some 
aggregated basis. In addition, arguments that the Commission should 
exclude small wireless facilities from Sec.  1.1312 when deployed in a 
narrower range of circumstances do not demonstrate sufficient benefits 
to justify the burdens Sec.  1.1312 imposes even in a narrower context. 
The FCC further expects that the more generalized approach the FCC 
takes for small wireless facility deployments will provide greater 
clarity in implementation, rather than leaving providers with 
uncertainty about whether a given small wireless facility deployment is 
excluded. Finally, the FCC is not persuaded that it would be preferable 
to rely on programmatic agreements or similar measures to streamline or 
exclude small wireless facility deployment from review. Its amendment 
of Sec.  1.1312 of the rules involves a public interest evaluation 
under the Communications Act--an Act the FCC is responsible for 
administering--while programmatic agreements involve negotiations among 
multiple external parties that need not account for such 
considerations. In addition, given the importance of fostering small 
wireless facility deployment, the FCC is not persuaded that negotiated 
agreements would be warranted--even assuming arguendo that they 
ultimately resulted in the same outcome--given the time required for 
their negotiation and the associated delay in facilitating small 
wireless facility deployment.
* * * * *
    58. In sum, directly evaluating the question for the first time 
here, the FCC is not persuaded that it is in the public interest to 
exercise its limited reservation of authority to impose Sec.  1.1312 on 
small wireless facility deployments and thereby trigger environmental 
and historic preservation review. Although the record does not enable a 
precise quantification of costs and benefits, it amply supports its 
conclusion that environmental and historic preservation review imposes 
burdens on small wireless facility deployment, and the FCC expects that 
these burdens will have a significant effect on small wireless facility 
deployment, at least in the aggregate, given the volume and nature of 
small wireless facility deployments that the FCC anticipates. Imposing 
such burdens would be at odds with several of its statutory mandates, 
and the FCC exercises its predictive judgment in finding that the 
benefits of eliminating these burdens will include hastening wireless 
deployment and freeing up funds for additional deployments that will 
benefit consumers, grow the economy, and strengthen the country's 5G 
readiness.
    59. The FCC acknowledges, of course, the policy goals expressed by 
Federal environmental and historic preservation statutes. But Congress 
prescribed specific triggers for the obligations that those statutes 
impose on Federal agencies, persuading us that agencies' consideration 
of those statutes' more general policy pronouncements is simply to be 
weighed alongside consideration of its principal duties under its 
organic statutes. Thus, although the record does not persuade us of 
meaningful benefits that are likely to result from environmental and 
historic preservation review of small wireless facility deployments, 
even assuming arguendo that there are some benefits, the FCC is not 
persuaded that they are likely to overcome the harms

[[Page 19450]]

that the FCC finds run contrary to its responsibilities under the 
Communications Act, as informed by the Telecommunications Act of 1996. 
Accordingly, the FCC finds no basis to conclude here that it is in the 
public interest to apply Sec.  1.1312 to small wireless facility 
deployment, triggering environmental and historic preservation review.

II. Streamlining NHPA and NEPA Review for Larger Wireless Facilities

A. Clarifying the Section 106 Tribal Consultation Process

1. Background
    60. Notwithstanding its narrowing the scope of deployments subject 
to Section 106 and NEPA review, many constructions of wireless 
facilities will continue to be treated as Commission undertakings under 
the NHPA because they are subject to site-by-site licensing, they 
require antenna structure registration, or their size exceeds its 
definition of small wireless facility. The ACHP's regulations prescribe 
detailed procedures for the review of proposed undertakings, including 
consulting with Tribal Nations and NHOs. As authorized under the ACHP's 
rules, the Commission has entered into two NPAs and the ACHP has issued 
a program comment, each of which modifies the procedures set forth in 
the ACHP's rules to tailor them to different classes of Commission 
undertakings. Sec.  1.1320 of the FCC's rules directs applicants, when 
determining whether a proposed action may affect historic properties, 
to comply with the ACHP's rules or one of these program alternatives.
    61. An important component of the Section 106 process involves 
engaging and consulting with Tribal Nations and NHOs. section 101(d)(6) 
of the NHPA requires Federal agencies to consult with any Tribal Nation 
or NHO that attaches religious and cultural significance to a property 
eligible for inclusion on the National Register of Historic Places that 
may be affected by their undertakings. The ACHP rules implement that 
provision by requiring that agencies make a reasonable and good faith 
effort to identify such Tribal Nations or NHOs and invite them to be 
consulting parties. Procedures to implement this requirement are set 
forth in the Wireless Facilities NPA, which became effective in 2005. 
Properties to which Tribal Nations and NHOs attach cultural and 
religious significance are commonly located outside Tribal lands and 
may include Tribal burial grounds, land vistas, and other sites that 
Tribal Nations or NHOs regard as sacred or otherwise culturally 
significant. The consultation process for undertakings on Tribal lands 
is covered by separate provisions of the ACHP's rules, and is not 
addressed in this Order; as previously noted, nothing in this Order 
disturbs existing Commission practices for section 106 review on Tribal 
lands.
    62. In order to efficiently connect parties seeking to construct 
facilities with Tribal Nations while respecting Tribal sovereignty, the 
FCC established the Tower Construction Notification System (TCNS). TCNS 
is an online, password-protected system that notifies Tribal Nations, 
NHOs, and State Historic Preservation Officers (SHPOs) (collectively, 
recipients) of proposed wireless communications facility deployments in 
areas of interest designated by the recipients. The system also 
provides a means for Tribal Historic Preservation Officers (THPOs) and 
other Tribal or NHO officials to respond directly to applicants as to 
whether they have concerns about the effects of the proposed 
construction on historic properties.
    63. Tribal demands for fees that are not legally required to review 
projects submitted through TCNS have increased over the course of time. 
And though the FCC has taken steps to address these issues for small 
wireless facilities, the FCC takes further action here to address fee 
matters as they relate to the ongoing construction of macrocells and 
other large radio transmission facilities. The FCC also takes steps to 
make the Tribal participation process more efficient for applicants, 
Tribal Nations, and NHOs. The record details multiple issues causing 
confusion and delay in Tribal consideration of proposals submitted in 
TCNS. Many applicants have complained that there is uncertainty 
concerning how long a Tribal Nation will take in processing an 
application and that in some instances the process can extend for 
months or longer. Delays in obtaining Tribal comment on even a few 
individual sites can cause delays to larger projects and impede 
delivery of communications services to American consumers. In response, 
several Tribal commenters argue that most requests are handled in a 
timely manner. Moreover, Tribal governments have indicated that 
applicants often do not provide sufficient information in TCNS for a 
THPO or cultural preservation officer to opine as to whether a 
particular project may affect historic or cultural resources, thereby 
slowing the Tribal review process. The FCC addresses these concerns 
below.
2. Timeline for Initial Tribal Responses
    64. The NPA states that Tribal Nations and NHOs ordinarily should 
be able to respond to communications from applicants within 30 days,but 
applicants are required to seek guidance from the Commission if a 
Tribal Nation or NHO does not respond to the applicant's inquiries. The 
Commission, in 2005, issued a Declaratory Ruling establishing a process 
that enables an applicant to proceed toward construction when a Tribal 
Nation or NHO does not timely respond to a TCNS notification.
    65. In the Wireless Infrastructure NPRM, the Commission sought 
comment on the measures, if any, it should take to expedite the review 
processes for Tribal Nations and NHOs, either by amending the Wireless 
Facilities NPA or otherwise, while assuring that potential effects on 
historic preservation are fully evaluated. The Commission sought 
comment on whether the procedures established by the 2005 Declaratory 
Ruling (see Clarification of Procedures for Participation of Federally 
Recognized Indian Tribes and Native Hawaiian Organizations Under the 
Nationwide Programmatic Agreement, Declaratory Ruling, 20 FCC Rcd 16092 
(2005) (2005 Declaratory Ruling)) were adequate to ensure the 
completion of section 106 review when a Tribal Nation or NHO is non-
responsive. It also sought comment on whether these processes could be 
revised in a manner that would permit applicants to self-certify their 
compliance with the section 106 process and therefore proceed once they 
meet the Commission's notification requirements, without requiring 
Commission involvement. The Commission asked whether such an approach 
would be consistent with the Wireless Facilities NPA and with the 
Commission's legal obligations. The Commission also asked whether the 
information in FCC Form 620 or 621 is sufficient to meet the 
requirement that ``all information reasonably necessary'' has been 
provided to the Tribal Nation or NHO.
    66. In response to the Wireless Infrastructure NPRM, many 
commenters contend that further improvements to the process for 
engaging Tribal Nations and NHOs in Section 106 review are warranted. 
Evidence in the record indicates that there are often delays associated 
with Tribal review and that these delays can significantly affect 
service providers' ability to complete Section 106 review and move 
toward deployment. Delays associated with Tribal engagement can be 
substantial, with estimates of the average time to complete Tribal 
review ranging between 75 and 110 days per project where Tribal review 
is required. Several Tribal

[[Page 19451]]

Nations, however, dispute such arguments and note that they provide 
timely responses to communications from applicants in the vast majority 
of cases. With the number of deployments needed to support expanded 4G 
and 5G network technologies, service providers are increasingly 
concerned about the delays they are experiencing. Tribal 
representatives, however, contend that their ability to provide timely 
responses is impeded by some applicants who fail initially to provide 
them with sufficient information to determine their interest in a 
proposed project. They contend that, without sufficient information, 
they are forced to go back to applicants and request the information 
they need and that delays often result from repeated attempts to obtain 
needed information. For example, Tribal commenters have noted 
applicants' omission of key information, such as a precise location and 
a full description of the proposed project, and information needed to 
assess potential effects. They also point out that many delays are the 
result of applicants' error, such as failing to submit information to 
the Tribal point of contact identified in TCNS, or in some instances, 
submitting information to the wrong Tribal Nation altogether.
    67. The FCC takes several steps in this Order to make the Tribal 
participation process more efficient for applicants, Tribal Nations, 
and NHOs.
    68. First, to address Tribal concerns with receiving insufficient 
information to identify potentially affected historic properties, the 
FCC clarifies that going forward applicants must provide all 
potentially affected Tribal Nations and NHOs with a Form 620 (new 
towers) or Form 621 (collocations) submission packet in cases where 
this form is prepared for the SHPO following the requirements 
established in the Wireless Facilities NPA. While applicants retain the 
option of sending an initial notification of a proposed project to 
Tribal Nations and NHOs through TCNS without a Form 620/621 submission 
packet to provide an early opportunity for a Tribal Nation or NHO to 
disclaim interest, as described further below, the time period for a 
Tribal response will not begin to run until an applicant sends the Form 
620/621 submission packet or, when no Form 620/621 is required, the 
alternative submission discussed below. The Form 620/621 submission 
packet contains detailed information about proposed facilities, 
including their proposed location(s); the dimensions, scale, and 
description of proposed projects; and information about the potential 
direct effects and visual effects of the project. It also requires 
applicants to provide their contact information and to include 
attachments providing additional detail, such as photographs and maps 
of the proposed site. The FCC agrees with Tribal Nations and other 
commenters who contend that providing Tribal Nations and NHOs with this 
detailed set of information at the initial notification stage will 
enable them to determine more quickly whether a project may affect 
historic properties of religious and cultural significance to them. The 
FCC emphasizes to applicants the importance of completing the Form 620/
621 submission packet accurately and completely. Complete and accurate 
information about proposed facilities, including, for example, a 
specific and correct site address or a detailed description of the 
location of proposed facilities if no address is available as well as a 
complete description of all elements of the proposed facility, is 
critical to enable Tribal Nations and NHOs to identify potentially 
affected historic properties. Thus, if this information is inaccurate 
or incomplete, the FCC will not consider the time period for Tribal 
response to have started.
    69. The FCC disagrees that requiring applicants to send their Form 
620/621 submission packet to Tribal Nations and NHOs would be 
inconsistent with the requirements of the Wireless Facilities NPA. To 
the contrary, the Wireless Facilities NPA requires that applicants 
provide Tribal Nations and NHOs with ``all information reasonably 
necessary for the [Tribal Nation] or NHO to evaluate whether [h]istoric 
[p]roperties of religious and cultural significance may be affected.'' 
The process the FCC establishes here is consistent with this 
requirement because it provides Tribal Nations and NHOs with more 
complete information to evaluate proposed projects. Moreover, under the 
revised process the FCC establishes, applicants retain the ability to 
make initial notifications to Tribal Nations and NHOs before sending 
them Form 620/621 submission packets.
    70. The FCC finds that providing the detailed information included 
in the Form 620/621 submission packet constitutes a reasonable and good 
faith effort to provide the information reasonably necessary for Tribal 
Nations and NHOs to ascertain whether historic properties of religious 
and cultural significance to them may be affected by the undertaking. 
The record shows that some Tribal Nations request that applicants 
provide information such as ethnographic reports, SHPO concurrence 
letters, and other information in excess of what the Wireless 
Facilities NPA requires to be included in a Form 620/621 submission 
packet before making an initial determination about their interest in a 
proposed project. The FCC clarifies that to the extent that any such 
information exceeds what is required under the Wireless Facilities NPA 
to be included in a Form 620/621 submission packet, the FCC requires 
the applicant to provide it, if necessary, only after a Tribal Nation 
or NHO has indicated that a historic property may be affected and has 
become a consulting party. Thus, to the extent that Tribal Nations or 
NHOs currently have auto replies in TCNS requesting additional 
information from applicants, the Commission will remove such language.
    71. The FCC further clarifies that, if a Tribal Nation or NHO 
conditions its response to an applicant's submission packet on the 
receipt of additional information beyond that required in the Form 620/
621 submission packet, an applicant should respond that the FCC does 
not require the applicant to provide this information. If the Tribal 
Nation or NHO subsequently fails to indicate concerns about a historic 
property of traditional religious and cultural significance that may be 
affected by the proposed construction, the applicant may make use of 
the process described below for addressing instances in which Tribal 
Nations and NHOs do not initially respond. To the extent that Tribal 
Nations or NHOs seek to clarify information presented in the Form 620/
621 submission packet, such as by requesting an explanation of the 
photographs included in the submission packet, the FCC encourages 
applicants to provide the requested clarifications, and the parties may 
copy Commission staff on communications related to such requests. If 
circumstances require the Commission to help resolve a dispute about 
whether a Form 620/621 submission packet or alternative submission has 
been properly completed or other cases that may present unique issues, 
Commission staff will provide assistance when it is requested. In 
bringing a dispute to Commission staff, an objecting party should 
provide a complete and detailed explanation of the basis of the 
dispute, evidence regarding the information the applicant has provided 
to the Tribal Nation or NHO, and all communications between the 
applicant and the Tribal Nation or NHO.
    72. In cases in which a Form 620/621 submission packet is not 
required to be prepared for the SHPO because the construction does not 
require SHPO review, the FCC adopts a different procedure. The Wireless 
Facilities NPA

[[Page 19452]]

ordinarily excludes from Section 106 review by the SHPO, the 
Commission, and the ACHP certain categories of undertakings deemed to 
have minimal to no potential to affect historic properties. For two of 
these excluded categories, however, applicants are still required to 
identify and contact Tribal Nations and NHOs to ascertain whether 
historic properties of religious or cultural significance to them may 
be affected. In these instances where no Form 620/621 submission packet 
is otherwise prepared, the FCC requires applicants to provide Tribal 
Nations and NHOs with information adequate to fully explain the project 
and its location. At minimum, this alternate submission must include 
contact information for the applicant, a map of the proposed location 
of the facility, coordinates of the proposed facility, a description of 
the facility to be constructed including all proposed elements (such 
as, for example, access roads), and a description of the proposed site, 
including both aerial and site photographs. Given that applicants are 
not otherwise required affirmatively to identify historic properties 
within the Area of Potential Effects for these undertakings (other than 
the limited inquiry necessary to determine whether the exclusion 
applies), the FCC finds that this package constitutes an adequate 
baseline set of information to enable Tribal Nations and NHOs to 
comment on these projects. The FCC therefore disagrees with the 
contention that the FCC is required to provide Tribal Nations and NHOs 
with all the information contained in Form 620/621 in these instances.
    73. The FCC turns next to the timeframe for Tribal Nations and NHOs 
to respond to notifications by indicating any concerns about 
potentially affected historic properties. The FCC clarifies that the 
30-day period for a Tribal response provided in the Wireless Facilities 
NPA will begin to run on the date that the Tribal Nation or NHO can be 
shown to have received or may reasonably be expected to have received 
the Form 620/621 submission packet (or the alternative submission where 
no 620/621 packet has been prepared). Consistent with existing 
practice, applicants may use TCNS to provide an initial notification to 
Tribal Nations and NHOs about proposed facility deployments. As noted 
above, TCNS automatically notifies Tribal Nations and NHOs of proposed 
construction within the geographic areas they have identified as 
potentially containing historic properties of religious and cultural 
significance to them. A Tribal Nation or NHO receiving a notification 
of proposed construction through TCNS, however, is under no obligation 
to respond until it receives a Form 620/621 submission packet (or 
alternative submission). The 30-day period for a response indicating 
whether the Tribal Nation or NHO has concerns about a historic property 
of traditional religious and cultural significance that may be affected 
by the proposed construction will begin to run on the date that the 
Tribal Nation or NHO can be shown to have been, or may reasonably be 
expected to have been, notified that a Form 620/621 submission packet 
or alternative is available for viewing via TCNS. The FCC is cognizant 
of Tribal concerns that applicants sometimes submit information to 
outdated points of contact or deviate from Tribal Nations' preferred 
means of communications. Therefore, the FCC reminds applicants that, 
consistent with the requirements in Section IV of the Wireless 
Facilities NPA, contact and communications shall be made in accordance 
with preferences expressed by the Tribal Nation or NHO, and misdirected 
communications will not begin the period for Tribal response unless and 
until they are actually received. Where the Tribal Nation or NHO is 
notified by email that a Form 620/621 submission packet has been 
submitted, the submission packet is presumed to have been received on 
the day the submission packet is provided. Where the applicant sends 
the notification through the mail, the FCC will presume that the packet 
may reasonably be expected to have been received by no later than the 
fifth calendar day after the date it is sent.
    74. In addition to clarifying when the initial 30-day timeframe for 
Tribal response begins to run, the FCC also establishes a new procedure 
to address instances in which Tribal Nations or NHOs fail to respond 
after receiving a Form 620/621 submission packet. As noted above, the 
2005 Declaratory Ruling established a process to enable an applicant to 
proceed toward construction when a Tribal Nation or NHO does not 
respond to a TCNS notification in a timely manner. The Wireless 
Facilities NPA requires that, if an applicant does not receive a 
response after contacting a Tribal Nation or NHO, the applicant is 
required to make a reasonable attempt to follow up. Under the 2005 
Declaratory Ruling, if the Tribal Nation or NHO does not respond to a 
second contact within 10 calendar days after the initial 30-day period, 
the applicant can refer the matter to the Commission for guidance. Upon 
receiving a referral, the Commission contacts the Tribal Nation or NHO 
by letter or email to request that it inform the Commission and the 
applicant within 20 calendar days whether it has an interest in 
participating in the Section 106 review. In addition, Commission staff 
attempts a phone call unless the Tribal Nation or NHO has indicated it 
does not wish to receive calls. The Commission also informs the 
applicant when its letter or email has been sent. If the Tribal Nation 
or NHO does not respond within 20 days of the date of the Commission's 
written communication, it is deemed to have no interest in pre-
construction review and the applicant's pre-construction obligations 
under the Wireless Facilities NPA are discharged with respect to that 
Tribal Nation or NHO. Together, these procedures provide for a 60-day 
process for resolving cases where a Tribal Nation or NHO fails to 
provide a timely response to an initial notification provided through 
TCNS.
    75. In this Order, the FCC replaces the procedures outlined in the 
2005 Declaratory Ruling with new procedures that establish a 45-day 
process for moving forward with construction in cases in which Tribal 
Nations or NHOs do not respond after having been given the opportunity 
to review a Form 620/621 submission packet, or when no Form 620/621 
submission is required, an alternative submission. Under the process 
the FCC adopts here, if an applicant does not receive a response within 
30 calendar days of the date the Tribal Nation or NHO can be shown or 
may reasonably be expected to have received notification that the Form 
620/621 submission packet (or alternative submission) is available for 
review, the applicant can refer the matter to the Commission for 
follow-up. To facilitate prompt processing of its request, the 
applicant may submit its referral via TCNS. Upon receiving a referral, 
the Commission will contact promptly (and, in any case, within five 
business days) the Tribal Nation's or NHO's designated cultural 
resource representative by letter and/or email to request that the 
Tribal Nation or NHO inform the Commission and applicant within 15 
calendar days of the date of the letter and/or email of its interest or 
lack of interest in participating in the section 106 review. The 
Commission also will inform the applicant when this letter and/or email 
has been sent, either by copying it on the correspondence or by other 
effective means. If the Tribal Nation or NHO does not respond within 15 
calendar days, the applicant's pre-construction obligations are 
discharged with respect

[[Page 19453]]

to that Tribal Nation or NHO. As discussed above, the FCC establishes 
here that the information in the Form 620/621 submission packet (or the 
alternative submission where no 620/621 packet has been prepared) will 
be considered sufficient for Tribal Nations and NHOs to comment on 
proposed projects.
    76. The FCC concludes that these revised procedures satisfy the 
Commission's obligation to make reasonable and good faith efforts to 
identify Tribal Nations and NHOs that may attach religious and cultural 
significance to historic properties that may be affected by an 
undertaking, as specified by the Wireless Facilities NPA and as 
required under the NHPA and the rules of the ACHP. The revised 
procedures the FCC adopts will provide Tribal Nations and NHOs with a 
total period of 45 days to provide a response to an applicant's 
notification of a proposed construction. The 45-day period will also 
include a Commission-initiated reminder after 30 days have elapsed. 
While the process the FCC adopts provides less time for Tribal review 
than the process established in the 2005 Declaratory Ruling, it 
nonetheless allows a longer opportunity to respond than the 30-day 
period that the Wireless Facilities NPA stipulates as an ordinarily 
reasonable period for Tribal review. Overall, the FCC concludes that 
the procedures the FCC adopts here are reasonable and consistent with 
its consultation responsibilities.
    77. The FCC rejects requests for the Commission to allow applicants 
to move forward unilaterally without Commission involvement in the 
absence of a response from a Tribal Nation or NHO. The processes the 
FCC establishes herein are consistent with the provisions of the 
Wireless Facilities NPA that outline applicants' responsibilities with 
respect to Tribal Nations and NHOs. Section IV of the Wireless 
Facilities NPA stipulates that a Tribal Nation's or NHO's failure to 
respond to a single communication does not establish that the Tribal 
Nation or NHO is not interested in participating in the review of a 
proposed construction, and it requires applicants to seek guidance from 
the Commission in cases where a Tribal Nation or NHO does not respond 
to the applicant's inquiries. The revised procedures the FCC adopts 
here are faithful to these requirements by providing multiple 
opportunities for Tribal Nations and NHOs to express their interest in 
proposed constructions and by involving the Commission in the 
consultation process when an applicant has not received a response to 
its attempted communications. Moreover, the FCC expects that the 
revised procedures the FCC establishes here will reduce delays and 
facilitate resolution of cases where Tribal Nations or NHOs have not 
provided timely responses.
3. Tribal Fees
    78. In the Wireless Infrastructure NPRM, the FCC sought comment on 
a number of questions related to fees charged by Tribal Nations for 
their participation in the section 106 process. In this section, the 
FCC interprets the Commission's and applicants' obligations under the 
NHPA and the Wireless Facilities NPA, in light of ACHP guidance, to 
clarify that applicants are not required to pay fees requested by 
Tribal Nations or NHOs that have been invited to participate in the 
section 106 process. The FCC also clarifies the circumstances under 
which an applicant may be required to retain an appropriately qualified 
expert, who may be a representative of a Tribal Nation or NHO, to 
perform consultant services for which that expert may reasonably expect 
to be compensated.
    79. Neither the NHPA nor the ACHP's implementing regulations 
expressly address fees, nor does the Wireless Facilities NPA, but the 
ACHP, as the agency charged with implementing the NHPA, has issued 
guidance on the subject in a 2001 memorandum and as part of a handbook 
last issued in 2012. The ACHP's guidance repeatedly makes clear that 
the proponent of an undertaking is not required to accede to unilateral 
requests for payment. Rather, the agency (in its case, through its 
applicants) ``has full discretion'' on how to fulfill its legal 
obligation--namely the obligation to make ``reasonable and good faith 
efforts'' to identify historic properties that may be affected by its 
undertaking and invite potentially interested Tribal Nations and NHOs 
to be consulting parties.
a. Up-Front Fees
    80. Consistent with the Wireless Facilities NPA, once an applicant, 
through TCNS, has identified that particular Tribal Nations or NHOs may 
attach religious and cultural significance to historic properties 
located in the area that may be affected by an undertaking, the 
applicant contacts each such Tribal Nation or NHO, typically through 
TCNS, to ascertain whether there are in fact such properties that may 
be affected. The record indicates that, at this stage in the section 
106 review, some Tribal Nations are directing applicants to pay an 
``up-front fee'' before the Tribal Nation will respond to the contact. 
At no time to date has the Commission explicitly endorsed such up-front 
fees. The FCC now clarifies, consistent with ACHP guidance, that 
applicants are not required to pay Tribal Nations or NHOs up-front fees 
simply for initiating the Section 106 consultative process.
    81. At the time the Wireless Facilities NPA was adopted and TCNS 
was implemented, Tribal Nations generally did not request fees to 
review proposed constructions upon receiving notification. Over time, 
however, some Tribal Nations began assessing fees at notification, and 
gradually it became a more common practice. In addition, the amounts of 
these fees have increased significantly over the years, and industry 
commenters assert that the rate of increase itself has risen sharply in 
recent years. CCA contends, for example, that one of its member 
companies reports that the average amount it pays in Tribal fees 
increased from $381.67 per project in 2011 to more than $6,300 for 
projects in late 2016 to early 2017. Consequently, industry commenters 
ask that the Commission provide guidance on up-front fees. AT&T, for 
example, asks the Commission to establish that, ``if a carrier does not 
ask for `specific information and documentation' from the Tribal 
Nation, pursuant to the ACHP Handbook, then no contractor relationship 
has been established and no payment is necessary.'' NATHPO, on the 
other hand, argues that the relative rarity of instances in which tower 
construction has harmed historic properties demonstrates that the 
current system works, and it urges the Commission not to take actions 
that would limit Tribal capacity to become involved in the process.
    82. The ACHP's 2001 fee guidance memorandum addresses the practice 
of Tribal Nations and NHOs charging fees for their participation in the 
section 106 process. In that memorandum, the ACHP distinguishes between 
Tribal Nations participating in section 106 reviews in their capacity 
as government entities with a designated role in the process versus the 
possibility that they may be engaged to provide services in a different 
capacity, that of a consultant or contractor. The former capacity 
entails no obligation or expectation for the applicant to pay fees. The 
ACHP 2001 Fee Guidance explains that ``the agency or applicant is not 
required to pay the tribe for providing its views.'' The ACHP 2012 
Tribal Consultation Handbook echoes this guidance, and clearly states 
that no ``portion of the NHPA or the ACHP's regulations require[s] an 
agency or an applicant to

[[Page 19454]]

pay for any form of tribal involvement.'' Further, ``[i]f the agency or 
applicant has made a reasonable and good faith effort to consult with 
an Indian tribe and the tribe refuses to respond without receiving 
payment, the agency has met its obligation to consult and is free to 
move to the next step in the section 106 process.'' The Handbook does 
acknowledge that there may be circumstances in which payment is 
reasonably expected, but not merely for acting in the Tribal Nation's 
governmental capacity:

. . . during the identification and evaluation phase of the Section 
106 process when the agency or applicant is carrying out its duty to 
identify historic properties that may be significant to an Indian 
tribe, it may ask a tribe for specific information and documentation 
regarding the location, nature, and condition of individual sites, 
or even request that a survey be conducted by the tribe. In doing 
so, the agency or applicant is essentially asking the tribe to 
fulfill the duties of the agency in a role similar to that of a 
consultant or contractor. In such cases, the tribe would be 
justified in requesting payment for its services, just as is 
appropriate for any other contractor.

    83. The up-front fees requested by some Tribal Nations for 
providing their initial assessment as part of the Section 106 review 
process do not compensate Tribal Nations for fulfilling specific 
requests for information and documentation, or for fulfilling specific 
requests to conduct surveys. They are more in the nature of a 
processing fee, in exchange for which the Tribal Nation responds to the 
applicant's contact, and to the extent necessary, reviews the materials 
submitted before indicating whether the Tribal Nation has reason to 
believe that historic properties of religious and cultural significance 
to it may be affected. In recognition of ACHP guidance and having 
reviewed the record, the FCC affirms that applicants are not required 
to pay up-front fees to Tribal Nations and NHOs to initiate section 106 
reviews. Thus, fees need not be paid to obtain a response to an 
applicant's initial contact with a Tribal Nation or NHO and, to the 
extent that Tribal Nations or NHOs currently have auto replies in TCNS 
requesting that applicants pay up-front fees, the Commission will 
remove such language. If a Tribal Nation or NHO nevertheless purports 
to condition its response to an applicant's TCNS contact on the receipt 
of up-front compensation, the FCC will treat its position as a failure 
to respond, and the applicant will be able to avail itself of the 
process discussed above for when a Tribal Nation or NHO fails to supply 
a timely response. The FCC finds such an approach to be consistent with 
the ACHP's guidance that, where the agency or applicant ``has made a 
reasonable and good faith effort to consult with an Indian tribe and 
the tribe refuses to respond without receiving payment, the agency has 
met its obligation to consult and is free to move to the next step in 
the section 106 process.''
    84. A number of Tribal Nations have argued that Tribal sovereignty 
prohibits the Commission from establishing rules about fees. The FCC 
emphasizes that no action it takes here questions or interferes with 
Tribal Nations' rights to act as sovereigns. The FCC does not dictate 
or proscribe any actions by Tribal Nations. The FCC simply clarifies 
that nothing in the applicable law of the United States--the NHPA, ACHP 
rules, and the Wireless Facilities NPA--requires applicants (or the 
Commission for that matter) to pay up-front fees as part of the Section 
106 process. Accordingly, Tribal Nations remain free to request upfront 
fees and applicants may, if they choose, voluntarily pay such fees. If, 
however, a Tribal Nation or NHO opts not to provide its views without 
an up-front payment, and the applicant does not voluntarily agree to 
provide the payment, consistent with the ACHP's guidance, its 
obligations have been satisfied and the FCC may allow its applicant to 
proceed with its project after the 45-day period described above.
    85. Some Tribal Nations assert that they are entitled to up-front 
fees to compensate them for the effort or cost of participating in the 
section 106 process. For instance, some Tribal commenters have 
indicated that they rely upon up-front fees to fund their section 106 
activities or to eliminate the administrative burden of calculating 
actual costs incurred in reviewing each TCNS submission. Other Tribal 
commenters maintain that they should be compensated because their up-
front fees are meant to cover their actual average costs associated 
with reviewing and commenting on commercial projects. While this may be 
true, the fact remains that the law and applicable guidance do not 
require the Commission and its applicants to compensate Tribal Nations 
and NHOs for providing their comments or views in the context of the 
section 106 process. Moreover, in light of its decision above to 
require that an applicant provide a completed FCC Form 620/621 or 
alternative submission when a project is proposed within a Tribal 
Nation's or NHO's geographic area of interest, the FCC finds that in 
most instances, a Tribal Nation or NHO should have sufficient 
information to provide comment on the undertaking and its potential to 
affect an historic property of significance to it. In assessing the 
applicant's submission during the initial consultation stage, the FCC 
believes it reasonable to expect a Tribal Nation or NHO to rely on 
information already in its possession. If a Tribal Nation elects to 
conduct research to obtain this information, however, the ACHP's 
guidance does not assign responsibility to applicants to fund such 
research.
    86. While certain commenters claim they should be entitled to a 
share of revenue from commercial ventures that may impact their 
cultural heritage, the fact that its applicants frequently are for-
profit entities is irrelevant to whether fees for non-consultant 
services should be required. Finally, some commenters assert that 
Tribal Nations act in a consultant capacity and therefore are entitled 
to compensation at all stages of a project, including from the moment 
the review process begins. The FCC disagrees, as such an interpretation 
conflicts with ACHP guidance indicating when fees may be appropriate. 
In the section that follows, the FCC discusses the ACHP's guidance on 
consultant fees.
b. Consultant Fees
    87. As noted above, the ACHP's 2001 fee guidance memorandum states 
that, when a Tribal Nation ``fulfills the role of a consultant or 
contractor'' when conducting reviews, ``the tribe would seem to be 
justified in requiring payment for its services, just as any other 
contractor,'' and the applicant or agency ``should expect to pay for 
the work product.'' The FCC sought comment in the Wireless 
Infrastructure NPRM on the circumstances under which a Tribal Nation or 
NHO might act as a contractor or consultant and expect compensation, as 
well as whether and how the Commission might provide guidance regarding 
the fees to be paid for such services. The FCC also sought input on how 
a Tribal Nation's or NHO's request for fees interacts with the 
obligation to use reasonable and good faith efforts to identify 
historic properties.
    88. In addition to requests for up-front fees addressed above, 
Tribal Nations have requested payment for activities undertaken after 
the initial determination that historic properties are likely to be 
located in the site vicinity, including monitoring and other activities 
directed toward completing the identification of historic properties as 
well as assessing and mitigating the project's impacts on those 
properties. As described more fully below, the FCC finds that while an 
applicant may

[[Page 19455]]

negotiate and contract with a Tribal Nation or NHO for such services, 
an applicant is not obligated to hire a Tribal Nation or accede to 
Tribal requests for fees in the absence of an agreement.
    89. As noted above, ACHP guidance states that no ``portion of the 
NHPA or the ACHP's regulations require an agency or an applicant to pay 
for any form of Tribal involvement'' in section 106 reviews. Thus, as 
discussed above, when a Tribal Nation or NHO is participating in the 
section 106 review process in response to a notification or request to 
consult on the identification of historic properties, payment is not 
required. The ACHP acknowledges that an agency or applicant may ask a 
Tribal Nation or NHO to perform work, such as providing specific 
information or documentation or conducting surveys--just as the 
applicant may negotiate a commercial agreement with any other qualified 
contractor. If the applicant asks the tribal Nation or NHO to perform 
work, ``the agency or applicant essentially is asking the tribe to 
fulfill the duties of the agency in a role similar to that of a 
consultant or contractor. In such cases, the tribe would be justified 
in requesting payment for its services, just as is appropriate for any 
other contractor.'' Applying the ACHP's guidance, the FCC finds that, 
if an applicant asks a Tribal Nation or NHO to perform work of the type 
described by the ACHP, the applicant should expect to negotiate a fee 
for that work. If, however, the applicant and the Tribal Nation or NHO 
are unable to agree on a fee, the applicant may seek other means to 
fulfill its obligations. The ACHP Handbook specifically addresses this 
scenario: ``The agency or applicant is free to refuse just as it may 
refuse to pay for an archaeological consultant, but the agency still 
retains the duties of obtaining the necessary information for the 
identification of historic properties, the evaluation of their National 
Register eligibility, and the assessment of effects on those historic 
properties, through reasonable means.'' In other words, so long as the 
underlying obligation to make reasonable and good faith efforts to 
identify historic properties is satisfied, the applicant is not bound 
to any particular method of gathering information.
    90. The FCC emphasizes that while applicants must make reasonable 
and good faith efforts, they are not required to make every possible 
effort to identify potentially affected properties. In fact, the ACHP 
regulations ``do not require identification of all properties'' 
(emphasis in original). The ACHP makes this clear in its guidance on 
``Meeting the `Reasonable and Good Faith' Identification Standard in 
section 106 Review.'' In that document, the ACHP states that:

``[i]t is . . . important to keep in mind what a reasonable and good 
faith effort does not require:
    The ``approval'' of a SHPO/THPO or other consulting party. The 
ACHP, SHPO/THPO and other consulting parties advise and assist the 
federal agency official in developing its identification efforts, 
but do not dictate its scope or intensity.
    Identification of every historic property within the APE. One of 
the reasons the ACHP's regulations contain a post-review discovery 
provision (36 CFR 800.13) is that a reasonable and good faith effort 
to identify historic properties may well not be exhaustive and, 
therefore, some properties might be identified as the project is 
implemented.''

That is to say, perfection is not required in the section 106 review 
process. Thus, the mere possibility that every possible historic 
property may not be identified does not inherently render the 
applicant's efforts inadequate.
    91. In addition to charging fees to assist in the identification of 
historic properties, some Tribal commenters have suggested that they 
are entitled to compensation for monitoring or other services they find 
necessary to assess impacts and mitigate adverse effects once historic 
properties have been identified. In these instances, the same principle 
applies as in the case of fee requests to assist in identification of 
historic properties. That is, the applicant is ultimately responsible 
for satisfying its obligations under the FCC's rules, including the 
Wireless Facilities NPA. The applicant must invite a Tribal Nation or 
NHO that identifies a historic property of religious and cultural 
significance that may be affected to become a consulting party and must 
provide it with all of the information, copies of submissions, and 
other prerogatives of a consulting party. The Tribal Nation or NHO will 
have the opportunity to provide its views on the potential effect on 
the identified historic property, and to comment on alternatives to 
avoid or mitigate any harm. The applicant is not presumed to be 
required to engage the services of any particular party, including a 
Tribal Nation or NHO, either to identify historic properties or to 
monitor efforts to avoid or minimize harm. An applicant is free to 
engage a Tribal Nation or NHO as a paid consultant at any point in the 
section 106 process, but it is under no obligation to do so. While a 
Tribal Nation or NHO, in certain circumstances, may possess the 
greatest knowledge relevant to assessing a particular site, the 
obligation placed on the Commission and applicants under the ACHP rules 
and the Wireless Facilities NPA requires only a reasonable and good-
faith review.
    92. Consistent with the ACHP's guidance, the FCC finds that an 
applicant is not required to hire any particular person or entity to 
perform paid consultant services. To the contrary, the FCC expects 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. To ignore these dynamics would be 
fundamentally inconsistent with the notion that an agency and its 
applicants throughout the section 106 process are only required to 
exercise reasonable efforts. The applicant may generally hire any 
properly qualified consultant or contractor when expert services are 
required, whether in the course of identifying historic properties, 
assessing effects, or mitigation. The appropriate qualifications will 
depend upon the work to be performed. For example, different 
qualifications may be needed to confirm the presence or absence of 
archeological properties during a site visit, to apply traditional 
knowledge in assessing the significance of above-ground features, or to 
monitor construction. In any event, the Wireless Facilities NPA 
stipulates that with respect to the identification and evaluation of 
historic properties, any assessment of effects shall be undertaken by a 
professional who meets the Secretary of the Interior's Professional 
Qualification Standards.
    93. In addition, the FCC finds that inherent in the ACHP's guidance 
recognizing that an applicant may choose to engage a Tribal Nation or 
NHO to provide services is the corollary that a Tribal Nation or NHO 
need only be compensated for fulfilling its role as a consultant or 
contractor where there is an agreement in place between the Tribal 
Nation and the applicant to perform a compensable service. Without such 
an agreement, the applicant has not undertaken to engage the Tribal 
Nation or NHO, and it is not compelled to comply with a unilateral 
request for fees.
    94. Finally, there may be individual cases in which the applicant 
and a Tribal Nation or NHO disagree on whether the applicant has met 
the reasonable and good faith standard in connection with the hiring of 
paid consultants, including considerations of whether consultant 
services are necessary, what qualifications are required, and whether 
the applicant's chosen consultant meets those

[[Page 19456]]

qualifications. In particular, there may be disputes about whether the 
applicant has obtained a qualified consultant or has unreasonably 
refused to use a Tribal Nation or NHO as a consultant in light of the 
amount of the fee requested by the Tribal Nation or NHO for such 
services. In such cases, either party may ask the Commission to decide 
whether the applicant's obligations have been satisfied, and Commission 
staff will continue to make determinations where it has been provided 
with complete information and evidence as described below. In case of a 
dispute, the applicant will have the burden of stating facts to 
substantiate its claim that it has met the reasonable and good faith 
standard in connection with the hiring of paid consultants within 15 
days of being directed to do so. After the applicant has stated such 
facts, the objecting party will then have the burden of stating facts 
showing that the applicant has not met such standard within 15 days of 
being directed to do so. In determining whether the reasonable and good 
faith standard has been met, Commission staff will consider all 
relevant facts, including but not limited to ``the special expertise 
possessed by Indian tribes and Native Hawaiian organizations in 
assessing the eligibility of historic properties that may possess 
religious and culture significance to them;'' the nature and 
significance of the historic property at issue, the fees sought by the 
Tribal Nation or NHO; the qualifications and expertise of, and fees 
charged by, other paid consultants, either on the project in question 
or in comparable situations; the qualifications of any consultant that 
the applicant wishes to engage in lieu of a Tribal consultant, and all 
actions the applicant has taken to satisfy its obligations.

B. Reforming the FCC's Environmental Review Process

    95. Separate and apart from the section 106 process, the Wireless 
Infrastructure NPRM sought comment on ways the Commission might 
streamline its environmental compliance regulations and processes while 
ensuring it meet its NEPA obligations. In particular, the Commission 
sought comment on whether to revise or eliminate Sec.  1.1307(a)(6) of 
the rules, which governs EAs or proposed facilities located in 
floodplains, and on any measures it could take to reduce unnecessary 
processing burdens consistent with NEPA. The FCC now takes actions to 
address both of these concerns.
    96. The Commission's rules require an applicant to prepare and file 
an EA if its proposed construction meets any of several conditions 
specified in the rules, designed to identify construction that is 
located in an environmentally sensitive area or that has other 
potentially significant environmental impacts. All other constructions 
are categorically excluded from environmental processing unless the 
processing bureau determines, in response to a petition or on its own 
motion, that the action may nonetheless have a significant 
environmental impact. In implementing NEPA, the Commission has 
delegated preparation of EAs to applicants. Nevertheless, the 
Commission is responsible for the EA's content, scope, and evaluation 
of environmental issues.
    97. If the applicant files an EA, then members of the public are 
given the opportunity to file informal complaints or petitions to deny. 
Commission staff review the application and any informal complaints or 
petitions to deny that have been filed, and consider whether the 
proposed facility will cause any significant impacts on the 
environment. If such impacts are found, the applicant is given an 
opportunity to reduce, minimize, or eliminate the impacts by changing 
some aspect of the project. If no such impacts are found, or once any 
impacts that are found have been reduced below the level of 
significance, then the Commission staff completes the environmental 
review process by issuing a Finding of No Significant Impact (FONSI). 
The rules forbid the applicant from initiating any construction 
activities until the FONSI is issued.
    98. The following sections (1) adopt changes to the rules governing 
facilities located in floodplains; and (2) implement procedural changes 
to accelerate the environmental review process. Consistent with the 
Commission's past practice, where other Federal agencies have assumed 
responsibility for environmental review of proposed facilities, such as 
the Bureau of Indian Affairs on Tribal lands it oversees, the 
Commission defers to those agencies' own NEPA practices. The FCC 
continues that policy in this order, and therefore the measures adopted 
below do not apply on Tribal lands.
1. Environmental Assessments of Facilities Located in Floodplains
    99. In the Wireless Infrastructure NPRM, the Commission sought 
comment on whether to revise or eliminate Sec.  1.1307(a)(6) of the 
rules, which governs environmental assessments of proposed facilities 
located in floodplains. Specifically, the Commission sought comment on 
whether to revise its rules to remove the EA requirement for ``siting 
in a floodplain when appropriate engineering or mitigation requirements 
have been met.'' The Commission recognized that many parties advocated 
that ``EAs . . . be eliminated for deployments on flood plains . . . if 
a site will be built at least one foot above the base flood elevation 
and a local building permit has been obtained.'' For the reasons 
discussed below, the FCC hereby amends this rule to eliminate the 
requirement for an EA if a proposed facility meets certain engineering 
requirements intended to mitigate environmental effects.
    100. A floodplain is defined as a relatively flat lowland area 
adjacent to inland or coastal waters that faces a significant chance of 
flooding each year. Large portions of the country lie within 
floodplains, including areas where an estimated 10 percent of Americans 
live. The devastating consequences of large-scale flooding caused by 
natural disasters--such as Hurricanes Harvey, Irma, Maria, and Nate 
within the past year--starkly illustrate the potential hazards that 
flooding may pose to life and property in flood-prone areas. In 
particular, the flooding in the wake of these storms ``devastated . . . 
the communications networks that serve'' communities and poses concerns 
about ``the resilience of the communications infrastructure [and] the 
effectiveness of emergency communications'' in these areas.
    101. To address these risks, Congress has enacted laws intended to 
anticipate and minimize flood risks by encouraging development outside 
flood-prone areas if possible and by promoting land-management policies 
and construction techniques that reduce or mitigate the risk of flood 
damage. The Commission's rule, which references Executive Order 11988, 
requires the submission of an EA for facilities to be constructed in a 
floodplain.
    102. Section 1.1307(a)(6) of the Commission's rules requires a 
party proposing to deploy a facility such as a wireless antenna tower 
in a base floodplain to submit an EA. The EA requirement under this 
provision is triggered solely by the facility's location in a 
floodplain. The Commission's rules, however, do not identify the 
criteria an applicant must satisfy to address potential environmental 
effects of facilities in floodplains.
    103. Informal staff guidelines available on the Commission's 
website state that EAs for proposed facilities located in floodplains 
should include

[[Page 19457]]

(1) a copy of the section of a Federal Emergency Management Agency 
(FEMA) map showing the proposed site location; and (2) a copy of the 
building permit issued by the local jurisdiction (or, if such a permit 
is unavailable, other independent verification) confirming that the 
proposed structure will be at least one foot above the base flood 
elevation of the floodplain. Thus, the primary focus of Commission 
review in issuing a FONSI is whether the facility is in the floodplain 
and, if it is, whether the proposed structure is at least one foot 
above the base flood elevation of that floodplain.
    104. The FCC finds that a more streamlined NEPA review framework 
would be as effective as the existing rules in carrying out its NEPA 
obligations with respect to facilities located in floodplains and would 
more efficiently promote its infrastructure deployment goals. 
Specifically, as discussed below, the FCC will dispense with the 
existing requirement that an applicant file an EA solely due to the 
location of a proposed facility in a floodplain, so long as such 
proposed facility, including all associated equipment, is at least one 
foot above the base flood elevation of the floodplain. By avoiding the 
direct costs of preparing unnecessary EAs, as well as the costly impact 
of procedural delays, this change will increase providers' capacity to 
invest in deploying more facilities; and the time saved by skipping the 
time-consuming review process will enable them to accelerate such 
deployments. At the same time, the one-foot elevation requirement will 
continue to ensure that such deployments are properly sited to avoid 
adverse floodplain impacts.
    105. Comments filed by state transportation officials, 
infrastructure developers, and wireless carriers support its conclusion 
that the current floodplain-related EA filing and review process 
imposes excessive burdens that are not justified by offsetting 
benefits. The Washington State Department of Transportation points out 
that communications projects often ``can be located in a floodplain 
without having a direct or indirect impact on floodplain function,'' 
and accordingly, suggests that an EA should not be required routinely 
``solely because an action is sited in a floodplain.'' Several 
infrastructure and service providers report that the vast majority of 
the EAs they have been required to prepare were for deployments sited 
in floodplains, yet the Commission staff ultimately issued FONSIs for 
all of them, with no need for mitigation measures or other changes. 
Preparation of such EAs may require consulting services that, according 
to some commenters, often cost thousands of dollars and several months 
of time.
    106. Many parties argue that EAs for floodplain deployments are 
redundant because local zoning authorities review the same projects and 
grant construction permits only after confirming that they comply with 
floodplain-related requirements in their building codes. These parties 
contend that the Commission conducts no independent analysis or data-
gathering, but rather simply relies on local authorities' building 
permits to confirm compliance with the identical floodplain-related 
criterion that the proposed structure will be at least one foot above 
the base flood elevation. In light of these considerations, many 
commenters argue that the Commission should revise its rules to require 
EAs for deployments sited in floodplains only if the facilities and 
associated equipment are not located at least one foot above the base 
flood elevation and/or have not been issued building permits confirming 
that they satisfy this criterion. Others contend that the Commission's 
floodplain EA requirement should be eliminated altogether.
    107. The FCC acknowledges concerns raised by commenters about 
maintaining technical requirements for constructing facilities in 
floodplains to mitigate the risks of damage caused by hurricanes. The 
2017 U.S. hurricane season highlights the critical importance of 
employing proper engineering and design techniques to mitigate or 
minimize flood-related risks, assure public safety, maintain the 
resiliency of communications networks, and protect the natural 
environment. The FCC notes that state and local zoning and construction 
requirements, FEMA requirements, and other relevant laws will, of 
course, continue to ensure that these important considerations are 
addressed.
    108. To address both industry's efficiency concerns and the 
concerns expressed in the record about the potential effects of 
inappropriate construction in floodplains, the FCC amends Sec.  
1.1307(a)(6) to eliminate the requirement that applicants file an EA 
for facilities to be constructed on a flood plain, provided that the 
facilities, including all associated equipment, are constructed at 
least one foot above the base flood elevation. The FCC believes that 
facilities built in compliance with this new rule will ``reduce the 
risk of flood loss [and] minimize the impact of floods on human safety, 
health and welfare.'' Accordingly, provided that no other criteria 
trigger an EA under its rules, such projects will have no significant 
effects on the quality of the human environment, within the meaning of 
NEPA, that would require the preparation of EAs or other environmental 
processing.
    109. The FCC concludes that this new, streamlined regulatory 
framework fully satisfies its obligations under NEPA and maintains 
regulatory oversight to ensure continued implementation of practices 
that protect against environmental degradation that otherwise could be 
caused by construction of facilities in floodplains. At the same time, 
the elimination of the EA-filing requirement and pre-construction 
environmental processing by the Commission will enable providers to 
build these facilities more rapidly and at lower cost. It thus will 
make a significant contribution towards advancing its objective of 
removing regulatory processes and burdens that dampen investment and 
hamper deployment of wireless communications infrastructure. As a 
result, this new framework for floodplain deployment should help 
promote expedited deployment of the facilities needed to bring advanced 
technologies and services to consumers across the country.
2. Timeframes for Commission To Act on Environmental Assessments
    110. As noted above, the Wireless Infrastructure NPRM sought 
comment on ways the Commission could reduce unnecessary processing 
burdens by streamlining the environmental review procedures that it is 
required to conduct before the deployment of infrastructure is 
authorized. Here, the FCC commits to timeframes for reviewing and 
processing EAs in order to provide greater certainty and transparency 
to applicants, thereby facilitating broadband deployment.
    111. The FCC's rules require that each filed EA be placed on public 
notice for a period of 30 days to allow for public input. For most 
towers for which an EA is submitted, the Commission issues a Finding of 
No Significant Impact (FONSI) approximately fifteen days after the 
close of the notice period. The fifteen days allows for timely informal 
complaints and petitions to deny to reach the reviewing staff and for 
administrative processing. Delays can occur if an EA is incomplete 
(e.g., missing permits or other agency approvals), if the underlying 
application requires perfecting amendments, if an informal complaint or 
petition to deny is filed in response to the public notice, or if the 
staff determines additional information is needed in order to meet the 
Commission's NEPA obligations.
    112. Industry commenters argue that NEPA compliance results in 
significant

[[Page 19458]]

delays. Some commenters complain about delays associated with EAs--
which T-Mobile states may ``languish for an extended period of time--
sometimes years,'' partly because the Commission is not subject to any 
processing timelines or dispute resolution procedures for EAs. WIA 
similarly argues that the environmental review process is a significant 
source of delay for deployment and shot clocks are needed to process 
EAs and to resolve environmental delays and disputes. On the other 
hand, American Bird Conservancy, an environmental organization, claims 
that industry claims are ``unfounded'' and that tower applications move 
through the FCC system on average within 45 days.
    113. The FCC concludes that providing applicants with greater time 
certainty will benefit both applicants and the public that relies on 
their services, and will hasten deployment. In particular, for the 
great majority of cases in which the EA is complete as submitted and 
will support a FONSI, the FCC directs its staff to complete review and 
to issue the FONSI within 60 days from placement on notice, either by 
publication of a public notice or posting on the website (hereafter 
``on notice''). The FCC concludes that this time period is reasonable 
and generally attainable for several reasons. First, staff currently 
completes review and processing of approximately 75 percent of EAs 
within 60 days, with most of the remainder completed within 90 days. 
The FCC is aware of no reason that the 60-day period for review and 
processing cannot be extended to all EAs that are complete as 
submitted, in the absence of public objections or substantive concerns. 
At the same time, the FCC believes a 60-day window is necessary in 
order to accommodate the 30-day notice period, additional time for 
timely objections to reach the reviewing staff, and administrative 
processing. The FCC also notes that 60 days is less than the three-
month period that CEQ recommends as an outer boundary for agencies to 
complete their internal processing of EAs. To the extent current 
practice is to complete review and processing in less than 60 days, 
this action is not intended to prolong the review process.
    114. Specifically, to accomplish this goal, the FCC directs it 
staff to review an EA for completion and adequacy to support a FONSI 
within 20 days from the date it is placed on notice. This review is 
necessary to determine whether the EA is missing information that is 
necessary to demonstrate whether the facility would significantly 
affect the environment for any of the reasons specified in Sec.  
1.1307(a) and (b) or that is otherwise required under the Commission's 
rules. Assuming the EA is complete and would substantively support a 
FONSI without requiring additional information, staff shall notify the 
applicant that, barring filing of an informal complaint or petition to 
deny, the bureau will issue a FONSI within 60 days from placement on 
notice. This process is in keeping with its obligations under NEPA to 
review and analyze potential environmental impacts of proposed actions, 
and to make FONSIs available to the public.
    115. If, however, the EA is missing necessary information or if 
staff determines that it needs to consider additional information to 
make an informed determination, staff will notify the applicant of the 
additional information needed within 30 days after the EA is placed on 
notice. The additional period of up to 10 days beyond the initial 20-
day review period will give staff an opportunity to prepare a request 
for more information. Where the missing information is not of a nature 
that is likely to affect the public's ability to comment on 
environmental impacts, then consistent with current practice, the 
application will not again be placed on notice. In such cases, staff is 
directed to complete the review and issue a FONSI, if warranted, within 
30 days after the missing information is provided or 60 days after the 
initial notice, whichever is later.
    116. Where information is missing that may affect the public's 
ability to comment on significant environmental impacts, the 
application will again be placed on notice when that information is 
received. In addition, Commission staff may identify reasons that a 
proposal may have a significant environmental impact outside of those 
the applicant is affirmatively required to consider under the 
Commission's rules, and in such cases, the applicant's provision of 
information or amendment of its application to address the concern will 
ordinarily require additional public notice. Under these circumstances, 
a new 60-day period for review and processing will begin upon 
publication of the additional notice.
    117. Where an informal complaint or petition to deny is filed 
against an application containing an EA, the Commission's rules afford 
the applicant an opportunity to respond and the petitioner or objector 
an opportunity to reply. In such cases, the staff will endeavor to 
resolve the contested proceeding within 90 days after the relevant 
pleading cycle has been completed, or the FCC otherwise has received 
all information that the FCC has requested from the applicant.

List of Subjects in 47 CFR Part 1

    Administrative practice and procedure, Civil rights, Claims, 
Communications common carriers, Cuba, Drug abuse, Environmental impact 
statements, Equal access to justice, Equal employment opportunity, 
Federal buildings and facilities, Government employees, Income taxes, 
Indemnity payments, Individuals with disabilities, Investigations, 
Lawyers, Metric system, Penalties, Radio, Reporting and recordkeeping 
requirements, Telecommunications, Television, Wages.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 1 as follows:

PART 1--PRACTICE AND PROCEDURE

0
1. The authority citation for part 1 continues to read as follows:

    Authority: 47 U.S.C. 151, 154(i), 155, 157, 160, 201, 225, 227, 
303, 309, 332, 1403, 1404, 1451, 1452, and 1455, unless otherwise 
noted.


0
2. Section 1.1307(a)(6) is revised to read as follows:


Sec.  1.1307  Actions that may have a significant environmental effect, 
for which Environmental Assessments (EAs) must be prepared.

    (a) * * *
    (6) Facilities to be located in floodplains, if the facilities will 
not be placed at least one foot above the base flood elevation of the 
floodplain.

* * * * *

0
3. Section 1.1312 is amended by revising paragraph (e) to read as 
follows:


Sec.  1.1312  Facilities for which no preconstruction authorization is 
required.

* * * * *
    (e) Paragraphs (a) through (d) of this section shall not apply:
    (1) To the construction of mobile stations; or
    (2) Where the deployment of facilities meets the following 
conditions:
    (i) The facilities are mounted on structures 50 feet or less in 
height including their antennas as defined in Sec.  1.1320(d), or the 
facilities are mounted on structures no more than 10 percent taller 
than other adjacent structures, or the facilities do not extend 
existing structures on which they are located to a height of more than 
50 feet or by more than 10 percent, whichever is greater;

[[Page 19459]]

    (ii) Each antenna associated with the deployment, excluding the 
associated equipment (as defined in the definition of antenna in Sec.  
1.1320(d)), is no more than three cubic feet in volume;
    (iii) All other wireless equipment associated with the structure, 
including the wireless equipment associated with the antenna and any 
pre-existing associated equipment on the structure, is no more than 28 
cubic feet in volume; and
    (iv) The facilities do not require antenna structure registration 
under part 17 of this chapter; and
    (v) The facilities are not located on tribal lands, as defined 
under 36 CFR 800.16(x); and
    (vi) The facilities do not result in human exposure to 
radiofrequency radiation in excess of the applicable safety standards 
specified in Sec.  1.1307(b).


Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer, Office of the Secretary.
[FR Doc. 2018-08886 Filed 5-2-18; 8:45 am]
BILLING CODE 6712-01-P