(Commission is looking for ways to streamline the site permitting process)

tower-4At its April 2017 meeting, the FCC finally adopted a long awaited Notice of Proposed Rulemaking and Notice of Inquiry addressing the many frustrations faced by tower builders, wireless carriers, and others who have run the painful and often lengthy gauntlet of getting a local building permit for a communications station.   The Commission had been hearing a chorus of complaints from the tower and wireless industries that local permitting authorities and Native American tribes were seriously slowing down the permit process and often charging excessive “fees” for reviewing the applications.  With the prospect of hundreds of thousands of microcells being needed in connection with the imminent arrival of the Internet of Things, these costs and delays threatened to cripple not only the nation’s ability to roll out microcell technology but also the construction of the macrocells needed to serve rural areas that continue to suffer from a lack of high speed broadband.  The FCC heard the cries of its people and has proposed a number of actions to address these issues.

We begin by noting that the Communications Act, the National Historic Preservation Act, and the National Environmental Protection Act all circumscribe the FCC’s freedom to maneuver in this area.  The existing federal laws allow local authorities their traditional rights to regulate land use, with some important exceptions.  The historic preservation and environmental laws also require the FCC, again with important exceptions, to ensure that historical, tribal and environmental values are duly taken into account before FCC-authorized construction activity takes place.  The FCC’s tricky task is to accommodate these various statutory missions while also clearing an efficient, untangled, uncluttered path to ubiquitous high speed broadband.  To its credit, the FCC has proposed to tackle this challenge head-on.

Timeframe of local permit issuance 

Because the land use process is chiefly in the hands of local counties and municipalities, the FCC had to come up with some creative ways to speed that process up.  These include setting a firm “shot clock” for action on such permits after which they would be “deemed granted.”   This option applies now to some elements of the FCC’s own operations (e.g., forbearance petitions) and the FCC hates being under that gun, as would the local authorities, but one thing the policy does is force action.  Whether the statutory openings can be stretched far enough to permit the FCC’s proposed action will be fleshed out in the comments.

Extent of Environmental and Historical Obligations 

One of the most welcome aspects of the FCC’s NPRM is the fresh – and much needed – look at how the FCC’s procedures interface with its environmental and historical obligations under other laws.  For example, the review process required by the NHPA applies to “federal undertakings,” a term which has been interpreted to include federal licensing actions.  This creates the anomalous situation that you can dig as big a hole as you want in your back yard to construct a swimming pool or a new building, but if you put up a ham radio tower, that is a “federal undertaking” that triggers the obligation to consult with state historical personnel and a host of tribes before you can dig the hole.  The FCC’s current expansive reading of the term “federal undertaking” is that any construction activity that is done with the intention of telecommunications authorized by the FCC occurring on that site is a federal undertaking.  Taken to an extreme, because cell phone use is licensed and authorized by the FCC, any structure where cell phone use is contemplated is a federal undertaking.  While the FCC has wisely refrained from applying historical preservation rules to all structures in which mobile use occurs, this vastly overbroad reading of a “federal undertaking” theoretically imposes obligations on the FCC and telecom providers that Congress surely never intended.

A saner and more practical approach would be to limit federal undertakings to site-specific authorizations granted by the FCC.  This makes sense because the FCC would be expressly approving construction at a particular site and it could examine historical and environmental issues in that context.  Many wireless licenses granted these days are not site-specific but simply authorize construction and operation in a large geographic area with no involvement by the FCC whatsoever.  This could easily be deemed not to be a federal undertaking and therefore outside the scope of the historical preservation rules.  Such an approach would eliminate a huge percentage of the largely unnecessary environmental and historical hoops that tower constructors must jump through.  Of course, local land use and site-specific environmental and historical considerations would still apply.

Tribal reviews

One particularly egregious problem that the FCC is confronting is the issue of increasingly numerous and outrageous fees being demanded by tribes before they will sign off on tower construction.  As the FCC’s rules now stand, tribes can effectively self-declare areas where they have an “interest” (sometimes including entire states and, in a few cases, as many as 20 entire states!) and then demand a fee to review every tower proposed to be built in that area to ensure that their burial grounds are not impaired.  By ceding tribes this gating power over all construction, the FCC has made it inevitable that more and more tribes will declare an interest in more and more areas and collect more and more and higher and higher fees.  This is not at all what the American Council on Historic Preservation’s protocols contemplate: tribes have no right at all to demand fees to review proposed construction – they just have the right to be consulted on the project, something to which no one objects.  The FCC will finally be sorting this out since the abuse of the current process has become widespread.  (Full disclosure: the author of this blog article has advocated for FCC reform in this area.)

Environmental Exclusions 

The FCC is considering removing some categories of construction from the requirement to engage in environmental analysis.  This might include floodplains, small cells, pole replacements, construction in utility rights of way, and collocations.  These sorts of construction rarely if ever raise cause for environmental concern.

Twilight towers 

“Twilight towers” are towers which were built between 2001 and 2005. Those towers did not have to go through historic review procedures at the time they were built, but now must go through that process if an FCC authorized activity is going to occur on it.  This is in many cases a little crazy since the tower is already up – what purpose is served by going through a historic review process now?  The Commission is considering simply treating these towers like pre-2001 towers, a determination that would immediately open up a large inventory of towers to new collocations.

This proceeding is a critical one for the deployment both of rural cell sites needed to expand broadband service geographically and urban small cells that will be needed to densify broadband data services.  Comments are due 30 no later than June 9, 2017, with reply comments due by July 10.