FCC Rejects Arguments of Tribes, Localities in Order

In a wireless infrastructure order released today, the FCC rejects arguments advanced by tribes and localities, including arguments offered in the weeks before the item was adopted last week (TR Daily, March 22).

The order says that the deployment of small cells that the wireless industry says will be needed for 5G services doesn’t constitute a “federal undertaking” under the National Historic Preservation Act (NHPA) or a “major federal action” under the National Environmental Protection Act (NEPA) and thus are not reviewable under those laws.

In opposing the second report and order in WT docket 17-79, which was adopted over the dissents of Democratic Commissioners Mignon L. Clyburn and Jessica Rosenworcel, tribes, localities, state historic preservation officers, and others argued, among other things, that the item exceeds the FCC’s authority, fails to acknowledge the positive role that tribes and others play in the review of wireless infrastructure, and understates the potential impact of small cells. They also complained that the item fails to adequately define a small cell. States, tribes, and localities also complained that the FCC failed to adequately consult with them on the issues in the item.

In the order released today, the FCC said “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.”

“Contrary to the suggestions of some commenters, we do not evaluate the record regarding potential benefits of environmental and historic preservation review or specify an associated definition of small wireless facilities for purposes of determining whether the NHPA and NEPA apply by their terms, or for purposes of determining the extent of any review obligations under those statutes if they applied,” the FCC added in a footnote. “Instead, we evaluate that evidence to determine whether there is justification for the Commission to impose an approval requirement under its Communications Act public interest authority.” It added that “it is that approval authority, if imposed, that would, in turn, trigger NHPA and NEPA review requirements.”

The FCC also rejected the arguments of localities and states about the potential harmful cumulative impact of a large number of small cells. “We note that the arguments in this regard involve speculation about possible future scenarios, rather than citing concrete evidence of harms that actually have arisen from the aggregate effect of small wireless facility deployments,” the order said.

“Based on these apparently minimal effects of small wireless facility deployment on environmental and historic preservation interests, we believe that the benefits associated with requiring such review are de minimis both individually and in the aggregate,” the order stressed. “And even if, as some contend, the aggregate effects of small wireless facility deployment rendered the benefits of review more than de minimis, we nonetheless determine that those benefits would be outweighed by the detrimental effects on the roll-out of advanced wireless service.” —Paul Kirby, paul.kirby@wolterskluwer.com

Courtesy TRDaily