TR Daily Article: USET SPF Pushes Back, Cites Lack of Tribal Consultation, as FCC Seeks to Streamline Tribal Review Process 3/2/2018

Draft Second Report and Order in Wireless Infrastructure rulemaking proceeding with Fact Sheet

FCC to Consider Order Streamlining Historic, Environmental Reviews

The FCC plans to consider an order at its March 22 meeting that would streamline the agency’s historic and environmental review procedures to make it easier to deploy wireless infrastructure, especially small cells needed for 5G services, Commissioner Brendan Carr announced today.

The draft order was circulated to Commissioners today and will be publicly released tomorrow. Mr. Carr, who is the point person among Commissioners on wireless infrastructure issues, detailed major portions of the item during a speech this morning at a 5G event sponsored by the Consumer Technology Association.

The order would be the latest FCC action following up on a notice of proposed rulemaking adopted last year along with a notice of inquiry exploring ways to streamline the siting of wireless infrastructure (TR Daily, April 20, 2017).

Wireless industry entities and their allies praised the changes in the draft FCC order announced today. Carriers, tower companies, and other industry players often complain about what they say are excessive fees charged by tribes for reviewing the planned deployment of infrastructure. 

However, tribal groups criticized today’s announcement and one suggested the order would be challenged in court.

Tribes and state historic preservation officers, as well as other stakeholders, including the Advisory Council on Historic Preservation, have criticized proposals in the FCC’s wireless infrastructure proceeding, even suggesting that the item adopted last year was premature or should have been scrapped altogether. Tribal entities also have suggested that the FCC has not engaged in adequate consultation with them, both before the NPRM was released last year and since.

In his speech, Mr. Carr said wireless companies are spending money on fees and delays that could go to the deployment of small cells needed for 5G deployment. Fees for historic and environment reviews have increased 2,500% “over the past seven years in just one part of the country,” Mr. Carr said, which he said would jeopardize the U.S.’s leadership in 5G deployment.

“The record is clear. The process is broken. And regulatory incrementalism is not going to fix it. We need a major upgrade to our infrastructure deployment rules,” he said in the text of his remarks.

“At our March 22nd open meeting, the FCC will be voting on an order that modernizes the historic and environmental review procedures that apply to wireless infrastructure deployments. … First, the proposed order would modernize our approach to small cell deployments, reflecting the very different impact that these deployments entail. It would determine that they are not ‘federal undertakings’ or ‘major federal actions.’ In other words, small cell deployments would no longer be subject to the federal historic or environmental review process designed for macrocell towers,” Mr. Carr said. “Rather, these deployments will now have the same status under the law as that of Wi-Fi routers, consumer signal boosters, and similar unlicensed equipment — none of which have ever been subject to the type of federal processes that we have been applying to small cells.

“It simply no longer makes sense from either a legal or policy perspective to treat these small-scale deployments the same as large macrocell towers, which have a very different footprint and impact. So if the antenna associated with a deployment fits within 3 cubic feet, it is a small facility and can proceed without the need for federal NEPA [National Environmental Policy Act] or NHPA [National Historic Preservation Act] review,” Mr. Carr said.

“At the same time, providers must continue to comply with the state and local processes that govern the deployment of facilities, including appropriate zoning rules. While our action would remove certain federal procedural requirements, it does not greenlight any particular deployment,” he added.

“The idea of excluding small scale deployments from these review procedures is not new. In fact, it has generated significant support, including in Congress where bipartisan legislation has been introduced that would exclude at least some types of small scale deployments from these types of review procedures,” Mr. Carr said. “Moreover, the European Commission’s 5G Action Plan includes steps to streamline the regulatory treatment of small cell deployments. These issues are ripe for action, and it is imperative that we move now to ensure the U.S. stays competitive in the race to 5G.

“Second, for traditional, large cell deployments, the order would streamline the historic preservation requirements that will continue to apply to them. This will cut unnecessary red tape while ensuring that larger deployments — including those 100-foot macrocell towers — continue to undergo review,” Mr. Carr said. “It will do this by updating the Section 106 [NHPA] Tribal review process, including by eliminating up-front fees, clarifying the approach to Tribal consultations, and adopting a clear time period for providers to deploy in cases where Tribes do not respond, among other actions.

“Third, for traditional large cell deployments, the order would also revise the FCC’s approach to environmental review procedures,” Mr. Carr explained. “It would do so by adopting, for the first time, a shot clock for the FCC’s own processing of Environmental Assessments (EAs). And it would address an issue that generated significant interest in the record — deployments in floodplains. It would do so by determining that EAs are no longer necessary for deployments at least one foot above the base flood elevation.”

Mr. Carr continued, “Getting these reforms across the finish line will deliver real results by pushing the regulatory costs out of the system and freeing up more capital for 5G deployments. At the same time, the order focuses the historic, tribal, and environmental review processes on those larger deployments that are more likely to require scrutiny. In the end, these reforms will put us on the path to winning the race to 5G.”

Mr. Carr also said that the FCC’s “updated approach to small cells could reduce the regulatory costs of deployment by 80%, while cutting deployment timelines by more than half. The resulting cost savings, the record shows, can be used to deploy more small cells and thus bring 5G coverage to even more Americans. Indeed, these reforms will likely result in the deployment of several thousand additional small cells across the country in the next 12 months.”

Mr. Carr said that “while this is our next and, thus far, most important step in our wireless infrastructure proceeding, it certainly will not be our last. In the weeks and months ahead, we will be continuing our review of the state and local requirements that can also operate as barriers to 5G deployment. I look forward to working with my colleagues and all stakeholders to address those issues.”

In response to a question after his speech about complaints by state and tribal historic preservation officers concerning the FCC’s proposals in its proceeding and tribes’ consultation concerns, Mr. Carr said, “We actually engaged in really, really extensive consultation with dozens and dozens of tribes and tribal nations through this process. … I thought those were very helpful, very productive discussions.”

“We’ve got a lot of good feedback,” he told reporters after today’s event of the tribal consultation. He also said that under the order, for macro cells that would still go through the section 106 process, “we’re actually adopting changes to provide tribes more information earlier in the process.”

Wireless industry entities and others praised Mr. Carr’s announcement.

“Commissioner Carr is exactly right that modernizing outdated infrastructure rules is key to the United States winning the global race to 5G,” said Meredith Attwell Baker, president and chief executive officer of CTIA. “His proposals would address outdated federal laws that needlessly delay wireless deployments and add millions in costs, and we urge the FCC to support this common sense approach.”

“We applaud Commissioner Carr’s recognition that the next-generation of mobile networks will require reducing regulatory barriers that currently stand in the way of widespread deployment of wireless infrastructure,” said Jonathan Adelstein, president and CEO of the Wireless Infrastructure Association. “Streamlining federal historic and environmental review procedures is a strong step towards increasing broadband deployment. We applaud Commissioner Carr and the FCC for working to update the Section 106 Tribal review process and revising the FCC’s approach to environmental reviews.”

Joan Marsh, AT&T, Inc.’s executive vice president-regulatory and state external affairs, said, “Commissioner Carr has done a tremendous job leading the charge to address the outdated, unnecessary and costly regulations that do nothing but stand in the way of wireless broadband deployment. The environmental and historic preservation rules the commission seeks to modernize were designed for large cell towers, not the small cells of today that play a huge role in our ability to increase mobile speeds and performance for our customers. We look forward to seeing the full draft of the order when it is released tomorrow, but we are greatly encouraged by Commissioner Carr’s remarks this morning and the direction the FCC is taking in this proceeding.”

During a panel discussion after Mr. Carr’s speech today, Hank Hultquist, vice president-federal regulatory for AT&T, suggested that AT&T could deploy an additional 1,000 small cells a year with savings from the FCC’s new rules. He noted that AT&T has said that it believes that this year, its NEPA and NHPA compliance costs will exceed $45 million, $29 million of which will be related to tribal fees.

Will Johnson, Verizon Communications, Inc.’s senior vice president-federal regulatory and legal affairs, said, “We are very encouraged by what we heard in Commissioner Carr’s speech today about the FCC’s plans for modernizing wireless siting rules.  Addressing very real infrastructure challenges, including delay and expense from unnecessary regulatory reviews, is critical to ensuring U.S. leadership on 5G.  The FCC is right to aggressively pursue policies needed to make the U.S. #5GReady.  We look forward to reviewing the draft order later this week.”

“TIA welcomes today’s announcement by FCC Commissioner Brendan Carr regarding the important steps the agency will take to facilitate the deployment of next-generation wireless infrastructure. 5G networks operating in higher frequency bands will rely significantly on deployments of small cells that are no larger than a pizza box, not just traditional macrocell towers. Small cells are different, and the FCC’s recognition of that fact will help avoid massive and unnecessary regulatory obstacles and permitting costs that threaten U.S. leadership in the race to 5G,” said Cinnamon Rogers, SVP-government affairs for the Telecommunications Industry Association.

“The FCC’s plans to impose a shot clock on itself for processing environmental assessments, and its plans to update its Section 106 tribal review process, are also supported by TIA,” she added. “Going forward, we look forward to working with the FCC and other stakeholders to continue improving the regulatory environment at all levels of government to streamline the deployment process for next-generation wireless technologies. We thank Commissioner Carr for his important leadership on these issues and look forward to action by the full FCC at its March meeting.”

“The announcement today from Commissioner Carr is really important,” John Godfrey, SVP-public policy for Samsung Electronics America, said at today’s CTA event. “Equally important is the United States leadership in spectrum.”

“Today’s announcement from Commissioner Carr that the FCC will move to streamline and modernize key infrastructure rules is a win for mobile innovation and investment,” said Mobile Future. “Wireless infrastructure technology is advancing by leaps and bounds and if regulations don’t catch up, we risk delaying the benefits of 5G for the American economy. Mobile Future looks forward to working with the entire Commission and policymakers at all levels to push forward the reforms we need to be 5G ready.”

“We applaud Commissioner Carr and the FCC for taking common sense steps to reform the small cell deployment process to recognize America’s modern infrastructure needs,” said Chip Pickering, CEO of Incompas. “Deploying 5G networks is a national priority, critical to our nation’s security.  The cost- and time-savings these reforms will bring are an important first step to deploying the networks of the future, bringing 5G to even more Americans.”

“Connectivity is crucial for our economy, and faster, more reliable networks will assure that telecommunications networks continue to be catalysts for innovation, economic growth, and jobs. In the global race for 5G, the United States needs to ensure that our regulations promote the deployment of next generation networks,” said Ed Black, president and CEO of the Computer & Communications Industry Association. “Commissioner Carr today spoke about many reforms that CCIA and the tech industry have supported. We appreciate the Commissioner’s efforts and look forward to providing substantive feedback so the United States can lead the world in 5G.”


The Internet Innovation Alliance said,  “By eliminating unnecessary regulatory delays and barriers that apply only to wireless deployments, the FCC will take a major step towards a uniform policy that will accelerate advanced broadband deployments of all types. Today’s small cells are simply not the cell towers of past generations of deployments, and updating these regulations is both appropriate and necessary. Small cells will form the backbone of the future national 5G network; in the meantime, these deployments will increase capacity for America’s consumers and businesses in areas that badly need it. We thank Commissioner Carr for his work on this issue and look forward to the vote by the full Commission.”

Information Technology and Innovation Foundation Telecom Policy Director Doug Brake said, “Commissioner Carr’s announcement that the FCC will make targeted changes to environmental and historic review procedures is a necessary update to arcane rules that could stymie deployment of next-generation wireless technology. These balanced changes are the first step in updating regulations for the 5G era. We look forward to what else the FCC has in store to ensure the United States is well positioned to develop these key communications platforms.”

Roslyn Layton, visiting scholar at the American Enterprise Institute, said, “I am pleased to see the FCC, and Commissioner Carr in particular, take leadership on 5G by proposing to streamline the review, application and permitting process.  While much remains to be done at the state and local level, the federal government needs to lead by removing blockades that have long deterred the rollout of vital next generation networks and the unleashing of another technological revolution. Private sector actors want to collaborate with government at all levels as well as with tribal entities to secure and maximize investment in mobile wireless networks. 5G represents the ultimate opportunity for a public-private partnership in which everyone can win.”

But some tribal groups criticized the FCC’s planned action today.

The National Congress of American Indians (NCAI) said that it “has concerns with the FCC’s approach to lessen protections afforded to tribal governments on infrastructure development that can negatively impact sacred and cultural sites. Tribal nations, industry and the FCC have been in conversation for the past year to seek mutually beneficial solutions that will both expand America’s wireless infrastructure while preserving tribal historic and cultural sites. Through the comment process, the FCC has heard from dozens of tribes and inter-tribal organizations that all agree, the existing process works. Like any other business process, there can be mutually agreed upon adaptions to address the changing landscape of telecommunications deployment. NCAI and the tribal nations we serve are ready and willing partners to both the FCC and industry to find this solution through the consultative process.”


The United South and Eastern Tribes Sovereignty Protection Fund (USET SPF) said, “Not only do Commissioner Carr’s remarks at the Consumer Technology Association’s 5G Day reveal a FCC bias in favor of the wireless industry, they are indicative of a failure of this commission to live up to its trust responsibility as an agency of the federal government. We continue to be deeply concerned that the FCC is relying on a handful of industry examples, as it proposes to upend a largely successful process and jeopardize legal protections for cultural property rather than working to resolve issues on both sides.

“Tribal Nations have a right to protect our sacred places, cultural properties and ancestral remains. And the FCC has legal obligation to assist us in protecting them. This obligation does not change in reaction to new technology or industry concerns. The plan announced today undermines the FCC’s trust relationship with and obligations to all Tribal Nations, as the agency has failed to consult with us on the specifics of the proposed changes to the Section 106 Tribal review process,” USET SPF added. “A court will resolve whether the FCC has the authority to declare a number of its own licensing actions as not ‘federal undertakings’ within the meaning of Section 106 of the National Historic Preservation Act. The FCC does not have that power.

“USET SPF has consistently called for the FCC to consult with Tribal Nations on a set of best practices we developed in collaboration with the FCC over a decade ago,” the organization added. “These best practices contemplate and address a majority of concerns expressed by the wireless industry, including timelines for review and the assessment of fees for professional services. These best practices continue to be a viable model to ensure both the protection of Tribal cultural resources and the necessary deployment of wireless infrastructure in Indian Country and beyond. FCC has consistently ignored this request and instead, has proposed changes to a critical system that has been held up as a best practice in the federal infrastructure permitting process.”

Erik Hein, executive director of the National Conference of State Historic Preservation Officers (NCSHPO), told TR Daily that his group had no comment today on Mr. Carr’s announcement. Bambi Kraus, president of the National Association of Tribal Historic Preservation Officers (NATHPO), couldn’t be reached for comment.

Charlene Dwin Vaughn, assistant director of the ACHP’s Office of Federal Agency Programs, also told TR Daily that she couldn’t comment. “We had no advance notice of this, so we’re not prepared to make any statement on the record until we confer with our executive leadership on this matter. It’s just premature for us to opine,” she said.


Before the FCC adopted its item in the wireless infrastructure proceeding last year, ACHP called the proceeding premature and asked the Commission to defer action on it until it had consulted with key stakeholders (TR Daily, April 14, 2017), while NCAI, NATHPO, and USET SPF urged the FCC to abandon the draft NPRM (TR Daily, April 19, 2017). More recently, NATHPO and others have complained that the FCC’s consultation with tribes has been inadequate (TR Daily, Jan. 23).- Paul Kirby,