Tribes Opposed to Wireless Infrastructure Changes but No FCC Meetings So Far

A public interest lawyer said more ex parte filings are coming and the tribes will continue to raise concerns. The vote next week may be 3-2 along party lines (see 1803070044). Carriers and their allies, in claims repeated by some FCC officials, contend tribes can charge many thousands of dollars for environmental reviews.

Chief Chet Brooks of Oklahoma's Delaware Tribe told us he's planning to attend next week’s commissioners' meeting. “I’m praying that some other tribes are going to be there,” he said. “I think the FCC has been listening to the tower builders and cellphone companies more than they’re listening to the tribes.”

The sunshine notice cutoff for outreach to the FCC is Thursday, a week before the meeting, a week before the meeting and the wireless industry has been putting on a full-court press. An FCC official said the tribes haven't been in for meetings. Meanwhile, the wireless industry has been putting on a full-court press. The FCC got administration signoff on parts of the draft order that would change the procedures for National Environmental Policy Act (NEPA) reviews.

“The agency never has turned down a request to meet with the tribes over the last 11 months,” an FCC official said. The draft lays out over 16 paragraphs the outreach with the tribes, the official said. It would be surprising if the tribes didn’t meet with FCC staff after publicly criticizing the draft order, said a former spectrum official: “The main benefit to making the FCC’s drafts publicly available prior to a vote is to provide stakeholders a meaningful opportunity to provide input.”

The Consumer and Governmental Affairs Bureau Tuesday posted a staff filing on a daylong meeting Feb. 15 in which various groups affiliated with the NCAI met with Chairman Ajit Pai, Commissioners Mignon Clyburn, Mike O’Rielly and Brendan Carr and staff from across the agency. That meeting came weeks before Pai circulated the order, overseen by Carr, for the March 22 vote. Carr told us the order was changed to address tribal concerns before it circulated (see 1803120049).

Tribes' Concerns

The United South and Eastern Tribes Sovereignty Protection Fund (USET SPF) said in a statement a legal challenge is likely if the FCC approves the rules as proposed.

“We continue to be deeply concerned that the FCC is relying on a handful of unverified 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,” the group said. “Tribal Nations have a right to protect our sacred places, cultural properties and ancestral remains. And the FCC has a legal obligation to assist us in protecting them. This obligation does not change in reaction to new technology or industry concerns.”

The FCC failed to consult with Indian country “on the specifics of the proposed changes to the Section 106 Tribal review process and to our knowledge, has not yet completed one-on-one consultations with all requesting Tribal Nations,” USET SPF said. “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.”

The consumer bureau filing touched on infrastructure. Representatives of the tribes “argued that the Commission should address bad actors in the section 106 process, rather than changing existing practice to affect all Tribes,” the filing said. The tribal participants said commission actions on Section 106 review “are perceived as biased in favor of industry and that industry is primarily focused on build-out in wealthy, urban areas.”

Industry Backers

CTIA led the charge in support of the proposed rules.

The association released Tuesday results of an Accenture analysis that said modernizing federal reviews of new wireless infrastructure “like the reforms currently proposed” by the FCC could lower the cost of deploying 5G networks by $1.6 billion over nine years. “To win the global race to 5G, we need to accelerate small cell installations and reduce the costs,” said CTIA President Meredith Baker. “The FCC’s common sense proposal will cut the cost of rolling out tomorrow’s wireless networks.” The FCC said the report shows why the infrastructure changes are needed. "Not only would the order lead to more broadband for more Americans -- including the expedited roll out of 5G -- but the savings also could create more than 17,000 jobs, according to industry statistics," the agency said.

Sprint and AT&T officials were seen on the eighth floor at the FCC headed to meetings Monday. Bob Quinn, AT&T senior executive vice president of external and legislative affairs, had a meeting with O’Rielly. AT&T didn't comment. Sprint filed in docket 17-79 Tuesday on a meeting last week with Rachael Bender, wireless aide to Pai, but nothing posted so far on the Monday meetings. “We discussed the size limitations in the draft order that exclude certain small cells from being an undertaking or major federal [action] and the cable industry’s proposal to modify the small cell definition,” Sprint said. Cable operators already can deploy infrastructure they seek to exclude from the small-cell definition without undergoing environmental and historic review, the carrier said.

A few tribal groups made ex parte filings in recent days. The Shawnee Tribe in Oklahoma said the approach of the draft order would be “detrimental to tribal governments, tribal culture and historic resources and do very little to encourage deployment of wireless services to areas, like ours, that need it most.” The tribe reminded the FCC it has a “trust responsibility to tribal nations, not to the wireless industry.” Benita Shea, a member of the Delaware Tribe of Indians Council, said the tribes were misled by the FCC during consultations about what the agency had in mind on infrastructure. The tribe "oppose any changes regarding consultation fees,” Shea wrote. “The consultation process of this subject is completely unsatisfactory.”

The White House Council on Environmental Quality approved of the changes to rules for environmental reviews. “This FCC amendment to its NEPA procedures is in conformity with NEPA and the CEQ regulations implementing the procedural provisions of NEPA,” the council filed at the FCC.