Small Carriers Support Wireless Rule Change but More Objections Raised
The Competitive Carriers Association urged the FCC to approve changes to wireless infrastructure rules at Thursday's commissioners’ meeting. But the agency also continues to receive filings from tribal, historic preservation groups and groups representing local governments slamming the draft order. Former Commissioner Michael Copps said the FCC should take a pause. “There is no compelling need for FCC to rush approval next week of new wireless infrastructure rules until it has met in good faith its trust and consultation obligations to affected tribal areas,” Copps tweeted Thursday. “Doesn’t appear that’s really happened yet.”
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The draft order would clarify that deployment of small cells isn't a “federal undertaking” within the meaning of the National Historic Preservation Act or a “major federal action” under the National Environmental Policy Act (see 1803120049). It would cut red tape for tribal reviews of projects off tribal lands and would clarify applicants “have no legal obligation to pay upfront fees” when seeking tribal comment on proposed deployments. The provisions have been controversial.
“Reforms contemplated in the draft Order will spur next-generation deployments in rural and urban areas alike,” CCA said, posted Friday in docket 17-79. “Streamlining the process for historic and environmental review will expedite the siting process and assuage concerns, and confusion, surrounding siting applications, and further deployment of advanced technologies for all consumers.” CCA members face problems as a result of tribal reviews, the group said.
The group said one member in Montana received a stop work order (SWO) from the FCC in November 2016, which prohibited it from building towers where tribal authorities demanded payment to monitor tower construction in case there was an “unanticipated discovery” of artifacts. “The SWO remains in effect and has stalled deployment of broadband networks in this area of Montana,” CCA said. “The carrier was asked to pay $500/day per person, and this fee continues to escalate, resulting in about $250,000 in lost revenue.”
Nex-Tech Wireless, which serves rural and remote areas, including parts of Kansas and Colorado, also supported the order. “The FCC’s proposed changes will spur investment and increase certainty as non-nationwide carriers work to preserve and expand service in the most challenging locales,” Nex-Tech said. “With the move towards next-generation technologies, the time is ripe to adopt streamlined infrastructure policies that promote investment, expedite processes, and remove red tape.”
Tribal groups continue objecting. The draft "diminishes the role of Tribes … under the National Historic Preservation Act [NHPA] and the National Environmental Policy Act [NEPA], which are the mechanisms Tribes use to protect and preserve our Cultural Resources, which, once desecrated can never be returned to their original state,” said the Jena Band of Choctaw Indians in Louisiana.
The National Trust for Historic Preservation said the FCC hasn’t done consultation with the tribes required by the law to justify the order. The FCC “released a 79-page order, with 449 footnotes, without publication in the Federal Register, and has allowed only 15 days for public comment,” the trust said. “That is simply not adequate for meaningful public involvement, especially considering the explicit regulatory requirements for public participation and tribal consultation in the development of exemptions." The tribes “objected to the reliance on a few hastily scheduled conference calls as a substitute for meaningful tribal consultation,” the trust said.
NATOA, the National League of Cities, National Association of Regional Councils and National Association of Counties said the draft raises concerns for their members. “The new rules appear to allow installation of new facilities that are less than fifty feet tall or up to ten percent taller than existing structures in the area with no NEPA/NHPA review,” the groups said. “Members strongly oppose the assumption that new installations of this magnitude have no environmental or historic preservation impacts.” The order also treats other equipment attached to the antenna as “an afterthought rather than the significant element of deployment that they are,” the groups said. “The size parameters to qualify as a ‘small wireless facility’ do not include any equipment, which may include ‘switches, wiring, cabling, power sources, shelters or cabinets.’”
The Colorado State Historic Preservation Office said tribal historic preservation offices have been hampered by a lack of funding and the order would make the situation worse. “Tribal governments are sovereign nations that have the authority to set their own rules and procedures for compliance review,” the office said. “At the very least, complying with such nominal requests will actually ensure that the process can move forward in a timely fashion.”