FCC Adopts Wireless Infrastructure Order over Dems Dissents

Transcription

1 FCC Adopts Wireless Infrastructure Order over Dems Dissents The FCC today adopted a wireless infrastructure streamlining order over the dissents of Democratic Commissioners Mignon L. Clyburn and Jessica Rosenworcel and despite the complaints of a plethora of stakeholders, including federal officials, state and tribal historic preservation officers and other tribal leaders and groups, localities, and environmental advocates. The draft second report and order would clarify 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). For traditional, large cell deployments, the order would clarify the industry tribal engagement process under NHPA, including shortening the time for tribal review, and would rule that companies are not required to pay tribes upfront fees for reviewing projects. The order also would remove the requirement that applicants submit environmental assessments (EAs) because a proposed facility is in a floodplain if the facility is at least one foot above the base flood elevation. It also would adopt a shot clock for the FCC s processing of EAs. Critics have argued, among other things, that the item would exceed 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. States, localities, tribes, and others also have complained that the Commission has failed to adequately consult with them on the issues. But the wireless industry and its allies say the rule changes will make it possible to deploy infrastructure more quickly and cheaply, in part because tribes would not be permitted to demand fees to review projects and hold up deployments. Ms. Clyburn and some House and Senate Democrats had asked the FCC to postpone action on the item to provide time for more consultation with tribes, while other lawmakers had asked the agency to revise the item (TR Daily, March 21). A wide range of stakeholders critical of the item had also sought changes to it or asked that additional consultation, particularly with tribes, take place. As part of the FCC s efforts, the agency consulted with a wide range of communities to determine the appropriate steps needed to enable the rapid and efficient deployment of next generation wireless networks or 5G throughout the United States, the FCC said in a news release on the order, which was adopted in WT docket The actions taken today will reduce regulatory impediments to deploying small cells needed for 5G and help to expand the reach of 5G for faster, more reliable wireless service and other advanced wireless technologies to more Americans. Ms. Clyburn noted that she has approved FCC actions in the past to streamline its wireless infrastructure rules. As I began my review of today s draft Order, as I like to say often, I started from the 50 yard line. And after hearing the concerns of Tribal Nations and local governments, I began discussing possible proposals that might address those concerns with Commissioner Carr s office, she said. But after many open and direct exchanges, my major concerns could not be addressed and following a full,

2 comprehensive review of the record (that included multiple conversations with numerous stakeholders) about the concerns raised by Tribal Nations, environmental protection advocates, and local government representatives, I concluded that the best course for all parties was to delay the vote. At this juncture, the potential adverse impact of these proposed rules on Tribal Nations, historic sites, and the natural environment were severe and had yet to be fully addressed. Unfortunately, my request, was rejected. Ms. Clyburn added that she wanted to reiterate for the record: I strongly support efforts to facilitate the deployment of 5G next generation wireless services. Each of us has seen how brilliant minds in the technology, software, and communications industries are working to make a difference in so many areas such as health care, education, energy efficiency, and manufacturing. There is no question we will all see phenomenal benefits when (and if) 5G is fully deployed in all communities. And we have already shown the rest of the world that we can still lead in the deployment of 4G LTE services while complying with federal statutes designed to protect the environment and historic sites. So for me, it is clear and the evidence is convincing that winning the 5G race, need not come at the expense of those important statutory goals. Because this Order sacrifices those goals, I am forced to dissent from this Order. What we have here will not help us lead or even be 5G ready, said Ms. Rosenworcel. Our work deserves a delay so we can fix these deficiencies and move forward together. Because we do not take the time to remedy these problems when we can and should I dissent. First, this decision cuts Tribal authorities from their rightful role reviewing wireless facilities, the Commissioner complained. While I believe this process would benefit from modernization, in this decision we fail to fulfill our federal trust relationship with respect to 5G deployment. We have longstanding duties to consult with Tribes before implementing any regulation or policy that will significantly or uniquely affect Tribal governments, their land, or their resources. This responsibility is memorialized in the FCC s Policy Statement on Establishing a Government to Government Relationship with Indian Tribes. But we do not honor it here. While the decision lists every minor contact this agency has had with Tribal authorities remember this: Not a single Tribe has expressed support for today s action. Second, this decision removes small cells from the purview of the National Historic Preservation Act and National Environmental Policy Act. This approach has both policy and legal frailties, Ms. Rosenworcel added. With respect to policy, it s no secret that rural and low income communities trail our urban areas when it comes to broadband access. But not a single comment in this proceeding has suggested that the root of that problem is our historic or environmental review process. Rather, it s simple economics these communities are difficult to serve because they do not provide the return on investment that supports build out. We don t tackle that hard truth here or seek commitments to ensure deployment in hard to serve areas. But we should. With respect to the law, the problems with our small cell analysis are real, she said. For starters, this decision asserts that a federal undertaking under the National Historic Preservation Act is the same as a major federal undertaking under the National Environmental Policy Act. But this interpretation is not right. In fact, the Advisory Council on Historic Preservation the body entrusted with interpreting the law has said as much in their comments to this agency. We shouldn t ignore them. We should work with them. In addition, our interpretation of the National Historic Preservation Act is flawed and likely to have messy consequences for future wireless deployment. Third, and finally this decision removes many larger wireless facilities from environmental oversight. If our environmental assessment process is too complex or too lengthy, we should fix it. But tossing this

3 process out is unsupported by the record, Ms. Rosenworcel said. In fact, there is so little discussion of the consequences of this change in our docket, the White House Council on Environmental Quality wrote us a letter on this subject that is devoid of any substantive analysis and offers only the most superficial support. We should do better than this. In sum, this decision does not clear the way for 5G. It does not make us 5G ready. It only guarantees that a messy series of legal challenges will follow in its wake. I regret that we did not delay today s vote to fix these problems. I can only hope that with this crude effort we do not further risk our leadership in 5G as a result. But FCC Chairman Ajit Pai and his Republican colleagues, Brendan Carr and Mike O Rielly, defended the item, as well as the agency s consultation with tribes. If the United States is going to lead the world in 5G, we need to modernize our wireless infrastructure regulations, Mr. Pai said. Our efforts to unleash spectrum for consumer use are necessary, but they aren t sufficient to secure our 5G future. In fact, they ll be pointless if carriers can t deploy the physical infrastructure needed to bring next generation services to the American people. And unfortunately, our current wireless infrastructure rules are a poor fit for the 5G networks of the future. They were designed with 200 foot towers in mind, not the highly densified networks of small cells that will be common in the 5G world. That s why today s Order is so important. We take a giant leap forward in updating our wireless infrastructure rules. By cutting unnecessary red tape, we ll make it substantially easier for carriers to build next generation wireless networks throughout the United States. In developing today s Order, we have engaged extensively with Tribal Nations, intertribal organizations, and state and local historic preservation officers. These consultations have improved our work product, Mr. Pai stressed. For example, Tribes complained that wireless companies sometimes give them insufficient information about proposed macro tower deployments that could potentially affect historic properties. Today s Order therefore requires infrastructure siting applicants to give potentially affected Tribal Nations and Native Hawaiian Organizations a standardized set of information for undertakings going forward. Providing this information at the initial notification stage will enable Tribes to more efficiently determine whether projects may affect historic properties of religious or cultural significance. But we also heard from numerous parties seeking to deploy infrastructure about abuse of the review process, including some Tribal Nations charging upfront fees even before a response. Mr. Pai added that there s been a lot of talk about American leadership in 5G. But talk is cheap; action is what actually matters. And now is the time for action. A vote for this Order is a vote for concrete action that will help the United States lead the world in 5G. It s a vote for better, faster, and cheaper mobile broadband for the American people. It s a vote for making the United States the best home for wireless innovation and investment. And it s a vote to extend digital opportunity to more of our citizens. That future is a bright one, and it s one I m determined to deliver by supporting this Order. Our outdated approach to NEPA and NHPA is costing Americans tens of millions of dollars per year and delaying the rollout of new services, said Mr. Carr, who is the point person at the Commission on wireless infrastructure issues. One provider spent over $23 million on NHPA review over the last two years money that could have been used to deploy 657 new cell sites to expand service or add capacity. In 2017, providers spent $36 million on NHPA and NEPA reviews. The problem is getting worse, not better. Without reform, the projected costs for these reviews will spike to $241 million this year as 5G deployments ramp up.

4 In all of this, our approach benefited from extensive engagement with Tribal Nations consultations that spanned three years, Mr. Carr added. Indeed, when the prior Commission took steps to update our infrastructure rules, I am not aware of the FCC engaging in any similar effort. In this case, FCC leadership and staff participated in consultations in at least nine different states, including Oklahoma, South Dakota, California, New Mexico, and Arizona. FCC officials attended Tribal conferences, hosted Tribal representatives at the FCC, and conducted dozens and dozens of meetings and conference calls concerning the subject matter we are voting on today. These consultations resulted in significant outcomes. For instance, the Order maintains the current approach to small cell and other deployments on Tribal lands, given the feedback we received. It adopts reforms that will give Tribes more information, earlier in the process for those reviews that go through NHPA procedures. It rejects requests to limit the geographic area where Tribes can express interests and participate in the process. It also expressly recognizes the circumstances in which Tribes can be paid fees for their consulting services. And in those cases, the Order rejects calls that we limit or otherwise regulate the fees that Tribes can charge. In the end, we have been able to reach a better outcome based on the extensive consultation process. And we are maintaining and focusing the federal review on those deployments that are more likely to raise concerns, Mr. Carr said. Mr. Carr also said that in the weeks since we released our draft decision, it s been heartening to see the diverse coalition that supports this effort that is serious about seeing the U.S. win the race to 5G: tech advocates like The App Association, INCOMPAS, CCIA, and CTA; smaller broadband providers at CCA and CTIA; voices from underserved communities like the League of United Latin American Citizens, LGBT Tech, and National Grange; job creators like the Small Business & Entrepreneurship Council and the U.S. Chamber, and other organizations including the Progressive Policy Institute, Citizens Against Government Waste, FreedomWorks, and the U.S. Small Business Administration. We really did go above and beyond the process that was required, and we saw some really good results because of that, Mr. Carr said during a news conference after today s meeting. Asked if delaying action on the item might have generated consensus, he replied, I don t think waiting another couple months would have produced a better outcome. I wholeheartedly support the item before the Commission, and I commend the Chairman and Commissioner Carr for bringing it forward, said Mr. O Rielly. In essence, it addresses two main barriers to wireless tower and antenna siting unnecessary delays and outrageous fees. I have talked about and sought needed reforms in this area for years. In reality, we are finally completing an issue initiated by former Chairman [Tom] Wheeler in a bipartisan fashion during the previous Commission. In doing so, our efforts will help facilitate the deployment of wireless broadband throughout our nation, including 5G wireless services, which is critical to preserving America s preeminent leadership position and something that I am committed to making sure happens. We are also setting the stage for future actions, hopefully later this summer, against similar state and local governmental barriers. In sum, we are interpreting, as is our right and obligation, certain Commission functions to be below a threshold necessary for the statutory requirements of either law [NEPA or NHPA] to come into play, Mr. O Rielly said. To find otherwise, as some have tried to do in this record, is to interpret those two statutes in a way that would treat the agency s geographic licensing as a trigger for unnecessary action and review, far exceeding Congress original intent. As the item states, the Commission s issuance of a geographic license does not involve the Commission in any decisions regarding the deployment of any

5 actual facilities. Such extreme readings of the law would effectively make any Commission action a federal undertaking under NHPA and eliminate the major before federal action in NEPA. This would improperly allow environmental and historic preservation concerns to be placed above any other consideration, which is illogical, and would effectively grant a de facto veto over any activity to those that pose as defenders of these laws. Mr. O Rielly continued, The second portion of the item is no less important, as it makes abundantly clear that no communications provider is required to pay the outrageous fees or hire hand picked individuals demanded by select Tribes as part of Section 106 reviews. The current procedures, which I have repeatedly criticized, have turned into a perverse game whereby some Tribes have sought money and consulting roles for areas that their ancestors never travelled, as a means to raise revenues and address Tribal unemployment, a jobs program if you will. And the problem is only getting worse, as such practices are turning tower and antenna siting into the latest cash cow. In fairness, I would have gone further than just clarifying that providers don t need to pay the fees or contract for consultative functions with Tribes, the Commissioner said. As currently structured, the language states that providers don t have to do these things, but we all know that some Tribes will still try to force this permissive activity on providers anyway. This is a little too loosey goosey for me. Instead, I would have preferred that such practices be prohibited. Additionally, the item should have made clear that applicants are not required to provide additional information or hire a professional contractor without a showing even if provided confidentially that there is a historic property of religious and cultural significance in the project s area. Mr. O Rielly also said he wished that we could have done some more work to provide relief for macro towers in the first portion of the item. Instead, it states that the issue remains pending and may be the subject of future items. But, I am concerned that there is only so much appetite to engage on the issue of wireless siting. Fatigue generally starts to set in, especially as the work gets more contentious and the opposition much louder. I intend to make sure that won t be the case here and that we consider further historic preservation and other relief for macro towers as soon as possible. Today s FCC action drew praise from the wireless industry, its allies, and other entities and scorn from critics. The FCC s decisive action will help America win the global 5G race by significantly reducing the number of months to deploy 5G networks and decreasing the cost to build out new small cells by almost a third, said Meredith Attwell Baker, CTIA s president and chief executive officer. The reforms will make a big difference in how quickly these more powerful networks can be installed for consumers and communities across the nation. In an interview with TR Daily this afternoon, Ms. Baker noted that a recent Accenture report commissioned by the trade group estimated that reducing mandatory reviews for small cells under the NHPA and NEPA by one third would save the wireless industry $1.56 billion between 2018 and 2026 (TR Daily, March 13). She also cited the expected explosion in the number of small cells to be deployed nearly 800,000 more by She was asked if she is concerned by legal challenges to the order adopted today.

6 I think Chairman Pai said it really well when he said, You can have status quo or you can have 5G, but you can t have both. She was asked if that meant that if the FCC did not change the rules today, 5G services could not be deployed in the U.S. We would certainly lose the global race, she replied. This is going to allow us to roll out faster. The FCC really found the right balance to preserve the tribal rights and modernize the process to promote deployment, too, Ms. Baker added. We ve been in consultation with tribes for years. Competitive Carriers Association President and CEO Steve Berry said, I thank the Commission for adopting the Second Report and Order, which is a significant step toward closing the digital divide. I commend Commissioner Carr for his steadfast work and leadership on improving mobile broadband infrastructure policies, which no doubt will benefit all consumers, especially those that live and travel in rural areas. As he mentioned during today s Open Meeting, Commissioner Carr saw first hand, in meetings with CCA member Shentel in rural Virginia, not only how the current regulatory maze of red tape is hindering build out, but also the tremendous opportunities that robust mobile broadband provides consumers, small businesses and the economy as a whole. We appreciate the FCC's effort to remove regulatory barriers to the deployment of wireless infrastructure, said Jonathan Adelstein, president and CEO of the Wireless Infrastructure Association. The FCC s action today is designed to help our country realize the benefits of 5G. After many years of work, we are pleased the FCC has taken significant steps to modernize the tribal consultation notification system so that all parties benefit from clearer review processes, timelines, and associated fees, while protecting culturally and historically significant heritage sites. WIA looks forward to reviewing the details of the Order and working with the FCC as the agency continues to identify ways to streamline broadband deployment. NATE applauds the FCC for their leadership in taking a major step forward to help cut the red tape, unnecessary deployment costs and delays that are associated with the small cell installation process, said National Association of Tower Erectors board member Jimmy Miller. Today s actions will help ensure a more seamless approach as NATE member companies densify networks through small cell deployments in the run up to 5G. Joan Marsh, executive vice president regulatory and state external affairs for AT&T, Inc., said, With today s order, the FCC once again is taking the right steps to put America on pace to be the 5G leader of the world. This order will modernize the environmental and historic preservation rules that were drafted decades ago for large macro cell towers, not today s small cell infrastructure. This order recognizes the significant benefits that small cells will bring to communities across the Nation and will accelerate the scale and scope of their deployments by removing excessive delays and costs. AT&T commends the Commission for these bold steps that will accelerate the availability of 5G technology throughout the United States, speeding infrastructure deployment and creating jobs. We applaud the FCC for taking this important step today to remove significant and unnecessary regulatory obstacles for small cells and look forward to working with the Commission in the coming months to address other unnecessary state and local barriers to wireless broadband deployment, said

7 Will Johnson, senior vice president federal regulatory and legal affairs for Verizon Communications, Inc. With smart policies like these to promote 5G, U.S. carriers are poised to invest heavily to deploy 5G networks, promoting hundreds of billions of dollars in new economic activity and creating millions of new jobs. It will also bring transformative new capabilities like smart communities, e health, connected cars, and smart farming to American consumers and businesses. As T Mobile moves toward a 5G future, we re pleased the FCC is taking action to promote innovation and investment. The reforms adopted today will make it easier for us to deploy the infrastructure that will support 5G services for customers across the country, said Kathleen Ham, SVP government affairs for T Mobile US, Inc. The FCC s newly adopted Order to modernize outdated wireless infrastructure rules is a significant step forward to bringing the benefits of next generation broadband to communities large and small and key to the U.S. winning the global race to 5G, said Cinnamon Rogers, SVP government affairs for the Telecommunications Industry Association. Importantly, the Commission has eliminated the requirement for small cells the size of a pizza box to undergo the same federal environmental and historic preservation reviews as a 200 foot macrocell tower. Small cells are different, and today's action will help speed the deployment of 5G networks while also making it easier for providers to fill in gaps in unserved and underserved areas. TIA is grateful to Commissioner Carr for his leadership on this important issue. We look forward to working with him and the rest of the Commission on additional actions to reduce obstacles to wireless infrastructure siting at all levels of government. The race between countries to launch 5G networks is underway and today's action is a catalyst for innovation, paving the way for the U.S. to be 5G ready. Modernizing and removing unnecessary regulations for small cell technology provides the much needed backbone for smart cities, self driving vehicles and digital healthcare, not to mention the three million jobs associated with upgraded mobile networks, said Gary Shapiro, president and CEO of the Consumer Technology Association. The future of wireless has arrived, and we thank the FCC and Commissioner Brendan Carr for setting commonsense federal regulations that will help turn the promise of 5G into a reality." The FCC s order to streamline deployment for next generation networks reflects the Commission s future focused and pro consumer approach to helping speed the delivery of next generation technologies, said Jonathan Spalter, president and CEO of the U.S. Telecom Association. Broadband providers across the nation are deploying smarter, faster fiber networks to connect our customers and the technologies they rely on. USTelecom s members stand ready to connect the countless new small cells that will deliver 5G across our nation. We appreciate Chairman Pai s and Commissioner Carr s leadership on this item to reduce regulatory roadblocks and ensure all Americans have access to world class broadband networks. The U.S. led the world in 4G deployment and the Commission s approval of the Wireless Infrastructure Streamlining Order is critical to secure our leadership in 5G. By easing the roadblocks in federal historic and environmental reviews processes, the Commission has taken action to significantly lower the cost to deploy small cells and quickly deliver new services to communities across America, said Rob McDowell, chief public policy adviser for Mobile Future. These commonsense reforms will help us create a clear roadmap to the economic opportunity in our 5G future. Today s FCC decision is an important step, another milestone on the road towards deployment of nationwide 5G wireless technology. Thanks to the Commission s action, it will be easier to build out

8 these systems and provide next generation, high speed broadband for millions of Americans in our nation s cities, towns, and rural areas, said the Internet Innovation Alliance. The rules governing siting of wireless infrastructure deployments have not changed in a generation. With today s action, the FCC is wisely modernizing its rules to account for changes in 21st century technology, including the development of small cells that will power future 5G broadband networks. But the National Congress of American Indians (NCAI) said it was disappointed by today s FCC vote. This action will be devastating for tribal nations inherent right to protect their sacred, cultural and historic places, NCAI added. Not only will this undermine tribal participation in the Section 106 process for small cell technology, but this action sets a dangerous precedent for federal decision making processes and the protection of tribal rights and interests. Over 45 tribes wrote to the FCC opposing the draft report and order and many others opposed the notice of proposed rulemaking. Last June, NCAI, joined by 12 intertribal organizations representing 429 tribal governments in 22 states, submitted written comments to the FCC opposing the NPRM. Indian Country is united in protecting our historic and cultural properties. The United South and Eastern Tribes Sovereignty Protection Fund (USET SPF) said, With today s vote, the FCC has rejected Tribal Nation offers to work on practical solutions for expediting the 5 G build out without compromising Tribal historic preservation interests and environmental concerns. The sweeping exemption for all small wireless deployments, easily hundreds of thousands and perhaps millions of units, is irresponsible and unlawful. In voting to adopt the Report and Order, the FCC has acted in violation of its trust obligation to Tribal Nations an obligation it does not owe to industry as well as in violation of its own Tribal consultation policy by jamming through the Report and Order. The Report and Order endanger priceless cultural property and sacred sites in favor of the exaggerated and often unverified economic concerns of an industry that reports hundreds of billions of dollars in revenue annually, the USET SPF added. We are appalled by this action, which creates a profoundly false choice between 5 G deployment and Tribal cultural preservation, it continued. In the strongest possible terms, USET SPF condemns the unlawful Report and Order approved today. In the glaring absence of a commitment on the part of FCC to genuine consultation and mitigation of concerns, Indian Country is now forced to explore other means of preventing the implementation of this shameful Order. Today s decision by the three member majority of the Federal Communication Commission approving the Second Report and Order to streamline wireless infrastructure deployment across the country demonstrates the Commission s inability to independently work with Tribal Nations without the wireless industry providing them with misleading information to demonize, once again, Native people in this country, complained Alina Shively, tribal historic preservation officer for the Jena Band of Choctaw Indians. Tribal concerns seemed to have gone unheeded by those who voted in support of the Order, Ms. Shively added. Tribal priorities were not part of the decision that was made today. Even something as basic as tribal consultation was absurdly misrepresented by the Commission. The process was skewed to fit the needs of the wireless industry, rather than honoring the Commissions federal trust responsibility to work with Tribal Nations. This is a sad day for many Tribal Nations, who have fought to have a voice in this process.

9 The National Conference of State Historic Preservation Officers (NCSHPO) is disappointed that the Commission continues to seem to have a fundamental misunderstanding of the definition of undertaking, and has chosen to proceed in this manner, said Erik Hein, the group s executive director. While we understand and are even sympathetic to the need to deploy 5 G technology, the cellular industry has not sufficiently defined small wireless facilities, or disclosed the full and potential impacts this move will have on our communities. They have chosen to describe and place volumetric limits on only one small apparatus the antenna and have omitted any description of the countless street level cabinets, cooling fans, battery boxes, wires and other associated equipment that together are part of a small wireless facilities installation. This omission, we believe, has led to a mischaracterization of the effects of the deployment of this technology. The Advisory Council on Historic Preservation, which had urged the FCC to conduct more outreach with stakeholders before adopting an item, had no comment today. The ACHP is unable to comment until we have a better understanding of exactly what was done and how the FCC will proceed, said Susan Glimcher, ACHP s director communications, education and outreach. NATOA enthusiastically supports deployment of 5G to every community, but we are disappointed with the FCC s vote today to eliminate federal environmental and historic preservation reviews for certain wireless facilities, said Tonya Rideout, executive director of the National Association of Telecommunications Officers and Advisors (NATOA). As Commissioner Rosenworcel noted, a significant issue in getting broadband services to unserved and underserved areas is the return on investment, which the FCC s actions today do not address. Nor does the Second Report and Order address the extent to which effective state and local environmental and historic reviews will remain in place where current rules and pending FCC actions may preempt local review of small cell deployment. While we believe the Commission should have delayed today s vote to address these and other important issues, we look forward to working with the Commission to preserve local governments ability to address their unique environmental and historic interests in the ongoing rulemakings on broadband deployment. Kevin Mottus, outreach director for the California Brain Tumor Association, also criticized today s FCC action, citing research results released today linking radiation from cell towers and tumors (see separate story). As a result we now have enough evidence to classify wireless radiation as a class one human carcinogen like cigarette smoke and thus we should be warning our population and minimizing our exposure, not maximizing it as the FCC is doing with the roll out of 5G and the internet of Things, he said. At today s FCC meeting, at least one person briefly disrupted the session by loudly raising concerns about the health impacts of RF emissions. Paul Kirby, paul.kirby@wolterskluwer.com Clyburn, Other Dems Seek Delay on Wireless Infrastructure Item FCC Commissioner Mignon L. Clyburn and Democrats in the House and Senate urged the FCC today to delay consideration of the draft wireless infrastructure order that it plans to consider at its meeting tomorrow, citing opposition to the item of tribal entities, municipalities, environmental protection

10 advocates, and others. However, an FCC spokesperson indicated that FCC Chairman Ajit Pai would not pull the item from the agenda. The draft second report and order would clarify that the deployment of small cells by private parties 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). For traditional, large cell deployments, the order would clarify the industry tribal engagement process under NHPA, including the time for tribal review, and would rule that companies are not required to pay tribes upfront fees for reviewing projects. The order also would remove the requirement that applicants submit environmental assessments (EAs) because a proposed facility is in a floodplain if the facility is at least one foot above the base flood elevation. It also would adopt a shot clock for the FCC s processing of EAs. A plethora of stakeholders, including federal officials, state and tribal historic preservation officers, localities, and environmental advocates have expressed concerns with the draft order. Critics have argued, among other things, that the item would exceed 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. States, localities, tribes, and others also have complained that the Commission has failed to adequately consult with them on the issues. Expediting the deployment of next generation wireless services to all Americans must remain a top priority for the FCC. While I strongly support this goal, in recent weeks I have made clear that the approach proposed by the current Order to streamline the deployment of wireless infrastructure raises many concerns, Ms. Clyburn said in a statement released this afternoon. It was my hope that through discussions and negotiations that these concerns could be addressed. However, after a full review of the record (and multiple conversations with numerous stakeholders) about the concerns raised by Tribal Nations, environmental protection advocates, and local government representatives, it is clear to me that the best course for all parties at this juncture is to delay tomorrow s vote on this Order until the potential adverse impact of these proposed rules on Tribal Nations, historic sites, and the natural environment are fully addressed, Ms. Clyburn added. A letter to the FCC today from Sens. Tom Udall (D., N.M.), Maria Cantwell (D., Wash.), and Tina Smith (D., Minn.), and Rep. Ben Ray Lujan (D., N.M.) asked the Commission to delay finalizing the rule until a truly meaningful consultation with Indian Tribes occurs. We have heard from tribal stakeholders that this draft order confuses streamlining with steamrolling, potentially limiting the resources available to Tribes and their Tribal Historic Preservation Officers at an important juncture when the telecommunications industry continues its expansion of infrastructure into tribal areas of religious, historical, and cultural importance, the lawmakers continued. Given these potentially sweeping changes to the agency s tribal consultation process within the National Historic Preservation Act (NHPA), we ask the FCC to delay its vote on this measure while it conducts another round of tribal consultation.

11 In a letter to the FCC yesterday, Reps. Frank Pallone Jr. (D., N.J.), ranking member of the House Energy and Commerce Committee, and Anna G. Eshoo (D., Calif.), and Raul Ruiz (D., Calif.), members of the communications and technology subcommittee, also expressed concern about the draft order. We urge you to reconsider your proposed order that would short circuit the safeguards for tribal lands set forth in the National Historic Preservation Act (NHPA), they said. While we are enthusiastic supporters of efforts to deploy more wireless broadband, including new 5G technologies, we do not believe the Federal Communications Commission (FCC) should set up this false choice between broadband deployment and respect for tribal sovereignty. Your proposal would undermine the foundations of tribal protection and consultation set forth by Congress in the NHPA, while doing nothing to secure a single enforceable commitment that broadband providers will actually build more infrastructure. The lawmakers complained that [i]f the FCC were to carve out small wireless facilities from NHPA, the Commission could be subjecting culturally significant sites to death by hundreds of thousands of smallcell cuts. They also said that the item shifts the burdens away from the corporations that benefit from the order and onto often cash strapped tribes who receive nothing in return. The existing system ensures that these communities can afford to perform an adequate review to protect their sacred land by allowing them to collect a fee from the carriers that benefit from the deployment. The House members also said they are dismayed that this most recent Order more broadly reflects the culture of this Commission s majority to act always at the behest of industry again and again at the expense of consumers, localities, and otherwise marginalized and disenfranchised communities who are in the most need of their government to look out for them. In another letter to the FCC today, Rep. Debbie Dingell (D., Mich.) asked Commissioner Brendan Carr, who is the FCC s point person on wireless infrastructure issues, to reconsider the draft order, which she said would eviscerate the critical environmental and transparency protections created by the National Environmental Policy Act (NEPA). The justification for your proposed order s attack on NEPA is lacking, the congresswoman added. I am particularly puzzled by the dearth of serious discussion in the record regarding the impact of gutting NEPA on local communities, businesses, and the environment. In addition, the NEPA process also provides an opportunity for input to improve project design and public acceptance. As a Member of Congress, I am committed to pursuing high speed, universal broadband access, but I believe it foolish to sacrifice public transparency and thoughtful environmental considerations to do so. Without much thought, your proposed order weakens NEPA s transparency framework in the name of efficiency, yet does not include a single enforceable commitment to ensure that broadband providers will actually build more infrastructure. An FCC spokesperson defended the item this afternoon and indicated that Mr. Pai does not plan to delay its consideration. This item is critical for American leadership in 5G, and the Chairman looks forward to supporting it tomorrow, the spokesperson said. We need to modernize our outdated wireless infrastructure rules so that Americans will be able to benefit from next generation wireless services. It's important to note

12 that the draft decision wouldn't change the Commission's approach for deployments on tribal lands. And for all other deployments, the draft has benefitted greatly from consultations with Tribes, and focuses our review process on those deployments most likely to impact historic and cultural interests. In his own statement, Mr. Carr focused on entities that have expressed support for the order rather than those who oppose it. It's heartening to see the broad base of support for ensuring that the U.S. wins the global race to 5G and gets more broadband to more Americans. Our decision is the product of discussions spanning three years, and it has benefited greatly from extensive consultations, Mr. Carr said. I'm glad that a broad coalition supports these efforts, including tech advocates like INCOMPAS, CCIA, and CTA, voices from underserved communities like LULAC and LGBT Tech, job creators like the Small Business & Entrepreneurship Council and the U.S. Chamber, and other organizations including the Progressive Policy Institute." Critics of the item commended Ms. Clyburn for calling on the FCC to delay a vote on it. The United South and Eastern Tribes Sovereignty Protection Fund (USET SPF) said it is pleased that in response to the strong objections of Tribal Nations, as well as concerns from federal agencies, the historic preservation community, localities, Congress, and numerous other stakeholders, Commissioner Clyburn is correctly recommending that tomorrow s scheduled Commission vote on its draft Report and Order be delayed. As it is currently written, the draft Report and Order has devastating implications for the protection of sacred Tribal cultural property and historic preservation, and was developed without anything approaching adequate Tribal consultation. Furthermore, its overbroad and unjustified reimagining of the National Historic Preservation Act and the National Environmental Policy Act is unlawful. USET SPF added, We continue to be deeply concerned that the draft Report and Order relies on a handful of unverified industry examples, as it proposes to upend a largely successful process and jeopardize existing legal protections and obligations to Indian Country. Yet again, USET SPF calls upon the entire Commission to withdraw the draft Report and Order and instead, consult with Tribal Nations on a set of best practices we developed in collaboration with the FCC over a decade ago. These best practices contemplate and address a majority of concerns expressed by the wireless industry and 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. USET SPF again commits itself to open dialogue and true consultation on a path forward that protects sacred Tribal cultural property while addressing any legitimate concerns raised by the telecommunications industry. We are grateful to Commissioner Clyburn for her leadership on this issue and endorse her efforts to address concerns raised by Tribal Nations, environmental protection advocates, and local government, said Mike Lynch, president of the National Association of Telecommunications Officers and Advisors (NATOA), which has joined other municipal groups in expressing concern about the order (TR Daily, March 16). A modest delay in considering the draft order seems both appropriate and in keeping with Commission practice. In exempting small wireless deployments from review under the National Historic Preservation Act and the National Environmental Policy Act, we believe the draft order sacrifices local communities interests without a full and fair assessment of the ramifications of this proposed action, Mr. Lynch

13 added. When viewed in the context of existing preemptions of local authority over wireless facilities, it is clear the proposed draft order paves the way for dramatic changes in our communities with limited or, in many cases, no opportunity for local review. Once again the nation is indebted to Commissioner Clyburn for her practical leadership skills at the Commission, Gerry Lederer, an attorney for Best, Best & Krieger LLP who represents local governments, told TR Daily. The rewrite of the nation s NHPA/NEPA rules to exclude small cells, misrepresented as just the Wi Fi like antenna, were not outlined in the Commission s proposal in the docket. How could it hurt to spend more than 21 days to better understand the intended and unintended consequences of the proposed rewrite of the nation s NHPA/NEPA rules? My local government clients hope that Commissioner Clyburn is successful in her efforts and stand ready to participate in any dialogue the seeks to identify and avoid at least the unintended consequences of the order. Asked by TR Daily to comment today, Charlene Dwin Vaughn, assistant director of the Advisory Council on Historic Preservation s Office of Federal Agency Programs, noted that ACHP, in a filing with the FCC last week (TR Daily, March 16), called for the agency to have further consultation with stakeholders. Accordingly, we assumed that FCC would delay the vote scheduled for March 22, 2018, until this action had occurred. Also today, the FCC s Intergovernmental Advisory Committee (IAC) released an advisory recommendation that stressed that State, local, and Tribal governments are committed to working as partners with industry and all stakeholders to accelerate 5G deployment into our communities. Despite the weight of evidence to the contrary, there are some who assert that state, Tribal, and local governments create widespread harmful and unnecessary barriers to the deployment of wireless infrastructure. Those holding this misguided view would have the federal government preempt and limit local control over wireless infrastructure siting decisions and impose federal one size fits all rules emanating from Washington, D.C., it added. The IAC said it strongly recommends against preemption or other limits of local control over wireless infrastructure siting decisions. Past practice, as well as the evidence in this record[,] suggests that preemption is unnecessary, will produce unintended consequences, and fundamentally runs afoul of the careful balance struck by Congress between federal and local authority. The current process for siting wireless infrastructure is not fundamentally broken, the IAC added. By and large, local, state, and Tribal governments balanced approach has not prohibited or had the effect of prohibiting carriers ability to provide service. Nevertheless, the IAC recognizes that many communities regulatory regimes were built for an era dominated by large macro cell towers. Technology has changed and so should state, local, and Tribal governments approach to it. Indeed, many state, local, and Tribal governments are already undertaking this effort, and we can learn a great deal from their successes and challenges. The IAC included examples of successful local government ordinances as well as examples of how some industry members themselves generated barriers to deployment and how local governments responded. The IAC made seven recommendations, including calling on the FCC to act in its RF standards proceeding; give localities the necessary time to consider siting decisions and give new state laws time

14 to work; ensure equitable treatment between federal, State, Tribal, and local governments ; and consider the unintended consequences of adopting rules that further preempt State, local, and Tribal control related to siting of wireless infrastructure. For their part, industry entities and their allies continued to praise the draft FCC order today. The FCC is exactly right to update the process for siting small cells and has worked for over two years to find the right balanced solution to modernize these procedures, a CTIA spokesperson said. The FCC s action is targeted and long overdue and modernizing the process will help deliver faster wireless broadband deployment across the country while still safeguarding areas of importance to Tribal Nations. We urge the FCC to vote in support of [the] infrastructure modernization proposals because they will help drive greater investment and ensure more Americans benefit from 5G, CTIA President and Chief Executive Officer Meredith Attwell Baker said in a commentary for Fox Business. We need a similar focus on local zoning challenges from every level of government to really jumpstart investment. New Mexico s governor recently signed legislation doing just that, and Congress agreed to reform making siting easier on federal lands. We appreciate Commissioner Carr s leadership on this issue and urge his fellow Commissioners to adopt the Order at their upcoming Open Meeting. The Draft Order s approach is a common sense solution to small cell deployment eliminating unnecessary reviews and streamlining the process when applicable, while balancing legitimate concerns about historical and cultural preservation, said Incompas CEO Chip Pickering. Next generation 5G networks are critical to our nation s security and we should be making all efforts to speed their deployment. It s predicted this Order would save Americans $1.56 billion in burdensome red tape while creating 17,000 new jobs. There s no denying this Order is good for America s economy and our national security as we work to maintain our global leadership in wireless networks. The bottom line is that this one vote would lead to massive amounts of capital being freed up to spur investment, the enabling of more innovation, more broadband and leaving more money in the pockets of Americans, said Bartlett Cleland, managing director of Madery Bridge Associates LLC, a public strategy firm. But such a move is not easy as large investments in infrastructure are needed and so eliminating unfit regulation is a critical, and smart, move. In this way, the FCC is pursuing infrastructure reform, moving now to spur real infrastructure spending on the infrastructure of today, and tomorrow. Paul Kirby, paul.kirby@wolterskluwer.com