FCC Approves Wireless Infrastructure Order Over Clyburn, Rosenworcel Dissents

The order clarifies 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 cuts red tape for tribal reviews of projects off tribal lands and makes clear applicants “have no legal obligation to pay upfront fees” when seeking tribal comment on proposed deployments. "The Order focuses on ensuring the Commission’s rules properly address the differences between large and small wireless facilities, and clarifies the treatment of small cell deployments," said a news release.

Commissioner Brendan Carr, who oversaw the issue, repeated many arguments he made over the past three weeks in support. He said the FCC did lots of outreach and consultation with the tribes. “Our regulatory counterparts around the world are well aware that the United States led the world in 4G,” he said. “They are eager to leapfrog us to 5G. A central part of their 5G agenda is to update their infrastructure deployment rules.” Carr said 80 percent of 5G deployments are likely to be small cells: “Our infrastructure deployment rules have been stuck in the analog era.”

The order “runs roughshod over the rights of our tribal communities and gives short shrift to our most basic environmental and historic preservation values,” Rosenworcel said. “Too much of its policy and legal analysis is lacking the heft necessary to support the result.” No single tribe endorsed the order, she said. The FCC should have delayed a vote until problems with the order are fixed, she said.

Clyburn said she strongly supports efforts to facilitate deployment of 5G, but too many questions were raised about the order. Clyburn noted she sought postponement (see 1803210059), but that was denied. “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,” Clyburn said. “But after many open and direct exchanges, my major concerns could not be addressed.” Clyburn nevertheless thanked Carr for being willing to engage even though they agree.

No Delay

The FCC was reluctant to delay the vote on wireless infrastructure item, which was three years in the making, Carr said during a news conference: "We went above and beyond."

A few tribes, a “small subset,” have slowed deployment of wireless infrastructure, said Commissioner Mike O'Rielly. “This brings a bad name to the rest of the American tribes that really try to do good-faith effort to work with wireless providers on behalf of consumers.” Providers and the FCC “tried collaboration and cooperation until they’re blue in the face,” he said. “The consultations and meetings have occurred as detailed in the order,” he said. “It’s time to move past the talking stage.”

“Unfortunately, our current wireless infrastructure rules are a poor fit for the 5G networks,” said Chairman Ajit Pai. “They were designed with 200-foot towers in mind, not the highly densified networks of small cells that will be common.”

The National Congress of American Indians slammed the order. “This action will be devastating for tribal nations’ inherent right to protect their sacred, cultural and historic places,” the group said. “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.” NCAI noted more than 45 tribes wrote to the FCC opposing the order.

“Most Tribal Nations have small land bases due to forced removal from our ancestral homelands, our homelands that had no definitive boundaries before contact with non-Native people,” emailed Alina Shively, historic preservation officer of the Jena Band of Choctaw Indians in Louisiana. “Archeological survey teams are still finding sites today, untouched by the continued development to our nation. But the importance of our history as a nation and the significance of these sites to our people are being sacrificed for the financial gain of the wireless industry.”

“Today’s action removes a significant barrier to enjoying the benefits of this new technology by clarifying that historical and environmental reviews aimed at traditional cell towers don’t apply to the significantly smaller and lower antennas that will be used for 5G deployments,” said Fred Campbell, director of Tech Knowledge: “The FCC’s existing historical and environmental review requirements will remain in place for large cellsites.”

“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,” said Jonathan Adelstein, president of the Wireless Infrastructure Association. CTIA posted a video showing “how quickly and unobtrusively” a small cell can be installed on a suburban street, touting a 92-minute process.

“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,” said Joan Marsh, AT&T executive vice president. “As T-Mobile moves toward a 5G future, we’re pleased the FCC is taking action,” said Kathleen Ham, senior vice president.

Meeting Notebook

Commissioners voted unanimously for an NPRM seeking comment on streamlining the process for reauthorizing satellite TV stations that are transferred, as expected (see 1803190048). The current rules require reauthorization showings that are the same as when satellite status is first granted, but the NPRM seeks comment on doing away with such showings where there has been no material change, said a fact sheet. “If nothing material has changed, we don’t need or want additional paperwork,” Pai said. As evidence the current rule is unnecessary, Media Bureau staff and nearly every commissioner noted the agency has never denied a satellite reauthorization. Clyburn said the NPRM also seeks comment on -- as expected -- allowing the streamlined process for stations seeking reauthorization that have a new parent station providing the content that's being rebroadcast. The original draft NPRM tentatively concluded a new parent would amount to a material change in a satellite station’s status. “If the original intent of this waiver was to help struggling stations, the condition of the satellite station, not the parent station, should be our primary focus,” said O’Rielly. Though O’Rielly said the change was the result of a compromise among Clyburn, Pai and his office, Clyburn said she favored the original draft. The voted version “still acknowledges that transactions involving a change in a satellite station’s parent are fact specific and may have public interest implications,” Clyburn said.

Commissioners voted 5-0 to explore ways to improve relaying wireless 911 calls to appropriate first responders, some of which are misrouted. Wireless 911 calls are currently routed to public safety answering points near the cell tower handling the calls, resulting in some calls, particularly along jurisdictional boundaries, being sent to the wrong PSAPs and slowing emergency responses. The commission adopted a notice of inquiry (see draft) to seek to examine how the commission might best encourage and facilitate shifting from tower-based to location-based routing to PSAPs. The NOI "seeks comment on the extent of 'misrouted' wireless 911 calls and approaches to avoid such delays, including the feasibility of routing 911 calls based on the location of the caller as opposed to the location of the cell tower that handles that call," said a release. "Recent technological advances suggest that in many situations it is now possible to route 911 calls to the correct call center based on information about the caller’s location." Pai said that "we aim to understand just how common this problem is, how we can avoid potentially deadly delays in responding to wireless 911 calls, and which location-based routing technologies could help." The National Emergency Number Association welcomed the action: "Location-based routing is a fundamental element of NG9-1-1 that will decrease the time it takes to respond to emergencies. The FCC itself estimates that 10,000 lives could be saved each year if the emergency dispatching system (9-1-1) could get help one-minute sooner to those calling for emergency assistance."