The FCC’s Environmental Obligations

I think a lot of ISPs will be surprised by this blog. The FCC has a specific set of environmental rules that must be followed when building any telecommunications infrastructure. ISPs that haven’t built on park lands or were funded by certain federal broadband grants probably never heard of these rules. But the rule apply to all telecommunications construction.

The FCC’s Environmental rules are codified in section 47 C.F.R. § 1.1307 of FCC regulation. These rules require that an environmental review may be required for infrastructure being proposed in the following circumstances:

  • Facilities to be located in an officially designated wilderness area.
  • Facilities to be located in an officially designated wildlife preserve.
  • Facilities that may affect listed threatened or endangered species or designated critical habitats
  • Facilities that may affect districts, sites, buildings, structures, or objects, significant in American history, architecture, archeology, engineering, or culture, that are listed, or are eligible for listing, in the National Register of Historic Places.
  • Facilities that may affect Indian religious sites.
  • Facilities to be located in a floodplain, if the facilities will not be placed at least one foot above the base flood elevation of the floodplain.
  • Facilities whose construction will involve a significant change in surface features (e.g., wetland fill, deforestation, or water diversion).
  • Antennas or supporting structures that will be equipped with high-intensity white lights and located in residential neighborhoods.

The reason ISPs probably haven’t heard about these specific rules is that the FCC has largely put ISPs on the honor system to meet these guidelines. The only times that an ISP might be required to follow these rules is if they were funded by a federal broadband grant or if they tried to get a permit to build on federal land. Those situations often require some level of environmental review to get the funding or the permit. Many of the ISPs who will be pursuing the BEAD grants will be required to comply with these rules.

There are a few specific FCC rules for notifying the public before building a new cell tower – but there are no specific public notification requirements for building other kinds of infrastructure. Carriers often flaunt the cellular notification rules. ProPublica recently wrote about the public outcry in New York City when a carrier erected large three-story tall wireless towers on city streets. After the intervention from the public and local politicians, the FCC eventually halted the construction for not complying with the rules, but only after 200 towers had been erected.

The obligation for the FCC to enforce environmental rules was put in place in 1969. The agency has rarely taken its environmental obligations seriously and didn’t issue any fines for breaking the rules until the early 2000s. Even today, the FCC only learns about most infractions after infrastructure has been built. The agency only issues fines in about 10% of the cases brought before it by local governments, states, or the public.

There are parts of the country where companies routinely build through flood plains or near wetlands to lay fiber. I’m sure many ISPs have unwittingly build close to areas that are home to endangered species. While the FCC hasn’t issued a lot of fines for flouting the rules, but ISPs ought to at least be aware that these rules exist.

One thought on “The FCC’s Environmental Obligations

  1. As a former FCC environmental attorney (cited in the Pro Publica article), I very much appreciated this post.

    A couple of minor points of clarification: FCC’s funding of build outs never go through NEPA although law requires that it should, and grant recipients may be on the honor system to conduct environmental review of their individual projects, but as with other projects using licensed spectrum that therefore require review, the FCC does little to no oversight or enforcement so non-compliance is rampant. Projects on federal land generally go thru the land managing agency’s likely more robust environmental review process.

    To get a better sense of these issues, here’s a blog I wrote on the agency’s failure to comply with its environmental obligations.

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