The FCC recently released a Notice of Proposed Rule Making where the agency is looking to relax some of the rules related to NEPA (National Environmental Policy Act), mostly related to wireless infrastructure. The NEPA rules were created in 1970 as a reaction to air pollution and acid rain. The Act created the Council on Environmental Quality (CEQ) that oversees the implementation of the NEPA rules. I have to warn you that this order is chock-fully of jargon and not easy to understand for those not familiar with environmental regulations.
The NEPA rules are being examined in light of Executive Order 14154, signed in January and titled “Unleashing American Energy”, which rescinded Executive Order 11911 from 1977 that required CEQ to issue regulations for federal agencies regarding the implementation of NEPA.
This particular docket examines environmental rules that apply to locating wireless equipment. In a related effort, NTIA has told State Broadband Offices that it will be relaxing the need for expensive environmental studies for winners of most BEAD grants. For now, environmental studies are still needed for other grants like ReConnect. The FCC says this docket applies to commercial spectrum license holders, utilities, public safety entities, railroads, mining companies, and tower owners.
The FCC adopted rules in the past that make it easy to do normal broadband construction of all types without jumping through a lot of paperwork hoops. The existing FCC rules say that extra NEPA compliance doesn’t broadly apply to projects that “individually and cumulatively to have no significant effect on the quality of the human environment and are categorically excluded from environmental processing.” In practical terms, that has meant that projects like building privately-funded fiber in existing rights-of-way doesn’t need an environmental study.
However, the current FCC regulations recognize that there are circumstances, which are defined by a NEPA Checklist, where additional environmental study is justified. One event that triggers the exception is communications projects constructed on federal lands or projects funded with federal or state grant money. Such projects typically require full NEPA compliance. Those who have had to go through the environmental studies complain that they are costly and can delay projects by as much as a year. Construction can’t proceed until an exhaustive environmental review has been completed, at a cost as high as several hundred thousand dollars.
The FCC NPRM is also exploring whether any changes should be considered for compliance with the National Historic Preservation Act of 1966 (NHPA). Those rules have often been invoked by localities to restrict placing wireless towers adjacent to historic sites.
The NPRM was initiated due to a petition from CTIA, the Wireless Association, that represents the largest cellular companies, that asked to modify the rules by imposing short deadlines on environmental and historic preservation reviews.
The NPRM asks when it is appropriate for the FCC to invoke NEPA rules for wireless tower placement. The FCC suggests that it is not responsible for invoking NEPA rules for wireless licenses that cover large geographic areas, and that local regulations would suffice for specific choices of where to put towers. The FCC suggests that NEPA still applies to wireless licenses that are site-specific.
The NPRM also asks what rules should apply for the location of satellite earth stations, which are currently not specifically covered by regulation. The NPRM asks if the FCC should continue to ask tower owners to register with the FCC. The NPRM also asks if there should be any environmental regulations that apply in space – a fitting question for the ever-more crowded low-orbit paths.