Tribal and Historic Preservation Groups Oppose CTIA-Proposed Siting Changes
CTIA’s proposal that the FCC launch a rulemaking to update its rules implementing the National Environmental Policy Act (NEPA) is facing huge backlash from states and tribal groups (see 2503270059). CTIA also asked the commission to tackle restrictions under the National Historic Preservation Act (NHPA). The petition received support from industry. Comments were due Wednesday in RM-12003.
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Danielle Thumann, senior counsel to FCC Chairman Brendan Carr, indicated last week that tackling environmental and historic preservation rules would be a priority (see 2504220067).
“CTIA’s request that the FCC ‘update its rules’ implementing NEPA is an affront to Tribal sovereignty and a fundamental violation of the Federal trust responsibility to Tribal Nations,” said the National Association of Tribal Historic Preservation Officers. “A decision that wireless facility deployments are not a major federal action would not only have an impact on NEPA requirements that the FCC consult with Tribal Nations, but also on [NHPA] requirements for consultation with Tribal Nations,” the group said.
“These statutes and rules provide crucial processes for the fulfillment of the United States’ trust responsibility to consult with the Tribe on projects affecting its aboriginal homelands,” said the Miami Tribe of Oklahoma. “Rather than providing the required ‘facts’ and ‘data,’” to justify a rulemaking, “the Petition makes sweeping statements about the nature of the licensing process and cell tower deployments without citing applicable rules, authority, or sources of data.”
The Coalition for Tribal Sovereignty said CTIA “urges the Commission to depart from decades of precedent and deregulate its rules and processes for how it implements NEPA and the NHPA.” It called on the FCC to reject “hurried changes” sought by the wireless industry: “Any changes to how the Commission implements NEPA regulations that minimize or forgo mandated Tribal consultation will have significant impacts on Tribal Nations and our ability to protect and manage Tribal resources, sacred sites, and historic properties.”
The proposed streamlined measures “would effectively repeal NHPA and NEPA as they apply to the Commission, in a way that is directly opposed to the stated intent of Congress in creating these laws,” said the Choctaw Nation of Oklahoma.
CTIA also got pushback from historic preservation officials. The National Conference of State Historic Preservation Officers said the petition “reflects a fundamental misunderstanding" of the NHPA, “particularly its status as an independent federal law distinct from” NEPA.
The petition argues that NEPA and NHPA “create burdensome delays in the construction of various facilities through their review processes and praises past implementation for projects exempt [from] these reviews,” but “no documentation to back these claims is provided,” said Katrina Ringler, Kansas' deputy state historic preservation officer. “Our office believes that accepting these suggestions will have a devastating impact on historic properties and inhibit the public and various stakeholders from commenting on a project’s impact on historic properties.”
“We are strongly opposed to this petition and urge FCC to reject it,” said the North Dakota State Historic Preservation Office.
Dynamic Environmental Associates, a regulatory consulting firm, said some of the changes CTIA is seeking make little sense. "CTIA’s petition argues that wireless infrastructure associated with a Geographic Area License (GAL) should not be subject to NEPA compliance but rather, only infrastructure that is subject to Antenna Structure Registration (ASR), since that infrastructure is individually licensed by the FCC through the ASR process,” the firm said. “The reality is that the actual footprint of the infrastructure is the primary focus of NEPA reviews, and a 100-foot tall tower often has the same footprint as a 250-foot tall tower," it said: "Excluding infrastructure from NEPA review based solely on whether the structure will be registered … is irrational and unscientific.”
Industry Support
But CTIA got support from industry commenters, including the Competitive Carriers Association. “Federal permitting delays have been a major pain point for CCA members working hard to deploy facilities and improve connectivity, including in many rural communities that are unserved,” CCA said: “Delays oftentimes are measured in years instead of weeks or months.”
“NEPA reviews are outdated and have not kept pace with changes in the law,” T-Mobile said. The NEPA process “is particularly challenging due to varying interpretations of requirements by federal, state, and local agencies, leading to delays and complexity -- especially when additional permits are needed,” the carrier said: “These impediments can include long ... delays and increased costs.”
“One of the most effective ways the Commission can support timely deployments is through the removal of redundant or unnecessary reviews for the infrastructure needed to support these networks,” the Wireless Infrastructure Association said.