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April 9, 2018

Federal Communications Commission Approves New Rules Exempting Small Cell Wireless Facilities From NHPA/NEPA Review

On March 22, 2018, the Federal Communications Commission ("FCC") voted to approve new rules exempting small cell wireless facilities from certain environmental and historic reviews. The vote declared that the deployment of small wireless facilities by private entities, necessary for next-generation or 5G networks, does not constitute a "federal undertaking" or a "major federal action," thus eliminating the review requirement under the National Historic Preservation Act ("NHPA") and National Environmental Policy Act ("NEPA").

The vote was a result of documented increases of per-site costs of compliance with the NHPA/NEPA at a time when deployments, the majority of which are small wireless facilities, are increasing throughout the country. The FCC concluded that removing environmental and historic preservation review for small wireless facilities will help facilitate the deployment of advanced wireless services, noting that the current approach was developed when most deployments involved large macrocell facilities.

The vote also modified and clarified the relevant historical preservation review for qualifying projects. The new rules requireTribal Nations and Native Hawaiian Organizations ("NHOs") to respond within 30 days' to notifications of proposed wireless communications facility deployments in areas of interest designated by them that they receive via the FCC established Tower Construction Notification System. The new rules replace the existing 60-day review process for an applicant to discharge its pre-construction obligations for a particular Tribal Nation's or NHO's non-responsiveness with a simple referral to the FCC for a follow-up after the 30-day shot clock has run. The FCC will then provide the Tribal Nation or NHO 15 calendar days to indicate its interest or lack of interest in participating in Section 106 review. If the Tribal Nation or NHO again fails to respond, the applicant's pre-construction obligations are discharged with respect to that Tribal Nation or NHO.

The order clarified that an applicant is not required to pay upfront fees to Tribal Nations or NHOs as part of the Section 106 tribal consultation process. Under the new rules, a request by a Tribal Nation or an NHO for payment of an upfront fee, whether made directly to the applicant or to the applicant's TCNS, will automatically allow the applicant to proceed with the 45 day process applicable when a tribal nation or NHO fails to supply a timely response.

The FCC further streamlined the environmental review process by establishing additional timeframes for action on Environmental Assessments ("EAs"). The new rules direct staff to complete review and issue a Finding of No Significant Impact ("FONSI") within 60 days' after placement "on notice" (publication of a public notice or posting on the website). Furthermore, where an informal complaint or petition to deny is filed against an application containing an EA, "the staff will endeavor to resolve the contested proceeding within 90 days' from receipt of all pleadings, or information otherwise requested from the applicant." For the most part, the new rules will be effective 60 days' after publication in the Federal Register.

For more information please contact Jeff Davis, Chair of the Telecommunications Practice Area at (315) 425-2823 or by e-mail at


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