Clyburn Seeks Delay of Vote on Changes to Wireless Infrastructure Rules

FCC Commissioner Mignon Clyburn Wednesday urged the FCC to postpone a vote on wireless infrastructure rules, slated for Thursday. The draft order, developed by Commissioner Brendan Carr, faced criticism from tribal groups concerned about the consultation process and groups representing local governments. With snow still falling in Washington on Wednesday, the FCC said the meeting is to start at 9:30 a.m., unless the Office of Personnel Management delays the opening of the federal government, in which case it will start at 11:30 a.m.

The draft order would clarify that 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 would also cut red tape for tribal reviews of projects off tribal lands and would clarify applicants “have no legal obligation to pay upfront fees” when seeking tribal comment on proposed deployments.

“Expediting the deployment of next generation wireless services to all Americans must remain a top priority for the FCC,” Clyburn said in a statement. “While I strongly support this goal, in recent weeks I have made clear that the approach proposed by the current Order to streamline the deployment of wireless infrastructure raises many concerns.” Clyburn said her concerns could be addressed through negotiations with the other offices. “However, after a full review of the record (and multiple conversations with numerous stakeholders) about the concerns raised by Tribal Nations, environmental protection advocates, and local government representatives, it is clear to me that the best course for all parties at this juncture is to delay tomorrow’s vote on this Order until the potential adverse impact of these proposed rules on Tribal Nations, historic sites, and the natural environment are fully addressed,” Clyburn said.

Carr countered that he welcomed the support he received on the order. "It's heartening to see the broad base of support for ensuring that the U.S. wins the global race to 5G and gets more broadband to more Americans,” he said Wednesday. “Our decision is the product of discussions spanning three years, and it has benefited greatly from extensive consultations. I'm glad that a broad coalition supports these efforts, including tech advocates like INCOMPAS, CCIA [Computer & Communications Industry Association], and CTA, voices from underserved communities like LULAC [League of United Latin American Citizens] and LGBT Tech, job creators like the Small Business & Entrepreneurship Council and the U.S. Chamber, and other organizations including the Progressive Policy Institute."

The state, local and Tribal members of the FCC’s Intergovernmental Advisory Committee sent a letter to Chairman Ajit Pai asking the FCC not to do anything as part of the order that would change the definition of a small cell until the matter is given more study.

The FCC also is facing pressure from Congress. “The justification for your proposed order’s attack on NEPA is lacking,” Rep. Debbie Dingell, D-Mich., said in a letter Wednesday to Carr. “I am particularly puzzled by the dearth of serious discussion in the record regarding the impact of gutting NEPA on local communities, businesses, and the environment. In addition, the NEPA process also provides an opportunity for input to improve project design and public acceptance.”

“Once again the nation is indebted to Commissioner Clyburn for her practical leadership skills at the commission,” said Best Best telecom attorney Gerard Lederer. “The rewrite of the nation’s NHPA/NEPA rules to exclude small cells, misrepresented as just the Wi-Fi like antenna, were not outlined in the commission’s proposal in the 17-79 docket. How could it hurt to spend more than 21 days to better understand the intended and unintended consequences of the proposed rewrite of the nation’s NHPA/NEPA rules?”

But the Small Business Administration supported the order. Jamie Belcore Saloom, SBA assistant chief counsel wrote,“5G is the next game-changer in the connectivity space -- it will empower Internet of Things technology like automated cars and telehealth through reliable, high-speed, low latency connections.” “Small innovative businesses should be big players in the 5G economy and it is essential that the U.S. leads the deployment of new technologies that 5G networks make possible.”

“The FCC is exactly right to update the process for siting small cells and has worked for over two years to find the right balanced solution to modernize these procedures,” a CTIA spokesman said. “The FCC’s action is targeted and long overdue and modernizing the process will help deliver faster wireless broadband deployment across the country while still safeguarding areas of importance to Tribal Nations.”