Some Say FCC Overstepped With Small-Cells Order; Tower Builder Wants More
A March FCC order on wireless infrastructure attracted reconsideration petitions this week from localities, a major American Indian tribe and a tower company in docket 17-79. NATOA said the order isn’t in the public interest, fails to acknowledge existing limits and ignores impact of dense deployments in small areas, among other problems. It “will inflict serious injury” on tribes, said the Apache Tribe of Oklahoma. The move is a “step forward,” but the FCC should have stepped further, said T-Mobile unit and tower company PTA-FLA. Residents of Montgomery County, Maryland, also sought reconsideration due to concerns including about possible radiation from RF emissions.
The 3-2 order said small-cells deployment isn't a “federal undertaking” within the National Historic Preservation Act or a “major federal action” under the National Environmental Policy Act, and applicants “have no legal obligation to pay upfront fees” when seeking tribal review (see 1803220027). The order angered tribes, and the Crow Creek Sioux Tribe in South Dakota sued on behalf of more than 565 federally recognized tribes in April (see 1804240037).
The agency failed to address existing limits including Section 6409(a) of the 2012 Middle Class Tax Relief and Job Creation Act, NATOA said, posted Tuesday. That section on wireless facilities deployment “undermines the Commission’s assumption that state and/or local environmental and historic preservation reviews can act as a safety valve in order to prevent small cells it has rendered exempt from federal review from effecting the environment or historic areas,” the local government group said. The FCC didn’t consider how the order conflicts with the nationwide programmatic agreement for the collocation of wireless antennas, especially regarding historic districts and properties, NATOA said. “The Commission must clarify this point, and if it is eliminating the distinction between historic and nonhistoric properties, must explain its reasons.” The order sets size limit for small wireless facilities that don't account for deploying “multiple small cells and related equipment within close proximity in a small geographic area,” NATOA said.
The ruling “undermines an important national interest -- preservation of historic lands and places -- purportedly to serve the national economic benefit,” the Apache Tribe said. “The Commission has stripped the relevant statutes and policies of all meaning.” The regulator wrongly assumed “a perceived lack of conflict” about site locations means consultation is unnecessary; limited conflict demonstrates consultation is working well, the tribe said. “The order resulted from a flawed procedural process," the tribe said: The FCC "eschewed actual, meaningful consultation with the Tribes in favor of ‘listening sessions,’ conference calls, and other gatherings in which the Tribes were told what was going to happen rather than having an opportunity to voice their concerns with the Commission’s proposed course of action.”
A tower company cheered taking on tribes. “It took some fortitude for the Commission to stand up here for what is clearly the right call in the face of bitter complaints from heretofore advantaged representatives of a historically disadvantaged group,” PTA-FLA wrote. The company sought expansion of the order to cover medium-sized structures between 50 and 199 feet.
“There is no statutorily relevant distinction between a 50 ft. tower and a 199 ft. tower for purposes of what constitutes a federal undertaking,” the tower firm said. The FCC wasn’t clear “why tribes should not be required to identify with more precision the actual areas of historical concern to them, based on verifiable historical facts,” PTA-FLA said. “To leave the areas of concern grossly overbroad as they are now will simply add weeks or months of unnecessary delay to the review process and waste the time of everyone involved in the review process … except the tribes who have claimed these wide areas. They are the only ones who can simply ignore notices.”
Small cells are larger than people think, will be numerous, and may emit radiation with dangerous environmental impacts, said Montgomery County residents in petitions. The FCC failed to examine if its action will promote safety of life and property under Section 332(a)(1) of the Communications Act, they said.