FCC's Follow-Up on Biden Flood Plains Order Raising Industry Concerns

The FCC is working on a proposal on siting wireless and broadcast towers, small cells and other facilities in flood plains. An NPRM, circulated last month by Chairwoman Jessica Rosenworcel, takes on how the FCC should help the U.S. meet targets in executive order 13690, handed down under President Barack Obama in 2015, rescinded during the Trump administration and reinstated in the early days of the Biden administration.

The presidential order imposes particular requirements on projects that receive federal funding, requiring them to be located outside low-lying areas vulnerable to flooding when practicable, or, when not practicable, that they be built to be more resilient against predicted flood conditions, including the impact from sea level rise, according to the Natural Resources Defense Council.

President Donald Trump revoked the order in August 2017. President Joe Biden reinstated it two days into his administration. The executive order directs the FCC to open the proceeding, which was cleared through the White House Council of Environmental Quality.

The NPRM takes on how flood plains are defined and proposes a minimum siting height of three feet above the flood level, industry and FCC officials said. This would require an environmental review for structures if they aren't at least three feet above flood level. The executive order outlined three methods for meeting the requirement and the FCC opted to key its proposed rules on siting height, based on maps that already exist, federal officials said. The rules would apply only to new builds or expansions of current sites.

The EO mostly is aimed at buildings but includes roads and other infrastructure and was handed down in reaction to Hurricane Katrina and similar disasters, said an industry expert who works on environmental issues. The FCC appears to understand this distinction, the expert said.

Congress is making a major push to spur broadband deployment “and sometimes providers need to deploy infrastructure in flood plains, though this isn’t a desirable scenario for almost any party,” said Jeffrey Westling, American Action Forum technology and innovation policy director. “Adding additional costs to more deployments in the way of environmental assessments runs counter to the goals of increasing broadband access across the country.” But the FCC also needs to ensure networks work, “especially during times of flooding when people need access to communications the most,” he said: “I suspect the NPRM will generate a wide range of comments balancing these interests and evaluating how much of a barrier to deployment such a change would actually be.”

About 13% of the U.S. population lives on historic flood plains, said Recon Analytics’ Roger Entner. With more than 400,000 towers, cellsites and other facilities nationally, this translates into 52,000 sites, he said: “This very easily translates into hundreds of millions if not billions of dollars of cost.” If existing structures are grandfathered in “as they were legally built, then there is nothing wrong with going for 3 feet above flood level,” he said. “We all can see that weather is getting more extreme and 100 year floods are happening every 10 years now.”

"While everyone wants to make sure that the environment is protected and that wireless infrastructure is built to be as disaster-proof as possible, the commission needs to make sure that any proposed rules do not delay the rollout of badly needed 5G infrastructure,” said Cooley’s Robert McDowell: “Creating unnecessary barriers to deployment could have detrimental effects that undermine our global competitiveness."

A blanket 3-foot benchmark could cause problems, said Joe Kane, Information Technology and Innovation Foundation director-broadband and spectrum policy. “Communications infrastructure is unlike roads and bridges in that it is largely privately owned,” he said. “Telecom companies are risking their own assets when they deploy in flood-prone areas. Because floods are amenable to rational risk assessment, I would be more optimistic about the mitigation efforts by companies whose profits depend on getting them right than on a blanket elevation threshold from the FCC.” Kane noted the FCC addressed the broader issue in its recent resilient networks proceeding (see 220119005). “AT&T, for example, wrote about the climate change analysis tools it uses to predict flood risk,” he said.

Less Government President Seton Motley said the wrong rules could harm U.S. competitiveness versus China. "Our government creating more and more impediments to our victory over China ain’t great policy," he said.

“It is the policy of the United States to improve the resilience of communities and Federal assets against the impacts of flooding,” the EO says: “These impacts are anticipated to increase over time due to the effects of climate change and other threats. Losses caused by flooding affect the environment, our economic prosperity, and public health and safety, each of which affects our national security. … The Federal Government must take action, informed by the best-available and actionable science, to improve the Nation's preparedness and resilience against flooding.”

“The Commission appears prepared to handle flood plain siting requirements for wireless infrastructures assets appropriately, with the understanding that, as a whole, proscriptive regulations like increasing the minimum siting height will contribute to delays during a time of increased urgency to expand broadband access,” a Wireless Infrastructure Association spokesperson emailed. “Extending environmental and other regulations designed for structures like libraries and hospitals, not wireless infrastructure, will eventually become onerous and create a backlog in the expansion of infrastructure needed to provide the connectivity Americans depend on for business and daily life,” he said.