FCC 18-30, REBUTTAL TO PETITIONERS
Link to Feb 1, 2019 FCC Rebuttal to Petitioners
FCC Rebuttal Contents
(PDF Page Numbers)
- p. 12 — Introduction
- p. 17 — Statement Of The Issues Presented For Review
- p. 17 — A. Statutory And Regulatory Framework
- p. 26 — B. Small Wireless Facility Deployment And The Order Under Review
- p. 38 — Summary Of Argument
- p. 44 — Argument: I.A. The Commission Repealed Its “Limited Approval Authority” Over Small Wireless Facilities, And Therefore, Does Not Exercise Federal Control Over Them.
- p. 47 — Argument: I.B. There Is No Merit To Petitioners’ Novel Theory That The Commission’s Authority To License Spectrum Turns Private Deployment Of Facilities Into A Federal Undertaking Or Major Federal Action.
- p. 57 — II. The Commission Reasonably Concluded That Unnecessarily Subjecting Small Wireless Deployments To Historic And Environmental Review Is Not In The Public Interest.
- p. 89 — STATUTORY ADDENDUM
FCC 18-30, SECOND REPORT AND ORDER
Link to Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, released on March 30, 2018
FCC Order 18-30 Contents
- p. 2 — I. INTRODUCTION (¶¶ 1-8)
- p. 4 — II. BACKGROUND (¶¶ 9-35)
- p. 12 — III. EXCLUDING SMALL WIRELESS FACILITIES FROM NHPA AND NEPA REVIEW (¶¶ 36-95)
- p. 42 — IV. STREAMLINING NHPA AND NEPA REVIEW FOR LARGER WIRELESS FACILITIES (¶¶ 96-153)
- p. 65 — V. PROCEDURAL MATTERS (¶¶ 154-156)
- p. 66 — VI. ORDERING CLAUSES (¶¶ 157-160)
- p. 67 — APPENDIX A Comments and Reply Comments
- p. 73 — APPENDIX B Final Rules
- p. 74 — APPENDIX C Final Regulatory Flexibility Analysis (¶¶ 1-48)
- p. 92 — FCC Commissioner Statements
- (365 Footnotes)
FCC Order 18-30 Appendix B: Final Rules
(FCC Rules which were vacated by the DC Circuit Court of Appeals on Aug 9, 2019)
Part 1- Practice and Procedure
- The authority citation for Part 1 continues to read as follows:
AUTHORITY: 15 U.S.C. 79 et seq.; 47 U.S.C. 151, 154(i), 154(j), 155, 157, 160, 201, 225, 227, 303, 309, 332, 1403, 1404, 1451, 1452, and 1455.
Section 1307(a)(6) is revised to read as follows:
“(6) Facilities to be located in floodplains, if the facilities will not be placed at least one foot above the base flood elevation of the floodplain.”
Section 1.1312 is amended by revising subparagraph (e) to read as follows:
“(e): Paragraphs (a) through (d) of this section shall not apply:
(1) to the construction of mobile stations; or
(2) where the deployment of facilities meets the following conditions:
- (i) The facilities are mounted on structures 50 feet or less in height including their antennas as defined in § 1.1320(d), or the facilities are mounted on structures no more than 10 percent taller than other adjacent structures, or the facilities do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater;
- (ii) Each antenna associated with the deployment, excluding the associated equipment (as defined in the definition of antenna in § 1.1320(d)), is no more than three cubic feet in volume;
- (iii) All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume;
- (iv) The facilities do not require antenna structure registration under Part 17 of this chapter;
- (v) The facilities are not located on Tribal lands, as defined under 36 CFR § 800.16(x); and (vi) The facilities do not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in § 1.1307(b)”
Case No. 18-1129 — Keetowah et al. v FCC
- Before: TATEL and PILLARD, Circuit Judges, and EDWARDS, Senior Circuit Judge. Opinion for the Court filed by Circuit Judge PILLARD.
- All of the following excerpts are direct quotes from the Case No. 18-1129 Keehtowah et al. v the FCC
- Re: FCC Order 18-30: Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment (Second Report & Order) (Order), FCC 18-30, 2018 WL 1559856 (F.C.C.) (Mar. 30, 2018);
- Read the Order.
- Read the Ruling.
- Summary (2,500 words)
The Federal Communications Commission (FCC or Commission) has exclusive control over the spectrum, and wireless providers must obtain licenses from the FCC to transmit. Wireless service in the United States has mostly depended on large, “macrocell” radio towers to transmit cell signal . . .
In re Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment (Second Report & Order) (Order), FCC 18-30, 2018 WL 1559856 (F.C.C.) (Mar. 30, 2018). The Order exempted most small cell construction from two kinds of previously required review: historic-preservation review under the National Historic Preservation Act (NHPA) and environmental review under the National Environmental Policy Act (NEPA) . . .
We grant in part the petitions for review because the Order does not justify the Commission’s determination that it was not in the public interest to require review of small cell deployments.In particular, the Commission failed to justify its confidence that small cell deployments pose little to no cognizable religious, cultural, or environmental risk, particularly given the vast number of proposed deployments . . .
I. Statutory and Regulatory Background
A. National Historic Preservation Act (NHPA)
Congress enacted the NHPA to “foster conditions under which our modern society and our historic property can exist in productive harmony” and “contribute to the preservation of nonfederally owned historic property and give maximum encouragement to organizations and individuals undertaking preservation by private means.” 54 U.S.C. § 300101(1), (4). As part of that mission, NHPA’s Section 106 requires federal agencies to “take into account the effect of” their “undertaking[s] on any historic property.” Id. § 306108 . . .
B. National Environmental Policy Act (NEPA)
Congress enacted NEPA to “encourage productive and enjoyable harmony between man and his environment” and “promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man,” among other purposes. 42 U.S.C. § 4321. Like the NHPA, NEPA mandates a review process that “does not dictate particular decisional outcomes, but ‘merely prohibits uninformed—rather than unwise—agency action.’” Sierra Club v. U.S. Army Corps of Eng’rs, 803 F.3d 31, 37 (D.C. Cir. 2015) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989)). All “major Federal actions significantly affecting the quality of the human environment” trigger environmental review under NEPA, just as federal “undertakings” trigger historic preservation review under the NHPA. 42 U.S.C. § 4332(C). Major federal actions “include actions . . . which are potentially subject to Federal control and responsibility.” 40 C.F.R. § 1508.18. Under the Commission’s procedures implementing NEPA, if an action may significantly affect the environment, applicants must conduct a preliminary Environmental Assessment to help the Commission determine whether “the proposal will have a significant environmental impact upon the quality of the human environment,” and so perhaps necessitate a more detailed Environmental Impact Statement. 47 C.F.R. § 1.1308; see also 40 C.F.R. § 1508.9. If, after reviewing the Environmental Assessment, the Commission determines that the action will not have a significant environmental impact, it will make a “finding of no significant impact” and process the application “without further documentation of environmental effect.” 47 C.F.R. § 1.1308(d). . .
Categorical exclusions are appropriate for “a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency.” Id. “Categorical exclusions are not exemptions or waivers of NEPA review; they are simply one type of NEPA review.” Council on Environmental Quality, Memorandum for Heads of Federal Dep’ts and Agencies: Establishing, Applying & Revising Categorical Exclusions under [NEPA] (Categorical Exclusion Memo) 2 (2010) . . .
C. Legal Framework for Wireless Infrastructure
The Communications Act of 1934 established the FCC to make available a “rapid, efficient . . . wire and radio communication service with adequate facilities at reasonable charges.” 47 U.S.C. § 151. In licensing use of the spectrum, the Commission is tasked with promoting “the development and rapid deployment of new technologies, products and services for the benefit of the public . . . without administrative or judicial delays,” id. § 309, and “maintain[ing] the control of the United States over all the channels of radio transmission,” id. § 301 . . .
The FCC requires licensing of the spectrum used by wireless small cells. It does so by issuing geographic area licenses, which allow wireless providers to operate on certain frequency bands in a wide geographic area. See 47 U.S.C. § 309(j).
Those licenses . . . have coverage requirements — for instance, one type of geographic area license required licensees to provide service to at least 40% of the population in their geographic service area by June 2013. See 47 C.F.R. § 27.14(h). If they fail to meet the coverage requirements, they can be stripped of authority to operate for the license’s full term or serve part of its geographic area, and they “may be subject to enforcement action, including forfeitures.” Id. The Commission also exercises continuing authority to inspect radio installations to ascertain their compliance with any and all applicable laws, whether or not the licensee itself constructed those installations. See 47 U.S.C. § 303(n); 47 C.F.R. § 1.9020(c)(5).
The FCC has not identified any period since the enactment of the NHPA (in 1966) and NEPA (in 1970) when it did not require historic-preservation and environmental review of wireless facilities . . .
Since 2004, the FCC has been conducting NHPA review in accordance with a broad programmatic agreement, the Section 106 Agreement, 20 FCC Rcd. 1073. Interested parties developed that agreement to “tailor the Section 106 review in the communications context in order to improve compliance and streamline the review process for construction of towers and other Commission undertakings, while at the same time advancing and preserving the goal of the NHPA to protect historic properties” . . . In the Section 106 Agreement, the Commission adopted “procedures for participation of federally recognized Indian tribes,” among other changes. Id. at 1075 ¶ 2. . . .
We consolidated five timely petitions for review of the Order into this action . . .
Three groups of petitioners and intervenors, each designated here by the name of its lead petitioner, challenge the Order.
- United Keetoowah Band of Cherokee Indians (Keetoowah) represents a group of Tribes and historic preservation organizations. Blackfeet Tribe (Blackfeet) represents another group of Tribes and the Native American Rights Fund.
- The Natural Resources Defense Council (NRDC) represents itself and
- Maryland citizen Edward B. Myers.
Two wireless industry groups (jointly, CTIA) intervened to defend the order alongside the FCC . . .
We owe no deference to the FCC’s interpretations of the NHPA or NEPA, which are primarily administered by the Advisory Council, see McMillan Park Comm. v. Nat’l Capital Planning Comm’n, 968 F.2d 1283, 1287-88 (D.C. Cir. 1992), and the Council on Environmental Quality, see Grand Canyon Tr. v. FAA, 290 F.3d 339, 341 (D.C. Cir. 2002) (as amended Aug. 27, 2002), respectively.
The Commission defines the small cells [as] “small” . . . per the following conditions [47 C.F.R. § 1.1312(e)(2)]:
- (i) The facilities are mounted on structures 50 feet or less in height including their antennas . . . or the facilities are mounted on structures no more than 10 percent taller than other adjacent structures, or the facilities do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater;
- (ii) Each antenna associated with the deployment, excluding the associated equipment . . . is no more than three cubic feet in volume;
- (iii) All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume . . .
The FCC reasons that removing small cell construction from its limited approval authority removes the “sufficient degree of federal involvement” necessary to render an undertaking or action “federal.” Id. ¶ 58 It now says its power to exercise limited approval authority over construction derives exclusively from its “public interest authority” under the Communications Act, see Order ¶¶ 39, 53, 61, rather than from “its obligations under Federal environmental laws,” 1990 Order at 2943 ¶ 9 . . .
Petitioners all argue that the FCC unlawfully excluded small cells from NHPA and NEPA review. They contend first that removing small cells from the FCC’s limited approval authority was arbitrary and capricious. See 5 U.S.C. § 706(2)(A) . . . They assert that the geographic licenses the Commission grants, which allow wireless companies to operate on spectrum, constitute sufficient federal control over wireless facility construction to make the construction a federal undertaking and a major federal action triggering review under those statutes . . .
The FCC failed to justify its determination that it is not in the public interest to require review of small cell deployments. We therefore grant the petitions in part because the Order’s deregulation of small cells is arbitrary and capricious
The DC Circuit Judges Concluded:
If [Petitoners/Intervenors] prevail on any one or more of those grounds, we must vacate the Order’s deregulation of small cells and remand to the FCC.
- The FCC failed to justify its determination that it is not in the public interest to require review of small cell deployments.
- We therefore grant the petitions in part because the Order’s deregulation of small cells is arbitrary and capricious.
- The FCC did not adequately address the harms of deregulation
- The FCC did not justify its portrayal of those harms as negligible
- The FCC’s characterization of the Order as consistent with its longstanding policy was not “logical and rational.” . . . because the FCC mischaracterized
- small cells’ footprint
- the scale of the anticipated deployment [800,000 Small Cell units nationwide]
- the many expedients already in place for low-impact wireless construction,
- the FCC’s decades-long history of carefully tailored review
- the FCC inadequately justified its portrayal of deregulation’s harms as negligible . . .
- In its brief, the Commission sums up its explanation of the difference: “small cells are primarily pizza-box sized, lowerpowered antennas that can be placed on existing structures.” Resp’t Br. 3; see also Order ¶¶ 66, 92.
- The FCC likened small cells to small household items that operate on radiofrequency such as “consumer signal boosters [and] Wi-Fi routers,” which do not undergo review. Order ¶ 66
- We conclude that “smal cells” are crucially different from the consumer signal boosters and Wi-Fi routers to which the FCC compares them
- We conclude that it impossible on this record to credit the claim that small cell deregulation will “leave little to no environmental footprint.” Order ¶ 41. The FCC anticipates that the needed “densification of small deployments over large geographic areas,” id., could require 800,000 deployments by 2026, FCC, Declaratory Ruling & Third Report & Order, FCC 18-133 ¶ 126 (Sept. 26, 2018)
- The FCC failed to assess the harms that can attend deployments that do not require new construction, particularly the cumulative harms from densification.
- The FCC noted that all facilities remain subject to its limits on radiofrequency exposure, Order ¶ 45, but failed to address that it was speeding densification “without completing its investigation of . . . health effects of low-intensity radiofrequency radiation,” which it is currently reassessing. Comment of BioInitiative Working Grp., J.A. 235
- What the Order 18-30 accomplishes is to sweep away the review the Commission had concluded should not be relinquished; the Commission already had in place NEPA categorical exclusions . . . covering most collocations — as well as other kinds of deployments unlikely to have cultural and environmental impacts. Since the 1970s, the Commission has said that most collocations on existing towers or buildings are not “major” federal actions and therefore are not subject to NEPA review. (Implementation of NEPA, 49 F.C.C.2d at 1319-20; 47 C.F.R. §§ 1.1301-1.1319)
- The FCC excluded most collocations from individualized review, (see Collocation Agreement, 47 C.F.R. Pt.1, App. B); . . . and it expanded NHPA and NEPA exclusions for collocations, (see Improving Wireless Facilities Siting Policies, 29 FCC Rcd. at 12870 ¶ 11).
- We conclude that the FCC fails to justify its conclusion that small cells “as a class” and by their “nature” are “inherently unlikely” to trigger concerns. By ignoring the extent to which it had already streamlined review, the Commission overstated the burdens of review . . . The Commission fails to explain why the categorical exclusions in place did not already minimize unnecessary costs while preserving review for deployments with greater potential environmental impacts.
- The FCC dismissed the benefits of environmental review in a two-sentence paragraph, describing most of the comments that highlight those benefits as “generalized” Id. ¶ 78. Characterizing a concern as “generalized” without addressing that concern does not meet the standard of “reasoned decisionmaking.” Michigan v. EPA, 135 S. Ct. at 2706.
- The FCC’s conclusion that small cells are inherently unlikely to trigger concerns is arbitrary and capricious, and describing comments as “generalized” does not excuse the agency of its obligation to consider those comments as part of reasoned decisionmaking
- We rule that the Order’s deregulation of small cells is arbitrary and capricious because its public-interest analysis did not meet the standard of reasoned decisionmaking.
- We do not rule on the claim that small cell construction is a federal undertaking and a major federal action as the basis for requiring NEPA review.
- The NRDC cites its own comment to the FCC “that if the FCC sought to exclude an entire category of wireless facilities from NEPA, it was required to establish a categorical exclusion.”
- The NRDC’s argument was that the federal character of the geographic area license meant that the Commission could not entirely exempt wireless facility construction from NEPA review . . .
- The NRDC asserted that the proposed rule failed to comply with NEPA . . . because the issuance of licenses constitutes a major federal action.
- A third comment urged the FCC to consider the cumulative effects of radiofrequency exposure — see Comment of BioInitiative Working Grp., J.A. 235-38.
Conclusion: We grant the petitions to vacate the Order’s removal of small cells from its limited approval authority and remand to the FCC.