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FCC Announces Wireless Broadband Federal Review and Approval Modernizations

Is it possible for government to spur infrastructure spending and growth without spending a dime? That is what the Federal Communications Commission plans to do, according to a proposal discussed recently by Commissioner Carr.

In a nutshell, the proposal would speed the process for deploying the next generation of broadband and mobile technology. The technology, informally known as 5G or “small cells,” paves the way for greater connectivity, connected cars, the Internet of Things, and so much more. But there are barriers to the deployment of tomorrow’s technology: today’s review and approval process.

These barriers both delay and add costs to infrastructure deployment. Companies must spend valuable time and resources complying with federal agency red-tape. If the FCC’s proposal is adopted, companies will be able to build tomorrow’s telecommunications network faster and reallocate regulatory costs to deployment costs. In fact, the FCC estimates that modernizing the review and approval process will cut regulatory costs of small cell deployment by 80 percent.

Small cells are much different from large cells, or the antennas we are accustomed to seeing on large towers. Small cells are often not much larger than a pizza box—three cubic feet according to the FCC’s proposal. Small cells do not require as much electricity as a traditional antenna and need to be placed every few hundred yards or so. Additionally, small cell manufacturers are trying to create devices that can easily blend into the existing environment, such as integrating them into light poles.

Traditional towers upon which antennas are placed are often subject to extensive historical and environmental review. The proposal announced by Commissioner Carr would focus on how the federal government can streamline its review and approval process. The proposal would, for the most part, exempt small cells from the extensive federal historical and environmental review process.

Tower environmental review occurs pursuant to the National Environmental Policy Act (NEPA). NEPA requires agencies “to consider and disclose the environmental effects of its actions.” Within NEPA, there are three levels of review. The lowest level, called “categorical exclusions” do not require detailed analysis as an agency deems the subject actions “individually and cumulatively… to have minimal or no impacts on the environment.” An initial read of the proposal would exempt most small cells from environmental review and would place federal agencies on a shot-clock for larger, macro cells.

The historical review occurs pursuant to the National Historic Preservation Act (NHPA). The historical review process usually occurs because the FCC interprets its authority to license spectrum as triggering the process. The FCC does not generally conduct the historical review, but delegates the responsibility to various federal and state entities.

As part of the NHPA review process, federal agencies must consult with “any federally-recognized Tribal Nation.” This tribal review process has added both significant costs and time to wireless broadband infrastructure deployment. According to at least one article, “tribes can effectively self-declare where they have an interest” and have been expanding their areas of interest substantially over the past few years.

Since 2010, costs associated with tribal review have skyrocketed.  According to AT&T, tribal fees have tripled in the Northeast and quintupled in the Southeast between 2010 and 2017. AT&T further estimates it has spent “over $13 million on Tribal fees” over the past three years, with fees reach as nearly $8 million in one year alone.

The FCC proposal reforms wireless broadband deployment in a couple different ways. First, as to small cells, it exempts them from environmental and historical review. Because small cells will be exempt from historical review, they will also be exempt from tribal nation review so long as the cell itself will not be located on tribal properties. Second, as to large cells, the FCC would adopt shot clocks for environmental and historical review, as well as clarifying the tribal fee and consultation process.

Streamlining review processes, as well as recognizing that yesterday’s processes are not well-suited for today’s technologies will result in faster wireless broadband infrastructure deployment. Modernizing the review process will also ensure more people have access to cutting edge communications technologies. The FCC’s proposal should serve as an example for state and local governments, as well as the federal government, that regulatory modernization can spur low- to no-taxpayer investment in infrastructure.

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