Regulatory expert David Jermakian explains what the recent Court ruling on the FCC Order means for your projects. (Spoiler: it’s not all bad!)
“I wasn’t surprised there was a lawsuit. We’ve been waiting to see how the Court would rule,” says David Jermakian, President of Dynamic Environmental Associates (DEA).
Jermakian also co-chaired the Environmental Consultants Working Group. The group—along with others in the industry—worked tirelessly to craft revisions to the regulations affecting macro and small cell deployments.
In 2018, their work paid off. Wireless developers breathed a sigh of relief. The FCC’s “Wireless Infrastructure Streamlining Report and Order” simplified the environmental review process for wireless deployments.
The 2nd Report & Order, as it is known, did the following:
- Declared small cell deployments were not “federal undertakings” under the National Historic Preservation Act (NHPA).
- Declared small cell deployments were not “major federal actions” under the National Environmental Protection Act (NEPA).
- Removed the requirement (in most cases) for Floodplain Environmental Assessments.
- Modified and clarified the process for consultation with, and participation by, Native American Tribes.
“The Order was hailed by many. Others said it didn’t go far enough,” Jermakian said. “And, as one can imagine, some saw the changes as trampling the environmental protections of the older regulation.”
The Court overturns some of the Order, keeps some relief
Several Tribal groups and the National Resources Defense Council (NRDC) challenged the new Order. In part, they argued:
- Removing small cells from the FCC’s limited approval authority was arbitrary and capricious;
- The FCC didn’t adequately consider the harms of massive deployment. Nor did it justify its decision to completely exempt small cells from review; and,
- NHPA and NEPA mandate reviews of small cell construction.
On August 9, 2019, the Court agreed with these points. As a result, the Court vacated the “Order’s removal of small cells from its limited approval authority.”
So, from that date, small cell deployments are again “federal undertakings” and “major federal actions.” As such, they’re subject to environmental review as required by FCC regulations.
Developers still get some relief. The Court let stand the Order’s modifications to Tribal Consultation. These include limiting reports provided to tribes, dropping “up-front” fees as a pre-condition for review, and reducing the consultation timeline. The Court was silent on the Floodplain Environmental Assessments.
How the ruling affects your small cell deployments
While any setback can be viewed negatively, Jermakian sees this decision as net-positive. The Tribal consultation procedures are unchanged. “This provision alone has reduced the timeline for environmental review. And it’s reduced the cost of the review. In some cases, by tens of thousands of dollars,” he says.
Even though small cells are again subject to environmental review, the NPAs and 1st Rule & Order may still offer relief. Deployments in certain ROWs, industrial parks, buildings and non-tower structures fall under exclusions. But, Jermakian notes, many of these exclusions address only Section 106 Review (SHPO approval).
As “major federal actions,” NEPA regulations again apply to small cells. This can affect deployments that include installation of new poles or support structures, especially those outside a utility right-of-way.
“To help keep your project on track, it’s best to have an early review of projects with internal regulatory compliance managers or external experts,” Jermakian said. “They’ll help you assess which reviews your deployment will need.”
DEA is here to help you navigate the changes
“Your projects still need to move forward and we can help. We’ve cultivated relationships with many regulators. They know our staff—they know we know what we’re doing,” explained Jermakian. “Those relationships can really make a difference for a smooth project review.”
If you have questions about your projects, either because of this ruling or for any other reason, DEA can answer them. And if you want to train your staff on the environmental review process and how to incorporate it into deployment projects, DEA can help you with that, too. Find out how at DEA or call 877-968-4787.
Published September 23, 2019