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Tribal Groups Call for FCC to Reject Infrastructure Rules Changes

Two groups representing tribal governments urged FCC commissioners to reject proposed changes to wireless infrastructure regulations.

The National Congress of American Indians and United South and Eastern Tribes Sovereignty Protection Fund, in a joint filing with the agency, wrote that the proposal presents an "overall approach that would be detrimental to tribal governments, tribal culture and tribal historic resources as well as contrary to the commission’s trust responsibility."

The FCC is scheduled to vote Thursday on a measure that would, in part, stipulate that the small cellular equipment installations needed for 5G networks would not need to be reviewed under the National Historic Preservation Act or National Environmental Policy Act.

Proponents, including major industry groups, argue that small cells should not be subjected to the same regulations as large cellular towers. They also contend the changes are needed to ease the costs of deploying next-generation technology and ensure the U.S. can compete with rival nations in the race to 5G.

The tribal groups, however, argued the measure disproportionately favors industry.

Officials added that the NEPA and NHPA do not reference the size of proposed projects but instead ask whether they could adversely affect the environment or compromise historically significant features in a project area.

Although small cells pale in comparison to the size of conventional cell towers, the NCAI and USET SPF noted they would be deployed in far greater numbers.

"If this item moves forward, cultural and historic resources will inevitably be damaged by wireless infrastructure," officials wrote in the filing.

The FCC rule would also alter the tribal review process for large towers, known as Section 106 reviews.

FCC Commissioner Brendan Carr, who authored the proposal, highlighted instances of those reviews costing operators tens of thousands of dollars, but the tribal groups' filing characterized them as "a handful of unverified, outlier examples" that do not justify sweeping changes to the review process.

They also suggested tribes, like the FCC and other agencies, are entitled to recoup the costs of their reviews.

"Only a Tribal Nation can provide a definitive statement on the meaning of a cultural property," the groups wrote. "No one with such a level of expertise in any other quarter of our society would be expected to provide that expertise for free."

Carr introduced his proposal by arguing that current FCC rules essentially subject "any licensed wireless facility anywhere in the country" to tribal review.

"There is no doubt that protecting and preserving the cultural and historic interests of tribal nations is important work and one that we take seriously at the commission," Carr said. "But the FCC’s current approach is creating the wrong incentives and needlessly diverting resources from serving underserved communities."

The NCAI and USET SPF filing also highlighted tribes' work with the FCC to resolve past review issues, and expressed support for efforts to expand broadband access to tribes that "desperately need" it.

"We renew our willingness to consult on practical options for expediting the 5G build out without compromising tribal historic preservation interests," the groups wrote.

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