FCC Springs Forward to Wireless

Following through on FCC Chairman Ajit Pai’s stated goal of “winning the wireless future,”[1] the FCC at its March meeting adopted several items intended to promote the deployment and use of mobile broadband services. First, the FCC eliminated the requirement for environmental and historic reviews of the deployment of new “small cell” wireless facilities and streamlined the review of other wireless infrastructure. Second, the Commission jump-started an existing proceeding regarding a 50-megahertz block of mid-band spectrum currently dedicated to public safety use, and sought comment on whether it should be available in whole or in part for commercial use. Third, the Commission took steps to facilitate the use of signal boosters to expand and improve wireless coverage in business and other institutional settings.

Streamlining Wireless Infrastructure Deployment

Small Wireless Facilities. The Second Report and Order in the Commission’s Wireless Infrastructure Proceeding seeks to promote the next generation of wireless services—known as “5G”—by excluding the deployment of “small wireless facilities” from review under National Historic Preservation Act (NHPA) and the National Environmental Policy Act (NEPA).[2] Unlike conventional cellular services, which typically utilize antennas located on much larger towers, 5G networks will rely on hundreds of small antennas mounted on structures such as telephone poles and streetlights, with much smaller footprints than traditional cell towers. The Commission found that the NEPA and NHPA review processes applicable to large antennas was unnecessary for the deployment of 5G antennas and that continued imposition of these reviews on small wireless facilities would inhibit 5G deployment by saddling it with needless costs and delays.[3]

The definition of “small wireless facilities” is intended to capture 5G equipment through limits on the height and volume of small antennas and “associated equipment.” Thus, the rule excludes from NEPA and NHPA review facilities that are deployed on new or existing structures that are either no taller than the greater of 50 feet (including their antennas) or no more than 10 percent taller than other structures in the area. The rule also excludes any small wireless facility that is affixed to an existing structure, where as a result of the deployment that structure is not extended to a height of more than 50 feet or by more than 10 percent, whichever is greater. Antennas may be no greater in volume than 3 cubic feet[4], and “the wireless equipment associated with the antenna” may be “no larger than 28 cubic feet.”[5] The Commission declined requests to stipulate expressly that wired backhaul or similar equipment not be included within the scope of the small wireless facility definition.[6]

Consultations Regarding Larger Wireless Facilities. The deployment of larger wireless facilities will remain subject to NEPA and NHPA review, but the Commission imposed limitations on review of these deployments by Tribal Nations and Native Hawaiian Organizations (NHOs). Under Section 106 of NHPA, these entities must be consulted regarding the construction of wireless facilities located on lands outside reservation boundaries that have traditional religious or cultural significance.[7] According to the Commission, “[t]ribal demands for fees” in connection with this review but “that are not legally required” have “increased over . . . time.”[8]

To reduce the costs and delays associated with the consultation process, the Commission required entities seeking to deploy large wireless facilities to provide all potentially affected Tribal Nations and NHOs with a submission packet containing detailed information to enable them “to determine more quickly whether a project may affect historic properties of religious and cultural significance,”[9] and modified the shot clock for Tribal Nations and NHOs to respond to applications. Going forward, a 30-day clock will begin to run from the date that the Tribal Nation/NHO received “or may reasonably be expected to have received” (i.e., five days if sent by mail) an application satisfying the requirements discussed above.[10] If the Tribal Nation/NHO does not respond, the applicant will be able to refer the matter to the FCC.[11] The FCC, in turn, can require the Tribal Nation/NHO to respond in 15 days, or else the applicant’s pre-construction obligations “are discharged” vis-à-vis that Tribal Nation or NHO.[12]

The Commission also “clarif[ied]” that Tribal Nations/NHOs may not require applicants to pay fees for the Tribal Nation/NHO to respond to a submission,[13] nor may Tribal Nations/NHOs impose fees by requiring an applicant to retain a particular person or entity to perform consultant services[14] —a practice that was purportedly abused by Tribal Nations.[15]

Streamlining NEPA Review of Large Facilities. The Commission separately streamlined NEPA review for large wireless facilities, most notably by modifying its rules to permit applicants to construct facilities in floodplains without filing an environmental assessment (EA), provided that the facilities, including all associated equipment, are constructed at least one foot above the base flood plain elevation.[16]

Not surprisingly, reaction from the wireless industry to the adoption of the Second Report and Order was overwhelmingly positive.[17] The Order drew strong dissents, however, from the two Democratic Commissioners, Mignon Clyburn and Jessica Rosenworcel. Commissioner Clyburn, for instance, emphasized that the item’s “potential adverse impact . . . on Tribal Nations, historic sites and the natural environment, [will be] severe,” and Commissioner Rosenworcel predicted that the Order will “not make us 5G ready” but will result in “a messy series of legal challenges.”[18] Indeed, several opposing environmental groups and Tribal Nations have indicated their interest in appealing the Second Report and Order.[19]

The 4.9 GHz Band

In 2002, the Commission allocated 50 megahertz of mid-band spectrum in the 4.9 GHz band to public safety uses. However, “[a]lthough nearly 90,000 public safety entities are eligible under [the FCC’s] rules to obtain licenses in the band, there [are] only. . . 3,174 licenses in use . . . in 2018.”[20] The Commission last examined this band in 2012.

Given this underutilization by public safety, the FCC voted to seek comment on whether the band rules should be modified to expand public safety usage and/or to accommodate commercial services. In particular, the Commission put forward a range of proposals that would “ensure that public safety continues to have priority in the band while opening up the band to additional uses that will facilitate increased usage, including more prominent mobile use, and encourage a more robust market for equipment and greater innovation, while protecting [incumbent] primary users from harmful interference.”[21] Some of the proposed changes are intended to support improved or new public safety operations,[22] but the Commission also requested comment on whether the band could accommodate more conventional commercial uses such as 5G, either by re-designating the entire block of spectrum for commercial use or by adopting a two-tiered sharing approach.[23] Commissioners Carr and O’Rielly appear to favor complete re-designation, while Commissioners Clyburn and Rosenworcel may be more inclined to consider allowing public safety to remain in the band.[24]

Consumer Signal Boosters

Of course, network infrastructure and spectrum are all for naught if users can’t get a good signal.[25] A signal booster is retail equipment that can be purchased to fill gaps in wireless coverage indoors, underground, inside vehicles and in rural areas.[26] In 2013, the Commission authorized the use of signal boosters for personal use. Last week, the Commission voted to permit their use by businesses, public safety entities, educational institutions and other enterprise users.[27]

The Commission also requested comment on further changes that it could make to enhance the usefulness of signal boosters—including expanding the spectrum bands on which all consumer signal boosters may operate, developing consumer advisory requirements suitable for any embedded signal boosters and facilitating enterprise use of provider-specific signal boosters (which would improve coverage for a specific wireless network) and/or wideband signal boosters (which would improve coverage for all networks, regardless of the wireless provider to which the business subscribes).[28]

The Commission acknowledged that some of these reforms may raise interference concerns but appeared optimistic about the future prospects for expanding signal booster use, building on the success of prior “collaboration with various industry stakeholders and . . . consensus”[29] that has yielded positive results for both “providers and manufacturers.”[30]

This article originally ran on lexology.com.