Commissioners Expected to Approve NEPA NPRM, Though Controversy Is Likely
The FCC’s draft NPRM on changing how the agency enforces the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA) has led to only one ex parte meeting at the FCC (see 2507170048); however, that doesn’t mean the changes aren’t controversial, industry and agency officials said. They predicted approval when commissioners vote Thursday, but potentially with at least a partial dissent from Commissioner Anna Gomez.
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When the FCC took comment earlier this year on a CTIA petition seeking changes to the rules, attorneys general from nine states, the National Congress of American Indians, tribal historic preservation officers, various tribes, and officials from state historic preservation offices were among those expressing concerns (see 2505010019 and 2505160035). The only meetings reported specifically about the draft NPRM were between CTIA representatives and aides to the three commissioners last week (see 2507310054).
Joe Kane, the Information Technology and Innovation Foundation's director of broadband and spectrum policy, said much of the debate had already “played out in response to the CTIA petition, so folks may be taking that docket as the starting point and just wait to file and make ex parte presentations during the comment period.” He said the unusually short period between Thursday's open meeting and the last one, on July 24, may also have worked against outreach. Since the NEPA item doesn’t provide final rules, “the pre-meeting chatter may have been less urgent.”
Summit Ridge Group President Armand Musey said the items teed up for the August meeting are relatively small, compared with what’s likely to come. Chairman Brendan Carr’s team is “still relatively new,” as is the 2-1 Republican majority gained after the confirmation of Commissioner Olivia Trusty, Musey added. Carr “may be looking for some easy wins early and then digging into the hard stuff a bit later.”
The Osage Nation reported in a filing Friday (RM-12003) on a recent consultation between the tribes and FCC officials to discuss opposition to regulatory rollbacks there and at other federal agencies. “Any time there is a change in the administration, agencies attempt to negotiate or reduce their legal responsibilities and obligations to protect cultural resources and be responsive to Tribal concerns,” the tribe said. Streamlining has "become synonymous with excluding Tribal voices.”
The Osage Nation “supports the critiques of the CTIA petition as have been put forward by the National Association of Tribal Historic Preservation Officers and other Tribal entities,” it said. “The courts have already determined that these types of projects are major federal actions and federal undertakings. The FCC retains control and responsibility over geographic area deployments through licensing, enforcement powers, and occasionally, financial support.”
The Cherokee Nation also raised concerns about the CTIA petition. “The fact that a wireless provider holds a geographic area license does not negate the possibility -- nor the reality -- of harmful on-the-ground impacts,” the filing said. “Individual towers, even those under 200 feet, often require land clearing, vehicle access, excavation, and permanent installations.”
The Rincon Band of Luiseno Indians urged the FCC not to adopt a rulemaking in response to the CTIA petition until it has conducted “genuine, government-to-government consultation with tribal nations.” There's already a history of tribal interests being ignored, it noted. “In the past, projects within FCC’s jurisdiction have failed to adequately identify and assess historic properties of cultural and religious significance to Tribal Nations, often causing unaddressed (and often unnecessary) adverse impacts to tribal resources -- including on tribal lands,” the Rincon said. “These historic properties … can only be accurately identified by the Tribes that hold traditional and cultural affiliation to them.”