[Federal Register Volume 90, Number 158 (Tuesday, August 19, 2025)]
[Proposed Rules]
[Pages 40295-40317]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-15818]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 1
[WT Docket No. 25-217; FCC 25-47; FR ID 309129]
Modernizing the Commission's National Environmental Policy Act
Rules
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: In this document, the Federal Communications Commission (the
FCC or Commission) seeks comment on how the Commission should revise
its rules to streamline the environmental review process and promote
efficiency and certainty for Commission applicants to encourage
deployment of infrastructure, which in turn will result in more
competition and technological innovation in the marketplace.
DATES: Comments are due September 18, 2025; reply Comments are due
October 3, 2025.
ADDRESSES: You may submit comments, identified by WT Docket No. 25-217,
by any of the following methods:
Electronic Filers: Comments may be filed electronically
using the internet by accessing the ECFS: https://www.fcc.gov/ecfs.
Paper Filers: Parties who choose to file by paper must
file an original and one copy of each filing.
Filings can be sent by hand or messenger delivery, by
commercial courier, or by the U.S. Postal Service. All filings must be
addressed to the Secretary, Federal Communications Commission.
Hand-delivered or messenger delivered paper filings for
the Commission's Secretary are accepted between 8 a.m. and 4 p.m. by
the FCC's mailing contractor at 9050 Junction Drive, Annapolis
Junction, MD 20701. All hand deliveries must be held together with
rubber bands or fasteners. Any envelopes and boxes must be disposed of
before entering the building.
Commercial courier deliveries (any deliveries not by the
U.S. Postal Service) must be sent to 9050 Junction Drive, Annapolis
Junction, MD 20701. Filings sent by U.S. Postal Service First-Class
Mail, Priority Mail, and Priority Mail Express must be sent to 45 L
Street NE, Washington, DC 20554.
People with Disabilities. To request materials in
accessible formats for people with disabilities (braille, large print,
electronic files, audio format), send an email to [email protected] or
call the Consumer & Governmental Affairs Bureau at 202-418-0530.
FOR FURTHER INFORMATION CONTACT: Jennifer Flynn, Competition and
Infrastructure Policy Division, Wireless Telecommunications Bureau,
(202) 418-0612, [email protected].
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking (NPRM), in WT Docket No. 25-217; FCC 25-47,
adopted on August 7, 2025, and released on August 14, 2025. The full
text of this document is available at https://docs.fcc.gov/public/attachments/FCC-25-47A1.pdf. Pursuant to Sec. Sec. 1.415 and 1.419 of
the Commission's rules, 47 CFR 1.415, 1.419, interested parties may
file comments and reply comments on or before the dates indicated on
the first page of this document. Comments may be filed using the
Commission's Electronic Comment Filing System (ECFS). See Electronic
Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998),
https://www.govinfo.gov/content/pkg/FR-1998-05-01/pdf/98-10310.pdf.
The Commission will treat this proceeding as a ``permit-but-
disclose'' proceeding in accordance with the Commission's ex parte
rules. Persons making ex parte presentations must file a copy of any
written presentation or a memorandum summarizing any oral presentation
within two business days after the presentation (unless a different
deadline applicable to the Sunshine period applies). Persons making
oral ex parte presentations are reminded that memoranda summarizing the
presentation must (1) list all persons attending or otherwise
participating in the meeting at which the ex parte presentation was
made, and (2) summarize all data presented and arguments made during
the presentation. If the presentation consisted in whole or in part of
the presentation of data or arguments already reflected in the
presenter's written comments, memoranda, or other filings in the
proceeding, the presenter may provide citations to such data or
arguments in his or her prior comments, memoranda, or other filings
(specifying the relevant page and/or paragraph numbers where such data
or arguments can be found) in lieu of summarizing them in the
memorandum. Documents shown or given to Commission staff during ex
parte meetings are deemed to be written ex parte presentations and must
be filed consistent with rule Sec. 1.1206(b). In proceedings governed
by rule Sec. 1.49(f) or for which the Commission has made available a
method of electronic filing, written ex parte presentations and
memoranda summarizing oral ex parte presentations, and all attachments
thereto, must be filed through the electronic comment filing system
available for that proceeding, and must be filed in their native format
(e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this
proceeding should familiarize themselves with the Commission's ex parte
rules.
Synopsis
I. Introduction
In this Notice of Proposed Rulemaking (NPRM), we take a fresh look
at our environmental rules to account for recent amendments to the
National Environmental Policy Act (NEPA) under the 2023 Fiscal
[[Page 40296]]
Responsibility Act (FRA). In addition, in January, President Trump
issued Executive Order (E.O.) 14154 titled ``Unleashing American
Energy,'' which called upon ``all agencies [to] prioritize efficiency
and certainty over any other objectives'' in revising agency
regulations implementing NEPA. In light of the changes to the legal
landscape and consistent with the objectives of that Executive Order,
we seek comment on how we should revise our rules to streamline the
environmental review process, promote efficiency, and encourage
deployment of infrastructure that results in more competition and
technological innovation.
We also take this opportunity to seek comment on whether there are
parts of our environmental rules that are now unnecessary or outdated
and should be deleted. Given the Commission's environmental rules are
entwined with our historic preservation rules, we also seek comment on
any impact to our National Historic Preservation Act framework and
examine what rule changes, if any, might be appropriate. This
rulemaking is a continuation of the Commission's efforts to undertake a
wholesale review of all of the agency's regulations.
II. Background
A. NEPA and Related CEQ Regulations
NEPA was signed into law on January 1, 1970. NEPA requires federal
agencies to determine whether any proposed Major Federal Actions (MFAs)
will significantly affect the quality of the human environment and, if
so, to assess those environmental impacts. The statute created the
Council on Environmental Quality (CEQ), which assists with NEPA
implementation across the federal government. Federal agencies issue
their own NEPA implementing procedures in consultation with CEQ. This
notice describes the FCC's NEPA procedures. Per the statute, after
determining whether their proposed actions are MFAs and subject to
NEPA, including the threshold considerations in section 106 of NEPA, an
agency will determine the appropriate level of review. In general,
agencies consult available categorical exclusions (CEs), which are
actions the agency has determined normally do not have significant
effects on the human environment, as an initial step in determining the
appropriate level of review. MFAs not subject to a CE typically require
preparation of an environmental assessment (EA) or an environmental
impact statement (EIS), depending on the likelihood of significant
effects. Historically, CEQ has issued guidance and formal NEPA rules
that other agencies--including the Commission--would adopt or borrow.
Until recently, CEQ's NEPA rules were considered binding on federal
agencies. CEQ recently rescinded its regulations but continues to
provide guidance to agencies on how to implement NEPA and consults with
agencies on the development of their NEPA implementing procedures
pursuant to NEPA section 102(2)(B) and the President's direction in
E.O. 14154.
Recent developments from Congress and the Executive Branch have
significantly altered NEPA's framework. These developments, principally
intended to bolster U.S. leadership by accelerating the cadence and
clip of domestic infrastructure projects, require federal agencies like
the Commission to reexamine their NEPA rules and procedures.
First, NEPA was amended substantially in June 2023 with the FRA's
passage. Of particular importance, NEPA was amended to define an MFA as
an action ``subject to substantial Federal control and responsibility''
as determined by the agency. The legislation also codifies exclusions
from the definition of MFA. The amended NEPA also codifies various
aspects of the environmental review process, including CEs, EAs, and
EISs.
In January 2025, President Trump issued E.O. 14154 titled
``Unleashing American Energy'' on his first day in office. Among other
things, E.O. 14154 rescinded Executive Order 11991 requiring CEQ to
issue regulations to federal agencies for the implementation of the
procedural provisions of NEPA. In addition, section 5(b) of E.O. 14154
directs CEQ to provide guidance on implementing NEPA to expedite and
simplify the permitting process and further to propose rescinding CEQ's
NEPA regulations found at 40 CFR 1500, et seq. Section 5(c) of the E.O.
calls for the guidance and any resulting agency NEPA implementing
regulations to ``expedite permitting approvals and meet deadlines
established in the [FRA].'' Further, section 5(c) calls upon ``all
agencies [to] prioritize efficiency and certainty over any other
objectives, including those of activist groups, that do not align with
the policy goals set forth in section 2 of this order or that could
otherwise add delays and ambiguity to the permitting process.''
Following E.O. 14154, CEQ issued a guidance memorandum on February
19, 2025, advising the heads of federal departments and agencies to
complete the revision of their NEPA procedures by February 19, 2026
(i.e., within 12 months of the issuance date of the CEQ Guidance Memo).
The CEQ Guidance Memo encourages federal agencies to use the final
rules that CEQ adopted in 2020 as an initial framework for the
development of revisions to federal agency NEPA rules and directs
agencies to provide a minimum of 30 days but no longer than 60 days for
public comment on proposed NEPA regulations, to the extent that public
comment is required.
In response to E.O. 14154, CEQ on February 25, 2025, issued an
interim final rule removing the 2024 CEQ regulations from the Code of
Federal Regulations (CFR), with an associated request for comment.
CEQ's Interim Final Rule states that after the CEQ rules are removed
from the CFR agencies will remain free to use or amend their own NEPA
procedures, and expressed its view that agencies, in defending actions
they have taken, should continue to rely on the version of CEQ's
regulations that was in effect at the time that the agency action under
challenge was completed.
Most recently, the Supreme Court confirmed that ``NEPA is a
procedural cross-check, not a substantive roadblock. The goal of the
law is to inform agency decisionmaking, not to paralyze it.'' The Court
recognized that agencies implementing NEPA make ``fact-dependent,
context-specific, and policy-laden choices about the depth and breadth
of its inquiry'' within ``a broad zone of reasonableness.'' The Court
further observed that an agency's NEPA obligations were confined to the
project before it; when the environmental effects of an agency action
arise from a project separate from the one under NEPA review by virtue
of temporal or geographic distance, ``NEPA does not require the agency
to evaluate the effects of that separate project.'' And the Court
clarified that ``[t]he analysis in [its] opinion [] applies to NEPA as
amended by'' the FRA.
B. The Commission's Current Environmental Rules
The Commission's current environmental rules establish the process
by which entities constructing facilities to support Commission-
licensed or -authorized services take measures to consider
environmental and historic resources. These rules were designed to
bring the Commission into compliance with NEPA, among other statutory
obligations.
The Commission meets its NEPA obligations through its regulations
which impose enforceable duties on its licensees, applicants, and
registrants, such as commercial licensees, utilities, public safety
entities, railroads, and
[[Page 40297]]
mining companies, and relies upon those entities to make the initial
evaluation of potential environmental effects. Tower owners that are
neither licensees nor applicants must also follow these rules if they
intend their towers to host antennas supporting Commission-licensed
service.
The Commission's NEPA rules currently contain an overarching CE
framework by which Commission actions generally ``are deemed
individually and cumulatively to have no significant effect on the
quality of the human environment and are categorically excluded from
environmental processing.'' The regulation contains limited exceptions,
consisting of extraordinary circumstances (some of which are enumerated
in a NEPA Checklist), under which additional environmental processing
is required. This broad CE applies to both new actions as well as minor
and major modifications to existing or authorized facilities and
equipment. If one of the enumerated exceptions to the overarching CE is
present, then applicants are generally required to prepare an EA. The
Commission's rules also require the preparation of an EA if an
interested person files a written petition alleging that a particular
action, otherwise categorically excluded, will have a significant
environmental effect and the responsible Bureau determines that the
action may have a significant environmental impact. In addition, the
Commission's rules require the preparation of an EA if the responsible
Bureau determines on its own motion that a particular action, otherwise
categorically excluded, may have a significant environmental impact.
When an applicant submits an EA, the Commission reviews the EA and
makes an independent finding as to whether the proposed action will or
will not have a significant environmental effect requiring additional
environmental processing in the form of an EIS. If the responsible
Bureau or the Commission determines that the proposal will have a
significant environmental impact upon the quality of the human
environment, it will so inform the applicant, and the applicant will
have an opportunity to amend its application so as to reduce, minimize,
or eliminate environmental problems. If the responsible Bureau or the
Commission determines that the proposal will not have a significant
impact, it will make a finding of no significant impact (FONSI). After
the issuance of a FONSI, the application will be processed. For a
proposed action for which an EA has been submitted to be implemented,
the Commission must first issue a FONSI. The Commission's rules require
the applicant to provide local public notice of the FONSI ``[p]ursuant
to CEQ regulations'' after it is issued. If, after reviewing a
submitted EA, the responsible Bureau determines that the proposed
action will have a significant effect upon the environment and that the
matter has not been resolved by an application amendment, the rules
provide that the Bureau will prepare a draft EIS and a Final EIS.
The Commission's rules related to historic preservation are located
in Sec. Sec. 1.1307(a)(4) and 1.1320 of the Commission's current
environmental rules. These provisions implement section 106 of the
National Historic Preservation Act of 1966 (NHPA), which requires
federal agencies to consider the effects of federal undertakings on
historic properties. Section 106 of NHPA mandates historic preservation
review for ``undertakings.'' The Commission has previously determined,
and the D.C. Circuit affirmed, that wireless facility deployments
associated with geographic area licenses may constitute
``undertakings'' in two limited contexts: (1) where facilities are
subject to the FCC's tower registration and approval process pursuant
to section 303(q) of the Communications Act because they are over 200
feet or are near airports, or (2) where facilities not otherwise
subject to preconstruction Commission authorization are subject to
Sec. 1.1312(b) of the Commission's rules and thus must obtain FCC
approval of an environmental assessment prior to construction. Under
that precedent, the Commission currently treats the construction of
communications towers and the collocation of communications equipment
using Commission-licensed spectrum as federal undertakings subject to
section 106 review.
Finally, the Commission's Antenna Structure Registration (ASR)
rules can be found in part 17 of the Commission's regulations. These
rules contain environmental notification provisions, which must be
completed by all ASR applicants unless an exception applies or a waiver
is granted. The environmental notification process applies to new tower
registrations and to certain modifications of registered towers that
may have a significant environmental effect. Under the ASR rules,
interested persons may submit a request for further environmental
review alleging that the proposed facility or modification may have a
significant environmental effect within 30 days of the national notice
date. The responsible Bureau will issue a decision as to whether
further environmental processing in the form of an EA to be submitted
by the applicant is required. If an EA is required, the responsible
Bureau will review the EA and, if the responsible Bureau determines
there will be a significant environmental effect, give the applicant an
opportunity to amend its application so as to reduce, minimize, or
eliminate environmental problems and then determine whether to issue a
FONSI or advise the applicant that an EIS is required.
On March 27, 2025, CTIA--The Wireless Association (CTIA) filed a
Petition for Rulemaking requesting that the Commission update its rules
implementing NEPA. Specifically, CTIA requests that the Commission
update and streamline the Commission's NEPA rules in part 1, subpart I,
to facilitate wireless broadband deployment across the country. In
particular, CTIA requests that the Commission revise its rules to
provide that wireless facility deployments pursuant to a geographic
area license that do not require antenna structure registration are not
MFAs under NEPA. CTIA also asks that the Commission implement other
reasonable reforms to the Commission's NEPA procedures consistent with
statutory mandates, recent Presidential directives, and actions by
CEQ--including by ensuring that any facilities that remain governed by
NEPA are subject to a review process with clear timelines and
predictable standards. On March 31, 2025, the Commission sought comment
on the petition.
Industry commenters, including service providers AT&T Services,
Inc. (AT&T), T-Mobile USA, Inc. (T-Mobile), and Verizon, trade
associations, and other business-related entities, support CTIA's
Petition generally and in particular CTIA's position that the
Commission should find that non-ASR facilities deployed pursuant to
geographic licenses are neither MFAs under NEPA nor undertakings for
purposes of the NHPA. To the extent industry commenters address other
reforms to the Commission's NEPA rules, they generally support CTIA's
proposals to streamline the Commission's EA and relevant ASR
procedures, including codifying deadlines. In contrast, other
commenters oppose CTIA's proposal that the Commission should determine
that non-ASR facilities deployed pursuant to geographic licenses are
not MFAS. Additionally, several Tribal Nations, state historic
preservation officers and organizations, and other associations
advocating the interests of either Tribal Nations or historic
preservation officers and preservation professionals, oppose CTIA's
proposals.
[[Page 40298]]
Although a number of these commenters express a willingness to engage
in efforts to modify the section 106 process, they object to the
approaches advocated by CTIA.
III. Discussion
We believe the time is ripe to take a fresh look at the
Commission's environmental review procedures to comport with NEPA,
accelerate the federal permitting process, further a national priority
of faster and more infrastructure deployment, and ensure that our rules
are clear. We seek comment generally on the implications to the
Commission's environmental review procedures of the NEPA amendments,
CEQ's repeal of its NEPA rules, E.O. 14154, and other relevant
developments, including the Supreme Court's decision in Seven County
Infrastructure. Among all other relevant issues, we seek comment on
whether any legitimate reliance interests might be adversely impacted
by a revision to the Commission's environmental review procedures.
Accordingly, this NPRM proceeds as follows. First, we review our
current environmental rules and seek comment on ways to modernize them
consistent with NEPA's best reading and the Commission's policy of
modernizing communications networks and simplifying government
operations. Then, we consider the impact of recent changes to NEPA as
they pertain to NHPA, ASR, and other related laws applicable to the
Commission's actions. Finally, we seek comment on other aspects of our
NEPA rules, including the FCC's requirements for CEs, EAs, EISs, joint
agency actions, and emergency situations. In this section, we seek
comment on whether certain Commission actions are MFAs. Irrespective of
that determination, we seek comment generally on whether the
Commission, as a matter of policy, should add these actions to the
Commission's list of categorical exclusions in Sec. 1.1306. If the
Commission determines these actions are categorically excluded, are
there extraordinary circumstances that apply which might require
further environmental review? Overall, would these findings respect the
goals of NEPA and NHPA, while balancing the Administration's efficiency
goals?
A. Review of Commission Actions Subject to Environmental Review
1. Application of ``Major Federal Action'' to the Commission's Rules
We first take a fresh look at the Commission's rules in light of
recent changes to NEPA. We seek comment on what changes, if any, would
bring our environmental regulations in line with the best reading of
the MFA definition and its enumerated exceptions. In addition to the
specific issues discussed below, we also seek comment broadly on the
arguments raised by the CTIA Petition regarding the interplay between
the statutory text of NEPA and possible revisions to the Commission's
environmental rules and procedures.
As an initial matter, we propose to codify the meaning of MFA, as
described in NEPA, and its exceptions, which are currently undefined in
the Commission's rules. The Commission has traditionally borrowed from
relevant definitions promulgated by CEQ. In light of CEQ's recission of
its NEPA regulations, we believe codifying the contours of MFA would
give the public necessary clarity about their regulatory obligations.
We have generally treated our licensing activities as presumptively
MFAs; then such MFAs are categorically excluded unless an extraordinary
circumstance exists as defined in our rules and then an EA is required.
In light of the amended NEPA statute, we seek comment on adjusting this
approach to first consider whether an action is an MFA. If a proposed
action is an MFA, we next would determine whether a CE would apply. As
part of this consideration, we seek comment on whether to retain the
Commission's current approach of applying a broad CE, or whether we
should adjust our CE framework to list specific MFAs that would be
categorically excluded. Would such changes best reflect the intent and
design of the amended NEPA? If so, how should we revise our rules? If
the Commission ultimately finds that certain categories of proposed
actions do not constitute MFAs, the Commission would revise its NEPA
procedures accordingly, and we seek comment on how we should do so,
both generally and for specific actions.
Excluded from the newly codified definition of MFA are ``non-
Federal actions'' with ``no or minimal Federal funding.'' We propose to
implement this exclusion by finding that no MFA exists if Commission
funding is not expressly directed towards the construction of the
particular communications facility in question; in other words,
Commission funding must be conditioned explicitly on the facility's
construction rather than more generally directed toward, say, overall
operator expenses. We seek comment on this proposal. Would such a
finding respect the goals of NEPA and NHPA, while balancing the
Administration's efficiency goals?
Geographic area licenses. We seek comment on whether the Commission
should treat the issuance of geographic area licenses as MFAs. In the
Wireless Broadband Deployment Second R&O, the Commission determined
that geographic area wireless licenses are insufficient to trigger NEPA
review. On appeal, the D.C. Circuit did not reach the merits of that
conclusion and the Commission has not revisited those determinations
since. Consequently, we seek comment on that prior analysis as it
relates to our consideration of these issues here.
We also seek comment on whether deployments pursuant to geographic
area licenses involve the requisite federal nexus--whether under the
MFA definition (``substantial federal control and responsibility'') or
the relevant non-federal exclusion (``no or minimal Federal involvement
where a Federal agency cannot control the outcome of the project'').
Does the Commission's issuance of a license authorizing the provision
of wireless service in a geographic area create substantial federal
control and responsibility over wireless facilities deployed in
connection with that license, or is the issuance of a license to
transmit radio signals within a geographic area ``an insufficient
connection to cause the construction of individual facilities to
constitute an MFA,'' as CTIA argues--particularly in instances where no
further federal agency action is required prior to construction? We
tentatively conclude that the Commission must exercise sufficient
control over the specific deployment actions at issue, rather than
generalized control qua regulator. We seek comment on that tentative
conclusion. Either way, is the Commission's role too limited to render
the deployment of such facilities an MFA? Are there instances where a
geographic area wireless license constitutes an MFA?
What factors should the Commission consider in determining the
scope of whether issuing geographic area licenses constitutes an MFA?
The Commission generally does not impose an affirmative, freestanding
requirement--whether by regulation or government contract--for private
entities to build towers. Likewise, geographic area licensees are not
required to obtain construction permits prior to deploying facilities.
On the other hand, the Commission has adopted rules subjecting certain
licensees to minimum buildout and coverage requirements. Do these
buildout requirements, and the Commission's ability to enforce them,
give the Commission substantial control
[[Page 40299]]
and responsibility over the deployment of the facilities needed to
provide service pursuant to geographic area licenses? Are there
instances where action pursuant to fulfilling the buildout requirements
of a geographic area license brings the project within the meaning of
an MFA and thus subject to environmental review? We specifically invite
comment on the practical experiences of licensees regarding their
deployment of facilities and the extent to which the practical details
of those deployments were constrained by buildout requirements.
We also seek comment on how the statutory exclusions from the
definition of major federal action might apply in the wireless
licensing context. For example, we seek comment on the relevance of the
MFA exclusion for ``judicial or administrative civil or criminal
enforcement actions.'' Does this exclusion mean that minimum build-out
and coverage requirements should not be considered sufficient to
trigger NEPA, as CTIA suggests? We seek comment on whether that
exclusion removes a potential factor when considering whether the
Commission exercises substantial control and responsibility over
geographic area licenses. Alternatively, does the fact that buildout
requirements do not specify where a licensee must locate its facilities
suggest that the Commission lacks substantial control and
responsibility? Even if one assumed arguendo that the buildout
requirements for geographic-based licenses give the Commission
substantial control and responsibility over the deployment of the
facilities, does that change once the licensee's buildout conditions
are satisfied? If a geographic area licensee completes the buildout
required under its license but subsequently decides to deploy
additional wireless facilities to enhance its coverage, is there still
substantial control and responsibility that would render the
construction of those facilities an MFA? What factors suggest that the
Commission has substantial control and responsibility over such
actions? Alternatively, what factors suggest that the Commission lacks
substantial control and responsibility? For example, does it matter
whether future facilities deployment was reasonably foreseeable? Would
the conclusion change if the Commission were to direct a licensee to
deploy wireless facilities, finish construction by a date certain,
build a specific number of facilities, or construct the facilities at a
specific location?
If we determine that the issuance of geographic area licenses does
not qualify as an MFA, we propose to rescind Sec. 1.1312 because it is
no longer necessary and seek comment on this proposal. Commenters
arguing otherwise should identify statutory authority to retain Sec.
1.1312 in some form and explain why the rule would be justified as an
exercise of any such statutory authority. If parts of Sec. 1.1312
should be retained, we seek comment on whether we should consolidate
certain or all of its provisions into another rule?
Site-based licenses. In contrast to geographic area licenses, site-
based licenses authorize the operation and construction of a facility
at a specific location. For example, private parties constructing
broadcast facilities are required to obtain construction permits from
the Commission prior to beginning construction. Should the Commission's
issuance of a site-based license qualify as an MFA under NEPA? We seek
comment on how the statutory definition of an MFA, including the
associated exclusions, apply to this type of FCC licensing. Does this
type of licensing involve substantial federal control and
responsibility because the Commission has broad discretion to authorize
the construction of specific facilities at a specific location in
connection with such licenses, or are additional indicia of federal
control and responsibility needed to determine that site-based
licensing is an MFA? How should the Commission view the construction of
facilities that serve both site-based and geographic area licensees or
licensing frameworks--such as the Commission's part 26 rules for
commercial space launches--that have geographic and site-based
attributes? Should the Commission's determination depend on the extent
that a mixed-use facility primarily enables the use of spectrum
licensed on a geographic area basis, as opposed to supporting the use
of spectrum issued under a site-based license?
Earth station licensing. Our current rules for implementing NEPA do
not include any provisions specific to satellite networks. The earth
stations used in those networks, like any terrestrial radio station,
can have environmental effects at or near the Earth's surface, and are
subject to environmental processing under the extraordinary
circumstances to the current categorical exclusion regulation. The
types of earth station facilities vary, with some types of earth
stations having characteristics similar to geographic area licenses for
terrestrial services, and others with characteristics similar to site-
specific licenses for terrestrial services. Specifically, some earth
stations are ``blanket licensed'' for technically identical equipment,
such as mobile terminals or end user fixed earth stations, without
specifying any location at which individual earth stations must
operate, other than a geographic area (typically, national and/or for
mobile terminals a broad oceanic area). Blanket licensed earth stations
must also be certified under the equipment certification procedures in
part 2, subpart J of the Commission's rules if the stations radiating
structure(s) would be within 20 centimeters of the operator's body when
the station is in operation. Other stations are for operations at
specific locations. More generally, construction permits are not
required for earth stations. Accordingly, we seek comment with respect
to earth stations on the same basic questions concerning the definition
of MFA as for other facilities.
Antenna Structure Registration. The Commission has treated the
registration of towers--known in our rules as ``antenna structures''--
as an MFA. Our ASR rules require the registration of certain antenna
structures to ensure that they do not present a hazard to air
navigation and incorporate FAA requirements for agency notification.
Antenna structure owners must submit FCC Form 854 and a valid FAA
determination of ``no hazard'' before the Commission will issue the
antenna registration.
We seek comment on whether we should continue to treat tower
registration as an MFA under the current statutory definition and
associated exclusions. Do our ASR requirements give the Commission
``substantial federal control and responsibility'' over the
construction? Alternately, do they fall into the exclusion for non-
federal actions ``with no or minimal Federal involvement'' under which
the Commission ``cannot control the outcome of the project''? Is it
relevant that our ASR rules only require registration; although, when
required, construction may not begin until an ASR number is obtained?
Should the Commission's reliance on the FAA determination of no hazard
affect whether the Commission has sufficient control over tower
construction?
We seek particular comment on whether ASR falls into the MFA
exclusion for ``activities or decisions that are non-discretionary and
made in accordance with the agency's statutory authority.'' The
Commission and the FAA each have statutory responsibilities to ensure
that antenna structures do not pose a threat to air safety. Section
303(q) of the Communications Act gives the
[[Page 40300]]
Commission ``the authority to require painting and/or illumination of
radio towers if and when in its judgment such towers constitute, or
there is a reasonable possibility that they may constitute, a menace to
air navigation.'' That provision also permits the Commission to
``require the owner to dismantle and remove the tower when the
Administrator of the Federal Aviation Agency determines that there is a
reasonable possibility that it may constitute a menace to air
navigation.'' Separately, the FAA has authority under its organic
statute to require that persons proposing to erect a structure provide
notice to the FAA, when such notice will promote air safety. Title 49
obligates the FAA to ``conduct an aeronautical study to decide the
extent of any adverse impact on the safe and efficient use of the
airspace, facilities, or equipment'' and coordinate with the FCC on
tower applications and aeronautical studies. To that end, FCC and FAA
rules each have materially identical requirements, regulations, and
cross-references for the kinds of facilities that trigger special
notification. In light of these authorities, to what extent are the
Commission's ASR rules ``non-discretionary'' and ``in accordance with
an agency's statutory authority''?
Space-based operations. The amended NEPA excludes
``extraterritorial activities with effects located entirely outside of
the jurisdiction of the United States from the MFA definition.'' The
Commission issues licenses under parts 5, 25, and 97 for satellite and
space-based communications. Parties have alleged in some cases that
satellites in orbit can create impacts on the atmosphere from launches
and reentries, impacts from satellites reflecting sunlight, and orbital
debris caused by increased collisions in space. We seek comment on
whether the amended NEPA resolves any question as to whether some or
all of these concerns are within the scope of NEPA. We propose that
space-based operations be excluded from NEPA because they are
``extraterritorial activities'' with effects located entirely outside
of the jurisdiction of the United States. We seek comment on this
proposal. We ask commenters to define with specificity the
``extraterritorial activities'' at issue along with the ``effects''
that may or may not occur within the jurisdiction of the United States.
Are there space-based operations that take place within U.S.
jurisdiction and otherwise subject to NEPA? Are there other ways in
which the statutory definition of MFA, including the associated
exclusions, should inform our determinations regarding satellite and
space-based communications?
Other Commission actions. We ask commenters to identify other
Commission actions we should consider as we update our rules to account
for the new definition of MFA. In particular, commenters are invited to
discuss whether it would be beneficial for the Commission to clarify
that certain actions do not satisfy the definition of MFA or that they
meet any of its enumerated exceptions, particularly those relating to
non-federal actions. For example, the Commission has always considered
NEPA as inapplicable to unlicensed wireless facilities; we propose to
codify that practice into our rules.
Other legal obligations. We seek comment on the impact to the
Commission's other legal responsibilities if certain actions were to
fall outside NEPA for failure to qualify as MFAs. How should we address
those legal responsibilities to the extent they are incorporated in the
Commission's existing NEPA framework? Commenters are also invited to
identify other legal requirements that may be affected by any potential
changes to our NEPA rules consistent with the amended statute. We
discuss our NHPA and ASR rules separately below. Given our primary
focus on NEPA in this rulemaking, should we address collateral issues
in a separate proceeding?
2. Federal Undertakings Under NHPA
The Commission's NEPA and NHPA procedural rules relating to
activities the Commission regulates have long been entwined and are
codified in the same set of rules. Accordingly, as we revisit the
Commission's environmental rules in this proceeding, we take the
opportunity to seek comment on any impact to our NHPA framework and
examine what rule changes, if any, might be appropriate at this
juncture.
Section 106 of the NHPA requires federal agencies to ``take into
account the effect of . . . [an] undertaking on any historic property''
and ``afford the [Advisory Council on Historic Preservation] a
reasonable opportunity to comment with regard to the undertaking.'' The
NHPA, in turn, defines ``undertaking'' as a ``project, activity, or
program funded in whole or in part under the direct or indirect
jurisdiction of a Federal agency.'' This includes projects, activities,
and programs carried out by or on the behalf of an agency or carried
out with federal financial assistance, as well as activities requiring
a federal permit, license or application, and activities subject to
state or local regulations administered pursuant to a requirement of,
or approval by a federal agency.
We first seek comment on the factual circumstances that would
transform Commission action into an ``undertaking'' triggering NHPA
review. Dating back to the 2004 NPA Order and reaffirmed as recently as
the 2018 Wireless Broadband Deployment Second R&O, the Commission has
determined that an undertaking may exist in the context of wireless
deployments in ``two limited contexts.'' First, an undertaking may
exist if facilities that do not otherwise require preconstruction
approval are nonetheless subject to Sec. 1.1312(b) of the Commission's
rules and thus must obtain FCC approval of an environmental assessment
prior to construction. Second, an undertaking may exist if facilities
are subject to the FCC's tower registration and approval process
pursuant to section 303(q) of the Communications Act because they are
over 200 feet or are near airports. We seek comment on whether the
recent changes to NEPA changes or eliminates either or both grounds for
an ``undertaking.''
NEPA triggers for NHPA review. In the 2004 NPA Order, the
Commission invoked what it described as ``section 319(d)'s public
interest standard'' in requiring covered entities to comply with NHPA,
even when no construction permit was otherwise required. The Commission
contended that, even in the absence of a construction permit
requirement, which it had previously waived for geographic area
licenses, it retained ``limited approval authority'' over the
construction. The Commission specifically pointed to its NEPA rules in
Sec. 1.1312, which states that ``[i]f a facility'' for which no
Commission authorization prior to construction is required ``may have a
significant environmental impact'' then the licensee must submit an
environmental assessment to the Commission and the Commission must then
rule on that assessment prior to initiation of construction of the
facility.'' That ``limited approval authority,'' the Commission
concluded, allowed it to treat tower construction as an NHPA
undertaking. The D.C. Circuit upheld that determination, finding that
the Commission was ``neither arbitrary nor capricious in determining
that the FCC's approval authority under NEPA makes tower construction
an undertaking.'' ``By requiring a ruling on each environmental
assessment prior to tower construction,'' the court found, ``the FCC
has retained authority over tower construction in order to ensure that
it complies with NEPA.''
[[Page 40301]]
We seek comment on whether the statutory amendments to NEPA warrant
reconsideration of the Commission's past decisions. If the Commission
determines on the basis of the new MFA definition that certain antenna
structure deployments, including those involving geographic area
licenses, are no longer subject to NEPA review, should the Commission
also determine that such deployments are no longer subject to NHPA
review, as CTIA has argued in its Petition? CTIA argues that a
geographic area license is not an MFA. Absent an MFA, NEPA does not
apply and applicants cannot be required to consider the significance of
environmental effects or applicability of categorical exclusions, as
Sec. 1.1312 currently prescribes. If Sec. 1.1312 is amended to
exclude certain antenna structure deployments, including those
involving geographic area licenses, from NEPA review, would that remove
the ``limited approval authority'' that the D.C. Circuit found
sufficient to qualify as an NHPA undertaking?
Separately, CTIA argues in its Petition that some courts have
treated the NHPA term ``undertaking'' and the NEPA term ``major federal
action'' as ``essentially coterminous,'' and have found that an
agency's involvement in a project must be ``substantial'' to constitute
an undertaking under the NHPA. If the Commission determines that a
geographic license is not an MFA, does it automatically follow that no
undertaking exists?
In the event we determine geographic area licenses are not MFAs
and/or federal undertakings under federal statues, we seek comment on
whether the Commission's limited approval authority remains applicable
to geographic area licenses because the Commission's stated purpose for
retaining its limited approval authority--to ensure compliance with
federal historic and environmental statutes--would not be at issue. In
light of recent developments, should the Commission adjust or
reconsider the need to retain its limited approval authority as invoked
in the 2004 NPA Order? If the Commission does retain its limited
approval authority, we seek comment on whether requiring
preconstruction permits before a geographic area licensee constructs a
wireless facility is in the ``public interest, convenience, and
necessity,'' particularly in the context of the Commission's bedrock
responsibilities to facilitate ``rapid, efficient . . . wire and radio
communications service with adequate facilities at reasonable
charges,'' the ``development and rapid deployment of new technologies,
products and services for the benefit of the public . . . without
administrative or judicial delays,'' and ``efficient and intensive use
of the electromagnetic spectrum.'' What are the benefits and costs to
the Commission of retaining limited approval authority for geographic
area licenses?
We further seek comment on whether the Commission's rules regarding
buildout requirements (including requisite due dates for meeting
buildout milestones) provide a sufficient basis for ``approval'' under
54 U.S.C. 300320 of the NHPA and 36 CFR 800.16(y) of the ACHP rules to
constitute a Commission undertaking and, therefore, render projects
with these requirements subject to NHPA section 106 review. If so, does
that change once the licensee's buildout conditions are satisfied? If a
geographic area licensee completes the buildout required under its
license but subsequently decides to deploy additional wireless
facilities to enhance its coverage with added capacity, would such
additional deployments no longer be Commission undertakings? Commenters
arguing that Sec. 1.1312 must or should be retained in some form
notwithstanding a decision that geographic area licensing does not
represent an undertaking should explain both what statutory authority
the Commission has to retain that rule in some form and why that rule
would be justified as an exercise of any such statutory authority.
In the Wireless Broadband Deployment Second R&O, the Commission
determined that the issuance of a geographic area wireless license does
not constitute an undertaking in the absence of ``limited approval
authority.'' We seek comment on whether any basis exists to revisit
that determination. We also seek comment on CTIA's assertion that a
geographic license is not a `` `Federal permit, license or approval'
that must be obtained before wireless facility deployment can
proceed.''
ASR triggers for NHPA review. The Commission reasoned in the 2004
NPA Order that its part 17 ASR procedures constitute an undertaking
because, pursuant to its authority under section 303(q) of the
Communications Act, the Commission adopted rules requiring that towers
that meet certain height and location criteria, and that require
clearance from the FAA as a condition precedent to tower construction,
be registered with the Commission. Subject to certain exceptions, an
applicant for tower construction or modification approval must, as part
of the tower registration process with the Commission, ``submit a valid
FAA determination of `no hazard.''' Absent the provision of this FAA
determination, the Commission's rules state that ``processing of the
registration may be delayed or disapproved.'' Given this situation, the
Commission reasoned that the ``Commission permissibly has viewed tower
registration as a federal undertaking, in which the imposition of
environmental responsibilities is justified'' and that its rule
requirements amount to an ``approval process'' congruent with the
elements of the NHPA definition of ``undertaking.'' The D.C. Circuit
upheld these determinations, rejecting the argument that the ASR
framework was ``wholly ministerial'' and did not create an ``approval''
process that would qualify as an undertaking. The court found relevant
that, unlike the Commission, the FAA lacked statutory authority to
require tower painting and lighting. Since the 2006 CTIA Decision, the
FCC has affirmed its determination that its ASR rules create an NHPA
undertaking. We seek comment on whether the statutory changes to NEPA
require reconsideration of those decisions. If the Commission
determines that its ASR rules do not qualify as an MFA under NEPA,
would that change one of the ``two limited contexts'' for an NHPA
undertaking?
Other triggers for NHPA review. Finally, are there other types of
actions that the Commission previously considered to be an undertaking
(or that have been assumed or argued to be an undertaking) that we
should now revisit or address--whether categories encompassed by our
questions regarding NEPA above, or otherwise? Are there associated
rules--whether analogous to or building on Sec. 1.1312 of the rules,
or otherwise--that we would be justified in repealing or modifying to
ensure that there are no associated environmental review requirements?
B. Streamlining the Commission's Environmental Review Procedures
1. Commission's Environmental Notification and Public Participation
Processes
Environmental notification and public participation processes apply
under our rules governing ASR applications. Historically, the
Commission has identified the processing of ASR applications as a
Commission MFA, and we seek comment on whether the Commission should
continue to do so, as described above. ASR is required by the
Commission's rules pursuant to section 303(q) of the Communications Act
to ensure that towers meeting certain criteria, i.e., over 200 feet
tall
[[Page 40302]]
AGL or within the glide slope of an airport, will not be a menace to
air navigation. In American Bird Conservancy v. FCC, which involved
litigation related to ASR towers and the Migratory Bird Treaty Act (16
U.S.C. 703-712), the D.C. District Court held that while Sec.
1.1307(c) of the Commission's rules purported to allow interested
parties the opportunity to comment on otherwise categorically excluded
ASR applications, the Commission did not provide a meaningful
opportunity for interested parties to do so because notice of those
applications was not provided until after they were granted.
In response to the court's remand, the Commission adopted the
environmental notification process, by which the public is provided
advance notice of pending ASR applications and the opportunity to
comment on them to request further environmental processing. The
environmental notification process requires applicants to provide local
and national public notice and incorporates a pleading cycle for
requests for further environmental review that mirrors Sec. 1.45 of
the Commission's rules. Section 17.4(c)(1) of the Commission's rules
contains a list of exemptions to the environmental notification process
that apply to administrative changes or actions that the Commission has
determined are unlikely to have a significant environmental effect.
Additionally, ASR applicants can seek waivers of the environmental
notification process, for example, due to emergency circumstances.
In light of our review of our environmental rules, we seek comment
on whether the Commission is legally required to retain its
environmental notification process, codified at Sec. 17.4(c) of its
rules, and, if not, whether it should retain these rules. Given the
court's finding that communications towers may affect migratory birds
protected by the MBTA, is the Commission legally required to provide
public notice of pending ASR applications? How does this analysis
change if the Commission chooses to delete Sec. 1.1307(c)? Are there
other ways in which the Commission could evaluate the potential effects
of ASR towers on migratory birds?
In the event the Commission were to find projects requiring
registration in the ASR database to be MFAs, would the environmental
notification process found at Sec. 17.4(c) of the rules be necessary
to facilitate the environmental review process? Are there changes the
Commission should consider making to the process, including changes
that could be made to streamline this process? We seek comment on
whether the environmental notification process should continue to be
required for all ASR applications that do not meet the criteria for an
exception, and on whether and how the exceptions to the environmental
notification process should be amended. Should the Commission reserve
the environmental notification requirement for ASR applications that
require EAs?
2. Updating the Commission's Categorical Exclusion and Extraordinary
Circumstances Rules
Commission MFAs are categorically excluded from further
environmental processing in the form of an EA or EIS unless one or more
of the extraordinary circumstances provided in Sec. 1.1307 are
implicated. Sections 1.1307(a), (b)(1)(i)(C), and the note to (d)
provide specific, enumerated extraordinary circumstances, which the
Commission has determined may have a significant environmental effect
and, therefore, require an applicant to prepare an EA. Sections
1.1307(c) and (d) provide catchalls for extraordinary circumstances not
otherwise enumerated that require preparation of an EA if the reviewing
Bureau determines that the proposed MFA may have a significant
environmental impact. As discussed below, we are seeking comment on
whether clarifications to the Commission's rules governing when an EA
is required are necessary, whether we should delete or revise the list
of extraordinary circumstances in Sec. 1.1307(a), and whether we
should delete or revise the catchall provisions contained in Sec. Sec.
1.1307(c) and 1.1307(d).
Final Agency Action. Section 106(a)(1) of NEPA states that an
agency is not required to prepare an environmental document with
respect to a proposed agency action if ``the proposed action is not a
final agency action within the meaning of such term in chapter 5 of
Title 5.'' We seek comment on whether it is necessary for us to revise
our rules to clarify whether actions on delegated authority are final
agency actions within the meaning of that specific statutory provision.
Is this statutory provision altered by the new definition of ``major
federal action'' in the 2023 FRA? May Bureaus or Offices, on delegated
authority, properly require applicants to file an EA or EIS? Are
further changes to our rules necessary to implement this statutory
provision? For example, should a bureau-level determination to conduct
an EA/EIS be referred to and voted on by the full Commission? Would
these changes respect the goals of NEPA and NHPA, while balancing the
Administration's efficiency goals?
Circumstances Requiring Preparation of an EA. In the amended NEPA
statute, it states that an EA is required when a proposed MFA ``does
not have a reasonably foreseeable significant effect on the quality of
the human environment, or if the significance of such effect is
unknown,'' unless the agency finds that the action is categorically
excluded or excluded by another provision of law. Because the
Commission categorically excludes most Commission actions, applicants
at most need only prepare an EA when one or more extraordinary
circumstances are present--either of the enumerated extraordinary
circumstances in Sec. 1.1307 or because a responsible Bureau has
determined the proposed MFA may have a significant environmental impact
under the catchall provisions of Sec. 1.1307(c) and (d). Applicants
make the initial determination of whether one or more of the enumerated
extraordinary circumstances applies to the proposed MFA, and an EA is
only required for a proposed MFA that has been categorically excluded
if one or more of the listed extraordinary circumstances are present or
the Bureau determines that the action may have a significant
environmental impact. We seek comment on whether to retain the current
extraordinary circumstances in Sec. 1.1307 or whether changes to our
rules describing when an EA is required may be necessary given the
current state of the governing law or to otherwise provide greater
efficiency and clarity.
Does the Commission's existing CE regulation, in combination with
the extraordinary circumstances, in Sec. 1.1307 address situations
where--and only where--an EA is required under the amended NEPA
statute, or are revisions needed to reflect the statutory amendments?
We seek comment on whether it is clear under the Commission's current
rules that the Commission's list of extraordinary circumstances, which
indicates the circumstances under which a proposed MFA ``may
significantly affect the environment,'' captures scenarios where the
significance of the environmental effect is unknown, and that an EA is
therefore required under NEPA. If not, should the Commission consider a
clarification to its rules to make the application of that standard
clearer, either in general or as a way of specifically ensuring that
additional environmental processing of actions subject by default to
CEs is not required beyond what NEPA itself calls for? Are there other
provisions in the NEPA
[[Page 40303]]
statute that the Commission should consider in determining whether to
maintain or adjust the standard for determining when an EA is required
in a specific instance where a CE otherwise would apply by default?
Commenters who support the continued use of the Commission's existing
approach or changes to the rules should explain why their recommended
approach is consistent with the amended NEPA, along with the
Commission's authority under federal communications statutes.
Alternatively, should the Commission consider revising its rules to
create, instead of an overarching CE rule, a list of individual CEs
specific to particular Commission MFAs, describing the MFAs and the
conditions under which they are categorically excluded? For example, to
the extent the Commission determines that NEPA applies to these
actions, should the Commission develop CEs specific to communications
towers (including broadcast and wireless facilities), to satellites,
earth stations, submarine cables, and to otherwise eligible facilities
to the extent they directly receive Commission support? If the
Commission determines that towers built pursuant to geographic licenses
are MFAs, should the Commission adopt a categorical exclusion that
applies specifically to these towers, and, if so, should the Commission
also describe any extraordinary circumstances that might apply to
geographically licensed towers such that environmental review would be
necessary? To the extent the Commission determines that NEPA applies to
these actions, should the Commission create CEs related to projects
constructed in rights of way, to the mounting of antennas on existing
structures, and to smaller facilities such as small wireless facilities
and distributed antenna system facilities? Are there other additional
categories of MFAs for which the Commission should develop CEs,
assuming it opts to follow this path, and if so, what are they? If the
Commission should decide to create CEs specific to individual
categories of Commission MFAs, we seek comment on how the Commission
should formulate these CEs. Commenters should explain why they think
the potential categories of Commission MFAs listed above, or any
others, should be categorically excluded, and include specifically why
they think these MFAs will not have a significant environmental effect.
If the Commission opts to restructure its NEPA process to create a list
of CEs (instead of an overarching CE), what other resulting changes to
the Commission's NEPA process and associated environmental rules would
be necessary? For example, how should the Commission apply and document
the application of these CEs? We also seek comment on when and how to
apply a CE to a particular MFA, notwithstanding the presence of one or
more extraordinary circumstances; commenters should support their legal
positions. If the Commission were to allow for the application of a CE
when one or more extraordinary circumstances is present and to
implement a process for doing so in its rules, what would that process
look like and how should the Commission implement it? Would the
Commission be required to support and document a finding that the
proposed agency action will not result in reasonably foreseeable
adverse significant impacts, or that the proposed agency action can be
modified to avoid those effects, and, if so, how should it do so? What
other changes to the Commission's NEPA processes and associated
environmental rules may be necessary to implement this scenario?
We also note that the NEPA statute, as amended, states that
agencies making a determination as to whether to prepare an
environmental document or whether an MFA is excluded under a CE, among
other determinations, ``may make use of any reliable data source,'' but
are not required to undertake new scientific or technical research
unless the new scientific or technical research is essential to a
reasoned choice among alternatives, and the overall costs and time
frame of obtaining it are not unreasonable. We seek comment on whether
any changes may be needed to the Commission's rules, particularly the
list of extraordinary circumstances in Sec. 1.1307 to conform to this
provision in the statute. Should the Commission clarify what sources of
information or level and quality of evidence should be considered in
determining whether a CE or an extraordinary circumstance applies?
In the event the Commission retains its current NEPA process based
upon an overarching CE, we seek comment on amending Sec. 1.1306(a) of
the Commission's rules--to more closely track the new statutory
definition of a CE. Section 1.1306 was adopted in 1986, consistent with
CEQ rules then in effect that defined categorical exclusions as
categories of actions which do not individually or cumulatively have a
significant effect on the human environment and thus may be excluded
from environmental review requirements. Given that NEPA itself now sets
forth a definition of ``categorical exclusion''--``a category of
actions that a Federal agency has determined normally does not
significantly affect the quality of the human environment''--we seek
comment on whether to reformulate the text of Sec. 1.1306(a) to more
clearly conform to that statutory language.
Facilities to be Located on Floodplains. As part of the
Commission's list of extraordinary circumstances, Sec. 1.1307(a)(6) of
the Commission's rules provides that facilities located in floodplains
must be placed at least one foot above the base flood elevation of the
floodplain. Consistent with the policy goals of E.O. 14154 to remove
ambiguities that may cause confusion or delay, and in recognition of
the amended NEPA, we seek comment on whether we should modify Sec.
1.1307(a)(6) of the Commission's rules to clarify that the facilities
that must be elevated include antennas and associated equipment,
including electrical equipment, but not antenna towers.
Change in Surface Features. Section 1.1307(a)(7) of the
Commission's rules requires an EA for those MFAs which ``involve
significant change in surface features.'' This section provides
examples of significant changes to surface features, including the use
of ``wetland fill, deforestation, or water diversion.'' The rule,
however, does not contain a definition of ``significant.'' Should the
Commission consider any changes to this extraordinary circumstance to
provide greater clarity?
Updated List of Enumerated Extraordinary Circumstances. As noted
above, Sec. 1.1307 provides enumerated extraordinary circumstances
generally requiring preparation of an EA as well as provisions pursuant
to which an interested member of the public may petition for further
environmental process and to which a reviewing Bureau may, in its
discretion, order an EA in the case of an action otherwise subject to a
CE. We do not believe the amended NEPA statute requires any additions
to our list of extraordinary circumstances, but we seek comment on
whether this list needs updating. Are there any existing categories of
extraordinary circumstances that should be omitted; if so, why? In
addition, NEPA and NHPA were historically evaluated together because
the definitions of ``undertaking'' and ``major federal action'' were
``essentially coterminous.'' Because the new definition of MFA might
potentially change this understanding, should the Commission take this
opportunity to decouple NHPA review from NEPA review by removing Sec.
1.1307(a)(4)--facilities that may affect historically significant
places or objects--from the list of extraordinary circumstances that
[[Page 40304]]
may have a significant environmental effect for which an EA must be
prepared?
Note to Section 1.1307(d). In 2011, the Commission adopted a note
to Sec. 1.1307(d) of the Commission's rules that provides that
``[p]ending a final determination as to what, if any, permanent
measures should be adopted specifically for the protection of migratory
birds, the Bureau shall require an Environmental Assessment for an
otherwise categorically excluded action involving a new or existing
antenna structure, for which an antenna structure registration
application . . . is required . . . if the proposed antenna structure
will be over 450 feet in height above ground level (AGL) . . . . ''
This note applies to: (1) the construction of a new antenna structure;
(2) the modification or replacement of an existing antenna structure
involving a substantial increase in size; or (3) the addition of
lighting or the adoption of a less preferred lighting style. The note
codifies the main provision of a 2010 Memorandum of Understanding
between industry and conservation groups in which the parties agreed
that an EA should be required for all towers over 450 tall AGL to
evaluate potential significant effects to migratory birds.
Section 1.1307(d) gives the responsible Bureau authority to require
an EA on its own motion if the Bureau determines an MFA may have a
significant impact on the environment and, therefore, the note's EA
requirement is not included as one of the enumerated extraordinary
circumstances. We seek comment on whether we should revise Sec.
1.1307(a) to incorporate the instruction contained in the note to Sec.
1.1307(d), consistent with section 106(b) of NEPA. Would this
modification be consistent with the policy goals of E.O. 14154 to
remove ambiguities that may cause confusion or delay and in recognition
of the amended NEPA? If the Commission decides to revise Sec.
1.1307(a) of its rules to incorporate permanent measures for the
protection of migratory birds and remove the note to Sec. 1.1307(d),
should the Commission, by virtue of the order adopting such measures,
close WT Dockets 03-187 and 08-61 regarding the effects of
communications towers on migratory birds and the American Bird
Conservancy v. FCC court decision?
We also seek comment on whether the Commission should change any of
the other aspects of the EA requirement set forth in the note to Sec.
1.1307(d). For example, the FAA's 2015 Advisory Circular updated
lighting requirements to only require steady-burning red lights for a
subset of towers under 150 feet in height AGL, and to use flashing
lights for all towers 151 feet or taller. Should the Commission retain
the requirement to complete an EA for any towers over 450 feet tall AGL
that adopt or add a less-preferred lighting style? If so, should the
Commission amend this EA trigger to only require an EA where lighting
is added to an unlit tower?
Satellite Licensing. Regarding the licensing of non-geostationary
orbit (NGSO) satellite constellations, the D.C. Circuit upheld
Commission decisions to license specific NGSO constellations without
requiring an EA, with one court upholding the Commission's finding that
the large satellite constellation in question would not present
significant environmental impacts based on the Commission's review of
the factual information presented in the licensing proceeding and FAA
launch requirements. We ask above whether the Commission should create
a CE specifically for satellites, if we determine that such space
activities fall under NEPA. We seek comment on whether there are any
specific circumstances that we should codify as extraordinary
circumstances that could warrant additional environmental processing,
or specific types of impacts that would not be considered as
constituting such circumstances, assuming satellite licensing should be
treated as a major federal action?
Deleting or Revising Rules and Provisions of Section 1.1307. We
seek comment on whether any of the Commission's enumerated
extraordinary circumstances should be deleted or otherwise streamlined.
Commenters supporting the deletion or streamlining of these rules
should explain which circumstances should be deleted or streamlined and
how deleting or streamlining these circumstances is consistent with
NEPA and is in the public interest.
The NEPA statute states broadly that the federal government should
seek to preserve the nation's natural and cultural environment in order
to ensure the health, safety, and productivity of the American people.
In furtherance of this objective, the Commission adopted Sec.
1.1307(c) and (d) as a ``safeguard'' to ``assure performance of our
responsibilities under NEPA'' and to give the Commission discretion in
reviewing proposed MFAs to ensure compliance with the statute's
objective of promoting federal agency environmental responsibility.
However, the amended NEPA statute does not expressly require that the
Commission have catchall provisions. We seek comment on whether to
retain or delete them. If we delete Sec. 1.1307(c), are there changes
that we should consider making to our list of extraordinary
circumstances to capture certain circumstances which now fall within
the catchall provision of 1.1307(c), such as aesthetics? If we delete
Sec. 1.1307(c), should we retain Sec. 1.1307(d) in order to safeguard
the Commission's ability to meet the policy objectives of safeguarding
the natural and cultural environment? Or is the list of enumerated
extraordinary circumstances sufficient to meet our obligations under
NEPA? If we delete or revise these rule sections, what similar changes
may also be necessary to our part 17 rules?
In the event the Commission retains rather than deletes Sec.
1.1307(c), we seek comment on whether we should revise this section.
Although this section requires petitioners to allege facts in detail,
in many instances petitions rely on speculative allegations, lack
sufficient detail to identify the specific project to which the
petitioner objects, or allege a harm that is too vague to evaluate. We
seek comment on whether we should revise this rule to establish minimum
petition requirements, consistent with the amended NEPA statute, which
provides that agencies determining whether an action is categorically
excluded or whether an EA or EIS is required, ``may make use of any
reliable data source,'' but generally are not required to undertake new
scientific or technical research. Should we revise the rule to include
an enumerated list of details that must be included before a petition
can be acted upon, including the physical address of an action, the
tower owner or construction company associated with the action, and a
statement articulating the link between the action and the alleged
impact on the human environment?
In the event we revise Sec. 1.1307(c), we also seek comment on how
we might revise the process of reviewing Sec. 1.1307(c) petitions to
reduce the length of the adjudication process. CTIA proposes that the
Commission adopt a policy of resolving any contested proceedings
involving an informal complaint or petition to deny that is filed
against an application containing a completed EA within a specified
period. We seek comment on the potential advantages and disadvantages
of setting a specific timeframe for resolving adjudications. How should
the Commission respond if it receives new, substantive submissions from
third parties which an applicant or licensee has not addressed? Can and
should the Commission circumscribe the comment
[[Page 40305]]
process in a way that guards against such concerns?
We also seek comment on whether the Commission should adopt a page
limit on Sec. 1.1307(c) petitions. The amended NEPA statute imposes 75
page limits on EAs and 150 page limits on EISs--expandable to 300 pages
for extraordinarily complex EISs.
3. Adoption of Another Agency's Categorical Exclusion
The amended NEPA statute seeks to accelerate the permitting process
by streamlining the process by which one agency may adopt another
agency's CE, where appropriate. For example, the National
Telecommunications and Information Administration (NTIA) and the Rural
Utilities Service (RUS) have developed categorical exclusions for
communications towers that the Commission could, potentially, adopt.
Under the amended statute, an agency must follow four steps when
adopting another agency's categorical exclusion: (i) identify the CE
listed in another agency's NEPA procedures that covers a category of
proposed actions or related actions; (ii) consult with the agency that
established the CE to ensure that the proposed adoption of the CE to a
category of actions is appropriate; (iii) identify to the public the CE
that the agency plans to use for its proposed actions; and (iv)
document adoption of the CE.
When adopting another agency's CE, we seek comment on how the
Commission should consider extraordinary circumstances. Should it
consider the extraordinary circumstances of that agency (if they
exist), the Commission's own extraordinary circumstances, both, or some
other approach? Commenters should explain their reasoning for whichever
approach they believe the Commission should adopt and why they believe
the Commission should not take other approaches when adopting another
agency's CE.
As discussed above, section 1.1307(c) of the Commission's rules
allows interested persons to petition for further environmental
processing of actions otherwise categorically excluded. Such petitions
may allege that a proposed Commission MFA may have a significant
environmental effect, whether or not the potential effect is included
in the Commission's list of extraordinary circumstances. Although we
are seeking comment on removing this provision, if the Commission
ultimately decides to retain or revise Sec. 1.1307(c), we seek comment
on how to address petitions from interested persons in the context of
having adopted another agency's CE under section 109 of NEPA. We seek
comment on whether Sec. 1.1307(c) should apply when the Commission has
adopted another agency's CE under section 109 of NEPA. Why or why not,
and under what, if any, circumstances? If we conclude that an
interested person may petition for further environmental processing of
a specific project to which the Commission has applied another agency's
CE that the Commission adopted, we anticipate that the Commission can
adjudicate the petition independently of the agency whose CE we have
adopted. Do commenters agree? We seek comment generally on the best
approach to adopt for addressing petitions on projects that are
otherwise excluded through the application of another agency's CE that
the Commission adopted.
4. Procedures for Determining Lead and Cooperating Agency
Determining the Lead and Cooperating Agencies. With respect to a
proposed agency MFA, NEPA defines the lead agency as the agency that
proposed the MFA or, if there are two or more federal agencies involved
in the MFA, the agency designated as lead agency. When there is more
than one federal agency participating in an MFA under NEPA, the revised
statute establishes that a lead agency, or joint lead agencies, will
perform a list of specific functions related to NEPA review of the
proposed MFA and requires agencies to determine the lead among multiple
participating agencies by evaluating five enumerated factors. NEPA
further provides procedures for requesting the appointment of and for
appointing a lead agency or joint lead agencies when needed and
requires that such designation be memorialized in a letter or
memorandum. The statute also provides for the designation of
cooperating agencies, which may participate in NEPA review of the
proposed MFA in a variety of ways. We seek comment on how the
Commission should adopt rules implementing NEPA's provisions regarding
lead and/or cooperating. We further seek comment on what constitutes an
acceptable written memorialization of a lead agency decision and
whether the Commission should define such a memorialization in its NEPA
rules. Alternatively, do these processes need to be addressed in our
rules? Are there other rules that the Commission should consider when
it participates in the designation of a lead agency (when it is one of
multiple participating agencies) and when it is designated and acts as
lead agency?
5. Commission's Federal Agency Exception
The Commission's environmental rules are designed to reduce or
eliminate duplication of effort in the submission and review of
environmental information by this agency and other federal agencies.
Consistent with the concept of lead and cooperating agencies, the
Commission's rules include, in two sections, what is known as the
federal agency exception. In the Commission's part 1 rules, the federal
agency exception provides that an applicant or licensee is not required
to file an EA with the Commission if another federal agency has assumed
responsibility for determining whether the facility will have a
significant environmental effect and, if so, for invoking the EIS
process. Similarly, the Commission's part 17 rules contain the same
exception, but with the added criteria that the proposed action be
sited on federal land and specifying an additional means of meeting the
exception's criteria, i.e., ``where another Federal agency has assumed
such responsibilities pursuant to a written agreement with the
Commission.''
Federal Agency Exception Compliance with NEPA. In light of NEPA's
above-described provisions governing the designation of lead and
cooperating agencies, as well as directives such as those to ``make use
of reliable data and resources in carrying out'' NEPA, we seek comment
on whether the Commission should retain its federal agency exception as
currently codified in Parts 1 and 17 of the Commission's rules, and
whether these two rules, as the Commission has applied them in
practice, comply with the amended NEPA statute. If so, we seek comment
on whether and how we should amend these rules, and whether the
Commission should instead adopt a singular federal agency exception
rule. For example, if another agency has assumed responsibility for a
specific project(s) and completed its environmental review, should the
Commission require procedures similar to the adoption of another
agency's CE or the lead agency determination process to ensure
compliance with the amended NEPA statute? For any changes made to the
federal agency exception, should we make corresponding changes to FCC
Form 854 (which is filed electronically via ASR)?
Documentation of Another Federal Agency's Environmental Review.
Assuming the Commission retains the federal agency exception, we seek
comment on how the Commission should determine when another federal
[[Page 40306]]
agency's environmental review of a proposed MFA is sufficient for the
Commission to apply this exception to the EA requirement and/or to the
environmental notice requirement, as applicable. Traditionally, the
Commission has accepted an EA and FONSI or an EIS and Record of
Decision (RoD) as sufficient evidence that another federal agency has
taken responsibility for the NEPA process, through the EIS process, if
required, and confirms that this evidence satisfies the Commission's
NEPA responsibility. Should the Commission continue to accept an EA and
FONSI or an EIS and RoD for purposes of the federal agency exception?
Due to great variance in the content, structure, and level of
detail in different agencies' CEs and their accompanying lists of
extraordinary circumstances in which the CE would not apply, an
applicant is not required to submit an EA to the Commission if another
agency of the federal government has assumed responsibility for
determining whether of the facilities in question will have a
significant effect on the quality of the human environment. Given that
the revised NEPA statute provides a clear path to adopt another federal
agency's CE, as discussed above, should the Commission rely on another
federal agency's application of a CE in a given instance for purposes
of applying the federal agency exception, and, if so, under what
circumstances? We also seek comment on whether the Commission should,
when applying the federal agency exception, continue to ensure that its
list of extraordinary circumstances (which, if present, indicate that
the MFA may have a significant environmental effect under the
Commission's rules) have been adequately considered, and whether it may
be required to do so to comply with the revised NEPA statute. We also
seek comment on what, if any, NEPA responsibility the Commission may
still have after applying the federal agency exception to a particular
MFA.
While rarely used, the part 17 federal agency exception includes a
provision allowing an ASR application to be exempt from the
environmental notification requirement because another agency has
assumed NEPA responsibility for an MFA pursuant to a written agreement
with the Commission. We seek comment on whether this provision
regarding a written agreement is beneficial to Commission licensees and
applicants, and, if not, whether we should delete it. Commenters who
support retaining this provision should address whether it complies
with the amended NEPA statute, particularly provisions dealing with the
designation of a lead agency, and whether and how it should be amended?
Requirement for Siting on Federal Land. Finally, to the extent we
retain the part 17 federal agency exception, we seek comment on
amending the provision that requires the proposed facilities to be
sited on federal land. When it adopted this rule, the Commission
reasoned that this exception should apply only to MFAs located on
federal land because the landholding federal agency routinely assumes
lead agency responsibilities. However, the rule as adopted does not
require the federal agency taking responsibility for NEPA review to be
the landholding agency; instead, the rule allows the NEPA review of the
project on federal land to be performed by any federal agency. In rare
cases, this can result in a scenario in which an ASR application does
not qualify for the part 17 federal agency exception to the notice
requirement only because it is not located on federal land, even if it
does qualify for the part 1 federal agency exception to the EA
requirement. To the extent the part 17 federal agency exception is
retained, we seek comment on whether we should eliminate the
requirement that the proposed facilities be sited on federal land. For
any changes made to the federal agency exception, should we make
corresponding changes to FCC Form 854 (which is filed electronically
via the ASR)?
6. Other Potential Changes to NEPA Procedures
Excluding Voluntary ASR Registrations from the FAA Notice
Requirement. Licensees are required to register a proposed tower or
antenna structure in the ASR system if the project ``requires notice of
proposed construction to the Federal Aviation Administration (FAA) due
to physical obstruction[.]'' However, applicants may also voluntarily
register their proposed tower or antenna structure in ASR. In 2014, the
Commission considered whether to prohibit voluntary registrations but
concluded they should be permitted because ``many owners register
antenna structures voluntarily in order to file an Environmental
Assessment and obtain a Finding of No Significant Impact under the
Commission's environmental rules, or to satisfy other needs'' such as
satisfying contractual obligations or requirements imposed by state or
local jurisdictions. If a tower is voluntarily registered, the
structure is not subject to the lighting or marking requirements of
towers otherwise required to be registered in ASR, but the applicant
must indicate on FCC Form 854 that the filing is voluntary and must
comply with all of the other requirements of Sec. 17.4 of the
Commission's rules including the need to complete a notice to the FAA
and to obtain an FAA study number which constitutes a determination of
``no hazard to air navigation.''
In many instances, an applicant submits an ASR application solely
for the purpose of submitting a required EA. Given this voluntary
registration process is not codified in the Commission's rules, we seek
comment on whether we should do so. What modifications to FCC Form 854
(which is filed electronically in the ASR system) would be necessary to
account for this category of ASR registrations? Additionally, because
voluntary registrations are a sub-category of registrations that do not
require notice of proposed construction to the FAA due to physical
obstruction, we seek comment on whether we should exclude voluntary ASR
registrations from the requirement to obtain an FAA No Hazard
Determination. We seek comment on the potential costs and benefits of
removing the requirement to complete an FAA notice and obtain an FAA No
Hazard Determination for voluntarily registered towers. We also seek
comment on whether we should exclude any other ASR requirements for
voluntary ASR registrations and the benefits and costs of any such
exclusions.
Clarifying Definition of Antenna Structure Property. The
Commission's rules impose a variety of requirements on applicants and
licensees that are dependent on the boundaries of the ``antenna
structure property'' or ``site'' (hereafter ``antenna site'') where an
antenna structure is located. However, these requirements do not
provide for a uniform definition of an antenna site. Consistent with
the policy goals of E.O. 14154 to remove ambiguities that may cause
confusion or delay, and in recognition of the amended NEPA, we seek
comment on whether to adopt a universal definition of ``antenna
structure property'' in the Commission's environmental rules.
Removing References to Rescinded Regulations. As detailed above,
CEQ issued an interim final rule seeking comment on removing CEQ
regulations from the CFR. Additionally, the D.C. Circuit stated in
Marin Audubon Society that CEQ rules are not binding on other agencies
and that CEQ serves as an advisory agency. We propose to remove
references to CEQ's regulations in the Commission's environmental rules
and
[[Page 40307]]
seek comment on if the removal of these references creates other
necessary revisions not currently proposed.
C. Modernizing the Commission's EA and EIS Requirements
1. Updating the Commission's EA Requirements
Project Sponsor Preparation of an EA. The Commission's rules
require applicants and not the responsible Bureau to prepare an EA in
cases where it is determined one is necessary. Further, the
Commission's rules provide project sponsors with guidance on the
information that must be included in an EA and state that the
Commission will independently review EAs. Similarly, the amended NEPA
provides that ``[a] lead agency shall prescribe procedures to allow a
project sponsor to prepare an environmental assessment . . . under the
supervision of the agency.'' This amendment further provides that the
``agency may provide such sponsor with appropriate guidance and assist
in the preparation'' and that ``[t]he lead agency shall independently
evaluate the environmental document and shall take responsibility for
the contents.'' Consistent with the policy goals of E.O. 14154 to
remove ambiguities that may cause confusion or delay, and in
recognition of the amended NEPA requirements, we seek comment on any
changes to these rules that we should make. Are there any changes we
could make to these rules that are consistent with NEPA and the
revisions to NEPA that would help expedite environmental processing
time and reduce costs and burdens for project sponsors, including those
that are small entities?
EA Document Requirements. We propose to modify Sec. 1.1311 of the
Commission's rules to require EAs to include ``a statement of purpose
and need that briefly summarizes the underlying purpose and need for
the proposed agency action'' and to impose a 75-page limit on EAs,
excluding citations and appendices, as required by the amended NEPA
statute. Section 1.1311 of the Commission's rules sets forth the
information that must be included in an EA, which does not require a
statement as to the purpose or the need for the proposed Commission
action nor does it impose a page limit on the length of an EA.
Accordingly, we seek comment on our proposal to modify Sec. 1.1311 of
the Commission's rules to require EAs to include a statement of purpose
and need and to impose a 75-page limit on the length of EAs. With
respect to the EA page limit requirement, we seek comment on how the
Commission should enforce this requirement.
Public Comment on Submitted EAs. We seek comment on whether we
should continue to require EAs to be placed on public notice for a 30-
day comment period prior to the issuance of a FONSI or a decision to
require further environmental processing. The antenna structure
registration rules provide for the processing of EAs by placing them on
public notice for a 30-day comment period. Specifically, section
17.4(c)(5) and (7) of the Commission's rules provide that the
Commission shall post notification of an EA on its website and the
posting shall remain on the Commission's website for a period of 30
days. When an EA is submitted as an amendment to a pending application,
the 30-day comment period is restarted.
While NEPA describes an EA as a ``public document,'' its provisions
requiring an agency to seek public comment apply specifically to
notices of intent to prepare an EIS. NEPA provides: ``[e]ach notice of
intent to prepare an environmental impact statement under section 4332
of this title shall include a request for public comment on
alternatives or impacts and on relevant information, studies, or
analyses with respect to the proposed agency action.'' The public
comment requirement of NEPA does not specifically reference EAs. We
seek comment on whether we should continue to require a public comment
period before determining whether to issue a FONSI or require further
environmental processing. Beyond the NEPA statute, are there procedural
requirements under the Administrative Procedure Act or other
environmental statutes that should inform our approach to these issues,
either alone or in conjunction with provisions of the Communications
Act?
As part of this inquiry, we seek comment on what it means when a
document is considered a ``public document'' under NEPA and whether
NEPA's referral to EAs as public documents means that the Commission
must continue to provide public notice of EAs and allow for the public
to comment on EAs before the Commission determines whether to issue a
FONSI or require further environmental processing.
One-Year EA Submission Deadline. We propose to modify Sec. Sec.
1.1308 and 17.4 of the Commission's rules to require that the EA
submission process be completed within a one-year period, as required
by the amended NEPA statute. The amended statute allows the Commission,
in consultation with the applicant, to extend the deadline, but only by
so much time as is needed to complete the EA, and the Commission must
report to Congress all EAs that were not completed by the one-year
deadline with an explanation for why the one-year deadline was missed.
The NEPA amendments, however, do not specify when an EA is deemed to be
completed.
We seek comment on how the Commission should implement this one-
year deadline. The amended NEPA statute states the start of the one-
year period is the sooner of three dates/instances, as applicable: (i)
the date on which the agency determines an EA is required; (ii) the
date on which the agency notifies the applicant that the application to
establish a right-of-way for such action is complete; or (iii) the date
on which the agency issues a notice of intent to prepare the EA. We
tentatively find that not all of these scenarios are applicable to the
Commission's environmental procedures and seek comment on that finding.
As noted above, the Commission currently relies on its applicants to
determine, in the first instance, whether an EA is required. Should the
Commission deem that the one-year period starts on the date the
Commission receives an applicant's completed EA or is there another
benchmark that should be used for the start of the one-year period? How
should the Commission determine when the one-year period ends? Are
there any special circumstances that may merit consideration of a
different start date for all applicants or for small entities? We also
seek comment on how we should implement the statutory directive that
allows an agency, in consultation with the applicant, to extend the EA
submission deadline, but by only so much time as needed to complete the
EA submission process.
Timeframes for Commission Action on EAs. In the Wireless Broadband
Deployment Second R&O, the Commission committed to timeframes for
reviewing and processing EAs in order to provide greater certainty and
transparency to applicants, thereby facilitating broadband deployment.
While the Commission committed to specific timeframes when it adopted
the Wireless Broadband Deployment Second R&O, these timeframes were not
codified into our rules. We seek comment on whether the Commission
should continue to commit to these timeframes and whether we should
codify them in our environmental processing rules. We note that CTIA
asserts that the Commission should amend Sec. 1.1308 of the
Commission's rules to incorporate these timeframes for
[[Page 40308]]
reviewing and processing EAs. Further, CTIA argues that: ``[i]n all
cases, the Commission must issue a determination no later than one year
after the EA is determined to be complete, unless a new deadline is
established in consultation with the applicant. If the Commission fails
to timely act, the applicant may seek review by a court of competent
jurisdiction.'' If the Commission determines to maintain these
timeframes, will this create any issues with the amended NEPA
requirement that the EA submission process be completed within a one-
year period? Do the timeframes adequately balance the Commission's need
to fulfill its statutory obligations under NEPA with the need to
facilitate broadband deployment?
Deleting Unnecessary EA Rules. Finally, we seek comment on whether
there are parts of the Commission's EA rules that should be deleted.
Commenters supporting the deletion of any of the Commission's EA rules
should explain how this action would be consistent with the
Commission's statutory obligations and would be in the public interest.
For instance, do the NEPA EA provisions speak for themselves and,
therefore, the Commission could just reference these statutory
provisions or parts of these provisions in its EA rules? Are there
other changes the Commission should consider to streamline its EA
procedures?
2. Updating the Commission's EIS Requirements
We seek comment on how to revise the Commission's EIS rules to
align them with the changes in the amended NEPA statute. The amended
NEPA statute made several changes to NEPA's EIS requirements. These
revisions include: (1) a requirement that agencies prescribe procedures
to allow a project sponsor to prepare an EIS under the supervision of
the agency; (2) public notice of intent to prepare an EIS and request
for comments on alternatives or impacts and on relevant information,
studies, or analyses with respect to the proposed agency action; (3) a
150-page limit except for complex issues, which are limited to 300
pages; and (4) a two-year deadline for completion, with the ability to
extend the deadline only so long as necessary to complete the EIS, and
a requirement that missed deadlines be reported to Congress. Below, we
seek comment on whether we should incorporate these statutory changes
into the Commission's EIS rules or just reference the statutory
provisions in the EIS rules.
Project Sponsor Preparation of an EIS. Currently, section 1.1314(a)
of the Commission's rules provides that the responsible Bureau shall
prepare draft and final EISs. We seek comment on whether we should
revise Sec. 1.1314(a) of the Commission's rules to require applicants
to prepare an EIS, as permitted by the amended NEPA, when the
Commission determines one is necessary. Would requiring the project
sponsor (i.e., the applicant) to prepare the EIS prioritize efficiency
and expeditious review? Are there any other factors that the Commission
should consider in deciding whether to make this change? If the
Commission decides to require applicants to prepare an EIS when one is
required, what other changes to the Commission's EIS procedures may be
needed to facilitate this process?
Public Notice and Related Requirements. Sections 1.1308(c) and
1.1314(b) of the Commission's rules provide that the responsible Bureau
will publish in the Federal Register a notice of intent that Draft and
Final EISs will be prepared in those situations where the responsible
Bureau determines that further environmental processing is required.
Section 1.1315(d) of the Commission's rules provides that members of
the public may comment on the Draft EIS and the environmental effect of
the proposal within 45 days after notice of the availability of the
statement is published in the Federal Register. The Commission's rules,
however, do not include the amended NEPA requirement that ``[e]ach
notice of intent to prepare an environmental impact statement . . .
shall include a request for public comment on alternatives or impacts
and on relevant information, studies, or analyses with respect to the
proposed agency action.'' We propose to modify the Commission's EIS
rules to better align with the statutory directive.
Page Limits. We seek comment on how we should incorporate the
statutory directive that an EIS should not be longer than 150 pages,
not including any citations or appendices, except for a proposed action
of extraordinary complexity where the page limit is 300 pages, not
including any citations or appendices. The Commission's existing EIS
rules do not include page limits pertaining to the length of an EIS.
Two-year Completion Deadline. The Commission's existing
environmental processing rules do not contain EIS completion deadlines.
The amended NEPA, however, includes a two-year deadline for completing
an EIS and gives the Commission the ability to extend the deadline as
long as necessary to complete the EIS with the requirement that the
Commission report to Congress any missed deadlines. We seek comment on
how we should incorporate these provisions into Commission's rules. The
amended NEPA statute starts the two-year period at the soonest of three
dates: (i) the date on which the agency determines an EIS is required;
(ii) the date on which the agency notifies the applicant that the
application to establish a right-of-way for such action is complete; or
(iii) the date on which the agency issues a notice of intent to prepare
the EIS. We tentatively find that not all of these scenarios are
applicable to the Commission's environmental procedures and seek
comment on this finding. For those that apply, does one of these
scenarios occur before the other? For instance, should the Commission
determine that the two-year completion period starts on the date the
Commission publishes in the Federal Register a notice of intent to
prepare an EIS? This approach seems consistent with the Commission's
current regulations, but are there situations where one of the other
two ways might make more sense? If so, what are these situations and
how should the Commission determine that one of the other ways should
be utilized? Does it make a difference if the EIS will be a project
sponsor-prepared EIS or if the project sponsor is a small entity?
Further, we seek comment on how we should implement the statutory
directive that allows the Commission, in consultation with the
applicant, to extend the completion deadline, but by only so much time
as needed to complete the EIS.
D. Review of the Commission's Emergency Procedures for Environmental
Review
In response to emergencies and natural disasters, the Commission
has provided ad hoc assistance and relief to Commission licensees and
applicants seeking to offer and restore wireless services. In the
context of wireless communications infrastructure, this assistance has
typically been offered in the form of public notices that extend filing
and regulatory deadlines, expedite the review of Special Temporary
Authority (STA) requests, remind ASR applicants of the exceptions to
the environmental notification process, and advise ASR applicants to
submit emergency waiver requests through the ASR system for emergency
deployments not otherwise subject to an exception. In situations where
the environmental notification process is required but applicants need
to act before for that
[[Page 40309]]
process can be completed, the Commission permits the responsible Bureau
to waive or postpone the requirement at the applicant's request, upon
an appropriate showing.
However, the Commission's rules implementing NEPA do not include
procedures governing compliance with section 4332(2)(C) of NEPA under
emergency circumstances. In its February 2025 Guidance Memo, CEQ
advised that all agency procedures implementing NEPA should include
processes for consideration of emergency actions and encouraged
agencies to use the 2020 CEQ Final Rules as the initial framework for
developing revisions to their NEPA-implementing rules. The 2020 CEQ
Final Rules stated that agencies should consult with CEQ about
alternative arrangements to comply with section 102(2)(C) of NEPA when
emergency circumstances necessitate taking an action with significant
environmental impact without sufficient time to follow the agency's
standard NEPA regulations, noting that the application of such
arrangements should be limited to actions necessary to control the
immediate impacts of the emergency. The 2020 CEQ Final Rules did not
address emergency actions whose effects were not expected to be
significant or were unknown.
In the past, CEQ has emphasized that agencies should not, in case
of an emergency, delay immediate actions necessary to secure lives and
safety of citizens or to protect valuable resources, but should
consider whether there is sufficient time to follow agency NEPA-
implementing procedures and regulations. It recommended that agencies
first determine whether the action is statutorily exempt from NEPA,
and, if not, whether a CE applies. For actions that meet the criteria
for neither a statutory exemption nor an applicable CE, and which the
agency does not expect to have a significant environmental impact, CEQ
has advised that agencies should prepare a focused, concise, and timely
EA. For actions that meet the criteria for neither a statutory
exemption nor an available CE, but which the agency expects would have
a significant impact, CEQ advises that agencies should next determine
whether there is an existing NEPA analysis covering the activity and,
if not, consult with CEQ about alternative arrangements. CEQ's past
guidance has emphasized that alternative arrangements do not waive the
requirement to comply with NEPA, but instead establish an alternative
means for NEPA compliance.
Given this guidance, we seek comment on whether the Commission
should adopt emergency NEPA procedures in its rules and, if so, what
they should be. Would it be sufficient for the Commission to adopt a
rule requiring consultation with CEQ about alternative arrangements for
compliance with section 102(2)(C) of NEPA when emergency circumstances
make it necessary to take action with reasonably foreseeable
significant environmental effects, or should the Commission adopt in
its rules additional procedures for applicants to follow in emergency
situations? Commenters should explain why or why not, including in the
context of the Commission's NEPA process pursuant to which applicants
make the initial determinations about the potential environmental
effects of their propose projects. Alternatively, should the Commission
delegate to responsible Bureaus the authority to issue emergency
guidance on an ad hoc basis, similar to guidance provided by Bureaus
about NEPA and NHPA compliance in response to past emergencies? Should
the Commission define criteria for when emergency circumstances apply,
and what should they be? Should the Commission adopt in its rules
unique criteria for EAs completed in emergency circumstances?
Commission licensees and applicants make an initial determination
of whether a proposed MFA is categorically excluded under the
Commission's rules by completing the Commission's NEPA Checklist, i.e.,
by determining whether any of the extraordinary circumstances in Sec.
1.1307 of its rules are present. Given that the determination of
whether any of the Commission's extraordinary circumstances is present
depends on other agencies or processes, is there a way the Commission
can help reduce the time it takes applicants to complete the checklist
under emergency circumstances? Would it be appropriate and in the
public interest to eliminate or shorten any public comment period in
the event of emergency circumstances? For an emergency action that
would otherwise require an EIS, and for which the Commission has no
existing applicable NEPA analysis such as a pre-existing plan to
respond to a particular scenario, CEQ advises that agencies should
consult with CEQ to determine whether alternative arrangements may take
the place of an EIS. Should the Commission adopt the above criteria and
delegate to the responsible Bureau to consult with CEQ when these
circumstances apply to an emergency action in its rules?
E. Cost-Benefit Analysis
Benefits. The Commission's effort to modernize, optimize, and
clarify its environmental rules and associated procedures promises to
stimulate innovation, investment, and efficiency in the U.S. economy.
We seek comment on whether, and to what extent, the various ways to
streamline the Commission's environmental rules and procedures,
discussed above, will speed the deployment of Commission-licensed
services and infrastructure vital to the provision of broadband and
other goods and services highly valued by American consumers and
businesses. We also seek any quantifications of such expected benefits.
Finally, we seek comment on any additional economic benefits that
streamlining the Commission's environmental rules and procedures may
unleash.
Costs. The risk of streamlining the Commission's environmental
rules and procedures is a chance that projects posing harm to the
environment may escape scrutiny, early detection, and mitigation. We
seek comment on the nature and extent of this risk and any
quantifications of that risk. We also seek comment on any other
potential costs of streamlining the Commission's NEPA rules and
procedures.
IV. Procedural Matters
Ex Parte Rules. This proceeding shall be treated as a ``permit-but-
disclose'' proceeding in accordance with the Commission's ex parte
rules. Persons making ex parte presentations must file a copy of any
written presentation or a memorandum summarizing any oral presentation
within two business days after the presentation (unless a different
deadline applicable to the Sunshine period applies). Persons making
oral ex parte presentations are reminded that memoranda summarizing the
presentation must (1) list all persons attending or otherwise
participating in the meeting at which the ex parte presentation was
made, and (2) summarize all data presented and arguments made during
the presentation. If the presentation consisted in whole or in part of
the presentation of data or arguments already reflected in the
presenter's written comments, memoranda, or other filings in the
proceeding, the presenter may provide citations to such data or
arguments in his or her prior comments, memoranda, or other filings
(specifying the relevant page and/or paragraph numbers where such data
or arguments can be found) in lieu of summarizing them in the
memorandum. Documents shown or given to Commission staff
[[Page 40310]]
during ex parte meetings are deemed to be written ex parte
presentations and must be filed consistent with 47 CFR 1.1206(b). In
proceedings governed by 47 CFR 1.49(f) or for which the Commission has
made available a method of electronic filing, written ex parte
presentations and memoranda summarizing oral ex parte presentations,
and all attachments thereto, must be filed through the electronic
comment filing system available for that proceeding and must be filed
in their native format (e.g., .doc, .xml, .ppt, searchable .pdf).
Participants in this proceeding should familiarize themselves with the
Commission's ex parte rules.
In light of the Commission's trust relationship with Tribal Nations
and our commitment to engage in government-to-government consultation
with them, we find the public interest requires a limited modification
of the ex parte rules in this proceeding. Tribal Nations, like other
interested parties, should file comments, reply comments, and ex parte
presentations in the record to put facts and arguments before the
Commission in a manner such that they may be relied upon in the
decision-making process consistent with the requirements of the
Administrative Procedure Act. However, at the option of the Tribe, ex
parte presentations made during consultations by elected and appointed
leaders and duly appointed representatives of federally recognized
Tribal Nations and Native Hawaiian Organizations to Commission decision
makers shall be exempt from the rules requiring disclosure in permit-
but-disclose proceedings and exempt from the prohibitions during the
Sunshine Agenda period. To be clear, while the Commission recognizes
consultation is critically important, we emphasize that the Commission
will rely in its decision-making only on those presentations that are
placed in the public record for this proceeding.
We note that some of the issues discussed above might uniquely
affect Tribes. We direct the Office of Native Affairs and Policy
(ONAP), in coordination with WTB and other Bureaus and Offices as
appropriate, to conduct government-to-government consultation as
appropriate with Tribal Nations. Tribal Nations may notify ONAP of
their desire for consultation via email to [email protected].
Regulatory Flexibility Act. The Regulatory Flexibility Act of 1980,
as amended (RFA), requires that an agency prepare a regulatory
flexibility analysis for notice and comment rulemaking proceedings,
unless the agency certifies that ``the rule will not, if promulgated,
have a significant economic impact on a substantial number of small
entities.'' Accordingly, the Commission has prepared an Initial
Regulatory Flexibility Analysis (IRFA) concerning potential rule and
policy changes contained in this Notice of Proposed Rulemaking. The
IRFA is set forth in Appendix A. The Commission invites the general
public, in particular small businesses, to comment on the IRFA.
Comments must be filed by the deadlines for comments on the first page
of this Notice of Proposed Rulemaking and must have a separate and
distinct heading designating them as responses to the IRFA.
Paperwork Reduction Act. This document may contain proposed new or
modified information collections. The Commission, as part of its
continuing effort to reduce paperwork burdens, invites the general
public and the Office of Management and Budget (OMB) to comment on any
information collections contained in this document, as required by the
Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3521. In addition,
pursuant to the Small Business Paperwork Relief Act of 2002, 44 U.S.C.
3506(c)(4), we seek specific comment on how we might further reduce the
information collection burden for small business concerns with fewer
than 25 employees.
Providing Accountability Through Transparency Act. Consistent with
the Providing Accountability Through Transparency Act, Public Law 118-
9, a summary of this document will be available on https://www.fcc.gov/proposed-rulemakings.
Filing of Comments and Reply Comments. Pursuant to Sec. Sec. 1.415
and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested
parties may file comments and reply comments on or before the dates
indicated on the first page of this document. Comments may be filed
using the Commission's Electronic Comment Filing System (ECFS).
V. Initial Regulatory Flexibility Analysis
As required by the Regulatory Flexibility Act of 1980, as amended
(RFA), the Federal Communications Commission (Commission) has prepared
this Initial Regulatory Flexibility Analysis (IRFA) of the policies and
rules proposed in the Notice of Proposed Rulemaking (NPRM). The
Commission requests written public comments on this IRFA. Comments must
be identified as responses to the IRFA and must be filed by the
deadlines for comments specified on the first page of the NPRM. The
Commission will send a copy of the NPRM, including this IRFA, to the
Chief Counsel for Advocacy of the Small Business Administration (SBA).
In addition, the NPRM and IRFA (or summaries thereof) will be published
in the Federal Register.
A. Need for, and Objectives of, the Proposed Rules
In the NPRM, the Commission reviews its environmental review
procedures to comport with the amended National Environmental Policy
Act (NEPA), accelerate the federal permitting process, further a
national priority of faster and more infrastructure deployment, and
ensure that its rules are clear. The Commission seeks comment on the
terms in the amended NEPA, including the definition of ``major federal
action'' (MFA), the statute's jurisdictional trigger, and on the
statute's enumerated exclusions from the definition of MFA.
The Commission seeks comment on whether it has substantial federal
control and responsibility over the construction of certain
communications towers, such as towers deployed pursuant to geographic
area licenses, to determine whether those towers qualify as Commission
MFAs under the amended NEPA. Additionally, the Commission seeks comment
on whether certain other actions, including licensing of satellites,
constitute ``extraterritorial activities or decisions . . . with
effects located entirely outside of the jurisdiction of the United
States'' to determine whether those activities are the Commission's
MFAs under NEPA, as amended. The Commission also seeks comment
regarding the need to retain or make changes to the Commission's
environmental notice rules that stem from the requirement that certain
towers must be registered in the Commission's Antenna Structure
Registration (ASR) database.
Through its proposals, the Commission explores its responsibilities
and procedures with respect to other laws, such as the Endangered
Species Act and the National Historic Preservation Act (NHPA), for
Commission actions that are determined not to be MFAs as defined by
NEPA. In this situation, the NPRM seeks comment on what the Commission
responsibilities are under the NHPA or other laws. The NPRM asks
whether NHPA compliance or compliance with other environmental statutes
continues to be required for categories of Commission actions that no
longer constitute MFAs as defined by NEPA.
In addition, the NPRM explores actions that the Commission might
take to streamline its environmental rules
[[Page 40311]]
and to otherwise implement the amended NEPA. More specifically, the
Commission seeks comment on reorganizing the framework of our
environmental rules to list specific MFAs that would be categorically
excluded in place of the Commission's current approach of applying a
broad CE. The Commission seeks comment on revising the environmental
rules to create, instead of an overarching CE rule, a list of
individual CEs specific to particular Commission MFAs, describing the
MFAs and the conditions under which they are categorically excluded. If
the Commission decides to create CEs specific to individual categories
of Commission MFAs, the NPRM seeks comment on how to formulate them. If
Commission opts to restructure its NEPA process to create a list of CEs
(instead of an overarching CE), the NPRM seeks comment on what other
resulting changes to the Commission's NEPA process and associated
environmental rules would be necessary.
The NPRM also seeks comment on whether to amend the Commission's
categorical exclusion (CE) regulation, including on whether it should
update its list of extraordinary circumstances at 47 CFR 1.1307, and on
whether any existing categories of extraordinary or provisions
circumstances should be deleted.
The NPRM seeks comment on whether the Commission should retain its
environmental notification process for applications that require
antenna structure registration and, if so, whether the exceptions to
this requirement should be amended. In addition, the NPRM asks whether
the Commission should adopt procedures for adopting another agency's
CEs, where appropriate, consistent with the amended NEPA statute. The
NPRM also seeks comment on whether and how it should implement NEPA
procedures for designating a lead agency in its rules, whether and how
to amend its rules excepting proposed MFAs from environmental
processing when the Commission is not the lead agency, and on how the
Commission should document the designation of another agency as lead
agency.
The NPRM seeks comment on updating the regulations to end the
Federal Aviation Administration (FAA) notice requirement for applicants
completing voluntary ASR registrations for towers that do not otherwise
meet the height requirement to trigger the FAA notice requirement. The
NPRM also seeks comment on adopting a uniform definition of ``antenna
structure property'' throughout the regulations and on whether to
update our rules to remove all references to the Council on
Environmental Quality's regulations.
Further, the NPRM seeks comment on implementing NEPA's document
requirements for environmental assessments (EAs) and environmental
impact statements (EISs). The NPRM asks if the Commission should
continue to solicit public comment on EAs prior to issuing a Finding of
No Significant Impact (FONSI). The NPRM also seeks comment on how to
implement the one-year deadline to complete an EA that the amended NEPA
requires, and specifically how to determine, for the Commission's
purposes, when the one-year period starts and ends.
With regard to EIS requirements under the amended NEPA, the NPRM
asks how the Commission should incorporate the requirement that a
public notice of intent to prepare an EIS should request comments on
alternatives or impacts and on relevant information, studies, or
analyses with respect to the proposed agency action. Similarly, the
NPRM seeks comment on how the Commission should adopt the 150-page
limit for an EIS except for complex issues, which the amended statute
limits to 300 pages. Further, the NPRM seeks comment on how to adopt
the two-year deadline for completing an EIS, the ability to extend the
deadline for only so long as necessary to complete the EIS, and the
requirement that the Commission report to Congress any missed
deadlines.
Along these same lines, the NPRM asks about the February 19, 2025,
CEQ Guidance Memo which states that agencies should prioritize project-
sponsor prepared environmental documents, including EAs and EISs, for
expeditious review. The Commission's rules already require applicants
to prepare EAs, but not EISs. The NPRM asks if the Commission should
require applicants to prepare EISs, if one is determined to be
necessary. Finally, the NPRM seeks comment on whether the Commission
should adopt emergency procedures. The NPRM observes that while NEPA
does not speak to emergency procedures specifically the February 19,
2025, CEQ Guidance Memo states that all agency implementing procedures
should include processes for consideration of emergency actions.
B. Legal Basis
The proposed action is authorized pursuant to sections 1, 2, 4(i),
201, 214, 301, 303, 309, and 332 of the Communications Act of 1934, as
amended 47 U.S.C. 151, 152, 154(i), 201, 214, 301, 303, 309, and 332,
section 102(C) of the National Environmental Policy Act of 1969, as
amended, 42 U.S.C. 4332(C), section 106 of the National Historic
Preservation Act of 1966, as amended, 54 U.S.C. 306108, and the
Endangered Species Act of 1973, as amended, 16 U.S.C. 1536.
C. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
The RFA directs agencies to provide a description of and, where
feasible, an estimate of the number of small entities that may be
affected by the proposed rules, if adopted. The RFA generally defines
the term ``small entity'' as having the same meaning as the terms
``small business,'' ``small organization,'' and ``small governmental
jurisdiction.'' In addition, the term ``small business'' has the same
meaning as the term ``small business concern'' under the Small Business
Act. A ``small business concern'' is one which: (1) is independently
owned and operated; (2) is not dominant in its field of operation; and
(3) satisfies any additional criteria established by the SBA.
Small Businesses, Small Organizations, Small Governmental
Jurisdictions. Our actions, over time, may affect small entities that
are not easily categorized at present. We therefore describe, at the
outset, three broad groups of small entities that could be directly
affected herein. First, while there are industry specific size
standards for small businesses that are used in the regulatory
flexibility analysis, according to data from the Small Business
Administration's (SBA) Office of Advocacy, in general a small business
is an independent business having fewer than 500 employees. These types
of small businesses represent 99.9% of all businesses in the United
States, which translates to 34.75 million businesses.
Next, the type of small entity described as a ``small
organization'' is generally ``any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.''
The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000
or less to delineate its annual electronic filing requirements for
small exempt organizations. Nationwide, for tax year 2022, there were
approximately 530,109 small exempt organizations in the U.S. reporting
revenues of $50,000 or less according to the registration and tax data
for exempt organizations available from the IRS.
Finally, the small entity described as a ``small governmental
jurisdiction'' is defined generally as ``governments of cities,
counties, towns, townships,
[[Page 40312]]
villages, school districts, or special districts, with a population of
less than fifty thousand.'' U.S. Census Bureau data from the 2022
Census of Governments indicate there were 90,837 local governmental
jurisdictions consisting of general purpose governments and special
purpose governments in the United States. Of this number, there were
36,845 general purpose governments (county, municipal, and town or
township) with populations of less than 50,000 and 11,879 special
purpose governments (independent school districts) with enrollment
populations of less than 50,000. Accordingly, based on the 2022 U.S.
Census of Governments data, we estimate that at least 48,724 entities
fall into the category of ``small governmental jurisdictions.''
Wireless Telecommunications Carriers (except Satellite). This
industry comprises establishments engaged in operating and maintaining
switching and transmission facilities to provide communications via the
airwaves. Establishments in this industry have spectrum licenses and
provide services using that spectrum, such as cellular services, paging
services, wireless internet access, and wireless video services. The
SBA size standard for this industry classifies a business as small if
it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show
that there were 2,893 firms in this industry that operated for the
entire year. Of that number, 2,837 firms employed fewer than 250
employees. Additionally, based on Commission data in the 2022 Universal
Service Monitoring Report, as of December 31, 2021, there were 594
providers that reported they were engaged in the provision of wireless
services. Of these providers, the Commission estimates that 511
providers have 1,500 or fewer employees. Consequently, using the SBA's
small business size standard, most of these providers can be considered
small entities.
The Commission's own data--available in its Universal Licensing
System--indicates that, as of April 23, 2025, there were 192 Cellular
licensees that will be affected by our actions today. The Commission
does not know how many of these licensees are small, as the Commission
does not collect that information for these types of entities.
Satellite Telecommunications. This industry comprises firms
``primarily engaged in providing telecommunications services to other
establishments in the telecommunications and broadcasting industries by
forwarding and receiving communications signals via a system of
satellites or reselling satellite telecommunications.'' Satellite
telecommunications service providers include satellite and earth
station operators. The SBA small business size standard for this
industry classifies a business with $44 million or less in annual
receipts as small. U.S. Census Bureau data for 2017 show that 275 firms
in this industry operated for the entire year. Of this number, 242
firms had revenue of less than $25 million. Consequently, using the
SBA's small business size standard most satellite telecommunications
service providers can be considered small entities. The Commission
notes however, that the SBA's revenue small business size standard is
applicable to a broad scope of satellite telecommunications providers
included in the U.S. Census Bureau's Satellite Telecommunications
industry definition. Additionally, the Commission neither requests nor
collects annual revenue information from satellite telecommunications
providers, and is therefore unable to more accurately estimate the
number of satellite telecommunications providers that would be
classified as a small business under the SBA size standard.
Fixed Microwave Services. Fixed microwave services include common
carrier, private-operational fixed, and broadcast auxiliary radio
services. They also include the Upper Microwave Flexible Use Service
(UMFUS), Millimeter Wave Service (70/80/90 GHz), Local Multipoint
Distribution Service (LMDS), the Digital Electronic Message Service
(DEMS), 24 GHz Service, Multiple Address Systems (MAS), and
Multichannel Video Distribution and Data Service (MVDDS), where in some
bands licensees can choose between common carrier and non-common
carrier status. Wireless Telecommunications Carriers (except Satellite)
is the closest industry with a SBA small business size standard
applicable to these services. The SBA small size standard for this
industry classifies a business as small if it has 1,500 or fewer
employees. U.S. Census Bureau data for 2017 show that there were 2,893
firms that operated in this industry for the entire year. Of this
number, 2,837 firms employed fewer than 250 employees. Thus under the
SBA size standard, the Commission estimates that a majority of fixed
microwave service licensees can be considered small.
The Commission's small business size standards with respect to
fixed microwave services involve eligibility for bidding credits in the
auction of spectrum licenses for the various frequency bands included
in fixed microwave services. When bidding credits are adopted for the
auction of licenses in fixed microwave services frequency bands, such
credits may be available to several types of small businesses based
average gross revenues (small, very small and entrepreneur) pursuant to
the competitive bidding rules adopted in conjunction with the
requirements for the auction and/or as identified in part 101 of the
Commission's rules for the specific fixed microwave services frequency
bands.
In frequency bands where licenses were subject to auction, the
Commission notes that as a general matter, the number of winning
bidders that qualify as small businesses at the close of an auction
does not necessarily represent the number of small businesses currently
in service. Further, the Commission does not generally track subsequent
business size unless, in the context of assignments or transfers,
unjust enrichment issues are implicated. Additionally, since the
Commission does not collect data on the number of employees for
licensees providing these services, at this time we are not able to
estimate the number of licensees with active licenses that would
qualify as small under the SBA's small business size standard.
Location and Monitoring Service (LMS). LMS operates in the 902-928
MHz frequency band. The band is allocated for primary use by federal
government radiolocation systems. Next in order of priority are uses
for industrial, scientific, and medical devices. Federal government
fixed and mobile and LMS systems are secondary to both uses. The
remaining uses of the 902-928 MHz band include licensed amateur radio
operations and unlicensed part 15 equipment, both of which are
secondary to all other uses of the band. LMS systems use non-voice
radio techniques to determine the location and status of mobile radio
units and may transmit and receive voice and non-voice status and
instructional information related to such units. Wireless
Telecommunications Carriers (except Satellite) is the closest industry
with an SBA small business size standard applicable to these services.
The SBA small business size standard for this industry classifies a
business as small if it has 1,500 or fewer employees. U.S. Census
Bureau data for 2017 show that there were 2,893 firms that operated in
this industry for the entire year. Of this number, 2,837 firms employed
fewer than 250 employees. Thus under the SBA size standard, the
Commission estimates that a majority of licensees in this industry can
be considered small.
[[Page 40313]]
According to Commission data as of November 2021, there were two
licensees with approximately 354 active LMS licenses. The Commission's
small business size standards with respect to LMS involve eligibility
for bidding credits in the auction of spectrum licenses for these
services. For the auction of LMS licenses, the Commission defined a
``small business'' as an entity that, together with controlling
interests and affiliates with average annual gross revenues for the
preceding three years not to exceed $15 million, and a ``very small
business'' as an entity that, together with controlling interests and
affiliates with average annual gross revenues for the preceding three
years not to exceed $3 million. Pursuant to these definitions, four
winning bidders that claimed small business credits won 289 licenses in
Auction 21, and four winning bidders that claimed small business
credits won 201 LMS licenses in Auction 43. Of these winning bidders,
only one had active licenses in November 2021.
In frequency bands where licenses were subject to auction, the
Commission notes that as a general matter, the number of winning
bidders that qualify as small businesses at the close of an auction
does not necessarily represent the number of small businesses currently
in service. Further, the Commission does not generally track subsequent
business size unless, in the context of assignments or transfers,
unjust enrichment issues are implicated. Additionally, since the
Commission does not collect data on the number of employees for
licensees providing these services, at this time we are not able to
estimate the number of licensees with active licenses that would
qualify as small under the SBA's small business size standard.
Multichannel Video Distribution and Data Service (MVDDS). MVDDS is
a fixed microwave service operating in the 12.2-12.7 GHz band that can
be used to provide various wireless services. Mobile and aeronautical
operations are prohibited. Wireless Telecommunications Carriers (except
Satellite) is the closest industry with an SBA small business size
standard applicable to these services. The SBA small business size
standard for this industry classifies a business as small if it has
1,500 or fewer employees. U.S. Census Bureau data for 2017 show that
there were 2,893 firms that operated in this industry for the entire
year. Of this number, 2,837 firms employed fewer than 250 employees.
Thus under the SBA size standard, the Commission estimates that a
majority of licensees in this industry can be considered small.
According to Commission data as of December 2021, there were 9
licensees with 250 active licenses in this service. The Commission's
small business size standards with respect MVDDS involve eligibility
for bidding credits in the auction of spectrum licenses for these
services. For auctions of MVDDS licenses the Commission adopted
criteria for three groups of small businesses. A very small business is
an entity that, together with its affiliates and controlling interests,
has average annual gross revenues not exceeding $3 million for the
preceding three years, a small business is an entity that, together
with its affiliates and controlling interests, has average gross
revenues not exceeding $15 million for the preceding three years, and
an entrepreneur is an entity that, together with its affiliates and
controlling interests, has average gross revenues not exceeding $40
million for the preceding three years. In two auctions for MVDDs
licenses, eight of the ten winning bidders who won 144 licenses claimed
one of the small business status classifications, and two of the three
winning bidders who won 21 of 22 licenses, claimed one of the small
business status classifications. Five of the winning bidders claiming a
small business status classification in these auctions had active
licenses as of December 2021.
In frequency bands where licenses were subject to auction, the
Commission notes that as a general matter, the number of winning
bidders that qualify as small businesses at the close of an auction
does not necessarily represent the number of small businesses currently
in service. Further, the Commission does not generally track subsequent
business size unless, in the context of assignments or transfers,
unjust enrichment issues are implicated. Additionally, since the
Commission does not collect data on the number of employees for
licensees providing these services, at this time we are not able to
estimate the number of licensees with active licenses that would
qualify as small under the SBA's small business size standard.
Multiple Address Systems (MAS). MAS are point-to-multipoint or
point-to-point radio communications systems used for either one-way or
two-way transmissions that operates in the 928/952/956 MHz, the 928/959
MHz or the 932/941 MHz bands. Entities using MAS spectrum, in general,
fall into two categories: (1) those using the spectrum for profit-based
uses, and (2) those using the spectrum for private internal uses to
accommodate internal communications needs. MAS serves an essential role
in a range of industrial, safety, business, and land transportation
activities and are used by companies of all sizes operating in
virtually all U.S. business categories, and by all types of public
safety entities. Wireless Telecommunications Carriers (except
Satellite) is the closest industry with an SBA small business size
standard applicable to these services. The SBA small business size
standard for this industry classifies a business as small if it has
1,500 or fewer employees. U.S. Census Bureau data for 2017 show that
there were 2,893 firms that operated in this industry for the entire
year. Of this number, 2,837 firms employed fewer than 250 employees.
Thus under the SBA size standard, the Commission estimates that a
majority of licensees in this industry can be considered small.
According to Commission data as December 2021, there were
approximately 9,798 active MAS licenses. The Commission's small
business size standards with respect to MAS involve eligibility for
bidding credits in the auction of spectrum licenses for these services.
For the auction of MAS licenses, the Commission defined ``small
business'' as an entity that has average annual gross revenues of less
than $15 million over the three previous calendar years, and a ``very
small business'' is defined as an entity that, together with its
affiliates, has average annual gross revenues of not more than $3
million over the preceding three calendar years. In auctions for MAS
licenses, 7 winning bidders claimed status as small or very small
businesses and won 611 of 5,104 licenses, and 5 of 26 winning bidders
claimed status as small or very small businesses and won 1,891 of 4,226
licenses.
In frequency bands where licenses were subject to auction, the
Commission notes that as a general matter, the number of winning
bidders that qualify as small businesses at the close of an auction
does not necessarily represent the number of small businesses currently
in service. Further, the Commission does not generally track subsequent
business size unless, in the context of assignments or transfers,
unjust enrichment issues are implicated. Additionally, since the
Commission does not collect data on the number of employees for
licensees providing these services, at this time we are not able to
estimate the number of licensees with active licenses that would
qualify as small under the SBA's small business size standard.
Non-Licensee Owners of Towers and Other Infrastructure. Neither the
Commission nor the SBA have developed a small business size
[[Page 40314]]
standard for Non-Licensee Owners of Towers and Other Infrastructure.
All Other Telecommunications is the closest industry with a SBA small
business size standard. The SBA size standard for this industry
classifies firms with annual receipts of $35 million or less as small.
U.S. Census Bureau data for 2017 show that there were 1,079 firms that
operated in this industry for the entire year. Of this number, 1,039
firms had revenue of less than $25 million. Thus, under this SBA size
standard a majority of the firms in this industry can be considered
small.
At one time most communications towers were owned by the licensee
using the tower to provide communications service. Many towers are now
owned by third-party businesses that do not provide communications
services themselves but lease space on their towers to other companies
that provide communications services. The Commission's rules require
that any entity, including a non-licensee, proposing to construct a
tower over 200 feet in height or within the glide slope of an airport
must register the tower with the Commission's Antenna Structure
Registration (``ASR'') system and comply with applicable rules
regarding review for impact on the environment and historic properties.
As of March 6, 2025, the ASR database includes approximately
139,219 registration records reflecting a ``Constructed'' status and
17,786 registration records reflecting a ``Granted, Not Constructed''
status. These figures include both towers registered to licensees and
towers registered to non-licensee tower owners. The Commission does not
keep information from which we can easily determine how many of these
towers are registered to non-licensees or how many non-licensees have
registered towers. Regarding towers that do not require ASR
registration, we do not collect information as to the number of such
towers in use and therefore cannot estimate the number of tower owners
that would be subject to the rules on which we seek comment. Moreover,
the SBA has not developed a size standard for small businesses in the
category ``Tower Owners.'' Therefore, we are unable to determine the
number of non-licensee tower owners that are small entities. We
believe, however, that when all entities owning 10 or fewer towers and
leasing space for collocation are included, non-licensee tower owners
number in the thousands. In addition, there may be other non-licensee
owners of other wireless infrastructure, including Distributed Antenna
Systems (DAS) and small cells that might be affected by the measures on
which we seek comment. We do not have any basis for estimating the
number of such non-licensee owners that are small entities.
The closest applicable SBA category is All Other
Telecommunications, and the appropriate size standard consists of all
such firms with gross annual receipts of $35 million or less. For this
category, U.S. Census Bureau data for 2012 show that there were 1,442
firms that operated for the entire year. Of these firms, a total of
1,400 had gross annual receipts of less than $25 million and 15 firms
had annual receipts of $25 million to $49, 999,999. Thus, under this
SBA size standard a majority of the firms potentially affected by our
action can be considered small.
Personal Radio Services. Personal radio services provide short-
range, low-power radio for personal communications, radio signaling,
and business communications not provided for in other services.
Personal radio services include services operating in spectrum licensed
under part 95 of our rules. These services include Citizen Band Radio
Service, General Mobile Radio Service, Radio Control Radio Service,
Family Radio Service, Wireless Medical Telemetry Service, Medical
Implant Communications Service, Low Power Radio Service, and Multi-Use
Radio Service. There are a variety of methods used to license the
spectrum in these rule parts, from licensing by rule, to conditioning
operation on successful completion of a required test, to site-based
licensing, to geographic area licensing. All such services utilize are
wireless frequencies, therefore we apply the industry definition of
Wireless Telecommunications Carriers (except Satellite). The SBA small
business size standard for this industry classifies firms employing
1,500 or fewer persons as small. U.S. Census Bureau data for 2017 show
that there were 2,893 firms in this industry that operated for the
entire year. Of this number, 2,837 firms employed fewer than 250
employees. Thus, under the SBA size standard, the Commission estimates
that the majority of firms in this industry can be considered small. We
note however, that many of the licensees in this category are
individuals and not small entities. In addition, due to the mostly
unlicensed and shared nature of the spectrum utilized in many of these
services, the Commission lacks direct information upon which to base an
estimation of the number of small entities that may be affected by our
actions in this proceeding.
Private Land Mobile Radio Licensees--900 MHz Band (PLMR--900 MHz
Band). Private land mobile radio (PLMR) systems serve an essential role
in a vast range of industrial, business, land transportation, and
public safety activities. Companies of all sizes operating in all U.S.
business categories use these radios. The 900 MHz band (896-901/935-940
MHz) is designated for narrowband PLMR communications by Business/
Industrial/Land Transportation (B/ILT) licensees and for Specialized
Mobile Radio (SMR) providers, with deployed systems primarily used for
two-way communication by land transportation, utility, manufacturing,
and petrochemical companies. Only B/ILT and SMR licensees are eligible
to operate in the 900 MHz band. Wireless Telecommunications Carriers
(except Satellite) is the closest industry with a SBA small business
size standard applicable to these services. The SBA small size standard
for this industry classifies a business as small if it has 1,500 or
fewer employees. U.S. Census Bureau data for 2017 show that there were
2,893 firms that operated in this industry for the entire year. Of this
number, 2,837 firms employed fewer than 250 employees. Thus under the
SBA size standard, the Commission estimates licensees in this can be
considered small.
Based on Commission data, as of December 14, 2021, there were 2,716
active licenses (714 B/ILT and 2,002 SMR licenses) in the 900 MHz band
(896-901/935-940 MHz). The Commission's small business size standards
with respect to PLMR licenses in the 900 MHz band involve eligibility
for bidding credits and installment payments in the auction of licenses
for these services. For the auction of 900 MHz SMR licenses, the
Commission defined a ``small business'' as an entity with average
annual gross revenues of $15 million or less in the three preceding
calendar years and a ``very small business'', as an entity with average
gross revenues that are not more than $3 million for the preceding
three years. Pursuant to these definitions, approximately 59 winning
bidders claiming small business credits won approximately 263 licenses
and 3 winning bidders claiming small business credits won approximately
7 licenses. None of the winning bidders claiming a small business
status classification in these 900 MHz band PLMR license auctions had
an active license as of December 2021.
In frequency bands where licenses were subject to auction, the
Commission notes that as a general matter, the
[[Page 40315]]
number of winning bidders that qualify as small businesses at the close
of an auction does not necessarily represent the number of small
businesses currently in service. Further, the Commission does not
generally track subsequent business size unless, in the context of
assignments or transfers, unjust enrichment issues are implicated.
Additionally, since the Commission does not collect data on the number
of employees for licensees providing these services, at this time we
are not able to estimate the number of licensees with active licenses
that would qualify as small under the SBA's small business size
standard. Nevertheless, the Commission believes that a majority of B/
ILT and SMT PLMR--900 MHz band licenses are held by small entities.
Public Safety Radio Licensees. As a general matter, Public Safety
Radio Pool licensees include police, fire, local government, forestry
conservation, highway maintenance, and emergency medical services.
Because of the vast array of public safety licensees, the Commission
has not developed a small business size standard specifically
applicable to public safety licensees. Wireless Telecommunications
Carriers (except Satellite) is the closest industry with an SBA small
business size standard applicable to these services. The SBA small
business size standard for this industry classifies a business as small
if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017
show that there were 2,893 firms that operated in this industry for the
entire year. Of this number, 2,837 firms employed fewer than 250
employees. Thus under the SBA size standard, the Commission estimates
that a majority of licensees in this industry can be considered small.
With respect to local governments, in particular, since many
governmental entities comprise the licensees for these services, we
include under public safety services the number of government entities
affected. According to Commission records as of December 2021, there
were approximately 127,019 active licenses within these services.
Included in this number were 3,577 active licenses in the Public Safety
4.9 GHz band. Since the Commission does not collect data on the number
of employees for licensees providing these services, at this time we
are therefore not able to estimate the number of licensees with active
licenses that would qualify as small under the SBA's small business
size standard.
Broadband Radio Service and Educational Broadband Service.
Broadband Radio Service systems, previously referred to as Multipoint
Distribution Service (MDS) and Multichannel Multipoint Distribution
Service (MMDS) systems, and ``wireless cable,'' transmit video
programming to subscribers and provide two-way high speed data
operations using the microwave frequencies of the Broadband Radio
Service (BRS) and Educational Broadband Service (EBS) (previously
referred to as the Instructional Television Fixed Service (ITFS)).
Wireless cable operators that use spectrum in the BRS often
supplemented with leased channels from the EBS, provide a competitive
alternative to wired cable and other multichannel video programming
distributors. Wireless cable programming to subscribers resembles cable
television, but instead of coaxial cable, wireless cable uses microwave
channels.
In light of the use of wireless frequencies by BRS and EBS
services, the closest industry with a SBA small business size standard
applicable to these services is Wireless Telecommunications Carriers
(except Satellite). The SBA small business size standard for this
industry classifies a business as small if it has 1,500 or fewer
employees. U.S. Census Bureau data for 2017 show that there were 2,893
firms that operated in this industry for the entire year. Of this
number, 2,837 firms employed fewer than 250 employees. Thus under the
SBA size standard, the Commission estimates that a majority of
licensees in this industry can be considered small.
According to Commission data as of December 2021, there were
approximately 5,869 active BRS and EBS licenses. The Commission's small
business size standards with respect to BRS involves eligibility for
bidding credits and installment payments in the auction of licenses for
these services. For the auction of BRS licenses, the Commission adopted
criteria for three groups of small businesses. A very small business is
an entity that, together with its affiliates and controlling interests,
has average annual gross revenues exceed $3 million and did not exceed
$15 million for the preceding three years, a small business is an
entity that, together with its affiliates and controlling interests,
has average gross revenues exceed $15 million and did not exceed $40
million for the preceding three years, and an entrepreneur is an entity
that, together with its affiliates and controlling interests, has
average gross revenues not exceeding $3 million for the preceding three
years. Of the ten winning bidders for BRS licenses, two bidders
claiming the small business status won 4 licenses, one bidder claiming
the very small business status won three licenses and two bidders
claiming entrepreneur status won six licenses. One of the winning
bidders claiming a small business status classification in the BRS
license auction has an active licenses as of December 2021.
The Commission's small business size standards for EBS define a
small business as an entity that, together with its affiliates, its
controlling interests and the affiliates of its controlling interests,
has average gross revenues that are not more than $55 million for the
preceding five (5) years, and a very small business is an entity that,
together with its affiliates, its controlling interests and the
affiliates of its controlling interests, has average gross revenues
that are not more than $20 million for the preceding five (5) years. In
frequency bands where licenses were subject to auction, the Commission
notes that as a general matter, the number of winning bidders that
qualify as small businesses at the close of an auction does not
necessarily represent the number of small businesses currently in
service. Further, the Commission does not generally track subsequent
business size unless, in the context of assignments or transfers,
unjust enrichment issues are implicated. Additionally, since the
Commission does not collect data on the number of employees for
licensees providing these services, at this time we are not able to
estimate the number of licensees with active licenses that would
qualify as small under the SBA's small business size standard.
Broadband Personal Communications Service. The broadband personal
communications services (PCS) spectrum encompasses services in the
1850-1910 and 1930-1990 MHz bands. The closest industry with a SBA
small business size standard applicable to these services is Wireless
Telecommunications Carriers (except Satellite). The SBA small business
size standard for this industry classifies a business as small if it
has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show
that there were 2,893 firms that operated in this industry for the
entire year. Of this number, 2,837 firms employed fewer than 250
employees. Thus under the SBA size standard, the Commission estimates
that a majority of licensees in this industry can be considered small.
Based on Commission data as of November 2021, there were
approximately 5,060 active licenses in the Broadband PCS service. The
Commission's small business size standards with respect to Broadband
PCS involve eligibility for bidding credits and installment payments in
the
[[Page 40316]]
auction of licenses for these services. In auctions for these licenses,
the Commission defined ``small business'' as an entity that, together
with its affiliates and controlling interests, has average gross
revenues not exceeding $40 million for the preceding three years, and a
``very small business'' as an entity that, together with its affiliates
and controlling interests, has had average annual gross revenues not
exceeding $15 million for the preceding three years. Winning bidders
claiming small business credits won Broadband PCS licenses in C, D, E,
and F Blocks.
In frequency bands where licenses were subject to auction, the
Commission notes that as a general matter, the number of winning
bidders that qualify as small businesses at the close of an auction
does not necessarily represent the number of small businesses currently
in service. Further, the Commission does not generally track subsequent
business size unless, in the context of assignments or transfers,
unjust enrichment issues are implicated. Additionally, since the
Commission does not collect data on the number of employees for
licensees providing these, at this time we are not able to estimate the
number of licensees with active licenses that would qualify as small
under the SBA's small business size standard.
1. All Other Telecommunications. This industry is comprised of
establishments primarily engaged in providing specialized
telecommunications services, such as satellite tracking, communications
telemetry, and radar station operation. This industry also includes
establishments primarily engaged in providing satellite terminal
stations and associated facilities connected with one or more
terrestrial systems and capable of transmitting telecommunications to,
and receiving telecommunications from, satellite systems. Providers of
internet services (e.g. dial-up ISPs) or Voice over internet Protocol
(VoIP) services, via client-supplied telecommunications connections are
also included in this industry. The SBA small business size standard
for this industry classifies firms with annual receipts of $40 million
or less as small. U.S. Census Bureau data for 2017 show that there were
1,079 firms in this industry that operated for the entire year. Of
those firms, 1,039 had revenue of less than $25 million. Based on this
data, the Commission estimates that the majority of ``All Other
Telecommunications'' firms can be considered small.
D. Description of Economic Impact and Projected Reporting,
Recordkeeping, and Other Compliance Requirements for Small Entities
The RFA directs agencies to describe the economic impact of
proposed rules on small entities, as well as projected reporting,
recordkeeping and other compliance requirements, including an estimate
of the classes of small entities which will be subject to the
requirement and the type of professional skills necessary for
preparation of the report or record.
The Commission anticipates that any rule changes that result from
the NPRM will meet the Commission's objective of providing certainty
for all applicants that are small entities. The NPRM seeks comment on
ways that the Commission can streamline the environmental review
process, prioritize efficiency and certainty and expedite the process
for all applicants seeking environmental approval of pending
construction projects. While these types of changes will reduce
economic impact and regulatory burden for all applicants, we expect
that small entity applicants, who typically lack the both the financial
and staffing resources of their larger counterparts, will particularly
benefit from any rules changes, if adopted.
Along these lines, the NPRM asks if the Commission has substantial
federal control and responsibility over the construction of certain
communications towers, such as towers deployed pursuant to geographic
area licenses, to determine whether those towers qualify as Commission
MFAs under the amended NEPA. If the Commission determines that it does
not have substantial federal control and responsibility over these
types of projects, then this finding would apply equally to small
entities as well as all other applicants. Such a finding could mean
that these types of construction projects would not need to undergo
environmental processing before construction could begin, thereby
creating a cost savings. Along these same lines, the NPRM asks what the
Commission responsibilities are under the NHPA if the Commission
determines that these types of projects are not considered to be MFAs
as defined by NEPA. Depending on the Commission's decision, these types
of changes would reduce economic impact and record keeping requirements
for small entity applicants, as well as all applicants.
Further, the Commission seeks comment on other methods that might
reduce economic burden and record keeping, including making changes to
the Commission's environmental notice rules that stem from the
requirement that certain towers must be registered in the Commission's
Antenna Structure Registration (ASR) database. The Commission seeks
comment on whether to amend its categorical exclusion (CE) regulation,
including on whether to categorically exclude additional categories of
Commission actions, and on whether to amend the list of extraordinary
circumstances. The Commission also seeks comment on reorganizing the
framework of its environmental rules to list specific MFAs that would
be categorically excluded in place of the Commission's current approach
of applying a broad CE. The NPRM also seeks comment on whether and how
it should implement NEPA procedures for designating a lead agency in
its rules, whether and how to amend its rules excepting proposed MFAs
from environmental processing when the Commission is not the lead
agency, and on how the Commission should document the designation of
another agency as lead agency. If the Commission adopts these types of
changes, these changes could further reduce economic and regulatory
burden.
At this time, the Commission cannot quantify the potential cost
savings of any rules changes discussed in the NPRM, should they be
adopted. As part of our invitation for comment by interested parties,
we request that any small entities participating in the comment process
discuss any benefits or drawbacks associated with the proposed
approaches, and provide information on their current costs of
compliance with the Commission's existing rules. We expect the
information we receive in comments to help the Commission identify and
evaluate relevant matters for small entities, including compliance
costs, and identify other burdens that may result from the matters
raised in the NPRM.
E. Discussion of Significant Alternatives Considered That Minimize the
Significant Economic Impact on Small Entities
The RFA directs agencies to provide a description of any
significant alternatives to the proposed rules that would accomplish
the stated objectives of applicable statutes, and minimize any
significant economic impact on small entities. The discussion is
required to include alternatives such as: ``(1) the establishment of
differing compliance or reporting requirements or timetables that take
into account the resources available to small entities; (2) the
clarification, consolidation, or
[[Page 40317]]
simplification of compliance and reporting requirements under the rules
for such small entities; (3) the use of performance rather than design
standards; and (4) an exemption from coverage of the rule, or any part
thereof, for such small entities.
The NPRM seeks comment on ways the Commission could refine its
environmental processing rules that will reduce economic impact and
regulatory burden on small and other applicants. In this regard, the
NPRM seeks comment on different approaches or alternatives that the
Commission might take to complying with the revised NEPA requirements.
For instance, the Commission is considering the application of its
environmental processing rules in the geographic licensing context. In
the NPRM, we consider whether the start and end dates for the one-year
EA submission deadline should be modified in a way that would assist
small entities. The Commission is also evaluating whether to broaden
its CE regulation to include more Commission actions and if it should
establish a process to adopt another agency's CEs. Further, the NPRM
specifically asks if the Commission should change its rules for a
project sponsor-prepared EA to help expedite environmental processing
time and reduce costs and burdens for project sponsors, including those
that are small entities.
The Commission will decide what actions it should take based on the
record that it receives on the NPRM. Part of the decisional process
will include evaluating the impact of these decisions on small entities
and what alternatives it might adopt to lessen significant economic
impact and regulatory burden on small entities while complying with the
amendments to NEPA.
The Commission will fully consider the economic impact on small
entities as it evaluates the comments filed in response to the NPRM,
including comments related to costs and benefits. Alternative proposals
and approaches from commenters will further develop the record and
could help the Commission further minimize the economic impact on small
entities. The Commission's evaluation of the comments filed in this
proceeding will shape the final conclusions it reaches, the final
alternatives it considers, and the actions it ultimately takes to
minimize any significant economic impact that may occur on small
entities from the final rules.
F. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
None.
VI. Ordering Clauses
Accordingly, it is ordered that, pursuant to sections 1, 2, 4(i)
and (j), 201, 214, 301, 303, 309, 319, and 332 of the Communications
Act of 1934, as amended 47 U.S.C. 151, 152, 154(i) and (j), 201, 214,
301, 303, 309, 319, and 332, section 102 of the National Environmental
Policy Act of 1969, as amended, 42 U.S.C. 4332, section 106 of the
National Historic Preservation Act of 1966, as amended, 54 U.S.C.
306108, and the Endangered Species Act of 1973, as amended, 16 U.S.C.
1536, this Notice of Proposed Rulemaking is adopted.
It is further ordered that, pursuant to applicable procedures set
forth in Sec. Sec. 1.415 and 1.419 of the Commission's Rules, 47 CFR
1.415, 1.419, interested parties may file comments on the Notice of
Proposed Rulemaking on or before 30 days after publication in the
Federal Register, and reply comments on or before 45 days after
publication in the Federal Register.
It is further ordered that the Petition for Rulemaking filed by
CTIA in the Commission's rulemaking proceeding RM-12003 is granted to
the extent specified herein, that RM-12003 is incorporated into this
proceeding WT Docket No. 25-217, and that RM-12003 is terminated.
It is further ordered that the Commission's Office of the Secretary
shall send a copy of this Notice of Proposed Rulemaking, including the
Initial Regulatory Flexibility Analysis, to the Chief Counsel for
Advocacy of the Small Business Administration.
Federal Communications Commission.
Marlene Dortch,
Secretary, Office of the Secretary.
[FR Doc. 2025-15818 Filed 8-18-25; 8:45 am]
BILLING CODE 6712-01-P