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Former FCC Attorney: How the FCC Fails to Follow Environmental Laws and Fails the Public

Apr 18, 2023

Erica Rosenberg, formerly Assistant Chief of the Competition and Infrastructure Policy Division at the Federal Communications Commission, claims the FCC has failed to protect the environment and the public. Since leaving the FCC, she has documented numerous ways in which the FCC has failed to fulfill its mandatory duties related to environmental review regarding telecommunications infrastructure deployment. Watch EHT Executive Director Theodora Scarato’s interview with Erica Rosenberg.

Erica Rosenberg is an environmental attorney with Congressional, NGO, academia, and agency experience.  She worked in the FCC’s Wireless Telecommunications Bureau, where she was Assistant Chief of the Competition and Infrastructure Policy Division, for seven years until 2021. Her article, Environmental Procedures at the FCC: A Case Study in Corporate Capture was published in the journal Environment: Science and Policy for Sustainable Development in 2022. Read her blog post below about how the FCC has failed to comply with environmental laws.

How the FCC Fails to Follow Environmental Laws and Fails the Public

by Erica Rosenberg

The Federal Communications Commission (FCC), which regulates radio, TV, satellite, cable, and wire and wireline communications, plays a critical role in providing universal broadband and telecommunications access and authorizing associated deployments and facilities—millions of miles of wires, countless large communications towers, and hundreds of thousands of small cell antennas and associated poles. 

Like all federal agencies, the FCC must also follow environmental laws, including the National Environmental Policy Act (NEPA). NEPA requires it to assess the potential environmental impacts of its actions before it authorizes, funds, or licenses projects such as towers, antennas, and other communications infrastructure, and to consider the concerns of communities and citizens in the process.

Yet the FCC fails to comply with NEPA in a myriad of ways:

  • It ignores major federal actions (MFAs) requiring environmental review, such as its distribution to industry of billions of dollars that support build-outs for wireline service or updated wireless service. To circumvent NEPA, it also improperly deems certain MFAs as non-MFAs, as the DC Circuit Court of Appeals found in 2019 in United Keetoowah v. FCC with regard to small cells.
  • Its NEPA rules create an unsupported and overly broad Categorical Exclusion (exemption from NEPA assessment) so that, for example, satellite licensing and submarine cable licensing are categorically excluded from review. Among other impacts, these activities could result in light pollution affecting both dark skies and migratory birds, and the destruction of underwater reefs.
  • With little oversight or tracking, it delegates determinations of level of environmental review, for example, whether a written Environmental Assessment (EA) is required, and EA drafting to the industry proponents of the project.
  • Its environmental review process is so perfunctory that it omits consideration of countless potential environmental effects, including aesthetic impacts and large-scale tree clearing.
  • It fails to vigorously enforce its NEPA rules so that industry non-compliance is rampant.
  • It fails to provide adequate notice and opportunities for public comment on projects.
  • It fails to make environmental documents, such as radiofrequency (RF) emissions studies, readily accessible to the public.
  • It routinely ignores or dismisses public comments so that it authorizes virtually all wireless projects as proposed, regardless of environmental concerns raised.

These inadequate NEPA practices lead to a slew of environmental impacts. A representative but tiny sampling of violations and their impacts include:

  • Critical habitat and endangered species: On Michigan’s Keenewaw Peninsula, 179 cell towers were built without environmental review between 1996 and 2002 in habitat for the endangered Kirtland warbler and other listed species. In Alaska, hundreds of cell towers were built–several in wildlife refuges and on sensitive permafrost–without any environmental review. In 2014, in Sabana Grande, Puerto Rico, a tower builder bulldozed critical habitat for an endangered bird, the Puerto Rican nightjar. In 2021, in Punta Gorda, Florida, a broadcast tower builder destroyed 2.6 acres of an endangered bat’s critical habitat.
  • Historic districts and cultural sites: Sacred sites and cultural resources have been destroyed or damaged when cell towers were built on burial mounds or archaeological sites in, for example, Iowa, North Dakota, New Mexico, and Idaho. In Medora, North Dakota, a 180-foot tower was built near five National Register historic sites and properties, including Teddy Roosevelt’s historic cabin.
  • Nationally and locally recognized scenic views: In 2014, AT&T built a tower in Fort Ransom, North Dakota, visible from a nearby National Scenic Tail and Scenic Byway, without having to consider aesthetic impacts. Towers have been built in the viewsheds of a designated battlefield in Tennessee, National Scenic Trails and Byways in Michigan, and on the sand dunes of Dewey Beach, Delaware, with little notice or consideration of visual impacts.
  • Wetlands and forests: In 2019, licensees in Broward County, Florida, built a driveway in a forested wetland for a 300-foot tower before completing environmental review.

Given the FCC’s lack of oversight and failure to comply with environmental laws, violations such as these represent a fraction of the environmental harms that occur under the agency’s watch. The result of the FCC’s lack of accountability is cumulative and incalculable environmental damage: views of protected landscapes and historic sites ruined, wetlands filled, endangered species habitat cleared, sacred sites desecrated, burial mounds and archaeological sites disturbed, and fragile underwater environments degraded. Equally important, citizens and localities are left with little or no voice in siting decisions affecting them and their communities. As wireless technologies continue to proliferate, the impacts will multiply.

Over the years, PEER and other NGOs have tried to improve agency accountability and NEPA compliance, with PEER most recently doing so by submitting comments on impacts of satellites that warranted EAs. Unfortunately, these efforts have been largely unsuccessful due to FCC intransigence. However, by September 2023, Federal agencies must revise their NEPA rules (40 CFR § 1507.3.). Hopefully, the Council on Environmental Quality, which oversees NEPA compliance, will hold the FCC to a higher standard for NEPA compliance.

Note: This blog first appeared on PEER’s website on February 20, 2023.

Erica Rosenberg is an environmental attorney with Congressional, NGO, academia, and agency experience, she worked in the FCC’s Wireless Telecommunications Bureau for seven years until 2021 and was formerly Assistant Chief of the Competition and Infrastructure Policy Division at the Federal Communications Commission. Read her article entitled Environmental Procedures at the FCC: A Case Study in Corporate Capture published in the journal Environment: Science and Policy for Sustainable Development. 

Theodora Scarato, Executive Director of Environmental Health Trust  interviewed Erica Rosenberg about her work at the FCC and the critical environmental issues she is now raising. Environmental Health Trust sued the FCC regarding its lack of proper review for its regulations and human exposure limits for wireless radiation. In 2021, the US Appeals Court, DC Circuit ruled in EHT’s case Environmental Health Trust et al v. The Federal Communications Commission that the FCC had acted in an “arbitrary and capricious” manner when it decided not to update its exposure limits. The FCC was found to have “ignored” extensive evidence on the record indicating environmental effects as well as health effects such as impacts to memory and reproduction, children’s unique vulnerability and effects of long term exposure. 

Download a two page flyer on wildlife and wireless here. 

Please sign up for EHT’s newsletter here. 

Watch Erica Rosenberg present on NEPA  in a training  at the FCC here. 

Slides can be found here.  Workshop link at FCC here.

The Federal Communications Commission website includes some NEPA resources: 

Below is information about the FCC NEPA process and compliance with related environmental statutes from the FCC

More at the Federal Communications Commission website on NEPA.

Here is what the FCC does not have: 

  • A national registry or online map of all wireless facilities, towers, rooftop antennas, and 5G/4G small cells. 
  • An oversight, compliance, or enforcement program to ensure cell tower and antenna facilities are within RF limits.
  • Experts on the health and biological effects of radio-frequency radiation.