Environmental Procedures at the FCC: A Case Study in Corporate Capture
“An environmental and public lands policy attorney with over 30 years of experience, including in agencies, Congress, andacademia, Erica Rosenberg worked at the FCC’s Wireless Telecommunications Bureau from 2014 to 2021; for the last six of those years, she was Assistant Chief of the Competition and Infrastructure Policy Division.”
Erica Rosenberg (2022). Environmenta
“With infrastructure including millions of miles of fiber optic cable and lines, thousands of towers, earth stations and satellites, and hundreds of thousands of small cells, 1 the telecommunications industry leaves a significant environmental footprint: wetlands filled, viewsheds marred, cultural resources damaged, and habitat destroyed. As the agency overseeing telecommunications, the Federal Communications Commission (FCC) regulates radio, TV, satellite, cable, and both wireline and wireless communications—and associated entities like Verizon, AT&T, and broadcast and radio corporations. It also plays a critical role in providing universal broadband and telecommunications access, and authorizing facilities associated with wireline and wireless build-outs. Yet the FCC fails to fulfill its mandatory duties under the National Environmental Policy Act (NEPA) in multiple and significant ways. 2 ….”
“Applicants and licensees submit no documentation of their determination that their project is categorically excluded, and the agency does not track categorically excluded actions. With the applicant conducting the initial environmental review of whether the project is categorically excluded by assessing the list of extraordinary circumstances (i.e., the NEPA checklist), as well as preparing the environmental assessment, the burden falls on the public to learn of the proposed action and to raise a potential effect.
But categorically excluded actions, including authorization of certain towers, do not receive public notice; only applications for towers that require registration (generally taller than 199 feet) are put on notice, and those may or may not have associated environmental assessments. In addition to towers under 200 feet not posing an air hazard, these stealth projects that the agency has no record of include small wireless facilities associated with 4G and 5G.
That the public has no access to this information is particularly problematic in the radio frequency context, where applicants are required to meet radio frequency emissions standards or submit an environmental assessment. If the applicants do analyze the checklist and radio frequency studies at all, they routinely categorically exclude small wireless facilities, despite growing public concern about radio frequency associated with such technologies. Without access to the documented checklist, the public has little to no basis on which to refute or comment on checklist conclusions on radio frequency. And given the streamlined process, citizens often find out about facilities only after they are built ….“
“Conclusion: Prospects for a More Accountable FCC
Clearly, the FCC’s NEPA process falls short of what NEPA and Council on Environmental Quality require.
• It ignores major federal actions requiring environmental review, such as its distribution to industry of billions of dollars that support build-outs for updated wireless service, or improperly deems certain major federal actions non-major federal actions to circumvent NEPA.
• Its NEPA rules create an unsupported and overbroad categorical exclusion so that, for example, satellite licensing and submarine cable licensing are excluded from review.
• With little oversight or tracking, it delegates environmental review of NEPA determinations to industry proponents of the project.
• It fails to vigorously enforce its rules so that industry noncompliance is rampant.
• It fails to provide adequate notice and opportunities for public comment.
• It fails to make environmental documents, including radio frequency emissions studies, publicly available or readily accessible.
• It routinely ignores or dismisses public comments and concerns and places an unfair burden of proof on the public when it raises concerns.
• Its NEPA rules create an unsupported and overbroad categorical exclusion so that, for example, satellite licensing and submarine cable licensing are excluded from review.
• With little oversight or tracking, it delegates environmental review of NEPA determinations to industry proponents of the project.
• It fails to vigorously enforce its rules so that industry noncompliance is rampant.
• It fails to provide adequate notice and opportunities for public comment.
• It fails to make environmental documents, including radio frequency emissions studies, publicly available or readily accessible.
• It routinely ignores or dismisses public comments and concerns and places an unfair burden of proof on the public when it raises concerns.
These practices serve to facilitate deployment for carriers while ignoring environmental rules and the public. Besides environmental costs, the FCC’s approach bespeaks a lack of transparency and accountability that undermines good governance and erodes democracy. It also bespeaks an agency completely captured by the entities it is tasked with regulating.
Recent Biden-era NEPA implementing rules 60 require agencies to revisit their NEPA rules and procedures by September 2023. 61They also require that the agencies have the capacity to comply with NEPA, 62 something the FCC has to date lacked. Perhaps when Council on Environmental Quality reviews the FCC’s procedures this time, it will scrutinize the rules more carefully and hold the agency to a higher standard for NEPA compliance.”
