The NEPA process is triggered by a Major Federal Action (MFA) significantly affecting the quality of the human environment.  42 USC 4332(2)(C).   The  2022 CEQ rules define MFAs  broadly to “include new and continuing activities, including projects and programs entirely or partly financed, assisted, conducted, regulated, or approved by Federal agencies; new or revised agency rules, regulations, plans, policies, or procedures; and legislative proposals.” MFAs “tend to fall within one of the following categories:

(i) Adoption of official policy, such as rules, regulations, and interpretations adopted under the Administrative Procedure Act, 5 U.S.C. 551 et seq. or other statutes; implementation of treaties and international conventions or agreements, including those implemented pursuant to statute or regulation; formal documents establishing an agency’s policies which will result in or substantially alter agency programs.

(ii) Adoption of formal plans, such as official documents prepared or approved by Federal agencies, which prescribe alternative uses of Federal resources, upon which future agency actions will be based.

(iii) Adoption of programs, such as a group of concerted actions to implement a specific policy or plan; systematic and connected agency decisions allocating agency resources to implement a specific statutory program or executive directive.

(iv) Approval of specific projects, such as construction or management activities located in a defined geographic area. Projects include actions approved by permit or other regulatory decision as well as Federal and federally assisted activities.” 40 CFR 1508.1(q)(3)

Although NEPA is often associated with projects like authorizing, funding, or building  highways  or dams or holding a timber sale,  “actions” are actually much broader.

The 2023 amendments narrowed NEPA’s applicability.  An amendment has added the undefined term of “substantial” to modify “federal control and responsibility.”   The section also states that a MFA does not include a non-Federal action with no or minimal funding or minimal Federal involvement where a Federal agency cannot control the outcome of the project. The Phase 2 CEQ rules, when finalized, will reflect these changes.

NEPA has three levels of review, depending on the significance of the potential effect (which depends on the context and intensity of the action): 

• ­­Environmental Impact Statements (EIS’s): where impacts will be significant, a detailed analysis and disclosure of actions and alternatives.
• ­Environmental Assessments: for actions that may have a significant effect. If no significant effect is found after review, the agency issues a Finding of No Significant Effect (FONSI).  If significant effects are found, an EIS is required.  Programmatic EAs (analyzing programs, policies, or programs) are also possible.
• Categorical exclusions (CE,  CatEx):   for actions or types of actions that normally have minimal or no impacts on the environment-both individually and cumulatively. The most streamlined review.

Agencies are supposed to document and create categories of actions that do not have significant effects, either individually or cumulatively.   “Extraordinary circumstances” are circumstances like the presence of wetlands, sensitive ecosystems, or the presence of endangered species that remove an action from a CatEx and require more NEPA analysis. Both  EAs and EISs require consideration of some alternatives and an opportunity for public comment.

The FCC has never done an EIS.  It has done one programmatic Environmental Assessment.  On March 13, 2012, the Wireless Telecommunications Bureau (WTB) released a Final Programmatic Environmental Assessment (PEA) that evaluates the potential environmental effects of the FCC’s Antenna Structure Registration. The PEA considered: 1) alternatives to address potential environmental effects; and 2) whether more extensive analysis, in the form of a programmatic Environmental Impact Statement (PEIS) may be required under the National Environmental Policy Act (NEPA), under each of the alternatives.

The PEA responded to a Court of Appeals for the District of Columbia Circuit ruling in American Bird Conservancy v. FCC (516 F.3d 1027 (2008)) holding that the FCC had not adequately evaluated the potential effects of the Antenna Structure Registration System (ASR) program on threatened and endangered species and migratory birds.

NEPA and CEQ rules define ”effects”  broadly to  include ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative. Effects may also include those resulting from actions which may have both beneficial and detrimental effects, even if on balance the agency believes that the effects will be beneficial.

As a federal agency, the Federal Communications Commission (FCC)  FCC must comply with NEPA.  All MFAs–e.g., licensing satellite launches and earth stations, funding wireline build-outs and broadband, revising RF standards, registering towers and devices–must go through NEPA review.  However, the FCC has fallen far short of NEPA compliance (see below).  Actions that will have significant effects require EISs, yet the agency has never done an EIS.  Agencies can also do Programmatic EAs and the FCC has done only one in response to a lawsuit, which looked at the impacts of towers on birds. (See above.)

FCC’s NEPA procedures deviate from the norm in several ways.  Most agencies consider which of their actions are MFAs and create a list of categorically excluded actions.  The FCC’s procedures, on the other hand, deem all actions but for those that fall into certain categories as excluded.  Those few categories represent extraordinary circumstances that trigger an environmental assessment.  47 CFR  1.1307. These categories are referred to as “the NEPA checklist.”

The categories of facilities on the checklist are those that:  

4. Will be located in an officially designated wilderness area;
5. Will be located in an officially designated wildlife preserve; (since these two categories of extraordinary circumstances are generally on federal land,  the FCC defers to the land management agencies for NEPA compliance)
6. May affect listed or jeopardize proposed threatened or endangered species (TES) or designated critical habitat;  if formal consultation is required, the FCC does it with the FWS. (ESA)
7. May “affect districts, sites, buildings, structures or objects significant in American history, architecture, archaeology, engineering  or culture that are listed, or are eligible for listing in the National Register of Historic Places;”  (NHPA compliance)
8. May affect “Indian religious sites;”
9. Will be located in a floodplain, unless they are raised above base floodplain elevation;
10. Whose construction will involve “significant change in surface features (e.g., wetland fill, deforestation or water diversion);” or
11. Would be over 450 feet above ground level and therefore may affect migratory birds. 
12. Involve high intensity lighting in a residentially zoned area, or
13. 10.Would cause RF emissions exposure in excess of FCC–established limits

If any of these circumstances are met, Environmental Assessments are required.

Furthermore, most agencies include a notice and comment period  which gives the public an opportunity to comment on a proposed action and requires an agency response in the environmental documents.    The FCC’s process, on the other hand,  sets up a complaints process.  If the agency finds the complaint may have merit, it  in effect, forces the complainant  to litigate their case against the applicant by setting up a “pleading cycle” and unfairly places the burden of establishing an effect on the public.  The agency will adjudicate the complaint on the filings yet rarely finds any to have merit.  Other agency’s procedures simply allow commenters to  bring an issue to the agency’s attention  for consideration.   The FCC can also on its own initiative direct more environmental processing or an EA on a given effect, yet rarely does so.

All facilities constructed by or for FCC licensees (e.g., Verizon, AT&T) and hence, use licensed spectrum, or that must be registered in the FCC’s Antenna Structure Registration (ASR) System must comply with rules implementing the National Environmental Policy Act (NEPA) (47 CFR §1.1301 et seq.).

The FCC NEPA rules apply to all licensees and applicants:  commercial licensees, broadcasters, utilities, public safety entities, railroads, mining companies, tower registrants.  

Although arguably required to go through NEPA, the FCC fails to consider many, if not most,  of its MFAs under NEPA.  For example, it never reviews its billions of dollars in subsidies for building out networks.  Nor has it ever reviewed  the impacts of wireline projects.  (The Wall Street Journal series highlights how those wires can have significant environmental impacts.)

While NEPA is a federal obligation, the agency delegates the determination of whether an EA is required for a given facility to the applicant (i.e., the licensee, such as Verizon).  In other words, the applicant is required to do the due diligence of completing the NEPA checklist.  The applicant, who has a clear interest in finding that no EA is triggered, is not required to submit documentation of the reviews it did to conclude that the project should be categorically excluded.    At most, the applicant must certify on a license or registration application that its deployment will not have a significant effect on the environment.  The  FCC also delegates the drafting of the EA to the applicant. 

Other MFA’s, such as the licensing of underwater cables, have been categorically excluded in the regulations.  See 47 CFR 1.1306, Note 1.    Other actions, such as authorizing thousands of satellites, are in effect categorically excluded because the checklist fails to consider a breadth of effects or, as in the case of, for example, licensing earth stations, applicants never perform the checklist review required to certify that the proposed facility will have no significant effect; no guidance is offered to applicants explaining the due diligence required.  

The FCC does not consider cumulative effects of multiple small cells or towers.  It fails to consider impacts to environmentally sensitive sites such as coastal zones or specially designated places like Lake Tahoe or a designated battlefield.  It does not consider toxics or air or water pollution.  It does not consider perhaps the greatest impact from deployment of telecommunications infrastructure: aesthetics.  The exception is if any of these effects are raised by the public during comment period or by the agency on its own initiative.

Another potentially significant effect that the FCC fails to consider is the effect of RF exceedances (which is a human health-based standard) on birds, pollinators, other wildlife, and vegetation.  As a result, compliance methodology only looks at RF levels vis a vis where humans are located.

While most other agencies’ NEPA procedures have a notice and comment period as required under the CEQ rules, the FCC has a complaint period.  It routinely dismisses non-checklist effects raised by the public, and virtually never raises environmental effects on its own.

Antennas, poles fencing, roads, fiber and power connections, operation and maintenance should all be considered in a facility’s potential environmental effects.

If any of the circumstances on the NEPA checklist are met, EAs are required.

NEPA is an umbrella statute so the Endangered Species Act, National Historic Preservation Act and Section 404 of the Clean Water Act addressing wetlands all have their own processes and procedures that applicants must follow.  However, some impacts like the effects of tree removal have no bright-line test, so the FCC, and accordingly, the applicants,  tend to ignore those impacts.

Here is a link to guidance for applicants on how to meet their NEPA checklist obligations:   

https://us-fcc.app.box.com/s/f2rbaxbka6ni4e30jwun4nms6lbk18kf

Applicants must prepare RF compliance reports that confirm that a facility will operate within the RF safety limits.  However, if an applicant determines that the facility is categorically excluded, the RF study need not be submitted to the FCC.  When an environmental assessment is submitted, it should include an RF study demonstrating pre-construction compliance.

In addition, if RF exceedances are mitigated through, for example, signage and fencing, no EA is required, although this is a questionable practice under NEPA. RF compliance reports are only required for facilities that are not categorically excluded (meaning an EA will be submitted) and are part of the EA.  When mitigation addresses impacts to checklist extraordinary circumstances, such as with a wetland permit, best management practices for endangered species impacts, or a Memorandum of Agreement for historic resource protection, the agency similarly does not require an EA.  As a result, these projects are not publicly noticed.

Like all facilities that use licensed spectrum, rooftop antennas and small cells must comply with FCC NEPA rules.  47 CFR 1.1301 et seq.  The rules categorically exclude all of these actions from environmental review unless they involve certain types of sites or high intensity lighting, or exceed RF safety standards.  See 47 CFR 1. 1306. Certain facilities, such as those in designated rights of way and of specific heights, are only subject to National Historic Preservation Act (NHPA) review (47 CFR 1.1307(a)(4)) as well as to review for RF standards compliance (47 CFR 1.1307(b)).  See 47 CFR 1.1306.

To ascertain if a facility is categorically excluded, the rules require applicants or licensees to perform the NEPA checklist.  See 47 CFR 1.1307. However, the rules exempt certain deployments, e.g., rooftop antennas or other collocations, from environmental review but for NHPA review and RF review.  Note 1 to Section 1.1306 provides:

The provisions of § 1.1307(a) requiring the preparation of EAs do not encompass the mounting of antenna(s) and associated equipment (such as wiring, cabling, cabinets, or backup-power), on or in an existing building, or on an antenna tower or other man-made structure, unless § 1.1307(a)(4) is applicable. Such antennas are subject to § 1.1307(b) of this part and require EAs if their construction would result in human exposure to radiofrequency radiation in excess of the applicable health and safety guidelines cited in § 1.1307(b) of this part. ***  The use of existing buildings, towers or corridors is an environmentally desirable alternative to the construction of new facilities and is encouraged. ***

The requirements for historic review of collocations are set out in the Nationwide Programmatic Agreement for the Collocation of Wireless Antennas https://wireless.fcc.gov/releases/da010691a.pdf  and for historic review in general in the  Nationwide Programmatic Agreement Regarding the Section 106 National Historic Preservation Review Process. https://www.fcc.gov/document/nationwide-programmatic-agreement-regarding-section-106-national-0   https://docs.fcc.gov/public/attachments/FCC-04-222A1.pdf

Accordingly, to comply with FCC NEPA rules, licensees deploying rooftop antennas and small cells must only perform the due diligence associated with RF and historic preservation to ascertain if an EA is required.  For a review of how small cells are treated, see  Workshop on Environmental Compliance and Historic Preservation Review Procedures 2023

https://www.fcc.gov/news-events/events/2023/11/workshop-environmental-compliance-and-historic-preservation-review-2023 (minutes 2:25-2:36) 

Still,  rooftop antennas may potentially be classified as components of an “antenna farm“ which would require RF studies of the cumulative RF emissions.  Note 3 to Section 1.1306 provides:  

The construction of an antenna tower or supporting structure in an established “antenna farm”: (i.e., an area in which similar antenna towers are clustered, whether or not such area has been officially designated as an antenna farm), will be categorically excluded unless one or more of the antennas to be mounted on the tower or structure are subject to the provisions of § 1.1307(b) and the additional radiofrequency radiation from the antenna(s) on the new tower or structure would cause human exposure in excess of the applicable health and safety guidelines cited in § 1.1307(b).

For more on NHPA compliance for small cells, see https://transition.fcc.gov/presentations/05122015/jill-springer-1.pdf

If the applicant  determines that their project is categorically excluded after a checklist review (and assuming all local authorizations have been obtained), the applicant can build. Applicants do not submit NEPA checklist documentation to  the agency.  If, following NEPA checklist review, an EA is triggered, then the applicant must wait until it receives a Finding of No Significant Impact (FONSI) from the FCC before building.  EA reviews generally take around 45 days.

Even with a license, building without following environmental rules at 47 CFR 1.1301-1.1319 can constitute a violation of the  NEPA rules and licensing and registering requirements, and could theoretically subject the constructing party to enforcement action.

The FCC’s antenna structure registration (ASR) system links to the NEPA regulations in that registering an antenna requires the applicant to certify that it has complied with NEPA. The regulations require pre-construction registration for any structure housing antennae for FCC-licensed spectrum that requires notice to the Federal Aviation Administration (FAA) for painting and lighting requirements.   Notice to the FAA is required when antenna structures are over 200 feet, in a glide slope, or require a No Hazard Determination for some other reason.

Although originally addressing aviation safety, the ASR regulations now also establish environmental notification requirements (both local and national 30-day notice) which generally registrants must comply with.  

ASR requirements apply to the tower owner, which may be a third party and not an FCC licensee.  Because registration is the federal action triggering NEPA, the environmental requirements apply to non-licensee owners of registered towers. In addition, non-licensee owners of towers that do not otherwise require registration use the ASR process as the vehicle for filing EAs where an EA is required. This ensures that the tower is readily available for collocation by licensees whose facilities must comply with NEPA requirements.

EAs are attached to the specific ASR application, which goes on notice for 30 days. No list of EAs is independently available.  For non-registered facilities (e.g., small cells with no EA, short towers with no EA), no documents are available.

Cat exed projects do not submit paperwork to FCC and do not go on notice.

For towers applying for registration on ASR, the public has a 30-day notice and comment period.   If an EA has been submitted on ASR, the public has a 30-day notice and comment period.

For non-registered facilities, the public has no timeline to comment, because there is no associated notice.  Nevertheless, in practice,  the appropriate time would be after checklist review but before the project is built. However,  getting information on the checklist or timeline is difficult for the public.

Under FCC practice, comments are deemed complaints.  Although NEPA is a federal obligation, and despite the holding  in American Bird Conservancy, Inc. v. FCC, 06-1165., https://docs.fcc.gov/public/attachments/DOC-285903A1.pdf the FCC places the burden of proof on the complainant to establish a potentially significant effect, not simply raise it.  The FCC in effect sets up an adversarial process with pleadings filed by the applicant and the complainant.  The complainant must establish a potential  effect, not just raise it, or must have evidence that applicant did not perform the checklist, or built prematurely (i.e., began clearing before it  got FONSI or completed the NEPA checklist).  The FCC can on its own motion order more environmental processing, but it is virtually unheard of for it to do so.

The FCC considers if the complaint has any merit and if so, it sets up a pleading cycle for the parties.  The final EA does not respond to the comments/complaints.  Unfortunately, it is extremely rare for a complaint to stop a deployment.  Deployments can be slowed by the pleading cycle but likely will be built. At most, the agency may  order an EA  for a categorically excluded project,  a visual study, or some mitigation, but again these actions are extremely rare.

Aesthetic impacts are not part of the checklist;  the public must raise them-or the FCC can raise them on its own, but rarely, if ever does.  In terms of how the FCC considers aesthetics, it only considers a limited set of aesthetics, e.g., impacts to National Scenic Trails and National Parks, although nothing in NEPA limits aesthetics to those few designated sites. NHPA reviews consider visual impacts but not every visual effect is to a designated historic property.

A member of the public can ask that  local authorities  request the RF study (and NEPA checklist) or require testing post-construction. The public can also conduct  post-construction tests and report exceedances to FCC or local authorities.  However, FCC enforcement of RF exceedances is rare. Local permitting agencies may request NEPA documentation as a requirement for permit issuance.

Environmental violations have historically not been a priority for the  FCC Enforcement Bureau or the FCC.   Enforcement actions are rare as, in general, the agency is reluctant to enforce against various entities such as Tribes and state and local governments and under various circumstances such as when damage is negligible.  It also is stymied by a one year statute of limitations that applies to when the illegal activity occurred (e.g., constructing a tower before receiving a FONSI or without environmental review) rather than when it learns of the violations.  

Nevertheless, the FCC has enforced against Verizon  in 2022 and Sprint Mobilite in 2020.  

CEQ rules are expected at the end of 2023.  Agencies will likely have to update their NEPA procedures by the end of 2024.