The Federal Communications Commission has taken a very tiny step toward eliminating unnecessary obstacles to the installation of communications facilities on existing structures without triggering historic review obligations. For the last year, the FCC has been reviewing the various regulatory obstacles that are hindering, delaying, and making more expensive the process of establishing new cell sites. The need for reform in this area is widely acknowledged to be increasingly urgent since 5G technology will require the installation of thousands, or even hundreds of thousands, of small cell locations in the next five years. Both large and small cells are currently covered by onerous environmental and historical review. These obligations require archeological excavations, extensive (and expensive) consultation with Indian tribes, and other machinations to ensure that no historical or tribal artifacts will be affected by the installation of a new communications facility on an existing telephone pole, a building, a treehouse, or other structure.
The FCC has somewhat dubiously declared that installation of communications facilities in, or on any new or existing structure (with a few exceptions), constitutes a “Federal undertaking” that triggers review obligations under historic preservation laws. It is now, to its credit, taking steps to ameliorate the significant adverse effects of subjecting virtually all communications installations to these procedures.
The FCC in a 2014 Order eliminated, or severely circumscribed, the circumstances where historic review is required for small, unobtrusive installations in or on existing structures. It then opened a wider inquiry into the entire gamut of municipal, tribal and historical obstacles to prompt cell site construction. The comment cycle in that Docket has been closed since the summer, so a decision on those matters may be out as early as the first quarter of next year. In the meantime, on Nov. 15, the Commission adopted a brief Order dealing with the low-hanging fruit of that policy review.
The current rules provide that replacement of an existing utility pole that has not gone through the historic review process triggers a full historic/tribal/environmental review if the new structure is going to hold a small wireless transmitter. Since these would normally be economical and natural places to install small 5G facilities, the need for a burdensome review posed a needless obstacle to using such replacement poles. The FCC made the realistic determination that simply replacing an existing pole with no new disturbance of the ground was unlikely to create any new threat to protected sites. The FCC did grudgingly allow the replacement poles to be up to 10 percent taller than the original pole, but no new ground can be disturbed (a difficult proposition for the poor soul who must install a new pole in the ground without enlarging ̶ even by a scintilla ̶ the hole in which the pole is fixed). One thinks uncomfortably of Portia reminding Shylock, in Shakespeare’s The Merchant of Venice, that while he may freely remove his pound of flesh from Antonio, he may not take even one molecule more than that or face imprisonment.
The new pole also must be similar in “quality and appearance” to the old pole. Presumably, lots of weathered campaign posters, lost pet notices, and garage sale signs will have to be affixed to the new pole to recreate the historical ambiance of the old one.
So while the new rule does grant some relief in a subset of sites where 5G facilities could ideally be situated, the highly circumscribed limits of the relief show just how difficult it is to escape the pervasive reach of the historic preservation laws once something is deemed a “federal undertaking.” Hopefully, for the wireless and tower industry, broader relief is on the way.
Disclaimer: At the time of publication, the final Order has not yet been published; We will update with a link when the final Order is released.
On November 20 this blog was updated with the final Order.