Some poles are history.
The Federal Communications Commission might have given us a preview of what its intended preemption of state and local discretion over wireless sites will look like. Later this month, commissioners will vote on whether or not to exempt replacement utility poles, that are used to support new wireless facilities, from historical preservation reviews. At the top level, it’s about extending an existing historical review exemption for towers to utility poles that aren’t presently supporting wireless equipment. (As a practical matter, pretty much any pole that’s being used for wireless purposes already qualifies as a tower).
But it isn’t much of a leap to read the narrow language regarding historical reviews, and imagine it being turned into the basis for a general preemption of state and local laws…
Small cell antennas are much smaller and less obtrusive than traditional antennas mounted on macro cell towers, but a far larger number of them will be needed to accomplish the network densification that providers need, both in order to satisfy the exploding consumer demand for wireless data for existing services and in order to implement advanced technologies such as 5G. We find that excluding the pole replacements at issue here from review under [historical preservation regulations] will allow providers to complete these deployments more efficiently. In addition, creating an exclusion for replacement of utility poles will promote consistency between the process that carriers and pole constructors must follow to comply with our historic preservation review requirements and those they must follow when building replacement poles that are subject to the requirements of other agencies applying [rules regarding federal lands].
Under the terms of the draft FCC order, if replacement poles aren’t of historical interest themselves and are “situated in the same hole as the original pole, are no more than 10 percent taller than the original pole, and are consistent with the quality and appearance of the original pole”, they will be exempt from historical preservation requirements. For now, the FCC isn’t extending another exemption criteria – “20 feet plus the height of an antenna array” – to replacement poles, but only because of the potential impact on historical sites.
This effort at the FCC is separate from a push in the U.S. senate to effectively wipe out local government property rights and strictly limit permit authority regarding poles and other vertical assets targeted by wireless companies.
Any bets on how the FCC’s general preemption of wireless site reviews will eventually read?
Well that didn’t take long. Just a couple of working days after a pair of U.S. senators introduced a modest and sane bill to streamline federal permitting for wireless projects – S–1988, aka the Speed Act – there’s a call to double down and go after state and local approval processes too. Except it’s not from a lobbyist or trade association that wants to add perks to the bill.
It’s from someone who already has the authority to big foot state and local authority at will, at least if he can convince a couple of his colleagues to go along with it. Commissioner Michael O’Rielly, one of the three republicans who form the majority on the Federal Communications Commission, released a statement yesterday that makes it clear that he’s ready to move, full speed ahead…
I applaud Senators Wicker and Cortez Masto for introducing the SPEED Act. This bipartisan effort to ease and accelerate the deployment of broadband technology would put an end to some of the excessive delays industry experiences when siting facilities. While this is a helpful first step, it reaffirms my belief that preemption is necessary to prevent unnecessary and costly barriers to small cell deployment.
Just to be clear, what Wicker (R – Mississippi) and Cortez Masto (D – Nevada) are proposing isn’t preemption. They are federal lawmakers who are proposing a change to the way that federal agencies enforce federal environmental and historical standards. That’s their job.
The Speed Act would have a greater impact in states that rely on federal rules as default policy, but that’s a choice policymakers in those states have made and they’re free to change their minds at any time. Here in California, the California Environmental Quality Act (CEQA) generally governs. It has serious problems – even Jerry Brown once said that to reform CEQA is to do “the Lord’s work” – but fixing it is our job, not DC’s.
The FCC has a proceeding underway that began life tilted toward the presumption that state and local governments would face further preemption of wireless siting discretion. O’Rielly is signalling that the tilt has turned into a dive.
Just don’t disturb the ground.
A bipartisan bill introduced in the U.S. senate aims to put some common sense into environmental law, at least where wireless facilities are concerned. Co-authored by U.S. senators Roger Wicker (R – Mississippi) and Catherine Cortez Masto (D – Nevada), senate bill 1988, aka the Speed act, would exempt a “communication facility installation” from federal environmental and historic reviews, if there’s already infrastructure in place in the project area.
Wireless infrastructure gets additional exemptions. Federal, state and local agencies would be barred from conducting reviews otherwise called by the National Environmental Policy Act (NEPA) or requiring others to do so if the proposed wireless facility is:
- In an existing public right of way, and
- Any ground disturbance is limited to that right of way, and
- The structure is no more than 50 feet tall or 10 feet higher than existing structures already in that right of way, whichever is higher, and has no guy wires.
There’s no blanket preemption of local and state authority in the bill. The exemptions are limited to federal law. It specifically says that “nothing in this section shall be construed to affect…the authority of a State or local government to apply and enforce the zoning and other land use regulations of the State or local government to the extent consistent with” federal law.
Its effect in California will be limited. Here, NEPA generally applies only when federal agencies or land is involved in a project. Usually, it’s the California Environmental Quality Act (CEQA) that governs environmental reviews and it would not be affected by the bill as currently written.
I would not give S-1988 much of a chance of making it into law as is, though. The big reason is that telecoms bills – even widely supported bipartisan ones – have gotten stuck in congressional gridlock over the past couple of years. If it gets unstuck, telecoms lobbyists will try to add perks, particularly ones that would similarly preempt state and local laws. Some or all of the language could also get rolled into other bill, such as happened with dig once legislation, which was incorporated into, and then cut from, the still-stalled Mobile Now act.