Today, we submitted comments to the CTIA concerning the implementation of the National Environmental Policy Act Click here to download a full PDF of the testimony.
Re: CTIA Petition for Rulemaking on the Commission's National Environmental Policy Act Rules (Docket No: RM-12003)
Dear Ms. Dortch:
The Foundation for American Innovation (FAI) welcomes this proceeding and we commend Chairman Carr for its initiation. The Foundation for American Innovation respectfully submits these comments in response to the Wireless Telecommunications Bureau's Public Notice (DA 25-290) seeking comment on CTIA – The Wireless Association’s (“CTIA”) Petition for Rulemaking to update the Commission’s rules implementing the National Environmental Policy Act (“NEPA”).
We strongly support CTIA’s request that the Commission update and streamline its NEPA rules to facilitate wireless broadband deployment across the country, particularly its proposal that wireless facility deployments pursuant to a geographic area license that do not require antenna structure registration should not be considered major federal actions under NEPA.
The Fiscal Responsibility Act of 2023 (FRA) amended NEPA for the first time in decades, with the goal of focusing environmental review on truly significant federal actions and speeding up the review process. These statutory amendments provide a clear directive and legal basis for the Commission to adopt CTIA's proposals and further streamline NEPA implementation for the wireless industry.
Given these statutory changes, we further support CTIA’s request that the Commission “[i]mplement other reasonable reforms to the Commission’s NEPA procedures consistent with statutory mandates, recent Presidential directives, and actions by CEQ,” but ask that the Commission not limit itself to only reviewing NEPA’s impact on wireless industry. The Commission should take this opportunity to take a holistic view of the burdens that NEPA presents for all industries under its jurisdiction and to cut red tape that is limiting broadband deployment across the country.
The FRA's Amendments to NEPA Support CTIA's Request to Narrow the Definition of "Major Federal Action"
The FRA defines a "major Federal action" as "an action that the agency carrying out such action determines is subject to substantial Federal control and responsibility" (42 U.S.C. § 4336e(10)). This statutory language expressly excludes from NEPA review:
- Projects with no or minimal federal funding
- Projects with no or minimal federal involvement where a federal agency cannot control the outcome of the project
- Loans, loan guarantees, or other forms of financial assistance where a federal agency does not exercise sufficient control and responsibility over the subsequent use of such financial assistance or the effect of the action
- Activities or decisions that are non-discretionary and made in accordance with the agency's statutory authority
Based on this statutory language, the Commission should adopt a two-part test to determine whether an action constitutes a "major Federal action" requiring NEPA review: meaningful agency discretion and substantial federal involvement.
Part A — Meaningful Agency Discretion
The Commission should first determine whether it exercises meaningful (non-ministerial) discretion over the action. This involves assessing whether the Commission can do more than verify compliance with a standard checklist or threshold.
For wireless facility deployments pursuant to a geographic area license that do not require antenna structure registration, the Commission's role is often limited to confirming compliance with technical standards. In many cases, the Commission cannot deny or modify such deployments based on environmental factors beyond those already addressed in categorical exclusions. When the Commission's role is ministerial rather than discretionary, NEPA review should not apply.
Part B — Substantial Federal Involvement
If Part A is satisfied, the Commission should determine whether its involvement is "substantial" rather than minimal. Substantial involvement could be indicated by:
- Significant federal funding (approximately 25 percent or more of total project costs)
- Critical operational control or technical expertise
- Exercise of eminent domain authority
For most wireless facility deployments under geographic area licenses, the federal involvement is minimal. The Commission does not provide funding, does not exercise operational control, and does not exercise unique federal authorities like eminent domain. Therefore, these deployments generally fail Part B of the test and should not be considered major federal actions under NEPA.
Only if both Part A (meaningful discretion) and Part B (substantial involvement) are satisfied should the Commission consider an action to be a "major Federal action" subject to NEPA review.
The Commission Should Expand Categorical Exclusions for Wireless Deployments
The FRA defines a "categorical exclusion" as "a category of actions that a Federal agency has determined normally does not significantly affect the quality of the human environment" (42 U.S.C. § 4336e(1)). The key term is "normally," which allows for a practical, evidence-based approach to determining which actions should be categorically excluded.
We recommend that the Commission adopt an empirical, data-driven approach to determine when a category of actions "normally" has no significant effects. Specifically, if historical data shows that a substantial majority (e.g., more than 70 percent) of a category of actions has resulted in Findings of No Significant Impact (FONSIs), that category should qualify for a categorical exclusion.
For wireless facility deployments, the track record strongly supports expanded categorical exclusions. The vast majority of Environmental Assessments (EAs) for wireless facility deployments result in FONSIs, indicating that these actions typically have no significant environmental impact. This empirical reality justifies broadening the Commission's categorical exclusions to cover more types of wireless deployments.
The Commission should maintain an "extraordinary circumstances" review process to ensure that unusual cases with potential for significant impact receive appropriate attention. This balanced approach would allow routine deployments to proceed efficiently while preserving environmental safeguards for exceptional situations.
The Commission Should Not Limit Itself to Wireless Telecommunications
While CTIA’s petition appropriately focuses on wireless broadband, and this public notice is rightly promulgated by the Wireless Bureau, the Commission should not confine its NEPA reform efforts to a single segment of the communications sector. The 2023 amendments to NEPA under the FRA provide a clear and legal mandate and opportunity for the FCC to revisit how environmental review requirements apply across all infrastructure under its jurisdiction.
Other broadband delivery technologies face similar regulatory burdens under NEPA that merit reconsideration. Cable operators expanding or upgrading broadband networks, particularly in rural or underserved areas, often encounter NEPA-triggered delays when laying new fiber or coaxial lines, even where the projects involve minimal or no federal funding. Fixed wireless providers, which deliver broadband through rooftop antennas or utility pole-mounted equipment, typically rely on geographic area licenses and undertake deployments with little federal oversight—circumstances that mirror those in the wireless context and that would not appear to meet the updated definition of a “major Federal action.” Similarly, ground infrastructure for satellite internet, including user terminals and gateways, is increasingly common and often installed on private property with negligible environmental impact and limited federal involvement.
It has long been the policy of the United States that closing the digital divide requires a tech-neutral, everything-under-the-sun approach. With federal programs like the Broadband Equity, Access, and Deployment (BEAD) Program preparing to deploy tens of billions of taxpayer dollars to support broadband buildout, the Commission should make it a priority to ensure that the goal of universal broadband access is not unduly hampered by NEPA. While the BEAD Program itself is not under the Commission’s jurisdiction, its efficacy will be heavily impacted by FCC rules and restrictions. We would support any effort by the Commission to strongly reform NEPA requirements for federal programs that are aimed at closing the digital divide.
The Commission should take a holistic view of its NEPA obligations and not restrict reform to the wireless sector alone. A consistent, technology-neutral approach that aligns with the new statutory framework would help reduce deployment delays, increase regulatory clarity, and ensure that environmental protections are targeted toward projects with genuinely significant federal involvement or environmental effects.
Conclusion
All government agencies should regularly review their rules and regulations to determine whether their benefits, or purported benefits, outweigh their costs—including the burdens placed on businesses, government resources spent enforcing the rules, and potential market distortions. The FCC oversees highly regulated industries that regularly encounter NEPA requirements, but the technology to accommodate environmental concerns has greatly improved since these rules were first implemented. As the markets in which these companies compete have overwhelmingly become more competitive and dynamic, it is particularly important that the Commission look to reduce regulatory burdens on these industries by NEPA.
The FRA provides a clear directive and legal basis for the Commission to streamline its NEPA implementation. By redefining "major Federal action" to exclude wireless facility deployments with minimal federal involvement, expanding categorical exclusions based on empirical data, clarifying the definition of "significant effect," and focusing EIS analysis on reasonably foreseeable effects, the Commission can fulfill its statutory obligations while expediting wireless broadband deployment across the country.
We strongly support CTIA's petition for rulemaking and encourage the Commission to adopt these proposed reforms. These changes would maintain environmental safeguards while reducing unnecessary regulatory burdens and delays in wireless infrastructure deployment.
Sincerely,
Thomas Hochman
Director of Infrastructure Policy
Foundation for American Innovation
Luke Hogg
Director of Technology Policy
Foundation for American Innovation
