NEPA Strategies

NEPA = National Environmental Policy Act

The Young Turk’s: The Conversation with Devra Davis, PhD — Why Densified 4G/5G is Hazardous

Executive Summary

The NEPA strategy it is a two-step process, described here, as you can read on this page –>

. . . the steps were formulated after speaking to three FCC attorneys on 12/12/19.

The words the FCC used on 12/12/19 were that each Wireless Telecommunications Facility (WTF) application requires "NEPA review" (which really means a "self-policed" letter written by the applicant, a letter that does not need to be verified by any party). The benefits of the strategy are what happens before the letter(s) hit the file(s) and shortly after the letter(s) hit the file(s).

A separate letter is needed for each application. This is not a "small cell" specific requirement. It applies to every WTF application in the USA. See an example of an industry NEPA Letter here –>

This is the opportunity:

  1. If there are no NEPA letters in the Wireless Telecommunications Facilities (WTFs) files, you can insist that your City or County write a letter to the applicant, declaring the applications incomplete; Benefit: things remain on hold until the NEPA letters show up. The letters may or may not include a checklist or any analysis, at all.
  2. As soon as the letter(s) arrive, you have a second opportunity: see options [a], and [b], below

      a. Convince your city to declare the application(s) incomplete a second time, because of the substantial evidence that you bring that shows that the "construction of the facilities has been a source of controversy on environmental grounds in the local community." Feel free to add as many pdfs of evidence as you wish . . . the more the better. See if the City will forward the evidence to the FCC (at least to so they will open a file at the FCC, which requires the FCC to inspect the records and make a determination if the application requires an Environmental Assessment

      b. If your City is not willing to do [a] above, you can send the evidence directly to the FCC, but you may not benefit from the City officially stopping the shot clocks(s). That is the real benefit of [a].

Either [a] or [b], achieves the goal of burying the FCC and forcing them to do their jobs.

Any City Attorney’s or County Attorney’s opinion on this matter is immaterial. This is strictly a Federal issue between the applicant and the FCC. You can play the valuable role of police-person, turning the table on the Wireless industry. Isn’t that refreshingly nice?

12/16/19 Conference Call Agenda

  • Insufficiency of the FCC’s response to the 8/9/19 DC Circuit Ruling in Case 18-1129

  • Steps to force the FCC to process Small Cell applications in order to determine if an EA is necessary — for each individual Small Cell Application that the public opposes citing substantial written evidence of controversy in the community for said small cell.

  • Steps to oppose FCC 19-126 —>

  • Wireless Telecommunications Facility (WTF) Shot Clocks
    The basis for the shot clocks defined in FCC 18-133 (no environmental review needed) was vacated on 12/5/19. Any Federally mandated shot clock for Wireless Telecommunications Facilities (WTFs) are not consistent with the legislative intent of the 1996 Telecommunciations Act:

"Under subsection (c)(7)(B)(ii), decisions are to be rendered in a reasonable period of time, taking into account the nature and scope of each request. If a request for placement of a personal wireless service facility involves a zoning variance or a public hearing or comment process, the time period for rendering a decision will be the usual period under such circumstances. It is not the intent of this provision to give preferential treatment to the personal wireless service industry in the processing of requests, or to subject their requests to any but the generally applicable time frames for zoning decision."

>>> Attorney M wrote on 12/16/2019 9:04 AM:

There’s potential or actual deadlines for several of the items you mention, and are coming soon. More than 30 days have passed since the FCC formally removed the rules vacated in Keetoowah, so the deadline may have passed already for any required FCC filings, depending on the arguments folks want to assert and if they want to or must raise them at FCC.

The traditional 60-day deadline for petitions for review in appeals court probably does not apply here, but FCC would likely argue it does and would probably say did not exhaust remedies at FCC. I think, though the FCC’s claimed noncompliance should be challenged under a different mechanism, such as a motion to enforce mandate (usually affected through writ of mandamus). The mandate was issued on 10/7 but withheld until 10/7 to see if anyone filed for rehearing and then released when none came in. Although there is no set deadline for writs of mandamus you don’t want to sit on your hands, else you suffer potential laches.

The recent health effects order was issued on 12/4. Part was a final order and part was NPRM. If you want rehearing of the final order part you have an upcoming deadline. If you plan to go to appeals court, same but is about 30 days farther out. Rehearing would be hard to get together. First appeals court filing would be far simpler, but there are some mandatory contents.


Any locality can/should build in an application requirement for substantial written evidence in the public record for both CEQA and NEPA review for each and every Wireless Telecommunications Facility (WTF) application.

Attorney S and I held a 30-minute conference call with three Senior FCC attorneys on Dec 12, 2019: Goldschmidt, Rosenberg and D’Ari (see below)

Wireless Telecommunications Bureau
Competition & Infrastructure Policy Division

Attorney S and I prepared a series of questions regarding how the world of processing Wireless Telecommunications Facility (WTF) applications changed on Dec 5, 2019 (the effective date of the FCC October Order) re: vacating the NEPA exemption for small Wireless Telecommunications Facilities (sWTFs)

As of Dec 5, 2019:

  1. There are no longer any sWTF-specific FCC NEPA regulations; every sWTF application will be processed under the old NEPA rules (the FCC rules that were promulgated for macro towers, years ago).

  2. This necessarily means that there is a now a large hole in the FCC NEPA regulations: despite a specific definition of sWTFs as a distinct class of WTFs in, the Final Rules that became effective on 12/5/19.

  3. This also means that the envisioned 800,000 unit WTF expansion has undergone no FCC analysis, deliberation or rulemaking regarding NEPA-compliance for this distinct class of sWTFs.

  4. If those with standing (including the NRDC or Edward B. Myers) believe that the action taken by the FCC in October 2019 (that became effective on 12/5/19) is not sufficiently responsive to the 8/9/19 Ruling, then they (or others with standing) can challenge the FCC October Order in the DC Circuit Court of Appeals, because the matter is still active and the judges still have jurisdiction over Case 18-1129.

  5. Every individual sWTF application must undergo NEPA review. Therefore, every sWTF application in the USA is incomplete until the applicant places in the public record substantial written evidence of a NEPA review. I would ask your local city to write such a letter to each applicant, declaring each application incomplete and the reason for the declaration of incompleteness (no evidence of NEPA review).

  6. A NEPA review is a several step process that starts off with a letter written by the applicant (the Wireless Co. or its agent) stating whether or not the sWTF in the application requires an Environmental Assessment (EA). This is simply a letter that will not be verified by any party: not by the FCC, not by the State and not by the locality. As you can guess, these letters by applicants will simply state that no EA will be needed and may or may not provide any rationale.

  7. At this stage, the applicant’s NEPA letter could go unchallenged and the project could proceed — or — a member of the public could enter substantial evidence in the public record of "controversy on environmental grounds in the local community"; you can work with your city or county to do the following

    • Ask your city to send the applicant’s letter and the evidence provided by the public to the FCC at , so the FCC can open a new FCC case on this WTF. The locality then must wait for the FCC to render its eventual determination of whether or not an EA would be required.
    • If the City is unwilling to email this on your behalf, you can email the evidence to the following email address and open up the FCC case yourself:
    • Ask your city to send another letter to the applicant, once again, declaring the application incomplete until the locality receives substantial written evidence of the FCC’s determination of the need for an EA requirement.

Are you seeing the opportunity here? This is a chance to bury the FCC with boatloads of evidence against each and every single sWTF application. If every community does this for every sWTF application, then the FCC would have to open and resolve up to 800,000 cases and the FCC would have to wade through the public-supplied substantial written evidence (the more pdfs of evidence the better). This busy work could not be assigned to more deserving people and could grind the approval process to a halt. Delay is our friend, while we await the Ninth Circuit Ruling, which seeks to vacate FCC Orders 18-111 and 18-133.

This is some very current and, hopefully, helpful information. Merry Christmas and Happy Holidays

e-CFR data is current as of December 9, 2019

  • § 1.1301 Basis and purpose
  • § 1.1302 Cross-reference; Regulations of the Council on Environmental Quality.
  • § 1.1303 Scope.
  • § 1.1304 Information and assistance.
  • § 1.1305 Actions which normally will have a significant impact upon the environment, for which Environmental Impact Statements must be prepared.
  • § 1.1306 Actions which are categorically excluded from environmental processing.
  • § 1.1307 Actions that may have a significant environmental effect, for which Environmental Assessments (EAs) must be prepared.
  • § 1.1308 Consideration of environmental assessments (EAs); findings of no significant impact.
  • § 1.1309 Application amendments.
  • § 1.1310 Radiofrequency radiation exposure limits.
  • § 1.1311 Environmental information to be included in the environmental assessment (EA).
  • § 1.1312 Facilities for which no preconstruction authorization is required.
  • § 1.1313 Objections.
  • § 1.1314 Environmental impact statements (EISs).
  • § 1.1315 The Draft Environmental Impact Statement (DEIS); Comments.
  • § 1.1317 The Final Environmental Impact Statement (FEIS).
  • § 1.1319 Consideration of the environmental impact statements.
  • § 1.1320 Review of Commission undertakings that may affect historic properties.

§ 1.1311 Environmental information to be included in the environmental assessment (EA).

(a) The applicant shall submit an EA with each application that is subject to environmental processing (see § 1.1307). The EA shall contain the following information:

   (1) For antenna towers and satellite earth stations, a description of the facilities as well as supporting structures and appurtenances, and a description of the site as well as the surrounding area and uses. If high intensity white lighting is proposed or utilized within a residential area, the EA must also address the impact of this lighting upon the residents.

   (2) A statement as to the zoning classification of the site, and communications with, or proceedings before and determinations (if any) made by zoning, planning, environmental or other local, state or Federal authorities on matters relating to environmental effect.

   (3) A statement as to whether construction of the facilities has been a source of controversy on environmental grounds in the local community.

   (4) A discussion of environmental and other considerations which led to the selection of the particular site and, if relevant, the particular facility; the nature and extent of any unavoidable adverse environmental effects, and any alternative sites or facilities which have been or might reasonably be considered.

   (5) Any other information that may be requested by the Bureau or Commission.

   (6) If endangered or threatened species or their critical habitats may be affected, the applicant‘s analysis must utilize the best scientific and commercial data available, see 50 CFR 402.14(c).

Dec, 2019 Email Correspondence To/From the FCC

From: Paul D’Ari

Date: December 11, 2019 at 7:27 AM

Subject: Inquiry re environmental review requirement for telecom permits

As we discussed in our conversation yesterday, I am writing to clarify that the answers to the questions provided to Ms. Phoebe S. below reflect my own views and do not necessarily represent the views of the Federal Communications Commission.

Thank you,

Paul D’Ari
Senior Legal Counsel
Competition and Infrastructure Policy Division
Wireless Telecommunications Bureau
Federal Communications Commission

From: Paul D’Ari
Date: December 6, 2019 at 7:17:10 AM

Subject: Inquiry re environmental review requirement for telecom permits

Dear Ms. S.:

In response to your request of November 18, we respond below to your questions regarding the FCC’s environmental review process. Please let us know if you have any additional questions.

Thank you,

Paul D’Ari
Senior Legal Counsel
Competition and Infrastructure Policy Division
Wireless Telecommunications Bureau
Federal Communications Commission
Office: 202-418-1550

From: Phoebe S.
Sent: Monday, November 18, 2019 1:54 PM
To: Erica Rosenberg

Subject: Inquiry re environmental review requirement for telecom permits


Hello Ms. Rosenberg:

Is it true that, despite the FCC Order last year, environmental review is still required in many cases before Telecom equipment permits can be approved in our town, Berkeley, Ca?

We believe that to be the case due to the Aug 9 appellate court decision in the lawsuit UNITED KEETOOWAH BAND OF CHEROKEE INDIANS IN OKLAHOMA, INDIVIDUALLY AND ON BEHALF OF ALL OTHER NATIVE AMERICAN INDIAN TRIBES AND TRIBAL ORGANIZATIONS, ET AL., PETITIONERS v. FCC and the USA. (The NRDC was an additional petitioner or intervenor in the case. NRDC staff advised us, sent us the FCC NEPA fact sheet, and suggested we contact you.)

The D.C. Circuit decision in United Keetoowah Band of Cherokee Indians v. FCC vacated those portions of the Commission’s order that exempted certain small wireless facilities from federal environmental and historic preservation review. See Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, Second Report & Order, FCC 18-30, (released Mar. 30, 2018). In vacating portions of the Second Report and Order, the court determined that small wireless facilities are not exempt and must therefore be reviewed under the National Environmental Policy Act and National Historic Preservation Act.

From the FCC’s NEPA fact sheet, we gather that NEPA review (Environmental Assessment) is required for wireless telecom applications in our town, at least in cases where the proposed equipment:

  • Might affect properties included or eligible for inclusion in the National Register of Historic Places (NHPA)
  • Will be in a flood plain
  • Would cause RF emissions exposure in excess of FCC-established limits

If the project — including antenna structures, equipment cabinets, fencing, roads, power and fiber connections, and their operation and maintenance — falls into any of these categories, applicant must file an EA, which the FCC posts for public comment. Applicant must get a FONSI ("FONSI Defined_xxx") before building.

In addition to answering our first question at the beginning of this letter, please “reply all” with answers to these questions re the FCC NEPA Factsheet:

Q-1. How does the telecom company applicant know that an EA is required for a particular application? Does the City need to let them know it is required? Can residents require it?

Answer from Paul D’Ari, Senior Legal Counsel for FCC:

Under the Commission’s procedures implementing NEPA, if an action may significantly affect the environment, applicants must conduct an environmental assessment (EA) to help the Commission determine whether “the proposal will have a significant environmental impact upon the quality of the human environment.” The FCC has delegated aspects of its NEPA review to licensees and applicants; NEPA and EAs are a federal requirement, although local or state permitting may require its own environmental review process.

To determine whether an EA is required, the FCC licensee or applicant must complete an initial environmental and historic preservation review (“the EA checklist”). This review includes an analysis of whether its proposed facilities fall into any of the categories that trigger an EA. As part of this review, licensees and applicants must follow distinct procedures to determine whether the proposed facilities will, for example, have an adverse effect on historic properties under NHPA will affect listed species under the Endangered Species Act, or will affect wetland resources.

While neither the city nor a member of the general public can make a determination that an EA is necessary, the Commission can review concerns raised by interested parties and decide whether to require an EA.

If your concern is about a proposed antenna structure or physical modification of an existing antenna structure that you allege may have a significant impact on the quality of the human environment, or about the Commission’s environmental notification process (see 47 CFR § 17.4(c)) in regard to an existing or proposed antenna structure, check if there is a related Antenna Structure Registration (ASR) application currently on environmental notice on the Commission’s website: If there is a current application, you must submit your Request for Further Environmental Review by selecting “ASR Environmental Notice” at this link:

If you cannot find an ASR application currently on environmental notification for the antenna structure that you allege may have a significant impact on the quality of the human environment, then you should e-mail your comment to and provide the following information:

  • Your name, email address, and phone number

  • Detailed tower/facility location (street address; coordinates; and/or nearest intersection, city, county and state)

  • Construction status (constructed, under construction, or planned)

  • Detailed description:

  • Describe the facility type (e.g., tower, antenna, collocation on a structure), and include as much additional information as possible (e.g., height and volume).

  • How does the tower/facility adversely affect a historic property (if applicable)?

  • What is the name/address of the historic property?

  • How does the tower/facility adversely affect a Native American religious or culturally significant site (if applicable)?

  • What is the nature of the adverse effects on the environment (if applicable). For example:

  • Wetlands/Floodplains/Change in surface features

  • Migratory birds

  • High intensity lights located in residential areas

  • Endangered species/Critical habitat for plants or animals

  • Other environmental resources

Provide as much detail as possible concerning how each applicable subject matter is being affected by the tower/facility.

Tribal Communications Notification System (TCNS) submission number, if known.

Q-2. Re: "Would cause RF emmissions exposure in excess of FCC-established limits”, do the FCC limits include cumulative effect? So it’s not just the proposed equipment’s emissions but counting nearby antennas too?

Answer from Paul D’Ari, Senior Legal Counsel for FCC:

When there are multiple communications facilities at a given site, all significant effects on the RF environment must be considered, not just those RF emissions associated with one specific facility. If at any time the RF emissions from multiple facilities exceed the Commission’s guidelines in an area accessible to the public, it is the shared responsibility of all licensees whose facilities produce significant emissions (i.e., if their power density levels exceed 5% of the power density exposure limit), to bring the area into compliance. 47 CFR § 1.1307(b)(3).

Q-3. Re: "The public can request and the agency can order additional environmental review on issues beyond the checklist. The agency can ask for mitigation to reduce impacts.”, which additional “issues beyond the checklist” may the public use to request environmental review for wireless telecom applications in our town? To which agency would we make those requests? Instead of to the FCC, would be make the request to our Public Works Dept that approves the permits?

Answer from Paul D’Ari, Senior Legal Counsel for FCC:

"If a person has information that a proposed communications facility will have a significant environmental effect that is not included on the checklist, that person should submit his/her comment in the applicable manner discussed in my answer to Question 1, above."

Q-4. Does this apply retroactively?

Answer from Paul D’Ari, Senior Legal Counsel for FCC:

"Building without following the requirements at 47 CFR 1.1301-1.1319 can constitute a violation of FCC rules and subject the constructing party to potential enforcement action; issuance of a license does not authorize building unless environmental requirements have been met.

If any person has information indicating that a communications facility was constructed without complying with the NEPA rules, that person should notify the FCC’s Wireless Telecommunications Bureau ("WTB"). WTB will then determine how to handle the matter and, depending upon the circumstances, may refer the matter to the Enforcement Bureau.

Q-5. Who would pursue enforcement action? The FCC or the City? How can citizens provoke enforcement action?

Answer from Paul D’Ari, Senior Legal Counsel for FCC:

"If the matter involves an FCC licensee or applicant, an interested person should contact the FCC. Depending upon the circumstances, a person may also contact state and local government offices with jurisdiction over the matter as some of these offices may share jurisdiction with the federal government or have independent authority."

We’d also appreciate reading your insight or other related comments.


Phoebe S. and other 4G/5G-knowledgeable Berkeleyans

Dec 18, 2019 AT&T NEPA Review Letter? Where is the Analysis?


Dec 26, 2019: APPLICATION INCOMPLETE Letter from Western Springs, IL

Full letter is here. See excerpts, below.

. . . [snip] . . .

. . . [snip] . . .

It worked.

See the original here.