NEPA = National Environmental Policy Act
Erica Rosenberg NEPA Presentation at 2018 FCC Annual Tower Training Workshop
. . . interestingly, the FCC did NOT conduct such an ANNUAL workshop in 2019 . . . I wonder why . . .
The NEPA strategy it is a two-step process, described here, as you can read on this page –> https://scientists4wiredtech.com/action/nepa-strategies/
. . . 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 –> https://scientists4wiredtech.com/action/nepa-strategies/#letter
This is the opportunity:
- 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.
- 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 firstname.lastname@example.org) 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 —> https://scientists4wiredtech.com/regulation/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: https://scientists4wiredtech.com/legislation/1996-telecommunications-act-conference-report/
"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
- Garnet Hanly, Division Chief
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) https://scientists4wiredtech.com/2019/08/federal-court-overturns-fcc-order-bypassing-environmental-review-for-4g-5g-wireless-small-cell-densification/#mandate
As of Dec 5, 2019:
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).
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.
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.
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.
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).
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.
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: email@example.com
- 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 January 27, 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).
(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.
Dec, 2019 Email Correspondence To/From the FCC
From: Paul D’Ari Paul.DAri@fcc.gov
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.
Senior Legal Counsel
Competition and Infrastructure Policy Division
Wireless Telecommunications Bureau
Federal Communications Commission
From: Paul D’Ari Paul.DAri@fcc.gov
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.
Senior Legal Counsel
Competition and Infrastructure Policy Division
Wireless Telecommunications Bureau
Federal Communications Commission
From: Phoebe S.
Sent: Monday, November 18, 2019 1:54 PM
To: Erica Rosenberg Erica.Rosenberg@fcc.gov
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: https://wireless2.fcc.gov/ASRManager/service/nationalNoticeReport.faces. If there is a current application, you must submit your Request for Further Environmental Review by selecting “ASR Environmental Notice” at this link: https://wireless2.fcc.gov/UlsEntry/pleadings/pleadingsType.jsp.
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 firstname.lastname@example.org 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)
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
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] . . .
The following is an email conversation, about NEPA strategies. — listed in chronological order
Please note [S4WT: Comments] that are sprinkled about in the text below, were added to this web page and not part of the original emails.
Conclusion: Smart people sometimes disagree. Decide for yourself what to do, but get crackin’ out there.
- The tanks are rolling forward . . .
- How many weapons in your fox hole should you fire? All of them.
- When? Now.
1. On 1/27/2020, Mark G wrote:
January 27, 2020
Joel and everybody else,
Thank you for this update. Here in Elk Grove I continue to work to protect residents from the health hazards of long term cell antenna electromagnetic radiation. I am cc’ing attorney Mark Pollock on this message.
I am with you in spirit, everybody who is fighting the proliferation of cell antennas.
With all due respect the "cease and desist" letter was based on a misunderstanding of the United Keetowah court decision. As a result it is unlikely, in my opinion, to cause the City of South Lake Tahoe to make any changes.
I will reply to the statements in the Tahoe Daily Tribune.
Pollock: "The appellate court found that under the National Environmental Policy Act, the FCC needs to “evaluate the cumulative impacts of this whole deployment of 5G,”
In my opinion, this is not true. I have read the court decision closely and there is no such statement. The court said that FCC had not evaluated the cumulative impacts of the nationwide deployment of about 800,000 cell antennas. However the petitioners did not ask the court to do so and the court did not order FCC to do so. The petitioners asked the court to vacate the part of the FCC Order 18-30 that excluded cell antennas from environmental review required by the FCC’s rules implementing NEPA, in particular 47 CFR section 1.1312. The court granted that request.
Pollock: "Since this decision was made in Federal court, the city needs to put a hold on accepting applications and installations until the FCC can get these studies done."
Again, the court did not require FCC to do any studies. The court rejected the reasons FCC gave as justification for its Order 18-30. The court said FCC did not prove that reason.
Furthermore, this is how cell antenna permit applications work.
- The permitting of a cell antenna is a local issue.
- A city or county can issue a permit to a telecommunications company to place, construct and modify a cell antenna on a utility pole or a city owned light pole in the public rights-of-way.
- The FCC does not issue those permits. The FCC does not set any requirements for those permits. Nor does the FCC determine when a given cell antenna permit application is complete or incomplete.
Here are a couple of key excerpts from the United Keetowah Indians decision: https://www.cadc.uscourts.gov/internet/opinions.nsf/4001BED4E8A6A29685258451005085C7/$file/18-1129-1801375.pdf
Page 27: "We hold that the Order’s deregulation of small cells is arbitrary and capricious because its public-interest analysis did not meet the standard of reasoned decisionmaking. We therefore decide neither the alternative grounds for holding that the Order is arbitrary and capricious or otherwise violated the Administrative Procedure Act, nor the claim that small cell construction is a federal undertaking and a major federal action requiring NHPA and NEPA review."
page 39: Conclusion: We grant the petitions to vacate the Order’s removal of small cells from its limited approval authority and remand to the FCC. We deny the petitions to vacate the Order’s changes to Tribal involvement in Section 106 review and to vacate the Order in its entirety. So ordered.
This misunderstanding apparently originated with a very prolific cell antenna opponent in Northern California, whom I know well. He has done fabulous work on the cell antenna issue in many cities and has a very detailed and thorough website. However he is mistaken about what the United Keetowah case says and means. I am not an attorney and I do not practice law. Neither is said activist.
S4WT: I believe that smart people can disagree on how to read and interpret things. I think Mark G is confusing some ‘academic correctness’ with opportunity. The opportunity here is to play the role of "environmental-police-person" or "quality-assurance-expert" and don’t let the Wireless carrier get away with just "mailing it in" — without sufficient environmental analysis.
Instead, seize the opportunity to package up the wireless carrier’s self-policed BS letter with a boatload of evidence of "construction of the facilities has been a source of controversy on environmental grounds in the local community" and make the FCC weigh-in by requiring the FCC to read the full record, complete their analysis of the full record, and to provide reasoned decision-making re: whether or not an EA is required.
In short, make the FCC earn their salaries — and we may get 3-6-9-12 months of delay out of this, to boot. This is an opportunity we can execute for every WTF application in the USA. Open season, I say. Get crackin’ — or just wave your hands in an academic consternation and do nothing. The choice rests with each person — each individual is free to choose whatever actions best defend their community’s homes and families.
Read the details here —> https://scientists4wiredtech.com/action/nepa-strategies/
On the other hand if the City has signed a master license agreement with a telecommunications company that requires the company to comply with all applicable laws or all applicable environmental laws, that agreement is the connection between the City and NEPA. It gives the City the power to say to the company, "We will not issue any cell antenna permits to you until you show us that you have complied with NEPA for each one." Cities should do that.
S4WT: Better yet, convince your City to never sign a Master Licensing Agreement with a Wireless Co., because it is not in their best interests to do so, as explained here: http://scientists4wiredtech.com/davis
It all comes down to one thing: think for yourself!
S4WT: I agree with that one, Mark G..
2. On 1/28/2020 at 2:52 PM Responder wrote:
I’m not sure if I understand what you’re saying here, Mark G. It seems to me that your disagreement is about which agency is responsible for conducting a NEPA review, not about whether such a review is required. I believe the latter is clearly established now.
My understanding is that antenna placements were heretofore considered exempt, and that the D.C. court decision reaffirmed that compliance with NEPA is indeed required. I would interpret that as a requirement to do something, if only to consider whether an antenna must undergo environmental review, and then order it to be done.
In my experience, whoever is planning to do the activity in question, is responsible for getting the environmental reviews under NEPA (and/or the state equivalent, CEQA) done, which would mean the Telecoms must do so themselves. The environmental reviews I’ve participated in were all paid for by the agencies who would be conducting the activities in question, except for one, which was done by the agency that was requested to pay for the activities with public grant moneys.
But according to the FCC attorney that Phoebe consulted (Paul D’Ari), it appears that the FCC is the agency to make the decision about whether any specific antenna siting must be evaluated under NEPA. I therefore believe that the quotes from Mark (P) that you challenged are in fact correct. Incidentally, the current Berkeley Telecom policy leaves it up to the City Manager to determine whether an applicant for an antenna placement must confirm CEQA compliance.
Anyone, including members of the public and others, also have the right to demand compliance with NEPA and/or CEQA. That is something else the FCC lawyer told Phoebe, and it’s also my experience here in Oakland, where we successfully made such a demand of the city about an unrelated issue (pesticides and deforestation). I believe if the responsible agency refuses to comply with federal and/or state environmental laws, legal action to enforce the law can be taken by anyone who has the means to do so.
Whether NEPA and/or CEQA reviews would actually stop installations is a whole other matter. Almost all the reviews I’ve seen came down in favor of the proposed action, even when they admitted that they would have extensive environmental impact. The reason to call for such reviews anyway is
as a delay tactic so that there’s more time for other actions to be take to stop the installations,
so that the review and detailed justifications can be challenged in court within the usually 30 day period after, and
to defend the spirit of the environmental protection that laws like NEPA and CEQA are supposed to facilitate.
In Oakland, our demand for an EIR has so far delayed the proposed actions by over 15 years! This is an unusual situation, but demonstrates that there is value in such a demand. Had we not done that, Oakland would have been deforested by now, and many more people injured by pesticides. We are now in the middle of that CEQA process, awaiting the Draft EIR, which will be open to public input one last time, then result in a Final EIR that will likely be challenged by a lawsuit we are already fundraising for.
Please be aware that I removed the journalist from this communication, because I don’t think it’s wise to include the media in strategy discussions.
3. On 1/29/2020, at 11:12 am, Mark G wrote:
From: Mark G
Subject: Re: [cell-tower] So. Lake Tahoe, CA: City receives cease, desist letter for small cell wireless facilities
Date: January 29, 2020 at 11:12:01 AM PST
January 29, 2020
Yes that’s right – I was saying that NEPA requires the companies to do the routine environmental evaluation, not the FCC. Such a review is required for each cell antenna, yes. We are talking about the FCC’s regulations that implement NEPA, which are in 47 CFR sec 1.1301 through 1.1319, and 1.1307 and 1.1312 in particular.
FCC Order 18-30 added a section to 1.1312 that excluded cell antennas from the requirement of routine environmental evaluation. The petitioners in the United Keetowah et al. v FCC case challenged that. The court agreed that FCC could not do that and therefore vacated the part of that Order. The FCC followed up by removing the section they had added to 1.1312 excluding cell antennas.
I understand what you are saying about the agency responsible for doing the activity in question has to do the environmental reviews. But NEPA and the FCC’s rules implementing NEPA do not require the city or county where the cell antennas will be installed to do that. They do not directly require the city or county to do anything. The master license agreement, where there is one, is the connection between the city or county and NEPA.
Phoebe sent me her correspondence with the FCC attorney too. With all due respect he did not say that the FCC is the agency to make the decision about whether any specific antenna siting must be evaluated under NEPA. No way. He simply didn’t say that. You can go through his email line by line, word by word, and you’ll find that he didn’t say that. He also didn’t say that on the conference call I just had with him this morning. (I will write about that separately.) Where did he say that?
See also my new email about my conference call with the FCC attorneys this morning.
There is nothing in the court decision that says that FCC has to do any sort of environmental evaluation regarding cell antennas. There’s no way around it – the permitting of cell antennas is a local issue. The FCC does not issue those permits. FCC has no requirements for what has to be in those permits. FCC does not determine whether a certain permit application is complete or incomplete. That is purely up to the city or county that issues the permits.
. . . begin S4WT insert . . .
A Summary of the Case United Keetowah et al. v FCC
Text selected from the Case No. 18-1129 Ruling, pages 14-27 and 38-39
The DC Circuit Judges Concluded:
If [Petitoners/Intervenors] prevail on any one or more of those grounds, we must vacate the Order’s deregulation of small cells and remand to the FCC.
- The FCC failed to justify its determination that it is not in the public interest to require review of small cell deployments.
- We therefore grant the petitions in part because the Order’s deregulation of small cells is arbitrary and capricious.
- The FCC did not adequately address the harms of deregulation
- The FCC did not justify its portrayal of those harms as negligible
The FCC’s characterization of the Order as consistent with its longstanding policy was not “logical and rational.” . . . because the FCC mischaracterized
- small cells’ footprint
- the scale of the anticipated deployment [800,000 Small Cell units nationwide]
- the many expedients already in place for low-impact wireless construction,
- the FCC’s decades-long history of carefully tailored review
- the FCC inadequately justified its portrayal of deregulation’s harms as negligible . . .
- In its brief, the Commission sums up its explanation of the difference: “small cells are primarily pizza-box sized, lower-powered antennas that can be placed on existing structures.” Resp’t Br. 3; see also Order ¶¶ 66, 92.
- The FCC likened small cells to small household items that operate on radio-frequency such as “consumer signal boosters [and] Wi-Fi routers,” which do not undergo review. Order ¶ 66
- We conclude that "smal cells" are crucially different from the consumer signal boosters and Wi-Fi routers to which the FCC compares them
- We conclude that it impossible on this record to credit the claim that small cell deregulation will “leave little to no environmental footprint.” Order ¶ 41. The FCC anticipates that the needed “densification of small deployments over large geographic areas,” id., could require 800,000 deployments by 2026, FCC, Declaratory Ruling & Third Report & Order, FCC 18-133 ¶ 126 (Sept. 26, 2018)
- The FCC failed to assess the harms that can attend deployments that do not require new construction, particularly the cumulative harms from densification.
- The FCC noted that all facilities remain subject to its limits on radiofrequency exposure, Order ¶ 45, but failed to address that it was speeding densification “without completing its investigation of . . . health effects of low-intensity radiofrequency radiation,” which it is currently reassessing. Comment of BioInitiative Working Grp., J.A. 235
- What the Order 18-30 accomplishes is to sweep away the review the Commission had concluded should not be relinquished; the Commission already had in place NEPA categorical exclusions . . . covering most collocations — as well as other kinds of deployments unlikely to have cultural and environmental impacts. Since the 1970s, the Commission has said that most collocations on existing towers or buildings are not “major” federal actions and therefore are not subject to NEPA review. (Implementation of NEPA, 49 F.C.C.2d at 1319-20; 47 C.F.R. §§ 1.1301-1.1319)
- The FCC excluded most collocations from individualized review, (see Collocation Agreement, 47 C.F.R. Pt.1, App. B); . . . and it expanded NHPA and NEPA exclusions for collocations, (see Improving Wireless Facilities Siting Policies, 29 FCC Rcd. at 12870 ¶ 11).
- We conclude that the FCC fails to justify its conclusion that small cells “as a class” and by their “nature” are “inherently unlikely” to trigger concerns. By ignoring the extent to which it had already streamlined review, the Commission overstated the burdens of review . . . The Commission fails to explain why the categorical exclusions in place did not already minimize unnecessary costs while preserving review for deployments with greater potential environmental impacts.
- The FCC dismissed the benefits of environmental review in a two-sentence paragraph, describing most of the comments that highlight those benefits as “generalized” Id. ¶ 78. Characterizing a concern as “generalized” without addressing that concern does not meet the standard of “reasoned decision-making.” Michigan v. EPA, 135 S. Ct. at 2706.
- The FCC’s conclusion that small cells are inherently unlikely to trigger concerns is arbitrary and capricious, and describing comments as “generalized” does not excuse the agency of its obligation to consider those comments as part of reasoned decision-making
- We rule that the Order’s deregulation of small cells is arbitrary and capricious because its public-interest analysis did not meet the standard of reasoned decisionmaking.
- We do not rule on the claim that small cell construction is a federal undertaking and a major federal action as the basis for requiring NEPA review.
- The NRDC cites its own comment to the FCC “that if the FCC sought to exclude an entire category of wireless facilities from NEPA, it was required to establish a categorical exclusion.”
- The NRDC’s argument was that the federal character of the geographic area license meant that the Commission could not entirely exempt wireless facility construction from NEPA review . . .
- The NRDC asserted that the proposed rule failed to comply with NEPA . . . because the issuance of licenses constitutes a major federal action.
- A third comment urged the FCC to consider the cumulative effects of radiofrequency exposure — see Comment of BioInitiative Working Grp., J.A. 235-38.
Conclusion: We grant the petitions to vacate the Order’s removal of small cells from its limited approval authority and remand to the FCC.
. . . end S4WT insert . . .
Consider that the FCC and the industry lobbying group CTIA have said they plan to install 800,000 cell antennas nationwide. Do you think the FCC wants to be making any sort of decision for each one of those antennas?
The company has to do the routine environmental evaluation required by the FCC’s rules implementing NEPA.
S4WT: Or, people can choose to do the following, in response to a weak, self-policed applicant letter that claims NEPA exemption:
- Compile substantial written evidence that establishes that "construction of the facilities has been a source of controversy on environmental grounds in the local community"
- Add Substantial written evidence of all of the environmental harms caused by the construction of the facilities, including threatening the quiet enjoyment of streets —> https://scientists4wiredtech.com/2019-ca-supreme-court-decision-t-mobile-v-san-francisco/
- File a NEPA complaint with the FCC with the evidence in  and 
S4WT: Agreed. This is mostly a delay strategy, but don’t miss this very helpful FCC NEPA rule:
§ 1.1307 Actions that may have a significant environmental effect, for which Environmental Assessments (EAs) must be prepared.
Title 47 CFR § 1.1307 (b) (1) The appropriate exposure limits in §§1.1310 and 2.1093 of this chapter are generally applicable to all facilities, operations and transmitters regulated by the Commission. However, a determination of compliance with the exposure limits in §1.1310 or §2.1093 of this chapter (routine environmental evaluation), and preparation of an EA if the limits are exceeded, is necessary only for facilities, operations and transmitters that fall into the categories listed in table 1, or those specified in paragraph (b)(2) of this section.
Table 1—Transmitters, Facilities and Operations Subject to Routine Environmental Evaluation
Cellular Radiotelephone Service (subpart H of part 22) —> EA required if: Non-building-mounted antennas: height above ground level to lowest point of antenna <10 m and total power of all channels >1000 W ERP
P S. Please, also note that the $2,000 estimate from Sprint in the Order 18-30 footnote is just that, an estimate from Sprint. This is not hard data.
4. On 1/29/2020 at 11:20:37 AM PST, Mark G wrote:
From: Mark G
Subject: [cell-tower] My Conference call today with FCC attorneys about NEPA
Date: January 29, 2020 at 11:20:37 AM PST
This morning I had a conference call with the Mayor and City Attorney of Elk Grove and Paul D’Ari and Erica Rosenberg, attorneys at the FCC. The subject of the phone call was the National Environmental Policy Act and the FCC’s rules implementing it. My purpose was to demonstrate to our Mayor and City Attorney that NEPA does require the companies (AT&T, Verizon, etc.) to make what is called a routine environmental evaluation in connection with any new cell antenna. Their obligations are "triggered", as attorneys like to say, by both the licensing and construction of a cell antenna.
You will never find a bigger BSer than our City Attorney. He has been telling the City Council that "NEPA doesn’t apply", as if it doesn’t require AT&T to do anything. It does. My web page has several quotations from FCC and the United Keetowah court decision saying that it does. ** And the FCC attorneys said on the conference call today that it does**.
He has also said the City doesn’t have the jurisdiction or the authority to enforce NEPA. True but totally irrelevant. As I have told him and our City Council the connection between the City and NEPA is sections 4.1 and 4.3 of the City’s Master License Agreements with both AT&T and Verizon. Those sections say:
4.1 City Use Permits.
Prior to the installation of any Small Cell Wireless Communications Facility, Licensee shall obtain all necessary permits as required by EGMC Chapter 23.94 and this Agreement, and Licensee shall obtain all other City permits and/or entitlements necessary for the Small Cell Wireless Communication Facility required by any government agency. In securing permits pursuant to this section and the EGMC, Licensee shall comply with all applicable environmental laws including, without limitation, the California Environmental Quality Act (“CEQA”).
4.3. Other permits.
In addition to any permits required by sections 4.1 through 4.2, Licensee represents and warrants to Licensor that it has (or will have at the time of installation of any Small Cell Wireless Communications Facilities) all licenses, permits, qualifications and approvals of whatsoever nature legally required for Licensee to conduct such installations. Licensee represents and warrants to City that it shall, at
its sole cost and expense, obtain and/or keep in effect at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Licensee to conduct such installations.
The call the FCC attorneys confirmed what I thought, that both the licensing and the construction of a cell antenna "trigger" that obligation. I asked whether the company’s NEPA obligations kick in upon construction and licensing. Erica Rosenberg said yes. Erica said,
"We do license AT&T and Verizon. Pursuant to that they may build cell antennas. That triggers NEPA. We delegate to them. They have to comply with our process before they construct."
She told us the FCC’s rules implementing NEPA are at 47 CFR and asked if I was familiar with them, and I said yes. She said,
[paraphrased]: There is a checklist that they must review. It is to determine if the cell antenna will affect wetlands, endangered species, etc. If they determine that it won’t then there is no requirement for an Environmental Assessment and they decide that that cell antenna is categorically excluded (from the requirement of an EA). Cell antennas fall under that. If one category is triggered then they have to do an EA.
That is not exactly verbatim but it is very close to a verbatim quotation of what she said.s.
That was a very clear statement that NEPA requires the company to comply with the FCC’s NEPA process for cell antennas. It is not optional or voluntary.
Although the responsibility for compliance with NEPA is with the FCC, according to the FCC’s website (and the FCC attorneys agreed with this today),
"The FCC has delegated the initial assessment of whether a proposed facility is categorically excluded (and certification to that effect) as well as preparation of EAs to licensees and applicants."
The FCC’s website also says
"The FCC considers registering and licensing towers and facilities intended to host licensed services to be major actions that trigger agency NEPA obligations."
Obviously AT&T is considered a licensee and a cell antenna is a facility intended to host licensed services.
This morning on the call I asked the FCC attorneys about this quotation from the United Keetowah Indians v FCC case, "All ‘major Federal actions significantly affecting the quality of the human environment’ trigger environmental review under NEPA, . . . . Major federal actions ‘include actions . . . which are potentially subject to Federal control and responsibility.’ 40 C.F.R. §1508.18." (page 7) I asked them if a cell antenna is potentially subject to Federal control and responsibility.
Paul D’Ari said,
"We have responsibility."
Erica Rosenberg said,
"The court said it is a major action."
Paul D’Ari said
"I think the situation is the City can’t determine whether AT&T has complied with NEPA or not."
But the City can determine whether AT&T has complied with the MLA. The City is a party to the MLA. Paul D’Ari didn’t say that the City can’t.
Our City Attorney’s response to sections 4.1 and 4.3 of the MLA, which I read to them all during this phone call, is that those are not conditions, those are covenants. As in, they are not conditions for the City issuing a permit to AT&T. He also said that the other party is presumed to comply, and to be in compliance (same thing I guess) with the covenants. That is his excuse for not requiring AT&T to demonstrate to the City that they have actually done the routine environmental evaluation.
I asked how I can find out if AT&T has done this routine environmental evaluation for a given cell antenna. Paul D’Ari said they (AT&T) have certified that they will. I said it sounds like the honor system. Erica Rosenberg said yes it is.
Then I said suppose I am the CEO of AT&T and I want to get 100 cell antennas in the City of Elk Grove. I know from experience that each routine environmental evaluation will cost about $2,000. We have to hire experts to do them. But I want to maximize the profits of AT&T for my shareholders and since nobody is really watching, neither the FCC nor the City, I will just not do them — despite the fact that I certified to the FCC that I will and I agreed to do them in my MLA with the City. Paul D’Ari responded that these are the FCC’s rules and he would not get into a discussion about, basically the merits of the rules.
This to me is another sign that the FCC is not serious about environmental protection and complying with NEPA. It is a bogus system of compliance where AT&T is not required to produce any proof of compliance. The FCC does not require any. They were very clear about that.
It’s bad enough that the FCC is not serious about environmental protection — or health effects on people and animals and wildlife for that matter. The industry spends $100 million a year lobbying Congress and the FCC. But for our city of a population of 170,000 to be working for the Telecom companies and to not take environmental protection seriously is just awful. How gutless!
From this I conclude that each city’s zoning code amendments (via an ordinance, usually) should say that part of the application for each cell antenna is documentation that they have complied with all applicable environmental laws including NEPA.
Our zoning code currently says:
"All permit applications for wireless communications facilities shall include a description of services proposed and documentation certifying applicable licenses or other approvals required by the Federal Communications Commission to provide services proposed in connection with the application."
It doesn’t require documentation certifying compliance with all applicable environmental laws. That would include compliance with NEPA. I believe that the City of Elk Grove zoning code should.
If your city is in the process of amending its zoning code it should require, as part of the application, documentation demonstrating compliance with all applicable environmental laws. That is what I conclude. Consider yourself lucky if your city attorney is not an enormous BS artist working as hard as he can to minimize the amount of work he has to do and to do curry favors to the Telecom companies by letting them off the hook of their responsibilities in the Master Licensing Agreement.
5. On 01/29/2020 at 2:13 PM, Responder 2 wrote:
It is only the conclusion of the Keetowah/NRDC case decision that matters, though statements the judges made before the conclusion might be quoted to bolster an attorney’s argument in another lawsuit.
S4WT: So, in the sentence above, the second phrase, essentially cancels the first phrase, doesn’t it? The judicial reasoning in the 20+ reasons provided by the DC Circuit judges in their Ruling for Case No. 18-1129 can be used for future legal actions by a party of standing that might move that the FCC’s response to the judge’s ruling was insufficient. Read here — > https://scientists4wiredtech.com/2019/08/federal-court-overturns-fcc-order-bypassing-environmental-review-for-4g-5g-wireless-small-cell-densification/#summary
Attorneys differ in interpretations of some court decisions, especially this one which is obtuse.
S4WT: . . . as do the non-attorneys on this mailing list . . . I don’t find the Ruling on Case No. 18-1129 obtuse.
If feasible, laypeople, rather than wading through and trying to decipher legalese, are better off consulting attorneys who are well-versed in the intricacies of telecom regs and related lawsuit decisions and/or asking for clarification from the FCC senior legal counsel.
S4WT: Only if you want to spend the $ to do so. Attorneys don’t have the lock on the truth. Many actions can be taken without attorneys.
I interpreted d’Ari’s reply to my inquiry as meaning that NEPA reviews can be required nationwide for small cell applications submitted after 8/9/19. (I don’t wish to ask him to confirm that because I don’t want to risk getting him to reconsider and change his mind;)
S4WT: That’s one interpretation that was confirmed by FCC attorneys D’Ari, Rosenberg and Goldschmidt on 12/12/19: Every individual sWTF application must undergo NEPA review.
Thanks, Isis, for your fab letter to council@CityOfBerkeley.info and for having informed me that there are three kinds of NEPA review. We’d prefer that an EIS be required, because it can take years. The Telecom companies will claim that categorical exemptions suffice, but they should be required to complete a checklist to achieve that exemption, and provide documentation which can be time-consuming and costly to them.
S4WT:. . . AND decisions that are based on substantial evidence in the public record that can be verified by the public. That means we can require reasoned decision-making, based on the evidence in the record.
So that is a 4th reason for pushing for NEPA review. If it adds $1k-$2k to the cost of each application, telecom might give up.
S4WT: . . . doubtful, IMHO, but I think we should make the Telecoms dot every "i" and cross every "t" at every step we can.
Without at least claiming a categorical exemption, small cell applications submitted after 8/9/19 should be denied, and those approved should be revoked. But how to achieve that? We had hoped a Cease/Desist letter/demand would suffice, but ours has been ignored because it has no teeth.
S4WT:: . . . No teeth? The teeth come in subsequent responses/injunctions. A Cease and Desist letter is just the first step in a process.
The So Lake Tahoe City attorney said re Berkeley’s Cease & Desist demand (which was a letter, not an order): “The city is required by federal law to process applications for all qualifying facilities within certain time frames so it is unclear to me how the city could grant the relief requested.”
S4WT: . . . uh . . . who cares what So. Lake Tahoe Heather Stroud says? Any City could declare a WTF application incomplete until there is substantial evidence in the public record showing that sufficient NEPA review/analysis has been completed.
Federal telecom law preempts a letter/demand from an attorney.
S4WT:: Why do you say that? Citation?
The Cease/Desist letter is a heads up that the City might be sued by residents, but if the City denies permits they could be sued by a Telecom firm.
S4WT: Not necessarily. A City declaring applications incomplete stops shot clocks. Only the CA state shot clocks have foundation, IMHO :150 days for new construction and 90 days for modification. The FCC Order 18-133 Shot Clocks at 60 days are** based on no environmental review needed**, but the foundation for those shotclocks were removed on 12/5/19. So the FCC 60-days shot clocks are very suspect at this point.
A citizen lawsuit would not stop the shot clocks until and unless a binding Cease & Desist Order resulted from the lawsuit.
S4WT: Not necessarily. A City declaring applications incomplete stops shot clocks.
By consulting an attorney who has more telecom experience . . .
S4WT: Which attorney was that?
. . . I learned that operations of wireless telecom facilities (WTF) are included in sec 704 of the ’96 Telecom Act.
S4WT: Really? Citation?
Some advocates have said that the prohibition of local officials basing regs on environmental effects
and health factors only applies to placement and permit approval of WTF, not to operations, so cities can require that emissions be restricted to 10% of the FCC standard and require installation of a fuse box to monitor that.
S4WT: Not exactly. Read this page —> http://scientists4wiredtech.com/compare
1996 — SEC. 704. FACILITIES SITING; RADIO FREQUENCY EMISSION STANDARDS.
(a) National Wireless Telecommunications Siting Policy. — Section 332(c) (47 U.S.C. 332(c)) is amended by adding at the end the following new paragraph:
(7) Preservation of local zoning authority. —
(A) General authority. — Except as provided in this paragraph, nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.
. . .
(B)(iv) No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission’s regulations concerning such emissions.
The winning idea is to regulate the Effective Radiated Power (not the RF-Emissions) in order to preserve the quiet enjoyment of streets, which is within a City’s aesthetics police powers. Read —> https://scientists4wiredtech.com/2019-ca-supreme-court-decision-t-mobile-v-san-francisco/
The advocate talked so fast that I couldn’t take detailed notes, but an attorney told us that a 1995 version of the TCA included operations, and it was removed in 1996
on the grounds that it is obvious that operations can’t be regulated based on env/health either.
S4WT: The attorney and the advocates are correct about operations of WTFs being under local control; read about it here: —> http://scientists4wiredtech.com/compare
The attorney also said that CEQA is pre-empted by sec. 704 because the feds claim that the feds are handling it adequately re radiation.
S4WT: Sounds like another overreaching FCC regulation that is not consistent with the underlying statute, the 1996-TCA. Do you have a citation for this claim? Which FCC rule?
BUT there are other significant environmental impacts, not just RF emissions (construction, pollution, etc.) He claimed to have read d’Ari’s reply to me, and said he doesn’t think NEPA is required unless there are endangered species, Native lands, wetlands, etc.
S4WT: Do you have a citation for this claim? FCC attorneys D’Ari, Rosenberg and Goldschmidt said 12/12/19: Every individual sWTF application must undergo NEPA review.
The attorney didn’t think our cease/desist letter would “play out.”
S4WT: Why? Did he provide any reasons?
He said that though cities have to comply with federal laws, the Telecom Act doesn’t override federal statutes like the ADA and FHA, and that it is not legal to require that disabled people will be forced to seek accommodation within only 5 days of being noticed.
— Responder II