On Thursday, the Federal Communications Commission passed new rules to streamline and expedite the deployment of 5G networks around the country. According to commissioners, the leaner permitting process is a natural extension of the transition from large cell phone towers to smaller and smaller deployments, which do not need the same level of environmental review. Larger installations would still be subject to the present permitting process. The goal of the rule change is to expedite the deployment of 5G infrastructure, ensuring that the U.S. keeps its global technology edge. Many of the country’s Native American tribes, however, had vowed to fight the rule change, arguing that it puts their sacred sites at risk.
“Our outdated approach to [the National Environmental Policy Act] (NEPA) and [the National Historic Preservation Act] (NHPA)…is costing Americans tens of millions of dollars per year and delaying the rollout of new services,” said FCC Commissioner Brendan Carr.
“One provider spent over $23 million on NHPA review over the last two years—money that could have been used to deploy 657 new cell sites to expand service or add capacity. In 2017, providers spent $36 million on NHPA and NEPA reviews,” he continued.
According to the FCC, the number of tribes charging upfront fees for telecommunications permits has increased dramatically. In 2012, the Commission knew of only 35 tribes charging fees. The number had grown to 56 by 2015 and is estimated to be around 108 today. In addition, tribes have increased the cost of permits and expanded the areas for which they seek notification. By 2017, the average project required that 15 tribes be notified, twice what the number had been a decade earlier.
These permitting increases added significant costs to planned projects. Between 2011 and 2017, the average permitting costs for 5G installations increased from $2,000 to $11,450.
Industry figures are pleased with the changes, which they say will remove a needless roadblock and boost expansion rates around the country.
“The NPA consultation process has been in operation for more than a decade, and it is clear that tribal consultation improperly and unnecessarily impedes wireless infrastructure siting,” write Jonathan Adelstein of the Wireless Infrastructure Association and Wade Lindsay for the Federalist Society.
Despite the extensive and expensive review process, few sites subjected to tribal review are found to be of religious or historical significance. Nevertheless, tellecommunications companies looking to develop them were all charged weighty fees.
“Evidence presented to the FCC suggests that at least some Tribes view the Section 106 consultation process less as a means of protecting tribal cultural and religious resources and more as an additional source of revenue,” Lindsay and Adelsein continue. “Tribes routinely require wireless service providers and infrastructure developers to pay fees before the Tribe will respond to the TCNS notification and before any potential cultural or religious resources have been identified.”
Only 0.33 percent of tribal reviews of wireless infrastructure find that deployment would have a negative effect on historical or religious sites. Even so, the rule change is not without controversy, even among the FCC commissioners.
“We have long-standing duties to consult with tribes before implementing any regulation or policy that will significantly or uniquely affect tribal governments, their land or their resources. This responsibility is memorialized in the FCC policy statement on establishing a government-to-government relationship with Indian tribes,” said FCC Commissioner Jessica Rosenworcel, a Democrat, after the decision. “But we do not honor it here.”
The FCC has stressed that they did consult with tribes prior to making the rule change. According to Carr, the FCC engaged in tribal consultations in nine states over a period of three years before announcing the rule change.
As soon as the decision was announced, tribes began to consider possible response options. Although no official court challenges were filed on Thursday, tribal publications noted that various groups were consulting legal counsel about the possible success of a court challenge.
Ironically, the tribes’ fight against the FCC rule change could worsen the pre-existing digital divide between reservation broadband access and the rest of the country. At present, tribal lands have some of the lowest connectivity rates in the country. According to a 2015 FCC report, 63 percent of residents living on tribal lands lacked broadband access, as opposed to 17 percent of the overall population. On rural tribal lands, upwards of 80 percent of residents lack access.
When it comes to bringing the internet to America’s reservations, telecommunications companies have cited a prohibitive regulatory environment. The permits charged by the tribes raise installation costs, which are passed along to customers in the form of higher prices and fewer installations.
The FCC rule change was an attempt to bring 5G internet–and broadband in general–to more of the country. Lawsuits from Native American tribes could stymie its success, however, hurting the very people it was supposed to help.
