Today, the Federalist Society published an article co-written by Jonathan Adelstein, President & CEO of the Wireless Infrastructure Association, and Wade Lindsay, Partner at Wilkinson Barker Knauer, LLP. The article addresses the Federal Communications Commission’s existing siting process for wireless communications infrastructure. Specifically, the article comments on one of the primary sources of cost and delay – the process for consulting with Indian Tribes and Native Hawaiian Organizations under Section 106 of the National Historic Preservation Act regarding wireless facilities to be located on non-Tribal lands.
Fortunately, under the thoughtful leadership of FCC Chairman Ajit Pai, and, in an initiative spearheaded by Commissioner Brendan Carr, the Commission has plans to update the Section 106 Tribal review process, including by eliminating up-front fees, clarifying the approach to Tribal consultations, and adopting a clear time period for providers to deploy in cases where Tribes do not respond, among other actions.
Here are a few paragraphs from the article – we hope you will read the entire piece:
One of the primary sources of the cost and delay associated with the FCC’s review of wireless infrastructure under Section 106 of the NHPA is the process for the FCC’s consultation with Tribes. There is a broad recognition in public comments filed with the FCC that the Commission’s Section 106 Tribal consultation process is inefficient and requires updating. The current process enables Tribes, which serve only as “consulting parties” with respect to projects to be located on non-Tribal lands, to serve as de facto “gatekeepers” that determine when and if projects move forward. As a result, a growing number of Tribes have the power and incentive to press for exorbitant fees disassociated from a tribe’s valid expert cultural function, and to expand their participation in the consultation process in order to extract additional revenue. The results are inefficiency, delay, and additional costs, none of which significantly benefits the preservation of historic sites of religious or cultural significance to Tribes.
In short, timely Commission action is essential to ensure that regulatory delay does not impact the introduction of 5G technologies in the United States. Fortunately, with the leadership of FCC Chairman Ajit Pai, Commissioner Brendan Carr has been spearheading an initiative to review and overhaul the Commission’s communications infrastructure policies in three companion matters – the Wireless Infrastructure NPRM/NOI, Wireline Broadband Deployment NPRM/NOI and the Small Cell Infrastructure PN. And, as Commissioner Carr recently announced, on March 22, the Commission will vote on an order to, among other things, modernize the Section 106 Tribal review process for wireless infrastructure deployments. The Commission should approve this order and establish enforceable standards and procedures that improve efficiency, accountability, and predictability for all stakeholders.