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September 24, 2021

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Telecom Alert–DC Circuit Remands Order on Small Cell Reviews; FCC Proposes to Maintain RF Exposure Safety Standards; California Assembly Bill Requiring Text to 911; Senate Bill Proposes to Eliminate NEPA for Federal Projects--Vol. XVI, Issue 32

DC Circuit Remands FCC Order on Small Cell Reviews

In March 2018, the FCC adopted a Report and Order (R&O) excluding small wireless facilities from FCC review under the National Historic Preservation Act (NHPA) and National Environmental Policy Act (NEPA) in specified circumstances. The R&O also streamlined NHPA and NEPA review for larger wireless facilities. The FCC's R&O was appealed.  The U.S. Court of Appeals for the District of Columbia Circuit issued a decision on Friday vacating the R&O  for excluding small cells from NHPA and NEPA reviews and remanded  the matter to the FCC.  The Court held: "[t]he Commission 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 Commission did not adequately address the harms of deregulation or justify its portrayal of those harms as negligible. In light of its mischaracterization of small cells’ footprint, the scale of the deployment it anticipates, the many expedients already in place for low-impact wireless construction, and the Commission’s decades-long history of carefully tailored review, the FCC’s characterization of the Order as consistent with its longstanding policy was not 'logical and rational.'’  The Court of Appeals let stand the FCC changes regarding larger wireless facilities, which involved interaction with, deadlines for response from, and potential payment of fees for services to Tribes.  For more information regarding the Commission’s R&O,

FCC Proposes to Maintain Current RF Exposure Safety Standards

Last week FCC Chairman Ajit Pai announced that after six years of considering public input and review, the FCC will maintain its existing radiofrequency exposure limits, noting that the United States’ RF exposure limits for handheld devices are among the “most stringent in the world.”  Over the past several months, multiple Congressmen wrote letters to the Commission inquiring about the status of the government’s research into the potential health effects of RF radiation and its relation to the FCC’s guidelines for safe human RF exposure levels, given the Commission’s impending rollout of 5G technology (Vol. XVI, Issue 17), and Montgomery County, Maryland appealed the FCC’s Small Cell Order on grounds that the FCC violated the National Environmental Policy Act and the Administrative Procedure Act by failing to reevaluate RF standards in light of recent research and to determine whether these standards remain protective of human health.  Chairman Pai’s statement was a press release only, and full details of the FCC proposed decision are not yet available. 

California Assembly Bill Requiring Text to 911

A California Assembly Bill that would require all public agencies in the state to enable texting to 911 services by January 1, 2021 has passed the state Assembly and will go to the Senate Appropriations Committee for review.  The bill would require each public safety answering point in the state to deploy a text to 911 service that is capable of accepting Short Message Service (SMS) messages and Real-Time Text (RTT) messages. 

Senate Bill Proposes to Eliminate NEPA for Federal Projects

Sen. Marsha Blackburn (R-Tenn.) introduced the Paving the Way for Rural Communities Act of 2019 (S.2430), which would remove reviews under National Environmental Policy Act (NEPA), the National Historic Preservation Act (NHPA), and Endangered Species Act (ESA) from federally funded projects or activities in areas that are not part of metropolitan statistical areas as defined by the OMB.  A press release announcing the introduction of the bill noted that the NEPA, NHPA, and ESA hinder private entities from investing in rural communities where the costs of hiring consultants and attorneys to ensure compliance can add significant costs and complexity to communities already lacking financial resources.  

© 2021 Keller and Heckman LLPNational Law Review, Volume IX, Number 224

About this Author

C. Douglas Jarrett, Keller Heckman, telecommunications lawyer, procurement law

Douglas Jarrett joined Keller and Heckman in 1979. Mr. Jarrett specializes in telecommunications law, policy and procurement matters.

Mr. Jarrett is a recognized expert in representing enterprises in negotiating telecommunications services agreements with the major wireline and wireless carriers, domestically and globally.  He also advises enterprises on M2M services, cloud computing and IVR technology procurements. 

Mr. Jarrett represents technology companies in securing amendments to the FCC rules to enable the...

Gregory E. Kunkle, Keller Heckman, regulatory attorney, FCC lawyer

Gregory Kunkle joined Keller and Heckman in 2006. Mr. Kunkle practices in the area of telecommunications, with an emphasis on assisting corporate clients and trade associations with various legal and regulatory matters before the Federal Communications Commission.

Mr. Kunkle regularly counsels critical infrastructure companies, such as electric utilities, oil and gas companies, and railroads, public safety agencies, and commercial providers regarding FCC wireless licensing and compliance issues.  He assists clients in identifying and acquiring...

Thomas B. Magee, Keller Heckman, transactional counsel, litigation attorney, FCC law, safety violation lawyer

Thomas Magee joined Keller and Heckman in 2000. Mr. Magee provides regulatory, transactional and litigation counsel to investor-owned electric utilities, electric cooperatives and municipalities regarding pole attachments and Federal Communications Commission (FCC) licensing of private wireless telecommunications services.

Mr. Magee has helped to resolve dozens of pole attachment disputes affecting make-ready costs, safety violations, unauthorized attachments, annual rental rates and other terms and conditions of access. He negotiates,...

Tracy Marshall, Keller Heckman, regulatory attorney, for-profit company lawyer

Tracy Marshall assists clients with a range of business and regulatory matters.

In the business and transactional area, Ms. Marshall advises for-profit and non-profit clients on corporate organization, operations, and governance matters, and assists clients with structuring and negotiating a variety of transactions, including purchase and sale, marketing, outsourcing, and e-commerce agreements.

In the privacy, data security, and advertising areas, she helps clients comply with privacy, data security, and consumer protection laws, including laws governing telemarketing and...

Wesley K. Wright, Keller Heckman, Telecommunications Lawyer, FCC Enforcement Attorney, DC

Wesley Wright joined Keller and Heckman in 2006 and practices in the areas of telecommunications law.  He assists corporate clients and trade associations with various legal and regulatory matters before the Federal Communications Commission, Federal Aviation Administration, courts and state agencies.

Mr. Wright’s practice includes private wireless licensing, FCC enforcement, and related transactional matters.  He counsels clients on internal operations and governance matters and has drafted and negotiated asset purchase agreements,...