TLDR. . . JUMP to Conclusions

A. Relevant Timeline

From https://wireamerica.org/hvl/, a little history . . .

  • The 1934 Communications Act Established the following titles
    1. TITLE I — GENERAL PROVISIONS (a catch all for new services)
    2. TITLE II- — COMMON CARRIERS (for Monopoly telephone services)
  • 1969 National Environmental Policy Act
  • 1970-1990 the FCC adopted NEPA rules for all Wireless Telecommunications Facilities (WTFs), which, at that time, were tall Macro Towers and the FCC subsequently adopted a number of exclusions from environmental review
  • 1996 — 1996 Telecommunications Act (1996-TCA) Amended 1934 Communications Act to spur competition in Wireline broadband, wireline phone calls and wireless phone calls

Ajit Pai’s Rescinding Net Neutrality
  • Dec 2017: FCC Order 17-166 Restoring Internet Freedom (adopted in Jan 2018)
  • Oct 2019: Ruling: on Case 18-1051 Mozilla et al v FCC — excelllent ruling on limits of FCC preemption, The Steven Wu argument
  • Oct 2020: FCC Order 20-151 on Remand: Restoring Internet Freedom
  • Note: Telecommunications service is the only service the FCC regulates in 2021 due to FCC Order 17-166 Restoring Internet Freedom

From the Ruling in Case 18-1051:

In 2018, the Federal Communications Commission adopted an order classifying broadband Internet access service as an information service under Title I of the Communications Act of 1934, as amended by the Telecommunications Act of 1996, Pub. L. 104–104, 110 Stat 56 (“the Act”). See In re Restoring Internet Freedom, 33 FCC Rcd. 311 (2018) (“2018 Order”). In so doing, the agency pursued a market-based, “light-touch” policy for governing the Internet and departed from its 2015 order that had imposed utility-style regulation under Title II of the Act.

As relevant here, the 1996 Telecommunications Act creates two potential classifications for broadband Internet: “telecommunications services” under Title II of the Act and “information services” under Title I. These similar-sounding terms carry considerable significance: Title II entails common carrier status, see 47 U.S.C. § 153(51) (defining “telecommunications carrier”), and triggers an array of statutory restrictions and requirements (subject to forbearance at the Commission’s election). For example, Title II “declar[es] . . . unlawful” “any . . . charge, practice, classification or regulation that is unjust or unreasonable.” Id. § 201(b). By contrast, “information services” are exempted from common carriage status and, hence, Title II regulation.

Net Neutrality Timeline

Title I — Unregulated

Title II — Regulated

1996 information svc telecommunications svc
2015 telecommunications svc
& information svc
2018 information svc telecommunications svc


47 U.S. Code § 153 (53) Telecommunications service:

The term “telecommunications service” means the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.’

47 U.S. Code § 153 (24) Information service:

The term “information service” means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.

A. Relevant Timeline (continued)

  • March, 2018: FCC voted through Order 18-30: this is the very first time a new category of Wireless Telecommunications Facilities (WTFs) was defined: it defined “Small Wireless Facilities” to give the new class of sWTFs a series of special benefits
  • The definition of “Small Wireless Facilities” was added to Title 47 CFR §1.1312(e)
  • July, 2018: FCC Order 18-30 became effective
  • Aug 2019: DC Circuit vacated Small Cell rules in Title 47 CFR §1.1312(e) which states in Federal register “Consistent with the court’s mandate, this Order repeals the section of the Commission’s rules implementing the small wireless facilities exemption and deletes a cross-reference to that section contained elsewhere in the Commission’s rules” .
  • This means from Aug 2019 through Oct 2019 there was NO LEGAL DEFINITION OF A “SMALL WIRELESS FACILITY” at all
  • In Oct, 2019, the FCC made the fatal error:
    1. It wrote the definition back in . . . “Section 1.6002 is amended by revising paragraph (l) to read as follows: §1.6002 Definitions.”
    2. The FCC did this without a Notice of Proposed Rule Making, without proper Notification to the Public, without building a record and without voting it through — NO DUE PROCESS for defining a new class of Wireless Facilities (“small wireless facilities”) that will quadruple the number of Wireless Telecommunications Facilities (WTFs) in the USA — each of which transmits power into bedrooms at levels more than 25 million times higher than needed for 5-bars on a cell phone (for telecommunications coverage).

This is explained in video here

  • Roughly 9 mins to 12 mins re: Nepa Rules
  • 12 mins to 13 mins re: loss of definition of sWTFs Version A (short version)
  • 13 mins to 14:35 mins re: loss of definition of sWTFs Version B (more detailed)
  • 14:35 mins to 18:15 mins re: loss of definition of sWTFs, Version C (more detailed still)

B. From Case 18-1129 Ruling:

I. What the FCC Tried to Do in FCC Order 18-30: Eliminate NHPA and NEPA Review of Small Wireless Facilities

The Order did not follow the processes for a programmatic agreement under the NHPA, a categorical exclusion from NEPA, or any other wholesale or aggregated form of review, but simply eliminated NHPA and NEPA review on most small cells by removing them from the FCC’s limited approval authority.

Small cells had not previously been defined or regulated separately from macro cell towers.
The Commission defines the small cells that its Order deregulates as wireless facilities that are not on Tribal lands, do not require antenna structure registration because they could not constitute a menace to air navigation, do not result in human exposure to radiofrequency radiation in excess of applicable safety standards, and that are “small” per the following conditions:

(i) The facilities are mounted on structures 50 feet or less in height including their antennas . . . or the facilities are mounted on structures no more than 10 percent taller than other adjacent structures, or the facilities do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater;

(ii) Each antenna associated with the deployment, excluding the associated equipment . . . is no more than three cubic feet in volume;

(iii) All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume.

47 C.F.R. § 1.1312(e)(2). Small cells that meet those requirements are now outside the purview of the Commission’s limited approval authority, the mechanism by which it has required NHPA and NEPA review since 1990.

C. Link to Nepa Strategies

Oct 19, 2020 comment by Ms. Garnet Hanly, Division Chief of the Competition & Infrastructure Policy Division, FCC Wireless Telecommunications Bureau:

“The FCC when it modified its rules Title 47, C.F.R. § 1.1312(e) by its October 2019 Order that became effective on Dec 5, 2019, after the DC Circuit issued its mandate [in its Ruling of Case No. 18-1129 Keetoowah v FCC] the FCC took the position that we were reviewing Small Wireless Facilities as [Federal] undertakings and major Federal actions, pursuant to the DC Circuit decision and that is what we’ve been doing.”

Yet the DC Circuit Judges in the Keetoowah Case, actually said:

“The FCC therefore fails to justify its conclusion that small cells “as a class” and by their “nature” are “inherently unlikely” to trigger environmental concerns. . . . For the reasons already explained, 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 decisionmaking. . .

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.

D. Link to E-CFR Rules for Title 47 CFR §1.1301 et seq.: Telecommunication | PART 1—PRACTICE AND PROCEDURE | Subpart I—Procedures Implementing the National Environmental Policy Act of 1969

§1.1307 Actions that may have a significant environmental effect, for which Environmental Assessments (EAs) must be prepared.

. . .

§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.

All other facilities, operations and transmitters are categorically excluded from making such studies or preparing an EA, except as indicated in paragraphs (c) and (d) of this section. For purposes of table 1, building-mounted antennas means antennas mounted in or on a building structure that is occupied as a workplace or residence.

The term power in column 2 of table 1 refers to total operating power of the transmitting operation in question in terms of effective radiated power (ERP), equivalent isotropically radiated power (EIRP), or peak envelope power (PEP), as defined in §2.1 of this chapter. For the case of the Cellular Radiotelephone Service, subpart H of part 22 of this chapter; the Personal Communications Service, part 24 of this chapter and the Specialized Mobile Radio Service, part 90 of this chapter, the phrase total power of all channels in column 2 of table 1 means the sum of the ERP or EIRP of all co-located simultaneously operating transmitters owned and operated by a single licensee.
When applying the criteria of table 1, radiation in all directions should be considered.

For the case of transmitting facilities using sectorized transmitting antennas, applicants and licensees should apply the criteria to all transmitting channels in a given sector, noting that for a highly directional antenna there is relatively little contribution to ERP or EIRP summation for other directions

Table 1—Transmitters, Facilities and Operations Subject to Routine Environmental Evaluation

Service (title 47 CFR rule part) Evaluation required if:
Cellular Radiotelephone Service (subpart H of part 22) Non-building-mounted antennas: height above ground level to lowest point of antenna < 10 meters and total power of all channels >1000 W ERP.

. . .

§1.1307 (b)(3) In general, when the guidelines specified in §1.1310 are exceeded in an accessible area due to the emissions from multiple fixed transmitters, actions necessary to bring the area into compliance are the shared responsibility of all licensees whose transmitters produce, at the area in question, power density levels that exceed 5% of the power density exposure limit applicable to their particular transmitter or field strength levels that, when squared, exceed 5% of the square of the electric or magnetic field strength limit applicable to their particular transmitter. Owners of transmitter sites are expected to allow applicants and licensees to take reasonable steps to comply with the requirements contained in §1.1307(b) and, where feasible, should encourage co-location of transmitters and common solutions for controlling access to areas where the RF exposure limits contained in §1.1310 might be exceeded.

   (i) Applicants for proposed (not otherwise excluded) transmitters, facilities or modifications that would cause non-compliance with the limits specified in §1.1310 at an accessible area previously in compliance must submit an EA if emissions from the applicant’s transmitter or facility would result, at the area in question, in a power density that exceeds 5% of the power density exposure limit applicable to that transmitter or facility or in a field strength that, when squared, exceeds 5% of the square of the electric or magnetic field strength limit applicable to that transmitter or facility.

   (ii) Renewal applicants whose (not otherwise excluded) transmitters or facilities contribute to the field strength or power density at an accessible area not in compliance with the limits specified in §1.1310 must submit an EA if emissions from the applicant’s transmitter or facility results, at the area in question, in a power density that exceeds 5% of the power density exposure limit applicable to that transmitter or facility or in a field strength that, when squared, exceeds 5% of the square of the electric or magnetic field strength limit applicable to that transmitter of facility.

E. Conclusions

RF-EMR = Radiofrequency Electromagnetic Microwave Radiation

  1. FCC Rules are often poorly-written and inconsistent; we can use that to our advantage
  2. One needs to consider each enumerated section of the rules as self-contained
  3. You can see that §1.1307 (b)(3) talks about exceeding FCC RF-EMR Guidelines in accessible areas, BUT there is no overlap between §1.1307 (b)(3) and §1.1307 (b)(1)
  4. §1.1307 (b)(1) DOES NOT mention accessible areas at all. Therefore, IF
    • the Newport Beach sWTF can exceed FCC RF limits in any point in 3D space beyond the antenna canister (which it does) — explained in video here
    • the lower edge of the sWTF is less than 10 meters (32 ft. 8 in.) from the ground
    • the total ERP from all channels > 1,000 Watts ERP
    • THEN an Environmental Assessment is Required
    • https://youtu.be/B1exkBFmiBs?t=1988 Looks like this one is about 5,000 Watts ERP
  5. Compliance with the FCC RF-EMR Guideline does not provide actual public safety
  6. Therefore any argument conditioned on compliance with the FCC RF-EMR Guideline does not help us
  7. Instead, follow the FCC Comment by Trevor Marshall, PhD here

Fundamentally, the FCC is asking the wrong question.

Rather than asking . . .

“How much power is it safe to radiate from a Wireless Telecommunications Facility (WTF)?”

. . . the FCC should be asking . . .

“How much power is needed to get the job done?”