2021-0413 from hvl

hvl: It is true that the FCC, apparently in the December 5 addition, wiped out the definition of “Small Wireless Facility”.

pmg: Not exactly.These are the steps.

  • 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
  • From 1970-1990 the FCC adopted NEPA rules for all Wireless Telecommunications Facilities (WTFs), which, at that time, were tall Macro Towers and subsequently adopted a number of exclusions from environmental review
  • 1996 — Amended 1934 Communications Act to spur competition in Wireline broadband, wireline phone calls and wireless phone calls
  • March, 2018: FCC voted through Order 18-30: this the very first time a new category of Wireless Telecommunications Facilities (WTFs) was defined: “Small Wireless Facilities”
  • The definition was added to Title 47 CFR §1.1312
  • July, 2018: FCC Order 18-30 became effective
  • Aug 2019: DC Circuit vacated Small Cell rules in Title 47 CFR §1.1312 which from the 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 October, 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).

Here is the Key Language in Case 18-1129: Keetoowah v FCC


I. Statutory and Regulatory Background

. . .

B. National Environmental Policy Act (NEPA)

Congress enacted NEPA to “encourage productive and enjoyable harmony between man and his environment” and “promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man,” among other purposes. 42 U.S.C. § 4321. Like the NHPA, NEPA mandates a review process that “does not dictate particular decisional outcomes, but ‘merely prohibits uninformed — rather than unwise— agency action.’” Sierra Club v. U.S. Army Corps of Eng’rs, 803 F.3d 31, 37 (D.C. Cir. 2015) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989)).

All “major Federal actions significantly affecting the quality of the human environment” trigger environmental review under NEPA, just as federal “undertakings” trigger historic preservation review under the NHPA. 42 U.S.C. § 4332(C). Major federal actions “include[] actions . . . which are potentially subject to Federal control and responsibility.” 40 C.F.R. § 1508.18. Under the Commission’s procedures implementing NEPA, if an action may significantly affect the environment, applicants must conduct a preliminary Environmental Assessment to help the Commission determine whether “the proposal will have a significant environmental impact upon the quality of the human environment,” and so perhaps necessitate a more detailed Environmental Impact Statement. 47 C.F.R. § 1.1308; see also 40 C.F.R. § 1508.9. If, after reviewing the Environmental Assessment, the Commission determines that the action will not have a significant environmental impact, it will make a “finding of no significant impact” and process the application “without further documentation of environmental effect.” 47 C.F.R. § 1.1308(d).

NEPA also has an analogue to the NHPA’s Advisory Council. In enacting NEPA, Congress established the Council on Environmental Quality, in the Executive Office of the President, to oversee implementation of NEPA across the entire federal government. 42 U.S.C. §§ 4342, 4344. With the endorsement of the Council on Environmental Quality and by following a series of mandated procedures, agencies can establish “categorical exclusions” for federal actions that require neither an Environmental Assessment nor an Environmental Impact Statement. 40 C.F.R. § 1508.4. Categorical exclusions are appropriate for “a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency.” Id. “Categorical exclusions are not exemptions or waivers of NEPA review; they are simply one type of NEPA review.” Council on Environmental Quality, Memorandum for Heads of Federal Dep’ts and Agencies: Establishing, Applying & Revising Categorical Exclusions under [NEPA] (Categorical Exclusion Memo) 2 (2010).

C. Legal Framework for Wireless Infrastructure

The Communications Act of 1934 established the FCC to make available a “rapid, efficient . . . wire and radio communication service with adequate facilities at reasonable charges.” 47 U.S.C. § 151. In licensing use of the spectrum, the Commission is tasked with promoting “the development and rapid deployment of new technologies, products and services for the benefit of the public . . . without administrative or judicial delays,” id. § 309, and “maintain[ing] the control of the United States over all the channels of radio transmission,” id. § 301

The Commission generally does not require construction permits before private parties can build wireless facilities. Congress largely eliminated the FCC’s site-specific construction permits in 1982, and the Commission has since required construction permits only where it finds that the public interest would be served by such permitting. See Pub. L. 97- 259, 96 Stat. 1087, § 119 (1982) (codified at 47 U.S.C. § 319(d)). It has not made such a finding for the wireless facilities at issue here.

The FCC does, however, require licensing of the spectrum used by wireless small cells. It does so by issuing geographic area licenses, which allow wireless providers to operate on certain frequency bands in a wide geographic area. See 47 U.S.C. § 309(j). Those licenses authorize using spectrum rather than building wireless facilities, but they necessarily contemplate facility construction. They have coverage requirements — for instance, one type of geographic area license required licensees to provide service to at least 40% of the population in their geographic service area by June 2013. See 47 C.F.R. § 27.14(h). If they fail to meet the coverage requirements, they can be stripped of authority to operate for the license’s full term or serve part of its geographic area, and they “may be subject to enforcement action, including forfeitures.” Id. The Commission also exercises continuing authority to inspect radio installations to ascertain their compliance with any and all applicable laws, whether or not the licensee itself constructed those installations. See 47 U.S.C. § 303(n); 47 C.F.R. § 1.9020(c)(5).

The Commission has not identified any period since the enactment of the NHPA (in 1966) and NEPA (in 1970) when it did not require historic-preservation and environmental review of wireless facilities. After Congress eliminated the construction permit requirement, the Commission for a time required NEPA and NHPA review of facilities before it granted their service licenses. See, e.g., In re Amendment of Envtl. Rules in Response to New Regulations Issued by [CEQ], FCC 85-626, 1986 WL 292182, at *5 ¶ 18 (F.C.C.) (Mar. 26, 1986) (requiring review “during the period prior to grant of a station license”); id. at *8 App’x ¶ 7 (requiring NEPA review on “[f]acilities that will affect districts, sites, buildings, structures or objects . . . that are listed in the National Register of Historic Places or are eligible for listing,” which includes property of religious or cultural significance to Indian Tribes, 54 U.S.C. § 302706(a)).

In 1990, the Commission shifted review from the licensing stage to the construction stage by establishing a “limited approval authority” over construction of wireless facilities. In re Amendment of Envtl. Rules (1990 Order), 5 FCC Rcd. 2942 (1990). Limited approval authority required that, “where construction of a Commission-regulated radio communications facility is permitted without prior Commission authorization (i.e., without a construction permit), the licensee must nonetheless comply with historic preservation and environmental review procedures.” Order ¶ 51; see also 47 C.F.R. § 1.1312. The authority was “limited” in that it allowed “the Commission [to] exercise[] control over deployment solely to conduct federal historic and environmental review.” Resp’t Br. 12.

The Commission emphasized that shifting review to the pre-construction stage served a practical function: Before it had established its limited approval authority, the FCC’s rules “provide[d] that any required submission of [Environmental Assessments] and any required Commission environmental review take place at the licensing stage rather than prior to construction,” with the result that “[a]pplicants who ha[d] already constructed their facilities” could “subsequently be denied licenses on environmental grounds.” 1990 Order 2942 ¶ 3. The Commission explained that it continued to require review “to ensure that the Commission fully complies with Federal environmental laws in connection with facilities that do not require pre-construction authorization.” Id. ¶ 4. It announced the changes as “necessary to ensure that the Commission addresses environmental issues early enough in the licensing process to ensure that it fully meets its obligations under Federal environmental laws,” including NEPA and the NHPA. Id. at 2943 ¶ 9 & n.16.

The Commission has never required individualized review of each separate facility, however. A long series of regulations, programmatic agreements, and categorical exclusions has aggregated facilities for joint consideration and focused NHPA and NEPA review on those deployments most likely to have cultural or environmental effects. For instance, most collocations—deployments on existing structures—are excluded from individualized review under NHPA programmatic agreements and NEPA categorical exclusions. See In re Implementation of the National Environmental Policy Act of 1969 (Implementation of NEPA), 49 F.C.C.2d 1313, 1319-20 (1974); Nationwide Programmatic Agreement for the Collocation of Wireless Antennas (Collocation Agreement), 47 C.F.R. pt.1, app. B (2001); Section 106 Agreement, 20 FCC Rcd. at 1075 ¶ 2; Nationwide Programmatic Agreement for Review Under the National Historic Preservation Act, 70 Fed. Reg. 556 (2005); In re Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies (Improving Wireless Facilities Siting Policies), 29 FCC Rcd. 12865, 12870 ¶ 11 (2014); 47 C.F.R. § 1.1320(b)(4).

Categorical exclusions go through notice and comment, 40 C.F.R. § 1507.3; include impact findings, Categorical Exclusion Memo 9; require the Council on Environmental Quality to approve them as consistent with its regulations and NEPA, 40 C.F.R. § 1507.3(a); and reserve rights to interested parties to request further review in the event that atypical adverse effects do occur, 47 C.F.R. § 1.1307(c), (d). At the same time, they achieve enormous efficiencies in the review processes for classes of actions or undertakings anticipated to have minimal or no adverse cultural or environmental effects.

Since 2004, the FCC has been conducting NHPA review in accordance with a broad programmatic agreement, the Section 106 Agreement, 20 FCC Rcd. 1073. Interested parties developed that agreement to “tailor the Section 106 review in the communications context in order to improve compliance and streamline the review process for construction of towers and other Commission undertakings, while at the same time advancing and preserving the goal of the NHPA to protect historic properties, including historic properties to which federally recognized Indian tribes . . . attach religious and cultural significance.” Id. at 1074-75 ¶ 1. In the Section 106 Agreement, the Commission adopted “procedures for participation of federally recognized Indian tribes,” among other changes. Id. at 1075 ¶ 2. It also formalized the use of the electronic Tower Construction Notification System, which notifies Tribes of proposed wireless construction in areas they have identified as containing properties of religious and cultural significance, and allows them to give applicants information on the potential effects of proposed construction. Id. at 1106-10 ¶¶ 89-100.

II. Order Under Review

FCC Order 18-30 eliminated NHPA and NEPA review on small cells that meet certain size and other specifications, based on the Commission’s conclusion that such review was not statutorily required and would impede the advance of 5G networks, and that its costs outweighed any benefits. See Order ¶¶ 36-45. The Order also altered Tribal involvement in those Section 106 reviews that are still conducted on wireless facilities that were not encompassed in the small cell exemption . . .


I. Eliminating NHPA and NEPA Review on Small Cells

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.

The Commission deregulated small cells as part of a broader effort to reduce regulations that the FCC says “are unnecessarily impeding deployment of wireless broadband networks” on which 5G service depends. Order ¶ 3. “Within the next few years,” the Commission explained, “5G networks . . . will make possible once-unimaginable advances, such as self-driving cars and growth of the Internet of Things,” i.e. physical objects controllable over the internet. Id. ¶ 1. 5G networks “will increasingly need to rely on network densification,” which entails “the deployment of far more numerous, smaller, lower-powered base stations or nodes that are much more densely spaced.” Id.

According to the Commission, rapid proliferation of hundreds of thousands of small cells would be hindered by the significant time and cost of NHPA and NEPA reviews, even as the benefits of such review—which it characterized as already minimal—would be negligible because small cells are “inherently unlikely to trigger environmental and historic preservation concerns.” Id. ¶ 92; see also id. ¶¶ 9, 11-16. It noted that the FCC’s baseline approach to environmental and historic-preservation review, which requires facility-specific review unless a programmatic agreement or categorical exclusion applies, “was developed when all or nearly all deployments involved large macrocell facilities and accordingly failed to consider both the relatively diminutive size of small wireless facilities and the proliferation of these facilities necessary for deployment of advanced wireless technologies.” Id. ¶ 9.

In the Order, the Commission asserts that federal law does not independently require such review. The only basis for treating small cell construction as either a federal undertaking triggering NHPA review or a major federal action triggering NEPA review was, the Commission says, the limited approval authority the Commission exercised over that construction — which the Order eliminated. See Order ¶¶ 58-59. The Commission reasons that removing small cell construction from its limited approval authority removes the “sufficient degree of federal involvement” necessary to render an undertaking or action “federal.” Id. ¶ 58.

It now says its power to exercise limited approval authority over construction derives exclusively from its “public interest authority” under the Communications Act, see Order ¶¶ 39, 53, 61, rather than from “its obligations under Federal environmental laws,” 1990 Order at 2943 ¶ 9. In this context, the “public interest authority” refers to the FCC’s power to require pre-construction permits for wireless facilities if it “determines that the public interest, convenience, and necessity would be served by requiring such permits.” 47 U.S.C. § 319(d).

While the Commission has never made such a determination for the category of facilities at issue here, it has previously interpreted the public interest authority “as allowing the Commission to require covered entities [not requiring preconstruction permits] to nonetheless comply with environmental and historic preservation processing requirements.” Order ¶ 53. In the Order, the Commission made a new determination that it was not in the public interest to require NHPA and NEPA review on small cells, so simply removed small cells from its limited approval authority.

Petitioners all argue that the FCC unlawfully excluded small cells from NHPA and NEPA review. They contend first that removing small cells from the FCC’s limited approval authority was arbitrary and capricious. See 5 U.S.C. § 706(2)(A). Keetoowah and the NRDC argue that the Commission failed to adequately consider the harms of massive deployment and to justify its decision to completely exempt small cells from review. Additionally, all petitioners argue that the NHPA and NEPA mandates review of small cell construction. They assert that the geographic licenses the Commission grants, which allow wireless companies to operate on spectrum, constitute sufficient federal control over wireless facility construction to make the construction a federal undertaking and a major federal action triggering review under those statutes. Keetoowah also contends that the exclusion violates the Administrative Procedure Act on various other grounds, including that it is an unjustified policy reversal. If petitioners 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 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.” Michigan v. EPA, 135 S. Ct. at 2706. Finally, the Commission did not satisfactorily consider the benefits of review.

First, the Commission inadequately justified its portrayal of deregulation’s harms as negligible. The FCC partly based its public-interest conclusion on a picture of small cells that the record does not support. It described small cells as “materially different from the deployment of macrocells in terms of . . . the lower likelihood of impact on surrounding areas.” Order ¶ 41. 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.

It likened small cells to small household items that operate on radiofrequency such as “consumer signal boosters [and] Wi-Fi routers,” which do not undergo review. Order ¶ 66. Small cells are, to be sure, quite different from macrocells in many ways, but the Commission fails to address that small cells are typically mounted on much bigger structures, and the Order is not limited to deployments on structures that already exist or are independently subject to review. Small cells deregulated under the Order can be “mounted on structures 50 feet or less in height including their antennas” or “mounted on structures no more than 10 percent taller than other adjacent structures.” 47 C.F.R. § 1.1312(e)(i).

<span class=”hl”That makes small cells crucially different from the consumer signal boosters and Wi-Fi routers to which the FCC compares them. The scale of the deployment the FCC seeks to facilitate, particularly given its exemption of small cells that require new construction, makes it impossible on this record to credit the claim that small cell deregulation will “leave little to no environmental footprint.” Order ¶ 41. The Commission 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). Even if only twenty percent of small cells required new construction— as one wireless company estimates and the FCC highlights in its brief, see Resp’t Br. 54—that could entail as many as 160,000 densely spaced 50-foot towers (or 198-foot towers, as long as they are located near 180-foot adjacent structures). The Commission does not grapple with that possibility. Instead, it highlights the small cells that can be collocated without addressing the many thousands that cannot be.

As Keetoowah points out, the FCC “offers no analysis of the footprint of” the new towers on which small cells can be mounted, “what equipment will be used, what ongoing maintenance or security will be provided and how often towers will be updated or rebuilt.” Keetoowah Br. 15-16.

Deployment of new small cells requires not only new construction but also wired infrastructure, such as electricity hookups, communications cables, and wired “backhaul,” which connects the new antenna to the core network.

. . .

Since the 1970s, the Commission has explained 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’s NEPA regulations limit environmental review to a small subset of actions likely to have significant environmental effects, see 47 C.F.R. § 1.1307, as well as those actions found through Section 106 review to have adverse effects on historic properties, see id. § 1.1307(a)(4).

Before it promulgated the challenged rule, the Commission had further shrunk the category of actions that receive individualized NHPA or NEPA review by adopting programmatic agreements and categorical exclusions.

In chronological order,

  • it excluded most collocations from individualized review, see Collocation Agreement, 47 C.F.R. Pt.1, App. B;
  • adopted “categories of undertakings that are excluded from the Section 106 process because they are unlikely by their nature to have an impact upon historic properties,” Section 106 Agreement, 20 FCC Rcd. at 1075 ¶ 2;
  • excluded from individualized review new categories of wireless construction and modification unlikely to have historic preservation effects, see Nationwide Programmatic Agreement for Review Under the National Historic Preservation Act, 70 Fed. Reg. at 558; and, most recently,
  • expanded NHPA and NEPA exclusions for collocations, see Improving Wireless Facilities Siting Policies, 29 FCC Rcd. at 12870 ¶ 11.

In sum, the FCC had already streamlined and minimized review of vast numbers of minor actions, focusing attention only on subcategories of deployments likely to have cultural or environmental effects.

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

  1. the alternative grounds for holding that the Order is arbitrary and capricious or otherwise violated the Administrative Procedure Act, nor
  2. the claim that small cell construction is a federal undertaking and a major federal action requiring NHPA and NEPA review.

Yet . . . this is what Ms. Garnet Hanly, Division Chief of the Competition & Infrastructure Policy Division, FCC Wireless Telecommunications Bureau said on October 19, 2020:

“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] we [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.”

hvl: and IF it is true that this has never been corrected, except through a rule-making process which was clearly violated, Then, yes, this is a pivotal legal point.

pmg: Agreed.

What is needed here is simply:

Looking here:

§ 1.411 Commencement of rulemaking proceedings.

Rulemaking proceedings are commenced by the Commission, either on it own motion or on the basis of a petition for rulemaking. See §§ 1.401-1.407.

§ 1.412 Notice of proposed rulemaking.

(a) Except as provided in paragraphs (b) and (c) of this section, prior notice of proposed rulemaking will be given.

  • (1) Notice is ordinarily given by publication of a “Notice of Proposed Rule Making” in the Federal Register. A summary of the full decision adopted by the Commission constitutes a “Notice of Proposed Rulemaking” for purposes of Federal Register publication.
  • (2) If all persons subject to the proposed rules are named, the proposal may (in lieu of publication) be personally served upon those persons.
  • (3) If all persons subject to the proposed rules are named and have actual notice of the proposal as a matter of law, further prior notice of proposed rulemaking is not required.

(b) Rule changes (including adoption, amendment, or repeal of a rule or rules) relating to the following matters will ordinarily be adopted without prior notice:

  • (1) Any military, naval, or foreign affairs function of the United States.
  • (2) Any matter relating to Commission management or personnel or to public property, loans, grants, benefits, or contracts.
  • (3) Interpretative rules.
  • (4) General statements of policy.
  • (5) Rules of Commission organization, procedure, or practice.

(c) Rule changes may in addition be adopted without prior notice in any situation in which the Commission for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest. The finding of good cause and a statement of the basis for that finding are in such situations published with the rule changes.

(d) In addition to the notice provisions of paragraph (a) of this section, the Commission, before prescribing any requirements as to accounts, records, or memoranda to be kept by carriers, will notify the appropriate State agencies having jurisdiction over any carrier involved of the proposed requirements.

[28 FR 12432, Nov. 22, 1963, as amended at 51 FR 7445, Mar. 4, 1986]

§ 1.413 Content of notice.

A notice of the proposed issuance, amendment, or repeal of a rule will include the following:

(a) A statement of the time, nature and place of any public rulemaking proceeding to be held.

(b) Reference to the authority under which the issuance, amendment or repeal of a rule is proposed.

(c) Either the terms or substance of the proposed rule or a description of the subjects and issues involved.

(d) The docket number assigned to the proceeding.

(e) A statement of the time for filing comments and replies thereto.

1) Under 1_____(specify law; CFR or other statute) A proper Notice of Proposed Rule Making is required by law:

2) After the Notice of Proposed Rule Making has been published, under 2___ (CFR or other specified statute), the FCC’s Due Process requirements include at specified period after the Notice before the Rule is approved (I believe 60 days).

3) With regard to the FCC’s implementation of the Keetoowah decision, there was proper compliance with the FCC’s 60 day period for public comment, and as required under____3______(such as CFR and the the Administrative Procedure Act) and thereby the sitting Commission approved a new Rule on October 5, 2019 which became effective on December 5, 2019, which had the actual effect of deleting the FCC’s definition of ‘small cell,’ the actual word used being “delete” as to language which included FCC’s definition of a “small cell.”

4) Dissatisfied with the result, the FCC staff, which had previously properly used the needed Notice procedure to obtain the December 5, 2019 result, in violation of the above Due Process guarantee (___3_____) inserted a supposed Rule defining “small cell,” without any Notice of Proposed Rule Making, and therefore in violation of the statute and practice containing same.

5) All of the pending legislation in California is pivotal in dependence on the term “small cell,” which, to the unlawful extent defined, was defined in direct violation of the requirements of 3 which was an “Arbitrary and Capricious” violation not only of _3 but of the Administrative Procedure Act, and for this reason each and every of the pending California Bills, including 556, which seek to force ‘small cell” antenna upon residential and other structures is and will be, fatally flawed.


pmg: At 5:08 pm, I sent “This is Andrew Campanelli’s quote from July 23, 2020:”