Modernizing the Commission's National Environmental Policy Act Rules

Issuing agencies

Abstract

In this document, the Federal Communications Commission (Commission or FCC) seeks additional comment on the Commission's National Historic Preservation Act (NHPA) framework, to further expedite, simplify, and reduce the costs of environmental review. This includes refreshing the record on the meaning of "undertaking" and the Commission's approach to implementing section 106 of the NHPA. The Commission also seeks comment on whether activities related to the deployment and operation of communications infrastructure are within the scope of "undertaking," as well as on other practices or actions the Commission could adopt to provide more efficiency and predictability in the section 106 process. Additionally, the Commission seeks comment on whether communications infrastructure deployments are agency actions subject to the Endangered Species Act (ESA).

Full Text

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<title>Federal Register, Volume 91 Issue 200 (Monday, October 19, 2026)</title>
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[Federal Register Volume 91, Number 200 (Monday, October 19, 2026)]
[Proposed Rules]
[Pages 66062-66069]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-21347]


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FEDERAL COMMUNICTIONS COMMISSION

47 CFR Part 1

[WT Docket No. 25-217; FCC 26-64; FR ID: 372724]


Modernizing the Commission's National Environmental Policy Act 
Rules

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission or FCC) seeks additional comment on the Commission's 
National Historic Preservation Act (NHPA) framework, to further 
expedite, simplify, and reduce the costs of environmental review. This 
includes refreshing the record on the meaning of ``undertaking'' and 
the Commission's approach to implementing section 106 of the NHPA. The 
Commission also seeks comment on whether activities related to the 
deployment and operation of communications infrastructure are within 
the scope of ``undertaking,'' as well as on other practices or actions 
the

[[Page 66063]]

Commission could adopt to provide more efficiency and predictability in 
the section 106 process. Additionally, the Commission seeks comment on 
whether communications infrastructure deployments are agency actions 
subject to the Endangered Species Act (ESA).

DATES: Comments are due on or before November 18, 2026; reply comments 
are due on or before December 3, 2026. Written comments on the Initial 
Regulatory Flexibility Analysis (IRFA) in this document must have a 
separate and distinct heading designating them as responses to the IRFA 
and must be submitted on or before November 18, 2026.

ADDRESSES: You may submit comments, identified by WT Docket No. 25-217, 
by any of the following methods:
    <bullet> Federal Communications Commission's Website: <a href="https://www.fcc.gov/ecfs/">https://www.fcc.gov/ecfs/</a>. Follow the instructions for submitting comments.
    <bullet> People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by email: <a href="/cdn-cgi/l/email-protection#f3b5b0b0c6c3c7b3959090dd949c85"><span class="__cf_email__" data-cfemail="86c0c5c5b3b6b2c6e0e5e5a8e1e9f0">[email&#160;protected]</span></a> or phone: 202-418-
0530.
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Robert Krinsky, Wireless 
Telecommunications Bureau, Competition & Infrastructure Policy 
Division, (202) 418-2909, <a href="/cdn-cgi/l/email-protection#097b666b6c7b7d27627b60677a6270496f6a6a276e667f"><span class="__cf_email__" data-cfemail="9ceef3fef9eee8b2f7eef5f2eff7e5dcfaffffb2fbf3ea">[email&#160;protected]</span></a>.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Further Notice of Proposed Rulemaking (FNPRM), FCC 25-64, adopted on 
September 30, 2026, and released on October 1, 2026. The full text of 
this document is available at <a href="https://docs.fcc.gov/public/attachments/FCC-26-64A1.pdf">https://docs.fcc.gov/public/attachments/FCC-26-64A1.pdf</a>. The Commission also concurrently adopted a Report and 
Order (Order), FCC 25-64, adopted on September 30, 2026, streamlining 
the Commission's rules implementing the National Environmental Policy 
Act (NEPA).

Ex Parte Rules

    The proceeding this FNPRM initiates shall be treated as a ``permit-
but-disclose'' proceeding in accordance with the Commission's ex parte 
rules. See 47 CFR 1.1200 et seq. Persons making ex parte presentations 
must file a copy of any written presentation or a memorandum 
summarizing any oral presentation within two business days after the 
presentation (unless a different deadline applicable to the Sunshine 
period applies). Persons making oral ex parte presentations are 
reminded that memoranda summarizing the presentation must (1) list all 
persons attending or otherwise participating in the meeting at which 
the ex parte presentation was made, and (2) summarize all data 
presented and arguments made during the presentation. If the 
presentation consisted in whole or in part of the presentation of data 
or arguments already reflected in the presenter's written comments, 
memoranda or other filings in the proceeding, the presenter may provide 
citations to such data or arguments in his or her prior comments, 
memoranda, or other filings (specifying the relevant page and/or 
paragraph numbers where such data or arguments can be found) in lieu of 
summarizing them in the memorandum. Documents shown or given to 
Commission staff during ex parte meetings are deemed to be written ex 
parte presentations and must be filed consistent with rule 1.1206(b). 
In proceedings governed by rule 1.49(f) or for which the Commission has 
made available a method of electronic filing, written ex parte 
presentations and memoranda summarizing oral ex parte presentations, 
and all attachments thereto, must be filed through the electronic 
comment filing system available for that proceeding, and must be filed 
in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). 
Participants in this proceeding should familiarize themselves with the 
Commission's ex parte rules.

Regulatory Flexibility Act

    The Commission has prepared an Initial Regulatory Flexibility 
Analysis (IRFA) concerning the potential impact of rule and policy 
change proposals on small entities in the FNPRM. The Commission invites 
the general public, in particular small businesses, to comment on the 
IRFA. Comments must be filed by the deadlines for comments on the FNPRM 
indicated on the first page of this document and must have a separate 
and distinct heading designating them as responses to the IRFA.

Paperwork Reduction Act

    This document may also contain proposed new or modified information 
collection requirements. The Commission, as part of its continuing 
effort to reduce paperwork burdens, invites the general public and the 
Office of Management and Budget (OMB) to comment on any information 
collection requirements contained in this document, as required by the 
Paperwork Reduction Act of 1995, Public Law 104-13. In addition, 
pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 
107-198, see 44 U.S.C. 3506(c)(4), the Commission seeks specific 
comment on how the Commission might further reduce the information 
collection burden for small business concerns with fewer than 25 
employees.

Providing Accountability Through Transparency Act

    The Providing Accountability Through Transparency Act, Public Law 
118-9, requires each agency, in providing notice of a rulemaking, to 
post online a brief plain-language summary of the proposed rule. The 
required summary of this FNPRM is available at <a href="https://www.fcc.gov/proposed-rulemakings">https://www.fcc.gov/proposed-rulemakings</a>. To request materials in accessible formats for 
people with disabilities (e.g., Braille, large print, electronic files, 
audio format), send an email to <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="e1878282d4d1d5a1878282cf868e97">[email&#160;protected]</a> or call the Consumer & 
Governmental Affairs Bureau at (202) 418-0530.

Synopsis

I. Further Notice of Proposed Rulemaking

    1. Through this Further Notice of Proposed Rulemaking (FNPRM), the 
Commission seeks additional comment on the Commission's NHPA framework, 
including section 106 efficiencies. Additionally, the Commission seeks 
comment on whether communications infrastructure deployments are agency 
actions subject to the ESA.

A. Definition of ``Undertaking'' Under the National Historic 
Preservation Act

    2. In light of the decisions in the Order, the Commission seeks to 
refresh the record on the meaning of ``undertaking'' and the 
Commission's approach to implementing section 106 of the National 
Historic Preservation Act (NHPA) as set forth in the Modernizing the 
Commission's National Environmental Policy Act Rules Notice of Proposed 
Rulemaking (NEPA NPRM), 90 Fed Reg 40295, published on August 19, 2025. 
The Commission has built a record on the subject of whether 
``undertaking'' and ``major Federal action'' are coterminous. 
Therefore, no further comment on this matter is being sought in this 
FNPRM. Additionally, and in light of the Commission's findings above 
related to the licensing of spectrum, the Commission seeks comment on 
whether activities that are part of the deployment and operation of 
communications infrastructure are within the scope of ``undertaking.'' 
The

[[Page 66064]]

Commission also seeks comment on actions and practices that the 
Commission could adopt to provide more efficiencies in the section 106 
process and add greater predictability for all stakeholders.
1. Licensing of Spectrum and ``Undertaking''
    3. Section 106 of the NHPA requires federal agencies to take into 
account the effect of an ``undertaking on any historic property.'' The 
NHPA further defines ``undertaking'' as ``a project, activity, or 
program funded in whole or in part under the direct or indirect 
jurisdiction of a Federal agency.'' This includes: ``(1) those carried 
out by or on behalf of a Federal agency; (2) those carried out with 
Federal financial assistance; (3) those requiring a Federal permit, 
license or approval; and (4) those subject to State or local regulation 
administered pursuant to a delegation or approval by a Federal 
agency.'' The Advisory Council on Historic Preservation (ACHP) rules 
afford each individual federal agency the responsibility to ``determine 
whether [a] proposed Federal act to be taken by it is an undertaking.'' 
In its comments on the NEPA NPRM, ACHP stated that the ``FCC could use 
the rulemaking process to define a list of activities that do not rise 
to the level of an `undertaking' due to a lack of federal involvement 
under Section 106.''
    4. As discussed in the Order, the Commission licenses the use of 
spectrum, not facilities. Importantly, the Commission notes that: 
Commission rules do not legally require licensees to build 
communications infrastructure upon receiving a spectrum authorization; 
while the Commission's spectrum licensing rules manage spectrum to 
ensure that it is used efficiently and to prevent harmful interference, 
licensees retain control and responsibility over their facility 
deployment decisions; there is an insufficient causal connection 
between the Commission's licensing activity and subsequent 
infrastructure deployments; buildout requirements do not require the 
construction of particular facilities in any specific place and may be 
satisfied without new construction; and revocation or suspension of a 
spectrum license does not require dismantlement of a tower. Because of 
this, the Commission seeks comment on whether the construction of 
communications facilities connected with the issuance of a Commission 
license for the use of spectrum should be regarded as an 
``undertaking,'' where the Commission does not issue a ``permit, 
license or approval'' for deployment of the facilities themselves, but 
rather for the use of spectrum. To the extent the Commission clarifies 
the extent to which its actions constitute undertakings, the Commission 
seeks comment on whether to apply that clarification prospectively or 
to existing facilities, including those built prior to 2005.
    5. Finally, the Commission seeks comment on the impact of the 
Commission's determination in the Order that Commission spectrum 
licenses and facilities deployment in connection with spectrum licenses 
are not subject to NEPA review and the Commission's related rescission 
of Sec.  1.1312 of the rules on whether spectrum licensing is an 
undertaking under the NHPA. The Commission previously determined that 
the issuance of a geographic area license constituted an undertaking 
because of the Commission's ``limited approval authority,'' in Sec.  
1.1312 of the NEPA rules, which required completion of the 
environmental review process prior to tower construction. The 
Commission seeks comment on whether the actions in the Order, which 
remove that limited approval authority, merit reconsideration of the 
determination that Commission spectrum licensing activities are subject 
to NHPA review.
2. Section 106 Efficiencies
    6. The Commission seeks comment on whether there are efficiencies 
to be gained through modifications to the Commission's NHPA procedures. 
The Commission invites comment on the measures discussed below and on 
any additional measures that will enable the Commission to fulfill its 
section 106 commitments in a manner that minimizes delays to 
infrastructure deployment for communications services.
    7. Batching. To reduce repetitive submissions and paperwork for all 
parties, the Commission seeks comment on whether allowing multiple 
installation submissions into a single filing via the Commission's 
Tower Construction Notification System (TCNS) would create 
efficiencies. What challenges would this pose? The Commission invites 
commenters to provide data or examples illustrating how batching may 
affect administrative costs, review timelines, and overall project 
delivery. In particular, the Commission is interested in whether 
batching reduces repetitive paperwork, streamlines coordination among 
stakeholders, or introduces new complexities.
    8. Currently, batching is permitted in the context of the Positive 
Train Control (PTC) Program Comment. This was a streamlined process for 
certain facilities associated with building out the PTC railroad safety 
system. The Commission seeks comment on the experience of the PTC 
batching process. What has worked well? Has batching posed challenges?
    9. If the Commission permits batching, what guidelines should be 
established to realize efficiencies while minimizing drawbacks? In this 
regard, should there be a limit on the number of facilities to be 
batched? How should this be determined? Should geographic proximity be 
a factor? In this regard, would the use of common zip codes be a useful 
organizing principle for batching? Should the size of the facility be a 
factor? Should shared characteristics among the facilities be a factor 
(for example, the deployment of the same antenna structure or 
collocation antenna in similar terrain)? Should the extent of expected 
ground disturbance be a factor? Are there other factors relevant to 
batching eligibility? Should batching be accompanied by different time 
limits for processing? What changes to the current TCNS process might 
facilitate batching? The Commission seeks comment on these and any 
other policy or operational matters regarding batching that commenters 
may be aware of through their experiences.
    10. Non-compliant Towers. Non-compliant towers are structures that 
did not previously undergo section 106 review or lack documentation of 
such review, but which parties may have an interest in for collocation. 
Commenters to the NEPA NPRM advocated for bringing these towers into 
compliance. The Commission seeks comment on whether there should be an 
initiative to facilitate collocation on such non-compliant towers. The 
Commission notes that the Collocation NPA, which established 
streamlined section 106 reviews for collocation infrastructure 
projects, includes review of collocations on non-compliant towers under 
certain circumstances. Pursuant to the Collocation NPA, however, there 
would be additional streamlined processing opportunities if the towers 
came into section 106 compliance. The Commission has recognized the 
benefits to industry and to historic properties from collocations on 
existing structures, and encourages collocation of antennas where 
technically and economically feasible, in order to reduce the need for 
new tower construction. The Commission seeks comment on approaches to 
bringing non-compliant towers into compliance to enable future 
collocation. The Commission also seeks comment on potential 
efficiencies or

[[Page 66065]]

challenges associated with such approaches.
    11. Geographic Areas of Interest. In the context of tribal historic 
preservation review, Tribal Nations and Native Hawaiian Organizations 
(NHOs) identifying areas of cultural, historical, or religious interest 
for purposes of the section 106 process and TCNS, the Commission seeks 
comment on any trends that have developed in the indication of 
Geographic Areas of Interests since the Commission considered this 
matter in 2017. If the data support a conclusion that such areas are 
expanding significantly along with historic properties, the Commission 
seeks comment on what practices might assist in addressing an increased 
designation of Geographic Areas of Interest. Are there techniques for 
increasing efficiencies that could be adopted, whether it be features 
of TCNS, adjustments to Forms 620 and 621, or other techniques to 
evaluate wider geographic interests without materially compromising the 
section 106 process?
    12. Emergency and Disaster Situations. In response to the NEPA 
NPRM, a number of commenters have argued for greater efficiencies in 
responding to damage to infrastructure due to weather-related incidents 
to more quickly restore communications for citizens in the impacted 
area. Specifically, commenters seek the ability to rebuild or fortify 
structures damaged by a weather incident, natural disaster, or other 
incident without reprising the section 106 process. The Commission 
seeks comment on the merits of this proposal. The Commission notes that 
the Wireless NPA includes existing exclusions from section 106 review 
for construction of a replacement tower that does not substantially 
increase the size of the tower, and for construction of a temporary 
communications tower. The Commission also notes that ACHP rules set 
forth alternative procedures for undertakings in response to declared 
disasters or emergencies or in response to other immediate threats to 
life or property. The Commission seeks comment on the sufficiency of 
these existing exclusions and procedures and whether additional 
efficiencies are needed. Should any section 106 efficiency addressing 
emergency situations be conditioned on a certain level of damage? 
Should replacement or improved infrastructure constructed pursuant to 
such an efficiency be held to any historic preservation conditions 
resulting from the initial section 106 process? What other 
considerations are relevant to a section 106 exemption when damage to 
facilities rises to a level of a communications emergency? What are the 
criteria for a communications emergency? Would accessing the 
Commission's established waiver process on a case-by-case basis be a 
preferred approach in such emergency situations? The Commission seeks 
comment on the trade-offs between applying general rules or a case-by-
case approach to emergency situations, and the Commission encourages 
commenters to provide data and statistics to support the cost and 
benefit estimates associated with each approach.
    13. Tribal Consultation and Monitoring. In response to the NEPA 
NPRM, Verizon has expressed an interest in ``more definite timelines'' 
for section 106 review. Specifically, Verizon maintains that in its 
``experience, where Government-to-Government consultation is requested, 
the Tribe's response timeline stretches from 30-60 days to an average 
of 110 days.'' For this reason Verizon advocates ``narrowing the scope 
of the consultation process. . . .'' Tribes also commented on the 
challenges that they face with expedited timelines. The Commission 
seeks comment on how often Tribal consultations extend Tribal response 
timelines beyond 60 days. What specific modifications are recommended 
that would resolve any timeliness issues without compromising the 
integrity of the consultation process?
    14. Timeline for Tribal Review Process. In the Accelerating 
Wireless Broadband Deployment by Removing Barriers to Infrastructure 
Investment, Second Report and Order (Wireless Broadband Deployment 
Second R&O), 83 FR 19440, published May 03, 2018, the Commission 
adopted the current procedures for applicants to notify Tribal Nations 
and NHOs (Tribal Nations/NHOs) of proposed tower builds and 
collocations, and reciprocally, for Tribal Nations/NHOs to respond by 
indicating whether such proposals may affect historic properties to 
which they attach religious and/or cultural significance. Specifically, 
the Commission adopted a 45-day process for the applicants and Tribal 
Nations/NHOs to engage after which tower construction or collocation 
installations could proceed.
    15. As part of this 45-day review process, applicants are required 
to send submission packets to the Tribal Nations/NHO. The Tribal 
Nations/NHOs have 30 calendar days to respond to the applicant's 
submission packet, which begins on the date that Tribal Nations/NHOs 
can be shown to have received or may reasonably be expected to have 
received the relevant submission packets. If an applicant does not 
receive a response within 30 calendar days of the date that Tribal 
Nations/NHOs can be shown to have or may reasonably be expected to have 
received the submission packet, the applicant can refer the matter to 
the Commission for follow-up.
    16. Within five business days after receiving the applicant's 
referral, the Commission sends a letter and/or email to the Tribal 
Nation's or NHO's designated cultural resource representative with a 
reminder that the 30-day period for review of the submission packet has 
elapsed and requesting that, within 15 calendar days of the date of the 
letter and/or email, the Tribal Nation/NHO indicate its interest or 
lack thereof in participating in a section 106 review. During the 15-
day period, Commission staff place phone calls to the designated 
cultural resource representative. If the Tribal Nation/NHO does not 
respond within 15 calendar days, the applicant's pre-construction 
obligations are discharged with respect to that Tribal Nation/NHO. The 
Commission concluded that pursuant to ACHP rules, these procedures 
``satisfy the Commission's obligation to make reasonable and good faith 
efforts to identify Tribal Nations and NHOs that may attach religious 
and cultural significance to historic properties that may be affected 
by an undertaking.''
    17. The Commission seeks comment on whether the telephone call 
component of the 45-day procedure is necessary given that the 
Commission already sends a letter and/or email for the same purpose. 
Since the effective date of these procedures on July 2, 2018, through 
January 8, 2026, Commission staff has placed approximately 20,539 
telephone calls during the 15-day period after the 30-day review period 
accorded Tribal Nations/NHOs to review submission packets. These calls 
consume a considerable amount of Commission staff time. In 2025 alone, 
approximately 1,669 calls were placed. These calls are in addition to 
letters and/or emails reminding the Tribal Nations/NHOs that the 30-day 
review period has elapsed and informing them of the additional 15 days 
to indicate interest or lack thereof in participating in the section 
106 review before the applicant's pre-construction obligations are 
considered discharged. To the extent commenters argue that these calls 
are necessary, the Commission requests that commenters explain why 
letters or emails are insufficient. For those advocating in favor of 
retaining the phone call step, the Commission seeks comment on how this 
might be done more efficiently. For example, if

[[Page 66066]]

feasible, would a recorded message be a suitable substitute for in-
person contact?

B. Definition of ``Agency Action'' Under the Endangered Species Act

    18. In light of the Commission's finding in the Order above that 
spectrum licensing is not an MFA, the Commission seeks comment on 
whether construction of communications facilities in connection with 
Commission spectrum authorizations are ``agency actions'' subject to 
the ESA. As discussed in the Order and further outlined in this FNPRM, 
the Commission licenses the use of spectrum, not facilities.
    19. In the NEPA NPRM the Commission sought comment ``on the impact 
to the Commission's other legal responsibilities if certain actions 
were to fall outside NEPA for failure to qualify as MFAs.'' 
Additionally, commenters were invited to identify other legal 
requirements that may be affected by any potential changes to the 
Commission's NEPA rules consistent with the amended statute. In 
response, CTIA contends that ``the Commission should make a finding 
that wireless deployments that do not require ASR are not agency 
`actions' under the ESA for the same basic reasons they are not MFAs 
under NEPA.'' Other commenters, however, encourage the Commission to 
maintain or expand its obligations under the ESA.
    20. Under the ESA, an agency action ``means all activities or 
programs of any kind authorized, funded, or carried out, in whole or in 
part, by Federal agencies in the United States or upon the high seas. 
Examples include, but are not limited to (a) actions intended to 
conserve listed species or their habitat; (b) the promulgation of 
regulations; (c) the granting of licenses, contracts, leases, 
easements, rights-of-way, permits, or grants-in-aid; or (d) actions 
directly or indirectly causing modifications to the land, water, or 
air.'' Cases interpreting the definition of an ``agency action'' under 
ESA compare the standard to the standard for ``major federal action'' 
under NEPA. However, some courts also hold that the definition of 
``agency action'' should be broadly construed.
    21. The Commission seeks comment on whether the construction of 
communications facilities connected with the issuance of a Commission 
license for the use of spectrum is an ``agency action'' where the 
Commission does not grant a license or permit for deployment of the 
infrastructure facilities themselves, but rather for the use of 
spectrum. Commenters should explain the basis for their views or any 
suggested alternatives, and comment on benefits and costs associated 
with adopting their position.

II. Initial Regulatory Flexibility Analysis

    22. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA) the Commission has prepared this Initial Regulatory 
Flexibility Analysis (IRFA) of the policies and rules proposed in the 
FNPRM assessing the possible significant economic impact on a 
substantial number of small entities. The Commission requests written 
public comments on this IRFA. Comments must be identified as responses 
to the IRFA and must be filed by the deadlines for comments specified 
on the first page of the FNPRM. The Commission will send a copy of the 
FNPRM, including this IRFA, to the Chief Counsel for the Small Business 
Administration (SBA) Office of Advocacy. In addition, the FNPRM and 
IRFA (or summaries thereof) will be published in the Federal Register.

A Need for, and Objectives of, the Proposed Rules

1. Definition of Undertaking Under the National Historic Preservation 
Act
    23. In the FNPRM, the Commission seeks comment on its approach to 
implementing section 106 of the National Historic Preservation Act 
(NHPA), including section 106 efficiencies. Specifically, the 
Commission seeks to refresh the record on the meaning of 
``undertaking'' and the Commission's approach to implementing section 
106 of the NHPA. Additionally, and in light of the Commission's 
findings related to the licensing of spectrum, the Commission seeks 
comment on whether activities that are part of the deployment and 
operation of communications infrastructure are within the scope of 
``undertaking.'' The Commission also seeks comment on actions and 
practices that the Commission could adopt to provide more efficiencies 
in the section 106 process and add greater predictability for all 
stakeholders.
    24. The NHPA requires federal agencies to take into account the 
effect of an ``undertaking on any historic property'' and the Advisory 
Council on Historic Preservation's rules afford each individual federal 
agency the responsibility to ``determine whether [a] proposed Federal 
act to be taken by it is an undertaking.'' The Commission licenses the 
use of spectrum and not facilities. Because of this, the Commission 
seeks comment on whether the construction of communications facilities 
connected with the issuance of a Commission license for the use of 
spectrum should be regarded as an ``undertaking,'' where the Commission 
does not issue a ``permit, license or approval'' for deployment of the 
facilities themselves, but rather for the use of spectrum. The 
Commission seeks comment on the impact of its determination that 
spectrum licenses and facilities deployment in connection with spectrum 
licenses are not subject to NEPA review and its related rescission of 
Sec.  1.1312 of the rules on whether spectrum licensing is an 
undertaking under the NHPA. The Commission also seeks comment on 
whether its actions merit reconsideration of the determination that 
Commission spectrum licensing activities are subject to NHPA review.
    25. The Commission seeks comment on whether there are efficiencies 
to be gained through modifications to the Commission's NHPA procedures. 
Specifically, the Commission seeks comment on whether it should permit 
batching of section 106 submissions in order to reduce repetitive 
submissions and paperwork. The Commission seeks comment on possible 
approaches to bringing non-compliant towers into compliance with 
section 106 in order to increase the inventory of structures available 
for communications facility deployment through collocation, rather than 
the typically more onerous process of erecting new tower structures. 
The Commission seeks comment on any trends that have developed in the 
indication of Geographic Areas of Interest and what practices might 
assist in addressing an increased designation of Geographic Areas of 
Interest. In terms of emergency and disaster situations, the Commission 
seeks comment on whether additional efficiencies are needed in 
responding to damage infrastructure due to weather-related incidents to 
more quickly restore communications for citizens in impacted areas. The 
Commission seeks comment on Tribal consultations timelines and what 
specific modifications are needed to resolve any timeliness issues 
without compromising the integrity of the consultation process. 
Finally, the Commission seeks comment on procedures for applicants to 
notify Tribal Nations and NHOs (Tribal Nations/NHOs) of proposed tower 
builds and collocations, and reciprocally, for Tribal Nations/NHOs to 
respond by indicating whether such proposals may affect historic 
properties to which they attach religious and/or cultural significance.

[[Page 66067]]

2. Definition of ``Agency Action'' Under the Endangered Species Act
    26. In the FNPRM, the Commission also seeks comment on whether the 
construction of communications facilities connected with the issuance 
of a Commission license for the use of spectrum is an ``agency action'' 
under the Endangered Species Act (ESA) where the Commission does not 
grant a license or permit for deployment of the facilities themselves, 
but rather for the use of spectrum. Under the ESA, an agency action 
``means all activities or programs of any kind authorized, funded, or 
carried out, in whole or in part, by Federal agencies in the United 
States or upon the high seas. Examples include, but are not limited to 
(a) actions intended to conserve listed species or their habitat; (b) 
the promulgation of regulations; (c) the granting of licenses, 
contracts, leases, easements, rights-of-way, permits, or grants-in-aid; 
or (d) actions directly or indirectly causing modifications to the 
land, water, or air.''

B. Legal Basis

    27. The proposed action is authorized pursuant to sections 1, 2, 
4(i)-(j), 201, 214, 301, 302a, 303, 307, 309, 319, and 332 of the 
Communications Act of 1934, as amended 47 U.S.C. 151, 152, 154(i)-(j), 
201, 214, 301, 302a, 303, 307, 309, 319, and 332, section 704(b) of the 
Telecommunications Act of 1996, Public Law 104-104, section 102 of the 
National Environmental Policy Act of 1969, as amended, 42 U.S.C. 4332, 
section 106 of the National Historic Preservation Act of 1966, as 
amended, 54 U.S.C. 306108, and the Endangered Species Act of 1973, as 
amended, 16 U.S.C. 1536.

C. Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Will Apply

    28. The RFA directs agencies to provide a description of and, where 
feasible, an estimate of the number of small entities that may be 
affected by the proposed rules, if adopted. The RFA generally defines 
the term ``small entity'' as having the same meaning as the terms 
``small business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under the Small Business 
Act (SBA). A ``small business concern'' is one which: (1) is 
independently owned and operated; (2) is not dominant in its field of 
operation; and (3) satisfies any additional criteria established by the 
SBA. The SBA establishes small business size standards that agencies 
are required to use when promulgating regulations relating to small 
businesses; agencies may establish alternative size standards for use 
in such programs, but must consult and obtain approval from SBA before 
doing so.
    29. The Commission's actions, over time, may affect small entities 
that are not easily categorized at present. The Commission therefore 
describes three broad groups of small entities that could be directly 
affected by the Commission's actions. In general, a small business is 
an independent business having fewer than 500 employees. These types of 
small businesses represent 99.9% of all businesses in the United 
States, which translates to 34.75 million businesses. Next, ``small 
organizations'' are not-for-profit enterprises that are independently 
owned and operated and not dominant their field. While the Commission 
does not have data regarding the number of non-profits that meet that 
criteria, over 99 percent of nonprofits have fewer than 500 employees. 
Finally, ``small governmental jurisdictions'' are defined as cities, 
counties, towns, townships, villages, school districts, or special 
districts with populations of less than fifty thousand. Based on the 
2022 U.S. Census of Governments data, the Commission estimates that at 
least 48,724 out of 90,835 local government jurisdictions have a 
population of less than 50,000.
    30. The rules proposed in the FNPRM will apply to small entities in 
the industries identified in the chart below by their six-digit North 
American Industry Classification System (NAICS) codes and corresponding 
SBA size standard. Based on currently available U.S. Census data 
regarding the estimated number of small firms in each identified 
industry, the Commission concludes that the proposed rules will impact 
a substantial number of small entities. Where available, the Commission 
also provides additional information regarding the number of 
potentially affected entities in the industries identified below.

                               Table 1--2022 U.S. Census Bureau Data by NAICS Code
----------------------------------------------------------------------------------------------------------------
 Regulated industry (footnotes
 specify potentially affected                                                            Total small    % Small
  entities within a regulated     NAICS code        SBA size standard      Total firms      firms        firms
  industry where applicable)
----------------------------------------------------------------------------------------------------------------
Wireless Telecommunications             517112  1,500 employees.........         1,184         1,081       91.30
 Carriers (except Satellite).
Satellite Telecommunications..          517410  $44 million.............           332           195       58.73
All Other Telecommunications..          517810  $40 million.............         1,673         1,007       60.19
----------------------------------------------------------------------------------------------------------------


                                Table 2--Telecommunications Service Provider Data
----------------------------------------------------------------------------------------------------------------
        2024 Universal service monitoring report                    SBA size standard (1,500 employees)
  telecommunications service provider data (data as of   -------------------------------------------------------
                     December 2023)
---------------------------------------------------------  Total number FCC    Small firms     % Small entities
                     Affected entity                       Form 499A filers
----------------------------------------------------------------------------------------------------------------
Wireless Telecommunications Carriers (except Satellite).               585             498                85.13
----------------------------------------------------------------------------------------------------------------


[[Page 66068]]

D. Description of Economic Impact and Projected Reporting, 
Recordkeeping, and Other Compliance Requirements for Small Entities

    31. The RFA directs agencies to describe the economic impact of 
proposed rules on small entities, as well as projected reporting, 
recordkeeping and other compliance requirements, including an estimate 
of the classes of small entities which will be subject to the 
requirement and the type of professional skills necessary for 
preparation of the report or record.
    32. The FNPRM seeks comment on potential rule changes that may 
affect reporting, recordkeeping and other compliance requirements. 
Specifically, the FNPRM seeks comment on the following: (1) the 
identification of ``undertaking'' in the context of the deployment of 
communications facilities; (2) the batching process for submitting 
multiple proposed applications for section 106 review; (3) bringing 
into section 106 compliance existing towers that are non-compliant; (4) 
trends that have developed in the indication of Geographic Areas of 
Interest; (5) streamlining the re-establishment of communications 
infrastructure capacity after damage from natural disasters and other 
emergencies; and (6) modification of procedures for applicants to 
notify Tribal Nations of proposed tower builds and collocations, and 
reciprocally, for Tribal Nations to respond by indicating whether such 
proposal may affect historic properties to which they attach religious 
and/or cultural significance. The FNPRM also seeks comment on whether 
the construction of communications facilities connected with the 
issuance of a Commission license for the use of spectrum is an ``agency 
action'' under the ESA where the Commission does not grant a license or 
permit for deployment of the facilities themselves, but rather for the 
use of spectrum.
    33. The Commission anticipates that if the record supports a more 
accurate and precise identification of the ``undertaking'' under the 
NHPA for aspects of communications facilities deployment, this will not 
increase the burden on small entities engaged in the section 106 
process and that the expenditure of time and resources on the section 
106 process will be reduced for small entities. Batching is a 
streamlined process whereby section 106 analysis associated with 
proposed communications infrastructure deployments may be submitted to 
State Historic Preservation Officers (SHPOs) and through the Tower 
Construction Notification System (TCNS) in batches instead of 
individually. The FNPRM seeks comment on whether SHPOs and Tribal 
Historic Preservation Officers (THPOs) should batch submissions and 
under what circumstances. Presently, batching is only in use for the 
deployment of communications facilities associated with the building 
out the Positive Train Control (PTC) railroad safety system through the 
PTC Program Comment. If batching is expanded to additional deployment 
situations, this may require modifications to reporting or other 
compliance requirements for small entities and/or jurisdictions to 
enable such submissions. The Commission anticipates that batching 
rather than individual submissions will add no additional burden to 
small entities and may reduce the cost and delay associated with the 
deployment of wireless infrastructure. The Commission also anticipates 
that if the record supports a more accurate and precise identification 
of ``agency actions'' under the ESA for aspects of communications 
facilities deployment, this will not increase the burden on small 
entities engaged in complying with the ESA and that the expenditure of 
time and resources in complying with the ESA will be reduced for small 
entities.
    34. Additionally, the FNPRM seeks comment on whether and through 
what procedures the Commission should act to bring into section 106 
compliance existing towers that are now non-complaint. The Commission 
anticipates that if the record supports adoption of a process that can 
facilitate section 106 compliance that this will reduce the burden on 
small entities by diminishing expenses and delays associated with the 
deployment of wireless infrastructure because the number of 
opportunities to collocate will increase for small entities. This 
change will allow small entities to have more opportunities to avail 
themselves of the multiple section 106 exclusion scenarios permitted by 
the Collocation NPA.
    35. The Commission also seeks comment on trends in the 
identification of Geographic Areas of Interest by Tribal Nations and 
NHOs. These are areas within which Tribal Nations or NHOs have 
identified historic properties with religious and cultural significance 
to them. The Commission seeks comment both on whether the record 
includes data indicating a significant expansion of the geographic area 
being selected, and, if so, on methods that might assist with 
processing the enlarged geographic scope. If such methods are 
meritorious, the Commission anticipates that the time and resource 
burden expended on the section 106 process would be reduced for small 
entities.
    36. The Commission also seeks comment on whether the repair or 
replacement of a damaged tower structure that results in a 
communication capacity emergency should be able to proceed without 
section 106 review in circumstances in which section 106 review had 
been completed for the structure at that site prior to it being 
damaged. The Commission anticipates that if the record supports 
adoption of this approach, this will reduce the burden on small 
entities of re-establishing communications capacity in emergency 
situations. The Commission also seeks comment regarding whether Tribal 
Nation requests for Government-to-Government consultation concerning 
the proposed deployment of communications infrastructure have a 
material effect on the timing of these deployments, and, if so, what 
modifications could be adopted to ameliorate timing delays without 
compromising the integrity of these consultations. The Commission 
anticipates that if the record supports both a determination that these 
consultations generally have a material impact on the timing of 
facilities deployment, and the adoption of adjustments that can shorten 
the timetable while preserving the integrity of the consultation 
process, that small entities will benefit in terms of saved time and 
resources expended to accomplish facilities deployments.
    37. Finally, the FNPRM seeks comment on more definite timelines for 
section 106 review. The Commission current rules provide procedures for 
applicants to notify Tribal Nations and NHOs (Tribal Nations/NHOs) of 
proposed tower builds and collocations, and reciprocally, for Tribal 
Nations/NHOs to respond by indicating whether such proposals may affect 
historic properties to which they attach religious and/or cultural 
significance. Changes to these rules should benefit small entities by 
making for a more standardized and efficient process and implementation 
of these changes should save small entities resources. Such 
modifications should resolve timeliness issues without compromising the 
integrity of the consultation process.
    38. At this time, the Commission cannot quantify the potential cost 
savings of any rules changes discussed in the FNPRM, should they be 
adopted. The Commission does not believe that small entities would need 
to hire professionals in order for them to comply with the proposed 
rules. As part of the Commission's invitation for

[[Page 66069]]

comment by interested parties, however, the Commission requests that 
any small entities participating in the comment process discuss any 
benefits or drawbacks associated with the proposed approaches, provide 
information on their current costs of compliance with the Commission's 
existing rules, as well as provide data and information on any 
differential impacts faced by small entities. The Commission expects 
the information the Commission receives in comments to help the 
Commission identify and evaluate relevant matters for small entities, 
including compliance costs, and identify other burdens that may result 
from the matters raised in the FNPRM.

E. Discussion of Significant Alternatives Considered That Minimize the 
Significant Economic Impact on Small Entities

    39. The RFA directs agencies to provide a description of any 
significant alternatives to the proposed rules that would accomplish 
the stated objectives of applicable statutes, and minimize any 
significant economic impact on small entities. The discussion is 
required to include alternatives such as: ``(1) the establishment of 
differing compliance or reporting requirements or timetables that take 
into account the resources available to small entities; (2) the 
clarification, consolidation, or simplification of compliance and 
reporting requirements under the rules for such small entities; (3) the 
use of performance rather than design standards; and (4) an exemption 
from coverage of the rule, or any part thereof, for such small 
entities.
    40. In developing its proposals in the FNPRM for minimizing 
significant economic impact on small entities, the Commission 
considered significant alternatives. The Commission will continue to 
consider a number of approaches to refining its section 106 processing 
rules, including by seeking comment on whether to expand the batching 
approach to section 106 submissions. The Commission will also consider 
the record in refining its compliance with the ESA. Part of the 
determination process will include consideration of savings in time and 
financial resources for small entities.
    41. In addition, the FNPRM invites comment from small entities on 
alternative approaches in which the Commission could refine its 
historic preservation section 106 processing rules and its compliance 
with ESA in ways that will reduce economic impact and regulatory 
burdens on project sponsors. The Commission then will decide what 
actions it should take based on the subsequently developed record. Part 
of the decisional process will include evaluating the impact of these 
decisions on small entities and what alternatives the Commission might 
adopt to lessen significant economic impacts and regulatory burdens on 
small entities. The Commission will consider alternative proposals and 
approaches from commenters that would minimize the economic impact on 
small entities. The Commission's evaluation of the comments filed in 
this proceeding will shape the final conclusions it reaches, the final 
alternatives it considers, and the actions it ultimately takes to 
minimize any significant economic impact that may occur on small 
entities from the final rules.

F. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules

    42. None.

III. Ordering Clauses

    43. It is ordered, pursuant to sections 4(i), 301, 302, 303(r), 
308, 309, and 333 of the Communications Act of 1934, 47 U.S.C. 154(i), 
301, 302a, 303(r), 308, 309, 333, that this Further Notice of Proposed 
Rulemaking, is adopted as set forth above.
    44. It is further ordered that the Office of the Secretary shall 
send a copy of this Further Notice of Proposed Rulemaking, including 
the Initial Regulatory Flexibility Analyses, to the Chief Counsel for 
Advocacy of the Small Business Administration.

Federal Communications Commission
Marlene Dortch,
Secretary, Office of the Secretary.
[FR Doc. 2026-21347 Filed 10-16-26; 8:45 am]
BILLING CODE 6712-01-P


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