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 docs.fcc.gov/​public/​attachments/​FCC-26-64A1.pdf. 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. See47 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, see44 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 www.fcc.gov/​proposed-rulemakings. To request materials in accessible formats for people with disabilities ( e.g., Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov 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 ( printed 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 § 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 § 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 ( printed 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 ( printed 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 § 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. ( printed 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.

( printed 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 ( printed 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.