Skip to content
Hugin
A galvanised steel lattice tower stands on a fresh concrete pad cut into a wooded hillside, photographed from a red dirt access track under a flat grey sky. Mounded red earth, a large spool of heavy cable and stacked timber lie at its base; two small figures in hard hats stand beside a pickup truck further down the track.

Hugin News

The FCC asks whether the construction of communications facilities under a spectrum license is an 'undertaking' under historic-preservation law or an 'agency action' under the Endangered Species Act

3 min read

Original editorial artwork generated for Hugin.

The Federal Communications Commission published a notice October 19 that asks for comment on whether the construction of communications facilities connected with a spectrum license is an 'undertaking' requiring review under section 106 of the National Historic Preservation Act, or an 'agency action' requiring review under the Endangered Species Act. The notice adopts no rule; it only seeks comment, and it proposes no end to tribal consultation. Comments, identified by WT Docket No. 25-217, are due November 18, 2026, and reply comments December 3, 2026.

fccnepahistoric-preservationendangered-species-actwireless-infrastructure
source receipts
4
source hosts
3
read time
3min
primary source
Linked

The Federal Communications Commission published a notice October 19 asking whether the construction of communications facilities connected with an FCC spectrum license is subject to historic-preservation review, or to Endangered Species Act review. The notice adopts no rule; it seeks comment.

What the notice asks

Section 106 of the National Historic Preservation Act requires federal agencies to take into account the effect of an undertaking on any historic property.

The Commission previously determined that the issuance of a geographic area license constituted an undertaking because of its "limited approval authority" in section 1.1312 of the NEPA rules, which required completion of the environmental review process prior to tower construction. The notice says a companion order rescinded that section. It now seeks comment on whether the construction of communications facilities connected with a Commission spectrum license should be regarded as an undertaking — "the Commission licenses the use of spectrum, not facilities" — and on whether the order's actions "merit reconsideration of the determination that Commission spectrum licensing activities are subject to NHPA review." It asks whether any clarification should apply prospectively or also to facilities built prior to 2005.

Under the Endangered Species Act, 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." The notice asks whether that same construction is one.

The other questions

The notice's tribal questions are separate, and none of them proposes ending consultation. It seeks comment on how often tribal consultations extend tribal response timelines beyond 60 days, and 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." Commission staff placed approximately 20,539 such calls from July 2, 2018 through January 8, 2026, the notice says, approximately 1,669 of them in 2025. It also seeks comment on batching installation submissions, on bringing towers that lack section 106 review or its documentation into compliance, and on section 106 efficiencies for emergency and disaster situations.

What has not taken effect

Nothing in this notice is in force. The companion order, adopted the same day, September 30, 2026, determined that spectrum licenses and facilities deployment in connection with them are not subject to National Environmental Policy Act review, the notice says. That order is a separate document, which the Federal Register has not yet published. Its own terms make it effective 30 days after that publication, with its other rule revisions held back until after Office of Management and Budget review and a later notice.

The dates

The DATES paragraph begins: "Comments are due on or before November 18, 2026; reply comments are due on or before December 3, 2026." Both dates are printed, not computed. The same paragraph says comments on the notice's Initial Regulatory Flexibility Analysis "must have a separate and distinct heading designating them as responses to the IRFA" and are due the same November 18 date. The Federal Register's own record carries that paragraph and lists November 18 in its comment-closing field; it has no reply-comment field. The item is FCC 26-64; the notice's supplementary-information paragraph prints "FCC 25-64" for both it and the order.

Source links