FCC Proposes Major NEPA Review Changes for Wireless and Satellite Projects

On September 9, 2026, the Federal Communications Commission (FCC or Commission) released a draft Report and Order and Further Notice of Proposed Rulemaking (Draft Order and Draft FNPRM) that would substantially narrow the communications infrastructure subject to environmental review under the National Environmental Policy Act (NEPA).

The Draft Order would require the FCC to determine at the outset whether an action constitutes a "major Federal action" (MFA) subject to NEPA. Applying that test, the FCC would conclude that most spectrum authorizations and related infrastructure deployments do not trigger NEPA when the facilities do not require Antenna Structure Registration (ASR). The same general conclusion would apply to earth station licenses and space-based operations.

If adopted, the Draft Order could remove a significant federal review requirement for many wireless and satellite projects. It would not, however, eliminate all environmental, historic preservation, or safety requirements. ASR review, radiofrequency (RF) exposure limits, Endangered Species Act (ESA) obligations, and National Historic Preservation Act (NHPA) Section 106 review may continue to apply independently.

The draft item is scheduled for consideration at the Commission's September 30, 2026, open meeting and remains subject to revision before adoption. Comments and reply comments on the Draft FNPRM would be due 30 days after adoption and 45 days after publication in the Federal Register.

Why It Matters for Operators and Infrastructure Providers

The Draft Order would change the starting point for FCC environmental review.

Under the existing framework, FCC actions generally receive a categorical exclusion from detailed NEPA review, but specified environmental circumstances can trigger an Environmental Assessment. Under the framework included in the Draft Order, the FCC would first ask whether the Commission exercises sufficient control and responsibility over the underlying project for it to constitute an MFA. If not an MFA, NEPA would not apply at all.

For wireless and satellite operators and infrastructure providers, the principal implications are:

• Most non-ASR wireless facilities would fall outside NEPA. This would include deployments associated with geographic-area licenses, site-based licenses, and unlicensed or licensed-by-rule services, provided the facility does not require ASR.
• Earth stations and space-based operations would generally fall outside NEPA. The FCC would find that earth station licensing does not give the Commission sufficient control over associated construction and that space operations qualify for NEPA's exclusion for extraterritorial activities.
• ASR would become the principal trigger for FCC environmental review. New or modified towers generally require ASR if they are more than 200 feet above ground level or are located near an airport, although the precise Federal Aviation Administration and FCC criteria are more detailed.
• Routine projects should not face a new threshold-review step, but borderline projects may require closer analysis. The Draft Order would categorically exclude most non-ASR deployments, while projects involving targeted FCC funding, ASR, or unusual Commission involvement may require a project-specific assessment of federal control.
• Other federal requirements could still apply. A project outside NEPA may remain subject to RF exposure limits, ESA obligations, Section 106 review, and other federal, state, Tribal, and local requirements.

The remainder of this alert explains which projects would likely benefit from these changes, which obligations would remain, and what operators and infrastructure providers should consider before adjusting project schedules or diligence procedures.

A New Threshold for FCC Environmental Review

Congress amended NEPA in 2023 to define MFA as an action subject to substantial federal control and responsibility. Since then, the Administration has pursued a broader effort to streamline federal permitting and reduce regulatory burdens, while the Council on Environmental Quality has directed agencies to revise their NEPA procedures in light of the statutory amendments. Separately, the Supreme Court's 2025 decision in Seven County Infrastructure Coalition v. Eagle County emphasized the substantial discretion agencies have in determining the scope of NEPA review and held that agencies generally need not analyze the effects of separate projects removed in time or place from the action under review.

The FCC's current rules do not begin with an MFA inquiry. Instead, the Commission presumes, without analysis, that certain activities are MFAs but are generally categorically excluded from detailed review unless an "extraordinary circumstance" identified in the rules is present, such as potential adverse effects on listed species or their habitat, historic properties, Tribal religious sites, floodplains, or RF exposure (47 CFR § 1.1307).

The Draft Order would introduce a threshold inquiry that is not explicit in these current rules. The Commission would first determine whether the relevant action is an MFA. Only if it is would the FCC then determine whether a categorical exclusion applies or whether further environmental review is required.

Most Spectrum-Related Deployments Would Not Trigger NEPA

The Draft Order would conclude that FCC spectrum authorizations generally do not constitute MFAs and do not make related infrastructure deployments MFAs.

According to the Draft Order, the connection between spectrum licensing issued by the Commission and the siting or construction of an individual facility is too attenuated to give the FCC substantial control and responsibility over the facility. Although some licenses contain buildout requirements, those requirements generally establish performance standards rather than mandate the construction of a particular facility. A licensee may satisfy them through existing towers, collocation, or other means. This determination would apply to facilities associated with:

• geographic-area licenses;
• site-based licenses;
• unlicensed operations; and
• licensed-by-rule wireless services.

The exclusion would apply only when the facility does not require registration in the ASR database.

The Draft Order would also rely on the absence of federal funding as an independent basis for excluding many projects. Privately financed towers and communications facilities would generally fall outside NEPA unless Commission funding is specifically directed to and conditioned on construction of the particular facility.

Most Earth Stations and Space Operations Would Also Avoid NEPA Review

The Draft Order would apply similar reasoning to satellite infrastructure so long as they do not require antenna structure registration.

Earth station licenses would not be treated as MFAs because the FCC's licensing authority would not give it substantial control over the siting and construction of an individual earth station. Space-based activities, including the launch, deployment, and operation of space stations, would also fall outside NEPA under the statute's exclusion for extraterritorial activities.

The FCC would reject arguments that concerns such as light pollution or orbital debris establish a sufficient connection between Commission licensing and the resulting environmental effects, characterizing those effects as too attenuated for NEPA purposes.

ASR Facilities Would Remain Subject to Review

The most important dividing line for terrestrial operators and infrastructure providers would be whether a tower requires ASR.

ASR generally applies to towers more than 200 feet above ground level and to some shorter towers located near airports. Under the Draft Order, registered towers would remain subject to the FCC's environmental notification and review process.

The FCC would preserve that process under its separate Communications Act authority to regulate antenna structures that may pose a hazard to air navigation, regardless of whether registration itself constitutes an MFA under NEPA.

The Draft Order would also streamline ASR procedures. Among other things, it would eliminate the local public notice requirement, retain a 30-day national notice period, and reduce the period for seeking further review of a completed Environmental Assessment from 30 days to 20 days.

Important Requirements Would Remain

Removal from NEPA would not mean that a project is free from federal environmental or related review.

• RF exposure: The FCC's RF exposure limits would continue to apply to all regulated facilities, including projects that no longer undergo NEPA review. The Draft Order would relocate those requirements to a standalone regulatory provision to make clear that they operate independently of NEPA.
• Endangered species: ESA obligations would also continue to apply independently. The ESA applies to actions that the Commission authorizes, funds, or carries out and is not limited to MFAs under NEPA. Operators and infrastructure providers should therefore avoid treating a NEPA exclusion as resolving potential listed-species or critical-habitat issues.
• Historic preservation: The Draft Order would separate NEPA review from the FCC's Section 106 framework without immediately changing existing historic preservation requirements. The FCC's Nationwide Programmatic Agreements and related Section 106 procedures would remain in effect for now.

As a result, a project falling outside NEPA could still require Tribal consultation and historic preservation review. For many non-ASR deployments, Section 106 may therefore remain the most significant federal review process affecting project schedules.

Unsupported Third-Party Challenges Would Face a Higher Bar

The Draft Order would tighten the standard for requesting additional environmental review of an otherwise excluded action. A requesting party would need to provide specific evidence showing that an action is likely to have a reasonably foreseeable significant adverse environmental effect. The FCC would also adopt page limits and other procedural requirements intended to discourage unsupported or open-ended challenges.

Historic Preservation Review Is the Next Major Question

The Draft FNPRM addresses a central issue left unresolved by the Draft Order: If spectrum licensing does not create sufficient federal control to constitute an MFA under NEPA, should facility construction associated with that license continue to qualify as a federal "undertaking" under Section 106?

The FCC issues licenses authorizing the use of spectrum, not permits approving the construction of individual facilities. The Draft FNPRM therefore seeks comment on whether the connection between spectrum licensing and facility deployment remains sufficient to trigger Section 106.

The FCC also seeks comment on possible improvements to historic preservation review, including batching submissions, addressing noncompliant towers, refining Tribal notification areas, streamlining emergency deployments, and improving consultation timelines.

Changes resulting from the FNPRM could have substantial scheduling and compliance implications for operators and infrastructure providers. Such changes are only proposals at this time and would not take effect through the Draft Order itself.

What Operators and Infrastructure Providers Should Do Now

The Draft Order could materially reduce federal environmental review for wireless and satellite infrastructure, but stakeholders should not yet assume that a project is exempt.

Companies planning deployments should consider:

• identifying projects that do and do not require ASR;
• evaluating whether any FCC funding is directed to a particular facility;
• maintaining existing RF, ESA, and Section 106 compliance procedures;
• assessing whether current development schedules include time for NEPA review that may no longer be necessary if the Draft Order becomes effective;
• tracking any changes made to the item before or during the FCC's September 30 open meeting; and
• submitting comments on the Draft FNPRM where Section 106 procedures materially affect deployment plans after it is published in the Federal Register.

Until the Commission adopts final rules and those rules become effective, operators and infrastructure providers should continue to follow the FCC's existing environmental and historic preservation requirements.

+++

Molly Barker is counsel in DWT's Seattle office, Paul Powell is of counsel in the firm's Portland office, and Elaine Albrich is a partner in our Portland office. DWT's communications and energy, natural resources & environmental teams advise clients on FCC environmental and historic preservation review and related regulatory requirements affecting wireless, satellite, and infrastructure deployments. We are monitoring the proceeding and are available to help clients evaluate how the Draft Order may affect planned facilities or prepare comments on the Further Notice. For more information, please contact the authors or another member of communications and environmental teams and sign up for our alerts.