FCC Walloped for Nixing Construction Reviews on 5G Facilities

WASHINGTON (CN) – Siding with a group of Native American tribes, the D.C. Circuit reinstated environmental and historical review requirements Friday for the construction of new 5G wireless facilities.

Federal Communications Commission Chairman Ajit Pai. (AP Photo/Jacquelyn Martin, File)

For decades, the Federal Communications Commission has required that before new wireless sites can be constructed, they undergo a review of how they might affect the environment and historical sites. These reviews fall under two federal laws, the National Historic Preservation Act and the National Environmental Policy Act.

But with a new round of construction on the horizon for facilities capable of providing 5G wireless service, the FCC issued a policy change in March 2018 to exempt from the review process all the small wireless sites that companies are using to build out their 5G networks. The agency determined the reviews were not required by law and that mandating them would hinder development of 5G networks.

That order brought a host of legal challenges, including one from a group of tribes led by the United Keetoowah Band of Cherokee Indians; others from the Blackfeet Tribe, the Seminole Tribe of Florida, and the Omaha and Crow Creek Tribes; and yet another from the Natural Resources Defense Council.

The tribes said lifting the review requirements would potentially imperil sacred Native American sites as companies plan to construct new facilities to deploy the 5G network.

The D.C. Circuit sided with the tribes Friday, with U.S. Circuit Judge Cornelia Pillard writing for a unanimous three-judge panel that the agency did not back up its claims about it not being in the public interest to impose the reviews.

Pillard said the FCC had downplayed the intrusiveness of the so-called small cell sites, noting that while the sites themselves are small, they can be mounted on towers up to 50 feet high – higher in places with existing tall structures.

She further wrote the FCC did not fully grapple with the impact the new construction would have on the religious and cultural traditions of the tribes, which often require an unobstructed view of the entirety of a mountain range or piece of land. The agency also overstated the burden the reviews would have on the construction of new facilities, Pillard wrote.

“The commission accordingly did not, pursuant to its public interest authority … adequately address possible harms of deregulation and benefits of environmental and historic-preservation review,” Pillard wrote. “The Order’s deregulation of small cells is thus arbitrary and capricious.”

The court vacated the part of the order governing the reviews, sending it back to the FCC for further consideration. It allowed to stand, however, a separate part of the order that cut back on tribes’ ability to review new construction of larger wireless towers and facilities.

While the FCC declined to comment on the ruling, Commissioner Brendan Carr hailed the parts of the decision that upheld portions of the commission’s order.

“I am pleased that the court upheld key provisions of last March’s infrastructure decision,” Carr said in a statement.

He went on to say the order has already “resulted in significant new builds.” Carr also said the commission is reviewing next steps for the parts of the order the D.C. Circuit struck down.

Joseph Webster, a partner at Hobbs Straus Dean & Walker who represented the Seminole Tribe of Florida, called the decision an “important victory.”

“As recognized by the D.C. Circuit, the FCC’s order exempting small cell infrastructure from tribal review and consulting would have undermined federal laws that Congress put in place to protect this country’s irreplaceable cultural heritage,” Webster said in an email Friday.

A spokeswoman for the United Keetoowah Band did not immediately return a request for comment on the decision. 

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