Tribes Vie at DC Circuit for Input on Telecom Work

WASHINGTON (CN) - A lawyer for the Federal Communications Commission may have overplayed the agency’s hand Friday at the D.C. Circuit in denying that a 2018 rule change would endanger sites sacred to Native Americans.

Inspiring the challenge at issue, the FCC determined last year that a National Historic Preservation Act review was no longer necessary for “small wireless facilities deployed on nontribal lands.”

Though a group of tribes contends that the rule change puts countless sites at risk for the sake of a review that costs only $532, FCC attorney Jacob Lewis noted that at oral arguments Friday that the odds of disturbing an ancient or cultural site were “miniscule.”

Noting that most “small cells” requiring new construction would be built on already disturbed ground, Lewis said just 0.3 percent or prior reviews unearthed any kind of historic or environmental impact.

That number did not sit well, however, with U.S. Circuit Judge Cornelia Pillard, one of three on Friday’s panel.

”It's a very small portion but it may well be a very small proportion that's very important to the people involved," Pillard said. 

Natalie Landreth, an attorney with the Native American Rights Fund, picked up that point in her closing remarks, and urged the court to "do the math."

"If there are 100,000 sites coming in the next few years - as defendants concede - three-tenths of 1 percent is 300 sites lost to all of us forever," Landreth said. "They may think that's infinitesimal. To us it means the world."

Landreth represents the Blackfeet and roughly two dozen other Native American tribes contesting the rule change approved last May in a 3-2 vote by the FCC. 

In addition to determining that environmental and historical reviews are no longer necessary before installing "small cell" 5G infrastructure on nontribal lands, the FCC nixed the once-required tribal consultations on cellular-infrastructure construction plans.

Landreth called it no big comfort Friday that the new rule applies to only nontribal land.

"I think we all know why that's irrelevant and that's because of the forced removal and dispossession of most Native American people," Landreth said. "Their sites are off tribal lands, with very few exceptions.”

Explaining that ongoing tribal consultation is critical, even on nontribal lands, Landreth also recalled how there was an attempt to replace an ancient burial site on Indian land with a small cell tower.

"Up until about 250 years ago, 100 percent of this country was Indian land," Landreth said. "There are countless ancient sites - some older than the pyramids in Egypt - as well as more modern sites all across this country, and all irreplaceable once lost. And all part of our collective national heritage.”

The FCC says it implemented the rule change to speed up the nationwide 5G rollout and reduce the associated costs, though Landreth disputes the FCC’s argument, that reviews now account for one-third of the cost of deployment.

Contending that the FCC presented insufficient evidence of escalating costs, Landreth said the agency cited a single study.

Landreth also suggested that the National Historic Preservation Act lacks a cost-benefit analysis component, saying it requires that the review processes apply to all federal undertakings.

The FCC meanwhile says that the rule needed revisiting, not having been updated since 2004 when cell towers were large.

"The FCC logically recognized that small cell facilities should not be treated the same way as a 200-foot tower," FCC attorney Lewis said Friday.

When the FCC took a "fresh look" at its application of limited approval authority as it pertained to small cells, Lewis said the agency determined that the costs of the reviews were "wildly out of proportion" to the evidence about the benefits of those reviews.

While the FCC has characterized small cells as being no larger than a pizza box, attorney Landreth called that analogy disingenuous Friday — a point she made in her brief last month as well.

"The 'pizza box' is really tens of thousands of pizza boxes, some on their own new, tall towers, and very close together," the brief says.

Landreth conceded that many small cells will be added to older cellular infrastructure, but said 20 percent will require brand new construction.

In addition to the Blackfeet and the National Resources Defense Council, tribes like the United Keetoowah Band of Cherokee Indians in Oklahoma, the Omaha Tribe of Nebraska and the Seminole Tribe of Florida each filed separate petitions for review with the D.C. Circuit.

Several other tribes intervened on their behalf, while Sprint Corporation and wireless trade association CTIA intervened on behalf of the government.

U.S. Circuit Judges Pillard, David Tatel and Harry Edwards heard the consolidated cases Friday morning.

Landreth noted that Congress amended the National Historic Preservation Act in 1992 specifically to include tribal heritage sites.

"And in this case the FCC purports to exclude itself from those obligations that created a process specifically to safeguard our ancient national heritage," Landreth said. "Just to save a few hundred dollars for billion-dollar private companies."

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