D.C. Circuit Remands FCC 5G Order

August 15, 2019

On August 9, 2019, the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) remanded part of a Federal Communications Commission (“FCC” or “Commission”) order which had allowed wireless carriers to deploy 5G “small-cell” sites without undergoing environmental or historic reviews.  See United Keetoowah Band of Cherokee Indians in Oklahoma, et al. v. FCC, No. 18-1129 (D.C. Cir. Aug. 9, 2019).  The FCC’s March 2018 Second Report and Order in its Wireless Infrastructure docket (WT 17-79) was intended to expedite the nationwide 5G rollout by exempting small-cell sites from National Environmental Policy Act (“NEPA”) and National Historic Preservation Act (“NHPA”) requirements.  In that order, the FCC concluded that the NEPA and the NHPA are inapplicable to small-site fixtures, which are instead subject to state and local oversight.  The FCC’s Order also concluded that NEPA and NHPA review of small cell deployments is unnecessary because small cells are likely to be collocated on existing structures and are “inherently unlikely to trigger environmental and historic preservation concerns.”

Several Native American tribes, including United Keetoowah Band and Blackfeet Tribe, and the Natural Resources Defense Council, argued before the D.C. Circuit that Second Report and Order was arbitrary and capricious, and the Court agreed, stating that the FCC “failed to justify its confidence that small cell deployments pose little to no cognizable religious, cultural, or environmental risk, particularly given the vast number of proposed deployments and the reality that the Order will principally affect small cells that require new construction.”  The Court also stated that “[i]n light of its mischaracterization of small cells’ footprint, the scale of the deployment it anticipates, the many expedients already in place for low-impact wireless construction, and the [C]ommission’s decades-long history of carefully tailored review, the FCC’s characterization of the order as consistent with its longstanding policy was not ‘logical and rational,’” citing Michigan v. EPA, 135 S. Ct. 2699, 2706 (2015).

In the end, however, both sides declared victory.  Despite the partial remand, the Court upheld important process modifications, including a reduced 45-day time frame within which Native American tribes must review proposed cell sites,  and clear prohibition of upfront fee requirements. In response to this part of the decision, Commissioner Carr expressed satisfaction, stating that he was “pleased that the court upheld [the order’s] key provisions” and that the “reforms have resulted in significant new builds.”  Commissioner Carr added that the FCC “has been focused on cutting red tape so that all Americans . . . can have access to . . . 5G,” which “enable[s] the U.S. to leapfrog our global competitors and secure the largest 5G build in the world.”

If you would like additional information regarding the D.C. Circuit’s decision, or the Wireless Infrastructure docket generally, or if you are in need of assistance with telecommunications litigation or compliance, please contact Charles Zdebski at 202.659.6605 (czdebski@eckertseamans.com).

This Utilities and Telecommunications Alert is intended to keep readers current on matters affecting businesses and is not intended to be legal advice.

© Eckert Seamans Cherin & Mellott, LLC, 2019, all rights reserved.

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