Legal

Seven Oklahoma tribes push back on FCC order

Seven Oklahoma tribes are pushing back against an order from the Federal Communications Commission that they claim ignores consultation requirements.

On May 14, the Osage Nation, Shawnee Tribe, Ponca Tribe, Delaware Nation, Otoe-Missouria Tribe, Pawnee Nation and the United Keetoowah Band of Cherokee Indians filed a petition with the federal appeals court in the District of Columbia challenging an FCC order regarding the siting review process for cell phone towers.

Both the National Historic Preservation Act and the National Environmental Policy Act require that tribes be consulted before any infrastructure projects are started.

However, as published in the May 3 edition of the Federal Register, the final version of the FCC’s Wireless Infrastructure Streamlining Order will allow wireless companies to forego tribal consultation before setting up small cell wireless antennae.

There are an estimated 13,000 small cell deployments nationwide, with that figure expected to increase to more than 800,000 over the next decade.

Additionally, the changes now say that wireless companies are no longer legally obligated to pay upfront fees to tribes when providing an opportunity to comment on proposed cell tower projects.    

Tribes’ historical preservation offices often use those fees to cover the costs of studies to determine whether the proposed tower would impact any historical sites.

The changes do not apply to proposed cellular towers that are near an airport or are more than 200 feet tall.

Despite public comments from multiple tribes nationwide against the proposed change, the FCC approved the order in March by a 3-2 vote along party lines in an effort to expedite the expansion of 5G technology.

In the challenge, the seven Oklahoma tribes – all of which participated in the FCC’s public comment period – refer to the order as arbitrary and capricious and an abuse of discretionary authority that could open the door for other federal agencies to ignore consultation obligations.

“Unless the courts intervene, the FCC is on course to promote cell phone infrastructure construction without providing Indian Nations with legally-required consultation,” attorney Scott Sypolt wrote in a legal memo obtained by Osage News. “This could establish precedent for other agencies to water down or eliminate government-to-government consultation with Indian Nations.”

As of May 30, the FCC has not filed a response. The commission’s communications department did not respond to requests for comment on the petition.