FCC to reconsider allowing wireless companies to forego tribal consultation

WASHINGTON — The Federal Communications Commission is asking a federal court to put a temporary hold on proceedings while it reconsiders an order drawing ire from tribes across the country.

On July 2, FCC attorneys filed a motion with the U.S. Court of Appeals for the District of Columbia Circuit, asking for an abeyance while the commission reviews petitions challenging its Wireless Infrastructure Streamlining Order. 

As published in the May 3 edition of the Federal Register, the final version of the order will allow wireless companies to forego tribal consultation before setting up small cell wireless antennae.

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.

“A number of parties have petitioned the Commission for administrative reconsideration…” wrote FCC Associate General Council Jacob Lewis. “With the exception of one petition, all of these pending petitions for reconsideration raise at least one of the two principal questions presented by petitions for this court to review, namely whether the Commission erred in concluding that small wireless facility deployments are exempt from NHPA [National Historic Preservation Act] and NEPA [National Environmental Protection Act] review and whether the Commission adequately consulted with Indian tribes.”

If the FCC’s motion is granted, they would be required to provide regular updates to the court on the status of the reconsideration process.  

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 in May, challenging the order. Since the initial filing, the Sac and Fox Nation, Delaware Tribe of Indians and Thlopthlocco Tribal Town have joined the fray.

The Seminole Tribe of Florida, the Omaha Tribe of Nebraska, the South Dakota-based Crow Creek Sioux Tribe and Natural Resources Defense Council have filed similar complaints.