Community , Legal

Tribes seek emergency stay in FCC tribal consultation case

WASHINGTON — Almost 20 tribes – including the Osage Nation – are seeking an emergency stay as part in an effort to block an order from the Federal Communications Commission they claim ignores tribal consultation requirements.

Filed in late July with the federal appeals court in the District of Columbia, the tribes’ motion asks for the court to stop implementation of the FCC’s Wireless Infrastructure Streamlining Order.

As enacted, the order’s final version allows cell phone companies to skip tribal consultation before setting up small cell wireless antennae that are less than 200 feet tall or not adjacent to an airport. The order carves out an exemption to both the National Historic Preservation Act and the National Environmental Policy Act, which require that tribes be consulted before any infrastructure projects are started.

On July 2, the day the rule was scheduled to take effect, the FCC submitted a request that the order be held in abeyance while its members reconsidered, but withdrew the motion on July 25, after the tribes filed for an emergency stay.

“This case involves the intersection of three major elements of federal policy: telecommunications, the environment and respect for tribal sovereignty,” attorney Joel Bertocchi wrote on behalf of the 10 Oklahoma tribes challenging the FCC order. “The FCC places primary emphasis on telecommunications and gives short shrift to the implications of its actions on these other two critical elements of national concern. Its failure to consider these concerns and its lack of expertise in NEPA (National Environmental Policy Act) and NHPA (National Historic Preservation Act) have a dramatic and adverse effect on the health, self-determination and dignity of Americans.”

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.

As per court filings, the FCC is projecting more than 25,000 new cell towers – most of them shorter and closer together – in the coming year as part of an effort to build up 5G network coverage.

“A stay pending review will impede the efforts of numerous wireless carriers to deploy small wireless facilities and to make more advanced wireless service available,” attorney Thomas Johnson Jr., wrote on behalf of FCC in opposition to the motion for an emergency stay.

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 also joined the litigation, with intervention requests pending from the Peoria, Tonkawa, Apache, Cheyenne and Arapaho and Mescalero Apache tribes and the Alabama-Quassarte Tribal Town.

Eight additional tribes, an inter-tribal organization and the Natural Resources Defense Council have also filed similar complaints. An intervention request is also pending from the National Trust for Historic Preservation in the United States.