Community , Legal

Federal appeals court to hear tribes’ lawsuit against the FCC in March

More than 20 tribes, including the Osage Nation, will get their day in court this spring to attempt to block an order from the Federal Communications Commission they claim ignores tribal consultation requirements.

According to court records, oral arguments are scheduled for March 15 in United Keetoowah Band of Cherokee Indians et al vs. FCC.

Filed in May with the federal appeals court in the District of Columbia, the tribes’ complaint 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 consultations 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.

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 a 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 months as part of an effort to build up 5G network coverage.

“The FCC specifically targeted tribes to remove them from the tower review process,” Native American Rights Fund attorneys Natalie Landreth and Wesley Furlong wrote. “For the first time, a federal agency purported to excuse itself from compliance with the NHPA by single-handedly defining ‘undertaking’ on a nationwide scale. If the FCC can do this, other federal agencies may do so as well. That is why the tribes have firmly opposed this rule: the FCC’s actions are not only illegal, they are unprecedented and pose enormous risks for all tribes and their cultural properties.”

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, tribes from across the country have joined the litigation, including the Sac and Fox Nation, Delaware Tribe of Indians, Thlopthlocco Tribal Town, the Peoria Tribe, Tonkawa Tribe, the Apache Tribe of Oklahoma, the Cheyenne and Arapaho Tribes, the Mescalero Apache Tribe, the Alabama-Quassarte Tribal Town, Montana’s Fort Belknap Indian Community, the Coushatta Tribe of Louisiana and the Rosebud Sioux Tribe.

An inter-tribal organization, the Natural Resources Defense Council and the National Trust for Historic Preservation in the United States have also joined the fray as well.