Tribes win in federal appeals court against FCC

WASHINGTON — A federal appeals court has determined that the Federal Communications Commission’s attempt to deregulate small cell phone deployments – and leave tribes out of the process – is arbitrary and capricious.

Siding with the Osage Nation and more than 20 other tribes, a three-judge panel with the Court of Appeals for the District of Columbia ruled Aug. 9 that the FCC downplayed the impacts of an order that would allow for the expansion of small cell transmitters without public comment.

As approved by the FCC in 2018, the Wireless Infrastructure Streamlining Order would have allowed 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 would have carved 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 order would have eliminated the legal obligation for wireless companies 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.

In the decision, the three judge panel declined to say whether the FCC failed to meet the consultation requirement necessary to implement the order, but determined that the commission did not follow the established processes to receive a categorical exception to the NHPA or NEPA. 

“In particular, the commission 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 deployments and the reality that the order will principally affect small cells that require new construction,” Judge Cornelia Pillard wrote. “The commission accordingly did not, pursuant to its public interest authority … adequately address possible harms of deregulation and benefits of environmental and historic preservation review.”

Despite public comments from multiple tribes nationwide against the proposed change, the FCC approved the order in March 2018 by a 3-2 vote along party lines in an effort to expedite the expansion of 5G technology.

Along with the United Keetoowah Band of Cherokee Indians and Osage Nation, four other Oklahoma tribes filed the initial challenge in May 2018 to the FCC’s order.

Since that initial filing, tribes from across the country 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 joined the fray as well.