On Friday, August 9, 2019, the DC Circuit Court of Appeals struck down an order issued by the Federal Communications Commission (FCC) that would have exempted construction of the 5G cellular network from laws that protect Indian sacred sites, cultural resources, and the environment.
In the past, wireless cellular service depended on large towers to transmit signals. The latest generation of wireless service, called 5G, would shift wireless service to smaller but far more densely packed wireless facilities. Although they are called “small cells,” they are in fact more intrusive and have greater impacts because they are far more numerous. These so-called small cells are also not small, since most of them will require entirely new towers be built to position them. The FCC has exclusive control of this entire cellular spectrum.
In order to accelerate the deployment of 5G—to the benefit of some of the world’s wealthiest companies—in March 2018 the FCC issued a new Order that purported to exempt this entire 5G network from review under the National Historic Preservation Act (NHPA) and the National Environmental Policy Act (NEPA). On the books since the 1960s and early 1970s, these laws are meant to protect all Americans’ cultural heritage and environment by ensuring that citizens’ voices could be heard in federal government permitting processes, such as those that ordinarily occur when companies wish to build communications infrastructure throughout the United States. In the new Order, the FCC sought to excuse itself from compliance with these federal laws, meaning that private companies could construct new towers and “small cells” on top of irreplaceable historic sites, and even burials, at will without having to secure any federal permission. The FCC’s Order was essentially a gift to industry saying ‘build anywhere you want, no questions asked.’ This makes no sense, especially when the cost of typical small cell NHPA and NEPA reviews is only several hundred dollars. In other words, the impacts are large, the cost is small, and the FCC still tried to write itself a hall pass to avoid complying with federal environmental laws. On Friday, the DC Circuit effectively tore up that ‘hall pass.’
The Tribes sued to stop implementation of this new Order, and they prevailed. The DC Circuit ruled:
The Commission failed to justify its determination that it is not in the public interest to require review of small cell deployments. We therefore grant the petitions in part because the Order’s deregulation of small cells is arbitrary and capricious. The Commission did not adequately address the harms of deregulation or justify its portrayal of those harms as negligible. In light of its mischaracterization of small cells’ footprint, the scale of deployment it anticipates, the many expedients already in place for low-impact wireless construction, and the Commission’s decades-long history of carefully tailored review, the FCC’s characterization of the Order as consistent with its longstanding policy was not “logical and rational.”
The case has now been remanded to the FCC and the Tribes look forward to participating in that process.
The Native American Rights Fund and Greenberg Traurig LLP represent the Blackfeet Tribe, Coushatta Tribe of Louisiana, Fort Belknap Indian Community, Rosebud Sioux Tribe, Ute Mountain Ute Tribe, and USET (United Southern and Eastern Tribes, Inc.) in the case.
Decision available at https://www.narf.org/nill/documents/20190809fcc-decision.pdf
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