DC Circuit Releases Decision on 2018 FCC Infrastructure Order

On August 9, 2019, the United States Court of Appeals for the District of Columbia Circuit struck down parts of the FCC’s March 2018 Wireless Infrastructure Order in a 3-2 decision, vacating and remanding back to the FCC the Commission’s action to remove the historic preservation (NHPA) and environmental review (NEPA) process surrounding the construction of 5G small cells. The Court retained the Commission’s actions with regard to the restricting of fees and other actions with regard to tribal regulatory reviews.

The Court disagreed with the Commission’s determination that it is not necessary in the public interest to require NHPA and NEPA review of small cell deployment. Specifically, the Court held that the Commission failed to justify its assertions “that small cell deployments pose little to no cognizable religious, cultural, or environmental risk, particularly given the vast number of proposed deployments and the reality that the Order will principally affect small cells that require new construction.” The holding further found that the Commission did not adequately address possible harms of deregulation and the benefits of these review processes, and therefore, is arbitrary and capricious under the Administrative Procedure Act. Accordingly, the Court vacated these provisions, and remanded back to the FCC for further consideration.

However, the Court left intact the Order’s provisions on upfront fees and shortened tribal review process. On upfront fees, the Court confirms that these fees for tribes to comment on proposed deployments are voluntary, and affirms the authority regarding the Commission’s tribal and non-tribal consultation process and Section 106 obligations, rejecting arbitrary and capricious claims. Additionally, the decision upheld the shortened timeline for tribal responses to notifications, finding that the Commission “reasonably justified the decision as a compromise between industry requests for even shorter timelines to address delays, and Tribes’ need for adequate time to review submissions.” Lastly, the Court finds that the Commission properly met its obligations to consult with Tribes in promulgation of the Order, and rejects the arguments that the Order constituted a major federal action and therefore required independent NEPA review, as this issue was never fairly before the Commission.

Following the release of the Court’s decision, Commission Car released a statement focusing on the standing provisions of the Order, specifically those restricting the upfront fees and time tribal authorities can take to consider siting applications. Commissioner Carr states that the Commission succeeded in removing red tape from the cell site review process, and these reforms have and will lead to significant new builds.

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