FCC Asks DC Circuit To Pause Small Cell Rule Challenges

by Adam Lidgett, Law360, July 3, 2018; additional reporting by Bryan Koenig, Kelcee Griffis and Andrew Westney. Editing by Adam LoBelia. | Original article here.

The Federal Communications Commission asked the D.C. Circuit to put on hold combined challenges from Native American tribes and environmentalists to an agency rule exempting from environmental and historic reviews small-cell fixtures necessary for building up next-generation or 5G networks.

The FCC on Monday asked the court to hold in abeyance the consolidated cases challenging a decision to exclude various small wireless fixtures from reviews under the National Environmental Policy Act and National Historic Preservation Act. The agency said it received petitions from various entities asking it to administratively rethink the decision at issue, and that an action on reconsideration might be able to “narrow or further crystallize the scope of the issues that the court will need to review.”

“With the exception of one petition, all of these pending petitions for reconsideration raise at least one of the two principal questions presented by the petitions for review by this court, namely, whether the commission erred in concluding that small wireless facility deployments are exempt from NHPA and NEPA review, and whether the commission adequately consulted with Indian tribes,” the FCC said. “(Some of the petitions also ask the commission to address other issues, such as whether harms associated with radio frequency radiation provide a basis for the agency to reconsider its decision.)”

The lead petition at the D.C. Circuit says that the FCC exceeded its authority, including by defining what the NHPA meant by an “undertaking.” The petition further argued that the exemption amounts to an abuse of discretion, runs counter to past FCC decisions and “the federal framework of law and regulation providing sovereignty to Native American Tribes,” fails both notice-and-comment and tribal consultation requirements, and is not “based on substantial credible evidence.”

The FCC rule at issue, passed on a party-line vote in March, declared that the act of deploying small-cell nodes does not constitute a “federal undertaking” or a “major federal action” and eliminated the need for reviews under the NHPA and NEPA.

Four consolidated cases have been filed so far: three from various tribes and one from the Natural Resources Defense Council.

The lead case comes from the United Keetoowah Band of Cherokee Indians in Oklahoma and a group of other tribes. Another challenge was filed by the Crow Creek Tribe of South Dakota and the Omaha Tribe of Nebraska. The last challenge comes from the Seminole Tribe of Florida.

When it adopted the order, the FCC made clear that it applies to projects expected to have a small footprint, such as “backpack”-sized small-cell nodes attached to telephone poles and other existing structures. FCC Commissioner Brendan Carr had said the step is necessary to populate the denser networks supporting next-generation mobile services.

  • The FCC and the NRDC declined to comment
  • Counsel for the tribes did not immediately respond to requests for comment on Tuesday.
  • The tribes in the lead case are represented by Joel Bertocchi, J. Scott Sypolt, Dean A. Dickie and Jeffrey J. Mayer of Akerman LLP.
  • The Seminole Tribe of Florida is represented by Joseph H. Webster and F. Michael Willis of Hobbs Straus Dean & Walker LLP.
  • The Crow Creek Tribe of South Dakota and the Omaha Tribe of Nebraska are represented by Stephen Díaz Gavin of Rimon PC, and Gary J. Montana of Montana & Associates LLC.
  • The NRDC is represented in-house by Sharon Buccino.
  • The FCC is represented in-house by Jacob M. Lewis and C. Grey Pash Jr.
  • The government is represented by Jonathan H. Lasken and Robert B. Nicholson of the U.S. Department of Justice.
  • The lead case is United Keetoowah Band of Cherokee Indians in Oklahoma et al. v. FCC et al., case number 18-1129, in the U.S. Court of Appeals for the D.C. Circuit.