One of Ajit Pai’s attempts to eliminate regulation of 5G deployment has been overturned by federal judges.
The Federal Communications Commission last year approved an order that “exempted most small cell construction from two kinds of previously required review: historic-preservation review under the National Historic Preservation Act (NHPA) and environmental review under the National Environmental Policy Act (NEPA),” federal judges said in their decision partially overturning the order.
The FCC claimed its deregulation of small cells was necessary to spur deployment of 5G wireless networks. But the commission was sued by the United Keetoowah Band of Cherokee Indians in Oklahoma, the Blackfeet Tribe, and the Natural Resources Defense Council (NRDC). The FCC order was of particular interest to tribal groups because it affected construction on “sites of religious and cultural importance to federally recognized Indian Tribes,” the judges noted. “The Order also effectively reduced Tribes’ role in reviewing proposed construction of macrocell towers and other wireless facilities that remain subject to cultural and environmental review.”
The FCC’s opponents argued that the elimination of historic-preservation and environmental review was arbitrary and capricious, that it violated both the NHPA and NEPA, and that the changes to tribes’ role in reviewing construction was arbitrary and capricious. A three-judge panel of the US Court of Appeals for the District of Columbia Circuit issued its unanimous ruling today.
Judges wrote that Pai’s order “does not justify the Commission’s determination that it was not in the public interest to require review of small cell deployments. 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 proposed deployments and the reality that the Order will principally affect small cells that require new construction.”
The FCC also failed to “adequately address possible harms of deregulation and benefits of environmental and historic-preservation review,” which means the commission’s “deregulation of small cells is thus arbitrary and capricious,” judges concluded.
The judges did not vacate the FCC order in its entirety, and they remanded some remaining issues back to the commission.
“Today’s decision confirms that the FCC cannot just scream ‘5G’ to justify ignoring its duties to tribal nations and to the environment,” attorney Andrew Jay Schwartzman, who helped oppose the FCC order, said today. “The decision does give the FCC more latitude than we would prefer on some of the mechanisms for tribal review, but we will deal with that on the remand.”
Separately, the Pai FCC’s attempt to take certain Lifeline broadband subsidies away from tribal residents was overturned by the same court in February this year.
“Back to the drawing board”
Last year’s FCC vote on the small cell order was 3-2, with both Democrats dissenting. FCC Democrat Jessica Rosenworcel hailed the judges’ ruling today, writing that “the court just vacated a large part of the FCC’s 5G deployment strategy” and that “it’s time to go back to the drawing board and do better.”
Brendan Carr, an FCC Republican, put a positive spin on the ruling, saying it “upheld key provisions.” Carr wrote:
Most importantly, the court affirmed our decision that parties cannot demand upfront fees before reviewing any cell sites, large or small. These fees, which had grown exponentially in the last few years, created incentives for frivolous reviews unrelated to any potential impact on historic sites. Those financial incentives are gone, and we expect our fee restrictions to continue greatly diminishing unnecessary and costly delays. I’m also pleased that the court affirmed our accelerated timelines for reviews. Already, these reforms have resulted in significant new builds.
As for the judges remanding parts of the order back to the FCC, Carr said, “We are reviewing the portion of last March’s decision that the DC Circuit did not affirm and look forward to next steps, as appropriate.”
Carr’s statement also claimed that the FCC’s deregulatory moves “have enabled the US to leapfrog our global competitors and secure the largest 5G build in the world.”
But FCC changes haven’t had the impact that Carr claims. Another FCC order last year eliminated $2 billion worth of local fees charged to carriers for deployment of small cells on public rights-of-way. Carr had claimed that this decision was needed to boost 5G construction, but Verizon said that the FCC decision did nothing to speed up its deployment. Cities are suing the FCC to overturn that order.