The United States Court of Appeals for the District of Columbia Circuit (Court) has granted, in part, petitions for review of the FCC’s 2018 Infrastructure Second Report and Order (Order). In that Order, to expedite 5G service, the FCC excluded small cell construction from historic preservation and environmental review on the basis that small facility deployments did not constitute federal undertakings. Several Tribes challenged the Order as unlawful, arbitrary and capricious, and an unjustified policy reversal. The Court found that the FCC failed to justify that small cell deployments pose little cognizable religious, cultural, or environmental risk, given the vast number of proposed deployments and the reality that small cells require new construction. Moreover, the FCC’s characterization that the Order was consistent with its decades-long history of carefully tailored reviews, according to the Court, was both illogical and irrational. As the FCC did not adequately address the possible harms of deregulation and benefits of environmental and historic-preservation review, the Court remanded that portion of the Order to the FCC as arbitrary and capricious.
The Court, however, rejected the Tribes’ challenges to the FCC’s clarification that applicants are not required to pay upfront fees to Tribes for their reviews. The Court found that decision consistent with the Advisory Council on Historic Preservation’s preexisting guidance that Tribes are guaranteed the opportunity to consult as a sovereign, a capacity in which it need not be paid. As to the Tribes’ challenges to the FCC’s accelerated timelines for review, the Court concluded that the FCC reasonably justified the decision as a compromise between industry requests for shorter timelines due to delays, and the Tribes’ need for adequate time to review submissions. Thus, the Court rejected petitions to vacate the Order in its entirety.