UPDATE Nearly 10 tribes and the Natural Resources Defense Council sought an emergency stay this week of the FCC’s order to exempt small cells from Tribal and environmental review. They tell the Court of Appeals of the D.C. Circuit the FCC took “aggressive action” on July 2 to implement the new rule, which will “irreparably” harm the Tribes’ historic properties and cultural sites while the appeal is pending.
“Order 18-30 unlawfully exempts small cell wireless infrastructure from review under the National Historic Preservation Act (NHPA) and National Environmental Policy Act (NEPA) and arbitrarily and capriciously issues guidance that effectively eliminates the Tribe’s ability to collect fees for its review of macro cell towers,” the Tribes tell the court. They also argue the order gives wireless infrastructure applicants the discretion to contract review and mitigation work to “non-tribal entities unqualified to protect the Tribe’s historic and cultural properties.”
On July 2, “Changes and Updates to Tower Construction Notification
and E-106 Systems” went into effect. On the same day, the FCC issued guidance to implement the new rule, and asked the court to hold the Tribes petition for review in suspension. The Tribes seek a stay to prevent the Commission from allowing rapid deployment of wireless infrastructure without what they argue is adequate Tribal input, in violation of federal law, and before the Court can review the merits of this case.
When the FCC voted for the change in March, the Tribes said they were not really consulted; FCC Chairman Ajit Pai has said several times they were. Pai also said the agency heard from numerous parties that some Tribes were abusing the process. Commissioner Brendan Carr, leading the agency’s effort to streamline wireless infrastructure siting rules, discussed examples where providers spent millions of dollars on reviews that subsequently had nearly no effect on a project. He said the agency’s “outdated approach” to NEPA and NHPA reviews is costing Americans “tens of millions of dollars per year and delaying the rollout of new services.”
The lead Tribe in the case, the Seminole Tribe of Florida, tells the court it charges $500 to review macro towers and another $200 for reassessment needed due to changes in the original siting submission. The tribe charges $300 to review small cell siting applications. “The Tribe does not intend to fund its entire Tribal Historic Preservation Office through the fees, but it does reasonably expect fees to cover the costs of conducting reviews,” it tells the court.
The FCC has until COB July 27, to file a response. The case is 18-1129 in the U.S. Court of Appeals for the D.C. Circuit.
By Leslie Stimson, Inside Towers Washington Bureau Chief
July 20, 2018
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