Legal Battle Over Small Cell Exemptions Grows

UPDATE Sprint and CTIA are now officially backing up the FCC’s position in the D.C. Circuit Court on the small cells case filed by Native American Tribes and the Natural Resources Defense Council. The Tribes and NRDC oppose the agency’s March rule change to exempt small cell infrastructure deployment on non-Tribal lands from environmental and historic review. So does the National Trust for Historic Preservation in the United States, which has now joined the case.

More Tribes have filed to join the legal fray as well, according to court documents examined by Inside Towers. They include the Tonkawa Tribe of Oklahoma, Peoria Tribe of Indians of Oklahoma, Cheyenne and Arapaho Tribes, Mescalero Apache Tribe, Apache Tribe of Oklahoma and Alabama-Quassarte Tribal Town. The original petitioners are the United Keetoowah Band of Cherokee Indians in Oklahoma, Osage Nation, Shawnee Tribe of Oklahoma, Ponca Tribe of Indians of Oklahoma, Delaware Nation, Otoe-Missouria Tribe, Pawnee Nation, Natural Resources Defense Council, The Crow Creek Tribe of South Dakota, and Omaha Tribe of Nebraska.

The Trust is on the side of the Tribes, telling the court it agrees with them that the March FCC order is “arbitrary” and “capricious” and “removes a broad category of telecommunications deployments from historical and environmental review and severely limits the ability of Tribal historic preservation officers to collect fees.” The Tribes say the FCC had no right to make the rule change, calling small cell wireless infrastructure siting by non-federal entities a “federal undertaking” under the National Historic Preservation Act and a “major federal action” under the National Environmental Policy Act of 1969.

Sprint disagrees, and the carrier supports the FCC order: “By excluding small wireless facilities from the definitions of ‘federal undertaking’ and ‘major federal action,’ the Commission has taken important steps toward addressing the cost of outdated review processes that had become a significant barrier to the expansion of access to wireless services.” The carrier also says its small cell deployment will be “substantially affected” by the Court’s review.

CTIA’s members have a “direct and substantial” interest in the case, the association tells the court, because its members must seek approval of facilities siting applications nationwide. 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.

By Leslie Stimson, Inside Towers Washington Bureau Chief

August 9, 2018       

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