A recent federal court decision is being hailed as a win for Native American tribes, at least for now.

In August, a U.S. Court of Appeals – D.C. Circuit decision pushed back on the Federal Communications Commission by reinstating environmental and historical review requirements for the construction of new 5G wireless facilities.

The FCC has traditionally required a review of how such projects might affect the environment and historical sites before they can be constructed.

But the FCC had issued a policy change in March 2018 to “exempt from the review process all the small wireless sites that companies are using to build out their 5G networks.”

The FCC policy said the reviews – which fall under the federal National Historic Preservation Act and National Environmental Policy Act – were not required by law and that mandating them would hinder development of 5G networks.

5G (fifth-generation) construction, used for cellular technology, is typically referred to as a “small cell” wireless facility. The equipment used is smaller and denser than 4G.

5G is usually constructed in right-of-way areas and includes an antenna, equipment box and wiring. However, they can be mounted on towers up to 50 feet high – higher in places with existing tall structures.

Legal challenges began soon after the policy change, including from the Seminole Tribe of Florida, the United Keetoowah Band of Cherokee Indians, Blackfeet Tribe and the Omaha and Crow Creek Tribes.

The tribes were joined by the Natural Resources Defense Council.

The legal challenges argued that lifting the review requirements would “potentially imperil sacred Native American sites.”

‘Step in the right direction’

Joseph Webster, a partner at Hobbs Straus Dean & Walker, represented the Seminole Tribe. He called the decision an “important victory.”

“As recognized by the D.C. Circuit, the FCC’s order exempting small cell infrastructure from tribal review and consulting would have undermined federal laws that Congress put in place to protect this country’s irreplaceable cultural heritage,” Webster said in an August statement.

Tribal Historic Preservation Office Director Anne Mullins agreed with Webster and called the decision a win for Indian Country. She said the Tribe has been involved in the legal challenge since the beginning.

“It upheld federal law and is a step in the right direction,” Mullins said.
Mullins said the THPO has asked the FCC to notify them of the status of any 5G projects that have been deployed or are in the process of installation.

Some wonder whether the review process is only in place for projects that would be physically located on tribal lands – it’s not.

It is for any tower that might be in an area that could, for example, obstruct a view or have a visual effect, affect wildlife on tribal lands, or have any direct or indirect affect – like a ground disturbance or an auditory issue.

Mullins said the FCC now has the opportunity to appeal the decision, which could take a year or more.
“It’s in limbo now. A waiting game,” she said.

FCC undeterred

U.S. Circuit Judge Cornelia Pillard, who wrote the unanimous opinion on a three-judge panel, said the FCC had downplayed the intrusiveness of the 5G sites and did not fully consider what impact the new construction would have on the religious and cultural traditions of the tribes.

“The commission accordingly did not, pursuant to its public interest authority … adequately address possible harms of deregulation and benefits of environmental and historic-preservation review,” Pillard wrote. “The Order’s deregulation of small cells is thus arbitrary and capricious.”

The court did allow to stand, however, a separate part of the FCC policy that cut back on tribes’ ability to review new construction of larger wireless towers and facilities.

FCC Commissioner Brendan Carr hailed the decision to uphold that portion of the commission’s order.

“I am pleased that the court upheld key provisions of last March’s infrastructure decision,” Carr said in a statement.

Carr went on to say the order has already “resulted in significant new builds,” and that the FCC is reviewing its next steps for the parts that were struck down.