DC Circuit Court of Appeals Holds FCC’s Deregulation Order Unreasonably Eliminated Historic Preservation Review and Environmental Review for Construction of Small Cell Radio towers

The United States Court of Appeals for the District of Columbia Circuit concluded that a Federal Communications Commission (FCC) deregulation order was arbitrary and capricious because it eliminated historic preservation review under the National Historic Preservation Act (NHPA), including tribal consultation and environmental review under the National Environmental Policy Act (NEPA), for construction of small wireless facilities or small cell radio towers transmitting a cellular signal in an effort to expedite the rollout of the next generation of wireless service known as 5G. The Court of Appeals concluded that the FCC failed to justify its determination that the public interest did not require review of the deployment of hundreds of thousands of small cells.  The Court said, ” 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.” Further, the Court held that the FCC inadequately addressed the harms of deregulation and the agency’s portrayal of deregulatory harms as negligible, the FCC’s order was inconsistent with its longstanding policy, and the FCC did not satisfactorily consider the benefits of review.

United Keetoowah Band of Cherokee Indians in Oklahoma v. Federal Communications Commission, 2019 WL 3756373 (DC Cir. CA 8/9/2019)