On May 9, 2018, the Federal Communication Commission issued a Final Report and Order regarding small cell towers.

The Order exempted most small cell construction from two kinds of previously required review: Historic-preservation review under the National Historic Preservation Act (NHPA) and environmental review under the National Environmental Policy Act (NEPA). Together, these reviews assess the effects of new construction on, among other things, sites of religious and cultural importance to federally recognized Indian Tribes.

The Order effectively reduced Tribes’ role in reviewing proposed construction of macrocell towers and other wireless facilities that remain subject to cultural and environmental review.

On May 14, 2019, Delaware Nation along with the United Keetoowah Band of Cherokee Indians in Oklahoma, Osage Nation, Shawnee Tribe of Oklahoma, Ponca Tribe of Indians of Oklahoma, Otoe-Missouria Tribe and Pawnee Nation filed a lawsuit against the Federal Communications Commission and United States of America, in the United States Court of Appeals, For the District of Columbia Circuit.

(USCA Case 18-1129, United Keetoowah Band of Cherokee Indians, et al, v. FCC)

Our Petition challenged the Order as violating the NHPA, NEPA, and Administrative Procedure Act on several grounds: that its elimination of historic-preservation and environmental review of small cell construction was arbitrary and capricious, an unjustified policy reversal, and contrary to the NHPA and NEPA; that the changes to the Tribes’ role in reviewing new construction was arbitrary and capricious; that the Commission arbitrarily and capriciously failed to engage in meaningful consultations with Tribes in promulgating the Order; and that the Order itself required NEPA review.

Oral Arguments were held on March 15, 2019.

August 9, 2019, Circuit Judge Pillard opined “We grant in part the petitions for review because the Order does not justify the Commission’s determination that it was not in the public interest to require review of small cell deployments. 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. The Commission accordingly did not, pursuant to its public interest authority, adequately address possible harms of deregulation and benefits of environmental and historic-preservation reviews. The Order’s deregulation of small cell is thus arbitrary and capricious.”

In summary, the Carriers/Contractors must consult Tribes on the 800,000 small cell deployments that are planned to be constructed by 2026.