MUSKOGEE, Okla. — A Tahlequah-based tribe triumphed in its challenge of a Federal Communications Commission rule found by a federal appeals court to have circumvented historic preservation and environmental laws.
The United Keetoowah Band of Cherokee Indians led the legal challenge to the rule that would have exempted from tribal consultation provisions the siting of small cell towers. The rule was adopted in March 2018 in an effort to modernize "wireless infrastructure regulations" and facilitate "network densification" and the expansion of 5G networks.
FCC Chairman Ajit Pai said at the time that "cutting unnecessary red tape ... would make it substantially easier for carriers to build next-generation wireless networks through the United States." The order notes the inherent difference of "small cells ... from large towers" and specifically exempted them from regulatory reviews required by the National Historic Preservation Act and National Environmental Policy Act.
In its order, the FCC states the costs of deploying small cells would be cut by as much as 80 percent if the sites were exempt from tribal consultation. Reducing the costs "would incentivize thousands of new wireless deployments."
The UKB, which was joined by more than 20 other tribes and the Natural Resources Defense Council, argued that excluding them from siting decisions would threaten tribal lands that are significant for religious and cultural purposes. The FCC, they said, failed to take into account "the footprint" of the small cells, or the equipment that will be used, what ongoing maintenance or security will be provided, and how often towers will be updated or rebuilt.”
The U.S. Circuit Court of Appeals for the District of Columbia agreed, holding the "elimination of historic preservation and environmental review of small cell construction was arbitrary and capricious." It also ruled the new rule constituted "an unjustified policy reversal" and contrary to the federal laws that required such review.
"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 court states in the opinion published Friday. "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."
UKB Chief Joe Bunch described the ruling as a "victory for all tribes and American Indians across the nation."
“For us, it’s a tremendous ruling — it ensures that our ancestors remains will be kept and the environment will remain intact as well," Bunch said in a media release on Monday. "We will continue to fight for ancestors and our historical remains and sites to move our tribe forward.”
FCC Commissioner Brendan Carr, in a statement issued after the opinion was published, focused on a part of the order that was upheld. The court affirmed a provision that prohibits up-front demands of fees before site reviews are conducted.
"Those financial incentives are gone, and we expect our fee restrictions to continue greatly diminishing unnecessary and costly delays," Carr said. "I’m also pleased that the court affirmed our accelerated timelines for reviews. Already, these reforms have resulted in significant new builds."
It is unclear as of press time if the ruling was retroactive in respect to any consulting fees for projects that had yet to be paid to tribes before the case made its way into court.
“When we consulted we sent a crew of qualified people out, so we were earning our money. It made a tremendous economic impact on our tribe,” said UKB Assistant Chief Jamie Thompson, who has also been heavily involved in the case. “Therefore, I hope that these inspections can be retroactive because we have documented every one that came through since this case started and since our funding was shut off. We’ve completed them, we just haven’t been paid for them.”
Unpaid consulting fees are also a priority for Bunch.
“Certainly, that’s early on in the game and we’re just reviewing the opinion. What we hope is that this means everything will be retroactive, as we’ve been making consulting reviews, we’ve been billing and charging so that we can gain that resource to continue to do this program for our tribe,” he said.
Bunch also extended his gratitude to the UKB Tribal Council for their support throughout the process.
“I thank the Council for their unwavering fortitude and for their approval to take this measure on. We are always stronger together.”