Entities Seek Court Stay of Wireless Infrastructure Order
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Thursday, July 19, 2018

Entities Seek Court Stay of Wireless Infrastructure Order

Indian tribes, the Natural Resources Defense Council, and the National Association of Tribal Historic Preservation Officers have asked the U.S. Court of Appeals for the District of Columbia Circuit to stay implementation of a wireless infrastructure order adopted by the FCC in March pending the resolution of judicial appeals by tribes and the NRDC.

“In the Order, the FCC unilaterally exempted vast swaths of the United States from the protections of the National Historic Preservation Act (‘NHPA’) and National Environmental [Policy] Act (‘NEPA’), permitting the unsupervised rollout of the ‘5G’ mobile telephone network involving literally thousands of nationwide installations,” the entities complained in an emergency motion filed this week. “Rather than performing its duties under those statutes, the FCC instead throws up its hands, exempting 5G construction because (it claims) it cannot effectively supervise it … and because (it claims) complying with NEPA and NHPA will cost mobile operators too much (Order, 4 (citing one industry study)). And it does so even though the Advisory Council on Historic Preservation (‘ACHP’), which actually receives judicial deference in NHPA interpretation, disagrees.”

The FCC has until July 27 to respond and a reply may be filed by Aug. 1.

Meanwhile, several tribes and a tribal organization have filed oppositions to the FCC’s motion asking the court to hold the legal challenge in abeyance while it addresses petition for reconsideration of the order (TR Daily, July 5).

The court has consolidated the cases beginning with case no. 18-1129 (“United Keetoowah Band of Cherokee Indians in Oklahoma et al. v. FCC”).

In the second report and order, approved on a 3-2 party-line vote, the Commission concluded that the deployment of small cells that the wireless industry says will be needed for 5G services doesn’t constitute a “federal undertaking” under the NHPA or a “major federal action” under the NEPA (TR Daily, March 22). For traditional, large-cell deployments, the order clarified the industry-tribal engagement process under NHPA, including shortening the time for tribal review, and ruled that companies are not required to pay tribes upfront fees for reviewing projects.

In another development, the Environmental Health Trust, the Apache Tribe of Oklahoma, and Edward Myers of North Potomac, Md., have told the FCC that they want to withdraw their petitions for reconsideration of the wireless infrastructure order. Mr. Myers also submitted a motion asking the FCC to stay implementation of the order, saying the FCC failed to consider the possible harmful impact to people from radiation from small cells. The Crow Creek Tribe of South Dakota and the Omaha Tribe of Nebraska have also asked the FCC to stay the effective date of the order pending the resolution of the judicial appeals (TR Daily, July 5).- Paul Kirby, paul.kirby@wolterskluwer.com

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