Court rejects FCC exemption of 5G small cell site reviews

The Federal Communications Commission was dealt a partial blow last week as a U.S. appeals court vacated the agency’s move to exempt 5G small cell sites from federal environmental and historic preservation review.

The FCC passed the deregulation order last year alongside other rule changes to 5G infrastructure meant to speed deployment of next-generation networks and help secure U.S. leadership in the global 5G race.

Groups including the Natural Resources Defense Council and Native American tribal organizations petitioned a U.S. appeals court to vacate the order including the portion eliminating oversight of small cell installations required under the National Historic Preservation Act and National Environmental Policy Act.

On Aug. 9, the court sided in part with plantiffs, finding (PDF) the FCC’s small cell site review deregulation was “arbitrary and capricious.”

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The court said the Commission failed to justify its stance that previously required reviews were not in the public interest or that small cell deployments “pose little no cognizable religious, cultural, or environmental risk, particularly given the vast number of proposed deployments” needed for 5G.

In addition to remanding in part back to the FCC, the court upheld provisions that implement accelerated “shot clock” approval timelines for needed reviews and prohibit upfront fees for macro or small cell site reviews.

FCC Commissioner Brendan Carr spearheaded the 5G infrastructure rule changes and released a statement praising elements of the order that were not vacated by the court.

“Most importantly, the court affirmed our decision that parties cannot demand upfront fees before reviewing any cell sites, large or small,” said Carr in a statement. “These fees, which had grown exponentially in the last few years, created incentives for frivolous reviews unrelated to any potential impact on historic sites. Those financial incentives are gone, and we expect our fee restrictions to continue greatly diminishing unnecessary and costly delays.”

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Of the court’s decision impacting small cell site reviews, Carr said:

“We are reviewing the portion of last March’s decision that the D.C. Circuit did not affirm and look forward to next steps, as appropriate.” FCC Commissioner Jessica Rosenworcel, who dissented in the March 2018 vote, Tweeted the court decision meant it’s time for the FCC “to go back to the drawing board”:

What immediate or long-term impact this will have on the FCC’s accelerated 5G strategy is unclear. Last March, ahead of the FCC vote, industry group CTIA released a study indicating the deregulation order could save $1.6 billion (PDF) in NHPA- and NEPA-related costs through 2026 if required small cell reviews were reduced by two-thirds.  

That same study, compiled by Accenture Strategy, projected the number of small cells needed to support 5G would hit more than 800,000 by the end of the forecast window, up from about 13,000 in 2017.

In its decision, the court pointed to FCC’s expectations for the number of small cell deployments and said given the scale, it’s “impossible on this record to credit the claim that small cell deregulation will ‘leave little to no environmental footprint.’”