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Court Remands Rules Aimed at Speeding 5G Deployment

Randy Sukow Aug 9, 2019

One of the priorities for the current FCC has been to find ways to tear down regulatory barriers to building broadband facilities, especially in rural areas. One of the earliest results of its efforts was a March 2018 order meant to expedite 5G deployments. But the U.S. Court of Appeals for the District of Columbia Circuit remanded the most significant aspects of that order in a decision handed down today.

The order excluded small cell wireless deployments operating on non-Tribal lands from National Historic Preservation Act (NHPA) and National Environmental Policy Act (NEPA) reviews. It also made some changes to procedures for reviewing applications for Tribal coverage. Several native tribes challenged the order, in part on because they claimed they had not been adequately consulted. Today the court found that the Commission’s decisions were “arbitrary and capricious” and sent them back for further consideration.

“The Commission failed to justify its determination that it is not in the public interest to require review of small cell deployments … The Commission did not adequately address the harms of deregulation or justify its portrayal of those harms as negligible,” the court said. “In light of its mischaracterization of small cells’ footprint, the scale of the deployment it anticipates, the many expedients already in place for low-impact wireless construction, and the Commission’s decades-long history of carefully tailored review, the FCC’s characterization of the Order as consistent with its longstanding policy was not ‘logical and rational.’”

Commissioner Brendan Carr has focused on new wireless infrastructure rules during his time on the FCC. At the time of the order, he criticized the FCC’s “outdated” NHPA/NEPA rules. “One provider spent over $23 million on NHPA review over the last two years—money that could have been used to deploy 657 new cell sites to expand service or add capacity.  In 2017, providers spent $36 million on NHPA and NEPA reviews,” Carr said in a March 2018 statement.

In a statement today after the decisions, Carr said the Commission will review the portions of the order the court remanded and that it would “look forward to next steps, as appropriate.” At the same time, he pointed to elements of the order the court affirmed. “Most importantly, the court affirmed our decision that parties cannot demand upfront fees before reviewing any cell sites, large or small. These fees, which had grown exponentially in the last few years, created incentives for frivolous reviews unrelated to any potential impact on historic sites,” he said.

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