DC Circuit Partially Vacates FCC Small-Cell Order
The United Keetoowah Band of Cherokee Indians, other tribes and supporters won a partial victory in the U.S. Court of Appeals for the D.C. Circuit. The court Friday vacated the most important portion of the March 2018 wireless infrastructure order, placing small cells back under FCC, historic and environmental review. The court upheld other parts of the order. Commissioner Brendan Carr, who is overseeing FCC work on wireless infrastructure, said the decision wasn’t a total loss. The court “upheld key provisions of last March’s infrastructure decision,” Carr said: “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. Those financial incentives are gone, and we expect our fee restrictions to continue greatly diminishing unnecessary and costly delays.”
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“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,” the court held: “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.”