After Court Loss, FCC Conforms Streamlining Wireless Infrastructure Order

The Federal Communications Commission has officially rescinded the portion of its rules that exempted certain wireless facilities deployments from local environmental and historic preservation reviews. An order from the FCC's Wireless Telecommunications Bureau indicated there had been no need to put the order out for public notice and comment since it was simply implementing a court mandate from which the FCC had no discretion to deviate. 

Over the objections of local government officials and the reservations of FCC Commissioner Jessica Rosenworcel, the FCC voted in Sept 2018 to streamline the path to small cell deployment, including the rules on site reviews, billing it as crucial to the rollout of 5G wireless service. But the US Court of Appeals for the DC circuit in Aug 2019 ruled that the FCC did not justify its deregulation of those reviews and vacated that part of the larger wireless deployment deregulation order. The court mandate to roll back the rules became effective Oct 7, when that ruling was published in the Federal Register, and the FCC put out the order Oct 8 repealing "the subsection of the Commission’s rules implementing the small wireless facilities exemption, and delet[ing] a cross-reference to that subsection contained elsewhere in the Commission’s rules." The result of the order is that "deployments of small wireless facilities are subject to review to the same extent as larger wireless facilities pursuant to the National Historic Preservation Act (NHPA) and the National Environmental Policy Act of 1969 (NEPA)."