Court Vacates FCC Deregulation of Cell Tower-Site Reviews

Turns out the race to 5G can't run roughshod over the landscape, at least as the Federal Communications Commission has proposed it. In a partial defeat for the FCC and a victory for localities trying to retain their authority over cell tower placement and impact, the US Court of Appeals for the DC Circuit has ruled that the FCC did not justify its deregulation of small cell site reviews and has vacated that part of a larger wireless deployment deregulation order. 

Over the objections of local government officials and the reservations of FCC Commissioner Jessica Rosenworcel, the FCC voted last Sept to streamline the path to small cell deployment, including the part on-site reviews, billing it as crucial to the rollout of 5G wireless service. The FCC argued that such reviews were not statutorily required, would impede the rollout of 5G networks, and that their costs outweighed any benefit. But as with many FCC decisions, opponents went to court. The DC Circuit said it did not buy the FCC's argument that such reviews "pose little to no cognizable religious, cultural, or environmental risk," in particular given "the vast number of proposed deployments and the reality that the Order will principally affect small cells that require new construction." The court found that the FCC did not adequately address the potential harms of deregulation or the benefits of environmental and historic-preservation reviews, particularly for Indian lands that "may include Tribal burial grounds, land vistas, and other sites that Tribal Nations...regard as sacred or otherwise culturally significant." The court vacated that part of the order and remanded it back to the FCC, which could try to better justify it.