Law 360 Article: Tribes Seek To Stop ‘Desecration’ From FCC’s 5G Exemptions 7/19/2018

Tribes Seek To Stop ‘Desecration’ From FCC’s 5G Exemptions

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Law360 (July 18, 2018, 8:42 PM EDT) — A host of tribes has urged the D.C. Circuit to halt an order from the Federal Communications Commission exempting small-cell fixtures for next-generation, or 5G, networks from certain regulatory reviews, arguing that the order would allow for the “desecration of historic sites.”

The United Keetoowah Band of Cherokee Indians in Oklahoma — joined by numerous other tribes, the Natural Resources Defense Council and the National Association of Tribal Historic Preservation Officers — told the court in an emergency motion to stay Tuesday that the FCC’s order wrongly permitted the 5G construction to forego environmental and historic reviews required by federal law and would cause irreparable harm if not stopped by the court.

The FCC was already encouraging applicants to take advantage of the new rules, even though the agency had asked the court earlier in July to stay the appeals of the order, the tribes said.

“Absent court intervention, countless sacred sites and irreplaceable environmental treasures will be destroyed, the tribes said. “Moreover, an immediate stay is necessary because, despite pending petitions for review, the FCC is rapidly implementing its new rules.”

The tribes, which asked the D.C. Circuit in May to review the order, said that the court should grant the stay because they were likely to prevail in their suit, arguing that the FCC’s order was flawed in three major ways.

First, the tribes argued that the agency improperly decided that the 5G construction wasn’t an “undertaking” under the National Historic Preservation Act, contrary to the unambiguous language in the statute, even though it required a license from the federal government. The FCC incorrectly asserted that the size of the towers, which would be 50 feet tall, and a lack of resources for the agency to effectively supervise compliance with the NHPA and National Environmental Protection Act warranted an exemption from the laws, the tribes said.

Additionally, the agency’s mention of excessive fees allegedly charged by tribes as part of the consultation process in the existing regulatory system for tower construction as a reason for the exemption was undermined by a lack of evidence of widespread abuse, the tribes argued.

“The FCC’s effort to leverage a few anecdotal horror stories into a massive statutory rewrite is capricious,” the tribes said. “The FCC already had a viable mechanism to address isolated abuses or exemptions for truly small installations.”

Second, the tribes alleged that the agency’s order arbitrarily removed a process that had been put into place in 2005 as a solution to prevent future “twilight towers,” a term used to refer to earlier cellular infrastructure that had been built without tribes’ knowledge or consultation.

And third, the agency failed to consult with Native American governments before issuing the order, the tribes said, calling the agency’s record on the matter “suspect.”

The tribes told the court that while the order would be detrimental to themselves and the environment if allowed to go into effect, cellular companies wouldn’t be injured by having to continue to construct infrastructure under the current rules. A stay was in the public’s best interest, the tribes said.

“On July 2, 2018, [the FCC] aggressively encouraged applicants to take immediate advantage of these exemptions, even on pre-existing applications,” the tribes said. “Even while encouraging rapid construction, it moved to hold this appeal in abeyance, suggesting blithely that it might reconsider its views, while its public actions belied that notion.”

The FCC’s motion to stay the consolidated cases seeking review of its order was opposed by tribes in the other appeals, including the Blackfeet Tribe, the Coushatta Tribe of Louisiana and the Fort Belknap Indian Community. The United Keetowah Band’s petition is the lead case at the D.C. Circuit.

The FCC and counsel for the United Keetoowah Band and other tribes declined to comment Wednesday. Counsel for the remaining parties didn’t respond to requests for comment Wednesday.

The FCC is represented by Jonathan Herman Lasken and Robert B. Nicholson.

The United Keetoowah Band and numerous other tribes are represented by Joel D. Bertocchi, J. Scott Sypolt, Jeffrey J. Mayer and Eric J. Gribbin of Akerman LLP.

The Natural Resources Defense Council is represented by Sharon Buccino, the senior director of its Lands Nature Program.

The National Association of Tribal Historic Preservation Officers is represented by Andrew Jay Schwartzman of the Institute for Public Representation at Georgetown University Law Center.

The Crow Creek Tribe of South Dakota and Omaha Tribe of Nebraska are represented by Stephen Diaz Gavin of Rimon PC.

The lead case is United Keetoowah Band of Cherokee Indians in Oklahoma et al. v. FCC et al., case number 18-1129, in the U.S. Court of Appeals for the D.C. Circuit.

–Additional reporting by Adam Lidgett. Editing by Jack Karp.