Federal Court Overturns FCC Order Bypassing Environmental Review For 5G and Small Cell Wireless 4G Densification.
On August 9, the US Court of Appeals for the District of Columbia Circuit issued a decision substantially setting back the efforts of the Federal Communications Commission to expedite the deployment of 5G technology. The FCC had issued an order in March 2018 eliminating environmental and historic preservation review of so-called 5G cell towers. The FCC had reasoned that even though the industry planned to deploy as many as 800,000 of these 50-foot (possibly taller) towers in neighborhoods and historic districts around the country by 2026, it was not in the public interest to review their potential impacts.
In an appeal brought by the Natural Resources Defense Council and several Native American Tribes, the Court found that the FCC had failed to adequately address possible harms of its deregulatory efforts and the benefits of environmental and historic preservation review. In particular, the Court observed that the FCC had failed to address the cumulative harms that may result from “densification,” i.e. crowding of multiple cell towers in a limited area; the potential harms from co-location of multiple cell facilities on a single pole; and the concern that the FCC was speeding deployment of cell towers when it had not completed its ongoing investigation into the potential health effects of low-intensity radiofrequency radiation. The Court found that the FCC’s action was arbitrary and capricious and, therefore, unlawful. Consequently, the Court vacated the FCC’s order, thereby reinstating prior regulations requiring environmental and historic preservation reviews of 5G cell tower deployments.
A three-judge panel of the US Court of Appeals for the District of Columbia Circuit issued its unanimous ruling writing that FCC Chair Ajit Pai’s order “does not justify the Commission’s determination that it was not in the public interest to require review of small cell deployments. 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.”
The FCC also failed to “adequately address possible harms of deregulation and benefits of environmental and historic-preservation review,” which means the commission’s “deregulation of small cells is thus arbitrary and capricious,” judges concluded.
5G and small cell frequencies impact wildlife. For example, research finds the radiation alters bird navigation, disturbs honeybee colonies, damages trees and impacts plants. Research on insects and 5G finds that their bodies can absorb up to three times more power from 5G and this could lead to major changes in how they behave and function, affecting the capacity of bees and other insects to pollinate crops. Published reviews on 5G, millimeter waves and wireless (even from decades ago) have cataloged a host of harmful impacts including increased temperature, altered gene expression, faster cell growth, inflammatory and metabolic processes, damage to the eyes and cellular stress, memory problems, sperm damage, genetic damage, behavior issues and brain damage.
Attorney Edward B. Myers stated in the 2018 press release, “The FCC has ignored the requirements of federal law by ruling without having conducted any impact analysis that so-called ‘small wireless facilities’, are not likely to have any significant environmental impacts and, therefore, do not require any prior review under NEPA or the NHPA. The FCC also failed to meet its responsibilities under the Communications Act, independent of NEPA and the NHPA, to ensure that its actions promote health and safety.”
- Edward B. Myers Request for Consideration, 2018 Press Release
- NRDC petition for review of the FCC order (May 14, 2018)
- NRDC opening brief (January 25, 2019) reply brief (January 25, 2019)
- United Keetoowah Band of Cherokee Indians in Oklahoma, et al., and National Association of Tribal Historic Preservation Officers, et al., opening brief (January 25, 2019) reply brief (January 25, 2019)
- CTIA and Sprint brief in support of FCC (January 25, 2019)
- Blackfeet Tribe, et al., opening brief (January 25, 2019) reply brief (January 25, 2019)
- Order regarding oral arguments (January 28, 2019)
- FCC opposition brief (February 1, 2019)
National Law Review, August 12, 2019
Read D.C. Circuit Delivers Setback to FCC’s 5G Network Deployment Efforts JD Supra, Aug 15, 2019
FCC has tried to cut red tape
(CNN) – The Federal Communications Commission tried to expedite the rollout of 5G wireless technology by cutting red tape. Now a US court has found the regulators erred in trying to exempt 5G cell sites from environmental impact and historic preservation reviews.
The effort by US telecom regulators to speed the deployment of 5G wireless technology through deregulation has thus far largely survived a court challenge by environmental and tribal groups.
But in a decision released Friday, a three-judge panel for the US Court of Appeals for the D.C. Circuit ruled against one of regulators’ key claims: That 5G is so important, cell sites using the technology can bypass environmental and historical preservation reviews.
In the ruling, the judges said such reviews are meant to “assess the effects of new construction on, among other things, sites of religious and cultural importance to federally recognized Indian Tribes.” But at the same time, they held, the FCC’s order “effectively reduced” the role of those tribes in the decision making process for new 5G cell sites.
The result is a mixed bag for the FCC, which voted last year to override many municipal rules surrounding 5G permitting in a bid to accelerate approvals for 5G cell sites.
The judges did not address big swaths of the FCC’s deregulation. For example, they declined to address the FCC’s move forcing cities to approve cell sites on expedited time frames, or requirements aimed at reducing the cost of permitting. Those are the subject of a separate case in the US Court of Appeals for the Ninth Circuit.
“I am pleased that the court upheld key provisions of last March’s infrastructure decision. Most importantly, the court affirmed our decision that parties cannot demand upfront fees before reviewing any cell sites, large or small,” said FCC Commissioner Brendan Carr.
But the panel dealt a blow to the FCC when it said the agency erred in trying to exempt 5G cell sites from historical and environmental reviews.
“Today’s decision confirms that the FCC cannot just scream ‘5G’ to justify ignoring its duties to Tribal Nations and to the environment,” said Andrew Schwartzman, a lecturer at Georgetown University who participated in the case.