Court: FCC May Not Exempt All “Small Antenna” Deployments from Environmental Reviews

The U.S. Court of Appeals for the D.C. Circuit just issued a decision that dealt a serious blow to the FCC’s efforts to exempt almost all small antenna deployments from review under the National Environmental Policy Act (“NEPA”) and the National Historic Preservation Act (“NHPA”). (United Keetoowah Band of Cherokee Indians in Oklahoma, et al. v. FCC, No. 18-1129, decided August 9, 2019). NEPA and the NHPA require the Federal Communications Commission (“FCC”) and other federal agencies to ensure that any “federal undertakings,” such as construction projects that are licensed or approved by the agency, will not cause an adverse environmental impact, including to sites that have historic or cultural significance.

As part of its recent initiatives to promote greater investment in wireless infrastructure, the FCC adopted rules in March 2018 that exempted most “small cell” construction activities from review under NEPA and NHPA, concluding that the cost of environmental reviews for small antenna installations would outweigh any benefits to the environment. The FCC’s order also clarified the role that Tribal authorities play in reviewing non-exempt wireless construction projects in areas that might be of cultural significance to the Tribes.

On review of the FCC’s decision, the Court of Appeals vacated the FCC’s blanket exemption from NEPA and NHPA for small cell deployments, but it affirmed the FCC’s procedures for Tribal involvement. Courts normally give federal agencies significant discretion to interpret their governing statutes, but in this case the Court noted that the FCC has no particular expertise in interpreting NEPA and the NHPA, so the FCC’s decision was not entitled to special deference. The Court concluded that the FCC had not engaged in “reasoned decisionmaking” and that granting the blanket exemption was “arbitrary and capricious” because of many deficiencies in its reasoning; for example:

• The FCC had explained that “small cell” deployments involve installation of “pizza box” size antennas, but it failed to consider the environmental impacts from many new structures that will be needed to accommodate the larger number of antennas needed for 5G service.
• The FCC did not address the cumulative effect on the environment when multiple antennas installed on the same pole or antenna structure.
• The FCC did not explain why it felt justified in completely eliminating NEPA and NHPA review for small cell deployments when it had concluded just a few years ago that certain small cell deployments still posed environmental risks that could not be excluded from review.
• The FCC found that only about 0.3 – 0.4 percent of requests for Tribal review have resulted in findings of adverse effects. However, even if only 0.3 percent of the estimated 800,000 new small cell deployments are problematic, it would translate to 2,400 adverse environmental effects, each of which would be significant in its own right.

In conclusion, wireless licensees may not rely on the FCC’s 2018 Order for blanket relief from NEPA and NHPA for small antenna deployments, but they may continue to rely on previously-adopted exemptions and exclusions for certain small-cell deployments and antenna collocations.

Please let us know if you have any questions about the FCC’s environmental rules, the currently effective exclusions, or the court’s decision.