Court rejects FCC exemption of 5G small cell site reviews

Gavel court room lawsuit judge
A U.S. appeals court found the FCC's deregulation of small cell site review was “arbitrary and capricious.” (Pixabay)

The Federal Communications Commission was dealt a partial blow last week as a U.S. appeals court vacated the agency’s move to exempt 5G small cell sites from federal environmental and historic preservation review.

The FCC passed the deregulation order last year alongside other rule changes to 5G infrastructure meant to speed deployment of next-generation networks and help secure U.S. leadership in the global 5G race.

Groups including the Natural Resources Defense Council and Native American tribal organizations petitioned a U.S. appeals court to vacate the order including the portion eliminating oversight of small cell installations required under the National Historic Preservation Act and National Environmental Policy Act.


Get the keys to unlock the full potential of 5G

Are you prepared to navigate the maze of challenges involved in deploying 5G infrastructure? F5 can guide you past the pitfalls and help you unlock the full promise of 5G. Download this whitepaper to learn how to navigate this challenge.

On Aug. 9, the court sided in part with plantiffs, finding (PDF) the FCC’s small cell site review deregulation was “arbitrary and capricious.”

RELATED: States contest FCC’s small cell rule, prompting Senate bill

The court said the Commission failed to justify its stance that previously required reviews were not in the public interest or that small cell deployments “pose little no cognizable religious, cultural, or environmental risk, particularly given the vast number of proposed deployments” needed for 5G.

In addition to remanding in part back to the FCC, the court upheld provisions that implement accelerated “shot clock” approval timelines for needed reviews and prohibit upfront fees for macro or small cell site reviews.

FCC Commissioner Brendan Carr spearheaded the 5G infrastructure rule changes and released a statement praising elements of the order that were not vacated by the court.

“Most importantly, the court affirmed our decision that parties cannot demand upfront fees before reviewing any cell sites, large or small,” said Carr in a statement. “These fees, which had grown exponentially in the last few years, created incentives for frivolous reviews unrelated to any potential impact on historic sites. Those financial incentives are gone, and we expect our fee restrictions to continue greatly diminishing unnecessary and costly delays.”

RELATED: Editor’s Corner—Small cells can actually be quite big

Of the court’s decision impacting small cell site reviews, Carr said:

“We are reviewing the portion of last March’s decision that the D.C. Circuit did not affirm and look forward to next steps, as appropriate.” FCC Commissioner Jessica Rosenworcel, who dissented in the March 2018 vote, Tweeted the court decision meant it’s time for the FCC “to go back to the drawing board”:

What immediate or long-term impact this will have on the FCC’s accelerated 5G strategy is unclear. Last March, ahead of the FCC vote, industry group CTIA released a study indicating the deregulation order could save $1.6 billion (PDF) in NHPA- and NEPA-related costs through 2026 if required small cell reviews were reduced by two-thirds.  

That same study, compiled by Accenture Strategy, projected the number of small cells needed to support 5G would hit more than 800,000 by the end of the forecast window, up from about 13,000 in 2017.

In its decision, the court pointed to FCC’s expectations for the number of small cell deployments and said given the scale, it’s “impossible on this record to credit the claim that small cell deregulation will ‘leave little to no environmental footprint.’”

Suggested Articles

Verizon’s 5G launch cities are about to hit double-digits, with the carrier’s millimeter wave mobile 5G service coming to parts of Phoenix on Friday.

Verizon disclosed today that it’s working with Boingo Wireless to bring its 5G service indoors and to public spaces like airports, stadiums, arenas, office…

Sprint, T-Mobile and U.S. Cellular particularly rallied their troops to vote for their top executives. But Sprint’s Ryan Sullivan ran away from the pack in the…