Indian Tribes Battle for Say in 5G Equipment Rollout

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By Alexis Kramer

American Indian tribes are steeling themselves for a fight with wireless carriers and federal regulators as the race for next-generation wireless networks kicks into high gear.

Starting July 2, Verizon Communications Inc., AT&T Inc., and other wireless carriers can bypass historic preservation and environmental reviews for small cell equipment, which is smaller than traditional cell towers. Carriers plan to use the equipment to launch “5G” networks, aiming to ensure the U.S. takes the global lead in the technology.

But opposing tribes—concerned about the equipment breaching lands that are culturally significant—are asking a federal appeals court and the Federal Communications Commission to stop the rule change that would waive those reviews. The order would only lift the requirement on nontribal lands. But the tribes say those lands still have “deep” significance.

“The fact that a sacred site is located on ‘non-tribal’ land is not a proper delineating factor in whether or not consultation is required before the site is absorbed into the wireless infrastructure,” attorneys for the Apache Tribe of Oklahoma wrote in a petition to the FCC.

If the appeals court doesn’t halt the change before July 2, it will likely take effect, accelerating the deployment of small cell installations—a prospect eagerly anticipated by the industry.

Changing the Rules

The FCC ordered the change in May—a move consistent with its steady shift under Republican Chairman Ajit Pai toward reducing regulatory burdens in order to facilitate a 5G rollout. Eliminating review requirements could save costs and speed up the nationwide deployment of ultra-fast networks that will power the internet of things, autonomous vehicles, and other emerging technologies.

But the tribes, supported by environmentalists, argue that the FCC has exceeded its statutory authority, and that the rule change violates federal law. Reviews, they say, are critical in ensuring businesses don’t build cell towers in delicate areas.

Ten tribes, including the Crow Creek Tribe of South Dakota and Delaware Nation, and the Natural Resources Defense Council, an environmental advocacy group, filed four separate petitions for review with the U.S. Court of Appeals for the District of Columbia Circuit, Bloomberg Law data show. Those petitions have been consolidated.

The Apache did not petition the court, only the FCC. It’s unclear when the agency will rule on that.

Consulting With Tribes

The National Historic Preservation Act of 1966 requires federal agencies to consult with Indian tribes regarding federally-funded or licensed projects that could impact tribal cultural properties. Carriers planning wireless deployment have to submit to the FCC an assessment of the environmental and historic preservation impacts of a proposed cell site. The FCC created a system whereby tribes are notified of proposed sites and can assist in the review, often for a fee.

The FCC’s order to waive the requirements sets a “dangerous precedent for other agencies looking to undermine tribal consultation processes,” Joseph H. Webster, counsel for the Seminole Tribe of Florida and a partner at Hobbs Straus Dean & Walker in Washington, told Bloomberg Law.

Pai, in defending the agency’s order, said eliminating regulatory hurdles would lead to better wireless service across the country. “By cutting unnecessary red tape, we’ll make it substantially easier for carriers to build next-generation wireless networks throughout the United States. That means faster and more reliable wireless services for American consumers and businesses,” Pai said in the order.

Smaller, More Equipment

The conflict stems partly from the fact that 5G transmission equipment technology is different from the large cell towers of the past. Small radio units and antennae can be mounted to existing utility poles or lamp posts. Carriers can install them in more locations than larger cell towers to enhance capacity and improve data speeds, particularly in crowded areas.

Carriers will deploy about 821,000 small cells in the U.S. by the end of 2026, according to a study by consulting firm Accenture that was commissioned by CTIA, the trade group that represents the wireless industry. CTIA and Sprint Corp. moved to intervene in the consolidated cases so they could have a voice in the dispute.

Carriers’ costs for historic preservation and environmental reviews are also rising, with reviews for that many small cells reaching $349 million, according to the Accenture study.

Earlier this year, Sprint wrote to the FCC, saying fee demands from Indian tribes to review six cell sites in Chicago totaled $90,000. Sprint already had antennae in those locations and was adding more to increase capacity, it said.

Subjecting such small facilities to the same review requirements as larger towers would be “extremely costly” and “impractical,” the FCC said in its order. They also pose little to no risks to historic preservation or the environment, the agency said.

But the facilities, in reality, can be quite large, Jonathan L. Kramer, managing partner at Telecom Law Firm PC in Los Angeles, told Bloomberg Law. The FCC’s order would waive review requirements for small wireless facilities that are 50 feet or less in height.

The order fails to explain how a “web of fifty foot towers is less intrusive” than the cell towers used for legacy technology, the Apache tribe said in its petition to the FCC.

Interpreting Scope

The tribes and the NRDC argue federal laws entitle them to reviews, and that the FCC has no power to change that.

The NHPA requires historic preservation reviews for federal “undertakings.” The law defines an undertaking as a “project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency.”

The National Environmental Policy Act also requires environmental reviews for “major federal actions.”

The FCC order would exclude small wireless facilities from the meaning of “undertakings” and “major federal actions” under the laws. The petitioners argue the agency can’t legally redefine those terms even if small cells are different than equipment used in the past.

Small cells are undertakings because they’re built to transmit federal airwaves spectrum granted by a federal license, Webster said. “There is no basis to categorically hold that small cell wireless facilities are not federal undertakings under the NHPA and size alone cannot exclude them.”

But industry, eager for a faster wireless future, is not swayed. And it is banking on the appeals court to back it up.

“Eliminating unnecessary reviews will mean tremendous time and cost savings that will spur job creation and boost network investment, without impacting the environment or historic properties, as reviews will still happen when appropriate,” Scott Bergmann, CTIA senior vice president of regulatory affairs, said.

The cases are United Keetoowah Band of Cherokee Indians in Oklahoma v. FCC, D.C. Cir., No. 18-1129, petition filed 5/9/18; Natural Resources Defense Council v. FCC, D.C. Cir., No. 18-1135, 5/14/18; Omaha Tribe of Nebraska v. FCC, D.C. Cir., No. 18-1148, petition filed 5/29/18; Seminole Tribe of Florida v. FCC, D.C. Cir., No. 18-1159, petition filed 6/8/18.

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