933 F.3d 728
D.C. Cir.2019Background
- FCC Order (Second Report & Order, FCC 18-30) exempted most "small cell" wireless facilities from NHPA Section 106 and NEPA review by removing them from the FCC’s limited approval authority, to accelerate 5G deployment.
- Small cells defined by size/placement criteria (e.g., antennas ≤3 cu ft, mounting on structures ≤50 ft or ≤10% taller than adjacent structures); exemption applies off Tribal land and where RF safety standards met.
- Petitioners (tribes, preservation groups, NRDC) challenged the Order under NHPA, NEPA, and the APA, arguing the FCC failed to justify eliminating review and improperly reduced Tribal consultation roles.
- FCC defended that small cells are unlikely to cause environmental or historic harms, that the Commission’s public-interest authority allowed deregulation, and that it had consulted with Tribes in promulgating the Order.
- D.C. Circuit vacated and remanded only the portion removing small cells from limited approval authority (holding that the FCC’s public-interest analysis was arbitrary and capricious); it upheld changes to Tribal participation and found consultation adequate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FCC lawfully eliminated NHPA/NEPA review for small cells | FCC failed to consider harms of mass densification and unjustifiably exempted many deployments (including new construction) from review | Small cells are inherently low-impact; existing programmatic/categorical regimes support deregulation and 5G rollout requires streamlining | Vacated and remanded: FCC’s public-interest justification for eliminating review was arbitrary and capricious (insufficient analysis of harms/benefits) |
| Whether small-cell construction is a "federal undertaking" or "major federal action" requiring NHPA/NEPA | Geographic spectrum licenses and FCC jurisdiction make construction a federal action triggering NHPA/NEPA | FCC argued removing limited approval authority removes sufficient federal involvement to make construction non-federal for these statutes | Court did not decide this statutory question (remanded on APA ground only) |
| Whether FCC lawfully limited Tribal roles (fees, contractors, timelines) in Section 106 process | Tribes argued FCC unlawfully discouraged upfront fees, limited ability to charge, and shortened response times, undermining consultation | FCC said fees are voluntary per Advisory Council guidance, allowed qualified non‑Tribal contractors when appropriate, and shortened but reasonable timelines | Affirmed: FCC’s clarifications on voluntary fees, permitting qualified non‑Tribal contractors, and timeline changes were permissible and not arbitrary |
| Whether FCC satisfied its government‑to‑government consultation obligation when promulgating the Order | Tribes argued consultation was inadequate or perfunctory | FCC documented extensive outreach, meetings, and engagement beginning before the NPRM | Affirmed: Court found FCC met consultation obligations; petitioners’ claim rejected |
Key Cases Cited
- CTIA–Wireless Ass’n v. FCC, 466 F.3d 105 (D.C. Cir. 2006) (interpreting when agency action constitutes a federal undertaking under NHPA)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary-and-capricious standard requires reasoned decisionmaking and consideration of important aspects of the problem)
- Michigan v. EPA, 135 S. Ct. 2699 (2015) (agency must engage in reasoned decisionmaking; courts review for logical connection between facts and choices)
- Sierra Club v. U.S. Army Corps of Eng’rs, 803 F.3d 31 (D.C. Cir. 2015) (NEPA requires agencies to avoid uninformed rather than unwise action)
- Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) (deference to agency interpretations of ambiguous statutes)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) (NEPA’s procedural role; does not mandate particular outcomes)
- Vonage Holdings Corp. v. FCC, 489 F.3d 1232 (D.C. Cir. 2007) (agency must consider relevant factors and articulate rational connection)