D.C. Circuit Affirms FCC 2018 Infrastructure Reform in Part

On August 9, the United States Court of Appeals for the District of Columbia Circuit ruled to affirm in part and vacate in part the FCC’s March 2018 Infrastructure Order, which pares back regulations to spur deployment of 5G. With challenges to the Order by three groups of petitioners, the D.C. Circuit examined: 
  • The exemption of most small cell construction from historic-preservation and environmental reviews; and 
  • The reduction of the role of recognized Indian Tribes in reviewing proposed construction of microcell towers and other wireless facilities.
The Court found that the “Commission failed to justify its confidence that small cell deployments pose little to no cognizable religious cultural, or environmental risk” and that it did not “adequately address possible harms of deregulation and benefits of environmental and historical-preservation review.” However, the Court denied the petition for review on the reduction of the role of Tribes in reviews of small cell construction.
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