DC Circuit Lets Wireless Infrastructure Order Stand, Pending Decision by Court
The U.S. Court of Appeals for the D.C. Circuit denied a motion to stay the FCC’s March infrastructure order, leaving it in place with the broader court challenge pending. United Keetoowah Band v. FCC & USA, No. 18-1129, consolidates tribal challenges to the March order, which was approved 3-2 over dissents by Democrats Jessica Rosenworcel and Mignon Clyburn (see 1803220027).
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“Today’s court decision is good news for U.S. leadership on 5G,” said Commissioner Brendan Carr, who led commission work on the order. “The FCC’s commonsense reforms to our wireless siting rules help ensure we’re 5G Ready, and they’re already accelerating the buildout of next-gen networks.” FCC Chief of Staff Matthew Berry tweeted, “Big win for U.S. leadership in 5G!”
"Denial of a stay is hardly a ‘big win,’” said Andrew Schwartzman of the Institute for Public Representation at Georgetown University Law Center, an intervenor in support of the tribes. “While we think our case was particularly meritorious, as a statistical matter, the D.C. Circuit rarely grants stay motions.” Schwartzman noted the FCC withdrew a motion to hold the litigation in abeyance, “which might have stalled this case for months or, more likely, years. Given that the commission is not entitled to deference on environmental and historical preservation issues, we think we have a strong chance of obtaining a reversal.”
The Keetoowah tribe challenged the order on numerous grounds, saying it's “arbitrary and capricious, exceeds the FCC’s authority by redefining what constitutes an ‘undertaking’ that would trigger the § 106 process under the National Historic Preservation Act, and an abuse of discretion within the meaning of the Administrative Procedure Act.” The FCC asked the court not to impose a stay, saying reversal of the order is unlikely (see 1807310066). The tribe and its lawyers didn’t comment.
“We’re glad to see that ongoing deployments won’t get interrupted,” said Scott Bergmann, CTIA senior vice president-regulatory affairs. “That’s good news for consumers and U.S. 5G leadership.”