Clarification about the FCC and NEPA:
There has been a lot of confusion about the recent court decision regarding the FCC and its responsibilities under the National Environmental Policy Act (NEPA). We have tried to be very careful in our wording, and have vetted our communications with experts in the field, including lawyers who argued the case in Washington.
Here are a few key points:
1. This decision does not provide any legal basis for “shutting down all small cell installations in the U.S.,” as has been claimed. The court did not order any small cells to be turned off or dismantled.
2. The Court did not “mandate EA/EIS from the Wireless industry/FCC.” Environmental Assessments (EA) and Environmental Impact Statements (EIS) may be required for some small cell installations in very unusual cases (i.e. if the small cell will be constructed in a wetland area, etc.). Most small cell installations are exempt from these kinds of detailed analyses, but the FCC does require that an environmental checklist be completed as part of any application.
3. There is no legal basis for anyone to “demand that municipalities cease and desist from processing any active small cell applications or from constructing any such Wireless Telecommunications Facilities (WTFs).” Applications will continue to be processed, but they may need to be re-submitted if they lack the NEPA paperwork. Municipalities should examine all applications to make sure they are complete before approval.
(If a municipality finds that a small cell installation that does not meet the standard NEPA exemption was approved and constructed during the time the FCC order was in effect, lawyers will argue as to whether or not that particular installation should now be removed, but that is highly unlikely.)
4. The Court’s decision about NEPA applies to the entire country. The court decided two cases at the same time. The first case was about Tribal lands, the rights of Native Americans and historic preservation. That ruling applied to Tribal lands. The second case was about NEPA, and that decision applies to the entire country.
5. There is no legal basis to demand that shot clocks be tolled, or paused. Under FCC rules, even applications which are deemed incomplete must be considered by local municipalities within a strict time frame, so long as they are completed before approval.
6. The Court did not mandate any analysis of the health impacts of wireless radiation.
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So why was this decision so important?
The decision in this case is important because the Court found that the deployment of hundreds of thousands of small cell wireless antennas is likely to have a significant impact on the environment, and thus, is subject to the terms of NEPA. It found that the FCC’s deregulation of small cells was “arbitrary and capricious because its public-interest analysis did not meet the standard of reasoned decision making.”
This is an important legal building block as we continue to push back against the FCC and its fast-tracking of 5G deployment. The decision makes it clear that the FCC will trample on any and all existing protections of public health and safety to facilitate its self-declared “race” to deploy small cell technology across the country.
Among other legal issues to unpack is how the provisions of NEPA intersect with FCC rules. For instance:
• NEPA assures the public of the opportunity to comment on any analysis performed, but the FCC has set strict timelines for approval of applications. At what point, and in what forum, will the public be permitted to comment?
• NEPA stipulates protections for many types of wildlife. Given the increasing body of science linking wireless radiation with myriad problems for birds, trees and other living things, at what point will the protection of our natural world take precedence over the need to stream videos on our phones?
Please stay tuned for future developments and thanks for all you do!
-The 5G Crisis Team