Tribal Nations Challenge New Rules That Remove Upfront Tribal Fees and Exclude Small Cells from Section 106 and NEPA Review

On March 30, 2018, the Federal Communications Commission (“Commission”) released the Second Report and Order in which it amended and clarified the review processes under Section 106 of the National Historic Preservation Act (“NHPA”) and the National Environmental Policy Act of 1969 (“NEPA”).  Specifically, the Commission clarified that the deployment of small wireless facilities (“Small Cells”) by non-Federal entities does not constitute a “federal undertaking” or a “major federal action” and therefore is not subject to Section 106 NHPA or NEPA review.  The Commission also modified the response timeline and clarified that applicants have no legal obligation to pay upfront fees to Tribal Nations.  Last, the Commission committed to specific timelines for NEPA review and excluded certain projects located in a floodplain from the Environmental Assessment (“EA”) requirement.

These new rules are currently being challenged by several tribal nations and other interested parties.  On July 2, 2018, the Crow Creek Tribe of South Dakota (“Crow Creek”) and the Omaha Tribe of Nebraska (“Omaha Tribe”) filed a motion for stay of the effective date of the new rules.  The Crow Creek and Omaha Tribe, along with three other parties, have also filed a petition for review of the Commission’s Second Report and Order in the D.C. Circuit Court of Appeals.  Several parties have filed petitions for reconsideration of the Second Report and Orderwith the Commission.  The petitioners contend that the Second Report and Order improperly excluded Small Cells from historical and environmental review and that the Commission erred in its interpretation of the requirements under the NHPA.  The Commission has filed a motion with the D.C. Circuit Court to hold the case in abeyance while it addresses the pending petitions for reconsideration.  In response, petitioners have requested that the Court deny the Commission’s motion. In the alternative, petitioners request that the Court either allow the motion but only for a period of ninety days, during which the Commission must address the petitions for reconsideration, or allow the motion but require the Commission to stay its implementation of the new rules until the conclusion of the reconsideration process.

Despite the current challenges, the new rules and clarifications went into effect on July 2, 2018.  On July 2, 2018, the Commission released a Public Notice describing new changes and updates being made to TCNS and the E-106 system.  As of July 6, 2018, TCNS and the E-106 systems have been updated to implement the new rule changes made in the Second Report and Order.  Both systems are currently accepting new submissions and processing the submissions under the new rules.

We will continue to monitor the D.C. Circuit case and the Commission’s action on the petitions for reconsideration filed and will keep you apprised of any changes to the new rules.  If you have any questions or would like additional information regarding these rule changes and pending challenges, please contact Dee Herman (dee@hermanwhiteaker.com) or Clare Liedquist (cliedquist@hermanwhiteaker.com).