The Federal Communications Commission’s March 2018 decision to scrap federal environmental and historical reviews for small cell sites was “arbitrary and capricious” according to the federal appeals court based in the District of Columbia, aka the D.C. circuit. In an opinion issued this morning, the D.C. circuit judges said “the commission failed to justify its confidence that small cell deployments pose little to no cognizable religious, cultural, or environmental risk”.
Today’s decision does not directly affect appeals of the FCC’s September 2018 wireless or August 2018 wireline rulings – those are being fought out in the ninth circuit federal appeals court in San Francisco. But it’s good news for the local governments that are challenging the FCC’s preemption of local ownership of poles and other infrastructure in the public right of way. They made the same top line argument – that the FCC acted arbitrarily and capriciously – that the D.C. circuit judges accepted today.
There is at least one key difference between the March FCC ruling, which was challenged by Indian tribes, and its August/September rulings. The March ruling directly involved federal environmental and historical preservation law, and the August/September rulings did not. The D.C. judges said “we owe no deference to the FCC’s interpretations of the [National Historic Preservation Act and National Environmental Policy Act]” because those laws are administered by another agency. On the other hand, they allowed as how “the FCC is entitled to deference to its reasonable interpretations of ambiguous provisions of the Communications Act”.
A major similarity between the two cases is the contention that the FCC didn’t do its homework, instead deciding in advance what the new rules should be, and then going through the motions of public review and comment before writing an argumentative ruling to justify what it intended to do in the first place. The D.C. judges agreed…
The Commission failed to justify its determination that it is not in the public interest to require review of small cell deployments. We therefore grant the petitions in part because the Order’s deregulation of small cells is arbitrary and capricious. The Commission did not adequately address the harms of deregulation or justify its portrayal of those harms as negligible. In light of its mischaracterization of small cells’ footprint, the scale of the deployment it anticipates, the many expedients already in place for low-impact wireless construction, and the Commission’s decades-long history of carefully tailored review, the FCC’s characterization of the Order as consistent with its longstanding policy was not “logical and rational.”
The ninth circuit judges in San Francisco will decide the challenge to the August and September decision on their own. It’s worth noting, though, that the D.C. circuit is generally reckoned to be more accepting of agency discretion than the ninth circuit. That was one of the reasons that the FCC colluded with wireless carriers to try to move the case elsewhere. If the D.C. judges didn’t accept the FCC’s sophomoric arguments, there’s even less chance that the San Francisco judges will.