United Keetoowah Band of Cherokee Indians in Okla v. Fed. Commc'ns Comm'n , 933 F.3d 728 ( 2019 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 15, 2019 Decided August 9, 2019
No. 18-1129
UNITED KEETOOWAH BAND OF CHEROKEE INDIANS IN
OKLAHOMA, INDIVIDUALLY AND ON BEHALF OF ALL OTHER
NATIVE AMERICAN INDIAN TRIBES AND TRIBAL
ORGANIZATIONS, ET AL.,
PETITIONERS
v.
FEDERAL COMMUNICATIONS COMMISSION AND UNITED
STATES OF AMERICA,
RESPONDENTS
NATIONAL ASSOCIATION OF TRIBAL HISTORIC PRESERVATION
OFFICERS, ET AL.,
INTERVENORS
Consolidated with 18-1135, 18-1148, 18-1159, 18-1184
On Petitions for Review of an Order of
the Federal Communications Commission
Stephen Díaz Gavin argued the cause for petitioners
United Keetoowah Band of Cherokee Indians in Oklahoma, et
al., and supporting intervenors. With him on the briefs were J.
Scott Sypolt, Joel D. Bertocchi, Joseph H. Webster, F. Michael
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Willis, Andrew Jay Schwartzman, James T. Graves, and
Elizabeth S. Merritt. Angela J. Campbell entered an
appearance.
Sharon Buccino argued the cause for petitioner Natural
Resources Defense Council and intervenor Edward B. Myers.
With her on the briefs was Edward B. Myers.
Natalie A. Landreth argued the cause for petitioners
Blackfeet Tribe, et al. With her on the briefs were Wesley J.
Furlong, Joel West Williams, Troy A. Eid, Jennifer H. Weddle,
and Heather D. Thompson.
Jacob M. Lewis, Associate General Counsel, Federal
Communications Commission, argued the cause for
respondents. With him on the brief were Jeffrey Bossert Clark,
Assistant Attorney General, U.S. Department of Justice, Eric
A. Grant, Deputy Assistant Attorney General, Andrew C.
Mergen and Allen M. Brabender, Attorneys, Thomas M.
Johnson Jr., General Counsel, Federal Communications
Commission, David M. Gossett, Deputy General Counsel, and
C. Grey Pash Jr., Counsel. Jonathan H. Laskin and Robert B.
Nicholson, Attorneys, U.S. Department of Justice, and Richard
K. Welch, Deputy Associate General Counsel, Federal
Communications Commission, entered appearances.
Joshua Turner argued the cause for intervenors in support
of respondents. With him on the brief were Christopher J.
Wright and E. Austin Bonner.
Before: TATEL and PILLARD, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge PILLARD.
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PILLARD, Circuit Judge: Cellular wireless services,
including telephone and other forms of wireless data
transmission, depend on facilities that transmit their radio
signals on bands of electromagnetic spectrum. The Federal
Communications Commission (FCC or Commission) has
exclusive control over the spectrum, and wireless providers
must obtain licenses from the FCC to transmit. Wireless
service in the United States has mostly depended on large,
“macrocell” radio towers to transmit cell signal, but companies
offering the next generation of wireless service—known as
5G—are in the process of shifting to transmission via hundreds
of thousands of densely spaced small wireless facilities, or
“small cells.” As part of an effort to expedite the rollout of 5G
service, the Commission has removed some regulatory
requirements for the construction of wireless facilities. These
petitions challenge one of the FCC’s orders paring back such
regulations, In re Accelerating Wireless Broadband
Deployment by Removing Barriers to Infrastructure
Investment (Second Report & Order) (Order), FCC 18-30,
2018 WL 1559856 (F.C.C.) (Mar. 30, 2018).
The Order exempted most small cell construction from
two kinds of previously required review: historic-preservation
review under the National Historic Preservation Act (NHPA)
and environmental review under the National Environmental
Policy Act (NEPA). Together, these reviews assess the effects
of new construction on, among other things, sites of religious
and cultural importance to federally recognized Indian Tribes.
The Order also effectively reduced Tribes’ role in reviewing
proposed construction of macrocell towers and other wireless
facilities that remain subject to cultural and environmental
review.
Three groups of petitioners challenge the Order as
violating the NHPA, NEPA, and the Administrative Procedure
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Act on several grounds: that its elimination of historic-
preservation and environmental review of small cell
construction was arbitrary and capricious, an unjustified policy
reversal, and contrary to the NHPA and NEPA; that the
changes to Tribes’ role in reviewing new construction was
arbitrary and capricious; that the Commission arbitrarily and
capriciously failed to engage in meaningful consultations with
Tribes in promulgating the Order; and that the Order itself
required NEPA review.
We grant in part the petitions for review because the Order
does not justify the Commission’s determination that it was not
in the public interest to require review of small cell
deployments. In particular, the Commission failed to justify its
confidence that small cell deployments pose little to no
cognizable religious, cultural, or environmental risk,
particularly given the vast number of proposed deployments
and the reality that the Order will principally affect small cells
that require new construction. The Commission accordingly
did not, pursuant to its public interest authority, 47 U.S.C.
§ 319(d), adequately address possible harms of deregulation
and benefits of environmental and historic-preservation
review. The Order’s deregulation of small cells is thus
arbitrary and capricious. We do not reach the alternative
objections to the elimination of review on small cell
construction. We deny the petitions for review on the
remaining grounds.
BACKGROUND
I. Statutory and Regulatory Background
A. National Historic Preservation Act (NHPA)
Congress enacted the NHPA to “foster conditions under
which our modern society and our historic property can exist
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in productive harmony” and “contribute to the preservation of
nonfederally owned historic property and give maximum
encouragement to organizations and individuals undertaking
preservation by private means.” 54 U.S.C. § 300101(1), (4).
As part of that mission, NHPA’s Section 106 requires federal
agencies to “take into account the effect of” their
“undertaking[s] on any historic property.” Id. § 306108.
Both “historic property” and “undertaking” have specific
meanings under the statute. Historic properties include myriad
monuments, buildings, and sites of historic importance,
including “[p]roperty of traditional religious and cultural
importance to an Indian tribe.” Id. §§ 302706, 300308. Insofar
as Tribal heritage is concerned, the Section 106 process
requires federal agencies to “consult with any Indian tribe . . .
that attaches religious and cultural significance to” a historic
property potentially affected by a federal undertaking. Id.
§§ 302706, 306102. To count as “historic,” such properties
need not be on Tribal land; in fact, they “are commonly located
outside Tribal lands and may include Tribal burial grounds,
land vistas, and other sites that Tribal Nations . . . regard as
sacred or otherwise culturally significant.” Order ¶ 97. Only
a federal “undertaking,” not a state or purely private one,
triggers the Section 106 Tribal consultation process. A federal
“undertaking,” as relevant here, is “a project, activity, or
program funded in whole or in part under the direct or indirect
jurisdiction of a Federal agency, including . . . those requiring
a Federal permit, license, or approval.” 54 U.S.C. § 300320.
We have construed the statute to mean that, for an action to be
a federal undertaking, “only a ‘Federal permit, license or
approval’ is required,” not necessarily federal funding. CTIA-
Wireless Ass’n v. FCC, 466 F.3d 105, 112 (D.C. Cir. 2006).
The Section 106 process requires that an agency “consider
the impacts of its undertaking” and consult various parties, not
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that it necessarily “engage in any particular preservation
activities.” Id. at 107 (quoting Davis v. Latschar, 202 F.3d 359,
370 (D.C. Cir. 2000)). The NHPA established an independent
agency, the Advisory Council on Historic Preservation
(Advisory Council), 54 U.S.C. § 304101, which is responsible
for promulgating regulations “to govern the implementation
of” Section 106, id. § 304108(a). Agencies must consult with
the Advisory Council, State Historic Preservation Officers, and
Tribal Historic Preservation Officers, the last of which adopt
the responsibilities of State Historic Preservation Officers on
Tribal lands. 54 U.S.C. §§ 302303, 302702; 36 C.F.R.
§§ 800.3(c), 800.16(v)-(w) (defining State and Tribal Historic
Preservation Officers).
The Advisory Council’s regulations authorize the use of
alternatives to the ordinary Section 106 procedures, called
“programmatic agreements.” 36 C.F.R. § 800.14(b). The
Commission develops programmatic agreements in
consultation with the Advisory Council, Tribes, and other
interested parties, “to govern the implementation of a particular
program or the resolution of adverse effects from certain
complex project situations or multiple undertakings” in certain
circumstances, such as when “effects on historic properties are
similar and repetitive” or “effects on historic properties cannot
be fully determined prior to approval of an undertaking.” Id.
§ 800.14(1)(i)-(ii). Tribes’ views must be taken into account
where the agreement “has the potential to affect historic
properties on tribal lands or historic properties of religious and
cultural significance to an Indian tribe.” Id. § 800.14(b)(1)(i),
(f). For instance, the Commission has consulted with Tribes to
use programmatic agreements to exclude from individualized
review entire categories of undertakings that are unlikely to
affect historic properties. See In re Nationwide Programmatic
Agreement Regarding the Section 106 [NHPA] Review Process
(Section 106 Agreement), 20 FCC Rcd. 1073, 1075 ¶ 2 (2004).
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B. National Environmental Policy Act (NEPA)
Congress enacted NEPA to “encourage productive and
enjoyable harmony between man and his environment” and
“promote efforts which will prevent or eliminate damage to the
environment and biosphere and stimulate the health and
welfare of man,” among other purposes. 42 U.S.C. § 4321.
Like the NHPA, NEPA mandates a review process that “does
not dictate particular decisional outcomes, but ‘merely
prohibits uninformed—rather than unwise—agency action.’”
Sierra Club v. U.S. Army Corps of Eng’rs, 803 F.3d 31, 37
(D.C. Cir. 2015) (quoting Robertson v. Methow Valley Citizens
Council, 490 U.S. 332, 351 (1989)).
All “major Federal actions significantly affecting the
quality of the human environment” trigger environmental
review under NEPA, just as federal “undertakings” trigger
historic preservation review under the NHPA. 42 U.S.C.
§ 4332(C). Major federal actions “include[] actions . . . which
are potentially subject to Federal control and responsibility.”
40 C.F.R. § 1508.18. Under the Commission’s procedures
implementing NEPA, if an action may significantly affect the
environment, applicants must conduct a preliminary
Environmental Assessment to help the Commission determine
whether “the proposal will have a significant environmental
impact upon the quality of the human environment,” and so
perhaps necessitate a more detailed Environmental Impact
Statement. 47 C.F.R. § 1.1308; see also 40 C.F.R. § 1508.9.
If, after reviewing the Environmental Assessment, the
Commission determines that the action will not have a
significant environmental impact, it will make a “finding of no
significant impact” and process the application “without
further documentation of environmental effect.” 47 C.F.R.
§ 1.1308(d).
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NEPA also has an analogue to the NHPA’s Advisory
Council. In enacting NEPA, Congress established the Council
on Environmental Quality, in the Executive Office of the
President, to oversee implementation of NEPA across the
entire federal government. 42 U.S.C. §§ 4342, 4344. With the
endorsement of the Council on Environmental Quality and by
following a series of mandated procedures, agencies can
establish “categorical exclusions” for federal actions that
require neither an Environmental Assessment nor an
Environmental Impact Statement. 40 C.F.R. § 1508.4.
Categorical exclusions are appropriate for “a category of
actions which do not individually or cumulatively have a
significant effect on the human environment and which have
been found to have no such effect in procedures adopted by a
Federal agency.” Id. “Categorical exclusions are not
exemptions or waivers of NEPA review; they are simply one
type of NEPA review.” Council on Environmental Quality,
Memorandum for Heads of Federal Dep’ts and Agencies:
Establishing, Applying & Revising Categorical Exclusions
under [NEPA] (Categorical Exclusion Memo) 2 (2010).
C. Legal Framework for Wireless Infrastructure
The Communications Act of 1934 established the FCC to
make available a “rapid, efficient . . . wire and radio
communication service with adequate facilities at reasonable
charges.” 47 U.S.C. § 151. In licensing use of the spectrum,
the Commission is tasked with promoting “the development
and rapid deployment of new technologies, products and
services for the benefit of the public . . . without administrative
or judicial delays,” id. § 309, and “maintain[ing] the control of
the United States over all the channels of radio transmission,”
id. § 301.
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The Commission generally does not require construction
permits before private parties can build wireless facilities.
Congress largely eliminated the FCC’s site-specific
construction permits in 1982, and the Commission has since
required construction permits only where it finds that the public
interest would be served by such permitting. See Pub. L. 97-
259, 96 Stat. 1087, § 119 (1982) (codified at 47 U.S.C.
§ 319(d)). It has not made such a finding for the wireless
facilities at issue here.
The FCC does, however, require licensing of the spectrum
used by wireless small cells. It does so by issuing geographic
area licenses, which allow wireless providers to operate on
certain frequency bands in a wide geographic area. See 47
U.S.C. § 309(j). Those licenses authorize using spectrum
rather than building wireless facilities, but they necessarily
contemplate facility construction. They have coverage
requirements—for instance, one type of geographic area
license required licensees to provide service to at least 40% of
the population in their geographic service area by June 2013.
See 47 C.F.R. § 27.14(h). If they fail to meet the coverage
requirements, they can be stripped of authority to operate for
the license’s full term or serve part of its geographic area, and
they “may be subject to enforcement action, including
forfeitures.” Id. The Commission also exercises continuing
authority to inspect radio installations to ascertain their
compliance with any and all applicable laws, whether or not the
licensee itself constructed those installations. See 47 U.S.C.
§ 303(n); 47 C.F.R. § 1.9020(c)(5).
The Commission has not identified any period since the
enactment of the NHPA (in 1966) and NEPA (in 1970) when
it did not require historic-preservation and environmental
review of wireless facilities. After Congress eliminated the
construction permit requirement, the Commission for a time
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required NEPA and NHPA review of facilities before it granted
their service licenses. See, e.g., In re Amendment of Envtl.
Rules in Response to New Regulations Issued by [CEQ], FCC
85-626, 1986 WL 292182, at *5 ¶ 18 (F.C.C.) (Mar. 26, 1986)
(requiring review “during the period prior to grant of a station
license”); id. at *8 App’x ¶ 7 (requiring NEPA review on
“[f]acilities that will affect districts, sites, buildings, structures
or objects . . . that are listed in the National Register of Historic
Places or are eligible for listing,” which includes property of
religious or cultural significance to Indian Tribes, 54 U.S.C.
§ 302706(a)). In 1990, the Commission shifted review from
the licensing stage to the construction stage by establishing a
“limited approval authority” over construction of wireless
facilities. In re Amendment of Envtl. Rules (1990 Order), 5
FCC Rcd. 2942 (1990). Limited approval authority required
that, “where construction of a Commission-regulated radio
communications facility is permitted without prior
Commission authorization (i.e., without a construction permit),
the licensee must nonetheless comply with historic
preservation and environmental review procedures.” Order
¶ 51; see also 47 C.F.R. § 1.1312. The authority was “limited”
in that it allowed “the Commission [to] exercise[] control over
deployment solely to conduct federal historic and
environmental review.” Resp’t Br. 12. The Commission
emphasized that shifting review to the pre-construction stage
served a practical function: Before it had established its limited
approval authority, the FCC’s rules “provide[d] that any
required submission of [Environmental Assessments] and any
required Commission environmental review take place at the
licensing stage rather than prior to construction,” with the result
that “[a]pplicants who ha[d] already constructed their
facilities” could “subsequently be denied licenses on
environmental grounds.” 1990 Order 2942 ¶ 3. The
Commission explained that it continued to require review “to
ensure that the Commission fully complies with Federal
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environmental laws in connection with facilities that do not
require pre-construction authorization.” Id. ¶ 4. It announced
the changes as “necessary to ensure that the Commission
addresses environmental issues early enough in the licensing
process to ensure that it fully meets its obligations under
Federal environmental laws,” including NEPA and the NHPA.
Id. at 2943 ¶ 9 & n.16.
The Commission has never required individualized review
of each separate facility, however. A long series of regulations,
programmatic agreements, and categorical exclusions has
aggregated facilities for joint consideration and focused NHPA
and NEPA review on those deployments most likely to have
cultural or environmental effects. For instance, most
collocations—deployments on existing structures—are
excluded from individualized review under NHPA
programmatic agreements and NEPA categorical exclusions.
See In re Implementation of the National Environmental Policy
Act of 1969 (Implementation of NEPA), 49 F.C.C.2d 1313,
1319-20 (1974); Nationwide Programmatic Agreement for the
Collocation of Wireless Antennas (Collocation Agreement), 47
C.F.R. pt.1, app. B (2001); Section 106 Agreement, 20 FCC
Rcd. at 1075 ¶ 2; Nationwide Programmatic Agreement for
Review Under the National Historic Preservation Act, 70 Fed.
Reg. 556 (2005); In re Acceleration of Broadband Deployment
by Improving Wireless Facilities Siting Policies (Improving
Wireless Facilities Siting Policies), 29 FCC Rcd. 12865, 12870
¶ 11 (2014); 47 C.F.R. § 1.1320(b)(4). Categorical exclusions
go through notice and comment, 40 C.F.R. § 1507.3; include
impact findings, Categorical Exclusion Memo 9; require the
Council on Environmental Quality to approve them as
consistent with its regulations and NEPA, 40 C.F.R.
§ 1507.3(a); and reserve rights to interested parties to request
further review in the event that atypical adverse effects do
occur, 47 C.F.R. § 1.1307(c), (d). At the same time, they
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achieve enormous efficiencies in the review processes for
classes of actions or undertakings anticipated to have minimal
or no adverse cultural or environmental effects.
Since 2004, the FCC has been conducting NHPA review
in accordance with a broad programmatic agreement, the
Section 106 Agreement, 20 FCC Rcd. 1073. Interested parties
developed that agreement to “tailor the Section 106 review in
the communications context in order to improve compliance
and streamline the review process for construction of towers
and other Commission undertakings, while at the same time
advancing and preserving the goal of the NHPA to protect
historic properties, including historic properties to which
federally recognized Indian tribes . . . attach religious and
cultural significance.” Id. at 1074-75 ¶ 1. In the Section 106
Agreement, the Commission adopted “procedures for
participation of federally recognized Indian tribes,” among
other changes. Id. at 1075 ¶ 2. It also formalized the use of the
electronic Tower Construction Notification System, which
notifies Tribes of proposed wireless construction in areas they
have identified as containing properties of religious and
cultural significance, and allows them to give applicants
information on the potential effects of proposed construction.
Id. at 1106-10 ¶¶ 89-100.
II. Order Under Review
The challenged Order eliminated NHPA and NEPA
review on small cells that meet certain size and other
specifications, based on the Commission’s conclusion that
such review was not statutorily required and would impede the
advance of 5G networks, and that its costs outweighed any
benefits. See Order ¶¶ 36-45. The Order also altered Tribal
involvement in those Section 106 reviews that are still
conducted on wireless facilities that were not encompassed in
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the small cell exemption. See id. ¶¶ 96-130. Two of the five
Commissioners dissented. See Order, Dissenting Statement of
Comm’r Mignon L. Clyburn; Dissenting Statement of Comm’r
Jessica Rosenworcel.
We consolidated five timely petitions for review of the
Order into this action. They challenge the Commission’s
exclusion of small cell construction from NHPA and NEPA
review, its changes to Tribal involvement in Section 106
review, and its promulgation of the Order itself. Three groups
of petitioners and intervenors, each designated here by the
name of its lead petitioner, challenge the Order. United
Keetoowah Band of Cherokee Indians (Keetoowah) represents
a group of Tribes and historic preservation organizations.
Blackfeet Tribe (Blackfeet) represents another group of Tribes
and the Native American Rights Fund. The Natural Resources
Defense Council (NRDC) represents itself and Maryland
citizen Edward B. Myers. Two wireless industry groups
(jointly, CTIA) intervened to defend the order alongside the
FCC.
ANALYSIS
We set aside an agency order only if it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). Agencies’
obligation to engage in “reasoned decisionmaking” means that
“[n]ot only must an agency’s decreed result be within the scope
of its lawful authority, but the process by which it reaches that
result must be logical and rational.” Michigan v. EPA, 135 S.
Ct. 2699, 2706 (2015) (quoting Allentown Mack Sales & Serv.,
Inc. v. NLRB, 522 U.S. 359, 374 (1998)). Although “a court is
not to substitute its judgment for that of the agency,” the
arbitrary and capricious standard demands that the agency
“examine the relevant data and articulate a satisfactory
14
explanation for its action including a rational connection
between the facts found and the choice made.” Motor Vehicle
Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 43 (1983) (internal quotation marks omitted). An
agency action is arbitrary and capricious where the agency has
“entirely failed to consider an important aspect of the problem”
or “offered an explanation for its decision that runs counter to
the evidence before the agency, or is so implausible that it
could not be ascribed to a difference in view or the product of
agency expertise.” Id.
The FCC is entitled to deference to its reasonable
interpretations of ambiguous provisions of the
Communications Act. See Chevron, USA, Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837, 844-45 (1984). We owe no
deference to the FCC’s interpretations of the NHPA or NEPA,
which are primarily administered by the Advisory Council, see
McMillan Park Comm. v. Nat’l Capital Planning Comm’n, 968
F.2d 1283, 1287-88 (D.C. Cir. 1992), and the Council on
Environmental Quality, see Grand Canyon Tr. v. FAA, 290
F.3d 339, 341 (D.C. Cir. 2002) (as amended Aug. 27, 2002),
respectively.
I. Eliminating NHPA and NEPA Review on Small Cells
The Order did not follow the processes for a programmatic
agreement under the NHPA, a categorical exclusion from
NEPA, or any other wholesale or aggregated form of review,
but simply eliminated NHPA and NEPA review on most small
cells by removing them from the FCC’s limited approval
authority. Small cells had not previously been defined or
regulated separately from macrocell towers. The Commission
defines the small cells that its Order deregulates as wireless
facilities that are not on Tribal lands, do not require antenna
structure registration because they could not constitute a
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menace to air navigation, do not result in human exposure to
radiofrequency radiation in excess of applicable safety
standards, and that are “small” per the following conditions:
(i) The facilities are mounted on structures 50
feet or less in height including their antennas . . .
or the facilities are mounted on structures no
more than 10 percent taller than other adjacent
structures, or the facilities do not extend
existing structures on which they are located to
a height of more than 50 feet or by more than 10
percent, whichever is greater;
(ii) Each antenna associated with the
deployment, excluding the associated
equipment . . . is no more than three cubic feet
in volume;
(iii) All other wireless equipment associated
with the structure, including the wireless
equipment associated with the antenna and any
pre-existing associated equipment on the
structure, is no more than 28 cubic feet in
volume.
47 C.F.R. § 1.1312(e)(2). Small cells that meet those
requirements are now outside the purview of the Commission’s
limited approval authority, the mechanism by which it has
required NHPA and NEPA review since 1990.
The Commission deregulated small cells as part of a
broader effort to reduce regulations that the FCC says “are
unnecessarily impeding deployment of wireless broadband
networks” on which 5G service depends. Order ¶ 3. “Within
the next few years,” the Commission explained, “5G networks
. . . will make possible once-unimaginable advances, such as
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self-driving cars and growth of the Internet of Things,” i.e.
physical objects controllable over the internet. Id. ¶ 1. 5G
networks “will increasingly need to rely on network
densification,” which entails “the deployment of far more
numerous, smaller, lower-powered base stations or nodes that
are much more densely spaced.” Id. According to the
Commission, rapid proliferation of hundreds of thousands of
small cells would be hindered by the significant time and cost
of NHPA and NEPA reviews, even as the benefits of such
review—which it characterized as already minimal—would be
negligible because small cells are “inherently unlikely to
trigger environmental and historic preservation concerns.” Id.
¶ 92; see also id. ¶¶ 9, 11-16. It noted that the FCC’s baseline
approach to environmental and historic-preservation review,
which requires facility-specific review unless a programmatic
agreement or categorical exclusion applies, “was developed
when all or nearly all deployments involved large macrocell
facilities and accordingly failed to consider both the relatively
diminutive size of small wireless facilities and the proliferation
of these facilities necessary for deployment of advanced
wireless technologies.” Id. ¶ 9.
In the Order, the Commission asserts that federal law does
not independently require such review. The only basis for
treating small cell construction as either a federal undertaking
triggering NHPA review or a major federal action triggering
NEPA review was, the Commission says, the limited approval
authority the Commission exercised over that construction—
which the Order eliminated. See Order ¶¶ 58-59. The
Commission reasons that removing small cell construction
from its limited approval authority removes the “sufficient
degree of federal involvement” necessary to render an
undertaking or action “federal.” Id. ¶ 58. It now says its power
to exercise limited approval authority over construction derives
exclusively from its “public interest authority” under the
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Communications Act, see Order ¶¶ 39, 53, 61, rather than from
“its obligations under Federal environmental laws,” 1990
Order at 2943 ¶ 9. In this context, the “public interest
authority” refers to the FCC’s power to require pre-
construction permits for wireless facilities if it “determines that
the public interest, convenience, and necessity would be served
by requiring such permits.” 47 U.S.C. § 319(d). While the
Commission has never made such a determination for the
category of facilities at issue here, it has previously interpreted
the public interest authority “as allowing the Commission to
require covered entities [not requiring preconstruction permits]
to nonetheless comply with environmental and historic
preservation processing requirements.” Order ¶ 53. In the
Order, the Commission made a new determination that it was
not in the public interest to require NHPA and NEPA review
on small cells, so simply removed them from its limited
approval authority.
Petitioners all argue that the FCC unlawfully excluded
small cells from NHPA and NEPA review. They contend first
that removing small cells from the FCC’s limited approval
authority was arbitrary and capricious. See 5 U.S.C.
§ 706(2)(A). Keetoowah and the NRDC argue that the
Commission failed to adequately consider the harms of
massive deployment and to justify its decision to completely
exempt small cells from review. Additionally, all petitioners
argue that the NHPA and NEPA mandate review of small cell
construction. They assert that the geographic licenses the
Commission grants, which allow wireless companies to
operate on spectrum, constitute sufficient federal control over
wireless facility construction to make the construction a federal
undertaking and a major federal action triggering review under
those statutes. Keetoowah also contends that the exclusion
violates the Administrative Procedure Act on various other
grounds, including that it is an unjustified policy reversal. If
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petitioners prevail on any one or more of those grounds, we
must vacate the Order’s deregulation of small cells and remand
to the FCC.
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.” Michigan v. EPA, 135 S. Ct. at 2706.
Finally, the Commission did not satisfactorily consider the
benefits of review.
First, the Commission inadequately justified its portrayal
of deregulation’s harms as negligible. The FCC partly based
its public-interest conclusion on a picture of small cells that the
record does not support. It described small cells as “materially
different from the deployment of macrocells in terms of . . . the
lower likelihood of impact on surrounding areas.” Order ¶ 41.
In its brief, the Commission sums up its explanation of the
difference: “small cells are primarily pizza-box sized, lower-
powered antennas that can be placed on existing structures.”
Resp’t Br. 3; see also Order ¶¶ 66, 92. It likened small cells to
small household items that operate on radiofrequency such as
“consumer signal boosters [and] Wi-Fi routers,” which do not
undergo review. Order ¶ 66. Small cells are, to be sure, quite
different from macrocells in many ways, but the Commission
fails to address that small cells are typically mounted on much
19
bigger structures, and the Order is not limited to deployments
on structures that already exist or are independently subject to
review. Small cells deregulated under the Order can be
“mounted on structures 50 feet or less in height including their
antennas” or “mounted on structures no more than 10 percent
taller than other adjacent structures.” 47 C.F.R. § 1.1312(e)(i).
That makes them crucially different from the consumer signal
boosters and Wi-Fi routers to which the FCC compares them.
The scale of the deployment the FCC seeks to facilitate,
particularly given its exemption of small cells that require new
construction, makes it impossible on this record to credit the
claim that small cell deregulation will “leave little to no
environmental footprint.” Order ¶ 41. The Commission
anticipates that the needed “densification of small deployments
over large geographic areas,” id., could require 800,000
deployments by 2026, FCC, Declaratory Ruling & Third
Report & Order, FCC 18-133 ¶ 126 (Sept. 26, 2018). Even if
only twenty percent of small cells required new construction—
as one wireless company estimates and the FCC highlights in
its brief, see Resp’t Br. 54—that could entail as many as
160,000 densely spaced 50-foot towers (or 198-foot towers, as
long as they are located near 180-foot adjacent structures). The
Commission does not grapple with that possibility. Instead, it
highlights the small cells that can be collocated without
addressing the many thousands that cannot be.
As Keetoowah points out, the FCC “offers no analysis of
the footprint of” the new towers on which small cells can be
mounted, “what equipment will be used, what ongoing
maintenance or security will be provided and how often towers
will be updated or rebuilt.” Keetoowah Br. 15-16.
Deployment of new small cells requires not only new
construction but also wired infrastructure, such as electricity
hookups, communications cables, and wired “backhaul,”
20
which connects the new antenna to the core network. See, e.g.,
Comment of Sprint, Joint Appendix (J.A.) 380 (describing
process of deploying small cells); Comment of the Cities of
Bos., Mass., et al., J.A. 705-06 (describing the equipment
associated with small cells), NRDC Br. Ex. A, Decl. of Warren
Betts ¶¶ 11-12 (describing concerns about disruption “by the
laying of cables and wires, by the maintenance they require,
[and] by the sound of the maintenance vehicles” in otherwise
tranquil areas, and concerns “that trees may be cut down or
damaged by the construction of small cells”). Construction,
connection, and maintenance may entail excavation and
clearing of land. The Tribal Historic Preservation Officer for
the Seminole Tribe of Florida expressed concern about effects
of anticipated “additional related infrastructure, such as
fencing, security, and access for periodic maintenance and
troubleshooting.” Keetoowah Br. Add. 114, Decl. of Paul
Backhouse, ¶ 28. While the Commission asserted that
“deployment of small wireless facilities commonly (although
not always) involves previously disturbed ground,” it
eliminated review of small cells that will involve new ground
disturbance without responding to concerns about such
disturbance. Order ¶ 92; see also, e.g., Comment of the Nat’l
Cong. of Am. Indians, et al. (NCAI), J.A. 430-31 (expressing
concern about small cells that require ground disturbance);
Comment of the Cities of Bos., Mass., et al., J.A. 707 (“No
explanation is offered by the Commission for its exclusion of
any ground disturbance related conditions” in the draft Order).
The Commission also failed to assess the harms that can
attend deployments that do not require new construction,
particularly the cumulative harms from densification. While
“Tribal Nations are most concerned with federal undertakings
that disturb the ground and turn up dirt,” even “[c]ollocations
can affect cultural and historical properties th[r]ough
disturbing view sheds” because “[t]he cultural and spiritual
21
traditions of Tribal Nations across the United States frequently
involve the uninterrupted view of a particular landscape,
mountain range, or other view shed.” Comment of NCAI, J.A.
50. The FCC did not respond to historic-preservation
commenters warning “that permanent, direct adverse effects
will be more likely with small wireless facilities as in many
cases they are proposed for installation on or in historic
buildings,” and “these multi-site deployments have a greater
potential to cause cumulative effects to historic properties,
cluttering historic districts with multiple towers, antennae, and
utility enclosures.” Comment of Tex. Historical Comm’n, J.A.
794; see also, e.g., Ex Parte Commc’n of Thlopthlocco Tribal
Town Tribal Historic Pres. Officer, J.A. 690 (noting that the
Commission did not discuss “the issue of multiple collocations
on the same pole which cumulatively would exceed the volume
restriction and would create an adverse impact”); Comment of
Ark. State Historic Pres. Officer, J.A. 751 (“[A]lthough
individual small cells are unlikely to adversely impact
individual historic properties or districts, the FCC doesn’t
address how the large scale, nationwide deployment of 5G and
small cells facilities will cumulatively impact cultural and
natural resources.”). The Commission noted that all facilities
remain subject to its limits on radiofrequency exposure, Order
¶ 45, but failed to address concerns that it was speeding
densification “without completing its investigation of . . . health
effects of low-intensity radiofrequency radiation,” which it is
currently reassessing. Comment of BioInitiative Working Grp.,
J.A. 235.
The FCC does not reconcile its assertion that planned
small cell densification does not warrant review because it will
“leave little to no environmental footprint” with the Order’s
principal deregulatory effect of eliminating review of precisely
the new construction and other deployments that the
Commission previously considered likely to pose cultural and
22
environmental risks. The Commission already had in place
NEPA categorical exclusions and NHPA programmatic
agreements covering most collocations—as well as other kinds
of deployments unlikely to have cultural and environmental
impacts. What the new Order accomplishes, then, is to sweep
away the review the Commission had concluded should not be
relinquished.
Since the 1970s, the Commission has explained that most
collocations on existing towers or buildings are not “major”
federal actions and therefore are not subject to NEPA review.
Implementation of NEPA, 49 F.C.C.2d at 1319-20; 47 C.F.R.
§§ 1.1301-1.1319. The FCC’s NEPA regulations limit
environmental review to a small subset of actions likely to have
significant environmental effects, see 47 C.F.R. § 1.1307, as
well as those actions found through Section 106 review to have
adverse effects on historic properties, see id. § 1.1307(a)(4).
Before it promulgated the challenged rule, the Commission had
further shrunk the category of actions that receive
individualized NHPA or NEPA review by adopting
programmatic agreements and categorical exclusions. In
chronological order, it excluded most collocations from
individualized review, see Collocation Agreement, 47 C.F.R.
Pt.1, App. B; adopted “categories of undertakings that are
excluded from the Section 106 process because they are
unlikely by their nature to have an impact upon historic
properties,” Section 106 Agreement, 20 FCC Rcd. at 1075 ¶ 2;
excluded from individualized review new categories of
wireless construction and modification unlikely to have
historic preservation effects, see Nationwide Programmatic
Agreement for Review Under the National Historic
Preservation Act, 70 Fed. Reg. at 558; and, most recently,
expanded NHPA and NEPA exclusions for collocations, see
Improving Wireless Facilities Siting Policies, 29 FCC Rcd. at
12870 ¶ 11. In sum, the FCC had already streamlined and
23
minimized review of vast numbers of minor actions, focusing
attention only on subcategories of deployments likely to have
cultural or environmental effects.
Second, in sweeping away wholesale the review it had
preserved for the small cell deployments most likely to be
disruptive, the Order is not, as the FCC asserts, “consistent
with the Commission’s treatment of small wireless facility
deployments in other contexts,” but directly contrary to it.
Order ¶ 42. We observe by way of example the Commission’s
assertion that “under the Collocation [Agreement], the
Commission already excludes” from NHPA review “many
facilities that meet size limits similar to those” of small cells.
Id. As the Commission sees it, the Order thus “builds upon the
insight underlying these existing rules that small wireless
facilities pose little or no risk of adverse environmental or
historic preservation effects.” Id. But the Collocation
Agreement exclusion was defined not just by size, but by other
characteristics that minimized the likelihood of cultural harm.
The section of the Collocation Agreement the FCC cites in fact
only excludes from individualized NHPA review “small
wireless antennas and associated equipment on building and
non-tower structures that are outside of historic districts and are
not historic properties,” which include property of religious
and cultural importance to Tribes. Collocation Agreement, 47
C.F.R. Pt.1, App. B § VI (formatting altered); see also 54
U.S.C. §§ 300308, 302706. A different section of the
Collocation Agreement, which did exempt certain collocations
of small antennas in historic districts or on historic properties,
likewise included numerous conditions to minimize effects on
historic properties. An antenna could only be collocated on a
historic property if, for example, “a member of the public, an
Indian Tribe, a [State Historic Preservation Office] or the
[Advisory] Council” had not complained “that the collocation
ha[d] an adverse effect on one or more historic properties,”
24
Collocation Agreement, 47 C.F.R. Pt.1, App. B § VII(A)(6),
and if the antenna was installed “using stealth techniques that
match or complement the structure on which or within which it
is deployed,” id. § VII(A)(2)(c), and “in a way that does not
damage historic materials and permits removal of such
facilities without damaging historic materials,” id. § VII(A)(4),
among other conditions. After the Order, none of those
limiting conditions applies. The insight of the Collocation
Agreement was not that small cells by their nature “pose little
or no risk of adverse environmental or historic preservation
effects,” Order ¶ 42, but that small cells under certain carefully
defined conditions pose little such risk.
Similarly, the FCC explains its “conclusion that, as a class,
the nature of small wireless facility deployments appears to
render them inherently unlikely to trigger environmental and
historic preservation concerns” by reference to limiting criteria
that it chose not to place on its small cell exemption. Id. ¶ 92.
It notes, for example, that “deployment of small wireless
facilities commonly (although not always) involves previously
disturbed ground, where fewer concerns generally arise than on
undisturbed ground,” and reiterates that “use of existing
structures, where feasible, can both promote efficiency and
avoid adverse impacts on the human environment.” Id. But
the Commission decided not to limit the Order’s exemption
only to facilities sited on previously disturbed ground, or those
that are collocated on existing structures. It therefore fails to
justify its conclusion that small cells “as a class” and by their
“nature” are “inherently unlikely” to trigger concerns.
By ignoring the extent to which it had already streamlined
review, the Commission also overstated the burdens of review.
It said it could not “simply turn a blind eye to the reality that
the mechanical application of [limited approval authority]
requirements to each of [the] small deployments” necessary for
25
5G “would increase the burden of review both to regulated
entities and the Commission by multiples of tens or hundreds.”
Id. ¶ 65. As the preceding discussion of the Collocation
Agreement illustrates, however, the FCC was not
indiscriminately or “mechanic[ally]” requiring full NHPA and
NEPA review for each individual small cell. The Commission
fails to explain why the categorical exclusions and
programmatic agreements in place did not already minimize
unnecessary costs while preserving review for deployments
with greater potential cultural and environmental impacts.
Third, given that only the most vulnerable cases were still
subject to individualized NHPA or NEPA review, the
Commission did not adequately address either the possible
benefits of retaining review, or the potential for further
streamlining review without eliminating it altogether. It
dismissed the benefits of historic-preservation and
environmental review in a two-sentence paragraph, describing
most of the comments that highlight those benefits as
“generalized” and the comments that point to specific benefits
as “few.” Id. ¶ 78. Characterizing a concern as “generalized”
without addressing that concern does not meet the standard of
“reasoned decisionmaking.” Michigan v. EPA, 135 S. Ct. at
2706.
The Commission found that adverse effects are rare, but it
considered neither the importance of the sites review does save,
nor how that rarity depends on the very review it eliminates,
which forestalled adverse effects that otherwise would have
occurred. The FCC cited comments suggesting that only 0.3 or
0.4% of requests for Tribal review result in findings of adverse
effects or possible adverse effects. Order ¶ 79. Based on the
estimate of 800,000 small cell deployments, that could mean
3,200 adverse effects. The Order displayed no consideration
of the importance of the 3,200 Tribal sites that might be saved
26
through review except to describe that benefit as “de minimis
both individually and in the aggregate.” Id. As counsel for
petitioner Blackfeet Tribe said at oral argument: “They may
think that’s infinitesimal. To us, it means the world.” Oral
Argument at 1:16:16-20. The Commission also did not address
comments that “no adverse effects in 99% of tower
deployments shows that the current system is working”
because “[o]ften, after an applicant enters a location into” the
Tower Construction Notification System, a Tribal
representative “will notify the applicant of an issue and the
applicant will choose a new location or resolve that effect,”
which “gets counted as having no adverse effect.” Comment of
Nat’l Ass’n of Tribal Historic Pres. Officers, J.A. 661. Other
commenters agreed that “[t]he lack of significant impact should
be a testament to the value of the review process in these
instances, not negate its necessity.” Comment of Tex.
Historical Comm’n, J.A. 794 (“In our experience, the vast
majority of adverse effects for cell projects are resolved
through sensitive design modifications, including stealth
measures, modifying how equipment is attached if directly
mounted to a historic building or structure, or relocation to an
alternate site further removed from historic properties.”).
Similarly, the Commission dismissed the point that its own
oversight deters adverse effects by describing comments to that
effect as “generalized, and undercut by our conclusion that, as
a class, the nature of small wireless facility deployments
appears to render them inherently unlikely to trigger
environmental and historic preservation concerns.” Order
¶ 92. For the reasons already explained, the FCC’s conclusion
that small cells are inherently unlikely to trigger concerns is
arbitrary and capricious, and describing comments as
“generalized” does not excuse the agency of its obligation to
consider those comments as part of reasoned decisionmaking.
27
We hold that the Order’s deregulation of small cells is
arbitrary and capricious because its public-interest analysis did
not meet the standard of reasoned decisionmaking. We
therefore decide neither the alternative grounds for holding that
the Order is arbitrary and capricious or otherwise violated the
Administrative Procedure Act, nor the claim that small cell
construction is a federal undertaking and a major federal action
requiring NHPA and NEPA review.
II. Tribal Involvement in Section 106 Review
The Order also made three changes to Tribal involvement
in the Section 106 review not eliminated by the Order, such as
review of macrocells and small wireless facilities on Tribal
land. The first two changes relate to two types of Tribal
involvement that the Commission and the Advisory Council
distinguish from one another: (a) government-to-government
consultation between the agency and the Tribes, in which
Tribes function in their governmental capacity, and (b) the
“identification and evaluation phase of the Section 106 process
when the agency or applicant is carrying out its duty to identify
historic properties that may be significant to an Indian tribe.”
Advisory Council, Consultation with Indian Tribes in the
Section 106 Review Process: A Handbook (Section 106
Handbook), J.A. 1015; see also FCC, Voluntary Best Practices
for Expediting the Process of Communications Tower and
Antenna Siting Review Pursuant to Section 106 of the NHPA,
J.A. 933; Order ¶¶ 118-19.
Section 106 review comprises “four steps”: “initiation,
identification, assessment [or evaluation], and resolution.”
Section 106 Handbook, J.A. 1018. Government-to-
government consultation is a background requirement of
Section 106 review at every stage. See id. at J.A. 1014, 1018;
Advisory Council, Fees in the Section 106 Review Process,
28
J.A. 913; 36 C.F.R. § 800.2(c)(2)(ii)(A) (consultation requires
giving the interested Tribe “a reasonable opportunity to
identify its concerns about historic properties, advise on the
identification and evaluation of historic properties, . . .
articulate its views on the undertaking’s effects on such
properties, and participate in the resolution of adverse effects”).
In the identification and evaluation period, however, applicants
have often paid for expertise and assistance from Tribes acting
“in a role similar to that of a consultant or contractor” such as
by providing “specific information and documentation
regarding the location, nature, and condition of individual
sites” or even conducting surveys. Section 106 Handbook, J.A.
1015. The Order explains that identification and evaluation
involves “activities undertaken after the initial determination
that historic properties are likely to be located in the site
vicinity,” and that it includes “monitoring and other activities
directed toward completing the identification of historic
properties as well as assessing and mitigating the project’s
impacts on those properties.” Order ¶ 124.
The “initial determination” falls into the government-to-
government consultation category. See Section 106 Handbook,
J.A. 1021 (explaining that initiating contact with Tribes is part
of the Commission’s “responsibilities to conduct government-
to-government Consultation”). In practice, however, Tribes
have been allowing applicants to contact them directly, in lieu
of government-to-government consultation, to help make the
initial determination. See Section 106 Agreement, 20 FCC Rcd.
at 1108 ¶¶ 95-96; Keetoowah Br. 37. The Section 106
Agreement “expresses the ambition that this initial contact will
lead to voluntary direct discussions through which applicants
and tribes . . . will resolve questions involving the presence of
relevant historic properties and effects on such properties to the
tribe[’s] . . . satisfaction without Commission involvement.”
20 FCC Rcd. at 1108 ¶ 97. But “if an applicant and an Indian
29
tribe . . . disagree regarding whether an undertaking will have
an adverse effect on a historic property of religious and cultural
significance, or if the tribe . . . does not respond to the
applicant’s inquiries,” the Commission steps in to consult and
ultimately “make a decision regarding the proposed
undertaking.” Id.
The Advisory Council explains that “[t]hese two tribal
roles”—government-to-government consultation, and
assistance with identification and evaluation—“are not treated
the same when it comes to compensation, although the line
between them may not be sharp.” Advisory Council, Fees in
the Section 106 Review Process, J.A. 913. Advisory Council
guidance states that “agencies are strongly encouraged to use
available resources to help overcome financial impediments to
effective tribal participation in the Section 106 process” and
applicants are likewise “encouraged to use available resources
to facilitate and support tribal participation.” Advisory
Council, Section 106 Handbook, J.A. 1015. At the same time,
it says that agencies and applicants should not expect to pay
fees for government-to-government consultation, which
“give[s] the Indian tribe an opportunity to get its interests and
concerns before the agency,” Advisory Council, Fees in the
Section 106 Review Process, J.A. 913, but “should reasonably
expect to pay” fees for the identification and evaluation, which
puts Tribes in a “consultant or contractor” role, Advisory
Council, Section 106 Handbook, J.A. 1015. It notes, however,
that “this encouragement is not a legal mandate; nor does any
portion of the NHPA or the [Advisory Council’s] regulations
require an agency or an applicant to pay for any form of tribal
involvement.” Id.
First, apparently because applicants had been consistently
paying upfront fees, see Keetoowah Br. 37, the Order made
clear that applicants’ payment of upfront fees to Tribes is
30
voluntary. See Order ¶ 116. Upfront fees are payments made
to Tribes for the initial determination whether the Tribe
actually has religiously or culturally significant properties that
might be affected by a proposed construction. See id. ¶ 116.
Applicants contact Tribes for that initial determination when
Tribes have noted that properties in the general area of
proposed construction may have religious or cultural
significance for them. Id. When an applicant follows up “to
ascertain whether there are in fact such properties that may be
affected,” some Tribes have requested upfront fees before they
will respond. Id. As the Order describes the practice, the
upfront fees “do not compensate Tribal Nations for fulfilling
specific requests for information and documentation, or for
fulfilling specific requests to conduct surveys,” but are “more
in the nature of a processing fee” to “obtain a response” to an
applicant’s initial Tower Construction Notification contact
with a Tribal Nation. Id. ¶ 119.
Second, while the Order approved of fees for identifying
and evaluating properties that may be significant to Tribes, as
opposed to upfront fees, see id. ¶ 123, it also authorized
applicants to consult with non-Tribal parties in the
identification and evaluation phase, see id. ¶¶ 124-45. The
Commission found that, if an applicant asks a Tribe to perform
work to aid it in documenting, surveying, or analyzing
potentially historic properties, “the applicant should expect to
negotiate a fee for that work” and, if the parties are “unable to
agree on a fee, the applicant may seek other means to fulfill its
obligations.” Id. ¶ 125. “The agency or applicant is free to
refuse just as it may refuse to pay for an archeological
consultant, but the agency still retains the duties of obtaining
the necessary information for the identification [and
evaluation] of historic properties . . . through reasonable
means.” Id. (quoting Advisory Council, Section 106
Handbook, J.A. 1015).
31
Third, the Order shortened from 60 to 45 days the timeline
for Tribes to respond to notifications on the Tower
Construction Notification System, eliminated the requirement
that applicants make a second attempt to contact Tribes, and
shortened from 20 to 15 days the timeline for Tribal response
to Commission contact. Id. ¶¶ 110-11.
Keetoowah and Blackfeet challenge those three changes as
arbitrary and capricious and inconsistent with the NHPA.
Keetoowah complains that the Order “encourages applicants,
which have until this point voluntarily paid fees, to refuse
paying Tribes” upfront fees, Keetoowah Br. 37; that “FCC
implementation goes far beyond the terms of the Order by
refusing to even allow Tribes to request voluntary fees
through” the Tower Construction Notification System, id. at
37-38; that letting applications proceed where Tribes refuse to
participate without compensation or are not hired as
consultants violates the Commission’s legal obligation to
consult with Tribes, id. at 38; and that the shortened timelines
are unreasonable, id. at 40. Blackfeet asserts that the
Commission lacks “the authority to prohibit tribes from
collecting fees” because only the Advisory Council may
promulgate regulations implementing Section 106. Blackfeet
Br. 16.
None of those challenges is availing. The clarification that
applicants are not required to pay upfront fees is consistent with
the Advisory Council’s preexisting guidance and does not
violate the Commission’s duty to consult with Tribes. The
Order permissibly authorizes applicants to contract with non-
Tribal parties in the identification-and-evaluation phase
because it stipulates that contractors must be “properly
qualified,” which we understand does not authorize hiring
other contractors in any circumstance in which only Tribes are
32
qualified. Order ¶ 128. The shortened timeline for Tribal
response is reasonable and sufficiently explained.
A. Upfront Fees
The Order permissibly confirms that upfront fees for
Tribes to comment on proposed deployments are voluntary.
Unchallenged Advisory Council regulations already make
clear that fees are voluntary, so the Order’s reiteration of the
same point is not arbitrary and capricious. While applicants
have apparently been uniformly paying upfront fees for Section
106 review, no party asserts that they have been required to do
so. See Keetoowah Reply Br. 20. The Advisory Council has
been explicit that no “portion of the NHPA or the [Advisory
Council’s] regulations require an agency or an applicant to pay
for any form of tribal involvement.” Advisory Council, Section
106 Handbook, J.A. 1015; see also Advisory Council, Fees in
the Section 106 Review Process, J.A. 913 (neither the NHPA
nor Advisory Council regulations “requires Federal agencies to
pay for any aspect of tribal [or] other consulting party
participation in the Section 106 process”). Blackfeet’s
complaint that “[t]he FCC does not have the authority to
prohibit tribes from collecting fees” and that the Order is
impermissibly “implementing and administering Section 106
through regulation” is misplaced. The challenged Order
contains no such prohibition, but does no more than recognize
and reiterate the Advisory Council’s existing rule.
The Commission has a non-delegable duty to consult with
Tribes about the effect of federal undertakings on property
significant to the Tribes, which Tribes can invoke or waive as
they choose. The NHPA mandates that, “[i]n carrying out its
responsibilities under [Section 106], a Federal agency shall
consult with any Indian tribe . . . that attaches religious and
cultural significance to property.” 54 U.S.C. § 302706(b). The
33
Advisory Council has explained that “federal agencies cannot
unilaterally delegate their tribal consultation responsibilities to
an applicant,” but can only delegate if “expressly authorized by
the Indian tribe to do so.” Advisory Council, Limitations on
the Delegation of Authority by Federal Agencies to Initiate
Tribal Consultation under Section 106 of the National Historic
Preservation Act (Limitations on Section 106 Delegation) 1
(2011), https://go.usa.gov/xyWGq. The Commission has also
recognized that its “fiduciary responsibility and duty of
consultation [to Tribes] rest with the Commission as an agency
of the federal government, not with licensees, applicants, or
other third parties.” Section 106 Agreement, 20 FCC Rcd. at
1106 ¶ 91.
Keetoowah says its challenge is not to the “FCC’s
clarification that fees are voluntary,” but to “the Order’s
determination that FCC will process applications without tribal
input if tribes insist on charging applicants for their reviews.”
Keetoowah Reply Br. 19-20. That determination, Keetoowah
asserts, violates the Commission’s “statutory obligation to
consult with tribes.” Id. at 19. Under the Section 106
Agreement, Tribes can and do permit applicants to contact them
to request review of proposed construction—essentially
agreeing to accept that contact in satisfaction of the
Commission’s responsibility to consult with Tribes directly.
20 FCC Rcd. at 1108 ¶ 96; see also Keetoowah Br. 37;
Comment of the Seminole Tribe of Florida, J.A. 743 (“[T]ribes
participate in review . . . on a voluntary basis” as a substitute
for “direct Section 106 consultation with the FCC.”) But
Tribes can request “the federal agency to reenter the
consultation process at any time . . . since the federal agency
remains responsible for government-to-government
consultation.” Limitations on Section 106 Delegation 2.
Keetoowah implies that Tribes have only agreed to accept
direct contact from applicants under the condition that
34
applicants pay for Tribes’ responses—meaning that if Tribes
refuse to respond without being paid upfront fees, they will not
have waived the Commission’s responsibility to consult with
them directly. Without having fulfilled its legal obligation to
consult, Keetoowah contends, the Commission cannot permit
applicants to go ahead with construction.
Keetoowah overlooks the fact that when a Tribe refuses to
review an application without being paid, the Order requires
the Commission to step in to ask the Tribe for a response before
allowing applicants to construct. Tribes’ refusal to respond
triggers a process in which applicants can refer the matter to
the Commission, the Commission must contact Tribes directly,
and Tribes have 15 days from Commission contact to respond.
See Order ¶ 111. Only if the Tribe does not timely respond to
the Commission are “the applicant’s pre-construction
obligations . . . discharged with respect to that Tribal Nation.”
Id. The Tribe is guaranteed the opportunity to consult as a
sovereign—a capacity in which it need not be paid—and the
Commission cannot force an unwilling Tribe to respond.
Therefore, if a Tribe refuses to respond when the Commission
requests its views on an application, the Commission has
discharged its obligation of direct Commission-to-Tribe
consultation. See id. ¶ 111. Apart from the shortened
timeframe, discussed below, Keetoowah has not offered any
reason the Commission’s contacting Tribes directly with a
request to consult that the Tribe rejects does not satisfy the
Commission’s consultation obligation.
Finally, the objection that the Commission is prohibiting
Tribes from requesting voluntary fees on the Tower
Construction Notification System, Keetoowah Br. 38-40, is not
properly before us. That prohibition does not appear in the
Order itself but seems to originate with a later decision of
Commission staff. See Resp’t Br. 64 n.19.
35
B. Non-Tribal Consultation
The Order states that applicants need not contract with
Tribes to identify which properties have historic or cultural
significance to Tribes and determine how to assess or mitigate
adverse effects of construction. Order ¶¶ 124-25, 128-29.
Keetoowah argues that allowing applicants to contract with
non-Tribal parties is arbitrary and capricious because “only
Tribes are qualified to perform” such services “based on their
unique, often sacred, knowledge.” Keetoowah Br. 23. Because
the Order stipulates that contractors must be “properly
qualified,” we reject the arbitrary-and-capricious claim. Order
¶ 128.
Advisory Council regulations require the agency to “make
a reasonable and good faith effort to carry out appropriate
identification efforts” under Section 106. 36 C.F.R.
§ 800.4(b)(1). The Order explains that “the applicant is not
bound to any particular method of gathering information,”
Order ¶ 125, but it stipulates that contractors must be “properly
qualified,” id. ¶ 128. The “reasonable and good faith efforts”
standard together with the Order’s mandate that parties be
“properly qualified” may sometimes require applicants to hire
Tribes—for instance, where Tribes have “unique” and “sacred”
knowledge of historic properties. Advisory Council guidance
supports that notion, explaining that “unless an archeologist
has been specifically authorized by a tribe to speak on its behalf
on the subject, it should not be assumed that the archaeologist
possesses the appropriate expertise to determine what
properties are or are not of significance to an Indian tribe.”
Section 106 Handbook, J.A. 1022. The Order itself suggests
that applicants should try to hire Tribes first: “[I]f an applicant
asks a Tribal Nation” to perform identification and evaluation
of historic properties, “the applicant should expect to negotiate
a fee for that work,” but if the Tribe and applicant “are unable
36
to agree on a fee, the applicant may seek other means to fulfill
its obligations.” Order ¶ 125. We cannot say, ex ante, how
often as a practical matter applicants might find qualified non-
Tribal contractors or whether, as applied, the law will
ordinarily require hiring Tribes. If a Tribe believes an
applicant has hired an unqualified contractor, that issue can be
litigated when it arises.
C. Timeline Changes
Keetoowah’s one-paragraph challenge to the Order’s
shortening the timeline for Tribal response to Tower
Construction Notification System notifications provides no
basis on which to hold the shortened timeline arbitrary and
capricious. Keetoowah Br. 40. Its sole objection is that Tribes
“operate with limited staff and budget, making the shortening
of Tribal review time unreasonable.” Id. The Commission
acted within its discretion and “considered the relevant factors
and articulate[d] a rational connection between the facts found
and the choice made.” Vonage Holdings Corp. v. FCC, 489
F.3d 1232, 1241 (D.C. Cir. 2007) (quoting BellSouth
Telecomms., Inc. v. FCC, 469 F.3d 1052, 1056 (D.C. Cir. 2006)
(alteration in original)). It reasonably justified the decision as
a compromise between industry requests for even shorter
timelines to address delays, and Tribes’ need for adequate time
to review submissions. See Order ¶¶ 112 n.262, 113.
III. Promulgation of the Order Itself
All petitioners argue that the promulgation of the Order
itself violated the law. Keetoowah and Blackfeet argue that the
Commission violated its duty to consult with Tribes, as
established by the Tribes’ sovereign status and the government-
to-government relationship recognized in Article I, Section 8
of the Constitution, the NHPA, and the Commission’s
regulations. See Keetoowah Br. 40-42; Blackfeet Br. 20-21.
37
The NRDC argues that the Order itself was a major federal
action that required NEPA review. See NRDC Br. 10-11.
Because the Order documents extensive consultation with
Tribes, we reject the first contention. We lack jurisdiction to
consider the second because the NRDC forfeited it by failing
to raise it to the Commission.
As for the Tribes’ contention that the Order is invalid
because the Commission did not meet its obligations to consult
with Tribes, the Commission responds that it extensively
consulted with Tribes, and that in any event its consultation
obligation is not judicially enforceable. Resp’t Br. 69-74. We
conclude that the Commission fulfilled its obligation to
consult. The Commission presented abundant evidence that it
“consulted” Tribes in the ordinary sense of the word, and the
Tribes have offered no other concrete standard by which to
judge the Commission’s efforts.
On this record, we cannot say that the Commission failed
to consult with Tribes in its meetings and other
communications, which began in 2016 and continued through
early 2018. See Order ¶¶ 19, 34. The Commission
documented extensive meetings it held with Tribes before it
issued the Order. See Order ¶¶ 19-35. Under Advisory
Council regulations, “[c]onsultation means the process of
seeking, discussing, and considering the views of other
participants, and, where feasible, seeking agreement with them
regarding matters arising in the section 106 process.” 36
C.F.R. § 800.16(f); see also 54 U.S.C. § 302706(b). The
dictionary definition of consulting is “seek[ing] advice or
information of.” Consult, American Heritage Dict. (5th ed.
2019). Keetoowah complains that the FCC’s efforts were
“listening sessions, briefings, conference calls, and delivery of
remarks by a Commissioner” rather than “consultations,” and
presents evidence that Tribes did not view these meetings as
38
consultations. Keetoowah Br. 44. But it offers no standard by
which to judge which consultations were “listening sessions”
or whether a “listening session” or a conference call qualifies
as a consultation. The only case Keetoowah cites interpreting
an agency’s failure to consult is inapposite: there, an agency
official “acknowledged at trial” that the contested decision
“had already been made prior to” the first meeting between
Tribal members and agency officials discussing the decision.
Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707, 710
(8th Cir. 1979). No evidence in this record suggests the
Commission had already determined the Order’s substance
before meeting with Tribes—and the series of communications
and meeting commenced even before the Commission issued
the Notice of Proposed Rulemaking. See Order ¶ 19. The
Commission appeared to “seek[], discuss[], and consider[] the
views of” the Tribes, even if it did not ultimately adopt those
views.
The NRDC argues that promulgating the Order was itself
a major federal action that required NEPA review. See NRDC
Br. 10-11. But, as intervenor CTIA points out, the NRDC
forfeited that argument by failing to make it to the
Commission, see CTIA Br. 38, and we lack jurisdiction to
review a claim that was not raised there. Free Access & Broad.
Telemedia, LLC v. FCC, 865 F.3d 615, 619 (D.C. Cir. 2017).
While the NRDC points to its own and others’ comments
“urg[ing] the Commission to conduct a NEPA analysis,”
NRDC Reply Br. 3, none of those comments said the
Commission was required to perform a NEPA analysis of the
Order. The NRDC cites its own comment “that if the FCC
sought to exclude an entire category of wireless facilities from
NEPA, it was required to establish a categorical exclusion.” Id.
(citing J.A. 787-90). But the NRDC did not there contend, as
it now does, that the Order is a major federal action. Rather,
the NRDC’s argument was that the federal character of the
39
geographic area license meant that the Commission could not
entirely exempt wireless facility construction from NEPA
review, J.A. 790—the same statutory argument it made here—
and that the proper approach to exempting federal “activities
that by their nature do not have significant impacts on the
environment is with a categorical exclusion,” J.A. 789.
Whether the licenses or construction are federal, the basis of
the NRDC’s argument, is irrelevant to the question whether the
Order overall is a major federal action that requires NEPA
review. One of the other two comments it cites asserted that
the proposed rule failed to comply with NEPA, but again, not
because the Order required NEPA analysis—rather because
the issuance of licenses constitutes a major federal action. See
Comment of the Nat’l Trust for Historic Pres., J.A. 770. The
third comment urged the Commission to consider the
cumulative effects of radiofrequency exposure, but did not
even mention NEPA. See Comment of BioInitiative Working
Grp., J.A. 235-38. The argument that the Order required
independent NEPA review was never fairly before the
Commission.
CONCLUSION
We grant the petitions to vacate the Order’s removal of
small cells from its limited approval authority and remand to
the FCC. We deny the petitions to vacate the Order’s changes
to Tribal involvement in Section 106 review and to vacate the
Order in its entirety.
So ordered.