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Federal appeals court partially overturns FCC order on wireless

A federal appeals court on August 9 partially overturned a U.S. Federal Communications Commission order that exempted small cell installations from certain historical and environmental reviews.

The order, which was passed in March 2018, was an attempt from the commission to speed up the deployment of next-generation wireless infrastructure. However, in its opinion, the appeals court determined that the commission did not sufficiently establish that small cell deployments do not pose a religious, cultural or environmental risk.

Small cells are cellular base stations and antennas that can vary in size but are generally the size of shoe boxes or backpacks. They are a part of the network densification necessary for 5G deployment.

"The commission accordingly did not, pursuant to its public interest authority … adequately address possible harms of deregulation and benefits of environmental and historic-preservation review," wrote Judge Cornelia Pillard in an opinion for the court.

The appeal was led by the United Keetoowah Band of Cherokee Indians in Oklahoma.

The order originally passed by the agency claimed to clarify that the deployment of small wireless facilities by nonfederal entities should not be required to be subject to certain environmental and historic preservation reviews and called the rules a regulatory impediment.

The court also denied an attempt to vacate the order in its entirety. It also denied an attempt to vacate changes the order made to how the FCC engages with native groups for historic preservation review for construction projects not located on tribal lands. The portions of the order that were vacated by the court will be returned to the FCC for additional consideration.