D.C. Circuit Decision Represents Setback to Next-Generation Network Deployment Efforts

Abstract

Last week the D.C. Circuit invalidated an important Federal Communications Commission order. No, not the Restoring Internet Freedom Order, which has been pending since February and has kept telecom nerds like me glued to the court’s website every Tuesday and Friday morning. In United Keetoowah Band of Cherokee Indians in Oklahoma v. Federal Communications Commission, the court vacated portions of the Commission's Accelerating Wireless Broadband Deployment Order governing 5G deployment. The court found that the Commission’s decision to exempt small cell deployment from the environmental and historic preservation review processes that accompany larger tower deployments was arbitrary and capricious. This doctrine is designed to assure that orders are supported by “reasoned decisionmaking,” a low bar that (it seems to me) the 66-page Order should have cleared. The decision also represents a setback to the Commission’s ongoing efforts to promote 5G deployment.