WASHINGTON — The U.S. District Court of Appeals for the District of Columbia ruled Friday, Aug. 9, that the Federal Communications Commission cannot make smaller 5G towers exempt from a review process on tribal land.
The decision remands the issue back to the FCC, as the court ruled that Rule 1779, which went into effect in July 2018, violated tribal rights under the National Historic Preservation Act to determine whether proposed structures such as cell towers and antennae will have an impact on historically or culturally significant land.
"(Rule 1779) basically said that anything under 199 feet tall, antennas, didn't need review under the National Historic Preservation Act, Section 106. Any time the government permits something or funds something or both, the National Historic Preservation Act kicks in if they disturb the ground, or they disturb anything," said Gary Montana of Montana Associates LLC, a Wisconsin-based and native-owned law firm that represented the Crow Creek Sioux and several other tribes in the appeal. "... What they were trying to do was bypass federal law, because they said it costs too much money; it was a delay in putting out 5G."
Montana said Wednesday afternoon that while the appellate court ruled in tribes' favor in one aspect, another facet of the rule is affecting tribes financially.
After a telecommunications company or subcontractor applies for a license for a tower or antenna on tribal land, the application is listed on the Tribal Construction Notice System. Tribes can then have information on the application sent to them for review. Montana said those documents can be up to 100 pages long.
Under the FCC rule, those who build antennae or towers on tribal land are not required to pay review fees to the tribes. Previously, those fees could be used by tribes for historic and cultural preservation projects.
"Since 1779 has gone into place, my company I represent, we've been reviewing these TCNS numbers for free, hoping that we would prevail in this case on the fee issue," Montana said. "Some of those tribes, like Omaha (Tribe of Nebraska) and Crow Creek, the TCNS numbers that come out each week ... Sometimes, there could be 400 or 500 sites a week."
The appellate court declined to vacate the part of the rule dealing with review fees, Montana said, because the Advisory Council on Historic Preservation, which oversees the National Historic Preservation Act, said tribes can be paid review fees if they're in a contractor role.
"So the FCC said, 'if you're going to get paid, you're going to have to have a written contract with these companies,'" Montana said. "And how many of these companies are really going to sign a contract with tribes that requires them to get paid?"
Montana said that for Crow Creek, which is one of the poorest tribes in the nation and has a high unemployment rate, the money no longer required to be paid in review fees has a significant impact on the tribe's historic preservation.
"Some tribes that are wealthy tribes, that's not a problem," Montana said. "All of my clients, my tribes, they're very, very poor."
Montana said that overall, he sees Friday's decision as a victory for tribes, and he hopes review fee requirements will be reinstated in the future.