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United Keetowah v FCC

December 5, 2019
Dear 5G opponents,
This is a sample letter you can send to your city council or county board of supervisors regarding the court decision in United Keetowah Band of Cherokee Indians et al v Federal Communications Commission.

If you are writing to your Board of Supervisors then replace “City” with “County” and “City Council” with “Board of Supervisors.”

Dear City Council Members,
Not only do the wireless companies have to comply with all applicable state and federal environmental laws, but the City has to require them to do it. Without City involvement the wireless companies won’t do any more than they are required to do.
You may be aware of the recent ( August 9 ) U.S. Court of Appeals decision United Keetowah Band of Cherokee Indians et al v Federal Communications Commission .

https://www.cadc.uscourts.gov/internet/opinions.nsf/4001BED4E8A6A29685258451005085C7/$file/18-1129-1801375.pdf

This court decision affects the City and the cell antennas that the City is going to permit, or may permit, in the public right of way.

Before FCC Order 18-30 there were already very few situations in which a company was required to do any sort of environmental review. Most situations were categorically excluded from environmental review by FCC’s rules implementing NEPA, 47 CFR section 1.1306. The very few situations where an environmental assessment (EA) might be required were described in 47 CFR section 1.1307 and 1.1312. But each company WAS required to file a NEPA checklist for each proposed cell antenna.
According to the Order 18-30, “Thus, the majority of NEPA compliance costs are associated with the initial cost of completing the NEPA checklist under 47 CFR § 1.1307(a), which is necessary to confirm if the wireless facility is categorically excluded and does not require an EA.” (Footnote 12 to paragraph 11, page 4)
The Order sought to eliminate the few remaining situations where NEPA and the FCC’s regulations implementing NEPA required environmental review by exempting cell antennas from the requirements of §1.1312.  
The court decision cited above said to the FCC, “No, you cannot do that.”
What’s left now is what was required before; namely, that for each proposed cell antenna the wireless company has to prepare and file with the City a NEPA checklist. This is what footnote 12 said.
The City should require the wireless company to prepare and file a NEPA checklist for each proposed cell antenna. Applications should not be considered complete, and permits should not be issued, without this.

If the Council is not clear on this point please ask your legal advisor if this analysis is correct. Ask for a briefing in person and in writing.
The bigger picture is please keep cell antennas away from our homes, schools, and work places.
Please reply to this message to at least acknowledge that you received it.
Thank you.
Sincerely,
[Your name and address]

November 29, 2019
To all,
I believe that residents should continue to oppose 4G, 5G, and future G as best they can. Don’t give up because when residents give up the Empire wins. This is not meant to discourage anyone from continued efforts at organizing and influencing local government policy.
I recommend NOT making any requests to your local government supposedly based on this United Keetowah Indians v FCC case that lack a legal basis.

Here (at the end of this page) is a specific action you can recommend that your local government take that has a legal basis. The legal basis is the National Environmental Protection Act (NEPA), the FCC Order 18-30, and if it exists the section of your local master license agreement that requires the wireless companies to comply with all applicable environmental laws.

The best thing for a resident who wants to use this court decision in their advocacy to do would be to read the entire court decision.  There are links at the bottom of this page to other related documents.

https://www.cadc.uscourts.gov/internet/opinions.nsf/4001BED4E8A6A29685258451005085C7/$file/18-1129-1801375.pdf

As residents opposing the Empire’s plan to stick 4G, 5G, and future G cell antennas on light poles, utility poles, and everywhere they can in the public right of way we always have the question, “What will work? What strategy will work?” My belief is that People Power, or large numbers of local residents telling the city council or county board of supervisors to please keep cell antennas away from our homes, schools, and work places, is the best strategy.

There are many ways that local government can do that. In Elk Grove, as a direct result of our year and a half long grassroots campaign, the City decided to prohibit cell antennas immediately adjacent to or across the street from a front yard of a “residential dwelling”, which sounds like a house, apartment, condo, etc. This is not quite what we asked for but it comes close to achieving our main request. There were many other suggestions we made that the Council apparently did not even consider or, if you can call it considering them, it dismissed them on the bad advice from the lame City Attorney that the Council cannot regulate “in this area”, meaning in a way that would protect residents’ health from cell antenna electromagnetic radiation (EMR). That is a subject for another page.

Truth, Accuracy and Credibility

Back to the case of United Keetowah Band of Cherokee Indians v Federal Communications Commission, this case is potentially useful to residents. However some well meaning activists have, in my opinion, greatly overstated what the court decision requires, prohibits, or allows. It does not serve us to make arguments based on fanciful and creative but unfounded interpretations of this court decision or any other. Why? Because the Truth is our greatest weapon and our credibility is our greatest asset. Our credibility comes from our accuracy, the accuracy of our statements.
The Empire lies as a matter of routine. Their motto, which I have heard second hand, is, “Lie when you can; tell the truth when you have to.” We see this every single day and at every meeting where the Empire (AT&T, Verizon, etc.) is trying to get permits issued, get a favorable zoning code amendment, get a favorable master license agreement, etc. FCC is the Empire too.

If activists go down the road of making false statements, exaggerations, etc. about court cases, just because it would be really nice from a regulatory and public policy point of view if the court cases really did require certain things (such as, “This case requires you to freeze or suspend all pending cell antenna applications”, etc.) then we have abandoned what gives us our credibility in the first place, which is our commitment to Accuracy and Truth. We are using the same tactics as the Empire. We are being no more truthful. No more trustworthy. We will always have the moral high ground but we will have lost the strength that comes from having the Truth on our side. Why should the City Council believe us after that? If we have worked hard for months to build People Power and be credible and accurate, then making false statements, creatively interpreting a court decision to suit our campaign just undermines our credibility and our campaign. The next time we propose something they will remember that and it will affect the way they perceive us and our proposal. It is hard enough to win these battles by sticking to the Truth.

The role of a city attorney in making cell antenna policy

For better or worse every city and county has its own attorney. Far too often the city or county attorney is the person who makes policy decisions, not the elected city council or county board of supervisors. A government attorney who is explicitly or implicitly in the pockets of the wireless companies, or whose opinions just happen to serve their financial interests, can be a BIG problem. We have one here in Elk Grove.
Even in a city or county with a good attorney (not explicitly or implicitly working for the wireless companies, etc., and one that actually addresses the recommendations that residents make) residents should expect that no local government is going to make a policy decision on cell antennas without first getting the opinion of their attorney.

Assuming an impartial and unbiased attorney, what that means is that residents’ recommendations will be checked, reviewed, evaluated, etc. by that government attorney, and that ONLY if that attorney thinks they have merit will he or she recommend that the council or board act on them. That is a pretty high bar. Most city council members and supervisors are not going to reach and act on their own opinion of the legality of a given policy recommendation without first getting the advice of the city or county attorney. That is actually logical. The problem is when these council members and supervisors accept without questioning them whatever their attorney tells them, especially when residents have provided a solid argument with a legal basis.

My interpretation of the United Keetowah v FCC court decision and what YOU can do

What I have seen in the last month or so is some requests to cities and counties based (or supposedly based) on the United Keetowah Indians v FCC case that, in my opinion, lack a legal basis. These requests state that this court decision requires, prohibits, or allows certain things that it just doesn’t.
Here is my interpretation of this court decision and what I recommend. At the end of this message are links to the court decision and key parts of the FCC rules implementing NEPA.

Part of the FCC Order 18-30, which is footnote 12 to a quotation, is a requirement by FCC of each wireless company to “complete a NEPA checklist under 47 CFR § 1.1307(a).” That is something I think the cities can enforce and residents can demand that the cities enforce.  It is a specific requirement.

According to the FCC Order the wireless companies have to complete a “NEPA checklist” for each cell antenna.  This is what residents call tell their cities to require. 

Here is a quotation from the FCC Order 18-30 (page 4, Paragraph 11): 

“According to CTIA, Sprint has estimated that it has completed NEPA checklists for 20,000- 30,000 sites, at a cost of $2,000 per site, and that approximately 250 sites required an EA to be completed, at an additional $1,300 cost per site.12 Sprint notes that it has thus spent tens of millions of dollars completing preliminary NEPA checklists and EAs and that every single review resulted in a finding of no significant impact (FONSI).13

Here is the relevant part of footnote 12:

“Thus, the majority of NEPA compliance costs are associated with the initial cost of completing the NEPA checklist under 47 CFR § 1.1307(a), which is necessary to confirm if the wireless facility is categorically excluded and does not require an EA.”  

Residents can say to their cities that based on the FCC Order 18-30 a NEPA checklist is, “necessary to confirm if the wireless facility is categorically excluded and does not require an EA.”  We can tell the cities that they have to require a NEPA checklist for each proposed cell antenna.   By the way EA stands for Environmental Assessment.

Although the cities probably do not have in their zoning codes or master license agreements a requirement for the applicant to comply with NEPA it is an easy argument to say that they should.  In Elk Grove the Master License Agreement with AT&T says AT&T has to comply with all applicable environmental laws but it does not mention NEPA or a NEPA checklist.  I am going to raise this issue with my city.  Unless the city specifically tells AT&T to prepare a NEPA checklist I am sure AT&T will not do it.

The net effect will be that AT&T has to spend a couple of thousand dollars to hire somebody to do a NEPA checklist for each cell antenna.  It won’t stop any cell antenna or the overall project.  It will take a little bit of time.  The City can also say that the application for a cell antenna permit is not complete without the NEPA checklist, which will buy the city more time and delay the project, but not for long.

How the United Keetowah v FCC court decision affected NEPA and local policy

As I see it this is how the court decision affected NEPA and the requirements on the FCC and applicants.
Before the FCC Order applicants had to comply with NEPA and the FCC rules implementing NEPA.  Among those rules were CFR section 1.1307 and 1.1312.

https://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&SID=622b8dcd81e1f12235c3a20fdfc4e645&rgn=div6&view=text&node=47:1.0.1.1.2.9&idno=47#se47.1.1_11307

https://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&SID=622b8dcd81e1f12235c3a20fdfc4e645&rgn=div6&view=text&node=47:1.0.1.1.2.9&idno=47#se47.1.1_11312

The result of FCC Order 18-30 (maybe there was more than one result, I don’t know) was to add in the exception for “small cells” into 1.1312 (e)(2), which exempted cell antennas from the requirements of 1.1312(a) through (d).

The court said that FCC cannot exempt cell antennas from environmental and historical review and it vacated the part of the FCC Order that did that.  (I cannot tell exactly what sections or paragraphs of the FCC Order the court vacated.)  The result of that was that the FCC had to remove the exception in 1.1312 (e)(2) from the CFR. 

The FCC did that via an Order on October 8, 2019. 

SUPPLEMENTARY INFORMATION: This is a summary of the Commission’s Order in WT Docket No. 17-79; DA 19-1024, adopted and released on October 8, 2019. The complete text of this document is available for download at http://fjallfoss.fcc.gov/edocs_public/. or directly here.

  1. In United Keetoowah Band of Cherokee Indians v. FCC, No. 18-1129, 2019 WL 3756373 (D.C. Cir Aug. 9, 2019) (United Keetoowah), the U.S. Court of Appeals for the District of Columbia Circuit vacated those portions of the Commission’s 2018 Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment (Second Report and Order), 83 FR 19440, May 3, 2018, that exempted certain small wireless facilities from federal environmental and historic preservation review. Pursuant to F.R. App. P. 41(b), the court issued its mandate on October 7, 2019. Consistent with the court’s mandate, this Order repeals the section of the Commission’s rules implementing the small wireless facilities exemption and deletes a cross-reference to that section contained elsewhere in the Commission’s rules.
  2. The Bureau finds that notice and comment are unnecessary for these rule amendments under 5 U.S.C. 553(b), because this ministerial order merely implements the mandate of the United States Court of Appeals for the District of Columbia Circuit, and the Commission lacks discretion to depart from this mandate.
  3. Accordingly, It Is Ordered that § 1.1312(e)(2) of the Commission’s rules, 47 CFR 1.1312(e)(2), Is Repealed and § 1.6002, 47 CFR 1.6002, is amended as set forth in Appendix A of the Order, effective December 5, 2019.

That’s it.  The FCC has done what the court decision required it to do. That is ALL the court decision required FCC to do. Therefore when this Order becomes effective, which will be on December 5, the previous situation will be the situation once again, where FCC and the wireless companies have to comply with NEPA and FCC’s rules implementing NEPA, which include CFR 1.1312 (a) through (d).  But the court decision did not add NEW requirements for FCC or the wireless companies.  It did not broaden the situations in which anyone has to do any sort of environmental review OR the contents of that review.

What the court’s quotations of FCC’s claims mean and do not mean

The court quoted many of the statements that FCC made in support of its order and the court said, time after time, that FCC’s statements were wrong, they were arbitrary and capricious, that the FCC had not supported them, that the evidence in the record did not support them, etc. But when the court vacated the part of the FCC order that had exempted cell antennas from what little environmental and historical review was still required (prior to FCC Order 18-30) the court fully addressed ALL of those false claims by FCC. And when FCC took out (e)(2), which was the exception for cell antennas, it fully complied with what the court decision required. This is where some residents have taken to expansive, fanciful, and creative but legally unfounded interpretations of this case decision, by claiming that the court decision required FCC to do something about each one of those false claims that it made in this case about its order 18-30. Such as to address, fix, and change the underlying situation. The court decision did not require that. It is untrue to claim that it did.

Residents can tell their city or county that FCC should fully address the size, scale and footprint of the anticipated nationwide deployment of 800,000-unit network of cell antennas, and that the city or county should not issue any permits until the FCC does that. But the court decision does not require that. Also, the FCC rules for implementing NEPA provide categorical exclusions for almost every situation where there could be a cell antenna, and FCC’s compliance with NEPA can consist of invoking those categorical exclusions. Please understand that NEPA does not require FCC (in this case) to prepare an Environmental Assessment (EA) or an Environmental Impact Statement (EIS) for every city or county wide cell antenna project, or for the nationwide cell antenna project, or for any particular cell antenna. It just doesn’t.

More sources for your reading about NEPA. 
Also read the FCC’s procedures implementing NEPA, in particular § 1.1307   § 1.1308 and § 1.1311.
These NEPA FAQs from FCC look helpful.

https://www.fcc.gov/general/nepa-faq

This is a link to FCC Order 18-30:
https://docs.fcc.gov/public/attachments/FCC-18-30A1.pdf
Thank you for all your advocacy. We are stronger together!