Two Recent Court Wins

1: United Keetoowah Band of Cherokee Indians, et al v. FCC, 933 F.3d 728 (D.C. Cir., Aug 19, 2019).

“This was the D.C. Circuit’s reversal and vacatur of the FCC’s decision to completely excuse small cell deployments from environmental and historic-preservation review. The court held FCC did not adequately address possible harms of deregulation and benefits of environmental and historic-preservation review. As a result, small cell deployments must go through the NEPA and NHPA ‘review’ process to determine if further study or analysis is required before site approval.

2: Mozilla Corp., et al v. FCC, 940 F.3d 1 (D.C. Cir., Oct 1, 2019).

“This was the D.C. Circuit’s disposition of the FCC’s 2018 decision to reverse the prior majority’s decision to impose “net neutrality” on broadband Internet access by applying “Title II” common carrier regulation. The court generally affirmed the FCC’s decision for interstate purposes, but vacated the FCC’s effort to expressly and in advance preempt “any state or local requirements that are inconsistent with [FCC’s] deregulatory approach.” 940 F.3d 1, 74-86.”

“Both of these decisions limited FCC’s ability to completely preempt any state or local regulation or action over Internet and wireless service and effectively gave some power back to states or local authorities.

“Our case is the third leg of the stool. It would also allow state commissions to decide whether to end the current massive wireline-wireless subsidies going to CMRS [Commercial Mobile Radio Service] in general and small cell in particular.”