Suing FCC, Tribe Claims Small-Cells Order Unconstitutional and Pai Bowed to Verizon
A South Dakota tribe alleged Chairman Ajit Pai has a conflict of interest, as it sued the FCC on behalf of itself and about 565 other federally recognized tribes in a challenge of a March 22 3-2 wireless infrastructure order.…
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
The FCC said small-cells deployment isn't a “federal undertaking” within the National Historic Preservation Act or a “major federal action” under the National Environmental Policy Act, and applicants “have no legal obligation to pay upfront fees” when seeking tribal review (see 1803220027). In a Monday complaint at U.S. District Court in Aberdeen, South Dakota, the Crow Creek Sioux tribe said FCC actions “negatively affected and damaged the Plaintiff Tribe's culturally significant sites.” It said the “arbitrary and capricious” order in docket 17-79 violated the Constitution's Fifth and 14th amendments, the Telecom Act, federal environmental and historic preservation laws, contract law and “rules prohibiting conflict of interest laws by a federal employee, specifically Chairman Pai.” Pai was associate general counsel of Verizon, which benefits from the order and had comments cited 53 times in the order, Crow Creek said. “The Federal Defendant's mission statement does not indicate the [FCC] will cater and serve the needs of the wireless industry, nor fleece the staff of the FCC with industry shills,” the tribe said. “Pai has a clear conflict of interest and is working for the wireless industry, instead of leading an impartial agency.” Commissioners’ “belief that their numerous meetings with the tribes throughout the United States relieve them of their trust responsibility to federally recognized Indian tribes is misplaced as absolutely none of the concerns” were included in the order, Crow Creek said. The FCC inappropriately changed policy when it decided tribes can’t review small-cell deployment nor charge upfront fees, Crow Creek said. The fees, ranging from $200 to $1,500, pay for “archeological surveys, site documentation, maps and NEPA review documents,” it said. Companies lack necessary cultural knowledge, and inflated cost estimates of the review process, the tribe said: "No true cost-benefit analysis has been completed by an independent party." The FCC lacks authority to redefine an undertaking that would trigger the Section 106 process, the tribe said. Crow Creek noted that many of the wireless sites where additional facilities will be deployed are "twilight towers" not reviewed and erected from 1992 to 2005 against federal law. The agency declined comment Tuesday.