United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 15, 2019 Decided August 9, 2019

No. 18-1129

UNITED KEETOOWAH BAND OF CHEROKEE INDIANS IN 

OKLAHOMA, INDIVIDUALLY AND ON BEHALF OF ALL OTHER

NATIVE AMERICAN INDIAN TRIBES AND TRIBAL 

ORGANIZATIONS, ET AL.,

PETITIONERS

v.

FEDERAL COMMUNICATIONS COMMISSION AND UNITED 

STATES OF AMERICA,

RESPONDENTS

NATIONAL ASSOCIATION OF TRIBAL HISTORIC PRESERVATION 

OFFICERS, ET AL.,

INTERVENORS

Consolidated with 18-1135, 18-1148, 18-1159, 18-1184

On Petitions for Review of an Order of 

the Federal Communications Commission

Stephen Díaz Gavin argued the cause for petitioners 

United Keetoowah Band of Cherokee Indians in Oklahoma, et 

al., and supporting intervenors. With him on the briefs were J. 

Scott Sypolt, Joel D. Bertocchi, Joseph H. Webster, F. Michael 
2

Willis, Andrew Jay Schwartzman, James T. Graves, and 

Elizabeth S. Merritt. Angela J. Campbell entered an 

appearance.

Sharon Buccino argued the cause for petitioner Natural 

Resources Defense Council and intervenor Edward B. Myers. 

With her on the briefs was Edward B. Myers. 

Natalie A. Landreth argued the cause for petitioners 

Blackfeet Tribe, et al. With her on the briefs were Wesley J. 

Furlong, Joel West Williams, Troy A. Eid, Jennifer H. Weddle, 

and Heather D. Thompson. 

Jacob M. Lewis, Associate General Counsel, Federal 

Communications Commission, argued the cause for 

respondents. With him on the brief were Jeffrey Bossert Clark, 

Assistant Attorney General, U.S. Department of Justice, Eric 

A. Grant, Deputy Assistant Attorney General, Andrew C. 

Mergen and Allen M. Brabender, Attorneys, Thomas M. 

Johnson Jr., General Counsel, Federal Communications 

Commission, David M. Gossett, Deputy General Counsel, and 

C. Grey Pash Jr., Counsel. Jonathan H. Laskin and Robert B. 

Nicholson, Attorneys, U.S. Department of Justice, and Richard 

K. Welch, Deputy Associate General Counsel, Federal 

Communications Commission, entered appearances.

Joshua Turner argued the cause for intervenors in support 

of respondents. With him on the brief were Christopher J. 

Wright and E. Austin Bonner.

Before: TATEL and PILLARD, Circuit Judges, and 

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge PILLARD.
3

PILLARD, Circuit Judge: Cellular wireless services, 

including telephone and other forms of wireless data 

transmission, depend on facilities that transmit their radio 

signals on bands of electromagnetic spectrum. The Federal 

Communications Commission (FCC or Commission) has 

exclusive control over the spectrum, and wireless providers

must obtain licenses from the FCC to transmit. Wireless 

service in the United States has mostly depended on large,

“macrocell” radio towers to transmit cell signal, but companies 

offering the next generation of wireless service—known as 

5G—are in the process of shifting to transmission via hundreds 

of thousands of densely spaced small wireless facilities, or 

“small cells.” As part of an effort to expedite the rollout of 5G 

service, the Commission has removed some regulatory 

requirements for the construction of wireless facilities. These 

petitions challenge one of the FCC’s orders paring back such 

regulations, In re Accelerating Wireless Broadband 

Deployment by Removing Barriers to Infrastructure 

Investment (Second Report & Order) (Order), FCC 18-30, 

2018 WL 1559856 (F.C.C.) (Mar. 30, 2018).

The Order exempted most small cell construction from 

two kinds of previously required review: historic-preservation 

review under the National Historic Preservation Act (NHPA) 

and environmental review under the National Environmental 

Policy Act (NEPA). Together, these reviews assess the effects 

of new construction on, among other things, sites of religious 

and cultural importance to federally recognized Indian Tribes. 

The Order also effectively reduced Tribes’ role in reviewing 

proposed construction of macrocell towers and other wireless 

facilities that remain subject to cultural and environmental 

review. 

Three groups of petitioners challenge the Order as 

violating the NHPA, NEPA, and the Administrative Procedure 
4

Act on several grounds: that its elimination of historicpreservation and environmental review of small cell 

construction was arbitrary and capricious, an unjustified policy 

reversal, and contrary to the NHPA and NEPA; that the 

changes to Tribes’ role in reviewing new construction was 

arbitrary and capricious; that the Commission arbitrarily and 

capriciously failed to engage in meaningful consultations with 

Tribes in promulgating the Order; and that the Order itself 

required NEPA review.

We grant in part the petitions for review because the Order

does not justify the Commission’s determination that it was not 

in the public interest to require review of small cell 

deployments. In particular, the Commission failed to justify its 

confidence that small cell deployments pose little to no 

cognizable religious, cultural, or environmental risk, 

particularly given the vast number of proposed deployments

and the reality that the Order will principally affect small cells 

that require new construction. The Commission accordingly 

did not, pursuant to its public interest authority, 47 U.S.C. 

§ 319(d), adequately address possible harms of deregulation 

and benefits of environmental and historic-preservation 

review. The Order’s deregulation of small cells is thus 

arbitrary and capricious. We do not reach the alternative 

objections to the elimination of review on small cell 

construction. We deny the petitions for review on the 

remaining grounds.

BACKGROUND

I. Statutory and Regulatory Background

A. National Historic Preservation Act (NHPA)

Congress enacted the NHPA to “foster conditions under 

which our modern society and our historic property can exist 
5

in productive harmony” and “contribute to the preservation of 

nonfederally owned historic property and give maximum 

encouragement to organizations and individuals undertaking 

preservation by private means.” 54 U.S.C. § 300101(1), (4). 

As part of that mission, NHPA’s Section 106 requires federal 

agencies to “take into account the effect of” their 

“undertaking[s] on any historic property.” Id. § 306108. 

Both “historic property” and “undertaking” have specific 

meanings under the statute. Historic properties include myriad 

monuments, buildings, and sites of historic importance, 

including “[p]roperty of traditional religious and cultural 

importance to an Indian tribe.” Id. §§ 302706, 300308. Insofar 

as Tribal heritage is concerned, the Section 106 process 

requires federal agencies to “consult with any Indian tribe . . . 

that attaches religious and cultural significance to” a historic 

property potentially affected by a federal undertaking. Id.

§§ 302706, 306102. To count as “historic,” such properties 

need not be on Tribal land; in fact, they “are commonly located 

outside Tribal lands and may include Tribal burial grounds, 

land vistas, and other sites that Tribal Nations . . . regard as 

sacred or otherwise culturally significant.” Order ¶ 97. Only 

a federal “undertaking,” not a state or purely private one,

triggers the Section 106 Tribal consultation process. A federal

“undertaking,” as relevant here, is “a project, activity, or 

program funded in whole or in part under the direct or indirect 

jurisdiction of a Federal agency, including . . . those requiring 

a Federal permit, license, or approval.” 54 U.S.C. § 300320. 

We have construed the statute to mean that, for an action to be 

a federal undertaking, “only a ‘Federal permit, license or 

approval’ is required,” not necessarily federal funding. CTIAWireless Ass’n v. FCC, 466 F.3d 105, 112 (D.C. Cir. 2006). 

The Section 106 process requires that an agency “consider 

the impacts of its undertaking” and consult various parties, not 
6

that it necessarily “engage in any particular preservation 

activities.” Id. at 107 (quoting Davis v. Latschar, 202 F.3d 359, 

370 (D.C. Cir. 2000)). The NHPA established an independent 

agency, the Advisory Council on Historic Preservation

(Advisory Council), 54 U.S.C. § 304101, which is responsible 

for promulgating regulations “to govern the implementation 

of” Section 106, id. § 304108(a). Agencies must consult with 

the Advisory Council, State Historic Preservation Officers, and 

Tribal Historic Preservation Officers, the last of which adopt 

the responsibilities of State Historic Preservation Officers on 

Tribal lands. 54 U.S.C. §§ 302303, 302702; 36 C.F.R. 

§§ 800.3(c), 800.16(v)-(w) (defining State and Tribal Historic 

Preservation Officers).

The Advisory Council’s regulations authorize the use of

alternatives to the ordinary Section 106 procedures, called

“programmatic agreements.” 36 C.F.R. § 800.14(b). The 

Commission develops programmatic agreements in 

consultation with the Advisory Council, Tribes, and other 

interested parties, “to govern the implementation of a particular 

program or the resolution of adverse effects from certain 

complex project situations or multiple undertakings” in certain 

circumstances, such as when “effects on historic properties are 

similar and repetitive” or “effects on historic properties cannot 

be fully determined prior to approval of an undertaking.” Id.

§ 800.14(1)(i)-(ii). Tribes’ views must be taken into account 

where the agreement “has the potential to affect historic 

properties on tribal lands or historic properties of religious and 

cultural significance to an Indian tribe.” Id. § 800.14(b)(1)(i), 

(f). For instance, the Commission has consulted with Tribes to 

use programmatic agreements to exclude from individualized 

review entire categories of undertakings that are unlikely to 

affect historic properties. See In re Nationwide Programmatic 

Agreement Regarding the Section 106 [NHPA] Review Process

(Section 106 Agreement), 20 FCC Rcd. 1073, 1075 ¶ 2 (2004). 
7

B. National Environmental Policy Act (NEPA)

Congress enacted NEPA to “encourage productive and 

enjoyable harmony between man and his environment” and 

“promote efforts which will prevent or eliminate damage to the 

environment and biosphere and stimulate the health and 

welfare of man,” among other purposes. 42 U.S.C. § 4321. 

Like the NHPA, NEPA mandates a review process that “does 

not dictate particular decisional outcomes, but ‘merely 

prohibits uninformed—rather than unwise—agency action.’” 

Sierra Club v. U.S. Army Corps of Eng’rs, 803 F.3d 31, 37 

(D.C. Cir. 2015) (quoting Robertson v. Methow Valley Citizens 

Council, 490 U.S. 332, 351 (1989)).

All “major Federal actions significantly affecting the 

quality of the human environment” trigger environmental 

review under NEPA, just as federal “undertakings” trigger 

historic preservation review under the NHPA. 42 U.S.C. 

§ 4332(C). Major federal actions “include[] actions . . . which 

are potentially subject to Federal control and responsibility.” 

40 C.F.R. § 1508.18. Under the Commission’s procedures 

implementing NEPA, if an action may significantly affect the 

environment, applicants must conduct a preliminary

Environmental Assessment to help the Commission determine 

whether “the proposal will have a significant environmental 

impact upon the quality of the human environment,” and so 

perhaps necessitate a more detailed Environmental Impact 

Statement. 47 C.F.R. § 1.1308; see also 40 C.F.R. § 1508.9. 

If, after reviewing the Environmental Assessment, the 

Commission determines that the action will not have a

significant environmental impact, it will make a “finding of no 

significant impact” and process the application “without 

further documentation of environmental effect.” 47 C.F.R. 

§ 1.1308(d).
8

NEPA also has an analogue to the NHPA’s Advisory 

Council. In enacting NEPA, Congress established the Council 

on Environmental Quality, in the Executive Office of the 

President, to oversee implementation of NEPA across the 

entire federal government. 42 U.S.C. §§ 4342, 4344. With the 

endorsement of the Council on Environmental Quality and by 

following a series of mandated procedures, agencies can 

establish “categorical exclusions” for federal actions that 

require neither an Environmental Assessment nor an 

Environmental Impact Statement. 40 C.F.R. § 1508.4. 

Categorical exclusions are appropriate for “a category of 

actions which do not individually or cumulatively have a 

significant effect on the human environment and which have 

been found to have no such effect in procedures adopted by a 

Federal agency.” Id. “Categorical exclusions are not 

exemptions or waivers of NEPA review; they are simply one 

type of NEPA review.” Council on Environmental Quality, 

Memorandum for Heads of Federal Dep’ts and Agencies: 

Establishing, Applying & Revising Categorical Exclusions 

under [NEPA] (Categorical Exclusion Memo) 2 (2010).

C. Legal Framework for Wireless Infrastructure

The Communications Act of 1934 established the FCC to 

make available a “rapid, efficient . . . wire and radio 

communication service with adequate facilities at reasonable 

charges.” 47 U.S.C. § 151. In licensing use of the spectrum, 

the Commission is tasked with promoting “the development 

and rapid deployment of new technologies, products and 

services for the benefit of the public . . . without administrative 

or judicial delays,” id. § 309, and “maintain[ing] the control of 

the United States over all the channels of radio transmission,” 

id. § 301.
9

The Commission generally does not require construction 

permits before private parties can build wireless facilities. 

Congress largely eliminated the FCC’s site-specific 

construction permits in 1982, and the Commission has since 

required construction permits only where it finds that the public 

interest would be served by such permitting. See Pub. L. 97-

259, 96 Stat. 1087, § 119 (1982) (codified at 47 U.S.C. 

§ 319(d)). It has not made such a finding for the wireless 

facilities at issue here. 

The FCC does, however, require licensing of the spectrum 

used by wireless small cells. It does so by issuing geographic 

area licenses, which allow wireless providers to operate on

certain frequency bands in a wide geographic area. See 47 

U.S.C. § 309(j). Those licenses authorize using spectrum 

rather than building wireless facilities, but they necessarily 

contemplate facility construction. They have coverage 

requirements—for instance, one type of geographic area 

license required licensees to provide service to at least 40% of 

the population in their geographic service area by June 2013. 

See 47 C.F.R. § 27.14(h). If they fail to meet the coverage 

requirements, they can be stripped of authority to operate for 

the license’s full term or serve part of its geographic area, and 

they “may be subject to enforcement action, including 

forfeitures.” Id. The Commission also exercises continuing 

authority to inspect radio installations to ascertain their 

compliance with any and all applicable laws, whether or not the 

licensee itself constructed those installations. See 47 U.S.C. 

§ 303(n); 47 C.F.R. § 1.9020(c)(5).

The Commission has not identified any period since the 

enactment of the NHPA (in 1966) and NEPA (in 1970) when 

it did not require historic-preservation and environmental 

review of wireless facilities. After Congress eliminated the 

construction permit requirement, the Commission for a time
10

required NEPA and NHPA review of facilities before it granted 

their service licenses. See, e.g., In re Amendment of Envtl. 

Rules in Response to New Regulations Issued by [CEQ], FCC 

85-626, 1986 WL 292182, at *5 ¶ 18 (F.C.C.) (Mar. 26, 1986) 

(requiring review “during the period prior to grant of a station 

license”); id. at *8 App’x ¶ 7 (requiring NEPA review on 

“[f]acilities that will affect districts, sites, buildings, structures 

or objects . . . that are listed in the National Register of Historic 

Places or are eligible for listing,” which includes property of 

religious or cultural significance to Indian Tribes, 54 U.S.C. 

§ 302706(a)). In 1990, the Commission shifted review from 

the licensing stage to the construction stage by establishing a 

“limited approval authority” over construction of wireless 

facilities. In re Amendment of Envtl. Rules (1990 Order), 5 

FCC Rcd. 2942 (1990). Limited approval authority required 

that, “where construction of a Commission-regulated radio 

communications facility is permitted without prior 

Commission authorization (i.e., without a construction permit), 

the licensee must nonetheless comply with historic 

preservation and environmental review procedures.” Order

¶ 51; see also 47 C.F.R. § 1.1312. The authority was “limited” 

in that it allowed “the Commission [to] exercise[] control over 

deployment solely to conduct federal historic and 

environmental review.” Resp’t Br. 12. The Commission 

emphasized that shifting review to the pre-construction stage 

served a practical function: Before it had established its limited 

approval authority, the FCC’s rules “provide[d] that any 

required submission of [Environmental Assessments] and any 

required Commission environmental review take place at the 

licensing stage rather than prior to construction,” with the result 

that “[a]pplicants who ha[d] already constructed their 

facilities” could “subsequently be denied licenses on 

environmental grounds.” 1990 Order 2942 ¶ 3. The 

Commission explained that it continued to require review “to 

ensure that the Commission fully complies with Federal 
11

environmental laws in connection with facilities that do not 

require pre-construction authorization.” Id. ¶ 4. It announced 

the changes as “necessary to ensure that the Commission 

addresses environmental issues early enough in the licensing 

process to ensure that it fully meets its obligations under 

Federal environmental laws,” including NEPA and the NHPA. 

Id. at 2943 ¶ 9 & n.16.

The Commission has never required individualized review 

of each separate facility, however. A long series of regulations, 

programmatic agreements, and categorical exclusions has 

aggregated facilities for joint consideration and focused NHPA 

and NEPA review on those deployments most likely to have 

cultural or environmental effects. For instance, most 

collocations—deployments on existing structures—are 

excluded from individualized review under NHPA 

programmatic agreements and NEPA categorical exclusions. 

See In re Implementation of the National Environmental Policy 

Act of 1969 (Implementation of NEPA), 49 F.C.C.2d 1313, 

1319-20 (1974); Nationwide Programmatic Agreement for the 

Collocation of Wireless Antennas (Collocation Agreement), 47 

C.F.R. pt.1, app. B (2001); Section 106 Agreement, 20 FCC 

Rcd. at 1075 ¶ 2; Nationwide Programmatic Agreement for 

Review Under the National Historic Preservation Act, 70 Fed. 

Reg. 556 (2005); In re Acceleration of Broadband Deployment 

by Improving Wireless Facilities Siting Policies (Improving 

Wireless Facilities Siting Policies), 29 FCC Rcd. 12865, 12870 

¶ 11 (2014); 47 C.F.R. § 1.1320(b)(4). Categorical exclusions

go through notice and comment, 40 C.F.R. § 1507.3; include 

impact findings, Categorical Exclusion Memo 9; require the 

Council on Environmental Quality to approve them as 

consistent with its regulations and NEPA, 40 C.F.R. 

§ 1507.3(a); and reserve rights to interested parties to request 

further review in the event that atypical adverse effects do 

occur, 47 C.F.R. § 1.1307(c), (d). At the same time, they
12

achieve enormous efficiencies in the review processes for 

classes of actions or undertakings anticipated to have minimal 

or no adverse cultural or environmental effects.

Since 2004, the FCC has been conducting NHPA review 

in accordance with a broad programmatic agreement, the

Section 106 Agreement, 20 FCC Rcd. 1073. Interested parties 

developed that agreement to “tailor the Section 106 review in 

the communications context in order to improve compliance 

and streamline the review process for construction of towers 

and other Commission undertakings, while at the same time 

advancing and preserving the goal of the NHPA to protect 

historic properties, including historic properties to which 

federally recognized Indian tribes . . . attach religious and 

cultural significance.” Id. at 1074-75 ¶ 1. In the Section 106 

Agreement, the Commission adopted “procedures for 

participation of federally recognized Indian tribes,” among 

other changes. Id. at 1075 ¶ 2. It also formalized the use of the

electronic Tower Construction Notification System, which

notifies Tribes of proposed wireless construction in areas they 

have identified as containing properties of religious and 

cultural significance, and allows them to give applicants 

information on the potential effects of proposed construction. 

Id. at 1106-10 ¶¶ 89-100. 

II. Order Under Review

The challenged Order eliminated NHPA and NEPA 

review on small cells that meet certain size and other 

specifications, based on the Commission’s conclusion that 

such review was not statutorily required and would impede the 

advance of 5G networks, and that its costs outweighed any 

benefits. See Order ¶¶ 36-45. The Order also altered Tribal 

involvement in those Section 106 reviews that are still 

conducted on wireless facilities that were not encompassed in 
13

the small cell exemption. See id. ¶¶ 96-130. Two of the five 

Commissioners dissented. See Order, Dissenting Statement of 

Comm’r Mignon L. Clyburn; Dissenting Statement of Comm’r 

Jessica Rosenworcel. 

We consolidated five timely petitions for review of the 

Order into this action. They challenge the Commission’s 

exclusion of small cell construction from NHPA and NEPA 

review, its changes to Tribal involvement in Section 106

review, and its promulgation of the Order itself. Three groups 

of petitioners and intervenors, each designated here by the 

name of its lead petitioner, challenge the Order. United 

Keetoowah Band of Cherokee Indians (Keetoowah) represents 

a group of Tribes and historic preservation organizations. 

Blackfeet Tribe (Blackfeet) represents another group of Tribes 

and the Native American Rights Fund. The Natural Resources 

Defense Council (NRDC) represents itself and Maryland 

citizen Edward B. Myers. Two wireless industry groups 

(jointly, CTIA) intervened to defend the order alongside the 

FCC.

ANALYSIS

We set aside an agency order only if it is “arbitrary, 

capricious, an abuse of discretion, or otherwise not in 

accordance with law.” 5 U.S.C. § 706(2)(A). Agencies’ 

obligation to engage in “reasoned decisionmaking” means that 

“[n]ot only must an agency’s decreed result be within the scope 

of its lawful authority, but the process by which it reaches that 

result must be logical and rational.” Michigan v. EPA, 135 S. 

Ct. 2699, 2706 (2015) (quoting Allentown Mack Sales & Serv., 

Inc. v. NLRB, 522 U.S. 359, 374 (1998)). Although “a court is 

not to substitute its judgment for that of the agency,” the 

arbitrary and capricious standard demands that the agency

“examine the relevant data and articulate a satisfactory 
14

explanation for its action including a rational connection 

between the facts found and the choice made.” Motor Vehicle 

Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 

U.S. 29, 43 (1983) (internal quotation marks omitted). An 

agency action is arbitrary and capricious where the agency has 

“entirely failed to consider an important aspect of the problem” 

or “offered an explanation for its decision that runs counter to 

the evidence before the agency, or is so implausible that it 

could not be ascribed to a difference in view or the product of 

agency expertise.” Id. 

The FCC is entitled to deference to its reasonable 

interpretations of ambiguous provisions of the 

Communications Act. See Chevron, USA, Inc. v. Nat. Res. Def.

Council, Inc., 467 U.S. 837, 844-45 (1984). We owe no 

deference to the FCC’s interpretations of the NHPA or NEPA, 

which are primarily administered by the Advisory Council, see

McMillan Park Comm. v. Nat’l Capital Planning Comm’n, 968 

F.2d 1283, 1287-88 (D.C. Cir. 1992), and the Council on 

Environmental Quality, see Grand Canyon Tr. v. FAA, 290 

F.3d 339, 341 (D.C. Cir. 2002) (as amended Aug. 27, 2002), 

respectively.

I. Eliminating NHPA and NEPA Review on Small Cells

The Order did not follow the processes for a programmatic 

agreement under the NHPA, a categorical exclusion from 

NEPA, or any other wholesale or aggregated form of review, 

but simply eliminated NHPA and NEPA review on most small 

cells by removing them from the FCC’s limited approval 

authority. Small cells had not previously been defined or 

regulated separately from macrocell towers. The Commission 

defines the small cells that its Order deregulates as wireless 

facilities that are not on Tribal lands, do not require antenna 

structure registration because they could not constitute a 
15

menace to air navigation, do not result in human exposure to 

radiofrequency radiation in excess of applicable safety 

standards, and that are “small” per the following conditions:

(i) The facilities are mounted on structures 50 

feet or less in height including their antennas . . . 

or the facilities are mounted on structures no 

more than 10 percent taller than other adjacent 

structures, or the facilities do not extend 

existing structures on which they are located to 

a height of more than 50 feet or by more than 10 

percent, whichever is greater;

(ii) Each antenna associated with the 

deployment, excluding the associated 

equipment . . . is no more than three cubic feet 

in volume;

(iii) All other wireless equipment associated 

with the structure, including the wireless 

equipment associated with the antenna and any 

pre-existing associated equipment on the 

structure, is no more than 28 cubic feet in 

volume.

47 C.F.R. § 1.1312(e)(2). Small cells that meet those 

requirements are now outside the purview of the Commission’s 

limited approval authority, the mechanism by which it has 

required NHPA and NEPA review since 1990.

The Commission deregulated small cells as part of a 

broader effort to reduce regulations that the FCC says “are 

unnecessarily impeding deployment of wireless broadband 

networks” on which 5G service depends. Order ¶ 3. “Within 

the next few years,” the Commission explained, “5G networks 

. . . will make possible once-unimaginable advances, such as 
16

self-driving cars and growth of the Internet of Things,” i.e.

physical objects controllable over the internet. Id. ¶ 1. 5G 

networks “will increasingly need to rely on network 

densification,” which entails “the deployment of far more 

numerous, smaller, lower-powered base stations or nodes that 

are much more densely spaced.” Id. According to the 

Commission, rapid proliferation of hundreds of thousands of 

small cells would be hindered by the significant time and cost 

of NHPA and NEPA reviews, even as the benefits of such 

review—which it characterized as already minimal—would be 

negligible because small cells are “inherently unlikely to 

trigger environmental and historic preservation concerns.” Id.

¶ 92; see also id. ¶¶ 9, 11-16. It noted that the FCC’s baseline 

approach to environmental and historic-preservation review, 

which requires facility-specific review unless a programmatic 

agreement or categorical exclusion applies, “was developed 

when all or nearly all deployments involved large macrocell 

facilities and accordingly failed to consider both the relatively 

diminutive size of small wireless facilities and the proliferation 

of these facilities necessary for deployment of advanced 

wireless technologies.” Id. ¶ 9.

In the Order, the Commission asserts that federal law does 

not independently require such review. The only basis for 

treating small cell construction as either a federal undertaking 

triggering NHPA review or a major federal action triggering 

NEPA review was, the Commission says, the limited approval 

authority the Commission exercised over that construction—

which the Order eliminated. See Order ¶¶ 58-59. The 

Commission reasons that removing small cell construction 

from its limited approval authority removes the “sufficient 

degree of federal involvement” necessary to render an 

undertaking or action “federal.” Id. ¶ 58. It now says its power 

to exercise limited approval authority over construction derives 

exclusively from its “public interest authority” under the 
17

Communications Act, see Order ¶¶ 39, 53, 61, rather than from 

“its obligations under Federal environmental laws,” 1990 

Order at 2943 ¶ 9. In this context, the “public interest 

authority” refers to the FCC’s power to require preconstruction permits for wireless facilities if it “determines that 

the public interest, convenience, and necessity would be served 

by requiring such permits.” 47 U.S.C. § 319(d). While the 

Commission has never made such a determination for the 

category of facilities at issue here, it has previously interpreted 

the public interest authority “as allowing the Commission to 

require covered entities [not requiring preconstruction permits]

to nonetheless comply with environmental and historic 

preservation processing requirements.” Order ¶ 53. In the 

Order, the Commission made a new determination that it was 

not in the public interest to require NHPA and NEPA review 

on small cells, so simply removed them from its limited 

approval authority.

Petitioners all argue that the FCC unlawfully excluded 

small cells from NHPA and NEPA review. They contend first 

that removing small cells from the FCC’s limited approval 

authority was arbitrary and capricious. See 5 U.S.C. 

§ 706(2)(A). Keetoowah and the NRDC argue that the 

Commission failed to adequately consider the harms of 

massive deployment and to justify its decision to completely 

exempt small cells from review. Additionally, all petitioners 

argue that the NHPA and NEPA mandate review of small cell 

construction. They assert that the geographic licenses the 

Commission grants, which allow wireless companies to 

operate on spectrum, constitute sufficient federal control over 

wireless facility construction to make the construction a federal 

undertaking and a major federal action triggering review under 

those statutes. Keetoowah also contends that the exclusion 

violates the Administrative Procedure Act on various other 

grounds, including that it is an unjustified policy reversal. If 
18

petitioners prevail on any one or more of those grounds, we 

must vacate the Order’s deregulation of small cells and remand 

to the FCC. 

The Commission failed to justify its determination that it 

is not in the public interest to require review of small cell 

deployments. We therefore grant the petitions in part because 

the Order’s deregulation of small cells is arbitrary and 

capricious. The Commission did not adequately address the 

harms of deregulation or justify its portrayal of those harms as 

negligible. In light of its mischaracterization of small cells’ 

footprint, the scale of the deployment it anticipates, the many 

expedients already in place for low-impact wireless 

construction, and the Commission’s decades-long history of 

carefully tailored review, the FCC’s characterization of the 

Order as consistent with its longstanding policy was not 

“logical and rational.” Michigan v. EPA, 135 S. Ct. at 2706. 

Finally, the Commission did not satisfactorily consider the 

benefits of review.

First, the Commission inadequately justified its portrayal 

of deregulation’s harms as negligible. The FCC partly based 

its public-interest conclusion on a picture of small cells that the 

record does not support. It described small cells as “materially 

different from the deployment of macrocells in terms of . . . the 

lower likelihood of impact on surrounding areas.” Order ¶ 41. 

In its brief, the Commission sums up its explanation of the 

difference: “small cells are primarily pizza-box sized, lowerpowered antennas that can be placed on existing structures.” 

Resp’t Br. 3; see also Order ¶¶ 66, 92. It likened small cells to 

small household items that operate on radiofrequency such as

“consumer signal boosters [and] Wi-Fi routers,” which do not 

undergo review. Order ¶ 66. Small cells are, to be sure, quite 

different from macrocells in many ways, but the Commission 

fails to address that small cells are typically mounted on much 
19

bigger structures, and the Order is not limited to deployments 

on structures that already exist or are independently subject to 

review. Small cells deregulated under the Order can be 

“mounted on structures 50 feet or less in height including their 

antennas” or “mounted on structures no more than 10 percent 

taller than other adjacent structures.” 47 C.F.R. § 1.1312(e)(i). 

That makes them crucially different from the consumer signal 

boosters and Wi-Fi routers to which the FCC compares them.

The scale of the deployment the FCC seeks to facilitate, 

particularly given its exemption of small cells that require new 

construction, makes it impossible on this record to credit the

claim that small cell deregulation will “leave little to no 

environmental footprint.” Order ¶ 41. The Commission 

anticipates that the needed “densification of small deployments 

over large geographic areas,” id., could require 800,000 

deployments by 2026, FCC, Declaratory Ruling & Third 

Report & Order, FCC 18-133 ¶ 126 (Sept. 26, 2018). Even if 

only twenty percent of small cells required new construction—

as one wireless company estimates and the FCC highlights in 

its brief, see Resp’t Br. 54—that could entail as many as 

160,000 densely spaced 50-foot towers (or 198-foot towers, as 

long as they are located near 180-foot adjacent structures). The 

Commission does not grapple with that possibility. Instead, it

highlights the small cells that can be collocated without 

addressing the many thousands that cannot be.

As Keetoowah points out, the FCC “offers no analysis of 

the footprint of” the new towers on which small cells can be 

mounted, “what equipment will be used, what ongoing 

maintenance or security will be provided and how often towers 

will be updated or rebuilt.” Keetoowah Br. 15-16. 

Deployment of new small cells requires not only new 

construction but also wired infrastructure, such as electricity 

hookups, communications cables, and wired “backhaul,” 
20

which connects the new antenna to the core network. See, e.g.,

Comment of Sprint, Joint Appendix (J.A.) 380 (describing 

process of deploying small cells); Comment of the Cities of 

Bos., Mass., et al., J.A. 705-06 (describing the equipment 

associated with small cells), NRDC Br. Ex. A, Decl. of Warren

Betts ¶¶ 11-12 (describing concerns about disruption “by the 

laying of cables and wires, by the maintenance they require, 

[and] by the sound of the maintenance vehicles” in otherwise 

tranquil areas, and concerns “that trees may be cut down or 

damaged by the construction of small cells”). Construction, 

connection, and maintenance may entail excavation and 

clearing of land. The Tribal Historic Preservation Officer for 

the Seminole Tribe of Florida expressed concern about effects 

of anticipated “additional related infrastructure, such as 

fencing, security, and access for periodic maintenance and 

troubleshooting.” Keetoowah Br. Add. 114, Decl. of Paul 

Backhouse, ¶ 28. While the Commission asserted that 

“deployment of small wireless facilities commonly (although 

not always) involves previously disturbed ground,” it 

eliminated review of small cells that will involve new ground 

disturbance without responding to concerns about such 

disturbance. Order ¶ 92; see also, e.g., Comment of the Nat’l 

Cong. of Am. Indians, et al. (NCAI), J.A. 430-31 (expressing 

concern about small cells that require ground disturbance); 

Comment of the Cities of Bos., Mass., et al., J.A. 707 (“No 

explanation is offered by the Commission for its exclusion of 

any ground disturbance related conditions” in the draft Order). 

The Commission also failed to assess the harms that can 

attend deployments that do not require new construction, 

particularly the cumulative harms from densification. While 

“Tribal Nations are most concerned with federal undertakings 

that disturb the ground and turn up dirt,” even “[c]ollocations 

can affect cultural and historical properties th[r]ough 

disturbing view sheds” because “[t]he cultural and spiritual 
21

traditions of Tribal Nations across the United States frequently 

involve the uninterrupted view of a particular landscape, 

mountain range, or other view shed.” Comment of NCAI, J.A. 

50. The FCC did not respond to historic-preservation 

commenters warning “that permanent, direct adverse effects

will be more likely with small wireless facilities as in many 

cases they are proposed for installation on or in historic 

buildings,” and “these multi-site deployments have a greater 

potential to cause cumulative effects to historic properties, 

cluttering historic districts with multiple towers, antennae, and 

utility enclosures.” Comment of Tex. Historical Comm’n, J.A. 

794; see also, e.g., Ex Parte Commc’n of Thlopthlocco Tribal 

Town Tribal Historic Pres. Officer, J.A. 690 (noting that the 

Commission did not discuss “the issue of multiple collocations 

on the same pole which cumulatively would exceed the volume 

restriction and would create an adverse impact”); Comment of 

Ark. State Historic Pres. Officer, J.A. 751 (“[A]lthough 

individual small cells are unlikely to adversely impact 

individual historic properties or districts, the FCC doesn’t 

address how the large scale, nationwide deployment of 5G and 

small cells facilities will cumulatively impact cultural and 

natural resources.”). The Commission noted that all facilities 

remain subject to its limits on radiofrequency exposure, Order

¶ 45, but failed to address concerns that it was speeding 

densification “without completing its investigation of . . . health 

effects of low-intensity radiofrequency radiation,” which it is 

currently reassessing. Comment of BioInitiative Working Grp., 

J.A. 235.

The FCC does not reconcile its assertion that planned 

small cell densification does not warrant review because it will 

“leave little to no environmental footprint” with the Order’s 

principal deregulatory effect of eliminating review of precisely 

the new construction and other deployments that the 

Commission previously considered likely to pose cultural and 
22

environmental risks. The Commission already had in place 

NEPA categorical exclusions and NHPA programmatic 

agreements covering most collocations—as well as other kinds 

of deployments unlikely to have cultural and environmental

impacts. What the new Order accomplishes, then, is to sweep 

away the review the Commission had concluded should not be 

relinquished. 

Since the 1970s, the Commission has explained that most 

collocations on existing towers or buildings are not “major” 

federal actions and therefore are not subject to NEPA review. 

Implementation of NEPA, 49 F.C.C.2d at 1319-20; 47 C.F.R. 

§§ 1.1301-1.1319. The FCC’s NEPA regulations limit 

environmental review to a small subset of actions likely to have 

significant environmental effects, see 47 C.F.R. § 1.1307, as 

well as those actions found through Section 106 review to have 

adverse effects on historic properties, see id. § 1.1307(a)(4). 

Before it promulgated the challenged rule, the Commission had 

further shrunk the category of actions that receive 

individualized NHPA or NEPA review by adopting 

programmatic agreements and categorical exclusions. In 

chronological order, it excluded most collocations from 

individualized review, see Collocation Agreement, 47 C.F.R. 

Pt.1, App. B; adopted “categories of undertakings that are 

excluded from the Section 106 process because they are 

unlikely by their nature to have an impact upon historic 

properties,” Section 106 Agreement, 20 FCC Rcd. at 1075 ¶ 2;

excluded from individualized review new categories of 

wireless construction and modification unlikely to have 

historic preservation effects, see Nationwide Programmatic 

Agreement for Review Under the National Historic 

Preservation Act, 70 Fed. Reg. at 558; and, most recently,

expanded NHPA and NEPA exclusions for collocations, see

Improving Wireless Facilities Siting Policies, 29 FCC Rcd. at

12870 ¶ 11. In sum, the FCC had already streamlined and 
23

minimized review of vast numbers of minor actions, focusing 

attention only on subcategories of deployments likely to have 

cultural or environmental effects.

Second, in sweeping away wholesale the review it had 

preserved for the small cell deployments most likely to be 

disruptive, the Order is not, as the FCC asserts, “consistent 

with the Commission’s treatment of small wireless facility 

deployments in other contexts,” but directly contrary to it. 

Order ¶ 42. We observe by way of example the Commission’s 

assertion that “under the Collocation [Agreement], the 

Commission already excludes” from NHPA review “many 

facilities that meet size limits similar to those” of small cells. 

Id. As the Commission sees it, the Order thus “builds upon the 

insight underlying these existing rules that small wireless 

facilities pose little or no risk of adverse environmental or 

historic preservation effects.” Id. But the Collocation 

Agreement exclusion was defined not just by size, but by other 

characteristics that minimized the likelihood of cultural harm. 

The section of the Collocation Agreement the FCC cites in fact 

only excludes from individualized NHPA review “small 

wireless antennas and associated equipment on building and 

non-tower structures that are outside of historic districts and are 

not historic properties,” which include property of religious 

and cultural importance to Tribes. Collocation Agreement, 47 

C.F.R. Pt.1, App. B § VI (formatting altered); see also 54 

U.S.C. §§ 300308, 302706. A different section of the 

Collocation Agreement, which did exempt certain collocations 

of small antennas in historic districts or on historic properties,

likewise included numerous conditions to minimize effects on 

historic properties. An antenna could only be collocated on a 

historic property if, for example, “a member of the public, an 

Indian Tribe, a [State Historic Preservation Office] or the

[Advisory] Council” had not complained “that the collocation 

ha[d] an adverse effect on one or more historic properties,”
24

Collocation Agreement, 47 C.F.R. Pt.1, App. B § VII(A)(6),

and if the antenna was installed “using stealth techniques that 

match or complement the structure on which or within which it 

is deployed,” id. § VII(A)(2)(c), and “in a way that does not 

damage historic materials and permits removal of such 

facilities without damaging historic materials,” id. § VII(A)(4), 

among other conditions. After the Order, none of those 

limiting conditions applies. The insight of the Collocation 

Agreement was not that small cells by their nature “pose little 

or no risk of adverse environmental or historic preservation 

effects,” Order ¶ 42, but that small cells under certain carefully 

defined conditions pose little such risk. 

Similarly, the FCC explains its “conclusion that, as a class, 

the nature of small wireless facility deployments appears to 

render them inherently unlikely to trigger environmental and 

historic preservation concerns” by reference to limiting criteria 

that it chose not to place on its small cell exemption. Id. ¶ 92. 

It notes, for example, that “deployment of small wireless 

facilities commonly (although not always) involves previously 

disturbed ground, where fewer concerns generally arise than on 

undisturbed ground,” and reiterates that “use of existing 

structures, where feasible, can both promote efficiency and 

avoid adverse impacts on the human environment.” Id. But 

the Commission decided not to limit the Order’s exemption 

only to facilities sited on previously disturbed ground, or those 

that are collocated on existing structures. It therefore fails to 

justify its conclusion that small cells “as a class” and by their 

“nature” are “inherently unlikely” to trigger concerns.

By ignoring the extent to which it had already streamlined 

review, the Commission also overstated the burdens of review. 

It said it could not “simply turn a blind eye to the reality that 

the mechanical application of [limited approval authority]

requirements to each of [the] small deployments” necessary for 
25

5G “would increase the burden of review both to regulated 

entities and the Commission by multiples of tens or hundreds.” 

Id. ¶ 65. As the preceding discussion of the Collocation 

Agreement illustrates, however, the FCC was not 

indiscriminately or “mechanic[ally]” requiring full NHPA and 

NEPA review for each individual small cell. The Commission

fails to explain why the categorical exclusions and 

programmatic agreements in place did not already minimize 

unnecessary costs while preserving review for deployments 

with greater potential cultural and environmental impacts.

Third, given that only the most vulnerable cases were still 

subject to individualized NHPA or NEPA review, the 

Commission did not adequately address either the possible 

benefits of retaining review, or the potential for further 

streamlining review without eliminating it altogether. It

dismissed the benefits of historic-preservation and 

environmental review in a two-sentence paragraph, describing 

most of the comments that highlight those benefits as 

“generalized” and the comments that point to specific benefits 

as “few.” Id. ¶ 78. Characterizing a concern as “generalized”

without addressing that concern does not meet the standard of 

“reasoned decisionmaking.” Michigan v. EPA, 135 S. Ct. at 

2706.

The Commission found that adverse effects are rare, but it

considered neither the importance of the sites review does save, 

nor how that rarity depends on the very review it eliminates, 

which forestalled adverse effects that otherwise would have 

occurred. The FCC cited comments suggesting that only 0.3 or 

0.4% of requests for Tribal review result in findings of adverse 

effects or possible adverse effects. Order ¶ 79. Based on the 

estimate of 800,000 small cell deployments, that could mean

3,200 adverse effects. The Order displayed no consideration 

of the importance of the 3,200 Tribal sites that might be saved
26

through review except to describe that benefit as “de minimis

both individually and in the aggregate.” Id. As counsel for 

petitioner Blackfeet Tribe said at oral argument: “They may 

think that’s infinitesimal. To us, it means the world.” Oral 

Argument at 1:16:16-20. The Commission also did not address 

comments that “no adverse effects in 99% of tower 

deployments shows that the current system is working” 

because “[o]ften, after an applicant enters a location into” the 

Tower Construction Notification System, a Tribal 

representative “will notify the applicant of an issue and the 

applicant will choose a new location or resolve that effect,” 

which “gets counted as having no adverse effect.” Comment of 

Nat’l Ass’n of Tribal Historic Pres. Officers, J.A. 661. Other 

commenters agreed that “[t]he lack of significant impact should 

be a testament to the value of the review process in these 

instances, not negate its necessity.” Comment of Tex.

Historical Comm’n, J.A. 794 (“In our experience, the vast 

majority of adverse effects for cell projects are resolved 

through sensitive design modifications, including stealth 

measures, modifying how equipment is attached if directly 

mounted to a historic building or structure, or relocation to an 

alternate site further removed from historic properties.”).

Similarly, the Commission dismissed the point that its own 

oversight deters adverse effects by describing comments to that 

effect as “generalized, and undercut by our conclusion that, as 

a class, the nature of small wireless facility deployments 

appears to render them inherently unlikely to trigger 

environmental and historic preservation concerns.” Order

¶ 92. For the reasons already explained, the FCC’s conclusion 

that small cells are inherently unlikely to trigger concerns is 

arbitrary and capricious, and describing comments as 

“generalized” does not excuse the agency of its obligation to 

consider those comments as part of reasoned decisionmaking.
27

We hold that the Order’s deregulation of small cells is 

arbitrary and capricious because its public-interest analysis did 

not meet the standard of reasoned decisionmaking. We 

therefore decide neither the alternative grounds for holding that 

the Order is arbitrary and capricious or otherwise violated the 

Administrative Procedure Act, nor the claim that small cell 

construction is a federal undertaking and a major federal action 

requiring NHPA and NEPA review.

II. Tribal Involvement in Section 106 Review

The Order also made three changes to Tribal involvement 

in the Section 106 review not eliminated by the Order, such as 

review of macrocells and small wireless facilities on Tribal 

land. The first two changes relate to two types of Tribal 

involvement that the Commission and the Advisory Council 

distinguish from one another: (a) government-to-government 

consultation between the agency and the Tribes, in which 

Tribes function in their governmental capacity, and (b) the 

“identification and evaluation phase of the Section 106 process 

when the agency or applicant is carrying out its duty to identify 

historic properties that may be significant to an Indian tribe.” 

Advisory Council, Consultation with Indian Tribes in the 

Section 106 Review Process: A Handbook (Section 106 

Handbook), J.A. 1015; see also FCC, Voluntary Best Practices 

for Expediting the Process of Communications Tower and 

Antenna Siting Review Pursuant to Section 106 of the NHPA, 

J.A. 933; Order ¶¶ 118-19. 

Section 106 review comprises “four steps”: “initiation, 

identification, assessment [or evaluation], and resolution.” 

Section 106 Handbook, J.A. 1018. Government-togovernment consultation is a background requirement of 

Section 106 review at every stage. See id. at J.A. 1014, 1018;

Advisory Council, Fees in the Section 106 Review Process, 
28

J.A. 913; 36 C.F.R. § 800.2(c)(2)(ii)(A) (consultation requires 

giving the interested Tribe “a reasonable opportunity to 

identify its concerns about historic properties, advise on the 

identification and evaluation of historic properties, . . . 

articulate its views on the undertaking’s effects on such 

properties, and participate in the resolution of adverse effects”). 

In the identification and evaluation period, however, applicants 

have often paid for expertise and assistance from Tribes acting 

“in a role similar to that of a consultant or contractor” such as 

by providing “specific information and documentation 

regarding the location, nature, and condition of individual 

sites” or even conducting surveys. Section 106 Handbook, J.A. 

1015. The Order explains that identification and evaluation

involves “activities undertaken after the initial determination 

that historic properties are likely to be located in the site 

vicinity,” and that it includes “monitoring and other activities 

directed toward completing the identification of historic 

properties as well as assessing and mitigating the project’s 

impacts on those properties.” Order ¶ 124. 

The “initial determination” falls into the government-togovernment consultation category. See Section 106 Handbook, 

J.A. 1021 (explaining that initiating contact with Tribes is part 

of the Commission’s “responsibilities to conduct governmentto-government Consultation”). In practice, however, Tribes 

have been allowing applicants to contact them directly, in lieu 

of government-to-government consultation, to help make the 

initial determination. See Section 106 Agreement, 20 FCC Rcd. 

at 1108 ¶¶ 95-96; Keetoowah Br. 37. The Section 106 

Agreement “expresses the ambition that this initial contact will 

lead to voluntary direct discussions through which applicants 

and tribes . . . will resolve questions involving the presence of 

relevant historic properties and effects on such properties to the 

tribe[’s] . . . satisfaction without Commission involvement.” 

20 FCC Rcd. at 1108 ¶ 97. But “if an applicant and an Indian 
29

tribe . . . disagree regarding whether an undertaking will have 

an adverse effect on a historic property of religious and cultural 

significance, or if the tribe . . . does not respond to the 

applicant’s inquiries,” the Commission steps in to consult and 

ultimately “make a decision regarding the proposed 

undertaking.” Id.

The Advisory Council explains that “[t]hese two tribal 

roles”—government-to-government consultation, and 

assistance with identification and evaluation—“are not treated 

the same when it comes to compensation, although the line 

between them may not be sharp.” Advisory Council, Fees in 

the Section 106 Review Process, J.A. 913. Advisory Council 

guidance states that “agencies are strongly encouraged to use 

available resources to help overcome financial impediments to 

effective tribal participation in the Section 106 process” and 

applicants are likewise “encouraged to use available resources 

to facilitate and support tribal participation.” Advisory 

Council, Section 106 Handbook, J.A. 1015. At the same time, 

it says that agencies and applicants should not expect to pay 

fees for government-to-government consultation, which 

“give[s] the Indian tribe an opportunity to get its interests and 

concerns before the agency,” Advisory Council, Fees in the 

Section 106 Review Process, J.A. 913, but “should reasonably 

expect to pay” fees for the identification and evaluation, which 

puts Tribes in a “consultant or contractor” role, Advisory 

Council, Section 106 Handbook, J.A. 1015. It notes, however, 

that “this encouragement is not a legal mandate; nor does any 

portion of the NHPA or the [Advisory Council’s] regulations 

require an agency or an applicant to pay for any form of tribal 

involvement.” Id.

First, apparently because applicants had been consistently 

paying upfront fees, see Keetoowah Br. 37, the Order made 

clear that applicants’ payment of upfront fees to Tribes is 
30

voluntary. See Order ¶ 116. Upfront fees are payments made 

to Tribes for the initial determination whether the Tribe 

actually has religiously or culturally significant properties that 

might be affected by a proposed construction. See id. ¶ 116. 

Applicants contact Tribes for that initial determination when 

Tribes have noted that properties in the general area of 

proposed construction may have religious or cultural 

significance for them. Id. When an applicant follows up “to 

ascertain whether there are in fact such properties that may be 

affected,” some Tribes have requested upfront fees before they 

will respond. Id. As the Order describes the practice, the 

upfront fees “do not compensate Tribal Nations for fulfilling 

specific requests for information and documentation, or for 

fulfilling specific requests to conduct surveys,” but are “more 

in the nature of a processing fee” to “obtain a response” to an 

applicant’s initial Tower Construction Notification contact 

with a Tribal Nation. Id. ¶ 119.

Second, while the Order approved of fees for identifying 

and evaluating properties that may be significant to Tribes, as 

opposed to upfront fees, see id. ¶ 123, it also authorized 

applicants to consult with non-Tribal parties in the

identification and evaluation phase, see id. ¶¶ 124-45. The 

Commission found that, if an applicant asks a Tribe to perform 

work to aid it in documenting, surveying, or analyzing 

potentially historic properties, “the applicant should expect to 

negotiate a fee for that work” and, if the parties are “unable to 

agree on a fee, the applicant may seek other means to fulfill its 

obligations.” Id. ¶ 125. “The agency or applicant is free to 

refuse just as it may refuse to pay for an archeological 

consultant, but the agency still retains the duties of obtaining 

the necessary information for the identification [and 

evaluation] of historic properties . . . through reasonable 

means.” Id. (quoting Advisory Council, Section 106 

Handbook, J.A. 1015).
31

Third, the Order shortened from 60 to 45 days the timeline 

for Tribes to respond to notifications on the Tower 

Construction Notification System, eliminated the requirement 

that applicants make a second attempt to contact Tribes, and 

shortened from 20 to 15 days the timeline for Tribal response 

to Commission contact. Id. ¶¶ 110-11.

Keetoowah and Blackfeet challenge those three changes as 

arbitrary and capricious and inconsistent with the NHPA. 

Keetoowah complains that the Order “encourages applicants, 

which have until this point voluntarily paid fees, to refuse 

paying Tribes” upfront fees, Keetoowah Br. 37; that “FCC 

implementation goes far beyond the terms of the Order by 

refusing to even allow Tribes to request voluntary fees 

through” the Tower Construction Notification System, id. at 

37-38; that letting applications proceed where Tribes refuse to 

participate without compensation or are not hired as 

consultants violates the Commission’s legal obligation to 

consult with Tribes, id. at 38; and that the shortened timelines 

are unreasonable, id. at 40. Blackfeet asserts that the 

Commission lacks “the authority to prohibit tribes from 

collecting fees” because only the Advisory Council may 

promulgate regulations implementing Section 106. Blackfeet 

Br. 16.

None of those challenges is availing. The clarification that 

applicants are not required to pay upfront fees is consistent with 

the Advisory Council’s preexisting guidance and does not 

violate the Commission’s duty to consult with Tribes. The 

Order permissibly authorizes applicants to contract with nonTribal parties in the identification-and-evaluation phase 

because it stipulates that contractors must be “properly 

qualified,” which we understand does not authorize hiring 

other contractors in any circumstance in which only Tribes are 
32

qualified. Order ¶ 128. The shortened timeline for Tribal 

response is reasonable and sufficiently explained.

A. Upfront Fees

The Order permissibly confirms that upfront fees for 

Tribes to comment on proposed deployments are voluntary. 

Unchallenged Advisory Council regulations already make 

clear that fees are voluntary, so the Order’s reiteration of the 

same point is not arbitrary and capricious. While applicants 

have apparently been uniformly paying upfront fees for Section 

106 review, no party asserts that they have been required to do 

so. See Keetoowah Reply Br. 20. The Advisory Council has 

been explicit that no “portion of the NHPA or the [Advisory 

Council’s] regulations require an agency or an applicant to pay 

for any form of tribal involvement.” Advisory Council, Section 

106 Handbook, J.A. 1015; see also Advisory Council, Fees in 

the Section 106 Review Process, J.A. 913 (neither the NHPA 

nor Advisory Council regulations “requires Federal agencies to 

pay for any aspect of tribal [or] other consulting party 

participation in the Section 106 process”). Blackfeet’s 

complaint that “[t]he FCC does not have the authority to 

prohibit tribes from collecting fees” and that the Order is 

impermissibly “implementing and administering Section 106 

through regulation” is misplaced. The challenged Order

contains no such prohibition, but does no more than recognize 

and reiterate the Advisory Council’s existing rule.

The Commission has a non-delegable duty to consult with 

Tribes about the effect of federal undertakings on property 

significant to the Tribes, which Tribes can invoke or waive as 

they choose. The NHPA mandates that, “[i]n carrying out its 

responsibilities under [Section 106], a Federal agency shall 

consult with any Indian tribe . . . that attaches religious and 

cultural significance to property.” 54 U.S.C. § 302706(b). The 
33

Advisory Council has explained that “federal agencies cannot 

unilaterally delegate their tribal consultation responsibilities to 

an applicant,” but can only delegate if “expressly authorized by 

the Indian tribe to do so.” Advisory Council, Limitations on 

the Delegation of Authority by Federal Agencies to Initiate 

Tribal Consultation under Section 106 of the National Historic 

Preservation Act (Limitations on Section 106 Delegation) 1 

(2011), https://go.usa.gov/xyWGq. The Commission has also 

recognized that its “fiduciary responsibility and duty of 

consultation [to Tribes] rest with the Commission as an agency 

of the federal government, not with licensees, applicants, or 

other third parties.” Section 106 Agreement, 20 FCC Rcd. at 

1106 ¶ 91. 

Keetoowah says its challenge is not to the “FCC’s 

clarification that fees are voluntary,” but to “the Order’s 

determination that FCC will process applications without tribal 

input if tribes insist on charging applicants for their reviews.” 

Keetoowah Reply Br. 19-20. That determination, Keetoowah 

asserts, violates the Commission’s “statutory obligation to 

consult with tribes.” Id. at 19. Under the Section 106 

Agreement, Tribes can and do permit applicants to contact them 

to request review of proposed construction—essentially 

agreeing to accept that contact in satisfaction of the 

Commission’s responsibility to consult with Tribes directly. 

20 FCC Rcd. at 1108 ¶ 96; see also Keetoowah Br. 37; 

Comment of the Seminole Tribe of Florida, J.A. 743 (“[T]ribes 

participate in review . . . on a voluntary basis” as a substitute 

for “direct Section 106 consultation with the FCC.”) But 

Tribes can request “the federal agency to reenter the 

consultation process at any time . . . since the federal agency 

remains responsible for government-to-government 

consultation.” Limitations on Section 106 Delegation 2. 

Keetoowah implies that Tribes have only agreed to accept 

direct contact from applicants under the condition that 
34

applicants pay for Tribes’ responses—meaning that if Tribes 

refuse to respond without being paid upfront fees, they will not 

have waived the Commission’s responsibility to consult with 

them directly. Without having fulfilled its legal obligation to 

consult, Keetoowah contends, the Commission cannot permit 

applicants to go ahead with construction. 

Keetoowah overlooks the fact that when a Tribe refuses to 

review an application without being paid, the Order requires 

the Commission to step in to ask the Tribe for a response before 

allowing applicants to construct. Tribes’ refusal to respond 

triggers a process in which applicants can refer the matter to 

the Commission, the Commission must contact Tribes directly, 

and Tribes have 15 days from Commission contact to respond. 

See Order ¶ 111. Only if the Tribe does not timely respond to 

the Commission are “the applicant’s pre-construction 

obligations . . . discharged with respect to that Tribal Nation.” 

Id. The Tribe is guaranteed the opportunity to consult as a 

sovereign—a capacity in which it need not be paid—and the 

Commission cannot force an unwilling Tribe to respond. 

Therefore, if a Tribe refuses to respond when the Commission 

requests its views on an application, the Commission has 

discharged its obligation of direct Commission-to-Tribe 

consultation. See id. ¶ 111. Apart from the shortened 

timeframe, discussed below, Keetoowah has not offered any 

reason the Commission’s contacting Tribes directly with a 

request to consult that the Tribe rejects does not satisfy the 

Commission’s consultation obligation.

Finally, the objection that the Commission is prohibiting 

Tribes from requesting voluntary fees on the Tower 

Construction Notification System, Keetoowah Br. 38-40, is not 

properly before us. That prohibition does not appear in the 

Order itself but seems to originate with a later decision of 

Commission staff. See Resp’t Br. 64 n.19.
35

B. Non-Tribal Consultation

The Order states that applicants need not contract with 

Tribes to identify which properties have historic or cultural 

significance to Tribes and determine how to assess or mitigate

adverse effects of construction. Order ¶¶ 124-25, 128-29. 

Keetoowah argues that allowing applicants to contract with 

non-Tribal parties is arbitrary and capricious because “only 

Tribes are qualified to perform” such services “based on their 

unique, often sacred, knowledge.” Keetoowah Br. 23. Because 

the Order stipulates that contractors must be “properly 

qualified,” we reject the arbitrary-and-capricious claim. Order

¶ 128.

Advisory Council regulations require the agency to “make 

a reasonable and good faith effort to carry out appropriate 

identification efforts” under Section 106. 36 C.F.R. 

§ 800.4(b)(1). The Order explains that “the applicant is not 

bound to any particular method of gathering information,” 

Order ¶ 125, but it stipulates that contractors must be “properly 

qualified,” id. ¶ 128. The “reasonable and good faith efforts” 

standard together with the Order’s mandate that parties be 

“properly qualified” may sometimes require applicants to hire 

Tribes—for instance, where Tribes have “unique” and “sacred” 

knowledge of historic properties. Advisory Council guidance 

supports that notion, explaining that “unless an archeologist 

has been specifically authorized by a tribe to speak on its behalf 

on the subject, it should not be assumed that the archaeologist 

possesses the appropriate expertise to determine what 

properties are or are not of significance to an Indian tribe.” 

Section 106 Handbook, J.A. 1022. The Order itself suggests 

that applicants should try to hire Tribes first: “[I]f an applicant 

asks a Tribal Nation” to perform identification and evaluation 

of historic properties, “the applicant should expect to negotiate 

a fee for that work,” but if the Tribe and applicant “are unable 
36

to agree on a fee, the applicant may seek other means to fulfill 

its obligations.” Order ¶ 125. We cannot say, ex ante, how 

often as a practical matter applicants might find qualified nonTribal contractors or whether, as applied, the law will 

ordinarily require hiring Tribes. If a Tribe believes an 

applicant has hired an unqualified contractor, that issue can be 

litigated when it arises.

C. Timeline Changes

Keetoowah’s one-paragraph challenge to the Order’s 

shortening the timeline for Tribal response to Tower 

Construction Notification System notifications provides no 

basis on which to hold the shortened timeline arbitrary and 

capricious. Keetoowah Br. 40. Its sole objection is that Tribes 

“operate with limited staff and budget, making the shortening 

of Tribal review time unreasonable.” Id. The Commission 

acted within its discretion and “considered the relevant factors 

and articulate[d] a rational connection between the facts found 

and the choice made.” Vonage Holdings Corp. v. FCC, 489 

F.3d 1232, 1241 (D.C. Cir. 2007) (quoting BellSouth 

Telecomms., Inc. v. FCC, 469 F.3d 1052, 1056 (D.C. Cir. 2006) 

(alteration in original)). It reasonably justified the decision as 

a compromise between industry requests for even shorter 

timelines to address delays, and Tribes’ need for adequate time 

to review submissions. See Order ¶¶ 112 n.262, 113.

III. Promulgation of the Order Itself

All petitioners argue that the promulgation of the Order

itself violated the law. Keetoowah and Blackfeet argue that the 

Commission violated its duty to consult with Tribes, as 

established by the Tribes’ sovereign status and the governmentto-government relationship recognized in Article I, Section 8 

of the Constitution, the NHPA, and the Commission’s 

regulations. See Keetoowah Br. 40-42; Blackfeet Br. 20-21. 
37

The NRDC argues that the Order itself was a major federal 

action that required NEPA review. See NRDC Br. 10-11. 

Because the Order documents extensive consultation with 

Tribes, we reject the first contention. We lack jurisdiction to

consider the second because the NRDC forfeited it by failing 

to raise it to the Commission.

As for the Tribes’ contention that the Order is invalid 

because the Commission did not meet its obligations to consult 

with Tribes, the Commission responds that it extensively 

consulted with Tribes, and that in any event its consultation 

obligation is not judicially enforceable. Resp’t Br. 69-74. We 

conclude that the Commission fulfilled its obligation to 

consult. The Commission presented abundant evidence that it 

“consulted” Tribes in the ordinary sense of the word, and the 

Tribes have offered no other concrete standard by which to 

judge the Commission’s efforts.

On this record, we cannot say that the Commission failed 

to consult with Tribes in its meetings and other 

communications, which began in 2016 and continued through 

early 2018. See Order ¶¶ 19, 34. The Commission 

documented extensive meetings it held with Tribes before it 

issued the Order. See Order ¶¶ 19-35. Under Advisory 

Council regulations, “[c]onsultation means the process of 

seeking, discussing, and considering the views of other 

participants, and, where feasible, seeking agreement with them 

regarding matters arising in the section 106 process.” 36 

C.F.R. § 800.16(f); see also 54 U.S.C. § 302706(b). The 

dictionary definition of consulting is “seek[ing] advice or 

information of.” Consult, American Heritage Dict. (5th ed. 

2019). Keetoowah complains that the FCC’s efforts were 

“listening sessions, briefings, conference calls, and delivery of 

remarks by a Commissioner” rather than “consultations,” and 

presents evidence that Tribes did not view these meetings as 
38

consultations. Keetoowah Br. 44. But it offers no standard by 

which to judge which consultations were “listening sessions” 

or whether a “listening session” or a conference call qualifies 

as a consultation. The only case Keetoowah cites interpreting 

an agency’s failure to consult is inapposite: there, an agency 

official “acknowledged at trial” that the contested decision 

“had already been made prior to” the first meeting between 

Tribal members and agency officials discussing the decision. 

Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d 707, 710 

(8th Cir. 1979). No evidence in this record suggests the 

Commission had already determined the Order’s substance 

before meeting with Tribes—and the series of communications 

and meeting commenced even before the Commission issued 

the Notice of Proposed Rulemaking. See Order ¶ 19. The 

Commission appeared to “seek[], discuss[], and consider[] the 

views of” the Tribes, even if it did not ultimately adopt those 

views.

The NRDC argues that promulgating the Order was itself 

a major federal action that required NEPA review. See NRDC 

Br. 10-11. But, as intervenor CTIA points out, the NRDC 

forfeited that argument by failing to make it to the 

Commission, see CTIA Br. 38, and we lack jurisdiction to 

review a claim that was not raised there. Free Access & Broad. 

Telemedia, LLC v. FCC, 865 F.3d 615, 619 (D.C. Cir. 2017). 

While the NRDC points to its own and others’ comments 

“urg[ing] the Commission to conduct a NEPA analysis,” 

NRDC Reply Br. 3, none of those comments said the 

Commission was required to perform a NEPA analysis of the

Order. The NRDC cites its own comment “that if the FCC 

sought to exclude an entire category of wireless facilities from 

NEPA, it was required to establish a categorical exclusion.” Id. 

(citing J.A. 787-90). But the NRDC did not there contend, as 

it now does, that the Order is a major federal action. Rather, 

the NRDC’s argument was that the federal character of the 
39

geographic area license meant that the Commission could not 

entirely exempt wireless facility construction from NEPA 

review, J.A. 790—the same statutory argument it made here—

and that the proper approach to exempting federal “activities 

that by their nature do not have significant impacts on the 

environment is with a categorical exclusion,” J.A. 789. 

Whether the licenses or construction are federal, the basis of 

the NRDC’s argument, is irrelevant to the question whether the 

Order overall is a major federal action that requires NEPA

review. One of the other two comments it cites asserted that 

the proposed rule failed to comply with NEPA, but again, not 

because the Order required NEPA analysis—rather because 

the issuance of licenses constitutes a major federal action. See 

Comment of the Nat’l Trust for Historic Pres., J.A. 770. The 

third comment urged the Commission to consider the 

cumulative effects of radiofrequency exposure, but did not 

even mention NEPA. See Comment of BioInitiative Working 

Grp., J.A. 235-38. The argument that the Order required 

independent NEPA review was never fairly before the 

Commission. 

CONCLUSION

We grant the petitions to vacate the Order’s removal of 

small cells from its limited approval authority and remand to 

the FCC. We deny the petitions to vacate the Order’s changes 

to Tribal involvement in Section 106 review and to vacate the 

Order in its entirety.

So ordered.