The FCC is widely expected to try to take on one of the remaining big wireless infrastructure orders at its Sept. 26 meeting. State and local government representatives are bracing for a fight. The order is expected to be based in part on the work of the Broadband Deployment Advisory Committee. The wireless industry is focused on above-cost fees and a push for cost-based rate, a revised shot clock for deciding siting issues, and eliminating duplicative reviews. It's difficult to say which will be tackled first, industry officials said. The FCC didn’t comment.

The National Association of Tribal Historic Preservation Officers (NATHPO) submitted a statement of issues in in United Keetoowah Band v. FCC & USA, No. 18-1129, a case challenging the FCC’s March infrastructure order. “NATHPO intends to file opening and reply briefs focused on the detrimental impact of the FCC’s order on historic preservation of Tribal cultural resources,” the group said. Issues to be raised include whether the FCC “properly interpreted the National Historic Preservation Act with respect to its definition of an ‘undertaking,’” whether the FCC has authority “to eliminate Tribal review and associated fees through administrative order” and whether the agency engaged in the required “government-to-government consultation with Indian Tribes,” NATHPO said.

Oral argument was set for Oct. 25 on challenges to FCC Lifeline tribal limitations, said a brief order (in Pacer) of the U.S. Court of Appeals for the D.C. Circuit Monday in National Lifeline Association v. FCC, No. 18-1026. A D.C. Circuit motions panel Aug. 10 stayed the FCC restrictions on enhanced tribal support in the low-income USF subsidy program (see 1808100027).

Oral argument was set for Oct. 25 on challenges to FCC Lifeline tribal limitations, said a brief order (in Pacer) of the U.S. Court of Appeals for the D.C. Circuit Monday in National Lifeline Association v. FCC, No. 18-1026. A D.C. Circuit motions panel Aug. 10 stayed the FCC restrictions on enhanced tribal support in the low-income USF subsidy program (see 1808100027).

A federal court asked litigants to propose a briefing format by Sept. 17 for tribal challenges to a March FCC wireless infrastructure order. "Parties are strongly urged to submit a joint proposal and are reminded that the court looks with extreme disfavor on repetitious submissions and will, where appropriate, require a joint brief of aligned parties with total words not to exceed the standard allotment for a single brief," said an order (in Pacer) Friday of the U.S. Court of Appeals for the D.C. Circuit in United Keetoowah Band v. FCC, No. 18-1129. "Whether the parties are aligned or have disparate interests, they must provide detailed justifications for any request to file separate briefs or to exceed in the aggregate the standard word allotment."

The U.S. Court of Appeals for the D.C. Circuit will allow other tribes and the National Trust for Historic Preservation to file interventions in United Keetoowah Band v. FCC & USA, No. 18-1129, a case challenging the FCC’s March infrastructure order. Wednesday, the court left in place the revised rules, which took effect last month (see 1808150074). The other parties allowed to file are the Peoria Tribe of Indians of Oklahoma, the Cheyenne and Arapaho Tribes, the Mescalero Apache Tribe, the Apache Tribe of Oklahoma, the Tonkawa Tribe of Oklahoma and the Alabama-Quassarte Tribal Town, said a Thursday order. The D.C. Circuit said a schedule for filing briefs will be established in a future order.

The U.S. Court of Appeals for the D.C. Circuit denied a motion to stay the FCC’s March infrastructure order, leaving it in place with the broader court challenge pending. United Keetoowah Band v. FCC & USA, No. 18-1129, consolidates tribal challenges to the March order, which was approved 3-2 over dissents by Democrats Jessica Rosenworcel and Mignon Clyburn (see 1803220027).

APCO conference attendees agreed numerous questions remain on FirstNet, in interviews there last week. APCO featured FirstNet and partner AT&T (see 1808090002). Many predicted FirstNet’s growth will be relatively slow and a large number of agencies will stick with their current providers. FirstNet is in the first year of its five-year buildout plan. The network is growing since it launched last year, with 110,000 subscribers at the most recent count, and board members expressed optimism during their meeting Monday (see 1808130063).

AT&T said the FCC should adopt a shot clock of 60 days for small cells collocated on existing poles and 90 days for small cells placed on new poles. The company said in docket 17-79 deployment is in some cases dictated by local hurdles. In Lincoln, Nebraska, “high fees have delayed its residents the benefits of AT&T’s small cell deployments,” it said, citing similar problems in other cities in the state. “AT&T has for now focused more of its small-cell operational resources in the region on Des Moines and other Iowa communities, where cost-based fees and other predictable benefits of small cell legislation have created a more favorable environment,” it said. The carrier similarly hadn’t deployed any small cell sites in Portland, Oregon, “due to its annual recurring [rights-of-way] access fee of $7,500 per node plus an annual recurring fee to attach to city-owned infrastructure in the ROW in the amount of $5,500 per node downtown/$3,500 per node in other areas,” it said. The cities didn't comment. Siting rates and fees for wireless infrastructure deployments should be “cost-based, transparent, and non-discriminatory,” said CTIA and Wireless Infrastructure Association officials in a meeting last week with Will Adams, aide to Commissioner Brendan Carr. “Updated siting policies at the federal, state, and local levels play a key role in enabling the wireless industry to deploy the thousands of small cells needed to create capacity for today’s 4G LTE networks and build out" 5G, said a filing posted Monday in docket 17-79. “Rates and fees that are based on a locality’s costs to review applications and, where applicable, manage right-of- way use will ensure that localities can recoup expenses resulting from management of wireless siting, while promoting broadband deployment.” Meanwhile, FCC Chairman Ajit Pai defended steps commissioners took on wireless infrastructure rules in March (see 1803220027), in a letter to Rep. Ben Ray Lujan, D-N.M., posted Monday. “Our wireless infrastructure rules have been a poor fit for the 5G networks of the future, and our efforts to unleash spectrum for consumer use will be moot if carriers can't deploy the physical infrastructure needed to bring next-generation services to the American people,” Pai said. “The Commission's recent action on this front is a giant leap forward in updating our wireless infrastructure rules.” Pai stressed that the FCC had done extensive consultation with tribal groups prior to approving the order.

Federal judges blocked, for now, FCC restrictions on enhanced tribal Lifeline subsidies that bar resellers and residents of non-rural areas from the extra low-income USF support. The commission's 2017 order "will be stayed pending further [court action] insofar as the Order purports to limit eligibility for the Tribal Lifeline enhanced subsidy to 'facilities-based' service providers, and to limit eligibility for that program to 'rural areas,'" said the Friday ruling by a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit in National Lifeline Association v. FCC, No. 18-1026, and a consolidated case. They said petitioners showed a "likelihood of success on the merits" of their challenges, and that they'll suffer "irreparable injury absent a stay." Some said the decision further complicated an FCC proposal to ban resellers from Lifeline support in general.