The US Court of Appeals for the D.C. Circuit ruled last week that the FCC had gone too far when it ruled that 5G cell site placement could bypass environmental and historic preservation review. The specific ruling looked at whether the FCC has the authority to bypass these kinds of reviews for sites of religious and cultural importance to federally recognized Indian Tribes. But the ruling has a far larger significance and applies to these kinds of reviews everywhere.

This type of court ruling seemed inevitable because of the brashness of the original FCC order. That order declared that the deployment of 5G is so important that all of the rules in the country applying to the deployment of new infrastructure don’t apply. For courts to buy that argument that must be convinced that 5G deployment is so important that it is indeed a national emergency.

I think everybody who understands the benefits of 5G understands that it is an important new technology – one that will create huge benefits for the country. But it’s hard to make an argument that 5G deployment is an emergency.

The biggest benefits of 5G are only going to manifest with the introduction of frequency slicing into the cellular network, and that looks to be 3 – 4 years away. The deployments that the cellular carriers are labeling as 5G today mostly marketing gimmicks and custoemrs are not yet seeing any of the real benefits from 5G.

I blame the original FCC 5G order on a poorly chosen strategy by the cellular carriers, abetted by the FCC. We are facing a cellular emergency in the country, but it’s a crisis of 4G and not 5G. Our existing 4G network is in serious trouble and it seems that the cellular carriers don’t want to admit it. Cellular data networks are swamped because customer data usage is not doubling every two years. I have seen big problems in my local AT&T network. There have been many days when it’s hard to make or hold a call – something that never happened before last year.

The explosive growth of cellular traffic is partially the fault of the cellular carriers – it comes as a result of ‘unlimited’ data plans that encourage people to watch video and use cellphone data. It wasn’t that long ago when it cost a lot to buy a data plan that exceeded 1 or 2 gigabytes of usage per month. The average customer with an unlimited plan now uses 6 GB per month, and that number is growing rapidly.

The other cause of the increased demand on cellular networks comes from the success of the industry convincing in convincing everybody to use a smartphone. A recent Pew poll showed that 95% of teens and young adults now have a smartphone. The sheer number of customers is swamping the networks.

There is a path out of the current data crisis for cellular networks. It’s a 3-prong approach that involves building more cell sites, adding more bands of frequency onto cellphones, and finally layering on the frequency slicing capabilities of 5G.

It takes at 3 – 5 years to introduce a new frequency into the cellular network. That involves upgrading cell sites, but more importantly, it means building the capability into handsets and then getting the new phones into the hands of enough people to make a difference.

With real 5G benefits still a few years off, the only immediate way to relieve pressure on the cellular network is to add small cell sites. Each small cell site grabs local callers and keeps them off the big tall cell towers. All of the hectic small cell site construction we see is not being done for 5G – it’s being done to take the pressure off the 4G network.

The big cellular companies seem unwilling to admit that their networks are hurting and are in danger of overload – the first company brave enough to say that probably loses customers. Instead, the cellular industry elected to push the 5G narrative as the reason for bypassing the normal way that we build infrastructure. In this case, the courts didn’t buy that 5G is an emergency, and the court is right because 5G isn’t even here yet. If the cellular carriers and the FCC would have declared a 4G emergency I think everybody would have gotten it. We all want our cellphones to work.

The courts are still reviewing the appeal of an issue with even more potential dire consequences to the cellular carriers. Probably the most important aspect of the FCC’s 5G ruling is that cities have little say about the placement of small cell sites and also must expedite permitting for new small cell sites. That ruling was challenged by numerous cities and is being reviewed by the US Court of Appeals for the Ninth Circuit. That issue also boils down to the question of whether deploying 5G is an emergency. I wonder if it’s too late for the cellular carriers to fess up and admit that the emergency is really for 4G – even appeal court judges would likely understand that.