Wireless industry representatives applauded the decision of the Fourth Circuit Court of Appeals last Friday to reject a legal challenge brought by local governments against FCC wireless infrastructure rules that prescribe a 60-day “shot clock” for municipal approval of most wireless tower modifications before such applications are “deemed granted” by default.
At the heart of the court’s case are FCC rules implementing Section 6409(a) of the 2012 Middle Class Tax Relief and Job Creation Act, which specifies that “a state or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.” In addition to claiming that the rules would speed the introduction of wireless broadband services nationwide, the FCC and its supporters contend that the October 2014 order containing the rules fulfills the intent of Congress by removing unreasonable obstacles to broadband facility deployment. Nevertheless, local government petitioners that include Montgomery County, Maryland, the California cities of Los Angeles, Ontario and San Jose, and the Texas Coalition of Cities for Utility Issues advised the court that the FCC order “conscripts the states” to act on wireless facility modifications in violation of the Tenth Amendment. As they characterized the “deemed granted” portion of the rules as “direct regulation of the conduct of the locality’s legislative power, which the Tenth Amendment prohibits,” the petitioners argued that the FCC’s order “unreasonably defines several terms of” Section 6409(a).
The three-judge panel determined, however, that the tower modification procedure prescribed by the FCC “comports with the Tenth Amendment” insofar as the agency’s order “does not require the states to take any action at all, because the ‘deemed granted’ remedy obviates the need for the states to affirmatively approve applications.” Observing that the purpose of Section 6409(a) “is to bar the states from interfering with the expansion of wireless networks” by prohibiting local government denial of “facility modification applications that meet certain standards,” the judges reasoned that the FCC order “does no more than implement the statute.” Although FCC officials declined comment, Scott Bergmann, the vice president of regulatory affairs for wireless association CTIA, praised the ruling as one that “will bring certainty and uniformity to broadband permitting decisions, bolstering the economic and social benefits that broadband brings to communities across the nation.”