Posted by: Patricia Salkin | January 21, 2016

4th Circuit Court of Appeals Holds Local Zoning Limitation on Modification of Telecommunication Facilities Based on Prior Agreements to Not Modify Those Facilities was Preempted by the Spectrum Act

This case was an administrative appeal challenging rules promulgated by the Federal Communications Commission (“FCC”). As part of a coalition of local authorities, Montgomery County, Maryland, petitioned for review of the FCC’s October 17, 2014 Order, which issued rules implementing Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, 47 U.S.C. § 1455(a) aka the “Spectrum Act.” Petitioners contended that the procedures established in the Order conscript the states in violation of the Tenth Amendment, and that the Order unreasonably defined several terms of the Spectrum Act. Under the Spectrum Act, localities are forbidden from exercising their zoning authority to deny providers’ requests to modify wireless equipment, so long as the proposed modification does not “substantially change the physical dimensions” of the facility. However, the statute does not define what kinds of modifications would qualify as substantial.

Petitioners first challenged the “deemed granted” procedure, which they characterized as “direct regulation of the conduct of the locality’s legislative power, which the Tenth Amendment prohibits.” Here, the “deemed granted” procedure allows applications to be granted by default if the state does not affirmatively approve them within sixty days. Thus, the court noted, the purpose and effect of Section 6409(a) is to preempt states from interfering with the expansion of wireless networks pursuant to properly delegated Congressional authority. It therefore concluded that Petitioners’ Tenth Amendment challenge lacked merit.

Petitioners next challenged the FCC’s definition of the terms “substantially change” and “base station.” The FCC’s Order provided objective and numerical standards to establish when an eligible facilities request would “substantially change the physical dimensions” of the facility. The court found that FCC’s objective criteria were entirely consistent with the purpose of the Spectrum Act, because the concrete standards in the Order eliminate the need for protracted review. Moreover, Section 6409(a) and the Order preserved the FCC’s obligations to conduct contextualized assessments of projects that affect historically or environmentally sensitive areas, and preserve local authority to condition approval on compliance with “generally applicable building, structural, electrical, and safety codes” and other public safety laws.

As to the second term, the FCC defined “base station” to mean “the equipment and non-tower supporting structure at a fixed location that enable Commission-licensed or authorized wireless communications between user equipment and a communications network.” The court found that since a wireless tower is essentially a support structure with electronic equipment on top, it would not make sense to interpret the statute in a manner that permitted the FCC to define towers to encompass the entire structure, but prohibited the FCC from defining base stations to encompass the entire facility. Moreover, the FCC’s definition of “tower” included towers that do not currently support antennas, and its definition of base stations expressly excluded towers, thereby rendering the two definitions distinct and not overbroad. Accordingly, the court held Petitioners failed in their burden of showing that the FCC’s definition was an unreasonable interpretation of the Spectrum Act, and their petition was denied.

Montgomery County v Federal Communications Commission, 2015 WL 9261375 (4th Cir. CA 12/18/2015)

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