4th Circuit Court Upholds FCC’s Infrastructure Order

December 28, 2015

2015 in Review

By J. Sharpe Smith —

There was no shortage of activity concerning streamlining zoning regulations in 2015, from the FCC to the state legislatures to the courts. The U.S. Court of Appeals for the 4th Circuit Court appears to have the final word on the subject (at least for this year), upholding the FCC’s Infrastructure Order against a constitutional and administrative law challenge.

The case for the wireless industry was argued by the law firm Wiley Rein on behalf of CTIA – The Wireless Association and PCIA – The Wireless Infrastructure Association. which joined together to defend the FCC action. PCIA Head Jonathan Adelstein said he was proud to partner with CTIA in the case and was pleased with the outcome.

“[The 4th Circuit’s decision] will promote the widespread deployment of mobile broadband in Montgomery County and other communities around the country,” Adelstein said in a prepared statement. “The wireless infrastructure industry wants to reduce or eliminate, whenever possible, unreasonable obstacles” to wireless broadband deployment.

Zoning Reform Began with Act of Congress

The effort to speed deployment of wireless facilities began in 2012 with the passing of The Middle Class Tax Relief and Job Creation Act (known as the Spectrum Act), which stated 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.”

Subsequently, the FCC released the Infrastructure Order in 2014, which defined the statutory terms “substantially change” and “base station,” and provided that if a local authority fails to act upon an eligible request with 60 days, the request will be deemed granted. In response, a number of local governments sued the FCC arguing that the term “deemed grant” violates the 10th Amendment, and that the FCC’s interpretations of “substantially change” and “base station” are unreasonable.

In its opinion in the case Montgomery County, Maryland v. FCC, No. 15-1284, the court unanimously held that the Order “is fully consonant with the 10th Amendment,” and that “the FCC has reasonably interpreted the ambiguous terms of Section 6409(a) of the Spectrum Act.”

Cities Must Adjust Wireless Ordinances

Local governments must now plug loopholes in their local wireless ordinances to overcome practical challenges raised by the FCC’s deemed-granted rule, according to Jonathan Kramer, Telecom Law Firm, who represents cities as a wireless consultant.

“These loopholes include ensuring a process to feasibly review and decide a 6409(a) application in 60 days; adjusting wireless permit applications to require new information required to assess the FCC’s 6409(a) criteria and to delete application elements the FCC now prohibits; and establishing automatic permit conditions to attach as a safety net to all applications deemed-granted by the FCC,” Kramer said.

Kramer said carriers have entered into tolling agreements rather than test the deemed approved remedy as the industry awaited the results of the 4th Circuit appeal.

“It’s likely that carriers will now be emboldened by the 4th Circuit decision to forego many tolling agreements in the expectation of pressing their new rights to the deemed-approved remedy. This is likely to lead to more litigation,” he said.

Adelstein said PCIA will continue to work with municipalities to facilitate the zoning and wireless deployment process.

For a look at our legislative stories, click on the links below:
PCIA Comments on State Wireless Bills
Wireless Siting Bills Pass In the States