The League of Oregon Cities, the League of California Cities and the California city governments of Glendora, Rancho Palos Verdes and Torrance have petitioned the Ninth Circuit U.S. Court of Appeals to review of the FCC’s 5G Upgrade Order, which is a declaratory ruling “In the Matter of Implementation of State and Local Governments’ Obligation to Approve Certain Wireless Facility Modification Requests Under Section 6409(a) of the Spectrum Act of 2012, WT Docket No. 19-250 and RM-11849, FCC 20-75.”
On June 9, the FCC approved the 5G Upgrade Order to facilitate the deployment of 5G wireless communications networks by clarifying the agency’s rules regarding state and local government review of modifications to existing wireless infrastructure. The action was intended to expedite equipment upgrades to deploy next-generation networks.
Congress enacted Section 6409(a) of the Spectrum Act of 2012 to streamline state and local government review of certain requests to modify wireless transmission equipment on existing structures, and the FCC in 2014 adopted rules to implement Section 6409(a). Under this framework, a state or local government shall approve within 60 days any request for modification of an existing structure that does not substantially change the physical dimensions of that structure.
The declaratory ruling adopted on June 9 is intended to clarify the FCC’s 2014 rules with regard to when the 60-day shot clock for local review begins. According to the agency, the ruling also clarifies how certain aspects of proposed modifications — height increases, equipment cabinet additions and the effect on concealment elements and aesthetic conditions — affect eligibility for streamlined review under Section 6409(a). In addition, the action clarifies that, under the agency’s rules on environmental and historic preservation review, FCC applicants need not to submit environmental assessments based only on potential effects upon historic properties when parties have entered into a memorandum of agreement to mitigate effects on those properties.
The cities will argue that the FCC’s clarification of the rules is actually a wholesale rules change and as such should have been handled through an informal rulemaking proceeding with a Notice of Proposed Rulemaking (NPRM), instead of a declaratory ruling, in accordance with the Administrative Procedures Act.
“If you are changing rules that were adopted through an NPRM, you have to do it through an NPRM,” said Robert “Tripp” May III, managing partner, Telecom Law Firm.
The cities believe the FCC failed to prove that the previous rules concerning cell site zoning need to be changed. “The FCC has taken a different tack and said it is not changing the rules, which is not true,” May said.
Another motivation for the filing of this review is the cities are upset that the FCC ignored their request for a grace period for them to comply with the new rules, which is standard procedure. In short, the municipalities feel snubbed.
“They made these rule changes in a climate where we are not just making changes to our local practices and regulations, but we are dealing with a global pandemic, economic upheaval and civil unrest,” May said. “The FCC has piled more work on cities to comply with new rules at a time when they are making a valiant effort to comply with the existing rules. It incensed people. The FCC kicked a hornets’ nest.”