Court Upholds FCC Tower-Siting Decision

Says it does not violate Tenth Amendment
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In a decision that could speed wireless broadband deployment, the FCC's prime directive, a federal appeals court has denied a petition to review an FCC order on wireless tower siting.

The U.S. Court of Appeals for the Fourth Circuit ruled Friday that the commission has the authority to streamline wireless facilities deployment, including by preventing local authorities from denying requests to modify wireless equipment if that does not substantially change the physical footprint of that equipment, and preventing them from otherwise hindering the review process.

The FCC's implementation of the act had been challenged by various municipal authorities, while wireless associations, including CTIA (operators) and PCIA (infrastructure) had sided with the FCC.

The cities claimed that the FCC's implementation order "conscripts the states in violation of the Tenth Amendment, and that the Order unreasonably defines several terms of the Spectrum Act."

The court found that the FCC was implementing the statute properly and had the authority to interpret the statute as it did.

"We conclude that the FCC’s Order is fully consonant with the Tenth Amendment [states' rights]. We further conclude that the FCC has reasonably interpreted the ambiguous terms of Section 6409(a) of the Spectrum Act," the court said.

The court said the FCC can't compel the states to administer federal regulations (the anti-commandeering principle), but said it "presents no bar to a federal rule that asks the states to choose between regulating according to federal standards and having a federal agency step in to regulate."

It also pointed out that a federal law that conditions funding on state implementation of a federal program (like conditioning highway funding on certain speed limits, for example), does not violate the Tenth Amendment unless that coercion becomes compulsion. The court pointed out that the states are not compelled to take any action.

Despite the fact that the Order does not require states to take any action at all, petitioners insist that the Order commandeers the states and compels localities to administer the Spectrum Act.

Back in March, Montgomery County, Md., and several other counties took the FCC to court over its new tower siting rules, saying the move was unconstitutional, arbitrary and capricious, an abuse of discretion and otherwise illegal. 

They asked the court to vacate the decision and the rules and grant whatever other relief the court deemed appropriate.

The 60-day shot clock was a sticking point with cities and counties according to their filings in the FCC docket before the October vote. After that 60 days a tower siting would be deemed granted.

The court concluded that "deemed granted" provision did not violate the Tenth Amendment, agreeing with the FCC that the statute provided that authority when it said localities “may not deny, and shall approve” qualified applications. 

It pointed out that the statute "preempts local regulation of collocations and bars states from denying facility modification applications that meet certain standards. The FCC’s Order does no more than implement the statute."

The FCC voted unanimously in October 2014 to make it easier to deploy wireless infrastructure, yet another step in the commission's broader move to spur broadband deployment.

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