FEDERAL APPELLATE COURT UPHOLDS FEDERAL COMMUNICATION COMMISSION REGULATIONS IMPLEMENTING SECTION 6409 REGARDING COLLOCATION AND MODIFICATION OF EXISTING WIRELESS FACILITIES

On December 18, 2015, the United States Court of Appeals for the Fourth Circuit issued an important ruling upholding the Federal Communication Commission’s (“FCC”) regulations governing eligible collocation and modification requests of existing wireless facilities pursuant to Section 6409 of the Spectrum Act.

In 2012, the Spectrum Act was enacted by Congress as part of the Middle Class Tax Relief and Job Creation Act of 2012.  The intent of the Spectrum Act was to encourage the growth of a robust national telecommunications network including the creation of a broadband communications network for first responders. Within the Spectrum Act, Congress placed Section 6409 which essentially forbid local agencies from exercising their zoning authority to deny requests to modify wireless equipment, so long as the modification did not “substantially change the physical dimensions” of the facility. However, Section 6409 still contained significant ambiguity as to how and when it should be applied. 

Section 6409(a) of the Spectrum Act provides, in pertinent part, 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.”[1] For obvious reasons, wireless providers have been interpreting Section 6409 as broadly as possible in their favor whereas local agencies have been interpreting this loss of zoning authority as narrowly as possible.

After a contentious notice-and-comment period, the FCC issued an Order on October 17, 2014 clarifying many important terms within Section 6409 and further implementing procedural requirements for local agencies.[2]  Of particular concern to local agencies and the basis for the legal challenge before the federal courts, is that the FCC Order imposed a sixty day deadline for local agency to approve an application qualified under Section 6409, even though no such deadline was imposed in Section 6409.[3]  If the City does not (1) approve the application, (2) determine the application not eligible under Section 6409, or (3) notify the applicant in writing that the application is incomplete then the application is “deemed approved” at the expiration of the sixty day period[4].  If the application is determined incomplete, then the clock is only tolled from  the point that the City notifies the applicant in writing that the application is incomplete and the clock is not reset but continues from the point it stopped when the applicant provides the information necessary to complete the application..[5]  

The FCC Order further provided definition of previously ambiguous terms used within Section 6409.  While clarification is desirable, of particular concern to local agencies is that the definition of “substantial change” provided allows up to ten percent increase in the height of a Base Station.[6]  Base Station is defined to encompass any structure which supports or houses wireless equipment even if the structure was not built for the sole and primary purpose of providing support.  This is of concern because any building, parking structure, or other structure which has any existing wireless equipment on it, can be expanded up to ten percent in height of the entire building or structure. Potentially, an antenna on top of a forty foot tall building can be increased up to 40 feet.  Fortunately, the FCC Order does allow some limitation by declaring that localities may continue to condition approval on compliance with “generally applicable building, structural, electrical, and safety codes.”[7] Local agencies may also, of course, deny applications which do not qualify under Section 6409.

In response to the preceding concerns, several local agencies filed a legal challenge alleging the FCC Order violated the tenth amendment forbidding the federal government from requiring states to enforce federal law; was unreasonably arbitrary, capricious, and an abuse of discretion; was in error because it allowed expansion of facilities which were only approved on the condition that the facility would not be modified in the future, and specifically that the definition of Base Station is unreasonably broad as it has never been defined to include support structures previously.  Numerous interested parties intervened in this case to make their argument in support or in opposition to the FCC’s rules. Ultimately, the appellate court considered and refuted all of the arguments against the FCC Order holding that the regulations were constitutional and reasonable and that Petitions failed to establish otherwise. 

As a result of this ruling, it is of vital importance for local agencies to immediately review their procedures for consideration of wireless applications and be familiar with the specific criteria established by the FCC for eligibility for Section 6409 treatment as set forth in the FCC Order and as codified in 47 C.F.R. 1.40001. It is also important that moving forward, all applications for new wireless facilities be considered in light of potential impact of Section 6409 which would appear to allow a certain level of expansion by way of collocation or modification immediately after the new facility is constructed. As always, local agencies should consult their own legal counsel with any questions.

The above information is for general use and is not legal advice. This update is not intended to create, and receipt of it does not constitute an attorney – client relationship. Should you have any questions or require further clarification of the above, please contact Baron J. Bettenhausen at (714) 446-1400 or bjb@jones-mayer.com.