2015: Montgomery County, MD vs FCC


Filed: March 6, 2015

Excerpts from the case:
  • There is no question that the terms [ “substantially change the physical dimensions” of the wireless facilitity] in the Spectrum Act at issue here are ambiguous.

  • Functionally, what has occurred here is that the FCC — pursuant to properly delegated Congressional authority — has preempted state regulation of [facility modification requests of existing] wireless towers. That is entirely permissible under our system of federalism. We therefore conclude that Petitioners’ Tenth Amendment challenge lacks merit. Pursuant to the Administrative Procedure Act, we will set aside the FCC’s order only if we conclude that its rules are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

  • The 2012 Spectrum Act displaces discretionary municipal control over certain facility modification requests. But that is exactly what Congress intended by forbidding localities from denying qualifying applications. The FCC’s objective criteria are entirely consistent with this purpose, because the concrete standards in the Order eliminate the need for protracted review. By providing concrete, non-discretionary standards, the FCC has limited the local review process to the simple question of whether the proposed modification falls within the statutory parameters.

  • Tellingly, Petitioners do not argue that the FCC should have supplied different objective standards for physical dimensions. Nor do they argue that the FCC itself should undertake to review each application for substantiality. Their dispute is not with the particular standards the FCC has selected, but with the fact that the FCC has set forth objective standards that divest municipalities of their reviewing discretion.

  • The FCC’s view is that, regardless of the circumstances under which a provider obtained permission to build a facility, now that it has been built, any expansion proposals are reviewed based upon whether the proposed expansion will substantially increase the size of the facility. This view is faithful to the text of Section 6409(a), which does not contain any exemptions for facilities that exist on condition of non-modification. We cannot conclude, under Chevron, that the FCC’s interpretation is unreasonable.

  • Regardless of how other regulations may have addressed base stations, defining that term to encompass support structures comports with the thrust of Section 6409(a). The statutory text places base stations on equal footing with towers, and the Act clearly contemplates modifications of both types of facilities. Section 6409(a)(1) discusses “modification of an existing wireless tower or base station,” and Section 6409(a)(2) clarifies that modification includes “modification of an existing wireless tower or base station that involves . . . collocation of new transmission equipment.”

  • We agree with the FCC’s explanation in the Order of the distinction between these terms ["tower and base station"] :

FCC: [W]e interpret “base station” not to include wireless deployments on towers. Further, we interpret “tower” to include all structures built for the sole or primary purpose of supporting Commission-licensed or authorized antennas, and their associated facilities, regardless of whether they currently support base station equipment at the time the application is filed. Thus, “tower” denotes a structure that is covered under Section 6409(a) by virtue of its construction. In contrast, a “base station” includes a structure that is not a wireless tower only where it already supports or houses such equipment.

  • For the foregoing reasons, the petition for review is DENIED