Filed: Dec. 18, 2015
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-1240 MONTGOMERY COUNTY, MARYLAND, Petitioner, CITY OF BURLINGAME, CALIFORNIA; TOWN OF APPLE VALLEY, CALIFORNIA, Intervenors/Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES OF AMERICA, Respondents, CTIA - THE WIRELESS ASSOCIATION; PCIA - THE WIRELESS INFRASTRUCTURE ASSOCIATION, Intervenors, - LEAGUE OF CALIFORNIA CITIES; CALIFORNIA STATE ASSOCIATION OF COUNTIES; LEAGUE OF OREGON CITIES; SCAN NATOA, INC., Amici
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-1240 MONTGOMERY COUNTY, MARYLAND, Petitioner, CITY OF BURLINGAME, CALIFORNIA; TOWN OF APPLE VALLEY, CALIFORNIA, Intervenors/Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES OF AMERICA, Respondents, CTIA - THE WIRELESS ASSOCIATION; PCIA - THE WIRELESS INFRASTRUCTURE ASSOCIATION, Intervenors, - LEAGUE OF CALIFORNIA CITIES; CALIFORNIA STATE ASSOCIATION OF COUNTIES; LEAGUE OF OREGON CITIES; SCAN NATOA, INC., Amici ..
More
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1240
MONTGOMERY COUNTY, MARYLAND,
Petitioner,
CITY OF BURLINGAME, CALIFORNIA; TOWN OF APPLE VALLEY,
CALIFORNIA,
Intervenors/Petitioners,
v.
FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES OF
AMERICA,
Respondents,
CTIA - THE WIRELESS ASSOCIATION; PCIA - THE WIRELESS
INFRASTRUCTURE ASSOCIATION,
Intervenors,
-------------------------------------
LEAGUE OF CALIFORNIA CITIES; CALIFORNIA STATE ASSOCIATION
OF COUNTIES; LEAGUE OF OREGON CITIES; SCAN NATOA, INC.,
Amici Supporting Petitioner.
No. 15-1284
CITY OF BELLEVUE, WASHINGTON; CITY OF LOS ANGELES,
CALIFORNIA; CITY OF MCALLEN, TEXAS; CITY OF ONTARIO,
CALIFORNIA; CITY OF REDWOOD CITY, CALIFORNIA; CITY OF SAN
JOSE, CALIFORNIA; TEXAS COALITION OF CITIES OF UTILITY
ISSUES,
Petitioners,
CITY OF BURLINGAME, CALIFORNIA; TOWN OF APPLE VALLEY,
CALIFORNIA,
Intervenors,
v.
FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES OF
AMERICA,
Respondents,
CTIA - THE WIRELESS ASSOCIATION; PCIA - THE WIRELESS
INFRASTRUCTURE ASSOCIATION,
Intervenors,
--------------------------------------
LEAGUE OF CALIFORNIA CITIES; CALIFORNIA STATE ASSOCIATION
OF COUNTIES; LEAGUE OF OREGON CITIES; SCAN NATOA, INC.,
Amici Supporting Petitioner.
Petition for Review of an Order of the Federal Communications
Commission. (FCC 14-153).
Argued: October 28, 2015 Decided: December 18, 2015
Before GREGORY, DUNCAN and FLOYD, Circuit Judges.
Denied by published opinion. Judge Duncan wrote the opinion, in
which Judge Gregory and Judge Floyd joined.
2
ARGUED: Joseph Leonard Van Eaton, BEST BEST & KRIEGER LLP,
Washington, D.C., for Petitioners/Intervenors. Maureen
Katherine Flood, FEDERAL COMMUNICATIONS COMMISSION, Washington,
D.C., for Respondent. Megan Leef Brown, WILEY REIN LLP,
Washington, D.C., for Intervenors. ON BRIEF: Nicholas P.
Miller, BEST BEST & KRIEGER LLP, Washington, D.C., for
Petitioners/Intervenors. William J. Baer, Assistant Attorney
General, Robert B. Nicholson, Steven J. Mintz, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; Jonathan B. Sallet,
General Counsel, David M. Gossett, Deputy General Counsel,
Richard K. Welch, Deputy Associate General Counsel, FEDERAL
COMMUNICATIONS COMMISSION, Washington, D.C., for Respondents.
Joshua S. Turner, Jeremy J. Broggi, WILEY REIN LLP, Washington,
D.C., for Intervenors. Javan N. Rad, Chief Assistant City
Attorney, Pasadena, California; Robert C. May, III, TELECOM LAW
FIRM, PC, La Jolla, California, for Amici Curiae.
3
DUNCAN, Circuit Judge:
Before the court is an administrative appeal challenging
rules promulgated by the Federal Communications Commission
(“FCC”). As part of a coalition of local authorities,
Montgomery County, Maryland, petitions for review of the FCC’s
October 17, 2014 Order (“the Order”), which issued rules
implementing Section 6409(a) of the Middle Class Tax Relief and
Job Creation Act of 2012, 47 U.S.C. § 1455(a), also known as the
Spectrum Act. Petitioners contend that the procedures
established in the Order conscript the states in violation of
the Tenth Amendment, and that the Order unreasonably defines
several terms of the Spectrum Act.
For the reasons that follow, we conclude that the FCC’s
Order is fully consonant with the Tenth Amendment. We further
conclude that the FCC has reasonably interpreted the ambiguous
terms of Section 6409(a) of the Spectrum Act. Accordingly, we
deny the petition for review.
I.
To provide context for the issues raised in the petition,
we first set forth the statutory and regulatory framework from
which the FCC’s Order arises.
In 2012, Congress passed the Spectrum Act as part of the
Middle Class Tax Relief and Job Creation Act. The Spectrum Act
4
included, among other things, a series of measures designed to
encourage the growth of a robust national telecommunications
network. 1 At issue in this appeal is Section 6409(a) of the
Spectrum Act, entitled “Wireless Facilities Deployment:
Facilities Modifications.” 47 U.S.C. § 1455(a).
Section 6409(a) addresses wireless providers’ efforts to expand
their networks by modifying existing electronic equipment that
sits atop towers and other structures. If, for example, a
wireless provider wanted to collocate transmission equipment on
an existing tower or other site in order to increase wireless
service, the provider would ordinarily need to seek local zoning
approval, because the modifications would alter the physical
profile of the facility.
Section 6409(a)(1) limits local authority to bar
collocation or other modification efforts:
[n]otwithstanding section 704 of the
Telecommunications Act of 1996 (Public Law 104-104) or
any other provision of law, 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.
1For example, the Act reallocated a segment of the
broadcast spectrum for public safety purposes, and authorized
the FCC to auction part of the spectrum for commercial use. See
47 U.S.C. §§ 1421, 1451.
5
47 U.S.C. § 1455(a)(1). Section 6409(a)(2) defines the term
“eligible facilities request” as follows:
For purposes of this subsection, the term “eligible
facilities request” means any request for modification
of an existing wireless tower or base station that
involves--
(A) collocation of new transmission equipment;
(B) removal of transmission equipment; or
(C) replacement of transmission equipment.
47 U.S.C. § 1455(a)(2). Together, these provisions forbid
localities from exercising their zoning authority to deny
providers’ requests to modify wireless equipment, so long as the
proposed modification does not “substantially change the
physical dimensions” of the facility. The statute does not
define what kinds of modifications would qualify as substantial.
Congress charged the FCC with implementing the Spectrum
Act, 47 U.S.C. § 1403(a), and the FCC initiated that process by
issuing a public notice of proposed rulemaking. See In re
Acceleration of Broadband Deployment by Improving Wireless
Facilities Siting Policies, 28 FCC Rcd. 14238 (Sept. 26, 2013).
Following a contentious notice-and-comment period during which
numerous parties submitted their views, the FCC issued an Order
on October 17, 2014 implementing Section 6409(a). In re
Acceleration of Broadband Deployment by Improving Wireless
Facilities Siting Policies, 29 FCC Rcd. 12865 (Oct. 17, 2014),
amended by 30 FCC Rcd. 31 (Jan. 5, 2015). These rules are
codified at 47 C.F.R. § 1.40001.
6
The Order begins by noting the underlying Congressional
concern that municipal permit review processes were hindering
efforts to expand wireless networks.
Despite the widely acknowledged need for additional
wireless infrastructure, the process of deploying
these facilities can be expensive, cumbersome, and
time-consuming. . . . [Among other requirements],
parties must typically obtain siting approval from the
local municipality. . . .
Although these review requirements serve important
local and national interests, local and Federal review
processes can slow deployment substantially, even in
cases that do not present significant concerns.
Order ¶¶ 9-10. With the aim of “reduc[ing] regulatory obstacles
and bring[ing] efficiency to wireless facility siting,” the
Order turned to the task of implementing Section 6409(a) and
defining its terms. Id. ¶ 10.
Two aspects of the Order are relevant to this appeal. The
first implements the statute’s directive that localities “shall
approve” applications by establishing what the Order calls a
“deemed granted remedy.” Order ¶ 227. The second clarifies
what kinds of physical modifications are “substantial,” and what
types of facilities qualify as “wireless towers” and “base
stations” within the meaning of the statute. We briefly
summarize each before turning to Petitioners’ arguments.
7
A.
To implement the Spectrum Act’s mandate that localities
“shall approve” facility-modification requests covered by
Section 6409(a), the Order establishes a so-called “deemed
granted remedy.” Under this procedure, when a locality receives
a covered facility-modification request, it has sixty days to
review the application, if it elects to review the request at
all. 47 C.F.R. § 1.40001(c). Within that sixty-day period, the
locality “shall approve the application unless it determines
that the application is not covered by this section.” 2 Id.
§ 1.40001(c)(2). If the locality fails to act before the sixty-
day period expires, “the request shall be deemed granted.”
Id.
§ 1.40001(c)(4). However, the grant “does not become effective
until the applicant notifies the [locality] in writing after the
review period has expired . . . that the application has been
deemed granted.”
Id. The rules authorize applicants to bring
claims relating to Section 6409(a) applications in “any court of
competent jurisdiction,” and the Order explains that this
provision permits applicants to seek declaratory judgments
memorializing the grant.
Id. § 1.40001(c)(5); Order ¶¶ 235-36.
2
Of course, the locality may exercise its discretion to
grant the request even if it determines that the facilities
request is not covered by Section 6409(a).
8
The Order acknowledges that Section 6409(a) “does not
expressly provide for a time limit or other procedural
restrictions” on municipal review of applications. Order ¶ 212.
However, the FCC determined that the “deemed granted remedy” was
consistent with Section 6409(a), which states that localities
“may not deny, and shall approve” qualifying applications. Id.
¶ 227. As the FCC explained,
[t]his directive leaves no room for a lengthy and
discretionary approach to reviewing an application
that meets the statutory criteria; once the
application meets these criteria, the law forbids the
State or local government from denying it. . . .
[W]ithholding a decision on an application
indefinitely . . . would be tantamount to denying it,
in contravention of the statute’s pronouncement that
reviewing authorities “may not deny” qualifying
applications.
Id. In light of these concerns, the FCC concluded that “the
text of Section 6409(a) supports adoption of a deemed granted
remedy, which will directly serve the broader goal of promoting
the rapid deployment of wireless infrastructure.”
Id.
B.
The FCC’s Order also undertakes the task of interpreting
several undefined terms. Order § V. Petitioners challenge two
in particular: what is a “base station” that may be modified,
and what does it mean to “substantially change” a facility?
9
First, the FCC defined the term base station to include
“structures other than towers that support or house an antenna,
transceiver, or other associated equipment,” even if the
structure was not built primarily for that purpose. 3 Id. ¶ 21;
47 C.F.R. § 1.4001(b)(1)(iii). In other words, a base station
can be any structure--for example, a building or a utility
pole--that has transmission equipment installed on top.
Second, the FCC has provided a multi-part definition
establishing objective criteria for determining when a proposed
modification “substantially changes the physical dimensions” of
a facility:
for towers outside of public rights-of-way, it
increases the height by more than 20 feet or 10%,
whichever is greater; for those towers in the rights-
of-way and for all base stations, it increases the
height of the tower or base station by more than 10%
or 10 feet, whichever is greater;
for towers outside of public rights-of-way, it
protrudes from the edge of the tower more than twenty
feet, or more than the width of the tower structure at
the level of the appurtenance, whichever is greater;
for those towers in the rights-of-way and for all base
stations, it protrudes from the edge of the structure
more than six feet;
it involves installation of more than the standard
number of new equipment cabinets for the technology
involved, but not to exceed four cabinets;
3By contrast, a tower is a structure whose primary purpose
is supporting communications equipment. 47 C.F.R.
§ 1.40001(b)(9).
10
it entails any excavation or deployment outside the
current site of the tower or base station;
it would defeat the existing concealment elements of
the tower or base station; or
it does not comply with conditions associated with the
prior approval [of the facility] unless the non-
compliance is due to [a change that does not
constitute a “substantial change” under the preceding
standards].
Order ¶ 21. 4 Notwithstanding this definition, the FCC explains
in the Order that localities may continue to condition approval
on compliance with “generally applicable building, structural,
electrical, and safety codes” and other public safety laws. Id.
¶¶ 21, 202. And, of course, localities are permitted to deny
applications if they determine that the proposed modification is
not covered by the FCC’s Order implementing Section 6409(a),
such as a proposal to add five equipment cabinets to a utility
pole.
II.
On appeal, Petitioners contend that the FCC’s Order
violates the Tenth Amendment by compelling the states to grant
permit applications, and they assert that the Order defines
4 These standards are codified at 47 C.F.R. § 1.4001(b)(7).
11
certain statutory terms in a manner inconsistent with the text
of the Act. We consider these arguments in turn.
A.
Petitioners argue that the Order violates the Tenth
Amendment by compelling local and municipal governments to
participate in federal regulatory efforts by approving
infrastructure permits. Petitioners take particular issue with
the “deemed granted” procedure, which they characterize as
“direct regulation of the conduct of the locality’s legislative
power, which the Tenth Amendment prohibits.” Petitioners’ Br.
at 57. We have jurisdiction to review constitutional challenges
to executive agency action pursuant to the Administrative
Procedure Act, 5 U.S.C. § 706(2), which instructs a reviewing
court to set aside agency action that is “contrary to
constitutional right” or otherwise unlawful.
As the Supreme Court discussed in Printz v. United States,
521 U.S. 898 (1997) and New York v. United States,
505 U.S. 144
(1992), the Tenth Amendment forbids the federal government from
requiring states to enforce federal laws. In New York, the
Court explained that
[e]ven where Congress has the authority under the
Constitution to pass laws requiring or prohibiting
certain acts, it lacks the power directly to compel
the States to require or prohibit those acts. . . .
[T]he Commerce Clause, for example, authorizes
12
Congress to regulate interstate commerce directly; it
does not authorize Congress to regulate state
governments’ regulation of interstate commerce.
505 U.S. at 166. Thus, neither Congress nor the FCC may compel
the states to administer federal regulatory programs or pass
legislation. This “anti-commandeering” principle is cabined,
however. For example, a law that conditions federal funding on
state implementation of a federal program does not violate the
Tenth Amendment, unless the inducement of the funding is “so
coercive as to pass the point at which pressure turns into
compulsion.” South Dakota v. Dole,
483 U.S. 203, 211 (1987)
(quotation omitted); Kennedy v. Allera,
612 F.3d 261, 269 (4th
Cir. 2010). Similarly, the Tenth Amendment 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. Verizon Maryland, Inc. v. Global NAPS, Inc.,
377 F.3d 355, 368 (4th Cir. 2004).
Upon review of the FCC’s Order, we readily conclude that
the FCC’s “deemed granted” procedure comports with the Tenth
Amendment. As a practical matter, the Order implementing
Section 6409(a) does not require the states to take any action
at all, because the “deemed granted” remedy obviates the need
for the states to affirmatively approve applications. Instead,
the “deemed granted” procedure allows the applications to be
granted by default if the state does not affirmatively approve
13
them within sixty days. As the FCC points out in its Order, the
point of the “deemed granted” provision is to ensure that
collocation applications are not mired in the type of protracted
approval processes that the Spectrum Act was designed to avoid.
Order ¶ 227. Moreover, the “deemed granted” procedure provides
a remedy to ensure that states do not circumvent statutory
requirements by failing to act upon applications. Id. The
purpose and effect of Section 6409(a) is to bar states from
interfering with the expansion of wireless networks. To achieve
that end, the Act 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.
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. They argue that, even under a default-grant
scenario, it is the state itself that is granting the
application. Thus, according to Petitioners, the Order forces
states to give collocation applications the imprimatur of state
approval. But these applications are granted only by operation
of federal law, and the Order permits applicants to initiate a
declaratory judgment action to seek “some form of judicial
imprimatur” for an application that has been deemed granted.
14
Id. ¶¶ 235-36. Therefore, if the permit “grants” bear the
imprimatur of any authority, it is federal, and not local. For
this reason, Petitioners cannot argue that the Order requires
localities to exercise their legislative power to grant
applications.
Because the Order does not require the states to take any
action whatsoever, the FCC’s rules are a far cry from the
statute struck down in Printz, which required states to run
background checks on handgun purchases. Printz, 521 U.S.
at 904-05. Likewise, the Order bears no resemblance to the
statute in New York, which required states to enact state laws
providing for the disposal of radioactive waste within state
borders or else take title and possession of the waste
themselves. New York,
505 U.S. 151-52. Functionally, what has
occurred here is that the FCC––pursuant to properly delegated
Congressional authority––has preempted state regulation of
wireless towers. That is entirely permissible under our system
of federalism. We therefore conclude that Petitioners’ Tenth
Amendment challenge lacks merit.
B.
Having determined that the FCC’s “deemed granted” procedure
is constitutional, we next address Petitioners’ contention that
15
the FCC has unreasonably defined several terms of the Spectrum
Act.
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). Furthermore,
the FCC’s interpretation of Section 6409(a) is entitled to
deferential review under Chevron, USA, Inc. v. Natural Resources
Defense Council, 467 U.S. 837 (1984). Under Chevron,
“considerable weight should be accorded to an executive
department’s construction of a statutory scheme it is entrusted
to administer.”
Id. at 844. Here, a Chevron analysis is
appropriate because the issue before us involves the FCC’s
interpretation of a statute it is charged with administering.
See 47 U.S.C. § 1403(a).
At step one of the Chevron framework, the court must
determine whether Congress “has directly spoken to the precise
question at issue,” or whether, instead, the terms are
ambiguous. Othi v. Holder, 734 F.3d 259, 265 n.4 (4th Cir.
2013) (quoting
Chevron, 467 U.S. at 842). There is no question
that the terms of the Spectrum Act at issue here are ambiguous. 5
5
Petitioners do not dispute that the term “substantial” is
ambiguous. With respect to the term “base station,” Petitioners
assert, without further explanation, that “while the term ‘base
(Continued)
16
Accordingly, this court’s review is governed by step two of the
Chevron analysis, under which the sole inquiry is whether the
FCC’s interpretation of the terms “is based on a permissible
construction of the statute.” Schafer v. Astrue, 641 F.3d 49,
54 (4th Cir. 2011)(quoting
Chevron, 467 U.S. at 843).
Against this standard, we review Petitioners’ challenge to
the manner in which the FCC has defined the two terms referenced
earlier: “substantially change” and “base station.”
1.
The FCC’s Order provides objective and numerical standards
to establish when an eligible facilities request would
“substantially change the physical dimensions” of the facility.
For example, as we have noted, a change would be substantial if
it entailed any excavation or deployment beyond the current site
of the tower or base station.
Petitioners challenge these standards on several grounds,
but they have a common theme: Petitioners believe that
station’ may be ambiguous in some regards (whether it includes
power supplies located at a site, for example), its ordinary
meaning does not include structures.” Petitioners’ Reply Br.
at 17. Aside from this one sentence, Petitioners have entirely
failed to engage with a Chevron analysis, and thus it is
difficult to determine their position with respect to the
ambiguity of this term. However, it is clear that “base
station” is amenable to multiple interpretations, and thus we
conclude that the term is ambiguous under Chevron step one.
17
municipalities should be able to review each facility
application to determine whether the proposal would represent a
“substantial” modification of the original structure. This
argument, at its core, takes issue with the fact that the
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.
To avoid this conclusion, Petitioners style their argument
as a question of statutory interpretation, claiming that the
term “substantial” is not amenable to the objective standards
the FCC has used, but instead requires a contextual inquiry. We
find this argument to be unpersuasive, given that the provision
at issue addresses “physical dimensions.” It was not
unreasonable for the FCC to supply a strictly numerical
definition of substantiality in this context, because the
physical dimensions of objects are, by their very nature,
18
suitable for regulation through quantifiable standards. 6
Petitioners attempt to draw comparisons to laws employing a
context-specific approach to analyzing work under copyright law,
Petitioners’ Br. at 31, but it should be obvious that rules for
comparing artwork and rules for determining whether the height
of utility poles have been substantially increased need not
employ the same analysis.
Tellingly, Petitioners do not argue that the FCC should
have supplied different objective standards for physical
dimensions. 7 Nor do they argue that the FCC itself should
6
Along these same lines, Petitioners also argue that the
FCC can only interpret the term “dimensions” if it passes
regulations that address all three spatial dimensions of each
facility. Petitioners’ Br. at 33-34. Specifically, according
to Petitioners, the FCC’s interpretation of “substantially” is
unreasonable because the FCC has focused on height and distance
from a building, but not depth. Applying Chevron deference, we
cannot conclude that it was unreasonable for the FCC to define
“dimensions” without addressing in each instance the height,
depth, width, and volume of each object. Nothing in the text of
the statute appears to require such a granular approach.
7
For example, Petitioners point out that utility poles are
typically around 37.5 feet high, and the FCC’s rules categorize
as “insubstantial” a ten-foot increase of such a pole.
Petitioners’ Br. at 38. Petitioners strenuously argue that such
a ten-foot increase would be substantial, yet Petitioners do not
offer any substitute numerical threshold. That is, Petitioners
do not concede that a rule that permitted a five or even a
three-foot increase of utility poles would be insubstantial.
Thus, it appears that Petitioners are mainly challenging the
FCC’s decision to select objective, numerical criteria, instead
of preserving municipal discretion to review each application in
context. In any event, we do not find that permitting a
(Continued)
19
undertake to review each application for substantiality.
Instead, Petitioners repeatedly argue that the FCC should have
permitted municipalities to review applications on a case-by-
case basis. See, e.g., Reply Br. at 8 n.8 (“[T]he rule, to be
rational, should have allowed localities to review an attachment
involving more than a de minimis increase or [sic] width.”).
Thus, 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. This appeal is not the proper forum for
municipal grievances about federal regulations that displace the
discretion of local governments. See Chevron, 467 U.S. at 866
(“When a challenge to an agency construction of a statutory
provision, fairly conceptualized, really centers on the wisdom
of the agency's policy, rather than whether it is a reasonable
choice within a gap left open by Congress, the challenge must
fail.”).
Contrary to Petitioners’ arguments, the FCC’s standards do
incorporate considerations of context, even though they do not
permit municipalities to conduct a contextual review of each
facility. For example, under the FCC’s rules, the threshold for
provider to raise a 37.5 foot pole to a height of 47.5 feet is
an unreasonable interpretation of the term “substantial.”
20
substantiality is lower for modifications that occur in public
rights-of-way. The Order also applies different standards to
base stations than it does to towers (which are usually in more
remote locations). Moreover, Section 6409(a) and the Order
preserve the FCC’s obligations to conduct contextualized
assessments of projects that affect historically or
environmentally sensitive areas, and preserve local authority to
condition approval on compliance with “generally applicable
building, structural, electrical, and safety codes” and other
public safety laws. See Order ¶ 21; 47 U.S.C. § 1455(a)(3)
(“Nothing in [Section 6409(a)(1)] shall be construed to relieve
the Commission from the requirements of the National Historic
Preservation Act or the National Environmental Policy Act of
1969.”). The FCC has also preserved existing concealment
requirements for facilities. Order ¶ 21; 47 C.F.R.
§ 1.40001(b)(7)(v). Thus, the Order does incorporate
considerations of context in its definitions of substantiality. 8
8 Petitioners also argue that the FCC’s concrete standards
are unreasonable, because although the FCC based them upon prior
standards (set forth in “programmatic agreements”) relating to
environmental and historical assessments of collocation
projects, the FCC has neglected to include the discretionary
elements of the prior approach. Petitioners’ Br. at 7-8, 39.
The programmatic agreements set forth standards for determining
when a proposed collocation project would be “substantial” such
that a historical and environmental impact assessment was
required. These standards permitted a complaint procedure,
under which an application with a municipal complaint received
(Continued)
21
Lastly, Petitioners argue that the FCC has erred by
extending the Order’s rules to facilities that localities
initially approved only on the condition that the facility not
be modified in the future. According to Petitioners, any
expansion of these facilities is per se “substantial” and
allowing such facilities to expand runs counter to the purposes
of the Spectrum Act. Petitioners reason that permitting
modifications of these facilities will make the states wary of
granting new permits out of fear that their conditions will not
be honored (and that any grant of a permit may lead to
expansions beyond the state’s control). These are policy
arguments, not statutory interpretation arguments. The
statutory interpretation question is simple. 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
additional review, either before or after the modification was
constructed. Adding more stringent review procedures makes good
sense in this context, where considerations of historical and
environmental impact are at issue. By contrast, it was entirely
reasonable for the FCC not to employ a complaint procedure in
the broader context of general facilities applications.
Regardless, the FCC has represented that municipalities may
avail themselves of the FCC’s general waiver procedure if the
FCC’s 6409(a) rules create outlier cases. See Respondent’s Br.
at 43 (citing 47 C.F.R. § 1.925(b)(3)(i), (ii)). Thus, the
waiver procedure provides a forum for municipal complaints, even
if the procedure is not formally part of the Order.
22
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.
2.
Finally, Petitioners argue that the FCC has erroneously
defined the term “base station.” The FCC has defined “base
station” to mean “the equipment and non-tower supporting
structure at a fixed location that enable Commission-licensed or
authorized wireless communications between user equipment and a
communications network.” Order ¶ 167 (emphasis added).
According to Petitioners, this definition is unreasonable
because the term “base station” refers only to transmission
equipment, and not the structure upon which the equipment sits,
such as a utility pole. Petitioners also argue that defining
“base station” to encompass support structures is unreasonable,
because the FCC has never employed this definition in previous
regulations.
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
23
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.” Given that a
wireless tower is essentially a support structure with
electronic equipment on top, it would be anomalous to interpret
the statute in a manner that permitted the FCC to define towers
to encompass the entire structure, but forbade the FCC from
defining base stations to encompass the entire facility.
Moreover, the term “base station” is a term that must be
defined in the context of its given regulatory scheme. Here,
including support structures in the definition of base stations
is consistent with Congress’s intent to promote the expansion of
wireless networks through collocation. Considering that
collocation often adds electronic equipment that requires
structural enhancement to increase its load-bearing capacity, we
agree with the FCC that collocation would be “conceptually
impossible” if the definition of “base station” did not include
support structures. Order ¶¶ 169, 180.
Petitioners next argue that the FCC’s definition is overly
broad. They claim that by essentially defining a base station
as any structure with an antenna on top, the FCC’s definition of
24
“base station” also encompasses towers. Given that
Section 6409(a) mentions both towers and base stations,
Petitioners argue that the FCC’s interpretation of the statute
renders the term “tower” superfluous. The FCC counters that its
definition of “tower” includes towers that do not currently
support antennas, and that its definition of base stations
expressly excludes towers, thereby rendering the two definitions
distinct. Respondent’s Br. at 48. We agree with the FCC’s
explanation in the Order of the distinction between these terms:
[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.
Id. ¶ 169. Given these definitions, it is difficult to conceive
of a structure that could qualify as both a tower and a base
station. The FCC’s Order clearly provides distinct definitions
for the terms of Section 6409(a), and we find unpersuasive
Petitioners’ arguments to the contrary.
We emphasize that the FCC’s interpretation of “base
station” is entitled to deference under step two of Chevron. It
is not enough for Petitioners to argue that a better definition
25
of “base station” would have excluded support structures.
Instead, Petitioners have the burden of showing that the FCC’s
definition is an unreasonable interpretation of the Spectrum
Act. We conclude that Petitioners have failed to carry their
burden.
III.
For the foregoing reasons, the petition for review is
DENIED.
26
