Appeals Court says FCC has authority to streamline tower and small cell deployments

In what is being viewed as a victory for wireless operators and tower companies, the U.S. Court of Appeals for the Fourth Circuit ruled Dec. 18 that the FCC has the authority to make it easier for tower sites, distributed antenna systems (DAS) and small cells to be deployed by preventing local authorities from hindering the permitting review process. Specifically, local municipalities cannot deny requests to modify wireless equipment if it doesn't substantially change the physical footprint of that equipment.

Several cities and counties, including Montgomery County, Md., and others, sued the FCC over its implementation of an October 2014 order in which the commission approved new rules designed to accelerate the deployment of wireless infrastructure.

Specifically, the FCC approved changes to the federal environmental review process to make it easier to deploy small cells as well as collocated equipment. Under the rules, the equipment includes not only gear on buildings and cell towers but also utility poles. The rules also exclude equipment associated with antennas, including wires and cables, from counting against a deployment.

The municipalities said the FCC's order was unconstitutional, arbitrary and capricious, an abuse of discretion and otherwise illegal. They also claimed that the FCC's order violated the 10th Amendment and that it unreasonably defines several terms of the Spectrum Act, according to a Multichannel News report.

The Appeals Court, however, found that the FCC was implementing the statute properly and had the authority to interpret the statute as it did.

Another issue for the cities and counties was the FCC's 60-day shot clock, which says that after a company applies for tower citing approval it will be deemed granted after 60 days.

The court said that the "deemed granted" provision did not violate the 10th Amendment and agreed with the FCC that the statute provides the commission with the authority when it said localities "may not deny, and shall approve" qualified applications. 

The U.S. Court of Appeals decision was lauded by the PCIA-The Wireless Infrastructure Association. In a statement, PCIA President and CEO Jonathan Adelstein said that its members are in favor of the outcome. "We look forward to our continued work with municipalities to meet their constituents' growing demand for wireless data. PCIA has strongly supported the Infrastructure Order and its guidelines for implementation, and congratulate the FCC on this important win in its laudable efforts aimed at increasing broadband deployment," Adelstein said.

For more:
- see this Multichannel News article

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