CTIA and PCIA are teaming up to fight a lawsuit by Montgomery County, Maryland, that seeks to toss out rules the FCC adopted last fall intended to speed up the deployment of wireless infrastructure.
In a joint filing with the U.S. Court of Appeals for the Fourth Circuit, the wireless industry's trade group and the main wireless infrastructure trade association said that the FCC was within its legal authority to change some legal definitions and make deploying network gear more streamlined. At issue is whether the FCC's interpretation of a statue is entitled to deference usually granted to federal agencies in interpreting laws in order to make rules. The lawsuits also argue over whether the rules on infrastructure are constitutional exercises of federal power.
In October 2014 the FCC issued an order designed to speed up the rollout of both small cells and distributed antennas systems (DAS), as well as antennas and other network gear from multiple carriers collocated on the same cell site. In the order, the FCC approved changes to the federal environmental review process that makes it easier to deploy small cells as well as collocated equipment. Under the new rules, that 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. Additionally, the FCC's new rules make clear that its "shot clock" for towers also applies to small cells and DAS.
Most importantly, in terms of the lawsuit, the FCC rules clarify definitions of language in Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, which was enacted in February 2012. Section 6409(a) prohibits state and local governments from denying 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. In fact, the law says municipalities must approve infrastructure deployments that meet that definition.
A crucial aspect of the new rules is that they adopt a 60-day period of review before collocation applications can be granted. However, if a municipality has not acted by the end of the 60-day period, building can go ahead on day 61.
As CTIA and PCIA note in their court filing, the FCC created new rules that interpreted and changed the definitions of "substantially change" and "base station," and established timeframes after which facilities applications that had not been acted upon would be "deemed granted."
Montgomery County wants the FCC's actions set aside. CTIA and PCIA argued against that course of action, noting that the FCC's "authoritative interpretations of undefined statutory terms provide certainty, and the 'deemed granted' remedy ensures that reluctant State and local jurisdictions cannot thwart federal law through endless delay." Further, the lobbying groups argued that the FCC was within its rights and should be allowed to interpret terms that the law left undefined.
CTIA and PCIA wrote in their filing that Section 6409(a) and the infrastructure order are "plainly constitutional."
"Section 6409(a) offers State and local governments a constitutionally valid choice between 'regulating [wireless facilities modifications] according to federal standards or having state law pre-empted by federal regulation,'" they wrote. The order "supports that choice because it gives effect to Section 6409(a) in a manner that does not require action on the part of State or local governments. State or local officials are not 'required to approve or prohibit anything.'"
- see this release
- see this court filing (PDF)
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