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No reason to be paranoid, but chances are the (electronic) voices you hear, and the words you are reading, come from a device (Android, iPhone or other) that relies on broadband technology. Depending on where you are, and when (and who else is using the network when you are), your broadband access might be spotty because capacity and connections in some communities far outpace those in others.
Just before the New Year, the United States Court of Appeals for the Fourth Circuit upheld the Federal Communications Commission’s (FCC) implementing rules aimed at improving access to wireless broadband everywhere – from dense urban and suburban communities to sparse rural communities where the landscape is marked by mile after mile of open spaces, and utility poles.
One of the primary roles of the FCC is to encourage deployment of broadband services throughout the United States, facilitate competition and inspire service connectivity even (or especially) in hard-to-reach areas. The Fourth Circuit recently confirmed this FCC role in a challenge brought by a coalition of local authorities (led by Montgomery County, Maryland) questioning whether certain provisions of the FCC’s implementation of the 2012 Spectrum Act usurps states’ powers in violation of the Tenth Amendment. Montgomery County v. FCC, Case No. 15-1240, 2015 WL 9261375 (4th Cir. Dec. 18, 2015).
For years the FCC has sought to ease regulatory burdens associated with broadband facilities deployment, and Congress has taken steps to further encourage the FCC – and broadband deployments. In 2012, Congress adopted the Spectrum Act as part of the Middle Class Tax Relief and Job Creation Act. Recognizing that obtaining siting approval from local municipalities can be part of an expensive and time-consuming barrier to development, Section 6409(a) of the Spectrum Act seeks to streamline that process by requiring state and local governments to grant requests for modifications to “existing wireless towers or base station[s if the modification would] not substantially change the physical dimensions of such tower or base station.” 47 U.S.C. §1455(a). But what counts as a substantial modification, and what qualifies as a “base station” is not defined in the statute – so the FCC set out to define the term.
The FCC did so by developing and regulations placing a 60-day time limit for localities to act on a facility-modification request. If the local government does not act within that timeframe, the regulation requires that he request is to be deemed granted. The FCC reasoned that indefinitely withholding a decision on an application is tantamount to denying it, thereby circumventing the statutory requirement that applications meeting the statutory requirements shall be approved. 47 C.F.R. § 1.40001(c).
The FCC also established objective criteria with discrete limits on the changes to the physical dimensions that would qualify as not “substantially” changing the facility. 47 C.F.R. § 1.40001(b). It also defined the term “base station” to include “structures other than towers that support or house an antenna, transceiver, or other associated equipment,” even if was not built primarily for that purpose. 47 C.F.R. § 1.40001(b).
Municipal governments took the FCC to court, to enforce their view that the Commission’s action is an impermissible curtailment of local discretion over wireless facility management. The municipal governments asserted that compelling them to approve infrastructure permits violated the 10th Amendment prohibition on requiring states to enforce federal laws.
The Fourth Circuit swiftly dismissed this argument, noting that the “deemed granted” procedure actually allows applications to be granted by default by operation of federal law, without any action by a state at all. Finding that the purpose and effect of the statute is to “bar states from interfering with the expansion of wireless networks” preempting “local regulation of collocations and …[denial of] facility modification applications that meet certain standards,” the Court found that the FCC did nothing more than implement the statute, a central purpose of the agency.
The municipal governments also argued that the FCC’s definition of the terms “substantially” and “base station” were arbitrary and capricious. Fundamentally, the municipal governments were concerned that the FCC’s implementation would remove their discretion over certain facility siting requests. The Court concurred that the regulations forbid localities from denying qualifying applications, but acknowledged that that was precisely Congress’s intent. The Court easily affirmed the FCC’s concrete, non-discretionary standards as entirely consistent with the purpose of the Spectrum Act. The Court further emphasized that the FCC’s interpretation of the statute is entitled to Chevron deference as it is an expert agency charged with enforcing the Spectrum Act and that its interpretation of ambiguous terms such as “substantially” and “base station” are reasonable.
For now anyway, federal law requires that facility-modification requests meeting these certain criteria be approved summarily. And it would appear that additional and speedier deployments will continue—at least on existing structures.
