FCC, Montgomery County, Maryland, Heard at Oral Argument
RICHMOND -- Counsel representing Montgomery County, Maryland, and the FCC faced few questions about the FCC’s wireless facility siting rules from a three-judge panel during oral argument at the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, Wednesday. Judge Allyson Duncan asked repeated clarifying questions about whether it’s possible to come up with a standard for new collocation facilities that applies across the board. She also said under the “deemed granted” statute in its 2014 order, the FCC is basically saying, “If you don’t act in accordance with the regulation, we’ll do it for you.” Judges Roger Gregory and Henry Floyd were mostly quiet during the arguments, mainly clarifying details about whether the parties were talking about modifications to existing facilities or if there was more at play in the case.
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The case involves how the FCC interpreted Section 6409(a) of the Spectrum Act in an October 2014 order designed to speed deployment of distributed antenna systems, small cells and other wireless facilities. The main argument is that the order’s wireless tower siting rules are unconstitutional and misinterpret the 2012 Spectrum Act, said Montgomery County lawyer Joseph Van Eaton, of law firm Best Best. Van Eaton said the FCC didn’t take into account that there are other dimensions to the facilities, and it should also have considered public safety concerns: “Everyone knows that this rulemaking would have to be overturned if the FCC ignored all dimensions.”
An example referenced multiple times was a case in California in which a telco followed the FCC’s October 2014 tower siting order. The company built its tower and it tipped over and started a wildfire, Van Eaton said. If the wireless company were required to go through the state’s regulatory process, the wildfire likely wouldn’t have happened, he said. The FCC also redefined what a “base station” is, including telling Congress what it means, which Van Eaton said goes beyond the commission’s authority. The change in definition was like “hiding an elephant in a mouse hole,” he said.
Splitting oral argument time on the FCC’s side were Maureen Flood, representing the FCC, and Megan Brown, Wiley Rein, representing CTIA and PCIA. Flood said if a wireless company’s application is questionable for a municipality, the municipality's governing body can ignore the company’s application and it will be deemed granted. The commission also only defined the height and width limits for equipment because it believed there wasn’t another dimension to be concerned with, Flood said. If there's a concern about a site, someone can make a complaint and require an investigation, she said.
Section 6409(a) prohibits state and local governments from denying any eligible facility's 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.
Montgomery County previously asked the FCC to “significantly revise” the siting rules because the current rules would “lead to a wide range of serious problems in local communities that it is impossible to believe Congress could have intended." The FCC voted unanimously for the rules, as part of the commission’s implementation of the 2012 Spectrum Act. The FCC’s rule change also adopts a 60-day period of review before collocation applications can be granted. But if a municipality hasn't acted by the end of the 60-day period, construction can start on day 61 (see 1410170048).