UPDATE Local governments and municipal associations, led by the League of California Cities, made their case against the declaratory ruling concerning Section 6409(a) of the Spectrum Act last week before the U.S. Court of Appeals for the 9th Circuit in San Francisco. Attorneys argued that the FCC was operating “outside the bounds of the law” in their appeal.
“When we look at an agency that’s acting with respect to the reinterpretation of its codified rules, we’re in a serious situation because the agency is acting as the legislature and the judiciary in one,” said Cheryl A. Leanza, Best Best & Krieger LLP, who was representing the City of Boston.
The FCC responded that the rule clarifications were not new rules requiring a Notice of Proposed Rulemaking and comment. “Each of the Commission’s clarifications is reasonable and consistent with the text of the rules, which promote Congress’s purpose of removing impediments to the rapid deployment of much-needed wireless infrastructure. None is a new rule,” the FCC said in a brief.
In 2020, the FCC issued a Declaratory Ruling concerning the Implementation of Section 6409(a) of the Spectrum Act of 2012, which had established exceptions to local zoning rules where the municipality would be required to approve a collocation request. In other words, if a carrier did not propose a “substantial change” to the telecom facility, in terms of height and the number of additional cabinets that could be added, the locality would be required to approve it, Inside Towers reported. Additionally, the FCC set up a shot clock for these collocations that reduced the approval time to 60 days.
The municipalities took issue with changes in the declaratory ruling concerning what would commence the shot clock, what constitutes a substantial change to the telecom structure in terms of height and number of cabinets, and what constitutes a change that would defeat a concealment element.
The declaratory rule includes changes, not clarifications, that adversely affect both a city’s local aesthetic protections and the local government’s ability to process wireless applications, according to Robert May III, Telecom Law Firm, who argued on behalf of the League of California Cities.
“The FCC completed a declaratory ruling that materially changed the rules that they adopted to implement Section 6409(a) of the Spectrum Act,” May said. “The issue is that under the Administrative Procedures Act, federal agencies have to basically follow the same procedure to change rules as they did to adopt the rules. In other words, they needed to go through two rounds of public comment.”
So, in a nutshell, the court must decide if the FCC, in its declaratory ruling, made substantial changes to its rules regarding substantial changes under Section 6409(a), which should have been pursued in a Notice of Proposed Rulemaking.
By J. Sharpe Smith, Inside Towers Technology Editor
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