The U.S. Court of Appeals for the Ninth Circuit Wednesday upheld the vast majority of three orders to accelerate the deployment of wireless and wireline broadband. The order is largely “in accord with the congressional directive” and “not otherwise arbitrary, capricious, or contrary to law,” a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit wrote in a 2-1 decision. The FCC’s 2019 order was challenged by a host of local governments. (See full petition ruling.)
In a last-ditch effort on Monday, the collaboration of cities and counties, including Los Angeles, Boston and Portland, tried to block the FCC from overruling their authority to stop cell tower upgrades according to Bloomberg Law. The local governments, in a petition for review filed before the U.S. Court of Appeals for the District of Columbia Circuit on Monday, argued that the FCC “exceeded its statutory authority and acted arbitrarily and capriciously in violation of federal law” Bloomberg Law reported.
FCC Chairman Ajit Pai called the decision “a massive victory.”
“The court rightly affirmed the FCC’s efforts to ensure that infrastructure deployment critical to 5G—a key part of our 5G FAST Plan—is not impeded by exorbitant fees imposed by state and local governments, undue delays in local permitting, and unreasonable barriers to pole access,” said Pai. “The wind is at our backs: With the FCC’s infrastructure policies now ratified by the court, along with path breaking spectrum auctions concluded, ongoing, and to come, America is well-positioned to extend its global lead in 5G and American consumers will benefit from the next generation of wireless technologies and services.”
The Chairman thanked the agency staff “for crafting the order and defending this action against short-sighted efforts by those seeking to obstruct 5G deployment.” He also thanked Commissioner Brendan Carr for his work on wireless infrastructure issues.
The Competitive Carriers Association (CCA ) President and CEO Steven Berry said, “Today’s Ninth Circuit decision is a win for the wireless industry, and more importantly, a win for consumers, who will benefit from more streamlined and efficient deployment of 5G networks. Infrastructure is the backbone of wireless networks, and today’s opinion correctly recognizes that 5G networks will require denser architecture to deliver the services that consumers demand and need. The Court’s decision allows wireless carriers to continue to work with state and local governments to deploy next-generation networks and close the digital divide, while importantly ensuring that outlier regulations do not inhibit deployment,” Berry said. “CCA has long supported a more efficient and streamlined approach to wireless infrastructure deployment, and I thank Chairman Pai for supporting and adopting these infrastructure orders, and particularly applaud Commissioner Carr’s leadership on infrastructure reform. I also commend the FCC’s Office of General Counsel for its vigorous defense of these important orders.”
The Order’s conclusion reads: “ We therefore hold that the FCC’s requirement in the Small Cell Order that aesthetic regulations be “no more burdensome” than regulations applied to other infrastructure deployment is contrary to the controlling statutory provision. See 47 U.S.C. § 332(c)(7)(B)(i)(II). We also hold that the FCC’s requirement that all local aesthetic regulations be “objective” is not adequately explained and is therefore arbitrary and capricious. We therefore GRANT the petitions as to those requirements, VACATE those portions of the rule and REMAND them to the FCC. The petition of Montgomery County is DISMISSED as moot. As to all other challenges, the petitions are DENIED. Each party to bear its own costs.” (Emphasis is the Court’s own.)
Meredith Attwell Baker, President and CEO of CTIA, said: “This is an extremely important victory for American consumers and the nation’s economy. The court got it right, correctly affirming the FCC’s authority to establish reasonable guardrails to guide both the wireless industry and local governments in their shared goals of speeding the deployment of next-generation wireless networks and maintaining U.S. leadership in the emerging 5G economy.”
By Jim Fryer, Inside Towers Managing Editor