A federal appeals court mostly upheld an FCC 2020 declaratory ruling that clarified a 2014 order that adopted streamlined processing for tower modifications. The 2014 order concerned tower mods that qualified for eligible facilities requests that a locality must approve within 60 days.
However the court decided the FCC’s interpretation of concealment elements was invalid and inconsistent with the 2014 order, and therefore not allowed. The agency had explained that a change of a qualifying concealment element (designed to make a wireless tower look like a tree) would only be considered a substantial change if it no longer looks like a tree. The panel concluded that the FCC’s clarification was a legislative rule masquerading as an interpretive rule, according to Womble Bond Dickinson’s Rural Spectrum Scanner.
The court was responding to a Petition for Review filed by local governments. A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit considered whether the FCC’s clarifications were interpretive and allowed, or legislative and not allowed without notice and opportunity for comment, according to Womble Bond Dickinson’s Rural Spectrum Scanner.
The court upheld other FCC interpretations concerning eligible facilities requests. They included when the shot clock begins and how to determine whether adding an antenna or equipment cabinet is a substantial change.
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