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FCC Defends 2020 Wireless Infrastructure Declaratory Ruling

A June 2020 wireless infrastructure declaratory ruling merely clarified existing rules, the FCC told a federal appeals court Wednesday. The 9th U.S. Circuit Court of Appeals last month resumed a long-paused case on a League of California Cities challenge to the FCC decision clarifying shot clock and substantial change rules (see 2302070041). The FCC said in a brief it made no procedural errors and reasonably interpreted its rules (case 20-71765).

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Section 6409(a) of the Spectrum Act preempts local review of wireless facility modifications that don't substantially change a tower or base station's physical dimensions. The FCC's 2020 declaratory ruling “clarified aspects of its [2014] rules implementing the Spectrum Act in a manner that removes uncertainty and carries out Congress’s goal of removing impediments that localities have posed to wireless deployment,” said the FCC: The declaratory ruling didn’t amend or adopt new rules. Because the Commission’s interpretations are reasonable readings of its existing rules that embody the agency’s fair and considered judgment as to their meaning, they should be upheld.”

The commission disagreed with localities that it adopted a legislative rule. "An interpretation 'amends' a legislative rule 'only if it is inconsistent' with that rule,” it said. But here, each clarification “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,” the FCC said. “None is a new rule." The FCC "routinely uses declaratory rulings to clarify unclear statutory and regulatory terms,” it said. Even if declaratory rulings weren't "generally exempt from notice and comment," the wireless infrastructure ruling's determinations "are at most interpretive rules ... which likewise are not required to be preceded by [Administrative Procedures Act (APA)] notice and comment.”

Even if the agency did adopt a legislative rule, "any procedural error would be harmless” because localities still got a chance to weigh in, it said. "The Commission sought comment in the Federal Register on the [Wireless Infrastructure Association] and CTIA petitions, which asked the Commission to clarify all the terms ultimately addressed in the Declaratory Ruling,” it said. "More than 70 municipalities filed comments and letters, including on the draft Declaratory Ruling.” Petitioners fail to state what additional comment they would have made, the FCC added: "No point would be served by affording the Localities a further opportunity for comment."

Local governments challenge "advance readings that are contrary to the language of the rules, and assert expansive local authority that is inconsistent with Section 6409(a),” said the FCC. "On the merits, the Commission’s interpretations of its rules are reasonable and reasonably explained.” That includes clarifying what amounts to a substantial change with regard to height changes, equipment cabinet additions, concealment elements and conditions, it said.

The FCC "reasonably interpreted the phrase 'submits a request'" in the part of the law establishing a 60-day shot clock "to mean taking the first step in a locality’s process for reviewing applications under Section 6409(a), plus submission of documentation to show that a proposed modification qualifies for such treatment,” it said. "To permit other pre-application procedures to toll the deadline, even though they might have nothing to do with the determination of whether the application would effectuate a substantial change ... is inconsistent with the text of the rule and would undermine the goals of the shot clock and Congress’s purposes in promoting wireless deployment.”

"Wireless communications depend on a network of antennas and equipment placed on structures including towers, buildings, and utility poles,” the FCC wrote. “Local governments often use their zoning and land use authority to delay or block the installation of such equipment because of perceived aesthetic and other impacts." Congress, the agency said, has long sought to reduce such barriers.