FCC Faces Sharp Questioning in 9th Circuit Wireless Siting Oral Argument

The FCC was in the hot seat Tuesday at the 9th U.S. Circuit Court of Appeals, which heard oral argument in League of California Cities v. FCC (case 20-71765) on a challenge to a wireless siting declaratory ruling approved in June 2020 under former Chairman Ajit Pai (see 2006090060).

The ruling was intended to speed the collocation of wireless infrastructure on existing cell towers and was approved over dissents by Commissioners Jessica Rosenworcel and Geoffrey Starks. Both Democrats were concerned about the FCC’s process in approving the ruling. The ruling clarifies rules approved in 2014 (see 1410170048).

“We’re here today because a federal agency is operating outside of what is required of it, outside of the bounds of law,” said Cheryl Leanza, who represents cities in the case. The FCC also operated outside its expertise, which it acknowledged in the ruling, she said.

“How do we know that Congress didn’t intend for them to rewrite zoning and permitting laws around the country?” Leanza asked: “First, the FCC says it didn’t have expertise. … There’s no evidence of them analyzing the law, understanding what permitting rules typically require, discussing what they typically look like.”

Judge Sidney Thomas pressed FCC attorney Rachel May on several aspects of the ruling, including on the logic of its rules for antenna height and requirements for separation from other facilities. “Why is separation, which is basically blank space, more important than either antenna height or the total height,” Thomas asked. “Why is it so relevant that it controls?”

The 2012 Spectrum Act encourages collocation and “it’s not a substantial change to add an antenna, but as a practical matter, antennas need to be separated from other antennas in order to work,” May said.

Thomas also pressed May on the cabinet restrictions in the ruling. “The rules do not allow unlimited growth in cabinets -- there are six substantial change criteria, and it does not take a cumulative limit on the number of cabinets to address growth in the physical dimensions … when you have other provisions,” May said. The cabinet rules aren’t meaningless as plaintiffs charge, she said.

Thomas asked why the FCC didn’t address concerns raised through a rulemaking process, rather than issuing a declaratory ruling. “What’s the harm” in seeking additional comment before making a decision, he asked. Thomas questioned whether provisions in the declaratory ruling on a shot clock for zoning decisions would also have been better made through a rulemaking.

“The commission was trying to resolve interpretive issues that had arisen in an expeditious fashion,” May responded: “The commission saw this as an interpretive issue.” The FCC didn’t amend or adopt new rules and addressed the problem of local governments imposing rules that allowed them to “condition their way” out of following Section 6409 of the Spectrum Act, designed to streamline collocation of wireless facilities, May said.

“The purpose of Section 6409 was to allow modifications to existing wireless facilities to take place without going through onerous, local zoning authority -- that kind of discretionary review that takes an enormous amount of time and an enormous amount of resources,” said Joshua Turner, representing CTIA, which intervened on behalf of the FCC. Congress and the FCC recognized that wireless networks “are dynamic -- they change,” he said.

Thomas also questioned Turner on the separation issue. “I just am having trouble understanding why, when the rule is concerned with height, why the separation is essentially the determining factor” on whether a new antenna is a “substantial modification,” Thomas said.

“The rule is primarily concerned with height” but there’s an exception, Turner replied. “If the height restriction would be so severe that it would not allow the collocation of another antenna we’re going to allow the collocation … because that’s what Section 6409 envisions,” he said: “That’s the direction from Congress -- make sure that these facilities can get built and make sure that they can be collocated on existing facilities. The commission was simply carrying out the direction of Congress.”

“We have an FCC that’s operating outside the bounds of the statute, outside the bounds of what you could do with a declaratory ruling and outside the bounds of the” Administrative Procedure Act, Leanza said in closing comments. Judges Carlos Bea and Holly Thomas also heard the case but asked few questions.