By Amanda Whorton

On December 18, 2015, the Fourth Circuit issued a published opinion in the civil case Montgomery County v. FCC. The court denied Montgomery County, Maryland’s (“County”) petition for review of the Federal Communications Commission’s (“FCC”) October 17, 2014 Order (“Order”).

The Spectrum Act

Congress passed the Spectrum Act as part of the Middle Class Tax Relief and Job Creation Act in 2012 as a way to encourage the growth of a national telecommunications network. Specifically at issue in the case is § 6409(a) (codified at 47 U.S.C. § 1455(a)) of the Act, which addresses wireless providers’ efforts to grow their networks by changing the electronic equipment that exists on top of wireless towers. Section 6409(a)(1) states that, “a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.”

Together with § 6409(a)(2), these provisions forbid State and local authorities from using their zoning authority to deny wireless providers’ requests to modify equipment as long as the modification does not constitute a substantial change.

FCC’s Order

Congress gave the FCC the authority to implement the Spectrum Act and in implementing § 6409, the FCC issued their October 17, 2014 Order.

The County brought this administrative appeal against the FCC, arguing that the Order violates the Tenth Amendment and unreasonably defines the terms “base station” and “substantially change.”

This Order established a “deemed granted remedy,” which means that when a locality receives a modification request, they have 60 days to review the application if they so choose. They must approve the application unless they determine that it does not fall under the section. If the locality does not act within that 60-day limit, the request is deemed granted. The FCC desired to promote the “rapid deployment of wireless infrastructure.”

The FCC defined the term “base station” as “structures other than towers that support or house an antenna, transceiver, or other associated equipment.” This means that “base station” could conceivably constitute any structure. It further gave objective and numerical standards to establish when a modification request would “substantially change” the dimensions of the facility.

FCC’s Order Does Not Violate the Tenth Amendment

The County alleges that the Order violates the Tenth Amendment by making States and localities participate in federal efforts to grant permit applications. The Tenth Amendment forbids the federal government to require states to enforce federal laws. The Fourth Circuit held that the “deemed granted remedy” comports with the Tenth Amendment because it practically does not require states to take any action. States do not have to affirmatively approve applications, as an application will be deemed granted within the 60-day time period.

FCC is Subject to Chevron Deference

The Fourth Circuit subjected the FCC Order to deferential treatment under Chevron v. Natural Resources Defense Council. Step one of the analysis involves a court determining whether Congress has directly spoken on the issue or whether the terms are ambiguous. The Fourth Circuit found that the terms of the Spectrum Act are ambiguous and so they proceeded to step two of the analysis, which involves whether the FCC’s interpretation of the terms “base station” and “substantially change” are based on a “permissible construction of the statute.”

The County argued that localities should be able to review each application to determine what constitutes “substantial” modification. The Fourth Circuit found that the FCC came up with objective and concrete standards in order to eliminate the need for review by municipalities. The FCC limited the analysis to whether the proposed modification falls within the statute in order to promote the quick growth of wireless infrastructure. The Fourth Circuit held that under Chevron, the FCC’s interpretation of “substantially change” is reasonable.

The County alleged that the term “base station” should refer only to transmission equipment and not to the structure itself. However, the Fourth Circuit held that, again under Chevron, the FCC’s definition of “base station” is reasonable because it is consistent with Congress’ intent to promote the expansion of networks.

The Fourth Circuit Denied Petition for Review

The Fourth Circuit held that the FCC’s Order was fully compliant with the Tenth Amendment and reasonably interpreted the terms of § 6409(a) of the Spectrum Act. The court therefore denied the County’s petition for review.