Wireless Industry Targets ‘NIMBYism' in Challenges to FCC Wireless Siting Rules

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By Lydia Beyoud

June 10 — The wireless industry is fighting back against what it characterizes as a “not in my backyard” stance by a number of communities in California, Maryland and Texas that will limit broadband deployment, according to an intervenors' brief filed June 9 in a federal court.

CTIA—The Wireless Association and PCIA—The Wireless Infrastructure Association jointly filed in support of the Federal Communications Commission in a case concerning the agency's rules intended to make it faster, easier and less expensive for wireless companies to modify existing facilities and deploy millions of small-cell and distributed antenna systems nationwide.

The FCC's wireless infrastructure order, issued Oct. 21, 2014, provided a “deemed granted” remedy to the wireless industry, if local jurisdictions fail to approve wireless siting requests that don't “substantially” change an existing structure within 60 days. The FCC's rulemaking was conducted in part in response to intentional delays by several state and local governments in approving infrastructure projects. The rules took effect April 8.

Montgomery County, Md., as well as six cities in California and Texas and the Texas Coalition of Cities for Utility Issues, plus two California municipalities acting as intervenors, are suing the Federal Communications Commission on the grounds that its order violates congressional intent under Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 (Pub. L. 112-96) by failing to take into account the applicability of context and local land use realities in the siting of new facilities.

CTIA and PCIA in turn say the communities's petition for review in the Fourth Circuit Court of Appeals is just the latest in a series of obstructionist measures to prevent small changes to existing wireless facilities, and itself violates congressional intent to promote the deployment of high speed broadband and other wireless technologies.

Industry Impact

The court's decision in the case could have a major impact on the wireless industry, as small cell and DAS installations are expected to grow exponentially in the next few years. As many as 37 million small cell installations could be in place by 2017, and up to 16 million distributed antenna system (DAS) nodes could be deployed by 2018, according to the FCC.

PCIA estimated during the proceeding that wireless infrastructure investments over a five-year period would create 1.3 million jobs and stimulate up to $1.2 trillion in economic development.

“These delays are an inconvenience to consumers and expensive for providers, but most importantly, they are costly to our national economy,” the groups said. Local authorities have often given in to what the First Circuit has dubbed the “NIMBY” (not in my backyard) problem, where property owners “resist new facilities in populated areas because they find wireless facilities unsightly and worry facilities lower property values; yet as cell phone consumers these same people want quality service where they are most,” the trade associations said, quoting from Omnipoint Holdings, Inc. v. City of Cranston.

Chevron Deference

The trade associations further argued that the FCC is due Chevron deference in its ability to interpret ambiguous statutory terms. The groups faulted the petitioners and amici for ignoring “the Chevron framework entirely” in asking the court to set aside its interpretation of Section 6409(a) as arbitrary and capricious under the Administrative Procedure Act.

The petitioners in turn expressed concerns in an April 24 brief in which they said the rules (WT Docket No. 13-238) could result in a Pandora's box of newly deployed wireless facilities equipment being set up without regard to architectural context, zoning, or general obtrusiveness.

The petitioners also said the rules don't adequately account for the variability in size in the next generation of small wireless infrastructure equipment. While small cell devices may be as small as a deck of cards, they may also have large equipment cabinets the size of a small refrigerator, the brief said.

The wireless groups countered that the rules do take context into account by differentiating between towers and base stations and between facilities in public rights of way and those that are not. “They recognize different thresholds for what size increases constitute a substantial change, depending on the type of structure and where it is located,” CTIA and PCIA said.

The trade groups listed a number of examples in which local governments had prevented companies from replacing like-for-like antennas or replacing existing antennas with those that were five inches longer as examples of municipal obstructionism, and the specific behavior that Congress sought to counter in Section 6409(a).

Constitutional Claims

Local governments have said the FCC's order violates the Tenth Amendment of the U.S. Constitution by imposing requirements on state and local governments and oversteps Congress's intent in establishing Section 6409.

But the section instead offers state and local governments “a constitutionally valid choice” between regulating wireless facilities modifications according to federal standards or having state law preempted by federal regulation, the wireless groups said.

“Section 6409(a)—and by extension the Infrastructure Order—impose limitations on state and local authority similar to those that courts have routinely upheld,” the said. “The Infrastructure Order’s “deemed granted” remedy supports that choice because it gives effect to Section 6409(a) in a manner that does not require action on the part of State or local governments. State or local officials are not “‘required to approve or prohibit anything',” they said.

To contact the reporter on this story: Lydia Beyoud in Washington at lbeyoud@bna.com

To contact the editor responsible for this story: Heather Rothman at hrothman@bna.com

Text of the brief is at http://www.bloomberglaw.com/public/document/City_of_Bellevue_Washington_v_City_of_Burlingame_California_Docke.