Not All ‘Small Cells' Created Equal, Say Municipalities in Wireless Siting Rules Suit

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By Lydia Beyoud

April 27 — A case making its way through the U.S. Court of Appeals for the Fourth Circuit on wireless facilities siting could have major impact on the nation's top wireless providers and manufacturers and the millions of small-cell and distributed antenna systems that are expected to be deployed by 2018.

The rules could potentially result in a Pandora's box of newly deployed wireless facilities equipment being set up without regard to architectural context, zoning, or general obtrusiveness , according to a petitioners' opening brief filed late April 24 seeking a petition for review (Montgomery Cnty., Md. v. U.S.).4th Cir., No. 15-1240, opening brief, 4/24/15

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 over a report and order unanimously approved Oct. 17 that is intended to make it faster, easier and less expensive for wireless companies to modify existing facilities and deploy new, small wireless structures.

To spur broadband deployment, the rules 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.

CTIA—The Wireless Association and PCIA—The Wireless Infrastructure Association are intervenors in the case.

Major Impact

A decision by the U.S. Court of Appeals for the Fourth Circuit will have a significant impact on the industry, because the number of small cell and DAS installations is 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.

The petitioners said the FCC's rules violated 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.

They 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.

Further, DAS installations can vary significantly in size, including in one example, a 65-foot pole located directly in front of a home in Montgomery County. While some of the local governments commenting in the rulemaking dockets said they had approved more than 90 percent of all collocation applications, they still want to be able to use their discretion in approving new facilities that take into account whether an installation that would be insubstantial in an industrial zone might negatively impact a residential or historic district, according to the brief.

“A rule that allowed any existing collocated facility to be enlarged, regardless of context, would defeat those efforts,” the brief said.

The FCC's rules use an “absolutist” test to define the substantiality of a change to an existing structure, generally only accounting for whether a facility is in the public right of way or not.

Further, the petitions said a local agency's grant of a “small cell” installation on a historic structure with the understanding that the equipment would indeed be “small” and unobtrusive could open the door to an applicant demanding approval of a substantially larger, obtrusive installation.

“The effect of the FCC's Order is actually the reverse of what the agency desires: rather than develop ordinances that will facilitate placement of small facilities, localities must now act on the assumption that any facility permitted could substantially expand in size,” the brief said.

States' Rights

The petitioners also said the rules violated 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.

Land use decisions are a core function of local government, according to the brief's citation to the decision in Gardiner v. City of Baltimore, 969 F.2d 63, 67 (4th Cir. 1992).

“While the law compels approval of certain projects, it also necessarily preserves local and state authority and circumscribes FCC authority for applications that fall outside of Section 6409,” the brief said.

Therefore, the provision should be read narrowly to apply only in cases where a tower or base station has already been approved, and where new changes are genuinely insubstantial in light of the facilities and their location, the brief said.

The petitioners are represented by Best Best & Krieger LLP's Washington office.

Respondent and intervenor briefs are due June 9.

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 petitioners' brief is at http://www.bloomberglaw.com/public/document/Montgomery_County_Maryland_v_City_of_Burlingame_California_Docket.