Cities Challenge FCC Infrastructure Order

The order purports only to offer clarity, the Monday pleading said: “The Commission’s new rules and significant changes to its existing rules unlawfully preempt local and state government authority promulgated without response to the arguments advanced by Petitioners in the record.” The League of California Cities, League of Oregon Cities and California's Glendora, Rancho Palos Verdes and Torrance filed. The order is “arbitrary, capricious, and an abuse of discretion within the meaning of the Administrative Procedure Act,” the cities said.

“We’re very pleased that this decision will accelerate the build out of 5G, especially in rural America,” emailed Commissioner Brendan Carr: “We’re confident in our legal authority.”

Industry officials expected the challenge. “Major FCC orders are so often appealed these days, so this was expected,” WIA President Jonathan Adelstein told us. The order “rests on powerful authority provided by Congress in Section 6409 that was tested and upheld in a strong, authoritative appellate court decision five years ago,” he said of the Spectrum Act. “It is a much-needed clarification and update of the FCC’s existing rules, which is clearly within the FCC’s authority.”

“The FCC got it right” with the order, “which reasonably interprets rules adopted on a bipartisan basis,” said Scott Bergmann, CTIA senior vice president-regulatory affairs.

Nobody’s saying the agency can’t change its mind about the 2014 rules, but the agency has to follow APA, said Telecom Law Firm’s Tripp May, who filed for the California and Oregon cities. Rather than adopt an NPRM and take comments like in the previous proceeding, this time the commission ruled by adjudication, he said. The agency failed to “draw a straight line” between the facts and its action or explain why it was rejecting the facts that supported the previous rules, he said. "Some of the cities are incensed” because they are “stretched to the max already,” added May.

May didn’t see other challenges filed by Monday’s judicial lottery deadline, unlike on previous infrastructure order appeals when multiple local groups and industry members filed in multiple courts, the lawyer said. It takes time and votes for cities to join litigation, he said. May expects other local jurisdictions to intervene in support, he said. Cities haven’t decided whether to file an FCC petition for recon, due the second week of July, he said.

Cities Watching

Other municipalities are closely watching the potential case play out.

Maryland’s Montgomery County supports the challenge, is “reviewing our options and will make a determination what further action we’re going to take,” said ultraMontgomery Program Director Mitsuko Herrera in an interview. “In the middle of an unprecedented pandemic, I think it’s fairly appalling that the FCC is pushing this through as fast as it can, and they have no basis.” Permits continue to be processed and local governments have been working hard to ensure broadband access so schools and government can function remotely, she said.

COVID-19 doesn’t support increasing capacity in congested areas with small cells, since people are supposed to be social distancing, noted Debbie Spielberg, special assistant to Montgomery County Executive Marc Elrich (D). Montgomery County is putting “enormous effort and energy” into managing COVID-19. “We’re not stopping work on other things, but we have certainly paused a number of things” because the county wants to ensure public participation “is not shortchanged.”

Telecom lawyer Ken Fellman said many localities are likely mulling supporting the suit as intervenors, including his municipal clients. The commission “went beyond mere clarification,” exceeding the limits of a declaratory proceeding, he said. “Is deployment so constrained and are the troubles ... so bad that it would cause the FCC to force this on local governments now?”

“The FCC’s authority has to be looked at in the context of the statute, which applies only to modifications that do not ‘substantially change the physical dimensions’ of the underlying structure,” emailed NATOA General Counsel Nancy Werner. “While there seems to be an effort to imply the declaratory ruling only addresses small changes to large towers, the rules likely will force local governments to allow big changes to wireless deployments large and small, on far off towers,” poles and structures in residential neighborhoods and downtown cores, she said. The regulator says it's "not a substantial change to allow an uncapped number of additional equipment cabinets to be added to a wireless facility outside residents’ front doors, or height increases that make a facility previously concealed by a tree line visible well above that line,” Werner said.

The FCC’s expedited timeline "effectively prevented local governments currently serving on the front lines of our nation’s response to the COVID pandemic the opportunity to offer any meaningful feedback on the challenges,” said Arthur Scott, National Association of Counties associate legislative director. NACO and others asked to delay a vote, he said: “Unfortunately, that request was denied by the FCC at a time when local governments need a strong yet flexible federal partner the most.”

Michigan locality group Protec hopes many intervene in support, said General Counsel Mike Watza. Michigan cities might not file due to tight funding and with many bogged down by COVID-19 response and “the volume and rapid pace of FCC anti-local community activity the last three years,” he noted. Industry “would do well to consider very carefully how their ruthless exploitation of the current COVID-19 crisis and unprecedented Trumpian war on local community neighborhoods and values, may leave them in a perilous position in just a few short months, should current polling prove correct with respect to the outcome of November elections.”