March 17, 2015 — The ink is barely dry on the FCC’s order implementing Section 6409(a) and local governments have already sued the agency in several U.S. Courts of Appeals, asking that a federal court review the “Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies” to determine if it is an unconstitutional exercise of power by the federal government over the states.
The FCC Report and Order, which was adopted in October 2014 and published in the Federal Register in January 2015, sought to implement Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 to facilitate wireless collocations deployment.
Jonathan Adelstein, president and CEO of PCIA – the Wireless Infrastructure Association, said that the wireless industry is working with cities, counties, and municipalities to facilitate the implementation of the FCC’s new wireless facility siting regulations.
“The wireless infrastructure industry wants to reduce or eliminate, whenever possible, obstacles to realizing the extraordinary economic and technological potential of wireless broadband. We hope that this lawsuit will not detract from that goal, since PCIA supports the FCC’s rationale behind its Infrastructure Order and its guidelines for implementation,” Adelstein said in a prepared release.
These lawsuits were not entirely unexpected, but the state and local governments had to wait until the FCC published the final rules based on Section 6409(a), because Congress itself cannot be sued when it makes a law.
The municipalities’ case against the FCC, more than likely, will be based on whether the Section 6409(a) phrase “may not deny, and shall approve” (an application for an eligible facilities request) constitutes an unlawful commandeering of states’ rights in violation of defined the 10th Amendment to the Constitution, which defines federalism and states’ reserved rights.
Another cornerstone of the municipal case against Section 6409(a) is the issue of political accountability that has been established in U.S. Supreme Court case law.
“Who is being commanded to make a wireless zoning decision? It is the state and local governments. Who is commanding them? The federal government,” said Jonathan Kramer, a municipal attorney. “If a city council is commanded by Congress and the FCC to approve a cell tower project, it shields those federal officials from political accountability. It is the local elected officials who bear the wrath of their constituents because they have no choice but to approve a project under Section 6409(a).”
Municipalities may also note that Section 332 (c) (7) of the FCC’s regulations protects a local government’s authority over modification of “personal wireless facilities.”