Sept. 10-With court a challenge to section 6409(a) of February’s Middle Class Tax Relief and Job Creation Act of 2012 probably not too far into the future, an attorney that represents municipalities has written an article claiming that the law that establishes collocation by right may be unconstitutional.
After years of attempting to streamline the local zoning process, the wireless industry hit the jackpot when language was included in the law that said state and location governments shall approve and may not deny collocations at existing wireless towers as long as substantial changes are not made to the physical structure of the facility.
When the bill came out, PCIA President and CEO Mike Fitch hailed it as a “common sense measure” reducing regulatory burdens on the wireless industry.
So why would it be unconstitutional? The answer may lie in the fact that section 6409(a) “blurs the lines of political accountability,” according to John Pestle, partner, Varnum Law Firm, who is co-chair of the firm’s cable and telecom practice group and has represented communities on cell tower zoning and leasing.
“The statute requires local officials to ‘approve’ qualifying collocation applications,” Pestle wrote. “As the Supreme Court has stated, that results in local officials taking the heat for which Congress is really responsible.”
Municipalities that are not complying with 6409(a) may cite the federalism protections of the tenth amendment to the U.S. Constitution, where all powers not specifically designated to the federal government are left to the states.
“Traditionally local zoning has not been given to the U.S. government under the constitution,” said Ken Fellman, vice president, Kissinger & Fellman, which represents municipalities on zoning issues. “There are many U.S. Supreme Court cases indicating that zoning is a local function; therefore, it is subject to state and local law.”
It is only a matter of time before legal precedents are handed down section 6409(a), according to Lucia Chiocchi, partner, Cudy & Fedder attorneys at law. At least one entity is already in process of challenging a municipality over noncompliance with the collocation-by-right law
“If an application for an eligible facility is filed that qualifies under section 6409(a) and the municipality is not conforming to the law then it could be challenged in federal court,” Chiocchi said. “I would expect that it will happen. It is something everyone in the wireless industry has thought about.”
Anthony Gioffre, partner, Cudy & Fedder, believes that when section 6409a is challenged, it will be found to conform with the tenth amendment and be held constitutional.
“Section 6409(a) does not preclude a review by the local municipality and so is not in violation of the tenth amendment,” Gioffre said. “What zoning and land use issues are being raised [in a collocation that does not substantially increase the base station size] that have not already been vetted with the municipality in the original approval process?”
PCIA, which lobbied had to get section 6409a included in the legislation, understandably agrees about the constitutionality of law.
“PCIA has long advocated for collocation and modification by right and section 6409(a) is having an immediate and significant impact on the deployment of wireless facilities,” Fitch said in a short statement. “The courts will find section 6409(a) constitutional as an exercise of Congress’ broad power under the Commerce Clause, among other bases. It is consistent with other congressional actions regulating wireless facilities, such as provisions of the Telecommunications Act of 1996 on wireless facility placement and modification. Those provisions have continually passed constitutional muster, and section 6409a will as well.”
While the wireless industry won a great victory with the passage of section 6409(a), it is obvious that fight to streamline local collocation zoning processes is far from over.