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Tag Archives: Shulman Rogers Gandal Pordy & Ecker

FCC Revamps AM Detuning Rules

The FCC’s broadcast rules contained several sections dealing with tower placement near AM antennas to protect AM stations from the potential effects of nearby tower construction. However, two prominent rule sections dealing with wireless communications, namely Part 90 (Land Mobile Radio) and Part 24 (Personal Communications Services) entirely lack provisions for protecting AM stations from the possible effects of nearby tower construction.

By its recent Order in MM Docket No. 93-177 (Rel. Aug. 16, 2013), the FCC seeks to harmonize and streamline its rules by establishing a single protection scheme for tower construction and modification near AM tower arrays, and by designating “moment method” modeling as the principal means of determining whether a nearby tower affects an AM station radiation pattern.

The prior rules required licensees and permittees to notify AM stations and take appropriate action when a tower was constructed within a fixed distance of an AM station. This fixed distance approach has now been replaced by one that defines the critical distance from AM stations based on the incumbent’s frequency and the proponent’s tower height. The critical distance for a non-directional AM station is one wavelength at the frequency of the AM station. The critical distance for a directional AM station is 10 wavelengths of the frequency of the AM station up to a maximum distance of three kilometers.

The new rules exempt short towers from the AM proximity analysis requirement because such low-in-stature towers are inefficient radiators that would not generally affect an AM broadcast pattern. The threshold height for new tower erections or major modifications to comply with the requisite AM proximity analysis is 36 electrical degrees for a directional antenna array, and 60 electrical degrees for a non-directional antenna. Three hundred sixty electrical degrees equals one wavelength at the frequency of the AM transmitter.

By this Order, the FCC has harmonized and streamlined the rules regarding tower construction and modification near AM stations, improved the protections afforded AM broadcasters, and reduced the time required to determine the effect of tower construction in the vicinity of AM stations while reducing the costs of such analysis. The adoption of the new rules goes a long way toward mitigating any confusion among affected parties while ensuring consistent protection of AM station operations and providing greater cost certainty for tower owners.

For more information, see the FCC’s Report and Order.

Michael L. Higgs Jr., member of the Shulman Rogers telecom practice, assisted with the reporting.

A Lawyer’s Take on the Court’s Shot Clock Decision

A legal brief on City of Arlington, Texas, et al. v. FCC, et al.,

Higgs

Michael L. Higgs Jr.,

Attorney,

Shulman, Rogers, Gandal, Pordy & Ecker

The holding in the proceeding of City of Arlington, Texas, et al. v. Federal Communications Commission, et al. (11-1545) is that the FCC’s interpretation of the statute in question is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).  That portion of the statute here at issue is codified in 47 U.S.C. §332(c)(7)(B)(ii), and it requires state or local governments to act on wireless siting applications “within a reasonable period of time after the request is duly filed.”  In response to a petition filed by CTIA, the FCC in November of 2009 issued a declaratory ruling that a “reasonable period of time” under the statute is presumptively (but rebut-ably) 90 days to process a collocation application and 150 days to process all other applications.

The majority opinion, authored by Justice Scalia, found that the Chevron line of cases “provides a stable background rule against which Congress can legislate: Statutory ambiguities will be resolved, within the bounds of reasonable interpretation, not by the courts but by the administering agency. . .  Congress knows to speak in plain terms when it wishes to circumscribe, and in capacious terms when it wishes to enlarge, agency discretion.”  Petitioners argued that the Commission lacked authority to interpret the ambiguous provisions of §332(c)(7), and pointed to alleged evidence of congressional intent to withhold from the Commission authority to interpret the limitations in §332(c)(7)(B).  The Court disagreed with Petitioners’ assertion of Congressional intent, and found that the agency settled upon a reasonable interpretation of the statute.  “If the agency’s answer is based on a permissible construction of the statute, that is the end of the matter.”

Another argument advanced in this case contended that application of Chevron was inappropriate because the FCC asserted jurisdiction over matters of traditional state and local concern.  However, the federal statute in question explicitly supplants state authority by requiring that zoning authorities render a decision “within a reasonable period of time.”  Borrowing from the holding in the Iowa Utilities Board case, “This is, at bottom, a debate not about whether the States will be allowed to do their own thing, but about whether it will be the FCC or the federal courts that draw the lines to which they must hew.” 525 U.S. 379, n. 6.

The three Justices in dissent, as authored by Chief Justice Roberts, believe that the federal bureaucracy has, in essence, become so large and powerful that judicial oversight of its jurisdictional reach is imperative.  “A court should not defer to an agency until the court decides, on its own, that the agency is entitled to deference. Courts defer to an agency’s interpretation of law when and because Congress has conferred on the agency interpretive authority over the question at issue. An agency cannot exercise interpretive authority until it has it; the question whether an agency enjoys that authority must be decided by a court, without deference to the agency.”