Limitations of FCC Order 18-133

CAMPANELLI & ASSOCIATES, P.C.

ATTORNEYS AND COUNSELORS AT LAW

Andrew J. Campanelli
Kaitlin M Kennedy
Samuele Riva
1757 Merrick Avenue, Suite 204
Merrick, New York 11566
Telephone 516-746-1600
Facsimile 516-746-2611
 

April 9, 2021
 

Re: Analysis of FCC 18-133 and its Effect Upon the General Authority of State and Local Governments to Regulate the Placement of Wireless Facilities—as was Explicitly Preserved to Them Under 47 U.S.C. 332(c)(7)(A) of The Telecommunications Act of 1996

1. INTRODUCTION

Contrary to what the wireless industry is proffering, the FCC’s recent attempt in FCC Order 18-133 to “reinterpret” the existing “effective prohibition” language of the TCA does not affect the Second Circuit’s in Willoth1 and its progeny.

This means that when a local government in New York is entertaining a zoning application, wherein an applicant seeks one or more zoning approvals for the installation of a new cell tower, small cell, or Disributed Antenna System (DAS) , an applicant cannot claim that a denial of their application would violate the “effective prohibition” provision of the Telecommunications Act of 1996 (the “TCA”)2 unless they can prove before the local zoning board that both:

  • (i) a significant gap exists in a carrier’s wireless coverage, and
  • (ii) its proposed facility is the least intrusive means to close that gap.3

Apparently, harboring the view that Congress has been lax for not having amended the TCA to ‘keep up with” changing technology,4 the FCC has now tried (for the second time) to “reinterpret’ the language of the TCA to say something which it does not say.5

In this second ill-advised attempt, the FCC issued a new “reinterpretation” of the “effective prohibition” language of the TCA. It now posits that applicants are no longer required to demonstrate the existence of a “significant gap” in personal wireless services, or that their proposed installation is the least intrusive means of remedying such gap, any time they seek to invoke a claim that a denial of their zoning application would constitute an effective prohibition in violation of the federal Act.

Instead, the FCC has now attempted to “reinterpret” the language of the TCA to mean that an applicant can prove a denial of their application would constitute an effective prohibition under the TCA if they merely assert that they “need” their new proposed facility to either: (a) improve an existing service, or (b) provide a new one.

Aside from the fact that this creative, new interpretation by the FCC would not only all-but destroy the careful balancing of interests that Congress created when it enacted the TCA, but it has also already been ruled by at least two (2) federal courts in New York that:

(a) United States District Courts sitting in New York are bound to follow the States Court of Appeals’ interpretation of the “effective prohibition” language of the TCA, and not the FCC’s attempt to reinterpret the very same language within the TCA,6 and

(b) just because Congress has not updated the TCA to keep up with changing technology, it is not up to the FCC to construe the TCA to say something it does not say. 7

As such, the FCC’s attempt to fabricate this new meaning for the “effective prohibition” language of the TCA should have no effect upon the powers of local governments to deny applications for new facilities, where the applicant has failed to prove that its new desired cell tower, small cell or DAS system is necessary to remedy one or more significant gaps in personal wireless service, and is the least intrusive means of remedying such gap or gaps.

II. THE ROLE OF LOCAL GOVERNMENTS IN FACE OF THE DENSE 4G/5G ROLLOUT

Across the entire United States, local governments, communities, and homeowners face a never-before-seen plague of wireless installations being proposed and installed as part of the much-heralded “Race to 5G” rollout. 8

Daily, homeowners awake to find that a cell tower, small cell, DAS Node, or other wireless installation has been installed right in front of their front door, or barely a few feet from a bedroom window, while others are finding that a wireless facility has been built on the front lawn of their home.9

For such homeowners and communities, their first and only line of defense against the irresponsible placement of such facilities are their local zoning authorities, who employ their local zoning powers and ordinances to protect them against same.

In enacting local zoning ordinances to protect their communities, the drafters of such ordinances have taken into account the rulings of federal courts through which local governments have come to understand what they can and cannot do and to draft and enforce their local zoning codes in a manner that does not run afoul of the constraints which the TCA provisions impose upon them.

In an effort to strip local governments of their powers to protect their citizens and communities against the irresponsible placement of wireless facilities, the wireless industry has apparently influenced the FCC to render a “new” “interpretative” order, within which the FCC purports to “reject” more than two (2) decades of rulings of the United States Circuit Courts of and to create an entirely “new” interpretation of what constitutes an “effective prohibition” of personal wireless services under the TCA.

Significantly, this “new” reinterpretation of the effective prohibition language of the TCA is not based upon any change in the language of the TCA, but only upon the FCC’s apparent opinion that Congress has been lax in not having amended the TCA “to keep up ” with changing technology-

If, as the FCC now claims, an applicant could invoke an “effective prohibition” claim by merely asserting that it “needs” the new facility to either “improve an existing service” or to “provide a new service,” this “new interpretation” would all-but destroy the entire “balancing of interests” which the United States Congress built into the TCA when enacting it.

The FCC’s deliberate indifference to the intent of Congress in creating such a balancing of interests is glaringly apparent when one considers that, within its Report and Order, the FCC refers to the interests, concerns, and submissions of a well-known wireless infrastructure development company — namely, Crown Castle — a total of forty-seven (47) times.10 At the same time, it does not even mention the terms “balancing of interests,” “interests of local governments,” “adverse impacts,” or ‘ ‘local government concerns” even once, within the entire 116-page, single-spaced, Report and Order.

III. HISTORY OF THE TCA AND ITS APPLICATION

As has been repeatedly cited by federal courts, when Congress enacted the TCA, it sought to balance the interests in promoting wireless technology with local zoning authorities’ rights to maintain the integrity of land-use rules.

*See 47 U.S.C. 332(c)(7)(A): *

“Except as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.”

See H.R.Conf.Rcp. No. 104— 458, 104th cong., 2d Sess. 207-08 (1996), reprinted in 1996 U.S.C.C.A.N. 10, 222:

“The conference creates a new section 704 which prevents Commission preemption of local and State land use decisions and preserves the authority of State and local governments over mining and land use matters except in the limited circumstances set forth in the conference agreement.”.

In enacting the TCA, Congress intentionally effectuated this balancing of interests by first explicitly preserving to state and local governments the “General Authority” to regulate the placement, construction, and modification of personal wireless service facilities, 11 and thereafter imposing five (5) finite procedural requirements and substantive limitations upon that general authority. 12

To the extent that an applicant might seek to challenge a local zoning determination based upon a claim that a local government violated one or more of the provisions within 332(c)(7)(B) of the TCA, Congress ensured that it would be the federal courts that would interpret the provisions of the TCA to determine such claims. Congress did so by expressly authorizing federal court review of local zoning decision impacting the provision of wireless communication services under the plain language of the statute. 13

The five (5) finite constraints which Congress essentially imposed upon local governments include three (3) procedural requirements and two (2) substantive provisions.

The limited procedural requirements are that:

  • (a) any adverse decision against a personal wireless services provider be in writing,14
  • (b) the decision must be supported by “substantial evidence15 , and
  • (c) must be rendered within a reasonable time. 16

Concerning its substantive provisions, the TCA provides that:

  • (a) state or local government agencies “shall not prohibit or have the effect of prohibiting the provision of personal wireless services” 17 and
  • (b) state or local government agencies “shall not unreasonably discriminate among providers of functionally equivalent services.” 18

See H.R.Conf.Rcp. No. 104— 458, 104th cong., 2d Sess. 207-08 (1996), reprinted in 1996 U.S.C.C.A.N. 10, 222:

“When utilizing the term ‘‘functionally equivalent services’’ the conferees are referring only to personal wireless services as defined in this section that directly compete against one another.”

See 47 U.S.C. 332(c)(7)(C) Definitions:

“(i) the term ‘personal wireless services’ means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services;”

Almost immediately after the enactment of the TCA in 1996, site developers and wireless carriers began filing federal lawsuits claiming that virtually any denial of any type of zoning application constituted an “effective prohibition” under 332(c)(7)(B)(i)(II), and thus the TCA.

In only two (2) years, such litigation began reaching the United States Circuit Courts of Appeals across the Country, which were then constrained to interpret the meaning of the effective prohibition language within the TCA and judicially determine what an “effective prohibition” under the Act.

Across the entire nation, the United States Circuit Courts of Appeals ruled that to prove that a denial of a zoning application for a wireless facility would constitute an “effective prohibition” in violation of the TCA, an applicant is required to show that an identified wireless carrier suffers from “a significant gap” in its personal wireless services coverage.

Also, Circuit Courts have ruled that an applicant must additionally prove either that its proposed new wireless facility is

  • (a) the least intrusive means of remedying such significant gap,
  • (b) the only viable means of remedying such significant gap, or
  • (c) that there are no feasible alternative locations for a facility with which to remedy the significant gap.

For the past twenty-four (24) years, federal courts across the United States have invariably applied this interpretation of the TCA’s effective prohibition language. Local governments have been enacting and enforcing local zoning ordinances based upon such federal court precedential rulings. 19

IV. THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT INTERPRETS THE EFFECTIVE PROHIBITION PROVISION OF THE TCA

In Willoth,20 the United States Court of Appeals for the Second Circuit interpreted the meaning of the “effective prohibition” language of the TCA. That interpretation has been uniformly applied by the federal courts sitting in New York for more than twenty (20) years.

Under the Second Circuit’s decision in Willoth, to establish that a denial of its zoning application constitutes an “effective prohibition” that violated the TCA, a wireless provider or its site developer must prove that it had established before a local zoning authority that its proposed installation was “the least intrusive means” of closing “a significant gap” in the applicant’s personal wireless services, and the zoning authority still denied its application.

Thus, the applicant could only force a local government to permit it to install a non-zoning-code-compliant wireless facility if it could prove both that it suffered from “a significant gap” in its personal wireless services and that its installation was ‘ ‘the least intrusive means” of remedying that gap.21

Faced with a claim by a site developer, Crown Castle,22 that federal courts are now constrained to apply the FCC’s new interpretation of what constitutes an effective prohibition, a United States District Court in New York has already rejected that argument and ruled that federal courts are bound to follow the existing decisions of the United States Court of Appeals for the Circuit, which has already interpreted the meaning of the “effective prohibition” language of the TCA.

In Crown Castle NG East LLC v. Town of Hempstead, the plaintiff (a site developer) argued that Districts Courts are now bound to follow the FCC’ s “new” interpretation of the effective prohibition language of the TCA, as opposed to the existing precedential decisions of the United States Court of Appeals for the Second Circuit.

In positing same, both Crown Castle and the defendant Town requested that the District Court certify the question of which decision was binding upon the district court for an interlocutory appeal to the United States Court of Appeals for the Second Circuit. In denying that request, the Court opined:

  • (a) that Crown Castle’s suggestion that the District Court should reject the interpretation issued by the Court of Appeals because the FCC has now rejected it “misperceives the role of the FCC in interpreting the law,” and
  • (b) that both parties had “failed to meaningfully refute the controlling effect of Second Circuit precedent.”23

The Court proceeded to rule that:

Because the Second Circuit has opined as to the meaning of the Statute, there can be no substantial grounds for difference of opinion as to the binding nature of that interpretation. 24

Alternatively stated, the Court ruled that in an action between a zoning applicant, and a local government that denied its application, United States District Courts sitting in New York are bound to follow the interpretation of the Second Circuit, and not the FCC, as to what constitutes an “effective prohibition” under the TCA.

DISCLAIMER

This Memorandum contains an analysis of whether United States District Courts sitting in New York would be bound by FCC 18-133 or the existing and conflicting decisions rendered by United States Courts within the Second Circuit. This Memorandum is not to provide legal advice regarding any case or matter.

Very truly yours,
 

Andrew J. Campanelli

  1. Sprint Spectrum L.P. v. Willoth. 176 F.3d 630, 643 (1999).  ↩
  2. 47 U .S.C. §332(c)(7)(B)(i)(II) provides that local governments cannot prohibit or have the effect of prohibiting the provision ofpersonal wireless services.  ↩
  3. See Orange County-Poughkeepsie Ltd. P’ship v.Town of East Fishkill, 84 F.Supp.3d 274, 296—97 (S.D.N.Y. 2015) (quoting T-Mobile Ne. LLC v. Town of Ramapo. 701 F.Supp.2d 446, 456 (S.D.N.Y. 2009).  ↩
  4. As is laid bare within its language, the FCC adopted its new interpretative Report and Order (FCC 18-133) not due to any change in the language of the TCA, but because, in the FCC’s words:

    “B. The Need for Commission Action.
    (23). In response to the opportunities presented by offering new wireless services, and the problems facing providers that seek to deploy networks to do so, we find it necessary and appropriate to exercise our authority to interpret the Act and clarib’ the preemptive scope that Congress intended. (FCC 18-133 p. 9, ¶23).

    ↩

  5. See Clear Wireless LLC v. Bldg. Dep’t of Vill. of Lynnbrook, 2012 WL 826749, at *9 (E.D.N.Y. Mar. 8, 2012) (“The Court agrees with the observation by the court in Arcadia Towers that the law has not kept up with changes in technology. Under such a circumstance it is not up to the FCC to construe the TCA to say something it does not say, nor up to the Court to find broadband communication encompassed by the law”). ↩
  6. Crown Castle NG East LLC v. Town ofHempstead, 2019 WL 5188923 (E.D.N.Y. Oct 15, 2019).  ↩
  7. Clear Wireless LLC v. Bldg. Dep’t of Vill, of Lynbrook. 2012 WL 826749 (E.D.N.Y. Mar. 8, 2012).  ↩
  8. Several site development companies have indicated that they seek to install 4G/5G wireless facilities as closely as every 100-300 feet in residential neighborhoods.  ↩
  9. See, ABC News Video “More 5G Woes: Poles installed feet away from Pensacola’s resident’s front door” Thursday January 2 ISt 2021, https://weartv.com/news/local/more-5g-woes-pole-installed-feet-away-from-residents-front-door.  ↩
  10. See FCC 18-133 atp. 9, ‘125; p. 10, 1125; p. 10 nn. 48, 49 (3 times), 55 11, 126 (twice); p. 11 n. 61; p. 15 nn. 78 (3 times), 79; p. 16 nn. 79, 80, 82; p. 18 nn. 86 (twice), 87; p. 19 nn. 91, 92; p. 20 nn. 91, 95, 96; p. 21 nn. 97, 100; p. 30 n. 159 (twice); p, 32n. 172; p. 33 nn. 181 (twice), 182; p. 34, 63; p. 34 nn. 183, 189; p. 36 nn. 200, 201; p. 44 n. 242; p. 46 n. 248; p. 47 n. 252; p. 49 n. 264; p. 56 n. 302; p. 59 n. 324; p. 60 n. 330 (twice); p. 66, n. 366 (twice); p. 73, 139; p. 73 n. 412; p. 75 n. 430 (twice); p. 76 n. 433 (twice); and Appendix B at p. 83.  ↩
  11. See 47 47 U .S.C. §332(c)(7)(A) ↩
  12. See 47 47 U .S.C. §332(c)(7)(B) ↩
  13. See 47 47 U .S.C. §332(c)(7)(B)(v)
     ↩
  14. SEE 47 U .S.C. §332(c)(7)(B)(iii)
     ↩
  15. See Supra note 14.  ↩
  16. See 47 U .S.C. §332(c)(7)(B)(ii)  ↩
  17. see 47 U .S.C. §332(c)(7)(B)(i)(II)  ↩
  18. see 47 U .S.C. §332(c)(7)(B)(i)(I)  ↩
  19. Some of such federal case law, by Circuits, is as follows:

    FIRST CIRCUIT

    Omnipoint Holdings v. City of Cranston, 586 F.3d 38, 48 (1st a carrier claims an individual denial is an effective prohibition, virtually all circuits require courts to (1) find a “significant gap” in coverage exists in an area and (2) consider whether alternatives to the carrier’s proposed solution to that gap mean that there is no effective prohibition.)

    SECOND CIRCUIT

    Sprint Spectrum L.P. v. Willoth. 176 F.3d 630, 643 (2d Cir. Act’s ban on prohibiting personal wireless services precludes denying an application for a facility that is the least intrusive means for closing a significant gap in a remote user’s ability to reach a cell site that provides access to land-lines”); Up State Tower Co., LLC v. Town of Southport, N.Y., 412 F.supp.3d 270 (W.D.N.Y. other words, “a plaintiffwill prevail on an effective prohibition claim ‘if it shows both that a significant gap exists in wireless coverage and that its proposed facility is the least intrusive means to close that gap. ‘ “)

    THIRD CIRCUIT

    Omnipoint Communications Enterprises. L.P. v. Zoning Hearing Bd. ofEasttown Tp., 331 F.3d 386, 390 (3rd Cir.2003) (“a provider whose application has been denied must show both that its facility will fill an existing significant gap in the ability of remote users to access the national telephone network and that the manner in which it proposes to fill that gap is the least intrusive on the values that the denial sought to serve.”)

    FOURTH CIRCUIT

    Cellco Partnership v. Board of Supervisors of Fairfax County, VA, 140 F.Supp3d 548 (2015K’ ‘To prevail on a prohibition of service claim, a wireless carrier must show either ‘ ‘that a local governing body has a general policy that essentially guarantees rejection of all wireless facility applications,” or that “denial of an application for one particular site is ‘tantamount’ to a general prohibition of service… Under the latter theory, a plaintiff must demonstrate both ‘ ‘a legally cognizable deficit in coverage amounting to an absence of coverage” and a lack of “reasonable alternative sites to provide wverage.'”‘)

    SIXTH CIRCUIT

    T-Mobile Cent.. LLC v. Charter Tp. of West Bloomfield, 691 F.3d 794, 807 (2012) (“The Second and Third Circuits require the provider to show that “the manner in which it proposes to fill the significant gap in service is the least intrusive on the values that the denial sought to serve. The First and Seventh Circuits, by contrast, require a showing that there are “no alternative sites which would solve the problem. The Ninth Circuit adopted the “least intrusive” standard. Judge Cudahy found the precedents from the First and Seventh Circuit exacting.” The Second and Third Circuit’s “least intrusive” standard “allows for a meaningful comparison of alternative sites before the siting application process is needlessly repeated. We agree with Judge Cudahy and adopt the “least intrusive” standard from the Second, Third, and Ninth Circuits”)(internal quotations and citations omitted).

    SEVENTH CIRCUIT

    Voicestream Minneapolis, Inc. v. St. Croix County, 342 F.3d 818, 834-35 (7th First Circuit has held that the provider carries the ‘heavy’ burden to show ‘not just that this application has been rejected but that further reasonable efforts are so likely to be fruitless that it is a waste of time even to try.’ Under this standards thc provider must show that its ‘existing application is the only feasible plan’ and that ‘there are no other potential solutions to the purported problem. We agree with the First Circuit’s formulation of the statutory requirement and hold that, so long as the service provider has not investigated thoroughly the possibility of other viable altematives, the denial of an individual permit does not ‘prohibit or have the effect of prohibiting the provision of personal wireless services”‘).

    NINTH CIRCUIT

    T-Mobile USA. Inc. v. City of Anacortes, 572 F.3d 987, 995 (9th MetroPCS we recognized that a locality could violate the TCA’s effective prohibition clause if it prevented a wireless provider from closing a “significant gap” in service coverage. Such a claim generally “involves a two-pronged analysis (1) the showing of a ‘significant gap’ in service coverage and (2) some inquiry into the feasibility of alternative facilities or site. Once the provider has demonstrated the requisite gap, the issue becomes what showing a provider must make in support of its proposed means of closing the gap. In MetroPCS we adopted the “least intrusive means” standard used by the Second and Third Circuits. This standard requires that the provider “show that the manner in which it to fill the significant gap in services is the least intrusive on the values that the denial sought to quotations and citations omitted).

    TENTH CIRCUIT

    AT&T Mobility Services, LLC v. Vill. of Corrales, 642 Fed.Appx 886, 899 (10th Cir.2016) (“The sole questions, then, are: (1) whether Corrales’s conduct has “the effect of prohibiting the provision of personal wireless services” and, if it does, (2) whether AT&Ts plan constitutes “the least intrusive” means of remedying the service gap at issue).

    ↩

  20. See supra note 1.  ↩
  21. Again, that being the standard applied by federal courts in the Second, Third and Ninth Federal Circuits. See Willoth supra and supra note 19.  ↩
  22. Significantly, Crown Castle is the very same site developer whose interests were referenced by the FCC forty- seven (47) times in the FCC’s new order “reinterpreting the effective prohibition language of the TCA, see supra note 10.  ↩
  23. Crown Castle NG East LLC v. Town of Hempstead, 2019 5188923, at (E.D.N.Y. Oct. 15, 2019).  ↩
  24. Seg supra note 23.  ↩