WTF Shot Clocks?

FCC’s Shot Clocks for WTFs Are Presumptive and Rebbutable

Key Definitions

  • WTF :: Wireless Telecommunications Facilities of any size or any “G”
  • Personal Wireless Service = Title II-regulated wireless telecommunications service = the ability to make an outdoor wireless phone call
  • Presumptive :: based on a legal inference as to the existence or truth of a fact not certainly known that is drawn from the known or proved existence of some other fact
  • Inference :: the act of passing from one proposition, statement, or judgment considered as true to another whose truth is believed to follow from that of the former

From 2013 U.S. Supreme Court ruling in City of Arlington, Texas v FCC:

“[The 1996-TCA’s] §332(c)(7)(B)(ii) requires state and local zoning authorities to take prompt action on siting applications for wireless facilities.

  • In July 2008, the CTIA — The Wireless Association, which represents wireless service providers, petitioned the FCC to clarify the meaning of §332(c)(7)(B)(ii)’s requirement that zoning authorities act on siting requests ‘within a reasonable period of time.’
  • In November 2009, the Commission, relying on its broad statutory authority to implement the provisions of the Communications Act, issued a declaratory ruling responding to CTIA’s petition. In re Petition for Declaratory Ruling, 24 FCC Rcd. 13994, 14001. The Commission found that the “record evidence demonstrates that unreasonable delays in the personal wireless service facility siting process have obstructed the provision of wireless services” and that such delays “impede the promotion of advanced services and competition that Congress deemed critical in the Telecommunications Act of 1996.” Id., at 14006, 14008. A “reasonable period of time” under §332(c)(7)(B)(ii), the Commission determined, is presumptively (but rebuttably) 90 days to process a collocation application (that is, an application to place a new antenna on an existing tower) and 150 days to process all other applications. Id., at 14005 . . ..

“Relying on Circuit precedent, the Court of Appeals held that the Chevron framework applied to the threshold question whether the FCC possessed statutory authority to adopt the 90- and 150-day timeframes. 668 F. 3d 229, 248 (CA5 2012) (citing Texas v. United States, 497 F. 3d 491, 501 (CA5 2007)). Applying Chevron, the Court of Appeals found “§332(c)(7)(A)’s effect on the FCC’s authority to administer §332(c)(7)(B)’s limitations ambiguous,” 668 F. 3d, at 250, and held that “the FCC’s interpretation of its statutory authority” was a permissible construction of the statute. Id., at 254. On the merits, the court upheld the presumptive 90- and 150-day deadlines as a “permissible construction of §332(c)(7)(B)(ii) and (v) . . . entitled to Chevron deference.” Id., at 256.

“. . . for agencies charged with administering congressional statutes . . . their power to act and how they are to act is authoritatively prescribed by Congress, so that when they [agencies] act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires. Because the question — whether framed as an incorrect application of agency authority or an assertion of authority not conferred — is always whether the agency has gone beyond what Congress has permitted it to do, there is no principled basis for carving out some arbitrary subset of such claims as jurisdictional . . . ”
judges should not waste their time in the mental acrobatics needed to decide whether an agency’s interpretation of a statutory provision is “jurisdictional” or “nonjurisdictional.” Once those labels are sheared away, it becomes clear that the question in every case is, simply, whether the statutory text forecloses the agency’s assertion of authority, or not. See H. Edwards & L. Elliott, Federal Standards of Review 146 (2007) (“In practice, it does not appear to matter whether delegated authority is viewed as a threshold inquiry.”). The federal judge as haruspex, sifting the entrails of vast statutory schemes to divine whether a particular agency interpretation qualifies as “jurisdictional,” is not engaged in reasoned decision-making . . .”

“The fox-in-the-henhouse syndrome is to be avoided not by establishing an arbitrary and undefinable category of agency decision-making that is accorded no deference, but by taking seriously, and applying rigorously, in all cases, statutory limits on agencies’ authority.

  1. Where Congress has established a clear line, the agency cannot go beyond it; and
  2. Where Congress has established an ambiguous line, the agency can go no further than the ambiguity will fairly allow.

As one can read here, the following 150 words or so of wireless industry lobbyist-generated pork was slipped into H.R.3630 – the Middle Class Tax Relief and Job Creation Act of 2012 . . . do you see any reference to a shot clock anywhere in the 1996-TCA or the 2012 Spectrum Act? Nope.

47 U.S. Code § 1455 (a) Facility modifications

“(1) In general. Notwithstanding section 704 of the Telecommunications Act of 1996 (Public Law 104–104) or any other provision of law, a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.

(2) Eligible facilities request. For purposes of this subsection, the term “eligible facilities request” means any request for modification of an existing wireless tower or base station that involves—

  • (A) collocation of new transmission equipment;
  • (B) removal of transmission equipment; or
  • (C) replacement of transmission equipment.

(3) Applicability of environmental laws. Nothing in paragraph (1) shall be construed to relieve the Commission from the requirements of the National Historic Preservation Act [1] or the National Environmental Policy Act of 1969.”

Title 47 U.S. Code § 1455, above, is not so problematic. The problem is what the FCC did in response to implement these 150 or so words. The FCC wrote hundreds of pages spread over several FCC Orders to conduct FCC overreach to benefit the Wireless industry. The question is whether or not these actions are consistent with the congressional intent of the 1996-TCA, which has a conference report recognized by the U.S. Supreme Court as federal law. The 1996-TCA Conference Report says the following:

“”It is not the intent of this provision to give preferential treatment to the personal wireless service industry in the processing of requests, or to subject their requests to any but the generally applicable time frames for zoning decisions.”

If the generally applicable time frames for zoning decisions in locality A is 360 days (a factual assessment), then where, in the law, does it say the FCC has the authority to force that locality to go any faster? It turns out that much of Title 47 CFR § 1.60001 (Wireless Facility Modifications) is NOT consistent with the language of the 1996-TCA, the 1996-TCA Conference Report or the 2012-Spectrum Act, leaving such matters ripe for challenge because the 1996-TCA Conference Report is where Congress established a clear line and the FCC cannot go beyond it.

Congressional Intent of the 1996-TCA

The 1996-TCA Conference Report was recognized by the U.S. Supreme Court in its 2005 Ruling in City of Rancho v. Abrams, 544 U.S. 113, 125 S. Ct. 1453 (2005) as the definitive source of congressional intent of the 1996-TCA. In the placement, construction and modification of personal wireless facilities, the U.S. follows a system of cooperative federalism: whatever preemption that is not claimed at the federal level or at the state level falls to the local government level.

Pre-emption law is black letter law: such law must be read without interpretation or expansion. One can only go by what is printed in black ink in the law. The 1996-TCA and the 1996-TCA Conference Report are very clear on the narrowness of Federal preemption: only partial preemption of local authority for three matters regarding personal wireless facilities: placement, construction and modification.

Conclusion: the authority to restrict the operations of personal wireless facilities (PWF) was never preempted from local zoning authority. In addition, when local governments pass such local laws to restrict the operations of Wireless Telecommunications Facilities (WTFs), they are not constrained by the federal preemption over placement, construction and modification decisions — meaning that for operations decisions, local governments are not constrained by U.S. Code Title 47 § 332 (c)(7)(B)(iv):

U.S. Code Title 47 § 332 (c)(7)(B)(iv):

“No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission’s regulations concerning such emissions.

Therefore, unless there are specific citations to case law that state otherwise, local governments can make decisions regarding the operations of personal wireless service facilities as they wish and, when they do, local governments are not barred from considering any environmental effects or adverse health effects caused by RF microwave radiation exposures. Furthermore, local governments do not have to consider the FCC’s regulations concerning “radio frequency emissions” in their deliberations of whether or not to grant an operational permit to a Wireless Carrier seeking to operate a WTF within local governments’ respective jurisdictions.

The relevant case law rulings for any local government are U.S. Supreme Court rulings, U.S. Courts of Appeals rulings from the D.C. Circuit or from the geographic circuit that has jurisdiction over the locality (one of 11 such geographic circuits). In matters of wireless telecommunications service, interference matters and public safety matters are separate, as the two matters address different goals. Local governments can pass local laws restricting the operations of Wireless Telecommunications Facilities (WTFs) for the express purpose of delivering actual public safety to their residents. It is the local government’s duty to provide public safety to their residents. The FCC’s opinion on the matter is simply immaterial because the FCC has no jurisdiction over local zoning laws or local public safety laws.

Key Statements Made in the 1996-TCA Conference Report

In 2005, the U.S. Supreme Court gave 1996-TCA Conference Report the status of federal law in that same U.S. Supreme Court ruling in City of Rancho v. Abrams, 544 U.S. 113, 125 S. Ct. 1453 (2005). The following words, quoted directly from the conference report, clearly establish the congressional intent of the 1996-TCA:

  1. It is not the intent of the 1996-TCA to place 50-foot Wireless Telecommunications Facilities (WTFs) in residential zones.
  2. It is not the intent of the 1996-TCA to impose shot clocks on the placment, construction or modification of WTFs.
  3. It is not the intent of the 1996-TCA to give preferential treatment to the personal wireless service industry.

Direct quotes from the 1996-TCA Conference report follow:

“The conference agreement 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 zoning and land use matters except in the limited circumstances set forth in the conference agreement . . .

the courts shall have exclusive jurisdiction over all other disputes arising under this section. Any pending Commission rulemaking concerning the preemption of local zoning authority over the placement, construction or modification of CMS facilities should be terminated . . .”

“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 . . .”

The conferees also intend that the phrase ‘‘unreasonably discriminate among providers of functionally equivalent services’’ will provide localities with the flexibility to treat facilities that create different visual, aesthetic, or safety concerns differently to the extent permitted under generally applicable zoning requirements even if those facilities provide functionally equivalent services . . . ”

“the conferees do not intend that if a State or local government grants a permit in a commercial district, it must also grant a permit for a competitor’s 50-foot tower in a residential district . . .

“It is not the intent of this provision to give preferential treatment to the personal wireless service industry in the processing of requests, or to subject their requests to any but the generally applicable time frames for zoning decisions”

Key Language from City of Rancho v. Abrams, 544 U.S. 113, 125 S. Ct. 1453 (2005)

Justice Breyer, With Whom Justice O’Connor, Justice Souter, and Justice Ginsburg Join, concurring:

“I agree with the Court . . . The statute books are too many, federal laws too diverse, and their purposes too complex for any legal formula to provide more than general guidance. Cf. Gonzaga Univ. v. Doe, 536 U.S. 273, 291 (2002) (BREYER, J, concurring in judgment). The Court today provides general guidance in the form of an “ordinary inference” that when Congress creates a specific judicial remedy, it does so to the exclusion of § 1983. Ante, at 122. I would add that context, not just literal text, will often lead a court to Congress’ intent in respect to a particular statute. Cf. ibid., (referring to “implicit” textual indications).

Context here, for example, makes clear that Congress saw a national problem, namely, an “inconsistent and, at times, conflicting patchwork” of state and local siting requirements, which threatened “the deployment” of a national wireless communication system. H. R. Rep. No. 104-204, pt. 1, p. 94 (1995).

Congress initially considered a single national solution, namely, a Federal Communications Commission wireless tower siting policy that would pre-empt state and local authority. Ibid.; see also H. R. Conf. Rep. No. 104-458, p. 207 (1996). But Congress ultimately rejected the national approach and substituted a system based on cooperative federalism. Id., at 207-208. State and local authorities would remain free to make siting decisions. They would do so, however, subject to minimum federal standards — both substantive and procedural — as well as federal judicial review.

The statute requires local zoning boards, for example, to address permit applications “within a reasonable period of time”; the boards must maintain a “written record” and give reasons for denials “in writing.” 47 U. S. C. §§ 332(c)(7)(B)(ii), (iii).

Those “adversely affected” by “final action” of a state or local government (including their “failure to act”) may obtain judicial review provided they file their review action within 30 days. § 332(c)(7)(B)(v). The reviewing court must “hear and decide such action on an expedited basis.” Ibid. And the court must determine, among other things, whether a zoning board’s decision denying a permit is supported by “substantial evidence.” § 332(c)(7)(B)(iii).

This procedural and judicial review scheme resembles that governing many federal agency decisions. See H. R. Conf. Rep. No. 104-458, at 208 (“The phrase `substantial evidence contained in a written record’ is the traditional standard used for judicial review of agency actions”).

Section 1983 suits, however, differ considerably from ordinary review of agency action. The former involve plenary judicial evaluation of asserted rights deprivations; the latter involves deferential consideration of matters within an agency’s expertise. And, in my view, to permit § 1983 action here would undermine the compromise — between purely federal and purely local siting policies — that the statute reflects.

For these reasons, and for those set forth by the Court, I agree that Congress, in this statute, intended its judicial remedy as an exclusive remedy. In particular, Congress intended that remedy to foreclose — not to supplement — § 1983 relief.”