TOWER SITE CONCEALMENT IS IN THE EYE OF THE BEHOLDER – NOT IN THE FCC’s DEFINITION, COURT RULES — A recent court decision challenged the FCC’s clarification on concealment practices, siding with cities seeking more explicit regulations. The Ninth Circuit said that the FCC’s clarification on what constitutes a “concealment element” was a legislative rule, not an interpretive one. Since the FCC did not follow the Administrative Procedure Act’s required procedures, the court invalidated the 2020 FCC’s ruling.
On Friday, the United States Court of Appeals three-judge panel for the Ninth Circuit issued a mixed ruling in a case brought by several California cities and organizations against the Federal Communications Commission (FCC) regarding its 2020 Ruling that clarified regulations for modifying wireless communication facilities.”
The ruling is a response to a 2020 FCC clarification of its existing rules from 2014, which implemented section 6409(a) of the Middle-Class Tax Relief and Job Creation Act of 2012, also known as the Spectrum Act. This Act requires state and local governments to approve certain modifications to wireless communications facilities that do not “substantially change” their physical dimensions.
The cities and organizations challenged several aspects of the FCC’s 2020 Ruling, including the Shot Clock Rule, the Separation Clause, the Equipment Cabinet Provision, the Concealment and Siting Approval Conditions Provisions, and the Express Evidence Requirement.
KEY POINTS OF THE COURT’S RULING:
The Shot Clock Rule: The court upheld the FCC’s clarification of when the 60-day shot clock begins for reviewing eligible facility requests. The FCC clarified that the clock starts when an applicant takes the first procedural step required by the local government and submits written documentation showing the proposed modification. The court found this clarification consistent with the 2014 Order and not arbitrary or capricious, noting that it prevents localities from using procedural delays to postpone the start of the shot clock.
The petitioners argued that the FCC’s 2020 clarification introduced solutions that did not adequately address the issues identified in prior cases. However, the FCC claimed that precedents do not always require an agency to explore every policy alternative when making decisions.
The Separation Clause: The FCC’s clarification of the Separation Clause, which determines when a modification that increases the height of a wireless tower causes a “substantial change,” was also upheld. The court agreed that the clarification was consistent with the 2014 Order and was an interpretive rule rather than a legislative one. Therefore, it did not require notice-and-comment procedures.
The Tower Height Provision specifies that a modification changes the physical dimensions of a support structure if it increases the tower height by more than 10% or adds an additional antenna array with a separation not exceeding 20 feet. This ruling was clarified in 2020 to mean the distance from the top of the highest existing antenna to the bottom of a new antenna.
Petitioners contended that the FCC’s interpretation did not account for the height of the new antenna, arguing that the cumulative limit should apply to all modifications. However, the court concluded that the rule’s wording did not support this interpretation, emphasizing the prohibition against surplusage – the notion that regulations should not be read to make any part of them unnecessary.
Equipment Cabinet Provision: The court upheld the FCC’s interpretation that the four-cabinet limit applies to each modification request separately, not cumulatively over time. The court found this interpretation consistent with the 2014 Order’s text and not arbitrary or capricious.
The Equipment Cabinet Provision dictates that a modification becomes substantial if it involves installing more than the standard number of new equipment cabinets, but not to exceed four. The 2020 Ruling clarified that this limit applies to each separate request and defined “equipment cabinets” strictly as physical containers for smaller, distinct devices, not merely protective coverings around transmission equipment.
Concealment and Siting Approval Conditions: The court sided with the cities and organizations. It found that the FCC’s clarification of what constitutes a “concealment element” was inconsistent with the 2014 Order and, therefore, a legislative rule, not an interpretive one. Since the FCC did not follow the Administrative Procedure Act’s (APA) required procedures for issuing legislative rules, the court invalidated this part of the 2020 Ruling.
The FCC’s 2020 Fact Sheet said: “The term’ concealment element’ in section 1.6100(b)(7)(v) means an element that is part of a stealth-designed facility intended to make a structure look like something other than a wireless facility, and that was part of a prior approval;
To ‘defeat’ a concealment element under section 1.6100(b)(7)(v), a proposed modification must cause a reasonable person to view a structure’s intended stealth design as no longer effective.”
The Concealment Provision involved conditions designed to obscure wireless facilities. It was intended to apply specifically to stealth-designed structures, such as those that blend into the environment as trees or flagpoles. In contrast, the Siting Approval Conditions Provision allows for enforcing general conditions associated with the visual impact of non-stealth facilities.
Express Evidence Requirement: The court denied the petition for review regarding the Express Evidence Requirement. Cities and organizations have argued that this requirement would have a retroactive effect, but the court found that applying this requirement would not be retroactive.
The 2020 Ruling introduced an “express evidence” requirement, mandating that local authorities demonstrate that a particular condition was considered part of the facility’s original approval to enforce it as a concealment element. This requirement aimed to provide applicants transparent notice of conditions and minimize disputes. The court determined that this was a clarification rather than a retroactive change, as it pertains to present conduct and the current enforcement of standards rather than altering past approvals. Therefore, the petition challenging this requirement was also denied by the panel.
Judge Mark Bennett partially dissented, arguing that the FCC’s clarification of the Shot Clock Rule was inconsistent with the unambiguous language of the 2014 Order, thus constituting a legislative rule. He also expressed disagreement with the Express Evidence Requirement, stating it was retroactive and not authorized under the Spectrum Act.
