Recent Ruling Helps But Does Not Solve The Wireless Siting Problem

The United States Court of Appeals for the Ninth Circuit recently issued a long-anticipated ruling in League of California Cities, et al. v. Federal Communications Commission and United States of America. This case, brought by several cities and municipal organizations, challenged various elements of a 2020 FCC ruling interpreting the process for permitting wireless facility modifications, commonly known as the «5G Upgrade Order.» The order aimed to expand high-speed wireless service access, particularly in rural areas, by streamlining the jurisdictional approval process.

The crux of the Petitioner’s challenge lies in the FCC’s interpretation of Section 6409 of the 2012 Spectrum Act, which provides:

[A] State or local government may not deny, and shall approve, any eligible facilities request for modification of an existing wireless tower of base station that does not substantially change the physical dimensions of such tower or base station.  

While well-intentioned, this 12-year-old law does not sufficiently address the bureaucratic hurdles hindering the buildout of today’s wireless infrastructure. Thus, the FCC required several rounds of clarification, most recently in 2020.

The good news for the wireless industry is that the court upheld the FCC’s clarifications on siting approval timelines and equipment limitations, which offers some predictability for wireless companies. Specifically:

• Commencement of the Shot Clock: The 60-day review period for an eligible facilities request (“EFR”), known as the “shot clock,” begins to run when the applicant (a) takes the first procedural step the local jurisdiction requires as part of its review process, and (b) submits written documentation showing a proposed modification qualifies as an eligible facilities request. The FCC Ruling was intended to address delays caused by localities’ requirements that applicants undergo multiple steps (such as a series of pre-application meetings) before deeming an application complete.  The FCC explained that the first step triggering the shot clock must be within the applicant’s control and be objectively verifiable.
• Calculating when a tower antenna modification is an EFR. To qualify for streamlined permitting, an antenna modification on a tower located outside the public right-of-way must avoid increasing the height of the tower by either (a) more than 10% or (2) the height of the one additional antenna array with separation from the nearest existing antenna not to exceed 20-feet. The 2020 FCC Ruling clarified that “separation from the nearest existing antenna” means the space between the antennas, i.e., the distance from the top of the highest existing antenna on the tower to the bottom of the proposed new antenna to be deployed above it.  Thus, there are two ways to look at the impact of a proposed antenna modification. The first is to look holistically at the tower, considering the impact on tower height. The second is to look at the details of the modification itself, checking the gap size between the end of the existing antenna array and the beginning of the new antenna array. The modification must only satisfy one of these tests to qualify as an EFR. 
• Calculating when the addition of an equipment cabinet is an EFR. To qualify for streamlined permitting, an equipment cabinet addition must avoid (a) the installation of more than the standard number of new equipment cabinets for the technology involved, not to exceed four cabinets; and (b) for towers in the public right-of-way and base stations, involve the installation of any new equipment cabinets on the ground if there are no pre-existing ground cabinets or else involve installation of ground cabinets that are more than 10% larger in height or overall volume when compared to any other ground cabinet associated with the structure.  The 2020 FCC Ruling clarified that the maximum number of additional equipment cabinets that can be added is measured for each separate EFR and not cumulatively. Additionally, the term “equipment cabinet” refers only to physical containers for smaller, distinctive devices and not to transmission equipment manufactured with outer protective covers, regardless of whether such transmission equipment is visible from the ground. 

However, the court invalidated the FCC’s 2020 Rulemaking establishing whether a modification falls outside the definition of an EFR by defeating a concealment requirement due to the FCC’s failure to follow appropriate process. Specifically: 

• When a modification substantially changes the physical dimensions of an existing structure by defeating the distinction between a concealment element of an eligible support structure and the conditions associated with siting approval of an eligible support structure.
• What evidence must the local government show regarding a preexisting condition of approval of a wireless facility? 

The Ninth Circuit’s mixed ruling highlights the ongoing struggle between streamlining deployment and respecting local control. While the ruling offers some clarity, it doesn’t address the core issue: the sometimes painfully slow and unpredictable permitting process for wireless infrastructure. This process delays the expansion of critical networks and hinders America’s digital progress.