Montgomery County, MD v.

Federal Communications Commission

Viewed as Major Victory for Wireless Carriers and Infrastructure Developers
By Keith P. Brown and Frank Marallo, Jr.
The Fourth Circuit Court of Appeals recently reinforced the governments efforts to streamline the collocation
and modification of existing telecommunications infrastructure over the protests of local governments. The
decision issued in Montgomery County, MD v. Federal Communications Commission is widely viewed as a
major victory for wireless carriers and infrastructure developers.
By way of summary, local municipalities have historically required telecommunications providers to seek
additional zoning approvals for any modification to existing towers, regardless of the nature of the modification.
As bourgeoning advancements in technology created opportunities for better wireless capabilities, the federal
government recognized that these local processes hindered the time- and cost-efficient modification of existing
infrastructure.
Congress passed the Spectrum Act in 2012 with the hope of reducing regulatory obstacles to the development of
improved wireless infrastructure. The provision entitled Wireless Facilities Deployment: Facilities
Modifications expressly states that local governments may not deny, and shall approve any eligible requests
to modify eligible wireless towers and base stations, so long as the modification do not substantially change
the physical dimensions of the existing structure. Congress then tasked the Federal Communications
Commission with promulgating rules to enforce the Act.
The FCCs Rules strengthened the mandatory language of the Spectrum Act by implementing a deemed
granted remedy that automatically approved applications to modify qualified infrastructure after 60 days of the
date of submission, if the local government failed to either approve the application or rule that the requested
modification did not fall within the purview of the Spectrum Act. The FCCs Rules also specifically defined
what constitutes a substantial change to the physical dimensions of the facility. Finally, the FCC broadly
defined the term base station so as to include most structures upon which cell antennae are located. The
deemed granted remedywhat industry has called the 60-day shot clockand accompanying definitions
became effective on January 8, 2015.
Municipalities Challenged the Constitutionality of the FCCs Rules
Several municipalities from Montgomery County, Maryland that opposed the FCCs Rules formed a coalition
and sought judicial review of the enacted rules by the United States Court of Appeals. The petitioner
municipalities challenged the constitutionality of the FCCs rules and the definitions therein. Specifically, the
municipalities insisted that the deemed granted rule violated the Tenth Amendment because the federal
government is prohibited from directly compelling a local government to use its power to effectuate federal
regulations. The municipalities also challenged the rules on the basis that the substantial change and base
station definitions were unreasonable.
The Fourth Circuit Court of Appeals first affirmed the constitutionality of the deemed granted procedure. In
an opinion penned by Circuit Judge Allyson K. Duncan, the court reasoned that the FCCs Rules could not be
construed to compel the state to effectuate federal regulations because it does not require the state to take
action at all . . . . Indeed, a state or local government can expressly choose not to review the application and
allow it to be granted by operation of law after 60 days. Judge Duncan stated that Congress, under proper
Constitutional authority, preempted state regulation of wireless towers. The court also expressly noted that the
deemed granted procedure did nothing more than implement the Spectrum Act, as the 60-day shot clock
prevented localities from shirking the mandatory approval by refusing to review a qualified application.

The municipalities arguments regarding the breadth of the substantially change and base station definitions
were also rebuffed. Under the framework outlined by the Supreme Court in Chevron, USA, Inc. v. Natural
Resources Defense Council, the court reviewed the FCCs rules to determine whether they were based on a
permissible construction of the statute. The FCCs interpretation could have only been set aside if deemed
arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.
Defining Substantial
The court first addressed whether the term substantially change was improperly defined. Specifically, the
municipalities argued that the term substantial was inherently subjective and could not be properly defined by
any objective measures within the FCCs Rules or otherwise. Recognizing that the primary concern of the
municipalities was to retain discretionary power to evaluate whether a proposed change was substantial, Judge
Duncan unequivocally stated that the Spectrum Act intentionally preempted any discretion that a local
government previously possessed. The Circuit Panel determined that it was not unreasonable to define
substantial in strict numerical terms because physical dimensions were inherently quantifiable standards. The
court also noted that contextual analyses incorporated in the FCC Rules eliminated the need for localities to
make case-by-case contextual substantiality determinations.
Defining Base Station
Lastly, the court addressed the municipalities assertion that the definition of base station was overbroad.
Indeed, the court noted that the definition considers most structures to be base stations, including buildings
and utility poles upon which wireless facilities are equipped. However, the court found that the breadth of the
new definition was inconsequential to the constitutionality of its application because it comported with the
thrust of the Spectrum Act. One of these goals is to put towers and support structures on equal footing.
Following the Fourth Circuits decision, wireless carriers now have a clear-cut avenue to perform the
infrastructure modifications necessary to accommodate an increasingly wireless population. However, wireless
carriers must still ensure that companies must ensure that the modifications sought are within parameters
outlined in the Spectrum Act to receive the benefit of this expedited process.
Court Leaves Door Open for Municipalities
In addition, wireless companies will have to navigate the normal channels of local government when seeking
permits for new telecommunications facilities. The court left the door open for municipalities to create obstacles
in these scenarios. One argument advanced by the petitioners against the definition of substantially change
reasoned that many existing facilities were granted upon the condition that there would be no future
modifications to the site. In the petitioners view, these modifications should be considered per se substantial.
The petitioners further stated that the ignoring of conditional approvals in this manner would deter
municipalities from issuing new permits to build necessary infrastructure and thwart the intent of the statute.
The court noted that this might be a valid policy concern, but ruled that there was no room for policy arguments
targeting the goals of the underlying statute in a simple statutory interpretation case. It remains to be seen
whether the concerns will be realized and whether the deemed granted procedure will deter local governments
from issuing permits for new telecommunications infrastructure moving forward.