CTIA Likely to Appeal Wireless Tower Order
CTIA indicated it will likely take the FCC to court over the National Programmatic Agreement (NPA) on tower siting, which was released by the Commission Fri. (CD Sept 13 p1). Sources said CTIA has been looking for some time for an opportunity to file an appeal on the federal “undertaking issue” - which involves the ability of the govt. to assert authority over an issue, and has implications for other issues as well. The NPA case presents CTIA with the chance to raise the issue, they said.
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CTIA Pres. Steve Largent blasted the order in a statement released late Fri., saying CTIA supports statements by Comrs. Abernathy and Martin, who dissented in part from the order because of federal undertaking concerns. “CTIA agrees… regarding the Commission exceeding its statutory authority in regulating CMRS towers where the FCC does not issue a construction permit,” Largent said: “This is an issue the courts will have to decide.”
“No definite decision has been made” on whether to appeal, said a carrier source: “The odds are greater CTIA will be appealing this decision. We've been waiting for an issue to take to the court of appeals to raise the issue of federal undertaking.” CTIA and member carriers asked FCC to better explain its regulatory authority to impose National Historic Preservation Act (NHPA) mandates on private parties before proceeding in the case, but the FCC refused.
The issue CTIA will raise in court is “does the fact that the FCC licenses carriers to use spectrum -- but doesn’t regulate siting of any antenna -- rise to the level of a federal undertaking?” the source said. FCC didn’t release a text of the order Fri. and may not for a month or more. A decision on whether to appeal is likely months away.
CTIA is likely to repeat arguments it made in 2003 against a lawsuit by conservationists asking a federal court to order the FCC to protect migrating bird populations injured by celltowers 200 feet or higher under the National Environmental Policy Act (NEPA). The suit was rejected by the U.S. Appeals Court, D.C., but part of the arguments made will live on in the NPA case.
In April 2003, joined by NAB and PCIA, CTIA told the court the FCC doesn’t have authority to impose environmental regulations on towers. “Indeed, for the vast majority of communications towers, the FCC has virtually no involvement at all,” the groups said: “NEPA, which covers only major federal actions and not the decisions private actors or state or local governments, thus does not apply to the siting and registration of communications towers.”
The main difference between the avian mortality case and the NPA case is language. In the environmental case the argument is over “major federal action,” picking up the pertinent statutory phrase. In the NPA, the argument is over “undertakings,” a term from NHPA. “The language is different, but the concept is essentially the same,” one carrier attorney said. Sprint, which has argued vigorously that the FCC must resolve the undertaking issue before proceeding, last year filed a copy of the CTIA environmental pleading in the NPA docket.
The partial dissents filed by Martin and Abernathy could help a CTIA lawsuit. However, one attorney observed: “It’s true of all federal appeals court judges - these are people who are quite comfortable in their ability to sort through these issues on their own. They're not concerned with what other people think.”
In the end stages of the fight over the NPA, CTIA members were in direct disagreement over whether the FCC should wait until the undertaking issue was resolved before issuing an NPA. Cingular, soon to be the largest member, backed immediate action, while Verizon Wireless and Sprint lobbied the FCC to wait until the issue was resolved (CD Sept 13 p1). The CTIA source said this disagreement shouldn’t complicate filing a lawsuit since the conflict was essentially “tactical” and the carriers are sympathetic to the CTIA argument. - Howard Buskirk