D.C. Appeals Court Mulls If FCC Has Authority to Adopt NPA
Whether CTIA has the right to challenge an FCC order adopting the Nationwide Programmatic Agreement (NPA) was among key questions raised at a U.S. Appeals Court, D.C. oral argument Thurs. The court has jurisdiction in CTIA v. FCC (05-1008) only if the FCC’s 2004 order constituted “reopening” the case. Judges Merrick Garland and David Tatel told CTIA and FCC to file supplemental briefs addressing the question within 5 days. Also on the court panel was Judge Thomas Griffith. Whether the FCC has authority to impose NHPA compliance requirements on tower construction is another question judges focused on.
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The case goes back to Sept. 2004 when the FCC adopted the NPA, with Comr. Abernathy and then-Comr. Martin dissenting. The 2 said the agency didn’t have legal authority to adopt the NPA under Sec. 106 of the National Historic Preservation Act (NHPA). CTIA appealed the order in Jan. 2005, arguing the FCC erred in concluding that construction of wireless towers by private wireless carriers was a “federal or federally assisted undertaking” under NHPA Sec. 106. CTIA also challenged an FCC decision to extend the preservation obligations of wireless providers to properties that are “potentially eligible” for inclusion in the National Register of Historic Places, rather than limiting those obligations to properties included in the National Register and those formally determined to be eligible for inclusion.
NHPA applies only to “federal or federally assisted undertakings,” said Donald Verrilli, an attorney representing CTIA. That means NHPA doesn’t apply to tower construction, since the FCC doesn’t fund it and wireless carriers don’t need a license or other FCC approval to build towers, he said. But FCC attorney Grey Pash, when questioned by the judges, said because a license the FCC issues to provide service in a place includes a condition for a carrier to comply with the Commission’s rules carrying out NHPA, the whole process is a federal undertaking, making licensees subject to NHPA.
Questioned by Garland, Verrilli said FCC’s 2004 order reopened the case, giving the court jurisdiction to review the order. In 1992, he said, the FCC required wireless carriers to comply with NHPA, although eliminating a requirement that carriers obtain permits on licenses for individual towers. The agency confirmed that decision in its 2004 order. Garland asked Verrilli whether CTIA could challenge the 2004 order, since no action was brought against the 1992 ruling. The court can’t review the 2004 order unless it reopens consideration of whether carriers have to comply with NHPA before they put up towers.
Garland relied on PanAmSat v. FCC to define the FCC’s reopening a case. That decision says if the agency says it’s reopening it, or that’s clear from its language, the court does have jurisdiction.
Quoting from the 2004 order, Verrilli said the FCC believed its “existing policies treating tower construction as an undertaking under the NHPA reflect a permissible interpretation of the Commission’s authority under Section 319(d) of the Act to issue construction permits for radio towers, as well as our authority under Section 303(q) governing painting and/or illumination of towers for purposes of air navigation safety.” But Garland said it was important to look at the first part of that quote, which says “unless and until we undertake the reexamination and determine that it is appropriate to amend our rules.” Garland said that suggested the FCC wasn’t reopening the case. Verrilli disagreed, saying it was a reopening because the order discussed the issue “at great length.” He also noted that Martin and Abernathy dissented from the order, meaning the FCC considered that question.
Pash didn’t take a position on whether the 2004 order reopened the issue previously addressed. But he said he didn’t think the language in the FCC order constitutes reopening of the question of whether the geographic licensing and authorization of tower construction constitutes a federal undertaking. He said the FCC concluded it was a federal undertaking in its previous orders adopting NHPA rules.
Later in the argument, Verrilli said Sprint sought a rulemaking in 2001 to reconsider whether the FCC had authority to impose NHPA requirements. The FCC denied that request, saying the 2004 order addressed that petition. That shows the FCC reopened the issue in 2004, Verrilli said.
Garland and Tatel also asked Verrilli whether the FCC could rely on its general authority to license carriers in the public interest to support its rule. Verrilli said it couldn’t because: (1) The FCC didn’t rely on that ground in its 2004 order, so it can’t use it now in court. (2) The FCC has authority to only advance the goals of the Communications Act, not of other federal statutes that don’t apply. But Pash disagreed, saying NHPA specifically requires federal agencies to enforce its terms. Even if there’s not a specific statutory requirement, he said, the FCC must consider other important federal policies.