9th Circuit Rejects Parts of FCC's 2020 Wireless Siting Ruling

Lawyers for the FCC faced tough questions from judges when the case was argued last year (see 2307110077). Concealment elements are additions to a wireless tower designed to make it look like something else, such as a pine tree, flagpole or chimney.

Judges Carlos Bea and Holly Thomas joined the majority opinion. Judge Mark Bennett partially dissented and partially concurred, and would also have rejected the shot clock provision. The FCC declined comment on Friday.

FCC Commissioner Brendan Carr said the decision reflects the work of the FCC under President Donald Trump to address wireless siting issues. The Biden administration, Carr argued, “has not kept pace with those permitting reforms.” While “it would have been nice to secure a clean sweep on every issue, I am grateful that the Ninth Circuit upheld key features of our 2020 decision.” Pai designated Carr as the commission's lead on wireless siting reform.

The 2020 ruling was intended to speed collocation of wireless infrastructure on cell towers and was approved over the dissents of Commissioners Jessica Rosenworcel and Geoffrey Starks. Both Democrats were concerned about the FCC’s process in approving the ruling. The 2020 decision clarified rules that the FCC approved in 2014 (see 1410170048).

The court considered each part of the ruling and whether it was “interpretive or legislative” in scope.

The FCC argued in defending the ruling “that the phrase ‘concealment elements of the eligible support structure’ in the Concealment Provision limits the concealment elements to those physically located on the eligible support structure (in contrast to other features of an eligible support structure),” the majority said, noting this explanation doesn’t appear in the 2020 ruling and thus cannot be considered.

The majority found that the FCC’s clarifications concealment provision and the siting approval conditions provision were “legislative rules” and that the FCC didn’t follow Administrative Procedure Act requirements in seeking comment on them before acting. “Such failure was not harmless error because we cannot find that the error ‘clearly had no bearing’ on the result.”

Commenters on a 2019 notice urged that the FCC “follow the notice-and-comment procedures under the APA, but the FCC refused,” the majority found: “Instead, the FCC followed its own proceedings on a much-truncated timeline and refused additional time to comment after it published the 2020 Draft Ruling.” The court cited language in a 2003 case, Sprint v. FCC: A “failure to comply with notice and comment cannot be considered harmless if there is any uncertainty at all as to the effect of that failure.”

The court leaned in part on Rosenworcel’s and Starks’ 2020 dissents in finding the FCC at fault in how it handled concealment elements: "We note that both dissenting statements … criticized the FCC majority’s decision not to grant requested extensions for further public comment.”

But the majority found that the shot clock rule is “an interpretive rule that did not require notice-and-comment procedures, and that promulgation … was not arbitrary or capricious.” It reached a similar conclusion on other provisions, except for those on concealment.

Bennett argued that the court didn’t go far enough in overturning the 2020 ruling and that the shot clock provision also should have been rejected because the FCC didn’t follow the APA. “The FCC’s purported clarification of the commencement of the shot clock is inconsistent with the unambiguous language of the 2014 Order, I would find its clarification a legislative rule,” he said.

Each argument for overturning the concealment and siting provision also applies to the shot clock, Bennett wrote. “There is sufficient uncertainty about whether the FCC would have adopted the Shot Clock Rule had it followed the APA’s procedural requirements.”

Best Best’s Cheryl Leanza, who argued the case, said her local government clients, “many of whom provided the resources to challenge the FCC’s expansion” of the 2014 rules, “are very pleased with the 9th Circuit’s decision.” The court, she said in an emailed statement, “made it clear that the FCC cannot end-run the requirements of the [APA] by using a declaratory ruling where a ... rulemaking is needed.”

The firm “is thoroughly reviewing the decision and will consider next steps,” Leanza said. Given the 2020 commissioner dissents, “it would make sense for the FCC to immediately take action to implement the ruling.”

The decision “largely upholding the FCC’s 5G Upgrade Order is a victory for American consumers but leaves more work to be done,” emailed Patrick Halley, CEO of the Wireless Infrastructure Association: “Today’s ruling affirms that the FCC is right on the substance, even if additional procedural steps may be necessary” and “we look forward to working with the FCC to finish the job.”

“We’re pleased that the court upheld key aspects of the FCC’s common-sense guidance to local governments with respect to site modifications,” a CTIA spokesperson emailed: “The wireless industry looks forward to working with local governments to speed network deployments and bring the benefits of next-generation phones and services to consumers across the country.”