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FCC Adopts Rules to Define 6409(a) and Modify the Shot Clock

In 2012, at the behest of the wireless industry (and specifically the PCIA), Congress passed and the President signed the Middle Class Tax Relief and Job Creation Act.  Buried within the hundreds of thousands of words in the Act are 149 word comprising Section 6409(a) dealing with wireless site collocations.

Here are those 149 words:

SEC. 6409. WIRELESS FACILITIES DEPLOYMENT.

(a) FACILITY MODIFICATIONS.

(1) IN GENERAL. Notwithstanding section 704 of the Telecommunications Act of 1996 (Public Law 104–104) or any other provision of law, a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.

(2) ELIGIBLE FACILITIES REQUEST. For purposes of this subsection, the term ‘‘eligible facilities request’’ means any request for modification of an existing wireless tower or base station that involves —
(A) collocation of new transmission equipment;
(B) removal of transmission equipment; or
(C) replacement of transmission equipment.

(3) APPLICABILITY OF ENVIRONMENTAL LAWS. Nothing in paragraph (1) shall be construed to relieve the Commission from the requirements of the National Historic Preservation Act or the National Environmental Policy Act of 1969.

As you can imagine reading the plain words of this portion of the Act, it doesn’t make a lot of sense.  Most of the key terms are undefined.  Terms like, “wireless tower”, “base station”, “transmission equipment”, and my personal favorite, “substantially change the physical dimensions.”

More important, this Act is Congress commanding that “a State or local government may not deny, and shall approve, any eligible facilities request…”    Lawyers know that these types of words implicate the Tenth Amendment to the Constitution, and are designed and intended to “blur the lines of political accountability” by isolating those who intend the result (here, Congress) from those who have to produce the result (the State and local governments commanded with carrying out the law).  For more on the unconstitutionally of Section 6409(a), see John Pestle’s expansive review linked via his blog.

Notwithstanding the constitutional issues of the law, until struck by a court, state and local governments are bound to follow it.  After the law became effective, those state and local governments started amending their local laws and ordinances to create the gap-filling definitions necessary to make rational sense of the law.

It turns out that those state and local governments had their own ideas how to fill in the missing definitions in a way that made sense in the local setting.  The wireless industry was not amused.

As the expert agency for telecommunications, in January 2013 the FCC’s wireless bureau stepped in offering a non-binding guidance on what it thought Section 6409(a) meant and how it should be made operational in practice.  The state and local governments were not amused.

In September, 2013 the FCC released a Notice of Proposed Rulemaking (“NPRM”) to pave the path to formal rules that would have to be followed by states and local governments.

Today the FCC Commissioners adopted rules flowing out of the NPRM process to explain what Congress intended through 47 U.S.C. § 1455(a), and what it really means.  Congressional intent is an interesting subject all by itself because in connection with Section 6409(a), Congress was mute.  There were no speeches or floor debates during the adoption phase, and the only record comment came after the law was adopted.  That one comment actually misstated the law that was adopted.  Oh well.

As of the initial posting of this blog item, the Report and Order are not yet out.  I’ll post the R&O when it’s available.

Here is the audio of the item.  The running time is 27 minutes, 23 seconds.

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