I'm a broadband and radio frequency engineer who, after spending years as a technology advisor to hundreds of governments and firms around the country, went to law school and became an attorney. Not surprisingly, my area of law is telecommunications.
I have a Juris Doctor degree, a Masters of Law degree in Information Technology and Telecommunications Law, and a Doctorate in Law and Policy.
Last night I presented at the City of Calabasas, California’s Communications and Technology Commission on the new FCC rules implementing Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012. I also talked about a bunch of other stuff the FCC added in to the mix. If you’re in to such things you may find the video (below) of my presentation and the Q&A that followed to be useful, or at least entertaining. Maybe even both.
To better understand some elements in my lecture, please understand that it followed immediately after planning item where Verizon Wireless came to the City to permit-in-arrears a site they modified without first securing City permits. This was the sixth time they had modified their cell sites in the City without benefit of first securing City permits.
Thanks to the City of Calabasas for putting the video up on their YOUTUBE channel.
My discussion is based on my own opinions and does not reflect the position of any government, but it might.
Yesterday I had the pleasure of speaking at LSI’s Deployment of Wireless Facilities Conference, held in Atlanta, Georgia.
I spoke on the FCC’s implementation of Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 (commonly but inaccurately called the “Spectrum Act,” a term that never appeared in the the MDTRJCA). However, this post is not about my lecture, during which I raised some interesting questions for carriers and tower companies to ponder under the general heading of ‘be careful what you wish for.’
The BILD Act is Georgia’s version of a Super 6409(a) bill, containing the following introduction:
To amend Title 36 of the Official Code of Georgia Annotated, relating to local government, so as to change certain provisions applicable to counties and municipal corporations related to advanced broadband collocation; to provide for a short title; to provide for definitions; to make changes related to streamlined processing; to standardize certain procedures related to 4
new wireless facilities; to place limitations on the time allowed for the review of new wireless facilities; to limit fees charged for review of wireless facilities; to provide for related matters; to repeal conflicting laws; and for other purposes.
One of the final provisions of the BILD Act contained this nugget:
36-66B-7. 170. A local governing authority shall not . . . [c]harge an applicant a zoning, permitting, or other fee for review or inspection of a collocation or modification in excess of $500.00. . .
I don’t know about your local government, but I don’t know of any local government that can properly accept, review, report, and decide a collocation application for the maximum fee of $500.00, including all inspection fees.
Essentially, Rep. Parson’s BILD Act shifted the cost of collocation applications and construction safety inspections to local governments, save for the first $500.00. This means that instead of multi-billion dollar corporations and their shareholders bearing the cost of their for-profit cell site applications and safety inspections, Rep. Parson has shifted the bulk of that burden onto the backs of Georgia taxpayers. That’s just peachy if you’re a wireless company, but not so peachy if you’re a Georgia taxpayer.
I wanted to ask Rep. Parson’s why he would give a multi-million dollar fee gift to the multi-billion dollar wireless industry at the expense of Georgia taxpayers, but time in his session ran out. Perhaps someday I’ll have the opportunity to hear Rep. Parson’s reasons to favor the wireless industry and the (real) expense of his constituents.
Today, October 17, 2014, the Federal Communications Commission (“Commission”) voted to adopt new federal rules that significantly undermine local police powers to regulate wireless infrastructure. The rules will become effective 90 days after the Commission publishes the Report and Order (“Order”) in the Federal Register.
Although as of this writing the Commission has not yet released its Order to the pubic, each Commissioner previewed portions of the Order in their comments before the vote.
State and local governments can expect new special exceptions and exclusions from environmental and historic preservation reviews for DAS and small cells, even when the project involves a diesel generator or hydrogen fuel cells.
Section 6409(a)
Perhaps the most dramatic changes will deal with Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 (“Section 6409(a)” which is codified at 47 U.S.C. § 1455(a)) and the Commission’s time limits on local wireless site application reviews (colloquially known as the “Shot Clock”) for projects that qualify for treatment under Section 6409(a).
Section 6409(a) mandates that State and local governments “may not deny, and shall approve” an “eligible facilities request” so long as that eligible facilities request does not “substantially change the physical dimensions of the existing wireless tower or base station.” The Commissioners explained that the Order would define ambiguous statutory terms, impose a 60-day deadline for State and local governments to act on a collocation application, and inflict a “deemed granted” remedy for failures to act before the deadline.
Commissioner Ajit Pai emphasized that, under the rules adopted today, an applicant can begin construction on day 61 after the State or local government fails to act on day 60. Whether this preempts building permit requirements is unclear, and could lead to serious public safety hazards from tower/facility construction like the ones that caused the 2007 Malibu Canyon fire.
One big question the Order will answer is how the Commission defined a “substantial change in the physical dimensions of a wireless tower or base station.” This issue is crucial because Section 6409(a)—and the truncated time for review under a deemed-granted threat—applies only when the applicant submits a request to collocate or modify a site that does not result in a substantial change. None of the Commissioners offered specifics, but the Commission hinted that it leaned towards a one-size-fits-all approach.
The FCC Shot Clock
The Commission also indicated that the Order will revise its Shot Clock rules. Prior to today’s Order, local governments had to review and grant or deny applications for new sites within 150 days or 90 days for collocations. Now, for at least collocations, the Shot Clock is reduced to 60 days. The Order will likely extend the Shot Clock to DAS and small cells.
The Commissioner’s hinted that the Order would preempt or sharply local moratoria.
One potential bright spot came from Commissioner Pai, who suggested that the “deemed granted” remedy imposed under Section 6409(a) does not extend to Shot Clock violations for new sites or eligible facilities requests that cause a substantial change. However, Commissioner Pai hopes the Commission will revisit that issue within 18 to 24 months.
So What Now?
In the near-term, the administrative process at the Commission is not yet finished. Municipalities and other interested parties can file a “Petition to Reconsider,” which asks for specific changes to a published order. Petitions must be received within 30 days after the Commission publishes a public notice of the Order (expected in the Federal Register). Such petitions do not necessarily stop the rules from becoming effective or during the time the Commission considers the petition.
Court Challenges to the Order
It seems very likely that the Order will be challenged in federal court. State and local governments will likely argue that the Constitution and settled case law prohibit the federal government from enacting a statute that forces State and local governments to administer a federal program. Lawyers will likely argue that Section 6409(a) unconstitutionally forces municipalities to administer a federal wireless infrastructure deployment program because it requires them to process applications under federal standards within a federal timeline or face federal penalties. Further, Section 6409(a), now presumably exacerbated by the rules in the Order, isolate the federal government from the political accountability of the law and rules, shifting that accountability to the states and local governments that have no option but to administer the program. Any such challenge might not occur for many months, and the machinery of the judicial system turns slowly.
New Local Wireless Ordinances
In the meantime, the wireless industry seems intent on rewriting local ordinances, too. For example, Commissioner Mignon Clyburn commended CTIA and PCIA (lobbyists for the wireless industry) for their offer to teach local governments “best practices” and to provide “model ordinances and applications” for streamlined application reviews. If this sounds like the fox guarding the hen house, it is. Local governments should look to advocates unaligned with the industry to be regulated for help rewriting their local laws and ordinances to comply with the Order.
Blame the Local Governments?
Commissioner Michael O’Rielly said that the new rules will streamline wireless deployment because “the gig is up” for recalcitrant municipalities. Unfortunately for all involved, one more likely result is that wireless ordinances and review processes will become more detailed, more rigorous, and more contentious. More to the point, however, is that the public will likely be far from happy with Congress Members who have passed a law that makes their local community officials mere functionaries forced to carry out this federal government program at the expense of local community aesthetics and interests.
We will offer commentary on the specifics in the Order once the Commission makes the Order available to the public.
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.
As you’ve likely seen in the general media, MARRIOTT INTERNATIONAL, INC. and MARRIOTT HOTEL SERVICES, INC. (jointly, “Marriott”) and the FCC have entered into a Consent Decree in connection with Marriott’s intentionally blocking of Wi-Fi access points brought in to the conference center portion of the Gaylord Opryland Hotel and Convention Center in Nashville, Tennessee (a property operated by Marriott). The Consent Decree provides that Marriott will pay a fortitude of $600,000 for violating 47 U.S.C. § 333.
47 U.S.C. § 333, the law violated by Marriott, says in its entirety, “No person shall willfully or maliciously interfere with or cause interference to any radio communications of any station licensed or authorized by or under this chapter or operated by the United States Government. ”
It turns out that Marriott used its own sophisticated Wi-Fi network to detect and disable what the Commission called “rogue” portable Wi-Fi access points that use the cellular network for Internet connectivity. If you own a “Mi-Fi” type device like that shown here, this is what Marriott electronically hunted down and disabled.
Why would Marriott want to do such a thing? Well, it turns out that Marriott charged between $250-$1,000 per access point to allow convention visitors and booth-holders to use their own device inside the convention center.
Based on the detailed description and terms provided by the FCC, it appears that Marriott used something like (if not specifically) a Cisco system and software to detect and disable the so-called rogues. Cisco’s Prime Infrastructure, used to manage a Cisco Unified Network Solution, does exactly what the FCC described.
When the Cisco Unified Wireless Network Solution is monitored using Prime Infrastructure, Prime Infrastructure generates the flags as rogue access point traps and displays the known rogue access points by MAC address. The operator can then display a map showing the location of the access points closest to each rogue access point. The next step is to mark them as Known or Acknowledged rogue access points (no further action), Alert rogue access points (watch for and notify when active), or contained rogue access points (have between one and four access points discourage rogue access point clients by sending the clients deauthenticate and disassociate messages whenever they associate with the rogue access point).
(Page 3-67, Emphasis added)
Basically, if the controlled wireless network detects a “rogue” access point (say, a Mi-Fi not paying a Troll-Toll) operating within the physical confines of the larger Wi-Fi network, then the Wi-Fi controller can intentionally disrupt the Mi-Fi’s operation by sending the clients trying to connect to the Mi-Fi deauthenticate and disassociate messages whenever those devices try to associate with the Mi-Fi.
Now that the FCC has dinged Marriott to the tune of $600,000, will the Commission turn its attention to firms that manufacture the software and equipment allowing people and entities like Marriott to violate Section 333 of the Communications Act?
To read the FCC’s full Order and Consent Decree CLICK HERE. If the PDF does not save or open up in your browser, right click to do a save as to your computer.
(Updated 5:29 p.m. PDT to include the prepared remarks of the Chairman.)
FCC Chairman Tom Wheeler presented the keynote speech on October 1, 2014 at the National Association of Telecommunications Officers and Advisors (NATOA.ORG) Annual Conference in St. Paul, Minnesota.
The running time of the lecture is just under 30 minutes, and this is a ‘must listen’ lecture about issues important to the Commission, the telecom industry, and governments.
For those of you who are interested in the pending FCC Report and Order on Broadband Deployment (the ‘6409(a)’ NPRM) start at 20:35. That portion is about 1 minute long, but contains very interesting clues as to how the Commission will address the comments received from the industry and governments and frame the pending rules.
Chairman Wheeler’s prepared comments are presented below the audio link.
National Association of Telecommunications Officers and Advisors
Annual Conference
October 1, 2014
Thank you, Tony Perez, for that introduction. I join in congratulating the winners of NATOA’s Community Broadband Awards.
It’s great to be at the NATOA meeting here in Minnesota. Perhaps that explains why as I look out across this assemblage, all the women are strong, the men are good-looking, and the policy proposals above average.
A native Minnesotan, in fact, provides us with the intellectual foundation for our discussion today. It was the son of Hibbing, Minnesota, Bob Dylan who wrote, “You better start swimming or you’ll sink like a stone, for the times they are a-changing.”
That is the challenge we all face. There is no doubt that high-speed broadband – wired and wireless – is a-changing everything. Those who embrace these changes will help write the future. Those who don’t will…well…sink like a stone.
NATOA and the FCC are swimming to the common goal of making sure that communities across America – large and small – have access to robust broadband networks that deliver the benefits of broadband connectivity to all citizens.
But you may have noticed that not everyone is swimming alongside that effort. There are those who seek to block the competitive forces that can produce faster, cheaper, better broadband; those who make it difficult to build out the infrastructure necessary for the broadband future; and those with which both you and we have to contend that would use changes in technology as an excuse to sidestep the responsibilities network operators have always had to their users.
Today, I would like to visit about our responsibility to overcome this resistance and ensure that our nation has the networks necessary for the jobs, economic growth, and quality of life that will determine our nation’s place in the 21st century. Yes, that is a dramatic statement; yes, it is that important; and, yes, I know it is easier to say than to do.
You, in your positions in your communities, and my colleagues and I, in our positions at the FCC, have responsibilities, not just to the consumers and networks of today, but also to the consumers and networks of tomorrow. Here is the reality confronting us:
We need faster networks in more places. I don’t know about you, but I’m tired of seeing the charts of where the U.S. ranks in comparison to the broadband speeds of other nations. Table stakes for the 21st century is 25 Mbps, and winning the game means that all consumers can get at least 100 Mbps – and more.
Competition is the best way to achieve those goals. Unfortunately, today there is an inverse relationship between competition and throughput. Three-quarters of American homes have no competitive choice at 25 Mbps. That includes almost 20 percent who have no option at all at those speeds!
Wireless is an increasingly critical broadband pathway of the future. The 21st century will be defined by the networks that marry the ever-increasing computing power of Moore’s Law with the invisible delivery of wireless spectrum. Our generation has been self-congratulatory about the connection of people – seven billion wireless subscriptions in a world of seven billion people is impressive – but you and we must plan on connecting 50 billion inanimate devices made smart by Moore’s Law.
Openness is the key to networks delivering on their possibilities. Blocking, discriminating, or degrading service for economic gain is contrary to the promise of broadband networks. Yet we have no protections in place to assure that kind of openness. We must have rules that will establish that an open Internet is the sine qua non of broadband.
A minute ago I spoke of the responsibilities of networks. For the better part of a century, there has been a set of principles that has defined the relationship between those who build and operate networks and those who use them. I call this the “Network Compact” and our goal as regulators and policy makers is to assure that these principles continue to define that relationship into the future. These principles include:
Access – both to networks and on networks,
Interconnection – by definition a network is a series of connections; in the broadband world, the Internet isn’t a thing, but a connected collection of networks,
Consumer protection – technology has pushed the laws of physics, but nothing has changed the laws of human nature or economics, and consumers must be protected from exploitation,
Public safety – we’ll talk more about this in a minute, but it must be the underlying deliverable of all networks, and
National security – in a world in which networks are now attack vectors, we must have secure and safe connectivity.
There are those who argue that the move from analog networks to IP networks changes these principles. They are wrong. The form these responsibilities take may change in an IP world, but the principles do not – and should never – go away.
As we transition to an all-IP world, the challenge confronting those of us in this room is how do we preserve these values that we have come to expect from our networks, while seizing the opportunities that our new networks promise? So let’s address these issues head-on – starting with competition.
Competition works, and how we behave determines whether there will be competition. The existence of four national wireless carriers, for instance, is an important national priority and we worked to protect that reality. Similarly, there cannot be effective competition in wireless without new spectrum and without assuring that the most advantageous low-band spectrum is available to all competitors. We are doing both of those as well.
The advantages of competition are so obvious and ingrained in the American psyche that many local communities have stepped up to facilitate it where the private sector has not. Communities are listening to the needs of their citizens and enterprises, engaging community stakeholders, and focusing on delivering competitive broadband services to respond to those needs. As you know, two communities – Wilson, NC and Chattanooga, TN – have petitioned the FCC to preempt the laws enacted by state legislatures that prohibit them from expanding their community-owned broadband networks. There are currently laws in 19 states that impose restrictions of one kind of another on such local decision-making.
We will make our decision on those petitions on the record and on the merits. I am not going to comment on them any further.
However, I do encourage you to consider how local choice and competition can increase the broadband opportunities for your citizens. I love the story of Lafayette, Louisiana where the local incumbent fought the city’s fiber network tooth and nail, bringing multiple court challenges and triggering a local referendum on the project. Thankfully, none of the challenges managed to prevent deployment – sixty-two percent of voters approved of the network in the referendum, and the Louisiana Supreme Court unanimously sided with the city – but they did delay deployment almost three years. When the network was finally built, the community experienced the benefits of competition, as the local cable operator decided to upgrade its network. Local choice and competition are about as American as you can get.
Those American principles can play an important and essential role in assuring America’s future.
Here’s where you and other local officials become critically important. If the infrastructure necessary to build out both wired and wireless broadband networks doesn’t receive the prioritization that it warrants as a major national undertaking, then all the efforts to achieve faster, cheaper, better broadband service that will enhance our nation’s competitiveness, create quality jobs for our fellow citizens, and introduce services that will redefine both our commerce and our culture will be for naught.
I know this is often a zoning matter in which you are as much an observer as we are. In those instances where some of you may have a role, however, I encourage you to be pro-active. In those instances where it is others who have the authority, I urge you to stand up for your telecommunications responsibilities. I understand the very real and very strong Not-In-My-Backyard sentiments. Everyone wants cellphone service but no one wants cellphone antennas in their neighborhood. Everyone wants access to state-of-the-art transmission service, but no one wants the neighborhood streets dug up. It reminds me of another folk song: “Everyone wants to go to heaven, but nobody wants to die.”
However, we’re talking about a national priority; about the maintenance of economic leadership; about America’s continuing to be the home of innovation. We must find ways to enable the extension and expansion of broadband infrastructure. Local officials with permitting authority have a special obligation to both their own communities and to the larger society. It is simply impossible to have the connectivity our nation requires without the necessary infrastructure. While there is an understandable desire to engage in cognitive dissonance of wanting connectivity but not its consequences, as policy makers we must resist within reason such myopia.
In that regard, we must build on and expand the creative thinking that has been the hallmark of the good work many of you have done to facilitate advanced broadband builds around the country. It’s great that NATOA has developed best practices on tower siting and is updating those practices. And as I understand it, there is also a guide on rights of way issues, but it’s 12 years old. Things have changed a bit in the last dozen years. I encourage you to update your rights of way guide.
You have the ability to develop national best practices that embrace strategies that have been shown to work in today’s technological and economic environments – strategies that embrace new technology and new ideas to facilitate the timely deployment of wired and wireless broadband. There is a reason Google Fiber developed a “City Checklist” to aid in determining where to invest in gigabit fiber. It contains simple things, like timely and accurate information about and access to poles and conduit. These low-cost steps are relevant to all broadband providers; we must bring those insights to all localities.
At the FCC, we will use our authority to attack the broadband deployment challenge. We will work with you, so that national best practices are included in our Agenda for Broadband Competition…the ABCs of consumer choice in the 21st century. We will also move on our own authority. Last Friday I proposed to my colleagues a new set of federal policies on the siting of wireless facilities. This proposal will take concrete steps to immediately and substantially ease the burdens associated with deploying wireless equipment – particularly for collocations and deployments of small-cell systems that can be installed unobtrusively on utility poles, buildings, and other existing structures. At the same time, my proposal preserves the front-line authority of local and Tribal governments to determine which structures are appropriate for wireless deployments, as well as authority to enforce building codes, electrical codes, laws related to health and safety, and to require companies to use camouflage or concealment designs. The Commission will consider this item at our next open meeting on October 17.
There is another component of our broadband responsibilities, and that is video programming. We’ve been hearing a lot lately that access to video is necessary for broadband deployment because consumers increasingly watch video online and that translates into more demand for video-quality broadband. So if we can make it easier for video choices to come to communities, we should be able to incent more broadband competition as a result.
Broadband becomes more economically viable, we are told, when it is bundled with video services. In a perverse way, then, how localities handle video competition can determine whether they will have broadband competition.
I want to close my remarks by emphasizing one other place we must work together – public safety.
Robust, accessible 911 service is central to our shared public safety missions.
The transition to all-IP communications raises new challenges for 911.
We are used to thinking about 911 outages as a result of acts of nature: a hurricane, a tornado, vast flooding.
But there is a new threat. The emerging Next Generation 911 system is more complex than the legacy 911 system and relies more extensively on infrastructure, resources, and relationships that are multistate or national in scope. It is supported by a larger number of service providers, including new entrants that are offering new, niche functionalities.
Innovation is good, and we want NG 911 to support new forms of emergency communications.
But the creation of new, complex systems where no one is responsible, and where the system as a whole lacks reliability and resiliency is not acceptable.
The threat is real….and growing.
In April, citizens in seven states lost access to 911 for six hours…six hours! More than 5,600 911 calls did not get through because of a software glitch in an outsourced database!
This August, there was a 911 outage in one of the nationwide wireless networks, and there was an outage in Vermont that knocked out 911 service statewide for nearly an hour.
The fact that these outages occurred, and the common issues they raise, are evidence of the challenge we face, and suggest that we are at risk of experiencing far worse failures if we don’t take action now.
We recognize that states and local governments also have long-standing and significant responsibility for 911 service within their jurisdictions. We believe the best approach is a partnership between the FCC and state and local authorities to ensure that there are no gaps in the reliability of the entire NG911 system. The FCC’s staff has worked closely with state and local officials to investigate these outages, and, at our open meeting later this month, will be presenting the findings of this investigation, as well as recommendations for concrete steps to promote end-to-end reliability and accountability of the 911 system.
The critical point is this: neither we at the federal level nor you at the state and local level have the ability to ensure end-to-end 911 reliability on our own – we must work together.
We must work together, not just on 911, but on all the topics I’ve discussed today.
When competitive broadband options don’t exist, let’s work together to create an environment that encourages investment to switch-on America’s competitive genius.
When there is no broadband availability at all, let’s work together to get infrastructure deployed by any and all entities willing to step up to meet the challenge; and
When providers begin to retire legacy networks for newer technologies let’s work together to make sure that the expectations of consumers and businesses continue to be met, including access to 911.
For the times they are a’changing. Let’s work together to embrace the new opportunities and build a better tomorrow.
Does a denial of a cell site permit need to be made in a writing that is separatefrom the rest of administrative record? That’s the more important question answered by the 8th Circuit Court of appeals in NE Colorado Cellular, Inc., v. City of North Platte, Nebraska. Case No. 13-3190 (Filed August 22, 2014).
The 8th Circuit has now adopted the minority view of the Circuits that a denial of a cell site permit does not need to be made in a writing that is separate from the rest of administrative record. In doing so, the 8th Circuit dives into the thinking of the various Circuits that have addressed this question.
The U.S. Supreme Court is set to resolve the Circuit split when it hears and decides T-Mobile S., LLC v. City of Roswell, Ga., 731 F.3d 1213 (11th Cir. 2013), cert. granted, 134 S. Ct. 2136 (2014).
I have edited the 8th Circuit decision to focus on the in writing discussion.
SMITH, Circuit Judge.
NE Colorado Cellular, doing business as Viaero Wireless (“Viaero”), sought to construct a telecommunications tower in the City of North Platte, Nebraska (“the City”). The North Platte City Council (“City Council”) voted to deny Viaero’s application for a permit to build the tower, finding that the tower would be inharmonious with the neighborhood in which Viaero proposed to build. Viaero filed suit against the City for violation of the Telecommunications Act of 1996 (TCA), alleging that the City Council decision was neither “in writing” nor “supported by substantial evidence.” The district court upheld the City’s decision. We affirm.
The district court noted that legal authorities are split on the meaning of “in writing” in the TCA and that the question remains open in this circuit. The majority rule—followed by the First, Seventh, and Ninth Circuits, and urged by Viaero—requires that a decision “(1) be separate from the written record; (2) describe the reasons for the denial; and (3) contain a sufficient explanation of the reasons for the denial to allow a reviewing court to evaluate the evidence in the record that supports those reasons.” New Par v. City of Saginaw, 301 F.3d 390, 395–96 (6th Cir. 2002) (citing Sw. Bell Mobile Sys., Inc. v. Todd, 244 F.3d 51, 59–60 (1st Cir. 2001)). The district court noted that this circuit has assumed without deciding that the majority rule is correct. See Sprint Spectrum, L.P. v. Platte Cnty, Mo., 578 F.3d 727, 731–32 (8th Cir. 2009).
The minority rule—articulated by the Sixth Circuit, urged by the City, and ultimately adopted by the district court—does not require that the decision and record be separate writings as long as the record permits the reviewing court to “focus with precision on the action that was taken and the reasons supporting such action.” Omnipoint Holdings, Inc. v. City of Southfield, 355 F.3d 601, 606 (6th Cir. 2004). Here, the district court found that the City Council resolution satisfied the “in writing” requirement because the motion and meeting minutes reflect the action taken and “contained an explanation of the reasons sufficient to allow the Court to evaluate the evidence in the record that supports those reasons.”
A. “In writing”
Courts have adopted four different interpretations of the TCA’s “in writing” requirement. The first, adopted by a number of district 2 courts, requires that the denial itself and the “written record” be separate documents. Smart SMR of N.Y., Inc. v. Zoning Comm’n of Stratford, 995 F. Supp. 52, 57 (D. Conn. 1998). The Stratford court reasoned that because “the statute draws a distinction between the writtendecision and the written record, they can clearly not be the same document.” Id. (quoting AT&T Wireless PCS, Inc. v. City Council of Virginia Beach, 979 F. Supp. 416, 428 (E.D. Va. 1997), rev’d, 155 F.3d 423 (4th Cir. 1998)). “Additionally, the decision ‘must contain written findings of fact tied to the evidence of record.'” Id. at 56 (quoting AT&T Wireless Servs. of Fla., Inc. v. Orange Cnty, 982 F. Supp. 856, 859 (M.D. Fla. 1997). In a later case, the same court determined that “[a] local zoning authority must issue a decision in writing setting forth the reasons for the decision and linking its conclusions to evidence in the record.” Omnipoint Commc’ns., Inc. v. Planning & Zoning Comm’n of Wallingford, 83 F. Supp. 2d 306, 309 (D. Conn. 2000) (citation omitted). The Wallingford court reasoned that “[b]y failing to provide reasons for its decision, the Commission places the burden on this Court to wade through the record below in an attempt to discern the Commission’s rationale.” Id. (quoting Smart SMR, 995 F. Supp. at 57). The Stratford/Wallingford rule effectively requires formal findings of fact and conclusions of law, akin to the strictures of the Administrative Procedure Act (APA). See Todd, 244 F.3d at 59.
The second approach, considered the majority rule, was articulated by the First Circuit in Todd. The Todd court held that “the TCA requires local boards to issue a written denial separate from the written record. That written denial must contain a sufficient explanation of the reasons for the permit denial to allow a reviewing court to evaluate the evidence in the record supporting those reasons.” Id. at 60. The Seventh and Ninth Circuits subsequently adopted this interpretation. See Helcher v. Dearborn Cnty, 595 F.3d 710, 719 (7th Cir. 2010); MetroPCS, Inc. v. City & Cnty of S.F., 400 F.3d 715, 722 (9th Cir. 2005).
The First Circuit rejected the formal requirement of “findings of fact” in Wallingford as having “no basis in the language of the [TCA].” Todd, 244 F.3d at 59. The court held that because local boards “are primarily staffed by laypeople. . . . it is not realistic to expect highly detailed findings of fact and conclusions of law.” Id. at 59–60. The court nevertheless found that the approach adopted by the Fourth and Eleventh Circuits infra too light, holding that “permitting local boards to issue written denials that give no reasons for a decision would frustrate meaningful judicial review, even where the written record may offer some guidance as to the board’s rationale.” Id. at 60. The court noted that “[t]he TCA distinguishes between a written denial and a written record, thus indicating that the record cannot be a substitute for a separate denial.” Id. (citation omitted). As such, “[e]ven where the record reflects unmistakably the Board’s reason for denying a permit, allowing the written record to serve as the writing would contradict the language of the [TCA].” Id. (citation omitted). In short, the Todd rule requires that a denial “must (1) be separate from the written record; (2) describe the reasons for the denial; and (3) contain a sufficient explanation of the reasons for the denial to allow a reviewing court to evaluate the evidence in the record that supports those reasons.” New Par, 301 F.3d at 395–96.
The Sixth Circuit developed a third approach to the TCA’s “in writing” requirement. In New Par, the court adopted the Todd rule, but the court took a different tack in Southfield. In Southfield, the city council denied a permit after a public hearing. Southfield, 355 F.3d at 603. In a formal resolution, the council voted to deny the application and listed eight reasons for the denial. Id. The minutes of the council meeting, which contained the resolution, constituted the only “writing” containing the denial. Id. at 606. The Southfield court noted that “there is no guidance in New Par as to what constitutes the written record.” Id. at 605. The court opined that “the TCA makes no mention of the writing being in a separate document.” Id. at 606. The court reasoned that because the city council speaks through its resolutions, the “formal resolution is a writing separate from the hearing record.” Id. “Although the minutes of a council meeting will encompass all the matters considered by the council at that meeting, each resolution deals with only one discrete subject.” Id. The court found that this was sufficient to meet the “separate writing” requirement of the TCA because “[t]he primary purpose of the separate writing requirement is to allow a reviewing court to focus with precision on the action that was taken and the reasons supporting such action.” Id. Thus the Southfield rule requires only that a local board’s action be sufficiently discrete to allow a reviewing court to identify the action taken and why it was taken.
The Fourth and Eleventh Circuits developed yet a fourth interpretation of “in writing,” on the opposite end of the spectrum from Wallingford. In Virginia Beach, the Fourth Circuit confronted the following facts:
The Council ultimately voted unanimously to deny the application, a decision recorded both in a two-page summary of the minutes—describing the application, listing the names and views of all who testified at the hearing, and recording the votes of each councilman—and in a letter from the Planning Commission to the City Council describing the application and stamped with the word “DENIED” and the date of the City Council’s vote. Consistent with its usual practice, the Council did not generate written findings of fact concerning its vote, nor did it produce a written explanation of the basis for its vote.
155 F.3d at 425. The court held that “the City Council’s decision clearly was ‘in writing.'” Id. at 429. The following year, the court held that “the secretary [of the city council] writing ‘Denied’ on the first page of AT&T’s application, in the stamped form for approval or denial of this and similar requests, fulfills the ‘in writing’ requirement of § 332(c)(7)(B)(iii).” AT&T Wireless PCS, Inc. v. Winston-Salem Zoning Bd. of Adjustment, 172 F.3d 307, 312 (4th Cir. 1999).
Like the Todd court, the Fourth Circuit rejected the Wallingford “findings of fact” rule, holding that while the APA requires “a statement of . . . findings and conclusions, and the reasons or basis therefor,” § 332 of the TCA contains no such requirement. Virginia Beach, 155 F.3d at 429–30. Noting that “Congress knows how to demand findings and explanations” and did not do so in § 332, the court reasoned that “the simple requirement of a ‘decision . . . in writing’ cannot reasonably be inflated into a requirement of a ‘statement of . . . findings and conclusions, and the reasons or basis therefor.'” Id. at 430. The court held that the “substantial evidence” requirement—not the “in writing” clause—ensured that the court received enough information to allow for effective judicial review. Id.
The Eleventh Circuit similarly held that the “in writing” requirement is a light burden. T-Mobile S., LLC v. City of Milton, Ga., 728 F.3d 1274 (11th Cir. 2013). Like North Platte, the City of Milton first addressed a permit for construction of a telecom tower through a planning commission (in Milton, the city considered three separate permits for three proposed tower locations). Id. at 1277. The commission then made a recommendation to the city council. Id. at 1278. After a public hearing, individual city council members moved to deny two of the applications and “stated on the record five ‘not exhaustive’ reasons for denial,” whereupon the city council voted to deny the applications. Id. The city council subsequently sent letters informing T-Mobile of the denials but did not state the reasons for them. Id. at 1279. The hearings were recorded, transcribed, and memorialized in the minutes, which “detail[ed] the reasons given in support of and in opposition to each application, and the motions and their grounds, and recite[d] the unanimous vote on them.” Id. at 1279–80.
The Milton court rejected both the Wallingford and Todd (and implicitly New Par and Southfield) rules as expansions of the statutory text. The court reasoned:
The words of the statute we are interpreting require that the decision on a cell tower construction permit application be “in writing,” not that the decision be “in a separate writing” or in a “writing separate from the transcript of the hearing and the minutes of the meeting in which the hearing was held” or “in a single writing that itself contains all of the grounds and explanations for the decision.” See 47 U.S.C. § 332(c)(7)(B)(iii). So, to the extent that the decision must contain grounds or reasons or explanations, it is sufficient if those are contained in a different written document or documents that the applicant is given or has access to. All of the written documents should be considered collectively in deciding if the decision, whatever it must include, is in writing.
Id. at 1285.
We are persuaded that the Fourth and Eleventh Circuits have articulated the better rule. Nowhere does the statutory text require that the denial and the “written record” be separate writings. Section 332 requires only that the denial and the record both be written. Section 332 does not require that the written denial state the reasons for the denial. Congress may require an agency or board to state its findings. See, e.g., 5 U.S.C. § 557(c). Congress did not do so here.
Here, the parties agree that the City Council’s decision was written: the City Council passed and memorialized a formal resolution. The TCA requires no more than this. The City did not run afoul of the TCA by recording its decision in the “written record.”
The U.S. Court of Appeals for the Ninth Circuit has issued (and set for publication) what will inevitably become a heavily cited decision about wireless siting. This case is the logical next step in the line of MetroPCS v. San Francisco and T-Mobile v.Anacortes, albeit not as the wireless industry would have it.
From the Court’s summary (not a part of the case decision):
The panel affirmed in part and reversed in part the district court’s summary judgment on claims that the City of San Diego’s denial of continual use permit applications for telecommunications facilities violated the California Permit Streamlining Act, the federal Telecommunications Act, California Code of Civil Procedure § 1094.5, and the Equal Protection Clause.
Reversing the district court’s summary judgment in favor of the plaintiff on its claim that the City violated the time limits of the Permit Streamlining Act, the panel concluded that the permit applications were not deemed approved before the City denied them because “the public notice required by law” did not “occur.”
The panel affirmed the district court’s summary judgment in favor of the City on the other claims. The panel held that under the Telecommunications Act, the City’s decision to deny the permit applications was supported by substantial evidence, and the City did not misapply its Land Development Code. The permit denial did not constitute unreasonable discrimination among functionally equivalent service providers because the plaintiff and the City were not functionally equivalent providers. The permit denial did not constitute an effective prohibition of personal wireless services because the plaintiff did not demonstrate that its proposals were the least intrusive means of filling a significant gap in coverage.
The panel held that the plaintiff could not prevail under Cal. Civ. Proc. Code § 1094.5 because it did not have a fundamental vested right to the continued use of its facilities. The panel held that the permit denial did not violate equal protection because it was rationally related to the City’s legitimate interest in minimizing the aesthetic impact of wireless facilities and in providing public communications services.
Regarding the Telecommunications Act claims from the decision:
ATC advances three claims under the TCA. First, ATC claims that the City’s decision to deny the CUP applications was not supported by substantial evidence because the City misapplied its own Land Development Code. See 47 U.S.C. § 332(c)(7)(B)(iii). Second, ATC claims that the City’s denial of the CUP applications constituted unreasonable discrimination among providers of functionally equivalent services. See id. § 332(c)(7)(B)(i)(I). And third, ATC claims that the City’s denial of the CUP applications constituted an effective prohibition of personal wireless services. See id. § 332(c)(7)(B)(i)(II). We affirm the district court’s grant of summary judgment in favor of the City on all three claims. The City evaluated the CUP applications under the proper provision of the Land Development Code and supported its decision to deny the CUP applications with substantial evidence. In addition, the City did not unreasonably discriminate among providers of functionally equivalent services because ATC and the City are not functionally equivalent providers. Finally, ATC’s effective prohibition claim fails because ATC did not demonstrate that its proposals were the least intrusive means of filling a significant gap in coverage.
As to which side gets to decide “least intrusive means” the court said:
During the review process, ATC rejected relocation of the facilities or modifications that involved reduction in height or redesign of the towers. ATC essentially insisted that the City accept ATC’s conclusion that the existing facilities were the “least intrusive means,” without offering a feasibility analysis of alternative designs or sites for the City to reach its own conclusion. In effect, ATC would make the applicant—rather than the locality—the arbiter of feasibility and intrusiveness, gutting the “least intrusive means” standard with predictable, applicant-friendly results.
As we explained in MetroPCS, Inc., the “least intrusive means” standard “allows for a meaningful comparison of alternative sites . . . [and] gives providers an incentive to choose the least intrusive [means] in their first [ ] application[].” 400 F.3d at 734–35. To achieve these objectives, the applicant must make a prima facie showing of effective prohibition, which the locality may then rebut by demonstrating the existence of a potentially available and technically feasible alternative. City of Anacortes, 572 F.3d at 996–99. ATC did not adduce evidence allowing for a meaningful comparison of alternative designs or sites, and the City was not required to take ATC’s word that these were the best options. Consequently, ATC failed to show that its facilities were the least intrusive means of filling a significant gap in service coverage, and the City is entitled to judgment as a matter of law on the effective prohibition claim. Cf. id. at 989, 996–99 (finding a violation of § 332(c)(7)(B)(i)(II) where the provider made a prima facie showing of effective prohibition, including an analysis of eighteen alternative sites, and the locality failed to rebut the prima facie showing with evidence of available alternative sites).
There is a lot more to read, but you can see why this decision will become immensely important in guiding future siting cases at the state and local government level.
What’s next?
I expect American Tower to seek an en banc review of the decision by a larger 9th Circuit panel. I also expect that the request will be denied.
I believe other circuit courts will cite to this reasoned decision when reviewing the same types of issues that arise elsewhere.
Having lost big-time in the 9th Circuit, I expect the wireless industry to seek state legislation to try to effectively overturn portions of the 9th Circuit ruling. What happens at the federal level is as yet a wildcard.
An interesting question implied from this decision and raised by a really, really smart attorney in Orange County: Will no-notice administrative permits go out the window? I suspect that might well be the outcome!
Jonathan
Here is a link to the decision: http://cdn.ca9.uscourts.gov/datastore/opinions/2014/08/14/11-56766.pdf
I had the pleasure of having lunch today with Ken Schmidt, President of Steel in the Air. Although we have talked many times over the years, this is the first time we have met in the flesh.
Ken is exceptionally knowledgeable in the same areas where I and my associates practice, specifically in wireless leasing and telecom matters. We have been very friendly competitors over the years, and we enjoy talking shop about what’s happening in the leasing and regulatory worlds.
Like yours truly, Ken serves as an expert witness in wireless matters.
I always learn valuable things from Ken. Today, I also learned how much I enjoyed having lunch with him.
The U.S. Court of Appeals for the Ninth Circuit has issued (and set for publication) what will inevitably become a heavily cited decision about wireless siting. This case is the logical next step in the line of MetroPCS v. San Francisco and T-Mobile v. Anacortes, albeit not as the wireless industry would have it.
