First Thoughts on Today’s FCC 6409(a) Report and Order

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.

Telecom Law Firm, P.C.


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:



(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.


A Tin Foil Hat with Every Vote

Candidate Kevin Moddus, sans his tin foil hat.
Candidate Kevin Moddus, without a tin foil hat.

UPDATE: Seems like the voters in the 33rd were not looking for rolls of tin foil.  Mr. Mottus received just 2.4% of the votes cast.  He came in 7th.  The 6th place candidate had a hair shy of 3-times as many votes compared with Mr. Mottus.

Meet Mr. Kevin Mottus. He is running for Congress to fill the 33rd Congressional Seat here in Los Angeles being vacated by 40-year veteran congressional Henry Waxman.

I don’t think Mr. Mottus will be getting any campaign donations from the PCIA, CTIA, or the California Wireless Association.

Mr. Mottus seems to think of brain cancer as his chief opponent in the race for the 33rd District seat, and that cancer is from only one possible source.  Yup.  You guessed it.

The campaign website of Mr. Mottus makes clear his big issue — the one that populates the majority of his front page, and is reenforced by an entire  page devoted to scare videos.  He asserts that “[w]ithout any actual Safety Standards in place for this Technology, we are being used as a Massive Human Experiment on the long term Health Effects from RF Radiation Exposure from Wireless.”

Gee, I thought 47 C.F.R. 1.1307 et seq were those actual Safety Standards.


Listen to the recorded message Mr. Mottus bombarding via autodialers to 33rd District residents:


Quote from PCIA’s Webinar on Sec. 6409

I had a chance to legitimately listen in on the PCIA’s webinar last week providing their membership with the industry’s view of how the new rules are to be used, and taught to local governments.

I won’t go into much detail now about the PCIA’s webinar now, other than to say three things:

1. It was informative to hear the PCIA’s view of the strengths and weakenesses of the new law; and

2. Far more teaching than boasting occured (to the PCIA’s credit); and

3. The ‘quote of the meeting’ (relating to a local government’s limited ability to deny a Sec. 6409 project) was:

“If the tower doesn’t grow, they can’t say no!”

I’ll be sharing more from the PCIA’s webinar when I conduct mine (for local government attorneys/agencies) on April 5th. If you qualify, please sign up at

About half the slots are now reserved, so please don’t wait until the last moment to sign up. One hour of MCLE credit has been applied for.


PCIA says Sec. 6409 worth “hundreds of millions of dollars”

Let me start by saying that I personally like and respect Mike Fitch, who is the President and Chief Executive Officer of the PCIA – The Wireless Infrastructure Association.  I’ve had the pleasure of sitting next to him several times on panels at wireless and government conferences. Mike is a smart guy, well spoken, and well spoken of.

You know, however, that with a preface like that I’m leading to something…

I’m disappointed that in announcing the passage of Section 6409 to the various state wireless associations, Mike said in part in his memo:

Significant victory for the industry

This legislation is an important win for our industry. It will save hundreds of millions of dollars as the industry deploys new technologies without wasteful review of existing wireless infrastructure sites. This will enable better network planning and build-out on existing and new sites. It will produce more capital investment and job growth to keep up with the dramatic increase in wireless use.

(Emphasis added.)

Wasteful review of existing wireless sites?

I suspect that significant segments of the public and state and local governments don’t agree that their reviews of wireless site collocation applications is “wasteful.”  Rather, it’s far more likely that the public and governments would says that the review is necessary to promote community aesthetics, and to deter the expansion of legal non-conforming uses.

It’s interesting that in Mike’s public press release posted to the PCIA website, he omitted the “wasteful” reference, when he said:

This legislation is a significant victory for our industry and for all consumers, businesses and public safety agencies that rely on wireless connectivity. . . It is a common sense measure that will significantly reduce regulatory burdens on infrastructure deployment—saving the industry hundreds of millions of dollars over many years. The ultimate beneficiaries are the nation’s wireless users, who will gain access to better, faster and more ubiquitous service as a result of the accelerated pace of deployment.

It’s all in the eyes of the beholder.  What is wasteful to one is protective to another.  For now, however, the industry has scored a major victory.

Local governments are already talking about how to work with and around the worst parts of Section 6409, and how to track the results of those 145 words.