Montgomery County v. FCC.

• Jurisdiction: United States
• Date: 01 November 2016

MONTGOMERY COUNTY V. FCC

811 F.3d 121 (4th Cir. 2015)

In Montgomery County v. FCC, (1) the United States Court of Appeals for the Fourth Circuit denied a petition for review of an FCC Order implementing "the [congressional] mandate that localities 'shall approve' facility-modification requests covered by Section 6409(a)" of the Spectrum Act. (2)

1. BACKGROUND

   Passed in 2012 as part of the Middle Class Tax Relief and Job Creation Act, the Spectrum Act seeks, in applicable part, to facilitate the timely deployment of wireless infrastructure by providing that "local governments 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." (3) Pursuant to its delegated authority under the statute, (4) the FCC issued an Order on October 17, 2014, to resolve several matters left unaddressed by the foregoing language from Section 6409(a) of the Spectrum Act. (5) The petitioners behind the administrative appeal in Montgomery County--a coalition of local governments, including Montgomery County, Maryland--were attempting to overturn two specific aspects of this Order.

2. ANALYSIS

   First, the Order established a "deemed granted remedy" to implement Section 6409(a)'s "shall approve" mandate. (6) In essence, the "deemed granted remedy" represents a sixty-day shot clock for local authorities to grant a covered facility-modification request before it is "deemed granted" by operation of federal law. (7) Citing landmark Supreme Court cases including Printz v. United States and New York v. United States, (8) the petitioners in Montgomery County argued that the FCC's "deemed granted remedy" violated the Tenth Amendment by conscripting local governments into the administration of a federal regulatory scheme. (9) The Fourth Circuit rejected this challenge, distinguishing the "deemed granted remedy" from federal overreaches in Printz and New York on the basis that the FCC's procedure does not require local governments to enforce the Spectrum Act. (10) To the contrary, the Fourth Circuit observed that "the 'deemed granted remedy' obviates the need for the states to affirmatively approve applications." (11)

   The second component of the Order at issue in Montgomery County involved the FCC's interpretation of two undefined terms in Section 6409(a), setting the parameters for what requests trigger the Spectrum Act's "shall approve" mandate--and, in turn, the default protection of the Order's "deemed granted remedy." (12) The first challenged definition from the Order was that given to the term "base station," which the FCC construed broadly "to include 'structures other than towers that support or house an antenna, transceiver, or other associated equipment,' even if the structure was not built primarily for that purpose." (13) The second...