A recent federal court decision has dealt the latest whack to the mole that is local government intransigence, at least in some parts of the country, to rapid wireless infrastructure deployment.
As a nation, Americans generally acknowledge that technological innovation improves consumers' lives. New 5G wireless networks, one of the latest such examples, offer substantially faster speeds, facilitate innovative use cases, and, in many instances, provide a viable substitute to fixed broadband offerings. U.S. mobile carriers have established a first-mover advantage in the global race to 5G, and maintenance of that benefit-generating lead hinges upon the timely upgrade of network infrastructure.
Nevertheless, there exists a storied history of many state and local governments placing revenue-generating and other parochial interests above that greater good.In response, Congress passed Section 6409(a) (47 U.S.C. § 1455) as part of the Middle Class Tax Relief and Job Creation Act of 2012. It states in relevant part that "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."
In 2014, the FCC adopted rules implementing Section 6409(a). One such provision, Section 1.6100(c), establishes a 60-day shot clock pursuant to which "the State or local government shall approve the application unless it determines that the application is not covered by this section."
In the fall of 2020, during the COVID-19 pandemic and the increased network demands that it generated, T-Mobile submitted more than 80 applications to make non-substantial modifications to existing wireless infrastructure in San Francisco. The city did not act on every one of those applications within the 60-day window, and eventually the matter ended up before the Northern California District Court.
On March 19, 2021, the court issued an Order granting, in part, T-Mobile's motions for summary judgment and a preliminary injunction.
This dispute is somewhat unique. The parties agree on the basic facts: that the applied-for modifications qualify as "eligible facilities request[s]" under Section 6409(a), that San Francisco failed to act upon T-Mobile's applications before the 60-day shot clock expired, that T-Mobile provided the city with the required notifications thereafter, and even that those applications are "deemed granted" under Section 1.6100(c)(4) of the Commission's rules.
The controversy, instead, centers on the specific judicial remedies to which T-Mobile is entitled.
T-Mobile sought injunctive relief in the form of a court-issued mandate to grant the requested permits. Understandably, it wanted the administrative certainty that comes with possession of such a document.
In its Reply in Support of Motion for Summary Judgment and Motion for Preliminary Injunction (PACER account required), T-Mobile highlighted the fact that, in the Commission's 2014 Report and Order implementing Section 6409(a), it expressly stated that "[w]ith respect to the appropriate forum for redress or for resolving disputes, including disputes over the application of the deemed granted rule, we find that the most appropriate course for a party aggrieved by operation of Section 6409(a) is to seek relief from a court of competent jurisdiction."
Accordingly, T-Mobile maintained that it was entitled to a preliminary injunction directing the city to issue permits for the applications that the city did not dispute were "deemed granted."
The city countered that the Fourth Circuit's 2015 decision in Montgomery County, MD v. FCC, holding that Section 6409(a) does not run afoul of the Supreme Court's anti-commandeering doctrine, is premised on the fact that it "does not require the states to take any action at all, because the 'deemed granted' remedy obviates the need for the states to affirmatively approve applications."
Citing the seminal Supreme Court anti-commandeering cases Murphy v. NCAA and Printz v. United States, San Francisco asserted that the availability of the judicial relief that T-Mobile sought – a preliminary injunction imposing an affirmative duty upon the city to issue permits – would render Section 6409(a) unconstitutional.
In its minimalist Order, the court essentially sidestepped this issue. Specifically, it (1) concluded as a general matter that Section 6409(a) does not violate the anti-commandeering doctrine, and (2) refused to require the city to issue the permits – without weighing in explicitly on whether any interdependency exists between the former and the latter.
For more on the anti-commandeering doctrine and Section 6409(a), please read Free State Foundation Director of Policy Studies and Senior Fellow Seth L. Cooper's July 2018 Perspectives from FSF Scholars, "FCC's Proposals Promoting Infrastructure Deployment Don't Violate Anti-Commandeering Rule."
Returning to the whack-a-mole metaphor I used at the top, this decision, along with the FCC's June 2020 5G Upgrade Order that Mr. Cooper discussed in two posts to the FSF Blog, highlight the determination with which some local governments defend and maintain their approval power – and the important efforts by the FCC and the courts to beat back those attempts.
In its Reply, T-Mobile alleged that the city, in a direct attempt to defy the intent of Section 6409(a), "continued to process applications, including issuing notices for nearly all of the October Deemed Granted Applications after T-Mobile deemed those applications granted, asserting that T-Mobile's applications conflict with City zoning, building, and health and safety codes."
The court took action to block this end run around Section 6409(a) by issuing a preliminary injunction stating that the city is "estopped from imposing penalties or in any way preventing T-Mobile from proceeding with installations for T-Mobile's deemed granted applications."
Similar efforts to craft workarounds to the FCC's 2014 rules implementing Section 6409(a) became apparent in the years after their adoption. As Commissioner Brendan Carr acknowledged in a 2020 speech, "sometimes our rules are being read to delay or block what should be straightforward projects."
As a result, Commissioner Carr spearheaded the effort leading to adoption of the 5G Upgrade Order, which offered clarifications designed to "provide greater certainty to applicants for State and local government approval of wireless facility modifications, as well as to the reviewing government agencies, [which] should accelerate the deployment of advanced wireless networks."
It appears that, left unchecked, some local governments might pursue any means necessary to reclaim the power they once wielded over mobile carriers via the permitting process. The Northern California District Court's recent Order is the latest example of responsive actions to stay one step ahead of such efforts – and, in doing so, defend and advance the federal policy to prioritize the rapid deployment of communications infrastructure, including 5G networks, that benefit all Americans.
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