Agenda - Planning Commission - 03/03/2016

Home

Zoning Bulletin February 10, 2016 1 Volume 10 1 Issue 3 unconstitutional and unreasonable Citation: Montgomery County, Md. v. F.C.C., 2015 WL 9261375 (4th Cir. 2015) The Fourth Circuit has jurisdiction over Maryland., North Carolina, South Carolina, Virginia, and West Virginia. FOURTH CIRCUIT (12/18/15)—This case addressed the issue of whether an FCC rule, implementing federal statute, and deeming granted applications for telecommunication collocation or other modification ef- forts by default if not acted on by the state within 60 days, violated the 10th Amendment, which forbids the federal government from requiring states to enforce federal laws. The Background/Facts: In 2012, Congress passed the Spectrum Act as part of the Middle Class Tax Relief and Job Creation Act. The Spec- trum Act included, among other things, "a series of measures designed to encourage the growth of a robust national telecommunications network." Section 6409(a) of the Spectrum Act, entitled "Wireless Fa- cilities Deployment: Facilities Modifications" addresses wireless provid- ers' efforts to expand their networks by modifying existing electronic equipment that sits atop towers and other structures. Prior to enactment of the Spectrum Act, wireless providers seeking to collocate transmis- sion equipment would need local zoning approval. Under the Spectrum Act, § 6409(a)(1), local authority is now limited as local authorities can- not bar collocation or other modification efforts. Section 6409(a)(1) provides: "[n]otwithstanding 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." (47 U.S.C.A. § 1455(a)(1).) The Spectrum Act defines "eligible facilities request" as: "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." (47 U.S.C.A. § 1455(a)(2).) In summary, the relevant provisions of the Spectrum Act "forbid localities from exercising their zoning authority to deny providers' requests to modify wireless equipment, so long as the proposed modifi- cation does not `substantially change the physical dimensions' of the facility." Congress charged the Federal Communications Commission ("FCC") © 2016 Thomson Reuters 3