Agenda - Planning Commission - 03/03/2016

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February 10, 2016 1 Volume 10 1 Issue 3 Zoning Bulletin with implementation of the Spectrum Act, and, in October 2014, the FCC issued an order implementing the Act (the "Order"). These FCC's rules were codified at 47 C.F.R. § 1.40001. Among other things, the Or- der implemented the statute's directive that localities "shall approve" applications by establishing what the Order calls a "deemed granted remedy." The Order also clarified what kinds of physical modifications were "substantial," and what types of facilities qualified as "wireless towers" and "base stations" within the meaning of the statute. Under the Order's "deemed granted remedy," a locality has 60 days to review an application for a covered (under the Spectrum Act) facility - modification request, if it elects to review the application at all. Within those 60 days, the locality must approve the application unless it deems it not covered by the Spectrum Act. Failure to act within the 60 -day pe- riod deems the requested application "granted." (47 C.F.R. § 1.40001(c).) Also, under the Order, the FCC provides a multipart definition establishing objective criteria for determining when a proposed modifi- cation "substantially changes the physical dimensions" of a facility (and is thus subject to local discretionary review). For example, increases in tower height by more than 10% is defined by the Order as a "substantial change," as is installation of "more than the standard number of new equipment cabinets for the new technology involved, but not to exceed four cabinets," and "any excavation or deployment outside the current site of the tower or base station." The Order defined "base station" as "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 (i.e., any structure with transmission equipment installed on top). A coalition of local authorities (the "Locals") challenged the issuance of the Order. They contended that the procedures established in the Or- der—particularly the "deemed granted remedy"—violated the 10th. Amendment's prohibition on the federal government requiring states to enforce federal laws. They argued that the "deemed granted" procedure compelled local and municipal governments to participate in federal regulatory efforts by approving infrastructure permits. They also contended that, in the Order, the FCC unreasonably defined "base sta- tion" and what qualified as a "substantial" modification. The FCC denied the Locals' request for reconsideration of the Order. The Locals petitioned for judicial review. DECISION: Determination of FCC affirmed. The United States Court of Appeals, Fourth Circuit, first held that the FCC's "deemed granted" procedure was constitutional and did not violate the 10th Amendment of the United States Constitution. In so holding, the court acknowledged that—as per the 10th Amendment - 4 © 2016 Thomson Reuters