Agenda - Planning Commission - 03/03/2016

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Zoning Bulletin February 10, 2016 1 Volume 10 1 Issue 3 neither Congress nor the FCC could compel the states to administer federal regulatory programs or pass legislation. However, the court noted that the 10th Amendment did not prohibit federal rules from asking "states to choose between regulating according to federal standards or having a federal agency step in to regulate." Here, the court found that the Order implementing § 6409(a) did not require the states to take any action at all. The "deemed granted" proce- dure allowed applications for facility modifications to be granted by default, without need for state affirmative approval. The court rejected the Locals' argument that even under the default -grant scenario, it is the state itself granting the application. Rather, the court found that the ap- plications are granted only by operation of federal law—thus under federal authority, not local. In other words, the court found that the Or- der and the "deemed granted" procedure did not require localities to exercise their legislative power to grant applications. Thus, "[f]unction- ally," under the Order and the "deemed granted" procedure, Congressio- nal authority preempted state regulation of wireless towers. Accord- ingly, the court concluded that the Locals' 10th Amendment challenge "lack[ed] merit." The court also found that, contrary to the Locals' arguments, the FCC had not unreasonably defined several terms of the Spectrum Act—"base station" and what constitutes a "substantial" modification to the physical dimensions of a wireless tower or base station. The court explained that the FCC's interpretation of those ambiguous terms in the statute would be entitled to deference if "based on a permissible construction of the statute." The court found that it was "not unreasonable for the FCC to supply a strictly numerical definition of substantiality [here], because the physi- cal dimensions of objects are, by their very nature, suitable for regula- tion through quantifiable standards." Importantly, the court noted that the Locals did not supply suggested alternative objective standards, but rather argued that municipalities should be able to review applications on a case-by-case basis. Thus, the court found that their dispute was "not with the particular standards the FCC has selected, but with the fact that the FCC has set forth objective standards that divest municipalities of their reviewing discretion." The appeal here was not the proper forum for municipal grievances about federal regulations that displace the discretion of local governments, said the court. The Locals had also argued that the FCC had erred by extending the Order's rules to facilities that localities initially approved only on the condition that the facility not be modified in the future. Again, the court found that to be a policy argument, not a statutory interpretation argument. As to the statutory interpretation question—and whether the FCC's definition of the term should be given deference—the court found that the FCC's view was that, "regardless of the circumstances under 2016 Thomson Reuters 5