MONTGOMERY CO. v. F.C.C. NO. 15-1240, 15-1284

Decided: December 18, 2015

The Fourth Circuit denied the petition for review.

The Fourth Circuit began by laying out the statutory and regulatory framework, looking at the creation of the Spectrum Act, specifically Section 6409(a) of the Act, and an Order issued by the FCC implementing that section. The Court focuses on two aspects of the Order, one that establishes a “deemed granted remedy,” and the other that clarifies the definitions of “substantial,” “wireless towers,” and “base stations.” After carefully describing both aspects of the Order, the Court then turned to Petitioners’ arguments that the FCC’s order violates the Tenth Amendment “by compelling the states to grant permit applications,” and that the definitions in the Order are inconsistent with the Act.

With respect to the Tenth Amendment argument, the Court determines that it has jurisdiction to review constitutional challenges, and that it is to set aside agency action that is “contrary to constitutional right.” Specifically, as delineated in case law, the Tenth Amendment does not allow the federal government to require states to enforce federal law, subject to certain exceptions. However, when the Court reviews the “deemed granted” procedure, it concludes that the procedure complies with the Tenth Amendment. The Order does not force the states to take action, because the “deemed granted” provision gets rid of the need for the states to “affirmatively approve applications,” instead allowed them to be granted by default without states’ approval. Therefore, there is no Tenth Amendment conflict.

The Court then turns to the Petitioners’ contentions that the FCC terms were unreasonably defined in the Act. However, the Court determined that it could set aside the Order only if concluded that the FCC’s rules were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Furthermore, under Chevron, the FCC was entitled to deferential review of its interpretation of Section 6409(a). The Court then applied the Chevron analysis. First, the Court found that the terms at issue are ambiguous. Therefore, the sole inquiry before the Court under the analysis was whether the interpretation was “based on a permissible construction of the statute.”  Specifically, the Court looked at how the FCC defined “substantially change” and “base station.” Petitioners argue that the FCC should have permitted municipalities to review applications on a case-by-case basis, and because of this, the Court determines that they are not arguing about the standards themselves, but about the fact that the FCC set those standards at all, an argument that the Court deems is improperly raised in the Court. However, the Court concludes that the standards do allow for the incorporation of some context, even if there is no case-by-case consideration. As to the definition of “base station,” the Court determines that its definition does align with the purpose of Section 6409(a), and that it is defined in accordance with the regulatory schemes; in this case, the definition is “consistent with Congress’s intent to promote the expansion of wireless networks through collocation.” Therefore, the Fourth Circuit held that the Petitioners failed to carry their burden, and denied their petition.

Full opinion

Jennie Rischbieter

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