On Tuesday, June 9, 2020, the Federal Communications Commission adopted, on a divided, party-line vote, a new Declaratory Ruling and Notice of Proposed Rulemaking that expands wireless telecommunications carriers rights under federal law to install and expand cell towers and related wireless facilities. The FCC adopted this ruling to, in its own words, “facilitate the deployment of 5G networks.” This week’s ruling continues the FCC’s recent rulings that expand federal preemption of local zoning and land use controls. Litigation is likely, and cities may wish to evaluate their wireless facilities ordinances meanwhile.

The FCC’s new ruling, No. 20-75, issued June 10, 2020, stemmed from wireless industry representatives’ petitions last year seeking clarifications and relief from standards imposed by local governments to regulate wireless facilities. The petitions sought clarification by the FCC on the requirements of Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012. (Public Law No. 112-96, 126 Stat. 156, codified at 47 U.S.C. § 1455.) This federal law provides that a city “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. § 1455, subd. (a)(1).) The wireless industry has long contended that cities are still overly strict in their implementation of Section 6409, and sought FCC clarification to narrow several elements of the test for determining whether a proposed modification is or is not a “substantial change.” Tuesday, the FCC granted the wireless industry’s request.

The FCC’s ruling provides, in its Declaratory Ruling portion effective immediately, that the Section 6409 shot clock starts when an applicant submits documentation that the application is protected by Section 6409 and takes the first objectively verifiable procedural step required by a city to submit an application. This might be earlier than the formal submission of an application, if a city requires a meeting with staff before submitting an application. Cities may wish to evaluate their application process, given this new shot clock standard. The ruling also narrows the term “equipment cabinets,” as used in the law limiting a protected application to not more than four new equipment cabinets, to not include smaller electronic components and to be counted for each separate modification request, allowing successive expansions of a wireless facility by four cabinets at a time. The ruling further narrows the definition of the term “concealment element,” as used in the requirement that a protected application cannot defeat existing concealment elements, to only features that make a wireless facility not look like a wireless facility. This undermines cities’ ability to protect their existing stealth requirements. Last, the ruling’s proposes a new federal regulation, which would take effect if approved by the FCC after a coming notice and comment period. This new regulation would revise existing rules stating that a protected application cannot exceed the boundaries of the existing wireless site by determining the boundaries not by the site as it existed when approved by the city, but rather by the site as it exists when the application is submitted. This would validate some unpermitted expansions of a wireless site. As a whole, the ruling continues the FCC’s preemption of local zoning and land use control.

Local governments in California and across the nation are concerned about the ruling and its further expansion of federal preemption of local zoning and land use authority over cell towers and wireless industry infrastructure. Litigation challenging the ruling is likely. This would add to existing litigation brought by the League of California Cities and other local governments, (City of Seattle v. United States, Ninth Circuit Case No. 18-72886, pending with City of Portland v. FCC, Ninth Circuit Case Nos. 18-72689 & 19-70490), challenging an earlier FCC ruling, No. FCC-18-133, that also promoted wireless industry development and “small cell” sites by limiting cities’ control of the public right of way, the amount local governments can charge for use of their right of way, and severely restricting the time for application review and evaluation. Stay tuned as further developments, at the FCC and in the courts, are likely.