It seems like almost every major action taken by the FCC get appealed these days. In a demonstration of how slow the courts can be, in September, the Ninth Circuit Court of Appeals largely upheld the original FCC order from June 2020 that made it easier for wireless carriers to locate new towers and transmitters. The new rules ordered by the FCC then have been on hold for four years while the courts considered the issues under appeal.

The appeal court ruling is a win for wireless carriers and will be seen as a loss by the 780 local governments that had participated in the challenge.

The lawsuit filed by local governments challenged several specific aspects of the original FCC order:

• The FCC order clarified what triggers a 60-day shot during which a local jurisdiction must review and approve an application to build a new tower or modify an existing one.
• The FCC order defined when a modification that increases the height of a wireless tower outside of the public right-of-way would qualify as a substantial change that requires local action.
• The FCC order defined that adding equipment cabinets to a tower site constitutes a substantial change that requires local action.
• The FCC order clarified the ability of carriers to ignore physical dimension limitations on a tower if the changes are to add concealment elements to a structure.
• The FCC had defined the evidence that a local government must show when disapproving changes to existing towers.

The Court approved the FCC order for all five issues. For the fourth issue above, Court disallowed one of the FCC’s clarifications. The Court disallowed the FCC’s definition of a concealment element, which was defined to only apply when a tower that is being made to look like something else, like a tree. The original FCC order said had specifically excluded an example like one in San Francisco that required that a rooftop tower be set back from the edge of the roof so that it couldn’t be seen from the street. The Court said the FCC order erred in not defining that situation as a concealment element.

The original order had been issued during the Ajit Pai FCC, with votes following party lines. Commissioners Jeffery Stark and Jessica Rosenworcel had dissented at the time saying the FCC had erred by not going through a full rulemaking to give local governments a chance to be heard on the issue.

Unfortunately, having challenges to rules made by the FCC and other regulatory bodies is becoming the new norm. Several recent Supreme Court rulings make it even easier to challenge orders.

Industry insiders often argue about which FCC regime has been the most productive. But perhaps we can’t compare FCC regimes by the actions they take, but must instead wait for a few years to see what actions actually went into effect.