Reliable access to the wireless network has never been more essential. 97% of adult Americans own a cellphone.1 83% of people ages 3 and older in the United States used the internet in some fashion in 2023.2 The latest advancement in the telecommunications industry—5G technology—supports medical devices, regulates heart monitors, and reduces latency to assist in real-time surgical procedures.3 Vehicle-to-vehicle communications enable an autonomous vehicle to share information with other vehicles, addressing immediate traffic management demands and reducing automobile accidents.4 Nearly all 911 calls originate from a cell phone.5 The list goes on.
The Federal Communications Commission (“FCC”)—the independent government agency that regulates the telecommunications network—has been granted wide latitude by Congress to promulgate rules to make telecommunications available on a rapid, efficient, and nationwide service. Since the Supreme Court’s 1984 Chevron decision, federal courts were required to defer to FCC interpretations of the authority granted to it by Congress where the intent of Congress was ambiguous and where the FCC interpretation was reasonable.6 In other words, even if the court disagreed with the agency’s interpretation or thought there was a better reading of the statute, the court would defer so long as the agency’s interpretation was reasonable. The reasoning in support of an agency’s ability to interpret ambiguous laws is that agencies have experts in their fields to make these interpretations, and these experts can be held accountable to the agencies for which they work. Since Chevron, the FCC—like all other government agencies—exercised its statutory authority to provide indispensable telecommunications service.
That statutory authority is gone. Sort of.
The Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo overruled Chevron, holding that federal agencies are no longer entitled to deference when they interpret ambiguous statutes.7 The Court’s power grab in Loper Bright found that Chevron deference is incompatible with the Administrative Procedure Act (“APA”) and the traditional role of courts to interpret the meaning of statutes. Loper Bright’s impact on the telecommunications industry is difficult to predict and will be felt for many years. Nevertheless, it’s important to understand the genesis of the FCC’s statutory authority to predict the future of the telecommunications industry and its impact on everyday life.
The Communications Act of 1934, as amended by the Communications Act of 1996 (“Communications Act”), governs federal, state and local government regulation of the siting of personal wireless service facilities.8 The impetus of § 151 of the Communications Act is to establish a national policy to “make available, so far as possible, to all people of the United States, without discrimination . . . a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges, for the purpose of national defense, [and] for the purpose of promoting safety of life and property through the use of wire and radio communications.” To meet these objectives, the Communications Act assigns the FCC statutory authority under the “notice and comment” provisions of the APA for “the purpose of regulating all interstate and foreign communications by wire or radio and all interstate and foreign transmission of energy by radio.”9
Zoning and Permit Applications
On a practical level, FCC rulemaking arms telecommunications infrastructure providers, such as Crown Castle, SBA Towers, and TowerCo, with authority to construct facilities for wireless providers to facilitate the development and deployment of wireless services consistent with the goals of the Communications Act. Wireless providers like Verizon, AT&T, and T-Mobile partner with the infrastructure providers to deliver commercial mobile radio services, personal and advanced wireless services, and other telecommunications services, as those terms are defined under federal law.
To advance the national policies enumerated under the Communications Act, infrastructure and wireless providers create and maintain a network of “cell sites,” each of which consists of antennas and related electronic communications equipment designed to send and receive radio signals. To provide reliable service to a user, coverage from cell sites must overlap in a grid pattern resembling a honeycomb. If infrastructure providers are unable to construct a cell site within a specific geographic area, the wireless carriers it serves will not be able to provide service to the consumers within that area.
To determine where a new wireless facility is required, radio frequency (“RF”) engineers use various techniques, such as sophisticated computer programs, field testing, topography of the land, and coverage boundaries of neighboring cell sites to complete a propagation study. This area is known as the “search ring.”
For a wireless network to perform, cell sites must be located, constructed, and operated so that reliable service can be achieved. If there is no functioning cell site within a given area, there will be no reliable service for customers within that area, and customers who live or travel in the area will experience an unacceptable level of dropped calls and call connection failures.
To remedy underserved (or unserved) areas, applications are filed with state or local governmental entities for zoning and permit approval. In my experience representing wireless and infrastructure providers, the most significant obstacle to deploying wireless services has been a locality’s reluctance to grant zoning approval when the zoning ordinance is at odds with FCC rulemaking and the Communications Act. (The other significant obstacle is, of course, that a sizable portion of the applications are treated by the localities as a NIMBY (not in my backyard) or BANANA (build absolutely nothing anywhere near anyone).) It’s not uncommon for state or local governments to adopt regulations that contradict or don’t account for FCC rules. Technology is always ahead of the law, and it’s impossible for state and local governments to legislate for advancements in technology that don’t yet exist. (Naturally, state and local governments don’t appreciate the narrative that their regulations are essentially obsolete based on the decision of unelected FCC commissioners.)
Here’s an example of FCC rulemaking preempting a locality’s antiquated ordinance for wireless infrastructure to be deployed. I represented a telecommunications provider in a zoning hearing to construct a 250' telecommunications tower in a Rust Belt City. This application required the zoning board, among other things, to grant two variances: (1) a 50' height variance from the 200' height limitation on towers; and (2) a prohibition of towers being located within two miles from each other (the proposed tower would be located approximately 0.8 miles from an AM radio tower).
Because no existing towers or structures exist in the search ring that can accommodate collocation of additional wireless antennas, RF engineers concluded that the construction of a new tower facility was necessary. An appropriate candidate would fill the gap in service, comply with local zoning requirements (or be eligible for a variance from local zoning requirements), be leasable, and be buildable. A property that does not meet each of those requirements is not a viable candidate.
The tower was proposed to be located on a specific property because (1) it was located in the search ring and thus sufficient to remedy the wireless provider’s gap in service; (2) it was in a zoning district that permits wireless facilities; (3) the property owner was willing to lease a portion of land for the construction of the tower; and (4) it was suitable for constructing and maintaining the tower. Due to its size, the property chosen was the only suitable property in the search ring.
Nevertheless, testimony was provided to the zoning board that numerous other properties were evaluated. Evidence was presented that the surrounding properties were lower in elevation than the subject property and would have required the same height and tower-to-tower setback variances as the proposed tower, and in some instances, would require a variance from property line setbacks. Moreover, the RF engineer testified that the proposed tower was the minimum height necessary to service the area based on the aggressive topography of the Appalachian Mountains, and that no other facilities existed within the search ring to deploy this infrastructure. While the zoning ordinance designated towers as permitted uses in the zoning district, the two-mile tower-to-tower setback requirement meant that any tower in a location suitable to meet the wireless provider’s needs would require a variance.
The zoning board denied the application. The zoning board’s decision stated, in part, that the denial was appropriate because the requirements for the grant of the variances were not met under the zoning ordinance. This situation isn’t unique, as countless applications are denied perennially by localities across the country for identical reasons.
FCC Rulemaking Power
Mindful of the various standards and ordinances among the jurisdictions, advancements in technology, and the need for wireless services to be deployed, the FCC has routinely promulgated rules to preempt local zoning regulations. As stated by one court, the Communications Act “strikes a balance between two competing aims—to facilitate nationally the growth of wireless telephone service and to maintain substantial local control over siting of towers.”10
In this zoning case, the wireless provider authorized me to file an appeal based on the rules promulgated by the FCC. These rules are the “tools” the wireless industry, and its counsel, utilize for zoning applications to be granted and, in the case of a denial, the legal justification to reverse a locality’s decision on appeal. The wireless industry was provided a then-recent “tool” when the FCC issued its Declaratory Ruling and Third Report and Order known as the “Small Cell Order.”11 That Order replaced the FCC’s antiquated “significant coverage gap” test and, among many other things, established a framework for wireless providers to challenge state and local regulations that “prohibit or have the effect of prohibiting” the provision of wireless services. Under the FCC Small Cell Order, a state or local government violates the Communications Act whenever it “materially inhibits” a provider’s ability to enter a new area, provide new services in an area, or improve service in an area.12 In my case, the locality and its counsel came to appreciate the FCC rulemaking power on appeal and a settlement was reached to construct the facility.
So, why is this important for the wireless industry and its counsel? Armed with FCC orders, the wireless community advises localities that the denial of a zoning application cannot “prohibit or have the effect of prohibiting” wireless service. Without the FCC orders, applications like mine in the Rust Belt city would be denied, and local zoning ordinances that contradict or don’t account for advances in technology would leave countless users without service. Of course, as technology advances, the need for wireless service grows, and challenges to the “materially inhibit” standard are heard in federal court, the FCC—as it has historically done—would likely exercise its regulatory authority to promulgate new rules to facilitate the growth of the wireless network. This pattern has repeated itself since Chevron in order to make telecommunications available on a rapid, efficient, and nationwide service.
Loper Bright has stifled this pattern.
Consequences
Future FCC orders interpreting the Communications Act are no longer presumed to be reasonable or permissible. Conversely, Loper Bright requires the FCC to demonstrate that new regulations are justified under the “best reading” of the Communications Act, and courts must come to the conclusion about the best reading of the statute.13 Naturally, all judges won’t agree on the “best reading” of a statute and, in my opinion, an increase in forum shopping will ensue.
Loper Bright will likely result in a massive rollback of what agencies will be able to achieve. The end result is that agencies like the FCC will be mired in crafting the “best reading” of the Communications Act at the expense of delivering rapid service. These challenges will occur at a time when the FCC is battling Chinese telecommunications giant Huawei, and will also have an impact on national security, 5G applications, public health and safety, managing the growing demand for finite resources like spectrum, radio frequency interference, aesthetics standards, and development of 6G technology.
It’s undeniable that Loper Bright represents a massive power shift from the executive branch to the judiciary. Nevertheless, as Associate Supreme Court Justice Robert Jackson once articulated the role of the Court, “[w]e are not final because we are infallible, but we are infallible only because we are final.”14
Click here to read Joseph's article published by Arizona Attorney Magazine.
- https://www.pewresearch.org/internet/fact-sheet/mobile/#:~:text=The%20vast%20majority%20of%20Americans,a%20cellphone%20of%20some%20kind. ↩︎
- https://www.ntia.gov/blog/2024/new-ntia-data-show-13-million-more-internet-users-us-2023-2021#:~:text=72%20percent%20of%20people%20lived,with%2014%20percent%20in%202021. ↩︎
- https://www.sciencedirect.com/science/article/pii/S2949866X23000011#:~:text=5G%20technology%20can%20support%20various,using%205G%2Dconnected%20diagnostics%20equipment. ↩︎
- https://www.verizon.com/business/resources/articles/s/self-driving-cars-edge-computing-5g/. ↩︎
- https://transition.fcc.gov/files/documents/bring-wireless-911-rosenworcel.pdf. ↩︎
- Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984). ↩︎
- Loper Bright Enterprises v. Raimondo, 603 U.S. ____ (2024), 144 S. Ct. 2244. ↩︎
- 47 U.S.C. § 332(c)(7). ↩︎
- 47 U.S.C. § 152. ↩︎
- Omnipoint Communications, Inc. v. City of White Plains, 430 F.3d 529, 531 (2d Cir. 2005). ↩︎
- Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, WT Docket No. 17-19 and WC Docket No. 17-84. ↩︎
- See In the Matter of Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Inv., 33 FCC Rcd. 9088 (2018). ↩︎
- Loper Bright Enterprises v. Raimondo, 603 U.S. ____, 3 (2024), 144 S. Ct. 2244. ↩︎
- Brown v. Allen, 344 U.S. 443 (1953). ↩︎
ABOUT THE AUTHOR
Joseph J. Perotti, Jr. is an of counsel attorney in the commercial real estate group at Gallagher & Kennedy. Joe relocated to Arizona last year from the East Coast, where he served as outside legal counsel for national telecommunications providers and advised on legislative and FCC Orders on broadband wireless networks and infrastructure deployment issues. His extensive experience in the telecommunications industry includes transactional matters, environmental due diligence review, zoning and re-zoning, and land use appeals in state court.