969 F.3d 1020
9th Cir.2020Background
- 5G requires dense deployment of many small cell wireless facilities, prompting regulatory disputes over local permitting, fees, and aesthetics.
- In 2018 the FCC issued three orders at issue: the Small Cell Order (limits on local fees, aesthetics rules, and shot clocks), the Moratoria Order (definition and limits on express and de facto moratoria), and the One‑Touch Make‑Ready Order (procedures for pole attachments under §224).
- Petitioners include numerous cities/counties, public and private utilities, and some service providers; respondents are the FCC and the United States; consolidated petitions were heard in the Ninth Circuit.
- Statutory framework: Telecommunications Act of 1996—principally 47 U.S.C. §253(a) (no state/local statute may prohibit or have the effect of prohibiting provision of telecommunications services), §332(c)(7) (limits on local regulation of wireless facilities), and §224 (pole attachment regulation).
- The Ninth Circuit panel: granted in part and denied in part—vacated and remanded portions of the Small Cell Order concerning aesthetic rules (the “no more burdensome” and blanket “objective” requirements); upheld the fee limits, shot‑clock changes, Moratoria Order, and the One‑Touch Make‑Ready Order; Montgomery County petition dismissed as moot. Judge Bress dissented in part (would have vacated the above‑cost fee preemption).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Fee preemption: FCC limited above‑safe‑harbor fees to a locality’s costs | Localities: no rational basis to preempt all above‑cost fees; fee amount isn’t intrinsically an “effective prohibition” under §253(a) | FCC: above‑cost fees (in aggregate) materially inhibit nationwide 5G deployment; administrable cost‑based rule and safe harbors justified | Court upheld FCC’s fee regime (including cost‑justification for fees above safe‑harbor); Bress, J. would have vacated this portion as insufficiently justified |
| Aesthetics: requirement that small cell aesthetic rules be “no more burdensome” than other infrastructure and be “objective” | Cities: FCC exceeded §332(c)(7)’s “no unreasonable discrimination” standard by forbidding reasonable distinctions and by invalidating subjective, neighborhood‑character rules | FCC: uniform standards prevent pretextual or discriminatory aesthetic denials and give predictability to deployers | Court vacated/remanded: rejected “no more burdensome” (overbroad vs. statute) and found blanket “objective” requirement arbitrary and inadequately explained; upheld the narrower “reasonable”/technically‑feasible standard |
| Shot clocks & remedies: shortened clocks (60/90 days) and expanded to all permits; FCC declined to adopt “deemed granted” remedy | Localities: shortened clocks and broader scope unduly constrain zoning processes; providers: FCC should adopt deemed‑granted remedy | FCC: evidence supports shortening/expansion to avoid evasion via other permits; deemed‑granted not compelled by statute (contrast with Spectrum Act) | Court upheld shortened clocks and expansion to all permits; denied challenge to absence of deemed‑granted remedy |
| Moratoria: definitions of express and de facto moratoria; emergency exceptions | City: definitions overly broad, would preempt benign/seasonal construction rules; safety exception too narrow | FCC: moratoria definitions tailored to prevent indefinite or pretextual halts; emergency safety bans allowed if neutral, necessary, geographically targeted | Court upheld Moratoria Order as not arbitrary or facially invalid and preserved case‑by‑case challenges |
| One‑Touch Make‑Ready (pole attachments): overlashing, preexisting violations, self‑help, rate reform | Utilities: rules exceed §224 authority and threaten safety, impede cost recovery, or contradict statutory protections for public utilities | FCC: rules reasonably interpret §224 to ensure nondiscriminatory access and efficient attachment processes; safety and notice protections retained | Court upheld the One‑Touch Make‑Ready Order in all challenged respects |
| Constitutional challenges (Fifth/Tenth) | Petitioners: orders effect physical or regulatory takings and commandeer local governments | FCC: rules interpret and enforce federal statute; do not compel municipalities to act as federal agents or create permanent takings | Court rejected facial Fifth and Tenth Amendment challenges; as‑applied takings claims left for later litigation |
Key Cases Cited
- Sprint Telephony PCS, L.P. v. County of San Diego, 543 F.3d 571 (9th Cir. 2008) (en banc) (adopts “material inhibition”/actual‑effects test under §253)
- Qwest Commc’ns Inc. v. City of Berkeley, 433 F.3d 1253 (9th Cir. 2006) (declines automatic preemption of non‑cost‑based fees; courts must consider the substance of the fee)
- City of Arlington v. FCC, 569 U.S. 290 (2013) (deference to FCC interpretations and upholding shot‑clock presumptions)
- Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (permanent physical occupation is a taking)
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) (agency deference where statute ambiguous)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary and capricious review standard)
- FCC v. Florida Power Corp., 480 U.S. 245 (1987) (limiting cost recovery does not necessarily effect a taking)
- Nat’l Cable & Telecommunications Ass’n v. Gulf Power Co., 534 U.S. 327 (2002) (interpretation of §224 ratemaking authority)
- Biestek v. Berryhill, 139 S. Ct. 1148 (2019) (substantial‑evidence standard for agency factfinding)