In September, 2018 the FCC issued an order (18-133) that rewrote part of the federal Telecommunications Act of 1996 and radically altered its interpretation of the law, or rather, it gave a very different interpretation from the one most of the U.S. Courts of Appeal had been using for 15 to 20 years. Many cities and municipal leagues all over the U.S. sued FCC to block that order saying, among other things, that the FCC does not have the authority or power to change the law.
All of those cases were consolidated and transferred to the U.S. Court of Appeals for the Ninth Circuit. That court held oral argument and then issued an opinion in 2020.
Unfortunately the court ruled in favor of the FCC. What that means for state and local governments I can’t tell. I am not an attorney and do not practice law. This pages is intended to be a resource where you can find the case name and number and read the final opinion. If I can find it I’ll post a link to the oral argument. For those interested in this issue it’s rather fascinating.
The case is city of portland v federal communications commission, u.s. court of appeals for the ninth circuit. A web search for that will bring it right up. The case number is No. 18-72689.
You can look up all the opinions (formal rulings) of the Ninth Circuit on its opinions page.
On that page it is easiest to search by case number, the 2nd field. That brings up the court’s opinion.
You can also download the opinion. from this page.
One of the key issues that cities and counties now face is the question of whether this opinion changed the law in section 253(a) and 332(c) on an effective prohibition of personal wireless services, which the TCA says a state or local government cannot do. Most of the circuits have interpreted that to mean that a city or county can require an applicant to prove that their proposed cell antenna or tower will close a significant gap in coverage and will do that using the least intrusive means. That is, it is the least intrusive means of closing that gap.
FCC purported to replace that so called “test” with a new test and definition from an old and obsolete case called “California payphone”. Their new test and definition is whether a state or local regulation “materially inhibits” the provision of personal wireless service.s If it does then it’s an “effective prohibition”, FCC says.
The court ruled for the FCC but does that mean the court agreed with that change from the significant gap in coverage and the least intrusive means to the much more permissive (for the carriers) and much more restrictive (for local governments) test of “materially inhibit”? I don’t know.
You can view and download from the FCC website their Order 18-133.
To find the FCC’s discussion of the whole “materially inhibit” concept do a search on the document for “material” of “inhibit”. The FCC discusses that in paragraph 37 on pages 17 – 18. I’ll let you have the satisfaction of finding it.
This is one big, glaring example of why Congress needs to change the Telecommunications Act of 1996 to put power back in the hands of local government and allow, and not preempt, regulatory or permitting decisions intended to protect the environment and public health. Good luck all!