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Montgomery County Sues FCC Over Tower Siting Decision

Montgomery County, Md., has taken the Federal Communications Commission to court over its new tower siting rules, saying the move was unconstitutional, arbitrary and capricious, an abuse of discretion and otherwise illegal. There were also a report in TR Daily late Monday that other counties were following suit.

Montgomery County has asked the court to vacate the decision and the rules and grant whatever other relief the court deems appropriate. It did not spell out its issues, but the 60-day shot clock was a sticking point with cities and counties according to their filings in the FCC docket before the October vote.

The FCC voted unanimously last October to make it easier to deploy wireless infrastructure, yet another step in the commission's broader move to spur broadband deployment.

That included implementing the tower-citing provision of the Middle Class Tax Relief Act of 20120. That bill included not only the incentive auction as a spur to broadband, but a related provision that said state and local governments must approve wireless facilities modifications that don't substantially change their physical dimensions.

The rules extend various exclusions from environmental and historical impact restrictions for wireless buildouts

At the time FCC chairman Tom Wheeler pointed out that the order "preserves local governments’ authority to adopt and apply the zoning, safety, and concealment requirements that are appropriate for their communities."

Not only must state and local entities, like the Washington suburb of Montgomery County, grant modifications of existing sites that do not change the physical dimensions, they have a 60-day deadline for action on a citing request.

The petition was filed in the U.S. Court of Appeals for the Fourth Circuit.

PCIA – The Wireless Infrastructure Association, which represents the companies building out and modifying wireless infrastructure, weighed in on the FCC's side, while suggesting it was working with government entities to make the modifications as painless as possible.

“PCIA is working closely with cities, counties, and municipalities to make the implementation of the FCC’s new wireless facility siting regulations smooth and efficient," said PCIA President Jonathan Adelstein, himself a former FCC commissioner. "The wireless infrastructure industry wants to reduce or eliminate, whenever possible, obstacles to realizing the extraordinary economic and technological potential of wireless broadband. We hope that this lawsuit will not detract from that goal, since PCIA supports the FCC’s rationale behind its Infrastructure Order and its guidelines for implementation.”