July 12, 2021
Peter L. Kahn, J.D., Ph.D.
Montgomery County Resident
The County Council appears poised to adopt ZTA 19-07 in part because some members believe that doing so is legally required. That is simply not the case.
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One basis for believing this is the FCC’s Small Cell Orders of 2018, which proposes a “material inhibition” standard for the courts to use in evaluating claims under Section 332 of the Telecommunications Act of 1996 — in other words, does a denial of a permit for a cell antenna “materially inhibit” the placement or construction of wireless cell facilities. Most denials of permits will materially inhibit their placement, and thus this standard strongly favors the interests of telecom companies. However, literally no federal court has adopted this standard for cases under Section 332, and the Court of Appeals for the Second Circuit has made it clear that the FCC has no authority to change the federal courts’ interpretations of federal law. The standard that has always been used, and continues to be used, by the Courts of Appeals across the country is the “effective prohibition” standard. It asks, does this denial of permit effectively prohibit the provision of cell service? This is a much tougher standard for telecoms to meet, especially when cell service is already abundantly available from multiple carriers. But the “effective prohibition” standard continues to be applied by all the Courts of Appeals for such cases, and no court anywhere has abandoned that standard in favor of the FCC’s preferred “material inhibition” standard for cases under Section 332.
The other basis offered for believing that ZTA 19-07 is legally necessary is the recent case City of Portland v. FCC. In that case, the Ninth Circuit looked at proposed regulations arising under a completely different section of the Telecommunications Act, that is, Section 253. The court in that case applied a “material inhibition” standard, just as it always has in cases arising under Section 253. One might be forgiven for confusing the Section 253 “material inhibition” standard, with the FCC’s proposed “material inhibition” standard for Section 332, but in fact they have different origins. City of Portland did not deal with Section 332, and clearly did not adopt a “material inhibition” standard for Section 332 cases. The “effective prohibition” standard for cases under Section 332 remains in effect in every federal circuit, including the Ninth Circuit.
Section 332 of the Act specifically deals with the “placement, construction, or modification,” of personal wireless facilities — in other words, the very subject matter that the proposed ZTA 19-07 deals with. Any legal claims that might be prevented by the adoption of 19-07 would (in the absence of 19-07) be evaluated by the courts under the legal standard that has always been applied to Section 332 — in other words, the “effective prohibition” standard — because those claims would arise under Section 332, dealing with “placement, construction, or modification” of cell facilities. The FCC’s Small Cell Orders did not change that. The City of Portland case did not change that. Under every federal Court of Appeals in the country, cases dealing with “placement, construction, or modification” of cell facilities will be examined under Section 332 under an unchanged “effective prohibition” standard.
In Montgomery County, a telecom asking for review under Section 332’s “effective prohibition” standard is likely to lose. Our County already has excellent cell service. Just look at the coverage maps published on their websites by Verizon, AT&T, and T-Mobile. It will be challenging for any permit applicant to claim seriously that our County has “effectively prohibited” cell service. In truth, we are in full compliance with federal law, and any legal claims against Montgomery County’s local governments will be very difficult for the telecom applicant to win.
Indeed, adopting ZTA 19-07 would itself be a massive change in the standards for cell placement — it would take away virtually all local control, and grant to any telecom the right to use any piece of public property it wishes. This would constitute a massive give-away of epic proportions to the telecom industry, and would be a policy and legal mistake of the first order.
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