A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit (Panel) has largely upheld an FCC 2020 declaratory ruling clarifying its 2014 order adopting streamlined processing of tower modifications that qualify as an eligible facilities request that a local government must approve within 60 days. In response to a Petition for Review filed by local governments, the Panel considered whether the FCC’s clarifications were interpretive and permissible, or legislative and impermissible without notice and opportunity for comment. While the Panel upheld many FCC clarifications, it found the FCC’s interpretation of concealment elements invalid as inconsistent with the 2014 order, and therefore impermissible. The FCC had explained that a change of a qualifying concealment element (designed to make the wireless tower look like a tree) would only be considered a substantial change if it defeated the concealment element (no longer looks like a tree). The Panel concluded that the FCC’s clarification was a legislative rule masquerading as an interpretive rule. The Panel did uphold other FCC interpretations regarding eligible facilities requests including when the shot clock commences and how to determine whether the addition of an antenna or equipment cabinet constitutes a substantial change.
