PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-1240

MONTGOMERY COUNTY, MARYLAND,

Petitioner,

CITY OF BURLINGAME, CALIFORNIA; TOWN OF APPLE VALLEY, 

CALIFORNIA,

Intervenors/Petitioners,

v.

FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES OF 

AMERICA,

Respondents,

CTIA - THE WIRELESS ASSOCIATION; PCIA - THE WIRELESS 

INFRASTRUCTURE ASSOCIATION,

Intervenors,

-------------------------------------

LEAGUE OF CALIFORNIA CITIES; CALIFORNIA STATE ASSOCIATION 

OF COUNTIES; LEAGUE OF OREGON CITIES; SCAN NATOA, INC.,

Amici Supporting Petitioner.

No. 15-1284

CITY OF BELLEVUE, WASHINGTON; CITY OF LOS ANGELES, 

CALIFORNIA; CITY OF MCALLEN, TEXAS; CITY OF ONTARIO, 

CALIFORNIA; CITY OF REDWOOD CITY, CALIFORNIA; CITY OF SAN 
2

JOSE, CALIFORNIA; TEXAS COALITION OF CITIES OF UTILITY 

ISSUES,

Petitioners,

CITY OF BURLINGAME, CALIFORNIA; TOWN OF APPLE VALLEY, 

CALIFORNIA,

Intervenors,

v.

FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES OF 

AMERICA,

Respondents,

CTIA - THE WIRELESS ASSOCIATION; PCIA - THE WIRELESS 

INFRASTRUCTURE ASSOCIATION,

Intervenors,

--------------------------------------

LEAGUE OF CALIFORNIA CITIES; CALIFORNIA STATE ASSOCIATION 

OF COUNTIES; LEAGUE OF OREGON CITIES; SCAN NATOA, INC.,

Amici Supporting Petitioner.

Petition for Review of an Order of the Federal Communications 

Commission. (FCC 14-153).

Argued: October 28, 2015 Decided: December 18, 2015 

Before GREGORY, DUNCAN and FLOYD, Circuit Judges.

Denied by published opinion. Judge Duncan wrote the opinion, in 

which Judge Gregory and Judge Floyd joined.
3

ARGUED: Joseph Leonard Van Eaton, BEST BEST & KRIEGER LLP, 

Washington, D.C., for Petitioners/Intervenors. Maureen 

Katherine Flood, FEDERAL COMMUNICATIONS COMMISSION, Washington, 

D.C., for Respondent. Megan Leef Brown, WILEY REIN LLP, 

Washington, D.C., for Intervenors. ON BRIEF: Nicholas P. 

Miller, BEST BEST & KRIEGER LLP, Washington, D.C., for 

Petitioners/Intervenors. William J. Baer, Assistant Attorney 

General, Robert B. Nicholson, Steven J. Mintz, UNITED STATES 

DEPARTMENT OF JUSTICE, Washington, D.C.; Jonathan B. Sallet, 

General Counsel, David M. Gossett, Deputy General Counsel, 

Richard K. Welch, Deputy Associate General Counsel, FEDERAL 

COMMUNICATIONS COMMISSION, Washington, D.C., for Respondents. 

Joshua S. Turner, Jeremy J. Broggi, WILEY REIN LLP, Washington, 

D.C., for Intervenors. Javan N. Rad, Chief Assistant City 

Attorney, Pasadena, California; Robert C. May, III, TELECOM LAW 

FIRM, PC, La Jolla, California, for Amici Curiae.
4

DUNCAN, Circuit Judge:

Before the court is an administrative appeal challenging

rules promulgated by the Federal Communications Commission 

(“FCC”). As part of a coalition of local authorities, 

Montgomery County, Maryland, petitions for review of the FCC’s 

October 17, 2014 Order (“the Order”), which issued rules 

implementing Section 6409(a) of the Middle Class Tax Relief and 

Job Creation Act of 2012, 47 U.S.C. § 1455(a), also known as the 

Spectrum Act. Petitioners contend that the procedures 

established in the Order conscript the states in violation of 

the Tenth Amendment, and that the Order unreasonably defines 

several terms of the Spectrum Act.

For the reasons that follow, we conclude that the FCC’s 

Order is fully consonant with the Tenth Amendment. We further 

conclude that the FCC has reasonably interpreted the ambiguous 

terms of Section 6409(a) of the Spectrum Act. Accordingly, we 

deny the petition for review.

I.

To provide context for the issues raised in the petition, 

we first set forth the statutory and regulatory framework from 

which the FCC’s Order arises.

In 2012, Congress passed the Spectrum Act as part of the 

Middle Class Tax Relief and Job Creation Act. The Spectrum Act 
5

included, among other things, a series of measures designed to 

encourage the growth of a robust national telecommunications 

network.1 At issue in this appeal is Section 6409(a) of the 

Spectrum Act, entitled “Wireless Facilities Deployment: 

Facilities Modifications.” 47 U.S.C. § 1455(a). 

Section 6409(a) addresses wireless providers’ efforts to expand 

their networks by modifying existing electronic equipment that 

sits atop towers and other structures. If, for example, a 

wireless provider wanted to collocate transmission equipment on 

an existing tower or other site in order to increase wireless

service, the provider would ordinarily need to seek local zoning 

approval, because the modifications would alter the physical 

profile of the facility.

Section 6409(a)(1) limits local authority to bar

collocation or other modification efforts:

[n]otwithstanding section 704 of the 

Telecommunications Act of 1996 (Public Law 104-104) or 

any other provision of law, a State or local 

government may not deny, and shall approve, any 

eligible facilities request for a modification of an 

existing wireless tower or base station that does not 

substantially change the physical dimensions of such

tower or base station. 

 1 For example, the Act reallocated a segment of the 

broadcast spectrum for public safety purposes, and authorized 

the FCC to auction part of the spectrum for commercial use. See

47 U.S.C. §§ 1421, 1451.
6

47 U.S.C. § 1455(a)(1). Section 6409(a)(2) defines the term 

“eligible facilities request” as follows:

For purposes of this subsection, the term “eligible 

facilities request” means any request for modification 

of an existing wireless tower or base station that 

involves--

(A) collocation of new transmission equipment; 

(B) removal of transmission equipment; or

(C) replacement of transmission equipment. 

47 U.S.C. § 1455(a)(2). Together, these provisions forbid

localities from exercising their zoning authority to deny 

providers’ requests to modify wireless equipment, so long as the 

proposed modification does not “substantially change the 

physical dimensions” of the facility. The statute does not 

define what kinds of modifications would qualify as substantial.

Congress charged the FCC with implementing the Spectrum 

Act, 47 U.S.C. § 1403(a), and the FCC initiated that process by 

issuing a public notice of proposed rulemaking. See In re 

Acceleration of Broadband Deployment by Improving Wireless 

Facilities Siting Policies, 28 FCC Rcd. 14238 (Sept. 26, 2013). 

Following a contentious notice-and-comment period during which 

numerous parties submitted their views, the FCC issued an Order 

on October 17, 2014 implementing Section 6409(a). In re 

Acceleration of Broadband Deployment by Improving Wireless 

Facilities Siting Policies, 29 FCC Rcd. 12865 (Oct. 17, 2014), 

amended by 30 FCC Rcd. 31 (Jan. 5, 2015). These rules are 

codified at 47 C.F.R. § 1.40001.
7

The Order begins by noting the underlying Congressional 

concern that municipal permit review processes were hindering

efforts to expand wireless networks.

Despite the widely acknowledged need for additional 

wireless infrastructure, the process of deploying 

these facilities can be expensive, cumbersome, and 

time-consuming. . . . [Among other requirements], 

parties must typically obtain siting approval from the 

local municipality. . . . 

Although these review requirements serve important 

local and national interests, local and Federal review 

processes can slow deployment substantially, even in 

cases that do not present significant concerns.

 

Order ¶¶ 9-10. With the aim of “reduc[ing] regulatory obstacles 

and bring[ing] efficiency to wireless facility siting,” the 

Order turned to the task of implementing Section 6409(a) and 

defining its terms. Id. ¶ 10. 

Two aspects of the Order are relevant to this appeal. The 

first implements the statute’s directive that localities “shall 

approve” applications by establishing what the Order calls a 

“deemed granted remedy.” Order ¶ 227. The second clarifies

what kinds of physical modifications are “substantial,” and what 

types of facilities qualify as “wireless towers” and “base 

stations” within the meaning of the statute. We briefly 

summarize each before turning to Petitioners’ arguments.
8

A.

To implement the Spectrum Act’s mandate that localities 

“shall approve” facility-modification requests covered by 

Section 6409(a), the Order establishes a so-called “deemed 

granted remedy.” Under this procedure, when a locality receives 

a covered facility-modification request, it has sixty days to 

review the application, if it elects to review the request at 

all. 47 C.F.R. § 1.40001(c). Within that sixty-day period, the 

locality “shall approve the application unless it determines 

that the application is not covered by this section.”2 Id.

§ 1.40001(c)(2). If the locality fails to act before the sixtyday period expires, “the request shall be deemed granted.” Id.

§ 1.40001(c)(4). However, the grant “does not become effective 

until the applicant notifies the [locality] in writing after the 

review period has expired . . . that the application has been 

deemed granted.” Id. The rules authorize applicants to bring 

claims relating to Section 6409(a) applications in “any court of 

competent jurisdiction,” and the Order explains that this 

provision permits applicants to seek declaratory judgments 

memorializing the grant. Id. § 1.40001(c)(5); Order ¶¶ 235-36. 

 2 Of course, the locality may exercise its discretion to 

grant the request even if it determines that the facilities 

request is not covered by Section 6409(a). 
9

The Order acknowledges that Section 6409(a) “does not 

expressly provide for a time limit or other procedural 

restrictions” on municipal review of applications. Order ¶ 212. 

However, the FCC determined that the “deemed granted remedy” was 

consistent with Section 6409(a), which states that localities 

“may not deny, and shall approve” qualifying applications. Id.

¶ 227. As the FCC explained,

[t]his directive leaves no room for a lengthy and 

discretionary approach to reviewing an application 

that meets the statutory criteria; once the 

application meets these criteria, the law forbids the 

State or local government from denying it. . . . 

[W]ithholding a decision on an application 

indefinitely . . . would be tantamount to denying it, 

in contravention of the statute’s pronouncement that 

reviewing authorities “may not deny” qualifying 

applications.

Id. In light of these concerns, the FCC concluded that “the 

text of Section 6409(a) supports adoption of a deemed granted 

remedy, which will directly serve the broader goal of promoting

the rapid deployment of wireless infrastructure.” Id.

B.

The FCC’s Order also undertakes the task of interpreting 

several undefined terms. Order § V. Petitioners challenge two 

in particular: what is a “base station” that may be modified,

and what does it mean to “substantially change” a facility? 
10

First, the FCC defined the term base station to include 

“structures other than towers that support or house an antenna, 

transceiver, or other associated equipment,” even if the 

structure was not built primarily for that purpose.3 Id. ¶ 21; 

47 C.F.R. § 1.4001(b)(1)(iii). In other words, a base station 

can be any structure--for example, a building or a utility 

pole--that has transmission equipment installed on top. 

Second, the FCC has provided a multi-part definition 

establishing objective criteria for determining when a proposed 

modification “substantially changes the physical dimensions” of 

a facility:

for towers outside of public rights-of-way, it 

increases the height by more than 20 feet or 10%, 

whichever is greater; for those towers in the rightsof-way and for all base stations, it increases the 

height of the tower or base station by more than 10% 

or 10 feet, whichever is greater;

for towers outside of public rights-of-way, it 

protrudes from the edge of the tower more than twenty 

feet, or more than the width of the tower structure at 

the level of the appurtenance, whichever is greater; 

for those towers in the rights-of-way and for all base 

stations, it protrudes from the edge of the structure 

more than six feet;

it involves installation of more than the standard 

number of new equipment cabinets for the technology 

involved, but not to exceed four cabinets;

 3 By contrast, a tower is a structure whose primary purpose 

is supporting communications equipment. 47 C.F.R. 

§ 1.40001(b)(9).
11

it entails any excavation or deployment outside the 

current site of the tower or base station;

it would defeat the existing concealment elements of 

the tower or base station; or

it does not comply with conditions associated with the 

prior approval [of the facility] unless the noncompliance is due to [a change that does not 

constitute a “substantial change” under the preceding 

standards].

Order ¶ 21.4 Notwithstanding this definition, the FCC explains 

in the Order that localities may continue to condition approval 

on compliance with “generally applicable building, structural, 

electrical, and safety codes” and other public safety laws. Id.

¶¶ 21, 202. And, of course, localities are permitted to deny 

applications if they determine that the proposed modification is 

not covered by the FCC’s Order implementing Section 6409(a), 

such as a proposal to add five equipment cabinets to a utility 

pole.

II.

On appeal, Petitioners contend that the FCC’s Order 

violates the Tenth Amendment by compelling the states to grant 

permit applications, and they assert that the Order defines 

 4 These standards are codified at 47 C.F.R. § 1.4001(b)(7).
12

certain statutory terms in a manner inconsistent with the text 

of the Act. We consider these arguments in turn.

A.

Petitioners argue that the Order violates the Tenth 

Amendment by compelling local and municipal governments to 

participate in federal regulatory efforts by approving 

infrastructure permits. Petitioners take particular issue with 

the “deemed granted” procedure, which they characterize as

“direct regulation of the conduct of the locality’s legislative 

power, which the Tenth Amendment prohibits.” Petitioners’ Br. 

at 57. We have jurisdiction to review constitutional challenges 

to executive agency action pursuant to the Administrative 

Procedure Act, 5 U.S.C. § 706(2), which instructs a reviewing 

court to set aside agency action that is “contrary to 

constitutional right” or otherwise unlawful. 

As the Supreme Court discussed in Printz v. United States, 

521 U.S. 898 (1997) and New York v. United States, 505 U.S. 144 

(1992), the Tenth Amendment forbids the federal government from 

requiring states to enforce federal laws. In New York, the 

Court explained that

[e]ven where Congress has the authority under the 

Constitution to pass laws requiring or prohibiting 

certain acts, it lacks the power directly to compel 

the States to require or prohibit those acts. . . . 

[T]he Commerce Clause, for example, authorizes 
13

Congress to regulate interstate commerce directly; it 

does not authorize Congress to regulate state 

governments’ regulation of interstate commerce.

505 U.S. at 166. Thus, neither Congress nor the FCC may compel 

the states to administer federal regulatory programs or pass 

legislation. This “anti-commandeering” principle is cabined, 

however. For example, a law that conditions federal funding on 

state implementation of a federal program does not violate the 

Tenth Amendment, unless the inducement of the funding is “so 

coercive as to pass the point at which pressure turns into 

compulsion.” South Dakota v. Dole, 483 U.S. 203, 211 (1987) 

(quotation omitted); Kennedy v. Allera, 612 F.3d 261, 269 (4th 

Cir. 2010). Similarly, the Tenth Amendment presents no bar to a 

federal rule that asks the states to choose between regulating 

according to federal standards and having a federal agency step 

in to regulate. Verizon Maryland, Inc. v. Global NAPS, Inc., 

377 F.3d 355, 368 (4th Cir. 2004). 

Upon review of the FCC’s Order, we readily conclude that 

the FCC’s “deemed granted” procedure comports with the Tenth 

Amendment. As a practical matter, the Order implementing 

Section 6409(a) does not require the states to take any action 

at all, because the “deemed granted” remedy obviates the need 

for the states to affirmatively approve applications. Instead, 

the “deemed granted” procedure allows the applications to be

granted by default if the state does not affirmatively approve 
14

them within sixty days. As the FCC points out in its Order, the 

point of the “deemed granted” provision is to ensure that 

collocation applications are not mired in the type of protracted 

approval processes that the Spectrum Act was designed to avoid.

Order ¶ 227. Moreover, the “deemed granted” procedure provides 

a remedy to ensure that states do not circumvent statutory 

requirements by failing to act upon applications. Id. The 

purpose and effect of Section 6409(a) is to bar states from 

interfering with the expansion of wireless networks. To achieve 

that end, the Act preempts local regulation of collocations and 

bars states from denying facility modification applications that 

meet certain standards. The FCC’s Order does no more than 

implement the statute.

Despite the fact that the Order does not require states to 

take any action at all, Petitioners insist that the Order 

commandeers the states and compels localities to administer the 

Spectrum Act. They argue that, even under a default-grant 

scenario, it is the state itself that is granting the 

application. Thus, according to Petitioners, the Order forces 

states to give collocation applications the imprimatur of state 

approval. But these applications are granted only by operation 

of federal law, and the Order permits applicants to initiate a 

declaratory judgment action to seek “some form of judicial 

imprimatur” for an application that has been deemed granted. 
15

Id. ¶¶ 235-36. Therefore, if the permit “grants” bear the 

imprimatur of any authority, it is federal, and not local. For 

this reason, Petitioners cannot argue that the Order requires 

localities to exercise their legislative power to grant 

applications. 

Because the Order does not require the states to take any 

action whatsoever, the FCC’s rules are a far cry from the 

statute struck down in Printz, which required states to run 

background checks on handgun purchases. Printz, 521 U.S. 

at 904-05. Likewise, the Order bears no resemblance to the 

statute in New York, which required states to enact state laws 

providing for the disposal of radioactive waste within state 

borders or else take title and possession of the waste 

themselves. New York, 505 U.S. 151-52. Functionally, what has 

occurred here is that the FCC––pursuant to properly delegated 

Congressional authority––has preempted state regulation of 

wireless towers. That is entirely permissible under our system 

of federalism. We therefore conclude that Petitioners’ Tenth 

Amendment challenge lacks merit.

B.

Having determined that the FCC’s “deemed granted” procedure 

is constitutional, we next address Petitioners’ contention that 
16

the FCC has unreasonably defined several terms of the Spectrum 

Act. 

Pursuant to the Administrative Procedure Act, we will set 

aside the FCC’s order only if we conclude that its rules are 

“arbitrary, capricious, an abuse of discretion, or otherwise not 

in accordance with law.” 5 U.S.C. § 706(2)(A). Furthermore, 

the FCC’s interpretation of Section 6409(a) is entitled to 

deferential review under Chevron, USA, Inc. v. Natural Resources 

Defense Council, 467 U.S. 837 (1984). Under Chevron, 

“considerable weight should be accorded to an executive 

department’s construction of a statutory scheme it is entrusted 

to administer.” Id. at 844. Here, a Chevron analysis is 

appropriate because the issue before us involves the FCC’s 

interpretation of a statute it is charged with administering. 

See 47 U.S.C. § 1403(a). 

At step one of the Chevron framework, the court must 

determine whether Congress “has directly spoken to the precise 

question at issue,” or whether, instead, the terms are 

ambiguous. Othi v. Holder, 734 F.3d 259, 265 n.4 (4th Cir. 

2013) (quoting Chevron, 467 U.S. at 842). There is no question 

that the terms of the Spectrum Act at issue here are ambiguous.5 

 5 Petitioners do not dispute that the term “substantial” is 

ambiguous. With respect to the term “base station,” Petitioners 

assert, without further explanation, that “while the term ‘base 

(Continued)
17

Accordingly, this court’s review is governed by step two of the 

Chevron analysis, under which the sole inquiry is whether the 

FCC’s interpretation of the terms “is based on a permissible 

construction of the statute.” Schafer v. Astrue, 641 F.3d 49, 

54 (4th Cir. 2011)(quoting Chevron, 467 U.S. at 843).

Against this standard, we review Petitioners’ challenge to 

the manner in which the FCC has defined the two terms referenced 

earlier: “substantially change” and “base station.”

1.

The FCC’s Order provides objective and numerical standards 

to establish when an eligible facilities request would 

“substantially change the physical dimensions” of the facility. 

For example, as we have noted, a change would be substantial if 

it entailed any excavation or deployment beyond the current site 

of the tower or base station.

Petitioners challenge these standards on several grounds, 

but they have a common theme: Petitioners believe that 

 

station’ may be ambiguous in some regards (whether it includes 

power supplies located at a site, for example), its ordinary 

meaning does not include structures.” Petitioners’ Reply Br. 

at 17. Aside from this one sentence, Petitioners have entirely 

failed to engage with a Chevron analysis, and thus it is 

difficult to determine their position with respect to the 

ambiguity of this term. However, it is clear that “base 

station” is amenable to multiple interpretations, and thus we 

conclude that the term is ambiguous under Chevron step one.
18

municipalities should be able to review each facility 

application to determine whether the proposal would represent a 

“substantial” modification of the original structure. This 

argument, at its core, takes issue with the fact that the 

Spectrum Act displaces discretionary municipal control over 

certain facility modification requests. But that is exactly 

what Congress intended by forbidding localities from denying 

qualifying applications. The FCC’s objective criteria are 

entirely consistent with this purpose, because the concrete 

standards in the Order eliminate the need for protracted review. 

By providing concrete, non-discretionary standards, the FCC has 

limited the local review process to the simple question of 

whether the proposed modification falls within the statutory 

parameters.

To avoid this conclusion, Petitioners style their argument 

as a question of statutory interpretation, claiming that the 

term “substantial” is not amenable to the objective standards 

the FCC has used, but instead requires a contextual inquiry. We 

find this argument to be unpersuasive, given that the provision 

at issue addresses “physical dimensions.” It was not 

unreasonable for the FCC to supply a strictly numerical 

definition of substantiality in this context, because the 

physical dimensions of objects are, by their very nature, 
19

suitable for regulation through quantifiable standards.6

Petitioners attempt to draw comparisons to laws employing a 

context-specific approach to analyzing work under copyright law, 

Petitioners’ Br. at 31, but it should be obvious that rules for 

comparing artwork and rules for determining whether the height 

of utility poles have been substantially increased need not 

employ the same analysis. 

Tellingly, Petitioners do not argue that the FCC should 

have supplied different objective standards for physical 

dimensions.7 Nor do they argue that the FCC itself should 

 6 Along these same lines, Petitioners also argue that the 

FCC can only interpret the term “dimensions” if it passes 

regulations that address all three spatial dimensions of each 

facility. Petitioners’ Br. at 33-34. Specifically, according 

to Petitioners, the FCC’s interpretation of “substantially” is 

unreasonable because the FCC has focused on height and distance 

from a building, but not depth. Applying Chevron deference, we 

cannot conclude that it was unreasonable for the FCC to define 

“dimensions” without addressing in each instance the height, 

depth, width, and volume of each object. Nothing in the text of 

the statute appears to require such a granular approach. 

7 For example, Petitioners point out that utility poles are 

typically around 37.5 feet high, and the FCC’s rules categorize 

as “insubstantial” a ten-foot increase of such a pole. 

Petitioners’ Br. at 38. Petitioners strenuously argue that such 

a ten-foot increase would be substantial, yet Petitioners do not 

offer any substitute numerical threshold. That is, Petitioners 

do not concede that a rule that permitted a five or even a 

three-foot increase of utility poles would be insubstantial. 

Thus, it appears that Petitioners are mainly challenging the 

FCC’s decision to select objective, numerical criteria, instead 

of preserving municipal discretion to review each application in 

context. In any event, we do not find that permitting a 

(Continued)
20

undertake to review each application for substantiality. 

Instead, Petitioners repeatedly argue that the FCC should have 

permitted municipalities to review applications on a case-bycase basis. See, e.g., Reply Br. at 8 n.8 (“[T]he rule, to be 

rational, should have allowed localities to review an attachment 

involving more than a de minimis increase or [sic] width.”). 

Thus, their dispute is not with the particular standards the FCC 

has selected, but with the fact that the FCC has set forth 

objective standards that divest municipalities of their 

reviewing discretion. This appeal is not the proper forum for 

municipal grievances about federal regulations that displace the 

discretion of local governments. See Chevron, 467 U.S. at 866 

(“When a challenge to an agency construction of a statutory 

provision, fairly conceptualized, really centers on the wisdom 

of the agency's policy, rather than whether it is a reasonable 

choice within a gap left open by Congress, the challenge must 

fail.”).

Contrary to Petitioners’ arguments, the FCC’s standards do 

incorporate considerations of context, even though they do not 

permit municipalities to conduct a contextual review of each 

facility. For example, under the FCC’s rules, the threshold for 

 

provider to raise a 37.5 foot pole to a height of 47.5 feet is 

an unreasonable interpretation of the term “substantial.”
21

substantiality is lower for modifications that occur in public 

rights-of-way. The Order also applies different standards to 

base stations than it does to towers (which are usually in more 

remote locations). Moreover, Section 6409(a) and the Order 

preserve the FCC’s obligations to conduct contextualized 

assessments of projects that affect historically or 

environmentally sensitive areas, and preserve local authority to 

condition approval on compliance with “generally applicable 

building, structural, electrical, and safety codes” and other 

public safety laws. See Order ¶ 21; 47 U.S.C. § 1455(a)(3) 

(“Nothing in [Section 6409(a)(1)] shall be construed to relieve 

the Commission from the requirements of the National Historic 

Preservation Act or the National Environmental Policy Act of 

1969.”). The FCC has also preserved existing concealment 

requirements for facilities. Order ¶ 21; 47 C.F.R. 

§ 1.40001(b)(7)(v). Thus, the Order does incorporate 

considerations of context in its definitions of substantiality.8

 8 Petitioners also argue that the FCC’s concrete standards 

are unreasonable, because although the FCC based them upon prior 

standards (set forth in “programmatic agreements”) relating to 

environmental and historical assessments of collocation 

projects, the FCC has neglected to include the discretionary 

elements of the prior approach. Petitioners’ Br. at 7-8, 39. 

The programmatic agreements set forth standards for determining 

when a proposed collocation project would be “substantial” such 

that a historical and environmental impact assessment was 

required. These standards permitted a complaint procedure, 

under which an application with a municipal complaint received 

(Continued)
22

Lastly, Petitioners argue that the FCC has erred by 

extending the Order’s rules to facilities that localities 

initially approved only on the condition that the facility not 

be modified in the future. According to Petitioners, any 

expansion of these facilities is per se “substantial” and

allowing such facilities to expand runs counter to the purposes 

of the Spectrum Act. Petitioners reason that permitting 

modifications of these facilities will make the states wary of 

granting new permits out of fear that their conditions will not 

be honored (and that any grant of a permit may lead to 

expansions beyond the state’s control). These are policy 

arguments, not statutory interpretation arguments. The 

statutory interpretation question is simple. The FCC’s view is 

that, regardless of the circumstances under which a provider 

obtained permission to build a facility, now that it has been 

built, any expansion proposals are reviewed based upon whether 

 

additional review, either before or after the modification was 

constructed. Adding more stringent review procedures makes good 

sense in this context, where considerations of historical and 

environmental impact are at issue. By contrast, it was entirely 

reasonable for the FCC not to employ a complaint procedure in 

the broader context of general facilities applications. 

Regardless, the FCC has represented that municipalities may 

avail themselves of the FCC’s general waiver procedure if the 

FCC’s 6409(a) rules create outlier cases. See Respondent’s Br. 

at 43 (citing 47 C.F.R. § 1.925(b)(3)(i), (ii)). Thus, the 

waiver procedure provides a forum for municipal complaints, even 

if the procedure is not formally part of the Order. 
23

the proposed expansion will substantially increase the size of 

the facility. This view is faithful to the text of 

Section 6409(a), which does not contain any exemptions for 

facilities that exist on condition of non-modification. We

cannot conclude, under Chevron, that the FCC’s interpretation is 

unreasonable. 

2.

Finally, Petitioners argue that the FCC has erroneously 

defined the term “base station.” The FCC has defined “base 

station” to mean “the equipment and non-tower supporting 

structure at a fixed location that enable Commission-licensed or 

authorized wireless communications between user equipment and a 

communications network.” Order ¶ 167 (emphasis added). 

According to Petitioners, this definition is unreasonable 

because the term “base station” refers only to transmission 

equipment, and not the structure upon which the equipment sits, 

such as a utility pole. Petitioners also argue that defining 

“base station” to encompass support structures is unreasonable,

because the FCC has never employed this definition in previous 

regulations.

Regardless of how other regulations may have addressed base 

stations, defining that term to encompass support structures

comports with the thrust of Section 6409(a). The statutory text

places base stations on equal footing with towers, and the Act 
24

clearly contemplates modifications of both types of facilities. 

Section 6409(a)(1) discusses “modification of an existing 

wireless tower or base station,” and Section 6409(a)(2) 

clarifies that modification includes “modification of an 

existing wireless tower or base station that involves . . . 

collocation of new transmission equipment.” Given that a 

wireless tower is essentially a support structure with 

electronic equipment on top, it would be anomalous to interpret 

the statute in a manner that permitted the FCC to define towers 

to encompass the entire structure, but forbade the FCC from 

defining base stations to encompass the entire facility. 

Moreover, the term “base station” is a term that must be 

defined in the context of its given regulatory scheme. Here, 

including support structures in the definition of base stations 

is consistent with Congress’s intent to promote the expansion of 

wireless networks through collocation. Considering that

collocation often adds electronic equipment that requires 

structural enhancement to increase its load-bearing capacity, we 

agree with the FCC that collocation would be “conceptually 

impossible” if the definition of “base station” did not include 

support structures. Order ¶¶ 169, 180. 

Petitioners next argue that the FCC’s definition is overly 

broad. They claim that by essentially defining a base station 

as any structure with an antenna on top, the FCC’s definition of 
25

“base station” also encompasses towers. Given that 

Section 6409(a) mentions both towers and base stations, 

Petitioners argue that the FCC’s interpretation of the statute 

renders the term “tower” superfluous. The FCC counters that its 

definition of “tower” includes towers that do not currently 

support antennas, and that its definition of base stations 

expressly excludes towers, thereby rendering the two definitions 

distinct. Respondent’s Br. at 48. We agree with the FCC’s 

explanation in the Order of the distinction between these terms:

[W]e interpret “base station” not to include wireless 

deployments on towers. Further, we interpret “tower” 

to include all structures built for the sole or 

primary purpose of supporting Commission-licensed or 

authorized antennas, and their associated facilities, 

regardless of whether they currently support base 

station equipment at the time the application is 

filed. Thus, “tower” denotes a structure that is 

covered under Section 6409(a) by virtue of its 

construction. In contrast, a “base station” includes 

a structure that is not a wireless tower only where it 

already supports or houses such equipment.

Id. ¶ 169. Given these definitions, it is difficult to conceive 

of a structure that could qualify as both a tower and a base 

station. The FCC’s Order clearly provides distinct definitions 

for the terms of Section 6409(a), and we find unpersuasive 

Petitioners’ arguments to the contrary. 

We emphasize that the FCC’s interpretation of “base 

station” is entitled to deference under step two of Chevron. It 

is not enough for Petitioners to argue that a better definition 
26

of “base station” would have excluded support structures. 

Instead, Petitioners have the burden of showing that the FCC’s 

definition is an unreasonable interpretation of the Spectrum 

Act. We conclude that Petitioners have failed to carry their

burden. 

III.

For the foregoing reasons, the petition for review is

DENIED.