Deemed Granted:
What's Good for the Goose is Good for the (FCC) Gander

Gregory J. Vogt

Congratulations to the FCC for adopting rules in late 2014 that promoted faster state and local governmental decisionmaking on tower siting applications. Such a bold move increased certainty and promoted services that consumers need. The Fourth Circuit in the case of Montgomery County v. FCC recently upheld that FCC action, which implemented a congressional mandate. While an old proverb about "what's good for the goose is good for the gander" may be forgotten, the lesson nonetheless remains valid: It is ironic that the FCC has not relied more on such efficiency measures for its own operations. It should do so.

But first to the pro-competition decision: Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 provided that tower siting applications that do not make substantial changes to existing wireless towers or base stations "shall be granted." Commendably, the FCC put teeth on the explicit terms of the statute by determining that such eligible applications shall be "deemed granted" if there is no governmental decision within 60 days of filing unless tolled by valid government information requests. The agency's implementation rules provide more certainty to mobile providers that seek speedy decisions regarding minor siting changes so that they can better meet the burgeoning consumer demand for wireless broadband.

The Montgomery County court decision concluded that the FCC's 60-day "deemed granted" remedy was not only constitutional, but also was a reasonable interpretation of ambiguous provisions contained in Section 6409(a). That provision requires zoning authorities to promptly approve applications that do not substantially change existing physical dimensions of an existing base station zoning approval.

Decisions that force government at all levels to act with the "speed of business" are critical for competitive businesses like wireless services. FCC Chairman Wheeler announced early in his tenure that he too believed FCC processes should be nimble because of the vital role the FCC processes play in enabling communications markets and competition. To further this goal, he hired experienced staff to develop plans to speed up Commission processes and eliminate agency backlogs.

The FCC has touted its backlog reduction efforts in the last couple of years, mostly through dismissal of old proceedings, many of them over seven years old. It is difficult to praise actions that summarily wipe out old cases that have simply been ignored for years, and then declaring "victory" by announcing that the parties are no longer interested. Although wearing down the enemy is a tried and true tactic on the battlefield, it is not conducive to promoting the cooperation between regulator and regulated enterprise that the FCC repeatedly has recognized is necessary to promote compliance efforts. Such cooperation negatively impacts business operations that improve consumer welfare.

Notwithstanding, the real solution to eliminating backlogs is not allowing them to accumulate in the first place. Adoption of firm time limits for reaching decisions in proceedings, as well as "deemed granted" solutions, are key elements to achieving more efficient government processes. Some in Congress have had the foresight to include such mechanisms in FCC reform proposals, or to require the FCC to meet deadlines, such as proposed in the House-passed 2013 FCC Process Reform Act. Unfortunately, perhaps because the Senate has failed to take up the earlier House-passed reform bills, the latest House effort, FCC Process Reform Act of 2015, doesn't include the action-forcing measures.

The "deemed granted" remedy for tower siting applications is laudable, and this type of mechanism would work especially well in a number of FCC proceedings, such as routine license applications and waiver petitions, where the original policy issues have already been substantially resolved. Congress has already successfully imposed such procedures for certain carrier tariffs and forbearance requests. Although some have argued that expansion of this remedy could force the agency to act without carefully considering the facts, prompt action is often called for in competitive markets. There is no doubt that the best solution is for regulators to let competitive market forces dictate consumer welfare, not the government. But, where the government is involved, forcing more timely government action is a second best solution.

So when fixing problems, let's compare the local goose to the federal gander. Either Congress, or the FCC itself, should expand upon the FCC's laudable step, now upheld in court, in speeding state and local government antenna siting decisions to encompass speeding up a number of the FCC's own processes. This will permit the Commission at all levels to come closer to acting with the speed of business for the ultimate benefit of consumers.

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The Constitutional Foundations of Intellectual Property: A Natural Rights Perspective, by Randolph J. May and Seth L. Cooper, is available from Amazon and from Carolina Academic Press.

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