                                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
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.




                                   2
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.




                               3
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

                                         4
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.




       1For 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.



                                                5
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.

                                               6
      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.




                                         7
                                          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 sixty-

day 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).



                                           8
      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?




                                       9
      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 rights-
      of-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;


      3By contrast, a tower is a structure whose primary purpose
is   supporting    communications   equipment.       47   C.F.R.
§ 1.40001(b)(9).



                                           10
     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 non-
     compliance 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).



                                       11
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

                                          12
     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

                                      13
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.

                                               14
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



                                             15
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)
                                                16
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.



                                     17
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,



                                                18
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)
                                             19
undertake     to     review     each    application     for    substantiality.

Instead, Petitioners repeatedly argue that the FCC should have

permitted municipalities to review applications on a case-by-

case 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.”



                                         20
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)
                                            21
      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.



                                           22
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

                                            23
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

                                           24
“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


                                             25
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.




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