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Why Section 6409(a) Will Likely Be Held Unconstitutional By the Courts

August 30, 2012

In February, 2012, the Middle Class Tax Relief and Job Creation Act of 2012 was enacted.  Although commonly thought of as the legislation extending the payroll tax exemption, it contained numerous unrelated provisions, one in particular being Section 6409(a) which states that states and local governments "shall approve" "modifications" of wireless facilities which do not "substantially change" their physical dimensions.

Section 6409(a) will likely be held unconstitutional by the courts, for several reasons.  As set forth in more detail below, these are:

  1. The limitations on Congress' power under the Commerce Clause of the Constitution, including Congress' regulating "inactivity" in violation of the recent U.S. Supreme Court decision generally upholding the Affordable Health Care Act;
  2. The Federalism protections of the Tenth Amendment (all powers not given Congress are reserved to the states and people);
  3. Most importantly, cases based on the preceding principles which strike down Federal statutes which "blur the lines of political accountability" by requiring local officials to take actions (and the blame) for which Federal officials are responsible.

The more broadly (and invasively on local powers) that Section 6409(a) is interpreted, the greater the likelihood of a successful Constitutional challenge.  Courts are aware of this, and for that reason tend to interpret statutes narrowly so as to avoid Constitutional issues.  So at minimum, Constitutional issues as to Section 6409(a) will likely result in it being interpreted narrowly - - certainly more narrowly than the interpretations currently being set forth by the cellular industry.

Until the Constitutional issues are resolved municipalities have several options:

  • One is to proceed without reference to the Section (in effect to ignore it, but stating that this is because it is unconstitutional), thus inviting a challenge which would resolve the Constitutional issue.
  • Another is to proceed by following Section 6409(a), but reserving all rights (such as to rescind or modify an approval, or require compliance with local law) if it is held unconstitutional.
  • A third option is to follow Section 6409(a), but discontinue this if it is struck down.
  • Finally, adopting local ordinances which implement Section 6409(a) has the advantage of providing some temporary clarity about a poorly drafted statute, but with the risks that (1) any reasonable municipal interpretation is unlikely to be acceptable to the cellular industry, and (2) the ordinance probably would need modification from time to time to keep up with FCC and court decisions interpreting Section 6409(a), and (3) the municipality may well lose the ability to challenge Section 6409(a) unless that is preserved by careful ordinance wording.
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