Publication

February 7, 2012Client Alert

Federal Court Of Appeals Rejects Challenge To FCC’s Tower and Antenna Siting “Shot Clock” Rule

On January 23, 2012, a three judge panel of the Fifth Circuit Court of Appeals upheld the Federal Communications Commission’s (“FCC”) declaratory ruling from 2009 establishing the tower-siting “shot clock” rules. The cities of San Antonio and Arlington, Texas challenged the FCC’s ruling which was issued in response to a petition filed by a trade association of wireless telephone service providers, CTIA-The Wireless Association® (“CTIA”). The cities’ challenges were rejected in this first opportunity for a United States Court of Appeals to rule on the issue.

 

In November 2009, the FCC issued a declaratory ruling wherein it established the so-called “shot clock” rules. Under the relevant provisions of the Telecommunications Act of 1996, a state or local government or instrumentality must act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality. Further, any person adversely affected by any final action or failure to act by a state or local government or any instrumentality thereof may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction. The litigation must be heard and decided on an expedited basis.

 

After considering the arguments and evidence before it, the FCC established timeframes in which state and local governments must act on zoning requests. The FCC declared that a reasonable period of time presumptively would be 90 days for personal wireless service facility siting applications requesting collocations and 150 days for all other applications, hence the “shot clock” moniker. A lack of decision within these timeframes would constitute a failure to act. Such failure to act would open the door to the litigation option referred to above. The FCC further concluded that, if an applicant submits an incomplete application, the time it takes for the applicant to respond to a state or local government’s request for additional information would not count toward the 90 or 150 day timeframe, if the state or local government notified the applicant that the application was incomplete within 30 days of receiving the application.

 

The administrative record established before the FCC in 2009 demonstrated that wireless service providers in many areas of the country faced significant delays with respect to their facility’s zoning applications. CTIA’s petition, for example, claimed that a survey of its members indicated that of the 3,300 wireless siting applications then pending before local governments, 760 had been pending for more than one year and 180 had been pending for over three years. Comments from wireless service providers supported CTIA’s claims. One carrier, for example, submitted comments indicating that over 30% of its currently pending proposals involving new wireless facilities and nearly one-third of its currently pending collocation applications had been pending for more than one year. Another carrier submitted comments claiming that, of the over 350 non-collocation zoning requests it currently had pending, over half had been pending for more than six months and nearly 100 had been pending for one more than one year.

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