FCC Sets Timelines on Wireless Siting Applications

On Nov. 18, 2009, the Federal Communications Commission (“Commission”) unanimously adopted a Declaratory Ruling on CTIA – The Wireless Association®’s (“CTIA”) “Shot Clock Petition” in which the Commission set important policy and legal measures designed to help speed the deployment of wireless networks.

Granting CTIA’s request, the Commission has established deadlines for state and local zoning authorities to act on applications for siting of wireless communications facilities. In particular, the Commission defines “presumptively reasonable” periods in which state and local zoning authorities must act on wireless siting applications: (1) 90 days for a collocation application and (2) 150 days for other applications.

The Commission has declared that failure of a zoning authority to act within these periods constitutes a “failure to act,” triggering the ability of the applicant to bring an action in court under Section 332(c)(7)(B)(v) of the Communications Act. Importantly, however, the Commission does not hold that applications are deemed granted at the expiration of the periods, as CTIA had requested in its petition. Rather, the Commission holds that a court must determine whether the delay was in fact unreasonable under all the circumstances of the case.

In another important ruling for the wireless industry, the Commission also has granted CTIA’s petition by rejecting the “one-provider” rule adopted by some courts, holding that denying an application because service is available from another provider violates Section 332(c)(7)(B)(i)(II) of the Communications Act.

Finally, the Declaratory Ruling declines to pre-empt state and local ordinances that require a variance or waiver for every wireless facility, but leaves the door open for future challenges based on evidence that a specific ordinance represents an effective prohibition of service.

Background

In July 2008, CTIA filed a petition requesting that the Commission issue a Declaratory Ruling setting deadlines by which state and local authorities must act on siting requests for wireless communications facilities. CTIA’s petition also asked the Commission to clarify that zoning authorities may not deny a wireless facility siting application based on the availability of service from another provider. Finally, CTIA’s petition requested that the Commission find that a state or local regulation requiring a variance or waiver for every wireless facility violates Section 253(a) of the Communications Act.

Establishment of “Shot Clock” timelines of 90 days for collocations and 150 days for other facilities

As a threshold matter, the Commission’s Declaratory Ruling recognizes the growing importance of wireless services to “the economic, civic and social lives of over 270 million Americans” and acknowledges the current “transition toward increasing reliance on their mobile devices for broadband services, in addition to voice services.”

Commissioner Michael Copps and Chairman Julius Genachowski emphasized the economic and quality of life benefits that flow from increasing wireless broadband availability and wireless infrastructure deployment, including job creation, improved education, advances in telemedicine, energy independence and enhanced public safety. In his statement on the Declaratory Ruling, Commissioner Copps offered that “[b]uilding wireless broadband infrastructure—and building it expeditiously—is integral to our nation’s success in too many ways to recount here this morning.”

The Commissioners also stressed the relationship between the Commission’s National Broadband Plan and wireless infrastructure deployment and the need for certainty in zoning application processes. On the latter, Commissioner Robert McDowell commented that the costs of uncertainty in zoning application processes are ultimately borne by consumers, and he hopes that reduction of uncertainty will free up capital for carriers to continue developing advanced technologies such as cognitive radios and femtocells.

In light of these important policy considerations, the Commission finds that 90 days is a “presumptively reasonable period of time” by which zoning authorities must act on wireless facility siting applications for collocations, and that 150 days is “presumptively reasonable” for other types of wireless facilities applications. The Commission clarifies that the time frames do not include the time that applicants take to respond to a zoning authority’s requests for additional information, provided that the zoning authority notifies the applicant within 30 days that its application is incomplete.

If a zoning authority does not act on an application within these time frames, then the Commission declares that a “failure to act” has occurred, and the applicant may file a court action within 30 days, as provided in Section 332(c)(7)(B)(v). However, the Commission rejects CTIA’s request that the application be deemed granted after the time frame elapses. Rather, the failure to act is deemed as having created a ripe claim that the applicant can take to court.

In an attempt to be what the Commissioners described as “balanced,” the Declaratory Ruling also provides that the zoning authority may present arguments to the court to attempt to show that additional time would be reasonable given the nature of the siting application at issue. The court must then fashion an appropriate case-specific remedy, including potentially approving an application.

While the Declaratory Ruling takes effect immediately, the Commission clarified that for currently pending applications, a “failure to act” occurs 90 days (for collocations) or 150 days (for other applications) after the date of release of the Declaratory Ruling (Nov. 18, 2009). Moreover, a party whose application has been pending for the applicable time frame (90 or 150 days) as of the Declaratory Ruling’s release date may, after providing notice to the relevant zoning authority, file suit under Section 332(c)(7)(B)(v) if the zoning authority fails to act within 60 days from the date of such notice.

The Commission’s action is clearly an important step to promote the deployment of wireless infrastructure. The Commission’s decision should help provide certainty and prompt treatment for wireless applications. Nonetheless, there is a concern that communities that are not “responsible” may seek to delay and test the limits of reasonable time based on the fact that the Commission declined to declare that applications would be deemed granted.

Service by single provider not adequate justification for denying siting application

The Declaratory Ruling also clarifies that a zoning authority may not deny a wireless facility siting application solely because one or more carriers presently provide service in an area and that to do so “prohibits or ha[s] the effect of prohibiting the provision of personal wireless services” under Section 332(c)(7)(B)(i)(II). This holding resolves a controversy created by disagreement among the federal courts of appeals over the “single-provider” rule.

In its holding, the Commission cited in particular the U.S. Court of Appeals for the 1st Circuit’s recent decision in Omnipoint Holdings, Inc., v. City of Cranston, No. 08-2491 (1st Cir. Nov. 3, 2009), holding that the single-provider rule “prevents customers in an area from having a choice of reliable carriers and thus undermines the [Act’s] goal to improve wireless service for customers through industry competition.”

This holding by the Commission is also extremely important to the wireless industry. The single-provider rule has been a significant impediment to wireless carriers in U.S. Courts of Appeals for the 2nd, 3rd, and 4th Circuits. Moreover, this ruling may also help wireless providers seeking to challenge recent moves by some local governments toward imposing “exclusive” access agreements whereby a city gives one provider the right to deploy network infrastructure in the city, and all other providers would be required to lease from that chosen provider.

Pre-emption of local ordinances requiring variances for wireless facilities

CTIA’s petition also requested that the Commission pre-empt every ordinance that requires variances for all wireless communications facilities. The Commission found that CTIA did not present sufficient information or evidence of a specific controversy on which to base such a pre-emption. The Commission did leave open the possibility of considering blanket variance ordinances in the future, provided that specific evidence is submitted to the Commission that a blanket variance ordinance is an effective prohibition of service.

Commission confirms that local authorities cannot consider radio frequency emissions

The Commission also took the opportunity to respond to numerous commenters that had argued against CTIA’s petition “in order to protect local citizens against the health hazards that these commenters attribute to RF [radio frequency] emissions.” Citing the plain language of Section 332(c)(7)(B)(iv), the Commission reiterated that state and local governments have no authority to deny or delay action on wireless siting applications based on “perceived health effects of RF emissions.”