by Gary Taylor
On November 18 the Federal Communications Commission (FCC) issued a declaratory ruling that could have a significant impact on the way some communities process applications for cell towers and antennas. The ruling establishes a “shot clock” for local zoning authorities acting on wireless facilities siting applications. The Federal Telecommunications Act (FTA) requires local governments to act on applications within a “reasonable period of time.” The order sets presumptive time limits based on what the FCC considers to be reasonable. Under the ruling, local governments have 90 days to act on requests for collocations (placing antennas on existing towers) and 150 for all other applications. Failure of the local government to issue a decision within the appropriate time frame will constitute “failure to act,” which will allow the applicant to bring a lawsuit. The “shot clock” is rebuttable in court, meaning that the local government may produce evidence that the delay was reasonable under the circumstances. Of course the local government will bear the costs of litigation (at least initially) to defend the reasonableness of the delay. The rebuttable presumption is a less-drastic alternative than what was requested by the wireless service industry, which had pressed for an automatic grant of a requested permit if the applicable deadline was not met.
The ruling also determined that where a local government denies a personal wireless service facility siting application solely because that service is available from another provider, such a denial violates the section of the FTA that “prohibits, or has the effect of prohibiting the provision of personal wireless services.” The FCC was convinced of the need for such a determination by evidence produced by the wireless industry that cities and counties were using a “one is enough” rationale for denying applications for towers and antennas.