by Gary Taylor
While the bulk of the October 21 FCC ruling addressed Section 6409(a) which addresses collocation, modification, and replacement of wireless facilities, it also contained a section meant to clarify the 90- and 150-day presumptive deadlines (the “cell tower shot clock”) set forth by the FCC in a 2009 ruling, and a section to address industry concerns about local governments giving preference to siting wireless facilities on local government property.
Shot clock clarifications. Since 1996, Federal Telecommunications Act (FTA) Section 332(c)(7)(B) has required local governments to act on applications for personal wireless service facilities within a “reasonable period of time.” The 2009 order set 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 personal wireless service antennas on existing towers) and 150 days for all other applications. The ability of the FCC to set these rules governing local review was approved by the US Supreme Court in 2013.
The FCC clarified that the presumptively reasonable 90- and 150-day deadlines begin to run from the date of filing (with the exceptions noted below), the application. The deadlines may be extended only by a local government determination that the application is incomplete. The local government must inform the applicant of the incompleteness within 30 days of the initial filing, and must clearly and specifically delineate in writing the missing information. The clock will resume when the information is provided, but may be tolled again if the local government notifies the applicant within 10 days that the application remains incomplete. This notification cannot contain requests for new information beyond what was previously requested.
How does the 2009 ruling square with the October 21 ruling, particularly with regard to the deadlines for action on collocations (discussed in yesterday’s blogpost)? The FCC first pointed out that Section 332(c)(7) deals only with personal wireless service facilities (cell phone equipment), which is a much narrower focus than “wireless facilities” – the focus of Section 6409(a) of the Spectrum Act. The FCC also noted that some collocation applications under Section 332(c)(7) do not constitute “eligible facilities requests” under Section 6409(a). Recognizing that the provisions cover different (though overlapping) types of applications, the FCC declined to make any “changes or clarifications” to the 2009 ruling that would harmonize it with the October 21 ruling. Local governments are thus left to muddle through the distinctions in collocation applications to determine the appropriate timeline to which they must adhere.
DAS facilities. The FCC further clarified that the shot clock deadlines apply to Distributed Antenna Systems (DAS) applications. DAS are small facilities that are increasingly being deployed to fill in coverage gaps and enhance capacity in congested areas (urban corridors, stadiums, hotels, convention centers, etc.)
Preference for deployment on government property. The wireless industry has expressed concerns over local governments giving preference to siting wireless facilities on local government property, arguing that it unreasonably discriminates among providers by limiting the siting flexibility of subsequent wireless entrants in a given area. The FCC recognized that some such local policies – those that “pressure” applicants to use local government property, coupled with regulations that make it nearly impossible to site facilities elsewhere – may be discriminatory as applied. Nevertheless, the FCC declined to find that such preference is discriminatory as a matter of course, and so refused to make a rule that municipal property preferences are per se unreasonable.