More cell tower discussion, documents from National League of Cities and NaCO, and a webinar tomorrow

Last November I posted four pieces discussing the FCC’s October 2014 declaratory ruling explaining/interpreting Section 6409(a) of the Spectrum Act (aka the Middle Class Tax Relief and Job Creation Act), which reads:

[A] state or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.

(Advice: You may need to read or reread the four pieces for the necessary background to follow the rest of this post).

Yesterday I had a good discussion with Dustin Miller of the Iowa League of Cities about how the 60-day deadline for making decisions on “eligible facilities requests” found in the Spectrum Act can be squared with the 90-day deadline for collocations found in the 2009 FCC declaratory ruling. He provided me with copies of some valuable documents that the PCIA and the National League of Cities worked on together and recently released, including a Wireless Facility Siting Model Chapter for local ordinances, and accompanying Cover Sheet and Checklist. With regard to collocations, the 60-day deadline (from date application is filed) found in the Spectrum Act technically only applies to collocations that do not result in a substantial change to the physical dimensions of the existing facility as that term is defined in the 2014 ruling. So for example, deploying a new antenna array that protrudes more than 6 feet from the edge of an existing tower located in the public ROW would not fall under the new ruling (with its 60-day deadline) because that would be a substantial change to the physical dimensions of the tower.  Instead, such an application would be covered by the 90-day deadline for collocations as set forth in the 2009 ruling.

The conversation with Dustin revolved around the hair-splitting that often will be required of local governments to know whether the 60-day or 90-day deadline applies in any given circumstance.  Site plans are not always as detailed as would be necessary to apply the FCC rules, equipment is constantly evolving in a way that muddies the interpretation of the rules, and so on.  At a minimum local governments should require wireless industry applicants to clearly state in their applications whether they believe the 60-day (collocation involving no substantial change) or 90-day (collocation that is a substantial change) deadline applies, and provide substantiating details sufficient for the local government to make its own judgment.  If an application is mistakenly treated as one with a 90-day deadline but belongs in the 60-day category, however, it must be deemed automatically approved any time after the 60th day, upon notification by the applicant.  Of course, disagreement over the 60 vs. 90 judgment in and of itself can give rise to litigation, as the wireless industry will want to establish precedents for putting more types of modifications into the 60-day category.

One potential solution for local governments is the safe approach – Simply apply the 60-day deadline to all collocation requests, whether or not they meet one of the tests for determining substantial change. 

As always, of course, none of this is legal advice.  That is what your city or county attorney provides!

The National League of Cities is sponsoring a webinar tomorrow on the cell tower topic.  This is the relevant information:

Increasing Wireless Communications Services for Your Residents
Wednesday, March 25, 2:00 – 3:15 pm Central Time
To register click here.

Wireless communications services are vital to cities because it improves the ways residents can get online and access information. In an effort to increase Internet access through wireless networks, the Federal Communications Commission (FCC) has developed a set of rules around wireless siting practices that cities will need to adhere to. Panelists on this webinar will discuss the importance of wireless broadband for their communities and how local governments are getting ready to respond to the new FCC rules.

FCC ruling Part IV: Shot clock clarification and other matters

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.

US Supreme Court validates FCC’s shot clock ruling for local decisions on cell tower permits

by Gary Taylor

City of Arlington, Texas v. Federal Communications Commission
(U.S. Supreme Court, May 20, 2013)

This case was previously discussed in this blog here.  On Monday, the U.S. Supreme Court issued its opinion, which effectively validates the FCC’s shot clock declaratory ruling.  A summary of the Court’s opinion:

The Federal Telecommunications Act (FTA) requires state or local governments to act on siting applications for wireless facilities “within a reasonable period of time after the request is duly filed.” Relying on its broad authority to implement the FTA, the Federal Communications Commission (FCC) issued a Declaratory Ruling (the shot clock) concluding that the phrase “reasonable period of time” is presumptively (but rebuttably) 90 days to process an application to place a new antenna on an existing tower and 150 days to process all other applications. The cities of Arlington and San Antonio, Texas, argued that the Commission lacked authority to interpret the language “within a reasonable period of time” because doing so amounted to determining the jurisdictional limits of its own authority – a task exclusively within the province of Congeress. The Fifth Circuit Court of Appeals applied precedent from the case of Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, to that question. Finding the statute ambiguous, it upheld as a permissible construction of the statute the FCC’s view that the FTA’s broad grant of regulatory authority empowered it to adopt the Declaratory Ruling.

In a 6-3 decision, the U.S. Supreme Court affirmed the Fifth Circuit.  Writing for the majority, Justice Scalia found no distinction between an agency’s “jurisdictional” and “nonjurisdictional” interpretations. When a court reviews an agency’s interpretation of a statute it administers, the question is always, simply, whether the agency has stayed within the bounds of its statutory authority. The “jurisdictional-nonjurisdictional” line is meaningful in the judicial context because Congress has the power to tell the courts what classes of cases they may decide—that is, to define their jurisdiction—but not to prescribe how they decide those cases. For agencies charged with administering congressional statutes, however, both their power to act and how they are to act is authoritatively prescribed by Congress, so that when they act improperly, no less than when they act beyond their jurisdiction, what they do is beyond their authority and can be struck down by a court.  Under Chevron, a reviewing court must first ask whether Congress has directly spoken to the precise question at issue; if so, the court must give effect to Congress’ unambiguously expressed intent. If, however the statute is silent or ambiguous, the court must defer to the administering agency’s construction of the statute so long as it is permissible. Because the question is always whether the agency has gone beyond what Congress has permitted it to do, there is no principled basis for carving out an arbitrary subset of “jurisdictional” questions from the Chevron framework.

The Court rejected Arlington’s contention that Chevron deference is not appropriate here because the FCC asserted jurisdiction over matters of traditional state and local concern. The case does not implicate any notion of federalism: The statute explicitly supplants state authority, so the question is simply whether a federal agency or federal courts will draw the lines to which the States must hew.

A general conferral of rulemaking authority validates rules for all the matters the agency is charged with administering. In this case, the preconditions to deference under Chevron are satisfied because Congress has unambiguously vested the FCC with general authority to administer the Communications Act through rulemaking and adjudication, and the agency’s interpretation of “reasonable period of time” at issue was promulgated in the exercise of that authority.

SCOTUSblog recaps this week’s Supreme Court arguments

SCOTUSblog provided good previews of this week’s oral arguments, discussed in this blog on Tuesday, and a post-argument recap of the St. Johns Water Management takings case.

Koontz v. St. Johns Water Management preview
Koontz v. St. Johns Water Management recap of arguments

City of Arlington v. FCC preview

Supreme Court to address FCC “shot clock” for local governments on cell tower applications (sort of)

Last month the US Supreme Court agreed to hear two cases concerning the FCC’s “shot clock” (previous blogposts on the shot clock are found here) which set time limits on local governments for deciding on zoning requests for cell towers: 90 days for collocations (placing antennas on existing towers) and 150 for all other applications.  Actually the cases don’t directly address the shot clock question.  As you know, law is complicated!

The cases are similar so only one will be explained here.  In Arlington v. FCC the city of Arlington, Texas filed suit claiming that the FCC could not set the shot clock time limits because the FCC cannot determine its own power under the Federal Communications Act. When Congress passed the Act, it granted a certain amount of power to the FCC to enforce and define the rules under the Act, but the city of Arlington argued that setting these specific time limits went too far, because it ran contrary to the provision in the Telecommunications Act that leaves the zoning permitting process in the hands of the local government.

Here is the complicated part.  The case went before the Federal Fifth Circuit Court of Appeals.  The FCC argued that under the long-standing Chevron doctrine (arising from the case of Chevron U.S.A. v. Natural Resources Defense Council) courts must always defer to an agency’s interpretation of a law so long as the interpretation is reasonable and “permissible.” The city of Arlington countered that the Supreme Court has never determined whether the Chevron doctrine applies to situations where the agency is venturing to define the reach of its own jurisdiction under a particular law. The Fifth Circuit sided with the FCC and deferred to the agency’s interpretation that the FCC had the authority to set time limits on local governments (having the effect of affirming the declaratory ruling creating the shot clock). Arlington appealed to the Supreme Court, which agreed to hear the case exclusively to answer whether the Chevron doctrine applies in this situation. In other words, the Supreme Court is not deciding on the legality of the shot clock itself. It is deciding whether a federal court must defer to the FCC’s interpretation that the FCC has the authority to institute the shot clock.  If the Court determines that courts must give deference to the agency’s interpretation of the Telecommunications Act on this issue it will, in effect, preclude this and future challenges.

Oral arguments are scheduled for January 16.

FCC refuses to reconsider cell tower shot clock ruling

by Gary Taylor

On November 18, 2009 the Federal Communications Commission (FCC) issued a declaratory ruling that established a “shot clock” for local zoning authorities acting on wireless facilities siting applications. 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. Previous blogposts that explain the FCC ruling in greater detail can be found here.

On December 17, 2009 a Petition requesting reconsideration of the rules was filed with the FCC by the American Planning Association, National Association of Counties, the National League of Cities and others; however, on August 4, 2010 the FCC denied the Petition for Reconsideration, leaving the November 2009 order unchanged.  The August 4 order can be accessed here.

Update on FCC shot clock ruling on cell towers

by Gary Taylor

The FCC’s November order establishing a “shot clock” under which state and local governments must review and act upon tower siting requests (link to previous blog posts here) has been challenged by several government entities.  Five groups – The National League of Cities, the National Association of Telecommunications Officers and Advisors, the National Association of Counties, the United States Conference of Mayors, and the American Planning Association, filed a Petition for Reconsideration with the FCC and requested that the FCC stay the effective date of the new shot clock rules.  If the FCC does not stay the entire decision, however, the groups alternatively request that the FCC stay the requirement that state and local governments have 30 days to notify applicants that their filings are incomplete. The groups argue that the FCC exceeded its authority under Section 332(c)(7) of the 1996 Telecommunications Act when it created 30-day rule. The groups’ requests have been opposed by cell tower and wireless communications associations.

On January 14 the city of Arlington, Texas appealed the FCC’s decision to the United States Court of Appeals for the Fifth Circuit. According to the city, the FCC exceeded its authority when it adopted the shot clock requirements, and the FCC’s decision is arbitrary and capricious, an abuse of discretion, and otherwise contrary to law.  A number of cities, most recently including Portland Oregon two days ago, have joined Arlington in the lawsuit.

More on FCC’s shot-clock ruling on cell tower decisions

by Gary Taylor

The International Municipal Lawyers Association (IMLA) has assembled materials addressing the FCC’s recent ruling placing time limits on a city/county acting on a cell tower application (I previously blogged on the ruling itself – available here).  The Varnum law firm has developed a presentation on the ruling, what it means for local governments, and strategies for compliance, that is available here.  In addition, the firm of Miller and Van Eaton has drafted a memorandum – available here – that also discusses the possible consequences of the ruling.

FCC creates “shot clock” for cell tower/antenna applications

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.

The FCC declaratory ruling issued on November 18 can be accessed here.  The FCC’s news release about the ruling is here.

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