On November 18, 2009, the Federal Communications Commission released a Declaratory Ruling clarifying Section 332(c)(7) of the Communications Act, in response to a petition filed by CTIA-The Wireless Association. The Ruling makes three primary findings:
First, the Ruling adopts presumptively "reasonable" periods for local action on a siting application. Specifically, local governments will have 90 days for the review of collocation applications and 150 days for the review of other siting applications. If a local government fails to act within these time frames, an applicant can bring an action in court, and a local government will bear the burden of explaining why the delay was reasonable.
Second, the Ruling finds that a local government that denies an application "solely because 'one or more carriers serve a given geographic market'" has engaged in unlawful regulation that "prohibits or ha[s] the effect of prohibiting the provision of personal wireless services."
Third, the Ruling rejects CTIA's request that the agency preempt all local ordinances and state laws that effectively require a provider to obtain a variance before siting facilities.
A comprehensive analysis of the Ruling as well as information about reconsideration and appeal can be found here.
Key Documents:
The FCC Declaratory Ruling
Section 332 of the Communications Act
Federal Register Notice of FCC Declaratory Ruling
Practice Points for Local Government Attorneys
Note General Timelines for Local Action
A "reasonable time" for local action - beyond which local inaction on a siting application constitutes a "failure to act" - is: (1) 90 days for collocation applications; and (2) 150 days for other siting applications. ¶4.
At that point, the applicant is entitled to bring an action under Section 332(c)(7)(B)(v). ¶19. It has 30 days to do so, by Section 332(c)(7)(B)(v). ¶49.
The State or local government will then have the opportunity "to present to the court arguments to show that additional time would be reasonable, given the nature and scope of the siting application at issue." ¶19.
Note Applicants Can Lose the Right To Sue
"Any court action must be brought by day 120 or 180 [after the application is filed] on penalty of losing the ability to sue." ¶:49.
However, the "'reasonable period of time' may be extended beyond 90 or 150 days by mutual consent" of the provider and the government; and the commencement of the 30-day period will be tolled. ¶ 49.
Note Interaction with State Law
The Ruling's timelines for Section 332(c)(7) operate independently of state or local timelines. If a state or local timeline is shorter than the timelines in the Ruling, the applicant may pursue remedies under the state or local law. If the state or local timeline is longer than the timelines in the Ruling, the applicant may pursue remedies under Section 332(c)(7) in accordance with the Ruling, or wait and pursue the remedy under state or local law at a later time. ¶ 50.
Note Treatment of Currently Pending Applications
For applications that have been pending for 90/150 days or longer as of November 18, 2009, the applicant may provide notice to the State or local government, and file suit if the local government fails to act within 60 days of such notice. ¶ 51.
For applications that have been pending for less than 90/150 days, the State or local government will have 90/150 days from November 18, 2009 before it will be considered have "failed to act" on the application.
Note Requirements for Incomplete Applications
"[W]hen applications are incomplete as filed, the time frames do not include the time that applicants take to respond to State and local governments' requests for additional information." ¶ 52.
However, "[r]eviewing authorities should be bound to notify applicants within a reasonable period of time that their applications are incomplete." ¶ 52. As a result, "the time it takes for an applicant to respond to a request for additional information will not count toward the 90 or 150 days only if that State or local government notifies the applicant within the first 30 days that its application is incomplete."
Key Dates for Applications Pending as of November 18, 2009**
Dec. 18, 2009 -- Deadline to notify applicant that application is incomplete (if local government seeks to have deadlines tolled).
Feb. 16, 2010 -- Deadline to take final action for co-locations.
Mar. 18, 2010 -- Deadline for applicant to file suit regarding a local government's failure to act on co-location application.
April 17, 2010 -- Deadline to take final action for all other applications.
May 17, 2010 -- Deadline for applicant to file suit regarding a local government failure to act on any other application.
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FCC Adopts Declaratory Ruling Regarding Tower Siting
Source: Miller & Van Eaton
Date: 11/18/2009
