The item adopted today in Wireless Telecommunications docket 08-165 addresses a petition filed in July 2008 by CTIA, which had sought tower review deadlines of 45 and 75 days and had asked the FCC to rule that applications not acted upon by then would be deemed granted. In its petition for declaratory ruling, the trade group also asked the Commission to clarify that section 332(c)(7) of the 1934 Communications Act, as amended “bars zoning decisions that have the effect of prohibiting an additional entrant from offering service in a given area.”
Under today’s ruling, states and localities will have 90 days to review collocated tower projects and 150 days to review other applications. After those deadlines have past, applicants can file for court relief within 30 days. The Commission rejected CTIA’s deemed granted request. But it granted the group’s request for a ruling that state or local governments that deny a wireless facility because service is available from another provider would be violating section 332(c)(7). However, the item denies CTIA’s request for a ruling that state or local regulations that require a variance or waiver for every tower siting is a violation of the Act, saying “we have not been presented with any evidence of a specific controversy.”
“We find that this transitional regime best balances the interests of applicants in finality with the needs of State and local governments for adequate time to implement our interpretation of Section 332(c)(7),” the FCC said in the declaratory ruling, which was released this afternoon. FCC officials also said that the time frames they adopted are consistent with some state statutes – including those in North Carolina and Kentucky – that limit how long localities can take to review tower applications. “While most state and local jurisdictions currently process tower siting applications in a timely fashion, the FCC found that there are many instances of unnecessary delays,” the agency said.
Section 332(c)(7) says that state or local governments must act on tower-siting requests “within a reasonable period of time,” but it doesn’t define how long that is. Once a state or locality has acted, applicants have 30 days to challenge the decision in court.
In its petition, CTIA contended that many jurisdictions were sitting on applications, preventing applicants from seeking court relief. The trade group said that carriers it surveyed indicated that 3,300 wireless siting applications were pending before local jurisdictions. Almost one-quarter of those – about 760 – had been pending for more than a year and more than 180 had been pending for more than three years. FCC Chairman Julius Genachowski and the declaratory ruling cited the CTIA figures in justifying the need for today’s action.
State and local officials had argued that the FCC’s ruling would violate the Act by preempting state and local review of tower projects. They also complained that the wireless industry failed to offer specific examples of delays in siting towers, instead relying on “horror stories” and “vague or anonymous tales.” However, CTIA submitted a filing into the record shortly before the “sunshine” period began last week that included specific examples of tower-siting delays of as long as years across the country. But the Commission said it did not consider that filing in light of the fact that the group did not give opponents a chance to respond.
The agency also cited the complaints of local governments that they did not have a chance to rebut allegations against them, but it said that “the record amply establishes the occurrence of significant instances of delay” and “that the State and local government community has had ample opportunity to respond to the aggregate evidence that supports our decision.” The item also said individual jurisdictions will be able to rebut industry allegations if challenged in court.
In the declaratory ruling, the Commission disagreed with the contention of state and local officials that it didn’t have the authority to interpret ambiguous provisions of section 332(c)(7).
“We agree with the Petitioner that the Commission has the authority to interpret Section 332(c)(7). Congress delegated to the Commission the responsibility for administering the Communications Act. Section 1 of the Act directs the Commission to ‘execute and enforce the provisions of this Act’ in order to, inter alia, regulate and promote communication ‘by wire and radio’ on a nationwide basis,” the item said. “Moreover, Section 201(b) of the Act authorizes the Commission ‘to prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions of this Act.’” The FCC also said its jurisdiction determination is consistent with its 2007 local franchising order. And it said it disagreed “with State and local government commenters that our interpreting the limitations that Congress imposed on State and local governments in Section 332(c)(7) is the same as imposing new limitations on State and local governments. Our interpretation of Section 332(c)(7) is not the imposition of new limitations, as it merely interprets the limits Congress already imposed on State and local governments.”
In their statements, Commissioners said today’s ruling will help facilitate the deployment of wireless broadband services while preserving the authority of state and local officials.
“Today’s Declaratory Ruling will help end these unnecessary delays and speed the deployment of 4G networks, while also respecting the legitimate concerns of local authorities and preserving their control over local zoning and land use policies,” said Mr. Genachowski, who had cited streamlining tower siting as one way to remove obstacles to broadband deployment. “Our decision achieves this balance by defining reasonable and achievable timeframes for state and local governments to act on zoning applications – 90 days for collocations and 150 days for other siting applications. I want to be clear that the process we establish does not dictate any substantive outcome in any particular case, or otherwise limit state and local governments’ fundamental authority over local land use. It simply requires that they must reach land use decisions that involve wireless equipment in a timely fashion and be able to justify their conclusions to a federal district court if challenged, just as Congress specified.”
“In today’s decision, we seek to provide greater certainty to both State and local governments, as well as to the wireless industry, as to what constitutes a reasonable period of review for collocation and other tower siting applications,” Commissioner Michael J. Copps said. “Based on the record and our interpretation of the statute, we clarify the point at which an applicant may seek – should it choose to do so – court review where a State or local zoning authority has not acted. While we establish a presumption here, nothing in this decision reduces the authority of a court of relevant jurisdiction from assessing, based on the merits of any individual case, whether a zoning review of more than 90 days for collocation applications or 150 days for other tower siting applications is reasonable.”
Mr. Copps added that he is “a great believer in our federal system of government, and have not been shy in the past about opposing Commission action that unnecessarily encroached on the authority of State and local governments. . . . We take no such actions today. Instead, we actually recognize the rights of State and local jurisdictions and also the importance of the courts.”
“Our ruling strikes an elegant balance between establishing a deregulatory national framework to clear unnecessary underbrush, while preserving state and local control over tower siting,” Commissioner Robert M. McDowell said. “In creating deadlines for decisions on wireless siting requests – 90 days for the review of collocation applications and 150 days for the review of other siting applications – we have both granted the industry greater certainty and provided our state and local colleagues reasonable periods for action, as well as the flexibility, to fully consider the nature and scope of a particular siting request. Put another way, our action eliminates unreasonable delay and uncertainty, the costs of which are passed on to wireless consumers, and allows our state and local colleagues the continued ability to safeguard the interests of their constituents.”
“Today’s compromise preserves, as it must, state and local governments’ roles as the arbiters of the merits of wireless service facility siting applications,” said Commissioner Mignon L. Clyburn, a former state regulatory commissioner. “It also, based on the record developed, provides the presumptively reasonable timeframes required to process these applications. In fact, the item merely adopts the time frames under which many responsible jurisdictions already operate in practice.”
Commissioner Meredith A. Baker said, “The item before us carefully balances several concerns in accomplishing the Commission’s goal. First, the item recognizes the rights and duties of local communities to review and approve applications for zoning approvals for wireless communications facilities. At the same time, the item also appreciates the need to provide greater timeliness and certainty to the men and women who build our mobile broadband infrastructure.”
Although it didn’t get everything it wanted, CTIA praised today’s FCC action, including the relatively speedy approval by Commissioners.
Steve Largent, CTIA’s president and chief executive officer, said today’s ruling provides “much-needed certainty to the process by setting a reasonable review period and clarifying that a zoning authority may not deny an application filed by one provider based on the presence of another wireless provider in the area. We sincerely appreciate the Commission and the Chairman for quickly acting to fulfill this promise.”
Robert Quinn, senior vice president-federal regulatory at AT&T, Inc., also praised the FCC’s action. “In approving this important reform today, Chairman Genachowski and the Commission have provided tremendous support for the effort to bring more mobile broadband to consumers. Removing obstacles to the deployment of competitive broadband facilities is necessary to achieve the goal of 100% broadband for all Americans,” he said. “The Commission’s action today, while not giving the industry all that was requested, provides a path to resolve zoning issues related to siting of towers much faster than the process that exists today.”
Tom Sugrue, vice president-government affairs for T-Mobile USA, Inc., said, “We applaud and commend the FCC for taking action on this important tower siting policy and want to especially thank Chairman Genachowski for his leadership in bringing this matter to a vote. Wireless deployment is too often bogged down in unreasonable siting delays that hinder our ability to serve our customers and potentially undermine the market’s competitive forces just as we are all pushing to deliver broadband services. The FCC was appropriately respectful of local siting authority interests while also holding localities to reasonable timeframes for action. If as a result, T-Mobile and other carriers can more rapidly plan and deploy broadband services, then consumers stand to reap considerable benefits.”
But the National Association of Telecommunications Officers and Advisors expressed disappointment with the FCC’s action and said it would consider filing a petition for reconsideration or legal challenge. “We are grateful to the Commission for its attempts to respect local authority,” it said. But it added that it “is disappointed in the statement of the Chairman in which he referenced and adopted industry claims as evidence. We have embraced the Chairman’s previous statements of promising that the Commission will be guided by data based research. For too long we have suffered from a Commission that simply adopted the statistics of industry advocates.”
Mr. Genachowski has said that he also wants the FCC to addressing wireless roaming issues as another way to remove an obstacle to deployment. “We don’t have timing on roaming,” he told reporters after today’s meeting. “It’s obviously an important issue.”
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Wireless Industry Announcement Re: Shot-Clock Petition
Source: Sunroom Desk
Date: 11/19/2009
