On November 18, 2009, the Federal Communications Commission ("FCC") issued a Declaratory Ruling (WT Docket No. 08-165) in response to a petition filed by CTIA - Wireless Association.
The ruling clarified certain provisions within the Communications Act of 1934 (the "Act"), as amended, (i) setting forth time frames in which a state or local authority will have to act on a wireless facility siting application, and (ii) finding that it is a violation for a state or local authority to deny a personal wireless service facility siting application because service is available for another provider.
Clarification of the time periods in which a state or local zoning authority will be deemed to have failed to act on a wireless facility siting application under Section 332(c)(7)(B)(v) of the Act
The FCC found that the record showed that unreasonable delays were occurring in a significant number of cases involving the proposed siting of wireless communications facilities. Given the evidence of unreasonable delays and public interest in avoiding them, the FCC concluded that by defining the statutory terms "reasonable period of time" and "failure to act" within Section 332(c)(7)(B)(v) of the Act, it would clarify when an adversely affected service provider may take a dilatory state or local government to court.
The FCC concluded that a "reasonable period of time" is, presumptively, 90 days to process personal wireless service facility siting applications requesting collocations, and, presumptively, 150 days to process all other applications. A collocation application is specifically defined in the Declaratory Ruling. If the state or local government does not act upon applications within those time frames, then a "failure to act" has occurred and the personal wireless service provider may seek redress in court within 30 days, as provided in Section 332(c)(7)(B)(v) of the Act.
The 90 and 150-day time frames begin from the date the application is filed. However, these time frames take into account whether an application is complete so the time frames are not conclusive. If the application is incomplete as filed, then the time frames do not include the time that an applicant takes to respond to state and local governments' requests for additional information to complete the application.
To prevent abuse, the FCC imposed a 30-day review period during which time the state or local authority can determine if an application is complete. If the state or local authority determines that the application is incomplete and notifies the applicant within 30 days of submittal, then the 90 or 150-day time frame tolls, until the application is complete. If the state or local authority fails to notify the applicant that the application is incomplete within 30 days of submittal, then any additional time it takes a carrier to respond and submit information will not count against the 90 or 150-day time frame. Factoring in the 30-day review period, the processing time frames are closer to 120 days for collocation applications and 180 days for all other siting applications.
For applications currently pending before a state or local authority, the FCC proposes to use the date of the Declaratory Ruling, November 18, 2009, as the filing date. Should a municipality fail to act on the pending application within the appropriate time frame from that date, then the carrier-applicant can seek redress in court.
Similar to time frames under state zoning laws, these time frames can be extended beyond the 90 and 150 days by mutual consent of the personal wireless service provider and the state or local government, and that in such instances, the commencement of the 30-day period for filing suit is also tolled.
If a town fails to act on an application within the appropriate time frame, and the carrier files a court action alleging an unreasonable delay claim within the 30-day appeal period, the exceeding of the time frame by the local authority will not, in and of itself, entitle the applicant to an injunction granting the application. The government can seek to rebut the presumption and argue that the delays were reasonable due to the unique circumstances of that case, and even if they fail to rebut the presumption, the reviewing court would then review the record to determine the appropriate remedy.
FCC finds that it is a violation for a state or local authority to deny a personal wireless service facility siting application because service is available for another provider.
The FCC adopted the First Circuit's interpretation of Section 332(c)(7)(B)(i)(II) of the Act, and concluded that the state or local government that denies an application for personal wireless service facilities siting solely because one or more carriers serve a given geographic market has engaged in unlawful regulation that prohibits or has the effect of prohibiting the provision of wireless service within the meaning of Section 332(c)(7)(B)(i)(II) of the Act. This ruling resolves a split among the Circuits, and adopts the First Circuit's interpretation of Section 332(c)(7)(B)(i)(II) of the Act, as set forth most recently in the Omnipoint v. City of Cranston case.
FCC rejects the argument that the FCC should deny CTIA's petition in order to protect local citizens against health hazards.
In rejecting the argument, the FCC reiterated that state or local governments do not have the authority or flexibility to deny personal wireless service facility siting applications or delay action based on the perceived health effects of RF emissions.
Click the pdf link below to read the full text of the Declaratory Ruling.
If you have any questions about this Declaratory Ruling or need more information about Prince Lobel's telecommunications capabilities, please contact Scott F. Lacy at slacy@PrinceLobel.com or 617 456 8083, or Craig M. Tateronis, Chair of Prince Lobel's Telecommunications Practice Group at 617 456 8021 or ctateronis@PrinceLobel.com.
