FCC Puts Towns on the Clock

(from Maine Townsman, May 2010)
by Tom Hildreth of the McLane Law Firm

FCC’s New “Shot Clock” Ruling Sets Time Table for Approval of Wireless Telecommunication Facilities

As of July 2008, there were 3,300 pending zoning applications for wireless telecommunication facilities.  Of those, 760 had been pending for more than a year and 180 had been pending for more than three years.  Moreover, almost 350 of the 760 that had been pending for more than a year were requests to collocate on existing towers, and 135 of those collocation applications were pending for more than three years. Depending on the area of the country, processing times for wireless telecommunication facilities can be as long as 3 years.  In a recent ruling, the Federal Communications Commission (“FCC”) noted with some understatement that this evidence “demonstrates that unreasonable delays in the personal wireless service facility siting applications process have obstructed the provision of wireless services.”  In response, the FCC has decided to institute a “shot clock” on local governments by clarifying federal requirements for the time table for approval of wireless telecommunication facilities.

Federal law mandates in 47 USC § 332(c)(7)(B) that a local government “shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed” (emphasis added).  The FCC’s recent ruling defines “a reasonable period of time” as 90 days for collocation applications and 150 days for all other wireless telecommunication facility applications.  Additionally, it provides applicants with potential remedies in court if a local government exceeds a reasonable period of time acting on the application.

The FCC also noted that reviewing authorities are bound to notify applicants within a reasonable period of time if their applications are incomplete.  In deference to this principle, the time it takes for an applicant to respond to a request for additional information will not count toward the 90 or 150 days if the local government notifies the applicant within the first 30 days that the application is incomplete.

The effective date of the Shot Clock regulation was Nov. 18, 2009.  For applications that were pending on that date and had been so for 90 or 150 days or longer, the applicant may provide notice to the local government and file suit if the local government fails to act within 60 days.  For applications that were pending on that date for less than 90 or 150 days, the local government has 90 or 150 days from Nov. 18, 2009, before the applicant may seek assistance from the court.

The evidence of unreasonable delays in the approval and deployment of advanced wireless communications services was the impetus for this ruling, but the FCC noted public policy concerns as well.  It stated that “the deployment of facilities without unreasonable delay is vital to promote public safety, including the availability of wireless 911, throughout the nation.  The importance of wireless communications for public safety is critical, especially as consumers increasingly rely upon their personal wireless service devices as their primary method of communication.”

One question left open by the Shot Clock rule is whether the clock resets itself upon the completion of each procedural phase, e.g., one clock for zoning relief and another clock for the site plan review that follows.  However, given the wording of the law it is likely that there is one clock and it begins when the first application is submitted.  The statute states that a local government shall act “on any request for authorization to place, construct or modify personal wireless service facilities” within 90 or 150 days.  The statute does not address each layer of procedural review, but rather addresses the application process as a whole for each contemplated wireless telecommunication facility project. 

To avoid potential litigation, the best practice for local governments is to treat each wireless telecommunication facility project as having one clock regardless of the approval required from different local boards.  Many municipalities have focused authority for review and approval of wireless communication facilities in a single land use board – most often the planning board – sometimes requiring site plan review, sometimes a conditional use permit.  Towns that still require separate zoning and planning review might be well advised to revisit that divided authority.

This ruling can be seen as a compromise between the concerns of wireless service providers and local governments.  According to its discussion in the ruling, the FCC sought to “ensure timely…local government action and preserve incentives for providers to work cooperatively with them to address community needs.”

Tom Hildreth can be contacted at: (603) 628-1177 or (603) 566-4154, email: thomas.hildreth@mclane.com