The industry celebrated a big win last November when the FCC’s shot clock mandated that municipalities had to approve or deny permits for cell towers and antennas within a certain amount of time.
The deadlines, long lobbied for by the wireless industry, were billed as a necessary measure to stop the permitting process from stretching into months and even years by defining what constituted a reasonable amount of time for processing a permit application.
Seven months later, not a whole lot has changed, say groups representing local municipalities, tower companies and carriers. Lawsuits over missed deadlines aren’t flowing in, and permits for the most part are being processed. Overall, it’s business as usual for both carriers and local governments.
“It’s in our best interests and the municipality’s best interests to solve the issue of tower siting without litigation,” says Verizon Assistant General Counsel Andy Lachance, whose work includes cell siting issues with state and local governments. “I think the fact that there haven’t been a whole lot of cases invoking the shot clock is evidence that [it’s working.]”
Since the shot clock went into effect, Lachance says Verizon has filed just one lawsuit to get a decision on a cell tower permit. The judge issued a decision within a week denying the permit, which Lachance points to as a success story because it brought closure to the siting process and allowed Verizon to move ahead with other options.
Lachance emphasized that Verizon does not pursue litigation as “long as we know they’re working on it and being reasonable. It’s in our interest to let them have time to make their decision.”
However, he says that the looming threat of the shot clock has in some instances helped local zoning authorities to process the permits faster. “The shot clock gives us another tool to get decisions made more quickly and as a last resort, litigate if we have to,” Lachance says.
City Advocates Weigh In
Advocacy organizations for local municipalities like the National Association of Telecommunications Officers and Advisors (NATOA) say the shot clock has had a minimal real-life impact on the way cell tower permits are handled.
NATOA President Ken Fellman says most local governments cooperate with the wireless industry so the ruling mainly affects municipalities that have been systemically resistant to the deployment of wireless technology. “There will always be problematic local authorities, but I think they’re the minority,” Fellman says.
Fellman’s sentiment is echoed by John Pestle, a partner who represents municipalities around the country at Michigan-based business law firm Varnum. “We’ve seen very little impact at all on municipalities today,” he says.
Pestle says most zoning committees have no problem processing applications within the FCC’s deadlines, which established a timeframe of 90 days for collocation permits and 150 days for all other tower siting applications to be reviewed by state and local governments.
PCIA, a group representing wireless infrastructure providers, also says the FCC’s ruling hasn’t brought about a significant change in the permitting process since it went into effect. “On one level, it’s not real surprising that the shot clock hasn’t made a big difference,” says Michael Fitch, president and CEO of PCIA. “Cities whose attitudes are hostile toward wireless are going to remain hostile; if they’re cooperative, they’re going to remain cooperative. This doesn’t change any attitudes.”
The FCC’s ruling came one year after CTIA asked the agency to impose deadlines of 45 days on collocation permits and 75 days on new tower permits, claiming the local zoning approval process remained a “substantial impediment” to providing wireless services in many areas.
CTIA Vice President of Public Affairs John Walls said in a 2008 blog post that one-quarter of siting applications filed by CTIA’s members had been awaiting a decision for more than a year. Five percent of those applications had been awaiting final action for more than three years, he said.
CTIA cited similar instances of delayed application processing in its 2008 petition pushing the FCC to establish guidelines as to what constituted a reasonable amount of time to process applications. The association said it took one New Jersey jurisdiction three years and 31 hearings to decide on a collocation permit for a single tower, which the jurisdiction then denied. The carriers spent an additional six years challenging the decision in court.
“Lingering ambiguities in several key statutory provisions have been exploited by a subset of zoning authorities, substantially impeding wireless buildout,” CTIA said in its petition.
Verizon’s Lachance says that most local governments are cooperative but the shot clock gives operators a vital tool in dealing with the minority of permits held up indefinitely by local officials. “There is a problem with at least some municipalities and there’s a reason to have the deadlines in the first place,” Lachance says.
NATOA claims the time limits weren’t needed in the first place and is asking the FCC to reinvestigate the claims of the wireless industry. “I think despite the allegations that were made in the CTIA petition, there wasn’t really a broad-based national problem that required a federal rule that impacted local authority in every jurisdiction in the country,” Fellman says.
CTIA recently asked the FCC to disregard NATOA’s request, calling it “nothing more than an untimely, erroneous argument on reconsideration.”
NATOA’s ongoing effort to contest the FCC’s declaration highlights the ongoing issues that continue to surround the ruling. Uncertainty remains around exactly when the shot clock starts, local governments still harbor concerns about the legal implications of the ruling and the FCC is facing a court challenge disputing its jurisdictional authority in the matter.
Jeff Arnold, a deputy legislative director at the National Association of Counties (NACo), says one of his top concerns is local governments will be sued by carriers if they fail to act by the FCC’s deadlines. He says the ruling, intended to help accelerate the deployment of wireless networks, could have the opposite effect as authorities who can’t meet the deadlines may simply reject a tower permit instead of risking a lawsuit.
“If they can’t meet the shot clock, they’re likely to deny it,” he says. “We don’t want to say ‘No,’ but if it’s a choice between going to court because we failed to act and just saying ‘No,’ we’re going to say ‘No.'”
Arnold says that local municipalities have to jump through a number of hoops to process a tower permit, including public notices, hearings, the notification of other government agencies, even environmental impact studies. Combined with competing zoning projects, limited staff and the sometimes-incomplete applications filed by wireless companies, it may take more time than the FCC has allocated to process an application.
NACo members have expressed some confusion as to exactly when the shot clock starts. “We’d argue it starts when the application is complete, but what’s considered complete for the jurisdiction might be different from what’s complete for the wireless company,” Arnold says.
For all the NACo’s concerns, Arnold admits that not a single jurisdiction has called him with a problem, although many remain concerned. “Right now I’d say the impact has been very minimal,” he says. “The potential impact is high, the actual impact is low.”
That potential impact is at the heart a petition by the City of Arlington, Texas, asking the FCC to vacate its ruling on the grounds that the agency overstepped its authority by issuing a declaration that impacts local zoning.
In the Telecommunications Act of 1996, Congress placed limits on the FCC’s ability to enact rules affecting the authority of local and state governments to make decisions on the placement, construction and modification of personal wireless service facilities.
In a petition recently joined by the City of Portland, Ore., Arlington argues that the FCC’s shot clock ruling “exceeds the FCC’s statutory authority; is arbitrary and capricious and an abuse of discretion; and is otherwise contrary to law.”
Jim Parajon, Arlington’s community development and planning director, insists that the city isn’t anti-wireless. “The foundation of zoning goes back a long, long time and it’s well established in the legal system that cities have the right, obligation and authority to plan for orderly growth and development of their jurisdictions,” he says. “This is a land use issue.”
Parajon argues that the FCC’s order is in violation of the Telecommunications Act because it directly affects cities’ authority to process zoning permits.
The FCC declined to comment on the matter but addressed the zoning issue in its November declaration, in which it argued it had jurisdiction over deadlines because it was merely defining Congress’ mandate that state and local governments must act upon wireless service facility siting applications “within a reasonable period of time.”
Kramer Telecom Law Firm principal attorney Jonathan Kramer, who has represented hundreds of local governments on telecom issues over the course of his career, says local governments don’t want an inefficient process. They just want enough time to go through their required review of each application, he says.
“We need to work things out,” Kramer says of the ongoing dispute over the shot clock decision. “We all have permanent issues but we can’t remain permanent enemies.”
The City of Arlington’s case is currently pending in the U.S. Court of Appeals for the Fifth Circuit. Depending on its outcome, the FCC will either have its authority over permit deadlines revoked or strengthened. Companies like Clearwire, which is on its way to deploy 10,000 cell sites for its WiMAX network, could be heavily affected by the outcome of the case.
So far, the wireless industry and local governments have played nice in the wake of the FCC’s declaration. Most local jurisdictions try to run an efficient process and carriers don’t want to resort to expensive legal means. The threat of legal action is one additional tool carriers have to build out their networks, but from the sound of it, both sides would just rather cooperate.
Filed Under: Industry regulations