Wireless Telecommunication Consultants – FCC Shot Clock

The FCC’s “Shot Clock” for local government’s processing of wireless communications applications (90 days for collocations and 150 days for other wireless siting applications, applicable to jurisdictions where the state has not enacted similar “shot clocks”) was recently affirmed by the 5th Circuit Court of Appeals (with certain caveats) in a case brought by the cities of San Antonio and Arlington, Texas against the FCC.

In its decision, the 5th Circuit said that although the FCC’s judgment in establishing those timelines was reasonable and within the scope of its authority, the failure by local government to adhere to those time limits does not automatically mean that that local government has per se violated the 1996 Telecom Act. Instead, the 5th Circuit said in that case the burden shifts to the local government to explain its failure to meet the applicable deadline. Examples of such  explanations” of failure to meet the deadline, according to the 5th Circuit, might be wireless applicant’s own failure to submit requested information, or some other extenuating circumstances; or the local government could show it was acting diligently in its consideration of an application, but that the necessity of complying with, for example, applicable environmental regulations caused a delay, or because the application was complex in its nature or scope.

So you don’t automatically grant the right to the applicant to build the wireless site if you miss the FCC deadline – but the burden does shift to you to show why you need more time and were unable to meet that deadline, either because of issues with the application or some other complexity or extenuating circumstance. As summarized by the 5th Circuit “The time frames are not hard and fast rules but instead exist to guide courts in their consideration of cases challenging state or local government inaction.”

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