Part 4 of 4 of our summary of the FCC’s September Notice of Proposed Rulemaking (“NPRM”) on “Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies

As we noted in our previous three summaries, the FCC is proposing new rules on wireless siting issues that may impact local government’s ability to regulate the placement of these facilities.

In Part 4 of the NPRM, the FCC expands upon some of the questions it touched upon in Part 3, in the context of timelines for adjudicating collocation applications, to address the timeline question for all wireless applications, both collocations and new facilities, and what happens under that timeline.  As before, some background is required.

In Section 704 of the 1996 Telecommunications Act, Congress said that local government should act upon applications for all types of wireless facilities within a reasonable period of time, and that an applicant aggrieved by a local government’s action or inaction could go to court to enforce Section 704.

In 2008, the wireless industry petitioned the FCC to define what was a “reasonable period of time.”  What resulted was the 2009 “Shot Clock” ruling, in which the FCC found that in states that did not otherwise already have a state law on the issue, an application for a collocation should be acted upon in 90 calendar days and a new facility within 150 calendar days.  The “Shot Clock” ruling noted some states had shorter timelines (for example, in Florida, you have 45 business days to act on a collocation application.)

Understandably, some local governments did not like the FCC sticking its nose into their business, and the cities of Arlington and San Antonio TX, among others, took the FCC to court arguing that it did not have authority to impose a timeline on when they had to act.  Ultimately the case ended up before the US Supreme Court, which decided this past June that the FCC did, in fact, have authority to impose the Shot Clock on local government.

Having received the Supreme Court’s blessing for its authority to impose the Shot Clock, the FCC in Part 4 of the NPRM turned to addressing what should happen if a local government failed to meet the Shot Clock timelines in processing an application.

Under the Shot Clock ruling, failure to meet those timelines meant that the applicant could go to court and seek a judicial decision that their application should be granted.  But the FCC noted that such a remedy isn’t really helpful because of the time it takes for a case to wind its way through the judicial system.

So the NPRM, while stressing that it isn’t intending to revisit the issues it decided in the 2009 Shot Clock ruling, invites comment on six issues associated with same that could stand some clarification:

  1. Definition of collocation – under the Shot Clock, “collocations” have to be acted upon within 90 days – how should that be defined?  Should that mean collocations that are not “substantial changes” like in Section 6409(a) or any collocation whatsoever?
  2. Completeness of Application – under the Shot Clock, the time doesn’t start to run until an application is deemed “complete” (as long as the local government asked for additional info within 30 days of initial application).  The NPRM asks if it should clarify what “complete” means and when the clock should start running.
  3. Moratoria – The NPRM seeks comment on what happens to the Shot Clock if a local moratorium precludes making an application (thus preventing the clock from ever starting).  Since the Shot Clock ruling did not address moratoria, the NPRM wants comments on how that should be addressed.
  4. Applicability of the Shot Clock to DAS facilities.  Way back in Part 1 of this we discussed DAS/Small Cells and the NPRM’s proposals to exempt them from certain federal regulations.  In Part 4, the NPRM asks if DAS/Small Cells should be subject to the Shot Clock timeframes.  The NPRM preliminarily concludes that they should but requests comment on that conclusion.
  5. Preferences for municipal siting.  The wireless industry alleges that ordinances that create a preference for siting on public property over private property constitute “unreasonable discrimination” under Section 704 of the 1996 Telecommunications Act.  The NPRM wants comments on whether those preferences create discrimination in siting.  This is a very important item to comment upon to the FCC.  Local government that does express a preference in its regulations for siting on public property, in order to better plan and control the placement of wireless infrastructure in its community, would be severely harmed by a finding that such preferences in local ordinances are discriminatory.
  6. “Deemed Granted” remedy.  The NPRM wants comment on whether it should change the remedy for violations of the Shot Clock.  Now, an aggrieved applicant has to go to Court and get a judicial determination that it should be entitled to construct because the local government did not meet the Shot Clock.  The wireless industry wants the FCC to rule that if you don’t make a decision within the Shot Clock timeline, the application is “deemed granted” and you have no further say over its construction.  The FCC wants to know what you think about that idea and whether or not they even have the authority to make that the rule.

Responses to these items in Part 4, along with those regarding collocations in Part 3, should at a minimum be part of your community’s comments to the FCC.  Because of the federal shutdown and newly reopening we don’t have a timeline right now to file comments with the FCC, but we’ll post information once the timeline for comments is established and also instructions on how to file the comments electronically through the FCC’s ECFS (electronic comment filing system.)

For right now, please route this 4 part summary to your city or county attorney so they can help you prepare comments for filing with the FCC.  As we mentioned earlier, the timeline for filing will be 60 days from publication of the NPRM in the Federal Register, so once that date is established, we’ll let you know the deadline.

Click here for 4 part summary as one document.

Click here for entire FCC document.

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