FIFTH CIRCUIT UPHOLDS FCC CELL TOWER ORDER
On January 23, the federal Fifth Circuit Court of Appeals in City of Arlington and City of San Antonio v. Federal Communications Commission upheld an FCC order imposing certain requirements on cities relating to cell tower applications.
The case began in 2008 when the international association of cell phone providers (CTIA) filed a “petition for declaratory ruling” with the Federal Communications Commission (FCC). The petition asked the FCC to preempt local zoning of wireless phone tower locations.
In 2009, the FCC unanimously adopted an order on CTIA’s petition. While not as burdensome as some feared, the order did the following:
- Set presumptive deadlines of 90 days (for co-location applications) and 150 days (for all other wireless siting applications) within which a city must act on wireless applications.
- Concluded that a city that denies a tower-siting application solely because “one or more carriers serve a given geographic market” has engaged in unlawful regulation that “prohibits or ha[s] the effect of prohibiting the provision of personal wireless services” within the meaning of the Act. In other words, the fact that another carrier or carriers provide service to an area is an inadequate defense for denying a new carrier’s application.
- Rejected CTIA’s request that the FCC preempt any variance procedure under a city’s ordinance. The FCC concluded that whether a variance procedure is too burdensome depends on the city’s actual process.
The order was troubling because it preempts certain aspects of local zoning authority and to some extent makes the FCC a “national zoning board.” Shortly following the order, the National League of Cities, joined by the National Association of Telecommunications Officers and Advisors, the National Association of Counties, the United States Conference of Mayors, and the American Planning Association, filed a Petition for Reconsideration with the FCC. The FCC denied that petition.
While the FCC was deciding on the petition, the City of Arlington (later joined by the City of San Antonio) challenged the FCC’s authority to issue the order by appealing to the Fifth Circuit Court of Appeals. On January 23, the federal Fifth Circuit Court of Appeals issued an opinion that upholds, but limits the effect of, the FCC order. The lengthy opinion addresses many issues related to FCC authority, but the most important portion for cities concludes that the “shot clock” 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.”
The opinion recognizes a wide range of factors that might justify a delay on the city’s part, such as “the applicant’s own failure to submit requested information, . . . acting diligently in its consideration of an application, that the necessity of complying with applicable state or local environmental regulations occasioned the delay, or that the application was particularly complex in its nature or scope.”
Essentially, the court held that if a city has a valid reason for exceeding the shot clock deadlines, a court can review whether taking more time is acceptable. City officials should consult with local legal counsel regarding the effects of the opinion on their ordinances.