FCC ISSUES CELL TOWER ORDER

In July of 2008, CTIA, the national association of cell phone providers, 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.

CTIA complained that local zoning procedures have the effect of limiting competition in the provision of wireless phone service. Specifically, CTIA requested that the FCC: (1) impose a 45-day or 75-day “shot clock” on local zoning decisions regarding wireless towers; (2) interpret the federal Telecommunications Act (Act) as barring any local zoning decision that prevents a wireless provider from offering service in an area where another wireless carrier is already providing service; and (3) interpret the Act as preempting any local zoning that would require a wireless tower to comply with a zoning variance process.

Many city ordinances, pursuant to state law, require various notices and hearings to determine whether a particular location is appropriate for a wireless tower. Because of that, the League wrote a letter to Senator Kay Bailey Hutchison in September of 2008 asking for her assistance on the matter, and copied the letter to the FCC as our comments. A number of individual cities, including Dallas, Arlington, Houston, and others, filed comments as well.

Last month, the FCC unanimously adopted an order on CTIA’s petition. The order is similar to previous orders regarding cable franchises, which essentially preempted city authority in states that don’t have a state-issued franchise. While not as burdensome as some feared, the order does the following:

  • Sets 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. (Note: the order contains different procedures for currently pending applications.)
  • Concludes 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 to denying a new carrier’s application.
  • Rejects 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 is troubling because it preempts certain aspects of local zoning authority and to some extent makes the FCC a “national zoning board.” It is effective immediately. Thus, city officials should consult with local legal counsel to ensure that local procedures conform to the order.

National organizations representing cities may decide to appeal the order on the grounds that the FCC lacked the jurisdiction to issue it.

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