The FCC has adopted rules regarding the time periods for state and local zoning authorities to act on wireless siting applications.
The Federal Communications Commission (FCC) has issued a declaratory ruling establishing deadlines for state and local zoning authorities to act on wireless tower siting requests. The new rules are effective as of November 18, 2009.
The declaratory ruling, which responds to a petition filed by CTIA (the wireless industry trade association), only applies to wireless siting applications involving "personal wireless services" covered by Section 332(c)(7) of the Communications Act, which includes commercial mobile service, unlicensed wireless service and common carrier exchange services. Section 332(c)(7) provides that state and local governments retain authority over decisions regarding the placement, construction and modification of personal wireless service facilities, except that state and local governments may not unreasonably discriminate against providers of functionally equivalent services or prohibit or have the effect of prohibiting the provision of personal wireless services. Section 332(c)(7) also provides that a state or local government must act on a wireless tower siting request "within a reasonable amount of time."
In the declaratory ruling, the FCC adopted the following rules regarding the time periods for state and local zoning authorities to act on wireless siting applications:
A state or locality must act on wireless facility siting requests under Section 332(c)(7)(B) within (1) 90 days from submission of the request for collocations, and (2) 150 days from submission of the request for all other wireless facility siting applications.
If a state or local zoning authority fails to act within the relevant time frame, the applicant may file a claim for relief in any court of competent jurisdiction within 30 days of the failure to act.
The timeframes may be extended by mutual consent of the wireless provider and the state or local government, and in such instances, the commencement of the 30-day period for filing suit will be tolled.
If the review period in a state statute or local ordinance is shorter or longer than the 90-day or 150-day period, the applicant may pursue any remedies granted under state law or local regulation when the applicable state or local review period has lapsed. Thus, if the state or local review period is longer, the applicant may bring suit after 90 days or 150 days, subject to the 30-day limitation period on filing, and may wait to pursue any remedies granted under state law or local regulation until the applicable state or local time limit has expired. If the state or local review period is shorter, the applicant must wait until the 90-day or 150-day period has expired before bringing suit under Section 332.
A party whose application has been pending for at least 90 days (for collocations) or 150 days (for other applications) as of November 18, 2009, may, after providing notice to the relevant state or local government, file suit under Section 332 if the state or local government fails to act within 60 days from the date of such notice. The notice provided to the state or local government must include a copy of the FCC's declaratory ruling. For any applications that have been pending for less than 90 or 150 days as of November 18, 2009, the state or local government will have until February 16, 2010, or April 17, 2010, to take action.
If a state or local government notifies the applicant within the first 30 days after receipt of an application that it is incomplete, the time it takes for an applicant to respond to a request for additional information will not count toward the 90 or 150 days.
It is a violation of Section 332(c)(7)(B)(i)(II) for a state or local zoning authority to deny a wireless service facility siting application solely on the basis that service is available from another provider.
The FCC denied CTIA's request to preempt any state law or local zoning ordinance that automatically requires a wireless carrier to seek a variance or waiver from the zoning authority, regardless of the type or location of the proposal, before siting facilities.
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