FCC Enacts New “Shot Clock” For Municipalities to Decide Wireless Cellular Facilities Siting Applications

The Federal Communications Commission (FCC) just set new rules that directly impact how a municipality can act on a request to locate wireless cellular facilities in the municipality. The FCC’s recent Declaratory Ruling sets specific timelines by which a municipality has to act on an application to locate wireless cellular facilities.

A. New Rules Regarding Timing to Decide Applications

Specifically, the FCC set out these new rules on the time a municipality has to resolve requests:

• A municipality must act on a wireless facility siting request for "personal wireless services" (1) within 90 days for collocations, and (2) 150 days for all other wireless facility siting applications.
• If the municipality fails to act within that relevant time frame, then a presumptive "failure to act" has occurred and wireless providers may seek relief in court within 30 days of the failure to act per the Federal Communications Act. However, the municipality will have the opportunity to rebut the presumption of reasonableness.
• The timeframes may be extended beyond 90 or 150 days by mutual consent of the wireless provider and the municipality, and in such instances, the start of the 30-day period for filing suit will be tolled.
• If the review period in a local ordinance is shorter or longer than the 90-day or 150-day period, the applicant may pursue any remedies granted under local regulation when the applicable local review period has lapsed. So if the local review period is longer, the applicant may sue after 90 days or 150 days, subject to the 30-day limit on filing, and may wait to pursue any remedies granted under local regulation until the applicable local time limit has expired. If the local review period is shorter, the applicant must wait until the 90-day or 150-day period has expired before bringing suit.
• For all currently pending applications that have been pending for less than 90 or 150 days as of November 18, 2009, the municipality will have until February 16, 2010, or April 17, 2010, to take action.
• 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, sue if the municipality fails to act within 60 days from the date of such notice.
• If a municipality 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.

B. No Denials Based Solely On Existence of Other Providers

The FCC also clarified that a municipality may not deny a wireless facility siting application solely because there is service available from another provider. The FCC ruled that such a denial is unlawful since it "prohibits . . . the provision of personal wireless services" under the Federal Communications Act. As a result, a municipality may not base a denial of a wireless facility siting application based solely on the fact that there may be other carriers who provide service to the area in question.

C. Conclusion

The FCC’s Declaratory Ruling appears to be strong evidence that the FCC will pursue avenues to further promote the deployment of wireless services. Its new timing constraints, while likely viewed with open arms by wireless providers, may be challenging for municipalities to meet. Nevertheless, municipalities should be aware of these new rules in resolving wireless service siting applications given the consequences the FCC set out of not heeding those new rules. 

• Published in April 2010 Michigan Townships News (Michigan Township Association)