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Verizon Sues A Municipality Over Alleged Unreasonable Delays In Deciding Cell Tower Sup Request

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A Test Case For The FCC’s “Shot Clock Order” For Municipalities To Decide Wireless Cellular Facilities Siting Applications
Ronald D. Richards Jr.
Foster Swift Municipal Law News
January 2012

Our April 2011 newsletter summarized the FCC’s "Shot Clock" Order.  That Order, among other things, set timelines for how long a municipality has to decide a request to locate wireless cellular facilities.  For example, 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 from submission of the request for collocations, and  (2) 150 days from submission of the request 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.

Recently, Verizon Wireless sued the Town of Irondequoit (New York) in federal court in Buffalo over alleged inaction and unreasonable delays in deciding a wireless facilities application.  The case stems from these facts:  In June 2010, Verizon applied for a special use permit to replace a 20-year old tower and equipment shelter with a new monopole shelter.  Verizon’s purpose was to resolve a gap in wireless coverage.  Several neighbors opposed the application.  Seven months after it filed its application, the Town filed a Positive Declaration – which triggers the need for an environmental impact assessment.  A month later, in March 2011, Verizon sued.  It alleges that the Town delayed it from providing service where a gap in coverage exists. 

Verizon Wireless and the Town have asked the Court to grant judgment in each of their favor.  A hearing was held December 8, 2011, but no order has issued yet.  It will be interesting to see how this case unfolds.  On the one hand, the FCC’s Shot Clock Order was fairly clear in its deadlines and in its intent to spur broadband deployment by creating a more efficient tower siting and collocation review process.  On the other hand, the Town has argued that Verizon "jumped the gun" by suing too soon. 

The Town notes that Verizon sued even before the environmental impact statement was finished and even before the Town issued a formal decision on its SUP (Special Use Permit) application.  The timing of Verizon’s suit is curious, also, given that the FCC Shot Clock Order sets a 30 day window for applicants to sue after a "failure to act;" and Verizon’s complaint was filed about 273 days (rather than within 180 days) from the date of the application. 

If you have any questions about the Verizon lawsuit summarized above, the FCC’s Shot Clock Order, wireless service siting applications, or related municipal telecommunications issues, please call Ron Richards of Foster Swift’s Municipal Department.