Genachowski Circulates New Order on Deadlines for Tower Siting Decisions
FCC Chairman Julius Genachowski circulated late Thursday a revised version of an order that would impose a shot clock for wireless tower siting decisions, FCC officials said Thursday. Meanwhile, CTIA has put on a full-court press asking the FCC to reduce the deadline for making decisions on co-location applications, but those efforts are likely to fail, FCC officials said. The revised order is expected to have broad support among commissioners.
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CTIA has sought a 60-day shot clock for co-location decisions, versus the 90-day deadline in the order. FCC officials said there’s little eighth floor enthusiasm for making this change. The order requires decisions on new builds within 150 days after an application is filed.
The revision further refines language on the commission’s legal authority to impose a deadline for decisions by local authorities, after at least one member of the commission asked the chairman’s office to tighten that part of the order. One FCC official said the order doesn’t raise the same degree of questions as those presented by 2006 and 2007 orders prohibiting franchising authorities from unreasonably refusing to award competitive franchises for the provision of video services.
Lobbying on the order continued up to the point it was placed on the Sunshine agenda Tuesday, for next week’s FCC meeting. CTIA reported early this week on arguments it made in a meeting with John Giusti, chief of staff to Copps, making the case the FCC has the authority to impose a shot clock. “CTIA observed that Congress enacted Section 332(c)(7) of the Communications Act to ensure that the wireless siting process involves a balance of local review and federal goals,” CTIA said. “By withholding action on siting requests, states and localities have been able to evade the judicial oversight contemplated by 332(c)(7), and disturb the balance of state, local and federal power envisioned by Congress. Thus, CTIA asked the Commission to establish timeframes within which local zoning authorities must act on tower siting and wireless facility applications - - 45 days for co-location and 75 days for other facilities.”
CTIA also said adoption of a shot clock “in no way intrudes on decisions left by Congress to the courts. The Commission is entitled to issue determinations interpreting the meaning of terms set forth in the Communications Act, and adoption of a shot clock would clear up the ambiguity … regarding when ‘a failure to act’ occurs.”
But “even if congress had given the FCC authority, the FCC could not read fixed timelines into section 332(c)(7)(b)” of the Communications Act, said the Coalition for Local Zoning Authority, reporting on meetings with Giusti, Angela Giancarlo, chief of staff to Commissioner Robert McDowell, and Charles Mathias, aide to Commissioner Meredith Baker. “Section 332(c)(7)(B) does not expressly contain fixed timelines for local action. Instead, Section 332(c)(7) uses flexible language to allow analysis of particular requests in context: a ‘reasonable period of time after the request is duly filed … taking into account the nature and scope of such request.’ Congress contemplated and rejected specialized timelines.”
Law firm Davis Wright Tremaine offered anecdotal evidence of delays carriers face getting towers and other wireless facilities approved by local authorities, in an ex parte it filed at the commission. “Each day, across all types of urban and rural landscapes and throughout all geographic regions, we encounter the type of unreasonable delays and arbitrary local zoning decisions described in CTIA’s petition,” the firm said. It added they “have a very real and significant impact on wireless carriers’ ability to construct efficient forward-looking networks capable of providing reliable, state-of-the-art communications services to businesses, residents and public safety personnel.”