Carriers Get Part of What They Asked for in Tower Siting Rules

The FCC gave CTIA only part of what it asked for, imposing a shot clock of 90 days for acting on collocation request and 150 days for other tower applications. It rejected a request that the collocation deadline be lowered to 60 days (CD Nov 13 p1). Under the rules approved, if a jurisdiction “fails to act” on an application within the designated time period, applicants may file a claim for relief in court within 30 days of the failure to act. “The court will then decide what action to take based on all the facts of the case,” the FCC said.

The commission also denied CTIA’s request for a ruling that it’s a violation of the Communications Act for a state or local regulation to require a variance or waiver for every wireless facility siting. “CTIA does not present us with sufficient information or evidence of a specific controversy on which to base such action or ruling, and we conclude that any further consideration of blanket variance ordinances should occur within the factual context of specific cases,” the order said. The order finds that where a state or local government denies a siting application solely because that service is available from another provider, the denial violates the Act.

“Initially, we find that the record shows that unreasonable delays are occurring in a significant number of cases,” said the order, released late Wednesday. “We disagree with State and local government commenters that argue that the Petition fails to provide any credible or probative evidence that any local government is engaged in delay with respect to processing personal wireless service facility siting applications, and that there is insufficient evidence on the record as a whole to justify Commission action.”

“In October, I outlined a Mobile Broadband Agenda that included as a key element removing obstacles to robust and ubiquitous mobile networks,” FCC Chairman Julius Genachowski said. He called the action “an important step to cut through red tape and accelerate the deployment of next-generation wireless services.”

Genachowski agreed that delays have been a problem for carriers. “At the time the petition was filed, of the 3,300 pending zoning applications for wireless facilities, over 760 had been pending for more than a year and 180 had been pending for more than three years,” he said, citing the CTIA numbers. “There is evidence that in certain jurisdictions the tower siting process is getting longer, even as the need for more towers and for timely decisions is growing.” The decision was driven by the data gathered, he told a news conference.

Copps said the siting order differs sharply from the 2006 local franchising order, which he vigorously opposed. Genachowski circulated a revised draft of the order last week, which addressed Copps’ and other eighth-floor concerns. “While we establish a presumption here, nothing in this decision reduces the authority of a court of relevant jurisdiction from assessing, based on the merits of any individual case, whether a zoning review of more than 90 days for collocation applications or 150 days for other tower siting applications is reasonable,” he said. The franchise order had held that a cable franchise application pending for more than a given time frame was deemed granted, he said: “Nothing subtle about that approach.”

“Today we are taking yet another positive deregulatory step: We are promoting deployment of broadband, and other emerging wireless services, by reducing the delays associated with the construction and improvement of wireless facilities,” Commissioner Robert McDowell said. “Our ruling strikes an elegant balance between establishing a deregulatory national framework to clear unnecessary underbrush, while preserving state and local control over tower siting.”

Carriers were pleased by the order. “In approving this important reform today, Chairman Genachowski and the Commission have provided tremendous support for the effort to bring more mobile broadband to consumers,” said Robert Quinn, AT&T senior vice president for federal regulation. “The Commission’s action today, while not giving the industry all that was requested, provides a path to resolve zoning issues related to siting of towers much faster than the process that exists today.”

The National Association of Telecommunications Officers and Advisors was sharply critical of the order, saying it was apparently based only on data submitted by wireless carriers and not independent data gathered by the agency. “NATOA is disappointed in the statement of the chairman in which he referenced and adopted industry claims as evidence,” the group said. “We have embraced the chairman’s previous statements … promising that the Commission will be guided by data-based research. For too long we have suffered from a Commission that simply adopted the statistics of industry advocates.” Wireless Bureau Chief Ruth Milkman told reporters that the decision was based on a “robust” record. - - Howard Buskirk