Less than hard-and-fast 90- and 150-day time limits for state/local actions on wireless tower permit requests affirmed

Cellular tower builders and wireless companies can breathe a sigh of relief: the “shot clock” presumptions imposed by the FCC on local government permitting processes have been upheld by the U.S. Court of Appeals for the Fifth Circuit. As a result, those presumptions – i.e., that state and local officials should ordinarily take no more than 90 days to act on wireless “collocation” applications and 150 days to act on all other wireless siting applications – remain in effect. But in affirming the Commission’s judgment in the face of challenges brought by two Texas communities, the Fifth Circuit acknowledged that local governments may still be able to rebut the presumptions – and, thus, drag out the permitting process – in individual cases.

The issue of local foot-dragging in antenna siting processes got on the Congressional agenda back in the 1990s. Out of concern that local governments might be reluctant to authorize new or modified transmission facilities in their particular bailiwicks (can you spell NIMBY?) and that such reluctance might in turn stymie the spread of wireless services, Congress weighed in. In the 1996 Telecom Act, Congress required that state and local governments act on requests to “place, construct, or modify” wireless facilities “within a reasonable period of time” after the filing of such requests. 

That statutory mandate, however, proved less than effective because – here’s a surprise – tower builders, wireless operators and municipalities tended to differ over what constituted a “reasonable period of time”. Is a year too short? Is ten years too long? In 2008, more than a decade after the 1996 Telecom Act, CTIA-The Wireless Association® asked the Commission to tie down the concept of “reasonableness” a bit tighter than Congress had. 

After soliciting and considering a broad range of comments, the Commission obliged.

As far as the FCC was concerned, “reasonable” here meant that local governments should be expected to take no more than 90 days to act on collocation requests and 150 days to act on all other requests. In this context, “collocation requests” involve modifications to already existing wireless facilities, including addition of an antenna to an existing tower as long as the change doesn’t involve a “substantial increase in the size of the tower”.

So the pressure is on for localities to act on wireless siting proposals: if they don’t meet the Commission-imposed time limits, the siting proponents have a prima facie argument that the locality is in violation of the Communications Act. That immediately puts the locality on the defensive (although, since the “shot clock” time frames are just presumptions, the local governments do have the opportunity to try to rebut those presumptions).

The Texas municipalities of San Antonio and Arlington challenged the Commission’s declaratory order on a number of grounds, both procedural and substantive. The Fifth Circuit had little trouble brushing all the quibbles aside. 

Actually, the Court needed brush only Arlington’s quibbles aside. In a ruling of key interest to communications law practitioners, the Court dismissed San Antonio’s petition. San Antonio, which did not seek reconsideration at the Commission, did not file its own request for judicial review until after the FCC had disposed of others’ petitions for reconsideration. Too late: the Court reasoned that San Antonio’s time for seeking review ran from the original FCC action date, not the date of FCC action on the reconsideration petitions.   Since the action on those petitions simply affirmed the original decision, the FCC’s reconsideration action was not a separate and independent event opening a new opportunity for appeal by San Antonio.   These procedural niceties keep lawyers awake at night but have the opposite effect on lay readers, so we won’t discuss them further here. The net result was that a couple of arguments raised by San Antonio but not by Arlington could be ignored by the Court.

With respect to the nitty-gritty substantive issue in the case – i.e., are the 90 and 150 day limits valid? – the Court concluded that the FCC’s judgment was reasonable and entitled to the level of deference courts normally afford agency decisions (at least when the judges can make sense out of the agency’s reasoning). Importantly, the Court observed that the FCC’s “shot clock” limits are not absolute. That is, failure by a local government to meet those time limits does not automatically mean that that locality has per se violated the 1996 Telecom Act. Rather, it merely means that the burden shifts to the locality to explain its failure to meet the applicable deadline. Such explanations might, in the Court’s view, hinge on “extenuating circumstances”, or possibly on the wireless applicant’s own failure to submit requested information.  Alternatively, the local government might note that it was acting diligently in its consideration of an application, that the necessity of complying with applicable environmental regulations occasioned the delay, or that the application was particularly complex in its nature or scope. Essentially, the Court seemed to view the Commission’s 90/150-day limits as guidelines, entitled to deference but not absolutely and irrevocably binding in all circumstances.

To get to that point, the Court made reasonably quick work of a variety of procedural complaints advanced by Arlington. While the Commission’s method of dealing with CTIA’s initial request may not have conformed precisely with requirements of the Administrative Procedure Act – when it adopted its declaratory order, was the FCC engaging in “rulemaking”, “adjudication”, or some other activity? – the Court concluded that any FCC deviation from the procedural straight-and-narrow was harmless.

The Court did spend a fair amount of time grappling with Arlington’s argument that Congress hadn’t given the Commission the authority to put specific limits on the “reasonable period of time” language in the 1996 Telecom Act. Truth be told, the scope of the FCC’s authority is not at all clear here, but the Court determined that the statute, and the legislative history underlying it, were ambiguous. Given that ambiguity, the Court concluded that the FCC was entitled to do what it had done below. And, as noted above, the Court was inclined to defer to the Commission’s substantive determination.

Where, then, does the Court’s decision leave us? Wireless operators and/or tower companies are entitled to assume that, once they have filed all information required by a local jurisdiction, the jurisdiction will act on their siting applications within the applicable 90- or 150-day time period. If the local government drags its feet beyond that time frame, the aggrieved party may seek judicial intervention because of the locality’s failure to meet the FCC’s presumptive time limits. The threat of such litigation might be enough to cause the local officials to act on the construction proposal – but there’s no guarantee of that. As the Fifth Circuit seemed to emphasize, the locality could still cling successfully to a variety of excuses or explanations for its tardiness. In the end, the siting proponent will have the burden of persuading the court that the locality’s delay has been unreasonable.

Nevertheless, at least we have a clear starting point with which to mark the approximate outlines of local governmental delay. Ideally, that will prove useful to all concerned.