Most Recent Action
Office of Management and Budget (OMB) Approves New Requirements
The Office of Management and Budget (OMB) has given approval to three outstanding information collection requirements associated with the Federal Communications Commission’s (FCC) Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies which were adopted by the Commission in October 2014. (When the policies were first adopted, the 30 day, 10 day and deemed granted letters of the FCC’s 6409(a) order were not effective until OMB reviewed and approved these under the Paper Work Reduction Act.) The newly approved requirements provide: • In order to toll the order’s 60-day review timeframe on grounds that an application is incomplete, the reviewing local government must provide written notice to the applicant within 30 days of receipt of the application, clearly and specifically delineating all missing documents or information. • Following a supplemental submission from the applicant, the local government will have 10 days to notify the applicant in writing if the supplemental submission did not provide the information identified in the local government’s original notice delineating missing information. Second or subsequent notices of incompleteness may not specify missing documents or information that were not delineated in the original notice of incompleteness. • If a request is “deemed granted” because of a failure to timely approve or deny the request, the “deemed granted” remedy does not become effective until the applicant notifies the applicable reviewing authority in writing after the review period has expired that the application has been “deemed granted.” OMB’s approval was published in the Federal Register and became effective today, May 18, 2015. These newly established requirements are in addition to other wireless siting rules that became effective April 8, 2015.
last updated 5/20/2015
FCC Adopts Report & Order for cell tower sitings
Recently, the Federal Communications Commission established new rules governing cell tower siting. The changes go into effective April 8, 2015. In formulating its order, the FCC either disagreed with, or elected not to consider, several concerns raised by the National League of Cities and other local government organizations.
These new rules provide new limits on how cities review applications, including collocation of telecommunications equipment and for determining when a cell tower modification is deemed a "substantial change" and, therefore, subject to local permitting approval.
The telecommunications industry argued that today's new technology allows networks and other small-cell systems that are a fraction of the size to be installed on utility poles, buildings, and other existing structures. They asked Congress and the FCC to provide greater flexibility and to streamline local oversight of the placement of additional wireless equipment on a wireless tower or other structure already supporting wireless equipment.
Among the most concerning change is the Order shortens the time in which the local government has to issue its decision concerning request to attach new wireless equipment to existing structures from 90 days to 60 days. Should the municipality fail to act on an application within the 60-day period, the application would be deemed "granted," and the applicant may inform the municipality in writing of its desire to act on the application.
The order also clarifies what is considered a "substantial change," spelling out specific height and width increases and the number of new equipment cabinets allowed to be installed, within and outside of the public-right-of-way.
One bright spot in the new rules is that it preserves local government's zoning authority and all installations must still adhere to a community's building, electrical, and structural codes.
The Wireless Infrastructure Association (PCIA) and the Wireless Association (CTIA) have committed to working with NLC and other local government associations to develop resources for communities.
These resources would include:
- Best practices used by other jurisdictions that are able to review and approve applications in fewer than 60 days;
- Webinars and local government contacts to provide education and assistance to these municipalities regarding the application process;
- Assistance in drafting a model ordinance and application for reviewing eligible facilities requests under Section 6409(a); and
- A checklist that local government officials can use to help streamline review processes.
Supreme Court to Decide on Cell Tower Construction Issue
T-Mobile South v. City of Roswell the Supreme Court will decide whether a letter denying a cell tower construction application that doesn't explain the reasons for the denial meets the Telecommunications Act of 1996 (TCA) "in writing" requirement. The State and Local Legal Center (SLLC) filed an amicus brief, which NLC joined. It takes the position that the "in writing" requirement is met when a local government issues a written denial letter and the reasons for its decision can be gleaned from written minutes or a transcript. The brief argues that T-Mobile's interpretation of "in writing" to mean local governments must issue a separate written decision with formal findings and conclusions "is not supported by the plain text of the statute, by its legislative history, by the weight of precedent, or by considerations of public policy."
More information about this case is on the SLLC's website: http://statelocallc.squarespace.com/briefs/
last updated 8/26/2014
Justices endorse FCC authority in cellphone tower case
The U.S. Supreme Court ruled last month that the Federal Communications Commission has authority to establish deadlines for local cellphone tower siting decisions, essentially putting to rest a five-year battle between local governments and the wireless industry.
In a 6-3 ruling, the Supreme Court voted in favor of the FCC, stating that FCC could establish deadlines for local cellphone tower siting decisions.
The case hinged on a federal law requiring state and local governments to act on tower-siting applications within a "reasonable period of time."
In 2011, the Federal Communications Commission (FCC) unanimously adopted an order establishing presumptive deadlines of 90 days (for co-location applications) and 150 days (for all other wireless siting applications) within which a local government must act on wireless companies requests for siting of new towers or co-locating on existing towers.
last updated 5/28/2013
In January, a federal appeals court upheld the FCC's limits on the time state and local governments have to consider cell tower-siting applications.
Rejecting a challenge brought by Arlington and San Antonio, Texas, in which the National League of Cities intervened, the U.S. Court of Appeals for the Fifth Circuit leaves in place a 2009 FCC ruling that a "reasonable period of time" for state and local governments to act on applications for co-located sitings is 90 days, and for all other applications is 150 days. If local officials fail to act within the time periods, a wireless carrier may file a claim for relief in court.
The court's decision can be read at http://www.ca5.uscourts.gov/opinions/pub/10/10-60039-CV0.wpd.pdf.
Arlington and San Antonio are evaluating options for further judicial review.
last updated 2/01/2012
The Federal Communications Commission (FCC) unanimously adopted an “shot-clock” order that effectively preempts local zoning of cellular towers. On Nov. 18, the FCC unanimously adopted an order establishing presumptive deadlines of 90 days (for co-location applications) and 150 days (for all other wireless siting applications) within which a local government must act on wireless companies requests for siting of new towers or co-locating on existing towers. Municipalities have 90 days to approve applications to collocate antennas on existing towers and structures and 150 days to approve new cellular towers and antennas. If the local government fails to act before that deadline, then the local government is presumed not to have acted within a “a reasonable period of time” within the meaning of Sec. 332(c)(7)(B)(ii) of the Communications Act, and the wireless applicant is entitled to take the local government to court. As a standard operating procedure, the FCC made clear that once in court, the local government is entitled to prove that its failure to act within the FCC’s deadline was reasonable and thus not contrary to Sec. 332(c)(7)(B)(ii).
Background
In 2008, the Cellular Telephone Industry Association (CTIA) filed a proposed declaratory ruling (WT Docket 08-165) with the Federal Communications Commission (FCC). If approved, the proposed ruling would effectively preempt local zoning of cellular towers. Among other things, the proposed declaratory ruling would implement a 45 and 75 day “shot clock” for municipalities to act on local zoning applications concerning the siting of cellular towers.
Municipalities would have 45 days to approve applications to collocate antennas on existing towers and structures and 75 days to approve new cellular towers and antennas. If municipalities fail to act on the application within the prescribed time periods, then approval of applications would automatically be granted.
The National League of Cities (NLC), U.S. Conference of Mayors (USCM), the National Association of Counties (NACo), and the National Association of Telecommunications Officers and Advisors (NATOA) have filed joint comments in opposition to the petition submitted from CTIA, The Wireless Association.
A cell tower, or communications tower, is a term used primarily to describe a site where antennas and electronic communications equipment are placed to create a focal point for sending and receiving signals in a mobile phone network. A cell site has many components, including a tower or other elevated structure for mounting antennas, one or more sets of transmitter/receivers, and digital signal processors. The placement of these structures in communities can be controversial, as they are quite large and can pose safety risks for neighboring residents and businesses. They may also conflict with the aesthetics of the community, which generates concerns when applications for the construction of these structures are submitted to local governments.
Local governments in Tennessee may regulate the placement of these towers through zoning laws, which has created conflict with the cellular phone industry. Cell phone companies argue that local zoning regulations are often too strict, unfair, and that the approval process is too time consuming. The cellular phone industry has taken its case to the Federal Communications Commission (FCC) to ask for more uniform regulation in cell tower sitings.
Federal Laws Affecting Cell Tower Placement
Federal law allows local governments to deny construction permits for cell towers, however, such denial must be based on a reasoned approach; otherwise the FCC is authorized to preempt the local decision and grant the permit. The 1996 Telecommunications Act preserves local government zoning authority as it relates to cell tower siting, but it provides three key protections for firms seeking to erect a tower:
- Local ordinances may not “unreasonably” discriminate among providers of functionally equivalent services. Tower siting policies must not favor one company, or one technology, over another;
- Local government may not impose a blanket prohibition against the placement of telecommunications towers; and
- Local ordinances may not impose more stringent “environmental effects” limits on radio frequency emissions than those adopted by the Federal Communications Commission (FCC).
State Laws Affecting Cell Tower Placement
A local government should have a policy in place before it considers a request from a telecommunications service to erect a tower. Without adopting a cell tower policy, it is doubtful that a municipality’s denial of a construction permit will be seen as resulting from a reasoned approach. The policy should recognize the important role that telecommunications services play in the community and not unduly prohibit tower construction. At the same time, however, the policy should assure that citizens will be protected against shoddy construction and ensure against an unreasonable proliferation of such antennas in the community.
State law sets forward the following regarding cell tower siting:
- T.C.A. § 13-24-304 specifically authorizes municipalities that have adopted planning and zoning regulations to regulate the siting of telecommunications towers. However, T.C.A.§ 13-24-305 places limits on a city’s power to regulate minor alterations to pre-existing antennas.
- T.C.A.§ 65-21-116 requires owners of telecommunications towers to submit information concerning tower location and ownership, a copy of the deed or lease for the property, and related information to the Tennessee comptroller of the treasury. The comptroller’s Web site provides forms that can be downloaded for this reporting.
FCC Grants Two-week Extension to Submit Comments
On August 25, 2008, NATOA, NLC, NACo and USCM requested an extension of time for local governments to file comments in response to CTIA’s Petition for Declaratory Ruling regarding wireless facilities siting in WT Docket No. 08-165.
On September 10, the FCC granted the extension and the deadline for local government comment was extended from September 15 to September 29. In addition, the deadline for comments in response to local governments was extended from September 29 to October 14.
