Posted by: Patricia Salkin | December 28, 2009

Petition Pending for Reconsideration of New FCC Rules Setting Timeframes for Governments to Act on Wireless Tower Siting Applications Under TCA

In a 5-0 decision, the Federal Communications Commission (“FCC”) issued new rules, effective November 18, 2009, establishing deadlines for state and local zoning governments to act on wireless tower siting with respect to applications involving personal wireless services covered by Section 332(c)(7) of the Telecommunications Act. That section “includes commercial mobile service, unlicensed wireless service and common carrier exchange services.” Section 332(c)(7) requires state or local government to act on a wireless tower siting request “within a reasonable amount of time.” The FCC’s new rules now provide the following time periods for action by a state or local government: “(1) 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 there is a failure to timely act, an applicant can file a claim for relief in court within 30 days of the failure to act. Timeframes may be extended by mutual consent of the parties. A party whose application has been pending for longer than those time periods as of November 18, 2009, “may, after providing notice to the relevant state or local government, file suit under Section 332 if the state or local government fails to act within 60 days from the date of such notice. The notice provided to the state or local government must include a copy of the FCC’s declaratory ruling. For any applications that have been pending for less than 90 or 150 days as of November 18, 2009, the state or local government will have until February 16, 2010, or April 17, 2010, to take action.”

On December 17, 2009, the National Association of Telecommunications Officers and Advisors, the United States Conference of Mayors, the National League of Cities, the National Association of Counties, and the American Planning Association filed a petition requesting that the Commission reconsider or clarify its decision interpreting provisions in Section 332(c)(7) of the Communications Act, as amended.  Petitioners argue in their Petition that the Commission’s adoption of a 30-day review period for local authorities to determine the completeness of a wireless facilities siting request exceeds its authority under its own interpretation, does not allow local authorities to toll the adopted time limits for other reasons, and will result in significant unintended consequences.  The Petition also argues that the Commission did not provide affected parties the opportunity for input before adopting the 30-day review period. 

Interested parties may file oppositions on or before January 22, 2010, and replies on or before February 8, 2010.  All filings should reference the docket number of this proceeding, WT Docket No. 08-165.

The petition that was submitted to the FCC for the declaratory ruling case be accessed here

The FCC presentation slides can be accessed here

The FCC announcement can be viewed here

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