FCC Issues Declaratory Ruling Wireless Facility Siting Applications
In November, the FCC issued a Declaratory Ruling (the “Ruling”) related to municipal zoning approvals of wireless towers and collocations. The Ruling has three main components:
- A municipality has 90 days for the review of co-location applications;
- A municipality has 150 days for the review of siting applications other than collocations (however Washington law requires siting applications to be reviewed in 120 days); and
- A municipality may not deny a personal wireless service facility siting application because services are available from another provider.
Zoning approval of wireless towers, collocations and antennas is generally required at a municipal level. Municipalities are required to act “within a reasonable period of time.” This Ruling defines what a reasonable period of time is, and the failure to act within those timeframes presumptively constitutes a failure to act. The Ruling does not prevent local governments from denying applications, but merely requires that decisions are made within the specified timeframes and that the denial is not based on the availability of service from another carrier. If the municipality fails to act within the above timeframes then wireless service providers may seek judicial redress within thirty days after the deadline. The FCC notes however, that the failure of a local government to act within the timeframe does not, in and of itself, entitle the siting applicant to an injunction granting the application.
In Washington, local governments are required to act within 120 days of receipt of a complete application (RCW 35.99.030, RCW 36.70B.080). Additionally, local governments must notify the applicant within 28 days of the receipt of the application if the application is complete or if the application is incomplete and requires additional items (RCW 36.70B.070). The Ruling acknowledges that incomplete applications may be submitted, and allows that the timeframes do not include the time the applicants take to respond to the requests for additional information. Local governments will have to follow the 90 day co-location time limit even though the state law does not differentiate.
The creation of these timeframes does not prevent the wireless provider and the municipality from mutually agreeing to an extension. The 30 day time period in which a wireless provider may file is tolled by this mutual consent. In Washington, the wireless provider must wait until the lapse of the federal timelines before bringing a suit for failure to act (but may pursue any state remedies upon the lapse of the state timeframe).
Availability of Service by Another Provider
The Ruling declares that a local government which denies an application for personal wireless service facilities siting solely because one or more carriers are in the geographic vicinity is effectively prohibiting the provision of personal wireless services in violation of the Telecommunications Act’s pro-competitive purpose. However, the Ruling specifically notes that “a decision to deny a personal wireless service facility siting application that is based on the availability of adequate collocation opportunities is not one based solely on the presence of other carriers,” and therefore is not affected by the Ruling. In Washington, local governments should be aware of the 9th Circuit’s decision in T-Mobile USA, Inc. v. City of Anacortes when denying an application based on the availability of feasible site alternatives.