Thought Leadership

Personal Wireless Services Facility Siting Applications

December 9, 2009, Holland & Knight

On November 18, 2009, the Federal Communications Commission (FCC) issued a declaratory ruling. It contains two important clarifications of portions of the Communications Act pertaining to government review of applications for personal wireless services facility siting. The Ruling is grounded in the FCC’s policy goals of encouraging the expansion of personal wireless network. Additionally, the FCC is also promoting the deployment of broadband and other personal wireless services by reducing delays in the construction and improvement of these networks. Notably, the Ruling elaborates on how these public interest policies were balanced with the FCC’s duty to preserve the core zoning authority of state and local governments.

Standards for “Reasonable Timeframes”

The Ruling establishes presumptive standards for “reasonable timeframes” for state and local review of communications siting applications.

The Communications Act requires that a state or local government, or associated instrumentality, shall act on any request for authorization to place, construct, or modify personal wireless service facilities within “a reasonable period of time” after the request is filed. Any person adversely affected by “failure to act” by a state or local government or instrumentality may file suit under the Communications Act. Prior to the Ruling, what constituted “a reasonable period of time” was left for the courts to decide. However, now The Ruling establishes presumptive standards for “reasonable timeframes” for review of applications as follows:

• Collocation applications (i.e., addition of antennas on existing facilities) should be reviewed within 90 days
• Other siting applications (i.e., new construction) should be reviewed within 150 days
• A lack of a decision within these timeframes presumptively constitutes a “failure to act,” thus allowing the aggrieved party to commence a court action for expedited review of the application.

As a result of this portion of the Ruling, personal wireless service providers will have a more defined remedy under the Communications Act for delays in review of applications for communications sites. Therefore, they should be able to pursue relief under the Communications Act with more confidence (relying upon the benefit of the presumption established by the Ruling). Nonetheless, the Ruling emphasizes that it is still important for courts to consider the specific facts of each case to determine whether the delay was in fact unreasonable under all the circumstances.

“Bright Line” Decision Regarding Denials

The Ruling states that state or local government must provide personal wireless service facility siting application even if there are other service providers in the area. If the state or local government or any instrumental body were to deny service it would be in violation of the Communications Act. This portion of the Ruling represents the only “bright line” decision made by the FCC. Thus, it provides unambiguous direction to courts presented with a previously divisive issue.

Practical Implications Not Yet Measurable

The Communication Act prohibits against unreasonable delay in review of tower siting applications. With regard to this Act, the FCC’s establishment of presumptively reasonable timeframes for government review should help eliminate doubt. Additionally, the FCC’s clarifies that the Communications Act prohibits denial of applications based solely on the fact that service is already available in the area from another provider. This should likewise provide useful guidance to both applicants and government entities that are navigating the tower siting application process.

Of course, it remains to be seen how the practical implications of the Ruling will affect the development of wireless communications sites and the dealings between carriers and government entities. Another implication would be the impact the Ruling may have on tower companies and property owners negotiating lease agreements for the future siting of towers.