FCC DENIES RECONSIDERATION OF CELL TOWER ORDER

In July of 2008, CTIA, the national association of cell phone providers, filed a “petition for declaratory ruling” with the Federal Communications Commission (FCC). The petition asked the FCC to preempt local zoning of wireless phone tower locations.

CTIA complained that local zoning procedures have the effect of limiting competition in the provision of wireless phone service. Many city ordinances, pursuant to state law, require various notices and hearings to determine whether a particular location is appropriate for a wireless tower.

In 2009, the FCC unanimously adopted an order on CTIA’s petition. The order is similar to previous orders regarding cable franchises, which essentially preempted city authority in states that don’t have a state-issued franchise. While not as burdensome as some feared, the order did the following:

  • Set presumptive deadlines of 90 days (for co-location applications) and 150 days (for all other wireless siting applications) within which a city must act on wireless applications.
  • Concluded that a city that denies a tower-siting application solely because “one or more carriers serve a given geographic market” has engaged in unlawful regulation that “prohibits or ha[s] the effect of prohibiting the provision of personal wireless services” within the meaning of the Act. In other words, the fact that another carrier or carriers provide service to an area is an inadequate defense for denying a new carrier’s application.
  • Rejected CTIA’s request that the FCC preempt any variance procedure under a city’s ordinance. The FCC concluded that whether a variance procedure is too burdensome depends on the city’s actual process.

The order is troubling because it preempts certain aspects of local zoning authority and to some extent makes the FCC a “national zoning board.”

Shortly following the order, the National League of Cities, joined by the National Association of Telecommunications Officers and Advisors, the National Association of Counties, the United States Conference of Mayors, and the American Planning Association, filed a Petition for Reconsideration with the FCC. Finally acting last month, the FCC denied the petition.

Shortly after the FCC issued its order in 2009, the City of Arlington challenged the FCC’s authority to issue the order by appealing to the Fifth Circuit Court of Appeals. That judicial appeal had been stayed pending the outcome of the FCC’s reconsideration. The appeal will now move forward in the courts.

City officials should consult with local legal counsel to determine whether the order affects their cell-tower-siting process.

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