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By Paul Barbagallo
A federal appeals court has upheld a decision limiting the time it should take state and local governments to consider cell tower-siting applications (City of Arlington, Texas and City of San Antonio, Texas v. Federal Communications Commission, 5th Cir., 10-60039,1/23/2012).
The opinion handed down Jan. 23 by the U.S. Court of Appeals for the Fifth Circuit leaves in place a ruling by the Federal Communications Commission in November 2009 [48 CR 1271] in which the agency declared 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.
Under the FCC's ruling, if local officials fail to either approve or deny an application within the 90- to 150-day time periods, a wireless carrier may file a claim for relief in court within 30 days. The court will then decide what action to take based on all the facts of the case.
The Texas cities of Arlington and San Antonio disagreed and filed lawsuits challenging the ruling on several grounds, but the court sided with the FCC.
“We do not read the [FCC's] declaratory ruling as creating a scheme in which a state or local government's failure to meet the FCC's time frames constitutes a per violation of the [Communications Act],” Circuit Judge Priscilla Owen wrote for the three-judge panel. “The time frames are not hard and fast rules but instead exist to guide courts in their consideration of cases challenging state or local government inaction.”
By blocking, or delaying the approval of, tower-siting applications, local authorities have given voice to concerns that proximity to a monopole or antenna may be not just aesthetically unpleasing but also harmful to one's health and property values.
But the wireless industry says that the problem is inactivity. In many cases, the application process stretches over months, sometimes years, for a single cell tower.
In July 2008, CTIA-the Wireless Association filed a petition with the FCC, asking the agency to interpret “ambiguous” provisions of Section 332(c)(7) of the Communications Act to ensure that efforts to deploy wireless networks are not undermined by state and local zoning authorities.
That was one aim of the FCC's ruling, and Chairman Julius Genachowski suggested as much in an e-mailed statement Jan. 23.
“The FCC's tower siting policy upheld today advances the crucial national priority of ensuring American leadership in mobile innovation and is part of the FCC's relentless focus on unleashing the opportunities of wired and wireless broadband for all Americans, including job creation, increased investment, innovation and economic growth,” said Genachowski.
The Fifth Circuit's decision will have an impact on issues of important to local jurisdictions. While siding with the FCC, the court said Section 332(c)(7)(A) of Communications Act states Congress's desire to make section 332(c)(7)(B)'s limitations “the only limitations confronting state and local governments in the exercise of their zoning authority over the placement of wireless services facilities,”and thus certainly prohibits the FCC from imposing restrictions or limitations that cannot be tied to the language of the Act. However, whether the FCC retains the power of implementing those limitations, however, remains “unresolved,” the court said.
For the court's opinion, visit http://www.ca5.uscourts.gov/opinions/pub/10/10-60039-CV0.wpd.pdf.
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