January 16, 2015 — The FCC published its rules streamlining the siting and construction of wireless sites in the Federal Register on January 8. The rules go into effect on different dates, which makes the process more complicated. And some effective dates depend on approval of the rules by the Office of Management and Budget (OMB).
The new rules update the environmental and historical property evaluation of proposed small cell and DAS deployments, as well as clarifying and implementing statutory requirements for state and local governments’ review of wireless infrastructure siting applications. In particular, the Commission provided definitions of terms in Section 6409(a), including transmission equipment, base station, wireless tower and what constitutes a substantial change of at tower’s physical dimensions.
The new rule implementing Section 6409(a) (Section 1.40001) will become effective on April 8, 2015, except for Sections 1.40001(c)(3)(i), 1.40001(c)(3)(iii), and 1.140001(c)(4), according to William Sill, partner, Wilkinson Barker Knauer.
“These sections — which include provisions addressing the tolling of time frames for review of eligible facilities requests and the failure to act by local jurisdictions (deemed granted) — contain new information collection requirements and require OMB approval,” Sill said. The FCC will publish a document in the Federal Register announcing OMB approval of these rules and the date when they become effective.
Those rules not implementing Section 6409(a) will become effective on February 9, 2015, except for Section 17.4(c)(1)(vii), which codifies the existing waiver for temporary towers and requires OMB approval. The FCC will publish a document in the Federal Register announcing OMB approval of the rule and the effective date.
Deadlines to challenge the Report & Order
As any FCC-watcher knows, this is not the final word on the subject there will be challenges and probably lawsuits. The next stages of the process are listed below:
o Petitions for reconsideration to the FCC are due February 9, 2015.
o Petitions for review to the Courts of Appeals are due March 9, 2015.
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The U.S. Supreme Court has agreed to hear the case of T-Mobile v. City of Roswell, Georgia, which could shape future zoning decisions where the state or local government denies a tower. Under scrutiny is a passage from the Telecommunications Act of 1996 that says a zoning denial “shall be in writing and supported by substantial evidence contained in a written record.”
T-Mobile claims that the City of Roswell denied its application for a tower without giving a written explanation stating the reasons why and, therefore, is in violation of the Telecom Act of 1996.
“The question presented is whether a document from a state or local government stating that an application has been denied, but providing no reasons whatsoever for the denial, can satisfy this statutory ‘in writing’ requirement,” according to T-Mobile’s pleading.
There is a clear split of opinion in the federal courts on the issue. While four Circuit Courts have required a written explanation for the denial, two Circuit Courts do not, according to Bill Sill, partner, Wilkinson Barker Knauer.
“A decision by the Supreme Court that reverses the 11th Circuit, would hold local jurisdictions more accountable for their decisions by requiring the local jurisdiction to provide the rationale for its decision in writing,” he said. “On the other hand, if the Supreme Court affirmed the 11th Circuit’s approach, localities would have unchecked power to deny construction permits and could leave aggrieved tower companies and carriers without a meaningful ability to appeal a denial.” The Supreme Court will hear the case in the Fall and is not expected to issue a decision, at the earliest, until late this year.
The 11th Circuit Court U.S. Court of Appeals ruled that the city satisfied the “in writing” requirement even though the letter itself did not give reasons for the denial.
“The letter informed T-Mobile that it could obtain the minutes of the City Council’s hearing in which the request was denied, and those minutes recounted the reasons for the denial,” the court wrote in its decision. “T-Mobile also had access to the transcript of the hearing, which gave an even more detailed written account of the City Council’s decision.”
On Feb. 2, 2010, T-Mobile South applied to construct a 108-foot-tall cell tower on 2.8 acres of vacant property zoned single-family residential, using a monopine design. The City’s Planning and Zoning Division concluded that T-Mobile’s application met all ordinance requirements for the construction of a cell tower and recommended it with several conditions.
The City Council considered the application at a public hearing, which lasted more than two hours. The 108-page transcript includes opinions both in favor of and opposed to the tower, but provided no insight into the City Council’s thinking in denying the application, according to T-Mobile.
“No one ever identified which of the various concerns expressed at the meeting and in support of the motion [to deny the tower application] constituted the City’s official reasons for denying the permit,” T-Mobile wrote in its petition before the court.