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 a challenge brought by several municipalities to the FCC’s so-called shot clock, which set time periods of 90 days and 150 days for municipalities to act on collocations and new sites, respectively.
The “Petition for a Writ of Certiorari,” filed by the cities of Los Angeles, San Antonio and Arlington, Texas; Los Angeles County, San Diego County and the Texas Coalition of Cities for Utility Issues, questions whether or not a federal agency can legally determine its own statutory jurisdiction.
Two issues were raised by the municipalities, but the court agreed to hear arguments on only to one of them: whether the Fifth Circuit Court of Appeals was correct in deferring to the agency’s interpretation of its own jurisdiction. The FCC had determined in the Order adopting the shot clock that it had the authority to interpret the statutory language in Section 332(c)(7) of the Communications Act to permit inclusion of a shot clock. The Supreme Court declined to grant cert and therefore left undisturbed the FCC’s general authority under the Communications Act to adopt the shot clock, according to William Sill, partner, Wilkinson, Barker Knauer.
“Previously the FCC had found that it had the general authority under the Communications Act [to create the shot clock] and the lower court upheld it,” Sill told AGL Bulletin. “It would appear that there is an independent ground under which the shot clock could be maintained that does not appear to be in play in the court’s decision.”
The court may not hear the case until January of next year, according to Joseph Van Eaton, attorney, Best Best & Krieger.
“But the issue the Supreme Court has decided to address is not just a telecommunications issue,” Van Eaton said in a press release. “The question of how courts should decide whether an agency can define the scope of its own jurisdiction arises in many cases, in many different areas of the law. It is a basic, undecided question of administrative law.”