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US Cellular v. Albion,ME: FCC Shot Clock Case

In what I suspect is one of the first FCC shot clock cases to be filed, now comes US Cellular v. Town of Albion, Maine.

In its amended complaint (which I have attached to this posting, below) US Cellular asserts that:

34. The Town’s failure to act on the Application “within a reasonable period of time” under Section 332(c)(7)(B)(i)(II) constitutes “a failure to act” under Section 332 (c)(7)(B)9v) permitting US Cellular to seek judicial relief pursuant to a Declaratory Ruling of the Federal Communications Commission, dated November 18, 2009, WT Docket No. 08-165.

35. US Cellular is accordingly entitled to an injunction directing the Town Planning Board to grant site plan approval for the Application for construction of its proposed telecommunications facility.

(Emphasis added; Complaint @ 34-35.)

Oddly, US Cellular’s attorneys apparently failed to read the FCC’s order carefully, which I have also attached, below.

The FCC order, in relevant parts, says:

[T]he [CTIA] Petition asks the Commission to find that, if a zoning authority fails to act within the above timeframes, the application shall be “deemed granted.”

(Order @ 10.)

[W]e find that a “reasonable period of time” is, presumptively, 90 days to process personal wireless service facility siting applications requesting collocations, and, also presumptively, 150 days to process all other applications. Accordingly, if State or local governments do not act upon applications within those timeframes, then a “failure to act” has occurred and personal wireless service providers may seek redress in a court of competent jurisdiction within 30 days, as provided in Section 332(c)(7)(B)(v). The State or local government, however, will have the opportunity to rebut the presumption of reasonableness.

(Order @ 32 [internal footnotes omitted].)

We reject the Petition’s proposals that we go farther and either deem an application granted when a State or local government has failed to act within a defined timeframe or adopt a presumption that the court should issue an injunction granting the application. Section 332(c)(7)(B)(v) states that when a failure to act has occurred, aggrieved parties should file with a court of competent jurisdiction within 30 days and that “[t]he court shall hear and decide such action on an expedited basis.” This provision indicates Congressional intent that courts should have the responsibility to fashion appropriate case-specific remedies. As the Petitioner notes, many courts have issued injunctions granting applications upon finding a violation of Section 332(c)(7)(B). However, the case law does not establish that an injunction granting the application is always or presumptively appropriate when a “failure to act” occurs.125 To the contrary, in those cases where courts have issued such injunctions upon finding a failure to act within a reasonable time, they have done so only after examining all the facts in the case. While we agree that injunctions granting applications may be appropriate in many cases, the proposals in personal wireless service facility siting applications and the surrounding circumstances can vary greatly. It is therefore important for courts to consider the specific facts of individual applications and adopt remedies based on those facts.

(Emphasis added; Order @ 39 [internal footnotes omitted].)

FCC Chairman Julius Genachowski, in his separate statement regarding the Commissions adoption of the shot clock rule, said

The decision we reach today does not grant the full relief that the industry’s petition seeks—for example, the petition argued for a shorter set of deadlines, and a requirement that zoning applications be “deemed granted” as soon as the deadlines expired. I believe that the timeframes we adopt today, and the requirement that parties seek injunctive relief from a court, are more consistent with preserving State and local sovereignty and with the intent of Congress.

(Statement of Chair Genachowski @ pg. 2.)

So, while the Shot Clock order may have opened the doors to the federal courts for U.S. Cellular, its assertion it “is accordingly entitled to an injunction directing the Town Planning Board to grant site plan approval for the Application for construction of its proposed telecommunications facility” is inconsistent with the ruling set down by the Commission.

It now turns to the Town of Albion to rebut U.S. Cellular’s assertion that its review, exceeding 150 days, was unreasonable.  If it is successful in doing so, then the court should deny U.S. Cellular the relief it seeks.

U.S. Cellular v Town of Albion, ME0911929287

FCC 09-99 Shotclock Order

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