This post provides both the audio of the hearing as well as the transcript in City of Arlington v. FCC (the Shot Clock case), which was argued before the Supreme Court on January 16, 2013.
I recommend you open the transcript first, then play the audio.
SCOTUS Oral Argument Audio in City of Arlington v. FCC
SCOTUS Oral Argument Transcript in City of Arlington v. FCC
Linked below is the official (subject to review) transcript of today’s Supreme Court hearing in CITY OF ARLINGTON, TEXAS, ET AL., v FEDERAL COMMUNICATIONS COMMISSION (the “FCC Shot Clock” case).
I’ll link to the audio of the hearing when available.
Jonathan
Yesterday, the 5th Circuit Court of Appeals denied the FCC Shot Clock appeal promoted by the City of Arlington, Texas and the City of San Antonio, Texas. For the foreseeable future, the Shot Clock will remain with us. Here is the decision: CITY OF ARLINGTON, TEXAS; CITY OF SAN ANTONIO, TEXAS v. FCC.
Although the Mayan Calendar predicts the end of the world on December 21st, 2012, it seems unlikely that the FCC Shot Clock will be the cause. It also seems unlikely that a petition for Certiorari will be favorably reviewed by the U.S. Supreme Court given the nature of the ruling, and the lack of a split among the various Circuits.
This appeal grew out of the FCC’s adoption of its wireless tower siting Shot Clock rule in 2009 (click here to read the FCC’s Shot Clock Declaratory Ruling) setting deadlines for governments to process to a decision wireless site applications “within a reasonable period of time” (see 47 U.S.C. § 332(c)(7)(B)(ii).
In its ruling, the FCC interpreted Congressional intent regarding § 332(c)(7)(B)(ii) to define the reasonable time as being 90 days for a collocation site, and 150 days for a new site and other types of applications. 47 U.S.C. § 332(c)(7)(B)(v) requires that when there is a failure to act on an application within the applicable time period, the aggrieved party (usually the carrier) should file a suit with a court of competent jurisdiction within 30 days and that “[t]he court shall hear and decide such action on an expedited basis.”
So, what does this mean for local governments? Likely not too much for now.
Most local governments, since the Commission’s adoption of the Ruling, have taken the order in stride and tried to comply. Most carriers have done the same thing. Most times, when the 90 or 150 day clock was about to run out, the carrier and government would enter into a tolling agreement (by mutual agreement to stop the Shot Clock where it was, so that everyone would have some breathing room to keep working on a project).
Why are tolling agreement needed? Even the Commission recognized the value of such agreements when it said,
We conclude that a rigid application of this cutoff to cases where the parties are working cooperatively toward a consensual resolution would be contrary to both the public interest and Congressional intent. Accordingly, we clarify that a “reasonable period of time” may be extended beyond 90 or 150 days by mutual consent of the personal wireless service provider and the State or local government, and that in such instances, the commencement of the 30-day period for filing suit will be tolled.
(FCC Shot Clock Order @ 49)
As someone who reviews and processes wireless site applications for many local governments, the most important clock is not 90 or 150 day clocks; it’s the first 30 day ‘application deemed complete’ clock.
The FCC said of this first 30 days,
[A] review period of 30 days gives State and local governments sufficient time for reviewing applications for completeness, while protecting applicants from a last minute decision that applications should be denied as incomplete. Accordingly, we conclude that the time it takes for an applicant to respond to a request for additional information will not count toward the 90 or 150 days only if that State or local government notifies the applicant within the first 30 days that its application is incomplete.
(FCC Shot Clock Order @ 53)
Some states, including California, already provide for an initial 30 day review period for application completeness (in California see Gov. Code § 65943). Unlike the California law, however, which ‘resets’ the clock back to zero if an application is returned incomplete within the first 30 days, the FCC shot clock simply stops where it is at the time the incomplete notice is issued. If the local government takes 25 days to review a project for completeness, and returns the application as incomplete on that day, it only has 5 more days to review the project when resubmitted.
Because the FCC first 30 day clock is the toughest to deal with, local governments will be well-served to create carefully-crafted and very detailed applications that make incomplete submissions easy to detect. For an example of a wireless application form that is both detailed and highly structured, take a look at the one I’ve maintained for nearly a decade and which is used in one form or another by various jurisdictions around the country: CLICK HERE.
PRACTICE TIP
I believe that local governments will be best served by a combination of a carefully-crafted wireless siting application facilitating an easy completeness check, coupled with the requirement that wireless site applications only be filed by appointment where legally permissible.
Taking in and reviewing a complex wireless siting project and the underlying thorough siting application and data can take an hour or more.
By requiring appointments, a government planner can allocate sufficient time to take in and review the application at the time it hits the counter. Any facial omissions or errors can be identified during the intake, and the planner can immediately log in the project and simultaneously issue the applicant with an incomplete letter at the same time. This approach will blunt the worst impacts of the 30-day clock by never allowing it to start for facially incomplete or incorrect applications.
♫ ‘A siting we shall go; a siting we shall go…’ ♫
The following is from today’s edition of the AGL Bulletin. A subscription link is below the article.
Verizon Wireless has filed a lawsuit against the Town of Irondequoit in the U.S. District Court, Western District of New York, concerning inaction on a proposed cell tower in the upstate New York town. It appears to be a good test case for the FCC’s shot clock, which is designed to ensure municipalities don’t drag their feet in processing cell tower applications.
“I was at the FCC when the shot clock order was issued, and I know that the sincere intent was to spur broadband deployment by creating a more efficient tower siting and collocation review process. Companies prefer to work things out with zoning authorities and lawsuits really tend to be a last resort,” said Monica Desai, Patton Boggs, former FCC official.
Back on June 18, 2010, Verizon Wireless filed an Application for Special Permit with the Town Board to replace an existing 20-year-old tower and equipment shelter at a local fire department with a new monopole and shelter, which could be used for collocation of the fire department and county public safety. The original tower is 62 feet in height with an antenna that reaches 82 feet AGL.
Seven months into the process, Feb. 11, 2011, the Town filed a positive declaration under New York’s State Environmental Quality Review Act, which triggers the time-intensive development of an environmental impact statement. A little more than a month later, Verizon Wireless filed its suit.
Verizon Wireless accused the Town of “unreasonably and repeatedly delaying” it from providing service where a gap currently exists. The carrier noted language in the Telecom Act requiring municipalities to act on requests to build wireless facility in a “reasonable time period,” and the FCC’s definition of that time period at 90 days for collocations and 150 days for new builds.
Both the Town Board and the Town Planning Board met in workshop sessions, followed by a public hearing last July at which the public voiced its concerns. The application was addressed again in a Town Board workshop in August, and a wireless consultant was subsequently hired to review the proposal’s technical aspects. A week later, Verizon Wireless supplied supplemental information, and another public hearing was held at which, according to Verizon Wireless, the same group of residents voiced the same concerns as they had at the earlier hearing.
In September, Verizon Wireless performed two days of crane/transmitter testing to fulfill requirements of the consultant’s report. The tower was scheduled for a vote in September but a supplemental report by the consultant caused an adjournment until October. Two more public hearings were held in October, but the vote was postponed to November because Verizon Wireless had not completed the analysis of its testing.
Also in October, the consultant supplied two supplemental reports requiring additional information from the carrier, a repeat of the crane/transmitter testing by an independent party, the effect of the tower on property values, the structural stability of the tower, sound levels from the on-site generator, title issues on adjoining property and the provision of data services on the tower in addition to voice.
On March 18, 2011, Verizon filed suit against the Town. “The defendants have engaged in unnecessary delays and have unreasonably failed to take final action on the application,” Verizon Wireless wrote in its complaint. “The delays … have put the fire district site application into its 273rd day as of the day of this complaint; far more than the 150-day limit previously prescribed by the FCC.”
But Verizon may face a Shot Clock Order problem of its own making, according to Jonathan Kramer, a lawyer and RF engineer representing governments.
Kramer notes that Section 332(c)(7)(B)(v) of the Telecom Act allows an aggrieved party to file suit “within 30 days after such … failure to act” by a State or local government.
The FCC’s Shot Clock Order clarified when the 30 days begins. Kramer cites that portion of the Order, which says “Specifically, [the Commission finds] 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).”
Kramer points out that Verizon admits in its complaint that it waited 273 days from the date of its initial application filing to commence the lawsuit against the Town. Under the shot clock order, the lawsuit should have been filed on or before the 180th day. The delay in filing its lawsuit, according to Kramer, may deal a knockout-blow to Verizon’s shot clock claim.
If you are involved in wireless and tower siting/planning issues and don’t already subscribe to Above Ground Level (AGL), then you should subscribe today at http://www.agl-mag.com/subscribe.html
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
The FCC’s Shot Clock for siting decisions in wireless cases is turning out to be the bad idea that most governments expected it would be. Right now we’re seeing the first round of “Chicken” … The carriers are starting to demand siting decisions on cases because the Shot Clock rule entitles them to sue if they don’t get it.
“Okay… you want a decision? DENIED for the following reasons based on evidence in the administrative record….” is what some governments are starting to offer applicants who demand their ‘final’ decision on day 90 or 150. At the last minute will one side or the other ‘blink’ in this high-stakes game of Chicken?
In some cases, especially in California with its state law CEQA requirements and when looking at compliance with local siting ordinance requirements, the decisions simply can’t pop out on time like the output of an assembly line.
I suspect we’ll see a fair number of application denials in the next few months while all sides figure out how to live under the Shot Clock…at least until the rule is overturned or seriously limited by the courts.
It was a dumb idea for the wireless industry to push for this rule. The only ones who will really benefit from strict and severe application of the rule will be the attorneys and experts. As both, I still think this was a dumb idea becuase it will make siting a more rigid process.
Those are my opinions. What are yours?
