The Aftermath of the FCC’s Declaratory TCA Ruling


By Dana Maine
If you have reason to care, you already know by now about the “shot clock” ruling from the Federal Communications Commission from November 2009 (2009 WL 3868811).  Enough time has passed to be able to comment about the next chapter in this saga.  Briefly, the “shot clock” portion of the declaratory ruling states that the “reasonable” time limit for processing and ruling on an application for a wireless facility siting in Section 332(c)(7) to theTelecommunications Act (“TCA”) is 90 days for collocations and 150 days for other wireless facility siting applications.  This time limit is tolled as long as the local government gives the applicant notice within 30 days that the application is incomplete.  Once the applicant provides the requested information, the clock starts again from when it was stopped.  By now, most jurisdictions probably have reviewed and amended their ordinances as needed, but issues of application might have surfaced.

For instance, how is staff going to be able to review and analyze the application within the first 30 days in order to be able to ask for additional information necessary to make the application complete?  What if staff realizes that a document is not complete or accurate, i.e., propagation map, outside of the 30 days?  Because of the impossibility of accomplishing a complete review of an application within the 30 days, it is only logical that “complete” and “incomplete” is to be applied in its broadest sense.  Therefore, if a propagation map is required and submitted, but not complete in its presentation of information, the local government should be able to deny the application based upon the faulty information.  Certainly, the jurisdiction can ask for additional information from the applicant, but any request made after the initial 30 days would not suspend the shot clock.
Another question is, what are the consequences of not getting the shot off before the buzzer?  The FCC did not require a “deemed granted” ruling, as the industry requested.  At least one court has ruled that the relief is for the applicant to receive a decision.  Clear Wireless, LLC v. City of Wilmington, 2010 WL 3463729 (D. Del. August 30, 2010).  This is not the punch for which the industry was vying when it petitioned the FCC for the declaratory ruling.  Thus, other courts may reach a different conclusion.
There is considerable question about the authority of the FCC to issue elements of its ruling.  A petition pending in the Fifth Circuit, City of Arlington, TX v. FCC, Appeal Number 10-60039, should answer some of the questions.  In the meantime, local governments must realize that they should assert this technical defense in matters involving the application of the declaratory ruling.
For more information regarding this article, please contact Dana Maine at 770.818.1408 or by email at [email protected].