CTIA responds to planning groups' protest of shot-clock provision

CTIA has challenged a petition for reconsideration from municipal planning authorities that ask the Federal Communications Commission to clarify its position on a 30-day “tolling” period related to the federal shot-clock on tower siting issues.
The FCC in November adopted a shot-clock policy on tower-siting applications amid reports of increasing resistance from local governments to grant or deny tower apps on a timely basis. Under the order, state and local jurisdictions have 90 days to act on tower collocation applications and 150 days to act on all other tower-siting applications.
As part of the FCC’s order, it said that local governments can have some time to stop the shot clock, if government authorities find an application is incomplete. Wireless carrier MetroPCS Communications Inc. in its comments to the FCC said local governments sometimes can postpone ruling on a siting app by saying the application is incomplete, thereby delaying a ruling on the application and thus, further dragging out the process. MetroPCS proposed that local authorities should have three days to rule on whether an application is incomplete. PCIA suggested a longer period, 10 days, for the government to say whether an application is incomplete. Ultimately, the commission said it would grant a 30-day “tolling” period that would not count toward the shot clock if the application was incomplete, and that the tower-siting applicant and the local authority can agree to subsequent “tolling” periods if they mutually agree that such extensions are needed.
The National Association of Telecommunications Officers and Advisors, the U.S. Conference of Mayors, the National League of Cities, the National Association of Counties and the American Planning Association have issues with that part of the ruling, among other things. While the organizations noted in their December filing that they don’t think the FCC has the authority to impose a shot-clock on tower siting apps at all, they only addressed the 30-day tolling deadline in the reconsideration petition.
The local government groups are protesting that that extension is limited to only 30 days. “First, the order does not take into account that there are many valid situations in which a local government should have the power to toll the shot clock for reasons beyond application incompleteness. For example, if actions of the applicant or a third party cause the delay in the application review, the shot clock should be tolled until the application is back under the power of the local government zoning authority. In an ideal world, applicants would not bring or threaten litigation against a local government clearly not at fault for the delay. But, we do not live in an ideal world and some applicants may use such delays as a strategic advantage. And, although such litigation may ultimately be settled in favor of the local government, the mere threat of expensive litigation may be all the applicant needs to obtain an unfair advantage. Second, the 30-day deadline will result in a more rigid process with increased application rejections, possibly higher fees, and more delays in the deployment of wireless and mobile broadband services to our nation’s communities.”
The local governments said they are sometimes need information from third parties, like the Federal Aviation Administration, and cannot force them to act in a timely manner.
CTIA, for its part, said the local planning groups’ petition fails on every count and that the 30-day deadline on tolling applications (i.e., turning off the shot clock) makes sense.
“Here, if the commission has authority to interpret what constitutes a ‘reasonable time period’ for reaching a decision, it clearly has authority to interpret how that time is computed, because the method of computing and tolling the time is an integral part of the time period deemed ‘reasonable.’ The 30-day review period for automatic tolling is inextricably intertwined with how the 90- or 150-day periods are computed: If, during the first 30 days, the zoning authority informs the applicant of deficiencies that must be completed, the 90- or 150-day period is automatically tolled until the needed information is supplied; otherwise the parties work towards resolution of the application within the presumptive timeframes or mutually agree to extend the period,” CTIA said.