The FCC ruling said cities, or other local agencies, can’t delay starting a 60-day federal shot clock and can’t add aesthetic requirements when granting permit for expansions or other additions to cell sites and towers, or other wireless facilities, so long as the changes are within certain limits. In other words, when the work falls under what are usually called the “6409” rules, after the section federal law involved. The FCC said that the 60-day shot clock begins as soon as a wireless company takes the first step in a permit process, whether or not they’ve filed a formal application. If the shot clock expires, the permit is “deemed granted”.
The cities and associations filing the petition for review argued, as might be expected, that the FCC exceeded its authority…
The Commission’s new rules and significant changes to its existing rules unlawfully preempt local and state government authority promulgated without response to the arguments advanced by Petitioners in the record…
Petitioners seek review of the Ruling on the grounds that the Ruling is arbitrary, capricious, and an abuse of discretion.
The cities’ filed on Monday. I haven’t seen any other appeals from any other parts of the U.S. Assuming that’s the case, it’ll be handled by the ninth circuit, which is also considering a similar, but much larger, challenge to the FCC’s 2018 preemption of local ownership of city street light poles.
That case was heard in February, by three ninth circuit judges. There’s no particular timeline for a decision, but they’ve been working on it long enough that it could come at any time. Expect a similar journey of a couple of years for this latest appeal.
The first draft of the new rules was published last month, and despite a flood of objections from local governments, nothing much changed. The final version tweaks the definition of the trigger that starts the 60-day shot clock. It begins running when two things happen:
An applicant “takes the first procedural step that the local jurisdiction requires”, which could be a meeting with staff to discuss the project, although the FCC considers the step taken when the company makes “a written request to schedule the meeting”. The same applies to things like community meetings or planning reviews – the 60 days starts ticking down as soon as the request for such is made.
“The applicant submits written documentation showing that a proposed modification is an eligible facilities request” – in other words, is a minor collocation of transmission equipment on an existing structure, as defined by congress and the FCC. The local agency doesn’t have to buy off on the claim or consider the documentation complete. The company just has to file its arguments.
A tight limit on concealment requirements also got some minor editing, although it didn’t satisfy objections raised by local governments or commissioner Geoffrey Starks, a democrat. New concealment or stealthing measures can’t be imposed, and existing requirements can only be enforced if there is “express evidence in the record to demonstrate that a locality considered in its approval that a stealth design for a telecommunications facility would look like something else, such as a pine tree, flag pole, or chimney”. The new rules are not workable, Starks said in his dissent…
In many cases, local governments approved sites years ago, well before passage of the Spectrum Act. Particularly for smaller cities, it’s unlikely that their decisions explain the intent behind a particular requirement affecting a site’s appearance. Yet today’s Declaratory Ruling states that, unless the regulator can provide express evidence in the record demonstrating that a requirement was intended to disguise the nature of the equipment as something other than a wireless facility, the local government must give streamlined treatment to any changes. Moreover, for changes in appearance that don’t disguise the nature of the equipment but merely make it harder to notice, the Declaratory Ruling establishes a standard that effectively preempts any requirement that the applicant claims it cannot reasonably meet…
Doing this via a Declaratory Ruling will place an undue burden on local governments that are unfamiliar with the Commission. A clerk in a small city may not realize that a proposed site modification will require her to review not only the Code of Federal Regulations but the language of this decision and our 2014 order.
The FCC’s decision also begins the next phase of its campaign to end local discretion over cell sites and other wireless facilities. It’s considering allowing companies to expand the boundaries of “an existing facility…up to 30 feet in any direction”, under the same shall approve within 60 days rule. It’s asking for public comments, but not offering much time – 20 days after the notice is published in the federal register, with reply comments due 30 days after that.
Pre-application requirements for some wireless facilities permits would be effectively banned by a draft ruling posted yesterday by the Federal Communications Commission. It would also expand limits on some antenna sizes and scale back concealment measures that some cities use to maintain aesthetic standards.
The draft declaratory ruling and notice of proposed rulemaking applies to some situations when mobile carriers and other wireless companies seek permission to add equipment to existing towers and the surrounding area. It’s sometimes referred to as the “6409” rule, after the section of federal law that it’s based on. I won’t try to explain it here. The flowchart below illustrates the complexity of federal and state restrictions on wireless permit processing. The box circled in blue is the particular FCC regulation involved. Click to get my white paper that tries to sort it all out.
In that set of circumstances, local governments have 60 days to approve a permit application or it’s “deemed granted”. Denying the permit application is not allowed. The FCC set those parameters in 2014 during the Obama administration, and since then wireless companies and local governments have been arguing about things like precise definitions of “separation from the nearest existing antenna” and what it takes to “defeat” concealment requirements. The FCC’s draft ruling addresses those issues, too.
Click for the bigger picture.
When that 60-day shot clock begins is particularly contentious. For example, some cities require companies to consult with staff or neighborhood groups before permit applications can be filed. Others might require multiple permits from different city departments. Cities often take the position that the shot clock doesn’t begin until those preliminary steps are done and an actual (and complete) application is submitted.
Not so, says the FCC’s draft ruling: “an applicant has effectively submitted a request for approval that triggers the running of the shot clock when…the applicant takes the first procedural step that the local jurisdiction requires as part of its applicable regulatory review process” and documents that the facilities it proposes to install meet the 6409 rule’s criteria.
In other words, there’s no such thing as a pre-application period. Once a wireless company takes any required step, time starts running. And there’s only one shot clock per city. Once it’s triggered, every permit has to be approved in 60 days.
The FCC is scheduled to vote on the draft at its next meeting on 9 June 2020. There’s a window of opportunity to submit comments, but substantive changes are unlikely – although democrat and republican commissioners might quibble about details, there’s a long and strong history of bipartisan support for wireless permit streamlining at the FCC.