FCC narrows scope for local review of wireless build outs

22 October 2014 by Steve Blum
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The FCC’s decision to tell local governments that if they don’t approve permit applications for relatively minor modifications to wireless infrastructure within 60 days then permission is automatically “deemed granted” is a bit less than absolute. Local governments can still go to court to stop installations, and there’s a narrow set of reasons that permit applications can be rejected.

But make no mistake: the FCC is severely limiting the scope for local review of “collocation, removal, or replacement of transmission equipment on an existing wireless tower or base station,” or other work on on that infrastructure if it doesn’t involve a substantial change to its existing dimensions. “Substantial change” is quantitatively defined at length in the FCC’s order. For example if the height of an existing tower that isn’t in the public right of way is increased by more than 10% (with a couple very specific exceptions), then it’s a substantial change. If not, the new rules apply.

Local governments can delay incomplete permit applications, but have to provide a clear punch list of needed items. Otherwise…

States and localities may continue to enforce and condition approval on compliance with generally applicable building, structural, electrical, and safety codes and with other laws codifying objective standards reasonably related to health and safety.

Health and safety standards, though, do not include – the scientifically unsupported – fears that the radio frequency transmissions might cause harm.

Any list of building code conditions that must be met has to be issued along with the permit within 60 days. If that doesn’t happen, then the applicant can notify the local government in writing that the deadline has passed and get on with the work.

Unless the local government decides to take the matter to court within 30 days. The scope for judicial review is as limited as the local agency’s authority, but not the time frame: everything slows down again to the speed of justice. Commissioner Ajit Pai’s declaration that “an applicant can start building on day 61” isn’t completely true.

I’m barely scratching the surface of the entire Report and Order, which runs 155 pages and deals with many other issues related to local review, such as environmental and historical preservation rules, temporary towers and the FCC’s general “shot clock” rule. And expect this ruling, too, to be challenged in federal court. Lots more to read and write about.