At its September 26, 2018 meeting, the Federal Communications Commission (the “FCC”) considered and approved the Declaratory Ruling and Third Report and Order which: (1) clarifies the scope and meaning of Sections 253 and 332(c)(7) of the Communications Act, (2) establishes shot clocks for state and local approvals for the deployment of Small Wireless Facilities, and (3) provides guidance on streamlining state and local requirements on wireless infrastructure deployment. (WT Docket No. 17-79; WC Docket No. 17-84)(the “Wireless Infrastructure Order”). This legal alert addresses the “shot clock” rules governing the review of wireless infrastructure deployments.
Keane & Beane, P.C. previously provided two Legal Alerts on the Wireless Telecommunication Order. Part 1 provides a general overview of the Wireless Telecommunication Order. Part 2 discusses the impacts the Wireless Telecommunications Order will have on state and local government regulation of the placement, construction, and modification of Small Wireless Facilities. These legal alerts are available Here.
With regard to shot clock requirements, the Wireless Infrastructure Order (1) creates a new set of shot clocks tailored to support the deployment of Small Wireless Facilities, (2) clarifies that a municipality’s failure to issue a decision on an application during the shot clock period constitutes a presumptive prohibition and (3) addresses a number of issues that are relevant to all of the FCC’s shot clocks, including the types of authorizations subject to these time periods.
In 2009, the Commission concluded that municipalities should use shot clocks to define a presumptive “reasonable period of time” beyond which state or local inaction on wireless infrastructure siting applications would constitute a “failure to act” within the meaning of Section 332.2. At that time the FCC adopted a 90-day clock for reviewing collocation applications and a 150-day clock for reviewing siting applications other than collocations.
In the Wireless Infrastructure Order, the FCC adopts two new Section 332 shot clocks for Small Wireless Facilities – 60 days to review an application for collocation of Small Wireless Facilities using a preexisting structure and 90 days to review an application for attachment of Small Wireless Facilities using a new structure. Collocation includes the attachment of facilities to existing structures, regardless of whether the structure or the location has previously been zoned for wireless facilities.
The Final Rule, included in the Wireless Infrastructure Order as Appendix A, adds subpart U to Part 1 of Title 47 of the Code of Federal Regulations which codifies the FCC’s four shot clocks.
The FCC determined that the 60-day shot clock for collocation applications is appropriate because collocation applications are generally easier to process than new construction because the community impact is likely to be smaller. In particular the FCC concluded (1) the addition of an antenna to an existing tower or other structure is unlikely to have a significant visual impact on the community and (2) the size of Small Wireless Facilities poses little or no risk of adverse effects on the environment or historic preservation. Similarly, the FCC determined that a 90-day shot clock is a presumptively reasonable period of time for localities to review new construction of Small Wireless Facilities. The FCC concluded that Small Wireless Facilities have far less visual and other impact than other wireless telecommunication facilities, and should accordingly require less time to review. Review of an application to deploy a Small Wireless Facility using a new structure warrants more review time than a mere collocation, but less than the construction of a macro tower.
The Final Rule also states if a single application seeks authorization for multiple Small Wireless Facility deployments, “then the presumptively reasonable period of time of the application as a whole is equal to that for a single deployment within that category.” If an applicant files multiple siting applications on the same day for the same type of facilities, each application is subject to the same number of review days by the siting agency. These multiple siting applications are referred to as a batched application. Accordingly, when applications to deploy Small Wireless Facilities are filed in batches, the shot clock that applies to the batch is the same one that would apply had the applicant submitted individual applications. Should an applicant file a single application for a batch that includes both collocated and new construction of Small Wireless Facilities, the longer 90-day shot clock applies to ensure that the siting authority has adequate time to review the new construction sites.
The shot clock period begins to run when an application is first submitted, not when the application is deemed complete. For Small Wireless Facilities applications, the siting authority has 10 days from the submission of the application to determine whether the application is incomplete. The shot clock then resets once the applicant submits the supplemental information requested by the siting authority. For example, for an application to collocate Small Wireless Facilities, once the applicant submits the supplemental information in response to a siting authority’s request, the shot clock resets, effectively giving the siting authority an additional 60 days to act on the Small Wireless Facilities collocation application.
Multiple authorizations may be required before a deployment is allowed to move forward. For instance, a locality may require a zoning permit, a building permit, an electrical permit, a road closure permit, and an architectural or engineering permit for an applicant to place, construct, or modify its proposed personal wireless service facilities. All of these permits are subject to Section 332’s requirement to act within a reasonable period of time, and thus all are subject to the shot clocks. In addition, mandatory pre-application procedures and requirements do not toll the shot clocks.
New Remedy for Violations of the Small Wireless Facilities Shot Clocks
The FCC did not adopt a “deemed granted” remedy for violations of the new shot clocks. The FCC determined that if a municipality fails to issue a decision during the shot clock period such “failure to act” constitutes a presumptive prohibition materially limiting or inhibiting the introduction of new services or the improvement of existing services. In cases where state or local governments fail to issue all necessary permits within a reasonable period, the FCC believes that the applicant would have a straightforward case for obtaining expedited relief in court. When a siting authority misses the applicable shot clock deadline, the applicant may commence suit in a court of competent jurisdiction alleging a violation of Section 332(c)(7)(B)(i)(II)(prohibiting effective prohibitions), in addition to a violation of Section 332(c)(7)(B)(ii)(the shot clock requirements).
Clarification of Issues Related to All Section 332 Shot Clocks
Section 332(c)(7)(B)(ii) requires state and local governments to act “within a reasonable period of time” on “any request for authorization to place, construct, or modify personal wireless service facilities.” The FCC determined that the phrase “any request for authorization to place, construct, or modify personal wireless service facilities” under Section 332(c)(7)(B)(ii) includes all authorizations necessary for the deployment of personal wireless services infrastructure. The text encompasses all aspects of and steps in the siting process, including license or franchise agreements to access ROW, building permits, public notices and meetings, lease negotiations, electric permits, road closure permits, aesthetic approvals, and other authorizations needed for deployment. Building and safety officials will be subject to the same applicable shot clock as all other siting authorities involved in processing the siting application, with the amount of time allowed only varying in the rare case where officials are unable to meet the shot clock because of exceptional circumstances
Under the Wireless Infrastructure Order, the entire approval process necessary for deployment must be completed within a reasonable time period, as defined by the adopted shot clock periods. As a practical matter it remains to be seen how the shot clock periods will be enforced when several approvals and permits are required to construct a small cell facility. For example, if an applicant or provider submits all required materials for its planning board application, but does not have drawings upon which a building permit can be issued when it initially submits its planning board application, should the municipality deny the initial application as incomplete? Does the building permit have to be approved within 60 or 90 days from the initial submission to the planning board? Or will the shot clock restart after the applicant receives the required land use approval and submits the required application materials to obtain a building permit, giving the Building Department 60 or 90 days to review the building permit application materials? At this time it is unclear as to how the new shot clock regulations envisioned by the FCC will play out in practice.
Keane & Beane, P.C. continues to review the Wireless Infrastructure Order and its impact on local government regulation of Small Wireless Facilities. Our office will continue to provide Legal Alerts on different aspects of the Wireless Infrastructure Order.
Should you have any questions, please contact Nicholas M. Ward-Willis.