FCC Sets Drop Dead Date on Wireless Sites

Planning & zoning professionals seem to have greeted with deafening silence the FCC decision last week on wireless tower siting timelines.  The press release begins:

In a Declaratory Ruling (“Ruling”) adopted today [18.11.09], the Federal Communications Commission (“FCC”) cleared the way for broadband deployment by establishing timeframes of 90 days for collocations and 150 days for all other tower siting applications reviewed by state and local governments. This action will assist in speeding the deployment of next generation wireless networks while respecting the legitimate concerns of local authorities and preserving local control over zoning and land use policies.

The broadband press was immediately a-twitter on the decision.   Broadcasting & Cable had the quotes:

The FCC Wednesday gave states and localities a shot clock for approving wireless industry applications for construction and installation of new facilities.

The vote was 5-0 for the item.

The deadline for co-locating facilities on existing towers will be 90 days, and 150 days for new tower sites, both of which are presumed to be the reasonable time frame for acting on such requests.

After that time, wireless companies can go to court, but no applications will be presumed granted just because those deadlines have been passed. States and localities will be able to rebut that presumption with facts from individual cases.

The decision is meant, in part, to help speed the rollout of wireless broadband, including services making use of the re-auctioned 700 mHz spectrum reclaimed from broadcasters in the DTV transition.

Commissioner Robert McDowell, who said the item struck an elegant balance, said he hoped that the decision would allow wireless companies calling for lots more spectrum to get more efficiencies out of the spectrum they already have

Commissioner Michael Copps also praised the decision. He pointed out that he has in the past opposed what he saw as FCC efforts to usurp state and local authority, citing specifically his opposition to the 2006 decision to speed cable franchising decisions–which included its own shot clock. But in this case, he said, the item allowed states and localities to retain their power. He also pointed out that there was no presumption that an application was granted if the shot clock expired, as there was in the cable item and as the wireless industry had sought.

FCC Chairman Julius Genachowski thanked the Wireless Bureau for its fast work on the item, which he signaled at a speech to the wireless industry in October was in the works.

He said mobile can advance education, health care and more, and that spectrum policy will be an important element of the broadband plan.

Genachowksi said 4G nets are ready to roll and will boost broadband speeds to rival those of fixed broadband.

Accelerating deployment of these new networks is a critical goal for the nation, said the chairman. Sometimes the FCC needs to act to provide rules of the road, and this is one of
those times, he added.

Genachowski said delays exist in too many states and localities, including applications pending for years, citing stats from CTIA: The Wireless Association. He gave a shout-out to CTIA for petitioning for the shot clock.

He said the decision simply requires decisions in a timely, justifiable fashion. He called the rules “amply sufficient to the task.”

Not sure how far it got out into mainstream press.  Wall Street Journal had a skeptical take on the issue (online, do not know about dead-tree issue)

The Federal Communications Commission began to lay the groundwork for a bigger federal role in the broadband business Wednesday, outlining the hurdles the U.S. needs to overcome to improve the availability of high-speed Internet access.

The FCC identified a number of issues the government should address, including the high cost of laying new broadband lines in rural areas, a lack of airwaves for wireless Web access and ill-informed consumers.

“This focus on broadband is a reflection of a recognition that the U.S. is lagging behind,” FCC Chairman Julius Genachowski said Wednesday at the agency’s monthly meeting.

The FCC is drafting a National Broadband Plan, which will lay out ways the government can improve broadband service in the U.S. The plan is scheduled to come out in February, and it’s uncertain how many of its suggestions will ultimately be adopted. Already, some big cable and telecommunications companies are concerned the agency wants to impose rules that could undermine their business strategies and profitability.

BusinessWeek Tech Beat gave it three paragraphs.

I waited to blog the decision because I wanted to see the chatter among planners.  I’m still waiting.

Cell towers are often magnets for NIMBY wars played out before local planning and zoning commissions.  Legislation and case law have bounced back and forth between more and less local control for tower siting, much the same as for other property rights issues.

While I bristle at any unfunded mandates, locally Minnesota’s 60-day rule effectively limits (for the most part) local government’s flexibility in making land use decisions.   That “no applications will be presumed granted” part is an important difference and mitigates the immediate threat. Experienced zoning administrators can make sure applications come in full and complete before the clock starts to tick.  However, many line planners don’t have the luxury to buck over-eager developers.  Truth be told, many communities that don’t yet have wireless service (for voice or data) might bend over backwards to get towers at this point.

When Alltel finally put up a cell tower  a couple blocks from my house, I really didn’t care that it was a nasty ugly lattice tower.  It’s a tower.  I get a signal.  So what if the out-of-state corporate powers-that-be didn’t think my hometown deserved a mono-pole let alone a stealth cell tower…. Not that I’m bitter or anything.

One interesting aspect of the decision noted near the end of the FCC press release:

Finally, the Ruling denies CTIA’s request to find that it is a violation of the Communications Act for a State or local regulation to require a variance or waiver for every wireless facility siting.

Huh?  What are these people thinking?  Um, NO.  I would NOT recommend the everything-is-a-variance approach to politicizing land use decisions.  I wonder if anybody with any land use experience had anything to do with this process.  Can we say AICP anyone?  Anyone?  Anyone?  Bueller?


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