Sizing up the tower shot clock

**As published in RCR Wireless News** Carriers, tower companies, infrastructure vendors and the organizations that represent and lobby for them in Washington, D.C., would like to have more muscle when it comes to tower-siting issues. While the wireless industry has made some inroads of late, there’s only so much it can do to collectively bolster its position against municipalities and other jurisdictions.

At the end of 2009, the Federal Communications Commission issued a unanimous declaratory ruling that imposed a tower-siting shot clock under which state and local zoning boards are required to vote up or down on permit applications. While it was clearly a win, industry originally wanted tower permit applications to be considered free and clear if a jurisdiction failed to meet the deadline. Instead, the ruling on the books merely allows for the applicant to pursue legal action if the clock expires. And although the law is on the books and the FCC recently denied a request to reconsider the ruling, an appeal is now moving forward at the U.S. Court of Appeals for the 5th Circuit. So after a typically prolonged regulatory fight, the battling continues and most everyone is still waiting to see where things will turn out over time. “In terms of what we’re hearing from industry it’s hard to say that there’s a big change… It’ll play out over a longer period of time,” Mike Fitch, president and CEO of PCIA, tells RCR Wireless News. “Jurisdictions that were cooperative before the rule are still cooperative by and large. And jurisdictions that were uncooperative before the rule are still uncooperative,” he said. “We still haven’t seen a big impact. We hope there will be a positive impact obviously.” The path laid out by the ruling isn’t necessarily the route that companies want to take anyway, Fitch added. With a legal fight “you go from uncooperative to virtually at war,” he said. The unanimous declaratory ruling from the FCC requires tower-siting decisions to be made within 90 days on tower collocation applications and 150 days on all other tower-siting proposals. A plea for substantive change The industry needs “more than time limits,” Fitch said. PCIA wants more substantive guidelines for towers that are already in place, not procedural wins. “What we really need is something that recognizes you’ve got a site, it’s been considered, and you’re not going to waste people’s times and resources on reconsidering a site again,” Fitch said. “That’s what we’re consistently pursuing at every level. In terms of speeding up the process, if you’ve got sites that have been authorized and built that can accommodate more systems and customers, that’s by far the fastest and cheapest way to add service in a locality,” he said. PCIA wants collocation to be a generally accepted right. “That’s actually a win-win-win,” Fitch said. “The industry wins because the process is sped up on what they’ve already invested in, the local governments win because they’re not wasting staff time, money and resources on a site that’s already been approved and the public wins because they get faster and better service when and where they need it.” While it may not pack the punch that tower owners and carriers originally sought, the organization is still pleased with the progress it’s seen thus far. “From our viewpoint, the shot clock guideline was important for building the framework,” Brian Josef, director of regulatory affairs at CTIA, tells RCR Wireless News. “It is going to have long and short-term benefits for wireless services.” Josef said that the industry has been respectful in its proceedings with zoning boards and that there has yet to be a flood of lawsuits from carriers or tower companies. “Litigation is costly and time intensive and so they need to make that judgment call on whether they want to litigate. While we have seen some litigation, we haven’t seen a lot of it,” he said. “The applicants are working the process out with zoning boards. Some may have a shorter term to resolve, some may have a longer term and we want to be respectful of that process working,” Josef added. “While it sounds like this was a long time, I think the way the process works this is still very early on… We’ll look forward to see how it unfolds over the months,” he continued. Whereas CTIA gladly provided statistics to highlight the incredibly long delays that some applications faced less than a year ago, it no longer wants to play that card. “The process is working itself through,” Josef said. The ongoing legal battle The National Association of Telecommunications Officers and Advisors continues to fight against the shot clock on grounds that imposing any deadline on the permit process would pre-empt local authority. The federal court eventually will rule on that point, but in the meantime the law on the books is already showing its inherent weaknesses, which is causing even more confusion. One recent example came last month in Lewisboro, N.Y. After 90 days had passed from when Verizon Wireless submitted an application to co-locate cellular antennas on a tower behind the Vista Fire Department, the carrier sent the local planning board a letter threatening legal action. No one likes being threatened, but Verizon’s legal representatives claimed that the shot-clock rule gave them only 30 days to maintain its right to sue or request an extension. While Verizon’s letter came across to at least one planning board member as “disgusting and unprofessional,” Verizon said it essentially had no choice. On one hand the letter threatened litigation and on the other it asked the board to agree to extend the deadline. It may turn out to work in Verizon’s favor because the board eventually voted unanimously to move the application to a public hearing, but the tinge of legal showmanship may not best represent the spirit of what the wireless industry is about. “In that sense it hasn’t fundamentally changed the environment,” Fitch concluded.