December 2, 2009
RE: FCC Adopts Wireless Tower Siting Petition
Last week, despite the objections of the National League of Cities (NLC) and other public interest groups, the Federal Communications Commission (FCC) unanimously adopted an order on the International Association for the Wireless Telecommunications Industry’s (known as CTIA's) tower siting "shot clock" petition. The Order sets presumptive deadlines of 90 days (for co-location applications) and 150 days (for all other wireless siting applications) within which a local government must act on wireless applications.
If no action is taken before the imposed deadlines, then:
(1) A local government is presumed (albeit rebuttably) not to have acted within a "a reasonable period of time" within the meaning of Sec. 332(c)(7)(B)(ii) of the Communications Act, and
(2) the wireless applicant is entitled to take the local government to court on that ground pursuant to Sec. 332(c)(7)(B)(v).
As a standard operating procedure, the FCC made clear that once in court, a local government is entitled to prove that its failure to act within the FCC's deadline was reasonable and thus not contrary to Sec. 332(c)(7)(B)(ii).
Along with its national association partners, NLC is reviewing the Order and has not made a decision whether to appeal.
Since the Municipal Land Use Law requires Planning Boards and Zoning Boards to act within 120 days, the FCC rules may not cause the disruption in New Jersey that other states may anticipate.
We will keep you posted on further developments.
Please share this with your land use professionals and staff.
Very truly yours,
William G. Dressel, Jr.