Municipalities all over the U.S. are facing increasing requests for cell tower permits, and as in Glendale, California, many are taking the time to look into all the issues and create sound zoning policies. Such delays are inconvenient for the wireless industry, anxious to get their towers up and expand their markets. They’ve gone straight to Washington to try and take away local rights by imposing national “shot clock” deadlines. A current legal adviser to the Glendale City Council on the cell tower issue actively opposed the industry effort.
CTIA, the wireless telecom industry lobby, petitioned the FCC back in July 2008 to rule as follows:
1. To set a 45 or 75-day “shot clock” on local action on certain wireless facility applications. If the deadline isn’t met, the local authority will have violated Sec. 332(c)(7)’s requirement that a locality act on the application within a reasonable period of time.
2. If a locality fails to act within the shot clock deadline, the wireless carrier’s application will be deemed granted. Alternatively, failure to meet the shot-clock deadline would establish a presumption in any Sec. 332(c)(7) litigation that the wireless carrier is entitled to an injunction ordering the locality to grant the application unless the locality can justify the delay.
3. To clarify that Sec. 332(c)(7) bars any local zoning decision that prevents a wireless carrier from offering service in an area where another wireless carrier is already providing service.
4. To rule that Sec. 253 preempts any local zoning or state laws that impose unique requirements on wireless applicants vis-à-vis other kinds of land use applicants, such as local or state laws that require all wireless siting applicants to
seek a variance.
Glendale Organized Against Cell Towers (GOACT) found out about this petition too late to submit a public comment (the period for public comments expired on September 29, 2008). The National League of Cities had warned its members in this September 2008 report about the issue and urged them to contact the FCC. Bloggers like this one who have followed the issue for awhile posted extensive background information and urged readers to look into the matter.
The legal adviser Glendale retained to provide expert counsel on cell tower siting is Jonathan Kramer, who assisted SCAN NATOA (California and Nevada Chapter of the National Association of Telecommunications Officers and Advisors) in drafting this paper in opposition to the CTIA petition. Among other points, it points out that
There is no reasonable doubt that that Congress intended that the normal, locally-based zoning process control for wireless siting. The lack of ambiguity in Congress’s intent makes it clear that the Commission has no legal authority to usurp the local process, and the timing associated with that local process.
The Commission is explicitly excluded by Congress from interceding in local zoning issues and that is exactly what the CTIA’s Petition would have the Commission now do.