Recent Developments

« All Services

Shot Clocks Partially Upheld

On January 23, 2012, the Fifth Circuit Court of Appeals affirmed the FCC's shot clock order - - but narrowly interpreted its effect.  City of Arlington v. FCC¸ __ F.3d ___, 2012 WL 171473 (5th Cir, 2012) ("Arlington"), the decision IS AVAILABLE HERE.  The FCC order allows providers to go to court if a municipality takes more than 90 days (for collocations) or 150 days (for new towers) to act on cell tower zoning requests.  The FCC said that times greater than that would be presumed to violate the cell tower zoning provisions of the Communications Act.

The court in upholding the shot clocks said generally:

"We do not read the [FCC] Declaratory Ruling [creating the shot clocks] as creating a scheme in which a state or local government’s failure to meet the FCC’s time frames constitutes a per se violation of § 332(c)(7)(B)(ii) [of the Federal Communications Act]. The time frames are not hard and fast rules but instead exist to guide courts in their consideration of cases challenging state or local government inaction." Arlington, slip opinion at 46-47.

The lengthy decision addressed many issues, including whether the court should give so-called "Chevron deference" to the FCC's determination of its jurisdiction, etc.  On all of them it ruled in favor of the FCC, generally by applying existing Fifth Circuit precedent on the specific issues in question. 

The precedent on some of these issues is different in other circuits (the Fifth Circuit covers only the states of Texas, Mississippi and Louisiana), so the issue of whether the shot clocks are valid may be different in other circuits, such as if providers go to court elsewhere to apply the shot clocks against a municipality in a specific instance.

The Arlington court was at some pains to explain the limited effect of the presumption resulting from exceeding the shot clocks, and why this was the case:

"We have held that [Federal] Rule [of Evidence] 301 adopts a “bursting-bubble” theory of presumption, under which 'the only effect of a presumption is to shift the burden of producing evidence with regard to the presumed fact.'  'If the party against whom the presumption operates produces evidence challenging the presumed fact, the presumption simply disappears from the case.' In other words, once a party introduces rebuttal evidence sufficient to support a finding contrary to the presumed fact, the presumption evaporates, and the evidence rebutting the presumption, and its inferences, must be 'judged against the competing evidence and its inferences to determine the ultimate question at issue.'  The burden of persuasion with respect to the ultimate question at issue remains with the party on whom it originally rested. . . .
"In an action seeking to enforce § 332(c)(7)(B)(ii) against a state or local government, the ultimate burden of persuasion remains with the wireless facilities provider to demonstrate that the government unreasonably delayed action on an application. True, the wireless provider would likely be entitled to relief if it showed a state or local government’s failure to comply with the time frames and the state or local government failed to introduce evidence demonstrating that its delay was reasonable despite its failure to comply. But, if the state or local government introduced evidence demonstrating that its delay was reasonable, a court would need to weigh that evidence against the length of the government’s delay—as well as any other evidence of unreasonable delay that the wireless provider might submit—and determine whether the state or local government’s actions were unreasonable under the circumstances." 

 

Arlington, slip opinion at 42-43, citations omitted, emphasis in the original.

The opinion repeatedly notes the individualized nature of the inquiry which a court considering a shot clock case must make, and noted a wide range of factors which might be argued to justify a delay, such as "the applicant’s own failure to submit requested information, . . . [a city's] acting diligently in its consideration of an application, that the necessity of complying with applicable state or local environmental regulations occasioned the delay, or that the application was particularly complex in its nature or scope."  Id.  47.

This ruling on the effect of the shot clocks is less than the cellular industry had asked for - - it had asked the FCC to rule (among other things) that zoning for a tower was automatically granted if the shot clocks were exceeded.  However, courts often rule that if municipality violates the cell tower zoning provisions of the Communications Act then the zoning application will be granted as applied for.

Follow our cell tower zoning and leasing blog for updates.

Check out our model cell tower leases.

Court Ruling on Cell Phone Emissions Ordinance

In the latest round on cell phone and cell tower emissions, on October 27 a Federal Judge in San Francisco struck down in part and upheld in part a San Francisco ordinance requiring cell phone stores to warn customers about the issues and possible dangers from radio-frequency emissions from cell phones. Here is his opinion and order.

The judge did not find that the local ordinance conflicted with the FCC's rules limiting RF emissions (sometimes called "radiation") from cell phones so it could not be enjoined on that basis. Instead he found that the requirements for stores to put stickers on their displays and a poster on the wall warning about RF emissions issues unduly infringed on the stores' First Amendment (freedom of speech) rights. But he upheld a requirement that stores give all cell phone purchasers an information sheet on RF emissions, if the sheet developed by the City was revised in certain respects.

The order continues the controversy on this subject, and follows changes by the FCC in its RF emissions rules (likely in an attempt to bar the San Francisco ordinance) and a court decision early this year throwing out an RF emissions class action against cell phone companies.

Our paper on cell tower zoning provides more information on RF emissions. It includes suggestions on how in zoning hearings municipalities can respond to persons who want a cell tower's approval to be denied due to RF emissions concerns.

The initial impact of this decision is only for San Francisco, and other communities within the area covered by the Federal Court in question (Northern District of California).

The City has said it will appeal to the Ninth Circuit Court of Appeals, and that court's ruling would cover most western states (California, Hawaii, Alaska, Washington, Oregon, Montana, Nevada, Idaho, Arizona, Guam and Northern Marianas Islands).

But more generally, this court's ruling, and the eventual one of the Ninth Circuit, are likely to be persuasive with other courts across the country. This is because (1) these are the first decisions on what municipalities can do to have cell phone companies inform their customers about possible risks from cell phones and (2) other courts will likely view the lower court's opinion as thoughtful and well reasoned and thus go along with it.

For these reasons this decision/the Ninth Circuit's eventual decision give municipalities across the country (and their attorneys) guidance on what they can and cannot do and so may lead to more activity on this topic.

FCC Broadband Notice of Inquiry

In April, 2011 the FCC issued at Notice of Inquiry to obtain information about preempting state and local governments regarding (1) local franchising, permitting and fees for right of way usage, and (2) local zoning of cell towers, due to such items being claimed as barriers to the deployment of broadband service in the U.S.

We filed comments and reply comments jointly on behalf of the City of Detroit, Michigan Municipal League and Michigan Townships Association, which were joined by PROTEC.

Our comments supported national municipal groups who pointed out, among other things, that municipalities were not barriers, and that the FCC lacked the authority to act.

The comments focused on Michigan-specific items. On rights of way, the initial comments described Michigan's 2002 Metro Act in detail, how it had addressed claimed barriers or "problems" as to use of the rights of way, and how no one had provided any evidence of current right of way problems in Michigan, such that there was no basis for Federal action. In fact, they pointed out how providers called the Metro Act a model - - hardly evidence of problems in Michigan.

On cell towers, the reply comments showed how providers claimed "facts" about zoning problems in Michigan were largely or completely inaccurate, again such that was no factual basis for Federal action. For example providers claimed that municipalities used "bad consultants" or prohibited cell towers - - when in fact the municipalities who were named didn't use consultants at all, or allowed cell towers in all zoning districts! The comments also showed how providers' cell tower zoning problems are often self-inflicted, due to such things as incomplete or inaccurate zoning filings, demands for lease terms that deter property owners from leasing, and providers' failure to adequately investigate the sites they lease.

FCC Cell Tower Zoning "Shot Clock" Order

On November 18, 2009 the FCC issued an order setting "shot clocks" of 90 and 150 days for municipal action on cell tower zoning requests. Click here to view slides from our seminar presentation on the shot clock order.

Municipal groups then filed a Petition for Reconsideration of the order. We filed comments on January 22 on behalf of IMLA (International Municipal Lawyers Association) supporting the Petition for Reconsideration. Click here for the comments. The comments address one of the most common questions raised about the November 18 order - - for larger municipalities that allow for administrative appeals of zoning decisions, do the shot clocks apply only to a municipality's initial decision on a zoning request, or do they cover the time required for administrative appeals (such as from a Planning Commission decision to a Zoning Board of Appeals) as well?

The comments show that under the language of the Federal act, where Congress distinguished between initial and final decisions by municipalities on cell tower zoning matters, that the shot clocks cannot apply to (or must be tolled during) administrative appeals of cell tower zoning decisions and explained the reasons for this (e.g. - - whether there is an appeal is beyond a municipality's control). We asked the Commission to modify its order to comply with the statute, so that it expressly provides that the shot clocks only apply to initial zoning actions, and do not apply to (or are tolled during) the time period from an initial zoning decision until the completion of "final action" on an administrative appeal.

FCC Action Soon on PEG Channels

In a letter released October 6, Chairman Genachowski expressed favorable views on PEG channels, and said that he "hopes" the FCC will act "in the near future" on the City of Lansing's, Alliance for Community Media's, and Dearborn/Meridian Twp's PEG channel petitions to the FCC. As set forth below, these cases challenge AT&T's provision of PEG channels in an inferior manner, different from that of all other channels, and Comcast's movement of PEG channels to digital tiers. Many municipalities filed comments in these cases earlier this year, and we filed the petition on behalf of the City of Lansing, Michigan.

Comments Support PEG, Show 7% PEG Channels on AT&T Michigan Cable Systems

On March 9 the firm filed several sets of comments at the FCC in the PEG channel cases:

FCC Staff has indicated they will receive additional comments until March 24 - - particularly in light of the 7% figure for AT&T's Michigan cable systems, municipalities should file comments by then, if they have not done so already.

Your Comments Needed on FCC Case to Preserve PEG Channels

The FCC has opened a case on preserving PEG channels as they have always been provided - - and thwarting attempts by AT&T, Comcast and others to make these channels hard to find (via several Internet web page menus), hard to view (poor quality) and hard on the wallet (some people will have to pay to view them).

Comments from parties interested in the case are due March 9, 2009. It is important that the FCC get comments from many municipalities (and others who use PEG channels). Otherwise cable/AT&T will claim that the lack of such comments shows that keeping PEG channels viable is not important.

The FCC case combines the well-known case filed by Dearborn/Meridian Township about Comcast's providing PEG channels only in digital format on channels in the 900 range and a case filed last month by the City of Lansing and one filed by the Alliance for Community Media challenging AT&T's provision of PEG channels as Internet-style videos.

Municipalities should file comments with the FCC in order to preserve PEG channels. They can do so either of two ways:

  1. File comments on your own. For municipalities wishing to do so, here are:
  2. Join with other municipalities to have a law firm file for you jointly. Varnum is filing comments for a number of municipalities at $300 apiece. See sign-up form at the end of this memo on the FCC case.

Affiliated Services

Useful Links

Print Send