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Shot Clocks Partially Upheld

Cell Tower Blog Post
February 1, 2012

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.

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