By: Andrew D.H. Rau
How fast does a local government have to move in processing a cell tower application? A new federal regulatory order attempts to speed the process.
On November 19, 2009 the Federal Communications Commission issued an order that will impact municipalities and cell tower providers across the country. Known as the “shot clock” order, the FCC action establishes time frames that it says are reasonable for municipalities to act on applications– 150 days for a new tower, and 90 days for certain additions to existing towers (known as “collocation”).
This FCC decision may create tension between federal timing expectations, and local zoning and planning law.
The FCC order is sure to be debated by local governments and the cell tower industry—especially since the FCC decision appears to attempt to administratively overrule a series of federal cases involving burdens of proof. Some federal court decisions have come down in favor of municipal control over cell tower siting (including a lead 3d Circuit case litigated by this writer, Omnipoint Communications Enterprises, L.P. v. Zoning Hearing Bd. of Easttown Township, (3d Cir. 2003). Since the FCC appears to have adopted standards inconsistent with federal case law in some circuits, the ongoing push and pull between the cell tower industry and local government may be heading back to the courts.
For more information on the new FCC order, and its impacts, please contact Andrew D.H. Rau.
