Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review and to Preempt Under Section 253 State and Local Ordinances that Classify All Wireless Siting Proposals as Requiring a Variance
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FCC Declaratory Rulings › Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review and to Preempt Under Section 253 State and Local Ordinances that Classify All Wireless Siting Proposals as Requiring a Variance
Text
Federal Communications Commission FCC 09-99
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Petition for Declaratory Ruling to Clarify
Provisions of Section 332(c)(7)(B) to Ensure
Timely Siting Review and to Preempt Under
Section 253 State and Local Ordinances that
Classify All Wireless Siting Proposals as
Requiring a Variance
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WT Docket No. 08-165
DECLARATORY RULING
Adopted: November 18, 2009 Released: November 18, 2009
By the Commission: Chairman Genachowski and Commissioners Copps, McDowell, Clyburn, and Baker
issuing separate statements.
TABLE OF CONTENTS
Heading Paragraph #
I. INTRODUCTION.................................................................................................................................. 1
II. BACKGROUND.................................................................................................................................... 6
III. DISCUSSION....................................................................................................................................... 18
A. Authority to Interpret Section 332(c)(7) ........................................................................................ 20
B. Time for Acting on Facility Siting Applications............................................................................ 27
C. Prohibition of Service by a Single Provider................................................................................... 54
D. Ordinances Requiring Variances ................................................................................................... 66
E. Other Issues.................................................................................................................................... 68
IV. CONCLUSION .................................................................................................................................... 71
V
.......................................................................................... 66
E. Other Issues.................................................................................................................................... 68
IV. CONCLUSION .................................................................................................................................... 71
V. ORDERING CLAUSES....................................................................................................................... 72
APPENDIX - A
APPENDIX - B
I. INTRODUCTION
1. This Declaratory Ruling by the Commission promotes the deployment of broadband and
other wireless services by reducing delays in the construction and improvement of wireless networks.
Wireless operators must generally obtain State and local zoning approvals before building wireless towers
or attaching equipment to pre-existing structures. To encourage the expansion of wireless networks,
Congress has required these entities to act �within a reasonable period of time� on such requests.1 In
many cases, delays in the zoning process have hindered the deployment of new wireless infrastructure.2
1 47 U.S.C. � 332(c)(7)(B)(ii).
2 See para. 33, infra.
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Accordingly, today we define timeframes for State and local action on wireless facilities siting requests,
while also preserving the authority of States and localities to make the ultimate determination on local
zoning and land use policies.
2
yment of new wireless infrastructure.2
1 47 U.S.C. � 332(c)(7)(B)(ii).
2 See para. 33, infra.
Federal Communications Commission FCC 09-99
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Accordingly, today we define timeframes for State and local action on wireless facilities siting requests,
while also preserving the authority of States and localities to make the ultimate determination on local
zoning and land use policies.
2. On July 11, 2008, CTIA � The Wireless Association� (CTIA) filed a petition requesting
that the Commission issue a Declaratory Ruling clarifying provisions in Sections 253 and 332(c)(7) of the
Communications Act of 1934, as amended (Communications Act), regarding State and local review of
wireless facility siting applications (Petition).3 The Petition raises three issues: the timeframes in which
zoning authorities must act on siting requests for wireless towers or antenna sites, their power to restrict
competitive entry by multiple providers in a given area, and their ability to impose certain procedural
requirements on wireless service providers. In this Declaratory Ruling, we grant the Petition in part and
deny it in part to ensure that both localities and service providers may have an opportunity to make their
case in court, as contemplated by Section 332(c)(7) of the Act.4
3. Wireless services are central to the economic, civic, and social lives of over 270 million
Americans.5 Americans are now in the transition toward increasing reliance on their mobile devices for
broadband services, in addition to voice services.6 Without access to mobile wireless networks, however,
consumers cannot receive voice and broadband services from providers. Providers continue to build out
their networks to provide such services, and a crucial requirement for providing those services is
obtaining State and local governmental approvals for constructing towers or attaching transmitting
equipment to pre-existing structures
6 Without access to mobile wireless networks, however,
consumers cannot receive voice and broadband services from providers. Providers continue to build out
their networks to provide such services, and a crucial requirement for providing those services is
obtaining State and local governmental approvals for constructing towers or attaching transmitting
equipment to pre-existing structures. While Section 332(c)(7) of the Communications Act preserves the
authority of State and local governments with respect to such approvals, Section 332(c)(7) also limits
such State and local authority, thereby protecting core local and State government zoning functions while
fostering infrastructure build out.
4. The first part of this Declaratory Ruling concludes that we should define what is a
presumptively �reasonable time� beyond which inaction on a siting application constitutes a �failure to
act.� In defining this timeframe, we have taken several measures to ensure that the reasonableness of the
time for action �tak[es] into account the nature and scope� of the siting request.�7 In the event a State or
local government fails to act within the appropriate time period, the applicant is entitled to bring an action
in court under Section 332(c)(7)(B)(v) of the Communications Act, and the court will determine whether
the delay was in fact unreasonable under all the circumstances of the case. We conclude that the record
supports setting the following timeframes: (1) 90 days for the review of collocation applications; and (2)
150 days for the review of siting applications other than collocations.
5
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in court under Section 332(c)(7)(B)(v) of the Communications Act, and the court will determine whether
the delay was in fact unreasonable under all the circumstances of the case. We conclude that the record
supports setting the following timeframes: (1) 90 days for the review of collocation applications; and (2)
150 days for the review of siting applications other than collocations.
5. In the second part of this decision, we find, as the Petitioner urges, that it is a violation of
Section 332(c)(7)(B)(i)(II) of the Communications Act for a State or local government to deny a personal
3 In the Matter of Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B) to Ensure Timely
Siting Review and to Preempt under Section 253 State and Local Ordinances that Classify All Wireless Siting
Proposals as Requiring a Variance, WT Docket No. 08-165, Petition for Declaratory Ruling, filed July 11, 2008
(�Petition�).
4 47 U.S.C. � 332(c)(7).
5 Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993; Annual Report and
Analysis of Competitive Market Conditions With Respect to Mobile Wireless including Commercial Mobile
Services, WT Docket No. 09-66, Notice of Inquiry, 24 FCC Rcd 11357, 11358 � 2 (2009) (�Mobile Wireless
Competition NOI�); see also Fostering Innovation and Investment in the Wireless Communications Market, GN
Docket No. 09-157, A National Broadband Plan For Our Future, GN Docket No. 09-51, Notice of Inquiry, 24 FCC
Rcd 11322 � 1 (2009) (�Wireless communications is one of the most important sectors of our economy and one that
touches the lives of nearly all Americans.�).
6 Mobile Wireless Competition NOI, 24 FCC Rcd at 11358 � 2.
7 47 U.S.C. � 332(c)(7)(B)(ii).
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wireless service facility siting application because service is available from another provider
Rcd 11322 � 1 (2009) (�Wireless communications is one of the most important sectors of our economy and one that
touches the lives of nearly all Americans.�).
6 Mobile Wireless Competition NOI, 24 FCC Rcd at 11358 � 2.
7 47 U.S.C. � 332(c)(7)(B)(ii).
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wireless service facility siting application because service is available from another provider. Finally,
because we have not been presented with any evidence of a specific controversy, we deny the last part of
the Petitioner�s request, that we find that a State or local regulation that requires a variance or waiver for
every wireless facility siting violates Section 253(a) of the Communications Act.
II. BACKGROUND
6. The Statute. Section 332(c)(7) of the Act is titled �Preservation of Local Zoning
Authority,� and it addresses �the authority of a State or local government . . . over decisions regarding the
placement, construction, and modification of personal wireless service facilities.�8 Personal wireless
service facilities are defined in Section 332(c)(7)(C)(ii) as �facilities for the provision of personal wireless
services,�9 and personal wireless services are defined in Section 332(c)(7)(C)(i) as �commercial mobile
services, unlicensed wireless services, and common carrier wireless exchange access services.�10
7. Subsection (A) states that nothing in the Act limits such authority except as provided in
Section 332(c)(7).11 Subsection (B) identifies those limitations. Among other limitations, Clause (B)(i)
states that �[t]he regulation of the placement, construction, and modification of personal wireless service
facilities by any State or local government or instrumentality thereof . . . shall not prohibit or have the
effect of prohibiting the provision of personal wireless services.�12 Clause (B)(ii) requires the State or
local government to act on any request to place, construct, or modify personal wireless service facilities
�within a reasonable period of time . .
of personal wireless service
facilities by any State or local government or instrumentality thereof . . . shall not prohibit or have the
effect of prohibiting the provision of personal wireless services.�12 Clause (B)(ii) requires the State or
local government to act on any request to place, construct, or modify personal wireless service facilities
�within a reasonable period of time . . . taking into account the nature and scope of such request.�13
Clause (B)(v) permits a person adversely affected by any final action or failure to act by the State or local
government to commence an action in court within 30 days after such final action or failure to act.14
8. Section 253 of the Communications Act contains provisions removing barriers to entry in
the provision of telecommunications services.15 Specifically, Section 253(a) states: �No State or local
statute or regulation, or other State or local legal requirement, may prohibit or have the effect of
prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.�16
Section 253(d) directs the Commission to preempt any State or local statute, regulation, or legal
requirement that it determines, after notice and an opportunity for public comment, violates Section
253(a).17
9. The Petition. The Petition contends that the ability to deploy wireless systems depends
upon the availability of sites for the construction of towers and transmitters. Before a wireless service
provider can use a site for a tower or add an antenna to a tower or other structure, zoning approval is
generally required at the local level, and the local zoning approval process �can be extremely time-
8 47 U.S.C. � 332(c)(7)(A). Section 332(c)(7) appears in Appendix B in its entirety.
9 47 U.S.C. � 332(c)(7)(C)(ii).
10 47 U.S.C. � 332(c)(7)(C)(i)
mitters. Before a wireless service
provider can use a site for a tower or add an antenna to a tower or other structure, zoning approval is
generally required at the local level, and the local zoning approval process �can be extremely time-
8 47 U.S.C. � 332(c)(7)(A). Section 332(c)(7) appears in Appendix B in its entirety.
9 47 U.S.C. � 332(c)(7)(C)(ii).
10 47 U.S.C. � 332(c)(7)(C)(i). �Unlicensed wireless service� is defined as �the offering of telecommunications
services using duly authorized devices which do not require individual licenses, but does not mean the provision of
direct-to-home satellite services (as defined in section 303(v)).� 47 U.S.C. � 332(c)(7)(C)(iii).
11 47 U.S.C. � 332(c)(7)(A).
12 47 U.S.C. � 332(c)(7)(B)(i).
13 47 U.S.C. � 332(c)(7)(B)(ii).
14 47 U.S.C. � 332(c)(7)(B)(v). In the case of an action or failure to act that is impermissibly based on the
environmental effects of radio frequency emissions pursuant to Section 332(c)(7)(B)(iv), a person adversely affected
may also petition the Commission for relief. Id.
15 47 U.S.C. � 253.
16 47 U.S.C. � 253(a).
17 47 U.S.C. � 253(d).
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consuming.�18 The Petition asserts that timely deployment of wireless facilities is essential to achieving
the Communications Act�s public interest goals.19 According to the Petition, delays in the zoning process
for wireless facility siting applications are impeding those goals.20 The Petition asserts that Section
332(c)(7) of the Communications Act �created a framework in which states and localities could make
zoning decisions �subject to minimum federal standards � both substantive and procedural � as well as
federal judicial review.��21 The Petition claims that those zoning authorities that do not act in a timely
manner are frustrating the goals of the Communications Act.22
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rts that Section
332(c)(7) of the Communications Act �created a framework in which states and localities could make
zoning decisions �subject to minimum federal standards � both substantive and procedural � as well as
federal judicial review.��21 The Petition claims that those zoning authorities that do not act in a timely
manner are frustrating the goals of the Communications Act.22
10. Accordingly, the Petition first requests that the Commission eliminate an ambiguity that
CTIA contends currently exists in Section 332(c)(7)(B)(v) and clarify the time period in which a State or
local zoning authority will be deemed to have failed to act on a wireless facility siting application.23 The
Petition requests that the Commission �declare that the failure to render a final decision within 45 days of
a filing of a wireless siting application proposing to collocate on an existing facility constitutes a failure to
act for purposes of Section 332(c)(7)(B)(v).�24 Moreover, the Petition requests that the Commission
�declare that the failure to render a final decision on any other, non-collocation wireless siting application
within 75 days constitutes a failure to act for purposes of Section 332(c)(7)(B)(v).�25 Relatedly, the
Petition asks the Commission to find that, if a zoning authority fails to act within the above timeframes,
the application shall be �deemed granted.�26 Alternatively, the Petition requests that the Commission
establish a presumption under such circumstances that entitles an applicant to a court-ordered injunction
granting the application unless the zoning authority can justify the delay.27
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tion asks the Commission to find that, if a zoning authority fails to act within the above timeframes,
the application shall be �deemed granted.�26 Alternatively, the Petition requests that the Commission
establish a presumption under such circumstances that entitles an applicant to a court-ordered injunction
granting the application unless the zoning authority can justify the delay.27
11. Second, the Petition requests that the Commission clarify that Section 332(c)(7)(B)(i)(II),
which forbids State and local facility siting decisions that �prohibit or have the effect of prohibiting the
provision of personal wireless services,� bars zoning decisions that have the effect of preventing a
specific provider from providing service to a location.28 The Petitioner asserts that this provision prevents
a local zoning authority from denying an application based on one or more carriers already serving the
geographic area.29
12. Third, the Petition requests that the Commission preempt, under Section 253(a) of the
Communications Act,30 local ordinances and State laws that automatically require a wireless service
provider to obtain a variance before siting facilities.31
13. On August 14, 2008, the Wireless Telecommunications Bureau (WTB) requested
18 Petition at 4.
19 Id. at 8-13. The public interest goals identified by the Petition include nationwide wireless communications
services for all Americans, universal service, advanced telecommunications services, broadband deployment,
spectrum build-out, and public safety and E911.
20 Id. at 13.
21 Id. at 18 (citing City of Ranchos Palos Verdes v. Abrams, 544 U.S. 113, 128 (2005) (Breyer, J., concurring)).
22 Id. at 19.
23 Id. at 20-23.
24 Id. at 24.
25 Id. at 25-26.
26 Id. at 27-29.
27 Id. at 29-30.
28 Id. at 30-35 (citing 47 U.S.C. � 332(c)(7)(B)(i)(II)).
29 Id. at 31-34.
30 47 U.S.C. � 253(a).
31 Petition at 35-37
pectrum build-out, and public safety and E911.
20 Id. at 13.
21 Id. at 18 (citing City of Ranchos Palos Verdes v. Abrams, 544 U.S. 113, 128 (2005) (Breyer, J., concurring)).
22 Id. at 19.
23 Id. at 20-23.
24 Id. at 24.
25 Id. at 25-26.
26 Id. at 27-29.
27 Id. at 29-30.
28 Id. at 30-35 (citing 47 U.S.C. � 332(c)(7)(B)(i)(II)).
29 Id. at 31-34.
30 47 U.S.C. � 253(a).
31 Petition at 35-37.
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comment on the Petition.32 After a brief extension, comments were due on September 29, 2008, and
replies were due on October 14, 2008.33 Hundreds of comments and replies were filed in response to the
Public Notice, including comments from wireless service providers, tower owners, local and State
government entities, and airport authorities.34
14. Industry commenters generally support the Petition in all respects.35 They argue that the
Commission has the authority to interpret Section 332(c)(7)36 and that the Commission�s definition of the
reasonable timeframes for State and local governments to process facility siting applications will promote
the deployment of advanced networks, including broadband.37 Wireless providers assert that without
defined timeframes for State and local governments to process personal wireless service facility siting
applications, they face undue delay in some localities.38 They further argue that timeframes are necessary
so that they know when they should seek redress from courts for State and local governments� failure to
act in a timely manner.39 They claim that the Petitioner�s proposed timetables are fair and should be used
to define the �reasonable period of time� for State and local governments to process facility siting
applications in Section 332(c)(7)(B)(ii).40
15. State and local governments, as well as airport authorities, oppose the Petition
from courts for State and local governments� failure to
act in a timely manner.39 They claim that the Petitioner�s proposed timetables are fair and should be used
to define the �reasonable period of time� for State and local governments to process facility siting
applications in Section 332(c)(7)(B)(ii).40
15. State and local governments, as well as airport authorities, oppose the Petition. As an
initial matter, they contend that Congress gave the courts, rather than the Commission, the authority to
interpret Section 332(c)(7) of the Communications Act, and they cite statutory text and legislative history
in support of their contention.41 Thus, they contend that the Commission lacks the authority to determine
what is a �reasonable period of time� and when a �failure to act� or a �prohibition of service� has
occurred.42 State and local government commenters further argue that both �reasonable period of time�
and �failure to act� have clear meanings, and that Congress deliberately used these general terms to
32 Wireless Telecommunications Bureau Seeks Comment On Petition For Declaratory Ruling By CTIA � The
Wireless Association To Clarify Provisions Of Section 332(c)(7)(B) To Ensure Timely Siting Review And To
Preempt Under Section 253 State And Local Ordinances That Classify All Wireless Siting Proposals As Requiring
A Variance, WT Docket No. 08-165, Public Notice, 23 FCC Rcd 12198 (WTB 2008).
33 Comments originally were due on September 15, 2008, and replies were due on September 30, 2008. Several
interested parties requested additional time to submit comments and replies
iting Review And To
Preempt Under Section 253 State And Local Ordinances That Classify All Wireless Siting Proposals As Requiring
A Variance, WT Docket No. 08-165, Public Notice, 23 FCC Rcd 12198 (WTB 2008).
33 Comments originally were due on September 15, 2008, and replies were due on September 30, 2008. Several
interested parties requested additional time to submit comments and replies. While the WTB found that the requests
had not established good cause for the full extensions desired, the WTB granted a short extension in order to permit
interested parties additional time �to file more thorough and thoughtful comments, which should lead to a more
complete and better-informed record.� Wireless Telecommunications Bureau Grants Extension Of Time To File
Comments On CTIA�s Petition For Declaratory Ruling Regarding Wireless Facilities Siting, WT Docket No. 08-
165, Public Notice, 23 FCC Rcd 13386 (WTB 2008).
34 See generally WT Docket No. 08-165. The major commenters and the short forms by which they are cited are
listed in Appendix A. Brief comments are not listed but are considered in this Declaratory Ruling.
35 See, e.g., Verizon Wireless Comments; AT&T Comments; Rural Cellular Association Comments; PCIA � The
Wireless Infrastructure Association Comments.
36 See, e.g., Sprint Nextel Comments at 8; T-Mobile Comments at 12; MetroPCS Comments at 5-6.
37 See, e.g., MetroPCS Comments at 6-7; NextG Networks Comments at 4.
38 See, e.g., Sprint Nextel Comments at 4-5; CalWA Comments at 2-3; T-Mobile Comments at 6.
39 See, e.g., CalWA Comments at 4; Rural Cellular Association Comments at 4; T-Mobile Comments at 9-10.
40 See, e.g., Rural Cellular Association Comments at 4-5; T-Mobile Comments at 11-12; MetroPCS Comments at 7-
8.
41 See, e.g., NATOA et al. Comments at 1-5 & 9-11; California Cities Comments at 18-21; Fairfax County, VA
Comments at 14-15
4-5; CalWA Comments at 2-3; T-Mobile Comments at 6.
39 See, e.g., CalWA Comments at 4; Rural Cellular Association Comments at 4; T-Mobile Comments at 9-10.
40 See, e.g., Rural Cellular Association Comments at 4-5; T-Mobile Comments at 11-12; MetroPCS Comments at 7-
8.
41 See, e.g., NATOA et al. Comments at 1-5 & 9-11; California Cities Comments at 18-21; Fairfax County, VA
Comments at 14-15.
42 See, e.g., Fairfax County, VA Comments at 14-15; California Cities Comments at 18-20; City of Dublin, OH
Comments at 2-3; Coalition for Local Zoning Authority Comments at 10-11; NATOA et al. Reply Comments at 7-9.
Federal Communications Commission FCC 09-99
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preserve State and local government flexibility to process applications within the typical timeframes
based on the individual circumstances of each case.43 These commenters also oppose either deeming an
application granted in the event of a zoning authority�s �failure to act� or establishing a presumption
entitling an applicant to a court-ordered injunction granting the application.44
16. The Petitioner requests that the Commission apply Section 253(a) of the Communications
Act to preempt local ordinances and State laws that automatically require a wireless service provider to
obtain a variance before siting facilities. In addressing this request, State and local government
commenters argue that Section 253(a) cannot be applied to such ordinances because under Section
332(c)(7)(A), �[n]othing in [the Communications] Act� outside of Section 332(c)(7) shall limit State or
local authority over personal wireless service facilities siting decisions.45 The EMR Policy Institute
(EMRPI) filed a Comment and Cross-Petition that, inter alia, seeks a declaratory ruling relating to the
Commission�s regulations regarding exposure to radio frequency emissions.46
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332(c)(7)(A), �[n]othing in [the Communications] Act� outside of Section 332(c)(7) shall limit State or
local authority over personal wireless service facilities siting decisions.45 The EMR Policy Institute
(EMRPI) filed a Comment and Cross-Petition that, inter alia, seeks a declaratory ruling relating to the
Commission�s regulations regarding exposure to radio frequency emissions.46
17. Since the filing of the Petition, Congress passed the American Recovery and
Reinvestment Act of 2009 (Recovery Act).47 The Recovery Act directs the Commission to create a
national broadband plan by February 17, 2010, that seeks to ensure that every American has access to
broadband capability and establishes clear benchmarks for meeting that goal.48 To this end, on April 8,
2009, the Commission initiated a Notice of Inquiry (NOI) seeking comment on the best approach to
developing this Plan, the interpretation of key statutory terms, and a number of specific policy goals.49
Some commenters that filed in response to the NOI also filed their comments in the instant docket,
arguing that the grant of the Petition will promote the availability of wireless broadband services.50 The
Petitioner particularly notes that the delays experienced by wireless providers for wireless service facility
siting applications are frustrating the deployment of wireless broadband services to millions of
Americans.51
III. DISCUSSION
18. Under Section 1.2 of the rules, the Commission �may . . . issue a declaratory ruling
terminating a controversy or removing uncertainty.�52 The Commission has broad discretion whether to
43 See, e.g., NATOA et al. Comments at 12-14; City of Philadelphia Comments at 3-4; Florida Cities Comments at
2-4, 15-20; City of Dublin, OH Comments at 2-3; California Cities Comments at 13-16.
44 See, e.g., California Cities Comments at 17-21; NATOA et al. Comments at 15-18; SCAN NATOA Comments at
11-12.
45 See, e.g., NATOA et al
ty.�52 The Commission has broad discretion whether to
43 See, e.g., NATOA et al. Comments at 12-14; City of Philadelphia Comments at 3-4; Florida Cities Comments at
2-4, 15-20; City of Dublin, OH Comments at 2-3; California Cities Comments at 13-16.
44 See, e.g., California Cities Comments at 17-21; NATOA et al. Comments at 15-18; SCAN NATOA Comments at
11-12.
45 See, e.g., NATOA et al. Comments at 7; California Cities Comments at 23-24; Fairfax County, VA Comments at
3; Michigan Municipalities Comments at 2; N.C. Assoc. of County Commissioners Comments at 1-2.
46 See EMRPI Comments and Cross-Petition.
47 American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, 123 Stat. 115 (2009) (Recovery Act).
48 Recovery Act � 6001(k).
49 See generally A National Broadband Plan for Our Future, GN Docket No. 09-51, Notice of Inquiry, 24 FCC Rcd
4342 (2009).
50 See CTIA Comments, GN Docket No. 09-51, at 15-19 (filed June 8, 2009); PCIA and The DAS Forum
Comments, GN Docket 09-51, at 5-6 (filed June 8, 2009); CTIA Reply Comments, GN Docket No. 09-51, at 13-15
(filed July 21, 2009); Google Inc. Reply Comments, GN Docket 09-51, at 40-41 (filed July 21, 2009).
51 CTIA Comments, GN Docket No. 09-51, at 18 (filed June 8, 2009).
52 47 C.F.R. � 1.2.
Federal Communications Commission FCC 09-99
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issue such a ruling.53
19. Below, we address the three issues raised in CTIA�s Petition. On the first issue, we
conclude that we should define what constitutes a presumptively �reasonable period of time� beyond
which inaction on a personal wireless service facility siting application will be deemed a �failure to act.�
We then determine that in the event a State or local government fails to act within the appropriate time
period, the applicant is entitled to bring an action in court under Section 332(c)(7)(B)(v)
at we should define what constitutes a presumptively �reasonable period of time� beyond
which inaction on a personal wireless service facility siting application will be deemed a �failure to act.�
We then determine that in the event a State or local government fails to act within the appropriate time
period, the applicant is entitled to bring an action in court under Section 332(c)(7)(B)(v). At that point,
the State or local government will have the opportunity to present to the court arguments to show that
additional time would be reasonable, given the nature and scope of the siting application at issue. We
next conclude that the record supports setting the time limits at 90 days for State and local governments to
process collocation applications, and 150 days for them to process applications other than collocations.
On the second issue raised by the Petition, we find that it is a violation of Section 332(c)(7)(B)(i)(II) for a
State or local government to deny a personal wireless service facility siting application solely because that
service is available from another provider. On the third issue, because the Petitioner has not presented us
with any evidence of a specific controversy, we deny its request that we find that a State or local
regulation that explicitly or effectively requires a variance or waiver for every wireless facility siting
violates Section 253(a). Finally, we address other issues raised in the record, including dismissal of the
EMRPI Cross-Petition.
A. Authority to Interpret Section 332(c)(7)
20. Background. The Petition claims that the Commission has the authority to interpret
ambiguous provisions in Section 332(c)(7) of the Communications Act by means of a declaratory ruling.54
Wireless providers support the Petition�s assertion, arguing that the courts have upheld similar
interpretive authority in other contexts. These commenters rely in particular on Alliance for Community
Media v
round. The Petition claims that the Commission has the authority to interpret
ambiguous provisions in Section 332(c)(7) of the Communications Act by means of a declaratory ruling.54
Wireless providers support the Petition�s assertion, arguing that the courts have upheld similar
interpretive authority in other contexts. These commenters rely in particular on Alliance for Community
Media v. FCC,55 in which the Sixth Circuit upheld the Commission�s establishment of a timeframe for
local authorities to process cable franchise applications.56
21. State and local government commenters disagree, arguing that the statutory text and the
legislative history evince congressional intent to deny the Commission such authority.57 Specifically,
State and local government commenters argue that in expressly preserving State and local government
authority over personal wireless service facility siting decisions, subject only to the specific limitations
stated in Section 332(c)(7), Congress withheld preemptive authority from the Commission.58
Accordingly, they argue that the Commission does not have the authority to interpret Section 332(c)(7).
They contend that the legislative history of Section 332(c)(7) further demonstrates this intent, as Congress
indicated that �any pending rulemaking concerning the preemption of local zoning authority over the
placement, construction, or modification of CM[R]S facilities should be terminated.�59 Other State and
local government commenters assert that because the courts have exclusive jurisdiction over all disputes
53 See Yale Broadcasting Co. v. FCC, 478 F.2d 594, 602 (D.C. Cir. 1973), cert. denied, 414 U.S. 914 (1973);
Telephone Number Portability; BellSouth Corporation Petition for Declaratory Ruling and/or Waiver, CC Docket
No. 95-116, Order, 19 FCC Rcd 6800, 6810 � 20 (2004).
54 Petition at 20-24.
55 529 F.3d 763 (6th Cir. 2008), cert. denied, 129 S.Ct. 2821 (2009) (�Alliance for Community Media�)
53 See Yale Broadcasting Co. v. FCC, 478 F.2d 594, 602 (D.C. Cir. 1973), cert. denied, 414 U.S. 914 (1973);
Telephone Number Portability; BellSouth Corporation Petition for Declaratory Ruling and/or Waiver, CC Docket
No. 95-116, Order, 19 FCC Rcd 6800, 6810 � 20 (2004).
54 Petition at 20-24.
55 529 F.3d 763 (6th Cir. 2008), cert. denied, 129 S.Ct. 2821 (2009) (�Alliance for Community Media�).
56 See, e.g., Sprint Nextel Comments at 8; T-Mobile Comments at 12; MetroPCS Comments at 5-6.
57 See, e.g., NATOA et al. Comments at 1-5 & 9-11; California Cities Comments at 18-21; Fairfax County, VA
Comments at 14-15.
58 See, e.g., NATOA et al. Comments at 1-5.
59 Id. at 9-10 (citing H.R. Conf. Rep. No. 104-458, at 208) (NATOA emphasis removed). NATOA et al. argues that
Congress did not mean to address only those rulemakings in play in 1996, but any future rulemakings on personal
wireless service facility issues. Id. at 10.
Federal Communications Commission FCC 09-99
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arising under Section 332(c)(7) (except for those relating to RF emissions), Congress did not contemplate
any role for the Commission in the State and local zoning approval process. Thus, they argue, the
Commission lacks the authority to determine what constitutes a �reasonable period of time,� �failure to
act,� or �prohibiti[on of] the provision of personal wireless services.�60
22. In its Reply, the Petitioner disputes the claim that Congress �left in place the complete
autonomy of States and localities with respect to zoning.�61 The Petitioner argues that �it is Congress that
expressly inserted such federal concerns into the tower siting process, limiting traditional local authority,
when it promulgated Section 332(c)(7)� in order to reduce delays and impediments at the State and local
level.62 Accordingly, the Petitioner argues that the Commission�s interpretation of Section 332(c)(7) does
not contravene that section�s reservation to State and local governments of authority to review personal
wireless serv
he tower siting process, limiting traditional local authority,
when it promulgated Section 332(c)(7)� in order to reduce delays and impediments at the State and local
level.62 Accordingly, the Petitioner argues that the Commission�s interpretation of Section 332(c)(7) does
not contravene that section�s reservation to State and local governments of authority to review personal
wireless service facility siting applications to the extent not limited by Section 332(c)(7).63 Moreover, the
Petitioner counters in its Reply that the Petition is not a challenge to a specific siting decision; thus,
Section 332(c)(7)(B)(v)�s requirement that all controversies regarding siting decisions (other than those
involving RF emissions) should be heard in the courts does not apply here.64 The Petitioner also asserts
that the Sixth Circuit�s decision in Alliance for Community Media v. FCC rejected the argument that the
Commission�s implementation of a timeframe in the local franchising regime �improperly intruded on
decisions left by Congress to the courts.�65
23. Discussion. We agree with the Petitioner that the Commission has the authority to
interpret Section 332(c)(7). Congress delegated to the Commission the responsibility for administering
the Communications Act. Section 1 of the Act directs the Commission to �execute and enforce the
provisions of this Act� in order to, inter alia, regulate and promote communication �by wire and radio�
on a nationwide basis.66 Moreover, Section 201(b) of the Act authorizes the Commission �to prescribe
such rules and regulations as may be necessary in the public interest to carry out the provisions of this
Act.�67 Further, Section 303(r) of the Communications Act states that �the Commission from time to
time, as public convenience, interest or necessity requires shall � [m]ake such rules and regulations and
prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the
provisions of this Act . .
public interest to carry out the provisions of this
Act.�67 Further, Section 303(r) of the Communications Act states that �the Commission from time to
time, as public convenience, interest or necessity requires shall � [m]ake such rules and regulations and
prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the
provisions of this Act . . . .�68 Finally, Section 4(i) states that the Commission �may perform any and all
acts, make such rules and regulations, and issue such orders, not inconsistent with this Act, as may be
necessary in the execution of its functions.�69 These grants of authority necessarily include Title III of the
Communications Act in general, and Section 332(c)(7) in particular.
24. This finding is consistent with our decision in the Local Franchising Order, in which we
60 See, e.g., Fairfax County, VA Comments at 14-15; California Cities Comments at 18-20; City of Dublin, OH
Comments at 2; NATOA et al. Reply Comments at 7-9; Coalition for Local Zoning Authority Comments at 10-11.
61 CTIA Reply Comments at 12.
62 Id. at 12-13 (emphasis in original).
63 Id. The Petitioner also contends that it does not request that the Commission �condition or limit the scope of a
zoning authority�s review of a tower siting application,� or that the Commission �preempt a zoning authority�s
review of an application.� Id. at 2.
64 Id. at 21-22.
65 Id. at 22.
66 47 U.S.C. � 151.
67 47 U.S.C. � 201(b). See also National Cable & Telecomm. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 980
t it does not request that the Commission �condition or limit the scope of a
zoning authority�s review of a tower siting application,� or that the Commission �preempt a zoning authority�s
review of an application.� Id. at 2.
64 Id. at 21-22.
65 Id. at 22.
66 47 U.S.C. � 151.
67 47 U.S.C. � 201(b). See also National Cable & Telecomm. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 980
(2005) (�Congress has delegated to the Commission the authority to �execute and enforce� the Communications Act,
�151, and to �prescribe such rules and regulations as may be necessary in the public interest to carry out the
provisions� of the Act, �201(b).�).
68 47 U.S.C. � 303(r).
69 47 U.S.C. � 154(i).
Federal Communications Commission FCC 09-99
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held that the Commission has clear authority to interpret what it means for a local government to
�unreasonably refuse to award� a franchise to a cable operator in Section 621(a)(1) of the Act.70 That
decision has been upheld by the U.S. Court of Appeals for the Sixth Circuit in Alliance for Community
Media v. FCC. In that case, the court found that the Supreme Court�s precedent in AT&T Corp. v. Iowa
Utilities Board71 controlled, and it held that the Commission �possesses clear jurisdictional authority to
formulate rules and regulations interpreting the contours of section 621(a)(1)� pursuant to its authority
under Section 201(b) to carry out the provisions of the Communications Act.72 The Court held that �the
statutory silence in section 621(a)(1) regarding the agency�s rulemaking power does not divest the agency
of its express authority to prescribe rules interpreting that provision.�73 The same holds true here.
Section 332(c)(7) falls within the Act; accordingly, the Commission has the authority to interpret it.
25
carry out the provisions of the Communications Act.72 The Court held that �the
statutory silence in section 621(a)(1) regarding the agency�s rulemaking power does not divest the agency
of its express authority to prescribe rules interpreting that provision.�73 The same holds true here.
Section 332(c)(7) falls within the Act; accordingly, the Commission has the authority to interpret it.
25. We disagree with State and local government commenters that our interpreting the
limitations that Congress imposed on State and local governments in Section 332(c)(7) is the same as
imposing new limitations on State and local governments. Our interpretation of Section 332(c)(7) is not
the imposition of new limitations, as it merely interprets the limits Congress already imposed on State and
local governments. Moreover, the legislative history does not establish that the Commission is prohibited
from interpreting the provisions of Section 332(c)(7). The Conference Report states that �[a]ny pending
Commission rulemaking concerning the preemption of local zoning authority over the placement,
construction or modification of CM[R]S facilities should be terminated.�74 We read the legislative history
as intending to preclude the Commission from maintaining a rulemaking proceeding to impose additional
limitations on the personal wireless service facility siting process beyond those stated in Section
332(c)(7). Our actions herein will not preempt State or local governments from reviewing applications
for personal wireless service facilities placement, construction, or modification. State and local
governments will continue to decide the outcome of personal wireless service facility siting applications
pursuant to the authority Congress reserved to them in Section 332(c)(7)(A)
Section
332(c)(7). Our actions herein will not preempt State or local governments from reviewing applications
for personal wireless service facilities placement, construction, or modification. State and local
governments will continue to decide the outcome of personal wireless service facility siting applications
pursuant to the authority Congress reserved to them in Section 332(c)(7)(A). Under Section
332(c)(7)(B)(iii), they may deny such applications if the denial is �supported by substantial evidence
contained in a written record.�75 However, State and local governments must act upon personal wireless
service facility siting applications �within a reasonable period of time� as defined herein, and must not
prohibit one carrier�s provision of service based on the availability of service from another carrier, or
applicants may commence an action in a court of competent jurisdiction pursuant to Section
337(c)(7)(B)(v).
26. Moreover, we find that Section 332(c)(7)(B)(v) does not limit our authority to interpret
Section 332(c)(7). Section 332(c)(7)(B)(v) states that �[a]ny person adversely affected by any final action
or failure to act by a State or local government . . . may . . . commence an action in any court of
70 Implementation of Section 621(a)(1) of the Cable Communications Policy Act of 1984 as amended by the Cable
Television Consumer Protection and Competition Act of 1992, MB Docket No
ection 332(c)(7). Section 332(c)(7)(B)(v) states that �[a]ny person adversely affected by any final action
or failure to act by a State or local government . . . may . . . commence an action in any court of
70 Implementation of Section 621(a)(1) of the Cable Communications Policy Act of 1984 as amended by the Cable
Television Consumer Protection and Competition Act of 1992, MB Docket No. 05-311, Report and Order and
Further Notice of Proposed Rulemaking, 22 FCC Rcd 5101, 5128 � 54 (2007) (�Local Franchising Order�)
(interpreting Section 621(a)(1) of the Act, which prohibits local franchising authorities from �unreasonably
refus[ing] to award� competitive cable franchises, and holding that if a local franchising authority fails to act on an
application for a local franchise within 90 days for an applicant that already has access to rights-of-way or 6 months
for all other applicants, then an interim franchise will be deemed granted until the franchising authority takes action
on the application).
71 525 U.S. 366 (1999) (finding, inter alia, that the Commission has the authority to carry out provisions of the Act,
including the local competition provisions added by the Telecommunications Act of 1996).
72 529 F.3d at 773-74.
73 Id. at 774.
74 H.R. Conf. Rep. No. 104-458, 104th Congress, 2nd Sess. 208 (1996).
75 47 U.S.C. � 332(c)(7)(B)(iii).
Federal Communications Commission FCC 09-99
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competent jurisdiction.�76 State and local governments argue that Congress gave the courts, not the
Commission, exclusive jurisdiction to interpret and enforce Section 332(c)(7). This is the same argument
that we rejected in the Local Franchising Order
Rep. No. 104-458, 104th Congress, 2nd Sess. 208 (1996).
75 47 U.S.C. � 332(c)(7)(B)(iii).
Federal Communications Commission FCC 09-99
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competent jurisdiction.�76 State and local governments argue that Congress gave the courts, not the
Commission, exclusive jurisdiction to interpret and enforce Section 332(c)(7). This is the same argument
that we rejected in the Local Franchising Order. In that decision, we held that �[t]he mere existence of a
judicial review provision in the Communications Act does not, by itself, strip the Commission of its
otherwise undeniable rulemaking authority.�77 The Sixth Circuit agreed, holding that �the availability of
a judicial remedy for unreasonable denials of competitive franchise applications does not foreclose the
agency�s rulemaking authority over section 621(a)(1).�78 Accordingly, the fact that Congress provided
for judicial review to remedy a violation of Section 332(c)(7) does not divest the Commission of its
authority to interpret the provision or to adopt and enforce rules implementing Section 332(c)(7).
B. Time for Acting on Facility Siting Applications
27. Background. Section 332(c)(7)(B)(ii) of the Communications Act states that State or
local governments must act on requests for personal wireless service facility sitings �within a reasonable
period of time.�79 Section 332(c)(7)(B)(v) further provides that �[a]ny person adversely affected by any
final action or failure to act�80 by a State or local government on a personal wireless service facility siting
application �may, within 30 days after such action or failure to act, commence an action in any court of
competent jurisdiction.�81 The Petition asserts that the Commission has the authority to and should define
the timeframes by which State and local governments must process personal wireless service facility
siting applications.82 The Petition claims that in the absence of timeframes, it is unclear when a State or
local government has failed to act under the statute
n action in any court of
competent jurisdiction.�81 The Petition asserts that the Commission has the authority to and should define
the timeframes by which State and local governments must process personal wireless service facility
siting applications.82 The Petition claims that in the absence of timeframes, it is unclear when a State or
local government has failed to act under the statute. Thus, an aggrieved party wishing to challenge a State
or local government�s failure to act could miss the 30-day statute of limitations through no fault of its
own.83 The Petition proposes that the Commission declare that a State or local government has failed to
act if it does not render a final decision on a collocation application within 45 days or on any other
application within 75 days. The Petition asserts that the Commission should declare that, if a zoning
authority fails to act within the prescribed timeframes, the application shall be �deemed granted.�84 In the
absence of such relief, the Petition argues, the lengthy litigation process would deprive the applicant of its
ability to construct within a reasonable time, as provided by the statute.85 Alternatively, the Petition
requests that the Commission establish a presumption that entitles an applicant to a court-ordered
injunction granting the application, unless the local zoning authority can demonstrate that the delay was
reasonable.86
28. State and local government commenters assert that both �reasonable period of time� and
�failure to act� are clear terms and that Congress used these general terms because it wanted State and
local governments to process applications in the timeframes in which land use applications are typically
processed. The Act and its legislative history, they contend, establish that the courts, not the
76 47 U.S.C. � 332(c)(7)(B)(v).
77Local Franchising Order, 22 FCC Rcd at 5129 � 56 (2007)
e to act� are clear terms and that Congress used these general terms because it wanted State and
local governments to process applications in the timeframes in which land use applications are typically
processed. The Act and its legislative history, they contend, establish that the courts, not the
76 47 U.S.C. � 332(c)(7)(B)(v).
77Local Franchising Order, 22 FCC Rcd at 5129 � 56 (2007).
78 Alliance for Community Media, 529 F.3d at 775 (finding that this conclusion was supported by the Supreme
Court�s decision in AT&T Corp. v. Iowa Util. Bd. upholding the Commission�s authority to issue rules governing the
States� resolution of interconnection arbitrations).
79 47 U.S.C. � 332(c)(7)(B)(ii).
80 47 U.S.C. � 332(c)(7)(B)(v).
81 Id.
82 Petition at 20-24.
83 Id. at 20.
84 Id. at 27-28.
85 Id. at 28-29.
86 See id. at 29-30.
Federal Communications Commission FCC 09-99
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Commission, should determine whether such processing is reasonable based on the individual facts in
each case.87 They argue that some applications require greater time to consider than others, and that
sufficient time is needed to compile a written record as required by Section 332(c)(7)(B)(iii)88 and to seek
collaborative solutions with wireless providers and the surrounding communities impacted by the
proposed wireless service facilities.89 Finally, they assert that rigid timeframes do not account for time to
amend applications that are often incomplete when submitted by wireless providers, and may provide
incentive for wireless providers to submit incomplete applications and to delay correcting them until the
application is �deemed granted� (as proposed by the Petitioner).90
29
the
proposed wireless service facilities.89 Finally, they assert that rigid timeframes do not account for time to
amend applications that are often incomplete when submitted by wireless providers, and may provide
incentive for wireless providers to submit incomplete applications and to delay correcting them until the
application is �deemed granted� (as proposed by the Petitioner).90
29. Wireless providers argue that the Commission has the authority to define �reasonable
period of time� and �failure to act,� and that such definition is necessary because some State and local
governments are unreasonably delaying action on their applications.91 They further contend that without
defined timeframes, it is unclear when governments have failed to act and when they may go to court for
redress.92 They claim that the Petitioner�s proposed timetables are reasonable.93
30. State and local government commenters also urge the Commission to reject both the
�deemed granted� proposal and the alternative presumption in favor of injunctive relief proposed in the
Petition.94 They argue that Congress directed applicants aggrieved by a failure to act to seek a remedy in
court, and assigned to the courts the task of deciding the appropriate remedy.95 Moreover, they assert,
under the Petitioner�s proposed regime, local governments would have no say over siting of facilities once
an application is deemed granted, even where safety factors justify modification or rejection of the
facility.96
31. Sprint Nextel proposes that the Commission adopt the alternative remedy in the Petition
he courts the task of deciding the appropriate remedy.95 Moreover, they assert,
under the Petitioner�s proposed regime, local governments would have no say over siting of facilities once
an application is deemed granted, even where safety factors justify modification or rejection of the
facility.96
31. Sprint Nextel proposes that the Commission adopt the alternative remedy in the Petition.
It argues that a presumptive grant is consistent with the Commission�s approach in the Local Franchising
Order, in which the Commission did not deem a franchise application granted, but provided for an
interim authorization, upon the local government�s failure to act upon an application in a timely fashion.97
The Petitioner argues in its Reply that because a State or local authority�s failure to act within a
reasonable time is specifically declared unlawful under the statute, an automatic grant is appropriate.98
32. Discussion. The evidence in the record demonstrates that personal wireless service
providers have often faced lengthy and unreasonable delays in the consideration of their facility siting
applications, and that the persistence of such delays is impeding the deployment of advanced and
87 See, e.g., NATOA et al. Comments at 12-14; City of Philadelphia Comments at 3-4; Florida Cities Comments at
2-4; City of Dublin, OH Comments at 2-3.
88 47 U.S.C. � 332(c)(7)(B)(iii) (denial of a personal wireless service facility siting application must be rendered �in
writing and supported by substantial evidence contained in a written record�).
89 See, e.g., California Cities Comments at 13-16; Florida Cities Comments at 15-20.
90 See, e.g., Fairfax County, VA Comments at 13; City of Bellingham, WA Comments at 1-2; Michigan
Municipalities Comments at 19-20.
91 See, e.g., Sprint Nextel Comments at 4-5; CalWA Comments at 2-3; T-Mobile Comments at 6-9.
92 See, e.g., CalWA Comments at 4; Rural Cellular Association Comments at 4-5; T-Mobile Comments at 9-10
rnia Cities Comments at 13-16; Florida Cities Comments at 15-20.
90 See, e.g., Fairfax County, VA Comments at 13; City of Bellingham, WA Comments at 1-2; Michigan
Municipalities Comments at 19-20.
91 See, e.g., Sprint Nextel Comments at 4-5; CalWA Comments at 2-3; T-Mobile Comments at 6-9.
92 See, e.g., CalWA Comments at 4; Rural Cellular Association Comments at 4-5; T-Mobile Comments at 9-10.
93 See, e.g., Rural Cellular Association Comments at 6; T-Mobile Comments at 11-12; MetroPCS Comments at 7-8.
94 See, e.g., California Cities Comments at 17-21; SCAN NATOA Comments at 10-12.
95 See, e.g., Florida Cities Comments at 6; University of Michigan Comments at 3-4.
96 See, e.g., Stokes County, N.C. Comments at 2.
97 Sprint Nextel Comments at 9-11 (citing Local Franchising Order, 22 FCC Rcd 5101, 5139 (2007)).
98 CTIA Reply Comments at 26.
Federal Communications Commission FCC 09-99
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emergency services. To provide guidance, remove uncertainty and encourage the expeditious deployment
of wireless broadband services, we therefore determine that it is in the public interest to define the time
period after which an aggrieved party can seek judicial redress for a State or local government�s inaction
on a personal wireless service facility siting application. Specifically, we find that a �reasonable period of
time� is, presumptively, 90 days to process personal wireless service facility siting applications requesting
collocations, and, also presumptively, 150 days to process all other applications. Accordingly, if State or
local governments do not act upon applications within those timeframes, then a �failure to act� has
occurred and personal wireless service providers may seek redress in a court of competent jurisdiction
within 30 days, as provided in Section 332(c)(7)(B)(v). The State or local government, however, will
have the opportunity to rebut the presumption of reasonableness.99
33. Need for Action
local governments do not act upon applications within those timeframes, then a �failure to act� has
occurred and personal wireless service providers may seek redress in a court of competent jurisdiction
within 30 days, as provided in Section 332(c)(7)(B)(v). The State or local government, however, will
have the opportunity to rebut the presumption of reasonableness.99
33. Need for Action. Initially, we find that the record shows that unreasonable delays are
occurring in a significant number of cases. The Petition states that based on data the Petitioner compiled
from its members, there were then more than 3,300 pending personal wireless service facility siting
applications before local jurisdictions.100 �Of those, approximately 760 [were] pending final action for
more than one year. More than 180 such applications [were] awaiting final action for more than 3
years.�101 Moreover, almost 350 of the 760 applications that were pending for more than one year were
requests to collocate on existing towers, and 135 of those collocation applications were pending for more
than three years.102 In addition, several wireless providers supplemented the record with their individual
experiences in the personal wireless service facility siting application process. For example, Sprint
Nextel asserts that the typical processing times for personal wireless service facility siting applications
range from 28 to 36 months in several California communities.103 Verizon Wireless asserts that �in
Northern California, 27 of 30 applications took more than 6 months, with 12 applications taking more
than a year, and 6 taking more than two years to be approved�; and that �in Southern California, 25
applications took more than two years to be approved, with 52 taking more than a year, and 93 taking
more than 6 months.�104 NextG Networks describes delays of 10 to 25 months for its proposals to place
facilities in public rights-of-way, and states that such delay occurred even when NextG Networks merely
nd 6 taking more than two years to be approved�; and that �in Southern California, 25
applications took more than two years to be approved, with 52 taking more than a year, and 93 taking
more than 6 months.�104 NextG Networks describes delays of 10 to 25 months for its proposals to place
facilities in public rights-of-way, and states that such delay occurred even when NextG Networks merely
sought to replace old equipment.105 Moreover, two wireless providers offer evidence that the personal
wireless service facility siting applications process is getting longer in several jurisdictions. For example,
T-Mobile contends that in Maryland, the typical zoning process went from two months to nine months in
four years and in Florida, from two months to nine months in two years.106 Verizon Wireless notes that in
99 We note that the operation of this presumption differs significantly from the Petitioner�s alternative proposal that
the Commission establish a presumption in favor of a court-ordered injunction granting the application. Under the
approach we are adopting today, if a court finds that the State or local authority has failed to rebut the presumption
that it failed to act within a reasonable time, the court would then review the record to determine the appropriate
remedy. The State or local authority�s exceeding a reasonable time for action would not, in and of itself, entitle the
siting applicant to an injunction granting the application. See para. 39, infra.
100 Petition at 15.
101 Id. (emphasis in original).
102 Id. The Petition claims that in �many jurisdictions� it was taking longer to obtain personal wireless service
facility approvals than in prior years. Id.
103 Sprint Nextel Comments at 5. Sprint Nextel also notes problems with processing in a New Jersey community.
Id. The California Wireless Association also describes several instances of delays that ranged from 16 months to
two years in California. CalWA Comments at 2-3
ny jurisdictions� it was taking longer to obtain personal wireless service
facility approvals than in prior years. Id.
103 Sprint Nextel Comments at 5. Sprint Nextel also notes problems with processing in a New Jersey community.
Id. The California Wireless Association also describes several instances of delays that ranged from 16 months to
two years in California. CalWA Comments at 2-3.
104 Verizon Wireless Comments at 6-7. T-Mobile also cites specific problems it encountered in four States. T-
Mobile Comments at 7-9. Likewise, MetroPCS describes its experience with application processing delays in four
jurisdictions. MetroPCS Comments at 8-12.
105 NextG Networks Comments at 5-8.
106 T-Mobile Comments at 6. In its comments, T-Mobile also references a collocation application submitted in
LaGrange, New York, that was denied following a lengthy review process, despite the fact that the existing tower
(continued....)
Federal Communications Commission FCC 09-99
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the Washington, D.C. metro area, the typical processing time for new tower applications increased from
six to nine months in 2003 to more than one year in 2008, and the processing of collocation applications
increased from 15 to 30 days in 2003 to more than 90 days in 2008.107
34. This record evidence demonstrates that unreasonable delays in the personal wireless
service facility siting applications process have obstructed the provision of wireless services.108 Many
wireless providers have faced lengthy and costly processing
than one year in 2008, and the processing of collocation applications
increased from 15 to 30 days in 2003 to more than 90 days in 2008.107
34. This record evidence demonstrates that unreasonable delays in the personal wireless
service facility siting applications process have obstructed the provision of wireless services.108 Many
wireless providers have faced lengthy and costly processing. We disagree with State and local
government commenters that argue that the Petition fails to provide any credible or probative evidence
that any local government is engaged in delay with respect to processing personal wireless service facility
siting applications,109 and that there is insufficient evidence on the record as a whole to justify
Commission action.110 To the contrary, given the extensive statistical evidence provided by the Petitioner
and supporting commenters, and the absence of more than isolated anecdotes in rebuttal, we find that the
record amply establishes the occurrence of significant instances of delay.111
(...continued from previous page)
was designed to accommodate multiple carriers and no height increase was required to hold the proposed
installation. T-Mobile Comments at 26 (Declaration of Sabrina Bordin-Lambert). T-Mobile appealed the denial to
the U.S. District Court, and the Court ruled in favor of T-Mobile and issued a permanent injunction directing the
town to issue all necessary approvals to permit T-Mobile�s antenna collocation within 90 days. Omnipoint
Communications, Inc. v. Town of LaGrange, No. 08 Civ. 2201(CM)(GAY) (S.D.N.Y. Aug. 31, 2009). As support
for the injunction, the Court cited the town�s specific actions that resulted in a lengthy, five-year delay that
ultimately prevented T-Mobile from filling an important gap in service. Id.
107 Verizon Wireless Comments at 6. Moreover, both T-Mobile and Verizon Wireless provide information
concerning pending applications
Grange, No. 08 Civ. 2201(CM)(GAY) (S.D.N.Y. Aug. 31, 2009). As support
for the injunction, the Court cited the town�s specific actions that resulted in a lengthy, five-year delay that
ultimately prevented T-Mobile from filling an important gap in service. Id.
107 Verizon Wireless Comments at 6. Moreover, both T-Mobile and Verizon Wireless provide information
concerning pending applications. T-Mobile asserts that nearly one-third of its then 706 collocation applications had
been pending for more than one year, and 114 of those had been pending for more than three years. T-Mobile
Comments at 7. T-Mobile had 571 pending new tower applications, more than 30 percent of which had been
pending for more than one year, and more than 25 of these applications had been pending for more than three years.
Id. Verizon Wireless states that data it gathered �indicates that of the over 400 collocation requests reported as
pending, over 30% of the requests [were] pending for more than six months.� Verizon Wireless Comments at 6. In
addition, it claims that �[o]f the over 350 non-collocation requests reported as pending, more than half of those
applications [were] pending for more than 6 months, and nearly 100 of those applications [were] pending for more
than one year.� Id.
108 We note that very late in the process, Petitioner and its supporters submitted new evidence in the form of letters
and affidavits from carrier representatives that discuss specific experiences. See Ex Parte Letter from Christopher
Guttman-McCabe, Vice President, Regulatory Affairs, CTIA -- The Wireless Association, to Marlene H. Dortch,
Secretary, Federal Communications Commission, WT Docket No. 08-165, filed November 10, 2009, Attached
Letters from Michael S. Giaimo, Thomas C. Greiner, Jr., Scott P. Olson, Paul B. Albritton, and John W. Nilon, Jr.,
and Affidavit of Edward L. Donohue
Ex Parte Letter from Christopher
Guttman-McCabe, Vice President, Regulatory Affairs, CTIA -- The Wireless Association, to Marlene H. Dortch,
Secretary, Federal Communications Commission, WT Docket No. 08-165, filed November 10, 2009, Attached
Letters from Michael S. Giaimo, Thomas C. Greiner, Jr., Scott P. Olson, Paul B. Albritton, and John W. Nilon, Jr.,
and Affidavit of Edward L. Donohue. NATOA and the Coalition for Local Zoning Authority responded that they
have had no opportunity to respond to the substance of Petitioner's submissions, and suggested that the Commission
should either strike CTIA�s submission from the record or postpone action on the Petition until communities named
in that submission have been served and given opportunity to respond. See Ex Parte Letter of Gerald L. Lederer,
Counsel for NATOA and the Coalition for Local Zoning Authority, to Marlene Dortch, Secretary, Federal
Communications Commission, WT Docket No. 08-165, filed November 10, 2009. We strongly encourage parties
to submit relevant evidence as early as possible in the course of a proceeding, and preferably within the established
pleading schedule, so that it may be subjected to the crucible of a response. Under the circumstances here, we do
not give the record evidence contained in Petitioner�s November 10 submission weight in our analysis.
109 NATOA et al. Comments at 22; Stokes County, N.C. Comments at 1. Similarly, the County of Sonoma cites the
proliferation of cell phones and towers as evidence that there is no problem and argues that the Commission should
first investigate whether processing problems really exist. Sonoma Comments at 1.
110 See, e.g, Coalition for Local Zoning Authority Reply Comments at 5-7; SCAN NATOA Reply Comments at 2-6;
California Cities Reply Comments at 6; NATOA et al. Reply Comments at 15
ma cites the
proliferation of cell phones and towers as evidence that there is no problem and argues that the Commission should
first investigate whether processing problems really exist. Sonoma Comments at 1.
110 See, e.g, Coalition for Local Zoning Authority Reply Comments at 5-7; SCAN NATOA Reply Comments at 2-6;
California Cities Reply Comments at 6; NATOA et al. Reply Comments at 15.
111 The City of Philadelphia argues that the Petitioner�s failure to identify and serve those local governments toward
which its allegations are directed deprives those governments of a meaningful opportunity to verify or contest the
(continued....)
Federal Communications Commission FCC 09-99
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35. Delays in the processing of personal wireless service facility siting applications are
particularly problematic as consumers await the deployment of advanced wireless communications
services, including broadband services, in all geographic areas in a timely fashion.112 Wireless providers
currently are in the process of deploying broadband networks which will enable them to compete with the
services offered by wireline companies.113 For example, Clearwire is deploying a next generation
broadband wireless network for the 2.5 GHz band using the Worldwide Inter-Operability for Microwave
Access (WiMAX) technology.114 Clearwire asserts that its WiMAX network will �provide a true mobile
broadband experience for consumers, small businesses, medium and large enterprises, public safety
organizations and educational institutions.�115 Similarly, we expect that the winners of recent spectrum
auctions will need facility siting approvals in order to deploy their services to consumers.116 At least one
Advanced Wireless Service (AWS) licensee with nationwide reach already is implementing its new
network in the AWS band.117 Moreover, in the 700 MHz band, the Commission adopted stringent build
out requirements precisely to ensure the rapid and widespread deployment of services over this
spectrum.118 State an
y siting approvals in order to deploy their services to consumers.116 At least one
Advanced Wireless Service (AWS) licensee with nationwide reach already is implementing its new
network in the AWS band.117 Moreover, in the 700 MHz band, the Commission adopted stringent build
out requirements precisely to ensure the rapid and widespread deployment of services over this
spectrum.118 State and local practices that unreasonably delay the siting of personal wireless service
(...continued from previous page)
Petitioner�s allegations and deprives the Commission of a fair and full record. City of Philadelphia Comments at 2-
3. See also Coalition for Local Zoning Authority Reply Comments at 5; Greater Metro Telecom. Consortium et al.
Reply Comments at 6. We agree that an opportunity for rebuttal is an important element of process before making a
finding regarding any individual community�s processes. Today�s decision provides such an opportunity for rebuttal
by establishing presumptively reasonable timeframes that will allow the reasonableness of any particular failure to
act to be litigated. The record shows that the State and local government community has had ample opportunity to
respond to the aggregate evidence that supports our decision.
112 See Petition at 8-10.
113 The Petitioner has submitted a study which asserts that approximately 23.2 million U.S. residents and 42% of
road miles in the U.S. do not currently have access to 3G mobile broadband services. It further estimates that
approximately 16,000 new towers will need to be constructed and 55,000 existing towers will need to be augmented
for both Code Division Multiple Access (CDMA) and Global System for Mobile communications (GSM) 3G
broadband services to be ubiquitous to U.S. consumers. CostQuest Associates, Inc., U.S. Ubiquity Mobility Study,
April 17, 2008 at 4, filed as attachment to CTIA Ex Parte, GN Docket No. 09-51, WT Docket Nos. 08-165, 08-166,
08-167, 09-66 (filed Aug. 14, 2009)
towers will need to be augmented
for both Code Division Multiple Access (CDMA) and Global System for Mobile communications (GSM) 3G
broadband services to be ubiquitous to U.S. consumers. CostQuest Associates, Inc., U.S. Ubiquity Mobility Study,
April 17, 2008 at 4, filed as attachment to CTIA Ex Parte, GN Docket No. 09-51, WT Docket Nos. 08-165, 08-166,
08-167, 09-66 (filed Aug. 14, 2009).
114 Sprint And Clearwire To Combine WiMAX Businesses, Creating A New Mobile Broadband Company, News
Release, Sprint Nextel and Clearwire Corp., May 7, 2008 (�Sprint/Clearwire News Release�). See Sprint Nextel
Corp. and Clearwire Corp., Applications for Consent to Transfer Control of Licenses, Leases, and Authorizations,
WT Docket No. 08-94 and File Nos. 0003462540 et al., Memorandum Opinion and Order, 23 FCC Rcd 17570,
17619 � 128 ( 2008) (approving Clearwire and Sprint Nextel�s plan to combine their 2.5 GHz wireless broadband
businesses into one company).
115 Sprint/Clearwire News Release. Clearwire�s wireless broadband service is now available in 14 markets.
Clearwire Introduces CLEAR(TM) 4G WiMax Internet Service in 10 New Markets, Press Release, Clearwire, Sept.
1, 2009.
116 See Auction of Advanced Wireless Services Licenses Closes: Winning Bidders Announced for Auction No. 66,
Report No. AUC-06-66-F, Public Notice, 21 FCC Rcd 10521 (WTB 2006); Auction of 700 MHz Band Licenses
Closes; Winning Bidders Announced for Auction 73, Public Notice, Report No. AUC-08-73-I (Auction 73), DA 08-
595 (rel. Mar. 20, 2008).
117 T-Mobile Comments at 2 (noting that unless it can expeditiously obtain approvals, its efforts to add high-speed
services and expand coverage will be �significantly hampered�).
118 See Service Rules for the 698-746, 747-762 and 777-792 MHz Bands, WT Docket No. 06-150; Revision of the
Commission's Rules to Ensure Compatibility with Enhanced 911 Emergency Calling Systems, CC Docket No
8).
117 T-Mobile Comments at 2 (noting that unless it can expeditiously obtain approvals, its efforts to add high-speed
services and expand coverage will be �significantly hampered�).
118 See Service Rules for the 698-746, 747-762 and 777-792 MHz Bands, WT Docket No. 06-150; Revision of the
Commission's Rules to Ensure Compatibility with Enhanced 911 Emergency Calling Systems, CC Docket No. 94-
102; Section 68.4(a) of the Commission's Rules Governing Hearing Aid-Compatible Telephones, WT Docket No.
01-309; Biennial Regulatory Review -- Amendment of Parts 1, 22, 24, 27, and 90 to Streamline and Harmonize
Various Rules Affecting Wireless Radio Services, WT Docket No. 03-264; Former Nextel Communications, Inc.
(continued....)
Federal Communications Commission FCC 09-99
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facilities threaten to undermine achievement of the goals that the Commission sought to advance in these
proceedings. Moreover, they impede the promotion of advanced services and competition that Congress
deemed critical in the Telecommunications Act of 1996119 and more recently in the Recovery Act.120
36. In addition, the deployment of facilities without unreasonable delay is vital to promote
public safety, including the availability of wireless 911, throughout the nation. The importance of
wireless communications for public safety is critical, especially as consumers increasingly rely upon their
personal wireless service devices as their primary method of communication. As NENA observes in its
comments:
Calls must be able to be made from as many locations as possible and dropped
calls must be prevented. This is especially true for wireless 9-1-1 calls which
must get through to the right Public Safety Answering Point (�PSAP�) and must
be as accurate as technically possible to ensure an effective response
devices as their primary method of communication. As NENA observes in its
comments:
Calls must be able to be made from as many locations as possible and dropped
calls must be prevented. This is especially true for wireless 9-1-1 calls which
must get through to the right Public Safety Answering Point (�PSAP�) and must
be as accurate as technically possible to ensure an effective response. Increased
availability and reliability of commercial and public safety wireless service,
along with improved 9-1-1 location accuracy, all depend on the presence of
sufficient wireless towers.121
37. Right to Seek Relief. Given the evidence of unreasonable delays and the public interest
in avoiding such delays, we conclude that the Commission should define the statutory terms �reasonable
period of time� and �failure to act� in order to clarify when an adversely affected service provider may
take a dilatory State or local government to court. Specifically, we find that when a State or local
government does not act within a �reasonable period of time� under Section 332(c)(7)(B)(i)(II), a �failure
to act� occurs within Section 332(c)(7)(B)(v). And because an �action or failure to act� is the statutory
trigger for seeking judicial relief, our clarification of these terms will give personal wireless service
providers certainty as to when they may seek redress for inaction on an application. We expect that this
certainty will enable personal wireless service providers more vigorously to enforce the statutory mandate
against unreasonable delay that impedes the deployment of services that benefit the public. At the same
time, our action will provide guidance to State and local governments as to what constitutes a reasonable
timeframe in which they are expected to process applications, but recognizes that certain cases may
legitimately require more processing time.122
38
enforce the statutory mandate
against unreasonable delay that impedes the deployment of services that benefit the public. At the same
time, our action will provide guidance to State and local governments as to what constitutes a reasonable
timeframe in which they are expected to process applications, but recognizes that certain cases may
legitimately require more processing time.122
38. By defining the period after which personal wireless service providers have a right to
seek judicial relief, we both ensure timely State and local government action and preserve incentives for
providers to work cooperatively with them to address community needs. Wireless providers will have the
incentive to resolve legitimate issues raised by State or local governments within the timeframes defined
as reasonable, or they will incur the costs of litigation and may face additional delay if the court
(...continued from previous page)
Upper 700 MHz Guard Band Licenses and Revisions to Part 27 of the Commission's Rules, WT Docket No. 06-169;
Implementing a Nationwide, Broadband, Interoperable Public Safety Network in the 700 MHz Band, PS Docket No.
06-229; Development of Operational, Technical and Spectrum Requirements for Meeting Federal, State and Local
Public Safety Communications Requirements Through the Year 2010, WT Docket No. 96-86; and Declaratory
Ruling on Reporting Requirement under Commission�s Part 1 Anti-Collusion Rule, WT Docket No. 07-166, Second
Report and Order, 22 FCC Rcd 15289, 15342-55 �� 141-177 (2007).
119 Telecommunications Act of 1996, Pub.L. 104-104, Feb. 8, 1996, 110 Stat. 56, codified at 47 U.S.C. � 151 et seq.
(1996 Act). The 1996 Act amended the Communications Act of 1934.
120 See supra note 47.
121 NENA Comments at 1-2.
122 We recognize that there are numerous jurisdictions that are processing personal wireless service facility siting
applications well within the timeframes we establish herein
ications Act of 1996, Pub.L. 104-104, Feb. 8, 1996, 110 Stat. 56, codified at 47 U.S.C. � 151 et seq.
(1996 Act). The 1996 Act amended the Communications Act of 1934.
120 See supra note 47.
121 NENA Comments at 1-2.
122 We recognize that there are numerous jurisdictions that are processing personal wireless service facility siting
applications well within the timeframes we establish herein. We encourage these jurisdictions to continue their
expeditious processing of applications for the benefit of wireless consumers.
Federal Communications Commission FCC 09-99
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determines that additional time was, in fact, reasonable under the circumstances. Similarly, State and
local governments will have a strong incentive to resolve each application within the timeframe defined
as reasonable, or they will risk issuance of an injunction granting the application. In addition, specific
timeframes for State and local government deliberations will allow wireless providers to better plan and
allocate resources. This is especially important as providers plan to deploy their new broadband
networks.
39. We reject the Petition�s proposals that we go farther and either deem an application
granted when a State or local government has failed to act within a defined timeframe or adopt a
presumption that the court should issue an injunction granting the application. Section 332(c)(7)(B)(v)
states that when a failure to act has occurred, aggrieved parties should file with a court of competent
jurisdiction within 30 days and that �[t]he court shall hear and decide such action on an expedited
basis.�123 This provision indicates Congressional intent that courts should have the responsibility to
fashion appropriate case-specific remedies
the application. Section 332(c)(7)(B)(v)
states that when a failure to act has occurred, aggrieved parties should file with a court of competent
jurisdiction within 30 days and that �[t]he court shall hear and decide such action on an expedited
basis.�123 This provision indicates Congressional intent that courts should have the responsibility to
fashion appropriate case-specific remedies. As the Petitioner notes, many courts have issued injunctions
granting applications upon finding a violation of Section 332(c)(7)(B).124 However, the case law does not
establish that an injunction granting the application is always or presumptively appropriate when a
�failure to act� occurs.125 To the contrary, in those cases where courts have issued such injunctions upon
finding a failure to act within a reasonable time, they have done so only after examining all the facts in
the case.126 While we agree that injunctions granting applications may be appropriate in many cases, the
proposals in personal wireless service facility siting applications and the surrounding circumstances can
vary greatly. It is therefore important for courts to consider the specific facts of individual applications
and adopt remedies based on those facts.
40. We also disagree with commenters that argue that the statutory scheme precludes us from
interpreting the terms �reasonable period of time� and �failure to act� by reference to specific timeframes.
State and local government commenters assert that Congress used these general terms, rather than setting
specific time periods in the Act, because it wanted to preserve State and local governments� discretion to
process applications in the timeframes in which each government typically processes land use
applications. They contend that this reading comports with the complete text of Section 332(c)(7)(B)(ii),
which obligates the State or local government to act �within a reasonable period of time after the request
is duly filed . .
e it wanted to preserve State and local governments� discretion to
process applications in the timeframes in which each government typically processes land use
applications. They contend that this reading comports with the complete text of Section 332(c)(7)(B)(ii),
which obligates the State or local government to act �within a reasonable period of time after the request
is duly filed . . . taking into account the nature and scope of such request.�127 Moreover, these
commenters rely upon the Conference Agreement, which states that �the time period for rendering a
[personal wireless service facility siting] decision will be the usual period under such circumstances� and
that �[i]t is not the intent of this provision to give preferential treatment to the personal wireless service
industry in the processing of requests, or to subject their requests to any but the generally applicable time
frames for zoning decision[s].�128
123 47 U.S.C. � 332(c)(7)(B)(v).
124 See Petition at 28; CTIA Reply Comments at 23-25.
125 We note that many of the cases the Petitioner cites involved not a failure to act within a reasonable time, but a
lack of substantial evidence or other violation of Section 332(c)(7)(B). See, e.g., New Par v. City of Saginaw, 301
F.3d 390, 399-400 (6th Cir. 2002); Nat�l Tower, LLC v. Plainville Zoning Bd. of Appeals, 297 F.3d 14, 24-25 (1st
Cir. 2002); Preferred Sites, LLC v. Troup County, 296 F.3d 1210, 1222 (11th Cir. 2002).
126 See Tennessee ex rel. Wireless Income Props. v. Chattanooga, 403 F.3d 392 (6th Cir. 2005); Masterpage
Communications, Inc. v. Town of Olive, NY, 418 F.Supp.2d 66 (N.D.N.Y. 2005).
127 47 C.F.R. � 332(c)(7)(B)(ii) (emphasis added). See NATOA et al. Comments at 14-15; California Cities
Comments at 5-6; Fairfax County, VA Comments at 6-7; City of Dublin, OH Comments at 3; City of Grove City,
OH Comments at 3; Florida Cities Comments at 5-6; City of Burien, WA Comments at 4; Village of Alden, NY
Comments at 3.
128 H.R. Conf. Rep. No
418 F.Supp.2d 66 (N.D.N.Y. 2005).
127 47 C.F.R. � 332(c)(7)(B)(ii) (emphasis added). See NATOA et al. Comments at 14-15; California Cities
Comments at 5-6; Fairfax County, VA Comments at 6-7; City of Dublin, OH Comments at 3; City of Grove City,
OH Comments at 3; Florida Cities Comments at 5-6; City of Burien, WA Comments at 4; Village of Alden, NY
Comments at 3.
128 H.R. Conf. Rep. No. 104-458, 104th Congress, 2nd Sess. 208 (1996).
Federal Communications Commission FCC 09-99
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41. Particularly given the opportunities that we have built into the process for ensuring
individualized consideration of the nature and scope of each siting request, we find these arguments
unavailing. Congress did not define either �reasonable period of time� or �failure to act� in the
Communications Act. As the United States Court of Appeals for the District of Columbia Circuit has
held, the term �reasonable� is ambiguous and courts owe substantial deference to the interpretation that
the Commission accords to ambiguous terms.129 We similarly found in the Local Franchising Order that
the term �unreasonably refuse to award� a local franchise authorization in Section 621(a)(1) is ambiguous
and subject to our interpretation.130 As in the local franchising context, it is not clear from the
Communications Act what is a reasonable period of time to act on an application or when a failure to act
occurs. As we find above, by defining timeframes in this proceeding, the Commission will lend clarity to
these provisions, giving wireless providers and State and local zoning authorities greater certainty in
knowing what period of time is �reasonable,� and ensuring that the point at which a State or local
authority �fails to act� is not left so ambiguous that it risks depriving a wireless siting applicant of its right
to redress.
42
es in this proceeding, the Commission will lend clarity to
these provisions, giving wireless providers and State and local zoning authorities greater certainty in
knowing what period of time is �reasonable,� and ensuring that the point at which a State or local
authority �fails to act� is not left so ambiguous that it risks depriving a wireless siting applicant of its right
to redress.
42. Moreover, our construction of the statutory terms �reasonable period of time� and
�failure to act� takes into account, on several levels, the Section 332(c)(7)(B)(ii) requirement that the
�nature and scope� of the request be considered and the legislative history�s indication that Congress
intended the decisional timeframe to be the �usual period� under the circumstances for resolving zoning
matters. First, the timeframes we define below are based on actual practice as shown in the record. As
discussed below, most statutes and government processes discussed in the record already conform to the
timeframes we define. As such, the timeframes do not require State and local governments to give
preferential treatment to personal wireless service providers over other types of land use applications.
Second, we consider the nature and scope of the request by defining a shorter timeframe for collocation
applications, consistent with record evidence that collocation applications generally are considered at a
faster pace than other tower applications. Third, under the regime that we adopt today, the State or local
authority will have the opportunity, in any given case that comes before a court, to rebut the presumption
that the established timeframes are reasonable
imeframe for collocation
applications, consistent with record evidence that collocation applications generally are considered at a
faster pace than other tower applications. Third, under the regime that we adopt today, the State or local
authority will have the opportunity, in any given case that comes before a court, to rebut the presumption
that the established timeframes are reasonable. Finally, we have provided for further adjustments to the
presumptive deadlines in order to ensure that the timeframes accommodate certain contingencies that may
arise in individual cases, including where the applicant and the State or local authority agree to extend the
time, where the application has already been pending for longer than the presumptive timeframe as of the
date of this Declaratory Ruling, and where the application review process has been delayed by the
applicant�s failure to submit a complete application or to file necessary additional information in a timely
manner.131 For all these reasons, we conclude that our clarification of the broad terms �reasonable period
of time� and �failure to act� is consistent with the statutory scheme.
43. Timeframes Constituting a �Failure to Act�. The Petition proposes a 45-day timeframe
for collocation applications and a 75-day timeframe for all other applications.132 The Petition asserts that
because no new towers need to be constructed, collocations are the easiest applications for State and local
129 Capital Network System, Inc. v. FCC, 28 F.3d 201, 204 (D.C. Cir. 1994). In this case the court stated: �[b]ecause
�just,� �unjust,� �reasonable,� and �unreasonable� are ambiguous statutory terms, this court owes substantial
deference to the interpretation the Commission accords them.� The court upheld the Commission�s rejection of a
competitive carrier�s proposed tariff as patently unlawful because it was not �just and reasonable� under Section
201(b) of the Act. See also National Cable & Telecomm. Ass�n v
,� �unjust,� �reasonable,� and �unreasonable� are ambiguous statutory terms, this court owes substantial
deference to the interpretation the Commission accords them.� The court upheld the Commission�s rejection of a
competitive carrier�s proposed tariff as patently unlawful because it was not �just and reasonable� under Section
201(b) of the Act. See also National Cable & Telecomm. Ass�n v. Brand X Internet Servs., 545 U.S. at 982-84
(finding that where a statute is ambiguous and the implementing agency's construction is reasonable, a federal court
must accept the agency's construction of the statute, even if the agency's interpretation differs from prior judicial
construction).
130 Local Franchising Order, 22 FCC Rcd at 5130 � 58 (2007).
131 See infra paras. 49-53.
132 Petition at 24-27. The Petition claims that over 80 percent of carriers surveyed had had �some collocations
granted within one week� and new builds �granted within 2 weeks.� Petition at 16.
Federal Communications Commission FCC 09-99
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governments to review and, therefore, should reasonably be reviewed within a shorter period.133 The
Petitioner surveyed its members and found that collocations can take as little as a single day to review,
and that all members responding had received zoning approvals within 14 days.134 With respect to new
facilities or major modifications, the Petitioner�s members indicated that they had received final action
�in as little as one day, with hundreds of grants within 75 days.�135 Wireless providers argue that the
Petitioner�s proposed timeframes are reasonable,136 and they rely upon State and local processes as
evidence to support that conclusion.137 Moreover, there is evidence from local governments that they are
able to decide promptly personal wireless service facility siting applications
tion
�in as little as one day, with hundreds of grants within 75 days.�135 Wireless providers argue that the
Petitioner�s proposed timeframes are reasonable,136 and they rely upon State and local processes as
evidence to support that conclusion.137 Moreover, there is evidence from local governments that they are
able to decide promptly personal wireless service facility siting applications. For example, the City of
Saint Paul, Minnesota, has processed personal wireless service facility siting applications within 13 days,
on average, since 2000,138 and the City of LaGrande, Oregon, has processed applications on average in 45
days in the last ten years.139
44. While we recognize that many applications can and perhaps should be processed within
the timeframes proposed by the Petitioner, we are concerned that these timeframes may be insufficiently
flexible for general applicability. In particular, some applications may reasonably require additional time
to explore collaborative solutions among the governments, wireless providers, and affected
communities.140 Also, State and local governments may sometimes need additional time to prepare a
written explanation of their decisions as required by Section 332(c)(7)(B)(iii),141 and the timeframes as
proposed may not accommodate reasonable, generally applicable procedural requirements in some
communities.142 Although, as noted above, the reviewing court will have the opportunity to consider such
unique circumstances in individual cases, it is important for purposes of certainty and orderly processing
that the timeframes for determining when suit may be brought in fact accommodate reasonable processes
in most instances.143
133 Id. at 24-25.
134 Id. at 25.
135 Id. at 26. All members responding to the survey reported receiving approvals for new facilities within 30 days.
Id.
136 See, e.g., MetroPCS Comments at 12; Rural Cellular Association Comments at 6; NextG Networks Comments at
9-12
he timeframes for determining when suit may be brought in fact accommodate reasonable processes
in most instances.143
133 Id. at 24-25.
134 Id. at 25.
135 Id. at 26. All members responding to the survey reported receiving approvals for new facilities within 30 days.
Id.
136 See, e.g., MetroPCS Comments at 12; Rural Cellular Association Comments at 6; NextG Networks Comments at
9-12.
137 Sprint Nextel Comments at 6-8 (citing to South Dakota Public Utility Commission�s model wireless zoning
ordinance and Florida and North Carolina statutes); T-Mobile Comments at 11-12 (citing to the processing
experienced by T-Mobile in Florida, Georgia, and Texas); MetroPCS Comments at 7-8 (citing to the processing
experienced by MetroPCS in Delaware and Pennsylvania); NextG Networks Comments at 9-14 (citing to North
Carolina, Florida & Kentucky statutes).
138 City of Saint Paul, Minnesota and the City�s Board of Water Commissioners Comments at 10.
139 City of LaGrande, Oregon Comments at 3.
140 Such collaborative processes are asserted to have led to improved antenna deployments. See, e.g., California
Cities Comments at 13-16.
141 Michigan Municipalities Comments at 14-19.
142 See, e.g., Fairfax County, VA Comments at 7-10; City of Dublin, OH Comments at 3-4; Florida Cities
Comments at 8-9.
143 California Cities note that the Commission previously rejected time limits for itself in a rulemaking concerning
petitions filed pursuant to Section 332(c)(7)(B)(v) because they would not afford the Commission sufficient
flexibility to account for particular facts in a case. California Cities Comments at 8-10 (citing Procedures for
Reviewing Requests for Relief from State and Local Regulations Pursuant to Section 332(c)(7)(B)(v) of the
Communications Act of 1934, WT Docket No. 97-192, Report and Order, 15 FCC Rcd 22821, 22829-30 � 20
332(c)(7)(B)(v) because they would not afford the Commission sufficient
flexibility to account for particular facts in a case. California Cities Comments at 8-10 (citing Procedures for
Reviewing Requests for Relief from State and Local Regulations Pursuant to Section 332(c)(7)(B)(v) of the
Communications Act of 1934, WT Docket No. 97-192, Report and Order, 15 FCC Rcd 22821, 22829-30 � 20
(2000)). The timeframes that we adopt account for the flexibility that may be needed to address different fact
situations, while at the same time adhering to the important public interest in certainty discussed above.
Federal Communications Commission FCC 09-99
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45. Based on our review of the record as a whole, we find 90 days to be a generally
reasonable timeframe for processing collocation applications and 150 days to be a generally reasonable
timeframe for processing applications other than collocations. Thus, a lack of a decision within these
timeframes presumptively constitutes a failure to act under Section 332(c)(7)(B)(v). At least one wireless
provider, U.S. Cellular, suggests that such 90-day and 150-day timeframes are sufficient for State and
local governments to process applications.144
46. We find that collocation applications can reasonably be processed within 90 days.
Collocation applications are easier to process than other types of applications as they do not implicate the
effects upon the community that may result from new construction. In particular, the addition of an
antenna to an existing tower or other structure is unlikely to have a significant visual impact on the
community
collocation applications can reasonably be processed within 90 days.
Collocation applications are easier to process than other types of applications as they do not implicate the
effects upon the community that may result from new construction. In particular, the addition of an
antenna to an existing tower or other structure is unlikely to have a significant visual impact on the
community. Therefore, many jurisdictions do not require public notice or hearings for collocations.145
For purposes of this standard, an application is a request for collocation if it does not involve a
�substantial increase in the size of a tower� as defined in the Nationwide Programmatic Agreement for the
Collocation of Wireless Antennas.146 This limitation will help to ensure that State and local governments
will have a reasonable period of time to review those applications that may require more extensive
consideration.
47. Several State statutes already require application processing within 90 days. California
and Minnesota require both collocation and non-collocation applications to be processed within 60
days.147 North Carolina has a time period of 45 days for processing after a 45-day review period for
application completeness (for a total of 90 days),148 and Florida�s process is 45 business days after a 20-
business day review period for application completeness (for a total of approximately 91 days, including
weekends).149 Moreover, the evidence submitted by local governments indicates that most already are
144 U.S. Cellular Reply Comments at 2-3.
145 See, e.g., N.C. Gen. Stat. Ann. � 153A-349.53(a); Fla. Stat. Ann. � 365.172(12)(a)(1)(a).
146 See T-Mobile Comments at 10-11. A �[s]ubstantial increase in the size of the tower� occurs if:
s (for a total of approximately 91 days, including
weekends).149 Moreover, the evidence submitted by local governments indicates that most already are
144 U.S. Cellular Reply Comments at 2-3.
145 See, e.g., N.C. Gen. Stat. Ann. � 153A-349.53(a); Fla. Stat. Ann. � 365.172(12)(a)(1)(a).
146 See T-Mobile Comments at 10-11. A �[s]ubstantial increase in the size of the tower� occurs if:
(1) [t]he mounting of the proposed antenna on the tower would increase the existing height of the
tower by more than 10%, or by the height of one additional antenna array with separation from the
nearest existing antenna not to exceed twenty feet, whichever is greater, except that the mounting
of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to avoid
interference with existing antennas; or (2) [t]he mounting of the proposed antenna would involve
the installation of more than the standard number of new equipment cabinets for the technology
involved, not to exceed four, or more than one new equipment shelter; or (3) [t]he mounting of the
proposed antenna would involve adding an appurtenance to the body of the tower that would
protrude from the edge of the tower more than twenty feet, or more than the width of the tower
structure at the level of the appurtenance, whichever is greater, except that the mounting of the
proposed antenna may exceed the size limits set forth in this paragraph if necessary to shelter the
antenna from inclement weather or to connect the antenna to the tower via cable; or (4) [t]he
mounting of the proposed antenna would involve excavation outside the current tower site,
defined as the current boundaries of the leased or owned property surrounding the tower and any
access or utility easements currently related to the site.
47 C.F.R. Part 1, App. B�Nationwide Programmatic Agreement for the Collocation of Wireless Antennas,
Definitions, Subsection C.
147 Cal. Gov�t
he
mounting of the proposed antenna would involve excavation outside the current tower site,
defined as the current boundaries of the leased or owned property surrounding the tower and any
access or utility easements currently related to the site.
47 C.F.R. Part 1, App. B�Nationwide Programmatic Agreement for the Collocation of Wireless Antennas,
Definitions, Subsection C.
147 Cal. Gov�t. Code �� 65950 & 65943 (assuming no environmental review is required; also has 30-day review
period for completeness); Minn. Stat. Ann. � 15.99 (permitting an additional 60-day extension upon written notice to
applicant).
148 N.C. Gen. Stat. Ann. � 153A-349.52.
149 Fla. Stat. Ann. � 365.172. In addition, the State of Connecticut�s Connecticut Siting Council states that �most
applications to approve a tower-sharing request are processed by our agency in four to six weeks.� State of
Connecticut�s Connecticut Siting Council Sept. 24, 2008 Letter at 2.
Federal Communications Commission FCC 09-99
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processing collocation applications within 90 days. Of the approximately 51 localities that submitted
information concerning their processing of collocation applications, only eight state that their processing
is longer than 90 days. However, five of those localities indicate that their processing is within 120 days,
on average. Based on these facts, we conclude that a 90-day timeframe for processing collocation
applications is reasonable.
48. We further find that the record shows that a 150-day processing period for applications
other than collocations is a reasonable standard that is consistent with most statutes and local processes
those localities indicate that their processing is within 120 days,
on average. Based on these facts, we conclude that a 90-day timeframe for processing collocation
applications is reasonable.
48. We further find that the record shows that a 150-day processing period for applications
other than collocations is a reasonable standard that is consistent with most statutes and local processes.
First, of the eight State statutes discussed in the record that cover non-collocation applications, only one
State, Connecticut, contemplates a longer process.150 Nonetheless, the process in Connecticut is only 30
days longer than the timeframe set forth here.151 The other seven States provide for a review period of 60
to 150 days.152 Second, of the processes described by local governments in the record, most already
routinely conclude within 150 days or less. Approximately 51 localities submitted information
concerning their processing of personal wireless service facility siting applications. Of those, only twelve
indicate that they may take longer than 150 days. However, four of these twelve cities indicate that they
generally process the applications within 180 days. Based on these facts, we conclude that a 150-day
timeframe for processing applications other than collocations is reasonable. Accordingly, we do not agree
that the Commission�s imposition of the 90-day and 150-day timeframes will disrupt many of the
processes State and local governments already have in place for personal wireless service facility siting
applications.153
49. Related Issues. Section 332(c)(7)(B)(v) provides that an action for judicial relief must be
brought �within 30 days� after a State or local government action or failure to act.154 Thus, if a failure to
act occurs 90 days (for a collocation) or 150 days (in other cases) after an application is filed, any court
action must be brought by day 120 or 180 on penalty of losing the ability to sue
9. Related Issues. Section 332(c)(7)(B)(v) provides that an action for judicial relief must be
brought �within 30 days� after a State or local government action or failure to act.154 Thus, if a failure to
act occurs 90 days (for a collocation) or 150 days (in other cases) after an application is filed, any court
action must be brought by day 120 or 180 on penalty of losing the ability to sue. We conclude that a rigid
application of this cutoff to cases where the parties are working cooperatively toward a consensual
resolution would be contrary to both the public interest and Congressional intent. Accordingly, we clarify
that a �reasonable period of time� may be extended beyond 90 or 150 days by mutual consent of the
personal wireless service provider and the State or local government, and that in such instances, the
commencement of the 30-day period for filing suit will be tolled.
50. To the extent existing State statutes or local ordinances set different review periods than
we do here, we clarify that our interpretation of Section 332(c)(7) is independent of the operation of these
150 See Conn. Gen. Stat. Ann. �� 16-50(i) & (p) (action required within 180 days after application is filed).
151 Moreover, the State of Connecticut, Connecticut Siting Council states that �applications to approve a new-build
tower are generally reviewed and acted upon in four to five months.� State of Connecticut�s Connecticut Siting
Council Sept. 24, 2008 Letter at 2.
152 The State of California requires applications to be processed within 60 days, after a 30-day review period for
completeness, assuming no environmental review is required. Cal. Gov�t. Code �� 65950 & 65943. The State of
Florida requires applications to be processed within 90 business days, after a 20-business day review period for
completeness. Fla. Stat. Ann. � 365.172
8 Letter at 2.
152 The State of California requires applications to be processed within 60 days, after a 30-day review period for
completeness, assuming no environmental review is required. Cal. Gov�t. Code �� 65950 & 65943. The State of
Florida requires applications to be processed within 90 business days, after a 20-business day review period for
completeness. Fla. Stat. Ann. � 365.172. The State of Minnesota requires applications to be processed within 60
days, which can be extended an additional 60 days upon written notice to the applicant. Minn. Stat. Ann. � 15.99.
The State of Oregon requires applications to be processed within 120 days, after a 30-day review period for
completeness. Or. Rev. Stat. � 227.178. The Commonwealth of Virginia requires applications to be processed
within 90 days, which can be extended an additional 60 days. Va. Code Ann. � 15.2-2232. The State of
Washington requires applications to be processed within 120 days, after a 28-day review period for completeness.
Wash. Rev. Code �� 36.70B.080 & 36.70B.070. The State of Kentucky requires applications to be processed within
60 days. Ky. Rev. Stat. Ann. � 100.987.
153 See, e.g., California Cities Comments at 10-12; Fairfax County, VA Comments at 7-10; City of Dublin, OH
Comments at 3-4; Michigan Municipalities Comments at 11-14.
154 47 U.S.C. � 332(c)(7)(B)(v).
Federal Communications Commission FCC 09-99
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statutes or ordinances. Thus, where the review period in a State statute or local ordinance is shorter than
the 90-day or 150-day period, the applicant may pursue any remedies granted under the State or local
regulation when the applicable State or local review period has lapsed. However, the applicant must wait
until the 90-day or 150-day review period has expired to bring suit for a �failure to act� under Section
332(c)(7)(B)(v)
iew period in a State statute or local ordinance is shorter than
the 90-day or 150-day period, the applicant may pursue any remedies granted under the State or local
regulation when the applicable State or local review period has lapsed. However, the applicant must wait
until the 90-day or 150-day review period has expired to bring suit for a �failure to act� under Section
332(c)(7)(B)(v). Conversely, if the review period in the State statute or local ordinance is longer than the
90-day or 150-day review period, the applicant may bring suit under Section 332(c)(7)(B)(v) after 90 days
or 150 days, subject to the 30-day limitation period on filing, and may consider pursuing any remedies
granted under the State or local regulation when that applicable time limit has expired. Of course, the
option is also available in these cases to toll the period under Section 332(c)(7) by mutual consent.
51. We further conclude that given the ambiguity that has prevailed until now as to when a
failure to act occurs, it is reasonable to give State and local governments an additional period to review
currently pending applications before an applicant may file suit. Accordingly, as a general rule, for
currently pending applications we deem that a �failure to act� will occur 90 days (for collocations) or 150
days (for other applications) after the release of this Declaratory Ruling. We recognize, however, that
some applications have been pending for a very long period, and that delaying resolution for an additional
90 or 150 days may impose an undue burden on the applicant. Therefore, a party whose application has
been pending for the applicable timeframe that we establish herein or longer as of the release date of this
Declaratory Ruling may, after providing notice to the relevant State or local government, file suit under
Section 332(c)(7)(B)(v) if the State or local government fails to act within 60 days from the date of such
notice
urden on the applicant. Therefore, a party whose application has
been pending for the applicable timeframe that we establish herein or longer as of the release date of this
Declaratory Ruling may, after providing notice to the relevant State or local government, file suit under
Section 332(c)(7)(B)(v) if the State or local government fails to act within 60 days from the date of such
notice. The notice provided to the State or local government shall include a copy of this Declaratory
Ruling. This option does not apply to applications that have currently been pending for less than 90 or
150 days, and in these instances the State or local government will have 90 or 150 days from the release
of this Declaratory Ruling before it will be considered to have failed to act. We find that this transitional
regime best balances the interests of applicants in finality with the needs of State and local governments
for adequate time to implement our interpretation of Section 332(c)(7).
52. Finally, certain State and local government commenters argue that the timeframes should
take into account that not all applications are complete as filed and that applicants do not always file
necessary additional information in a timely manner.155 MetroPCS does not contest this argument, but it
further proposes that local authorities should be required to notify applicants of incomplete applications
within three business days and to inform the applicant what additional information should be submitted.156
The Petitioner supports MetroPCS�s proposal.157 We concur that the timeframes should take into account
whether applications are complete. Accordingly, we find that when applications are incomplete as filed,
the timeframes do not include the time that applicants take to respond to State and local governments�
requests for additional information. We also find that reviewing authorities should be bound to notify
applicants within a reasonable period of time that their applications are incomplete
ether applications are complete. Accordingly, we find that when applications are incomplete as filed,
the timeframes do not include the time that applicants take to respond to State and local governments�
requests for additional information. We also find that reviewing authorities should be bound to notify
applicants within a reasonable period of time that their applications are incomplete. It is important that
State and local governments obtain complete applications in a timely manner, and our finding here will
provide the incentive for wireless providers to file complete applications in a timely fashion.
53. Five State statutes discussed in the record specify a period for a review of the
applications for completeness. The State of Florida requires an application to be reviewed within 20
155 See, e.g., Fairfax County, VA Comments at 13; City of Bellingham, WA Comments at 1-2; Michigan
Municipalities Comments at 19-20; Stokes County, N.C. Comments at 1 (complete application should be required);
Florida Cities Comments at 8-9 (wireless companies should also be held to timelines for responding to requests from
localities concerning siting applications).
156 MetroPCS Comments at 12. MetroPCS also proposes that the zoning authority should be conclusively deemed to
have accepted the filing as complete if it does not respond within three days.
157 CTIA Reply Comments at 18.
Federal Communications Commission FCC 09-99
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business days for determining whether it is complete;158 the State of Washington requires review within
28 days;159 the States of California and Oregon require review within 30 days;160 and the State of North
Carolina requires review within 45 days.161 Considering this evidence as a whole, a review period of 30
days gives State and local governments sufficient time for reviewing applications for completeness, while
protecting applicants from a last minute decision that applications should be denied as incomplete
tes of California and Oregon require review within 30 days;160 and the State of North
Carolina requires review within 45 days.161 Considering this evidence as a whole, a review period of 30
days gives State and local governments sufficient time for reviewing applications for completeness, while
protecting applicants from a last minute decision that applications should be denied as incomplete.
Accordingly, we conclude that the time it takes for an applicant to respond to a request for additional
information will not count toward the 90 or 150 days only if that State or local government notifies the
applicant within the first 30 days that its application is incomplete. We find that the total amount of time,
including the review period for application completeness, is generally consistent with those States that
specifically include such a review period.
C. Prohibition of Service by a Single Provider
54. Background. The Petitioner next asks the Commission to conclude that State or local
regulation that effectively prohibits one carrier from providing service because service is available from
one or more other carriers violates Section 332(c)(7)(B)(i)(II) of the Act.162 The Petitioner contends that
the Act does not define what constitutes a prohibition of service for purposes of Section
332(c)(7)(B)(i)(II).163 The Petitioner asserts that Circuit court decisions have interpreted this provision in
a number of different ways, including so as to allow the denial of an application so long as a single
wireless provider serves the area, thereby creating a need for the Commission to interpret it.164 The
Petitioner argues that its position is consistent with the pro-competitive goals of the 1996
Telecommunications Act, and further, that the provision refers to personal wireless services in the plural,
which cuts against a single provider interpretation.165 Similarly, Section 332(c)(7)(B)(i)(I) bars
unreasonable discrimination among providers, also suggesting a preference for multiple
The
Petitioner argues that its position is consistent with the pro-competitive goals of the 1996
Telecommunications Act, and further, that the provision refers to personal wireless services in the plural,
which cuts against a single provider interpretation.165 Similarly, Section 332(c)(7)(B)(i)(I) bars
unreasonable discrimination among providers, also suggesting a preference for multiple providers.166 In
addition to supporting the Petitioner�s argument, numerous wireless providers assert that if local zoning
authorities could deny siting applications whenever another carrier serves the area, competition as
intended by the 1996 Act and the introduction of new technologies would be impeded, and E911 service
and public safety could be impacted.167
55. Parties opposing the Petition argue that if, as the Petition suggests, there are local
governments that deny applications solely because of coverage by another provider, the affected provider
can, as courts have recognized, bring a claim of unreasonable discrimination.168 Opponents also argue
158 See Fla. Stat. Ann. � 365.172 (providing for a 20-business day review for application completeness, then a 45-
business day period for collocation application processing and a 90-business day period for all other application
processing).
159 Wash. Rev. Code �� 36.70B.080 & 36.70B.070 (providing for a 28-day review for application completeness,
then a 120-day period for application processing).
160 Cal. Gov�t. Code �� 65943 & 65950 (providing for a 30-day review for application completeness, then a 60-day
period for application processing assuming there are no environmental issues); Or. Rev. Stat. � 227.178 (providing
for a 30-day review for application completeness, then a 120-day period for application processing).
161 N.C. Gen. Stat. Ann. � 153A-349.52 (providing for a 45-day review for application completeness, then a 45-day
period for collocation application processing).
162 Petition at 30-35.
163 Id. at 30.
164 Id. at 31
ing there are no environmental issues); Or. Rev. Stat. � 227.178 (providing
for a 30-day review for application completeness, then a 120-day period for application processing).
161 N.C. Gen. Stat. Ann. � 153A-349.52 (providing for a 45-day review for application completeness, then a 45-day
period for collocation application processing).
162 Petition at 30-35.
163 Id. at 30.
164 Id. at 31.
165 Id. at 31-32.
166 Id. at 32.
167 See, e.g., Sprint Nextel Comments at 11-12; T-Mobile Comments at 13-14; NextG Networks Comments at 14-15.
168 See NATOA et al. Comments at 20.
Federal Communications Commission FCC 09-99
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that the Petition fails to provide any credible or probative evidence of a prohibition on the ability of any
provider to provide services.169 Commenters also argue that granting the Petition would limit State and
local authorities� ability to regulate the location of facilities.170 One opposition commenter suggests that
because the interpretation advanced in the Petition would appear to prevent localities from considering the
presence of service by other carriers in evaluating an additional carrier�s application for an antenna site,
granting this request could have a negative impact on airports by increasing the number of potential
obstructions to air navigation.171 Finally, one commenter argues that because Section 332(c)(7)(A)172
states that the zoning authority of a State or local government over personal wireless service facilities is
only limited by the specific exceptions provided in Section 332(c)(7)(B), and because Section
332(c)(7)(B) does not say that a zoning authority cannot consider the presence of other providers, the
Commission may not impose such a limitation.173
56. Discussion
Section 332(c)(7)(A)172
states that the zoning authority of a State or local government over personal wireless service facilities is
only limited by the specific exceptions provided in Section 332(c)(7)(B), and because Section
332(c)(7)(B) does not say that a zoning authority cannot consider the presence of other providers, the
Commission may not impose such a limitation.173
56. Discussion. We conclude that a State or local government that denies an application for
personal wireless service facilities siting solely because �one or more carriers serve a given geographic
market�174 has engaged in unlawful regulation that �prohibits or ha[s] the effect of prohibiting the
provision of personal wireless services,� within the meaning of Section 332(c)(7)(B)(i)(II). Initially, we
note that courts of appeals disagree on whether a State or local policy that denies personal wireless
service facility siting applications solely because of the presence of another carrier should be treated as a
siting regulation that prohibits or has the effect of prohibiting such services.175 Thus, a controversy exists
that is appropriately resolved by declaratory ruling.176 We agree with the Petitioner that the fact that
another carrier or carriers provide service to an area is an inadequate defense under a claim that a
prohibition exists, and we conclude that any other interpretation of this provision would be inconsistent
with the Telecommunications Act's pro-competitive purpose.
57. Section 332(c)(7)(B)(i)(II) provides, as a limitation on the statute�s preservation of local
zoning authority, that a State or local government regulation of personal wireless facilities �shall not
169 Id. at 22.
170 See, e.g., City of Auburn, WA Comments at 3; City of SeaTac, WA Comments at 2.
171 See North Carolina Department of Transportation�s Division of Aviation Comments at 2.
172 47 U.S.C
32(c)(7)(B)(i)(II) provides, as a limitation on the statute�s preservation of local
zoning authority, that a State or local government regulation of personal wireless facilities �shall not
169 Id. at 22.
170 See, e.g., City of Auburn, WA Comments at 3; City of SeaTac, WA Comments at 2.
171 See North Carolina Department of Transportation�s Division of Aviation Comments at 2.
172 47 U.S.C. � 332(c)(7)(A) (stating �[e]xcept as provided in this paragraph, nothing in this chapter shall limit or
affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement,
construction, and modification of personal wireless service facilities.�).
173 See County of Albemarle, VA Comments at 8-9.
174 Petition at 32.
175 Some courts of appeals have found no violation of the �effect of prohibiting� clause solely because another
carrier is providing service. See APT Pittsburgh L.P. v. Penn Township Butler County of Pa., 196 F.3d 469, 480 (3d
Cir. 1999) (�evidence that the area the new facility will serve is not already served by another provider� essential to
showing violation �effect of prohibiting� clause); AT&T Wireless PCS, Inc. v. City Council of Va. Beach, 155 F.3d
423, 428-29 (4th Cir. 1998) (concluding that the statute only applies when the State or local authority has adopted a
blanket ban on wireless service facilities). Other courts of appeals have reached the opposite conclusion. See
Second Generation Properties, L.P. v. Town of Pelham, 313 F.3d 620, 633-34 (1st Cir. 2002) (rejecting a rule that
�any service equals no effective prohibition�); MetroPCS, Inc. v. City and County of San Francisco, 400 F.3d 715,
731-33 (9th Cir. 2005) (adopting the First Circuit�s analysis).
176 See 47 C.F.R. � 1.2; National Cable & Telecomm. Ass�n v. Brand X Internet Servs., 125 S.Ct
See
Second Generation Properties, L.P. v. Town of Pelham, 313 F.3d 620, 633-34 (1st Cir. 2002) (rejecting a rule that
�any service equals no effective prohibition�); MetroPCS, Inc. v. City and County of San Francisco, 400 F.3d 715,
731-33 (9th Cir. 2005) (adopting the First Circuit�s analysis).
176 See 47 C.F.R. � 1.2; National Cable & Telecomm. Ass�n v. Brand X Internet Servs., 125 S.Ct. at 2700 (�A court�s
prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if
the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves
no room for agency discretion�). None of the courts of appeals has held that the meaning of Section
332(c)(7)(B)(i)(II) is unambiguous. See, e.g., Omnipoint Holdings, Inc., v. City of Cranston, No. 08-2491 (1st Cir.
November 3, 2009) (�Beyond the statute�s language, the [Communications Act] provides no guidance on what
constitutes an effective prohibition, so courts � have added judicial gloss�).
Federal Communications Commission FCC 09-99
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prohibit or have the effect of prohibiting the provision of personal wireless services.�177 While we
acknowledge that this provision could be interpreted in the manner endorsed by several courts � as a
safeguard against a complete ban on all personal wireless service within the State or local jurisdiction,
which would have no further effect if a single provider is permitted to provide its service within the
jurisdiction � we conclude that under the better reading of the statute, this limitation of State/local
authority applies not just to the first carrier to enter into the market, but also to all subsequent entrants.
58. We reach this conclusion for several reasons
ate or local jurisdiction,
which would have no further effect if a single provider is permitted to provide its service within the
jurisdiction � we conclude that under the better reading of the statute, this limitation of State/local
authority applies not just to the first carrier to enter into the market, but also to all subsequent entrants.
58. We reach this conclusion for several reasons. First, our interpretation is consistent with
the statutory language referring to the prohibition of �the provision of personal wireless services� rather
than the singular term �service.� As the First Circuit observed, �[a] straightforward reading is that
�services� refers to more than one carrier. Congress contemplated that there be multiple carriers
competing to provide services to consumers.� 178
59. Second, an interpretation that would regard the entry of one carrier into the locality as
mooting a subsequent examination of whether the locality has improperly blocked personal wireless
services ignores the possibility that the first carrier may not provide service to the entire locality, and a
zoning approach that subsequently prohibits or effectively prohibits additional carriers therefore may
leave segments of the population unserved or underserved.179 In the words of the First Circuit, the �fact
that some carrier provides some service to some consumers does not in itself mean that the town has not
effectively prohibited services to other consumers.�180 Such action on the part of the locality would
contradict the clear intent of the statute.
60. Third, we find unavailing the reasons cited by the Fourth Circuit (and some other courts)
to support the interpretation that the statute only limits localities from prohibiting all personal wireless
services (i.e., a blanket ban or �one-provider� approach)
rohibited services to other consumers.�180 Such action on the part of the locality would
contradict the clear intent of the statute.
60. Third, we find unavailing the reasons cited by the Fourth Circuit (and some other courts)
to support the interpretation that the statute only limits localities from prohibiting all personal wireless
services (i.e., a blanket ban or �one-provider� approach). The Fourth Circuit�s principal concern was that
giving each carrier an individualized right under Section 332(c)(7)(B)(i)(II) to contest an adverse zoning
decision as an unlawful prohibition of its service �would effectively nullify local authority by mandating
approval of all (or nearly all) applications.�181 As explained below, however, our interpretation of the
statute does not mandate such approval and therefore does not strip State and local authorities of their
Section 332(c)(7) zoning rights. Rather, we construe the statute to bar State and local authorities from
prohibiting the provision of services of individual carriers solely on the basis of the presence of another
carrier in the jurisdiction; State and local authority to base zoning regulation on other grounds is left intact
by this ruling.
61. Finally, our construction of the provision achieves a balance that is most consistent with
the relevant goals of the Communications Act. In promoting the construction of nationwide wireless
networks by multiple carriers, Congress sought ultimately to improve service quality and lower prices for
consumers. Our interpretation in this Declaratory Ruling promotes these statutory objectives more
effectively than the alternative, which could perpetuate significant coverage gaps within any individual
177 47 U.S.C. � 332(c)(7)(B)(i)(II).
178 Second Generation Properties, L.P. v. Town of Pelham, 313 F.3d at 634
Congress sought ultimately to improve service quality and lower prices for
consumers. Our interpretation in this Declaratory Ruling promotes these statutory objectives more
effectively than the alternative, which could perpetuate significant coverage gaps within any individual
177 47 U.S.C. � 332(c)(7)(B)(i)(II).
178 Second Generation Properties, L.P. v. Town of Pelham, 313 F.3d at 634.
179 To the extent a wireless carrier has gaps in its service, a zoning restriction that bars additional carriers will
cement those gaps in place and effectively prohibit any consumer from receiving service in those areas. If the gap
is large enough, the people living in the gap area who tend to travel only shorter distances from home will be left
without a usable service altogether. According to the First Circuit, the presence of the one carrier in the jurisdiction
therefore does not end the inquiry under Section 332(c)(7)(B): �That one carrier provides some service in a
geographic gap should not lead to abandonment of examination of the effect on wireless services for other carriers
and their customers.� Second Generation Properties, L.P v. Town of Pelham. 313 F.3d at 634.
180 Id.
181 AT&T Wireless PCS v. City Council of Va. Beach, 155 F.3d at 428.
Federal Communications Commission FCC 09-99
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wireless provider�s service area and, in turn, diminish the service provided to their customers.182 In
addition, under the Fourth Circuit�s approach, competing providers may find themselves barred from
entering markets to which they would have access under our interpretation of the statute, thus depriving
consumers of the competitive benefits the Act seeks to foster
ommission FCC 09-99
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wireless provider�s service area and, in turn, diminish the service provided to their customers.182 In
addition, under the Fourth Circuit�s approach, competing providers may find themselves barred from
entering markets to which they would have access under our interpretation of the statute, thus depriving
consumers of the competitive benefits the Act seeks to foster. As the First Circuit recently stated, the
�one-provider rule� �prevents customers in an area from having a choice of reliable carriers and thus
undermines the [Act�s] goal to improve wireless service for customers through industry competition.�183
In sum, our rejection of this rule �actually better serves both individual consumers and the policy goals of
the [Communications Act].�184
62. Our determination also serves the Act�s goal of preserving the State and local authorities�
ability to reasonably regulate the location of facilities in a manner that operates in harmony with federal
policies that promote competition among wireless providers.185 As we indicated above, nothing we do
here interferes with these authorities� consideration of and action on the issues that traditionally inform
local zoning regulation. Thus, where a bona fide local zoning concern, rather than the mere presence of
other carriers, drives a zoning decision, it should be unaffected by our ruling today. The Petitioner
appears to recognize this when it states that it �does not seek a ruling that zoning authorities are
prohibited from favoring collocation over new facilities where collocation is appropriate.�186 Our ruling
here does not create such a prohibition. To the contrary, we would observe that a decision to deny a
personal wireless service facility siting application that is based on the availability of adequate collocation
opportunities is not one based solely on the presence of other carriers, and so is unaffected by our
interpretation of the statute in this Declaratory Ruling.
63
�186 Our ruling
here does not create such a prohibition. To the contrary, we would observe that a decision to deny a
personal wireless service facility siting application that is based on the availability of adequate collocation
opportunities is not one based solely on the presence of other carriers, and so is unaffected by our
interpretation of the statute in this Declaratory Ruling.
63. We disagree with the assertion that granting the petition could have a negative impact on
airports by increasing the number of potential obstructions to air navigation.187 As the Federal Aviation
Administration notes, our action on this Petition does not alter or amend the Federal Aviation
Administration�s regulatory requirements and process.188 Under the Commission�s rules as well, parties
are required to submit for Federal Aviation Administration review all antenna structures189 that potentially
can endanger air navigation, including those near airports.190 The Commission requires antenna structures
that exceed 200 feet in height above ground or which require special aeronautical study to be painted and
lighted191 and also requires antenna structures to conform to the Federal Aviation Administration's
painting and lighting recommendations.192
64. We reject the assertion that the declaration the Petitioner seeks would violate Section
182 See MetroPCS, Inc. v. City and County of San Francisco, 400 F.3d at 732 (result of �one-provider� interpretation
is �a crazy patchwork quilt of intermittent coverage � [that] might have the effect of driving the industry toward a
single carrier,� quoting Second Generation Properties, L.P. v. Town of Pelham, 313 F.3d at 631).
183 Omnipoint Holdings, Inc., v. City of Cranston (citing Second Generation Properties, L.P. v. Town of Pelham,
313 F.3d at 631, 633).
184 MetroPCS, Inc. v. City and County of San Francisco, 400 F.3d at 722.
185 See, e.g., City of Auburn, WA Comments at 3; City of SeaTac, WA Comments at 2
ward a
single carrier,� quoting Second Generation Properties, L.P. v. Town of Pelham, 313 F.3d at 631).
183 Omnipoint Holdings, Inc., v. City of Cranston (citing Second Generation Properties, L.P. v. Town of Pelham,
313 F.3d at 631, 633).
184 MetroPCS, Inc. v. City and County of San Francisco, 400 F.3d at 722.
185 See, e.g., City of Auburn, WA Comments at 3; City of SeaTac, WA Comments at 2.
186 CTIA Reply Comments at 29-30 (emphasis removed).
187 See North Carolina Department of Transportation�s Division of Aviation Comments at 2.
188 See FAA Comments at 1.
189 Section 17.2(a) of the rules defines �antenna structure� as including �the radiating and/or receive system, its
supporting structures and any appurtenances mounted thereon.� 47 C.F.R. � 17.2(a).
190 See 47 C.F.R. � 17.7.
191 See 47 C.F.R. � 17.21.
192 See 47 C.F.R. � 17.23.
Federal Communications Commission FCC 09-99
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332(c)(7)(A).193 Subparagraph (A) states that the authority of a State or local government over decisions
regarding the placement, construction, and modification of personal wireless service facilities is limited
only by the limitations imposed in subparagraph (B).194 Because the Petition requests that the
Commission clarify one of the express limitations of Section 332(c)(7)(B) � i.e., whether reliance solely
on the presence of other carriers effectively operates as a prohibition under Section 332(c)(7)(B)(i)(II) �
we find that the Petitioner is not seeking an additional limitation beyond those enumerated in
subparagraph (B).
65
in subparagraph (B).194 Because the Petition requests that the
Commission clarify one of the express limitations of Section 332(c)(7)(B) � i.e., whether reliance solely
on the presence of other carriers effectively operates as a prohibition under Section 332(c)(7)(B)(i)(II) �
we find that the Petitioner is not seeking an additional limitation beyond those enumerated in
subparagraph (B).
65. In addition, opponents argue that denial of a single application is insufficient to
demonstrate a violation of the �effect of prohibiting� clause.195 Circuit courts have generally been
hesitant to find that denial of a single application demonstrates such a violation, but to varying degrees,
they allow for that possibility.196 We note that the denial of an application may sometimes establish a
violation of Section 332(c)(7)(B)(ii) if it demonstrates a policy that has the effect of prohibiting the
provision of personal wireless services as interpreted herein. Whether the denial of a single application
indicates the presence of such a policy will be dependent on the facts of the particular case.
D. Ordinances Requiring Variances
66. Background. In its Petition, CTIA requests that the Commission preempt, under Section
253(a) of the Act,197 local ordinances and State laws that effectively require a wireless service provider to
obtain a variance, regardless of the type and location of the proposal, before siting facilities.198 It asks the
Commission to declare that any ordinance automatically imposing such a condition is �an impermissible
barrier to entry under Section 253(a)� and is therefore preempted.199 To support such action, CTIA
provides two examples of zoning limitations in a �New Hampshire community� and a �Vermont
community� that it claims in effect require carriers to obtain a special variance.200 Wireless providers that
address this issue agree with the Petition, arguing that the variance process sets a high evidentiary bar
which diminishes the wireless providers� prospects of gai
To support such action, CTIA
provides two examples of zoning limitations in a �New Hampshire community� and a �Vermont
community� that it claims in effect require carriers to obtain a special variance.200 Wireless providers that
address this issue agree with the Petition, arguing that the variance process sets a high evidentiary bar
which diminishes the wireless providers� prospects of gaining approval to site facilities.201 Many other
commenting parties are opposed to the Petition�s request and assert, for example, that Section 332(c)(7) is
193 See County of Albemarle, Virginia Comments at 8-9.
194 47 U.S.C. � 332(c)(7)(A).
195 See NATOA et al. Comments at 19-20; Coalition for Local Zoning Authority Comments at 11.
196 See, e.g., Town of Amherst, N.H. v. Omnipoint Communications Enterprises, Inc., 173 F.3d 9, 14 (1st Cir. 1999)
(�Obviously, an individual denial is not automatically a forbidden prohibition violating the [effect of prohibiting
clause].�); APT Pittsburgh L.P. v. Penn Township Butler County of Pa., 196 F.3d at 478-79 (�Interpreting the
[Telecommunications Act�s] �effect of prohibiting� clause to encompass every individual zoning denial simply
because it has the effect of precluding a specific provider from providing wireless services, however, would give the
[Act] preemptive effect well beyond what Congress intended. . . . This does not mean, however, that a provider can
never establish that an individual adverse zoning decision has the �effect� of violating [Section]
332(c)(7)(B)(i)(II).�); MetroPCS, Inc. v. City and County of San Francisco, 400 F.3d at 731 (�it would be extremely
dubious to infer a general ban from a single [] denial�). See also T-Mobile, USA, Inc. v. City of Anacortes, 572
F.3d 987, 994-95 (9th Cir
ot mean, however, that a provider can
never establish that an individual adverse zoning decision has the �effect� of violating [Section]
332(c)(7)(B)(i)(II).�); MetroPCS, Inc. v. City and County of San Francisco, 400 F.3d at 731 (�it would be extremely
dubious to infer a general ban from a single [] denial�). See also T-Mobile, USA, Inc. v. City of Anacortes, 572
F.3d 987, 994-95 (9th Cir. 2009) (finding that because the city was unable to show that there were any available and
feasible alternatives to T-Mobile's proposed site, the City's denial of T-Mobile's application constituted a violation
of the effect of prohibiting clause under Section 332(c)(7)(B)(i)(II)).
197 47 U.S.C. � 253(a).
198 See Petition at 35-37.
199 Id. at 37; see also id. at 36 ( �The FCC should declare that any ordinance that automatically requires a . . .
variance . . . is preempted. . . �).
200 See id. at 36.
201 See, e.g., Sprint Nextel Comments at 13-14; CalWA Comments at 3; Rural Cellular Association Comments at 8;
MetroPCS Comments at 13.
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the exclusive authority in the Act on matters involving wireless facility siting.202 They maintain that
Section 253 does not apply to wireless facility siting disputes involving blanket variance ordinances.203
67. Discussion. We deny CTIA�s request for preemption of ordinances that impose blanket
variance requirements on the siting of wireless facilities
unications Commission FCC 09-99
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the exclusive authority in the Act on matters involving wireless facility siting.202 They maintain that
Section 253 does not apply to wireless facility siting disputes involving blanket variance ordinances.203
67. Discussion. We deny CTIA�s request for preemption of ordinances that impose blanket
variance requirements on the siting of wireless facilities. Because CTIA does not seek actual preemption
of any ordinance by its Petition,204 we decline to issue a declaratory ruling that �zoning ordinances
requiring variances for all wireless siting requests are unlawful and will be struck down if challenged in
the context of a Section 253 preemption action.�205 CTIA does not present us with sufficient information
or evidence of a specific controversy on which to base such action or ruling,206 and we conclude that any
further consideration of blanket variance ordinances should occur within the factual context of specific
cases. To the extent specific evidence is presented to the Commission that a blanket variance ordinance is
an effective prohibition of service, then we will in that context consider whether to preempt the
enforcement of that ordinance in accordance with the statute. We note that in denying CTIA�s request,
we make no interpretation of whether and how a matter involving a blanket variance ordinance for
personal wireless service facility siting would be treated under Section 332(c)(7) and/or Section 253 of
the Act.207
E. Other Issues
68. Service Requirements
t consider whether to preempt the
enforcement of that ordinance in accordance with the statute. We note that in denying CTIA�s request,
we make no interpretation of whether and how a matter involving a blanket variance ordinance for
personal wireless service facility siting would be treated under Section 332(c)(7) and/or Section 253 of
the Act.207
E. Other Issues
68. Service Requirements. Numerous parties argue that the Petitioner failed to follow the
Commission�s service requirements with respect to preemption petitions.208 Our rules require that a party
filing either a petition for declaratory ruling seeking preemption of State or local regulatory authority, or a
petition for relief under Section 332(c)(7)(B)(v), must serve the original petition on any State or local
government whose actions are cited as a basis for requesting preemption.209 By its terms, the service
requirement does not apply to a petition that cites examples of the practices of unidentified jurisdictions to
demonstrate the need for a declaratory ruling interpreting provisions of the Communications Act.210
Commenters' principal argument is that the Commission should require the Petitioner to identify the
202 47 U.S.C. � 332(c)(7).
203 Several commenters argue that by using the sweeping phrase �nothing in this chapter,� Congress made clear that
it intended Section 332(c)(7) to override any other provision in the Communications Act that may be in conflict,
including Section 253. They further argue that CTIA�s proposal to have the Commission broadly preempt any
ordinances �effectively� requiring a variance directly conflicts with Congress� preservation of local zoning authority
in Section 332(c)(7). See, e.g., NATOA et al. Comments at 7; California Cities Comments at 23-24; Fairfax County
Comments at 3; Michigan Municipalities Comments at 2; N.C. Assoc. of County Commissioners Comments at 1-2.
204 See, e.g., CTIA Reply Comments at 33 n.124.
205 Id. at 30
ces �effectively� requiring a variance directly conflicts with Congress� preservation of local zoning authority
in Section 332(c)(7). See, e.g., NATOA et al. Comments at 7; California Cities Comments at 23-24; Fairfax County
Comments at 3; Michigan Municipalities Comments at 2; N.C. Assoc. of County Commissioners Comments at 1-2.
204 See, e.g., CTIA Reply Comments at 33 n.124.
205 Id. at 30.
206 Although the Petition identifies two examples that Petitioner describes as problematic, it does not represent that
the ordinances explicitly require variances for all applications, nor does it attempt to demonstrate with any
specificity why the examples effectively require variances in all instances. See Petition at 36 (briefly describing
ordinances of communities in Vermont and New Hampshire).
207 47 U.S.C. �� 332(c)(7), 253.
208 See, e.g., Coalition for Local Zoning Authority Comments at 2-4; NATOA et al. Comments at 21; Greater Metro
Telecom. Consortium and City of Boulder, CO Comments at 2-3.
209 47 C.F.R. � 1.1206(a), Note 1.
210 We note that the Petitioner did belatedly serve the two local governments whose ordinances were described in the
Petition as requiring variances; however, as discussed above, we deny Petitioner�s request to preempt ordinances
that require variances. See Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B) to Ensure
Timely Siting Review and to Preempt under Section 253 State and Local Ordinances that Classify All Wireless
Siting Proposals as Requiring a Variance, WT Docket No. 08-165, Opposition to Motions for Extension of Time, at 3
n.7 (filed Aug. 26, 2008).
Federal Communications Commission FCC 09-99
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jurisdictions that it references anonymously, which, they assert, would then trigger the service
requirement. However, nothing in the rules requires that these jurisdictions be identified
All Wireless
Siting Proposals as Requiring a Variance, WT Docket No. 08-165, Opposition to Motions for Extension of Time, at 3
n.7 (filed Aug. 26, 2008).
Federal Communications Commission FCC 09-99
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jurisdictions that it references anonymously, which, they assert, would then trigger the service
requirement. However, nothing in the rules requires that these jurisdictions be identified. We recognize,
as commenters emphasize, that in the absence of identification it has not been possible for some local
governments to respond to certain factual statements in the Petition, either directly or through their
associations,211 and we take this into account in considering the weight we give to these assertions. At the
same time, State and local governments have entered voluminous evidence into the record on their own
behalf, including responses to several of the specific examples offered by the Petitioner. Accordingly, we
conclude that the record is sufficient to address the Petitioner's claims.
69. Radiofrequency (RF) Emissions. Several commenters argue that we should deny CTIA�s
Petition in order to protect local citizens against the health hazards that these commenters attribute to RF
emissions.212 Section 332(c)(7)(B)(iv) of the Act provides that �[n]o State or local government or
instrumentality thereof may regulate the placement, construction, and modification of personal wireless
service facilities on the basis of the environmental effects of radio frequency emissions to the extent that
such facilities comply with the Commission�s regulations concerning such emissions.�213 To the extent
commenters argue that State and local governments require flexibility to deny personal wireless service
facility siting applications or delay action on such applications based on the perceived health effects of RF
emissions, this authority is denied by statute under Section 332(c)(7)(B)(iv). Accordingly, such
arguments are outside the scope of this proceeding.
70
ions.�213 To the extent
commenters argue that State and local governments require flexibility to deny personal wireless service
facility siting applications or delay action on such applications based on the perceived health effects of RF
emissions, this authority is denied by statute under Section 332(c)(7)(B)(iv). Accordingly, such
arguments are outside the scope of this proceeding.
70. In its Comments and Cross-Petition, EMRPI contends that in light of additional data that
has been compiled since 1996, the RF safety regulations that the Commission adopted at that time are no
longer adequate.214 EMRPI is asking us to revisit the Commission�s previous decision that the scientific
evidence did not support the establishment of guidelines to address the non-thermal effects of RF
emissions.215 This request is also outside the scope of the current proceeding, and we therefore dismiss
EMRPI�s Cross-Petition.
IV. CONCLUSION
71. For the reasons discussed above, we grant in part and deny in part CTIA�s Petition for a
Declaratory Ruling interpreting provisions of Section 332(c)(7) of the Communications Act. In
particular, we find that a �reasonable period of time� for a State or local government to act on a personal
wireless service facility siting application is presumptively 90 days for collocation applications and
presumptively 150 days for siting applications other than collocations, and that the lack of a decision
within these timeframes constitutes a �failure to act� based on which a service provider may commence
an action in court under Section 332(c)(7)(B)(v). We also find that where a State or local government
denies a personal wireless service facility siting application solely because that service is available from
another provider, such a denial violates Section 332(c)(7)(B)(i)(II)
decision
within these timeframes constitutes a �failure to act� based on which a service provider may commence
an action in court under Section 332(c)(7)(B)(v). We also find that where a State or local government
denies a personal wireless service facility siting application solely because that service is available from
another provider, such a denial violates Section 332(c)(7)(B)(i)(II). By clarifying the statute in this
manner, we recognize Congress� dual interests in promoting the rapid and ubiquitous deployment of
advanced, innovative, and competitive services, and in preserving the substantial area of authority that
Congress reserved to State and local governments to ensure that personal wireless service facility siting
211 See, e.g., City of Philadelphia Comments at 2-3 (arguing that the failure of the Petitioner to identify and serve the
localities discussed in its Petition denies the Commission a complete and fair record of the facts).
212 See, e.g., Catherine Kleiber Comments; E. Stanton Maxey Comments at 1; Maria S. Sanchez Comments at 1-2;
Miranda R. Taylor Comments at 1-2.
213 47 U.S.C. � 332(c)(7)(B)(iv).
214 EMRPI Comments and Cross-Petition at 4.
215 Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation, ET Docket No. 93-62, Second
Memorandum Opinion and Order and Notice of Proposed Rule Making, 12 FCC Rcd 13494, 13505 � 31 (1997),
aff'd sub nom. Cellular Phone Taskforce v. FCC, 205 F.3d 82 (2d Cir. 2000), cert. denied sub nom. Citizens for the
Appropriate Placement of Telecommunications Facilities v. FCC, 531 U.S. 1070 (2001).
Federal Communications Commission FCC 09-99
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occurs in a manner consistent with each community�s values.
V. ORDERING CLAUSES
72. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i), 4(j), 201(b), 253(a),
303(r), and 332(c)(7) of the Communications Act of 1934, as amended, 47 U.S.C. �� 154(i), (j), 201(b),
253(a), 303(r), 332(c)(7), and Section 1.2 of the Commission�s rules, 47 C.F.R
al Communications Commission FCC 09-99
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occurs in a manner consistent with each community�s values.
V. ORDERING CLAUSES
72. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i), 4(j), 201(b), 253(a),
303(r), and 332(c)(7) of the Communications Act of 1934, as amended, 47 U.S.C. �� 154(i), (j), 201(b),
253(a), 303(r), 332(c)(7), and Section 1.2 of the Commission�s rules, 47 C.F.R. � 1.2, the Petition for
Declaratory Ruling filed by CTIA�The Wireless Association IS GRANTED to the extent specified in
this Declaratory Ruling and otherwise IS DENIED.
73. IT IS FURTHER ORDERED that, pursuant to Sections 4(i), 4(j), and 332(c)(7) of the
Communications Act of 1934, as amended, 47 U.S.C. �� 154(i), (j), 332(c)(7), and Section 1.2 of the
Commission�s rules, 47 C.F.R. � 1.2, the Cross-Petition filed by the EMR Policy Institute IS
DISMISSED.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
Federal Communications Commission FCC 09-99
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APPENDIX A
List of Participants in Proceeding
Comments
AT&T Inc. (AT&T)
Air Line Pilots Association, International
Aircraft Owners and Pilots Association
Airports Council International-North America
Alltel Communications, LLC
American Legislative Exchange Council
American Planning Association
Arthur Firstenberg
Atlantic Technology Consultants, Inc.
Aviation Council of Alabama Inc.
Aviation Department, Charles B. Wheeler Downtown Airport
B. Blake Levitt
Bartonville, Texas
Broadcast Signal Lab, LLC
Cable and Telecommunications Committee of the New Orleans City Council
California Wireless Association (CalWA)
Carole Maurer and John Dilworth
Cascade Charter Township, Michigan
Catawba County
Catherine Kleiber
Charles B
nsultants, Inc.
Aviation Council of Alabama Inc.
Aviation Department, Charles B. Wheeler Downtown Airport
B. Blake Levitt
Bartonville, Texas
Broadcast Signal Lab, LLC
Cable and Telecommunications Committee of the New Orleans City Council
California Wireless Association (CalWA)
Carole Maurer and John Dilworth
Cascade Charter Township, Michigan
Catawba County
Catherine Kleiber
Charles B. Wheeler Downtown Airport
Charleston County Planning Department, Charleston County, South Carolina
Citizens Against Government Waste
City of Airway Heights, Washington State
City of Albany, California
City of Albuquerque, New Mexico
City of Anacortes, Washington
City of Apple Valley, Dakota County Minnesota
City of Arlington, Texas
City of Auburn, Washington (City of Auburn, WA)
City of Austin, Texas
City of Bartonville, Texas
City of Bellevue, Washington
City of Bellingham, Washington (City of Bellingham, WA)
City of Bloomington Minnesota
City of Boca Raton
City of Burien, Washington (City of Burien, WA)
City of Champaign, Illinois
City of Cincinnati, Ohio
City of Columbia, South Carolina
City of Coppell, Texas
City of Dallas, Texas
City of Des Plaines, Illinois
City of Dublin, Ohio (City of Dublin, OH)
City of Dubuque
Federal Communications Commission FCC 09-99
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City of Evanston, Illinois
City of Farmers Branch
City of Gahanna, Ohio
City of Golf Shores
City of Grand Rapids
City of Greensboro, North Carolina
City of Grove City, Ohio (City of Grove City, OH)
City of Gulf Shores, Alabama
City of Hammond, Michigan
City of Henderson, Nevada
City of Houston, Texas
City of Huntsville, Alabama
City of Kasson, Minnesota
City of Kirkland, Washington
City of Lancaster, Texas
City of LaGrande, Oregon
City of Las Vegas, Nevada
City of Longmont, Colorado
City of Lucas, Texas
City of New Ulm, Minnesota
City of North Oaks
City of North Ridgeville, Ohio
City of Oak Park Heights
City of Philadelphia
City of Plymouth, Minnesota
City of Prior Lake, Minnesota
City of Red Wing
City o
City of Kasson, Minnesota
City of Kirkland, Washington
City of Lancaster, Texas
City of LaGrande, Oregon
City of Las Vegas, Nevada
City of Longmont, Colorado
City of Lucas, Texas
City of New Ulm, Minnesota
City of North Oaks
City of North Ridgeville, Ohio
City of Oak Park Heights
City of Philadelphia
City of Plymouth, Minnesota
City of Prior Lak
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