Wireless Industry Celebrates, Muni’s Ponder Shot Clock Ruling

June 6, 2013

The wireless industry celebrated the recent U.S. Supreme Court decision upholding FCC’s Shot Clock ruling in the case City of Arlington, Texas, et al. v. FCC et al. But municipalities were less than enthused.

“By upholding the shot clock, the Supreme Court properly recognizes that the FCC was well within its authority to clarify a reasonable period of time for local consideration of wireless facility siting applications,” PCIA President & CEO Jonathan Adelstein, said in a prepared statement. “The shot clock is a sensible policy that facilitates wireless broadband deployment and network upgrades through predictable timelines.”

The municipalities claimed that the FCC did not have the authority to make the shot clock ruling, which set a deadline of 90 days for cities to process co-location applications and set another deadline of 150 days for processing new towers.

The Supreme Court held that the “Chevron framework” must be applied to the FCC’s interpretation of the congressional statute, in which it defined the reasonable time period for a municipality to process a cell tower application. Under Chevron, a reviewing court must defer to an agency’s interpretation of a law, if Congress has not directly spoken to the precise question at issue.

The wireless industry set its sights on further changes in the regulation of collocation.

“The Supreme Court’s affirmation of the FCC’s Shot Clock removes the last of the legal objections. With the judicial cloud removed, the FCC is free to fine-tune the collocation shot clock to further expedite build out,” William Sill, partner, Wilkinson, Barker Knauer, told AGL Bulletin.

Municipalities were not as enthusiastic, hinting that further court challenges to collocation legislation may be in the offing. Jonathan Kramer of Telecom Law Firm, an attorney working for local governments said, “The Supreme Court conclusion that the commission possesses the authority to determine its own jurisdiction is not without limits. The justices in the majority today made it clear that the FCC’s power to regulate on behalf of Congress is limited where Congress clearly sets clear boundaries.”

Kramer expects that with the decision on the Shot Clock, the commission will be emboldened to venture into creating rules to implement the collocation provisions of Section 6409(a) of the Middle Class Tax Relief Act of 2012.

“While it is likely the commission will now look at how to implement Section 6409(a), basic questions remain regarding the constitutionality of that entire Section,” he said.