The FCC’s Shot Clock for siting decisions in wireless cases is turning out to be the bad idea that most governments expected it would be.   Right now we’re seeing the first round of “Chicken” …  The carriers are starting to demand siting decisions on cases because the Shot Clock rule entitles them to sue if they don’t get it.

“Okay… you want a decision?  DENIED for the following reasons based on evidence in the administrative record….”  is what some governments are starting to offer applicants who demand their ‘final’ decision on day 90 or 150.  At the last minute will one side or the other ‘blink’ in this high-stakes game of Chicken? 

In some cases, especially in California with its state law CEQA requirements and when looking at compliance with local siting ordinance requirements, the decisions simply can’t pop out on time like the output of an assembly line.

I suspect we’ll see a fair number of application denials in the next few months while all sides figure out how to live under the Shot Clock…at least until the rule is overturned or seriously limited by the courts.

It was a dumb idea for the wireless industry to push for this rule.  The only ones who will really benefit from strict and severe application of the rule will be the attorneys and experts.  As both, I still think this was a dumb idea becuase it will make siting a more rigid process.

Those are my opinions.  What are yours?

It’s fairly common to see someone show up at a city or county planning meeting to oppose a wireless site based on concerns over RF safety, yet one gentlemen, Jeff Haebig has taken this type of protect to a new and highly artistic level.

Very amusing, even if not based on scientific fact.

Jonathan Kramer

This guide discusses how local government agencies can properly and effectively deal with RF safety issues that come up in connection with wireless siting cases (primarily cell sites, but also broadcast, ham radio, and commercial two-way users, as well).

While written primarily for California public law attorneys, attorneys around the country will find many important and useful gems in the article.

The editor of the Public Law Journal has kindly granted permission for me to reproduce the article in PDF format.

Please follow this link to download the article download page.

From the order:

RANDOLPH, Circuit Judge: Hurricane Katrina exposed several weaknesses in the Gulf Coast’s communications infrastructure, among which was the loss of power for critical communications networks. To address this problem, the Federal Communications Commission promulgated a rule requiring commercial mobile radio service (CMRS) providers to maintain a minimum amount of emergency backup power for “all assets necessary to maintain communications that are normally powered from local commercial power.” In the Matter of Recommendations of the Independent Panel Reviewing the Impact of Hurricane Katrina on Communications Networks, 22 F.C.C. Rcd 18,013, 18,035 (2007) (“Reconsideration Order”).

The rule thus requires a backup power source (e.g., batteries or generators) for every cell site and paging transmitter unless an exemption is met.  Petitioners, who are wireless and paging service providers, oppose the backup power rule on the grounds that the Commission adopted it without statutory authority, that the parties lacked notice, and that the Commission acted arbitrarily and capriciously. We decline to address these contentions now because the case is not ripe for review.

You can download the entire order by clicking here.

The case caption and introduction are below, followed by a PDF of the decision.

No. 06-1165
AMERICAN BIRD CONSERVANCY, INC.
AND FOREST CONSERVATION COUNCIL,
PETITIONERS
v.
FEDERAL COMMUNICATIONS COMMISSION,
RESPONDENT
CTIA – THE WIRELESS ASSOCIATION, ET AL.,
INTERVENORS

PER CURIAM: The American Bird Conservancy and Forest conservation Council petition for review of an order by the Commission denying in part and dismissing in part their petition seeking protection of migratory birds from collisions with communications towers in the Gulf Coast region. In Re Petition by Forest Conservation Council, American Bird Conservancy and Friends of the Earth for National Environmental Policy Act Compliance (“Order”), 21 F.C.C.R. 4462 (2006). Their petition claimed that Commission rules and procedures for approving new towers failed to comport with the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq., and the Migratory Bird Treaty Act (“MBTA”), 16 U.S.C. § 701 et seq. We vacate the Order because the Commission failed to apply the proper NEPA standard, to provide a reasoned explanation on consultation under the ESA, and to provide meaningful notice of pending tower applications.

Court Decision