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Real Property & Development Review

5th Circuit Upholds “Shot Clock” Ruling: FCC’s Time Limits for Processing Wireless Facility Siting Applications Remain in Force

Posted in Land Use

In the first major challenge to the FCC’s November 18, 2009 Declaratory Ruling establishing timelines for state and local government to act on wireless facility siting applications, commonly known as the “Shot Clock” ruling, the 5th Circuit Court of Appeals has denied and dismissed petitions for review brought by two Texas cities, Arlington and San Antonio, seeking review of the Declaratory Ruling on jurisdictional and other grounds. In its January 23, 2012 opinion in City of Arlington v. Federal Communications Commission(Case No. 10-60039), the 5th Circuit Court of Appeals upheld the Declaratory Ruling, holding that the FCC had statutory authority to establish time frames for state and local governments to take action on wireless facility siting applications, and that the time frames established in the Ruling constitute reasonable and lawful interpretations of its statutory authority. Section 332(c)(7)(B)(ii) of the Federal Telecommunications Act of 1996 requires that state and local governments act on an application to site a wireless communication facility “within a reasonable period of time,” and Section 332(c)(7)(B)(v) creates a cause of action for an applicant to challenge any such failure to act. In its 2009 Declaratory Ruling, the FCC established time frames within which state and local governments must act on applications to site personal wireless service facilities, declaring that a “reasonable period of time” for purposes of the Act is presumptively 90 days for collocations and 150 days for all other applications. The FCC further determined that a lack of decision within these time frames would constitute a failure to act under Section 332(c)(7)(B)(v).