FCC Wireless Shot Clock Trumps Complex Local Processes, Says 1st Circuit While Addressing Section 332 “Final Action” Requirement

On Jan. 8, 2016, in Global Tower Assets, LLC v. Town of Rome, the U.S. Court of Appeals for the 1st Circuit held that a wireless permit applicant must go through all administrative appeals required by local law before there is a “final action” by the local government that may be appealed under Section 332(c)(7)(B)(v) of the Communications Act.

The 1st Circuit’s holding on that issue was perhaps not a surprising outcome, but in reaching that conclusion, the 1st Circuit emphasized a noteworthy point – the FCC’s “shot clock” timeframe for local action applies no matter how cumbersome the local government chooses to make the administrative process.

In Global Tower, the applicants, a tower company and wireless carrier, had applied to the Town of Rome, Maine, for authority to build a new tower. Under the local ordinance, the application first was heard by the Rome Planning Board. After nearly a year, and several extensions by the applicants, the Planning Board voted to deny the application. Twenty nine days after the Planning Board vote, the applicants filed suit in federal district court.

The Town moved to dismiss, arguing that the Planning Board denial was not the “final action” of the Town because the local ordinance required the applicants to appeal the Planning Board decision to the Town Board of Appeals. The District Court granted the Town’s motion to dismiss (including on other grounds).

The 1st Circuit agreed with the Town and the District Court. Looking to principles from the Administrative Procedures Act (“APA”), the First Circuit held that when a local government makes final administrative determination subject to a two-stage review process, the applicant must go through the required steps before there is a “final action” of the local government that can be appealed under 47 U.S.C. § 332(c)(7)(B)(v).

For the most part, that decision by the 1st Circuit was perhaps not surprising, grounded as it was in APA law. However, as part of its analysis, the Court made an important point. Section 332(c)(7)(B)(ii) requires local governments to act within a reasonable time, and the FCC in its “Shot Clock” Order has defined the presumptively reasonable time for action in the case of a new tower (150 days) or for installation on an existing structure (90 days). The 1st Circuit recognized that the unreasonable delay provision “places an outer limit on the time that a state or local government may take to come to a ‘final’ decision.” As a result, the Court noted that the FCC’s Shot Clock

"time-limit applies no matter how cumbersome or streamlined a state or local government (or an instrumentality thereof) chooses to make its administrative process."

In other words, even though to reach a “final” action an applicant may have to pursue multiple administrative steps or appeals, the local government cannot avoid the Shot Clock by creating byzantine, multi-layered review and appeal processes.

The 1st Circuit’s conclusion that the Shot Clock limits the time local governments can take is important to help prevent delay as the wireless industry seeks to deploy in a timely and expeditious matter the network infrastructure necessary to satisfy consumer demand.