A recent decision by a federal district court in New York revealed the need for further action by the FCC or Congress to speed the deployment of wireless services demanded by consumers. In Up State Tower Co., LLC v. Town of Kiantone, the Western District of New York held that the Town of Kiantone, NY, had failed to act on Up State Tower’s application to install a new wireless tower in a reasonable period of time in violation of Section 332(c)(7)(B)(ii) of the Communications Act, as defined by the FCC’s wireless “Shot Clock Order.”
In doing so, the court made several important findings, notably that Up State Tower’s requests to continue public hearings did not constitute mutual agreement to extend the FCC’s Shot Clock. The court particularly identified that the tower company had, on several occasions, put on the record that it believed the Shot Clock was not tolled. Likewise, the court rejected the Town’s argument that it had tolled the Shot Clock with a notice of incomplete application. The court recognized that the Town’s “notice” was not provided within 30 days of the application, as required by the FCC’s Shot Clock Order. Indeed, the Town’s “notice” came approximately 4 months after the application was filed and after hearings by the Town Board and Town Planning Board.
Despite holding that the Town had violated Section 332(c)(7)(B)(ii) by failing to act on the application within 150 days, the court refused to issue an order requiring the Town to grant the application – which is the overwhelmingly recognized remedy for a violation of Section 332(c)(7)(B). Indeed, an injunction ordering grant of the application was the remedy granted by the same Western District of New York court for violation of the Shot Clock in Bell Atlantic Mobile of Rochester, L.P. v. Town of Irondequoit in 2012. Instead, the court in this case gave the Town 20 days to issue a decision on the application.
The court’s decision reveals a troubling unwillingness to respect the purpose of Section 332(c)(7)(B)(ii) and the clear national policy of promoting the rapid deployment of wireless telecommunications services and facilities. The court justified its refusal to issue the injunction by noting that the FCC had stated that a violation of the shot clock did not “in and of itself” entitle the applicant to an injunction. But the FCC had at the same time stated that the court should review the record to determine the appropriate remedy. Here, the court gave no explanation of what in the record suggested that the Town should be given yet more time to act on an application filed a year and a half earlier.
As a result, the reality of the case is that the litigation took ten months for the court to merely return the application to the same Town with only instructions to issue a decision.
Prominent members of the FCC have publically recognized the need to do more to ensure that local governments are not delaying wireless services with a patchwork of parochial regulations. Indeed, Commissioner Pai has repeatedly stated his belief that the FCC should adopt a “deemed granted” remedy for violations of the Shot Clock. Certainly, the lack of clarity that leads to the outcome in Kiantone – with the court correctly finding a violation of the Act, but failing to impose a meaningful remedy – may prompt action by the FCC or Congress, or both.