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FCC’s Cell Tower Zoning Shot Clock Orders

In January the Federal Fifth Circuit Court of Appeals upheld (but restricted the effect) of the FCC’s cell tower zoning shot clock orders. Here’s the link to our summary and analysis

But briefly . . . In English, the court said if a municipality has much of a reason for exceeding the shot clocks, then any presumption it acted improperly goes away and the courts take an independent look at the pros and cons of whether taking more time was reasonable.  And it went way out of its way to list quite a few items that might well justify exceeding the shot clocks.  That is unusual and is at least partially due to the excellent briefing and arguments municipalities put forth.

Basically one gets the sense that in this case the Fifth Circuit Court of Appeals was not entirely pleased with the shot clock order, and would uphold it only by both restricting its effect, and listing items that would justify exceeding the shot clock.

 This is reinforced by the fact that the court noted the possibility that courts outside the Fifth Circuit (which only covers Texas, Louisiana and Mississippi) may find the shot clocks invalid.  This is because some courts give less deference to agency decisions than does the Fifth Circuit.  The Fifth Circuit Court of Appeals didn’t need to say this.

But in the meantime, the cellular industry added to the payroll tax extension bill language purporting to require local zoning approval of new, collocated cell towers which do not significantly change existing towers. So the controversy continues. More about the new statute next time.

© 2020 Varnum LLPNational Law Review, Volume II, Number 65


About this Author

John W. Pestle, telecommunications attorney, Varnum

John is a member of the firm's Environmental, Energy and Natural Resources Team. Since 1996 he has represented property owners across the country (businesses, developers, schools, churches, municipalities, real estate companies) on the grant, renewal and modification of cell tower leases with companies like Verizon Wireless, AT&T Wireless, T-Mobile and Crown Castle. He has also represented clients on the evaluation or sale of over sixty (60) cell tower leases and future leasing rights to companies like American Tower, Crown Castle, SBA, Wireless Capital Partners,...