Your Call Cannot be Completed: When can a city deny a cell tower permit?

A city’s authority to regulate the placement and modification of cell towers is limited by the federal Telecommunications Act of 1996. When a local government receives a cell tower siting application, it must respond “within a reasonable period of time” (90 days for collocation applications and 150 days for all other applications) and must support any denial with “substantial evidence contained in a written record.” A cell service provider may, within 30 days of a denial or failure to respond, file suit against the local government.

Cell tower companies need a number of local, state, and federal permits and authorizations to lawfully construct and operate a cell tower. This blog post focuses on a municipality’s authority over the approval and siting of cell towers in Texas.

The federal Telecommunications Act of 1996 put limitations on the way that states and local governments may regulate telecommunications facilities but did not preempt local regulation entirely. The goal of the law, according to the Federal Communications Commission (FCC), is “to let anyone enter any communications business—to let any communications business compete in any market against any other.”

Under the Telecommunications Act of 1996, there are five important limitations on local government when dealing with cell towers and telecommunications carriers; a few of these limitations are discussed further in this blog post.

• A local government shall not unreasonably discriminate between providers of functionally equivalent services when regulating the placement, construction, and modification of cell towers.[1]

• A local government shall not prohibit or have the effect of prohibiting the provision of service when regulating the placement, construction, and modification of cell towers.[2]

• A local government must act on any request for authorization to place, construct, or modify a cell tower within a “reasonable period of time” after the request is filed.[3]

• A local government must issue a written opinion explaining its decision to deny a request, which decision must be supported by “substantial evidence.”[4]

• A local government cannot deny the placement, construction, or modification of cell towers based on the alleged “environmental effects of radio frequency emissions,” so long as the facilities comply with the FCC’s regulations on radio frequency emissions.[5]

Siting applications must be acted on within “reasonable period of time”

The FCC, in response to complaints from cell service providers that state and local governments were taking too long to process siting applications, has issued an order interpreting the phrase “reasonable period of time.”[6] The FCC’s order states:

[A] “reasonable period of time” is, presumptively, 90 days to process personal wireless service facility siting applications requesting collocations, and, also presumptively, 150 days to process all other applications.

Accordingly, if State or local governments do not act upon applications within those timeframes, then a “failure to act” has occurred and personal wireless service providers may seek redress in a court of competent jurisdiction within 30 days, as provided in Section 332(c)(7)(B)(v).

The FCC’s 90- and 150-day timeframes for “reasonable period of time” were upheld by the U.S. Supreme Court in City of Arlington v. FCC, 569 U.S. 290 (2013).

Texas courts have held that state and local governments can adopt review periods for siting applications that are shorter than the FCC’s 90- and 150-day timeframes, but not longer.[7]

“Substantial evidence” required to deny a cell tower permit

When a local government wants to deny a request to construct or modify a cell phone tower, such a denial must be “supported by substantial evidence contained in a written record.”

What constitutes “substantial evidence”? Generalized concerns about property values and aesthetics alone are not sufficient.[8] Instead, courts have held that the following evidence meets the “substantial evidence” standard:

• Evidence that the proposed cell tower “seriously failed to conform” to the city’s zoning ordinance;[9]
• Concerns raised in public comments that a 160-foot cell tower could fall and hit a residential structure located only 25 feet away, and the lack of evidence indicating that the tower would collapse upon itself, rather than on the residential structure;[10]
• A petition signed by 72 citizens in the area neighboring the proposed site, who stated that they believed the proposed telecommunications tower would lower their property value;[11] and
• Sufficient photographic evidence of the unattractiveness of the proposed towers and the towers’ visual height impact (where the cell tower stood “well above the tree line in a wooded residential neighborhood”).[12]

The “substantial evidence” for denying an application must be put into a writing issued contemporaneously with the denial. “Because an adversely affected entity must decide whether to seek judicial review within 30 days from the date of the denial, . . . and because a court cannot review the denial without knowing the locality’s reasons, the locality must provide or make available its written reasons at essentially the same time as it communicates its denial.”[13]

Judicial review

Any person that is adversely affected by any final action or failure to act by a local government that is inconsistent with the requirements of the Federal Telecommunications Act of 1996 may file suit in any court of competent jurisdiction. The action must be filed within 30 days after such action or failure to act. The court is required to hear and decide the action on an expedited basis.[14]

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[1] 47 U.S.C. § 332(c)(7)(B)(i)(I).

[2] 47 U.S.C. § 332(c)(7)(B)(i)(II).

[3] 47 U.S.C. § 332(c)(7)(B)(ii).

[4] 47 U.S.C. § 332(c)(7)(B)(iii).

[5] 47 U.S.C. § 332(c)(7)(B)(iv).

[6] In re Petition for Declaratory Ruling, 24 FCC Rcd. 13994.

[7] City of Austin v. Abbott, 385 F. Supp. 3d 537, 547 (W.D. Tex. 2019); City of Austin v. Tex., No. 1:17-CV-806-RP, 2017 WL 7052303, at *5 (W.D. Tex. Aug. 31, 2017).

[8] U.S. Cellular Corp. v. City of Wichita Falls, Tex., 364 F.3d 250, 256 (5th Cir. 2004).

[9] U.S. Cellular Corp. v. City of Wichita Falls, Tex., 364 F.3d 250, 257 (5th Cir. 2004).

[10] New Cingular Wireless, LLC v. City of Brownsville, Tex., No. 1:19-CV-91, 2019 WL 8499340, at *8-10 (S.D. Tex. Dec. 20, 2019).

[11] Minnesota Towers, Inc. v. City of Duluth, No. CIV. 04-5068DWFRLE, 2005 WL 1593044, at *6-7 (D. Minn. July 1, 2005).

[12] Minnesota Towers, Inc. v. City of Duluth, No. CIV. 04-5068DWFRLE, 2005 WL 1593044, at *7-8 (D. Minn. July 1, 2005).

[13] T-Mobile S., LLC v. City of Roswell, Ga., 574 U.S. 293, 294, 135 S. Ct. 808, 810, 190 L. Ed. 2d 679 (2015).

[14] 47 U.S.C. § 332(c)(7)(B)(v).