A city granting an applicant’s request for a continuance of a public hearing over installation of a wireless tower is not a mutual agreement to toll the FCC’s “shot clock,” a federal court has ruled. In addition, a vague notice of incompleteness will also not toll the shot clock, the court said.

The U.S. District Court for the Western District of New York held last month that the Town of Kiantone, New York violated section 332(c)(7)(B)(ii) of the Communications Act by failing to act on Up State Tower’s application to install a new wireless tower in a reasonable period of time, as defined by the FCC’s wireless “Shot Clock Order.” The Town unsuccessfully argued that the 150-day shot clock for new wireless tower applications was tolled by mutual agreement and by notice of incomplete application.

The Town argued that the shot clock was extended by mutual agreement because Up State Tower’s application, which was filed on July 30, 2015, was placed on the agendas for the Town Board meetings in October 2015 and November 2015, yet Up State Tower requested adjournments of these meetings. The Town did not cite any case law supporting the proposition that adjournments extend the shot clock. The court, however, cited case law holding that requests by an applicant for adjournments of public hearings are not a mutual agreement to extend the shot clock. Furthermore, there was also evidence establishing that Up State Tower placed the Town on notice before Dec. 28, 2015, that, in its opinion, the shot clock was still running. Thus, the court found that the parties did not mutually consent to extend the shot clock.

The Town also argued that the Town Attorney’s letter to Up State Tower, which advised that the Town would notify Up State Tower of additional information that was lacking from the application or that was needed to properly evaluate the application, tolled the shot clock. The court disagreed, holding that not only was the notice not provided within 30 days of the date the application was filed, but did not actually notify Up State Tower as to how its application was incomplete. Thus, the court found that the shot clock was neither tolled nor extended based on a timely-given notice of incompleteness.

This case serves as a reminder that local governments should have specific policies and procedures in place to guide officials and staff in timely complying with the procedural and substantive requirements of section 332(c)(7) and the FCC’s wireless Shot Clock Order as soon as they receive wireless facilities applications.

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