Shot clocks only matter if a referee blows the whistle. California and federal laws, and Federal Communications Commission regulations set deadlines of anywhere from 60 days to 150 days for local agencies to approve or deny permits for construction or modification of wireless facilities, including cellular sites. In theory, when the deadline passes, the permit is deemed granted (or deemed approved, per California’s law). In practice, I’ve never seen a mobile company try to exercise deemed granted privileges in California. Carriers and infrastructure companies have waved the deemed granted option at cities when permit reviews stall. But no one has pushed the button.
The City and County of San Francisco is the target of a complaint filed by T-Mobile with a federal district court. T-Mobile wants “a declaration and judgment” that permits for projects at 16 existing cell sites are deemed granted.
The company applied for permission to make what it characterises as minor modifications to existing cell sites, including (but not necessarily limited to) “swapping existing antennas and perhaps adding a small number of new antennas and associated equipment to existing rooftop installations”. San Francisco didn’t approve or deny the applications within the 60 day shot clock that federal law sets for the kind of work T-Mobile claims to be doing. So, T-Mobile says, the whistle has sounded…
Under Section 6409(a) of the Spectrum Act, the City must act on T-Mobile’s modification applications within 60 days. Yet, for a group of 27 applications submitted by T-Mobile between June 24, 2020 and August 14, 2020, the City had not acted on the applications even by late October 2020, well over 60 days after they were submitted. The City also had not notified T- Mobile that any of those applications were incomplete…
On October 20, 2020, T-Mobile notified the City in writing that the 27 applications were deemed granted. Since T-Mobile sent the deemed granted notice, the City has issued permits for 11 of the 27 applications, but for the remaining 16 applications, the City has not issued the permits necessary for T-Mobile to perform the modifications. Pursuant to the FCC’s rules, T-Mobile now files this Complaint seeking a declaratory judgment providing the Court’s imprimatur on the applications’ deemed granted status, and injunctive relief compelling the City to issue the permits for the outstanding applications.
The lawsuit will answer the key procedural question: what does deemed granted mean as a practical matter. I’ve asked both carriers and cities that question, and the answer is always “I don’t know”.
In theory, T-Mobile might have just started construction. Instead, they’ve taken the matter to federal court, which could result in a preemptive ruling that sets the de facto rules for California. T-Mobile could have gone to a California court but that would have delayed a final decision by years – federal courts have the last word on interpreting federal law.
San Francisco might try to render the case moot by issuing T-Mobile’s permits. If it doesn’t, the federal district court can do three things: reject T-Mobile’s claim, grant the permits by judicial order or – my bet – rule that deemed granted means deemed granted and nothing more needs be done. Which will open the flood gates all over California if cities and counties can’t approve or deny permits for wireless facility construction within federal and state deadlines.