Venn and the Art of Wireless Regulation

It’s important to educate legislators and local governments about the 1996 Telecommunications Act, which added Section 332(c)(7) to the Communications Act of 1934. This section, also referred to as Section 704, affects the permitting of wireless facilities by preserving local government authority over tower siting decisions, while placing certain limitations on the exercise of that authority.

Section 704 encouraged rapid development of new communications technology, yet it preserved state and local authority over tower siting. Thus, local government authorities viewed the 1996 Telecommunications Act as affirming their control over tower siting decisions and, in fact, the very title of Section 704 of the Act identifies the preservation of local authority over tower siting as its purpose. Those in the industry viewed the Act as supporting rapid deployment by limiting local government authority. It’s that balancing act that keeps so many site acquisition specialists and attorneys busy and employed.

It also keeps many site developers awake at night, wondering why it takes so long to develop a tower site.  It is because of the multiple layers of regulation and control (see below).  One of the cable news shows has a segment called “Regulation Nation,” which highlights extensive U.S. regulation and its effect on businesses, and you need look no further than wireless telecommunications to find an industry that is heavily regulated by nearly all levels of government.

 A Venn diagram of several sources of regulation and control of wireless
telecommunications antenna site development shows that many requirements must
perfectly intersect to bring about approval for antenna collocation or new site construction.


Perfect Intersection
Getting a site on the air requires finding the perfect intersection of a willing landlord, radio-frequency (RF) technology requirements, community approval and numerous levels of federal, state and local government approvals. You have to have a willing landlord because carriers can’t just condemn land, telling owners they’re going to take it just because it’s ideal for the network. Although a perfect RF world of flat land, no foliage, no obstructions and no limitations on tower heights does not exist almost anywhere that people live or use their mobile phones, certain RF requirements must be met. Residents of the community have to be able to offer input. Mostly the FCC, but also other federal agencies, impose numerous requirements involving environmental protection, historic preservation, migratory birds, wetlands—you name it. And state and local governments also exert a degree of control in many cases duplicating historic and environmental reviews.  Many other circles of regulation and control could be added to Figure 1, but you get the idea of why it is so challenging to locate an antenna site.

What are the limitations on local authority? Although municipalities can discriminate, the discrimination must not be unreasonable, and the discrimination must stop short of having the effect of prohibiting wireless service. Municipalities must act within a reasonable amount of time. Moreover, the denial of an application for a permit must be in writing and must be supported by substantial evidence. The municipality cannot deny an application based on the perceived effects of RF emissions on health, provided that the carrier proves its proposed facility is FCC-compliant. That’s an important thing to remember when making an application for an antenna site or pleading your case at a public hearing.

Local governing authorities have been parsing the language of the Act, which places limits on their authority, to determine what exactly is meant by “unreasonable discrimination” or “prohibition.” Carriers have gone to court in all of the federal judicial circuits to figure out exactly what reasonable or unreasonable discrimination means, and what prohibition means and to further clarify what Congress intended by the language it used in Section 704. For example, if one carrier is allowed to place an antenna in a given area, and you’re the second carrier in the area asking for a site, can the authorities deny you? Would that be prohibition?

In 2008, CTIA (formerly known as the Cellular Telephone Industry Association) asked the FCC to clarify what these key terms in the Act mean and to help speed up the local government approval process. CTIA asked the FCC to set a 45-day time limit for local governments to process applications for sites involving antenna collocation and 75 days for sites involving the construction of new towers, which some concluded was a little bit aggressive. CTIA asked the FCC to deem an application approved if these deadlines were not met.

CTIA also wanted the FCC to define what prohibition of service means. Is it one carrier in a search ring? Two carriers? What exactly was intended?

Once again, a little bit aggressively, CTIA wanted the FCC to pre-empt any ordinance that required an automatic variance for a tower.

In response to CTIA’s request and after an extensive public comment period, on November 18, 2009, the FCC issued a declaratory ruling, which is commonly referred to as the shot clock ruling. In the shot clock ruling, the FCC declared that 90 days to process an application for a collocation on an existing telecommunications site and 150 days to process an application for a new tower were reasonable periods.

The FCC gave municipalities 30 days to review applications for completeness.  I work with a planner in Virginia Beach, Va., who uses a form letter to deny applications that are incomplete.  When he sees that something is missing from an application, he sends the applicant a denial letter right away.  At least that is clarity. With complete applications, municipalities now must comply with the shot clock ruling’s deadlines.

Unfortunately, the FCC’s ruling did not go so far as to deem applications approved in the event that a municipality does not strictly adhere to the deadlines; nevertheless, the shot clock ruling certainly is helpful in going through the process.

In January, the FCC shot clock ruling was upheld by the Fifth Circuit Court of Appeals in City of Arlington v. Federal Communications Commission (Case No. 20-60039). It’s the first case in which a federal court has confirmed that the FCC has the authority to interpret the Act and that the shot clock ruling complied with the rulemaking requirements of the Administrative Procedure Act.

It was thought that the FCC’s definition of prohibition would be helpful in the Mid-Atlantic region in the states falling under the jurisdiction of the Fourth Circuit Court of Appeals because the Fourth Circuit had previously ruled that the term “prohibition” did not preclude local governments from denying applications because one or more carriers already have coverage in a particular search ring. However, after and despite the City of Arlington case, the Fourth Circuit in two cases where prohibition was alleged later opined that it did not have to defer to the FCC’s interpretation of the term “prohibition,” rejecting arguments made by T-Mobile and AT&T in T-Mobile Northeast LLC v. Fairfax County Board of Supervisors, No. 11-1060, 2012 WL 664504 (4th Cir. Mar. 1, 2012), and in New Cingular Wireless PCS, LLC d/b/a AT&T Mobility v. Fairfax County Board of Supervisors, No. 10-2381, 2012 WL 922435 (4th Cir. Mar. 19, 2012).

Harmful Land Use
From their perspective, municipalities are protecting citizens from harmful land uses. I represent people who develop and operate gas stations and all kinds of other land uses that some people don’t like. Municipalities are not singling out the wireless industry. They see regulating land use as a way to keep us or anyone else from harming citizens. Thus, land use regulation starts from a place of “No.” So from the municipal perspective, antenna site developers who ask for approval are asking for something that isn’t available by right. It’s not automatic. There’s a healthy dose—some might say more than a healthy dose—of skepticism. Wireless facilities are typically conditional uses, special uses or variances, but in general, across the board, it’s a land use that by its very nature is deemed to be incompatible with other land uses. Antenna site developers have to mitigate any potential effects through conditions or demonstrate that there aren’t going to be any effects from the proposed use given the location, design, etc., in order to secure an approval.

Questions
The common questions fall on two sides. The first side involves technology.  “Why do you need this antenna facility?” This question often is followed quickly by the demand, “Prove it.” Local authorities hear about the possible coming use of smaller antennas and fewer antennas, and they want proof that carriers need what they say they need.

My answer to that is frequently to ask, “Would they have hired a lawyer if this wasn’t something that’s very important to their business plan?”

Local authorities are going to ask, “Are you done yet? How many more are you going to need? Why so tall? Why so many antennas? Why does it have to be here? Is it safe? And what are your long-term plans?” That’s my favorite question. “Tell me what your network development needs are going be in the next 5 or 10 years. What’s the total number of towers that you’re going to need in our jurisdiction? When will your network be complete?”

Some questions on the other side involving aesthetics, safety and noise are: “What’s it going look like? Will I see it? Will I notice it? Will it hurt me, my family or my property?” People’s lives have been affected by the weak state of the economy. You’re asking them for their permission to construct a facility that the ordinance deems incompatible with their use, and they really want to know how this is going to affect them. “Will it fall in heavy wind, an earthquake or a natural disaster?” some may ask.

In El Paso, Texas, part of a faux palm frond fell onto someone’s car from a tower disguised as a palm tree. It nearly struck the driver. These types of incidents raise safety concerns.

People also may ask, “Will I hear noise? Is there a generator? Is the generator going to make noise?”

Local officials are well versed in analyzing planning and impact issues. They’re less experienced with technology issues, the Telecom Act, the shot clock ruling, and even the wireless facilities provisions in Section 6409 of the Middle Class Tax Relief and Job Creation Act. These are not aspects of land use decision making that they’re necessarily going to know, and site developers may have to educate them.

Yet, education from the industry is typically ad hoc. If I go in with an application on behalf of a carrier client, I’ll help to educate the local officials about the technology and industry trends. However, site developers, carriers and industry representatives normally only come before the local governments when they need sites approved. They usually are not around when it’s time for ordinance changes, which is why we encourage our clients to stay involved, especially if they expect to develop sites in the future in a particular municipality. When it comes time to revise local tower ordinances, most municipalities are looking for industry input, and given the nature of the industry, that is often difficult to find.


This article is based on Lisa Murphy’s presentation during an AGL Regional Conference session, “What We Must Teach Municipalities About Wireless”, conducted at the Las Vegas Convention Center in collaboration with IWCE.  This article first appeared in the July/August 2012 edition of AGL Magazine (p 22).

 

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