Local Zoning of Telecommunications Facilities: Federal Policy Issues

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Local Zoning of Telecommunications Facilities: Federal Policy Issues

Adrian E. Herbst
Fredrikson & Byron, P.A.
1100 International Centre
900 Second Avenue South
Minneapolis, MN 55402
Phone: 347-7053
Copyrighted by Fredrikson & Byron, P.A., 1997

A. FEDERAL JURISDICTION

Federal jurisdiction over antenna structures and communication towers derives mainly from several provisions of the federal telecommunications laws (herein collectively referred to as the "Act"). Section 151 of the Act sets forth the Congressional mandate "to make available, so far as possible, to all the people of the United States a rapid, efficient, Nation-Wide, and world-wide wire and radio communication service . . . ." 47 U.S.C. õ 151 (1991). Section 151 further vests in the Federal Communications Commission (FCC) the central authority necessary to carry out that mission. Section 152 of the Act delineates the jurisdictional bounds of the FCC's power, as distinguished from the power of the States to regulate radio communications. The United States Supreme Court has commented on this federal-state dichotomy, stating that in "technical matters such as frequency allocation" the FCC's jurisdiction is exclusive. Head v. New Mexico Board of Examiners, 374 U.S. 424, 1763, n. 6 (1963). On the other hand, the FCC, federal and state courts have held that nothing in the Act precludes a local government from regulating to protect the health, safety and general welfare of its community. In re Federal Preemption of State and Local Regulations Pertaining to Amateur Radio Facilities, 101 F.C.C.2d 952 (1985); see MacMillan v. City of Rocky River, 748 F. Supp. 1241, 1247 (N.D. Ohio 1990); Bodony v. Village of Sands Point, 681 F. Supp. 1009, 1011 (E.D.N.Y. 1987); Kroeger v. Stahl, 148 F. Supp. 403, 408; see also Gushke v. City of Oklahoma City, 763 F.2d 379 (10th Cir. 1985).

More specifically, sections 302 and 303 of the Act give the FCC authority to regulate communication stations, towers and other facilities with regard to: coordination and assignment of radio frequencies, interference between users of the radio frequency spectrum, the kinds of facilities to be used with respect to their "external effects" and the quality of the signals emitted from such facilities, the location of classes of stations or individual stations, the establishment of areas or zones to be served by stations, adoption of record keeping rules related to transmission of energy and communications, and painting/illumination requirements in the interest of air navigation safety.

A review of the FCC's regulations pertaining to antenna structures and communication towers reveals that the FCC has not often had its jurisdictional boundaries tested with regard to regulation of towers or antennas, and has itself only challenged municipal zoning ordinances which clearly infringe upon its exclusive jurisdiction in these areas. See In re 960 Radio, Inc., FCC 85-78, 1985 WL 193883 (1985) and In re Mobilecomm, 2 F.C.C. Rcd. 5519 (1987)(invalidating and preempting any state or local governmental attempts to regulate radio frequency interference).

The only exception is in the area of amateur "ham radio" antennas. In 1985, the FCC adopted a "limited preemption rule" with regard to local governmental efforts to regulate amateur radio facilities. In re Amateur Radio Facilities, 101 F.C.C.2d 952. That rule provides that "local regulations which involve placement, screening, or height of antennas based on health, safety, or aesthetic considerations must be crafted to accommodate reasonably [sic] amateur communications, and to represent the minimum practicable regulation to accomplish the local authority's legitimatepurpose.” Id. Federal courts interpreting this rule struck down municipal attempts to regulate the height of amateur radio towers. See Bodony, 681 F. Supp. at 1013 (absolute height limitation prevented radio operator from full use of FCC license and no evidence existed that proposed antenna endangered public health, safety or welfare); see MacMillan, 748 F. Supp. at 1248 (record devoid of any evidence that zoning board attempted to accommodate anything but its own local zoning interest).

B. LOCAL ZONING OF WIRELESS TELECOMMUNICATIONS FACILITIES AFTER THE TELECOMMUNICATIONS ACT OF 1996

Section 704 of the Telecommunications Act of 1996 substantially revised õ 332(c) of the Communications Act of 1934 and provides new federal standards for siting of “Personal Wireless Services Facilities.” “Personal Wireless Services” include all commercial mobile services (including personal communications services (PCS), cellular radio mobile services, and paging); unlicensed wireless services; and common carrier wireless exchange access services. Under section 704, local zoning authority over personal wireless services is preserved, and the FCC is prevented from preempting local and State land use decisions. However, local government zoning decisions are still restricted by several provisions of federal law.

1. Limitations on Local Government Zoning Authority under the Section 704 of Telecommunications Act

Section 704 imposes limitations on what local and state governments can do. Section 704 prohibits any state and local government action which unreasonably discriminates among personal wireless providers. Note, however, that the Congressional Conference Report accompanying section 704 states that localities are provided with flexibility to treat facilities that create different aesthetic or safety concerns differently to the extent permitted under generally applicable zoning requirements, even if those facilities provide functionally equivalent services. At any rate, actions which are alleged to unreasonably discriminate are subject to an expedited review process in federal or state court. The new law also prohibits any state or local government action which prohibits or has the effect of prohibiting the placement, construction, or modification of personal wireless services. Local governments must ensure that any new ordinance it passes does not contain requirements in the form of regulatory terms or fees which may have the “effect” of prohibiting the placement, construction, or modification of personal wireless services.

Section 704 also preempts any local zoning regulation purporting to regulate the placement, construction and modification of personal wireless service facilities on the basis, either directly or indirectly, on the environmental effects of radio frequency emissions (RF) of such facilities, which otherwise comply with FCC standards in this regard. See, 47 U.S.C. õ 332(c)(7)(B)(iv) (1996). This means that while state and local governments may study the effects of RF emissions, the local authorities may not regulate the siting or construction of personal wireless facilities based standards that are more stringent than those promulgated by the FCC. Section 704 mandates that local governments act upon personal wireless service facility siting applications to place, construct, or modify a facility within a reasonable time. 47 U.S.C. õ332(c)(7)(B)(ii). Further, any decision to deny a request must be in writing and supported by substantial evidence contained in the written record. 47 U.S.C. õ 332(c)(7)(B)(iii).

The FCC has not yet issued regulations pursuant to section 704 of the Telecommunications Act of 1996 pertaining to zoning of personal wireless service facilities.

Section 704 mandates that the FCC provide technical support to local governments in order to encourage them to make property, rights-of-way, and easements under their jurisdiction available for the placement of new spectrum-based telecommunications services. This proceeding is currently at the comment stage. For more information on FCC assistance, contact Steve Markendorff, Chief of the Broadband Branch, Commercial Wireless Division, Wireless Telecommunications Bureau, at (202) 418-0640 or e-mail "smarkend@fcc.gov".

2. Limitations on Local Zoning under Section 253 of the Telecommunications Act

Under Section 253 of the Telecommunications Act of 1996, no state or local regulation or other legal requirement can prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service. In the FCC’s opinion, Section 253 imposes a limitation on a local governments zoning authority that is independent of Section 704. However, nothing in Section 253 affects the ability of local governments to impose, on a competitively neutral basis, requirements necessary to protect the public safety and welfare or safeguard the rights of consumers.

3. Limitations on Local Rate Regulation under Section 332

Section 332(c)(3) forbids the local regulation of CMRS rates. The Wireless Telecommunications Bureau of the FCC has opined that if a local ordinance requires all carriers tooffer its services to a city at 80% of the lowest rate offered to any of its customers, then as to CMRS providers, this appears to constitute local regulation of CMRS rates, which Section 332(c)(3) forbids. If carriers were required to provide dark fiber and lateral connections to city government buildings at no cost to the city, and to offset the charges for city-provided services against the carrier’s franchise fee of 5% of its gross income, the Wireless Bureau opined that these franchise requirements, which impose extensive and costly conditions, may constitute regulation of entry in violation of Section 332(c)(3).

4. Federal Aviation Administration Laws and Regulations

Communication towers are also regulated by the Federal Aviation Administration (FAA) pursuant to 49 U.S.C.A. õ 45106(g) (1996). The FAA's regulations require that it be notified of any construction or alteration of (1) any structure over 200 feet above ground level at its site; and (2) structures near airports. 14 C.F.R. õ 77.13 (1972). For the erection of towers, any applicant subject to the FAA notice requirement must file FCC Form 854. See 47 C.F.R. õ 17 (1996). Notice to the FAA triggers an investigation into whether the structure poses a hazard to air navigation. Id. õ 77.33. If the FAA determines a structure to be hazardous to air navigation, it may order whatever action it deems necessary to eliminate the hazardous nature of the structure. Once the FAA has approved the structure, it recommends to the FCC that a construction permit be issued. Id. õ 77.39. The FAA regulations also provide for the establishment of antenna farms to centralize the effect communication towers have on navigable air space. Id. õ 77.71.

C. HOT TOPIC: TOWER ZONING MORATORIA

Some local governments have adopted or are considering adopting a brief moratorium or “freeze” on the processing of facilities siting applications in order to set up a process for orderly handling of siting applications or to develop their telecommunications policies. The issue of whether moratoria are consistent with Section 704 of the Act is being decided in the courts. Last year, Sprint Spectrum, L.P. sued the City of Medina over its 6-month moratorium. The court found that the moratorium was reasonable because the City has authority to determine its telecommunications policy and procedure for processing applications. See, Sprint Spectrum, L.P. v. City of Medina, 924 F.Supp. 1036 (W.D. Wash. 1996). Despite this decision, the FCC has become very active in questioning zoning moratoria under the Act. For example, the Commission is considering a preemption petition from the CTIA and FCC Chairman Reed Hundt recently sent several letters to local governments questioning tower siting moratoria.

State and local authorities may not unreasonably discriminate against new entrants into the personal wireless services market. Section 332(c)(7)(B)(i)(I). The Wireless Bureau has opined that a local government ordinance that imposes a year-long moratorium on the acceptance, processing or issuance of any permit for the siting or operation of antennae that facilitate the provision of wireless service arguably unreasonably discriminates against new entrants into the personal wireless services market, in violation of Section 332(c)(7)(B)(i)(I). In the case of a city-imposed moratorium, one possibility may to be to accept and process siting applications but only make final determinations once the moratorium is over. This way, new entrants do not lose theirplace in queue and can reach the market ahead of their competitors who have filed siting applications later on.

If a city were to impose a brief, finite period of consideration or a formal moratorium, it would be most effective if the city communicates clearly to wireless service providers: (1) the specific duration of the moratorium; (2) the tasks the city intends to accomplish during the moratorium; and (3) the ways in which the wireless service providers can assist the city in achieving the stated goals of the moratorium (e.g., providing siting plans, maps, co-location studies and options). Education and open channels of communication appear to be key among most successful city/provider relationships. As early as possible, city representatives and industry providers should meet and educate each other on the zoning process, siting plans, maps, options, etc.

D. LOCAL ZONING OF OVER THE AIR RECEPTION DEVISES

Federal law preempts certain local zoning restrictions regarding two classes of over the air reception devices: the Telecommunications Act of 1996 preempts restrictions on television broadcast signals, multichannel multipoint distribution service, and direct broadcast satellite antennas; and FCC regulations preempt restrictions on other satellite earth stations.

1. Preemption of Local Zoning under the Telecommunications Act of 1996

Section 207 of the Telecommunications Act of 1996 required the FCC to promulgate regulations pursuant to 47 U.S.C. õ 303 to prohibit restrictions that impair a viewer’s ability toreceive video programming services through devices designed for over-the-air reception of television broadcast signals (TVBS) , multichannel multipoint distribution service (MMDS), or direct broadcast satellite services (DBS).

Pursuant to Section 207 of the Telecommunications Act, the FCC has promulgated rules to prohibit restrictions that impair a viewer’s ability to install, maintain, and use devices designed to receive video programming services through television broadcast signals, multichannel multipoint distribution service, or direct broadcast satellite services. Such restrictions will be preempted per se.

Any state or local law, zoning, land-use, building regulation, other regulations or restrictions imposed on property which is within the exclusive use or control of an antennae user where the user has a direct or indirect ownership interest in that property, that impairs the installation, maintenance or use of any of the following, will be prohibited: (1) an antenna designed to receive DBS, including direct-to-home satellite services that is one meter or less in diameter; (2) an antenna designed to receive video programming services via multipoint distribution service, including MMDS, instructional television fixed services, and local multipoint distribution services and that is one meter or less in diameter or diagonal measurement; or (3) an antenna that is designed to receive TVBS.

A state or local law, restriction, or regulation will be deemed to impair installation, maintenance or use of an antenna if it: (1) unreasonably delays or prevents installation,maintenance or use; (2) unreasonably increases the cost of installation, maintenance or use; or (3) precludes reception of an acceptable quality signal.

There are two exceptions for safety and historic preservation goals. First, a restriction otherwise prohibited under the FCC rule, will be permitted if it is necessary to accomplish a safety objective and would be applied in a non-discriminatory manner to other appurtenances, devices or fixtures that are comparable in size, weight, and appearance to these antennas and to which local regulation would normally apply. The safety objective must be stated in the text or legislative history of the restriction or be described as applying to that restriction in a publicly available document. Second, a restriction will be permitted if it is necessary to preserve a historic district listed or eligible for listing in the National Registry of Historic Places, and imposes no greater restrictions on antennas covered by this rule than are imposed on appurtenances, devices or fixtures comparable in size, weight, and appearance to these antennas. In either case, the restriction must be no more burdensome to affected antenna users than is necessary to achieve the safety or historic preservation objective.

Local governments may apply to the FCC for a waiver of this Rule and these will be granted upon showing of local concerns of a highly specialized or unusual nature.

2. Preemption of Local Zoning of Satellite Earth Stations

The FCC will also preempt local zoning of satellite earth stations. 47 C.F.R. õ 25.104 (1996). These rules apply to satellite earth stations over one (1) meter in diameter and to satellite devices that are not designed to receive video programming.

Any state or local zoning, land use, building or similar regulation that affects the installation, maintenance or use of a satellite earth station antenna that is two meters or less in diameter and is located or proposed to be located in any area where commercial or industrial uses are generally permitted by non-federal land-use regulation shall be presumed unreasonable. A local government can only rebut the presumption by demonstrate its actions are necessary to protect public health or safety. The FCC will grant waivers if a local government can demonstrate something unique about an area (e.g. historic districts or environmentally sensitive areas).

All other regulation of satellite earth stations is presumed reasonable. However, any nonfederal costs imposed by a local government must reasonably reflect the local government’s costs in processing the application or inspecting the earth station.

Adrian E. Herbst - Bio

Adrian E. Herbst, an officer and shareholder of Fredrikson & Byron, P.A., Minneapolis, Minnesota, and co-chair of its Telecommunications Law group, has over twenty-five years of experience in municipal and governmental work, with a primary emphasis on cable television franchising and regulation. Adrian has been extensively involved in representing governmental communications bodies throughout the country on franchise renewals, governmental ownership alternatives, franchise compliance audits, and rate regulation issues. He has also been extensively involved in the development of fiber optic networks. Adrian was a City Councilmember for the City of Bloomington, Minnesota and its City Attorney. He has served as a past President of the Minnesota Trial Lawyers Association and as Vice President of the League of Minnesota Cities. Adrian is a charter member of NATOA and is also a member of the Alliance for Community Media, as well as various other legal organizations including IMLA, the Federal Communications Bar Association, and the Telecommunications Committee of the Minnesota State Bar Association.

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