Chapter 17 Regulation of Wireless Communications Facilities Siting

• Library: The Zoning and Land Use Handbook (ABA) (2016 Ed.)

Chapter 17 Regulation of Wireless Communications Facilities Siting

A. Introduction

In 1994, there were approximately 24 million cellular technology users and 18,000 telephone facilities, also called "cell sites," nationwide.¹ These numbers have rapidly increased as the demand for cellular service has increased, whether it is in the form of cellular telephones or other "personal wireless telecommunications." As of December 2014, there were 355.4 million wireless subscriber connections and 298,055 "cell sites."²

The cellular industry estimates that the number of towers needed to accommodate telecommunications services will increase to over 100,000 towers in the United States alone over the next five to ten years. Adding more than 80,000 towers within the next few years means that local governments will be kept extremely busy with permit requests.

On February 8, 1996, President Clinton signed into law the Telecommunications Act of 1996. The basic policy of the Act is to promote "full and open competition" in all sectors of the telecommunications industry. Although an initial draft of the Act sought to preempt local zoning authority over cellular towers, the legislation that was ultimately passed specifically affirms local governments' right to control the siting, construction, and modification of cellular and other wireless telecommunication facilities. Local governmental authorities should recognize this important provision in the Act as they are inundated with requests for the siting of cellular towers. In many instances, local governments are being told by applicants that they "must" grant the request because federal law requires it. The first paragraph of the statute tells a different story.

Section 704 of the Telecommunications Act of 1996 provides, in pertinent part, as follows:

(7) Preservation of Local Zoning Authority

(A) General Authority
Except as provided in this paragraph, nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.
(B) Limitations

(i) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof.

(I) shall not unreasonably discriminate among providers of functionally equivalent services; and
(II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.

(ii) A State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request.
(iii) Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.
(iv) No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions.
(v) Any person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with this subparagraph may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction. The court shall hear and decide such action on an expedited basis. Any person adversely affected by an act or failure to act by a State or local government or any instrumentality thereof that is inconsistent with clause (iv) may petition the Commission for relief.

(C) Definitions. For purposes of this paragraph:

(i) the term "personal wireless services" means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services;
(ii) the term "personal wireless services facility" means facilities for the provision of personal wireless services; and
(iii) the term "unlicensed wireless service" means the offering of telecommunications services using duly authorized devices which do not require individual licenses, but does not mean the provision of direct-to-home satellite services (as defined in section 303(v) of this Title)³

B. Local Zoning Authority Remains in Effect

A cellular tower is a structure that may be regulated pursuant to local zoning authority in the same manner as other structures. Its location, height, general appearance, and its compatibility with surrounding uses are all subject to municipal regulation. The only limitations relate to the specific restrictions set forth in the Act. Assuming that the regulation does not run afoul of the specific concerns of the Act, the municipality is free to apply its ordinances.

The legislative history of the Act emphasizes this concept. The House Conference Report states the following:

The Conference Agreement creates a new Section 704 which prevents [Federal Communication] Commission preemption of local and State land-use decisions and preserves the authority of State and local governments over zoning and land use matters, except in the limited circumstances set forth in the Conference Agreement. . . . The intent of the conferees is to ensure that a State or local government does not, in making a decision regarding the placement, construction and modification of facilities of personal wireless services described in this section unreasonably favor one competitor over another. The conferees also intend that the phrase "unreasonably discriminate among providers of functionally equivalent services" will provide localities with the flexibility to treat facilities that create different visual, aesthetic or safety concerns differently to the extent permitted under generally-applicable zoning requirements even if those facilities provide functionally-equivalent services. For example, the conferees do not intend that if a State or local government grants a permit in a commercial district, it must also grant a permit for a competitor's 50-foot tower in a residential district.⁴

Therefore, local government may require an applicant to apply for a variance for a pole exceeding the height limit or apply for a special use in order to site a cellular pole within a given area. These types of ordinary zoning considerations are enforceable by the municipality.

C. Local Government May Not Discriminate between Providers of Functionally-Equivalent Services

The Act states that local government may not discriminate among providers of functionally equivalent services. However, what this means is not entirely clear. As the legislative history provides in the Conference Report:

The conferees also intend that the phrase "unreasonably discriminate among providers of functionally equivalent services" will provide localities with the flexibility to treat facilities that create different visual, aesthetic, or safety concerns differently to the extent permitted under generally applicable zoning requirements, even if those facilities provide functionally equivalent services. For example, the conferees do not intend that if a

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