Federal Regulation of Cell Towers Emits Waves of Litigation
In recent years, there has been an exponential increase in litigation over the siting of cell towers. As the demand for wireless communication increases, local municipalities are faced with difficult decisions on whether to allow a new tower to be erected. Residents often object to the construction of new towers based on aesthetic or environmental reasons. While some of these objections may be valid, they may also reflect a “NIMBY” (“Not In My Backyard”) attitude that places municipal officials in a tenuous position. When approving a new tower site, local officials often risk a classic catch-22: approve the tower site and alienate the residents who elected them, or deny a permit for the tower site and risk protracted and expensive litigation.
The choices available to municipal officials are narrowed by federal legislation which pre-empts local control over several aspects of tower siting. The federal Telecommunications Act of 1996 (“TCA”) (pertinent sections found at 47 U.S.C. Section 332) pre-empts several forms of state regulation of wireless communication, although the TCA does explicitly preserve some local control over the siting of communications towers. However, although certain provisions of the TCA were designed to allow communities to retain some control over the location and impact of communications towers, those provisions have in fact resulted in a wave of lawsuits that has forced dozens of communities to engage in expensive litigation to defend their denial of zoning or permitting for new tower sites.
Section 332(c)(7) of the TCA, entitled “Preservation of Local Zoning Authority,” dictates what a local government may and may not do when faced with the decision of whether or not to allow a tower to be erected in its community. Section 332(c)(7)(A) clearly states that, except as provided for in Section 332(c)(7), nothing in the TCA shall limit or affect the authority of a State or local government over decisions regarding the placement, construction, and modification of personal wireless facilities.
The devil is in the details, though, as the exceptions contained in Section 332(c)(7) threaten to swallow the stated intent of preserving local zoning authority over cell towers. For example, Section 332(c)(7)(B)(i)(I) provides that state or local government regulation “shall not unreasonably discriminate among providers of functionally equivalent services,” while Section 332(c)(7)(B)(i)(II) provides that state or local government regulation “shall not prohibit or have the effect of prohibiting the provision of personal wireless services.”
The TCA also places procedural requirements on local governments. Section 332(c)(7)(B)(ii) requires that a state or local government shall act on any request to erect a tower “within a reasonable period of time,” while Section 332(c)(7)(B)(iii) provides that any decision by a state or local government to deny a request for a tower “shall be in writing and supported by substantial evidence contained in a written record.” Section 332(c)(7)(B)(v) also provides that any person adversely affected by actions taken by a state or local government which are inconsistent with the requirements may commence a lawsuit within 30 days, and any such lawsuit shall be heard and decided on an “expedited basis.”
Finally, Section 332(c)(7)(B)(iv) prohibits state and/or local governments from regulating tower placement based on the environmental effects of radio frequency emissions, to the extent that such facilities comply with the FCC’s regulations on such emissions. This provision has frustrated parties who feel that cellular and other wireless towers may pose a significant health danger. Many tower operators have taken to installing antennae in non-traditional sites -- for example, in church steeples, disguised as light posts on high school football fields, or on top of firehouses -- in an attempt to lessen public outcry over the appearance of cell towers. This often results in a significant flow of revenue to the public entity that rents the space to the tower company. However, this effort to pre-empt aesthetic complaints has resulted in a growing concern about the effect of prolonged exposure to wireless towers. For example, the International Association of Firefighters has called for a moratorium on the placement of antennae on firehouses, and has plans to fund a study of the health effects of cell towers placed on fire stations.
Local governments must keep all of the relevant provisions of the TCA in mind when deciding whether to allow a tower to be built or improved. Relying on improper grounds, failing to follow the proper procedure, or failing to properly document a decision, are all errors which can expose municipalities to expensive lawsuits by cell tower providers. Unfortunately, most local elected officials -- unless they have previously been through the siting process -- do not understand or are not even aware of the requirements they must follow. Any questions about the procedures for the siting of cell towers, or about other provisions of the Telecommunications Act of 1996, can be directed to Jim Hoey (firstname.lastname@example.org), Dean Rauchwerger (email@example.com), or Ken Wysocki (firstname.lastname@example.org) in CM’s Chicago office. Additional information can also be obtained from the FCC’s web site, which includes a section addressing tower siting issues: http://wireless.fcc.gov/siting/.