Federal telecommunications law affects local zoning authority in at least four different ways; there are different provisions of law and/or regulations affecting the control of:
- (1) personal wireless service facilities;
- (2) broadcast towers;
- (3) equipment used to receive broadcast and "fixed wireless" signals (e.g., antennas and satellite dishes);
- (4) equipment used in the satellite communications and amateur radio services.
The discussion below focuses on personal wireless service facilities. However, the reader should be aware that the Commission has extended the so-called OTARD rule, 47 C.F.R.§1.4000, to include the small antennas that can be used to transmit and receive fixed wireless telephone messages. (66 Fed. Reg. 1622 (2001). Zoning of broadcast towers remains uncertain because the FCC has never acted on the request of the National Association of Broadcasters ("NAB") to adopt rules to limit local authority to regulate the construction of broadcast towers and the tower modifications required to implement digital broadcasting ("DTV"), In the Matter of Preemption of State and Local Zoning and Land Use Restrictions on the Siting, Placement and Construction of Broadcast Station Transmission Facilities, Notice Of Proposed Rule Making, MM Docket No. 97-182 (August 18, 1997). Moreover, the petition of Lake Cedar Group, a coalition of Denver-area broadcasters, for preemption of Jefferson County's denial of their DTV "supertower" on Lookout Mountain near Golden, Colorado, also remains pending at the FCC. Public Notice, DA 00-746, April 10, 2000.
In 1996 Congress attempted to facilitate the erection of towers used for personal wireless (including cell phone) service by adding Section 332(c)(7) to the Communications Act of 1934, 47 U.S.C. § 332(c)(7). Subsection (c)(7) preserves local zoning authority, subject to certain procedural requirements and to the substantive limitation that zoning not prohibit the provision of wireless service.
Thus, local officials face significant challenges as they attempt to protect local interests in reasonable land control, while accommodating the development of new telecommunications technologies. Has the Congressional effort to balance local particularity with speed of national wireless entry produced a legal standoff in which neither the local government nor the carrier has a clear advantage? If so, the cases we don't see - the ones that are worked out in the local application or hearing process - may be more important than the disputes that make their way to federal appellate courts.
To help answer the question, we have taken a look at all the decisions on tower siting we could find in the U.S. Courts of Appeal. We searched www.findlaw.com "All Circuits" using the terms Telecommunications Act of 1996 "and" zoning. We've probably missed some cases, but we found enough to begin to see useful messages. You'll find them discussed in the Key Issues section below. Of the 12 federal circuits -- not counting the tribunal which hears Court of Claims, patent and veterans appeals - we found decisions on antenna siting under the 1996 Act in Circuits 1-4, 6-7 and 10-11, nothing in 5, 8-9 or the D.C. Circuit.
Two of the more interesting rulings in early 2002 come from the Second and Third Circuits, which have been called upon frequently to interpret and apply Section 332(c)(7). In the Second Circuit, the Court permitted local governments more discretion in protecting against RF radiation when the governments acted in a "proprietary" capacity as landlords of public tower sites. In the Third Circuit, for the first time at the federal appellate level, a court found that Section 332(c)(7) has its own "comprehensive remedial scheme" which rules out civil rights damages and attorneys fees under 42 U.S.C. Section 1983.
The federal and state trial court decisions are more diverse in their reasoning and not so easy to catalog. In U.S. District Courts, the cases tend to be disposed on cross-motions for summary judgment, and a fair number of lower court decisions have been overturned or remanded. This should be kept in mind as you scan the "List of Important Cases," which includes some lower court decisions. Naturally, you'll find many of the trial court orders discussed in the appellate decisions.
In March, 2001, the FCC and the Advisory Council on Historic Preservation ("ACHP"), joined by the National Conference of State Historic Preservation Officers, entered into a memorandum of understanding, styled a "Programmatic Agreement," aiming to "streamline procedures for review of collocations of wireless and broadcast antennas and associated equipment on existing towers and other structures under the National Historic Preservation Act [NHPA]." Separately, the U.S. District Court for the District of Columbia, responding to an appeal from the Cellular Telecommunications & Internet Association ("CTIA"), found that the ACHP's regulations promulgated under Section 106 of the NHPA were advisory to, not binding upon, decision-making agencies such as the FCC, but that the ACHP's procedural rules must be followed. See National Mining Association v. Slater, 167 F. Supp. 2d 265 (D.D.C. 2002).
