Agenda - Planning Commission - 11/02/1998

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- Page 2 -- October 10, 1998 Z.B. Communication ToWer .. Wireless provider says FCC regulations preempted county requirements Citation: Southwestern Bell Wireless Inc. v. Board of County .Commissioners of Johnson County, United States District Court for the District of Kansas, No. 97-2481-GTV (J998) Southwestern Bell Wireless Inc. had an FCC license to build and operate a wireless communications network in the Kansas City, Kan. area. It applied for a conditional use permit to build a 150-foot monopole tower. The county planning staff recommended approving Southwestern's application subject to conditions, one of which mirrored a county zoning ordi- nance regulating interference. The ordinance stated communications towers couldn't interfere with, disrupt, or degrade public safety communications equip- ment. The regulations gave the county zoning administrator the authority to determine when interference existed. An FCC official informed the county planning director that the county regu- lations dealing with interference were preempted by the Communications Act of 1934. He noted the FCC had specific procedures for handling public safety interference complaints. Declining to follow the FCC's advice, the county approved Southwestern's permit application subject to the condition regarding interference with public safety equipment.. Southwestern responded by suing the county, seeking an order declaring the county interference regulations void. According to Southwestern, the county couldn't enforce the zoning requirements because federal law preempted them. The county claimed the Telecommunications Act of 1996 changed the effect of the 1934 Act. It pointed out that the 1996 Act specifically preserved local zoning authority "over decisions regarding the placement, construction, and modification of personal wireless service facilities." Southwestern asked for judgme, nt without a trial. DECISION: Judgment granted to SouthweStern. The county Couldn't enforce the communication interference regulations. Federal law preempted them. In passing the Communications Act of 1934 and subsequent amendments, Congress gave the FCC comprehensive powers to regulate radio transmissions - and specifically gave the FCC exclusive jurisdiction over signal interfer- ence complaints. The 1996 Act didn't change this by preserving local zoning control over towers. The limitations on the FCC's powers related to local land use regulations and weren't meant to limit or affect the FCC's authority over the construction and operation of wireless communications equipment. More- over, the county ordinance had nothing to do with the placement or construc- tion of cell towers; it created performance standards that allowed municipal officials to shut down cell towers that interfered with public safety communi- cations. This exceeded the county's authority under the 1996 Act. The ordinance also conflicted with federal law. The FCC had the authority