Agenda - Planning Commission - 09/08/2011

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Federal Cell Tower Zoning: Key Points and Practical Suggestions By/ohn W. Pestle Congress first became involved with cell tower zoning with the passage of the Telecommunications Act of 1996, which added provisions entitled "Preservation of Local Zoning Authority" (47 U.S.C. § 332(c)(7)) to the principal federal telecommunications statute, the Communications Act of 1934• This article summarizes key points regarding the Act as it has actually been interpreted and applied by the courts and Federal Communications Commission (FCC) during the 15 years since it was passed. As interpreted by the courts, the Act does not affect many or most substantive provisions of local zoning law. However, it does impose procedural and administrative requirements that are unique to cell tower zoning. It is on these requirements where cell phone companies have been most suc- cessful in claims against local governments for violations of the Act. The stakes are high for planners and public officials because, generally, the rem- edy imposed by federal courts for violations of the Act is an order approving a zoning application "as applied for" without any of the restrictions that might ordinarily have been imposed in the public interest during the zoning process. Finally, how the Act is actually applied varies geographically due to different federal appeals courts' interpretations. In addi- tion, how to comply with the Act can vary based on local ordinances and state laws. Accordingly, this article only provides an overview of the main points regarding the Act. Planners and local officials should con- sult with their municipal attorneys on how best to comply with the Act. WHY MORE CELL TOWERS? A cellular tower is a free-standing structure supporting one or more cellular antennas. Cellular antennas also can be mounted on Many communities encourage or require cofocat onofceftowers This example shows _how cellular ', antennas can be added to existing electrical transmission towers, buildings, water towers, or other structures. For convenience, the terms cell tower and cellular tower are used to refer to cell tow- ers, cellular antennas, and associated equipment. There were over 256,00o cell towers in the United States at the end of zo1o. Installations of cell towers continue to in- crease at a rapid pace due to the demand for increased capacity as cell phones evolve into small mobile computers used to surf the web, receive and transmit videos, pic- tures, and other data, as well as carry con- ventional voice conversations. Web surfing, videos, pictures, and data use far more cell tower and provider network capacity than do phone calls. In addition, approximately 100,00o new towers are being added for WiMax, which uses cell phone -type anten- nas to provide high-speed wireless Internet access on a city or countywide basis, usually for a fee. Finally, the federal government is promoting the expansion of wireless service as one of the main ways to achieve its goal of expanding broadband service availability nationwide. BACKGROUND ON THE ACT At the time Congress was considering the Act, the FCC had a proceeding under way to preempt local zoning of cellular towers. The Act terminated that proceeding, and Congress did not generally preempt local zoning or turn the FCC into a federal zoning authority for cellular towers. Instead, the Act basically preserves local zoning while add- ing some additional federal requirements. ZONINGPRACTICE 8.si AMERICAN PLANNING ASSOCIATION 1 page 2