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fill the gap. Often this testis combined with a
<br />"balloon test," where a balloon approximat-
<br />ing the cubic footage of the antennas is sus-
<br />pended at different heights to determine the
<br />visual impact of the proposed tower.
<br />Related technical analyses are needed
<br />when the claim is that existing antennas are
<br />overloaded and a tower must be added to
<br />increase the capacity of the system in the
<br />area.
<br />In these cases the courts typically re-
<br />quire a showing by the provider (or rebuttal
<br />by the municipality) to the effect that there
<br />are "no feasible alternate sites" for the cell
<br />tower in question. This analysis usually in-
<br />volves both technical and economic consid-
<br />erations. From an engineering perspective
<br />there rarely is only one site for an antenna
<br />that would fill a gap. However, while a
<br />given site may be technically feasible, the
<br />provider may reject it because the cost to
<br />build or rent is too high. Municipalities are
<br />not bound to approve the "least cost" site
<br />if a reasonable alternate site (or sites) with
<br />greater cost or rent is preferable. Also, some
<br />courts give consideration to minimizing the
<br />impact or intrusion by the cell tower.
<br />The bottom line is that in "significant
<br />gap" or "prohibition of`service" cases a mu-
<br />nicipality usually needs technical assistance
<br />to knowledgeably review, comment on, and
<br />(where appropriate) challenge a provider
<br />on the issues of whether and to what extent
<br />there is a gap, its contours, the location
<br />and minimum height of a tower necessary
<br />to fill a gap, and the feasibility of alternate
<br />sites. In a number of states, municipalities
<br />can obtain this technical assistance at the
<br />provider's expense through local ordinances
<br />requiring a deposit for experts and studies
<br />at the time of application.
<br />A qualified expert can evaluate a cellular
<br />zoning application and provide an analysis
<br />and recommendations (e.g., camouflaging
<br />suggestions) that will assist in deciding the
<br />zoning application. However, because there
<br />are cases where municipalities have lost in
<br />the courts due to assistance from unquali-
<br />fied experts, municipalities should obtain
<br />the names of cases where proposed experts
<br />have testified and review any opinions where
<br />a court has commented on their credentials.
<br />This will help ensure that the experts' work
<br />for the municipality will be persuasive with
<br />the provider and stand up in court.
<br />DISTRIBUTED ANTENNA SYSTEMS
<br />Distributed Antenna Systems (DAS) are of-
<br />ten an attractive alternative to cell towers.
<br />Essentially, they involve a series of micro -
<br />cells, each with a small antenna and box
<br />mounted on a utility pole. The boxes often
<br />are smaller than other boxes or transformers
<br />on utility poles and sometimes can be put
<br />underground.
<br />DAS is an attractive alternative for
<br />providing cell phone service, especially in
<br />residential areas, although multiple DAS
<br />antennas are required to serve the same
<br />geographic area typically served by one cell
<br />tower. Another advantage of DAS systems
<br />is that one set of DAS antennas can serve
<br />all cell phone companies licensed to serve
<br />a community. The downside is that DAS
<br />systems are sometimes more expensive to
<br />install than towers because of the need for
<br />multiple DAS sites to cover the same area
<br />as a tower, with the sites interconnected by
<br />fiber optic cables.
<br />The cellular industry has resisted
<br />some municipal attempts to encourage
<br />or force the use of DAS. In one case, the
<br />industry mounted a major challenge and
<br />was successful in overturning (on federal
<br />preemption grounds) a local ordinance that
<br />expressed a preference for DAS. The court
<br />found that a municipality could not impose
<br />such a blanket legislative requirement; how-
<br />ever, later decisions from the same court
<br />upheld a community's right to consider DAS
<br />on a case -by -case basis.
<br />NOTICE OF INQUIRY
<br />In April zo11 the FCC issued a Notice of
<br />Inquiry on "key challenges and best prac-
<br />tices in expanding the reach and reducing
<br />the cost of broadband deployment by im-
<br />proving government policies for access to
<br />rights of way and wireless facilities siting"
<br />(emphasis added). Such notices are nor-
<br />mally followed by rulemakings addressing
<br />issues revealed by the notice.
<br />Among many other things, the notice
<br />asks about challenges or problems that the
<br />wireless industry claims has occurred with
<br />local zoning and with leasing land from
<br />municipalities for cell towers. In the notice,
<br />the FCC basically claims that it has the legal
<br />authority to further restrict local zoning
<br />of cell towers. Likely areas for rulemaking
<br />flowing from this notice are (a) preventing
<br />municipalities from allowing cell towers
<br />in residential areas only by variance; (b)
<br />greatly restricting or eliminating zoning
<br />approvals for colocations; and (c) putting
<br />limits on what must be included in a cell
<br />tower zoning application and the fees that
<br />may be charged.
<br />CONCLUSION
<br />In 1996 Congress for the first time created
<br />federal requirements for cell tower zoning.
<br />As interpreted by the courts, the Act creates
<br />some challenges for municipal compliance,
<br />in part because some of the procedural pro-
<br />visions are quite different from local zoning
<br />practice and in part because federal courts
<br />often order zoning applications approved
<br />when the Act is violated.
<br />By careful attention to the matters
<br />described in this article, and by paying at-
<br />tention to the specific interpretations of the
<br />Act by the courts in their area, municipalities
<br />can ensure that cell tower zoning decisions
<br />comply with federal, state, and local law as
<br />well as the public interest.
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<br />VOL. 28, NO. 8
<br />Zoning Practice is a monthly publication of the
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