FCC Zoning Preemption Proceeding
The Proceeding:At the request of the cellular industry, the Federal Communications Commission ("FCC") has started a proceeding to effectively preempt local zoning of cellular towers. The proceeding is on a fast track (comments due Sept 15, replies Sept 30), presumably to try and complete it before a change in administrations. The FCC's proposed action directly violates the Telecommunications Act Congress passed in 1996 which preserves local zoning of cell towers (and directed the FCC to dismiss proceedings that would have restricted local zoning of cell towers).
The FCC proposal is to limit local zoning of cell towers as follows:
- A fixed deadline of 75 days from filing for "final action" by municipalities on applications for zoning approval for new cellular towers and antennas.
a. If the 75-day deadline is not met, the zoning approval is automatically deemed granted! - A similar deadline of 45 days for applications for zoning approvals to add cellular antennas to existing towers.
a. Again, with zoning approval automatically deemed granted if the deadline is not met. - Preempt zoning ordinances where variances are required for cell towers.
a. In other words, if a municipality requires a variance for a cell tower, the FCC would preempt and rule that no local zoning approval is required at all! - Preempt municipalities ability to consider whether other cell companies provide service in the area when determining whether there is a "gap" in coverage warranting a new tower.
What Municipalities Can Do:
Municipalities should do two things:
1)--Oppose the proceeding at the FCC, and 2)--contact Congress asking it to tell the FCC to stop (Congress has consistently supported local control over cell towers - - now is the time for them to act).
On the first point, we will be filing comments opposing this proposal on behalf of many municipalities - - information on how to participate is set forth in our memo (PDF, 154 KB).
To assist municipalities, here are the following:
Memo summarizing (PDF, 154 KB) the FCC zoning proceeding
Suggested letters to Congress - - Michigan version (DOC, 45 KB)`, version for other states (DOC, 43 KB)
Cellular industry petition (PDF, 228 KB) asking for these changes
FCC notice (PDF, 116 KB) setting dates for comments
Municipalities should do two things:
1)--Oppose the proceeding at the FCC, and 2)--contact Congress asking it to tell the FCC to stop (Congress has consistently supported local control over cell towers - - now is the time for them to act).
On the first point, we will be filing comments opposing this proposal on behalf of many municipalities - - information on how to participate is set forth in our memo (PDF, 154 KB).
To assist municipalities, here are the following:
Memo summarizing (PDF, 154 KB) the FCC zoning proceeding
Suggested letters to Congress - - Michigan version (DOC, 45 KB)`, version for other states (DOC, 43 KB)
Cellular industry petition (PDF, 228 KB) asking for these changes
FCC notice (PDF, 116 KB) setting dates for comments
Wireless/Wi-Fi
Many municipalities are now considering providing wireless or Wi-Fi service, either for use by their own field personnel, for the public in parks and selected buildings, or available citywide. We have assisted cities on these types of projects, as they consider whether private companies or the city should provide the service, and on contracts with private companies for Wi-Fi service.Among the legal issues such projects pose for cities and their attorneys are things as: A good legal and technical definition of the service to be provided; good descriptions of where the service will be provided; clearly describing who will provide customer service and technical support to users; and addressing potential RF interference issues in agreements for Wi-Fi access points to be located on municipal buildings or in the rights of way. Among the Federal laws involved are CALEA (for systems providing service to the public); making sure the FCC's OTARD rules (preempting local zoning and other requirements) do not apply; and Communications Act Section 253 relating to not preventing the provision of telecommunications service, and not discriminating on certain right of way related matters.
Cell Towers
Municipalities face a five-fold increase in the number of cellular telephone and PCS (Personal Communications Service--the newest form of cellular telephone service) towers and antennas. This is due to 125,000 new towers and antennas being built. The Federal Telecommunications Act of 1996 preserves local zoning of such towers.Model Cellular Tower Leases:
Model cell tower leases (PDF, 132 KB) for municipalities to use to lease space for cellular towers and antennas, with protections against the bankruptcy of the provider. The leases come in three versions, one for a new tower to be built on vacant land, one for a cellular antenna to be placed on an existing building or water tower, and one for a cellular antenna to be placed on an existing municipal communications tower.
Model Cellular Tower Zoning Ordinance:
A model cellular zoning ordinance (PDF, 183 KB) to help municipalities better regulate the 125,000 new cellular antennas planned nationwide.
Cellular Tower Zoning, Siting, Leasing & Franchising: Federal Developments & Municipal Interests (PDF, 370 KB) is our 55 - page detailed seminar paper which describes PCS and cellular services, municipal concerns regarding them, the Federal Telecommunications Act of 1996 and many other items municipalities should be aware of in dealing with PCS and cellular providers. It provides a comprehensive overview of cellular matters, including a summary of Federal Court of Appeals cases and recent decisions interpreting the cellular tower zoning provisions of the Federal Telecommunications Act of 1996 .