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Local Officials Will Take the Heat for Federal Rules Governing Cell Towers

June 5, 2012
Cell Tower Blog Post

Section 6409(a) of February's Middle Class Tax Relief Act purports to compel local governments to approve cell tower zoning collocation applications. But it is probably unconstitutional. Why? Precisely because it compels local approval. 

To explain – the Supreme Court has rejected as unconstitutional Federal statutes which "blur the lines of political accountability" by directing local officials to take actions for which the Feds are really responsible. Section 6409(a) runs squarely afoul of that prohibition.

Think about it:  The statute requires local officials to "approve" qualifying collocation applications.  As the Supreme Court has stated, that results in local officials taking the heat for which Congress is really responsible. Stated another way, Congress devised the statute so that to the ordinary person zoning approval of an egregious cell tower collocation application would appear to be the result of local action, with local officials bearing the political consequences. But in fact it is Congress and the Federal government pulling the strings, but effectively trying to avoid responsibility.

There are other reasons for doubting the constitutionality of Section 6409(a), such as basic principles of federalism. But its' impermissibly blurring the lines of political accountability is one of the clearest and easiest to understand.

See the attached five page legal paper for a detailed discussion of why Section 6409(a) is unconstitutional.

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Section 6409(a) will be the subject of an upcoming webinar co-presented by John Pestle on February 11, 2014.

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