TRAJECTORIES OF FEDERAL ZONING PREEMPTION EFFORTS

(Editor’s Note: Reprinted with the permission of the author, John Pestle, who is a telecommunications lawyer with the Varnum law firm in Michigan.)

Every few years the Federal Communications Commission is asked to preempt local zoning (and sometimes building codes as well) as to telecommunications towers — radio, TV, cell phone, and the like. Generally these attempts attract a lot of attention initially but then fizzle out.

In that regard the latest attempt to impose “shot clocks” and other restrictions on zoning applications for cell towers seems to be following a similar track. Although it was expedited by the FCC in the fall of 2008, presumably to allow the Bush FCC to act on it prior to leaving office, that didn’t happen. It is also unlikely to be a high priority for the new administration.

Here are some examples of prior preemption attempts which followed a similar trajectory, followed by some observations as to why these patterns occur.

In 1996 the cellular industry was surprised to find courts approving temporary moratoria on cell tower zoning applications, usually until communities could adopt zoning ordinances to come into compliance with the then recently-enacted cell tower zoning provisions of the 1996 Telecommunications Act, 47 U.S.C. § 332 (c)(7).

Reacting typically, in late 1996 the cell phone companies filed a petition at the FCC to have zoning moratoria declared illegal, or if not illegal, greatly restricted. The FCC, acting with unheard-of speed, sought comments both in December 1996 and then in July 1997. Ultimately the proceeding went nowhere and was resolved with an agreement between the FCC’s then Local and State Government Advisory Committee, the cellular industry, and the FCC on best practices for wireless tower siting and an informal dispute resolution process.

Then in August 1997, the FCC started a rulemaking which would have largely overturned the 1996 Telecommunications Act’s general preservation of local zoning authority over cell towers. It proposed to do this by having the “exception swallow the rule”, namely by allowing the FCC to review and reverse any local zoning decision which it considered tainted by concerns over RF radiation. The concept was to do this under the 1996 Act’s provision that municipalities cannot regulate cell towers under their zoning powers based on tower radiation concerns if the radiation complies with FCC rules.

In the rulemaking, the FCC proposed that it could “second guess” the stated reasons given by a local zoning authority for its decisions, and could determine that their “true” basis for decision was RF radiation based (so the FCC could reverse it). The FCC also proposed that it could intervene in court proceedings to support cellular companies. Although starting with a bang, the proceeding concluded with a whimper in 2000, when it set forth procedures for petitions to the FCC claiming that municipalities violated the RF radiation exception.

Concurrently, in 1997 the TV stations got the FCC to propose a rule requiring states and communities to act on all permits and approvals needed for broadcast towers within 21 to 45 days, with failure to act in these timeframes resulting in the application automatically being granted. In other words, a “shot clock.” Their argument was that this change was needed for the transition (actually occurring in 2008-2009) to digital television and that state and local zoning and permitting would slow the transition. This rulemaking also basically came to naught.

These proceedings followed a common pattern of the industry claiming an artificial crisis and providing misinformation on municipal activities, followed by a retreat by the FCC once municipalities objected and provided information on the true state of affairs. In this regard, the claimed “crises” turned out to be overblown. Municipalities educated the FCC about the important role played by local zoning and by building codes for the public health, safety, and welfare, and the FCC often appeared to realize it was on thin (or non-existent) ice legally.

This somewhat predictable cycle has been aided by Washington’s skepticism, especially in recent administrations, about the role of government (other than that of a Federal agency proposing to preempt other units of government!). It has been further aided by the fact that the telecommunications industries hire FCC alumni to lobby their former employer, which results in a somewhat self-reinforcing cycle until municipalities find their role threatened and are forced to educate the FCC on the true state-of-affairs.

So, although the final chapter of the cell tower industry’s 2008 zoning preemption proceeding has not yet been written, its trajectory so far seems to be following that of similar efforts in prior years. But municipalities must stay vigilant, as this will certainly not be the last time such preemption is attempted, and attempts could be made to resuscitate this proceeding.

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