A. Wire America Assessment of ART’s “Smart Planning Provisions”
The following Americans for Responsible Technology (ART) document is essentially a “light lift” from this April 9, 2021 document (https://wireamerica.org/limitations-of-fcc-18-133/) , authored solely by Andrew Campanelli. See suggested edits below and also see https://wireamerica.org/campanelli/
Wire America Comments on ART’s Version
See Wire America comments, below. // See suggested
subtractions and additions.
From Americans for Responsible Technology (undated)
Smart Planning Provisions for Local Governments
Various state laws require the following disclaimer: This document is not intended, and should not be construed, as offering legal advice. Please consult a qualified attorney for advice on these matters.
The Telecommunications Act of 1996 is the primary governing document for the
siting placement, construction and modification of wireless telecommunications facilities in the United States. In the Act, Congress specifically preserved the authority of local governments to exercise control over these activities in their communities.1
Title 47 U.S.C. § 332(C)(7):
(7) Preservation of local zoning authority. —
(A) General authority. — Except as provided in this paragraph, nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.
(B) Limitations. —
- (i) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof —
(I) shall not unreasonably discriminate among providers of functionally equivalent services; and
(II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.
- (ii) A State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request.
- (iii) Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.
- (iv) No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission’s regulations concerning such emissions.
Wire America: this needs more careful explanation to establish that “functionally equivalent services” = “personal wireless services” = the ability to make an outdoor wireless phone call and therefore there is no premption for Wirelesss Broadband (i.e. information services) This document is missing a critically important reference to the 1996-TCA Conference Report → https://wireamerica.org/1996-tca-conference-report/
Other than these exceptions, local governments may adopt whatever provisions are appropriate for their communities. With the sudden proliferation of wireless antennas related to the
deployment of the next generation of wireless telecommunications referred to as “5G,? dense deployment of Wireless Telecommunications Facilities (WTFs) infastructure antennas of any size or any “G” that is occurring far too close to homes, schools, parks and care facilities . . . many local governments are taking the opportunity to revise and update their zoning codes to avail themselves of the powers preserved to them by Congress.
By taking action to incorporate “smart planning” provisions into their municipal zoning codes, governments are able to exert control over the
siting placement, construction and modification of cell towers, small cells and other wireless facilities.
Without taking steps to preserve their legal authority over these matters, local governments are leaving themselves open to the irresponsible deployment of
small cells Wireless Telecommunications Facilities (WTFs) of any size or any “G” in their communities, and will be bound by whatever provisions are in their codes at the time the application is received. Wireless companies and site developers2 will always choose antenna locations that are the least expensive and most convenient for them, regardless of the needs or desires of the community.
The purposes for adopting “smart planning” provisions are to:
- provide clarity and guidance to applicants;
- minimize the total number of WTF infrastructure antennas and amount of related equipment required to
obtainprovide carrier-specific wireless telecommunications coverage in the community;
- use zoning laws to establish effective protections in residential zones to preserve the quiet enjoyment of streets, privacy, public safety and the residential character of residential zones.
Some sample “smart planning” provisions:
- Local governments can say no Wireless Telecommunications Facilities (WTFs) in residential zones
- Local governments can specify preferred locations in non-residential zones for antenna placement and require that applicants submit documented proof with substantial evidence placed in the public record that proves that that such locations are needed to close a proven gap in telecommunications service.
will not provide coverage of the area before considering other locations.
- Local governments can require that WTF applications for new construction (not modifications) are discretionary and not ministerial processes, requiring robust public noticing and public hearings.
- Local governments can specify that it has the right to hire its own neutral RF engineer to conduct random, unannounced wireless signal strength and RF microwave radiation measurements: (a) a full Signal Strength Spectrum analysis for all licensed and unlicensed wireless frequencies from 100 MHz to 60,000 MHz and (b) total peak and average RF microwave radiation measurements from all sources from 100 MHz to 60,000 MHz) for the area in the proposed search ring of any proposed WTF, with all costs paid for by the WTF’s owner/operator.
- Local governments can require applicants and antenna operators to provide a full copy of the firm’s commercial liability insurance policy proving that it has sufficient insurance to cover future claims of injury, illness or death related to RF microwave radiation exposures, naming the local government as the additional insured. In lieu of a full copy of the firm’s commercial liability insurance policy, the applicant can post a bond in escrow in the amount of $5,000,000 per WTF.
These are just a few of the options available to local governments seeking to exert some control over the deployment of wireless facilities in their communities, but again, these provisions are not automatically granted to the local government: they must be expressly reserved in a “smart” zoning code.
Wire America: More can and should be added to this “light” document.
- The law is silent on regulatory authority over the “operation” of the wireless facilities. [Wire America: The legislative intent of the 1996-TCA was to preserve localities’ authority to regulate the operation of Wireless Telecommunications Facilities (WTFs) see here → https://wireamerica.org/compare/] ↩
- Most applications for small cell antennas are submitted by site developers who obtain the necessary permits to construct the antenna, and then lease space to one or more telecoms. ↩