Campanelli Advice

Andrew Campanelli, Esq.: timely advice for towns, cities and counties in Feb 2021

Campanelli:If your local municipal attorney has told your town: ‘Oh, your hands are tied by the Telecommunications Act of 1996 or by FCC Orders and you can’t control the placement of Wireless Telecommunications Facilities (WTFs) and your town can’t turn down applications’, then you need to get an new attorney — immediately.”

Attorney Andrew Campanelli Video #1

Attorney Andrew Campanelli Video #2

Attorney Andrew Campanelli Video #3

Video Content:

  • Video 1: How to control the placement of cell towers, including so-called “small” Wireless Telecommunications Facilities (sWTFs) and Distributed Antenna System (DAS) nodes in your city, county town or village
  • Video 2: Introduction to an experienced cell tower attorney
  • Video 3: The Telecommunications Act of 1996, what local governments need to know — in plain English

 

Additional Clarity from Andrew Campanelli (Municipal Attorney) & Scott Noveck (FCC Attorney) in 2020-2021

 

Scott Noveck, FCC Attorney on Feb 10, 2020

Campanelli Advice in July, 2020

Campanelli Advice in March, 2021

Attorney Andrew Campanelli at 30:29 in this July 23, 2020 video:

“You are probably going to hear someone [on a City Council] say, ‘Oh no, we are preempted, our hands are tied.’ I hear that all the time.

There is a [September 2018] interpretive Order [FCC 18-133] . . . which I think is ineffective . . . Federal courts — for twenty years — have interpreted the language in the Telecommunications Act that says when an effective prohibition occurs. These cases have gone up to the US Courts of Appeals for the 2nd Circuit and all the other Circuits.

Federal judges are bound by these [No Significant Gap in Telecommunications Coverage and Least Intrusive Means] tests. So if some [company] wants to claim,

‘you [the City] must give us an approval, even if it violates your code because saying no would be an effective prohibition’,

. . . and you [the City] says no, [the company] would have to file a law suit in Federal court and the Federal judges are bound by the Circuit Court Rulings which say an effective prohibition occurs when the company proves there is a signifcant gap and the proposed installation is the least intrusive means.

The [company] can’t meet that test in the [densified 4G/]5G rollout, so the Wireless Industry went to the FCC and got them to issue a new “interpretive” Order [FCC 18-133] and here is what the Order says . . . after 24 years, we the FCC interpret that that effective prohibition language meaning that applicants don’t have to prove that there is a significant gap in service and they don’t have to prove — contrary to 20 years of Federal Court decisions — they don’t have to prove that their installation is the least intrusive means of remdying that gap. All they have to say is ‘they need this facility at the location they want at the height they want to either improve an existing service or to add a new service.’

I don’t think that has any effect on a town’s ability because . . .

  1. The FCC can’t take away the powers preserved to towns by Congress — it wasn’t intended
  2. The FCC can’t wipe out twenty years of Federal judges’ interpretations
  3. The FCC can’t strip local governments of 20 years of local zoning regulations

The Wireless industry is going from town to town, showing this [FCC 18-133] as gospel and the closest thing I have to a decision on this, so far, is one Federal judge in New York said and I’ll quote him:

It is not up to the FCC to put words in the Telecommunications Act that aren’t there.’

So, that’s why I think I am right. I know local towns still have the power to control the placement of Wireless Telecommunications Facilities (WTFs). To the extent an applicant says ‘You have to give [this permit] to us because of this [September 2018] interpretive Order’ — I don’t think the Order has any effect on the ability of towns to control the placement of Wireless Facilities at all.”

Attorney Scott Noveck at 35:05 in this Feb 10, 2020 Oral Argument in the US Court of Appeals, 9th Circuit:

Scott Noveck, FCC Attorney on Feb 10, 2020 → https://youtu.be/zoZHNSOibmo?t=35m05s

“The Order doesn’t purport to prevent localities from addressing reasonable aesthetic requirements. In fact we say in the small cell order that aesthetic requirements are permitted . . . a locality could say if a 50-foot pole would be out of character with the surrounding neighborhood, you can’t put up a 50 foot pole.”

Scott Noveck, FCC Attorney on Feb 10, 2020 → https://youtu.be/zoZHNSOibmo?t=37m47s

“Localities are still free to craft their own substantive aesthetic requirements”

Scott Noveck, FCC Attorney on Feb 10, 2020 → https://youtu.be/zoZHNSOibmo?t=38m28s

“These Orders [FCC 18-111 and FCC 18-133] are not self-enforcing. They contemplate the need, in many circumstances, for further case-by-case adjudication and in those instances either someone would have to come back to the Commission or go into court.”

Scott Noveck, FCC Attorney on Feb 10, 2020 → https://youtu.be/zoZHNSOibmo?t=40m21s

“Nothing in this order is self-enforcing.”

Scott Noveck, FCC Attorney on Feb 10, 2020 → https://youtu.be/zoZHNSOibmo?t=40m52s

“Anyone of these specific factual disputes that arise, this Order is designed to provide some clarity and narrow the scope of disputes . . . when there are remaining disputes, nothing about this Order is self-enforcing.”

Scott Noveck, FCC Attorney on Feb 10, 2020 → https://youtu.be/zoZHNSOibmo?t=51m44s

“These small cells, though they have much less range than macro towers, they have a fair range.”