As Section 6409(a) goes on trial, it is helpful to look at the history of congressional lawmaking and FCC rulemaking concerning the zoning process to see how it has evolved.
Charles Ryan III, vice president of operations, Concepts to Operations, touched on actions of the FCC, Congress and the U.S. Supreme Court that have an effect on local control over cell tower siting, during the International Wireless Communications Expo, held this week in Las Vegas.
Congress has taken seemingly contradictory stances on local control, setting up multiple federal requirements for tower siting at the same time it declared zoning was a local responsibility.
“The siting of towers was defined as a federal act in the Telecom Act of 1996, which is why it triggers the need for environmental and historic reviews, as well as the requirement of notification to federally recognized Indian tribes,” said Ryan, who was speaking on the Tower Safety and Regulatory Compliance panel. “Congress took certain things off the table in the local zoning process, such as considering health concerns. Discriminating between wireless carriers was also forbidden. A local jurisdiction cannot take zoning actions that will result in prohibiting personal wireless communications.”
Even though siting a tower is defined as a federal act, in Section 332 (c) (7) of the FCC’s rules, it states that the authority of a state or local government may not be limited in decisions it makes regarding the “placement, construction and modification of personal wireless facilities.”
“So you have the federal government saying cell tower construction is a federal issue, but local jurisdictions can get involved in these areas of the zoning process,” Ryan said. “In doing so, that is where the conflict has occurred during the last 15 years as carriers have been building out towers.”
Over the years, the FCC has made different attempts at modifying its rules allowing the carriers to build out commercial towers in an attempt to speed the deployment of wireless broadband communications. The FCC’s shot clock set a “reasonable time limit” for collocations (60 days) and new tower applications (150 days), after which the carriers were allowed to sue when their applications were not acted upon in time.
“Four years ago, the FCC adopted the shot clock, which didn’t work because the local jurisdictions ignored it for the most part,” Ryan said. “For the first time we are seeing local governments being sued by carriers.”
In the Middleclass Tax Relief and Job Creation Act of 2012, Congress strove to remove local roadblocks from the build out of the broadband network, particularly in Section 6409(a), which stated the jurisdiction must allow wireless applications for collocations and modifications that meet certain requirements.
In the FCC’s Acceleration of Broadband Deployment Report and Order, which implemented Section 6409(a), one of the new rules state that a local jurisdiction must approve a collocation within 60 days or it is deemed approved. Ryan believes the jurisdictions that filed suit against the FCC will target the “deemed approved” language.
“The Federal Communications Act specifically preserves local government zoning authority. With Section 6409(a) Congress and the FCC have specifically taken that away,” he said.
Ryan said cellular carriers have fared well recently in the U.S. Supreme Court. In the case T-Mobile South v. Roswell, GA., the court ruled that the basis of a cell tower denial must be stated and it must be provided at the same time as the denial.
How will this judicial uncertainty affect the deployment of broadband wireless? Well, it will take four or five years to advance to the U.S. Supreme Court for a final decision. In the meantime, the federal law must be followed regardless of the ongoing court battles concerning Section 6409(a). Until it is resolved, carriers will continue to be able to rely on wireless-friendly rules defined in the Acceleration of Broadband Deployment Report and Order.