The mobile phone industry’s push for an antenna-siting shot clock is being booed by cities and citizens, continuing a fierce debate dating back to the telecom act of 1996 and that continues to play out unevenly in the courts to this day.
Industry association CTIA wants the Federal Communications Commission to set deadlines of 45 days and 75 days for local governments to act on applications for collocation and siting of new wireless facilities, respectively. The trade group’s petition involves two provisions of the 1996 telecom act. One provision set a national policy for antenna siting, without eviscerating the jurisdiction of state and local authorities. The other provision bars cities and states from enacting statutes or regulations that constitute barriers to entry for telecom carriers. On the latter, CTIA has urged the FCC to preempt zoning ordinances requiring wireless carriers and tower companies to obtain variances as a prerequisite to any siting approvals.
But cities will have none of it.
“The petition seeks to have the commission clarify [the two '96 telecom act provisions] to CTIA’s members’ advantage, absent any reference to statutory text, legislative history, or actual facts. The commission must not accept CTIA’s invitation to engage in wholesale preemption of local government authority which has been specifically protected by Congress,” stated the National League of Cities, the U.S. Conference of Mayors and the National Association of Telecommunications Officers and Advisors.
The groups also argue the CTIA petition should be dismissed because the association did not serve the document on local governments whose siting powers would be diminished if the FCC finds merit with industry’s filing.
CTIA offers a compelling argument for why it believes changes are required, particularly the need to clarify statutory ambiguities regarding timeframes in which local governments must act on siting applications. In its July petition, the trade group said a survey among carriers found that 3,300 wireless siting requests are pending before zoning authorities. Of that total, CTIA said about one-fourth – 760 siting applications – have been pending for more than one year, with 180 of those still in limbo after more than three years.
CTIA argues its petition for declaratory ruling is not a major power play to take local zoning boards out of the siting approval business.
“Rather, the petition preserves states’ and localities’ appropriate zoning responsibilities and only seeks to rid the siting process of the unnecessary delay and opportunistic foot-dragging that are undermining important federal policy objectives,” the trade group told the FCC.
Wireless providers routinely face opposition to siting proposals based on the perceived impact on aesthetics, land value and health, though the ’96 telecom act forbids state and local governments from denying a request to erect a facility based on environmental effects so long as carriers are in compliance with federal radio frequency radiation emission limits.
When siting disputes have escalated beyond the local level, federal courts have issued a mix of decisions on antenna siting. The 9th U.S. Circuit Court of Appeals last month reversed a three-judge panel to give San Diego County an unexpected antenna siting victory over Sprint Nextel Corp. But it seems that for every ruling favoring a city there is a decision backing a wireless carrier.
Federal preemption is an explosive issue, one capable of highly energizing cities, states and consumer groups.
Indeed, the FCC has yet to act on a three-year-old CTIA petition requesting that the FCC pre-empt state jurisdiction over early termination fees. The FCC preempted state regulation of line items on mobile phone bills in 2005, only to see the decision overturned by the 11th U.S. Circuit Court of Appeals and the Supreme Court decline to review the lower court ruling. Many health lawsuits against the cellular industry have turned on federal preemption as well, with rulings generally split between industry and plaintiffs.