WASHINGTON-Commenting on a petition regarding moratoria on siting issues, the Personal Communications Industry Association last week submitted to the Federal Communications Commission a laundry list of criteria that should be included in any FCC-generated pre-emptive policy. The group also asked the commission to conclude its review of this pending petition and of U S West’s petition regarding some Rosewood, Minn., zoning ordinances.
PCIA has been meeting with state and local officials regarding the increasing importance of wireless network buildout. “Local leaders … indicated that the highly competitive nature of the wireless marketplace often precludes full cooperation between new and incumbent wireless providers, thereby frustrating any attempts by local officials to encourage infrastructure sharing by new and incumbent carriers,” PCIA wrote. “PCIA believes that these concerns are reflected in the imposition of tower-siting moratoria, and franchise and licensing fees, all of which disproportionately disadvantage newer market entrants.” Because of the commission’s apparent failure to take “decisive action” against such barriers to entry coupled with the wireless carriers’ wishes to speed service to the public, “local officials and decision makers seemed generally dismissive about the congressionally mandated national priority of developing a wireless infrastructure.”
Besides taking state and local jurisdictions to task over the imposition of direct or indirect barriers to wireless entry, PCIA urged action against two types of de facto moratoria-creeping and negatively implied. The association defined creeping moratoria as situations when “localities defer acting on tower-siting applications while the issue is considered by an advisory committee, and the advisory committee either fails to reach a decision or does so only after a protracted delay; and when localities fail to act on zoning applications in a timely manner.” During such a period, no zoning permits are issued and applicants generally cannot get their questions answered. Such action, PCIA wrote, could be construed as an “explicit ban.”
Negatively implied moratoria include “zoning ordinances that prohibit all but a defined set of structures, and communications towers are not among that set of permitted structures.”
While PCIA believes some moratoria may be warranted in the short term, “there must be temporal limits … such moratoria effectively prevent entry into the wireless telecommunications market, given that if a wireless carrier cannot construct the required towers, it cannot provide service under its commission-issued authorization.”
To help solve the moratoria dilemma, PCIA suggested the commission:
Allow one-time, temporary moratoria of up to three months for a jurisdiction to formulate a wireless infrastructure policy. Siting applications should be accepted and processed during this time. Any moratoria that extends beyond three months or any new moratoria attached to a similar previous actions should be considered a barrier to entry, in addition to any failure by a jurisdiction to issue a written ruling within that time. Other barriers to entry should include efforts to force carriers to locate on municipally controlled or operated locations; financial, legal or technical qualifications; and prohibition of installing antennas on existing structures.
Scrutinize any moratoria enacted a year or more after the Telecommunications Act of 1996 was adopted because jurisdictions should have had enough time to address siting concerns voiced in that act.
Disallow any incumbent provider from continuing to build and maintain facilities where wireless carriers are being impeded.
“A blanket policy statement will help reduce the need for different parties to relitigate, over and over, the same issues,” PCIA wrote. The association also believes that if such a commission-based siting policy had been in place at the time of the 1996 act’s passage, it would have been invaluable in providing guidance to state and city courts faced with wireless lawsuits, such as that between Sprint Spectrum and Medina, Ore. According to PCIA, an Oregon court allowed the six-month moratorium because it was “not a prohibition on wireless facilities, nor does it have a prohibitory effect. It is, rather, a short-term suspension of permit-issuing while the city gathers information and processes applications.”
Finally, PCIA urged the FCC to resolve the U S West/Roseville petition regarding pre-emption of current zoning ordinances in that city. In a petition filed 20 months ago, U S West charged Roseville with refusing to allow commercial mobile radio systems to build their networks inside city borders “if the licensees in question did not comply with an extensive list of vague and onerous requirements.”
